LECTURE: principles

Week 1:

Questions:
- What is the autonomy of the EU legal order?
- Why is it relevant?
- What are the limits of autonomy?
- Where and why does the autonomy concern of the Court become particularly
apparent?

What is the autonomy of the EU legal order?

- Narrative of the CJEU
 An autonomous, self-referential and dualist legal order
 Preliminary ruling procedure (why is preliminary important? gives a far-reaching
guarantee that Community law will remain uniform in all Member States, only a
national court can ask, art 267 (2) TFEU)
 Effectiveness

Van Gend, 1963

- The (EU) constitutes a new legal order of international law for the benefit of which
the states have limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only the member states. But also their nationals.
- Independently of the legislation of member states, community law not only imposes
obligations on individuals but is also intended to confer upon them rights which
become part of their legal heritage.

Costa, 1964
- (…) the law stemming from the treaty, an independent source of law, could not,
because of its special and original nature, be overridden by domestic legal provisions,
however framed, without being deprived of its character as (EU) law and without the
legal basis of the (Union) itself being called into question

Opinion 2/13
- The preliminary reference procedure is the ‘keystone’ of the EU judicial system,
‘which, by setting up a dialogue between one court and another, (…) has the object of
securing uniform interpretation of EU law (…), thereby serving to ensure its
consistency, its full effect and its autonomy as well as, ultimately, the particular
nature of the law established by the treaties (…).

Komstroy, 2021
- The Court has consistently held that an international agreement cannot affect the
allocation of powers laid down by the Treaties and, hence, the autonomy of the EU
legal system, observance of which is ensured by the Court. (42)
- Essential characteristics of the European Union and its law, relating in particular to
the constitutional structure of the European Union and the very nature of that law;
independent source of law (43)
Komstroy, 2021
- Unique constitutional framework (44)
- Article 19 TEU & Article 267 TFEU (45)
- Required to interpret/apply EU law (50)
- Not a court or tribunal under 267 (51-3)
- BIG POINT of uncertainty: ‘the ECT may require Member States to comply with the
arbitral mechanisms for which it provides in their relations with investors from third
States’ (62)

The basic infrastructure of autonomy

- Primacy
- Direct effect
- Judicial enforcement
= effectiveness of EU law / integration

One step back: PIL v EU law

- Ascending and descending reasoning
- Between apology and utopia (Koskenniemi)
- Constitutionalisation
- Relevance of consent and state practice
- Law = purpose of integration (Dawson/dWitte)
- Rule-based multilateralism as an EU objective
- Court-centric EU legal order

Another step back: raison d’etre and democracy

- Value commitment; cultural choices; FRs
 Destination of the ‘ever closer Union’
- Democratic legitimacy
 ‘Negative’ integration
 Output legitimacy/regulatory state

Why is the autonomy of the EU legal order relevant?

- Effectiveness as distinctive characteristic
- Low facticity of EU law
- Pluralist legitimacy
- Constitutional order

What are the limits of autonomy?

- Separation of powers
- Political constraints on the judicial powers of the ECJ
- Legal limits on the integration of EU law
- Counter limits set up by national courts?
BVerfG, PSPP, 2020

Commission opened infringement proceedings btw June to Dec 2021 for declaring the ECB
“to be ‘ultra vires’, going beyond its competence” and declaring the ECJ’s 2018 ruling in the
case “to be ‘ultra vires’ – without referring the matter back to the Court of Justice (now
closed)

Where and why does the autonomy concern of the Court become particularly apparent?
Internally
- Essentially contested autonomy
- Counter-narratives of national constitutional court
Externally
- International Courts and Tribunals
 ECtHR and ISDS/ICS/MIC
- One common conceptual frame of reference

Discussion question
- is the CJEU’s concern with the autonomy of the EU legal order plausible?

Discussion quote
- ‘(T)he autonomy of EU law is not absolute but relative; it does not mean that EU law
has ceased to depend, for its validity and effective application, on the national law of
its member states, nor that it has ceased to belong to international law.’
- (Bruno de Witte)

Week 3:
Democracy in the EU – Between ideals and practices

Lecture Overview :

1. The EU legal-constitutional concept of supranational/multi-level democracy

Ø EU democratic principles?
Ø What is unique about them?
Ø Role of EU law in promoting democracy?
2. What are the main challenges of EU democracy?
Ø Is there a ‘democratic deficit’ ?
Ø Critical evaluation of relevant arguments

Is the EU democratic?

Yes!
EU democracy as a legal-constitutional reality
 - Art 2 teu: EU values “The Union is founded on the values of respect for human
dignity, freedom democracy, equality, rule of law and respect for human rights..”
- Art 10 TEU: “ the functioning of the Union shall be founded on representative
democracy”
- A new concept of a post-national multi-level democracy specific to the EU (see
articles 9-12 TEU)

A global crisis of domestic democracies

Democratic deficit is not only at EU level, there is a global crisis of domestic democracy  eu
is undermined from within (this is the rule of law crisis in the EU)

The eu could also by correcting some democratic failures at an member state level, problems
that nation states create, do no know borders, require cooperation of states, when the eu
increases the capacity cross-border

How to evaluate EU democracy:

- Democratic by what standards?  the way we evaluate the eu depends on the
purpose of eu integration, where is it for, for state cooperation or like a federal state,
is it there for competition law problems, only for the market or also environmental
protection, different ways of defining eu intergration
- Depends on one’s view of what the eu is for (see De Witte and Dawson)
- Beware of the ‘chicken and egg’ dilemma: historically if you look at the emergence of
national democracies,
- What become first, political community or the idea of political community

Modern nation states as political communities ‘did not develop spontaneously, but were
instead legally constructed.’

