Law of the European Union

2020-2021

Topic / Seminar 3: The system of EU Competences, Judicial Control of Union Acts and
the Charter of Fundamental Rights of the EU

This topic / seminar is designed to introduce you to the subjects of the system of EU competences,
judicial control of Union legislative acts and the Charter of Fundamental Rights of the EU.

In terms of substantive law, you should aim to acquire a basic understanding of several core issues:

 The principle of conferral underlying the competences of the EU

 The division of competences between the EU and the Member States
 The catalogue of competences of the EU
 The principles of subsidiarity & proportionality and their enforcement through judicial and also
(in the case of the principle of subsidiarity) political methods
 Judicial control of EU legislative acts through direct (annulment) actions and indirect actions
(preliminary rulings)
 The legal history of the protection of fundamental rights in the EU
 Substantive rights recognised in the Charter of Fundamental Rights of the EU and their
application to EU institutions as well as the Member States

Many of you might find the division of competences between the EU and the Member States and the
system of EU competences confusing, since the EU as a sui generis organisation has a different
system of competences both to nation states and international organisations. Similarly, unlike national
judicial systems the EU’s supranational judicial organisations are difficult to access for individuals but,
again, unlike international judicial organisations, their decisions make significant impacts on both the
EU and national legal systems.

The feeling of confusion at the beginning of EU law studies is normal and natural given EU’s sui
generic character. The key here is to try to get used to and adopt EU’s own institutional supranational
logic when thinking about EU institutions and systems. The seminar will provide an opportunity to
address any questions and remaining confusions.

Basic Preparation

You should study the 8 CANVAS presentations for Topic / Seminar 3.

Having studied those presentations, you should then complete the accompanying MCQ test.

Please remember: the contents and results of this test are formative and you can attempt the questions
as many times as you like – but you need to complete the entire test at least once, before the deadline
at the end of the Semester 1 teaching period, in order for this MCQ test to count towards your final /
overall summative mark for the module. You will be awarded 5% for completing 4/5 of the MCQ tests
available in Semester 1.

Essential Reading: Primary Materials

 Consolidated version of the Treaty on European Union, Arts. 2, 3, 5, 6, 7.

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 Treaty on the Functioning of the European Union, Arts.2-6, 114, 263, 267, 352

 Protocol No 2 (attached to TFEU) on the application of the Principles of Subsidiarity and

Proportionality, Arts.4-6

 Charter of Fundamental Rights of the European Union, Arts. 51 & 52

 C-367/98, Germany v Council and Parliament (Tobacco Advertising) EU:C:2000:544

 C-58/08, Vodafone and Others, EU:C:2010:321

 C-84/94, United Kingdom v Council of the European Union (Working Time Directive),
ECLI:EU:C:1996:431

 C-233/94, Germany v European Parliament and Council (Deposit Guarantee Scheme),

ECLI:EU:C:1997:231

 C-25/62, Plaumann, EU:C:1963:17

 Opinion of AG Jacobs in Case C-50/00, UPA v Council, EU:C:2002:197

 C-8 & 10/15, Ledra Advertising v Commission ECLI:EU:C:2016:701

 C-617/10, Åklagaren v Hans Åkerberg Fransson, ECLI:EU:C:2013:105.

Secondary materials

 Craig and De Burca, EU Law – Text, Cases, Materials, Chapter 3 (competence), pp.73-103

 Chalmers et al, European Union Law, Chapter 9, pp 393-406 (for subsidiarity and proportionality);
Chapter 6 (on fundamental rights protection, including on the EU Charter of Fundamental Rights);
Chapter 10, pp 423-452 (on annulment actions under Art 263 TFEU); and Chapter 4, pp 174-198
(on the preliminary reference procedure)

 or the equivalent chapters on the same topics in another appropriate textbook.

Try to read at least some of the below articles/book chapters to support your answers further:

 D Jančić, 'The Game of Cards: National Parliaments in the EU and the Future of the Early Warning
Mechanism and the Political Dialogue' (2015) 52(4) Common Market Law Review 939.

 C Lacchi, ‘Multilevel judicial protection in the EU and preliminary references’, (2016) 53(3)
Common Market Law Review 679.

 A Albors-Llorens, ‘Remedies against the EU institutions after Lisbon: An era of opportunity?’

(2012) 71(3) Cambridge Law Journal 507.

 G De Burca, ‘The Evolution of EU Human Rights Law’ in Craig and De Burca, (eds) The Evolution
of EU Law (OUP 2011) 465-497.

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 M Szwarc, 'Application of the Charter of Fundamental Rights in the Context of Sanctions Imposed
by Member States for Infringements of EU Law: Comment on Fransson Case' (2014) 20
(2) European Public Law 229.

Basic Questions to Prepare in Advance of the Seminar

The seminar will begin with your tutor and the class exploring these core questions together. Please
prepare notes in response to each question and make an effort – however hard it may seem! – to
contribute to the group discussion. Remember also to raise any particular queries or difficulties you
may have encountered in the course of your preparation – your seminar tutor will be very happy to help
clarify and address them.

1. How would you describe the principle of conferral and what does this say about the nature of
Union competences under the EU Treaties?

2. How would you best describe the terms ‘subsidiarity’ and ‘proportionality’?

3. What is the role of national parliaments post-Lisbon in the monitoring of the subsidiarity
principle?

4. How did the CJEU progressively develop its case-law on fundamental rights protection before
the adoption of the Charter of Fundamental Rights?

5. Does the Charter of Fundamental Rights apply to the EU institutions and the Member States?

6. Can you identify some of the rights featuring therein? Do you agree that the Charter offers an
extensive catalogue of fundamental rights?

7. What procedures may be used to contest the validity of EU legal acts?

8. What do we mean when we say ‘privileged’ and ‘non-privileged’ applicants under Article 263
TFEU?

9. Can you explain how the preliminary reference procedure works?