The EU Treaties And The Charter Of

Fundamental Rights: A Commentary

Manuel Kellerbauer
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THE EU TREATIES AND THE CHARTER
OF FUNDAMENTAL RIGHTS

A COMMENTARY
 The EU Treaties and
the Charter
of Fundamental Rights
A COMMENTARY

EDITED BY

MANUEL KELLERBAUER
MARCUS KL AMERT
and
JONATHAN TOMKIN

3
 3
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 Foreword
The establishment of a European Union, which according to Article 1 TEU is intended
to create ‘an ever closer Union among the peoples of Europe’, is being threatened from
within. And the most serious threat is to the rule of law in Europe and the effectiveness
and uniformity of the application of EU law in all the Member States.
A first attack on the rule of law has been directed at the values that constitute the very
foundations of the Union as laid down in Article 2 TEU.
The immediate victim of the second attack is each citizen of the European Union who
risks being prevented from exercising the rights that he or she derives from EU law on
the same terms.
The foregoing observations make it clear why this book is of paramount importance at
this time. Explaining to the citizens of the European Union (and not only lawyers) how
the goals, values, principles, competences, institutional machinery, and procedures of the
European Union are shaped is nowadays an urgent task.
At the turn of the 20th century, Sir William Osler noted that ‘The greater the ignorance
the greater the dogmatism’. Too many important decisions having immense impacts on
the lives of millions of people in Europe and elsewhere have arisen out of pure ignorance
and ensuing dogmatism. This book helps to fill an important gap in the general know-
ledge of the constitutional and institutional framework of the European Union.
This book will be of great value not only to scholars and students, judges and prac-
titioners, civil servants and company lawyers, legislators, policy makers and business
people. In general, all citizens wishing to find out more about the Union, its objectives
and mechanisms, the decision-​making practice of the European Commission and the
most relevant case law of the Court of Justice of the European Union, may find an answer
in the pages that follow.
Written by distinguished academics and members of the Commission’s Legal Service,
some with past experience in private practice in member and non-​member States, the
book is exemplary in its structure, format and content.
First of all, it gives a complete picture of all the main issues concerning the constitutional
provisions of the Treaty on European Union (TEU), the Treaty on the Functioning of the
European Union (TFEU) and the Charter of Fundamental Rights of the European Union (the
Charter). They are presented in a comprehensive manner, which assists the reader on a wide
range of matters falling within the scope of what is currently known as the ‘EU legal order’.
That legal framework is no longer a mere tool for developing trade and strengthening
economic integration between Member States. It encompasses nowadays a wide array
of matters typically pertaining to a true constitutional legal order: a common currency,
Union citizenship and a common area of freedom, security and justice, a division of com-
petences and powers and a number of principles governing that division, a formal cata-
logue of fundamental rights, a sophisticated institutional machinery, a set of policies to
be pursued by the political authorities, an international legal personality, and an embryo
of foreign and security policy in the international arena.
This book contributes to a better understanding of the meaning and scope of the con-
stitutional provisions that govern the Union and how they are applied.
vi Foreword

Second, the commentaries are written in a clear and concise manner accessible to any
normally informed person. Moreover, the reader may easily find his or her way to fur-
ther, more specialized, readings that complete the information already provided in the
commentaries.
Indeed—and this is another quality of the book—each Commentary is preceded in
general by useful information relating to a ‘Selected bibliography’ and ‘Essential case l​ aw’,
as well as, where appropriate, a table of contents and a listing of the main legal acts or
instruments of ‘soft law’ (Commission notices and communications, guidelines, action
plans, etc.). There is also an introduction, overview and selected bibliography for each
title or chapter of the Treaties and the Charter. The commentaries further rightly set out
widely recognized academic legal writings and appropriately build upon them in order to
reach their conclusions.
In addition, the texts contain abundant references to international treaties and other in-
struments of international law, including in particular the Convention for the Protection of
Human Rights and Fundamental Freedoms (the European Convention on Human Rights).
The case law of the European Court of Human Rights has received considerable analysis,
mainly as concerns the application of the Charter of Fundamental Rights. This is not sur-
prising since, as stated in Article 52(3) of the Charter, ‘[in] so far as this Charter contains
rights which correspond to rights guaranteed by the [European Convention], the meaning
and scope of those rights shall be the same as those laid down by the said Convention’,
without prejudice to the possibility for EU law to provide more extensive protection.
However, it is of course the case law of the Courts of the European Union (the Court
of Justice and the General Court) which receives the most extensive coverage. In that re-
gard, the book offers a comprehensive and in-depth analysis of such case law (including,
where relevant, of the case ​law of the EFTA Court), as well as of the opinions of Advocates
General, thus providing elegant—and sometimes controversial—legal commentary.
No doubt that the great experience and vast knowledge of the combined authors
constitutes the mainstay of a colossal work. The fact that I may not share all the views
expressed by the commentators among the more than 2000 pages of the book does not
stop me from considering it a serious piece of work of the highest quality. I sincerely wel-
come the debate that may arise, in the legal literature, from such vast and rich amounts
of analysis, ideas and arguments.
I was deeply pleased and honoured to receive the invitation from the three co-​editors—
Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin—asking me to write the
foreword to the book they undertook to write and coordinate.
I would like to sincerely congratulate them and all their co-​authors for this under-
taking that represents a major contribution to the reflection on the current state of the
EU legal order. Most of them are very well-​known faces to the members of the Court of
Justice, who appreciate their competence, professionalism and integrity.
I am sure that this book will become a regular companion to judges, lawyers and
scholars at EU and national level. I strongly recommend it to everybody who feels the
need for assistance in understanding the increasing complexity of EU law or to all those
who are simply interested in being better informed on the basic laws of the Union.

