8 September 2021

Yesterday we spoke at the Preamble of the European Coal and Steel Community and we saw that the main element
of the preamble, the main driving force of the preamble was peace and ensuring that we wouldn’t have another war
within the European Unione (then the European Community). 
 
To make it works we need institutions:
The institutional structure of ESCS is composed of a commission which in our context is the European
Commission (there was the commission for the European Coal and Steel Community) that had the power of
enforcement, which could ensure that the state parties would abide by the treaty. A bit later in 1957, there have
been EURATOM, because that is the other thing that we are worrying about: in a post-war context, there was the
necessity to put coal and steel in a community so that you cannot possibly going to war, but you also need to ensure
that the exploitation of atomic energy was only for peaceful purposes. The genius of it was not thinking only like
these two sectors as key to ensure peace in Europe but also to think about interlinking between states, so much that
war would become very expensive and very inconvenient: once you interlock the economies, then going to war is
economically disastrous. 
 
We can see now the Preamble EEC of the treaty where member states claim what they want to achieve and how: 
“DETERMINED to lay the foundations of an ever-closer union among the peoples of Europe, 
RESOLVED to ensure the economic and social progress of their countries by common action to eliminate the
barriers which divide Europe, 
AFFIRMING as the essential objective of their efforts the constant improvement of the living and working
conditions of their peoples”
International treaties usually are treaties amongst states so thus reference two the people of Europe would become
very important to the case of the European court of justice.
There is a theme returning: the elimination of barriers and again the essential objective is the constant improvement
of the living and working conditions of people. We have constant referrers to individuals.
 
“RECOGNISING that the removal of existing obstacles calls for concerted action to guarantee steady
expansion, balanced trade and fair competition
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing
the differences existing between the various regions and the backwardness of the less favored regions, 
DESIRING to contribute, using a common commercial policy, to the progressive abolition of restrictions on
international trade” 
Remember that all of this happens in the post-war reconstruction when it was particularly felt the need to push the
economies. How they are going to do it? With balanced trade, fair competition, and common commercial policy.
Common commercial policy: if we want to have a deeply integrated marketing side, we have to negotiate with other
countries together. If a create a space which is highly integrated economically so that a product can travel from a
place to another. Parts of products will come from outside so you want to ensure that your product once it has these
components from outside the EU can continue to circulate and be able to be sold. Ex. a circuit of my Pc is produced
in Chine, composed in Italy, and sold in France. 
Secondly, you want to ensure that the same condition of entry applies throughout the European Union community.
Ex. US exports coca-cola in Italy with a charge of 1%, if France is imposing only a 0.5% tariff on coca-cola, the
US would sell more to France. So, it’s clear that if you want to have a highly integrated market inside you need to
act as one externally => the aim is to improve the life of people, how we are going to do it is balance trade,
competition law, and a common commercial policy (to harmonize the context)
 
The European Economic Community treaty was signed in Rome, in 1957 and entered into force on the 1 January of
1958. We have already seen the preamble.
The provisions of a treaty create legally bind obligation on the States parties of the Treat
 
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Art.2 of the treaty of Rome. “The Community shall have as its task, by establishing a common
market and progressively approximating the economic policies of Member States, to promote throughout the
Community a harmonious development of economic activities, a continuous and balanced expansion, an
increase in stability, an accelerated raising of the standard of living and closer relations between the States
belonging to it.”
We can see the clear functionalist approach, all the ideology before, now we are talking business. How will we
create a common market? Approximating the economic policies of the member states is the way. 
 
How do we get to achieve such an ambitious task? We achieve it with something revolutionary: 
1. We create permanent institutions (not ad hoc, because in lots of international treaties you have ad hoc meetings
ex. Brexit) which at the time were Commission, European Court of justice, Council, and Assembly which will later
become the Parliament. When it was first decided it was composed of national parliamentarians. It was in 1969 that
European Parliament got to be directly elected. 
2. They give themselves a law-making power, the power to make decisions that will be binding on all the member
states. Since the aim is to approximate, to bring the legislations closer together, but they are very aware that states
might sign treaties without following what is inside them (ex. Uk refused to apply the withdrawal agreement which
included the Irish protocol) => so what do they do is creating an autonomous system of enforcement, giving powers
to the EU commission to bring states that do not comply in front of the Court Of Justice. 
3.    Preliminary reference procedure => a touch of genius => the idea is that if you want a law-based system to
work, you need to have one court that will give an authentic interpretation (in the Italian context it is the
Cassazione) this idea that you might have a law but each one of us might interpret it in different ways (ex. freedom
of expression: a broader concept in the USA than in EU). They were very aware of the problem so they thought
they needed a court that will give one interpretation. How did they do that? Through something called the
preliminary reference procedure => we empower the court at the national level (tribunal, Corte d’appello, Corte
costituzionale), giving them the power to go up and ask a question to the European court of justice regarding a
doubt with interpretation, and the interpretation that is going to be adopted is the one given by the European Court
of justice. It’s a piece of genius also because it empowers national courts which become engaged in European
integration.
4. Finally the treaty is based on a functionalist approach so the institutions created by the treaty have only limited
and defined competence which means they can only act when power has been given to the European economic
community. 
This treaty creates a framework that in part is novel.  
The power of the ECJ permits to go against big corporations: Google, Amazon, Uberà for infringement of
constitutional law.
Other features of the European institutions are the autonomous system of enforcement and the autonomous decision
power
 
What is this Common market that will then become the European Union? It has four things (partially we saw it in
the preamble) and it achieves the union through: 
- A customs union => it’s the most simple form of commercial integration: you undertake not to put tariffs on the
goods circulating in your territory
- Four freedoms => the treaty creates the free movement of the factors of productions (goods, services, capital - in
1992 - and workers). Why did they create these freedoms? The idea was one of economic efficiency and the idea of
free movement basically: if fiat produces a car, and Volkswagen produces the same car but with a lower budget, if
you want to be efficient you want the latter to be able to sell in Italy and this creates a push toward efficiency
because Fiat needs to change or would go out of business, clients save money and you would have better
exploitation of your resources and establishment (a company which can sell everywhere they want in EU). An
example of it is within the Brexit with the passporting rights: London became the financial capital of Europe
because companies were attracted there by many factors. Including language, they could base themselves there and
sell their financial products across all of the EU. That’s called passporting. Once they were authorized by the UK
authorities they could sell their products everywhere. Services can be sold so that you can buy a service that is
produced in another member state. 
Workers: Italy asked for free movement of workers because already then we had a problem of collocation of work,
Germany has the opposite problem

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Competition policy and state aid: Let’s go back to the Fiat-Volkswagen example, what would the Italian Prime
minister do? He can put higher taxes on imports (it’s a solution but it’s not allowed); he can buy the company
because he can have all the money he wants (especially pre-Europe you just need to print money). They usually
give cash to the company (cfr Alitalia for years) to make it able to bring down the price. That happens a lot and
most of the wars with our WTO partners are about subsidies. Eu doesn’t want to tempt Italy to support in this way
national business. 
Another problem is collusion between companies: if Fiat has an agreement with Alfa Romeo to stop Volkswagen
we reduce fair competition.
- Common commercial policy with third countries: because otherwise, it wouldn’t work. Bit by bit the drafters
think about what is needed to make this common market work: free circulation, control over states aids,
enforcement of competition law, no customs duties, common commercial company. It’s quite an ambitious list.
 
The key of the common market without which we would not be at this level of integration is the four freedoms. 
- Free movement of goods => This comprises accustomed union which is normal in international trader deals. You
simply say I don’t put any tariffs, but it goes beyond because the treaty also prohibits quotas or equivalent
measures to quotas. The court of justice could do a lot with the notion of equivalent measures (not define), so it is
potentially anything. 
- Free movement of workers: this is pretty much unprecedented in an international trade agreement because in
treaties workers are never included. If Prime Minister Spaventa had done wrong and the employment is 50% she
wouldn't be elected and she would stop immigration to avoid new competition. That’s why workers are not
included in the treaty: because you don’t want that sort of unbalance It also removed for the first time the need for
work permits and visas (ex. You can come but just as a ski instructor or builder). And you also have total
nondiscrimination in the workplace on the grounds of nationality (revolutionary). And also equal access to social
protection. 
- Freedom of establishment and free movement of services: I can set up a company or a branch of a company in
any of the member states
- No discrimination on grounds of nationality: you can no longer favor your own citizens as your own business.
 
This is what we created in 1957. For the rest of the course, we will see the potential of what they created. We have
writings of people who drafted the treaties which testify that they did not expect this resonance. 
 
1963: next important date 
In the same year in which the Beatles release their first album, the EU legal order is effectively created with the
ruling of the court of justice Van Gend en loos. 
 
Background information about the case: Van Gend en Loos
To create this common market one of the first things you need is that you don’t have custom duties, now at the time
there was a transition period because it was a very complex thing. Within this transition period, the member states
had undertaken not to increase the customs duties. 
First phase: not increase duties; Second phase: elimination of them
 
The provision that applies is Art. 12 EEC. 
• Article 12 EEC [now 30 TFEU]: “Member States shall refrain from introducing, as between themselves, any
new customs duties on importation or exportation or charges with equivalent effect and from increasing such
duties or charges as they apply in their commercial relations with each other».
The Netherlands increases duties on a chemical product (3% à 8%)
Van Gend en Loos is a company that is affected by such increase and they say what is going on here? The treaty
said that the government could no longer play with custom duties. When they are asked to pay these customs duties
they refuse based on the treaty which says is not allowed to. The national court says it is true that the treaty states
that the Dutch government cannot do it but the problem is to establish the value of this treaty in the national
context: this is something that should be decided by the European court of justice who has a hermeneutical
monopoly. So Van Gend send a preliminary reference to the court of justice regarding the interpretation of article
12. They are asking what do we do with this treaty. Are individuals protect by this treaty or not?
 
The argument of the parties

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NL. The Dutch government argues that this is simply an international treaty so the only way to enforce that
obligation of art.12 was for the commission to bring infringement procedure. This is about applying the EU law
and the treaty does not say anything about the application. There is no indication that the parties had the intention
of applying it domestically (as for the other international treaty). 
 
Belgium (every government of EU can intervene) says it is simply a matter of national constitutional law: when
you have international law it is national constitutional law that determines what is the effect of it domestically.
Monism versus dualism: it’s the national constitutional law that determines what is the effect of the international
obligation in the domestic legal system. In the duality system whereby, you need the ratification by parliament and
the implementation before you can apply it. In the monist system, the ratification of international law is able
through the constitution to come directly into the domestic system. For Belgium, it’s a matter of constitutional law.
 
Germany says that this is an international obligation, so it needs to be implemented by national authorities.
 
3 out of 6 Member states have this view, a traditional interpretation.
The states push for a traditional interpretation of this treaty: the value of this treaty will be determined exclusively
by the national constitutional system. 
 
Van Gend en Loos argued for the direct effect in the Dutch legal systems and they say that the provision is clear, it
is a negative obligation, not to engage in certain conduct, is simply a prohibition and therefore it can be directly
effective. The fundamental freedom of the individual to move needs to be protected, and there is a clear obligation
of the national court (because of what said above) to simply misapply that legislation. So Van Gend en Loos says
that there is a clear provision that they breached. 
 
The commission which intervenes in all cases in front of the court of justice argues that these treaty provisions
have direct effects, meaning they argue that there is a clear provision (same argument of Van Gend en Loos). What
they also say is that this is a very important question because here is where we determine what the European
community is. 

10 e 14 September 2021

Today we will finish looking at the history behind the European integration
This is very important because actually integration is not like a path which you proceed (as something that goes
from less integration to more integration); actually, the big pushes towards integration have always a reason out of
a crisis or a big historical event.

“We don’t know where we are going… all we know is that we are going there together”
This is a very good quote of the French minister given to the British counter party in the 60s, when the UK was
trying to come in because the goal would not allow
This quote really encapsulates the debate about the European integration

The path towards European integration is very difficult, because actually there is now no uniform agreement as to
what we really want: we still not know today, and we didn’t know in the past
What we have is a constant debate or a constant struggle between those would like deeper integration going
towards federal states and those (as for example Miss Thatcher) who want only economic integration and therefore
do not want to form a European policy and so something more than the simple economic integration
This debate is still hear today: if we read the news about the fiscal integration, the debate is still there between
those known as the Frugal countries, that are the countries which do not want any fiscal integration because it’s
further integration, and those, like Italy, which would like to get it

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We always have to remember that European integration is driven or reacts significantly to geopolitical pressures:
we can think about the role of the EU Vs China, Vs the US
It reacts to internal pressures as well: for the period that we are looking at today, the most important possibly
developments have been:
- The German reunification in 1990 (after the fall of the Berlin wall)
- The war in the ex-Yugoslavia during the ‘90s
- The economic crisis in 2008
- Brexit
- The covid-19 crisis
If we look at them, beside the German reunification, there are only crisis, so the EU reacts very much to what’s
going on

As we said, there is this constant of the lack of underlying shared vision for the EU; it’s not too surprising because
we are 27 member states, which also reflect what’s going on at the political level at their domestic level
There can be years in which there are some countries ruled by deeply Eurosceptic forces, as for example in Italy
two governments ago, and years in which the majority of countered are led by forces that are EU friends

Some key dates:

- 1992  the Maastricht Treaty, which changes the nature of the EU
- 2004  the big enlargement: then countries joined the EU (doubling its population)
- 2009  the treaty of Lisbon, which is the treaty that is still in force
- 2016  the Brexit referendum: for the first time, we have seen a country that left the EU
- 2020  the covid-19 crisis

As a matter of the greatest things that helped the dynamic of the European integration, we have to speak about the
fall of the Berlin Wall and the reunification of Germany, which were immense in determining the direction of the

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EU, and also the war in the former Yugoslavia, which was the first time in which there was a war in the European
territory

The 70s…
There was a bug recession, not big as the 2008 recession
Recessions are important because when we have a recession, what we tend to have is protectionism, because we
want to make sure that our economy keeps on working as much as possible and we don’t want competition from
outside or workers from outside, protecting ourselves and our economy
This is a problem in the European context because the very purpose of the EEC was to abolish protectionism within
the member states
As a result of this, there is pretty much freeze in the process of European integration, there is very little law making
and therefore there is not legislation coming out to make sure that the integration among the internal markets would
be possible

In 1973 the UK, Ireland and Denmark joined the EEC

1975  Trevi Group

It was created a co-operation in the field of security, which will be absorbed in the Third Pillar with the Maastricht
Treaty

Because of that protectionism, the European Court of Justice steps in, started interpreting the provisions of the
treaty so that companies and individuals can rely of the rights provided in the treaty and overcome the protectionist
tendency of the member states
Say that we are in a moment in which we have lots of unemployment, if we have a big state sector, we decide to
employ only our own citizens, but there is a provision in the treaty that says that workers must not be discriminated
because of their nationality
Elena was an Italian citizen in France who went in front to the court saying that she wanted her right not to be
discriminated: therefore, even we are lacking detailed legislation at EU level to make sure that that right can be
enjoined, the court stepped in giving that right (it’s an example of negative integration, that is when integration
happens even lacking EU legislation)
Without this case law we would not have the internal market, because for a long time, the member states were not
legislated and so there was no secondary EU law which could give effects to those rights; what happened was that
the Court of Justice stepped in and established the fundamental principles of the common market: mutual
recognition, broad and teleological interpretation of discrimination

In 1979 we had the first direct elections of the Europe Parliament, which was a major moment in the process of
European integration because for the first time, citizens were able to directly elect their representatives in a
supranatural body and this is important because usually at international level we find governments and not people,
while in the EEC we can see the direct election of representatives (this means bringing people in directly as key
stakeholders)

The 80s….
We have another enlargement: Greece, Spain and Portugal, which all came out from dictatorships, joined EU
In 1985 the Commission white paper complemented the single market

We have the first treaty modification thanks to the single European Act in 1986
The most important changes of this act are these two:
- The introduction of qualified majority voting in council  it means that decisions among the member
states can be taken even if there is no unanimity
This is a big development because before we could have one single state which could just stop any
legislation from happening and this made lawmaking almost impossible
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 Therefore, the qualified majority voting means that a member state can be out voted, that you, as a member
state, agree that even if you are against something you might be bound to it
It’s important to remember that usually, when we are in the context on international relations, the states
have to agree, but this time the states agree that for the process to work, they need to accept that sometimes
they might have to do something that they don’t want
Slowly, qualified majority voting became the norm, it became the normal way through which the EU was
legislated in order to avoid the dictatorship of the minority

- The cooperation procedure

We have a big thing that will increase the integration, which is that with the single European Act, we
introduce a new legislative procedure giving for the first time basically a veto power to the European
Parliament: the parliament has to say yes to every legislation
Now it has become a legislature in which the first step is the co-operation procedure, which implies a form
of participation of the European Parliament to decision making (tacit approval or rejection of legislative
proposals)
This is a result of directly electing the European Parliament, because if we say to citizens that they have to
elect the parliamentarians and then, those parliamentarians have no power it becomes something that
citizens could not take seriously
Moreover, we can see an increase in EEC competences and also this is a constant: each treaty revision we
have, we have an increase in the competences of the EEC and then of the EU

1989  the Berlin Wall fell, and it was a very emotional moment for all the continent
This changed everything because of German reunification, but also because in the moment in which the Berlin
Wall fell, the EEC acquired a new constituency which were the states that were formally under the influence of the
URSS
From the very beginning, the EEC started thinking about the enlargement because it wanted to bring those
countries into the European project

The 90s…
In the 90s we see a genocide in the European territory because of the war in the former Yugoslavia: this was
incredibly because it came as a real shock

During those ages there were some changes that happened at a political level (we can see how important the
national political levels for the European integration are)
The Thatcher government fell, in particular it fell over the Maastricht treaty and every single conservative prime
minister, since the Thatcher, has fallen over Europe
In Italy we had Mani Pulite or the operation ‘clean hands’ which provoked a seismic change in the Italian politics

In 1997 Mr. Blear was elected in the UK: this was important because Blear was the first British prime minister who
was not Eurosceptic, and this allowed to proceed further (we have to remember that for treaty modifications we
need all the member states to agree)

Then, something that is now becoming again important happened in 1998: it was the good Friday agreement, which
was the agreement between protestants and Catholics in Northern Ireland, which led to the end of the troubles and
of the internal terrorism in Ireland
(When we do Brexit, we will see that it is still a problem because people are not managed to find a solution to the
so called ‘Irish problem’)

In 1990 we also had the German reunification and Germany became one of the bigger members of the EU
All were worried about the fact that the big Germany would have gained an excessive power

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As a result of the reunification, the political debate on the future of EEC started again and, immediately, the
European Council in Dublin occurred (The political integration of Europe is accelerated)
A division appeared, in particular between those who were in favor of a ‘federal’ Europe and those who wanted a
mere ‘economic’ union (like the UK for instance)

1991  Treaty of Maastricht (it came into force in 1992)

It was the first big change in the process of European integration: it created the EU (before there was only the EEC)
It created new areas in which the EU can act, new areas of competence characterized by inter-governmentalism
(rather than supra-nationalism): the member states, for instances, agreed to coordinate their foreign relations and
also their justices

The preamble of the Maastricht treaty is important in getting us to understand what the aim of the treaty is itself as
we can says that “this treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are takes as closely as possible to the citizen”
With ‘new stage’ we can understand that there was a strong federal push; moreover, it says that the decisions have
to be taken as closely as possible to citizen and therefore we can see the principle of subsidiarity
The tension between the different ideas of the European integration is very visible in this preamble
It is underlined the idea of ‘peoples of Europe’ and, in. fact, through this treaty it was introduced the European
citizenship

The Maastricht treaty also provided for the first time the national identities of the member states and the principle
of democracy: national identities because there is always this willing of the states to maintain their national states,
and principle of democracy because the EU was preparing for enlargement because of the fact that those countries
which are entering in the union were not democracies or they were very young democracies and therefore there was
the need to restate that those countries that wanted to join need to be based on the principle of democracy

For the first time, in this treaty we find an explicit reference to the respect of fundamental rights: they were already
protected by the European Court of Justice, but now the states wanted to codify it, always for the reasons that they
knew that there will be an enlargement and therefore there was proclaimed a charter of fundamental rights
Hear we can find the idea that if we need to do something and to obtain our objective, we need to improve the
residual competences of EU

The treaty of Maastricht created the European Union

It changed the name but not the substance of the EEC and it broke that community
From being a very sectoral community only about the economic integration, we became a European Community,
and this community goes beyond mere economic integration
There was the creation of the European Citizenship
The three communities, which were Euratom, ECSC and EEC, were unified and the European process of economic
and monetary union began
The other fundamental thing that was done was the fact that this treaty recognized the role of co-legislature to the
European Parliament, so that the Parliament was at the same level of the Council in most areas of lawmaking which
basically means that nothing can happen if the Parliament also agrees to it

We changed our ambitions as a result of some geopolitical changes: from a simply economic community, we added
two more areas to the field in which it is possible to have a European action:
 Common foreign and Security Policy (CFSP), which is called the second pillar
We have now this ambition of increasing our role in the world, so we recognize that we need some form of
coordination of our foreign policies without being jealous of our prerogatives
Therefore it was included among the competences of the EU but leading it as an intergovernmental
method, which means that the states do not really want that level of integration that we have seen with
direct effect and supremacy, but we want only a simple coordination among governments, which means

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 deciding by consensus, no one is outvoted, no role for the European Court of Justice because that would be
an accelerator of the integration and a very small involvement of the European Commission and of the
Parliament
We created therefore these new areas of cooperation which did not mean a step to improve the integration
(we can see it still now with our response to Afghanistan, because it was a national response and not a
unique response given by the EU)
It has become more integrated during the years in the sense that at least we have a civil service and he have
high representative for foreign policy but decision making remains consensus based
This policy, therefore, remains as a mainly intergovernmental field of action, because the member states
are jealous of their role in the international field

 Co-operation in the areas of freedom security and justice , which is called the third pillar
We can see a cooperation on areas such as civil law, criminal law, the topic of migration…

The structure that was created by the treaty was really complicated, because it was based on different pushes
(integration and not more integration)
Even if there were included those two new areas of cooperation, the member states wanted to maintain the EU
separate from a supernatural union, because they were very skeptical about the creation of a federal state and
therefore institutionally, they wanted to put a limit that was the prohibition for the court of justice to intervene, they
did not want also direct effects and also a very marginal role of the European parliament and of the European
Commission

Therefore, we have a common provision and then there are three different thrillers:

Therefore, Maastricht treaty changed our very entity, both institutionally and rhetorically and changed our
ambition, because people started to want to become the European Union and citizens, because it was dropped from
the name any reference to the field of economics, because it was included other areas in the field of action of EU
After Maastricht, there were other two treaties, which were Amsterdam and Nice, which had as their main purpose
to prepare the EU for the enlargement
In 1993 the Copenhagen European Council set out that the union would have started to prepare itself for the
enlargement of the eastern European countries: the union have to change its institutions, for instance deciding how
many representants in the European parliament each country will have, how do the states will decide on the voting
and so on…

1997  the Amsterdam treaty (in was enforced in 1999)

The institutional reforms failed because the states could not find an agreement

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There were some important changes, as for instance the debate about the need of increasing the legitimacy of the
European Community, because the more power is given to it, the more the European Parliament can do in order to
make the legislature process uncountable to the citizens
There was a new procedure again because of the future enlargement that allowed the EU to sanction member states
there were in a situation of constant breach of one of the fundamental rights (we can see today the conflict between
EU and Hungary or Poland)
We can also see the increase in the power of the European Parliament, which become stronger and stronger
We have more competences to the EU, we have the areas of freedom security and justice and the cooperation in
civil and criminal law, which is an area in which the council can notify the measure to countries, and they will
decide measure by measure whether they want to come in or stay out
We have the competence to enact the legislation to fight discrimination (based above all on nationality, but also on
other factors)
We have a social chapter, started thinking about the social field, as for instance the coordination of policies in
relation to employees

What we should notice is that we start seeing differentiate and integration with a not agree and therefore our
solution is not to stop everything but it’s to give opt out, depending on the areas to those countries that do not want
to do what it’s decided; this becomes the only way to be able to proceed (the member states as a union do
something and the state that does not agree does not see any consequences because of the opt out measure).
The UK used this opt out function a lot

Unfortunately, the treaty gets renumbering (there are three different numberings: the original one, up to 1999, util
the European Court of Justice started to use the new numbering in 2009, year in which there will be the Lisbon
numbering, which means that when we read the case law we need to look when that case delivered to know which
numbering applies)

2000  Nice treaty (it was enforced in 2003)

It involves institutional amendments (that had failed to be done in Amsterdam) to prepare the EU for the 2004
enlargement
It actually will lead to problems, because the idea was that the Commission would be reduced in its number, and
this is very problematic for some member states, especially the ones which will have lost the representation in the
commission because of the fact that they already have few or at least one member in it
NB: the Irish referendum determined the postponement of the changes to the European Commission

The EU proclaims the European Charter of Fundamental Rights: it is here solemnly proclaimed, because
fundamental rights are usually found in national constitutions and through this it was made a big integrationist step
At that time, we still had the UK and Mr. Blear was not against it simply because there were no ways this treaty
could have been passed in parliament; therefore, the agreement was that the three institutions solemnly proclaimed
it and this proclamation gave those rights an official legal value

The new millennium…

11 September 2001  there was the attack against the US and in particular against the Twin towers, the Pentagon
and the Pennsylvania and it created a big shock, which changed a lot also the dynamics of the European integration,
because for examples there were sanctions that had to be given
As a consequence of these attacks, there was the beginning of the war in Afghanistan

In 2002 the EURO became the legal tender

In 2004 we had the big enlargement (10 countries entered in the EU); moreover, in that year we had the failure of
the European Constitutional Treaty, because in France and in the Netherlands that measure was not accepted by the
politics, through a referendum; this can be described as the first stop of the process of European integration

10
In 2005 Angela Merkel became the German Chancellor

In 2007 we had the treaty of Lisbon, which came into force in 2009 (this time gap is due to the need of the
ratification of the states in their nations of the treaty)
This is the treaty that we will study and it’s very similar to the project of the European constitution (it appears in
fact as a joke that the project of the constitution failed, it was presented again in that treaty with few
reformulations, and it was accepted)
It changes once again the structure of the EU, simplifying it: we have therefore two treaties and a charter:
1. The treaty of the European Union (TEU)
2. The treaty o the functioning of the European Union (TFEU), which is actually the most detailed treaty
3. The charter of fundamental rights
Among these three there is no hierarchy: they have the same value
After that we entered and we are still in a long period of crisis after crisis, each of them demonstrates how the
entire structure of the EU is somehow lacking, because the EU never has the tools to react to these crisis (for
example with covid crisis the union had to be very creative because it had no powers to intervene against crisis)
The first one was in 2007 and was the economic crisis which started in the US, because of the collapse of Lehman
Brothers and then arrived in Europe, ensuing global financial crisis
Therefore between 2009 and 2010 there was the beginning of the sovereign debt crisis in the EU and the EU
reacted to this crisis creating a new treaty, because in the main time the UK had changed government with the
nomination of Mr. Cameron, who was a bit against the EU
Then the EU did the 6 packs and then it moved into a different treaty which was the European stability mechanism,
which was the treaty that was outside of the EU: it was parallel, but its effects affected also the inside of EU (in
particular the need of money of the EU member states in crisis); it was introduced also the measure of fiscal
compact

Then there was a big political disagreement and there was the refugee crisis, which was created by the situation that
there was in Syria and this crisis showed how the Dublin system did not work (that system works that the
reasonability for the personal asylum is not of the states that represent the first courts of entry, but now the courts
of entry are always the same three, in particular Greece, Spain and Italy; this creates a huge imbalance because
three countries have come responsible for the entire flax of migration)

In 2016 there was the BREXIT and in 2020 there was the codiv-19 crisis, which delivered a push to unity

BREXIT
On the 23rd of June 2016 the UK voted out with a referendum that had a very high turnout (lots of people went to
vote)
The 51.9% voted in favor of leaving the EU
The Brexit caused some problems both in the UK and in the EU (but the EU demonstrates itself as very united); in
the UK there was no agreement about what Brexit meant and so about the relationships that the country would have
had with the EU
For these reasons it takes a very long time, huge constitutional topics…
Eventually, after two general elections, finally on December 2020 the UK officially withdraws from the EU
The effects of Brexit are emerging now, because there was a transition period until December of the last year in
which basically the UK was still part of the internal market and therefore the economic pain of Brexit did not arrive
(then we were in covid crisis which shocked everything) but now some problems are arriving

The EU and the UK have negotiated a cooperation and trade agreement, but at the moment there is no trade.
The relationships is very throat because of the Irish question

11
 16 September 2021

QUESTION 1:

CORRECT ANSWER: C
The European Council as an institution was formalised after the Treaty of Lisbon —before it was informal. It’s
important because you can bring judicial review proceedings only against institutions.
JUDICIAL REVIEW PROCEEDINGS: it’s when you go in front of a court and challenge, for instance, an
administrative decision or, when possible, a piece of legislation; its a direct action whereby you go in front of a
court and you challenge a decision, for example a fine.

QUESTION 2:

CORRECT ANSWERS: B + D + F

RECAP (STATE OF THE UNION)

What is the State of the Union? Something that happens every year, where the Commission’s president sets out
what they have done and what they intend doing.

MAIN POINTS STATE OF THE UNION 2021

The main challenges of the future identified are always the same ones:
● HEALTH EMERGENCY
● ECONOMIC RECOVERY
● DIGITAL AGENDA
● THERE IS A DEBATE ABOUT THE SOCIAL DIMENSIONS OF THE EU: because there is a disconnect
between the citizens and the institutions
● CLIMATE CRISIS: there is a need for the EU to act at an international level because action at Member
State level is not effective
● AFGHANISTAN CRISIS
● THE ROLE OF THE EU AS A GLOBAL ACTOR: defining what the EU wants to be in relation to the
other big world powers. The biggest debate will be on the idea of equipping the EU with some sort of
military power. Though that might be perceived as an aggressive move; moreover how will they relate that
to NATO; but also in terms of democratic accountability, you have to be careful in jumping to give powers

12
 that might have real effects if you don't have the checks and balances that are necessary in democratic
societies
● DIGITAL AGENDA
● MIGRATION
● RULE OF LAW [Discussion about Poland and Hungary: at the moment in the EU we have 2 Member
States that are going towards autocracies, sliding off the democratic scale: Poland ad Hungary. That is a
huge challenge because the EU has to be founded on principles of democracy, rule of law and protection of
fundamental rights. The problem is a Member State can leave, but they cannot be kicked out of the EU, and
this has practical implications for the single market]

THE EU PARLIAMENT
The EU parliament has been directly elected since 1979. Before Brexit there were 751 members; after Brexit 705.
They didn't take away all the seats that were occupied by the British MPs, because some were redistributed. Italy
got an extra 3 seats, because since the last allocation of EUparliament seats the demographics has changed.

The federalists proposed that these seats be reserved to european parties (political parties that would run with the
same agenda in more than one Member State) for an idea of transnational democracy, but it didn't get the
agreement of the Member States so the seats were put on hold for New Members states when they would join.

They are elected according to the national rules, but it is specified that the representation has to be proportionate.
Unusually, the passive/active franchise (respectively when you have the right to vote, and the right to be elected;
they do not necessarily go together) for the EP include EU citizens that are living in another Member State [you
have a right to vote for both the local elections and the EP parliament in the country of residence; not the main
political elections tho]. There was the need to balance geography with democratic issues: so it was proposed the
digressively proportional system, meaning that there is a minimum/maximum number of MPs assigned to Member
States: even the smallest Member State has at least 6 MEP and the biggest up to a maximum of 96.

Both the ECHR and the ECJ have had some things to say about the elections for the European Parliament: in
Matthews, which is a very important fundamental rights case, Mrs. Matthews was a British resident in Gibraltar (a
territory belonging to the UK, though it is contested by Spain, and as part of an informal agreement between them
the residents were not voting for the European Parliament) complained that was not democratic, because most of
the European law also applied there. She couldn’t challenge the decision because it stemmed from EU primary
legislation (Treaty level, it can never be annulled) so she went directly to the ECHR, complaining that her right to
vote and participate in the democratic process was taken away; the ECHR agrees.

In Eman and Sevigner the issue was related to French rules on voting for prisoners: if you were in jail you could
not vote. The lawyers for the parties found a EU law hook, arguing that this inability to vote was covered by EU
law, because it also meant that they could not vote in the EU parliament elections. The French authorities argued
that this was their competence; the ECHR disagrees, and argues that it comes under the umbrella of EU law and
therefore they can interfere. In the end, the legislation stood since there was no problem.

The fact that you can vote as EU citizens even if you are in another Member State is quite important from a
conceptual viewpoint because there is very much this idea of transnational democracy. So the Treaty actually gives
voting rights to constituencies that are usually decided by the States in their sovereignty. The fact that Member
States agreed that could be done at treaty level was a big step.

POWERS OF THE EUROPEAN PARLIAMENT

● ACT AS A CO-LEGISLATURE: basically almost everything in most areas of EU law the European
Parliament has to agree before something becomes legislation. In traditional terms, we have a two chamber
system (the European Parliament and the Council of Ministers) where both have to agree on the same text
before it can become law
● APPROVE THE BUDGET

13
 ● ELECTS THE COMMISSION’S PRESIDENT, but the name is proposed by the European Council; the
Treaty says that when the EU Council decides on the name of the person they should take into account the
results of the European Parliament elections.
[What happened in the previous Commission, the Junker one, is that the main political groupings of the European
Parliament decided to have a spitzenkandidat, where they chose a leading candidate for each group before the
elections. The idea was that in that way the commission president would have indirect democratic accountability;
so when the citizens went to vote they would know who would become the Commissions President. Such an option
was not provided by the treaties, but the Council could do little to stop the process. In 2019, since there was no
clear winner in the European Parliament elections, no party had a majority, which allowed the candidate chosen by
the Council to be selected]
● APPROVES THE COMMISSION AND CAN MAKE IT RESIGN AS A BODY: They cannot approve the
single commissioner, but the EP started to audition every single commissioner to ask them questions.
Another power the EP has allocated to itself
[Caso Buttiglione: where the candidate was supposed to be the fundamental rights commissioner but he was on
record saying gay people are sinners, and restated said position once pressed; then the European Parliament made
clear they would not approve the whole commission unless Buttiglione was at least given another position]
● BROAD SUPERVISORY POWERS
● TRIGGER ARTICLE 7 TEU: which can be initiated by the Member States, the Commission, the European
Parliament, the latter of which has initiated that procedure against Hungary

EUROPEAN PARLIAMENT AND ITS CITIZENS

The European Parliament is also very important since it's the place where things are debated and where minorities’
point of view can get a voice. It’s also a place for transparency. The European Parliament can discuss or analyse
petitions, which is another way that citizens can get involved, and that is thorough their initiatives (led with a
bottom up approach: where once they get enough signatures, at least 1 million signatures from at least 7 Member
States, they can ask the Commission to act)

THE EU COMMISSION
ART 17 TEU
● Promote the general interests of the union and take appropriate initiatives to that end —> supranational
institution, since by definition it pursues the interests of the union; they do not represent the Member States
● Ensure applications of the treaties: the Commission decides to bring infringement procedures against the
Member States; so whether to sue the Members in front of the Court of Justice
● Executes the budget
● Represents the EU externally: important because before there were 2 figures, and now there’s only 1
● Union legislative acts may only be adopted on the basis of a commission proposal

WHO IS THE COMMISSION: President + College of Commissioners (27* members, one Commissioner per
Member State, though in theory there should only be ⅔ of Members) + Supported by Civil Service (it has its own
EU officials and national officials that are posted to the commission, as to have a close link between the national
and EU procedure)

*27 because the Member States didn't want to renounce being represented; a bit contradictory since the commission
should represent and promote the general interests of the EU it shouldn’t matter the nationality of the
commissioners, but in practice it does

HOW DOES IT GET APPOINTED

The EU Council proposes a candidate (it has to take into account the results of the ep elections) —> the European
Parliament elects the President of the Commission —> the general affairs Council proposes Commissioners to be
to the European Parliament, with the President elect being closely involved, and the names elected are based on
proposals by member states (3 names each) —> they select the candidate and then they get the audition in front of

14
the European Parliament who votes as a whole on the Commission —> the council appoints the Commission by
QMV

● SETS THE AGENDA FOR THE UNION

A new power was introduced after the Santer Commission scandal: a woman had given away important jobs; and
since originally there was no way to force her to resign, the Treaties were changed as to allow the president to force
commissioners to resign

COLLEGE OF COMMISSIONERS
● The structure was streamlined with a President with a close circle who are responsible for the others; there
are 8 Vice Presidents + 1 ex officio (the high representative FSP) who are each head of a team of
commissioners
● Commissioners have to be independent experts
● Terms of office: 5 years
● Removal
1. By decision of the ep with very high majority
2. Resignation
3. Misconduct
4. Inability to fulfill conditions
5. Resignation upon request

COMMISSIONS POWERS
● MONOPOLY OF THE INITIATIVE OF LEGISLATIVE PROPOSALS
● POLITICAL ROLE (when the treaties were first drafted it was supposed to be a technocratic executive,
now it has a clear political role )
● EXECUTIVE ROLE
● SUPERVISORY ROLE: ensures Member States comply with EU law; it can bring infringement procedure
against Member States; and has a key role in relation to competition law breaches (contested because it
both investigates and imposes the fines)

21 September 2021

QUESTIONS:
1) The powers of the commission are C, D and G
a. The power to sign international treaties
b. The power to define and coordinate economic policies (it’s a power of the Council)
c. The power to set the agenda and the legislative programme
d. The power to initiate legislation
b/c: because of the power to initiate legislation, it is something that is peculiar in the EU context since the
EU parliament cannot initiate legislation
15
e. The power to approve the budget
f. The power to discharge the budget (discharge= sign it after the end of the financial year)
e/f: it has the power to administer and to execute the budget, not to approve or discharge it
g. The power to initiate infringement procedures  which means bringing the MSs in front of the Court of justice
for a violation of the treaties or any other law connected to them.

2) The European Parliament

a. Has the power to appoint and remove each Commissioner: FALSE
b. Initiates legislation: FALSE
c. Is characterized by digressive proportionate representation: TRUE it is not totally proportional, because
otherwise smaller countries would not have any influence (the minimum is 6, the maximum is, like Germany, 96)
d. Has supervisory powers over the Council: FALSE  parliament and council are totally distinct, the Council is
not appointed by the EU Parliament, it is not responsible in front of the EU Parliament because it is the
representative of the MSs (whether Di Maio goes to the foreign affairs Council, his decisions will be determined by
his thoughts and by the Government in Italy, they cannot be determined by parliament).
nb the Council of Ministers is the institution composed by the ministers of the Member States and acts also as
co-legislature
e. Elects President of the Commission: TRUE

3) Is the Commission technocratic or political?

The Commission is more technocratic in nature even though each MS nominates the person. In this case we can see
how treaties evolve, since in the beginning the Commission was truly technocratic also because the parliament was
not involved (our political body is the EU Parliament), now the parliament is a bit involved Commission, so the
Commission is a mix: in theory is technocratic but it has a strong element of political influence, for instance we can
think of the election of the president of the Commission based on the EU parliament’s decision  there’s a link
with the political dimension.

4) Is the Commission a democratic institution?

First, what do we mean by democratic?
The Commission is not a democratic institution (it is not directly elected by the EU citizens) if we consider the
traditional relationship between people and elected body, the Commission represents the EU not the EU citizens.
We have to remember that even though it is approved by the EU Parliament. It is a take or leave it choice, the link
is weaker than we think, in fact the EU Parliament cannot make a commissioner resign. The Council and the EU
Council are indirectly democratic accountable because they are responsible in front of their own Parliament or
whatever their system has, so they are responsible at a national level. Differently the EU Parliament has a direct
responsibility since it is elected by the EU citizens.

5) What are the drawbacks of a technocratic or a political Commission?

When the treaties were drafted it was a completely different time from now and there was the idea that the
Commission was totally technocratic to do the best for the EU, but if we think about the recovery found: the
Commission has the power to approve countries’ recovery found, e.g. the Italian plan was approved but the Polish
and the Hungarian not yet, and of course these are also political decision since how you spend your money is not a
technocratic matter. We can also think about a less recent example: when there was the crisis, the austerity was
seen as a good solution, because there was the need to balance the budget.
Technocratic commission could appear distant from citizens and from MSs’ internal interests, maybe giving
spaces to nationalist parties’ critiques. There is the narrative of the Commission being antidemocratic and remote.

6) How does your view relate to the federal debate?

The government of the US is political (super government of a super state), at a European level the more you go
toward a political Commission the more you move toward a federal state.

Today we are going to talk about COMPETENCES of the EU

16
EU “competences” means when the EU can act, when the EU adopts certain measures, so we look at:
• The principle of conferral (of powers)
• The types of EU competences  which measure EU can and cannot adopt
• The legal basis : what is the basis in the treaties
• The principle of Subsidiarity
• The principle of Proportionality
 the principles of Subsidiarity and Proportionality determine how the EU act

By “Competence” we mean the EU power to act, MSs by definition have inherent competences, so they have all the
competences (this is the idea of sovran national state), on the other hand the EU is a system based on the principle
of conferral which means that EU only has those competences that the MSs have conferred to it, and this is because
the MSs are the masters of the Treaties and they established the principle of conferral, in fact the EU is based on a
functionalist approach: we want to do something, we put the competence there, we enacted a legislation as it is
necessary, then if we want to do something else we set another competence, so the EU started with few
competences and now it has broader powers. This is possible because the EU is an international treaty, so the MSs
come together and decide which power the treaty gives.

A second issue is different types of competence: we distinguish between exclusive (when only the EU can act),
shared (when both the EU and the MMs can act), and coordinating/supportive competence (when the EU has only
the power to coordinates and supports the actions of the MSs e.g. public health during covid-19, because EU has
not shared competence in public health).