Lisbon treaty, Title II TEU: Democratic principles (art 9-12)

- Art 9: equal EU citizens NOT ‘the people’

 Title V of the European Charter of fundamental rights: citizens rights
 CJEU case law on eu citizenship
- art 1 (2), art 10 (1-2): Principle of representative democracy  european union
relying on the principle of representative democracy oes not replace national
democracy but is an additional, not a federal state, a demoi-cracy, a union among
different peoples, you can see in the articles that there is agreement with
participatory democracy
 co-existence with national democracy, ‘union among the peoples’
 demoi-cracy / dual nature of representation
- Art 10 (3), 11: principle of participatory democracy
- Art 12: national parliaments are also sources of eu democratic legitimacy  involves
them for European decision making
- Art 50 teu: the possibility to exit the EU
  Democratic self-determination of MS (and possibility to withdraw exit
notification, see Wightman)

Article 10 TEU – principle of representative democracy

1. The functioning of the union shall be founded on representative democracy
2. Citizens are directly represented at union level in the European parliament. Member
states are represented in the European council by their heads of state or government
and in the council by their governments, themselves democratically accountable
either to their national parliaments, or to their citizens

European parliament:
- Direct elections since 1979
- Today one of the most powerful parliaments in the world
- Functions, Article 14 TEU (see also Articles 223 – 234 TFEU):
 Legislative and budgetary functions (together with council)
 Political control and consultation  relationship between commission and
parliament, quite important

European parliament
- The extent of power depends on legislative procedure
- No right to initiate legislation!  different than national parliaments
 But, article 225 TFEU  gives the parliament to request commission proposal
 Von der Leyen in July 2019: political commitment to put forward a legislative
proposal in response to EU resolution passed with a majority of constituent
members
 2022: EP proposed Treaty amendments (Art 48 TFEU) including its rights of
initiative  parliament claims that this would be the democratic thing to do

Representativeness of the European Parliament?

Dieter Grimm:

“much lower than that of national parliaments.”

“European elections are not truly Europeanised.”

Criticism 1: no European electoral law/ no European parties

- National election campaigns with national parties candidates
- Build European part groups in the EU
- No transitional eu parties and delegates (yet)
- Voting system based on EU (common principles, eg principle of proportionate
representation) and national law (voting systems, e.g. voting age)
- No agreement on a uniform election procedure, art. 223 tfeu, council unanimity
requires), but

May 2022 EP proposal

- Transnational list
 - Formalization of Spitzenkandidaten rule

Criticism 2: Second order elections/focus on domestic issues

Historically correct, but gradually changing?

Post-brexit/ multiple crises make the eu more visible & salient
Political science research on 2019 elections:
- First-order-polity election  they have engaged in the idea of Europe as an project,
do we want more integration or less, does the eu offer solutions to covid, financial
crisis
- First signs of transnational mobilization and European coalition building both on the
right and on the left) most notably, gender rights vs people who would be against
giving lqbtq people rights, threat of migration,
“The campaigns are fought not just on national issues, but revolve more
fundamentally around questions of the basic legitimacy of the EU as a political
project.”
- Contestation over eu values
- New cosmopolitan-nationalist political cleavage

Criticism 3: no equality of votes

Apportionment of the seats:

Degressive proportionality, art 14 (2) TEU:

- Allocation of seats per MS not proportional to its population
- Smaller ms are allocated more seats than what would be proportional to their
population

Criticism 4: lower voter turn out

Criticism 5: “cannot throw the squandrells out!”  means that the core idea of democratic
representation is that citizens see that their votes are seen in policies

Joseph Weiler

Political accountability of EU ‘governing’ institutions (particularly the Commission)?

- No majority party dynamics
 Commission actions are not following the logic of implementing the policy agenda
of the ‘ruling’ political party in the EP
  A vote for a particular party in the EP is not linked to policy agenda of the
Commission
 No electoral contest for leadership and political agendas
- “The election of the Commission President is closer to the election of a pope – who
emerges from a secret conclave of cardinals – than to an open and competitive
battle.” Simon Hix

If we vote for parliament, it is not really seen, as commission is the least democratic voted
organization, the eu has designed a special constitutional structure because of special role
commission, there is no ruling political party that will decide the ruling agenda of the
commission

EP elections and the election of the Commission president

- EP elects the commission president & approves commission as a whole (article 17 (7)
TEU)
- EP can remove the whole commission by vote of ‘censure’ (2/3 majority of EP
members!), article 17 (8) TEU  cant just dismiss one minister for wrongdoing, they
have to remove the whole body
- When commission resigns, EP continues 9no new elections)

2019 EP election RIP spitzenkandidaten?

- Improve democratic legitimacy
- More lectoral contest
- Stimulate debate
- Visibility of EP elections
- Voter turn out

Criticism 6: ‘societal substructure vibrant democracy’ is ab

- No European demos 
- No European public sphere
- Interest groups, popular movements, NGO’s at EU