José Luís da Cruz Vilaça

Judge, President of Chamber (2012–2018)
European Court of Justice


 Preface
The European Union is essentially a legal construct. For over sixty years, its shape and
scope have been defined and developed through the adoption of successive EEC, EC and
EU Treaties and their interpretation by the Court of Justice of the European Union.
The EU Treaties and the accompanying Charter of Fundamental Rights are not merely
a set of operational rules; they represent the embodiment of the shared laws, principles,
and values of successive generations of constituent Member States. In the absence of any
single language, ethnicity or culture, those shared laws, principles and values have been
fundamental in defining the EU’s identity. It is thus unsurprising that the EU Treaties
have been referred to by the Union Courts as the ‘constitutional charter’ of (what is now)
the European Union.
An understanding of this constitutional charter allows for an understanding of what
the Union is and represents, namely, a thriving supranational organisation based on the
common values of its members that has demonstrated resilience in the face of uprecedented
challenges. In times suggestive of a drift towards unilateralism, the case for promoting a
thorough and correct understanding of this unique model of international cooperation is
even more compelling.
It was in the light of such considerations that, during a phone call between Vienna
and Brussels in March 2015, the decision was taken to write this book: a comprehen-
sive article-by-article commentary that presents within a single volume the constitutional
framework of the EU legal order and that ensures a clear and structured analysis of each
provision of primary law as interpreted by the Union Courts. We are very grateful to
OUP for having quickly endorsed what has been, to say the least, a sizeable endeavour
and for providing encouragement until its completion.
Over three years have passed and many more phone calls between Oxford, Vienna
and Brussels have followed. As editors, we have managed to complement each other’s
fields of expertise and skills effectively, making this project a truly enjoyable though time-
consuming endeavour. We are delighted and proud to have been able to enlist some of
the most renowned and knowledgeable experts in their respective areas of EU law as
co-authors.
The Commentary considers academic analysis and comment, but is also intended to
facilitate the practice of EU law. To this end, special features have been incorporated to
enable ready access and identification of key issues: each title, chapter, and section is
preceded by an ‘Introduction’ setting out issues common to the articles considered. In
addition, ‘Overviews’ give concise summaries of the content of the provisions. At the
beginning of each article, a ‘Selected bibliography’ points to academic references con-
sidered especially relevant and useful. Under ‘Essential case law’, the Commentary gives
a succinct summary of the most relevant findings of the Union Courts and the European
Court of Human Rights. Finally, summaries of ‘Main legal instruments’ concisely de-
scribe key secondary law of relevance to the provisions analysed.
We are very grateful to a number of people who have assisted in various ways in
realizing this project: Dominik Schnichels for bringing two of the editors together,
Christine Pesendorfer for her gracious support from the very beginning, as well as Lukasz
viii Preface

Baumgart, Caragh Cunniffe, Chris Docksey, Barbara Ernst, Aurélie-Anne Gilly, Anna
Gnap, Lóránt Havas, Franz Koppensteiner, Emmanuel Manhaeve, Maria-Isabel Martinez
del Peral, Rudolphe Munoz, Piedade Costa de Oliveira, Claire Smith, John Stanley, Peter
Thalmann, Daniel Thym, Rudi Troosters and Jacquelyn Veraldi, for giving so gener-
ously of their limited time and abundant expertise to review numerous sections of the
Commentary or to provide valuable input. However, any views expressed remain per-
sonal to the authors.
Special thanks are also due to Alex Flach, Natasha Flemming, Imogen Hill, Natalie
Patey, Alec Swann and Emma Taylor at OUP for all their enthusiastic support, persist-
ence and encouragement.
Finally, the editors would like to thank their families and children for their support
and forbearance during the many hours, evenings and weekends, required to bring this
project to fruition. They would like to dedicate this book to their children, who form part
of the next generation of EU citizens: Anna Serena, Elias, Filippa, Laya and Luis. While
writing was completed on 30 May 2018, it has been possible to take account of major
legal developments as of January 2019.
Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin
Brussels and Vienna
January 2019
 Contents—​Summary

Notes on Contributors xix

Abbreviations xxiii
Table of Cases xxxiii
Table of Legislation cxiii

TREATY ON EUROPEAN UNION 1

TREATY ON THE FUNCTIONING OF

THE EUROPEAN UNION 341

CHARTER OF FUNDAMENTAL RIGHTS OF

THE EUROPEAN UNION 2095

Index 2265
 Contents

Notes on Contributors xix

Abbreviations xxiii
Table of Cases xxxiii
Table of Legislation cxiii

TREATY ON EUROPEAN UNION 1

PREAMBLE 3
TITLE I COMMON PROVISIONS 5
Introduction Marcus Klamert 5
Article 1 Marcus Klamert 7
Article 2 Marcus Klamert and Dimitry Kochenov 22
Articles 3–​5 Marcus Klamert 31
Article 6 Tobias Lock 79
Articles 7–​8 Dimitry Kochenov 88
TITLE II PROVISIONS ON DEMOCRATIC PRINCIPLES 103
Introduction Tobias Lock 103
Article 9 Dimitry Kochenov and Tobias Lock 105
Articles 10–​12 Tobias Lock 108
TITLE III PROVISIONS ON THE INSTITUTIONS 124
Introduction Paul-​John Loewenthal 124
Articles 13–​18 Paul-​John Loewenthal 126
Article 19 Marcus Klamert and Bernhard Schima 172
TITLE IV PROVISIONS ON ENHANCED COOPERATION 189
Article 20 Manuel Kellerbauer 192
TITLE V GENERAL PROVISIONS ON THE UNION’S
EXTERNAL ACTION AND SPECIFIC PROVISIONS ON THE
COMMON FOREIGN AND SECURITY POLICY 197
Chapter 1 General provisions on the Union’s external action 198
Articles 21–​22 Thomas Ramopoulos 200
Chapter 2 Specific provisions on the common foreign and security policy 208
Introduction Thomas Ramopoulos 208
Section 1 Common provisions 209
Articles 23–​41 Thomas Ramopoulos 212
Section 2 Provisions on the common security and defence policy  272
Introduction Thomas Ramopoulos 272
Articles 42–​46 Thomas Ramopoulos 276
xii Contents