Once you find a competence, you define which type of competence is, then you look at the treaty and find the
specific legal basis, a provision that explains how you can act/ what is the majority required/ what you can do.
Finally, you have two constitutional principles to apply: with shared competence we must apply the principle of
subsidiarity, the Commission has to demonstrate that that action is necessary at EU level, and the principle of
proportionality, the action has to be proportionated to the aim we want to achieve.

Competences are mention in the TEU and in the TFUE, so we have to pay attention to both.
Art 5 TEU
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.
2. Under the principle of conferral, 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. Competences not
conferred upon the Union in the Treaties remain with the Member States.
the last line was wanted by the UK
the article explains what the principle of conferral is, that the EU can act only within the limits of the competences
that have been conferred to it, so if it is not listed in the treaty (there’s one exception) the EU cannot act, and the
overall objective must be compatible with the overall objective of the treaty.
The principle of conferral, how does it work: think about two bowls, the first full of fruits which represents the
inherent competences of the MSs and the second empty which represents the competences of the EU. The second is
empty until the MSs decide to put an apple, then a peach and so on, so the MSs and only the MSs decide to transfer
their competences to the EU.

However, competence can be explicit, when you clearly have a provision that says what you can do, or implicit,
when there is no expressed power in the treaties and yet it is necessary to achieve one of the aims of the treaties. 
eg: environmental crime case, C-176/03 Commission v Council:
The EU has power in the environmental protection and also in coordination of criminal law, so the Council decides
to adopt a framework decision, which was a piece of legislation in the criminal law’s field providing criminal
penalties for environmental crimes. The Commission brought judiciary review proceedings for the annulment of
that framework decision since the Commission argued that the Council had adopted the wrong legal basis and since
the measure was enacted to protect the environment and therefore should follow within the article 176,
environmental protection legal basis. The Council said that it was no possible because there was no competence
17
about the environment in the EU community treaty too harmonize or coordinate criminal law, that was a
competence then present in the third pillar. The court looked at it and found that it was true that the environmental
protection legal basis did not mention the criminal sanctions, moreover the EU did not have an express power to
impose criminal sanctions. Yet the Court said that they must look at what the measures is intended to do and that
measure is intended to protect the environment and even though the EU did not have an expressed power in the EU
community treaty to impose criminal sanctions, that is an implied power to make sure you can obtain the objective
of the environmental protection. So the EE did not have the power under the treaty to impose criminal liability and
yet this power was so linked to the main power which was conferred to the EU that it was implicit and therefore the
Commission won its case because the Court said that the measure should have been adopted not under criminal law
coordination but under environmental protection.
This case was important and the Commission took care since it might have different legal basis, different
participation of different institutions, different legal effects.

Types of EU competences
If we want to act at EU level, we have to find a competence, whether it is explicit or implicit, and then we have to
understand what type of competence your competence is. We have three, broadly speaking, types of competences:
- Exclusive (Art 3 TFEU): we have exclusive competences when the treaty confers on the Union
exclusive competence in a specific area, so only the union may legislate and adopt legally binding acts, so
the MSs can act only to the extent, to which the EU itself empowers them to act.
There are very few exclusive competences because the MSs decided so, they only gave away the minimum
that is necessary to obtain their objectives, which means what the single MS cannot do alone. These
competences are listed in art 3 TFEU:
-3 (1)
a) customs union;
b) the establishing of the competition rules necessary for the functioning of the internal market;
c) monetary policy for the Member States whose currency is the euro;
d) the conservation of marine biological resources under the common fisheries policy;
e) common commercial policy
-3 (2)
International agreements when its conclusion is provided for in a legislative act of the Union or is necessary to
enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or
alter their scope.  this is the codification of the so-called ERTA principle, that came from case law of the EU
court of justice (case about transport): basically if you have an external agreement that impacts on internal rules
than it is for the EU to conclude that agreement and not for the single MSs, because if the single MSs had to
conclude that agreement there would be effects on the internal rules of EU. We should remember that once you
conclude an international agreement you are liable in international law, so MSs cannot enter in an international
agreement if that would affect the EU internal rules.

- Shared (Art 4 TFEU): these are the most important competences of the EU. As a matter of
principle both the EU and the MSs are competent to regulate but the MSs can only exercise these
competences to the extent that the EU has not acted ( this is the principle of PRE-EMPTION, once the
EU acts the MSs are pre-empted from acting themselves) , moreover, the UK asked that the Member States
shall again exercise their competence to the extent that the Union has decided to cease/stop exercising its
competence (of course the competence remained shared but the MSs can act).
Art 4(1) TFEU  when the Treaty grants the EU a competence which is neither exclusive nor
coordinating/supportive, the presumption is that the competence is shared + list (Art. 4(2) TFEU
Principle of pre-emption (once the EU acts the MSs are preempted to act)
Example: we have mineral water, in mineral water there are some minerals including salt. The quantity of salt that
can be is regulated because if it is to much you can die and if it is too less the water is not useful. Water is crucial to
all of us, so you can bet that it has to be regulated all the time and at a certain stage you can have 27 different
regulations of the minimum and maximum of quantity of salt in drinking water, this is a mess, for example, I would
not be able to sell Italian water in France because the regulation is different. So have 27 different systems for

18
something that we all agree that need to be regulated is ineffective. The Commission proposed a common
legislation for the functioning of the internal market. For this to work EU must preempted the MSs from acting
themselves because the entire idea is based in the fact that there is a need that a certain subject has a common
legislation in all the MSs.

Shared competences:
a) internal market main, regulate anything that may be a barrier to free movement
b) social policy, but only for aspects specifically defined in the Treaty;
c) economic, social and territorial cohesion (regional policy);
d) agriculture and fisheries (except conservation of marine biological resources);
e) environment;
f) consumer protection;
g) transport;
h) trans-European networks;
i) energy;
j) area of freedom, security and justice before Lisbon used to be the third pillar.
Ireland has an optout, and this is very important because, after Brexit, the only land border between the UK and
the EU is between North Ireland and Ireland. Now for historical reasons between the UK and Ireland there is a
common travel area which means that Irish citizens in the UK are considered British for all purposes and British
citizens in Ireland are considered Irish for the possibility to vote for constitutional referendum. This free movement
between Ireland and North Ireland remains open, because the board needs to be open, or we will face terrorism
again. The fact that in that policy you have common visas and so on is vital for Ireland, which is outside of this
policy, and this is also the reason why Ireland cannot join Schengen.
k) shared safety concerns in public health matters, limited to the aspects defined in the TFEU: blood products;
l) research, technological development, space;  anomalous shared competence since the MSs continue to
act also when the EU has acted
m) development cooperation and humanitarian aid.
With the shared competences EU adopts legally binding acts including harmonizing legislation.

- Coordinating/Supportive (Art 6 TFEU): when the EU coordinates the actions of the MSs ( a lot
of these during the pandemic), different from harmonization because EU does not decide for a common
rule binding for all the MSs.
Art 6 TFUE, Policy areas:
a) Protection and improvement of human health;
b) Industry;
c) Culture;
d) Tourism;
e) Education, vocational training, youth and sport;
f) Civil protection;
g) Administrative cooperation.

Art 5 TFUE, it is neither about shared competences neither supportive competences, but about non defined
competences/competences ad hoc.
• Member State shall coordinate their economic policies (Council’s power to adopt coordination measures)
• The Union shall coordinate employment policies of MSs
• The Union can take measure too coordinate social policies of MSs
These are not shared competences, but neither coordination/supporting/supplementary competences, they are ad
hoc.

When we did the treaty of Lisbon, we mentioned Common Foreign and Security Policy as the type of area which
was originally introduced with the treaty of Maastricht and constituted the second pillar. The EU has competence
on this area but it is not a supra national competence, it is a special competence in nature: it works by consensus, it
has an intergovernmental character, and the EU cannot adopt legislative acts in this field, there is no direct effect,

19
and the jurisdiction of the Court of Justice is limited to the legality of measures that affect individuals (this was a
modification introduced in Lisbon because of the event of the 11 th September).

- Residual competence (Art 352 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”
The EU, even if it’s an institution sui generis, it’s still a constitutional system so it may happen that in order to
obtain one of the objectives of the treaty, and only when it relates to the treaties’ aims, the EU needs to act but
doesn’t have the expressed competence so the treaty itself provides that the EU can act but only by unanimity and
with the consensus of the EU Parliament. In fact, this competence cannot undermine the principle of conferral. This
power is complex to use, the Commission must alert national parliaments and when the EU is about to enter in an
international agreement one of the other institutions can ask to the European Court of Justice whether that
agreement is in line with the EU treaties before entering in that agreement because we don’t want to enter in an
agreement and later find out that the EU did not have the competence to sign it.
The commission requested an opinion to the European Court of Justice as to whether the EU could become part of
the European Convention of Human Rights (ECHR), so weather the EU had such residual competence, but the
court said the EU did not have such competence in the field of human rights since it was not one of the aims of the
treaties. Therefore the EU did not have power to access the ECHR.  Opinion 2/94 (Accession to ECHR 1)

Exercises:
1) Why are the customs union and the common commercial policy exclusive competence of the EU?
2) Why is the internal market a shared competence?
3) Why is health policy a supportive competence?

22 September 2021

We start with a little test:

- According to the principle of conferral:
o Member states only have specific competences conferred to them
o The union can only act within the competences conferred upon it
o Member states can exercise competences only insofar as the union has not acted
Correct answer is B.
- When a competence is shared:
o Both member states and the Union can act, but the Union cannot adopt harmonisation measures.
o The union should act first and then Member states should adopt supporting measures.
o Member states can act to the extent that the union has not acted.
Correct answer is C.

Today we look at subsidiarity and proportionality. When we talk about subsidiarity and proportionality, we are
asking ourselves: once the EU has competences, should it act and how should it act.
Art 5 of TEU Subsidiarity: under the principle of subsidiarity in areas that do not fall within its exclusive
competences, 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 so the first bit of art 5 tells us that it is
not enough for the EU having competences, to exercise those competences, it must be the case that action at
European level are necessary because action at regional level is not sufficient, it would not achieve the same aim.
Two examples to understand whether the EU should exercise its competences:

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 - Suppose the EU has competences in environmental protection. Now, I’m the commission and I’m
proposing a legislation at EU level. All member states shall ensure that waste is collected every Monday
morning. Do you think this would comply with the principle of subsidiarity? The aim is to implement
waste collection. Now you need to understand whether the action required by reason of scale or effects of
the proposed action it’s better undertaken at EU level rather than at national local regional level. This kind
of rule is better taken at local level for sure.
- Imagine that I’m the commission and I want to adopt a rule which sets out the maximum amount of
emission that cars can produce. So I say for example that the maximum emission is 20. Would that comply
with the principle of subsidiarity or not? If we have all the different limits, member states cannot sell their
cars in other states example: French cars cannot be sold in Italy because they have a threshold for
emission than the one that Italy has. In this case the EU is the only one that can regulate effectively,
because if you leave each MS to regulate for themselves, you would not have a unified market. We’ll see
more examples
Art 5 TEU then follows 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.

We are deciding whether we should pass this EU legislation. What the treaty is saying is that the national
parliament ensure compliance. It applies about shared competences, so once the union regulates, the field is
occupied by EU law and member states no longer have the possibility to regulate. The ‘losers’ are the national
parliament because they can no longer regulate.
Why subsidiarity? Remember Maastricht treaty.
Principle that decision should be taken as close as possible to the citizens because there is the idea that if decisions
are taken close to the citizens, then the decision is more democratically accountable. We also have concerns
concerning the over centralization, the EU doing too much problem that can be seen in the debate of democratic
deficit. There is a big concern, especially in the UK, that EU competences were expanding widely; ‘spill over
effect’ through teleological interpretation the EU gains more competences than the ones that it should legitimate
have.
Debate in convention on future of Europe as to whether subsidiarity should be policed judicially or politically.
There was a huge discussion about subsidiarity, about whether subsidiarity could really be checked by a court or
could be better checked by a court or by political institution.
Judicial review you go on challenge a piece of legislation/ regulation and you say it is compatible or not. Do you
think that a court would be in a good position to police the principle of subsidiarity? If you have EU legislation that
has been adopted with the normal legislative procedure, the proposal is made by the Commission, voted in the
parliament, then is voted by the member states and then it passes; you have 3 bodies that have decided that the
legislation has to be adopted at EU level. If you were a court, would you be comfortable to tell political institution
that actually they got it wrong and the action should be at local level? It’s very critical because usually they all have
looked at the provision and also the representatives of member states and have decided that it is better at EU level.
When this was properly debated, it was decided that actually maybe, one could not simply rely on the possibility of
the ECJ policing subsidiarity. Because by the time the question reached the ECJ, the process of policing has
already been made by other institution. So it was decided that the best way to ensure that the principle of
subsidiarity would be respected, was to involve other political institutions, and these are the national parliaments.
Each time you exercise the competence at EU level, you are taking away that competence from the national
parliament. So you have the idea that national parliaments have to be part of the dialogue about legislation at EU
level. This is why you have art 12 TEU:
National parliaments contribute actively to the good functioning of the Union:
a) Through being informed by the institutions of the union and having draft legislative acts of the union
forwarded to the in accordance with the protocol on the role of national parliaments in the EU.
b) By seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for
in the protocol on the application of the principles of subsidiarity and proportionality.

For this reason if you want something to be respect, give power to the people who might lose out if something is
not respected, because they will always be interested in checking.

21
How does it works? It is regulated by Protocol 2: a protocol it is attached to the treaty and has the same legal value
of the treaty itself. Protocols contain some detailed rules that cannot be placed inside the treaty.
There is the protocol 2 on subsidiarity, it assigns a formal role to the national parliament. It works like this
basically if I’m the commission, you are the national parliament, the first thing that you need if you want to check
is to inform, you need to send the proposal. There is an obligation upon the commission that when it puts forward a
legislative proposal (in an area that is not of exclusive competences of EU)(+ remember that the commission is the
only one that can initiate legislation), it sends it to all the national parliaments, once the proposal has reached the
national parliaments, they have 8 weeks to object, but they can only object on subsidiarity grounds, they cannot
object on proportionality grounds, they can only object by issuing the reason why EU action is not effective in that
area. Each parliament has 2 votes this was done on purpose to accommodate bicameral systems: so if you have 2
chambers, each chamber might have a vote.

Subsidiarity procedureThis is how it works according to the protocol:

1) The commission, as soon as it finalizes a proposal, sends the draft to all the national parliaments.
2) In the draft itself (in the preamble of the legislation) the commission has to explain how that proposal
complies with the principle of subsidiarity, which means it has to explain why action at EU level is
required.
3) The parliament has an 8 weeks deadline: very little deadline. This is the first problem. National parliaments
have so many thing to do, they should have a committee that only does the subsidiarity test. You have to
decide does it comply? You also need at least 1/3 of national parliament for triggering response from the
commission. The national parliament needs to look at the procedure, scrutinize, decide, take a position,
talk with other national parliaments, and see if they could actually reach the 1/3 or they just send an
objection and that’s it, but not very effective.
4) After the national parliament have looked at the proposal and suppose they decided that it does not comply,
you need at least 1/3 of the national parliaments to have objected on subsidiarity grounds (9 parliament).
5) What happens now? Even if 9 parliaments have objected, the only duty the commission has is to look at it
and give reasons for not changing it. So it only has a duty to review, it doesn’t have substantial duty. This
is called the yellow card mechanism. The only duty that the commission has it to look at it and give reasons
for not changing it. It has only a duty to review. This is called the yellow card mechanism. One of the first
time this happened was with the Monti regulation about strikes in the EU. So we have yellow card but
the commission says I don’t care, I think it’s needed and I carry on with my legislative process.
6) On the other hand, if you have at least half of the national parliaments that object to the proposal (14
national parliaments, 28 votes), then the proposal has to be reviewed, but doesn’t mean it needs to be
changed, simply the commission has to give a reasoned opinion about why subsidiarity is complied with,
but also have to alert the EU legislature that the national parliaments have objected and have send to both
European parliaments and Commission the opinions of national parliaments.
7) If the commission keeps on this proposal, then the ball is on the European parliament and the council, who
must consider whether this I complied with the principle of subsidiarity, and they can decide all together to
abandon the proposal.

What was discussed several times was the absence of a red card, the ability for the national parliaments just to kill
the proposal. That’s not provided. If we think about this mechanism, do you think is it effective? At EU level
legislation is always passed, if 2 bodies consent (European parliament and the Council). EU legislation is approved
when EP+ Council consent. Council= ministers of national government, Minister/ national government are
responsible in front of national parliaments.
If the national parliament says we don’t’ want that, And you are the minister of that country’s government, do you
think you can go to the council and vote in favour of that proposal? certainly not. We have create an enhanced
political mechanism, what the commission does is not so relevant because politically they know it cannot pass. This
is what happened with the Monti regulation commission always received the yellow card, but always stated that
there was no problem with subsidiarity; however in the end they dropped the proposal because they knew they
didn’t have the votes in the council.
The other problem is that in their opinion, to have only a subsidiarity check is not enough, because with this test
they can only comment whether that proposal is effective at EU level, but they cannot comment whether they liked
22
that provision or whether the competing interest are well balance. They argue that the system should be changed so
to check both the subsidiarity and the balance of different interest. We haven’t had treaty revision since 2009, so
certainly now is not the right time to do so.

PROPORTIONALITY art 5 TFEU

This is the second constitutional principle in judicial review is the principle of proportionality. In most domestic
constitutional principle you will have a proportionality principle. The principle of proportionality in the Anglo-
Saxon world is summarized with this phrase: don’t kill a fly with a gun. The action undertaken must be
proportionate to the interest pursued. Think about green pass all this discussion is about proportionality, what is
this measure doing, is this limitation on the freedom of individuals proportionate to the aim it is pursuing?
Proportionality is also a very contested concept. It is a codified principle in the EU, so the legislation adopted at EU
must be proportionate to the interest pursued.
Example data retention directive was annulled because it breached the proportionality principle: this provision
stated that everyone who held data (mobile companies etc..) had to retain them for 2 years in case the police
authority wanted access to those data in order to combat terrorism. Of course the aim of the measure is justified
fight terrorism. So there was no issue about the aim of the measure. But it went to look what the measure was
imposing which was a huge burden on the provisors. they looked how you pursue this interest, the obligation was
too long and there was no authority that could check. They were keeping all my data as well as terrorist’s name. the
court found that the measure had no sufficient judicial oversight, therefore even though the aim was justified, the
way in which it was pursued was not. The measure is proportionate with the aim.

In March we needed a huge injection of cash across the European union recovery instrument. Some member
states did not have the fiscal capacity of extraction nor the ability to gain the economic power on the market
because of the interest rate was too high. So it was clear that we needed money. The problem was that there is no
competence the only way the EU could get enough money, would be to issue debt. Put bonds on the market in
order to have a redistributive policy across member states. The problem was that there is no competence. We need
money and we need a way that is legally sound to get this money. 5 years budget plan.
They created a recovery instrument that authorize the commission to borrow 750 bn. The European recovery
instrument decides how this money should be allocated and then you have the EU Recovery and Resilience
facility where you put money and decide how to distribute money.
3 different pieces of legislation:
1) Authorize commission to use money.
2) How the money should be allocated.
3) Rules on how money should be used.
In the own resources decision, you needed unanimity in council, so all the reps of MS have to say yes. Then the
decision has to be ratified by the national parliaments, so 2 levels of governance involved unanimity in council
and national governments.
There are 3 different legal basis to this system. They were really struggling to find the power to do this, secondly
all levels of governance are involved: national parliaments and of course national governments and European level
as well.
The actual competence that was found to make sure that we could do this 750 billion trick. Look at how
imaginative they have been: Art 122 is there to deal with temporary monetary necessity. The relevant paragraph
says that when a member state is in difficulties or is seriously threatened with severe difficulties caused by natural
disasters or exceptional occurrences beyond its control, the council, on a proposal from the commission, may grant,
under certain conditions, union financial assistance. It is not to be excluded that all member states might be in
financial difficulties. This is genius. This provision was made for completely different situations, but they thought
that it does not exclude that all member states might be in difficulties.
It is an event beyond our control, and you can interpret this provision as all the member states were in difficulties.
Then what do they use? They use regional cohesion funds, regional development. and then we have recovery funds.
CASE STUDY: GREEN PASS (search on eurlex).
There is a EU regulation for green pass:
- Green pass is provided for at EU level.
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 - Find the relevant EU legal instrument which provides for it (number of the regulation): it’s the regulation
(EU) 2021/953.
- Find out the legal basis upon which it was adopted: art 21 of TFEU.
Find out whether there is a proportionality and subsidiarity assessment: how would you find that in such a long
document? You use CTRL+F and put the words you are looking for.

23 September 2021

According to the principle of subsidiarity:

A) The EU acts only if the objective of the action cannot be sufficiently achieved by the MS
B) The EU can act where it considers national policies are poorly implemented
C) There is no principle of subsidiarity in EU law

According to the principle of proportionality

A) The pacta sunt servanda must always be respected
B) EU acts must not exceed what is necessary to achieve the objectives
C) In order to fully achieve EU aims, any means available may be used regardless of the consequences

Where the treaties confer exclusive competence to the EU (one or more options)
• A) MS can legislate if the EU remains inactive
• B) Only the EU can legislate
• C) MS can legislate when empowered by the EU

LIMITS OF THE USE OF EU COMPETENCE

Because we work in a system with the principle of conferral, sometimes we need to be very creative as we need the
EU action but don't have the competence, the recovery fund in an example.

We need to ask:
Is there competence?  can the EU act? find appropriate legal basis and centre of gravity of measure. Before
Lisbon, there was a huge mess, each legal basis carried a different legislative procedure. After Lisbon, almost 90%
of the EU goes follows the same legislative procedure.
Now to find a competence is not enough we need to ask: is the EU better equipped to act in this case or could the
ask be achieved by the member state? The commission is obliged o justify the decision on matter of subsidiarity.
Subsidiarity  Art 5(3) TEU “Should” the Union be acting? Can MSs attain result in an effective way (NB
internal market conundrum)?
Proportionality  Costitutional principle found in almost all the member states and Art 5(5) tells How is the
Union acting? Is there a less restrictive way to achieve aim?

Can it regulate? Should it regulate? How does it regulate?

CHALLENGE TO EU LAW
These issue could have as a consequence the annulment of a measure. All of this is relevant when there is challege
to the EU legislation because of:
• Lack of competence / wrong legal basis (ß remember legal basis determines voting procedure)
• Subsidiarity (but note political mechanism) no cases where the challenge was successful.
• Proportionality generally and in relation to fundamental rights.

24
We will deal with judifical review.  and infringement of an essential procedural requirement, infringement of the
Treaties or of any rule of law relating to their application, or misuse of powers  see lectures on judicial review).

We look now at what types of instruments the EU uses. First of all we look at the sources 

 Hierarchy of norms
o Primary law
o Treaties
o Charter
o General Principles
 Instruments of secondary law
○ Regulations
○ Directives
○ Decisions
 Decision-making process
○ Ordinary legislative procedure

The EU is a legal order of international origin with constitutional features:

• It has primary and secondary norms
• There is a hierarchy between norms
• There is judicial review to ensure that the hierarchy is respected

Primary sources  TEU; TFEU; charter of human right, general principles on EU law.
Treaties and charters are all the same. There is no hierarchy among these. They are the constitutional principles of
the EU. However the charter of human rights might de facto condition how the court interprets other provisions. If I
can give an interpretation that is compliant with the fundamental rights and one that is not, the judge will have to
choose the one that is compliant. The court cannot annul a treaty provision and in general primary law as the ECJ
derives its power from the treaties themselves.
Secondary law  Legislative acts (Regulations, Directives and Decisions if adopted through legislative
procedure), they are the legislation that the EU adopts.
Delegated acts  when we have a legislative act that says "the commission will adopt an act", it can authorize
someone to act further. The commission has to act within the limits given by the delegation
Implementing acts  (usually the commission, mostly it). is for instance: we have a directive and need
implementation, we have the powers of implementation given to the commission and it has a group of experts, they
complete the legislation.

PRIMARY LAW
• The Treaties (TEU and TFEU)
• The Charter of Fundamental Rights
• General principles  they had fundamental importance before the chart. We had a legal system with law making
power at the EC level but not fundamental rights. If you think about the post war powers, fundamental rights were
very important and we had a problem. The national constituions did not want to allow the EC to do something that
their own governemtnt could not do, they were worried that through the EC legislation , they could end up in a
situation in which fundamental rights were not respected. The ECJ accepted it as a problem, they knew thet did not
have a codified body of fundamental rights. So, the ECJ says that fundamental rights are the general principle
of the EU,which binded all the intitutions, and they found these rights by looking at the common constitutional

25
traditions and the European convention of human rights. Once we have the charter of fundamental rights, there are
two general principles 
1. proportionality that is codified but its also a general principle
2. the other is the principle of legitimate expectations: example, the expectation that you will behave in a
certain way, this is crucial when we have adminsitrative authores that often creates expectations, not
everything can be codified, some is practice written down. (these two are not in the charters, is codified in
the case law of ECJ but they are not in the charters). (also principle of equality).
They are all general principles. The general principles in any legal system have a gap-filling nature, it is what
you need to make that system work that has not been codified.

TREATIES
TEU and TFEU have the same legal value  Through the Treaties, MS have conferred part of their sovereign
rights to the EU  They are the source of and the limit to the EU powers. They are binding both upon MS and
individuals (see lecture on direct effect)

CHARTER
Article 6 TEU
1. The Union recognizes* the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same
legal value as the Treaties.
[…]
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.
*they are not rights conferred by the EU, they already exist.

This recognition was before and was left there because:

a) taking it away would have sent a strange signal
B) If we have rights that did not made it to the charter you still have the principle.

General principle
 may be used to challege the EU.
They have been elaborated by the Court of Justice in its case law  Also based on Treaty provisions (e.g. principle
of equality). Some of them have been then codified in the Treaties/Charter
They:
• Ensure internal coherence of the legal system
• Act as interpretative tools
• Function as criteria for judicial review (e.g. fundamental rights, legitimate expectations)
They are primary sources, but they sit below the TEU and TFEU and ECFR and above legislative acts

SECONDARY SOURCES
They primary sourced determine what can be done at the EU level.
There is a difference among Legislative, delegated and implementing acts: this distinction is found in the TFEU 
Article 289 TFEU Legislative acts
3. Legal acts adopted by legislative procedure shall constitute legislative acts.
Article 290 TFEU Delegated acts
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.
Article 291 TFEU Implementing acts

26
2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer
implementing powers on the Commission

The commission has to be kept between the boundaries set.

HOW DOES EU ACT?

We know that there is a hierarchy, but how does the EU act?
Different legal instruments  Art 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.  you adopt it, once it enters into forces applies the same for all the 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.  directive are yes a legal instruments but
the ms will need to do something
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding
only on them.  you can have decisions that apply erga omnes, and very often that applies to the person that is
identified by the decision, as the decision dealing with a fine (like microsoft)
Recommendations and opinions shall have no binding force”.

Regulations
They are mandatory in their entirety. When a regulation is adopted it becomes directly applicable in the MSs. It
becomes law for the 27 members. It is a legislative instrument that needs to be of general applications.

In Variola about chemicals (Case 34/73) the Italian authorities transported the regulation into the italian legal
system . The ECJ said that the regulation is directly applicable and NOT transported. because individuals may think
it is national law  it is very important NOT to hide the EU law nature of rule behind a national law and that’s
because of the principle of supremacy. EU applies even to legislation enacted after the EU law. If it were national
law, you always need to use the latest one. If you have a prohibition in a regulation, even if the national legislation
removes the prohibitions after the regulation itself, the regulation still applies  no transportation.
But this does not mean that regulation are always complete. There Might be a need ‘execution’ à i.e. MS might
need to take action to give effect to Regulation.

DIRECTIVES
The directives are binding as to the result to be achieved but leave discretion to MSs as to form and method. They
are less intrusive than regulations, EU legislations tell you the aim to be achieved but leaves more discretion for
MSs on how to achieve it.
Example: Say we meet at piazza sraffa at 6pm, you need to be there but it's up to you how you get there, if you go
by bike, if you come from Velodromo etc…
On the other hand say that we have to meet in front of piazza sraffa at 5pm, you need to at Velodromo at 4pm then
you have to leave at 6 minutes to 5 and you need to walk to sraffa. I'm detailing all you need to do, there is no
discretion. A regulation is an act that is legally complete. Examples.
We are 27 very different MSs, constitutionally, for climate and socially speaking, so directives should be the
preferred way of legislating following the principle of subsidiarity. I tell you the aim but MSs have a duty of
implementing it, also the EU leaves the enforcement to MSs.

Naturally, because it leaves discretion it Needs implementation (transposition in national law) by given date, the
directive needs to be transposed into national law. I will have a deadline for implementation.
What happens if:

27
1. We have a directive that has not been implemented, especially if the directive establish a right. Esempio: Failure
to implement within deadline is an automatic “sufficiently serious breach of EU law”, the company can also sue the
state.
2. What is the liability of the mss for not implementing  Francovich liability (see lectures on MS liability).

Directives normally are Addressed to one or more MSs, but by treaty they can be addressed to one MS. In theory
(but very complicated) directives might have Direct Effect, there was a debate about it, we could have directives
containing rights, and what happens to those rights if the directive is not implemented? Only the ECJ can declare
EU law invalid. So direct effect but only in vertical situations.

DECISIONS
They are binding in their entirety on addressee. It can be Addressed to one or more MSs or individuals (e.g. fine in
competition law is a Commission’s decision). It Can also be of general application
NB Recommendations and Opinions  not legally binding (e.g. EP Recommendations, Commission’s Opinions.
When we have judicial review proceeding, only legally binding acts can be challenges.

Regulations are (one or more options)

A) Binding
B) Non-binding
C) Directly applicable
D) Not directly applicable

Directives are
A) Entirely binding
B) Binding as to the result to be achieved
C) Non-binding

The principle of subsidiarity requires that where possible the EU legislature should act through:
A) Directives
B) Regulations
C) Recommendations

Ordinary legislative procedure.

Commission initiates, proposes the legislation (usually monopoly) and Council and EP decide (legislate).
The commission empowers the council and EP to amend it, there is an external limit of what they can do.
Commission also has power to withdraw proposal when it feels that amendments distort proposal (C-409/13).  if
they do too much, if what ends up to be the proposal is too far away from what the commission wanted, that the
commission withdraws it.
There is also Citizen’s initiative  1 million citiz from at least 1/4 MSs can invite Commission to submit
proposal. Commission has duty to respond but no duty to take action.

There is a costructive dialogue between EP and Council as Both have to agree to final text. Normal voting is now
QMV.
The commission sends the proposal to the Ep and council (and NP), the Ep adopts positions (emendaments etc…)
and sends it to the council, if the council approves the EP position then the act is approved, if the council does not
agree, it adopts its own position and sends it back to the EP.

If Council does not agree at 1st Reading  Position to EP:

28
 a. EP Approves or silent for 3 months  Act approved,  If there is not (expressily) approve or disapprove,
the act is approved. Silenzio assenso.
b. EP rejects by majority  Act is NOT adopted
c. EP Proposes (by maj) amendments and sends to EC and Council  Commission and Council deliver
opinion on amendments  There are amendements and a costructive dialogue.  Commission (can
withdraw) and Council deliver opinion on EP amendments:
1. Council agrees within three months  act adopted
2. Council does not agree  Conciliation Cttee  convened within 6 weeks to decide on joint text 28
reps of Council + EP + 1 Commission. (they sit all together, not so democratic, every meeting has to be
public but this is not). Trialogue

In the Ordinary legislative procedure the  Council submits legislative proposals to the Parliament
A) True 
B) False  it is the commission

Once the proposed measure is adopted by the Parliament, the measure is legally binding
A) True
B) False

TO SUM UP
EU  complex institutional balance aimed at ensuring representation of different interests (effectiveness?)
EU  Complex constitutional structure/principles which guide EU’s action  so this idea is summerized with the
idea of conferral, the power originally is from the mss. the eu can only have the power that the mss have given to it.

Principle of conferral  choice of legal basis of paramount importance to ensure legality (and institutional
balance). Subsidiarity and proportionality determine if and how the EU should act. Different legal instruments
leave different levels of discretion to MSs
Organized Legislative Procedure is aimed at ensuring effective participation of all institutional actors

28 September 2021

The effect of the EU law

We remind ourselves of Van Gend and Costa which we did at the beginning of the course. Then we look at direct
effect and remember direct effect is the principle whereby you can invoke EU laws in front of a national court, and
so you can get the rights that are granted at EU level and at national level. We will see that direct effect varies
according to the instrument you're considering.

We then considered the other two constitutional principles:

1. Indirect effect which simply the duty of consistent interpretation which is the same in the Italian
constitutional system if you have a provision that can be interpreted in a way that complies with obligations
you have to interpretate that way.
2. State liability: damages for breaches of EU law by the state
We have these two key principles Van Gend and Costa that are the main constitutional principles. Normally it is for
national constitutional law to decide what value treaty provisions have in the domestic legal system, in our case it is
the Court of Justice interpreting the treaty that has decided what is the value of the EU law in all the domestic
systems.

29
Now in Van Gend the court told us that this was so because the EEC (now EU) was and is a new legal order of
international law and for this reason individuals could rely on the provisions (in that case on the treaty) in front of
the national courts and this is called direct effect.
In Costa the court also said that inevitably to a certain extent, EU law would take precedence over any conflicting
provision of national law (the Italian provisions at stake had been adopted after the treaty).
And so one of the of the questions was: does the principle according to which the legislation was adopted after,
take precedence over the legislation adopted before?
(Ripasso)

Looking at Van Gend and Costa in detail what the court said is that the New legal order of international law has as
a subject not only the member states, which would be the norm in international law, but also the nationals that then
will become the European citizens.
The court says these rights arise not only where they are expressly granted by the treaty, but also by reasons of
obligations which the treaty imposes in a clearly defined way upon individuals, member States and institutions.
So, obligations can be actioned, and they are clearly defined. But why would we need this clearly defined? It’s
because otherwise you wouldn’t be able to ascertain the right confirmed by the legal provisions.

So, the court then continues in deciding that article 30 was directly effective by saying article 30 contains a clear
and unconditional tradition which is not a positive but a negative obligation, which is not qualified. The nature of
this provision adapts it to produce direct effects in the legal relationship between member States and their subject.
So, what does the court tell you here? Article 30 (during the transitional period member states cannot raise the
duties on imports from other community countries) was directed at the member states but the court says that is clear
what the member states must not do: they must not engage in this action.

The provision is sufficiently clear to be able to understand to what the member state must and must not do, and for
these reasons of the court, the individual can rely on it.
This idea of the negative obligation is different from the positive one because of the discretion.
It’s unconditional because a negative obligation means that the member state does not have to engage in a positive
action.

To repeat:

- Direct effect is the ability of a provision of EU law to be relied upon (invoked) directly in front of a
national court, without the need of transposition into national law.
Why does the EU need direct effect? Because is the only way to ensure the effective application of EU
rights, otherwise it would be easy for the member state to ignore it
(Italy tried to do that).
We said that one of the rights confirmed by the treaties is the free movement of workers which is not to be
discriminated on grounds of nationality (I must treat a French worker the same way of an Italian worker).
When in the 70s there was the recession Italy tried to claim that any employment in the public sector (that
was immense) was not covered by the treaties. If we didn’t have direct effect of those treaty provisions the
70% of the labour market would not have been complying with the rules that Italy had decided. If we didn’t
have direct effect EU rights would vary a lot between countries. And we need also to allow national courts
to enforce EU law without any national transposition act.

Costa v Enel and supremacy ECJ’s view

We said when we did the lecture of Van Gend that this only works because the court, as soon as the question was
raised, came out with the absolute principle of supremacy. If there’s EU law and national law and they cannot be
reconciled national law goes and you apply only the EU law. This is an absolute principle with immense magnitude
because in Simmenthal case (106/77) the court goes much beyond because in this case you are not only disapplying
national law but also national constitution. So, the court says that EU law always takes precedence. This is because

30
the system cannot work unless you have the supremacy of the EU law. If this would not be the case, you would
have 27 different interpretations.

Supremacy (ECJ’s view)

Supremacy EU law takes precedence over conflicting national law, of whatever rank and whether adopted before or
after the entry into force of EU law.
Why does the EU need supremacy? We need to ensure uniformity and otherwise the EU would simply not be
effective. It wouldn't work because even when the member state is not misbehaving, the potential for the legislature
to put a norm in a piece of legislation that conflicts with another EU normal would be immense.
These are the two constitutional principles and for us they go together. Having direct effect without having
supremacy wouldn't make sense and supremacy without direct effect would be nothing, because if you cannot go in
front of a national quarter to action your right your right is worth 0.

Direct effect key concepts/1

Having direct effect means we can go in front of the national court reactivating not only national quarter, but also
national authorities.
We must understand that in any legal system the different types of rules might have a different legal effect.
In our case the different legal effect might depend on the legal source, so where is this norm contained: treaty,
charter, regulation, decision and directive and the characteristics of the rule that it must be capable of granting
rights to individuals.

An example: I need to be able to read the rule and to understand which is the right that is granted. This must be
phrased in a way that your right is clear and unconditional.

Direct effect: key concepts/2

It is not always possible for an individual to invoke direct effect  it depends on the situation in which the EU
norm is invoked
Key terminology
- Vertical DE= ability to rely on EU law against the State
- Horizontal DE = ability to rely on EU law against a private party
NB direct effect is different from effect (see later duty of consistent interpretation + Francovich
damages)

Direct effect – Conditions – characteristics of the rule

Type of the rule – to have DE a provision must be:
- Intended to grant a right (without a right you have nothing to action)
- It must be clear  not ambiguous/obscure
- It must be unconditional  no conditions attached
- it must be sufficiently precise  to sustain a right

Basically, this means that when you look at the provision, you can understand what your right is.
We said that in van Gend the court said there is a clear obligation upon this data to refrain from doing something,
so the obvious counterbalance to this is that an individual can enforce that right against the state that is doing
something it shouldn't be doing.

Case Defrenne and HDE Treaty provision

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Defrenne was a hostess/ flight attendant. It is a fake case made by an academic who wanted to prove his point: the
treaty provisions could have direct effect and the treaty provisions in relation to equal pay between men and
women could have direct effect (it could have direct effect against a private party).
I need to find a company that is systematically paying women less than men. Hostess’s or flight attendants were
paid less just because they were women.
Ms Defrenne brings a case (three but we study only one) and requests a preliminary ruling to the Court of Justice,
so she goes to the national quarter she says, “I have a right to be paid exactly as the men because this is what the
treaty says”.
She asks the national court to make a preliminary reference because this is a matter of interpretation of EU law and
the court that can interpretate the EU law is the European Court of justice

Article 157 TFEU provides that each member state shall ensure that the principle of equal pay for male and female
workers is applied.
The case was all focused on “each. Member state shall ensure…” because the treaty actually provides an obligation
vested upon the member states, plus if you look and interpretate correctly it says, “it shall ensure” (meaning in the
future it shall ensure).

Argument against direct effect

The case was in Belgium, but in any case, in front of the court of justice every member state can make their legal
argument.
- UK: “The obligation imposed on the Member states by article 119 doesn’t satisfy the criteria of clarity and
precision evolved by the court” (it says it shall in the future it doesn't say must)
UK argues that the use of the word principle indicates that is concerned with a concept of a very general
nature” so it’s not a right
Because it is a principle it needs to be implemented by the member states (implementing= is when you give
effect to EU law)
It is addressed to the member states not to individuals

The UK is adopting a very literal interpretation of the provision it says, “listen it's in the future so it means it is a
principle, it needs implementation by the member states, it's directed at the member states, it's clear that this
provision cannot have horizontal direct effect”.

Now what does the court say: “the word principal doesn't mean that this is not a right, it refers to the very
fundamental nature of this provision”. In time the court will say that the principle of equal pay and the principle of
non-discrimination on grounds of nationality are key principles inherent in this system.

In relation to this implementing norm the court says that this is a clear issue of direct discrimination: you are just
paying this woman less because she is a woman. There is nothing to implement, even if Belgium had given effect
to the legislation that would have had to be in the legislation because it tells you clearly it must not be
discriminated.

The fact that it addresses 2 member states does not actually mean that it ends waiting on the states, rather it might,
as in this case, confer rights on individuals.
So, this is what the court says, since article 119 which is now 157: “the prohibition on discrimination between men
and women applies not only to the action of public authorities but also extends to all agreements which are
intended to regulate paid labour collectively as well as to contracts between individuals”

The reply to the first question must therefore be that the principle full of equal pay contained in article 119 may be
relied upon before the national courts and that this courts have a duty to ensure the protection of the rights, which
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this provision vests in individuals as well as in cases in which men and women receive equal pay for equal work,
which is carried out in the same establishment or service whether private or public.

The court is saying that being clear provision, this applies even to horizontal situations even though it is addressed
to the member states
So, why do we show you the arguments of the parties? Because you must understand the difference in the
interpretation: both were closable. The UK adopted a very literal interpretation of the treaty. The court of justice
adopts what we refer to as the teleological interpretation (means that you look at what the result of the provision
wants to achieve and then we will interpret the norm to achieve that end) and here this is what the court is doing.
So, it’s clear what this provision wants to achieve: equal pay for men and women and so it applies to everyone.

The other thing that you can see from this quote is that the court is directly imposing a duty on private companies.
It is fundamental for the court to ensure this link between community law and the national sphere. So, the court of
justice is saying to the national court:” if there is a right in EU law it is your duty to apply the treaty because if they
don't apply EU law, that's the end.
This is what's going on in Poland: the government is trying to diminish the force of EU law by preventing its own
national courts to send a preliminary review.

what the court is saying:

1. To adopt the theological interpretation. that’s the way EU law should be interpreted.
2. Secondly it tells you that this is a clear provision under authorities capable of granting the right.
3. Thirdly it is imposing a duty on the national court to cooperate. If there is a right, the national court must
recognise, that it must give effect to this right.

