then theEUROPEAN UNION LAW

Lecture 1

Origin and development of the European Union:

The birth of the European union takes place after IIWW, the various state of Europe merged together in an
organisation with the aim to avoid new conflict and to promote unity and cooperation.
The integration process of the EU takes place in many steps
 1st step -> European coal and steel community 1952
It was established to integrate the industry of the new-born European community, was based on the belief
that the new economic-political would have been useful to avoid potential conflict (mainly between France
and Germany), was created to pursue the interests of the community, not of the single members.
Aim: constitutional framework, manage the resource and production on int. level during the reconstruction
of the European community after the war.
It is no longer in force because it had a deadline of 50y duration, plus the project of integration was not
meant to be definitive.
 2nd step-> treaty of Rome 1957
It issued the European economic community (EEC) + European atomic energy community (EURATOM).
This step is pure commercial since aimed to the creation of an internal market, the tools provided were the
economic fundamental freedoms (work, money, sell of products) and the introduction of competition
policy with the aim to safeguard the competitive market and the fundamental freedoms.
Aim: widening the integration process to new areas (new areas of cooperation to deal with new situations)

 3rd step-> 30y of no further development nor amendments to the pre-existing treaties (these
international treaties in order to be amended require the agreement of the signing parties).
many stops occurred sometimes ex. Envisage treaty for the creation of defence of EU: no possible to find an
agreement thus the project failed

 4th step -> European single act 1986

It is the revision to the treaties of Rome.
Aim: strengthen the role of the European Parliament, replaced the unanimity on decision for the free
market with the qualified majority, established the European Council.
--case of the empty chairs: Charles de Gaulle boycotted European institutions due to issues he had
regarding new political proposals by the European Commission on agricultural policies)--

 5th step-> Maastricht treaty 1992

It established the European union and the EU citizenship, introduced the 3 pillars (areas of policy), created
the monetary union, from this point the economic nature of the integration process disappeared, starting
from the amendment of the name of the union.
All the states of Soviet Union become potential candidate of EU, need to revise the institutional framework
of the union.
Pillars:
-1st includes the responsibilities of the European communities, involving social policy, regional policy, and
environmental policy.
-2nd concerns common foreign security policy
-3rd concerns the cooperation in justice and home affairs
  6th step-> treaty of Amsterdam 1997
The main point is the modification to the pillar structure, judicial/criminal affairs were brought to the first
pillar (community method), this to promote the full cooperation in the union (then a new third pillar was
crated for police activities and criminal justice).
A second point of treaty of Amsterdam is the trey allowing the EU to take a position against certain
member states which violate in a continuous and serious way the fundamental values of the union.
--enhanced cooperation= when it’s not possible to achieve an agreement for the majority of the states it
has been decided to confer the possibility to the smaller group of disagreeing states to continue on their
way (rather than doing nothing they’ll do in their ways) ex. Euro, Schengen –

 7th step-> treaty of Niece 2001

One significant development is the European charter of the human rights, is a codification of the
fundamental rights protected by the union (btw they were already protected, but now they are now
classified as a source of European law and used as interpretative tool for the CJ) but it has no binding value.
 8th step-> European constitution 2004
The project of the European constitution failed due to the rejection by some member state (it was seen as
the step to create a federation of states rather than an international organisation)
 9th step-> Lisbon treaty 2009
Is based on the treaty for the constitution, took out the concept that reminded to the creation of a state
rather than organisation. Abolished the pillar structure, no more European community but now union (with
one pillar with all the competences, with specific intergovernmental regime).
Here the charter of rights acquired the same values of the treaties (TEU and TFEU)

Lecture 2

The institutional framework

The European framework is established in article 13 of TFEU, some institution derived from the older
framework of the European economic community and other younger were introduced later after the
creation of the union (these institutions are referred as bodies), then there are the agencies which are
more independent and hold technical functions.
The legal discipline of the institution is complex, since the rules can be found in different sources and
treaties, beside them there are the procedural rules for the internal functioning and for the performance of
the institution’s tasks (found in protocols).
There ae some basic principles guiding the activity of the institutions, which always have to make the
interest of the EU citizens and of the Union (art. 2); art 14. States that each institution must operate within
the limits of the competences provided to them by the treaties; more they shall cooperate one with each
other (loyal cooperation- established by ECJ); other principles such as legitimate expectations, legal
certainty (some more familiar to the national levels, other more peculiar to the union). These principles aim
to avoid harm to the result the various institutions are required to achieve

The European council

Must be distinguished from the council and the council of Europe (is an external organisation to the EU). It
became an institution with Lisbon treaty, it the codification of the practice of the 60-70’s when the various
head of state met to discuss about the objectives to be pursued by the EU institutions (informally).
For this reason, its function for many years were not transparent and had no clear nor specified tasks.
It is composed by the head of states/government of the states (depend on the organisation of each
country), the president of the EU council is elected by the member of the council (but has no other roles on
national level, mandate of 2 years), the resident of the commission, the high representative (In charge of
foreign affairs of the union).
The roles of EU council are to set the goal of the union (provides impulse to the EU policies and defines the
direction of EU action), it cannot take part directly to the legislative functions, it has the possibility to take
some measures with regard of the function of others institutions

Understand the difference between int. organization and European union-> Schuman declaration is
grounded on the functionalist approach to int. organization, the basic idea is that integration process must
be carried out by many steps and not by on single plan.

Lecture 6
The EU legal order-> primary law
From the hierarchical point of view:
1. primary law= treaties of the union and other sources which have the leading role in the EU legal order
such as the charter of fundamental rights, then there are also the general principles (Treaties, protocols,
treaties of accession, general principles, charter of fundamental rights)
2. international law= as an intermediary source, composed of the international agreement signed by the
union, it is higher only to secondary law (when making decision int. law must be taken into account and
comply with it as well as does primary law)
3. secondary law= all the acts adopted by the EU institutions, with the treaty of Lisbon the hierarchical
division was made in relation to this source of law (the distinction is linked to the distinction between
delegated or executive powers provided to the commission)
4. soft law acts= nor directly mentioned by the treaty, they are usually not binding acts of the European
institution that clarify provisions on a specific matter (referred to as guidelines)

primary law
treaties-> they are the foundation of the EU legal order and describe how this order works; they confer
rights to individuals (treaties do not only create legal situation in the member state, but also interfere with
the legal sphere of the individuals); the court of justice described the treaties as the constitution of the
union meant that they are the highest source of law as the constitutions is at national level; they can be
modified in any of their parts if the members state willing so with different procedures.