TITLE VI FINAL PROVISIONS 298

Article 47 Marcus Klamert 299
Article 48 Marcus Klamert 302
Articles 49–​50 Friedrich Erlbacher 311
Article 51 Marcus Klamert 332
Article 52 Dimitry Kochenov 334
Articles 53–​55 Marcus Klamert 337

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION 341

PREAMBLE  347

PART ONE PRINCIPLES 348

Article 1 Marcus Klamert 349
TITLE I CATEGORIES AND AREAS OF UNION COMPETENCE 351
Introduction Marcus Klamert 351
Articles 2–​6 Marcus Klamert 353
TITLE II PROVISIONS HAVING GENERAL APPLICATION 377
Introduction Marcus Klamert 377
Articles 7–​13 Marcus Klamert 380
Article 14 Tim Maxian Rusche 391
Articles 15–​17 Marcus Klamert 397

PART TWO NON-​DISCRIMINATION AND CITIZENSHIP OF THE UNION 412

Introduction Denis Martin 412
Articles 18–​24 Denis Martin 413
Article 25 Dimitry Kochenov 462

PART THREE UNION POLICIES AND INTERNAL ACTIONS 463

TITLE I THE INTERNAL MARKET 463
Article 26 Marcus Klamert and Alexandre-Xavier-Pierre Lewis 464
Article 27 Marcus Klamert 475
TITLE II FREE MOVEMENT OF GOODS 477
Article 28 Marcus Klamert and Alexandre-Xavier-Pierre Lewis 478
Article 29 Marcus Klamert 487
Chapter 1 The customs union 492
Introduction Bernd-​Roland Killmann 492
Articles 30–​32 Bernd-​Roland Killmann 493
Chapter 2 Customs cooperation 499
Article 33 Bernd-​Roland Killmann 499
Chapter 3 Prohibition of quantitative restrictions between Member States 502
Introduction Marcus Klamert, Maria Moustakali, and Jonathan Tomkin 502
Articles 34–​37 Marcus Klamert, Maria Moustakali, and Jonathan Tomkin 504

 Contents xiii

TITLE III AGRICULTURE AND FISHERIES 544

Articles 38–​44 André Bouquet, Friedrich Erlbacher, and
Alexandre-Xavier-Pierre Lewis 546
TITLE IV FREE MOVEMENT OF PERSONS, SERVICES
AND CAPITAL 604
Chapter 1 Workers 604
Introduction Denis Martin 604
Article 45 Manuel Kellerbauer and Denis Martin 607
Articles 46–​48 Denis Martin 634
Chapter 2 Right of establishment 647
Introduction Jonathan Tomkin 647
Articles 49–​55 Jonathan Tomkin 650
Chapter 3 Freedom to provide services 702
Introduction Jonathan Tomkin 702
Articles 56–​62 Jonathan Tomkin 705
Chapter 4 Capital and payments 743
Introduction Jonathan Tomkin 743
Articles 63–​66 Audronė Steiblytė and Jonathan Tomkin 746
TITLE V AREA OF FREEDOM, SECURITY AND JUSTICE 776
Introduction Wolfgang Bogensberger 776
Chapter 1 General provisions 779
Introduction Michael Wilderspin 779
Articles 67–​70 Michael Wilderspin 783
Articles 71–​73 Manuel Kellerbauer 789
Articles 74 Michael Wilderspin 793
Articles 75–​76 Manuel Kellerbauer 794
Chapter 2 Policies on border checks, asylum and immigration 799
Introduction Michael Wilderspin 799
Articles 77–​80 Michael Wilderspin 802
Chapter 3 Judicial cooperation in civil matters 852
Introduction Michael Wilderspin 852
Article 81 Michael Wilderspin 853
Chapter 4 Judicial cooperation in criminal matters 870
Introduction Wolfgang Bogensberger 870
Articles 82–​86 Wolfgang Bogensberger 875
Chapter 5 Police cooperation 923
Introduction Wolfgang Bogensberger 923
Articles 87–​89 Wolfgang Bogensberger 925
TITLE VI TRANSPORT 939
Introduction Tim Maxian Rusche 939
Articles 90–​100 Tim Maxian Rusche 941

xiv Contents

TITLE VII COMMON RULES ON COMPETITION, TAXATION

AND APPROXIMATION OF LAWS 992
Chapter 1 Rules on competition 992
Introduction Manuel Kellerbauer 992
Section 1 Rules applying to undertakings  994
Introduction Manuel Kellerbauer 994
Article 101 Gero Meeßen 998
Article 102 Manuel Kellerbauer 1037
Article 103 Manuel Kellerbauer and Gero Meeßen 1059
Articles 104–​105 Manuel Kellerbauer 1086
Article 106 Manuel Kellerbauer and Tim Maxian Rusche 1088
Section 2 Aids granted by States  1111
Articles 107–​109 Tim Maxian Rusche 1111
Chapter 2 Tax provisions 1219
Introduction Manuel Kellerbauer 1219
Articles 110–​113 Manuel Kellerbauer 1221
Chapter 3 Approximation of laws 1231
Introduction Manuel Kellerbauer 1231
Articles 114–​118 Manuel Kellerbauer 1235
TITLE VIII ECONOMIC AND MONETARY POLICY 1270
Introduction Leo Flynn 1270
Article 119 Leo Flynn 1272
Chapter 1 Economic policy 1274
Articles 120–​126 Leo Flynn 1275
Chapter 2 Monetary policy 1298
Articles 127–​133 Leo Flynn 1299
Chapter 3 Institutional provisions 1315
Articles 134–​135 Leo Flynn 1316
Chapter 4 Provisions specific to Member States whose currency is the euro 1319
Articles 136–​138 Leo Flynn 1320
Chapter 5 Transitional provisions 1326
Articles 139–​144 Leo Flynn 1327
TITLE IX EMPLOYMENT 1338
Introduction Sacha Garben 1338
Articles 145–​150 Sacha Garben 1341
TITLE X SOCIAL POLICY 1352
Introduction Sacha Garben 1352
Articles 151–​156 Sacha Garben 1354
Article 157 Denis Martin 1401
Articles 158–​161 Sacha Garben 1415