So, we've seen that the treaty can have direct effect. But this direct effect might be vertical or horizontal depending
on the provision at stake.
So, for instance the free movement of workers: the right not to be discriminated against on grounds of nationalities
is also horizontally applicable. But the free movement of goods is only vertically applicable, so certain provisions
will be horizontally directly effective and certain only vertically, depending on the Commission.

Regulations and decision

Regulations are straight forward because they are the instruments in EU law. They probably were intended in the
draft of the treaty because of the direct effect.
Remember what the treaty says about the regulation: they are directly applicable in the national legal order.

We have almost no litigation on this specific point because it is what they're supposed to do. They have legislations
that are adopted at EU level, and they are directly applicable in the member states.
Remember whatever the provision you always must check that: 1) it grants a right 2) it is precise and clear 3) it is
unconditioned

So, if the conditions for direct effect are satisfied, they might have both vertical and horizontal direct effect.
Decisions are instruments that are binding on the addressee because they can be addressed at member states to
accompany and so they have direct effect if the conditions are satisfied.

Directives  instruments that provide for an aim to be achieved but leave the member states discretion as to how to
achieve that. Those directives need to be implemented by the member states so that you adopt your regulation

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depending on what's needed, and you transpose the directive from the EU law dimension into the national
dimension through, for instance, a piece of legislation.

Should directives have direct effect?

Directives  binding as to result to be achieved leaves choice of form and method  discretion of MS
Directive must be implemented by stated deadlines
If the directive is properly implemented, the claimant relies on national law
But what happens If the directive is not implemented in national law? (Mis-implementation of directives)
It’s a difficult situation because they are different instruments.

Van Duyn and direct effect of Directives

this was in the 70s. The UK was very suspicious about Scientology and what happened is that miss Van Duyn was
a Dutch national and she was going to the UK to work for scientology as a secretary.
When she was at the border, they told her to go back to the Netherlands because they did not like Scientology, and
they did not want her to work for that institution.
Miss Van Duyn said that she had a treaty right granted directly that says that she could work in any of the member
states. The UK said that they did not care because it justifies on ground of public policy: they did not like
scientology and so they justified the restriction of the right to move.
Miss Van Duyn wanted to rely on a directive which detailed when member state could invoke public policy which
stated that member states could invoke public policy only regarding firstly the personal conduct of the involved
subject.
Her argument was not that the UK was excluding her for her behaviour but because they were fighting scientology
so this was no personal conduct and so they had no right to do so.
The court had to decide whether an individual can rely on a directive which is not implemented by the member
state.
Argumentation of the UK

Since article 189 of the TFEU distinguished between the effects ascribed to regulations, directives and decisions, it
must therefore be presumed that the Council, in issuing a directive rather than making a regulation, must have
intended that the directive should have an effect other than that of a regulation and accordingly that the former
should not be directly applicable.
So, what the UK is telling us, is that we have different legal instruments regulating the treaty, but what about
directives? The treaty doesn’t say anything about that topic.
If you have two different legal instruments it is because you want them to have different legal effects, otherwise
you take away the freedom of choice. So, if the council has adopted a directive it’s exactly because they didn’t
want that to be directly applicable.

The Court did not agree with the UK and stated

12 (…) “If, however, by virtue of the provisions of article 189 [288 TFEU] regulations are directly applicable and,
consequently, may by their very nature have direct effects, it does not follow from this, that other categories of acts
mentioned in that article can never have similar effects

“…It would be incompatible with the binding effect attributed to a directive by article 189 [288 TFEU] to exclude,
in principle, the possibility that the obligation which it imposes may be invoked by those concerned.
In particular, where the Community authorities have, by directive, imposed on Member States the obligation to
pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were
prevented from relying on it before their national courts and if the latter were prevented from taking it into
consideration as an element of Community law.”

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“…Article 177 [267 TFEU], which empowers national courts to refer to the court questions concerning the validity
and interpretation of all acts of the community institutions, without distinction, implies furthermore that these acts
may be invoked by individuals in the national courts. (We saw this reasoning in Van Gend)
It is necessary to examine, in every case, whether the natural, general scheme and wording of the provision in
question are capable of having direct effects on the relations between member states and individuals”.”
Characteristics of the rule, the court here is maximizing the utility of the treaty and the power of the EU law. So,
they’re saying that if something is not provided expressly by the treaty doesn’t mean that is excluded.
So, directives even though they are different legal instrument that doesn’t mean that they are not capable of having
direct effect. This applies only in vertical situations

Questions
• On what legal grounds is the UK opposing the DE of Directive 64/221?
• What arguments did the Court use to assert DE of Directives?
• Are you persuaded by the Court’s reasoning?
• What are, in your opinion, the pros and cons of DE for Directives?

29 September 2021

Questions:
- On what legal grounds is the UK opposing the DE of Directive 64/221?
The UK relied on the textual argument. What is the point of having 2 different instruments if you actually
give it the same effect? They also argued that is clear that regulations are directly applicable therefore they
must be directly effective. Directives need implementation, so otherwise those instruments are the same,
and we will see that also there is a big argument about the discretion of the member states.
- What arguments did the Court use to assert the DE of Directives?
We talked about an argument that the court had already made in another very important ruling.
Teleological interpretation is the interpretation used by the Court. It looks at the treaties to decide what is
what. What else? (Something that the Court had already said also in Van Gend) Preliminary ruling
procedure is important, in fact it wouldn’t have much sense if the national court could actually not apply
what the ECJ said and the ECJ makes a similar argument in relation to Van Duyn.
- Are you persuaded by court’s reasoning?
- What are, in your opinion, the pros and cons of DE for directives?

Today we will see what problems will arise with giving directives direct effect.

The court has said (…) “If, however, by virtue of the provisions of article 189 [288 TFEU] regulations are
directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that
other categories of acts mentioned in that article can never have similar effects”
“…It would be incompatible with the binding effect attributed to a directive by article 189 [288 TFEU] to exclude,
in principle, the possibility that the obligation which it imposes may be invoked by those concerned.” “In
particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue
a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented
from relying on it before their national courts and if the latter were prevented from taking it into consideration as an
element of Community law.”

Again, a teleological interpretation, what would be the point of having directives, which are binding on the
member states. The court is saying “if they are binding on the MS, but the individuals cannot do anything, then
there would be hardly any point.”
Again, the useful effect maximizes always the usefulness of EU law in the national sphere. And remember that it
maximizes compliances, it makes sure that even if you have member states do not implement at least some rights
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can go from that sphere to down. It is also an incentive for member states to implement because they know that if
they don’t implement, then that directive might have a direct effect anyway.
And it is better for the member states to implement their own legislation because then they can exercise their full
discretion as well as provide legal certainty.

And then we go to the other key-constitutional argument that the court has developed in the first 10 years of its
own constitutional case law. What is the point of the article 177 (now 234), what’s the point of the national court
being able to ask us the interpretation of the EU law if actually they cannot do anything with it?

“Article 177, which empowers national courts to refer to the court questions concerning the validity and
interpretation of all acts of the community institutions, without distinction, implies furthermore that these acts
may be invoked by individuals in the national courts. It is necessary to examine, in every case, whether the
nature, general scheme and wording of the provision in question are capable of having direct effects on the
relations between member states and individuals .”

We will have to look and consider very closely the entire debate about the direct effect of directives. It’s very
important in EU Law , because it’s what we do with our law.
Conditions for a directive to be directly effective:
First of all remember that the directives are binding as to their aims, but leave the member states the discretion as to
the means.
The way it works in practice is that we have a directive and then the directive in the last provision says “member
states shall implement this directive by…” and it says a date. The date is usually 2 years, but sometimes is 5 years
(for instance, when you are changing rules for economic operators, then you have the time to adapt). Usually it
would be something in between 2 and 5 years and it depends on the complexity of what the directive is doing.

1. Time limit must have expired (obligations for MS and rights only arise after time limit has expired), and even
before MS must refrain from undermining end result of Directive.
The Directive cannot have any effects until that time for implementation has expired because it is for the
member states to adapt its legislation to the aims of the directive.
There’s a time limit, the obligation, or the failure of the MS to comply, only starts after the time limit has
passed. So the directive only displays effects after the time limit has passed.
There is a small exemption: the member states pending the implementation of a directive cannot change things
as to frustrate the aim of the directive.
Example : If we have a non-discrimination directive that expires on the 31/12/2022 and we have a government
that has a legislation which is okay, but because the government is anti-LGBT, it can think that it has 1 and a
half year to discriminate really highly this group, and it can adopt a legislation that totally frustrate the aim of
the directive. For example, the government can say: people of a certain orientation do not have access to
cinemas. By doing this, the state is frustrating what the aim of the directive is. They cannot do that, they cannot
adopt legislation pending implementation to frustrate the directive.
But, other than that, the obligation imposed by the directive only materialise at the time of the expiry of the
time limit.

2. Member states has not transposed or not transposed correctly.

The member states must have either not transposed, not adopted the legislation, or have done it incorrectly.
Normally, if things go well, you don’t need direct effect of directives, because you have the legislation in the
middle and so you can simply rely on it.
The relevance of direct effect of directives is only in cases in which the member states have not transposed, so
have probably done nothing, or in implementing the directive they have made a mistake (there is something
that is not coherent with the directive)

3. Provision contained in the directive must be sufficiently clear, precise and unconditional (need to be able to
ascertain right)  NOT all provisions can be directly effective.

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4. If State needs to take positive action (do something active) the directive cannot have direct effect (see e.g.
Francovich)

5. Vertical situations: Directives can only be invoked against the State or its emanation.

When you have a directive, to determine whether that directive can display any effect, you have to ask yourself,
first, when it expires. If the time limit has not expired, that’s the end of it, you can use it as an aid to interpretation,
but that’s it, the directive is not displaying any effect.
Then you ask yourself: is the directive intended to grant rights? So, our typical example is the non-discrimination
directive, which clearly wants to grant a right not to be discriminated. The employment directives, maximum
working hours directives, those are clearly intended to grant a right.
Employees should not work more than 40 hours a week, that’s a clearly directive intended to grant rights.
Then you have to look at the provision that you want to use. Is this right directly effective? Is the provision
sufficiently clear, precise, and unconditional for this to be actioned in front of the national court?
When you ask yourself if the state can exercise discretion, meaning it needs to take action, than that provision is
not sufficiently cearly, precise and unconditional for it to have direct effects.

Example of this: the case of Francovich. In that case there was a directive which provided that MS should create a
fund, a pot of money, so that if the employer went bust, was no longer solvent, than the employees could get their
salaries from this pot of money. Because if you have a big or small employer that go bankrupt, you have problem
because lots of people would have not received their salaries, and so the economic problems would become much
greater.
So this directive said that MS need to create a pot of money (to which all the business is contributed) and if an
employer goes bust, you can guarantee that the employees can get their money.
This directive was intended to grant a right, the right to salary, but crucially the states had to create this pot of
money. Even though the directive was intended to grant rights, it could not be directly effective, because there was
not a pot of money from which to draw the money. And the reason why it cannot be directly effective is that in the
creation of that pot of money the state would be exercising lots of different choices.
That is an example of a case in which you have a directive intended to grant rights, but no direct effect. If you don’t
create that pot of money, there is no pot of money which can pay those salaries, so you need an active choice by the
state.

If the member states has discretion or has to do something, then there is no direct effect.

If on the other hand, we can say yes to “ Does the time limit has expired? Does it intend to grant rights?” than we
would have a direct effect.
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Question: how can you define when a provision is directly effective?
Because by nature if we have a directive the state needs to do something.

Another example: in the case of Von Colson, the directive provided non-discrimination on grounds of sex.
Facts: Miss Von Corlson is not selected for a job in prison, because of her gender. The directive also provided that
in case of sex discrimination the member state could decide which remedy the member state wanted to impose for
the party who had been discriminated. Clearly, in case of employment, you have systems whereby the employee
must be reinstated in the workplace, others, like the Anglo-Saxon one, are much more on paid compensation.
The state had to exercise a discretion, they needed to decide whether the remedy for a person who had been
discriminated against, would be reinstatement in the workplace, or compensation (and in this case also, how much
the compensation is going to be).
The state chose compensation, but they gave her back only the compensation of her train-journey.
When the case arrived at the court of justice, it was clear that there was one directly effective right (which was non-
discrimination on ground of sex), but actually this provision could not be actioned because the member states had
not exercised their discretion. They had discretion but they didn’t exercise it. Because there the MS has to choose
out of 2 options, if they have a choice, as National Court you cannot second guess the choice that would have been
made by the state if they are implemented.
In the case in which you have discretion, the provision cannot be directly effective, because the MS has not added
the choice, so typically a directive would have some provisions which are directly effective and some provisions
that cannot be directly effective, because that’s when the state would be making the decisions at implementation
level. This is very important because directives are really for that, so the fact that the remedies have been left to be
decided by national law, because remedies are, broadly speaking, a matter of national law, so the directive would
not define what the remedy is.

Question: excuse me in the case of the salaries, if the provision stated where the MS had to get the money, in that
case it would have had direct effect?
Yes, and if the directive had been simply stated that the MS has to pay the salaries of the employees, and then
maybe get back the money if there is any left over after the bankruptcy, that would have had a direct effect (the
provision would have been clear, unconditional) and the state had not to do anything.

Vertical and Horizontal DE of Directives

A directive can only be relied upon/against the member states (vertically).
Distinction between ‘horizontal’ (i.e. between individuals) and vertical (against MS) direct effect  only latter
allowed, because directives impose duties upon MSs; 

The distinction is an interpretative choice by the ECJ: if you read article 288 “directives are binding on MS”, and
so the court says that they are binding only upon MS, and so we cannot make it binding upon individuals.
Because, if we have an horizontal situation, if we give horizontal direct effect to the directive, what happens is that
one of the parties will be bound by the directive, but the court says “careful, Art. 288 only mentions that the
directives are binding on MS” and for this reason they cannot be used in horizontal cases.
If you think about it, it makes a bit of sense, because otherwise we would also have a problem with legal certainty.

Example:
We have a directive that is aimed at ensuring accessibility for people who are physically impeded. It is a right.
Imagine that we have a business, (a cinema, a theatre), that happens to be a decent business and It agree with this
principle.
The problem is that this is a directive and so the business has to wait until the MS makes that decision.

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If you were to impose on the business a duty to comply with the directive - saying in this case the directive expires
on the 31st of December - now you're imposing on a the business a duty to comply with the directive, but also duty
to comply with whatever the member state decides.
Now, say that the business needs to put the ramps for wheelchair use, then the business will thinks “OK it takes me
a month to build those properly”, so it starts building them on the 30th of November.
But if on the 15th of December the state legislates, and then they pass to have different material use, different
gradient, all the technical bits.
It becomes difficult for businesses because in any event, if the state adopt the legislation correctly, exercising those
choices, then the business is obliged to comply with the national legislation, and so it would put -that is the
rationale behind it – businesses and individuals in a very precarious situation.
This was the rationale before.

Ratti case ( estoppel argument):

In Ratti, the Court discuss an Italian case.
Italy had not implemented the directive, and yet the public prosecutor - it was about environmental damage with
chemicals – tried to rely on the directive against Mr. Ratti.
Mr. Ratti said that Italy had not implemented the directive.
“A Member State which has not adopted the implementing measures required by the directive in the prescribed
periods may not rely, as against individuals, on its own failure to perform the obligations which the directive
entails”.

This is an horizontal situation (state vs. individual)

The court said Italy cannot do that. The Court stated that a member state which has not adopted implementing
measures may not rely against individuals on its own failure to implement, and perform the obligations which the
directed entails.

This was quite an extreme case in which the court says that a MS cannot rely on the directive against an individual,
but the principle was already there.
It gets clarified only in the case of Marshall.

Marshall & Vertical DE of Directive (152/84)

Discrimination based on sex concerning pension rights and dismissal
• Domestic legislation inconsistent with sex discrimination directive
• Mrs Marshall worked for a public hospital which is part of the NHS.
 Does the right not to be discriminated against, established in a Directive, have direct effect?

Marshall is one of those cases that leaves us a bit uncertain about what is happening.
Facts:
In Marshall we have a lady again, that was discriminated on grounds of sex, because the pension rights and the
pension age had different age limits.
The difference in treatment was incompatible with the directive.
The problem was about how to define the situation, because, if we remember the estoppel argument, there the
argument is very clear (MS cannot rely on its own failure to refuse to grant your right).
If you have a right not to be discriminated against and the reason why it is not the national law is MS’s fault, then
MS cannot rely on the fact that it's not national law, it has to grant that right.
But this time miss Marshall was working for a hospital, which was part of the National Health system, so the
problem was that this was an employment dispute, with a public hospital (but a hospital nonetheless).
The issue was if Miss Marshall could have relied on the directive against the hospital?
This was a British case.

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The United Kingdom said that this could have been a public hospital, but of course they couldn’t implement the
directive themselves, they didn't have regulatory powers, and so we cannot say that this directive would bind the
administration of the hospital.

The court disagreed. “48. … according to Article 189 of the EEC Treaty the binding nature of a directive, which
constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to
'each Member State to which it is addressed'. It follows that a directive may not of itself impose obligations on
an individual.
49. … it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as
against the State, he may do so regardless of the capacity in which the latter is acting, whether employer or
public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to
comply with community law”.

There is no fault of the hospital, this was about pension rights, so they had no way of implementing the directive, it
is simply not possible. It is an emanation of the state, and the hospital doesn’t have a regulatory power.
If the state does not implement the directive, it's very difficult for us to decide.
The aim of the court is clear, useful. The court is expanding as much as possible the possibility for individuals to
enjoy the rights conferred by community law.
And so they do this by saying that the state is not only the parliament, the government and the court, the state is
everything which has a public dimension.
And by doing so, they are making incentives to implementation because here they are saying that if the State
doesn’t not implement, all your public sphere, prisons, schools, hospital etc is going to be affected by the non -
implementation. It is a very powerful incentive to implement because otherwise State is getting in a very tricky
situation, and then State will have to pay damages because it didn’t do something it was legally bound to do so it
becomes economically very, more or less, unsustainable.

• Distinction between horizontal direct effect (dispute between individuals) and vertical direct effect (against
the State)  only the second is allowed, because directives impose obligations upon MS
• NB: Some Treaty provisions (e.g. art. 157 TFEU in Defrenne) are also addressed to the states  why are
they treated differently from Directives?
• NB: the notion of “State” is interpreted broadly, and includes a public hospital – even if the public
hospital has no power/responsibility to transpose directives

In the Marshall case, you find this very clear distinction between the private, (horizontal situation) in which direct
effect does not apply, and the vertical situation, in which it applies.

After Marshall, you see a very lively debate because people started to be a bit uncomfortable with this idea that it’s
possible to make responsible people or authorities just because they are part of this state.

On the other hand there is another very lively debate, another important one, because you are also creating
discrimination by doing this. Example : (back to our miss Marshall) Miss Spaventa working for a private clinic
would not have this sex equality right, and so what you are introducing is that you're giving many more rights to
employees in the public sector.
There is a lot of discussion about this, because on one hand some people are totally against the direct effect of
directives (that's the most conservative view), some other people say that if you have to give direct effect of
directives, then it has to be universal, because otherwise what you're creating is this artificial distinction between
private and public employees.

When there is this debate the Court relies on article 288, but someone of the scholarships said that this is a fake
reasoning because if we remember when we looked at the Defrenne case, that provision also was directed at the

40
member state (member states shall implement the principle of non-discrimination on grounds of pay for work of
equal value).
So there is a lot of pressing saying to the court that the distinction does not make sense, the distinction is in itself
discriminatory, and so it’s using European law to introduce an artificial distinction in situations that are absolutely
comparable, because what matters is the discrimination in employment, not whether you are in an employment
with a private or public.

The court makes this notion of state broader and broader. It tries to get into the definition of the state as much as
possible, and it clarifies that the state will include any emanation of it, so any public authority, regional authority,
local authority, the police, fiscal authority… and it ends up with the broader definition of emanation of the state in
Foster.

Foster (C-188/89)  British Gas Corporation  privatized entity with public functions
Foster signals the Court as its most creative in a way.
It was again a sex equality case, Miss Foster was an employee of British Gas, which actually had been privatized
during the Thatcher years, and it was now a privatised company.
The issue was whether she was in a vertical situation, in which case she would see her right not to be discriminated
against on grounds of sex recognised, or whether she was working with a private employer in which case the
situation would be horizontal, and she would have no rights.

The court basically finds that, since gas is an essential utility, so inevitably you have some public law duties, as
with all essential utilities, water, electricity, gas etc. It doesn't matter if they're privatised, you have some duties.
And so what the court found is that it gives this notion of the emanation of the state which is incredibly broad. The
Court said “It follows from the foregoing that 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 powers beyond those which result from the normal rules applicable in relations between
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.”

So, the Court is saying that actually the notion of emanation of the state is as broad as we can push it. So, for
example, Bocconi is an emanation of the state, because we have special powers and special duties. It can award
students with a degree that has a legal value. A professor cannot do that because is a private individual.

This notion of emanation of the state gets pushed to its other limits; this determines a lot of criticism, because we
have include the hospitals the police the regional authorities, but those are in a way paid by the state, they are
organically linked to the state.
But a privatized company actually does not have that anymore, because the entire point of privatising stuff is to
give some distance from the state.
Of course, we have to impose some public law duties, but they are no longer part of the state.
And so after Foster, there was quite some frontal attack on the court, with half of the scholarship saying “you have
to just decide that directives are always directly effective, because if you give such a broad notion of emanation of
the state, then just say they are always directly affected, and you get rid of the of the issue of discrimination”.
And then there were other scholars saying “the entire thing is stupid, directives are not intended to have that effect,
and they shouldn't have direct effect, and you should go back to the normal interpretation”.

41
This is how it tends. We have the state, it applies only to the state, and everything becomes part of the state.
Everything that can have even remote link.
Any professional order has specific public low powers, by nature. So everything gets pushed there, and that creates
a huge debate.

Example to see how this would work out in practice:

Fictitious Directive 2010/36 provides:

Article 1
Smoking shall be prohibited in all workplaces.
Article 2
Member States shall provide effective and proportionate sanctions for breach of the smoking ban. Employees who
complain about smoking are fully protected and cannot be dismissed or be made to resign.
Article 3
Employees who are unlawfully exposed to cigarette smoke in their workplace shall have a right to at least one
month salary by means of compensation.
 
Art.1
Would you say that art.1 is capable of having direct effect? Yes.
You know exactly what it entails: smoking must be prohibited.
It is clear enough, sufficiently precise, unconditional. There is no discretion here.

Art.2
Member States shall provide effective and proportionate sanctions for breach of the smoking ban.
Here the state has to do something. It is up to the state to provide the sanctions, and until the member state
exercises that choice of what are these sanctions, you cannot know what those assumptions would be.
So you could just say the member state could choose for instance between closing down the premises for a certain
amount of time, or could decide to impose a file?
It has different regulatory choices, so that bit of that provision is not directly effective, because it is not
unconditional.
What about “employees who complain about smoking are fully protected and cannot be dismissed”?
A provision on the same article, can contain bits that are not directly effective, and bits that are directly effective.
And actually you go and see at the substance.
If you look at “cannot be dismissed or made to resign”: it is clear sufficiently precise, clear and unconditional.
Because the directive itself is telling that they simply cannot be dismissed or made to resign.

42
Art.3
Employees who are unlawfully exposed to cigarette smoke in their workplace shall have a right to at least one
month salary by means of compensation.
Can you understand from this provision what is the right of the employee?
It's one month compensation minimum. Even though you could have an implementation of the member state that
goes above, it is in the nature of all these directives to allow the MS to be more protective.
You know what is the minimum that your employee needs to have.
The other thing that you need to ask yourself before you even start is the time limit.
It is a directive from 2010, we are in 2021 so we can presume the time limit might have expired.

Puritania, a fictitious EU Member State, introduces legislation prohibiting smoking in all workplaces employing
less than 20 employees. The smoking ban does not apply to larger workplaces and government buildings.

This is a case of misimplementation, this is important because then we know that we might have the ability to rely
directly on the directive because actually that legislation is rubbish and it doesn't make sense.

 
Pilip Porris is a cigarette manufacturer employing 2000 workers; it encourages employees to smoke whilst
working. Jane, who does not smoke, works for Pilip Porris; she suffers from asthma, and having been seriously ill,
complaints. Jane is told that she can either resign or learn to cope with the passive smoke.
 
Here we need to decide whether it is a horizontal or vertical situation. It is a horizontal situation, and remember
what the court said: the directive binds only the member states, or the emanation of the state, but not private.
Because of this, Jane remains without rights, because this is a private situation and even though what Philip Morris
is doing is against the directive, she cannot invoke it against a private party.

Vera works for the Puritanian Parliament where everyone smokes; when she falls pregnant and complains about
the smoke, she is fired. Vera then decides to sue the Parliament but her action is dismissed on the grounds that the
Puritanian legislation is clear in allowing smoking in Parliament buildings.
  Advise Jane and Vera as to their rights and remedies in Union Law.

It is a vertical situation. You cannot go more vertical than the Parliament. Because she is a vertical situation, then
you have to go and look which are the relevant tries that she could claim.
Relevant tries:
- Can she be fired? No. the second part of art.2 is clear, precise, and unconditional for her to be able to do
that.
- Concerning the fact that her action is dismissed, the National Court has to give effect to the directives in
situations in which is vertical.

30 September 2021

We looked at the problem question and how to define when a provision has direct effect. It must be sufficiently
clear precise and unconditional. Problem question: first article there is no discretion, art 2 first part MSs must do
something, second part there is no discretion. Art 3 is sufficiently clear, precise and unconditional. Is this a vertical
or horizontal situation? We looked at 2 situations (vertical/horizontal situation).
VERTICAL VS HORIZONTAL DIRECT EFFECT.
The distinction between vertical and horizontal direct effect has been criticized by advocate general and the
scholarship. Advocate general: he is a judge in the ECJ whose role is to advise the court on what measure should be
taken he writes an opinion, but the opinion is not binding on the court unless it is very influential. Especially
43
when you have very contested rulings, that is where you find the reasoning behind the ruling. So we are in this
situation in which we have a very broad emanation of the state. The distinction between vertical and horizontal
wants you to interpret the emanation of the state.
There is this Case FACCINI DORI. Faccini Dori was this student attending a PhD in Milan. You have this
person attending a language course and she wants to withdraw from the contract. There is a directive that gives you
the right to withdraw from the contract outside of the business sphere. However Italy has not implemented the
directive and the company she has signed the contract with is a private company. Advocate general Lenz goes and
analyses what she has done. What she was claiming was that the directive could have horizontal effect so that she
could withdraw from the contract without having to pay damages. Advocate general LENZ analyses this distinction
between horizontal and vertical direct effect he argues for the expansion of direct effect to encompass also
horizontal direct effect. The reason why he argues this is that, first of all, there is such a broad definition of
emanation of the state, so there is no clear cut distinction nor rational for having vertical direct effect. This is
probably the biggest problem. This distinction between VDE and HDE is so artificial, but it also gives random
results, because whether you will be protected by EU law or not, is decided on a very arbitrary situation whether
your counterpart is an emanation of the state or not. You may have 2 women doing the same exact job, but one is
protected by EU law just because her employer is an emanation of the state, while the other one works in the
private sector and therefore cannot be protected under EU law. This distinction really raises arbitrary
discrimination. Then the advocate general Lenz addresses the reasons of the scholarship saying that there is a
problem of legal certainty, and he argues that actually this is no longer true, because before the directives were not
published in the official journal of European community, but now they are published and therefore private parties
can go and look which obligation they need to face. He also deals with the argument that is constantly made by the
court directives are addressed to MSs, but the court is not so formal, as we have seen in Defrenne the directive
was addressed to MSs, but it becomes horizontally applicable with no problem, thanks to the interpretation of the
court. So this argument is not very credible because as we have already seen the court always uses a very broad and
teleological interpretation of EU law.
He argues for abolishing this artificial distinction and give full effect to directives in both vertical and horizontal
situation. But the court does not follow the argument of the advocate general and maintains the VDE and HDE.
This creates a huge problem of discrimination and the way the court tries to solve this problem is the most
unsatisfactory way possible.

GENERAL PRINCIPLES AND CHARTER- THE MANGOLD COMPLICATION

Remember what we said at the beginning: even though fundamental rights were not codified in the treaty, the ECJ
recognizes that fundamental rights are general principles of EU law. This is codified in 2000 in the charter of
fundamental rights (Nice charter) and it acquires legal effects in 2009 when the treaty of Lisbon enters into
force. The charter is an instrument that applies or is supposed to be applied primarily by European union
institutions (remember this was the problem the court wanted to solve with general principles; you cannot have
institutions with law making power if they are not bound to the same standards of protection of fundamental rights
as the MSs).
The court in this case law (and this gets codified in the charter) also applies fundamental rights to MSs when they
are implementing EU law. The idea is that when the MSs are giving effect to EU law, he is acting as an agent and
therefore has to respect constitutional principles. If I implement a directive, in doing so I have to respect the charter
of fundamental rights, which means that for example if I have a discretion In deciding the remedies that a person
might have I have to respect fundamental rights, as protected by the charter. And this is possible because I am
acting under the umbrella of EU law. We have this horizontal/ vertical distinction which is very problematic
because it creates discrimination.
MANGOLD CASE: we have 2 lawyers. Mr Mangold is a lawyer and he is dismissed on ground of his age. In the
meantime, in 2000 We had a framework discrimination directive and an employment directive. The employment
directive is one that prohibits discrimination also on the grounds of sexual orientation etc.. and age. Therefore,
discrimination on the grounds of age in the field of employment is prohibited. They are 2 lawyers, therefore we
have a horizontal situation, moreover the time for the implementation of the directive has not expired. So what does
the court say? The court finds that whereas the directive was not applicable/ relevant because the time limit has not
expired, there was another directive that meant that the situation fell within the scope of EU law. Now the charter
was not relevant here because we are in 2005. So what does the court say? The court say ok: you have general
principles, which are fundamental rights. And the court there is a general principle of non-discrimination on the

44
grounds of age. What the court says is that because you have a directive you are under the umbrella of EU law. And
whereas a directive cannot be applied in an horizontal situation, the general principles and some of the fundamental
rights can be applied in an horizontal situation.
So you have the general principles, the charter of fundamental rights. If the situation falls within the scope of EU
law by virtue of a directive, then it’s the general principle that can be applied to an horizontal situation. The reason
why the court is doing so is clear: it is to get rid of this discrimination introduced by virtue of interpretation of EU.
The court realises that there is something very problematic in keeping this distinction between VDE and HDE
when you are talking about a directive that protects certain rights. Because its own interpretation would artificially
distinguish between subjects that are an emanation of the state and those who are not. Example: I cannot be fired
from Bocconi if I’m gay because Bocconi is considered an emanation of the state, but if I were working in a café,
which is not an emanation of the state, so it’s considered as an individual, then I would not be protected and I could
be fired. And this is unacceptable as a matter of fundamental rights. So the court has 2 choices: either you give
HDE to directives, or you find another way. They found this other way: Whereas directive cannot be relied on
horizontal situation, if the directive provides for a right that is also contained in the charter which certainly contains
a right not to be discriminated against, then the situation falls within the scope of EU law by virtue of the directive
and the charter is applicable horizontally. So the end result of this is that the right or some of the rights can have
direct effect and the content of that right is actually determined by the provision in the directive.
This was made clear in the case of MAX PLANCK Max Planck are really important institutions for research in
Germany. The researcher was at the end of his contract, which was not going to be renewed and he claimed that he
should have a compensation for all the holidays he had not taken. We have directive 2003/88: it provides for the
right to paid annual leave, which means that all workers must have a guaranteed time off. If your employment is
terminated before you have taken advantage of this right that the directive entitles you, then the employer must
provide compensation for the leave you have not taken. When his contract was terminated, he asked for an
allowance in lieu of holidays. Max Planck said no because, referring to German law, they said: look the litigation is
between private parties and there is a clear right that is provided for by the directive, but the MS has not
implemented correctly that directive, therefore we have a problem. The court did exactly what they did in Mangold.
The court argued that the situation fell under the scope of EU law because there was a directive, and they also said
we have art 31 of the carter ‘every worker has the right to limitation of a maximum working hours, to daily and
weekly rest periods and to an annual period of paid leave’. This is not very defined as an article. There is room for
interpretation. So what does the court say? Ok I have this in the charter, therefore this right applies in virtue of the
directive, but to look at the content of this right, then we have to look at the directive. You need to have a directive
that contains the same right, that is giving effect to that right in the charter so to decide the broadness of the right.
Because you are under the umbrella of EU law you can invoke the charter but doing so is not enough because we
have to decide what this right means. So to decide it you need to go look what’s in the directive.
The directive provides for an individual right, but the same individual right is contained as well in the CFR (charter
of fundamental rights). You need both things. You have a horizontal situation (if you have vertical you can just rely
on the directive), since you have the directive, the situation falls within the scope of EU law, and you can apply the
charter even if it is an horizontal situation. The charter (not the directive!!) imposes obligation on a private party.
To decide the obligation, you go look at the directive that will tell you the content of the right. So if you have a
directive it doesn’t apply to horizontal situation, but if you fall within the scope of EU law by virtue of the
directive, then you can see if there is a right at charter level that might be relevant at your horizontal situation. If
the right is undefined, in order to decide the content of that right you have to look at the directive.
So when we think about direct effect of directives we need to think about the debate about it, so:
- Whether the vertical/horizontal limitation makes sense
- What are the problems of not having HDE

THE DUTY OF CONSISTENT INTERPRETATION (INDIRECT EFFECT)

When a directive is not directly effective because the provision is not sufficiently clear, precise and unconditional
or you are in a situation in which you cannot invoke the directive because the situation is horizontal, and there is no
charter that can help you, there is another tool that you can use and that is the duty of consistent interpretation
which is also referred to as the indirect effect of EU law. According to this principle the National court, in their
duty of applying EU law, must interpret national law in a way that is inconsistent with EU law. And this is
45
regardless the provision of EU law has direct effect or not. This is exactly the same duty every national court has in
relation to the constitution: you can never have an interpretation that is inconsistent with an higher source (like the
constitution). This is always the case ion every hierarchical legal system.
VAN COLSON case: this woman didn’t get the job because she was a woman and the compensation for that was
just? It was a vertical situation. In that case the right could not be directly effective because the directive left room
for discretion to the MSs as to how define the remedy. Germany has not implemented the directive or has
implemented it incorrectly. The problem with miss Van Colson was that? The national court asks the ECJ what do
we do? Certainly being repaid was not an effective remedy. So what does the court says? This is EU law which
always take precedence over national law and it must be given effect as much as you can. What you must do as a
court is to look at your legal system and see if you can find a way to interpret national law so to give effect to EU
law. In this specific case say that you are in miss’s Van Colson situation, and you also have another piece of
legislation that tells you the specific remedies for discrimination on the grounds of age. As a judge you need to do
whatever you can so to interpret national law insofar as possible to achieve what is required by union law. The
reason why there is this obligation is because of the duty imposed on national courts to give full effect to EU law.
This time the duty arises on the person of the judge. But the question is: how far does this duty go? What is the
extent to which the judge has to push in order to give effect to the right provided by EU law. The ECJ says you
have to go as far as possible to give full effect to EU law. This is regardless of the temporal relationship. You use
not only the legislation in question, you look at all legal system and see if there is something that gives effect to this
right. You can do this only if the time limit has passed, because the obligation only arises after the time limit has
expired. This duty of consisted interpretation always applies to every national court and there is no distinction
between vertical/horizontal situation. The right doesn’t necessarily need to have direct effect. The court recognises
2 limits:
1) The national courts are not obliged to provide a contra legem interpretation: it means that when you
interpret a legal text, there is an outer limit because you cannot go against the very wording of the
legislation. The national judge has to go insofar as possible, but they are not obliged to go against the
express wording of the legislation. the court says: you have to push, but then there is a limit, which is when
you would go against the very wording of the legislation.
2) There is a guarantee that arises from the connection between EU law and general principles of criminal
law. Two Italians criminal cases. These are general principles of interpretation, but they cannot be seen in,
so when you are looking at state against individual the state cannot rely on the principle of consistent
interpretation to aggravate criminal liability or to change the rules of the game and impose a sanction that
wasn’t there. In the Berlusconi case what happened was that the government changed some legislation in
relation to criminal liability in corporate fraud. This was by pure coincidence: there were proceedings
against Mr Berlusconi and there was a directive which provides that you need to have a certain penalty
ecc.. but because of the change in legislation, the proceedings against Mr Berlusconi were no longer
proceedings because there was a principle that is always the most linear penalty that applies, so if you
change the criminal law and you depenalize certain conducts, the pending criminal proceedings are no
longer proceedings??. The prosecutor was not happy about this because he worked hard to get there and
then the entire case collapsed. So he brought a preliminary reference saying: we have a directive here, how
can we rely on the directive to change this interpretation. The court said: Absolutely not, you cannot use
principle of EU to go and mess a very important legal principles and you cannot use ‘tricks’ to impose or
aggravate criminal liability.  you cannot use the indirect effect of EU law to aggravate criminal liability.
Basically when you think about EU law and national coirt, the duty of the national court is to do always whatever it
take to make sure that if possible, you apply EU law. And you can do this through different tools:
- Direct effect
- Indirect effect
- charter
To sum up:
Charter and general principles potentially can have both VDE and HDE insofar the situation falls within the scope
of EU law.
Regulations and decisions can potentially have both VDE and HDE, but you always have to look at the provisions
Directive have direct effect only against the state or emanations of the state ( broad interpretation); they can also
have indirect effect. You have direct effect of the directive in horizontal situation only if there is a charter.

46
What happens if you have a directive that is intended to grant a right and it is either not directly effective or I am in
horizontal situation and there is no charter?
FRANCOVICH case and STATE LIABILITY FOR BREACH OF EU LAW
It was an Italian case, where Italy had not implemented a directive that provided that MSs should constitute a fund
to protect employees in the case of insolvency of the employer. Italy was supposed to create a fund that would
provide the unpaid wages of the employees in case of insolvency. Mr Francovich and lots of other claimants find
themselves in the situation in which where their employer goes bankrupt and they don’t have their wages they
cannot have their wages because Italy has not implemented that directive. This directive was clearly intended to
grant a right: compensation of employees in case of insolvency of the employer. But since this situation was
horizontal, the right could not be directly effective, because Italy had not implemented the directive. The right was
not unconditional for the MSs; and as a result, Francovich and all the other employees were left empty handed. The
national court makes a preliminary reference to the ECJ because this is a very unfair situation. It is also clear that
the reason why they cannot have compensation is because Italy failed its duty to implement a directive, that’s the
only reason. So the question is what do we do? The main claim is that this is Italy’s fault, therefore Italy must pay
the compensation (Italian government). Now consider that there is no principle of state liability here, but there is
the principle of non-contractual liability of EU institution. So how does the court reason? It says ‘the full
effectiveness of community rules would be impaired and the protection of the rights which they grant would be
weakened if individuals were unable to obtain redress when their rights are infringed by a breach of community
law for which member state can be held responsible’. Again, it says full effectiveness, teleological interpretation,
maximum interpretation of EU law. The only reason why they didn’t get their wages was because Italy was in
breach of the obligation which art 288 imposes, which is to implement directives within the time limit. The court
continues: ‘the possibility of obtaining redress from the MS is particularly indispensable where, as in this case, the
full effectiveness of Community rules is subject to prior action on the part pf the state and where, consequently, in
the absence of such action, individual cannot enforce before the national courts the rights conferred upon them by
Community law’. First of all the court is establishing a general principle and then it tells you where the individual
have a right and the only reason they could not enjoy this right is because the MS has not implemented the
directive, then they need to have access to regress. To justify the fact that even though this principle was not in the
treaty it could be drawn from the system as a whole, the court relies on the fact that this compensation is inherent in
EU law and that compensation should be given on the grounds of EU law. Now the court has to decide when you
can get damages and the amount of damages. So what are the conditions for state liability?
1) The result prescribed by the directive should entail the grant of rights to individuals
2) It should be possible to identify the content of those rights on the basis of the provision of the directive
3) Existence of causal link between the breach of the state’s obligation and the loss of damage suffered by the
injured parties.
You need to understand what the person would have got if the directive was implemented. And lastly a causal
relationship is needed.

STATE LIABILITY: 3 conditions:

- Provisions intended to confer rights which can be ascertained
- Breach of EU law sufficiently serious (brasserie; Factortame Spain joined the EU. Once you are in EU
your fishermen can fish whatever they want because it’s free movement. The UK didn’t like that at all,
because of the geographic proximity to UK that’s where the Spanish fishermen would go. Because of that
miss Thatcher decided to impose discrimination on grounds of nationality she prevented the fishing
vessels with a Spanish crew to go and fish near UK. It was one of the biggest constitutional cases in the
UK)
Note that we are talking here about a direct effect right. The thing is that you might have a damage even though the
right was directly applicable.

5 October 2021

CONDITIONS STATE LIABILITY:

47
However, the Court keeps on: The principle of State liability for breach of EU law is subject to conditions.
The first of those conditions is that the result prescribed by the Directive should entail the grant of rights to
individuals.
The second condition is that it should be possible to identify the content of those rights on the basis of the
provisions of the Directive. (clarity)
Finally, the third condition is the existence of a causal link between the breach of the State’s obligation and the loss
and damage suffered by the injured parties”.

Last week we started state liability and today we’ll finish it and then we’ll look at a problem question.
Last week we saw that in certain cases, member states are liable for damages, for breaches of eu law. There are
three conditions that need to be satisfied:
1. Provision at issue must intend to confirm rights. And those rights must be ascertainable from the provision
itself
2. Not any breach of EU law might rise? to Francovich damages, but only sufficiently serious breaches of EU
law.
3. You need a link of causation between the damage and the behaviour that gives rise to the damage
Let's analyze these conditions one by one in detail.