The procedure for the revision of treaties differs from the ordinary international rules, providing specific
procedures established in art. 48 TFEU:
-ordinary procedure= the power of modification is provided to the parliament, the commission and each
member state;
/full procedure/-> once the proposal is made it is transmitted to the council and then to each
national parliament to discuss about such proposal; the council should vote about the decision to
proceed with the discussion or to make it fail (vote with simple majority, no specific requirements
about the number of agreeing states); if the council approve the discussion it is set a convention
(representative of commission, parliament, head of parliament and member states) that draft a
mandate to appoint the intergovernmental conference that will raft the specific modification to
apply to the treaty; finally the modification is adopted at European level and then ratified at
national level according to precise constitutional procedures.
/simplified procedure/->In some specific case the involvement of the convention can be avoided
and the council can draft personally the mandate for the intergovernmental conference; in case of
modification of internal competence of the union, but not to extend such competences (chapter 3)
-specialised
Protocols -> they complement and complete the treaties, first of all they provide the legal regime for
transitional matters (prot. 36), avoid excessively lengthy texts, provide differentiated regimes for some MSs
The general principles-> they are a parameter to test the validity of secondary legislation (shall comply with
them, otherwise it will be annulled); ex. Principle of proportionality, subsidiarity, non-discrimination.
Other functions: interpretative parameters and parameter for legal review.
Some principles are typical of the union (ex. Mutual trust-> member state shall trust each other to permit
the free movement of goods according to the standards that each member state provide), while other are
borrowed from the national order (ex. proportionality).
As a general principle, EU law prevails on national law, there is no rule preventing the council to issue law
that do not conform the national order/constitution-> if a member state does not accept this it is in
contrast with the principle of conferral.

Protection of fundamental rights in Europe= the treaty of Rome did not include the protection of
fundamental tights until 1969 (Stauder), fundamental rights are now part of the general principle of the EC
legal order, basing on common parameters of member states and international agreements. Nowadays
there is a further dimension for the protection of human rights, but this does not diminish the power of FR
as a general principle.
The ECHR became binding with the treaty of Lisbon (art. 6), the charter is a codification of rights, its
function is only to write down what was said by the ECOJ; is composed of six chapters (dignity, freedoms,
equality, solidarity, citizenship, justice); it is binding for many subjects starting from the institutions of the
union (in order that they complied with the respect of the rights) to the member state, however according
to art. 51 member state are bound by the charter only when they are implementing the EU law (this to
prevent the extension of the competence of the union).
Art 52 sets restrictions to the rights enshrined in the charter-> in order to pursue an objective interest of
the EU legal order; it also establish the equivalence principle
There are 3 different level of protection of FR: national level, European legal order trough general principles
and the European convention of HR

Secondary law
It is continually growing, the main sources are described in art. 288 of TFEU and provides a division
between the binding acts (regulations, directive, decisions) and not binding acts (opinions,
recommendations); another important division is between codified and non-standard form acts (ex. Inter-
institutional agreements, international agreements); there are other categories which are mentioned in the
various treaties but are not cited in art. 288.
All these categories share some common elements; first of all, they must be based on a specific legal basis
(describe the competences upon which it is possible for an act to be issued), secondly the statement of
reasons why a specific act is adopted (ex. The preamble), finally all the acts must be published in the official
journal of the EU in order to formalize the enter in force of such act.
Distinction between legislative and non-legislative acts: introduced by Lisbon treaty, this distinction is not
based on the content nor the category of the act but depend entirely on the procedure that has to be
followed in order to adopt that specific act (consequence of the legal basis art 311-> legal basis clarify the
decision making procedure to adopt an act). A further distinction is between the main acts and the
delegated acts which must comply with the main one and with the mandate received.
All these distinctions can interfere one each other.

Regulations have 3 features:

-general application -> drafted in a way similar to the national law, they identify the category of recipients
but in general terms and objectively, the addressee can be identifiable according to their objective factual
or legal situation, they not necessarily cover the whole EU territory but can be addressed specifically to one
or more MSs (in the sense that it refers to a specific situation, thus does not intend to refer to a specific
subject)
-binding nature-> regulations are binding in their entirely, they shall be respected and apply as a whole (no
partial or selective application), they create obligation and rights
-direct applicability -> main criteria to distinguish regulations from directives (which do not have direct
applicability), the acts are adopted directly in the national legal order and MSs cannot adopt intermediate
acts (they do not need any transposition-> it is neither possible to transpose the text of the regulation at
national level); regulations can also have direct effect (different concept of applicability= no need of
transpose) which is the capacity of any disposition to be applicable before a national judge, it aims to
provide rights to individual.
The role of the member state upon regulation is very limited since it basically replaces the national law, the
only activity of MSs is to ensure that such regulation is correctly applied (ex. Impose sanctions for breaches
of regulations)-> Regulations are used to harmonize national law and provide a single regime to the
members of the union. For this reasons regulation are a kind of source not so compatible with the general
principles of subsidiarity and proportionality (not totally interfere in the MSs), they have stronger impact on
the sovereignty of the states and are used in the context of exclusive competences of the EU.