 Contents xv

TITLE XI THE EUROPEAN SOCIAL FUND 1419

Introduction Leo Flynn 1419
Articles 162–​164 Leo Flynn 1420
TITLE XII EDUCATION, VOCATIONAL TRAINING,
YOUTH AND SPORT 1423
Introduction Sacha Garben 1423
Articles 165–​166 Sacha Garben 1424
TITLE XIII CULTURE 1439
Article 167 Sacha Garben 1439
TITLE XIV PUBLIC HEALTH 1445
Article 168 Sacha Garben 1445
TITLE XV CONSUMER PROTECTION 1456
Article 169 Sacha Garben 1456
TITLE XVI TRANS-​EUROPEAN NETWORKS 1467
Introduction Dimitry Kochenov 1467
Articles 170–​172 Dimitry Kochenov 1468
TITLE XVII INDUSTRY 1472
Article 173 Manuel Kellerbauer 1472
TITLE XVIII ECONOMIC, SOCIAL AND TERRITORIAL COHESION 1476
Introduction Leo Flynn 1476
Articles 174–​178 Leo Flynn 1478
TITLE XIX RESEARCH AND TECHNOLOGICAL
DEVELOPMENT AND SPACE 1491
Introduction Sacha Garben 1491
Articles 179–​190 Sacha Garben 1494
TITLE XX ENVIRONMENT 1512
Introduction Sacha Garben 1512
Articles 191–​193 Sacha Garben 1516
TITLE XXI ENERGY 1547
Article 194 Sacha Garben 1547
TITLE XXII TOURISM 1554
Article 195 Sacha Garben 1554
TITLE XXIII CIVIL PROTECTION 1556
Article 196 Sacha Garben 1556
TITLE XXIV ADMINISTRATIVE COOPERATION 1559
Article 197 Sacha Garben 1559

PART FOUR ASSOCIATION OF THE OVERSEAS COUNTRIES

AND TERRITORIES 1562
Introduction Dimitry Kochenov 1562
Articles 198–​204 Dimitry Kochenov 1565


xvi Contents

PART FIVE EXTERNAL ACTION BY THE UNION 1580

TITLE I THE UNION’S EXTERNAL ACTION 1581
Article 205 Friedrich Erlbacher and Tim Maxian Rusche 1582
TITLE II COMMON COMMERCIAL POLICY 1585
Articles 206–​207 Friedrich Erlbacher and Tim Maxian Rusche 1585
TITLE III COOPERATION WITH THIRD COUNTRIES
AND HUMANITARIAN AID 1606
Introduction Friedrich Erlbacher and Marcus Klamert 1606
Chapter 1 Development cooperation 1610
Articles 208–​211 Marcus Klamert 1610
Chapter 2 Economic, financial and technical cooperation with third countries 1619
Articles 212–​213 Friedrich Erlbacher 1619
Chapter 3 Humanitarian aid 1626
Article 214 Friedrich Erlbacher 1626
TITLE IV RESTRICTIVE MEASURES 1631
Article 215 Friedrich Erlbacher 1631
TITLE V INTERNATIONAL AGREEMENTS 1642
Introduction Friedrich Erlbacher 1642
Articles 216–​219 Friedrich Erlbacher 1643
TITLE VI THE UNION’S RELATIONS WITH INTERNATIONAL
ORGANISATIONS AND THIRD COUNTRIES AND UNION
DELEGATIONS 1676
Articles 220–​221 Friedrich Erlbacher 1676
TITLE VII SOLIDARITY CLAUSE 1690
Article 222 Friedrich Erlbacher 1690

PART SIX INSTITUTIONAL AND FINANCIAL PROVISIONS 1697

TITLE I INSTITUTIONAL PROVISIONS 1697
Chapter 1 The institutions 1697
Introduction Paul-​John Loewenthal 1697
Section 1 The European Parliament  1698
Articles 223–​234 Paul-​John Loewenthal 1700
Section 2 The European Council  1724
Articles 235–​236 Paul-​John Loewenthal 1725
Section 3 The Council  1728
Articles 237–​243 Paul-​John Loewenthal 1729
Section 4 The Commission  1739
Articles 244–​250 Paul-​John Loewenthal 1740
Section 5 The Court of Justice of the European Union  1748
Introduction Bernhard Schima 1748
Articles 251–​281 Bernhard Schima 1751
Section 6 The European Central Bank  1879