1  Confer rights:
Intention to confer rights. This should be quite easy to understand that you need to have a piece of legislation
that is intending to confer a right because otherwise you simply don’t have cause of action  there wouldn’t be
any causation.
If in the legislation there is no intention to confer rights, no cause of action, so no causation. But Crucial to
remember is that the intention to confer rights is different from the direct effect. (e.g. Francovich). Intending to
confer right is different from the direct effect.
The converse is also true: a member state might be in breach (in a sufficiently serious breach) even when the
provision is directly effective. Why do we have to underline this fact? We need to say that because we might think
that, since direct effect in itself is a remedy, you can go in front of the international court and get what you want,
and so we might think: why do we need damages if we are already getting the right? We need damages because
much as it was the case in Factortame III, we might have incurred a loss between when our right should be
recognised and the moment in which it was effectively recognised by a court. In Factortame III, the Spanish
fishermen could not fish until when they had the internal order, otherwise he would have been in jail. And that not
fishing means that for that period they had a loss.
Brasserie is the same. It was a German case, and the issue was the name of alcoholic beverages. In particular, if a
certain beer could be sold in Germany.
Even when the right is directly effective, we might have a loss between the time in which our right should be
recognised and the one in which it was actually recognised.
In order to get direct effect, you need an intention to confer rights and then you can claim it, both if the
provision is not directly effective and if the provision was directly effective and yet you did suffer a damage.

2  Sufficiently serious breach:

Intention to confer rights and sufficiently serious breach are concepts of EU law.
So, what is a sufficiently serious breach? The court had the chance to decide this in the BT case and said that
whether the breach is sufficiently serious will depend on whether the member state has manifestly disregarded the
limit of the discretion. Why the limits of the discretions? Because directives need to be implemented so they do
leave a discretion to the MS.
In looking at whether this is the case whether the member state should be liable because there is a sufficiently
serious breach, the court said to look at a lot of things (See C-392/93 BT):

 The clarity and precision of the rule infringed  you look at the provision itself, whether the rule is clear
and precise or whether for instance it leaves room for other interpretations

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  Whether the infringement and the damage caused were intentional (in which case it would be a sufficiently
serious breach) or involuntary

 Whether any error of law was excusable or inexcusable  you look whether the error of law was excusable
or inexcusable; so, you would look for instance at whether the same provision had already been interpreted
in different ways. If you have 20 years of case law that says “not paying women as men is a breach of sexy
quality law” then that’s pretty clear

 The fact that the position taken by an EU institution may have contributed towards the adoption or
maintenance of national measures or practices contrary to EU law, why is that? Because in lots of instances
the MSs must notify their implementing legislation to the commission, and if the latter doesn’t say
anything the MSs they might have the impression that what they’ve done was correct.

This is a list of not exhausting criteria but basically what you’re looking at is whether member states are really at
fault.
In BT the court tells that, in order to determine whether there is a sufficient breach, you have to determine how the
member state is exercising its discretion. If there is no discretion, then that’s it, the mere breach of EU law
might be sufficient to establish liability.
o BUT if there is no discretion then the mere breach of EU law might be sufficient to establish liability
 e.g. C-5/94 Headly Lomas where the UK was imposing export restrictions on cattle to be slaughtered in
Spain and the curt said that the MSs had not that discretion because they could not impose that type of
export description. 
o And failure to implement directive automatic sufficiently serious breach   C-178-9/94 and 188-190/94
Dillenkofer (NB – another way to ‘encourage’ MSs to implement?). 
The court held that no implementation of directive is AUTOMATICALLY a serious breach, so while MSs have
discretion on how to implement that directive on the contrary MSs have no discretion on whether that directive can
or cannot be implemented, so there the court tells that in the case in which MSs refused to implement a directive
that is an automatic sufficient and serious breach. This is important if you consider that no implementation of
directive was and still is a problem, and that was a very powerful tool to incentive member states to implement
directives because if they don’t do that they might end up having to pay damages. 

3  Causal link between breach and damage:

The general question is: would the damage have a reason if the member state had implemented the directive? If MS
had implemented / implemented correctly damage would have not occurred…

However, it is for national law to determine the existence of the causal link. Why that?
Let’s do an example. Say that one of you is really upset with me going about Francovich damages pushes me down
the stairs and I break my leg. I go in an ambulance; this one has an accident and I also break my arm. Is the person
liable only for the leg or also for the arm? This is called “proximity” and each national system has different tools to
determine where the proximity and hence the liability ends, and these are questions for national law and it is for
national law to apply its own rules on this idea of proximity, of causation.
It is only for national law to determine whether there is the causal link. And similarly, it is to national law to
determine the amount of money, the compensation that the claimant will have. And this is subject to two principles:
 Effectiveness  es. Von Colson, where she was discriminated based on sex and they thought that the right
damage was to guarantee just the damage of the cost of the transport that she had to pay to go to the job
interview, so the amount of compensation is determined by national law, and it must be effective and
equivalent.
 Equivalence  it means that a claim in Eu law must not be less well treated than a claim in national law,
so if you have a principle of national law where you can ask compensation against the state for violation of
national law and you establish that that compensation is for 4 million €, you cannot say that for a breach of
Eu law the maximum that can be compensated is 2 million € because that is not equivalent!

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SCOPE OF STATE LIABILITY:
But against whom can you bring the liability?
You cannot bring against a private party, it is for the state the compensation caused by a sufficient serious breach
by the state to respect EU law.
But then the usual question analyzes who is the state?
 Legislature (C-46 and 48/93 Brasserie/Factortame III)
 Executive decisions (C-5/94 Hedley Lomas)
 National supreme courts (C-224/01 Köbler)

We will know look closely and analyze two cases:

 Brasserie/Factorame III
 Köbler  

Köbler  the case:

Professors who had completed 15 years’ service in Austrian universities got more pay, but Professor Köbler had
been in non-Austrian universities and claimed this should be considered.
There is a claimant, Mr. Köbler, which is an employer in Austria, and he finds that the periods of work that he had
done outside Austria were not considered for seniority, this meant that his pay was less. There was already a case
about the fact that when you move back to your own member state then seniority applied abroad must be
recognized because otherwise you would lose salary, if you want free movement of workers then need to do that.
So the highest Austrian administrative court, referred to the European Court of Justice. The ECJ Registrar
suggested an earlier parallel ruling which covered the same point, and the increment was not compatible with EU
law. The supreme national court withdrew the request, but then decided that the earlier judgment was not
applicable to Prof Köbler, so the prof loses his case.
Now because we were in front of the national supreme court there was no appeal, so Mr. Köbler was not happy
with the result.
So Köbler goes in front of different national court and this time he can’t claim the right to not be discriminated, so
he said that what the supreme court did was a breach of EU law because they should have either maintained the
preliminary reference or they should have recognized his right.
So he then claimed damages at the Vienna Civil Court, for the supreme national court infringing EU law. They
referred to the ECJ.
So he goes in front of the first instance court saying that he pretended to receive some damages, so the question
goes up to the CJ asking if Francovich damages apply to that case? The court answered in a positive way, and in
this case the principle which established was very important because you need the national courts to cooperate
and apply the EU law.
The Court of Justice held that all state organs, including the judiciary can be liable under Francovich principles.
However, in this case, though the national supreme court was wrong, it was not sufficiently serious to warrant
liability, so Prof Köbler lost. However, liability would arise only “in the exceptional case where the court has
manifestly infringed the applicable law”. A deliberate refusal to follow EU law would result in liability.
So the court recognizes the supreme court as possible to be liable but at the same time the court sets the bar very
high because you have to find a balance between making sure that the EU law is respected and the principle
whereby legal proceedings must arrive to an end  this is because Austria claimed in the Köbler case that if you
allow Francovich damage then you have a never ending proceedings, everyone would claim damages.
- Regional and local authorities (C-302/97 Konle)
- Autonomous public law bodies (Haim II)
So in a way the scope of state liability mirrors a bit the idea of emanation of the state that we’ve seen with the idea
of direct effect.

NATIONAL PROCEDURAL AUTONOMY:

If the EU law grants a right, for the effective protection of this right we have to look at what the MS does to
implement the right. And the MSs do have quite some discretion in doing that, for instance they decide how the
case is run in front of the national court, which is the time limit to ask for a right, how the procedure evolves etc.
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Because the EU doesn’t have a judiciary system, all those rules are decided at a national level. However, if you
leave discretion to the MSs, there might be some risks when it comes to the effective protection to those individual
rights. For instance it might be that the MS provides for very high cost when it comes to litigation, therefore
citizens don’t want to go to court because the cost is too high. Or maybe the time limit could be really short to
make people think that they don’t have enough time to invoke national law.
So the court of justice in its case-law was invested by questions of citizens that tried to evoke their rights under EU
law, citizens who were hindered because of some national rules or procedures that impede them to make their
requests).
Therefore the court of justice set out 2 principles that can be used in order to establish whether the MS is correctly
protecting the EU rights. Those principles were used to reduce the discretion that the MSs have when defining how
an individual can claim and protect the right from the EU law.

So the rule is that the rules of procedure are determined by national law.
However this is subject to two principles:
 Equivalence = EU law claim cannot be treated in a less advantageous way than comparable national
claims. National law cannot grant more or less protection rather than EU right. It should be more or less the
same. E.g. In a MS there is prohibition on discrimination on grounds of regional belonging. You cannot
discriminate based of the region people come from. Term to bring claim is 5 years. Let’s say Italy
implements a directive from EU law that protects from sexual discrimination, with a term to bring claim of
two years. The two claims are comparable and must be treated in the same way!
• Effectiveness = national rules of procedure cannot deprive EU law of its effectiveness (e.g. Emmott).
In relation to quantum of damages in Francovich cases, quantum decided by national law (à National Proc.
Autonomy) subject to equivalence and effectiveness.
Going back to the example cited before, if it is established by the law that you have 48 hours to organize your legal
challenge in both the situation of discrimination on regional belonging and discrimination on grounds of sex, this
measure would be equivalent but not be effective.
So there are these two boundaries to the national procedural autonomy.

Emmott v. Minister for social welfare and the attorney general case:
Mrs. Emmott was discriminated on grounds of sex, and she was bringing a claim but there was a case being
decided at ECJ level and so the Irish authority asked her to wait for the procedure in order to see what the court
decides. The case come back from CJEU and when Mrs. Emmett brought the application for the claim, those
National Authorities contested that time limits had expired and that her delay in initiating proceedings constituted a
bar to the action. So in conclusion they asked her to wait and when she came back, they applied the time limit, this
actually meant that they took away her right to sex equality.
To sum up:
Treaty  if provision directly effective then VDE and potentially HDE
Charter and General Principles  potentially both VDE and HDE
Regulations + Decisions  potentially VDE and HDE
Directives  DE only against State or emanations of the State (broad interpretation); can also rely on indirect
effect
But what if a Directive is intended to grant a right and it is either not DE or I am in a horizontal situation?
Francovich damages are also a way to ensure the rights at Eu law!

SUMMARY OF DIRECT EFFECT OF DIRECTIVES

Direct effect of the EU law is the principle that states that the individuals can enforce the rights in front of a court
without provision of implementations of the MS.
In the Van Duyn Case the court goes on and gives the principles about the directives’ direct effect: if the situation
is vertical and the directive is precise, unconditional and clear the directive could have a direct effect.
However, the directives can’t have direct effect in horizontal situation because, since the direct effect originates
from the fault of “missed transposition” or “wrong transposition”, only the States can be responsible of such a fault.

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Nevertheless, the ECJ has developed some doctrinal devices that have reduced the impact of the decision to deny
horizontal direct effect to directives.

The first is the adoption of a broad definition of the State for the purposes of vertical direct effect: in Marshall case
the Court concluded that the complainant could rely on the Directive as against the Health Authority since it was an
organ of the State. However, it is not clear what control the State must have over a body for it to be part of the
state.

The second is the principle of harmonious interpretation or indirect effect, which requires national law to be
interpreted in accordance with the directives.
The third is the interaction between general principles and directives: the CJEU affirmed in Mangold case that
individuals could invoke the general principles of EU law to cancel conflicting providing of national law even in
cases between private parties.
The unquestionable effect of these rulings is to make some obligations contained in a directive immediately
applicable in an action between private parties, trough general principle of EU law.
The fourth is the linkage between Charter rights and directives. Charter rights have horizontal direct effects and
many Charter actions are between private parties and involve directives: in these cases the directive can be relied
upon by individuals as far as it details the right provided for by the Charter.
The fifth is the interaction between certain regulations and directives. While directives cannot have horizontal
direct effect, they may do so when benefits under a regulation are made conditional on compliance with a directive.
The sixth is the doctrine of state liability for breach of EU law. An individual could enforce a directive despite the
prohibition on horizontal direct effect by suing the Member State in damages, pursuant to the Francovich ruling, for
loss caused by the states’s failure to implement a directive.
However, state liability is subject to 3 conditions:
• A Causal link between the breach of EU law and the damages
• A sufficiently serious breach by the MS
• The intention of the provision to confer a right

PROBLEM QUESTION
Directive 100/93 is a (fictitious) measure designed to increase the protection of the health of taxi drivers and the
safety of their passengers and of other road users. It includes these provisions:
- Article 1: No taxi driver shall work continuously for more than 8 hours.
- Article 10: The Member States shall take the necessary measure to ensure that: "willful failure to comply
with the requirements of this directive is punishable as a criminal offense; there is a strict civil liability (I.e. you do
not require to establish fault) for physical harm to persons resulting from such willful failure”.

Consider the following events, which occur after the date for the implementation of directive 100/93 has expired:

Case 1: Armando is a taxi driver in Rome. Exhausted after working continuously for 9 hours, he feels asleep at the
wheel and crashes his cub, seriously injuring his passenger, Bruno.

Case 2: Eric, who is going to Scotland for a fishing holiday, hires the taxi owned and driven by Fred to take him
from Exeter to Inverness. After 9 hours continuous driving, Fred is involved in a multiple motorway pile-up. Eric is
unharmed but too shaken to continue with his holiday, which has already been paid for.
The U.K. has fully implemented directive 100/93. However, the implementing legislation provides for an exception
from the 8-hour rule in article 2, in the case of journeys of over 500 miles. The legislation has been notified to the
Commission, which made no comment on the exception to the 8-hour rule.
Advise, as to relevant aspects of the EU law: Bruno, who hopes to recover substantial damages for his injuries; Eric
who wants to recover the cost of his holiday.

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Analysis of the cases:
Case 1:
First of all it is not said whether Italy has implemented the directive or not so in this case we can imagine both
scenarios.
1. STEP 1: which is the legal source? this is a directive.
2. STEP 2: was the directive meant to grant a right which is clear, precise and unconditional? In the case of
Bruno both the articles are in a way relevant (Bruno had a car accident after that Armando drove for 9 hours). The
first article confers a right and a protection to taxi drivers (the ratio is protecting taxi drivers). The second article
instead confers a right to the passengers. But since Bruno is a passenger and he wants his right to be protected, the
second article will be the most important: is his right (granted by article 10) clear precise and unconditional? No,
there is the need for the member states to do something, to take action in order to implement the directive, so it is
not unconditional “the MS shall take the necessary measure…”. So art.1 can have direct effect, while the second
one no because it is not conditional.
3. STEP 3: has the time limit expired? We don’t know but we presume that the time limit has expired also
because the directive is of 1993.
4. STEP 4: has Italy correctly implemented the directive? Or not?
 If Italy had adopted a provision with all the required measures, Bruno could have relied on national law, he
would have automatically had the right to civil liability and to compensation.
 In the case Italy hadn't implemented the directive, Bruno would have had a right under this directive but it
doesn’t have direct effect. So what could Bruno do in this situation? Bruno has not his EU right and he
could do nothing because the state hadn’t implemented the directive. When an individual has a right under
EU law but there is, because of the failure of the state, a problem in the protection of this right the
individual can start a claim and ask for state liabilities. Bruno can go in court against Italy and ask for
compensation. But the principle of the state liabilities is conditional on three requirements in order to get
Francovich damages:
o causal link between the breach of EU law and the damages (here there is because if the state had
implemented the directive, he would have his right protected)
o a sufficiently serious breach by the MS (in every case the state has not implemented the directive
in the time limit, then the breach is always sufficiently serious: this is something the ECJ decided
in the law cases, it is automatic)
o intention of the provision to confer a right: the standard for F. Damages is lower, we don’t need to
have to prove that it is clear, precise and unconditional. We just need to have a right. (In this case
we have a right, the right for passengers for safety and for the potential rights they could receive
for a breach of article 1).
5. Conclusion: Article 10 is conditional under direct effect, but it is able to confer a right under the
Francovich damages. Bruno can ask for compensation from the state. In this case we can ascertain the right that
must be compensated even if article 10 in not unconditional (there is a condition) but there would be discussion in
the national court about that.

Case 2:
1. STEP 1: which is the legal source? This is a directive
2. STEP 2: is the directive clear precise and unconditional? See case 1 analysis.
3. STEP 3: has the time limit expired? The time limit has expired.
4. STEP 4: Has the State implemented the directive? The U.K. implemented the directive but there is an
exception, and the commission didn’t make any comment about that. Anyway the U.K. didn’t implement the
directive correctly. So, under the British law, Eric doesn’t have the right to compensation because they have
implemented the directive BUT they implemented the directive with a condition, so Eric could say that the taxi
driver violated a EU law but not a U.K. law. There is a difference between the standard applied at the EU level and
the one adopted at the British level. Can Eric claim the direct effect of the directive because of the error that U.K.
made in the implementation? He could call into question the EU law and the directive effect? In the case of Fred,
article 1 is the provision that the U.K. transposed in an incorrect manner. There is this condition put by the EU law
and this condition is considered illegal under EU law by Fred, he wants to invoke the direct effect of article 1 but
there is a problem (the situation is horizontal).
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5. STEP 5: is the situation horizontal or vertical? It is horizontal because there is the taxi driver against Fred.
6. Final conclusion: the situation is horizontal so he can’t invoke the direct effect of the directive, but he can
sue the U.K. and ask for f. damages, checking whether the 3 conditions for f. Damages are met. In order to consider
if there is a serious breach, we have to consider the fact that the Commission not say anything, even if the U.K.
sang them a notification. Probably the U.K. could argue that it is not a serious breach because one EU institution is
involved in the misapplication of the directive. In general to solve the problem we can also go and see if there is the
same right granted by the charter or by general principles (in this case it is difficult to find there such a specific
right).

6 October 2021

Practical advice:
Method to answer problem cases: read the problem carefully and circle the relevant parts of the text. Then identify
the claimants and ask yourselves: has the directive expired? Is it intended to confer rights? Is there something that
is sufficiently clear, unconditional and precise? Is it a vertical or horizontal situation? If it’s vertical situation, can I
apply it in this case? If it’s a horizontal situation, can I apply the charter through the directive or is there a
possibility for indirect effect (consistent interpretation) or is there a possibility for applying Francovich damages?
Once we have this scheme in our mind, then it became quite an automatic thing, but we must also write in brackets
the relevant case law, so consider the relevant names of the cases.
Cases in EU law are indicated by the name they are known for, not for their number. If you don’t remember the
name, put into brackets the facts of the case, it’s not about memorizing the names but about knowing the case. You
have to show that you understood the facts and you can apply it to the case given.
Remember: if professors don’t give us enough information to choose a pattern or another is because they want to
discuss both.

Problem question from last lesson

We know that in the case of criminal offences directives cannot be used to aggravate or create criminal liability (we
would have a problem with the European convention of human rights) and strict civil liability for automatic
damages. So, if the directive is correctly implemented, we know what the person gets: es. In the case of physical
injuries, they get damages.
Our first claimant: Armando. If it’s a vertical situation, you see whether you can apply the directive. In this case, if
it were vertical, he would have the right to damages. If not, we can look at indirect effects, can the provision of
national law be interpreted? Then we look at Francovich damages: is the directive intended to confer rights? Is
there a sufficiently serious breach of EU law and is there a link of causation? This directive is clearly intended to
confer rights (right to compensation), is there a sufficiently serious breach of EU law? If Italy has not implemented,
it’s automatically a sufficient breach and if it hasn’t implemented EU law, you would apply the BT case. If the
member state had correctly implemented, would the damage have occurred? We don’t deal with proximity because
it will depend on the legal system you’re working with. We are not required to apply national law. In this case, we
know exactly what we would get: Francovich liability.

Eric situation: Is this a vertical or horizontal situation? It seems horizontal. If it was vertical, would Eric have a
right to rely on the text of the directive? Art. 10 only mentions physical harm whereas Eric is unharmed, so no clear
right would apply from the directive (even if it were vertical). You cannot enforce a directive between individuals
(Inverted direct effect). We cannot find a right that may apply in Eric’s situation, so we ask ourselves, would we
have a claim for Francovich damages if this was a horizontal situation. Is the directive intended to grant rights?
You can have Francovich damages when the provisions are not directly applicable. Is it intended to grant rights?
Yes, but not the right to compensation in relation to non-physical damage. Is there a sufficiently serious breach?
You look at the BT test and highlight the fact that according to BT, the behavior of the EU might be material in
establishing a sufficiently serious case.

Filip Porris case

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Philip Porris is a cigarette manufacturer (private company) and claimant (Jane) is affected by the fact the smoking
ban does not apply to Philip Porris according to the national legislation. Is it a vertical or horizontal situation? It’s
horizontal because is a private company, so there isn’t direct effect. Is there a space for consistent interpretation?
No, because the legislation is very clear (it does not apply to workplaces more than 20 people). Also, the charter
does not seem relevant here. Does jane have a claim based on Francovich damages? Is the directive is intended to
grant rights? Yes, you have a right to compensation if you are exposed to cigarette smoke. Is there a sufficiently
serious breach of EU Law? The provision of the directive seems to be very clear by stating how it must be
implemented, so you would have already satisfied the main part of the BT test, but, on the face of what we have,
this seems a straightforward case of mis implementation, so seems be a sufficiently serious breach because it hasn’t
been implemented correctly. Then we look at causation, we know that if the directive had been implemented
correctly, then she would have had at least the right to compensation for 1 month salary and the protection from
unfair dismissal.

What are Francovich damages? It’s a compensation for a sufficiently serious breach of EU law by the state.
Which are the conditions to be satisfied in order to trigger member states’ liability? You need the provision of Eu
law be intended to confer rights and then it must be sufficiently serious (according to the BT test).
If the member state had correctly implemented EU law, would have the damage arisen?
Proximity and quantum of damages is subject to two principles in national law: equality and effectiveness.
Who determines the amount of compensation? The national court according to the national law.
Against whom can we claim Francovich damages? Against the state (broadly interpreted: all the authorities, bodies
with special powers, etc.).
Is there a link between the lack of horizontal directive effect of directives (the debate on the direct effect of
directives) and the decision to establish Francovich liability from the court (the decision to impose MS liability for
a breach of Union Law)? It’s a way for the court to rebalance the huge discrimination that arose from the lack of
horizontal direct effect of directives. What is the other way the courts use to rebalance it? Getting the charter to
apply it horizontally in case of discrimination.
Francovich damages are seen as a way to compensate the loss of horizontal direct effect. The other way the court
finds to reduce the problem of discrimination is by applying the charter through the directive (because in that way it
applies directly).

The fact that Francovich is also seen as a way to reduce the discrimination has its own problems because if the
amount of compensation is determined by national law, we would still have a big geographical difference in the
quantum of rights you get (es. in one member state the damages are 20 000, another at 10 000 and in another zero).
While if all the states correctly implement the directives it should be uniform.

In the case of directives, before we can determine if the directive has any effect in national law we must see if the
time limit has expired. Until the time limit has expired, there is only a stand still obligation (the state must do
nothing to undermine the directive). The effects of directives are displayed after the time limit for implementation
has expired. Is the directive intended to grant rights? Are those rights sufficiently clear and premise, unconditional?
If yes, potentially you have direct effect. If not, does the state have to take action or does MS have discretion?

If the member state has to do something positive (like in Francovich), the directive could not have direct effect. If
the member state has a is discretion, equally, since you can’t know how the member states would exercise that
discretion, there could not be direct effect.
Like in Von Colson case, where the state had to exercise a choice between two different possibilities, in which case
you as a judge do not know how this state would have excised that discretion and it is in the nature of directives to
leave discretion.

If there is potential direct effect, you ask yourself if it’s vertical or horizontal situation. The notion of State is very
broad, it includes not only regional authorities but even privatized companies and companies that have special
powers. If the situation is horizontal, you don’t have direct effect of the directive.

55
When you don’t have direct effect, you ask yourself can the legislation be interpreted in a way that is consistent
with the directive. Can I get the charter to help me? Is there space for Francovich damages (3 conditions to fulfil)?

The Court of Justice of the EU (CJEU)

We will look at three procedures:

• The preliminary ruling procedure
• Enforcement procedures of the member states
• Judicial review, which is when you go in front of a court to challenge the validity of an act of a public authority
or, in certain limited cases, challenge the validity of legislation (less common). Ex. If you appeal against a fine,
that would be judicial review.

The court of justice of the EU is made up of two courts: general court (first instance), court of justice (higher
court). How are these people chosen? The general court is bigger in its composition and the treaty tells us that the
general court must have at least one judge per member state (currently two). The court of justice has one judge per
member state and 11 advocates general. Advocates general are judges (covered by the statute of the court of justice
by privilege and immunity) but their role is different: they advise the court on a path to be taken, so they look at the
case in very much detail and then produce an opinion which is much longer than the ruling. This opinion is not
binding on the court, often times it is only by reading the opinion that we understand the legal reasoning behind the
ruling. There are 11 advocates general, the large states have permanent advocates general (Germany, France, Italy,
Spain and Poland always have one while the rest of the member states’ advocate generals rotate).

The working language of the court is French, the court is located in Luxembourg.

The general court

The general court deals with actions for annulment of an EU act brought by natural or legal person. So, if you seek
to challenge a commission decision imposing a fine, you first go in front of the general court and then you can
appeal to the court of justice. Then there are also actions for compensation for damages caused by the EU
institutions or their staff. Now, we also have the staff regulations disputes (between EU and its staff), which had
been reserved to the civil service tribunal until 2016.
The decisions of the general court can be appealed in front of the Court of Justice but only on a point of law. In that
way it works like a normal legal system.

The Court of Justice

A big part of what the court does are requests for preliminary rulings (that arise when a national court asks a
question on the interpretation of the EU law to the court of justice), it deals with the appeals to rulings of the
general court and then it also deals with some direct actions (when you go directly in front of the court):
• action for annulment (to seek to annul an act of EU institutions only when those are brought by a member state or
an EU institution), so there is this difference that if an individual seeks to challenge a provision of EU law they
go to general court and then to the court of justice, whereas if there is a member state or an EU institution the
challenge goes directly to the court of justice.
• All the commissions decisions against member states when commissions bring proceedings in front of member
States when they fail to fulfil obligations
• Financial penalties imposed on member states when they continue to not fulfil obligations in EU law

The court of justice also deals with opinions (when either member states seek to have an opinion on the
compatibility between an international agreement and EU law). This is because there is an interest for member
states not to enter in international agreements if they might be incompatible with EU law.

Preliminary reference procedures

Art. 267 TFUE: the court of justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties
(b) The validity and interpretation of acts of the institutions of acts of the institutions, bodies, offices or agencies of
the Union

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What is the difference between A and B? A regards only the interpretation, while acts of the EU institutions regards
validity and interpretation, because any act of an EU institution must comply with the treaties, whereas the treaties
are our primary law. The Court of Justice, a creation of the treaties, cannot declare the treaties unlawful, so the
court interprets and has jurisdiction over the validity and interpretation everything that is below the treaties, while
primary law cannot be challenged.

Art. 267 TFUE —> “Where such a question is raised before any court or tribunal of a member state, that court or
tribunal may, if it considers that a decision of the question is necessary to enable it to give judgement, request the
court to give a ruling thereon”.

If the national court/tribunal think that there is a question of EU law, that they need to understand in order to
determine the dispute in front of them, they may ask for preliminary ruling, where the question is raised in front of
the court of tribunal of a member state, again:
“Where any such question is raised in a case pending before a court or tribunal of a member state against whose
decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the
Court”.

The difference between these two paragraphs stands in the words “may” (simply the possibility of doing so) and
“shall” (the national court has an obligation): supreme courts have an obligation to refer.

“If such a question is raised in a case be pending before a court or tribunal of a member state with regard to a
person in custody, the court of justice of the European Union shall act with the minimum of delay”. Why? Because
preliminary rulings take time (18-20 months) and there is a fear that you may significantly delay the time a person
is in custody.

7 October 2021

The preliminary ruling procedure is the basis of a lot of cases: ex. Van Gend en Loos;: Costa; Francovich. They
are all cases that wouldn’t have happened without the preliminary ruling, indeed, the Court, in many cases, stressed
this idea that the system of preliminary references is what allows a dialogue between national courts and the
European court.
How does it work in practice? Two parties are having an argument and they induct in front of the National Court
(that’s what you can do if you cannot find an agreement) and within that argument it turns out that there is a
relevant provision of EU law. (For example: the question could relate to weather the term “spouse” encompasses
same sex marriage  Directive 2004/38). So, if you have no case law, and this is a Court of first instance, that
court may, if it determines there’s a need of interpretation, ask the Court of Justice. The CJEU has “hermeneutic
monopoly”, like Cassazione, which means it is for the CJEU to determine and interpret the EU law. If the first
instance court does not refer and the second instance court does not refer, then, as we saw, the Court of last
instance is obliged by the treaty to make a reference. (In the example the Court stated that the term “spouse” was
used as a gender neutral term).
Then, the question arrives at the Court, the register looks at the case, if a similar case have already been decided
they write to the National Court, like in Cobler, saying the relevant case resolve the question, in attempt to save
judicial time. But, normally, what would happen is that the case would be assigned to one of the chambers, if it is a
case with a crucial or constitutional question, it goes to the Grand Chamber, a chamber with 12 to 15 judges. The
case can also be assigned, and it usually is, to an advocate general, then the advocate general writes an opinion; this
opinion considers different legislations, scholarships, academics etc. in order to make an argument. This opinion
then goes in front of the judges, but the judges decide freely, they are not bound by the opinion of the Advocate
general, who cannot even participate to the chamber. There are huge discrepancies between the ruling and the
opinion, even if the result is the same, why is that? Because the Court of Justice does not allow dissenting opinion,
so ruling is also a mediation between different positions. The difficult rulings, complex or constitutionally
sensitive, may also be the compromise between different positions. The Court at this point gives a ruling and sends

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it back to the referring court, when the CJEU decides it only interprets EU law, it cannot interpret national law nor
apply national law, because the case is decided at national level, not by the CJEU (it is for the Court of Justice to
interpret the law, but it is for the National Court to apply the law  the ruling of the CJEU is binding on the court
that has made a reference).
The case come back where it started, the national court, and it is the national court that rules on the case applying
the ruling of the CJEU. (In the example, is Romania obliged to recognize same sex marriage that had happened in
Belgium? It is for the Romanian court to assess other factors)
A preliminary reference can make it up to 18 months.
If you are in front of the national court and one of the parties is arguing that a provision of EU law, secondary
legislation, is invalid, the only court that can declare the invalidity of EU law is the CJEU; if the national court
believes that the party actually has a case it has no choice but to send it to the CJEU. (We need European law to be
the same across the 27 member states, therefore we cannot have a diffuse check on the legality of the EU act). If
you have a question about the validity of the EU law, it must go up to the CJEU and that was declared in the Foto-
Frost case where the Court said “National courts do not have the power to declare acts of the Community
institutions invalid… Divergences between Courts in the Member States as to the validity of Community acts
would be liable to place in jeopardy the very unity of the Community legal order and detract from the fundamental
requirement of legal certainty” (Foto-frost, C-314/85).

The procedure of the preliminary reference:

 National court or tribunals stays the proceedings and refer a preliminary ruling request to the CJEU (the
time limits are all stopped)
 Then, if admissible, the Parties are invited to send written submissions
 The Commission, always, and eventually, if they want, other Member States intervene. (No other third-
party interventions are admitted)
 There is the oral hearing in Luxemburg, which only very rarely is lifted
 The opinion of the Advocate general (in most cases)
 At the end, the CJEU issues its ruling.
How does it work? The treaty says that the preliminary ruling is binding on the national court that has requested it.
But actually, the European law system is a case law based system, which means the ruling of the CJEU have a
precedential value.
We said that there is this difference between the lower courts and the court of last instance is obvious given that
after the last instance the case is closed, it’s res iudicata. So, article 267 says that the National Court may, but if ot
is a court of last instance it shall submit the question, it has no discretion.
Things are not so simple, because in the Ciflit case, a reference from Italy, the question from the National Cpurt
was “if we know the answer, we still have to refer?”; the Court of Cassazione knows exactly what the answer to a
certain question, regarding the interpretation of EU law, is, are they obliged, by article 267, to refer? There is no
exception in article 267. But the problem is obvious, what happens, for instance, if I am the Supreme Court in Italy,
I have a case that is very clear, already asked, do I need to refer it again to the Court of Justice or can I just decide it
by applying the ruling? The Court in Cilfit (C-283/81) tried to balance the main interest that is safeguarded by the
article 267 TFEU, to have a uniform interpretation across all the Member States, and basic issues of judicial ???
The Court starts by saying: first of all, the fact that a party has asked for a preliminary reference is not enough to
compel the national court to ask that preliminary reference. This is very important because actually, in this
cooperation between national and European courts, the national court also function as gatekeepers (this is crucial,
because otherwise we would have really too many cases). Then the Court goes and considers what is the discretion
of last instances courts. In the case the Court says that a court against whose decisions there is no judicial remedy
has the duty to refer a question raised before it to the Court, unless it has established that the question raised is
irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct
application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a
possibility must be assessed in the light of the light of the specific characteristics of Community law, the particular
difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the
Community.  it tries to balance these two conflicting interests. You have to take into account that we might have,
for instance, different languages, so the Courts says that if it’s really clear, and irrelevant, there’s lot of case law,

58
then you may refrain from sending the preliminary reference; but, when you make that assessment, that should be
the exception, because actually the EU system is unique and you must be absolutely sure of what you are doing.
Cilfit is seen as a judicial policy decision. What does it mean? Cilfit was the court propending to give something to
the Supreme Courts, but actually not doing so, because it tells them they can avoid referring but only if they are
sure many thing are not a problem. (Opinion: Cilfit is a political judgement that pretends to give some power to the
Supreme Courts but it doesn’t)
There are two different situations:
 “Acte claire”  it means that it’s so obvious you don’t need to refer (There’s no doubt regarding its
interpretation)
 “Acte éclairé”  CJEU already ruled on the issue
If the matter is not acte claire or act éclairé, it must be referred, the Supreme Court has to refer, it doesn’t have
discretion if the question is relevant. If they refuse to refer it, they might infer in MSs liability (Francovich). Also,
the Commission will and has brought proceedings against MSs for systematic failure to respect duty to refer.
Sometimes the Court does not accept the case, when can CJEU refuse to give an answer? When the national court
has not given enough information to allow the CJEU to rule (lack of essential information about the facts of the
national proceedings); the issue is purely hypothetical or irrelevant; when the Court has already ruled on the issue;
when it simply lacks jurisdiction. Remember that in most of CFSP (Common Foreign Security Policy) the Court
does not have jurisdictions and then there are not preliminary ruling.
The way in the EU legal system through which we ensure the MSs comply with their legal obligations is through
what we call the decentralized EU law enforcement. It happens through different legal means: direct effect, indirect
effect and Francovich damages. This is crucial because basically the Commission has less employees that a small
city council, imagine how it would be possible for the commission to go and discover every single infringement of
the EU law, so the system ha direct effect, indirect effect, Francovich liability, for the individuals to see their rights
recognized but actually also transforms each and everyone of us in potential enforcers of EU law.
We also have the infringement procedure, the procedure through which the Commission brings proceedings
against the Member States. As we has seen, article 17 TEU provides that the Commission shall oversee the
application of Union law under the control of the Court of Justice of the European Union. How does it work? The
Commission is detects and starts the infringement, but it is only for the Curt to determine whether the MS has
infringed its EU law obligation. In practice, at the first failure to fulfil obligation, it applies Art 258 TFEU “If the
Commission consider that a MS has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned
opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State
concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring
the matter before the Court of Justice of the European Union.” A infringement procedure is a sort of dialogue
between the parties. So, first of all, the Commission has a discretion, according to the treaty, it is not obliged to
pursue every single violation of the EU law, so it is for the Commission to determine whether it wants to pursue an
infringement procedure. This might be a tad problematic: the decision whether to pursue a case or not might
became a political decision.
How does the Commission know whether there is a breach that might be pursued? Individuals’ complaint (in
certain fields, for ex. when you don’t have organized litigation power); press (ex. Brexit); another MS might ask
the Commission to bring proceedings (this is because MSs themselves can bring proceedings against other MSs,
but they don’t want to be nasty to their fellow MS); MS’s failure to notify implementation of a directive.
Remember that whereas the individuals can alert the Commission of the violation, they have no right for that case
to be brought, because the Commission has discretion.
What happens in practice? First, there is a pre-contentious stage, in which the Commission gives MS the
opportunity to reach an informal solution; secondly, there is a formal notification, a letter in which the Commission
set out what it’s objectant to and gives the MS a deadline; thirdly, there is a reasoned opinion, which forms the
basis for the case; then, if it still doesn’t comply, there is the referral, at the Court of Justice. There are 2 problems
with the infringement procedure: the discretionary nature of the procedure (you cannot do anything if the
Commission refuses to bring proceedings against MSs); the CJEU can only ascertain the violation, and cannot
impose sanctions. In the Maastricht Treaty it was introduced, in article 260, the idea of imposing a Pecuniary
Penalty, but it does not work swiftly because you need two cases (one to declare the infringement, one to ask for
the penalty), so it can be a very long time before the penalty is actually imposed. The Treaty of Lisbon tried to deal
with this problem, at least in relation to the non implementation of the directives.

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 12 October 2021

Last week the Polish Constitutional Court declared that some main provisions of the EU Treaties are incompatible
with the Polish Constitution: as a matter of EU law, a constitutional court cannot do this. This is creating a huge
crisis within the EU legal system and it provoked some reactions at national political level. In Italy Meloni and
Salvini were welcoming the ruling, the Commission was not very happy because the principle of supremacy is key
to the EU constitutional legal system.
This is the first time in which we see such a frontal clash between a national constitutional court and the
european legal order. This happens in the context of:
• the rule of law crisis in Poland,
• the Polish government fighting with the Commission for the funds, for the recovery funds
• lack of independence of the judiciary: several rulings of the CJEU in which it declared that the polish
judiciary is no longer independent

LAW OF THE EU: JUDICIAL REVIEW

OUTLINE:
• The Court of Justice
• The preliminary reference procedure
• The enforcement of EU law
• Judicial review (TODAY)
• Introduction
• What, who, why, when
• Non privileged applicants
• Direct and individual concern
• Lisbon Reform (regulatory acts)

THE WAYS OF ENFORCING EU LAW:

• Direct Effect + supremacy Individual / company enforces EU law in front of national Court
• Preliminary ruling procedure  National courts enquire about meaning / validity of EU Law
• Enforcement proceedings  Commission ensures that MSs comply with EU law
But what happens if EU law or a regulatory act/administrative act of EU law is invalid?

WHAT IS JUDICIAL REVIEW?

Legal systems (democratic ones) generally provide for principle of legality. This principle means that any act
must be compatible with hierarchically superior norms. We have it in Italy too: administrative acts have to
comply with all the rules above those, legislation has to comply with constitutions. In the EU cases: any
administrative act has to comply with directives and regulations and then with the treaties, the charter and the
general principles.
To ensure that principle of legality is effective, legal systems provide for mechanisms to review the legality of such
acts. The principle of legality would be empty if you could not enforce it in front of a court, tribunal or body
delegated to do that.

Each legal system (with differences across legal systems) set rules as to who can challenge the given act, which act
can be challenge and where (before which court you have to go to challenge that act).
Can be the Italian constitution be challenged? No, it is the superior norm that creates the Italian Constitutional
Court, but a legislative act might be challenged incidentally, in Italy, with the review of constitutionality => each
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legal system determines which type of act can be challenged, by whom, in front of which court (in some legal
systems you can go before any court, in some others there is just one court competent), when and on which
grounds.

“Standing” is the term used in English to determine the right to go in front of a court to “act” to challenge an act
of the authorities (administrative, regulatory, legislative). In order to prove “standing” you would need to prove
that you have an interest in the action.
So, for instance, if one of you goes, drives around, and gets a fine for exceeding the speed limit, I cannot challenge
that (because I do not have any interest in the action).

In any system the principle of legality is balanced with the need to ensure that your judicial resources are used
wisely, and that the decision maker can make certain decisions  aim: to avoid paralysing decision making and
wasting judicial resources.
Imagine how many challenges you would have if any person who does not like a piece of legislation (and
legislation by nature “regulates”: limits someone’s discretion or rights) could go and challenge it before the
national courts  it would paralyse the system and waste a lot of money.
This is the reason why legal systems have coherent ways to ensure that the principle of legality is balanced with
the other interests in the system: effectiveness of decision making and judicial resources .

How does this system work in the EU?

263 TFEU provides for “Action for annulment of EU acts”: this is the one time in which individuals might go
directly in front of the General Court and then the CJEU in appeal. It is only for EU courts to determine that an
EU act is invalid.

Who can act? Art. 263 provides different rules according to who brings the challenge. There are three categories
of claimants, and different rules apply: privileged, semi privileged and non-privileged applicants.
• There are rules that apply to the three main institutions: Council, Commission, EP and MSs: privileged
applicants.
• “Special” institutions (ECB, Committee of regions and Court of Auditors): semi privileged applicants.
• Individuals and companies: non privileged applicants.

We have different rules according to which act are we challenging. What kind of acts can be challenged? Only
acts that are intended to produce legal effects.

When? You have a mandatory time limit: always 2 months from when the act was adopted.

On which grounds you can challenge certain acts? Grounds for review are listed in the Treaty itself: the
Treaties, the Charter, General Principles and so on.