Directives have 3 main characteristics:

-do identify their addressees -> only specific subjects can be the addresses of the directive (only specific
member states), identify a specific category for application
-binding only in relation to the result to be achieved -> results are addressed to the member state, set goals
to be achieved and require members state methods and forms to achieve such goals
-cannot have direct effect-> individuals cannot rely the content of the directive before a national court,
they need to be transposed at national level
Directives are an instrument which entails a biphasic structure to fold procedure: on the one hand they are
adopted at EU level, but it does not suppose the direct applicability and on the other had member state
must implement at domestic level (requires the modification of the national legal order in order to make it
compatible with the directive text).
The decision regarding the modalities to achieve the result expected by the direction are left to the
willingness of the member states but there are some general rules to follow: the duty to change the order
in a manner conform to the goals to be achieved, transposition must happen trough a national law and not
an administrative act, must respect the deadline for the modification of the national order (otherwise an
infringement procedure will be started as a remedy).
Duty of standstill: even tough states are not obliged to adopt the measures before the end of the period of
transposition, they must refrain from taking measures that could compromise the result prescribed.

Decisions are the last category of binding secondary legislation; they are quite similar of administrative
decision taken at national level; they are a kind of act adopted by the EU commission in order to apply EU
law on a specific case.
After treaty of Lisbon, decision can be specifically addressed to individuals and states, not only the issuing
of non-addressed decisions-> a decision shall be binding in its entirety, so have general application when
the addressee is not specified, but when a decision specifies those to whom it is addressed it shall be
binding only to them.

The decision making procedures

The main reason to provide rules for the decision making procedure is that the EU has no original
competences, it is a way to safeguard the position of the addressee of the decision (it may affect the
position of the recipient), they limit the power of the institution by setting rules and principles to be
followed by the European institution.
They are a direct consequence of the principle of institutional balance and conferral, meaning that
procedural rules that clarify how institutions shall behave are per se the rules that are better suited to
make each institution complying with its duties and not going further than the power conferred to it by the
treaty.
All the procedures are inspired by the principle of loyal cooperation, that always must be taken in
consideration.
Legal basis clarify which position shall be adopted by the institutions, the decision shall be taken according
to the ground of content of the envisage; the powers of the institution are restricted since the choice of the
legal basis is not free but strictly and objective connected to the content of envisage.
Legislative procedures
The first phase is choosing between the ordinary or special procedure; in the context of the ordinary
procedure is that the council and the parliament have the same features and power, on the other hand
there are two families of special procedures (difference laying on the role of the parliament.
?????
The power to initiate legislation is subject to special cases-> the commission can be recommended by other
institutions and organisation to initiate a procedure; after the treaty of Lisbon the initiative is given also to
the EU citizens (regulated by art. 14.7 of TFEU), however, the commission is not obliged to take on the
proposal.
The monopoly of the commission when it comes to the initiative proposal of a legislation is somehow
reinforced by some powers and safeguard provided to it in the latest stage of the all legislative procedure;
the commission is involved only in the very first phase then the powers switch to the parliament and the
commission, so the ratio to safeguard the power of the commission is to keep a sort of control on the text
when it is discussed by the other institution: on the one and the proposal can be modified by the council
only if it vote on unanimity, but on the other hand there cannot be modification to the essential elements
of the proposal.
Ordinary legislative procedure imposes a very clear limit with regard to the readings that can be carried
out: no more than 3 by the council-> if they are not sufficient the procedure falls.
Under the first reading, the first to vote is the European parliament, which can approve or deny the
proposal of the commission and modify it; on the second reading the power is in the hand of the council
that can be either approve the act or propose further amendment;
???
Special legislative procedure …..
Delegating acts …..
With regard to implementing power it is a primary task delegated to national authorities, but there can be
cases in which is necessary to have a common basis for the implementation a specific EU secondary
legislation (Ex. Adoption of secondary legislation in EU exclusive competences)

The relationship between EU law and national legal orders

Two fundamental principles: direct effect and primacy.
Direct effect principle-> (van Gen en Loos), duties are a task of the union so there was the prohibition on
member states to adopt their owns customs duties (art. 12), this company asked the national court to apply
directly the rule of the treaty in order to obtain the annulment of the application of the Dutch custom duty
(since the rule was part of international law, the national judge had no competence, plus individuals could
not rely on international agreement, since treaties do not confer any rights to individuals= CJEU ruled that
in the context of the disposition of treaties could be relied upon by individuals, now through the direct
effect principles treaties provided individuals of rights);
Direct applicability -> no need for national implementing law, it is the capability to produce direct effects
Direct effect-> it refers to the singles dispositions and not to all the source of law; effect can be vertical
(capability to confer a right to individual which can be enforced vis a vi to member state, or impose an
obligation on individual) and horizontal (???).
The basic requirements for direct effect of disposition: unconditional (negative obligation on member state-
> EU law in not conditioned by national acts since it does not leave margin of discretion to them), clear (the
content should be easily grasped by the recipient).
TREATIES=If the conditions are met, there is vertical and horizontal effects, the assessment take place on
case by case art. 325 (a precise and unconditioned duty)
CHARTER= horizontal direct effects of some provisions acknowledged; art 21 (Cresco investigation)
DIRECTIVES= as a rule, prior to transposition, the directive has no effects in national legal orders, therefore
the recipient of the rights provided cannot invoke them, within this period the only requirement is to
respect the standstill obligation; the matter change when the transposition has ended: the commission can
begin an infringement procedure to its duty within the prescribed time limit, this remedy does not
guarantee in a sufficient way the interests of individuals (rights are not sufficiently protected)-> the CJEU
decided that also directive have direct effect and that MS cannot benefit from their own infringement;
conditions: precise and unconditioned, must be correctly transposed.
Directives can only have vertical effects (individuals can rely on them only when the national state is
involved in a vertical relationship)-> problem can be disparities due to the legal nature of the entities
involved.
Directives cannot have horizontal effect related to the need to safeguard the principle of legal certainty
(not possible to dis-apply national law to prefer directives), one of the further remedy created by the ECJ is
to say that it may happen that a specific directive was an implementation of a general principle of EU (it has
direct horizontal effect)->