 Conference on the future of Europe

- May 2020-may 2022
- Final report with 178 proposals
- First experiment with transnational deliberative democracy

Article 11: participatory democracy

Representative democracy not enough

- Transparency (Art. 10 (3) and Art. 11 (2) TEU)
 Art. 15 TFEU/ Art 42 CFR: access to documents (Reg. 1049/2001)
  CJEU proactive interpretation in the light of EU democratic principles
 A new doctrine of legislative transparency
 Access Info Europe/Turco: “Openness (..) contributes to strengthening democracy
by allowing citizens to scrutinize all the information which has formed the basis of
a legislative act. The possibility for citizens to find out the considerations
underpinning legislative action is a precondition for the effective exercise of their
democratic rights.”
- Participation (art. 10 (3) and Art. 11 (3) TEU)
 E.g. public consultations by the Commission
- European citizens initiative, Art 11 (4) TEU, 24 (1) TFEU

European citizen initiative (ECI)

Article 11 (4) TEU
- 1 million of eu citizens
- From at leas 7 out of 28 member states
- Aim: commission legislative proposal
- Within the powers of the Commission (EU competence!)
- See also Art. 24 TFEU and regulation 211/2011

Participatory democracy
Direct citizen participation not without challenges
- Resources?
- Selection bias?
- Tension with efficiency/effectiveness of EU decision-making?
“to be meaningful, citizen participation should have the capacity to actually frame the Union
institutions policy agendas, confront their existing preferences, and influence policy
outcomes.”

Article 12: national parliaments and EU democracy

No article 12: “National parliaments contribute actively to the good functioning of the
Union..”
Input into EU legislative process (Protocol on National Parliaments)
- Draft legislative acts
- Annual legislative programme and other policy documents
- Agendas and minutes of the council are sent to the national parliaments
- Early warning mechanism (Protocol on the application of subsidiarity and
proportionality) / subsidiarity check ex-ante  article 12 that national parliaments
shall be involved

CEGAN (author of the article) : de-partialization, national parliaments are seen as having lost
powers: competences transfer, from Unanimity to QMV in council (from veto to where ms
can be outvoted), symmetry difficult for national parliaments to monitor what happens in
the council

The role of eu law in promoting democracy

CJEU proactive use of the principle of democracy:

- To strengthen prerogatives of EU parliament:

e.g. Case 138/79 Roquette Freres on the requirements to consult the EP on legislative
acts: ‘Although limited, it reflects at community level the fundamental democratic
principle that the peoples should take part in the exercise of power through the
intermediary of a representative assembly.’ (also les `verts, Chernobyl)
- To strengthen legislative transparency (access to documents)
- Emphasis on democracy as EU value (see whightman)  used the principle to allow
an exiting ms to withdraw its notification

Grimm: overconstitutionalization of the EU  blames eu law for undermining democracy

- Goes back to autonomy (direct effect and supremacy)> CJEU case law
- De-politicized economic integration (through negative integration, commission and
CJEU as main actors)
 Broad understanding of obstacles to free movement (Dassonville and casis de
Dijon see week 4) . anti-regulation
 Direct effect of EU directives  the way integration proceeded in the beginning,
negative, applicaiotn of the court of the economic freedoms, to declare national
legislation incpmpatible, therefore, it was the main instriument of helping
internal market,
 Broad scope of application of charter of fundamental rights (ackerberg Fransson)
- Democratic costs:
 Treaties contain too many rules which in domestic systems are part of ordinary
law
 Constrain eu political process
 Difficult to change by MS (treaty revision is cumbersome)
 ‘more constitutional law means less democracy” in the EU

The core of grimm: the treaties are full of provision that are already in national, constitution
should only be rules that govern their own things, not policy process, the treaties are fullof
substantive commitments that take it out of the policy process,
 Week 5: Solidarity and equality in EU law

Outline:

The concept of equality and solidarity:

- Value and/or (legal) principle?

- Limits to equality? Limits to solidarity?
- Connection between equality and solidarity?

Examples from different areas of law:

- Citizenship
- Internal market
- Migration law
- Competition law

Equality in treaty provisions:

Equality in abstracto:

- Art 2 TEU – founding value

- Art 8 TFEU – principle of general application  is it a general principle? Art 6 (3) TEU,
equality can be seen as a general principle

The Union must respect/observe equality:

- Art 4(2) TEU – of Member States

- Art 9 TEU – of citizens (democratic principle)  union must respect equality of ms

Equality of citizens before the law:

- Art 20 ECFR: basic principle of EU law (Racke case)

And what about article 18 TFEU?

Prohibits discrimination on ground of nationality, in that context we can find a lot of case-
law

Formal equality 

Substantive equality 

Discrimination and equality

Direct discrimination  formal basis of nationality not allowed

Indirect discrimination but on residency, there can be a proxy for nationality

The effect of the rule is similar to direct discrimination

 when are situations ‘equal’? how do you mandate equality? What is equal? Nationality is
non-relevant criteria because art 18,

 what if it makes sense to discriminate?

Reverse discrimination  the group you would expect to be treated better, is at a

disadvantage  reverse discrimination is allowed , it’s a matter between the population and
the government in that country

Equality – the case of students

Dutch student transport cards – (in)direct discrimination?