Before a court can look at a review of legality, in any system, it has to determine whether the action is admissible.
The CJEU evaluates whether an action is admissible, and in order to do that the court has to see whether:
1. Does the claimant have legal standing?
2. Does the act fall in the category of acts that can be reviewed?
3. Was it challenged within time limit?

Art. 263, 1 TFEU: 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

61
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.

Recommendations and opinions cannot be reviewed because they are not legally binding.
We said that someone tried to bring a challenge against an act of the Eurogroup, and they failed.
The article gives you a list of those institutions whose acts can be challenged: the Eurogroup is not a listed
institution. In this article we find a list of those institutions that must have adopted the act, for the act to be
reviewable. If another institution adopts the act, the act is not reviewable. Then you have the bodies, offices or
agencies, which usually act on delegated power by the institutions.

The act must produce legal effects vis-à-vis third parties. Why?
If I say: “I really think that, after this lecture, you should go out and order Spritz”, does this produce any effects on
you? No.
You can only challenge acts that have an effect.
If the Parliaments issues a recommendation that the Commission should bring proceedings against Hungary, this
recommendation is not legally binding: it does not produce legal effects, it simply produces political effects,
therefore it cannot be reviewable (it cannot be challenged).

So, the first paragraph of article 263:

• Tells you the acts of which bodies can be challenged
• Tells you that they must produce legal effects
• Recommendations and opinions, by nature, cannot be challenged (because they are not legally binding:
they do not produce legal effects).

Art. 263, 2 TFEU: It shall for this purpose have jurisdiction in actions brought by a Member State, the European
Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential
procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse
of powers.

The second paragraph tells you which are the grounds upon which you can challenge an act. Secondly, it
identifies certain applicants: Member States, Council, Commission and EU Parliament.
Is it limiting the possibility for those institutions or Member states to bring proceedings? Is there any
qualification? There is no qualification, and this is because those institutions and the Member States have
inherent standing: we give for granted that they have a legitimate interest in bringing an action  they are called
“privileged applicants”: they do not need to prove anything. Provided that the act challenged is intended to
produce legal effects, and that they act within two months, they immediately have standing, because they are
the guarantor of institutional balance, conferral of competences, the legality of any act  If they act within the
time limit, they always have standing. They have to persuade the Court that the act is illegal.
If there is an argument about the legal basis, it is usually brought by one of the institutions that think that the legal
basis was not correct.

Art. 263, 3 TFEU (not in the original Treaties): The Court shall have jurisdiction under the same conditions in
actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for
the purpose of protecting their prerogatives.

The third paragraph is limiting when those institutions can bring proceedings: only when they are protecting
their prerogatives.
The idea: if an EU institution acts are violating the prerogatives of the institutions in paragraph 3, then those
institutions have an interest in challenging that act.
For instance, if you have a rule under which the EU Central Bank must be consulted mandatory on determining
some general stuffs and the Council acts without consulting the ECB, the EU Central Bank can bring proceedings.
Otherwise no one would protect the prerogatives of the institutions.
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They are Semi- Privileged Applicants: as long as they are challenging that their prerogatives were not
respected, they can act. There is no need to establish standing if protecting prerogatives (e.g. act adopted
without consulting ECB when consultation is required by law).

Art. 263, 4 TFEU: 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.

The fourth paragraph divides acts in different types, so it tells you that we have:
• Acts addressed to that person or company
• Acts that are of direct and individual concern to them
• Regulatory acts which are of direct concern and do not need implementing measures

The most challenging part of judicial review in the EU context relates to the standing of individuals and
companies.
INDIVIDUALS and COMPANIES are Non- Privileged Applicants: need to establish standing.
In order to access the Court, to have their case heard, they need to prove that they have standing (that they
have an interest in acting) and the Treaty itself determines when individuals (and companies) may have
standing. The difficult cases are all about determining whether the person is entitled to act.

Why do we need these stringent conditions? Is that very difficult exercise between ensuring the legality and non
clogging the system.

So, what is the Treaty telling you? The first bit is distinguishing between:
• acts that are addressed to an individual
• acts that are of direct and individual concern to them

In the first case, they do not need to prove anything else (besides the legal effect of the act and the time limit).
Why? because this is a basic principle of legality/rule of law  you must be able to challenge act that ‘identifies’
you (it singles you out) or else authorities could do whatever they wanted  usually admin acts.
If an EU act identifies a person, automatically they can go before the Court and challenge that act (within two
months).

This happens usually, in the EU case, against a (Commission) decision addressed to company or individual
e.g. decision to impose fine for breach of Competition law: in competition law the Commission has the power to
impose fines, and the company or individual against whom that fine is imposed must have the right to challenge
that administrative act.
There is no need to prove anything else, as the claimant has an obvious interest in challenge, and there must
ensure that authorities respect principle of legality. So, in this case the applicant can challenge on one of the
listed grounds within 2 months from notification or adoption of the act.

On the other hand, things become a bit more difficult if the act is not addressed to the applicant: in this case the
applicant has to prove to have an interest in bringing the action. I do not have standing with regard to an
administrative act that imposes a fine on you.

In determining when an individual against whom which wants to challenge an act that is not addressed to them,
legal system has different ways of proceeding.
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The most obvious example is that several legal systems restrict the possibility of challenging legislative acts,
because otherwise the system will not work.
For this reason we seek to determine who might had an interest in challenging, and in doing so, we try to
balance:
• review of legality
• the need for effective and democratic decision making
• the need to limit the waste of judicial resources
• avoid clogging the system
• avoid judiciary substituting itself for legislature
: all of this is balanced in different ways.

The way this balance is achieved in the EU context is by limiting judicial review for individuals to acts that are
only of direct and individual concern to them. What does this mean?

DIRECT CONCERN  EU measure affects the applicant’s legal position directly + there is no discretion by
implementing authority. It means that it is the EU measure that is affecting the applicant’s legal position directly.
It means that there is no State discretion: there is an EU measure that is changing the legal position of someone,
and there is nothing in between, neither State discretion.

INDIVIDUAL CONCERN was not defined in the Treaty, Court gave very restrictive interpretation in Case 25/62
Plaumann. To be individually concerned, you need to be in a special situation, unlike any other person.

So, if you are an individual and you want to challenge an act which is not addressed to you, you need to prove
direct concern (which means that it is fault of the EU institution that your legal position has changed) and
individual concern (which means that it has affected you in a way which is different from the way that has
affected anyone else).

DIRECT CONCERN

It is straightforward. For a measure to be of direct concern for individual:

• the measure must affect applicant’s legal position
• there must be a causal relation between challenged act and interest affected
• no discretion of implementing authority (i.e. who is the act ascribable to?)

When you want to challenge something you must be sure that you are targeting the right level because if the
Member State was exercising discretion, then you would challenge the national act.
Ex. If the professor imposes a fine on you, you can challenge the fact that she determined the breach of certain
rules (because she took the decision to impose the fine). If, on the other hand, the rule says: professors must
always impose a fine of 50 euros on students who look at Instagram  the professor here is only an agent, she
does not really take the decision, so you cannot challenge the fact that she broke a rule: se is obliged by the
university to take a certain course of action  it was the university’s choice, not hers. You can only challenge that
decision.

The same applies in the context of EU: direct concern tells you that when you want to challenge a EU act, you
must be sure that your legal position has been affected by that act and not by the discretion exercise by the
Member State.
In the Case 41-44/70 International Fruit: in the common agricultural policy we have lots of rules about
importing agricultural products from the outside of the Union (because we are protectionist, and we are

64
protecting our own farmers). There was a Regulation that provided for a system to limit imports of apples from
outside the EU into the EU.
The Member State would communicate to Commission the amount of licences, but it was for the Commission
to decide how many licences to grant  importer affected.
International Fruit brought the case: did they have direct concern in relation to the Commission act determining
how many licences? Does the Commission act deciding on the issue of licenses directly affect the importer?

The decision clearly affects the legal position of the importer, because it cannot import the apples that it is going
to sell to the customers. It is the Commission that takes the decision: as a consequence, there is direct concern
 there is no discretion of Member State: it is only for the Commission to decide how many licences to grant. So,
when the Commission gives the Member State less licences, therefore it is the commission decision that
changed the legal situation of the importer.

Direct concern is simply the way to look at where the decision was taken: if there is any discretion, then you
should direct your challenge to the entity that has exercised that discretion.
Indeed, if in this case you had the Commission elaborating a framework, and then the decision actually taken by
the Member State, then you have to challenge the decision of the Member State  no direct concern.

If an act is addressed to me can I challenge it in EU law? Yes if I do that within 2 months and then I go on the
grounds.
If an act is not addressed to me I have to prove direct and individual concern.

INDIVIDUAL CONCERN: PLAUMANN TEST

It is not defined in the Treaty, but the Court gave a very restrictive interpretation in Case 25/62 Plaumann.

What happened in Plaumann? Germany had requested the Commission to suspend duties on clementines
coming from non-EU countries. The Commission had refused to do so, addressing its decision to Germany.
Plaumann was one of the (very few) importers of clementines in Germany, and of course it did not like this
decision because they wanted to import clementines and be competitive. The decision was addressed to
Germany and not to Plaumann.

The decision of the Commission (common commercial policy) clearly affects the economic interest of Plaumann,
yet the decision is addressed to Germany, so it means that it applies to all clementines producers (it is not
identifying Plaumann). It is simply a decision addressed to Germany, that affects Plaumann’s economic interests,
without identifying Plaumann.

Plaumann tries to bring a challenge, but there was the need to prove direct and individual concern  direct
concern was there, because it was a Commission decision: Germany could not do anything else.
Plaumann would say: of course I’m affected, because I’m one of the very few importers, so I’m going out of
business if you don’t reduce the duties. The Court needed to decide whether Plaumann was individually
concerned  it is not enough that you are affected by a rule (we are all affected by rules: it is in the nature of
rules to affect the economic interest of someone), but you need to prove individual concern  the Court gives us
the test to decide when a person challenging a decision that is not addressed to them is individually concerned.
Court says that claimants must establish individual concern to prove that “that decision 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
persons addressed”.

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You have to prove that you are really special: that act affects you as if you were the only individual affected by
that rule. Why?
The basic principle of legality demands that if a decision is addressed to me, then I can challenge it.
For instance, if you know that I (Elena) can immediately challenge a decision addressed to me, then you might
decide to say “all people who teach a class in EU law at 3.00 o’clock until 4.30 on Tuesday at Bocconi University,
and had thought previously in England, and had a dog, and has two children, only those people will have to pay a
fine”  you are referring only to me, without addressing the decision directly to me. The authority here is
identifying me in a different way to escape judicial review, but the measure is affecting only me as well (nobody
else fits those criteria). The aim is to ensure that institutions cannot chose a different way so as to escape
judicial review. So, if that is the rationale, if you want to challenge an act that is not addressed to you, then you
have to prove individual concern: you have to prove that you are totally different from any other person 
because otherwise it would be very easy for the decision maker to just escape the principle of legality.

The court says that you must demonstrate that you are in a “CLOSED CLASS OF APPLICANTS”  basically need
to demonstrate that an act addressed to another person or of general application affects claimant in a ‘special
way’, as if it were addressed to them. It is very difficult in EU law to challenge acts of general application: you
need to demonstrate that you are in a unique position.

In case Plaumann, there were only 5 producers of clementines: are those a closed class of applicants? The Court
in the case says: that class is not close, because some importers could enter the market and some others could
exit the market!
In order to challenge an act that is not addressed to the applicant, the applicant has to demonstrate that they are
very special as if the act was really addressed to them and to do so they have to demonstrate that they are in a
closed class of applicants.

A very good example: an act of general application (it works in cases of legislative acts).
In Codorniu (C-308/89) we have an example of being in a closed class of applicants.
There is a Regulation (act of general application: a legislative act of EU) that determines the rules for the use of
a certain sparkling wine.
Codorniu is a Spanish producer that had always used that particular way of indicating its own sparkling wine.
Because of the Regulation, they would be affected: they would no longer be able to use that particular way of
indicating the wine.
They brought proceedings to challenge the validity of the Regulation  there was direct concern because
Regulation is directly applicable, there is no MS discretion. The issue is: are they individually concerned?
This is one of the very few cases in which the Court says that there is individual concern: they are the only ones
that for one century were using that particular name in Spain to sell their sparkling wine.
So even if the Regulation was of general application for all the producers of sparkling wine, they were
individually concerned
Plaumann test might be satisfied even if act of ‘truly’ general application – some applicants can still be
individually concerned.

BUT…
• Plaumann test was criticised as too narrow interpretation  very seldom would applicant manage to
satisfy the test. Is such a narrow interpretation justified? If an act is not addressed to you, it would be
extraordinary (but in certain fields) for an individual to challenge that act. It is almost impossible to
challenge Regulations and Directives of general application!
• In addition, in certain cases you have acts that might affect us in a very direct (negative) way, and the
impossibility to challenge them because, by nature, it is impossible to have a closed class of applicants!
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  e.g. environmental legislation  pollution by definition affects an ‘open class’ of individuals (e.g.
Greenpeace).
One of criticisms that have been voiced against this narrow interpretation of individual concern is that
possibly in the most important cases you cannot have a closed class of applicants.

The consequences of this:

1) Effective judicial protection is compromised: if you do not have “standing”, then you cannot say that a
certain act is illegal  than unlawful act might remain in a legal system.
2) How is this different in national context? Also, in national context you cannot simply challenge the
legislation. Think about the discussion in relation to democratic deficit: is there a link between effective
judicial protection and effective democratic protection?

What we have after two decades of this narrow interpretation is a bit of pressure to change the system, because
it actually produces some externalities that might not be entirely coherent with the legal system we want to build.

13 October 2021

Problem question: The EU adopts a new regulation 123\2017 prohibiting the use of diesel cars across the
territory of the EU within 2020. PIAT is a car manufacturer that produces diesel cars, and it estimates that the
new rules might put it out of business as it has no capacity to produce more non-diesel cars and it does not have
sufficient reserves to modify its production plant from diesel to non-diesel. The German Government is also
worried about regulation, as its industry will be particularly badly affected.
-(i) Advice PIAT and the German Government on how to challenge the Regulation.

What do we highlight?

1)The first thing that we noted is that is a regulation, because we know that the type of act might determine what
you’re upstanding or not.
2) The date, 2017, which is the date when the regulation was adopted and 2020 for implementation. How many
months ago is 2020? Is 10 months ago, time limit to bring an action?
There is a mandatory term. You cannot bring an action beyond 2 months.

We have to circle, about the fact, that they might go out to business, PIAT, non-privilege applicant.
German government, we call a privilege applicant.
Now we have to advice PIAT and German government on how to challenge the regulation: would you see relevant
article of the treaty, 263, you’re within 263, and you start with PIAT which is a non-privilege applicant, so we have
to prove that, remember decision must not be addressed to PIAT. So now we look at, the direct an individual
concern, what does means direct concern? Non discretion between act and effect. Is this the case? Yes, it’s an
absolute prohibition. No discretion for implementing authorities, for the member states ecc.
They need to a close class of applicants; any manufacturer would be affected by this rule and therefore they have
not standing.
The German government, they are privileged, they don’t have to prove standing, never for a privileged applicant
because other way you are getting it wrong.
They have automatic standing according to 2, 6 and 3 of the treaty.

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As we said yesterday the Plaumann test has being criticized as being too narrow at excluding too many people
from the possibility to challenge what might potentially be an unlawful act of the European Union and there was
quite a debate, this was particularly felt in relation of the protection of what are called diffuse interest like
environmental protection because in those cases you can never have a closed class of applicants. There is also a
debate about the right to effective judicial protection as provided also by article 47 of the charter.
Those are concerns that are voiced in almost every single case when the Plaumann test is applied and the court
response is very definite. The court says “I can’t change the treaty; this is only for the member states collectively”.
The only problem with that argument is that Plaumann has nothing of the treaty, it is the court that has assigned
what individual meant. The second more persuasive argument of the court is that there is an alternative route to
challenge Eu legislation and that is the preliminary ruling procedure so that a person/an individual/a company
offense that they are affected by a potentially unlawful act of the European union might go in front of the
national court request a preliminary ruling on the validity of that act. Remember the digital right Ireland that we
mentioned lots of times that was a directive, digital rights did not have any possibility of challenging that directly
in front of the general court, because they were not individually concerned what they did instead was to go in
front the high court in Ireland request a preliminary ruling, the national court made a preliminary ruling enquiring
the validity of the directive, the court looked at the directive and said actually this is not compatible with the
rights to private life and is not proportioned and the directive was announced. So the court said “it’s not all about
us because applicant have an alternative roots to challenge Eu legislation”.

What do you think of this argument?

Why is the court so keen in saying this in front of the national court?
Your college here is saying this issue is the national course that they are important but what are their role here?
Think about the “incidente di costituzionalità”. What is the role of the court there?
To do a preliminary check it is the gatekeeping function. Remember an action even if a direct action in front of
the general court takes around 20 months (direct action take longer).
Now if everyone could go in front of the ECJ of the general court for whatever all they didn’t like, they would
always have organize litigation, business would challenge every single thing, every rule every environmental
protection tool, every content rule, every rule will affect someone. So if you simply allow everyone to challenge
rule simply because they don’t like them what you have is that you clog the system, whereas the court is so keen
on the preliminary ruling root, because then a national court first looks whether there is a chance that this piece
of legislation or this act is actually incompatible with the treaty whether that has been adopted beyond the
competence of the European Union for instance, whether it respects fundamental rights proportionality and so
on.

So the idea of the court and the national court have a crucial role in ensuring both the legality of the European
legislation as a whole and the fact that the judicial resource that you level are not overwhelmed and so the court
knows that only once a judge is persuaded by the arguments of a departs and thinks that there is a chance that
the rule might not be compatible with the EU law, (remember: only the court can declare an EU act unlawful).
So, if the national court has any doubt, they simply send it out and the court of justice will declare on the validity
of that legislation.
And yet there was a problem with this and with this reasoning and this problem became very apparent in the
early 2000 in a case or two cases called in fact UPA, one in front of the court of justice and Jégo Quéré. UPA was
an appeal. Now what we had in UPA was a regulation, an act of general application which prohibited fishing of a
certain kind and it was self-implementing because it was a straightforward prohibition contained in a regulation
and for which criminal liability was provided.

What is the problem in our context? What does the court say as to why is not a problem to have a very strict
interpretation of standing? Because we have the national court, our gate keepers.
Now if you have a rule that just applies to you and if you provide for the breach of that rule criminal liability, what
do you need do to go in front of the national court? How do you get there? There is no act of national authority.
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Because it is self-implementing you don’t have an act of national authority. Remember that you have rules of
standing in front of the national court, you need an act of the national authority to challenge that in this case is
even worse.
Why? Because in this case the only possibility that you have to go in front of the national court is not what the
regulation requires, self-denounce you to the authority and take the risk of criminal liability. Because the only way
you would have an act of the national authority would be the act of the prosecutor that prosecutes you for having
blotched the rule and so if than you get it wrong, and that revelation is actually compatible with the Eu law you go
to jail which is not something really nice to ask to people who want to doubt the legality of the measurement any
level.
So in this case you have self-implementing regulation and there is no real or realistic possibility for reclaimant to
go in front of the national court because in order to do so, they would halve to break the law and face potential
criminal liability. For this reasons in this case you might have potentially an unlawful act which remains in the
system because applicants or people who doubt the legality of those act, actually do not have any realistic
opportunity to go in front of the national court.

It is a real problem; it is not an academic problem. Although Jacobs, very likably person, one of the most
influential advocate generals we have ever had and he wrote his opinion that has been very influential in the
court and in the academic debate, also on critic making, but the reason why the opinion is also so good is the
gossip.
So Jacobs was a very clever hay, he looks at this and says “wait a minute, here we have a real problem because
once the preliminary ruling is not available, you are in a situation in which you are depriving applicants of
effective to the protection” and he says this idea, that the preliminary ruling procedure is a way that practices,
rebalances how narrow is the interpretation of individual concern. But it is not persuasive because sometimes,
like in this case, you don’t have the possibility to go in front of the national court.
And for this reason it depends to the national court if, when and what, they want to raise, so for instance you
might make the most brilliant goal argument as council to the party and you might find that actually the Eu
national court sense up a preliminary reference which is absolutely mediocre. It is true you can intervene at ECJ
level but that changes, you might find that a the national court sense a question that is badly phrased that
doesn’t put the problem in content. Then he says the preliminary root is not even as effective in the Eu legal
system. So what Jacobs says: the way court has interpreted individual concern is no longer fit for purposes, it’s
too narrow, it leads to many potentially applicants out, it affects a crucial right which is that of effective judicial
protection which you cannot have effective judicial protection if you can’t access a court. So, what does Jacobs
propose? He proposes a very, in my opinion, “wishy washy test”, and he says we have to change the entire way
we look at individual concern and that should be the following way. A person is regarded as individually
concerned by a community measure where, by reason of his particular circumstances, the measure has, or is
liable to have, a substantial adverse effect on his interests”.

What do you notice here? It is a really well-defined test? It is very broad, what does it mean substantial? Is the
case of Piet that we have just seen? Would that be substantial because they go out of business? What does it
mean adverse? Adverse in which way, economically adverse, legally adverse? He admits that his test is very broad
but he says “don’t you worry because with time we will got lots of cases and it will become clear how we do
define” and it is a very english attitude, he was english advocaat general .You know we have a principal and then
we have to wait to the development of the case to really define the outer boundaries of this principles.

In the meantime, there was another case and in this case is concerned again a self-implementing regulation. The
case is called Jégo-Quéré and this time without criminal liability, but the problem was exactly the same and there
was no preliminary reference root for the applicant. UPA was already at appeal stage, so it had already gone in
front of the general court and the general court found the applicants had no standing because they were not
individually concerned.

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Jacobs delivers his opinion and a month or so afterwards general court delivers his ruling in Jégo-Quéré and they
change the test of individual concern and they again tried to broaden the test and say that a person should have
individual or direct concern if their legal position is affected in a manner that is both definite and immediate by
restricting his rights or imposing obligations.
So again this attempt to broaden the concept of individual concern to allow private applicants to challenge the Eu,
in general we little Eu lawyers that are obessed with what happens up there, so totally okay, this is a clear sign
that we are changing the test because we thought what a coincidence Jacobs proposes something, the general
court for the first time in history changed its test for individual concern and then we will have the UPA case
signed in appeal, we were wrong because the court of justice when it has to decide, remember the advocate
general advices, but is not binding on the court when the cases are decided by the court.
Jacobs and the general court, so the debate about it is because two cases were fundamental in change the treat,
because those were just before the constitution of the European constitution and this case demonstrated in a
very clear way, that there was a real possibility that in some cases, the not be available to the applicants.

TREATY OF LISBON REFORM

This treaty is crucial important for each legal system, because it adds a new sentence to article 263, an individual
might challenge “against a regulatory act which is of direct concern to them and does not entail implementing
measures”. We note two things:
1) Regulatory act
2) It must not have implementing measures. It is really incorporating, it is concentrating on that situation in which
there is an implementing at national level, you cannot go in front of the national court, and in this cases the
applicant only needs to prove direct concern, no longer individual concern. So the treaty modify so that we add a
new sentence that makes it easier for applicants to go in front of the general court to challenge a regulatory act
when there is no national implementing measure, because they take on board the UPA problem and make sure
that if you cannot attack the national implementation than you must be able to attack the EU act in front of the
European court. But the treaty itself does not define what is a regulatory act. So, the question is what does
regulatory act mean?

One of the things that the constitution did was to get rid of the regulation and decision and just divide acts
between legislative acts and regulatory acts. There is a huge opposition on that because it would resemble too
much in the national system, because you’re using the same terminology, so the system remains with regulation
and decision, in fact the modification that we had to art. 263 remains with the same terminology. So almost
immediately, what we need to decide what is a regulator act?

Two different interpretations:

1) Any legislation which is self-implementing would be act, and this would mean that any legislation which
are immediately applicable, could be challenged;
2) If you look at the origin of a provision, you could argue that instead we are intending only administrative
act who are self-implementing, and this choice was made by the court in Inuit case.

INUIT CASE
There is a community in Greenland which is called Inuit, that depended on hunting seals. So they were not very
happy with the regulation, because it was a prohibition of something and it was clearly a self-implementing. They
argued that they did have standing because they concerned and they did not prove individual concern because
this was a case that fell within the new provision, the Treaty of Lisbon.
So the issue for the court was what does a regulatory act mean and this, as I said, was a decision between
interpreting regulatory act to mean that any self-implementing rule would fall within this regime or decide that
only administrative acts. The court held that regulatory act are not legislative acts, so a regulatory act is an act
which has been adopted not using the ordinary legislative procedure. So, the court said that to go and determine

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whether the regulatory act is legislative or not you’re going to see the procedure and which it was adopted and if
it has been adopted with a legislative procedure.
So, a regulatory act is no good for the purposes of the article 263.

Why would we distinguish between a legislative or non-legislative act? What happens in adopting a legislation in
any legal system? Where do you adopt a legislation? Usually we have a debate. The interest of those parties have
been represented, that’s the entire idea of the parliament real debates. When you have a non-legislative
procedure, that does not happen. It is a decision of a given authority, usually the commission, and the court says
that regulatory acts, for the purposes listed first, are only act of general application self-implementing, that
cannot be adopted with a procedure legislative. But remember that the decision maker is actually not the court.

TELEFONICA (C-274/12P)
In Telefonica the court told us what “self-implementing” means. In this case we are in Spain and there is a stated,
a tax discount that Spain gives to certain companies. The commission declares this to be stated, there is a
transitory procedure, but at the end of the debate the companies have to repay the money that they have been
given by the state on a way that is inconsistent with the Eu law.
So, you have a commission decision, it is addressed to Spain, but Telefonica is clearly affected because they will
have to give back some money. So, they bring proceedings, and the issue is always the same “what is the regime
that applies to Telefonica?” Do they need to prove individual concern or not? Because they were one of the
many companies were affected by the commission decision.
In this case there was not an issue on whether it was a regulatory act, but the issue was about self-implementing.
Here the court found that actually the sentence “not entailing implementing measures”, clearly in my opinion it
means not only Eu national implementing measure. Because if you have a national implementing measure, what
do you attack?
The implementing measure in front of national court than you request a preliminary ruling. So, in this case the
court said that this is not self-implementing, because you will need a letter from the Spanish tax authorities to the
company saying “give me back my money”, and that letter, you can go in front of a national court and say this is
incompatible with the general principle of the EU law.

So, in the case of privilege applicants, your problem is not standing because it is automatic. In the case of semi-
privilege automatic applicants, we don’t do them but is their prerogatives. In the case of individuals companies
non-privilege applicants’ first distinction is about if the act is addressed to the person, and that person has
automatic standing, you don’t need to prove anything else, you are the addressee of a decision you can go in
front of the general court and challenge them. If on the other hand the act is not addressed to that particular
person, then we have to distinguish between legislative acts  the companies will always have to prove the
direct (no discretion anywhere) and individual concern (the individual or the companies affected, they are in a
closed class of applicants).
Regulatory acts which require no implementation at either EU or national level  need to establish only direct
concern.

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Queries
-Query-are you satisfied of level of judicial protection?
-What pros and cons?

-NB Court insists right to judicial protection irrelevant as treaty drafting not its job
-NB Art 19 (1) TEU MSs “shall provide remedies sufficient to ensure effective legal protection in the fields covered
by Union law”

Grounds for review

-Lack of competence e.g. Tobacco advertising
-Infringement of essential procedural requirements e.g. failure to consult when consultation mandated by the
treaty
-infringement of treaties or rule of law relating to their application:
-Fundamental rights (e.g. Kadi I)
-proportionality (e.g. Digital Rights Ireland): the means you use has to be commensurate
-legitimate expectations  behavior of institutions has created a “legitimate” expectation of a certain conduct.
-Misuse of powers Power used for an aim different from the reason why it was conferred

Standard of review
-Court does not substitute its judgment for that of legislature/decision maker (very important in proportionality)
-The wider the discretion of the decision maker the less likely the success of the challenge
-All actions must be brought within two (calendar) months

Where to bring Art. 263 proceedings?

-privileged and semi-privileged applicants directly Court of Justice

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-Non privileged Applicants  General Court, and then appeal on point of law to Court of Justice.

14 October 2021

THE RULE OF LAW CRISIS: PRELIMINARY INFORMATION

Professor Sadurski is going to talk about the recent polish constitutional ruling: the polish constitutional court
ruling puts Poland more or less outside the EU legal system because the polish constitutional court declared that
art.1 and art.19 of the EU treaty are incompatible with the Polish constitution. This is what professor Sadurski is
going to talk about.

BEFORE THE LECTURE: BACKGROUND INFORMATION

It is possibly one of the biggest constitutional emergencies, maybe even more than BREXIT.
Art.7 of the TEU provides for a mechanism to ensure that the EU is able to deal with violations of core values of
the EU, which are contained in art.2 of the TEU (democracy, FRs and rule of law.). Why do we need this
mechanism?
Before a MS joins, the Commission checks whether they are sufficiently democratic and compliant with our basic
values: the problem is that we don’t have a mechanism in the EU Treaty to actually continue monitoring on
democratic rights compliance, because the Charter of Fundamental rights applies to MSs only insofar as they are
implementing the EU law  it means that the EU does not have inherent fundamental rights competence, so the
Commission can’t bring an infringement procedure for a violation of fundamental rights that are not connected
with the implementation of EU law.
So, we have a system whereby in order to come in MSs have to comply with fundamental rights, rule of law and
democracy. Once they are in, although, there is no mechanism of enforcing FRs, and there is no possibility to kick
out MSs that no longer comply with such values. So there is a tension: you need to comply the values to come in,
but then there is nothing you can do about.
For this reason, in the Amsterdam Treaty, and the modified Maastricht, we see that a new article (7) was
introduced. It provides for the possibility to impose a sanction; the article has 2 elements actually:
1. Declare that there is a serious and persistent breach of Fundamental rights, rule of law or democracy by a
MSs (preventative mechanism, only a declaration)
2. Possibility for the EU to declare that a MS is breaching the core values and to suspend some of the rights
of the MS.
The problem with this article is that: first of all 7.1 is only preventative, and, in both cases, the majority required
in order to trigger this mechanism is very high (4/5 of MSs in relation to 7.1, and unanimity in relation to 7.2). It
means that it’s difficult for the EU to react to these violations because it’s basically impossible to reach the
majority required. Not only, in relation to sanctions, because you need unanimity, if two MSs are breaching core
values, you’ll never reach unanimity since one of the two will never vote for the breach of the other. This is the
institutional background.
For about a decade now we’ve seen the so-called rule of law backsliding in several countries, but most notably in
Hungary and Poland; this means that slowly but constantly there’s erosion of main democratic and rule of law
values, as well as fundamental rights. Because of the institutional failure we find that the EU is unable and
unwilling to act. Unable because the majority is too high and there’s also political unwillingness to act because of
the situation of these Countries.
The situation gets worse and worse. In Poland, we are in a situation now that, it has been declared by several
observers as well as by the ECJ, where we no longer have the independence of the judiciary.

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In Poland, specifically, the ruling party has introduced wide ranging reforms to the way the judiciary is organized,
especially higher courts, that result in the judiciary no longer being independent from the Government. This
means that there is a substitution of the higher court judges with the Government. The independence of the
judiciary is key to any system of rule of law because otherwise basically you are giving blanc check to any
government to do what they want, because if you bring that government to court, it is the government who
controls the court so it’s useless. In Poland, we have this assault on the judiciary, which is very successful, which
means that there is a substitution of the higher court judges with the government. There’s also a disciplinary
chamber that will discipline judges even when they make preliminary ruling. There are these reforms so that the
judiciary is no longer independent.
The EU find itself in a very difficult situation, in the meanwhile, because of the majority required for art.7, even
though the Commission has triggered article 7.1, nothing has happened. From the institutional perspective
nothing can happen; what happens in the meanwhile is that there is a new development in the case law: the
commission brings proceedings against Poland on the grounds of Article 19.1 (MSs must ensure effective
remedies) and through the use of this article and article 2 TEU we manage to get rulings from the ECJ saying that
Poland is in violation of its treaties’ obligation. We have rule of law crisis, article 7 is useless, we find another way
which is enforcing article 19: BUT NOTHING HAPPENS STILL, Poland however totally ignores these rulings and
doesn’t change its course of action. The Commission is going to request daily fines (we have seen in it in
infringement proceedings).
Meanwhile we had Covid, which means we need the Recovery fund. The Recovery fund needs unanimity.
Hungary and Poland indicate that they are not going to vote for the Recovery fund if funds available are made
conditional upon rule of law compliance, which is what the commission and the parliament wanted. Hungary and
Poland say that they would not vote if you don’t take away that rule of law condition. The situation keeps on
backsliding in Poland and the Commission holds back the Recovery fund. The Polish government asks the
constitutional court of Poland, which they govern, if the Polish constitution and the supremacy of EU law are
compatible.
Now the situation is worse because the side infringement proceedings the Commission can bring is an
institutional failure, there is no legal mechanism to deal with this problem.

INSIDE THE POLISH CONSTITUTIONAL COURT

We’re going to structure this presentation by using a reverse chronological order, starting from the most recent
events, of two or three days ago, and then going step by step backwards.
The most recent fact that has happened can be first illustrate with some headlines: on the 7th of October 2021
newspapers hit the stand with the following titles:
o La StampaLa Corte polacca: “Alcune norme UE incompatibile con la nostra costituzione”
o La Repubblica: La Corte della Polonia contro Bruxelles: “Alcune norme dell’UE violano la nostra
Costituzione”
o Corriere della Sera: Varsavia, strappo con l’Europa, “Prevale la legge Polacca”
o NY Times: “Poland’s top Court Rules Its Constitution Trumps E.U Law”
What has happened in Polish constitutional court, or the so-called constitutional court (we will explain later way),
sadly became a very important news also in the newspaper which are very interested in legal complexities.
What has actually happened? What was this judgement that the papers refer to?
There was indeed a judgment on the 7th of October of Polish constitutional tribunal, but it wasn’t a real
judgement and it wasn’t a real constitutional tribunal for the reason that the judgement was handed by a panel of
12 which included 3 people who hadn’t been impeccably elected (there’s the criterion of impeccable character) to
Polish constitutional tribunal, they shouldn’t have been there, because they were appointed in a shameful act of
Court packing to the position that where already fit. From a purely legal pov this is not a judgement, we can call it
a decision maybe, and it wasn’t really made by a Constitutional tribunal.
What did this judgement say? The judgement was published on the official journal of Poland, but we don’t know
the written reasons for it. The Court made 2 main rulings:

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1. The first one is what we see in the first slide (we reported the text below) and deals with two leading articles of
the TEU (art.1 and art.4) which put forward the fundamentals of the Treaties which are said to be inconsistent
with some articles of the Polish constitution. A MS of the EU declares by its Top Court that 2 fundamental rights of
the EU are inconsistent with the MS’s constitution.
This is the judgement of the Constitutional Tribunal of Poland:
“Art.1 in conjunction with art.4 (3) of the TEU (insofar as the EU, established by equal and sovereign states,
creates “an ever-closer union among the peoples of Europe”, the integration of whom – happening on the basis of
EU law and through the interpretation of EU law by the CJEU – enters “a new stage” in which:
 A) the EU authorities act outside the scope of the competences conferred upon them by the Republic of
Poland in the Treaties.
 B) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards in
binding force and application.
 C) the Republic of Poland may not function in sovereign and democratic state”
For this reasons art. 1 and 4 are inconsistent with art.2 (rule of law-based state), art.8 (constitution is the supreme
source in Poland) and art.90 (soke competences may be transferred to international organizations) of the
Constitution of the Republic of Poland.
Right at the very beginning the top court in Poland tells you this new stage of the EU (letters A; B; C).
The second part says:
Art.19 (effective legal protection) and art.2 (it contains one of the major values of EU: rule of law) of the TEU –
insofar as, for the purpose of ensuring effective legal protection in the areas covered by EU law and ensuring the
independence of judges- they grant domestic courts (common courts, administrative courts, military courts, and
the Supreme Court) the competence to (and this is what really worries the court):
a) review the legality of the procedure for appointing a judge, including the review of the legality of the act
in which the President of the Republic appoints a judge -are inconsistent with art.2, art.8, art.90 of the
Constitution of Poland”
The key article about judiciary is art. 19, considered no longer constitutional; in so far has based on that article the
fact that domestic court may examine if the judges were appointed in a way that save their judiciary
independence. If they do, it is inconsistent with the Polish constitution.
If we were to write a critical glossa on the judgement, we could highlight 3 issues which are truly problematic of
this judgement as a piece of law:
1. Is this judgement an overruling of the precedent? Each MSs had to deal at some point with the
relationship between the EU treaties and the national constitution: the Polish constitutional court had to
deal with it now. Much of the arguments given in the oral reasoning would be that this judgement is a
simple logical continuation of the existent case law of polish constitutional tribunal, especially two
landmark judgement of 2004 - 2005, when the court was asked if the treaty of the EU was constitutional,
and the answer given was an absolute yes. It was also said that the constitutional court may build a euro-
friendly construction or interpretation of polish law to minimize possibility of clash between polish law
and the treaties. Now the clash is between the constitution and the treaties and only three things can be
done to sort out the problem (the court said, if the court finds the sort of clash between the constitution
and the treaties: tries to change the treaty => impossible; changes the constitution => possible; withdraw
from the EU => possible, now the constitutional tribunal is saying that some articles of the EU treaty are
unconstitutional, but is not considering any of the three options). So, there’s no continuity in the
precedent, there’s a complete overruling of the precedent.
2. What was the subject of the scrutiny of the Treaty or of the CJEU’s interpretation? What was the target of
the scrutiny? The way the professor read the judgement; it looks like the targets are the articles of the
Treaty which are found unconstitutional. The treaty has been construed and found unconstitutional, but
it wasn’t the way the motion to the constitutional tribunal was formulated. The motion however was
from the Prime minister (very peculiar) who asked the Constitutional Tribunal about the unconstitutional
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 character of the interpretation of EU law of the CJEU. If the interpretation of the CJEU is under scrutiny,
the Constitutional Court can’t control said interpretation, but the Polish Constitution can scrutinize the
ratifying of the Treaty, but in this case the Treaty was already scrutinized when Poland entered in the EU
in 2004. Can they reopen the treaty for unconstitutionality in this case?
3. Where is the Clash between the Treaty and the Constitution? Tribunal says there’s a clash between the
treaty and the polish constitution but in no argument could anyone show that indeed any of those treaty
articles are inconsistent with the constitution. The constitution basically endorses the same values and
rights as the treaty. Where the clash really is between polish statutes and the constitution (and so) the
treaty. The real clash is between the Polish statutes on the judiciary and the Constitution and the Treaty.
On one hand the statues, and on the other hand the treaty and the constitution. But if it were said that
those statues are unconstitutional, it wouldn’t have fulfilled that political role it was given. What was the
real function of the judgement?
What’s the real purpose of the judgement then? It is to exempt legal reforms post-2015 affecting judicial
independence form effective oversight under EU law. These reforms are no longer visible to the EU law, and this
is why the Eu law, in this respect, must be deemed unconstitutional.
Before the 7th of October, on the 6th, in Luxemburg there was a day rich in Poland related issues, there were 2
decisions taken in Luxemburg:
1. Order by the Vice-president of the CJEU concerning interim measures on the so-called discipline
chamber.
2. Judgement in a case concerning transfer of a judge from one Court to another.
On the 14th of July there is a motion of the Polish gov which asks the Court to remove its order of the interim
measures (on the 15th the Constitutional Tribunal had invalidated some articles of the EU Treaty which made it
possible for the CJEU to decide on interim measure), and on the 6th of October the VP of the CJEU refused the
motion.
On the 6th of October, the CJEU said in a preliminary reference judgement (it was brought up by a judge, one of
the cases of resistance to the dismantlement of the rule of law). As a sanction, the judge was moved to a lower
court: sort of a punitive action which violates judiciary independence. Can under EU law, considering that each
MS’s court is also an EU law court, that be done? No, it can’t be done: if a judge is being transferred to one
division to another in a way that violates its independence, then that is inconsistent with art.19 of TEU.
Back to the 15th of July: a judgement of the ECJ which is not about preliminary reference but is an infringement
procedure brought by the Commission. This judgement said that the disciplinary chamber established within the
supreme court, in 2017, in Poland, does not have the necessary qualities of independence. It was fully peopled by
judges elected by the parliamentary majority, and not only this but the way they were appointed was not right,
the decision that they take. Very detailed way the ECJ said that it is not an independent body.
Going back to the judgement of the 2nd of March of 2021, the CJEU looked at the appointment of new judges of
the Supreme Courts and saw that the recommendation from the national council of the judicial we’re being
criticized by candidates who reply and are turned down, they didn’t have any judicial review of the negative
recommendations. The procedure of appointing judges has a fundamental defect: there’s a recommendation
from an administrative body but there’s no judicial review => this decision is final while every administrative
decision must be subject to the judicial review. The CJEU stated that this didn’t look like a judicial body and that
these appointments were invalid.
Also, in Strasburg there were two important decisions taken by the ECTHR:
- Xero floor v. Poland, 7 May 2021 => it is about when particular courts are called judge or the
constitutional tribunal. Now, remember about the composition of 12 judges really cannot count as a
court, they were improperly appointed. And now you have a small company in Poland which received a
judgement by the constitutional tribunal and a guy doubted whether a component could be considered
was a real judge and the ECJ said: to place the VP of the Constitutional Tribunal in any judgement of said
tribunal violated art.6 of the European Convention of Human rights.