Supremacy of EU law
The primacy principle was first created in 1964 (costa v. Enel)-> initially EU law were the subject of
ratification at national level, so treaties were somehow adopted by an ordinary law, happened that they
were conflict between European and national dispositions: Italy nationalized Enel as a company fully owned
by the state, Mr. costa said that this nationalisation was in contrast with the treaty, the Italian
constitutional court said that the relation between EU law and national legislation had to be resolved on
the ordinary criteria which regulates the inconsistency between rules (the court held that the EU and
national provisions were on the same hierarchical position), on the other hand the ECJ held that EU had
primacy over national law both in case of pre-existing and future legislation ;
All disposition as a whole of EU law have supremacy over domestic law:
-both direct effect and primacy-> duty of national judge to dis-apply the national law not in line with EU law
-only supremacy (ex. Directives in horizontal situation) -> other remedies
Simmenthal case 1978= CJEU clarifies implications of primacy; where a provision of EU land endowed with
direct effects is at stake, the national judge enjoys an autonomous power to dis-apply domestic legislation
clashing with the EU-> national law when it is adopted is already in contrast with EU legislation is simply
invalid, so it is not needed for the national judge to rely on the ECJ to the annulment of such invalid law.
Many constitutional court of MS made some reservations over the EU supremacy:
-fratelli Costanzo 1989: not only judicial authorities but also any other public body
-factortame: not only in the event of a plain contrast, but also in case of national provisions hampering the
effectiveness of EU law;
-lucchini 2007: in exceptional cases, primacy overcomes the principle of res judicata (see)
There have been cases in which national courts have raised the possibility to exercise a sort of control over
EU law which was going to harm the basic principles of the constitution ex. Taricco case 2015 (the outcome
of ECJ recognized that there may be situation in which the principle of primacy should be balanced in
favour of other fundamental principles of EU law).
The possibility to verify the compatibility of national and EU provisions: Italian constitutional court made
clear that it reserved the right if in future specific disposition of EU law will affect the constitution; Germany
also reserved the power to verify whether the EU is acting within the context of its competences, the
constitutional court reserved the rights that the principle of conferral is respected by the institution.

The preliminary reference procedure

It’s the cornerstone of the whole set of legal remedies provided for ensuring the effectiveness of EU law, it
can happen that national judges have doubts about the correct interpretation and application of the law,
and are the first entitled to open up a dialogue with the ECJ (which is the ultimate interpreter of the EU
law), the mechanism allows the development of the legal order and in many cases this dialogue was based
on a preliminary procedure.
There are two kind of preliminary reference procedure:
-interpretation-> the most common, in case of doubt about any piece of law (treaties, secondary law,
general principles, ecc); the main goal is to ensure that eu law is interpreted and applying in a correct and
uniformed way in all the MS (to avoid fragmentation on national level)
-validity-> to confirm whether a EU disposition is valid and complying with the higher sources of EU law (ex.
Validity of delegated act), the subject of the preliminary reference can only be a piece of secondary law,
same scope as action of annulment; it completes the judicial scrutiny on the legitimacy of EU law since it
extends the possibility for private individuals to go before the ECJ and ask for an evaluation of a piece of
secondary law (there are some requirements for individuals which makes this procedure unlikely to
succeed); in the context of the preliminary procedure the request can be directly made to the national
court (converse in respect of annulment procedure).
Case Dorsch Consult-> only national court/tribunals can submit a request for a preliminary ruling
The preliminary question shall be real and relevant (actually connected to the dispute a quo, no merely
theoretical/hypothetical) and necessary (the national court or tribunal needs the CJ’s answer to be able to
solve the dispute)-> these requirements were introduced by the ECJ to set a limit to the practice.
Interpretation is compulsory only for the last instance courts or tribunals unless the question is identical to
a previous one
Case foto-frost-> all national courts and tribunals can examine the validity of an act of the EU if they deem
the grounds for invalidity unfounded; on the contrary they have no power to declare a provision of EU law
invalid

The annulment procedure (art. 263-264)

The main goal is to ensure the legitimacy of secondary law, as a consequence there can be only one
category of defendant which are the EU institutions (Lisbon treaty expanded the notion of defendant-> EU
council+…).
The subject of annulment procedure can be any act as long as that act can have legal effect and affect the
position of the recipient, as a consequence only definitive acts that have some kind of effects vis-a-vis on
recipient, regardless of the nature and formal type of the legal source exception for CFSDP acts.
Here the function of the court refers to the fact that the secondary legislation is regularly adopted, it’s not
about the merit of the act, meaning that procedural rules were respected and the compliance with primary
law or higher hierarchical sources (the content is a matter and task of the parliament/council).
There are specific grounds for review for this reason (it is peculiar of administrative courts, while civil courts
do not have ground for review because they decide on the merit, since do not decide on the legality of the
review), these grounds are applicable also under the preliminary reference for validity:
1-lack of competence-> can be absolute (act adopted in a field not in the competences of the union) or
relative (act adopted by an institution but the competence is of another institution)
2-violation of essential procedural requirement-> ex. burden of legal basis to prove the competences for
the adoption of a specific act; lack of statement of reasons; failure to compulsory consult in the approval
procedure; violation to be heard during a decision-making procedure
3-misuse of power-> a given power was provided to the EU but such power was used in order to achieve a
different objective respect to the one that was expected at the moment of the conferral
4-violation of the treaties-> ex. General principles of fundamental rights; under this remedy there may be
some limits for the assessment of the content of secondary law
Legal/locus standing-> the rules to have access to the ECJ
In the case of annulment procedure beside the ECJ is involved also the tribunal of the union, when the
applicant is a state or an institution the case goes to the ECJ, in case of legal/natural persons the case goes
first to the tribunal and then to the ECJ.
In art 263 there are 3 categories of potential applicants:
-privileged refers to MS and political institutions of the EU (EP, commission, council) since they do not have
to prove anything (a direct interest in the act to be annulled) in order to appear before the ECJ, the willing
to safeguard the EU legal order is enough
-semi-privileged are the EU central bank, auditor
-non-privileged such as natural and legal persons can go before the court only
a. when an act is addressed to them;
b. when the act is of direct and individual concern to them (ECJ stated that acts with general application
cannot be challenged, to avoid actio popularis for acts that individuals may not like) meant that there is no
discretionary impact between the act and the individual-> plaumann formula
individual concern= this concept is interpreted particularly strictly. The sole fact that an applicant's legal
position is modified by the contested act does not mean that they are individually concerned by it.
According to the leading case of Plaumann, a natural or legal applicant will be individually concerned by an
act that is not addressed to them if the act: “affects them by reason of certain attributes which are peculiar
to them or by reason of circumstances in which they are differentiated from all other persons and by virtue
of these factors distinguishes them individually just as in the case of the person addressed [by the act]".
Direct concern=An act will be of direct concern to an applicant if it has legal effects for the applicant; the
act must affect the legal situation of the applicant + Implementation of the act (if any) must be purely
automatic and result from EU rules without the application of other intermediate rules. The act must leave
no discretion to its addressees who are responsible for its implementation.
--In summary, if an act is not specifically addressed to the applicant, then the applicant will have to show
that it is of direct and individual concern (see Individual concern), unless it is a regulatory act without
implementing measures (see Regulatory act without implementing measures), in which case only direct
concern (see Direct concern) needs to be shown for the action for annulment to be admissible—
c. Regulatory act without implementing measures, Therefore, a private applicant will have standing to
challenge the validity of a regulatory act that is of direct concern and which does not have implementing
measures, but which is not of individual concern to the applicant; the treaties do not define regulatory act.
It has been left to case law to do so. Case law has defined "regulatory act" as being any act of general
application that is not a legislative act, as defined in Article 289 of the TFEU; regulatory act includes
delegated act, implementing acts, acts adopted using the regulatory procedure with scrutiny
The effects of the decision of the court are different:
-ex tunc-> the act is void as from its entry in force of the judgement
-erga omnes-> the invalidity applies generally
-follow up -> the institution involved must take all the necessary measures to cope with the annulment and
adopt new measures which are legitimate
In case of rejection of annulment