 Contents xvii

Articles 282–​284 Leo Flynn 1880

Section 7 The Court of Auditors  1886
Articles 285–​287 Leo Flynn 1887
Chapter 2 Legal acts of the Union, adoption procedures and other provisions 1893
Introduction Paul-​John Loewenthal 1893
Section 1 The legal acts of the Union  1895
Article 288 Marcus Klamert and Paul-​John Loewenthal 1895
Articles 289–​292 Paul-​John Loewenthal 1911
Section 2 Procedures for the adoption of acts and other provisions  1934
Articles 293–​299 Paul-​John Loewenthal 1934
Chapter 3 The Union’s advisory bodies 1953
Article 300 Marcus Klamert 1954
Section 1 The Economic and Social Committee  1959
Articles 301–​304 Marcus Klamert 1959
Section 2 The Committee of the Regions  1963
Articles 305–​307 Marcus Klamert 1963
Chapter 4 The European Investment Bank 1967
Articles 308–​309 Leo Flynn 1968
TITLE II FINANCIAL PROVISIONS 1972
Introduction Bernd-​Roland Killmann 1972
Article 310 Bernd-​Roland Killmann 1975
Chapter 1 The Union’s own resources 1977
Article 311 Bernd-​Roland Killmann 1977
Chapter 2 The multiannual financial framework 1980
Article 312 Bernd-​Roland Killmann 1980
Chapter 3 The Union’s annual budget 1982
Articles 313–​316 Bernd-​Roland Killmann 1982
Chapter 4 Implementation of the budget and discharge 1988
Articles 317–​319 Bernd-​Roland Killmann 1988
Chapter 5 Common provisions 1992
Articles 320–​324 Bernd-​Roland Killmann 1992
Chapter 6 Combatting fraud 1998
Article 325 Bernd-​Roland Killmann 1998
TITLE III ENHANCED COOPERATION 2003
Articles 326–​334 Manuel Kellerbauer 2004

PART SEVEN GENERAL AND FINAL PROVISIONS 2016

Articles 335–​336 Marcus Klamert 2018
Articles 337–​342 Manuel Kellerbauer 2022
Articles 343–​345 Marcus Klamert 2044
Articles 346–​348 Manuel Kellerbauer 2050

xviii Contents

Article 349 Dimitry Kochenov 2058

Article 350 Marcus Klamert 2063
Articles 351–​352 Manuel Kellerbauer and Marcus Klamert 2065
Article 353 Marcus Klamert 2080
Articles 354–​355 Dimitry Kochenov 2081
Articles 356–​358 Marcus Klamert 2092

CHARTER OF FUNDAMENTAL RIGHTS OF

THE EUROPEAN UNION 2095
PREAMBLE  2097
TITLE I DIGNITY 2098
Introduction Tobias Lock 2098
Articles 1–​5 Tobias Lock 2099
TITLE II FREEDOMS 2110
Introduction Tobias Lock 2110
Articles 6–​19 Tobias Lock 2111
TITLE III EQUALITY 2158
Introduction Jonathan Tomkin 2158
Articles 20–​21 Denis Martin 2161
Article 22 Tobias Lock 2168
Article 23 Denis Martin 2170
Article 24 Tobias Lock 2173
Articles 25–​26 Denis Martin 2176
TITLE IV SOLIDARITY 2178
Introduction Tobias Lock 2178
Articles 27–​33 Tobias Lock 2180
Article 34 Denis Martin 2194
Articles 35–​38 Tobias Lock 2195
TITLE V CITIZENS’ RIGHTS 2200
Introduction Jonathan Tomkin 2200
Articles 39–​40 Denis Martin 2202
Articles 41–​42 Tobias Lock 2204
Articles 43–​46 Denis Martin 2209
TITLE VI JUSTICE 2213
Introduction Tobias Lock 2213
Article 47 Tobias Lock and Denis Martin 2214
Articles 48–​50 Tobias Lock 2227
TITLE VII GENERAL PROVISIONS GOVERNING THE
INTERPRETATION AND APPLICATION OF THE CHARTER 2241
Articles 51–​54 Tobias Lock 2241

Index 2265

 Notes on Contributors

Wolfgang Bogensberger is Deputy Head of the Representation of the European

Commission in Austria. Previously, he was a judge at the Juvenile Justice Court in Vienna,
a Director General at the Austrian Ministry of Justice, a principal administrator in the
secretariat of the Committee on Civil Liberties, Justice and Home Affairs in the European
Parliament, and a Legal Advisor at the Legal Service of the European Commission. He
has represented the Commission in numerous cases before the CJEU, predominantly in
criminal matters. He holds doctorates in law and in philosophy and a postgraduate dip-
loma in European law. He has published in the field of domestic and European criminal
law and lectures on fundamental rights at the Sigmund Freud University in Vienna.
André Bouquet is a Legal Adviser at the Legal Service of the European Commission
(CFSP and External Relations Team). Previously he was Member and thereafter acting
head of the Agriculture and Fisheries team, and before that he was Member of the
Competition team. Prior to joining the Legal Service he worked at the Euratom Supply
Agency, dealing inter alia with legal matters. He appears regularly before the European
Court of Justice, predominantly in matters related to competition, fisheries, agriculture
and interinstitutional dispute affairs as well as in international litigation cases (ITLOS
and UNCLOS arbitration). Before working at the European Commission he practiced
law at the Brussels and Antwerp Bar. He has published and lectured in the field of nuclear
law (Euratom Treaty), competition and fisheries.
Friedrich Erlbacher is a Legal Adviser at the Legal Service of the European Commission
(Institutional Team). He is a former Legal Secretary (Référendaire) at the General Court
of the European Union. He has published and lectured extensively in various fields
including external relations, judicial protection, and state aid.
Leo Flynn is a Legal Adviser at the Legal Service of the European Commission
(Eurozone Team). Before joining the Legal Service in 2002, he worked as Legal Secretary
(Référendaire) at the Court of Justice and lectured at King’s College London, where he
now is a visiting Professor at its Centre for European Law. He has written widely on
Union law, especially on State aid, social policy, and Union law in national courts.
Sacha Garben is Professor of EU law at the College of Europe and on leave from the
European Commission. As well as a prize-winning PhD from the European University
Institute (Florence), she holds an LLM from the College of Europe and a Master’s degree
from the University of Maastricht. She has held a 2-year postdoctoral fellowship with the
London School of Economics as well as a visiting fellowship from Harvard Law School.
She has published extensively on a range of constitutional and substantive EU law issues,
including the division of competences between the EU and the Member States, Social
Europe and European higher education law and policy.
Manuel Kellerbauer is a Member of the Legal Service of the European Commission
(CFSP and External Affairs Team). He appears regularly before the European Court
of Justice, predominantly in matters related to competition, internal market and social
xx Notes on Contributors

affairs. He previously worked at the Commission’s Directorate-General for Competition.