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 - 19 June 2021 Broda and Bojara (ex-vice presidents of a regional court) they were halfway through their
term, and they were fired in the middle of their terms as VP with no reasons. EU law allows minister of
justice to terminate a term of office of VP of courts, but there’s no minister of justice here. They went to
Strasbourg which said that by doing this, Poland violated the citizens’ right of access to court.
So, what is going on in Poland? Now we stop the backward story, we will have a snapshot. When we talk about
the constitutional crisis, we look at courts. Since 2015, the authorities engaged in what can be called a
colonization of public institutions, and this colonization which is a comprehensive dismantlement of the rule of
law and the separation of powers, can be taxonomized in 6 categories (judicial independence is only a little part of
it):
1. Capture capture means you take an institution and put your own people with completely different
values and predispositions than the precedent one. This is what has been done with the constitutional
tribunal, with the court packing, and also with many other institutions such as electoral bodies.
2. Procedural tinkering  use of the old institutions but changing the procedures. For example, most of the
important laws are brought as private member bills.
3. Erosion it is to maintain the institution but depriving it of some of its competences, or the budget.
4. Redesign  of the old institutions, you still have old institutions but completely differently appointed.
National council of the judicial for example, before the 15 members were elected by judges themselves
while now, they are elected by the ruling party majority, which are now completely different and are
basically new.
5. Institutional migration  to take an institution and place it in a different institutional context, which is the
case of the “procuratura”, public prosecutor office, which has been now fully transposed in the structure
of the Minister of Justice.
6. Duplication and innovation  some institutions are duplicated by new ones, for example with the
creation of a new chamber of the Constitutional Court, which is subject to the new way of appointing
members, which is the parliamentary majority.
The state of judicial independence imposes a toolkit that the ruling party has for controlling the judiciary by the
executive: 4 main ways in which regular judges are now subject to executive control:
1. Personnel control Minister of justice now has full power over accounting vice-president and president
of courts (he can fire them without giving reasons).
2. Disciplinary system  it goes throughout the entire hierarchy up to the disciplinary chamber. Every
judicial system and every democratic country must have some disciplinary system, but in Poland this
disciplinary system has acted since 2017 a sort of proxy for appeals: if the executive bodies don’t like the
judgements, they act upon the judges for their decision. For example for the substance of the judgements
or for asking preliminary reference.
3. Muzzle law so it’s known the law of late 2019, which tells judges that if they ask the CJEU the
preliminary question concerning the organization of the judiciary system is a breach of the disciplinary
system.
4. Smear campaign mainly done by state run media.
In Poland, the only way that this system can be change is with the election (2023), voting this justice out of office.
Other tools would be judicial resistance (members of the two main independence judicial association refuse to
comply with this system, they apply the primacy of EU law in Poland in practice) and the support of civil society.
What about Europe, what can EU do?
- Legal instruments: infringement procedure actions rather than preliminary reference
- Political instruments: Article 7
- Financial instruments: Recovery fund. At least so far Poland hasn’t be given its allocation.
- ECHR

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The Eu Commission is extremely late to act so there is the problem of “too little too late”, even if there are many
instruments that could be used. Ex. The muzzle law was voted in 2019 and came into force in January 2020, but
the Commission only started an infringement procedure in March 2021, a year and 3 months later.
From the EU pov, if the legal instruments are not enough, there still is art.7, which is a political instrument, or
there could be financial instruments (ex. Recovery Fund) and also the ECTHR.
All these measures happened to slow down the process but couldn’t stop it.
CONCLUSION. We don’t know what the effects of the judgment of the 7th of October will be.

27 October 2021

BEFORE CHARTER
Fundamental rights are very important, especially when we seek to challenge EU legislation (Digital Rights v.
Ireland), if EU is not compatible with fundamental rights, then it can be annulled.
Before the charter how did we deal with fundamental rights?

When we created the treaties, there was no mention to human rights and this was not because they have forgotten,
but because the three communities were supposed to be complemented by the political European community where
fundamental rights should have contained. The other parallel treaty, European defense community, failed to gain
approval of the French assembly and therefore the European defense community and the European political
community were shed. For this reason, there was no mention of fundamental rights, there is still in FR or there is
very limited competence.
There was a problem, because if we think about the historical context, we are in a post-war situation where
especially some member states are very mindful (or some national court in remember state) that FR must be
respected.

The problem arises because the European Economic Community, from the very beginning, has lawmaking
powers. The problem was that fundamental rights were not in the treaties, and you might have an act of the
institutions of EEC that might impact on fundamental right and the problem is made more urgent by the principle
of supremacy, which established that an act of the community can take precedence over a national act.
The problem gets solved through the case law of the ECJ which early one in 1969, in the case of Stauder, finds that
fundamental rights are general principles of the EU that apply in the EEC context. This is reinstated in the
Internationale Handelgesselschaft case. What the court does is to find that even if there is no provision on
fundamental rights in the treaties, those rights are protected anyway because they are general principles and the
court would clarify that in order to decide which are the fundamental rights, we will have regard of the common
constitutional traditions of the MSs and also to the ECHR.

CASE 11/70 INTERNATIONALE HANDELGESSELSCHAFT

Internationale case: the national court (German court) ask whether a provision was compatible with the national
constitution. And what the court does is restate the principle of supremacy and say that you can look at the
constitution but there are analogous guarantees inherent in Community law.
“However, an examination should be made as to whether or not any analogous guarantee inherent in Community
law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles
of law protected by the Court of Justice.”
The court says: we do not have fundamental rights, but this does not mean that we do not have fundamental rights,
it simply means that fundamental rights forms part of those general principles and it states to the National Courts
that the ECJ will protect those.

What was at the beginning a situation of vacuum, was re-arranged in order to make sure that fundamental rights
protected. In order to decide which are the fundamental rights and what their content is the court has relied on the
common constitutional traditions of the Member States and states to it will look at international treaties to which
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MSs have participated and are signatories. The most relevant of the international treaties is of course ECHR. It is
an easy way to solve the problem of identification of the relevant fundamental rights, because all the countries
where either signatories or parties to the ECHR and it is very easy to say that the ECHR is part of the common
constitutional tradition. In time the court will use the ECHR to identify those rights that are protected also at EU
level.
We have a very broad situation in EU because we have national constitutions, EU general principle, (now) the
Charter and the ECHR. Even though the EU is not party to the ECHR (yet) the ECJ has never gone below the
standards of the ECHR because it considers that it is the absolute minimum applicable in the EU.
When we think about fundamental rights, we have to remember that also If and when the ECJ does not protect
fundamental rights in a way that that the national constitutional courts deem effective, then those courts might tend
to rebel and not apply the principle of supremacy.

Taricco case: ECJ had stated that shorter prescription time for certain crimes did not apply when that influenced
the financial interest of EU. This caused a lot of uncertainty in the Italy and a constitutional problem because of
legal certainty in criminal law. The Italian constitutional court, then, send the case to the ECJ clearly stating that
there might be a problem if the ECJ confirm its own interpretation. It is a wringing and the ECJ is receptive to the
problems and accepts that in this case the principle of criminal law certainty would require that the first
interpretation it had given would not apply. Fundamental rights are the ground where we see the tensions between
national constitutional courts and the ECJ because the national constitutional courts are very protective of their
role and the core of fundamental rights and they are willing to leave some ground but not to leave the entire
situation. Beside the Polish constitutional tribunal, we have managed to avoid a direct conflict, we have more
dialogue than conflict.

MOST IMPORTANT TREATY AMENDMENTS

This development of fundamental rights happened thought the case law of the ECJ because we did not have any
mention to fundamental rights in the treaties. This does not mean that the political institutions were not aware of
the problem. Already in 1969 (Stauder), in 1971 (Internationale), very soon as the court was developing a case law
the three political institutions (Parliament, Commission and Council) issue a political declaration in which they
clarify that they agree with the case law of the ECJ and they consider self-bound themselves by fundamental rights.
Even though we did not have them in the treaties, we had them in the case law and a political declaration.
In which and every revision we had, there was an element of fundamental rights that was included in the treaty.
To just focus on the most important treaty amendments that were made:
• Maastricht: introduced article 2 on the values of the EU —> liberty, democracy, rule of law, Fundamental
Rights.
• (1993) Copenhagen criteria for accession. We have the fall of the Berlin Wall, the Eu wanted to prepare for new
admissions, so the EC provides for the criteria for being accepted and that the perspective Member states have to
respect (including fundamental rights).
• Amsterdam and Niece: possibility to sanction Member states for serious and persistent breach of art. 2.
• Amsterdam: the Eu was giving itself the competence to enact rules fighting discrimination on grounds that are
different other than nationality and sex.
• Niece treaty: the charter of fundamental rights is drafted.
• Lisbon Treaty: finally, the charter acquires full legal value and the Member States provide for an obligation for
the Union to accede to the ECHR, meaning that they include a provision saying that the Union shall accede,
there is no discretion, we must become part of the ECHR.

WHY “MORE” FRs?

Why do we need more Fundamental Rights? Why this constant expansion in the treaties towards fundamental
Rights?
The most important reason is because from Maastricht on we see the EEC transforming itself and transforming its
own competences and the EU acquires competences in fields that are very sensitive in a fundamental rights
perspective. One thing is to worry about the rights of corporations on competition law, it is another thing when
actually the result of the EU action might be to transfer a person from one Member State to another Member State
(European arrest warranty) so they can go to jail, it is another thing when you have the EU being able to

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determine the rights of asylum seeker. These are very sensitive matters from a fundamental rights perspective. The
more you expand the sphere of action of the EU the more urgent it becomes to have an effective way to protect
individual fundamental right. The other reason why there was this pressure that will lead to the codification to the
charter is because there was a certain disconnection between what the EU was preaching externally and what it
was doing internally.
The common commercial policy is an exclusive competence of the EU. This means that the EU is an incredibly
powerful international actor, because it is the Union that enters in trade agreements with our partners.

Very often as part of this external action of the trade agreement the EU would include what are called the
Fundamental right conditionality clauses, whereby that agreement is conditional upon the state meeting certain
trade union protection, labor protection. The criticism was that if the EU was imposing standards outside it was not
bound by the same standards inside because there was no catalogue of Fundamental Rights.
The need to better protect fundamental rights arises also from the dialogue between the constitutional national
courts, especially the German constitution court has been quite watchful of what was going on in relation to
fundamental rights in the EU. We have this situation where it is clear that we have to do something internally at the
EU level in relation to fundamental right and the debate in the 90s is articulated across two lines: those who argued
that it was time in the constitutional development of the EU to have a charter of fundamental rights and those who
were pushing towards the ECHR as a mean to make the system coherent from a constitutional perspective.
What happens is that in 2000 the charter is drafted and in 2007 the treaty of Lisbon gives it legal value and we
provide an obligation to accede to the ECHR.

ARTICLE 6 TEU
“1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same
legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the
Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in
accordance with the general provisions in Title VII of the Charter governing its interpretation and application and
with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental
Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human  Rights and
Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.”

First of all, we notice that the charter has the same value as the treaties, which is primary law, which means that
any act of EU institution can be annulled if incompatible with the Charter.
Article 6 clearly states that the charter must not extend the competences of the EU. The EU does not have
fundamental rights competence. There is this anxiety (especially coming from the UK) that the charter might
influence the competences of the EU, and this is why both in article 6 and article 51 of the Charter there is a
provision that states that EU cannot expand its competences (which is now problematic because we cannot enforce
the Charter on Poland and Hungary)
Article 6 provides how the Charter should be interpreted. Again, this is coming from the same anxiety that the
Charter that could be used in order to expand competences. The Union recognizes fundamental rights because
fundamental rights existed before.
Art. 6 (2) provides for the obligation for the EU to accede the ECHR (we still have not managed)
Art. 6 (3) safeguards the case law of the ECJ that had happened before the Charter stating that “Fundamental
Rights shall constitute general principles of union’s law”.

THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU

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The relationship with the general principles and the Charter was initially not clear but it is another safe net. It also
means that if there is a fundamental right that the ECJ had found but has not been codified that still exists, there is
no regression. Art. 6 (3) make sure that there is no regression and allows some dynamism to the charter.
1999 EC in cologne provides the mandate for the drafting of a mandate. The mandate states that “ the fundamental
rights applicable at Union level should be consolidated in a Charter and thereby made more evident”, because we
are not creating them, they already exist, we are recognizing them.

The mandate also specifies which of the rights must be included and those are the rights guaranteed by the ECHR
and in the common constitutional tradition, then the citizen rights, which are the rights that in the EU pertain only
to those who are citizen of Member states, and the mandate also states that account should be taken on economic
and social rights as emerging from the social charters in EU and EC. It is supposed to be a very comprehensive
document.

DRAFTING OF THE CHARTER

The body drafting the charter was innovative because for the first time in the EU we have a convention (which will
be used for drafting the European constitutions) which includes representatives of both national and Ep, it is not
anymore only an intergovernmental drafting exercise, but we include representatives of directly elected assemblies.
Horizontal approach, democratic legitimacy.
Moreover, the process is a participatory process which means that all the documents and all the drafts are put into
the internet and therefore society can participate making comments and suggestions to the drafts in progress. The
charter also adopts an innovative approach to fundamental rights. It adopts a horizontal approach based on the
assumption that fundamental rights can only be effective if they are enjoyed as a whole. It rejects any notion of
hierarchy of rights and difference between political and civil rights on one hand and economic and social on the
other, which was the post-war dichotomy.
The charter distinguishes between rights and principle; the latter only direct the action of EU institutions and are
not free-standing rights.
Because we are in this constitutional landscape that is becoming increasingly complex the charter makes clear that
the protection given by the chart can never go below the protection given by the ECHR which remains the
minimum common denominator in the European territory. The charter is sided by explanations. We need those
in part to rein in the ECJ but also because the Charter looks at a plurality of sources of rights and it is very
important to know the content of the rights, where you can find them because they have been already interpreted.
The case law was very important to understand where that right came from and what was the minimum content of
that right.

STRUCTURE OF THE CHARTER

The structure of the Charter because of this horizontal approach is organized and divided in relation to values. We
identify six values: dignity, freedom, equality, solidarity, citizenship, justice and general provisions. Because of
this, horizontality rights are grouped and the values are equivalent to each other. The charter has a preamble and
we will focus on general provisions which we also refer to as horizontal provisions and those provision are the one
that tell you when and how the charter applies.
 Article 51 provides for the scope of application of the charter;
 Art. 52 that provides when and how a right can be limited and this is a different way of structuring the
limitation of rights. If you go and look at the ECHR, we see that limitation are present in every article and
therefore every right has different limitation clauses (the right not to be tortured can never be limited). Each
article in the ECHR tells you when there is legitimate limitation to that right. On the other hand, the
Charter has a general provision that tells you in general when and how the rights can be limited with an
ECHR guarantee, so you oddly never limit the right more that what the ECHR does.
 Article 53 mentions, because it does not regulate, the relations between the charter and other documents.
 Article 54 is a provision that prohibits the abuse of rights. The abuse of a right is a use of a right in a way
that it is not intended.

HORIZONTAL PROVISIONS – ART. 52

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Article 52 provides for the general limitation clause. (Almost) Any fundamental rights (except the right not to be
tortured) could be limited and without limitations society would not work. The Charter departs from the model of
the ECHR and provides a general limiting clause and it states that: “Any limitation on the exercise of the rights and
freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and
freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and
genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and
freedoms of others”.

For a limitation of a charter right, to be compatible with article 52, you need it to be prescribed by a law and the
limitation must be necessary and proportionate to the aim you want to achieve. Principle of proportionality we
focused on Digital rights Ireland: the court recognized that in principle the aim pursued was right (fighting
terrorism) but the way the aim it was achieved but the relevant directive it was disproportionate and excessive,
there could have been less restrictive means to achieve the same aim (protection of society from terrorists’ threat).
In the ECHR you find these limitations bit by bit whereas in the Charter you find a general clause and for this
reason it clarifies in article 52 (3) that the Charter can never fall below the protection guaranteed by the ECHR,
which means that article 52 will be interpreted in a different way according on the right that has been limited. For
instance, a non-informed person could think to apply this article to the entire charter, bur for example it cannot be
applied to article 4 (right not to be tortured) and that is because the ECHR provides this. The right to life in the
charter could be limited in those instances that are provided for in the ECHR.

Article 52(2): it is a composite document and therefore you find references to other documents which make the
charter a difficult document to interpret. Article 52 (2) provides that when a right correspond to a right present in
the treaty then it shall be exercised under the condition and limits that are defined in the treaty. It is referring to
the citizens’ rights, because in the charter citizens’ rights are those that find their source in the treaty (free
movement, right to petition). Those rights were there before the charter in the treaties.
They have been placed in the treaty because when this document was drafted, it was not known what we would do
with it and so the mandate was to codify all existing rights and our citizenship rights are rights available in Eu law.
Because we are messy people, we have this general limitation but in the treaties themselves citizenship and free
movement rights can be limited only in certain circumstances. For instance: free movement of workers rights can
be limited only by measures that are made to protect public health. So the Charter is saying that for those rights that
are contained in the treaty, you go and look at the TFEU and do not bother with the Charter.

Article 52(3) provides that the protection given by the charter never goes below the ECHR, although the EU is
allowed to provide for more protection. Fundamental protection documents are the bare minimum you can always
go and have more protection
This was of particular difficulty in horizontal situation. In vertical situations it is easy to say what is the highest
protection, meaning the protection that would give more protection. In a horizontal situation it is more complex: if
I extend my right yours will shrink. In theory we cannot go below the convention even though it is not easy to
understand what that means.
In 2000 we had the Charter, but it was not given legal effect because Blair thought it would have been too toxic in
the UK. It was then proclaimed by the EU political institutions. The Charter was supposed to make the rights more
visible, then you can refer to it and the advocates general did.
In 2003-4 we drafted a European constitution that failed because of the referendum in Netherlands and France.
We repackage everything in the Lisbon treaty so that we can get it past.
In the meantime, Blair had promised a referendum on the Eu constitution (not on the Lisbon Treaty); he needs to
justify the fact that the Lisbon treaty is different from the Eu constitution. From a democratic perspective he has a
point. The UK decides that it is necessary to add 4 paragraphs to article 52 and those are messy paragraphs

Article. 52 (4) —> anxiety for national sovereignty and expansion for Eu competence —> states that if the right in
the charter correspond to those in common constitutional tradition, then the interpretation of those rights must be
harmonious.

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Article 52 (5) provides a distinction between rights and principles. This was added after the charter and therefore in
the charter principle are referred as rights and rights as principle. What this means is that not all rights can be self-
executing; some rights need legislation for those rights to be given effect. This is the distinction between rights and
principle: Rights are those that are free standing, they can be enforced against the EU legislature and the
Member States, when it applies to member states; principles are the one used to interpret EU law and to
challenge the validity of Eu legislation (but not national legislation).
Example: we have a right to environmental protection; this does not mean that we go and challenge the Comune of
Milano because it allows cars to circulate. This means that when EU legislates has to have due regards to
environmental protection. If the EU had to legislate with a threshold of pollution that is too high, then you could
challenge that directive or regulation for violating that principle. If you have two possible interpretation of a norm,
one that would maximize environmental protection and one that would stress it, then the court is obliged to apply
the one that maximize environmental protection.
We find then a reference to national laws and practices so that: “Full account shall be taken of national laws and
practices as specified in this Charter”, if we go and read the charter there are certain rights that explicitly refer to
national law. And this would be because of the division of competencies between the EU and Member states.

Finally, article 52(7): clarifies that the explanation to the charter, the instruction of the charter, need to
be given due regard, which means everything and nothing.
The UK created a messy text.

HORIZONTAL PROVISIONS - ARTICLE 53

Article 53 is another example of a not particularly successful drafting. Again, the article shows this anxiety about
the charter being a document that might become an accelerator for competence creating (competence creep) by the
EU in an expansive way and if we think about it we understand that fundamental rights are always relevant.
Reflection this anxiety we have article 51 (2) on the competences and article 52 that is referring to national
interpretation and common constitutional traditions.
We have then article 53 which provides: “Nothing in this 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 European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the
Member States' constitutions”

If you read article 53 it gives you this impression of the charter as an intermediate level of legislation at the same
level of other sources of fundamental rights.
Could this be a problem? Is this possible?
Costa v. Enel about the supremacy of EU law applies always even in relation to national constitutions. If you look
at this article it seems to be questioning the principle of supremacy. Because what does it mean this reference to the
national constitutions? Does this mean that they take precedence? If so, then we would question the entire EU legal
order. Actually, this article does not mean anything, because it says “in their respective fields of application”
which means that the national constitutions should apply when they should apply and the charter should apply when
it should apply.

This was decided by the court in the Melloni case: the Melloni case was a case relating to an Italian citizen in
Spain. He had been sentenced in absentia, but he was duly represented. Because he saw that thing were not going
his way, he flew to Spain and is duly represented. After the ruling, Italy issues an European arrest warrant so he
could go to jail. He argues that to give effect to the European arrest warrant would conflict to the interpretation
given by the Spanish constitutional court of the Spanish constitution that stated that you could not be extradited
(deported) if condemned in absentia unless the State requesting the extradition took to retry the person in front of a
court. We have a European Arrest Warrant which should allow Italy to bring Melloni to Italy and he claims that

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the warrant it is not compatible with the Spanish constitution as interpreted by the Spanish constitutional court.
What the national court inquired was: what was the relevance of article 53 and whether article 53 meant that now
the Spanish authorities could refuse to give effect to Eu arrest warrant because it would not be incompatible with
the national constitutions. Of course, there was only one way to solve this: according to establishing principle, EU
acts and institutions are looked at only throughout EU law and not national law. The ECJ restate the principle
saying that there was no possibility to apply the national constitution because the European Arrest Warrant is an
EU act and it can be measured only with the Charter and therefore the Warrant is compatible with it.

The charter has succeeded to a great extent to what it wanted to, which was make rights more visible and it has
succeeded because if we go and see the preliminary reference before and after the charter, they go up drastically. In
EU law writing things down is fundamental because national court are not always conscious of Eu law.
It has had a distortive effect, but because it is a very complex document it also gives the impression that the rights
contained in the charter can always be invoked.
It is unfortunately a very complex document and this is a problem because document on FR should be clear. The
complexity of the charter is inherent to fact that we are dealing with a systems of attributed power.

28 October 2021

Was there really need for a Charter of fundamental Rights? Why did the EU take such a step? Because they were
not in the Treaties, and we needed more guarantees and more visibility maybe in that respect.

1. What is the approach of the Charter to codification of the FRs? What are the sources of Charter rights?
The charter takes horizontal approach to FRs codifications, and rights are divided according to values. The
higher articles approach in this division is rejected after a long debate. Sources: ECHR, common
constitution tradition, international treaties, case law and the Treaties. There is a plurality of sources.
2. What is the value of explanation to the Charter? Explanation explains the meaning of the rights,
particularly pointing out at that right comes from. Its value is that the court must take them in due
account, but they are not binding.
3. When can a Charter right to be limited? Art. 52 says that you have a legitimate limitation of a right if it is
prescribed by the law, and it must be proportionate.
4. What is the difference between a principle and a right? Rights are free standing; principles are for
interpreting EU law and for validity of EU law.

Art. 51
Art. 51 is the most complex of the Charter and regulates when the Charter applies and to whom it applies.
Art. 51: The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard
for the principle of subsidiarity and to the MSs only when they are implementing Union law. They shall therefore
respect the rights, observe the principles, and promote the application thereof in accordance with their
respective powers. The Charter does not establish any new power or task for the community or the Union, or
modify powers and tasks defined by the Treaties.
They apply to any act of EU institutions (both if they are acting in a legal and political capacity): legislative and
executive acts, decisions, acts in the international arena, also to non acts, even to those acts that do not have
binding legal effects. There is a difference between the application to EU (absolute, there is no limitation) and
application to MSs (it is qualified: it applies only when they are implementing EU law). The concern of MSs about
the charter to give more power to EU reflects in art. 51 (especially II comma): they mentioned the principle of
subsidiarity.

Kadi I case is one of the really important law cases. It is about fighting terrorism after 11 th of September. Because
of international pressure, there was the decision to impose sanctions on individuals (related to Al-Qaida, Bin
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Laden). They did it by a UN Security resolution, an act of international law at higher level, which delegates a body
at UN level which identifies individuals, whose assets should be frozen. Any States could put any name in a list
whose assets should be frozen.
The EU decided to implement this UN security resolution through two instruments: one in the Common Foreign
Security Policy (no DE), one within the EC. There was the need of an act at EU level, otherwise, because of free
movement, the potential terrorists could move freely the capitals, so we need to impose the sanction at the
same moment. The regulation had direct effect and provided for the freezing of the funds.
It is problematic for the identification of these subjects since individuals see their assets frozen without knowing
why they had been listed (e.g., a baker in Piemonte had his assets frozen just because of a wrong transliteration
of an Arabic name). Among all these people, there is Mr. Kadi, who was listed in this regulation. He was a very rich
Saudi man, and he has its assets frozen.
He challenged this act because it is a limitation of the right to property (the State cannot limit your assets; any
limitation must be justified). In addition, he argues that his rights to have legal protection were not effective,
since he had no proof of why he was put into that list. The list was provided by the US, and the US did not share
anything with the EU.
Before the court, the UN security council provided an act, and the EU only implemented that act. The court
cannot challenge this act because it has not jurisdiction (no discretion by the EU). If the act is reviewed, it would
be like reviewing the UN act. The only power of scrutiny is to review that according to the principles that apply to
international law. This was the decision of the General Court.
The appeal before the ECJ said it was wrong. Because the EU is now a constitutional order, the Community is
based on the rule of law, inasmuch as neither its MSs nor its institutions can avoid review of the conformity of
their acts with the basic constitutional charter, the EC treaty. The court decided that assets cannot be frozen
without a motivation, otherwise the court cannot check these reasons. The decision was to provide the
Community a span of time in order to take another decision.
Ultimately, the court gave some minimum requirements and minimum evidence for being listed, otherwise the
ECJ would have no evidence to decide whether the decision was justified or not. For Kadi, the reason was that he
was in the US at the same time of Bin Laden 10 years before. This decision was highly criticized because the EU
put itself above international law and they should not complain when other States do the same thing. As a result,
UN had kind of a review mechanism.
The obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional
principles of the EC Treaty, which include the principle that all Community acts must respect FRs, that respect
constituting a condition of their lawfulness.
The principle of “no gap” applies across all the actions of the EU, and therefore international law alone cannot be
used.
Another time the Commission was bound to FRs when applying the European Security Mechanisms for banks,
which is a Treaty outside the EU. The court said that applying international law cannot be an excuse to avoid this
obligation.

Application of the Charter to MSs

Much more difficult is to understand when and how the Charter applies to MSs.
The EU is not a HRs organization, and it is a system based on conferred competence and it does not have a
general FRs competence. Among the competences the EU has, we have not a competence on FRs, except from
particular ones, such as data protection and nondiscrimination. Moreover, all the MSs have their own systems of
FRs protection, such as, in Italy, Constitution and ICC.
In addition, all MSs are bound to the ECHR, which is the body that protects generally human rights.
Finally, we must remember the standard that imposes EU fundamental rights scrutiny on MSs might affect the
balance of powers between the EU and the MSs and might have an indirect effect on competences, which was a
reason of anxiety for MSs, especially UK.
There is NOT a separation between legal sources which tells us what applies and when. There is a huge area of
overlap between the EU law and national law application. In this drawing area, you have a mix of action.

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 The big problem is what happens in this big area of overlap, because we need to safeguard also national FRs.
The court has decided that EU FRs are relevant in two different situations:
1) When MSs are implementing secondary EU law: e.g., implementation of a directive, finding who is liable
according to a regulation. MS, in the exercise of its discretion, has to respect both EU FRs and national FRs.
Imagine a provision that contains an obligation with discretion for MS and one without it: national law will
reproduce the latter (only the Charter applies) and make a choice in relation to the former.

The problem is exactly when there is discretion. When the MS makes that choice, it is bound by the Charter as
well as by national constitution. By the Charter, because of something called delegation theory -> when
delegating to act in a certain way, MSs cannot breach EU constitution because they are acting on the instructions
of an EU institution. They will also be bound by the national principles.
2) When MSs’ acts are limiting a free movement right: free movements of companies, workers etc. When the MSs
limit one of these rights, the MS is also bound to the respect of FRs. This is because, if we have a right conferred by
EU law, its limit should be allowed also by EU law (e.g., public policy and public security).

So FRs apply to the act of national authority limiting the right to move. This is where all gets contested. Every
limitation of EU treaties rights is under the umbrella of EU.
Carpenter case: an English person is living in the UK. He gets married with a non-EU person, but this person had
overstood her entry reasons: remained in UK longer than she could. UK immigration laws are very strict and
provided that, even though the marriage was genuine, she should have gone back to the Philippines and then apply
again for a visa. In practice, the family would be separated for up to six months. They appealed, and they had two
possible rules: the right of private and family life (art. 8) claim under the ECHR, but it was really unlikely to succeed.
The other path that was ultimately followed was that Mr. Carpenter has freedom of movement, and because he
has a business, he is providing services to customers in other MSs. Then, it could fall under the EU umbrella of FM
provisions, even if it was a domestic case.
He claims that, because he has customers in France, we are within free movement of services provisions contained
in the Treaties. In this case, we have direct effect, supremacy, and application of FRs. He took a bet: the
deportation of the wife would mean a limitation of free movement. The way that he did that was to say that no
one could stay with the children if he had to go to France. He argues, based on this, that the deportation of the
wife, would affect the conditions under which Mr. Carpenter is providing services.
Because of this is restriction to a free movement right, then it must respect EU fundamental rights. The court
leaves aside the role of the mother but agrees that the deportation of the wife could have an effect on Mr.
Carpenter’s right to provide those services. The ECJ, now, has to decide if it affected the FR. The ECJ interpreted
family right in a much broader way than ECHR could ever do.
In this way, they won a domestic case about immigration, also because UK was not part of the pillar about
immigration. Nonetheless, through this little trick, they managed to apply EU FRs to limit the discretion of the
MSs. This is very important because you might have procedural advantage when claiming a FR before the ECJ.
Primacy of direct effect means that, if they are applying EU law, even national courts can set aside national acts
without going up to the Constitutional Court.
There is a situation where you can invoke the national FRs + ECHR and this might be sufficient, but with no primacy.
If you manage to apply EU Fundamental Rights, the advantages are primacy and diffuse judicial review.
This means that the Charter has actually extended competences.

2 November 2021 <3

To give you another example of the application of fundamental rights to acts of the Member States when limiting
free movement there’s a case called ERT. In this case, there were some strict licensing rules in Greece that limited
the possibility of providers from out of state, to provide broadcasting services. The claimant argued that those
were limiting the free movement of goods and services, which was true; and when it was a matter for Greece to
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justify these rules, the claimants also argued the rules, since they fell within the scope of the Treaty, had to
respect the freedom of expression (ECHR ARTICLE 10)

Looking at whether the rules were proportionate, the national court was also instructed to check that those rules
complied with freedom of expression. The issue is that whenever you have the free movement of goods, services,
persons and capital and when a Member State does anything to limit that freedom, their fundamental rights as
well as charter rights apply; this means that the national court has to check the compatibility of the rules not only
with public policy, but also with fundamental rights. Because of this, a claimant by bringing themselves within the
umbrella of EU law they have a better chance to enforce their own fundamental rights, as it was with Carpenter.
Furthermore, the big advantage to claiming fundamental rights is because you have procedural advantages:
PRIMACY, the idea that EU law always takes precedence over national law; DIFFUSE JUDICIAL REVIEW, any
tribunal can decide that even a piece of legislation is not compatible with EU law and set it aside.

In the Italian context, if you are in Italy and want to claim that something is incompatible with the national
Constitution you need your national judge to refer it to the Constitutional Court, but if you manage to bring
yourself in the scope of EU law you can simply ask your judge to set aside conflicting legislation and directly apply
EU law.

In those cases of free movement, so when you apply national law, EU fundamental rights might have an
enhancing effect: meaning that the highest standard between national and EU law will prevail. In horizontal cases,
if you enhance someone’s right, the other party sees their right reduced. A good example of this is in the Viking
and Laval cases.

In Viking you had a shipping company deciding to reflag one of its vessels to Latvian nationality because the
labour standards were lower; the workers didn't think very kindly of this, since the freedom of movement was
used to lower the contractual standards applicable. The workers enter into an international labour dispute, and
instruct their members in other states not to enter into a contract with the company. The company claims that
the action was a limitation of their right to transfer from Sweden to another Member State (freedom of
establishment). The issue is that if you affirm that the right to strike of the workers wins, you are limiting the right
to relocate and viceversa.

VERTICAL SITUATION —> ENHANCING EFFECT

HORIZONTAL SITUATION —> SOMEONE’S RIGHT IS ENHANCED AND THE OTHER’S REDUCED; this balancing act is
relocated at european level, its for the CJ to decide which right takes precedence

The relationship between EU and ECHR

ECHR is not, so far, part of the EU law, but is used as a threshold of human rights respect.

The Council of Europe is not the EU; the ECHR as its main instrument of work, not of the EU. Moreover, the ECHR
meets in Strasburg while the ECJ meets in Luxemburg.

Nevertheless, all MSs must participate in the ECHR, and it is referred to as public law of Europe.

WHAT IF EU BREACHES ECHR?

The ECHR is supposed to be our safety net across Europe because all states cannot go below the protection of the
ECHR. Before you can go in front of the ECHR, you have to exhaust all domestic remedies. Is EU law creating a gap
in that safety net though?

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Because while exercising that discretion, the MS can do so according to the ECHR. The problem arises when the
MS has no discretion, since any relevant choice has been already made at EU level —> the breach is ascribable to
the EU, but the ECHR cannot review acts of the EU because it is not a part of the Convention of Human Rights.

What we are worried about is that by acting at the EU level we are depriving individuals of their safety net. The
first time we see a significant opening by the Court of Human Rights is in the case of Matthews.

Matthews was a person residing in Gibraltar (a territory of the UK, but Spain is not happy about it): in their
dealings it is decided that citizens resident in Gibraltar do not have a right to vote for the EU Parliament elections.
Matthews claims that her exclusion from voting is a violation of human rights, and goes in front of the ECHR. The
issue was the decision stemmed from a collective act from MSs taken at EU level.

THE UK claims they cannot change that law unilaterally, and would need 50 MS to change that rule; the ECHR
does not like it, and claims instead that all MS are in breach and that they need to find a way to grant Matthews
her right to vote.

Slowly and constantly the ECHR says that having adopted an act of EU law does not exonerate it from their
jurisdiction because it’s always the MS applying it. They say, we accept that the EU afford equivalent protection to
the one under ECHR but there are two cases where that is open to rebuttal:
● CJ DOES NOT HAVE JURISDICTION
● CASE PROTECTION MANIFESTLY DEFICIENT

BOSPHORUS CASE
It concerned a regulation that provided that MS had to seize assets if they were registered as belonging to one of
the former republics of Yugoslavia; this was an implementation of a UN Security Council resolution, a form of
targeted sanction.

Bosphorus is a Turkish company, who had nothing to do with the conflict, it leases a plane from a company that is
registered in Serbia; when the plane lands in Ireland the authorities seize it, because of the aforementioned
regulation; the Irish authorities had no discretion on the matter. Bosphorus goes in front of the Irish Court and
claims that the regulation violated its right to property; the national court sends the case to the ECJ, since it
concerns the validity of a regulation, who in turn says that is fine, even though it is a violation of the right to
property the public interest are of paramount importance (prevention of war).

Bosphorus goes in front of the ECHR, with the Irish authorities as defendant that claim that had nothing to do
with them since they only gave effect to the regulation and that the ECHR has no jurisdiction over it. The ECHR
admits that there is a doctrine of equivalent protection, they trust the EU and ECJ to protect fundamental rights
to the same standards as what they do in the context of the ECHR:

“If such equivalent protection is considered to be provided by the organisation, the presumption will be that a
State has not departed from the requirements of the Convention when it does no more than implement legal
obligations flowing from its membership of the organisation.

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But: “However, any presumption can be rebutted if, in the circumstances of a particular case, it is considered that
the protection of Convention rights was manifestly deficient. In such cases, the interest of international
cooperation would be outweighed by the Convention's role as a “constitutional instrument of European public
order” in the field of human rights.”

It is open to the claimant to demonstrate that in a particular case the protection afforded was manifestly
deficient.

OPINION 2/13
After the Treaty of Lisbon entered into force the EU started negotiating with the Council of Europe on the
modality of accession, made difficult by the fact that the convention of Human Rights was devised for states. An
agreement is found; before they ratify, they ask an opinion with the ECJ as to whether the accession is compatible
with the Treaties.

The ECJ says the trust agreement is incompatible with the Treaties because of institutional problems and the own
jurisdiction of the ECHR.

The Charter is always applicable! 1st guarantee of FRs for citizens!

The ECHR and the ECJ both mean to protect FRs, as a consequence the beginning of one’s
jurisdiction can be mistaken with the ending of the other ECJ is worried that (since EU participate
in ECHR) it would lose its jurisdiction over FRs.

3 November 2021

“The EU suffers from a major democratic deficit”. Do you agree with this statement? Illustrate your answer with
examples.

What would you consider? How do you think you would go about answering this?
The first thing you do is to try to understand the question.
In open questions there are a lot of ways to answer but think about if I’m asking about the democratic deficit
what do you need to define first? Democracy not general but how would you address and guarantee democracy
in the EU. What do you have to look at?
Democratic accountability. So, what would you be looking at in order to discuss democracy in the EU?
How the European institutions work, because is only when you define the role of each of the institutions that you
can actually answer the question, because how democracy is achieve or not depend very much on the
institutional framework.

So, you would start thinking about what is the institution’s task? Because of course if there is some criticism about
how democracy is ensured in the EU, then you need to tell what each institution does and how the institution is
elected. So which institution would we consider?
The European Parliament (directly elected every 5 years). What does the European Parliament do? Co-legislature
approval of Commission resignation and budget (lack of transnational political parties and accountability).
We have a parliament that is directly elected but there is this lack of transnational political party. The vote of
European citizens is determined by national, rather than European agenda.

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Also, the turnout of European elections is quite low in comparison to national elections.
We put these things in brackets to remember to mention that.
We are not writing yet we are just thinking about writing it.
On the one hand the European parliament has become the co-legislature but on the other hand there is this
problem of real accountability between citizens and parliamentarians.

What other institutions would we consider? The Council of ministers, which is made of representatives of
Member State’s at ministerial level (theory of indirect accountability). What does it do? Co-legislature.

What other institution would we consider? The European commission. How is it composed and selected? What
does it do? It has the power of legislature initiative, which is very unusually, because, even if nowadays most of
the legislation at national level origin from government and then goes to parliament but in theory parliaments do
have usually legislative initiative.

Then there is the European Council which role is concerned with political direction (no law-making powers).
Whether to include European council or not depends very much on how you want to structure your argument,
but you can put it with a question mark in your preliminary argumentation.

Then you have to think why there is a discussion about democratic deficit.
What about the council of ministers? There is a problem with the power of the council? There is the problem that
citizens do not participate directly, so we have the theory of indirect accountability.
What might be a real problem with the council of ministers? Voting procedures?
What the discussion is actually about on the democratic deficit? The European Commission (huge powers and not
much accountability), which does not work like a government. It is true that the parliament can force its
resignation, but it has main power. Look at the example of the recovery found. They are doing all by themselves.
It is true that the council has to approve it, but the powers are all in the commission.
European Council you could include it depends on where you are going with your essay but probably the
professor wouldn’t include it in this case.

These are the institutions and these are their problems so do I think is there a democratic deficit or not?
If you map out, then you write very easily. And then you know exactly where you are going.
Then you have to tell how do we secure in theory democracy, and to do that, you have to tell what is the role of
the institutions, which are the. problems in terms of democratic accountability for each of the institutions. And
then you simply tell your opinion which it has been reasoned because you previously gave your reasons which
lead to answer the question.

Planning your answer

“The Treaty has established a complete system of legal remedies and procedures designed to ensure judicial
review of the legality of acts of the institutions”.
Do you agree? Illustrate your answer with examples from the case law.

What has to be circled or highlighted?

“A complete system of legal remedies” and “judicial review” because gives the key to answer the question. This is
the key to tell you what we are talking about. The articles in question are art.263 and art.267 (preliminary ruling
procedure) because it is asking to think about how this complete system is ensured. And we know that is ensured
in the Eu in two ways: first, by means of direct actions by article 263 and, secondly, by means of preliminary
ruling.

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If you identify immediately which is your field, then you will unravel the question very quickly.
This time professor asked to give examples from case law, so which are the most relevant examples about judicial
review? Plaumann, UPA and Inuit. Also, something happened in Lisbon, so between UPA and Inuit we put Lisbon
reform.

We need exactly what we need to mention, we do know less or more the order and so we can answer the
question.
You would say you have a system of judicial review, plus, the court has said it can. be used also. art.267 as aa
preliminary ruling but. there are problems, and then you go analyze the problems (Plaumann, very narrow
interpretation; UPA brings that to ???; treaty of. Lisbon changes that but Inuit really makes that change very
narrow), but we have the rule of the. preliminary ruling procedure).
You go to answer it all in the same way. There must be some discussion on the matter that will be asked because
otherwise they wouldn’t asked us.
You must think about the case immediately. If you don’t include the case, you have not answered to the question
asked. Doesn’t matter if we don’t remember the name, it is sufficient to identify them in a different way.

So, to structure our argument we have to think about:

Is it true that we have a complete system of judicial review?
How is judicial review ensured in the EU legal system?
Is this system complete?
What are the gaps (if any) in judicial protection & judicial review?
What could be the possible solutions?
And which examples will you really upon? Remember: case law
What is your opinion?

Problem question
Remember, the IRAC structure: you identify the issue, you identify the rules, you apply the rules to the problem
question given and you write your conclusion.

First of all, immediately think what area identify what area we are talking about. Direct effect and state liability.
The first thing you write on your mapping are this two information. If you identify the area, you will recall more
information, included the cases.
Now, what we underline? “failed”. Do you remember why it is particularly important? Is an automatic sufficiently
serious breach of contract. If you don’t implement, then it is a sufficient seriously breach (Dillenkofer case).