Exploring the principle of supremacy in EU law

Direct effect:
“The Community constitutes a new legal order of international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only
Member States but also their nationals. Independently of the legislation of Member States, Community law
therefore not only imposes obligations on individuals but is also intended to confer upon them rights which
become part of their legal heritage.”
«The vigilance of individuals concerned to protect their rights amounts to an effective supervision in
addition to the supervision entrusted by Articles [258] and [259] to the diligence of the Commission and of
the Member States.” Van Gend en Loos (1963).
Van Gen den Loos case -> direct effect and supremacy of EU law, a consequence of supremacy is (from the
case of fratelli Costanzo) is the disapplication of incompatible national law by the public administration, this
also requires that national law cannot require a different authority to solve the conflict.
Supremacy:
“The integration into the laws of each Member State of provisions which derive from the Community, and
more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to
accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a
basis of reciprocity.” Costa v. Enel (1964)
An important consequence of the supremacy of EU law over national law is that, in case of conflict between
the two, EU law takes precedence.
This means that national courts or national administrations (Fratelli Costanzo, 1989) must “disapply”
national law and apply EU law instead.
This also means that national law cannot require a different authority to solve the conflict (e.g. a
declaration of unconstitutionality by the Constitutional Court) (Simmenthal, 1978).
Through the direct effect and supremacy of EU law, the court has managed to create a llegal system which
certainly renders the union law more effective and empowers individuals that can rely on EU law rights
before their own institutions.
The conferment of right is almost always accompanied by the imposition of an obligation/prohibition on
another individual or entity and that, in case of breach, there may be the possibility of imposing sanctions
or penalties.
Example:
Since the very beginning EU law encompassed competition laws (ex. Laws prohibiting certain anti-
competitive conducts on the part of undertakings).
Key provisions can be found in title VII (art. 101-102 TFEU).
Art. 101= The following shall be prohibited as incompatible with the internal market: all agreements
between undertakings, decisions by associations of undertakings and concerted practices which may affect
trade between Member States and which have as their object or effect the prevention, restriction or
distortion of competition within the internal market.
EU competition law are applied by the EU commission but also by National competition authorities and
national courts.
Breaches of competition law can be invoked before the local NCA and court which can respectively impose
penalties, issue injunction orders, offer interim relief and award damages.
-it is always possible for national courts to stay proceedings and refer questions to the ECJ or for the
commission to intervene/be asked advice from NCA/national courts.
Competition law is addressed to undertakings, governments may intervene in the economy and somewhat
participate in a private anti-competitive conduct (this is very common, also in democracies the private
sector works closely with the government).
Thus, for example the state can impose or favour anti-competitive conduct or it can reinforce the effects of
an anti-competitive agreement, it can also delegate to undertakings the responsibility of economic
decisions.
In all such cases, the state is responsible for breaching competition law (together with the undertakings),
legally speaking this responsibility stems from the duty of loyal cooperation of MS (art. 4 TUE)-> state
responsibility= state liable to pay damages (francovich 1991).
The state action can also be looked at from other perspective, that of the private undertaking involved in
the action.
The question is to what extent can undertakings be responsible for an anti-competitive conduct when the
state acts? The answer focuses on the “degree of autonomy” left to the undertakings
-If there is sufficient freedom left to them, this means that they, within these limits, also act legally
-If there is no freedom, then there cannot be any responsibility
See BNIC – Clair (1985), Commission v. Ladbroke (1997), CNSD (2000)
If undertakings breach EU competition law they can be subject to penalties and also to damages claims (see
Courage v Crehan, 2001)

Case CIF->
Opinion of advocate general Jacobs-> the court held that:
1. Where undertakings engage in conduct contrary to Article 81(1) EC and where that conduct is required
or facilitated by national legislation which legitimises or reinforces the effects of the conduct, specifically
with regard to price-fixing or market-sharing arrangements, a national competition authority, one of whose
responsibilities is to ensure that Article 81 EC is observed:
- has a duty to disapply the national legislation;
- may not impose penalties in respect of past conduct on the undertakings concerned when the conduct
was required by the national legislation;
- may impose penalties on the undertakings concerned in respect of conduct subsequent to the decision
to disapply the national legislation, once the decision has become definitive in their regard;
- may impose penalties on the undertakings concerned in respect of past conduct where the conduct
was merely facilitated or promoted by the national legislation, whilst taking due account of the specific
features of the legislative framework in which the undertakings acted;
2. It is for the referring court to assess whether national legislation such as that at issue in the main
proceedings, under which competence to fix the retail selling prices of a product is delegated to a ministry
and power to allocate production between undertakings is entrusted to a consortium to which the relevant
producers are obliged to belong, may be regarded, for the purposes of Article 81(1) EC, as precluding those
undertakings from engaging in autonomous conduct which remains capable of preventing, restricting or
distorting competition.