He passed the German bar exam and holds master’s degrees from the Universities of
Aix-en-Provence and Tübingen, as well as a PhD from the University of Tübingen.
He is a guest lecturer at the Universities of Saarbrücken and Lyon, has published widely
on EU law, and is a member of the advisory board of the European Journal of Business
Law (EuZW).
Bernd-Roland Killmann is a Member of the Legal Service of the European Commission
(Social, Consumer Affairs and Equality Team). He holds a doctorate in law from the
University of Graz, a Master of Business Law from the University of Sankt Gallen, and a
diploma from the Paul H. Nitze School of Advanced International Studies at the Johns
Hopkins University in Bologna. Before joining the Commission, he worked as a research
assistant at the law faculty of the University of Graz and in law firms in Austria and Italy.
He has published and lectured in the field of European law.
Marcus Klamert is a Legal Adviser at the Federal Chancellery of Austria and holds a post-
doctoral qualification to lecture in European and public international law (Habilitation)
awarded by the Vienna University of Economics and Business. He has held (vis-
iting) fellowships with the Austrian Academy of Sciences, the Institute of European
and Comparative Law, University of Oxford, and the European University Institute,
Florence. He has represented Austria before the CJEU, has practised law in a leading
international law firm in Vienna, and has worked for the European Commission in
Brussels. His publications include The Principle of Loyalty in EU Law (OUP 2014) and
Services Liberalization in the EU and WTO – Concepts, Standards and Regulatory
Approaches (CUP 2014).
Dimitry Kochenov is Professor of EU Constitutional Law in the Faculty of Law, University
of Groningen. He was a visiting professor at Princeton University, the College of Europe
and Università degli Studi di Torino, and held fellowships, inter alia, at Princeton’s
Woodrow Wilson School, Institute of Global Studies in Basel and NYU Law School.
He recently edited EU Citizenship and Federalism (CUP 2017). His second monograph
Citizenship is forthcoming with MIT Press in 2019.
Alexandre-Xavier-Pierre Lewis is a Legal Adviser at the Legal Service of the European
Commission (Agricultural Team). Previously he practiced law at the Paris Bar and the
English Bar, was Director of Legal and Executive Affairs, EFTA Surveillance Authority,
and Legal Secretary (Référendaire) to AG Francis Jacobs in the Court of Justice. He holds
an LLB, a Maîtrise en Droit and a DEA in civil law from King’s College London and the
University of Paris I (Panthéon-Sorbonne), and is a Fellow of Harvard University. He has
represented the Commission in numerous cases before the Court of Justice, the General
Court, the EFTA Court and the US Federal District Court.
Tobias Lock is Professor of Law at the National University of Ireland, Maynooth. He
previously worked at the Universities of Edinburgh, Surrey, Erlangen, and at University
College London. During 2018 he served on the Scottish First Minister’s Advisory Group
on Human Rights Leadership. His main research interests are in EU constitutional law,
EU fundamental rights law, and multi-level relations between the EU and other legal
orders. His publications include The European Court of Justice and International Courts
(OUP 2015).


 Notes on Contributors xxi

Paul-John Loewenthal is a Member of the Legal Service of the European Commission

(State Aid Team). He has represented the Commission as an agent in numerous cases
before the CJEU, predominantly in matters related to State aid and taxation. He previ-
ously worked as a Legal Secretary (Référendaire) at the Court of Justice and the General
Court of the European Union, as an attorney in a leading global law firm in Brussels and
Washington D.C., and as a university lecturer at Oxford and Harvard Universities. He
holds degrees from Harvard Law School (LL.M), Oxford University (M.Phil, M.Jur), the
Institut d’études politiques de Paris (Sciences Po), and Leiden University.
Denis Martin is a Legal Adviser at the Legal Service of the European Commission
(Social, Consumer Affairs and Equality Team). Prior to joining the Legal Service in 2000,
he worked in the Directorate-General responsible in particular for free movement of
workers, sex equality and the prohibition of discrimination. He is an invited Professor at
UC Louvain, and has published extensively on the free movement of persons and on the
prohibition of discrimination in Union law.
Tim Maxian Rusche is a Member of the Legal Service of the European Commission
(Eurozone Team). Previously, he worked in the State aid team of the Legal Service and in
DG Energy and Transport. He has represented the Commission in numerous court cases
before the CJEU, in national courts, and in investment arbitration procedures. He holds
a joined Maîtrise en droit and Magister Legum from University of Paris I (Panthéon-
Sorbonne) and University of Cologne, a Masters in Public Administration from the Harvard
Kennedy School, and a joined Franco-German doctorate in law from the University of Paris
I (Panthéon-Sorbonne) and the University of Cologne. He is the author of EU Renewable
Electricity Law and Policy (CUP 2015) and has published extensively, in particular on State
aid law, trade defence law and regulatory law (transport, energy, and environment).
Gero Meeßen is a Member of the Legal Service of the European Commission (Competition
Team). He has represented the Commission as an agent in numerous cases before the
CJEU, predominantly in matters related to competition law. He previously worked as
a case handler, case manager (with a focus on energy markets) and Head of Unit at the
Bundeskartellamt’s (German Federal Cartel Office) General Policy Division. He passed the
German bar exam and holds an M.Jur. (University of Oxford) and a Dr.iur. (University
of Münster). He lectures EU Competition Law at the Europa-Institut of the University
of Saarbrücken.
Maria Moustakali is a case handler in the office of the European Ombudsman. She has
previously worked in the Legal Service of the EFTA Surveillance Authority (ESA), and
has represented ESA as an agent in numerous cases before the EFTA Court and the
CJEU. She has graduated from the law school of the University of Athens and also holds
Master’s degrees from the College of Europe and Columbia Law School.
Thomas Ramopoulos is a Member of the Legal Service of the European Commission
(CFSP and External Relations Team). He studied law (Hons) at Aristotle University
of Thessaloniki and holds a Master of Philosophy in International Relations from the
University of Cambridge. Since May 2011 he has been a fellow of the Centre for Global
Governance Studies at KU Leuven. He has published extensively on EU external rela-
tions law and is a co-author of The Law of EU External Relations: Cases, Materials and
Commentary on the EU as an International Legal Actor (2nd ed, OUP 2015).