What is the next thing you underline? The fact that time limit has expire is obvious because it is a directive made
in 2000.
“Equal treatment” and “racial or ethnic origin” because you need to remember what the directive is about
because that would be the content of your right and is relevant also for direct effect and Francovich liability.
Where do we go from there? What is the next element to circle? “University of Copenhagen” adding that is
vertical effect, sometimes you have to argue why it is a vertical or horizontal, here is quite obvious because even
if we have a private university, it will be an emanation of the state because we have special powers.
What else do we circle? “two months”, the time barred.
Is directly effective this directive? What is the test for direct effect? In this case she can rely on the directive, so it
is not necessary to talk about the articles of the Charter.

So, what the question is telling you? Because remember, who decide this procedure? National law, the question is
telling you that national law sets two months’ time limits for this action.
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Remember that directives have direct effect only if time limit has expired.
First of all, we go and look at whether we have a right sufficiently precise and unconditional, because otherwise
we wouldn’t be able to rely on the directive’s direct effect. Secondly, we look at whether the situation is vertical
or horizontal. This looks like a vertical situation because according to the Court in British (?) we have a vertical
situation when there is an emanation of the state, any authority linked to the state or any authority that has
special powers.
Marshall case established that directives have only vertical direct effect, so it’s relevant and to say that there is
not horizontal direct effect.

Now, what is the next thing that we have to look at? The time limit. We have two principles: effectiveness and
equality. If you want to challenge a time limit this is always subject to two principles: equality and effectiveness.
The only way she could overcome this two-months’ time limit is if she can demonstrate or argue that either her
claim is treated less well because is a claim on powder on European law rather than national law (equality) or that
procedural rule is such ad to deprive the EU law right of effectiveness. If neither is satisfied, then we do not have a
direct effect claim.
Say she was time barred, what the advice then? She could go for Francovich damages. What are the conditions for
Francovich damages? Whether you have a right that can be identified by the provision of EU law, a sufficient
serious breach and a causal link between the breach and the damage.
If you have this scheme in your mind, then you do not forget it.
In this case we can identify the right, we have a sufficiently serious breach because we have no transposition,
which is an automatic serious breach of the EU law. Do we have a link of causation? This is left to national law
which is subject to effectiveness and equality.

Now, what about Kim? What do we underline here? Kim is a “private firm”, is “Asian” and. it discovers an internal
memo. It is an horizontal situation.
No direct effect (Marshall). Any case would be authority for that, but the best case is Marshall. When you don’t
have vertical direct effect there are other things you can do before starting to consider Francovich damages. You
have duty of consistent interpretation and the Charter as potential ways of going around. Why do we consider the
charter? Because equal treatment is protected there and we can apply the Charter because we are within the
scope of the directive, and there is a crucial thing about the Charter rights: Charter rights can be horizontal
applicable (Max Planck); So, Kim being a private employer cannot rely on the directive but can rely on the article
21 of the charter because I fall within the scope of the directive therefore the charter applies (can have horizontal
direct effect) and therefore I rely on article 21 to enforce my right to equal treatment. If we were considering
indirect effect, what would we be looking at?
What are the conditions for the duty of consistent interpretation?
Here the real problem is whether there is any link of causation because we do not know whether the internal
memo was the reason why If I get to get promoted but we don’t worry about that because we set the test and
then if we are not given enough information to conclude in the way for sure doesn’t matter because we have set
the test of what we should consider in order to do that.

The idea is that the Charter always applies also when member states have implemented EU law. What the Court
said in Max Planck is that it does not mean that it only applies to member states, but it applies when member
states are implementing it. In this case the right falls within the scope of EU law and the charter can apply and can
apply also horizontally.

When the directive details the right in detail the court will look at the directive to determine what is the right in
the charter.

Problem Question

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Let’s start with the usual mapping from the beginning. Let’s highlight the important words. “Regulation (1/2021)”,
“legislative”, “general implementing”, “Directive”, “special aid”.
We have to look at the time limit. What is the time limit before when you can bring an action? Two months.
Obviously, we don’t have. The situation is not time barred. Assuming the situation is not time barred, we look at
the non-privileged applicant and we know we have very stringent rules for MPAs in order to establish standings.
What does the treaty say? This is an act of general application, is a regulation, so it is not addressed to the
applicant, so we do not need to prove individual concern (this has to be done in the case of non-regulatory acts –
those acts that have not been adopted through a legislative procedure). To challenge the regulation Nigel need to
prove both direct and individual concern. In the case of the directive (adopted by the commission)
A regulatory act has to be self-executed and self-implemented in order to eliminate the need for individual
concern.
If is self-executing only direct concern.
The directive is enacted and adopted not through a legislative procedure so is a regulatory act and you have to
decide if it is self-executing or not. Self-executing means that it doesn’t need to be implemented. Why is that?
Because it can be implemented, you challenge the national implementation, you go before of the national court,
and you ask for a preliminary reference.
That’s the rationale that it needs to be self-executing: it is not out of EU it is because if it is not self-executing you
just have the national rule.

In this case the directive isn’t self-executing because directive needs to be implemented, regulations not. And so,
if It need implementation you are back to direct and induvial concern test.
You look at the act: a regulatory act, then you look. if it is self-executing or not: if it is you only. have to
demonstrate direct concern, so the absence of discretion upon any other authority, but if it is not, you go back to
the normal procedure which is direct and individual concern.
If the authority had discretion, you could attack the way the. discretion has been exercised.
So, we have to prove direct concern (here we do not have many details but there could be maybe because the
commission has decided the special aid.
Individual concern is the Plaumann test, so you must be affected in an individual way as a close class of applicant.
Everything said applies the same way to the regulation even more since regulation so there wouldn’t be even
direct concern, because is the commission that is exercising that decision, so in the case of directive there could
be direct concern, but it surely doesn’t have individual concern, while in the case of regulation he has neither
individual concern nor direct concern.

What else could Nigel do? Preliminary ruling arguing. Attacks the national act (implementation), asks for
preliminary reference, and argues that the legislation goes beyond the powers of the EU.

How would our answer be different if it were the Eu Parliament challenging this?
Standing doesn’t need to demonstrate the privileged applicants so you would check the time limits has not
expired and then the ground for attacking the measure.

4 November 2021

Substantive part of EU law

We start with citizenship. How does it work? At the beginning we only had economic free movement provisions,
which means people were able to move around the EEC as workers, service providers. So, there was this
connection between economic activity and movement, and this was interpreted very broadly by the European

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Court of Justice, so as to encompass also people that received services, like tourists, and this allowed for the free
movement also of those who were passively economically acting.

Art 45 TFEU provides for the free movement of workers, it provides that people can move from one Member
State to the other in order to work, seek work and reside in a MS and work in another one, what frontier worker
does.
Art 49 TFEU: free movement of establishment, it is when you go and exercise an economic activity as a self-
employed.
Art 56 TFEU: free movement of services, when you go and provide a service in another MS.

The free movement of workers in the original Treaties was revolutionary because States are always very jealous
of their employment market, and in the original treaties the free movement of workers was introduced also
under the pressure of Italy, because Italy had high unemployment, and people went to work in other countries. In
part the rationale for including the free movement of workers was economic, it was justified by an economic
rationale. The idea was if you have a State that has high unemployment and a State that needs workers it is much
more efficient to let these workers circulate without putting barriers. Actually the economic rationale [in Prof’s
opinion] was not the main rationale behind the free movement of workers, and from the beginning there was a
social rationale, and you can see that by the amount of rights that workers in EU law got from the beginning;
including rights of equal treatment in relation to almost everything, including welfare provisions, so if you move
and you work you are entitled in equal treatment in relation to the core of social welfare, income support,
housing support and so on.
Moreover, from the very beginning EU migrants were given generous rights to family reunification, which it
means that when a person moves there is the right to bring the family with him, it is very important because your
willingness to move is greatly reduced if you cannot bring your family.
The right to family reunification is much broader than the right to family reunification in certain Member States.

The court always gives very purposive teleological interpretation of the Treaties, it is very pro integration, and the
court through the years has always been pro individuals.
What the court did was to interpret these economic free movement provisions in a very broad way, crucially
including part time workers. This was important because part-time workers by nature might earn less than the
minimum salary, because they don’t work the full amount.
If you think of core benefits, that are those that ensure your survival, you have an income threshold (for example
reddito di cittadinanza). Once you include part timers in the notion of workers, you are allowing the EU worker to
be able to apply also for core benefits, a part timer might earn less than the minimum salary, so that inclusion
means that a sort of transnational solidarity is allowed, solidarity is extended to migrants.
The inclusion of tourist is also very important, because it is the only way you could protect those people who are
travelling around without being actively economically acting.

Rights in EU law until the 90s were still conditioned upon exercising an economic activity, so we see in the late 80s
and then throughout the 90s, even after the introduction of citizenship, a rich debate on the effect of EU law.
Especially this idea that EU law was giving rights to those who could work and could move, producing some
exclusionary effects, for instance people who were (and are, since it is still a problem) disabled and cannot work,
or for whatever reason could not work could be excluded from the main benefits of EU integration, and this led to
these economic free movement freedoms to be renamed as a sort of market citizenship (there is a left-wing
critique about the capitalist nature of the EU). Here in relation to people it was felt strongly that we were building
something that gave advantage only to few people.
What happened then is that in the 1990, the EEC introduced three directives, and for the first time a right to
reside in another MS is granted to non-economically active people, including students.
So we have the so-called “playboys directive”, the pensioners directive and the students directive.

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Those directives gave a right to reside in a Member State, but they were conditional upon possessing 1 sufficient
resource, and comprehensive Health Insurance.
The sufficient resources condition is why the general directive is called the playboys directive because it was given
residence rights only to those who could afford them.
Why those rights are conditioned? The main expenditure in any budget in Europe is related to health provision,
the Health Insurance makes sure that the State doesn't have to pay for your health and also make sure that you
don’t go from one Member State to another seeking the best health care without having contributed to it. Why
the sufficient resources condition? If your income is below a certain level, in many of the Member States you
would be able to claim some sort of income support. The sufficient resources make sure that you don’t go to live
in a MS and apply for those core benefit, because the condition would require a level that is equal or higher than
the income threshold.
These conditions were imposed so that citizens would not become an unreasonable burden on the finances of the
Member States.
What we see when we introduced these directives is a very limited right to move, because you could move only if
you could afford the health insurance. This continued the debate about market citizenship, they have improved
anything, what you have is rich people being able to move and people that can’t afford it not being able to move.
In the meantime, in 1992 there is the Treaty of Maastricht and the EEC changes radically, from EEC to a broader
project of the EU, we introduced this new concept of European citizenship. There was this idea that the
introduction of the European citizenship was a tool to make the citizen more invested in the European project. So
far, the European project was only (this is the left-wing critique) a capitalistic enterprise, it was for business, but
citizens were not at all invested. Therefore, we introduced the European citizenship to create possibly a sense of
belonging.
In 1992 a reflection was made and there was this idea that most people didn’t feel part of the European project,
so the most important part of the European project was actually not believed.
What changes with Maastricht, in article 20 TFUE, is that European citizenship is established, it is a positive right,
established by the Treaties.
Art 20 TFEU: “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”. It is a strong sentence, European citizenship is created but it is not replacive of national citizenship.
This is very important, first of all because we are not a federal state. Secondly, we are doing something unique,
when you think about citizenship you think in term of national state, it has never been done to create a
supranational citizenship, what does it mean to be a European citizenship? There are not many details about what
this means.
Art 20 at first establish citizenship and it then tells us the rights that the citizens will have. Those are the rights:
a) The right to move and reside freely within the territory of the Member States.
b) The right to vote and to stand as candidates in elections to the European Parliament and in municipal
elections in their Member State of residence, this is conceptually very important, at the same
conditions as nationals of that State.
c) The right to enjoy, in the territory of a third country in which the Member State of which they are
nationals is not represented, the protection of the diplomatic and consular authorities of any
Member State on the same conditions as the nationals of that State.
d) The right to petition the European Parliament, to apply to the European Ombudsman, and to address
the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply
in the same language.

The second right, to vote, is revolutionary it is, what you are doing is by means of an international treaty you are
determining the franchise in the MS, the right to vote and be elected passively, to be involved in the democratic
process. If you look at that provision, Art 20 2(b), the national parliament is missing, you can vote in the local
election, for the European parliament but not for the national parliament, what the MSs perceive as the core of
their democratic process, the national parliament, is actually not included.

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The other right we will look in detail is the right to move and reside in another Member State; you may think you
can go wherever you want but art. 20 (3) states “These rights shall be exercised in accordance with the conditions
and limits defined by the Treaties and by the measures adopted thereunder”, and this becomes where we have to
understand what EU citizenship is about.
What we have after union citizenship is introduced is that we don’t know what it is. We struggle in understanding
what it is because the very content of citizenship is routed on the nation State. If you try to explain what it means
you end up saying belonging to a community, what the union citizenship has done is that it allowed us to belong
to many levels (roman, Italian, European) not in competition with one another. Citizenship as a concept consists
in belonging to a community of reference, so what does it mean to introduce a supranational citizenship, not
linked to the territory of a nation state. The entire idea is very different.
Even looking just at the treaty text, in 1993 we start seeing scholars engaging with the treaty of Maastricht. The
main question is that art 20 is purely cosmetic? Just to make the European citizens belong, or something deeply
innovative? It is a question we still struggle with.
You should notice two things in the article, first of all the use of the word citizenship cannot be perceived in
national term, not after 30 years of very expansive case law of the ECJ. The second thing to consider is whether
this article and art 21, what you should look is whether the condition for direct effect are actually met by this
article. Which article provision are subject to direct effect? It has to confer rights, sufficiently clear precise and
unconditioned. Whether this provision is capable of accelerating or granting something will really depend on the
balancing between paragraph 2 and paragraph 3, where you put the equilibrium between these rights and
limitation and conditions provided.

We have case law, the treaty of Maastricht is of 1992, there is a case in 1996 in which citizenship is referred to as
an obiter, when you have case law you have some bits that are establishing the law, the interpretation of the law,
the obiter is not establishing EU law, something very important but do not form part of a precedent. We have an
obiter in 1996, but the first preliminary reference on citizenship in 1998, national courts really fast started
referring to the ECJ.
Martinez Sala case (85/96).
She is a woman, and she was a Spanish national living in Germany, she lived there pursuant to national law, not
European law, meaning that the only reason why she was not asked to leave Germany was because of a bilateral
treaty between Germany and Spain. She was living in Spain and applies for a child raising benefit, income support
by the State. When she applies for the benefit, it is denied on the grounds that even though she is present in
Spain she doesn't have a residence in Spain. The national court refers the case and there are two issues to be
decided:
1. whether she was a worker, indeed you retain your status of worker after you stop working for a certain
period of time. The first question was if she was a worker because she would have been entitled to equal
treatment in relation to welfare provision, so she would be entitled for this benefit.
2. whether, if she is not considered a worker, if as European citizen she has the right of equal treatment,
because there is a general equal treatment provision in the Treaty, art 18, that provides that within the scope
of the Treaty you shall have no discrimination on grounds of nationality. The question is whether the
introduction of union citizenship means that Ms Sala falls within the scope of the treaty (personal scope is
when you can rely on something) and therefore can claim a right for equal treatment in relation to the
benefit.
What the court answers is she is a union citizen, lawfully present in Germany, therefore she can claim the right of
equal treatment. There were some criticism, so far MSs never really cared who was in their territory but once you
impose a duty to provide benefits equal terms than their nationals, what happens is that they might start
checking who is within the territory, whereas before Sala MSs had no interest of checking who was in their
territory, there might be burocracy but as long as you don’t apply for residence nothing happen, once you impose
equal treatment in relation to welfare provision, what you are doing is encouraging MSs to start checking within
their territory, they might not want to pay for all these people.

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Grzelczyk case (184/99)
The second important case, French citizen who was in Belgium, a very good student who had always worked to
support himself. He was doing the degree in Belgium and in his last year he was told by the university to not work
because he would have not been able to do his dissertation required. So, he applies for the Minimex, which is a
benefit in Belgium that is there to support young people in the time between finishing their study and starting to
work, to allow that transition to happen. Firstly, he is given the Minimex but then they change their minds and
they want it back, what he claims is that this was discrimination on grounds of nationality. His claim was that if Ms
Sala was able to claim equal treatment, he also was a European citizen and should be able to claim his benefit in
relation to the Minimex.
Belgium said citizenship is subject to limits and conditions, it claims that the limits and conditions were in the
three directives we have seen before, the three 1990 directives. Which are the conditions for right to reside?
Sufficient resources and comprehensive health insurance, so that to not become an unreasonable burden on the
MS. The student’s directive included another condition that established that you are not entitled to scholarships
and grants if you are a student in another MS.
What Belgium argues is that limitations and conditions referred to in the art referred to the limits and conditions
of the three directives, therefore he had not the right to Minimex because it would mean he had no sufficient
resources and would become a burden.
The two arguments are both sound. The court says the following, “Union citizenship is destined to be the
fundamental status of nationals of the Member States enabling those who find themselves in the same situation
to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly
provided for.”, this will become an iconic sentence of the court.
After this very constitutional paragraph what the court does is trying to rebalance this principle with the actual
reality. What the Court does is to say: first of all you have to be legally resident, secondly the court admits and
acknowledges that the three directives are the limits and conditions indicated by art 20. Then it says the
residence directives refer to the need to not become an unreasonable burden, if they refer to the need to not
become an unreasonable burden, it means that the court states that there can be a reasonable burden. They
extend the solidarity, some welfare provision to citizens of other states, so you might be entitled to some welfare
provision. But if you become an unreasonable burden, the MS can terminate your residence because you don’t
fulfill the conditions established by the directives. Belgium claimed that according to the student directive he
could not get a scholarship or grant but the court claim this was not a scholarship but a benefit.
What you have is this sort of quite strange equilibrium, on the one hand what you have is a statement of principle
(if you are a citizen you are entitled to equal treatment), on the other hand the MS can terminate your residence,
which makes it very difficult for a citizen to decide whether to apply or not for a benefit, you might see that the
State terminate your residence and you have to go away.
This tension on how to reconcile these two elements, the very high-level rhetoric of citizenship with the reality of
national solidaristic communities. The EU does not have taxing powers, so it has not redistributive powers, some
of these now are there because of the recovery plan and the pandemic, but for the time being no taxation means
no redistribution and so you have to balance these two thing, high rhetoric, and reality. And the reality is benefits
are paid by the MSs through the resources of the MS.

Baumbast case (C-413/99)

There are lots of cases where the UK made a crucial mistake and led to massive constitutional developments in
the EU. In this case there was a German worker who went to live in UK, he got his first resident status as a worker.
Then his company failed and started working for a company that worked in China, therefore he was not protected
by art 45 because he was not working in the EU. He had a wife and children, he had never relied on benefits in his
life, he was a nice person. He applies for his residence permit, and it is denied. It is denied because, even though
he had sufficient resources and a health insurance, the latter is not comprehensive, because he was insured for
health expenditure in Germany, therefore, to get health treatment he should go back to Germany. What the UK
claimed is that if he needed an urgent treatment, they wouldn’t be able to bring him to Germany. He was denied
simply because he didn’t possess health emergency cover, he fulfilled all the other criteria in the directive. What

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he argued was that actually art 21, the right to move and reside freely in the EU, that he was protected by that,
art 21 had direct effect, even though he missed a bit of the conditions, his right to reside in the UK derived
directly from the treaty, because in the first two cases, the court had not said anything about the possibility of
article 21 to have direct effect or not. It only focused on the right for equal treatment.
Art 21 gives a right to free movement and residence subject to limitations and conditions provided by secondary
legislation. The court says has direct effect, so the right of Baumbast to reside comes directly from the treaty, it
no longer comes only from the directive, it comes from the treaty.
And the court restates that is true, the treaty does refer to limitations and conditions, and these are given by the
directives. Treaty rights and the directives give a limitation to treaty rights. But when a MS impose a limitation on
a right conferred by the treaty it has to respect the principle of proportionality, which means in this case that if
you limit my right to reside that is granted by the treaty, the UK has to respect the principle of proportionality to
respect that limitation. We are creating a space here, where we apply proportionality. So, in this case, the right to
stay to a person who has never applied for any welfare provision, who is reasonably wealthy, who has children in
education, a wife there, who has health insurance but just misses a little bit, is the limit proportionate? He gets
the right to reside.
Before citizenship you had to fulfil the conditions in the directives, either you did or you didn’t, very burocratic.
Either you had complete health insurance and sufficient resources, or you go home. Once you have the treaty
right you have a space between the black letter conditions where you apply the EU constitutional conditions.
After Baumbast even if you don’t fulfill the black letter conditions of complete health insurance and sufficient
resources you might still get the right to reside, if the denial of it could be disproportionate. This means imposing
in the national authority a duty to look at you as an individual, the time you are staying in a country, the longer
you are staying the more disproportionate it would be to take you out, you have to look if a person has family ties
in that country for the same reason. What the court is doing is recognizing that the treaty grants a right to stay,
that any limitation and condition has to be interpreted in a way that respects the constitutional principles of the
EU, and in this way it would include the principle of proportionality and fundamental rights, because those are the
constitutional principles of the EU, and there you really see citizenship acquiring a real potential.
What we struggle is to get what is the correct balance, between recognizing that citizenship has a transformative
potential and protecting the MSs from this idea of the unreasonable burden.

9 November 2021

Union citizenship is still a concept that is very difficult to define, and especially we see that the institutions as well
as the court struggle with this tension between the fact that our sense of belonging is very much rooted at the
national level with this idea of supranational constitution. And here the main issues are exactly how you define it,
so what Eu citizenship means: is it something that is capable of giving innovative rights to Eu citizens, or rather is
it purely cosmetic, just giving at Treaty level what was already granted by the free residency directive? We see
that the key is this relationship between the article 21 that refers to limitations and conditions and the limitations
provided for in secondary law, and the Court at the beginning- because it’s open to debate whether this is still
true now– gave a very constitutional reading of Union citizenship, because as we said last time it’s the very
wording of citizenship, the very (…?) of that … that actually is very resonant of new rights being acquired. And yet
we still struggle to conceptualize.
And what happens after Baumbast? Basically, at a certain stage, also because of the austerity imposed by the
British government in the wake of the crisis in 2008, we start seeing at Uk level some rhetoric- and it was rhetoric
because there was no evidence for it- about the fact that the British welfare state was acting as a pool factor, so
as an attraction for migrants from other Eu countries to come in the Uk. This was actually a claim that was not
evidenced at all and it’s anything we knew and we know that the Eu citizens who went to the Uk, and they were
many, went actually to work- we are seeing the problem of the undersupply of the market today.

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But there was this rhetoric which became more and more common after 2008, and when Mr Cameron wins
election unexpectedly, in the tory party manifesto he had included the promise to hold a referendum, and he
actually did not expect to have to deliver on that promise because he expected to be in a coalition with the
Libdems who had already vetoed the referendum. But he won the election and he then had to delivered on this
promise, and in that context he seeks to renegotiate the relationship between the Uk and the Eu, and part of this
renegotiation, this agreement actually centers on right to welfare provisions of migrant union citizens, and there
we can see this rhetoric becoming very common in the Uk but actually also in the continental Europe, on the fact
that the entire system- actually he was concerned whit workers- might have the effect of threatening the
domestic welfare state.
Why? Because of course the welfare state is entirely funded at national level: remember the European Union
does not have taxes-imposing power, what is called extraction powers, there is a lot of discussion about creating a
European tax to also pay for the recovery fund. But we have this situation in which it is perceived rather than at
the moment reality the fact that we have national welfare state and that Eu citizenship might threaten the
availability of this national welfare state because those are paid entirely by financial contributions as domestic
tax-pays. And if you remember we said this is the reason why in the first residency directives you found this
unreasonable burden idea and these conditions of sufficient resources- so that the citizen is not entitled to means
tested benefits, does benefits who are awarded only to people who cannot sustain themselves- and health
insurance. Because health expenditure is by far the biggest expenditure in the welfare state.
So, what we have in the wake of this expansive case law in the European Court of justice, but especially in my
opinion also as a result of the political debate in the Uk, is we start talking about and fearing this idea of welfare
tourism, this idea that you would have citizens who are so well informed that they could work in the commission,
because if you know exactly how the welfare system works in each member state and how eu law interacts with it
you really are an expert. But there is this fear, and it is a fear which is more emotional, it has to do really with how
we define who belongs to a certain community. This debate becomes a proxy, a way to manifest a certain anxiety
about losing control over who belongs to the community and who is out.

CONSOLIDATING UNION CITIZENSHIP? DIRECTIVE 2004/38

Ok so what happens next? We have three cases and starting in the early 2000 we have a new directives, the
directive 2004/ , which is an instrument you will have to be familiar with, and what the directive does is basically
tied up the field because we have lots of different instruments: we have the free residency directive, the directive
of public policy and public security, and so on and so forth, and it repeals lots of existing instruments and
consolidates them in one legal instrument, the directive 2004/38 , and the directive also seeks to codify the case
law as it was when the directive was written. So, the directive details who is entitled to reside in a member state
other than that of nationality, and be aware this directive only applies in the relationship between citizen and
host state, not in the relationship between the citizen and own state, the state of nationality.
It provides for the right to equal treatment, as well as the right to family reunification, so the family members
derive from you a right, from the fact that you have moved in another member state– remember those are the
rights that depend entirely on the rights of the main right holder. The directive also details who can be excluded
from the territory of the host state, so when a State can deny entry to a citizen, and when a State can kick them
out, when it can expel them. As I said, the directive itself does not apply to the member State of nationality,
although as we shall see it applies by analogy.
In The Brexit withdrawal agreement one of the main aims was to regulate the situation of Eu citizen sin the Uk
and of Uk citizens in Eu, and it makes lots of close reference to Directive 2004/38 in determining which are the
rights of British citizens, and it applies to anyone who has moved to the other territory before the end of
transition, which is 31 of December 2020. So, before 31 December 2020, even though by then Uk was already out
of the Eu anyone who had moved before that date was covered by the Withdrawal agreement.

PERSONAL SCOPE DIRECTIVE 2004/38

First of all, who does the directive apply to? Article 2 details who is protected by it, and the directive applies to
Union citizens and as we saw when we looked at article 20 all citizens of the member states are union citizens, so

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union citizenship is determined by reference to national law: once you are national citizen of a member state,
then you are a union citizen, and the court has clarified that it is only for the state to determine who are their
own citizens.

C-200/02 CHEN So, in the case of Chen, a Chinese person was well advised: she was pregnant, and being well
advised she went to give birth in Northern Ireland from China, she then moved with her baby to Wales, which is
one of the full constituent nations of Uk, and then she applied for residence permit as the carer of a Union citizen.
Why? Because according to the laws as they were at that time, and because of historical reasons, anyone who
was born in “the air of Ireland”, which means both in Ireland and in Northern Ireland, was entitled to Irish
citizenship. I think you can understand why: tt was to allow a certain sector of population, which identifies as Irish,
to actually claim Irish nationality. No other requirement was necessary at the time, so because her baby had been
born in Ireland her son was an Irish citizen.
When Ms. Chen applied to residency as the carer of a baby who was a union citizen, the Uk argued that actually
the Chen family had no link to Ireland, and therefore the Uk did not want to recognize the right pertaining to
union citizen to the Chen family. The court held restating previous case law, that it was not for the Uk to challenge
when and how Ireland gave citizenship to its own citizens, and giving that baby Chen was an Irish national, she
was an union citizen and entitled to the rights deriving from that status.
Now, whereas union citizenship does not interfere whit the decision to grant citizenship, it might affect the
possibility of the member states to withdraw citizenship, so to take away national citizenship from their citizens,
because when member states take away national citizenship, they are also taking away union citizenship.
This principle that it is only for the member states to decide who is their citizen has led in recent years to the
phenomenon of certain member states selling their citizenship: especially, Malt and Cyprus are now facing
intense scrutiny by the Eu Commission. Why? Because whereas before Union citizenship, maybe being Maltese or
Cypriot, was not so attractive, now it attracts a premium, because if you are a Eu citizen you have all the Eu rights,
such as the free movement right and the right to establish a business wherever you want, and so we have this
phenomenon of small countries selling their citizenship even very cheaply. What we are seeing is a number of
people who are not necessarily all desireable, who come as citizens, and one of the main problems is that there is
lots of money loundering, which means “riciclaggio di denaro”.
Now what is very interesting, even if we will not see it because it is not yet, is the Commission is thinking about
starting infringement procedure against Cyprus and especially Malta, but it is not clear on which basis.

WHEN DOES THE DIRECTIVE APPLY? EU CITIZENS AS “MIGRANTS”

Article 3 shows you what is the material scope of application of the directive, which as I said only applies to the
extent to which the migrant is using the directive, relying on the directive for a member state other than that of
nationality, and the reason for this is the primary aim of the directive is to codify the right to reside, but as you
might not know is inherent in national citizenship that you always have right to reside in your own state, this is a
principle of international law.
The court has also held that the reason for moving from one member states to the other are immaterial to the
enjoyment of the rights conferred by the treaty and the directive, in the case of – this is very important because
we know that in certain cases citizens move from one member state to the other just to benefit from the family
reunification, because the family reunification regime is more extensive in Eu law than it is in certain member
states- Uk when it was a member and Denmark for instance. So, the court then found whereas article 3 tells the
directive does not apply to the member state of nationality some of the rights in the directive apply in cases of
circular migration, and circular migration arises when a person goes to another member state and then comes
back to the member state of origin having exercised free movement right.
This said, the directive does not apply in purely internal situation, when there is no cross border element. Why?
Because Eu free movement law by nature only applies when there is a border being crossed, either physically in
the case of the individuals or either telematically for instance, in the case of services.

SURINDER SINGH C-370/90

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Ok, so why do we also protect circular migrants? This stands from a case now very old, which set the principle:
the Suridner Singh case. The issue related to a British Indian couple that had moved to Germany and then was
coming back later to the Uk, the wife was British, the husband was Indian. When the couple returned from
Germany to The Uk the uk refused to give mister Singh the right to reside on the grounds that in the Uk opinion
the treaty did not apply to its own nationals coming back to the Uk. So the view of the Uk was that the treaty was
to protect foreigners, not own nationals.
The court found that the treaty applied, and now this is article 20-21, to the British citizens, so to the wife, when
she came back to the Uk, and because it applied to her she had the same rights as a non-uk Eu national would
have had, and the way the court reasoned in order to extend the application of the treaty to circular migrants was
that if the treaty did not apply the migrants or the all citizens might be deterred- this is very important also about
workers- to go in another member states if in coming back they did not have the same rights as those enjoyed by
thei European peers.
So the court states A national of a member state might be deterred from leaving his country of origin, if on
returning to the member state of which is a national, the condition of his entry and residency were not at least
equivalent to those which he qould have enjoyed under the Treaty or secondary law in the territory of another
Member State.
He would in particular be deterred from so doing if his spouse and children were not also permitted to enter
and reside in the territory of his Member State of origin under conditions at least equivalent to those granted
them by Community law in the territory of another Member State.
This is a teleological-functionalist reasoning that the court adopts throughout the free movement provision, it is in
part flawed and in part correct: it is flawed because it presupposes the individual as a perfect rational actor that
makes decisions based on an extensive knowledge of the law and consequences, but it is correct because it is
inherent in the idea of free movement that as you are able to go to another member state you should be able to
come back to you own member state and not suffer from having moved.
So remember that whereas in theory directive 2004/38 only applies when you are litigating with a member state
which is not that of nationality, the same rights as are conferred by that directive apply to you when you are
coming back to your own member state by virtue of the treaty rather than the directive, but the court has
basically given exactly the same rights to circular migrants and Eu migrants.

RIGHTS OF UC AND FM
Basically, when I came back to Italy with my family I was fully protected as if I were a French person coming to
Italy with my family, this means that if I were married my spouse and my children derive from me a right to reside
and Italy would not be able to impose me stricter conditions.
What are the rights detailed in the directive? -remember the directive itself does not confer right, it simply details
rights because those rights derive directly from the treaty, first from economic free movement provisions and
then we have citizenship as well. So first of all, obviously it is inherent in the right to free movement that you have
a right to entry and exit and you have no need for visas, and by the way this was really revolutionary. Now for the
first time in our history we saw this right being severely limited with covid, it is the first time in the history of Eu
that we see the borders closed. Those restrictions and the green pass could be justified due to health.

The family members of the Eu citizen also have a right to entry and exit directly derived from the exercise of the
right of the main right holder, with the provision that third countries nationals, so family members who are not Eu
citizens, might need a visa that is provided by national law, but crucially they have a right to obtain that visa: in
visas there is always a discretionary element, you could be excluded from a country you, while if you are a family
member of a Eu citizen you have a right to get the visa, it is no longer discretionary, and the only reason to deny it
is on public policy or public security reasons, for instance if you are a terrorist.
The directive as we said regulates also the right to reside and the right to , and in doing so the directive 2004/38
codified in part the case law the Eu court of justice adopts an incremental approach, which means the longer you
stay in the host country, the more integrated you become, the more extensive rights will you benefit from, and
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this approach is seen in the fact that we have three different types of residence: is the short term residence, up to
three months, in article 6, the medium term residence, provided for in article 7, which goes from 3 months to 5
years, and the right to permanent residence once you have resided in the host state for at least five years.
Three types of residence:

• Short-term (≤3 months) – Art. 6

• Medium-term (> 3 months and < 5 years) – Art. 7
• Permanent (after 5 years) – Art. 16

SHORT TERM RESIDENCE- ART. 6

Ok, short term residence is what you would have experienced when you travel around the Eu, is what we have for
instance when we go to another member states to benefit from being tourist or to benefit from a certain service,
such as medical treatment, this is the short term residence: it is up to three months, and crucially it has no
condition attached, so as you will have seen when you travel for the first three months you do not have to do
anything, you can just go to another member state.
If you have already joined the right to short term residence, your residence can be terminated only if you become
an unreasonable burden, which we have already seen. But expulsion, so that the State asks you to leave, can
never be an automatic consequence of recourse to social assistance, and this is the principle of proportionality
codified. What does it mean? You can go wherever you want, but basically you do not have the right to equal
treatment in relation to social welfare, but if you need something small that cannot be a lead automatically to
your expulsion, but if you become a unreasonable burden you can be expelled.
Job seekers that are those who go to another member states for work fall within the concept of short term
residence for the first three months of their stay, and then are further protected for any additional period insofar
as they are still looking for a job and not a general chance of finding one by the article 14 of the same directive.
Now the reason why the right to short term residence is not subject to conditions is because on the flipside the
host member state has very limited duties in relation to short term residence, and crucially it is not obliged to
confer equal treatment in relation to social assistance. So remember what we said just few minutes ago: we want
to shelter the welfare states from undue claims and here the idea is that if you have gone to another member
states for less than three months you have not really established any link with that community and therefore you
cannot become an active claimant. You would still be protected by other provisions, think about the right to equal
treatment for instance in relation to entry in museums whereby you pay the same as the own nationals.
So this is the easy one: you can come and do whatever you want and we have no problem if you come back, but
you cannot ask for social assistance.

MEDIUM TERM RESIDENCE- ART.7

The right to medium term residence is that which basically reproduces what were the conditions already present
in the treaty and the residency directive: so if you want to stay more than three months your residency rights are
conditional upon meeting certain criteria, and if you don’t meet those criteria you fall altogether outside the
scope of the protection conferred by the directive. Your right to reside is conditional either upon being
economically active, which means either a worker or a self-employ, and worker means also part time worker, if
you are economically active in the context of the Eu free movement law you really have extensive rights, the only
conditions is your activity and you benefit from full equal treatment in relation to almost all matters included
crucially entitlement for welfare provision. Ok? So remember: if you want to move to another member State,
even if you would rather do nothing and settle there, it is much better for you if you exercise an economic activity
even part time, because then your rights are automatic, you don’t have to meet any other requirement.
And then – what we already know having done the residency directive and the case law- your right to reside
might arise out of being economically independent, so being a pensioner or a wealthy, or a student, that’s why
you can go studying in another member state without having to prove much. In those cases, so if you are not
economically active, we see that again as it was the case free citizenship, the union citizen needs to have
sufficient resources and comprehensive health insurance, and this applies also to students. If the Eu citizen

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complies with these two requirements then they have a right to reside legally in the host state conferred by the
treaty and the directive.
Ok? This is what we saw before and is repeated in directive 2004/38. Now in the case of pensioners the
comprehensive health insurance is provided by the member state of last affiliation, through another instrument
of Eu law, which is social security coordination, regulation 883/2004. Why do you think that’s very important? So
your pension follows you, and this is very important by the way, because if you go on retirement in a third
country your pension might not follow you at all, which is one of the biggest scums against migrants who might
want to go back to their state of origin, and it’s conditional upon an agreement, but also your pension might not
be indexed, so if your pension grows with the inflation sometimes it is not extended to those who are not
resident.
But why is this fact that pensioners get comprehensive health insurance from social security coordination so
important? Because pensioners would not be able to afford health insurance otherwise. Remember that first of
all some risks are not included, so pre-existing conditions: when you are older you are more likely to develop
certain conditions. Secondly certain conditions are altogether excluded from commercial insurance. And thirdly
health insurance are incredibly expensive and the prize of you insurance gets vertically the more you are aged.
This is a really important factor in the Brexit when we thought maybe we wouldn’t have a deal, because actually
we have a lot of British pensioners living in Spain or in France, and if the agreement had not provided for the
continuation of the social security coordination all these people who are settled in the Eu would have had to go
back to the Uk, because they would not have been able to buy insurance on the private market.
So for pensioners to ensure that the rights could actually be enjoyed there is social security coordination, so that
if you go to France and then you need health care then that member state provides the care for you and then bills
the member state of origin. This is what happens with European health insurance card, if you have it you go to
another member State you have an accident, Italy pays for your assistance, because if not you right to free
movement would not be effective.
In the case of students, this double requirement is also present. Student going to study abroad also in theory have
the need to demonstrate sufficient resources, but it is much a lighter burden, so you just need to demonstrate the
authority you have enough money, and in theory you need comprehensive health insurance even if lots of
students don’t event know of this requirement. Lots of students really come and go because they don’t think
about health insurance.
Now the existence of this condition is a big factor for citizens caught in the Brexit mess, because there is a small
minority of six millions an half citizens who were either in Europe or in the Uk without actually meeting this
requirement and sometimes they didn’t even know of this condition, and this is interesting because what we saw
is that the rhetoric of union citizenship work a bit too well, so that people thought they could have just go and
choose were to live not knowing that certain conditions were attached.
Students don’t actually cost much, their cost, which derives from the interpretation of the Court of Justice, is to
give the same fees to own citizens and Eu students, but other than that actually you don’t have a real cost for
students, they really are actually a good engine for the local economy. It is a different type of migration from the
others, and the conditions are lighter for students because there is also the element that otherwise you would
confer the benefits of the free movement for students only to those who are very wealthy.

ECONOMICALLY INDEPENDENT
So the idea of comprehensive health insurance and sufficient resources is the idea to balance the right to move
and the protection of national welfare state.
Ok so you have this, you know, on the one hand we want to give the right to live wherever we want in the Eu, but
on the other hand we limit that to those who will not become an unreasonable burden on the host welfare state.
Of course these are treaty derived rights, so the interpretation of the conditions must be compatible of this idea
of enhancing free movement, and for this reason the court has held that the sufficient resources can be provided
also by a third party: this might be the mother in the Chen case, it was the partner in the commission against
Belgium, and the court also clarifies that resources acquired through irregular work also qualifies sufficient
resources.

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CASE C-93/18 BAJRATARI This was a very interesting case because it related to Albanian parents of children
who are again Irish nationals, but this time the situation was absolutely genuine, and the parents did not have a
work, and yet Mr. Bajratari was working, so irregular work, was even paying taxes and contributions, and when he
applied for residence permit as the carer of a Eu citizen the British authority said no, because they did not take
into account those resources that are gained through irregular work. And the court found that actually the
condition of sufficient resources had to be interpreted having regard to the principle of proportionality, and
therefore also resources obtained through irregular work could count toward the sufficient resources.
Can you imagine why this was a delicate case? The danger was to also think about the proceeds of crime for those
who qualifies sufficient resources or not. So the advocate general was very careful in distinguishing this case
relying on the fact that it was irregular but still lawful, for the potential for opening to also claims to people who
actually obtain resources through the proceeds of crime.

FEARING THE MIGRANT UNION CITIZEN? THE “GOOD” AND THE “BAD” UNION CITIZEN…
But what you see in the case law following especially 2008 especially following 2008, so the big financial crisis, is
that we have this rhetoric of the benefit tourism, even if we have no elements: the commission has commissioned
reports and we found no evidence for benefit tourism, also because to leave your country and your network of
support just to go and claim on benefits that are not very high in any member state is not necessary, not
attractive. But we have this narrative and somehow it manages to remain also in the court of justice, in the case
law, as we shall see in a minute. And we start seeing after 2008 this idea of good Eu citizen vis a vis the bad Eu
citizens, and this was particularly evident in the case of Duno, which actually changes quite a lot in the
interpretation of Eu citizenship provision.

CASE C333/13 DUNO

Now, Miss Duno was a Romanian citizen who was living in Germany with her sister, she had a child and she
applied for some child caring support in Germany. So she applies for the benefit and the national court refers the
case to the ECJ inquiring whether she was lawfully resident pursuant the directive 2004/38, secondly whether, if
that is not the case, she was entitled to general equal treatment provision pursuant article 18 of the treaty. So,
the court is asking if the directive 2004/38 applies and then she has a right to reside, or if she doesn’t whether
they can use the free movement article 21 to get what article 18 of the TFEU says, which provides for the general
equal treatment, and therefore if they have to give her the benefit.
First of all, was she protected by directive 2004/38: was she lawfully resident pursuant article 7? Because if she
was she would be entitled by article 24 of the same directive to equal treatment. And secondly, if she is not
protected by the directive is she protected by article 21 on free movement and article 18 of the TFEU which
provides for equal treatment in all matters of the treaty?
Do you remember Baumbas we saw last week? If the court had restated the Baumbas case law, it would have
found that the directive is the floor, the treaty is the ceiling, proportionality applies in between. The court would
have looked at whether she met the conditions of directive 2004/38. If not, in any event the court would have
looked at her personal circumstances, to determine whether proportionality met that she had a right to reside
and possibly a right to equal treatment. In practice, this would have not changed much, because she would have
not got the benefit, the denial to benefit would have not looked disproportionate to what the situation was.