Lucchini case 2007= In a 1990 decision the Commission declared aid to the Lucchini steelmaker
incompatible with EU law and ordered its recovery. After the Commission’s decision was adopted, the
Court of Appeal of Rome – completely ignoring the Commission’s decision – held that Lucchini was entitled
to receive the remainder of the aid, while various courts wrangled about the issue, the Judgment of the
Court of Appeal of Rome became final, under Italian law (art. 2909 Civil Code), “Findings made in judgments
which have acquired the force of res judicata shall be binding on the parties, their lawful successors and
assignees.”
So, Community law precludes the application of a provision of national law, such as Article 2909 of the
Italian Codice Civile (Civil Code), which seeks to lay down the principle of res judicata in so far as the
application of that provision prevents the recovery of State aid granted in breach of Community law which
has been found to be incompatible with the common market in a decision of the Commission of the
European Communities which has become final.
The Consiglio di Stato (highest administrative Court) asked the Court of Justice whether, because of its
force of res judicata, the final judgment of the Court of Appeal in Rome could be relied on against the 1990
Commission decision
The CJEU made it clear that:
-National courts do not have the power to declare State aid “compatible” with the internal market
-National courts must interpret, as it is possible, the provisions of national law in such a way that they can
be applied in a manner which contributes to the implementation of EU law (”consistent interpretation”)
-If that is not possible, they must disapply national law incompatible with EU law.
EU law prevails on res judicata-> “The answer to the questions referred must therefore be that Community
law precludes the application of a provision of national law, such as Article 2909 of the Italian Civil Code,
which seeks to lay down the principle of res judicata in so far as the application of that provision prevents
the recovery of State aid granted in breach of Community law which has been found to be incompatible
with the common market in a decision of the Commission which has become final” (para. 63).
The taricco cases-> With decision dated 8th September 2015 (case C-105/14), the CJEU held that Italian
legislation introducing a reduction in the statute of limitation for certain crimes should have been
disapplied because such reduction jeopardized the fight of frauds affecting the financial interests of the
Union (such as VAT avoidance).
The national measure was, in particular, incompatible with art. 325 TFEU whereby Member States “shall
counter fraud and any other illegal activities affecting the financial interests of the Union through measures
… which shall act as a deterrent and be such as to afford effective protection in the Member States”
Art. 325 TFEU has direct effect.
This disapplication meant that:
-those under trial were denied the possibility to take advantage of the statute of limitation and,
-by becoming subject to the old law, which was in force before their action, their conviction could have
amounted to a retroactive application of the law (which is not in line with the “principle of legality” of art.
25 of the Italian Constitution)
The Italian Constitutional Court was asked to assess the constitutionality of the law ratifying and
implementing the Treaty of Lisbon into Italian law (and which introduced art. 325 TFEU).
It suspended its proceedings and made a reference to the CJEU asking for a clarification of the “Taricco”
decision
In their order for reference (2017), the Constitutional Court underlined that they were ready, if necessary,
not to follow EU law when it clashes with fundamental principles of the Italian legal order …
Art. 25 It. Const.: “No person may be punished except by virtue of a law that was in force at the time the
offence was committed”-> This provision is taken to cover criminal law provisions of ”substantive” (not
”procedural”) nature like, under Italian law, those on the statute of limitation.
ECJ case c-42/17-> After making reference to the share of competence between the EU and the Member
States, the Court noted that criminal law belongs to the share competences and that, at that time, the EU
had not enacted any measure of harmonisation (i.e. Directives), as a consequence, Italy was entitled to
consider the provisions on the statute of limitations as norms of substantive nature, as such subject to
article 25 of the Italian Constitution. Thus, the duty to disapply national provisions on statute of limitation
would bind the Italian courts only in so far as, in the specific circumstances of the case, it would not amount
to a clash with the principle of legality.
Following the reference to the CJEU, the Italian Constitutional court concluded that the claims on
unconstitutionality were not founded in so far as, after the decision of the CJEU, it was not necessary to
disapply the Italian law.
In its judgment the Constitutional Court repeated once again its jurisdiction in not following EU law when it
clashes with fundamental principles of the Italian legal order.