- Article 18 TFEU:within the scope of application of the treaties

- Limits to equal treatment?
 24(2) of directive 2004/38  member states were keen, why is the directive not
declared invalid, compared to art 18 tfeu, prohibition on discrimination, within
the scope of the treaty, but 18 tfeu, without prejudice to any treaty… there must
be limits in the treaty to your free movemrnt rights art 21, allows the legislator to
limit equal treatment for citizens,however, art 45, there is no limit, workers must
be treated equally , art 21 allows unequal treatment
 Compatible with 28 TFEU
- Access to universities (bressol) – (in)direct discrimination? Introduced resident
condition to make sure, that universities were full of French students, why did French
students go to Belgium? A lot of French students who wanted to study medicine
couldnt because France had fized number of people, solidarity concerns are with the
French community in Belgium
 Article 18 tfeu: limits to equal treatment?
 Justifications for unequal treatment?  excessive burdens on the financing of
higher education? protection of homogeneity of the higher education system?
public health requirements?

Article 24 of Directive 2004/38  case wottenburg

Equal treatment connected to solidarity

1. Subject to such specific provisions as are expressly provided for in the Treaty and
secondary law, all Union citizens residing on the basis of this Directive in the territory
of the host Member State shall enjoy equal treatment with the nationals of that
Member State within the scope of the Treaty. (...).
 2. By way of derogation from paragraph 1, the host Member State shall not be obliged
to confer entitlement to social assistance during the first three months of residence
or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it
be obliged, prior to acquisition of the right of permanent residence, to grant
maintenance aid for studies, including vocational training, consisting in student
grants or student loans to persons other than workers, self-employed persons,
persons who retain such status and members of their families.

Yes you can limit equal treatment but not to, section in red

Equal treatment interconnected with solidarity?

Nb: Indexation of child benefits to the level of living conditions in the MS of residence
of the child? C-328/20, Commission v. Austria: Court says no!

Solidarity in Treaty Provisions

Solidarity in TEU common provisions:

- Art 2: a society in which (…) solidarity (…) prevail(s)
- Art 3 (3): Union shall promote solidarity between generations and ‘solidarity among
member states’
- Art 3(5): in its relations with the wider world, the Union shall uphold and promote (…)
solidarity and mutual respect among peoples
Solidarity in TEU title V (external action and CFSP)
- Arts. 21 & 24(2) and (3), 31, 32: mutual solidarity between MS
Solidarity in TFEU
- Arts. 67, 80, 122, 194, 222: immigration, energy and disasters solidarity between MS

Solidarity between citizens of the member states? Solidarity is one of the founding values,
you can find it in the preamble of the Maastricht and Lisbon, what about solidarity between
the union and member states? Principle of loyal cooperation. Social cohesion and policies
missing solidarity

Enforcement of solidarity: relocation of refugees

- Solidarity as ‘fair sharing’ of responsibility – art 80 TFEU  solidarity between ms is a

legal norm, which underlines afsj and migration law, you see that solidarity is linked
to responsibility, sharing responsibility for migration
- A binding mechanism for relocation ‘imposes’ solidarity
The Court: quota case

- The council was required to give effect to the principle of solidarity (252)
- Decision is proportionate read in the light of (…) the principle of solidarity (253)
- Specific position of Hungary? As a rule burdens must be divided between all the
other MS since principle of solidarity governs EU asylum policy (291-293; 329)  all
md must participate, not one state can go out of this principle of solidarity 
everytime an eu asylum policy is mandated, solidarity must be respected
 - What was shared? Not a financial solidarity but a sharing of numbers of asylum
seekers, binding mechanism for relocation, imposes solidarity, because Dublin
system, first entry country usually border states, 2015 a crisis, Greece Italy those
states could not handle the number of people, commission wanted to do something
about it in the spirit of solidarity, therefore other countries should take asylum
seekers as well
- Hungary and Slovakia wanted annulment, court asked if it was compatible with EU
law
- Can the mechanism be annulled, because it doesn’t show enough solidarity? Did not
want the mechanism to impose on them what to do
- Court said, yed the council is required to take that into consideration and to give
effect to that principle of solidarity  principle of solidarity goes further in asylum
than financial solidarity, court said yes that the principle is in the treaty therefore it
has consequences, council need to give effect to that principle, proportionality was
questioned, court argued with solidarity, that it was proportionate, solidarity should
be taken with proportionality

Solidarity and the ‘social market economy’

- Social market economy = ?  what does it mean? it is not only about free movement
and competition, social values are also attached to the goal of the market, not only a
liberal market
- Solidarity  competition law - there are measures that show solidarity and go
against the free market, competition is about self-interest economically
- Solidarity  free movement provisions  circumstances in another state are more
favourfull, indivifual rights and self interest don’t go well with solidarity

Solidarity and competition law – Brentjens

What happened?

What was the dispute?