xxii Notes on Contributors

Bernhard Schima is a Legal Adviser and Assistant to the Director-General of the Legal
Service of the European Commission. He is a former Legal Secretary (Référendaire) at the
Court of Justice of the European Union and former EU Fellow at Yale University, holds
a postdoctoral qualification to lecture in European law (Habilitation), and is an honorary
professor of European Law at the Vienna University of Economics and Business. He has
published and lectured extensively in the field of EU law, with a particular emphasis on
court procedure.
Audronė Steiblytė is a Member of the Legal Service of the European Commission
(Establishment, services, business law, movement of capital, transport, intellectual prop-
erty and information society Team). Previously, she was a lecturer at Mykolas Romeris
University and as government official was directly involved in the accession negotiations
of Lithuania. She has represented the Commission in numerous cases before the CJEU.
Jonathan Tomkin is a Member of the Legal Service of the European Commission (Justice,
Liberty and Security team). Since 2016, he is an affiliated researcher at the Institute of
European Law, KU Leuven. He is a barrister (admitted to the Bars of Ireland, England
and Wales – Inner Temple), a former Director of the Irish Centre for European Law at
Trinity College, Dublin, and has previously worked as a Legal Secretary (Référendaire) at
the European Court of Justice. He appears regularly before the CJEU and has published
and lectured extensively, particularly in the field of Union citizenship, asylum and free
movement law. He is a co-author and co-editor of EU Immigration and Asylum Law (Brill
2012), and The EU Citizenship Directive (OUP 2014), respectively.
Michael Wilderspin is a Legal Adviser at the Legal Service of the European Commission
(Justice, Liberty and Security Team). He has represented the Commission in numerous
cases before the CJEU, the EFTA Court and international arbitral tribunals. He previ-
ously worked as a Legal Secretary (référendaire) at the Court of Justice. He has lectured
at the Universities of Durham, Saarbrücken and Paris II (Panthéon-Assas), and cur-
rently lectures at UCL Louvain-la-Neuve and Université Lyon III, where he is a Visiting
Professor. He has published extensively, mainly in the field of private international law.


 Abbreviations
AA Assocation Agreement
AAAA Addis Ababa Action Agenda
ACP African, Caribbean and Pacific
ACTA Anti-​conterfeiting Trade Agreement
ADA Anti-​dumping Agreement
ADN Agreement concerning the International Carriage of Dangerous
Goods by Inland Waterways
ADR Agreement concerning the International Carriage of Dangerous
Goods by Road
AETR Agreement concerning the Work of Crews of Vehicles Engaged in
International Road Transport
AFSJ Area of Freedom, Security and Justice
AG Advocate General
AMS Aggregate Measurement of Support
APO Associations of Producer Organizations
ARO Asset Recovery Office
ASCM Agreement on Subsidies and Counter-​Veiling Measures
BC Int’l & Boston College International Comparative Law Review
Comp L Rev
BIOT British Indian Ocean Territory
BIS Bank for International Settlements
BIT Bilateral Investment Treaty
BOI Binding Origin Information
BVerfG German Federal Constitutional Court
CAP Common Agriculture Policy
CATs Coordinating Committee in the area of police and judicial cooper-
ation in criminal matters
CCP Common Commercial Policy
CDE Cahiers de Droit Europeen
CEAS Common European Asylum System
CEPOL European Union Agency for Law Enforcement Training
CETA Comprehensive Economic and Trade Agreement
CIVCOM Committee for Civilian Aspects of Crisis Management
CFP Common Fisheries Policy
CFR Council on Foreign Relations
CFSP Common Foreign and Security Policy
CIR Common Implementing Regulation
CISA Convention Implementing the Schengen Agreement
CJEU Court of Justice of the European Union
CML Rev Common Market Law Review
CMLR Common Market Law Reports
CMO Common Market Organization
xxiv Abbreviations