Competence of EU in the field of int. trade

Why is the EU adopting trade sanctions against Russia?
-EU is conferred of competences to do so, otherwise it would be unlawful-> EU’s common commercial
policy art. 207 and art. 3 of TFEU.
Art. 207 is within part V title II of the treaty, is on union external actions which have an express link with the
outer words, these are field of action that concern he relationship of the European union and third
countries or other international organisations (since also EU is an int. organisation).
The common commercial policy is included in a broad context of EU external actions.
External actions= actions that take place on the international scene (conclusion of int. agreement,
negotiation with other legal subjects, participation in int. organisations, diplomatic relations).
If we consider such specific meaning, we immediately realize that the EU acts externally also in fields other
than those listed in part V-> ex. Paris agreement on environment, convention of ILO or on cultural diversity;
it means that the union is able to act externally in several other fields than the ones which are listed in part
V.
In the fields listed the EU also act internally, the adoption of legislative measures (so internal measures,
secondary law) in field of external action represent automatically an internal action-> part V is misleading
2 main issues of external competences (both regulated by specifics rule other than conferral principle):
-existence of such competences
Art. 216 TFEU-> the EU may conclude int. agreement where
a. the treaties provide so (explicit conferral)
b. is necessary to achieve within the framework of union policies, one of the objectives referred to in the
treaty; is provided for in a legally binding union act; is likely to affect common rules or alter their scope
-nature of such competences
Art. 3 TFEU -> insert this in exclusive competences (MS cannot act individually, cannot exercise their
sovereign in the field of CCP unless authorized)
a. para I areas of custom union and common commercial policy
b. para II hypotheses: is necessary to enable the union to exercise its internal competences; its conclusion is
provided for in a legislative act; in so far as its conclusion may affect common rules or alter their scope.
For what concerns the conclusion of the agreement they can be concluded by the union only or be mixed
agreement involving MS (-> duty of abstention and duty of joint action on behalf of the EU, upon EU
member States).
The scope of CCP faced a progressive extension through treaty reforms, for what concerns tariff.
The acts and procedure of CCP include unilateral acts: regulation (by the council) and executive acts
For the conclusion of the agreement they are proposed by the commission (initiative and is also the
negotiator), then the council upholds the proposal and decide if to authorize the negotiations, the
commission reports through a committee to the council and the parliament (for a sort of control), but the
decision to ratify it is given to the council (in most cases, with the prior consent of the parliament- which
may eventually block the agreement such in ACTA negotiations using veto power)
--parliament has impact on the conclusion of agreement; the council rules by qualified majority—
-Trade as a mean of foreign policy: trade sanctions under EU law
In order for the EU to adopt a trade sanction (restriction), two steps must be accomplished:
1. there must be a decision by the council under the CFSP-> minister of foreign affairs have to meet and
adopt such decision, this is a choice of foreign policy.
Rule for the council is to decide on unanimity, all MS must express a positive vote; once such decision is
reached
2. (regulated by art. 215) adoption of a decision on measures to be applied
EU sanctions shows a concurrence of two sets of provisions to be implemented in sequence: title V TEU
(CFSP, intergovernmental policy) and part V, title VII TFEU (community method, external action).
These measures (sanctions) can be reviewed by the court.
Judicial review is a fundamental opponent to the EU legal order, it is indeed a manifest of the principle of
effective judicial protection (general principle of E law): review of legality of decision against natural or legal
persons is one of the two exceptions to the exclusion of ECJ’s jurisdiction of CFSP provisions-> If council
adopts a decision under the CFSP, imposing an embargo on Russia I.e. such decision cannot be reviewed,
but the decision I about the freezing of assets of specific Russian people, this decision can be subject of
judicial review (effective judicial protection).

The world trade organisation

The WTO is an intergovernmental organisation, established in 1994 by Marrakech agreement, it
encapsulates previous agreement (is an evolution of something existing before).
This agreement allows membership to states and customs union.
The main goal is the progressive liberalisation of trade
WTO law is made of about 60 agreements covering different issues, the main important: GAT (tariff and
trades), GATS (trade in services), TRIP (intellectual property rights), DSU (dispute settlement
understanding).
The GATT it’s an agreement with general rules and many attachments
The main WTO principles:
- prohibition of quantitative restrictions (ban or quotas)
-trade negotiations
-non-discrimination-> between domestic and imported products (cannot apply different taxes),
Outward rule: most favoured nation treatment (exceptions-> preferential trade agreement, unilateral
concession to developing countries)
-general exceptions-> measures necessary…
-security exceptions-> allow members to depart from the WTO obligations in 3 hypotheses, in order to non-
disclose information of the int. security
WTO law has the same standing provided by art. 216-> EU can adopt trade sanctions only if they respect
WTO law, however it has no direct effect in MS legal order, thus cannot be relied on by indididuals before
any court of the world.

Guest -> EU military missions and operations

They are less known than the UN military mission, the idea of EU mission is to develop global security.

Development
1992: The Petersberg declaration under the western European union aimed to strengthen the eurpean
pillar of the NATO alliance-> MS were ready to provide military units for
-humanitarian and rescue tasks
-peacekeeping tasks
-peace-making tasks
1999: after treaty of Amsterdam, petersberg tasks are integrated in the European security and defence
policy (ESDP) under the EU treaty framework
2009: with Lisbon treaty change in name-> CSDP as a part of the CFSP

Two important provisions of the TEU

Art 42-> CSDF as integral part of CFSP, union has operational capacity to prevent conflicts and straightening
int. security using capabilities provided by the MS
--Par 4, decisions shall be adopted by the council acting unanimously (voting rule) by proposal from high
representative of the union for FASP or by MS-> intergovernmental decision-making—
Sum up: missions are an evolution of petersberg tasks, capacity is based on both civilians and military
intervention, capabilities are provided by MS (no troops), decision is taken by the council (no parliament
involved), initiative comes from high representative and MS (no commission involved).

Distinguish military and civilian intervention

There are not clear rules, the council has discretion for qualifying a mission of military/civilian type, but
there are some elements for the distinction:
-civilians mission carries out->
-military mission-> non-executive military intervention (does not include the use of force)
-military operation-> executive military intervention
There are 18 ongoing missions and operation, 19 already concluded covering a wide ara of global scenario
(most east Europe and Africa).

Institutional framework at staretgic level

The main body involved in the decision process is the council acting as a preparatory body-> political and
security committee of MS representative, it receives information by
1- European external action service, identifies possible threats
2- European union military committee, composed from MS military official, it supervises planning activtiies
and gives directions (with the EU military staff

Management system of crisis

Phase 1- crisis identification and evaluation
Phase 2- development of the CSDP (military) response
Phase 3- establishment of the CSDP mission/operation
Phase 4- military strategic planning and lunching of the mission/operation

The command and control structure

Three hierarchical levels:
-strategic level= until 2017 there was no structure, for each mission the council nominated a specific
commander on 3 options (recourse to NATO, activations of a national headquarters, activation of the EU
operation centre)
-operational level
-tactical level
….
For military mission MPCC
For military operations recourse to NATO or activation of headquarters
Strategic compass-> a document that sets up the EU aims for the future development of the security and
defence system; on this point the compass is ambiguous since it puts forward the full operational capability
of the MPCC which however will not affect the resort to national headquarters. By 2025 the MPCC will able
to conduct all non-executive operations on small and medium scale.