- Brentjens feels that it is unjust that his pensionfund has a monopoly position and is
backedup by the state, what did brentjens want? He didn’t want to participate in the
pensionfund, every undertaking had to participate he didn’t want to
- What type of solidarity is at stake? Workers should profit from pension, why did
brentjens could get a cheaper deal else where? The insurance pension fund could
say, all undertakings are welcome but if you work in a dangerous sector, the better
risks can be ensured more at a lower price.
- Basically the solidarity system is that you do not allow others to cherry pick from the
pension funds, the whole sector need to it,
- The insurance company wanted to do that and brentjens agreed
- Court asked about the collective agreement of the pension fund, agreement between
undertakings `art 101 competition restriction  answer discussed in tutorials
- Second question, can the state make that agreement compulsory
- Third question; is this an undertaking yes or no, yes
 - Eventhough you can see elements of solidarity the pesnionfund itself is based on the
capatilizati9on principles, you have to pay, therefore undertaking but with a special
task, therefore, art 106(2) TFEU applies as this exception
- What you see is arguments of the court looking at the solidarity element of the
pension fund, but competition law does not apply, court found a way that solidarity is
compatible eith the market, to say these competition rules do not apply

Laval – what happened?

- company in Latvia doin construction in Sweden with their own workers, posted them
to Swedish site. Had to negotiate with trade union, negotations were terminated,
collective acion that construction could not go on and the company went bankrupt
- what happened? Swedish trade unions demanded that the company agreed on the
posting of workers with the trade unions
- freedom to provide services  Baltic company provides service with the workers to
Sweden, trade union restricts that freedom
- what is the solidarity element? Trade union wanted minimum wage for the Latvian
workers, which was higher than in Latvia, because with low wages the company
would do better, that’s social dumping, they protected Swedish workers against
social dumping, not the Latvian workers.
- The underlining wuestion? If you look at national systems of solidarity, to they owe
solidarity to the, west tries to protect competition. Should the trade union show
solidarity with the Latvian or their opwn workers
-

Private parties blocking market access

Posted workers directive says host state can obige the undertaking to pay minimum wages,
but only if this is implemented by law in Sweden, of if its their in a universally applicable
collective agreement. In Sweden no minimum wage and no collective agreement, wage was
according to regio and management and labour. Court said, Sweden did not implement
directive they cannot allow trade unions to take action, they should have implemented
directive, they did not do that. Horizontal applciaiton of free movement, are these trade
unions bound by free movement rules, court said yes, not so much as a private party but as
an extended fact, trade union have the

Trade unions came with exception, with protection of the workers, but not of Latvian
workers, Latvian workers had collective agreement they should respect that

Private parties blocking market access

Solidarity on the rise?

- Solidarity during the financial crisis?  budgets and instruments from ecb, because
of solidairyt we are allowed to step in
- Solidarity during the pandemic?  recovery and resilience fund
- European Pillar of Social Rights (2017)

Do we need a new social contract?

Take away’s

- Equal treatment under free movement may lead to solidarity imposed on (citizens of)
host states
- Solidarity is guiding principle, but elusive
 Between MS – between EU and MS – at benefice of individuals, at cost of host
societies
 Substance of solidarity may alter according to context (financial or other)
 - Solidarity is at times isolated from market rules, and at times balanced with market
rules

Week 6:

Implementation and (decentralized) enforcement of EU law

The relevance of (EU law) enforcement

- From common rules to effective application
- Founding treaties didn’t directly address
- “world of dead letters’ = lesson from enlargement 2004/2007
- Regulation 17/62 – regulation 1/2003 – directive 2019/1
- New deal for consumers – effective enforcement

Article 291

1. Member states shall adopt all measures of national law necessary to implement
legally binding union acts  does not mention enforcement directly but this is an
important one,

How EU law enters national legal systems, how these legal systems interact

- Institutions, procedures and principles

- Primacy and direct effect of EU law
- Indirect effect/consistent interpretation
- National procedures for the enforcement of EU law
- State liability
- Procedural autonomy – principles of effectiveness and equivalence
- Effective judicial protection

Competition law enforecmenet issues have always been earlier on the agenda, certain
constant drive to have free discussion and legislation at least in the past 15 years concerning
enforcement, modernization and enlargement was a big reason of enforcement framework
 its an important part of eu law, many principles we discuss first have equal relevance in
competition law but we tent to overlook them, direct effect, liability, effective judicial
protection, sped pro important, these principles come together, how general principles of eu
law and values of the eu equally stand and should be enforeced in the area of competition
law
Primacy:

- Gend v loos direct effect penetrates national law

- By what legal force?  answered by the court, with supremacy
- What happens in conflict between Treaty and national law?  primacy eu law
prevails
- Costa enel
- Unreserved, absolute EU law primacy
- All eu law prevails over all national law
- Autonomy EU law (Week1), special and original
- Pre-empt any national choice – cracks national constitutional choices
- Does not effect validity – set aside national law  does require the national court or
national adminstrarive authorities to set aside
- Not just national court all organs of the state. Incl. administrative authorities 
fratellli  will have to respect the principles and if a conflict arises respect primacy

Primacy;

- The member states view

- Unresolved question of ultimate sovereignty : who has the last word in the EU?
- National constitutional courts – supreme courts
- German federal constitutional court and its position vis-à-vis primacy of eu law – its
influence in old and new MS’s
- International gehandellshaft – Solange I  german constitutional court have been
reviewing the limits of eu law, and without overruling it has engaged in the
discussion regarding of lack of protection fundamental rights in the text, and how this
is a gap/shortcoming in eu law, the court felt that being overruled by a system which
has the last say with no guarantees on fundamental irghts, has declared that the
german court should have the last say
- Concerns: 1970s fundamental rights protection (Solange II) 1990’s finality of eu
integration, nature of the union
- Delimitation of the scope of the eu competences – exercise the ultra vires review