Instead- you will have to read this ruling- what the court does is something new, and basically what it says is you
have to go and look at whether she has sufficient resources and comprehensive health insurance, even if it was
not an issue in this case: if she has not sufficient resources, then she was not covered by the article 7 of the
directive, and the court says that she falls outside the scope of Eu law, and article 18 of the Treaty does not apply
because it is lex generalis in comparison to the article 24 of the directive, and so she does not meet the condition,
she falls outside the scope of article 7 and then 24, and she also falls out the scope of the treaty.
So why is this case so important? This is the first time the court referred to benefit tourism, even if there was no
evidence for it and it was even open to debate whether she had no sufficient resources. From a legal view point,
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do you remember that we saw that Baumbas gives you this space in which you could exist and demonstrate that
you had a right to stay because it would be disproportionate not to allow you? While here the court is just saying
either IN or OUT: either you meet the conditions of sufficient resources and comprehensive health insurance, or
you are outside of the scope of the Eu law, and it also takes away the fundamental rights (…?).
The court does not tell us what is the relationship between Baumbas and Dano, as you shall see next only in one
case the court explicitly overruled itself, while in this case it doesn’t say what it has done: in Dano, the court does
not tell us if it is overruling itself. Do you know what overruling means? In a case law-based system, you have a
precedential system and the previous cases actually are considered binding, unless the court explicitly or
implicitly overrules itself, and if it does it implicitly is not so clear, because the facts are always different the
extent to which they are overruled.
And then the question is whether Baumbas still applies, and in my opinion it applies not to welfare but to the
conditions of residence, or if Baumbas has been overruled, and whether now we have gone back pre-citizenship,
so that either you meet the requirement or you don’t.
Now this case is also very important and very problematic in relation to Brexit citizens, because anyone who was
resident in the Uk- and they are not numbers, they are people- either they demonstrate that they have sufficient
resources and comprehensive health insurance, which is a very expensive condition to meet, or they all
altogether out, and once you are out the withdrawal agreement you become a third country national and you
have no rights in the Eu law. Actually Some of us were hoping that the court overruled Duno before the 31 st of
December 2020 to avoid the danger of people just falling losing everything overnight because they were possibly
not aware or not rich enough to meet this condition. Unfortunately this was not the case and they didn’t overrule
it.

QUESTION: Say we were in Baumbast situation. You have Maria who has been leaving Uk for 10 years, she never
had comprehensive health insurance, she was even not aware of the need to have it. When you go and apply for
your status that is conferred by the withdrawal agreement, the Uk can ask you to demonstrate that you have the
health isnurace. Under Baumbas this condition would have to be looked at in the context of proportionality: if you
have family, if you have been there for much time, and then you may get some protection. Under Duno, either
you have it or not, and this is very punitive for Brexit citizens, because if you don’t get you status under the
withdrawal agreement literally you become a third country national, so you become from a privileged migrant an
unlawful migrant.

10 November 2021

Remember yesterday we stopped at Dano, because it changed the rules of Baumbast, this created a bit of
economically independent trap, in theory if you go to see the directive you have article 7 and 24, and those who
resided to economically independent and sufficient resources and comprehensive health insurance are not excluded
of the right of equal treatment.
How does it work in practice? We create a small practice, we have the right of equal treatment available to the
independent citizens, but because the independent citizens don’t satisfy the conditions of health insurance, they are
di facto excluded from equal treatment in relation to welfare provisions and core benefits, benefits set at a level
whereby if you earn less or have less resources you wouldn’t survive.
So in theory you have the right to equal treatment also in relation to welfare benefits, but because are means-tested
so, if you apply for those benefits it means you don’t have enough resources and therefore your right to resign can
be terminated.
If you live in Italy and you want the reddito di cittadinanza (about 700 euros),in theory if you have less you would
be able to apply for the reddito di cittadinanza, so if you earn less than 700 euros a month you can apply for this

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welfare benefit , but by applying you show the authorities that you don’t have 700 euros a month that you require
to be able to establish the right to resign.
This becomes clear in Dano, where the court said, if you don’t have resources it means that you don’t satisfy the
conditions in the directive, if you don’t satisfy the conditions in the directive, you are not caught by the directive,
you are not under the umbrella of the directive, therefore you can’t even apply article 24. So you have a double trap
- If you establish your residence right and then you apply for a huge amount of money the state says that you
don’t have your residence anymore because you don’t fulfill the conditions
- If you apply before demonstrating that you fulfill the conditions, then if you don’t fulfil article 24 doesn’t
apply to you and you don’t have equal treatment.

Citizenship was the problem of European union. It’s not true because, it is almost impossible to get welfare
benefit from the member state if you are economically inactive.
What you might have is a bit, what you have is that if you miss a bit you might be able to adjust that bit, but if you
need an emergency support you won’t get it because it takes months to establish eligibility for a welfare benefit.
So basically either you don’t satisfy the conditions in the beginning art.24 doesn’t apply, or you satisfy the
conditions.
It is true that article 24 is not automatic, and you can’t say that you applied for the benefits and meet or not the
conditions. When the state terminates residence because you have become an unreasonable burden or no longer
fulfill the conditions, then all the procedural protection will apply also to does circumstances.
Article 24 (2) imposes to two limitations of the right of equal treatment: one is for work seekers, who are not
eligible for welfare benefits: work seekers for the first 3 months when they go in another member state they bring
their income support from their state of origin. Students are covered by the principle of equal treatment in relation
to fees, but not in relation to maintenance grounds.
Bit confusion post citizenship before the directive about what was going on, now it is establish that as a student and
partially because students are very high-mobility, this would create real imbalances especially for countries that are
English speaking (Ireland, UK, Netherlands have a higher inflations of students). So the maintenance are not
available on equal treatment of students unless you are son/daughter of a worker.

Question Michele: is like making the right to equal treatment incompatible with the right to reside? Is more that
you make the right to reside unconditional so that actually the citizen who is not economically active simply can’t
access most of the welfare provisions.

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On students because you don’t have a right to maintenance aid from the host state, then the court developed case
law to entitle students to bring the maintenance aid they had at home to the other state. You remain with the
responsibility of the member state, but you move your grant as you move yourself.

Welfare benefits remain anchored to the idea of national welfare communities, and it takes a long time before
citizens can become part of that welfare community, that happens when and if they become permanent residents,
when do they become permanent residence? After 5 years of lawful residence, the union citizen becomes a
permanent resident of the host country and this means that there’s no need to satisfy any requirements for
residency.
Ziolkowski which was a polish case about whether residence before the acceptance of polish counted or not, the
court clarified that it is only residence pursuant to art.7 directive 2004/38 that counts and not residence which has
occurred as a result of national law.
Example: it means in order to get permanent residence under the directive you need to demonstrate that you have
been economically active continuously for 5 years or that you had comprehensive health insurance and sufficient
resources for 5 years, if in the other hand you had residence but for instance you married a citizen of that country,
in many countries if you marry you obtain the residence of the country of the person who you married (including
Italy). If for instance a French citizen married an Italian citizen and has got his residence right through Italian law
and not through establish comprehensive health insurance and sufficient resources of economic activity , the
French has no rights under the directive.
This is a problem under the Brexit context, who do you think is more likely in the family context not to be
economically active or independent?
The carer of children of elderly are women for statics. Think about the British citizens in the EU or the EU citizen
in the UK, example of the teacher experience: I’m in England Simon is English Brexit happens, married I have
paused my carrer for caring the children, Brexit happens and I have no rights of the withdrawal agreement because
I’m not coverd by art.7 and art.16 because of an interpretation of the court that decided that residence according to
national law doesn’t entitle you to an EU law right permanent residency and this creates a small trap.

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In the context of Brexit we now know that there is a gender dimension to what we have negotiated because we
know that statistically more women then men are likely to be in that situation.
We also know there is a disability situation, because the carer of disable people are also covered by the prohibition
on discrimination in grounds of disability, but carers are usually women.

Now why is important to be a permanent residence in EU law? It is because pursuant to directive 28/2004 once you
are permanent residence you don’t have to fulfill the obligation and can have right to equal treatment.
We have this incremental approach, the longer you stay the more you become part of the society you are in, so the
decision was made, and this was in line with the legislation all across Europe , that after 5 years you are
sufficiently integrated in this host-communities to became a member of that community without proving anything
anymore and because of that you enjoy a full right to equal treatment in relation of all welfare benefit.

You can lose permanent residency, because is a condition granted because of your link with the imposed society,
you might interrupt that link if you go away.
There are some exceptions, if you go away for more than two years consecutively you lose your right to permanent
residency . In Normal circumstances that doesn’t mean much because you can always go back.
In the context of Brexit once you lose it you have lost it forever, and this is the only provision in the withdrawal
agreement where you can find a more generous treatment of the Brexit citizens then we have in the domestic,
because for lose it you need to be away for 5 years ,exactly because once you lose it you can’t get it back.
This two years, COVID was a bad news for the Brexit citizens , because the deadline was the 30 of June 2021,
there were people who interrupted their residency because they went home.
The right to permanent residency applies also to the protected family member, for the fact that the right is
derivative, in certain cases economically active citizens might acquire permanent residence, if they reach
pensionable age before the 5 years, this manages to give an idea of how more privileged are those who are
economically active in the context of the European Union, because the idea is that you are contributing in the
context of the EU and market integration.

Family members under article 2:

We have spoken about protected family members, there is a distinctions between protected family member and
other family members. Other family member are those listed in article 3 (2)of the directive, family member are
article 2(2) of the directive.
Which are the protected family member in European free movement law?
First of all the Spouse, in the case of Coman, he was a Romanian national married to an American national, so a
third country national and they were and still are, both man, they lived in Belgium because Coman was working for
the European parliament and his contract comes to an end and Coman is not anymore economically active and
independent he has to go back to Romania, and he applies for a spousal permit for his same sex husband but
Romania denies the request because it doesn’t recognize same sex marriage and therefore you are not married for
us.
Now in relation to registered partners, the registered partner is recognized as a family member only if the host
member state recognize the marriage, this was requested by Italy, but in relation to spouse there is no such
condition,
So what Romania argues is that in relation to registered partners recognize them only if the member state recognize
registered partnerships then they should be free to not recognize homosexual marriage and so not obliged to give
that permit to mr Coman husband and the court uses the charter to support the arguments, and if you go to see the
directive the term spouse is gender neutral there is nothing that recognizes a family member to answer to an
heterosexual couple, therefore Coman’s husband has a right to the permit like he was a woman.
It was a very contentious case in Romania. The registered partner is recognized as a family member only if the host
state recognizes such partnership, can you see a problem?
Who is it that has to enter to partnerships in mayor states? In some member states same sex partners can’t marry
but they can register their partnership which is a balancing exercise between the need to recognize protection and
cultural ideas about what a spouse relationship should be about. This provision means that if you were in an

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homosexual couple you wouldn’t be able to move to Poland if your partner was a third country national because
Poland does not recognize same sex partnerships and therefore you will not get the right for the same sex partner
even thought you have a registered partnership.
In the European Parliament this was considered such a wrong provision that they suggested to lock the entire
directive, because it’s so discriminatory, but politically at the end the European parliament decided that they
wanted some protection better than no protection at all.
Children so descendants are protected if they are under 21 or dependent, matter of fact not law, national law to
determine. Dependent relatives in ascending line, but not student, parents and grandparents. Family members are
treated exactly like the union citizens and so they have full rights to enter and reside, to work without a visa, ecc.
Children are protected regardless of the biological link or if only of the partner of the union citizen. Parents and
grandparents that might be protected if they have a dependent relationship.
This regime is often more generous then the regime provided by national law, like circular migration (people who
come back to exercise their right to free movement and then come back to their home state). The reason why that
has been contested is because this regime is more favorable than the domestic regime, like the Romanian
government feared that their own citizens might use free movement as a way to go around very restrictive
provisions. There was a case before directive 38/2004, she was a British woman married with a Moroccan citizen,
he was a drug dealer, he goes to jail, when he comes out of jail he asks for a residence permit, they loved one and
another, as a spouse of a British citizen living in the UK. UK says no , because he is a drug dealer, deportation
order.
She was working for Barkleys (Bank), she asks Barkleys to transfer her to Ireland, and there he has the right to
stay, because he is the spouse to an economically active citizen, but they didn’t want to live in Ireland, so they
triggered circular migration, they stated in Ireland for a bit and then they went back to the UK, they were very well
advised, but not really clever. When they were asked to the border why they were going to Ireland they said
because in this way they could avoid the application of British law. So the UK said that they couldn’t have the right
because the only reason they left was to avoid strict rules.
Family members have whole rights, very extensive rights, but they are derived rights by the exercise of the
economically active EU citizen. This is a bit limiting, because the right is derived by someone else’s right, when
that person stops to exercise that right you also lose it.
When do you think this might be a problem? Couples split, divorce. So you can understand why there is this
regime, sometimes things don’t work so well, because of many reasons. For this reason the directive tried to update
our regime by providing in part the codification of the case law is that if you have a child in education the main
carer can remain with the child in the State, this is because we cannot move children as if they were objects, if the
child has started going even to university, even if the provision is for children in primary school. A child can’t
exercise residency rights by themselves, they need an adult to allow those residency right to the exercise, for this
the case law and now directive provides that a carer of a children ,who are in education, has a right to derives the
rights from the children. Then what we have is also that the directive tried to rectified in a right way, if the husband
or wife dies, it’s inconvenient and more if the rights are gone, if you are married for minimum a year you get
autonomous rights.
The directive updates what the situation was before in relation to divorce and domestic violence, because before
directive 38/2004 we had this gap. If a couple divorced the spouse deriving their rights from the partner were gone,
what happens when you give such powers to one party in a relationship? It might go wrong because gives a non
balance to the relationship, introducing an exogenous imbalance in the relationship. So the directive rectified that
and seeks to balance this with the danger of sham marriages, entered only to gain residency rights, in order to
benefit from the extended protection in relation to divorce you need to be married for at least one year in the host
member state. Then we have the case of domestic violence, the directive was very strong in saying that residency
rights cannot be used a trap for a person in a relationship, the abusive partner can say that if reported she/he loses
everything.

NA, C-115/15:
In theory very good provision in the directive protecting both divorced spouses or partnership that has been
terminated and victims of domestic violence, huge gender dimension (statistically women), they don’t need to fear
loss of residency rights.

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Unfortunately we have a case of NA, a pakistani woman, married to KA, German national, they moved to the UK
and unfortunately NA is a victim of domestic violence eventually reported to the police. Now, what happens is that
she reported to the police, first instinctive reaction is that she could go back to Germany, if just reported to
domestic violence you just flee, she finally reports the domestic abuse and violence to the police and he goes back
to Germany. The couple then divorces, he according to the islamic rules, she starts divorce proceedings in the UK.
Then she applies for a right to reside in the UK. So victim of domestic violence, husband flees and goes to another
member state, she is left in the UK, she applies for a right to reside because the only right to stay in the UK derived
from the right to reside as a union citizen.
She argues that she has the right to reside, because of domestic violence. Charmingly the UK authorities refuse her
the permit, she has done everything she had to do. There was sufficient evidence of domestic violence and the
person couldn’t be prosecuted because he fled the country. However the UK authorities deny the permit, this
because when she divorced her husband was no longer in the UK and therefore he was no longer exercising his
rights, remember all the rights derive from the family member resident. So the case gets referred to the Court of
Justice, to our dismay (no one agrees), the court finds that she shouldn’t be protected because the husband fled.
They rely in the idea that you are protected only so far as the primary right holder is still residing in the member
state.
The court says that the a third country nation, who is divorced from a union citizen at whose hands she has been
victim of domestic violence during the marriage, cannot rely on the retention of her right of residence in the host
member state where the commencement of divorce proceedings post-dates the departure of the union citizen spouse
from that member state.
What you notice here? Remember the rational of including domestic violence in the rights: to protect the abused
partner from the danger of being locked into an abusive relationship, this can be rectified by the directive, but with
this case you give the partner a similar power, because he can just go away.
Dangerous from the protection of vulnerable abused partner, the woman not onlu finds herself in a domestic abuse
relationship, she has to find the courage to find to report the domestic abuse, then you need to run to a lawyer and
initiate divorce proceedings before he goes away. The court with this interpretation introduces something that the
legislature didn’t want to happen, someone in a divorce or in abusive situation to be forced to leave. Fortunately
she had some children that went to school so she had the right to stay, but now we have a situation in EU law,
where if you have children you can continue staying, but otherwise you cannot because you can lose your residency
rights. Teacher Spaventa hopes the court will change the decision, because the facts were so clear. Not a happy
case. The other possibilities are that national law can be more protective, all national laws have crossed with this,
national courts are not really agree with the interpretation of the Court of justice, so can find a way to be more
protective.

Other family members:

Already mentioned, what we referred to article 3 (2), they are the dependent or people that require the personal care
of the Union citizens, or the members of the household provided that they are not children ascendents or spouses.
To rectify, to adjust a bit the discrimination of same sex partners who can gain residency rights only to the extent
to which the host country recognizes those, if you are in a same sex partnership. So to rectify this, article 3 (2)
provides that partners in a durable relationship tested, are article e 3(2) family members which means that the
member state has a duty to facilitate their entry and residence. Only to facilitate, different in article 2 you have a
right to enter only if you fall under the public policy security derogation the state can refuse you to entry, but if you
are a partner in a durable relationship the state can only facilitate but no other duty. The court has said that you
must be treated better than a normal third country national, not just apply normal immigration rules and has to
provide the criteria of a legislative instrument and you must have a right to judicial review, but the member state
can still refuse you. The directive doesn’t say and there hasn’t been a case is what right article (3(2)) family
member have. The commission says that they should have rights as the other family members.
Spaventa’s opinion is that the directive specifies that the advantages cover only some family members and
therefore you don’t have the right to equal treatment and to work, but we don’t know because we didn’t have a case
yet.

Administrative formalities:
Now remember that rights in EU law derived from the treaties and even though member states can impose
administrative formalities, those are only evidence of your right to stay in the given country. So for union citizens
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you don’t have visas, Schengen no id or passports, if you move from Schengen and non schengen it can be required
an id. Now the UK requires a passport, but if you are a person covered by the agreement an identity card is enough
until 2025, because lots of citizens simply didn’t have a passport. So the union citizens when they arrive in a
member state might be asked to say if they are there and there is an italian rule ‘pretore di Salò’ tried to challenge
this rule because they thought it derived from fascist rules adopted under fascism, but the court said no. The
member state can ask and usually ask a union citizen that is staying for medium period to register, this is not
constituted by the right, so not complying with this formality means an administrative fine, it doesn’t impact on
your rights the rights derives from the treaty. For this reason any penalty that the member state imposes must be
proportionate and equivalent to similar penalties under domestic law.
For example in the Italian context failure to register should be treated as failure to show your driving license. There
is a problem of the Brexit deal, because there it was allowed to make registration as constitutive of the right. Can
you see the problem and what it means? It means that those union citizens or british citizens whoi don’t apply in
the allocated time lose everything, because the right of registration it becomes the way you constitute the right.
Italy didn’t imposed it, it provided that registration is only evidence, which means, if in five years time a british
resident want to register they only need to show that they were resident, and Italy will recognize the right, whereas
certain country if you didn’t applied in the 13th of June the UK had to move it to the 30 of September.

Derogations
Derogations and limitations to the right of reside, listed in the treaty provision in relation to economically active
people and article 27 and following, of the directive 2004/38. Basically a union citizen can be refused entry or
deported only on grounds of public policy, public security or public health, very narrowed ground. Mistake find
quite often, remember that deportation or reliance on the derogation is different from when simply don’t meet the
conditions. Then you don’t need to invoke public policy and security because you simply don’t meet the condition
under article 7, so your permit is terminated and you need to go away because you don’t have lawful residence,
whereas here we are talking about the state and the authority not liking that provision. The public health derogation
can be invoked only for the first three months and only for world health organization listed diseases. Why only for
the first three months? Because after three months either you already spread the disease or simply you caught it in
that country. So you can invoke the public health derogation only in the first three months to might knowledge that
is never happened.
Because is not in the interest of the state to send back an infectious person on a plane to spread the disease around,
what would happen is that the person is putted in an hospital in an infectious disease unit. Remember the public
health derogation is really strict, the only time when the issue materialized was with COVID that was about
shutting borders. Usually you would have not as much as expelling or denying entry to someone, more about
measures that allow you to contain the disease, only for infectious disease. When the member state wants to deny
entry or kick you out, they need to respect procedural requirements of art. 30 and 31 of the directive 38/2004. The
treaty is self explanatory, you need a decision, why do you need a decision? If you have a decision you can appeal
the decision, right to judicial review and you need that the decision is in a language you can understand, vis a vi the
normal procedural requirements.

Public policy/public security:

What is public policy and public security? We are in the context of free movement law and Eu law general, so that
the court has specified that the interpretation of public policy and public security is a matter for itself, an EU
concept of public policy and public security, we have another problem with Brexit there. The directive 38/2004
reproduces the conditions as codifies all the cases of the court of justice until that moment, and until that moment
the concepts of public policy and security were very narrowed interpreted because you were denying one of the
most fundamental right in EU law that is the one of free movement in the EU. Article 38 provides that you can
invoke the private policy and security derogation only for reason related to conduct of the individual. Case of
Bonsignore that accidentally shot the brother, and the police authorities and the authorities that it was a genuine
accident, he had no reason to shoot his brother, nonetheless the German authorities wanted to deport Mr to
Bonsignore because they would have a deterrent effect on migrants carrying firearms engaging in a certain conduct.
The court specified that you cannot invoke the public policy derogation only for a deterrent effect. So for instance
you cannot say that you don’t like people of a region, so you cannot kick them out or not allow them in. In order to
be able to rely in the public policy derogation the conduct must represent a genuine present and serious threat to
one of the fundamental interests of society. So the idea is that you cannot invoke any public policy in order to deny
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the right to any union citizen. In Bouchereau we have a French citizen who was arrested and convicted for small
drug dealing and when it came to the deportation the court said that it wasn’t enough that you engaged in a criminal
activity, you must be a serious threat to one of the fundamental interests in society.
In Adoui the issue was about prostitutes deported, but the prostitutes weren’t prosecuted they were fined, Adoui
argued that deportation was contrary to EU law rights and the court agreed because the conduct wasn’t a criminal
offense and so they couldn’t be deported. The principle of proportionality always applies and here it will moreover
always apply because you are talking about fundamental rights of an individual, so the burden is on the state to
justify, so that kicking out must be necessary and proportionate. This means and codified that there is no automatic
deportation following custodial sentence, but extent of protection affected by custodial sentence, very standard with
third country national, as they were part of the penalty, is not the case in relation to union citizen.
In Calfa we had an Italian woman that in Greece was caught with drugs (taking or selling?), and Greece imposes a
permanent band in re-entering, and the court says that you can forget of a permanent band because if you can kept
out only for a personal conduct you may be using drugs at 20, but maybe at 25 you are out of that fase, you cannot
have a permanent band because the threat has to be present and not only theoretical, un-proportionality, you need to
re-assess every time. The threat must be present and not only theoretical, you need to reassess every time, because
we fall in the scope of EU law circumstances need to be taken into account and also fundamental rights, the charter
applies in full. Once you gain permanent residency, remember the incremental approach to rights, you have a
deeper link to the country, so you can be deported only on serious grounds of public policy or security, and after 10
years only imperative grounds of public security.

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 11 November 2021

I hope it’s clear what the tensions are in union citizenship, how to create a supranational citizenship when actually
we’re so deeply routed in the national context. As we saw: part of the way we saw part of the way we started
conceptualising that was though the welfare access to welfare provisions as a proxit to determine a sense of
belonging and we have seen that we have different stages in the case law : the foundational stage where a court
really pushes for a meaningful interpretation of union citizenship, a consolidation stage and then a more
regressive stage of the case law.
After that what we know is that we are back to a black letter reading of the provisions so that actually union
citizenship does not really give you much in terms of welfare benefits because you are in that catch 22 (article 22).
First you have to establish your entitlement to residentship, and if you don’t then you have to get out and later to
apply for benefits then you might become a unreasonable burden and so that means that your residentship could
be terminated.

We have looked at directive 2004/38 which codifies the case law and tidies up a bit and we have looked at some
of the problems.
What is really strange is that you would have thought that actually the very expansive interpretation that the
court gave us would have at least be consolidated the directive whereas there a lots of cases because we don’t
have time. What we have seen is that directive 2004/38 somehow constrains the meaningful interpretation of the
court and the court goes back in its generous interpretation in other fields.

If on the one hand we have seen that this transactional element of citizenship is possibly not as meaningful as we
though would be ,there is a parallel development and this is the really innovative element of union citizenship, it’s
not so much the free movement rights that could have happened anyway through services but it’s really this
absence of the rights doctrine.
So let’s go back and remind ourselves of some basics:
Remember that the union citizenship is additional to national citizenship, it’s not for the time being, for the time
being you only are union citizen if you are a member state national and remember also that in theory because of
its transactional dimension the provisions of union citizenship could not really apply in purely internal situations
because it is in the nature of the transactional nature that you would have to cross a border. And for this reason
in theory national citizenship is unaffected by union citizenship and we saw what happened in northen Ireland
where the uk contested that didn’t have a link to Ireland but the court said that it’s only on the member state to
determine their own nationality. And remember also that member states remain free to determine who can sign
from outside the European union.
There are rules that we have armonised but the point of entry of the third country national is determined by the
member state.
What’s the development that’s so important :
It’s called the Ruiz Zambrano doctrine out of the first case in which it was decided. Ruiz Zambrano’s family was a
Colombian family , they had reached Belgium to seek asylum for international protection they had been denied
international protection and refoulement order is not made (It means that even if you deny asylum to a person
sometime the court makes an order that person cannot be sent back to the home country because it might put
their lives in danger anyway, so there’s a state in between. You cannot be sent back.) So in those circumstances
the person might well leave it in a limbo, they might not have to go back because it would be dangerous to stay in
the country where they happen to be . And this was the situation for this couple and Mr Ruiz Zambrano could
actually not work because in some countries you have to have a residence permit in order to work and because
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he couldn’t work his children were at risk a destitution because it’s what happens if you don’t have right to work
then you are not allowed to make money then you might be at great risk. He had very good lawyers and his
children had Belgium nationality because Belgium had ius soli (if they are born in the territory they have Belgium
nationality)

The case was incredibly unfair so that eventually got corrected at national level and also you could say that such
case was more a case for national constitution protection. But instead it gets litigated in another way : Mr and Ms
Ruiz Zambrano claimed that his children are of Belgium nationality and that if he cannot work what he argued was
that his children were Belgium and if the state didn’t allow him to work he had to go away and he didn’t have any
other claim to any European state because they were from a third party nation, that means he had to go away
from the eu because he didn’t have an immigration claim anyway.
But if he had to go out , he had to take children with him because children are not entitled to have individual
residentship.

Now they say that if they took the children with them, then the children would be deprived of their union
citizenship rights, why? Because union citizenship only has a value if you are in a Eu nation, you cannot go to a
third state and exercise the union citizenship rights you have to be in the eu territory. Belgium argues that
actually union citizenship is not relevant because clearly this is a purely internal situation (its Belgium children
against the Belgium state, there is no border that has been cross).
And therefore Belgium said to the court that it was not of their business because of the nature of union
citizenship which was additional and didn’t replace national citizenship it’s only a matter for us and in the
meantime the injustice of this case is picked up by the authorities or rectified and given to him the work permit.

So Belgium asked for the preliminary reference to be withdrawn and the court continues “article 20 (the article
that establishes union citizenship) precludes a member state form refusing a third country national upon whom
his minor children, who are eu citizens , are dependent, a right of residence in the remember state of residence
and nationality of those children , and from refusing to grant a work permit to that third country national , in so
far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to
the status of eu citizen” It’s very clever.

The court accepts the couple’s claim, saying that it should be decided by the member state but there’s a limit for
the member state’s discretion which is when the act of the member state would have the effect of depriving the
right of its substance (there’s a similar argument in human rights law but even in intellectual property we have
this idea of substance of the law, it’s basically to do something that empties the right of its content than there is a
limit to the discretion to do so.

The court accepts that if the children are forced to go away then their rights would be limited because they would
not be able to benefit of union citizenship.
With time the court said that this doesn’t mean that the member state would never be able to do that but it
means it needs to justify the decision that might lead to (expecially) minors union citizens to leave the territory of
eu.
The member state decision has to be proportionate and has to comply with fundamental right including the right
to family etc.

This was a case that really raised some concernes among the member states. Why? The member state controls
third country migration, and this case by nature applies on third countries national because union citizens would
be able to go to another to another member state and they cannot be kicked out because it’s against
international law.

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The Ruiz Zambrano regards sentitive nerves for union citizens : first of all it tells member states how to treat their
own citizens (and they don’t want that, there is not transactional element) so it affects that very concept of the
additionality of union citizenship ,that national citizenship is entirely left to the member states because actually it
actually interferes in the relations between citizens ,it imposes a limit.

Secondly because this case by nature applies to third country nations , it attaches upon the power of the member
states to regulate and decide what happens to third country national . And also unfortunately it has another side
effect that of course this means that by nature this case is applied to those member states that use ius soli.
For instance in Italy you can have domestic ways to protect this situation but if you don’t have ius soli then the
children would not have been national and they would not have had protection.

The court in a successive case seems to stop this interpretation because there was a really quite dramatic reaction
to this case.
But then in Case C-304/14 CS the court applied Ruiz Zambrano also to a tcn who had been in jail so further
impinges on the national sovereignty of the member states. Of course the refusal of the permit can be justified
and once you have proportionality interest of the child and family it becomes very difficult , secondly the court
admits that the rz doctrine can be in exceptional circumstances applied to people of age, and we can see why.
We can have situations in which we have a disabled adult and if you don’t allow the parent to stay with the
person, the person has to go away with the parent. So what you look at is whether the person would have no
choice, no real choice that to follow the tcn who’s carrying for them (it’s very easy for children but you could have
also in relations to adults in exceptional circumstances)

The other development that’s very interesting is the decision of the court to apply union citizenship in another
purely internal situation.

We have the first case which is called the Rottman : mr Rottman was an Austrian citizen who went to Germany to
live, he acquired the host country nationality (he was naturalized citizen) to do so you have to give up your
nationality authority because the other state didn’t allow the double citizenship. He gives up his national
citizenship of origin ,attires the German citizenship and then it emerges that there was a European warrant
pending. Therefore he on his application for naturalization because he should have disclosed any criminal pending
procedures or similar. So he has lied and therefore punishment for this lie was the withdrawal of national
citizenship. There are two problems : one which is an international law problem (he had already renounced of his
citizenship of origin , he applied for the new one, he lied ) and the second was if Germany could have withdrawn
citizenship or not. What the german government argued was that it was a purely internal situation and of course
this was a matter only for the discrection of the member state as it is for the member state to determine who is
and who isn’t.
The court disagreed and found that actually it’s not a clear ruling but found that this situation falls within the
scope of eu law because with the withdrawal of national citizenship also means withdrawal of eu citizenship. And
therefore the principles of proportionality applies the rationale here is the same of Zambrano, meaning that if you
withdraw national citizenship you deprive that person of the possibility to enjoy his union citizenship rights.

In Rottman the situation had an element of transactionality because he really had moved and it was an effect of
very strict rules, Austrian rules, about nationality.
In Tjebbes we have a very different situation because in this case we had a group of claimants . we have dutch
nationality rules according to which if you are not residing anymore in Netherlands after 10 years that you have
been away you have the exercise your decision to remain a dutch national otherwise your nationality expires , so
not particularly unjust because you could stay a national even if you have the nationality of a third country but
simply after 10 years you have to decide if you want to remain a dutch national. Most of the claims are Canadians
and some are children. So it’s a lot of claims together. It’s a case that needs to be decided more on principles.
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When they found themselves without their dutch nationality that they had to be withdrawn they brought a claim
based on Rottman saying that by taking away their dutch nationality the state was taking away also the eu
nationality and so it becames a matter covered by eu law. Because it’s covered by eu law you have always an
advantage, you can claim supremacy , you have proportionality , you have fundamental rights. The dutch
government said that it was a purely internal situation plus the legislation was not particular punitive because it’s
not automatic, it’s when the citizens have not exercised the option to remain a national that this rule would
apply. The citizen was allow to opt to mantain the nationality . Also it’s very relevant for the court that some of
the claimants were children because they didn’t have an independent ability to exercise that opting option.
So the court does engages fully with the question of withdrawal of citizenship and restates the Rottman ruling this
time in case in which there was not a European transactional element , it was a really pure internal situation as far
as the court is concerned. The court restates its Zambrano reasoning. If you deprive your nationals of your
nationality what happens is that your taking away union citizenship, and so proportionality and fundamental
rights have to be applied. The rules were not intended to be punitivs and the court lays out a very detalied quest
that the national authority should follow when deciding on citizenship that had been withdrawn. For instance the
court says when you decide whether the withdrawal of your own nationality is compatible with eu law you apply
proportionality that it’s quite restrictive and for instance you have to look at whether the new nationality was
acquired voluntarily or automatically. You have some countries in which the process is automatic whether you
want or not. If it’s not voluntarily then it shouldn’t carry any sort of penalty for having acquired that nationality.
You have to look at which country the eu citizen is leaving and whether that country is safe or not because there
is a difference between having a withdrawal of citizenship in Canada or in Syria. It’s also relevant in the eyes of
the court is how easy is to come and visit the eu (again it’s very different if we are speaking about Canada in
which there are reciprocal agreements for travel or whether you can come back to the eu depends on
discretionary reasoning of the national autorithy because it can be very difficult to obtain)
Then the court examines the situation of children and we would have expected the court states that the child
cannot make by themselves the decision and so when you consider whether to withdraw the nationality of a child
you have to have the best interest of the child in mind. And the best interest of the child might go against taking
away the citizenship because if you take it away when they are children they will later not be able to make certain
decisions such as to come back and live in eu. The withdrawal of that citizenship can have long lasting effects on a
person. The court says that withdrawal needs to be open to judicial review.
What’s happening here is whether the decision to grant citizenship remains for the time being remain with the
member state the decision to take them away is no longer with the member state because the union citizenship
gives such an advantage in terms of free movement , investment etc that the withdrawal naturally is a decision
that limits the eu rights. This is really important case law, it also has clear practical effects. There are some similar
cases that have not reached the eu court of justice probably because the national authority backed down on
rights , there ‘s a pheonomen in uk and netherlands where young women were used to go and marry isis
terrorists. Because of the rules they might have acquired another nationality automatically. One of the issue was
that the penalty was the withdrawal of british and dutch nationality and the big issue was that doing so there was
also a withdrawal also of union citizenship,eventually the dutch government then decided that it was not a very
clever way to procede because these people are more likable to be radicalized.

We have now a pending reference , a situation a bit like Rottman but worse , a woman gave up her nationality of
origin to become Austrian and after the authority said to her that she would have get the nationality and then
they found that she committed an offence so she was not anymore eligible for Austrian nationality and so she was
left stateless.
So this is the most revolutionary aspect of union citizenship because for the first time we have European law
interfering in that relationship (between state and the national) that is key for our definition of sovereignty.
Things can always be justified but you are introducing a European element which means proportionality and
fundamental rights.

Problem question:
What do we circle first?
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The fact we are speaking about a French citizen and “Germany” because with it we know that we are speaking
about a transactional situation. So it involves article 21 tfeu and directive 2004/38. Then we have to underline
“maintenance to grant to support her studies” and the fact that “she is denied it” . It’s necessary to underline that
her partner is USA citizen and that after three months the state told her to leave Germany.
Can Paula be denied her maintenance grant?
Remember that different people in eu law have different rights. The first that you have to identify is whether she
is economically active or independent, that is always the starting point. You need to determine which category
the person falls within. Because if a person is economically active they have full rights to equal treatment if a
person is inactive they might not. The first question is always an idea of economic activity and inactivity , you have
work sitters, you shall see it’s a category in between. If she’s economic active she has a right to maintenance
grant? Yes, she has a full right to equal treatment. We have to start from identify the category.
What about Jane?
She is a third country national ,is a partner. What do we know about partners? Rember we have two types of
partners : one is the register partner and then partner in a durable relationship. Here we don’t have any
indications that she is a register partner , so if she had to claim anything it will be article 3 (2).

What about Mark?

We have to underline that he has Spanish children and that he resides in spain. He’s also Chinese and he loses his
job and he’s told that he has 15 days to leave the country. Which case do we look here and what article? We are
speaking about Spanish citizens residing in spain so we are speaking about an internal situation. If they were
residing in another member state what you would have relied on was the right of education of the child and so
the carrier of the child has to stay with the child because he cannot independently exercise free movement right.
In this case we have a pure internal situation so we look at article 20 , the directive doesn’t apply here.
Here you are looking at article 20 tfeu and the situation is a Rruiz zambrano situation. If the Chinese parent is
kicked out of eu , the children have to go. So it’s very unlikely that Spain would be able to do so . In order to
evaluate the deportation order you would have to look to proportionality and fundamental rights including
private and family rights , best interest of the children.

What about Genoveffa?

We have to underline that she resided lawfully in Spain for 6 years and because we don’t want to forget we just
make a note that these are different circumstances. Then we circle that she’s arrested and immediately deported
to Italy.
First of all we have to say whether and how she is protected by eu law and this will depend upon she is lawfully
resident pursuant to directive 2004/38. If so she is a permanent resident. Remember the longer you reside in a
country the more valuable is your claim to remain and in the case of permanent residence you can only be kicked
out for serious breaches of public policy. The only derogation on public policy that’s possible to rely on is the one
that interest the fundamental interests of society and then we know another thing which is whenever eu law
applies also fundamental rights applies and here also we have a fundamental one which is the freedom of
expression (article 11 in the charter)
If she was not resident according to eu law she would still be caught by article 21 because she is being deported
on ground of public policy , it’s not that they are terminating residency. So she is protected but she hasn’t
protection from permanent residence.
In the problem questions we can say that the second one regards the Tjebbes case
So what are the rights that come from union citizenship?
Citizenship means the possibility to go and reside in another member state , this is unvonditnial if you are
economic active and conditional upon having sufficient resources and comprehensive help insurance if you are
economically inactive. We have three types of residence ( the longer you have stayed in a member state the more
integrated you are and the more rights you have in eu law). Also whenever you make a proportionality
assessment the long you have been in that country will be relevant.in the directive this incremental approach is
fully codified and the three types of residence are : temporary art 6, medium art 7 and permanent art 16. You
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have in the case of temporary residence is unqualified , medium term is qualified and in the case of permanent
you no longer have to fulfil any condition. You have demonstrated that link of integration. Now you have a
general right to equal treatment (article 24 directive 2004/38) and that right is limited only in relation to social
assistance for work sitters and to maintenance aid for students. Remember that because of the fact that we are
speaking about core benefits and they are means tested we don’t have comprehensive help if we don’t have
sufficient resources then you would not have your residence pursuant directive 2004/38 and therefore you
cannot claim article 24.
Otherwise you have residence right because you have sufficient resources to start with you might be able to ask
for a bit but if you ask too much you become an unreasonable burden and they can terminate your resindentship.
The directive gives extensive protection to family members and remember that it’s extensive because you have
extensive rights to reside but also full equal treatment. So tnc who is a family member of a migrant union citizen
become assimilated and treated almost as he’s a union citizen regardless of the fact that they have acquired or
not nationality. We have seen that we have spouse broad interpretation and problems with register partners
because their rights are conditional upon the member states recognizing the partnership . in some cases the
family remember retains rights but unfortunately the court has given a very strict interpretation. Remember also
that the carer can get the right through the child if the child has the right to education.
We have “other” family members and the only duty of the member state is to facilitate entrance and it’s in this
category we have to put register partner when the host country doesn’t recognize them. You have extensive
protection from expulsion including a very narrow definition of public policy and public security which is no longer
left to the member state but is at European level and you have procedural rights. You have the right to return to
your own member state , remember circular migration , whenever you trigger the treaty you come back , you are
protected.
You have the right to be not forced out of your own member state outside of the European union. The Ruiz
Zambrano case law expecially protects children so they cannot be forced outside the eu because it affects the
substance of their rights and because of the same sort of interpretation you also have now very extensive limits to
the discretion of the member states in withdrawing its own citizenship if that is the only eu citizenship the person
has. This doctrine only applies to the extent you are no longer an eu citizen.

We have now to look at question number 9 : do you think union citizenship is cosmetic or innovative? Explain
your answer with reference to the case law
We have to circle cosmetic and innovative and also case law. Which case under cosmetic? The Dano Case. We are
speaking about a restrictive stage of citizenship case law. Who does determine the rights of the citizens? Where
are they found? In the directive. The rights were those that were already there even previous the citizenship. It
means that innovation comes from legislative provisions not from the creation of union citizenship.
What case under innovative? Ruiz Zambrano and Tjebbes. Those would indicate a innovative feature of union
citizenship because you get something only because of union citizenship
An innovative element is the fact that children might be in power to have rights so that their parents can stay in
the country even in cross border situations. We have two arguments and we have to choose one of them.
The last problem question :
We have to underline that Maria is polish and she’s accompanied by her partner who’s Egyptian. She’s moving to
Italy so we have a 21 article situation plus directive 2004/38. She also has a tcn partner.
Jane is also denied an entry visa. So she’s a registered patterner and the country denies the visa but can’t do it
(article 2(2)) , if she’s not registered then article 3(2) is applied (duty to facilitate)
Then we have to highlight that has a illness, that the authorities deport Maria and she lack of comprehensive
health insurance (it’s relevant if only she’s economic inactive and only after the first three months) So we have to
think about which type of person and residence? If she was economically active,, if she is short term or medium (if
medium term she can deported but all the procedural requirements provided in the directive have to fulfilled)
Jane is denied entry in Poland. Is it okay? She is covered by circular migration. If they were married the situation
would change.

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