Strategy for rapid military development

EU does not have own military capacity, is required to generate forces for each missions:
-before establishing the mission-> force sensing
-after the council established the mission-> force generation
…

Lesson 2 may
…
Internal/single market
The definition is provided by art. 26 TFEU, it is an area with no internal borders applied to any restriction to
movement of persons, capital and goods (=economic fundamental freedom).
The main task of the EU nowadays towards the internal market is its maintenance, since new challenges are
rising (ex. Proposal of digital internal market).
the good or on the sandwiches or on the company pays off establishment and so on which are in this thing
doubly applicable let's say so to use the word used by the court of justice they can also be justified on the
grounds of those overriding reasons of public interest as long as The good or on the sandwiches or on the
company pays off establishment and so on, which are in this thing doubly applicable, let's say so to use the
word used by the Court of Justice, they can also be justified on the grounds of those overriding reasons of
public interest, as long as the restriction. Discounts. As you already know, because we already discussed
that, Please remember that the internal market it's let's let's say the real of negative integration or at least
it has been the real love negative integration for many decades from the adoption of the Treaty of Rome.
This was due, as you probably remember to the fact that the very beginning it was really hard. Start and
then. And Community institution to adopter legislation. Mainly because.f I repeat, as you probably
remember in the Council, the normally ordinary way of voting was the unanimity won. The consequences,
one of the Member States did not agree with the given measure. It as essentially full veto, veto power in
there for the. Creation of rules by name and community institution, where very limited at the beginning,
therefore the. The car of needed the most important institution when it comes to the integration process
was. For sure, the European Court of Justice, and therefore fundamental freedoms, also because in the
original Treaty that was not matching much more with regard to substantive rules, I mean. So far, up to the
second to last a class, or at least as my referring to the cluster. The classes that I told, not the second part
of the the course. We essentially have seen only institution, the rules and the regime according to which
they use situations work. Or out the relation between the national legal order and EU legal order are
regulated. I mean, we've seen the out, which had the power supply in single institutions become federal of
of competence is to the you and the division of competence between the EU and national states. Is
regulated by the Treaty. We have seen the principle of primacy effect, another principle which somehow
regulate the relation between the national legal order in EU legal order. We have then seen and studied the
main judicial procedures to remember them. Anne Newman procedure that preliminary reference
procedure and changement procedure, this last one is the only class where we look at substantive rules. I
mean rules which does not refer to the function of the EU legal order, but which put which confer to
individuals. Specific rights and on the other end put upon Member States specific obligation. In their treat
of Rome as far as this substantive rules are concerned, there was not much more than the four
fundamental freedoms and as a consequence, the fundamental freedoms were the main tools used by the
European Court of Justice. Repeat also because there was not much more, they were lit tools that the
European Court of Justice. Use to faster the process of integration between the Member States, since those
rules were soon and recognises having direct effect, it was possible to invoke them before national courts. I
mean individual were able to. Invoke them between before national courts and also, thanks to the liminary
reference procedure, and therefore, thanks to the help of the European Court of Justice, national courts
use the formula mental freedom in order to delete, let's say, many. National legislation which were
somehow arm bearing the internal market, which were somehow putting limit to the free movement of the
factors of production. This is the so called negative dimension of the process of integration negative.
Because at the end of the process we have less rules than the beginning. Rules were essentially delete did
by the ECJ and the national codes working together in the in the light of the of the liminary reference
procedure, it is not. It is obvious and. it was an a in it was unavoidable that that there were plenty of
national …
Yeah, it is. And then that's alright then. Focus switched from negative integration to positive integration
essentially because thanks to the using the Latin, then the Treaty of Maastricht. Example, did the possibly
the unanimity criteria was replaced as far as the criteria to vote in the Council by the majority one and
therefore be creation of new rules was? Impossible was easier for the institutions in the consequences,
plenty of secondary legislation was adopted, especially in order to foster the create back then. Creation of
the internal market. Indeed, when the White Paper and internal market was adopted at the end. In the in
demand and then around the 90s, let's say, so one of the main concern of this year institution was precisely
that despite 30 year were already past internal market was not yet fully developed that. Which is the basic
concept of positive integration. Once again, the idea is that you create. No. You create goals and you level
in order to make it easier than the function of the internal market. I mean probably already. We already
discussed that, but. One thing is to delete the limitation at the national level in order to make, for example,
more easier for importer and Spartan to import or export goods. Another way is to arm and eyes the
requirement according to which those goods are produced.

Player and challenge before the National court and then went to the European Court of Justice. Those rules
that were usually and ordinarily. adopted by all the national federation football federation football
association at the national level under there let's say guidance on the on the way which is of course there
then the european association which deal with with football and to which all the national federation
Adopted by all the National Federation Football Federation Football Association at the national level under
there, let's say guidance on the on the way, which is of course the then the European Association which
deal with with football and to which all the National Federation apart case there were limitations to the
possibility for. A clubs to have more been a given number of foreign player foreign player was a notion that
included also football players from other Member States. It was not only I mean firing was not referring
only two players from third countries as it is nowadays. I mean, this is actually arrested some of the free
movement of workers because. Less civility to be. Employed by a given flat because I don't know there was,
let's say, only free position available for each left Bozeman challenge this restriction. Eventually succeeded
before the European Cup from Justice and Devils was deleted, and as we know that this act, clear and
significant impact on the way football is organised in. It was possible to challenge. A provision of quasar,
even no way for his private subject, is not a standard state of the European Union, because Member States
essentially confirmed to the National Football Association and then to wait. Alright, we need to this
according to which was organised. I mean if you. Possibility to engage in this economic activity. You know
what? Oh, wait, wait, stop answer. Still today as it was. Not wet. so i all please example made it clear what