Limit to primacy: national constitutional identity:

- Concept of national constitutional identity: article 4(2) TEU

- Member states cn define their own national identity
- BUT decision about compatibility of the national identity with eu obligation since the
treaty of lisbin is vested in the CJEU – ultimate decision on Kompetenc-Kompetenz
- Recent years national constitutional courts openly challenged the primacy of `eu law
+authority of CJEU in their judgements
- Constructive dialogue or explicit defiance (to justifcy the ciolation of the common
values set out in Article 2 TEU)?
- Abuse of constitutional identity
- Polish situation: the independence of judges
Direct effect

- Van gen den loos – 3 conditions

- National court must apply eu provision, and a national administrative authority, no
questions asked,
- Clear, precise and unconditional – no further implementation  that if a national
court needs to check in order to be this powerfull instrument, unconditional, no
further conditions attached to itand no further implementation is necessary for that
specific provision, no other institution is needed
- Eu provision becomes immediate source of law for the national court or national
administrative authority no further implementing act is necessary for its application
in national legal order
- Eu treaty provisions, regulations – their infusion into national legal order is compete
they may be applied in any type of legal relationship
- 101 and 102 tfeu 
- Regulation 1/2003

Direct effect

- Directives: most complicated but also most frequently addressed  lay down
obligations for the ms they can sometimes deviate from the provisions, gives the ms
the task to implement and impose it the way they see fit
- Differentiation acc. To types of legal relationship
- C-41/74 van Duyn – Dirs. Vertically directly applicable
- No horizontal direct effect – c-152/84 Marshall
- Binding on MS not directly applicable within their legal orders
- Estoppel argument – c-148/78 Ratti --. A ms who has not implemented directive,
those cases the ms cannot rely on its own wrongdoing to enforce a right or interest
vis a vis a private individual, that is a limit to these principles regarding no horizon
direct effect
- In vertical relationship, you can rely on its applicability

Exceptions to no-horizontal-direct effect-directives

- CJEU creates alternative to reach horizontal relationships

- Inflated wide concept of state c-188/89 foster: ‘emanation’ of state’ – directives may
confer directly enforceable rights not only on employees of the state, but also on
employees of emanations of the state – see domingues para 39
- C-144/04 mangold – general principle of non-discrimination

Indirect effect:

- Futy of constitutionally constituent interpretation

- Interpretation of all national laws, as far as possible in conformity with eu law
- C-14/83 von colson
 - Might reach into reverse vertical situations esp admin law
- Limits: no contra legem, right to faire trial
- C-282/10 dominquez para 25 direct effect para 33 state liability para 43-44

Domiguez;

- Injury suffered on her way to work, can she have access to paid work levae in a
situation where a ms provides a additional condition on right to paid work leave
- Interesting`; how the court reacts and acts?
 Cjeu enagegs in trying to consistently say that the antional court has to interpret
national law in conformity with eu law, this directive from 2003,  consistent
interpretation, could she realy on direct effect of the directive
 Should non of these work, look at state liability, is the ms responsible for the
implementation and enforcement of eu law, and if it can be proved that loss have
been
 Case brings together, principles of implementation and enforcement of eu
law,and brings us to state liability

State liability:

- Member states are responsible for the creation and implementation and
enforcement of eu law
- Francovich (MS) liability
- (i) a breach of eu law; (ii) attributable to the member state; (iii), which causes
damage to an individual  if these elements are rstablished, compensation maybe
claimed in a legal action before a national court
- Basic principle of the eu legal order; national courts must protect the rights conferred
by eu on individuals, including enforcement of these rights where MS’s are
responsible
- These are all mechanisms that should be on the table of the national courts; the cjeu
can interpret but the national court functions as a judicial actor of eu law

National procedures enforcing eu rights

- Appplicaiton and enforcement of eu law

- Eu law is enforced according to national procedures
- Eu establishes rights and remedies – their enforcement depends on national
procedural law enforce them
- Member states have a duty to cooperate in achieving the full effect of eu law ‘effet
utile\
- National procedural autonomy
- Principles of equivalence and effectiveness
- C-33/76 Rewe and C-45/76 Comet cases
- Equivalence: rewuired that the member state shall not discriminate between claims
base on national law and claims arising out of eu law
 - Effectiveness: the enforcement of eu law based rights impossible or excessively
difficult
- C-127/73 BRT-SABAM – direct effect
- Courage Manfredi – eu rights but national procedural autonomy
- Directive 2014/104 on damages
- Directive 2019/1 on more effective enforcement

101 direct effect, courage case,

Manfredi, mo pads motorcycles, insurance fee that large groups of Italians were paying for,
cartel of insurance companies, many companies wanted to rely on art 101, complicated,
they thought we go to national court, they referred to cjeu, court said there is a eu right rely
on art 101, but eu law does not provide any procedures, so member states provide these, so
nothing changed, damages

Collective actions missing

Directive 2019/1:

- Administrative law,

The road from reg 17/62- reg 1/2003 – ECN+

- Disruption of enforcement model

- Parallel competences – shared enforcement
- Decentralization  dependance on national
- Big challenge:
Week 7:

Centralized enforcement of EU law; the Role of the CJEU

Rights & remedies in eu law

Centralized enforcement and decentralized

Enforcement of EU law by;

A. Right of private parties

B. Right of eu institutions
C. Rights of member states

Against whom?

1. The member states

2. Private parties
3. The EU itself

Recap decentralized enforcement upon MS  always via national courts,

Private parties enforcing EU law upon the MS:

- The basis: primacy of EU law (Costa)

- Improving legal remedies and political agenda go well together here
 The ‘New’ watchdogs: EU citizens, companies etc.
 Potential reservoir of 448.000.000 watchdogs (of flesh and blood) since Van Gend
& Loos combines with Costa E.N.E.L.
- The mechanisms to enforce your right (and strengthen the EU legal order):
 Direct effect (van Gend & Loos)
 Indirect effect (Marleasing; Faccini Dori, Domingue= eu law right to paid leave, eu
social policy law, somebody enforcing their eu rights)
 Member state liability (Francovich / Brasserie / Dillenkofer / Köbler)
- CJEU not (necessarily) involved!

Decentralized enforcement and 267 TFEU

- Decentralized enforcement of eu law upon the Member States?

 Member state courts play the lead role
 CJEU possibly involved through preliminary references (267 TFEU) –
interpretation issues
- Decentralized (?) enforcement of eu law upon the EU itself
 Member state courts less prominent
 CJEU had lead role through (mandatory!; see Foto frost) preliminary references
(267 TFEU) – validity issues, no national law can declare an eu act illegal, must
refer to ECJ, their role becomes bigger
 Thus: Not really ‘decentralised’!
Enforcing EU law directly before the CJEU

- EU versus member states (258 TFEU (always commission)/ 260 TFEU)

- Member states vs member states (259 TFEU)
- Member states versus eu (263 TFEU) annulment mostly
- EU vs EU (institutions inter se) (263/265 TFEU) interinstitutional litigation, annulment
or failure to act,
- Private (?) parties vs EU (263,265 or 268/340 TFEU)
- Not possible (no locus standi hard to get to the EU, plaumann problem)?  267 TFEU
(validity)xxz

Note: there is no private direct action against the Member State (= decentralized
enforcement; always via the national court) validity question, its not the most attrative
scenario  We can never take our own court to Luxembourg, always via national courts

Centralized enforcement of EU law upon the EU member states; treaty infringement

procedures

The procedure of 258 TFEU commission vs member states, this procedure you see how
much eu law looks like classic oublic law, find this in international law, classic international
law, what can trigger ms responsibility in treaty infringement actions? anything that
happens in the state by the state

- Basis: 17 (1) commission controls the process

- What triggers MS responsibility?
 LEX (easy);
 REX (general administrative practice); and
 IUDEX  national courts, big problem because independent
 Non-legal acts (factual infringements), e.g. Spanish strawberries

The procedure of 258 TFEU: the IUDEX

- High profile example: Commission versus Germany over the PSPP ruling of the
BverfG:
‘ EU starts infringement procedure against Germany over 2020 court decision’

Bverg declared an act from ecb to be ultra vires, but was not legal, only pspp ruling to
be illegal is the ECJ, started infringement proceeding against Germany
The procedure of article 258 TFEU II

Complaints lodged with Commission?

Letter of formal notice

 no resolution?

Reasoned opinion

 No resolution?

Referral to the ECJ

Treaty Infringement Actions against the MS:

258 TFEU

1. Direct enforcement
2. Quasi absolute discretion commission (17 TEU)  issue: is commission refuses, you
can always start member state vs member state
3. Room for dialogue / ‘diplomacy’ (pre-litigation)
4. Objectivity (no ‘guilt’ / ‘fault’ factor)
5. Little room for MS ‘defences’ (e.g. political crises, ‘federal excuses’, reciprocity (do ut
des))?
6. Judgement with declaratory nature

 Exceptionally: member states inter se

 (259 TFEU) e.g. c-145/04 spain vs uk

Treaty infringement actions against the MS: 258 TFEU

The DECLARATORY RULING OF 258 TFEU:

“MS must take ‘necessary measures to comply with the judgement of the Court”; art 260 (1)
TFEU  if CJEU says they have violated but ms says no

What if they don’t?

You can sanction

Sanctioning the member states under 260 tfeu:

- Purpose: compliance with judgements under 258 TFEU

- Procedure: simplified form of 258 TFEU (no R.O. though)
 Commission can ‘sue’ the MS for a lump sum and/or(?) penalty payment:
Commission v. France  French fisheries, court tells us the different raito between
lump sum and penalty payment
 Lump sum: punitive (for the past)
 Penalty payment; preventative (for the future)
 How to calculate? See commission communication of 2005:
(1): duration, (2) seriousness (importance of the rule and impact and duration of
the infringement) and (3) ability to pay
Special case: 260 (3) TFEU (non-implementation legislative directive)

Centralized enforcement of EU law upon the EU itself:

Actions for annulment

Enforcing EU law upon the EU

- The eu is based on the rule of law (art 2 TEU) and respect for fundamental rights,
including art. 47 CFR
- How to enforce?
- Direct:
 263 TFEU (annulment; privileged and non-privileged applicants
 265 TFEU (failure to act)
 268/340 TFEU (damages)
 277 TFEU (plea of illegality) (not separate procedure; always in conjunction with
263)
- Indirect:
1. Art. 267 TFEU (validity questions)

Article 263 TFEU: Which ‘Acts’ of the EU can be reviewed?

- Binding; an act defining the legal position of a person or entity/intended to have legal
effects (ERTA case)
- The ‘label’ of the act is not significant: ‘whatever their nature of form’
- Thus: no preparatory acts
 e.g. a decision of COREPER
- thus: no act of the MS
 e.g. ‘Bangladesh’ case
- thus: no primary eu law
 pringle: what about the European Council decisions under article 48 (6) TEU (the
ESM amendment) --. Council decision challenged, simplified treay amendment
procedure, not yet primary law, therefore challengeable under 263

Article 263 TFEU: privileged applicants

1. Member state versus EU

2. EU institutions inter se
- Grounds of annulment:
  Lack of competence
 Infringement essential procedural requirement
 Infringement of the treaties or any rule of law relating to their application
 Misuse of power (detournement de pouvoir)
- Deadline of 2 months is strict!
 Otherwise; ‘formal legality’, compare also TWD case (legal certainty then prevails)
 german government initiated annulment against eu tobacco directive, one day
late, inadmissabke, very strict deadline  TWD: simple rule: if you can go to
court directly, you must, no indirect access via national courts

Article 263 TFEU; non-privileged applicants

- Action admissible under para 4 if:

 One if the addressee
 One is not the addressee, but:
Directly and Individually concerned by
 an act addressed to somebody else (e.g. a member state)
 a (legislative) act of general application
Directly concerned by:
 a regulatory act not entailing implementing measures, Inuit
 Why are private plaintiffs non-privileged?
 Who are ‘private’? also public law entities!
 E.g. regione siciliana or C-872/19 venezuela

Article 263 TFEU: the non-privileged applicants

- Individual concern under 263 TFEU

- The Plaumann test (UPA, par 36): ‘as if addressed to you and you alone!’
 Open versus closed group(council decision ad its addressed to all companies who
produce genetically modifief mais for more than 300.000 pounds, who produces
more than this in the EU, only 3 companies, te council regulation is then only
addressed to these 3 companies, can they challenge the regulation under 263,
NO!, but because today its three maybe tomorrow 5, therefore it doesn’t eork,
open grouo, when does it work, if the it would be in the previous years, closed
grouo, there is no c th company that can join this group, if its closed you are
individually concerned and you can start 263)
- Harsh consequences – (e.g. Danielsson)  woman lived in French but oversees
territories, in the French pacific islands, 1990’s French government had decided to
nuclear tests above grounds, they thought it was absolutely necessary, military place
close to her island, eu law link, if you want to do nuclear test you need to ask
permission commission, EURO~TOM, they got permission, she went to the court, to
annul this commission decision authorizing these nuclear tests, she thought she
would be individually concerned, court said you can move, not individually
concerned, this was during European convention, do something about annulment
more accessible, citicism was heard, in treaty of Lisbon they changed the text, new
 paragraph (4) which allows non privileged, to have direct access if we are challenging
regulatory acts not implementing measures, only need to prove that we are directly
concerned, criticism of plaumann was heard or was it, regulatory act not defined,
then came inuit case
- Mind the ‘mirroring effect of the TWD rule’

Non-privileged applicants: ‘Regulatory acts non entailing imp. Measures’

Only direct concern, NOT individual concernm

Inuit case: “all acts of general application not being ‘legislative acts’”  art. 289 (3) TFEU 
seal furs, if you could market them in the EU, strict eu regulation, challenged by actors,
definition of regulatory acts, the procedure is determining it, it cant be a legislative
procedure, not ordinary or special, tertiary law, acts adopted by usually the commission,
general application yes because it’s the commission, `inuit was pointless, because it was
under 114, they had to prove individual and direct concern

Was that the case with Regulation 1007/2009 (strict regulation of the marketing of seal fur
products?

Procedure followed?

‘not entailing implementing measures’ telefonica case, means no other measure can be
taken, directives are hard to challenge, adopted by the commission is regulatory but it’s a
directive it needs implementation, therefore it entails implementing measures

- Emphasis on MS responsibility (par. 100-105)

Private parties: no direct remedies available? Decentralized enforcement

- Then the only redress is through national courts (see UPA; see INUIT)
- 267 TFEU: preliminary reference on validity
- Many issues:
1. One depends in principle on national procedural law (see REWE COMES, see also
art 19 TEU)
2. Accessing MS courts may be hard too To access national court, eu act are
general application, fisheries nets regulation, new eu legislation on fishery nets,
banned some nets, dutch guy got the old nets, thought the regulation was invalid,
he is not individually concerned, how could he get to the dutch courts, only thing
he could do is get the local media, and it became criminal procedure, to get
access to national court, dutch court reffered to ECJ, you have to break the law to
get access to court
3. Interim protection not always possible (see Zuckerfabrik)
4. The national court must be willing to refer (see Ferreira da Silva)
UPA 36 para: plaumann doctrine, individually concerned by an act of the Eu instiutions 
mr. plaumann, could import mandarins very low import tariff, decision addressed to the
Germany that they should level with the internal market, this effected mr plaumann, now
had to pay full price of importing mandarins, but decision addressed to germnay, not him, he
was directly concerned but was he individually concerned, no! effected by the, plaumann
must prove, yes the commission decision was addressed to germnay but if yout think about
it its only addressed to me, really hard to prove, he failed, coudnt challenge decision under
art 263