CN Combined Nomenclature
ConstT Treaty establishing a Constitution for Europe
CoE Council of Europa
COHAFA Council working party on Humanitarian Aid and Food Aid
Columbia J Columbia Journal of European Law
of Europ L
CoR Committee of the Regions
COREPER Committee of Permanent Representatives
COSI Standing Committee on Operational Cooperation on Internal
Security
COTER Commission on Territorial Cohesion Policy
COTIF Convention concerning International Carriage by Rail
CRC Convention on the Rights of the Child
COSAC Conference of Parliamentary Committees for Union Affairs
CSDP Common Security and Defence Policy
CSFP Commonwealth Scholarship and Fellowship Plan
CTP Common Transport Policy
CUP Cambridge University Press
CYELS Cambridge Yearbook of European Legal Studies
DAA Draft Accession Agreement
DAC Development Assistance Committees
DC Development Cooperation
DCFTA Deep and Comprehensive Free Trade Areas
DCI Development Cooperation Instrument
DG Directorate General
DPA Data Protection Authority
DTTs Double Taxation Treaties
EAEC European Atomic Energy Community
EAFRD European Agricultural Fund for Rural Development
EAGF European Agricultural Guarantee Fund
EAGGF European Agricultural Guidance and Guarantee Fund
EASO European Asylum Support Office
EAW European Arrest Warrant
EBRD European Bank for Reconstruction and Development
EC European Community
ECAC European Civil Aviation Convention
ECB Euroepan Central Bank
ECHO European Civil Protection and Humanitarian Aid Operations
ECHR European Convention on Human Rights
ECI European Citizens’ Initiative
ECJ European Court of Justice
ECDC European Centre for Disease Prevention and Control
ECN European Competition Network
ECOFIN Economic and Finance Council
ECRIS European Criminal Records Information System
ECRIS-​TCN European Criminal Records Information System for Third-​country
Nationals and Stateless Persons


 Abbreviations xxv

ECSC European Coal and Steel Community

ECtHR European Court of Human Rights
ECT Energy Charter Treaty
ECTC European Counter Terrorism Centre
ECTS European Credit Transfer System
ECVET European Credit system for Vocational Education and Training
EDA European Defence Agency
EDF Environmental Defense Fund and European Development Fund
EDPB European Data Protection Board
EDC European Defence Community
EEA European Economic Area
EEAS European External Action Service
EEC European Economic Community
EEO European Enforcement Order
EES European Employment Strategy
EES Entry/​Exit System
EESC European Economic and Social Council
EEZ Exclusive Economic Zone
EFC Economic and Financial Committee
EFAR European Foreign Affairs Review
EFSA European Food Safety Authority
EFSF European Finanical Stability Facility
EGAF European Globalisation Adjustment Fund
EGTC European Grouping of Territorial Cooperation
EIB European Investment Bank
EIDHR European Instrument for Democracy and Human Rights
EIF European Investment Fund
EIoP European Integration Online Papers
EIPR European Intellectual Property Review
EJIR European Journal of International Relations
EJLS European Journal of Legal Studies
EJN European Judicial Network
EJML European Journal of Migration and Law
EJTN European Judicial Training Network
EMA European Medicines Agency
ELJ European Law Journal
EL Rev European Law Review
EMCO Employment Committee
EMCDDA European Monitoring Centre for Drugs and Drug Addiction
EMU Economic and Monetary Union
ENI European Neighbourhood Instrument
ENP European Neighbourhood Policy
ENS Entry Summary
EORI Economic Operator Registration and Identification
EP European Parliament
EPA European Partnership Agreement
EPC European Political Cooperation


xxvi Abbreviations

EPO European Protection Order

EPPO European Public Prosecutor’s Office
EPSCO Employment and Social Affairs Council
ERA Eureopan Research Area
ERAC European Research Area and Innovation Committee
ERCC Emergency Response Coordination Centre
ERM Exchange Rate Mechanism
ESA European Space Agency
ESC European Social Charter
ESCB European Systems of Central Banks
ESDC European Security and Defence College
ESDP European Security and Defence Policy
ESIF European Structural and Investment Funds
ESM European Stability Mechanism
ESS European Statistical System
EStAL European State Aid Law Quarterly
ESRB European Systemic Risk Board
ETIAS EU Travel Information and Authorization System
ETS Emmissions Trading Scheme
EU European Union
EUAM Advisory Mission for Civilian Security Sector Reform Ukraine
EUBAM European Union Border Assistance Mission Point
EUCAP European Union Capacity Building Mission
EUCARIS European Car and Driving Licence Information System
EUCPN European Crime Prevention Network
eucrim Journal for the Protection of the Financial Interests of the European
Union
Eu Const L R European Constitutional Law Review
EUFOR European Union Force
EU IRU European Union Internet Referral Unit
EUISS European Union Institute for Security Studies
EULEX European Union Rule of Law Mission in Kosovo
KOSOVO
EUMC Military Committee of the European Union
EUMM European Union Monitoring Mission
EUMR EU Merger Regulation
EUMS Military Staff of the European Union
EUPOL European Union Police Mission for the Palestinian Territories
COPPS
EuR Europarecht
EUROMED Euro-Mediterranean partnership
Eur Rev European Review of Private Law
Private L
EUSF European Union Solidarity Fund
EUTM European Union Training Mission
EUVR Zeitschrift für Europäisches Unternehmens- und Verbraucherrecht


 Abbreviations xxvii

EuZW Europäische Zeitschrift für Wirtschaftsrecht (European Journal of

Business Law)
EWG Eurogroup Working Group
EWS Europäisches Wirtschafts- und Steuerrecht
EYCS Education, Youth, Culture and Sport Council
FAC Foreign Affairs Council
FAR Regulation 1006/​2008 on fishing authorizations
FAFA Financial and Adminstrative Framework Agreement
FAO Food and Agriculture Organization
FEMIP Facility for Euro-​Mediterranean Investment and Partnership
FIUs Financial Intelligence Units
Ford Int La J Fordham International Law Journal
FTA Free Trade Agreement
GAC General Affairs Council
GAECs Good Agricultural and Environmental Conditions
GAERC General Affairs and External Relations Council
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GC General Court
GDPR General Data Protection Regulation
GRECO Group of States Against Corruption
GSP Generalized Scheme of Preferences
HA Humanitarian Aid
Harvard ILJ Harvard International Law Journal
HR High Representative
IA International Agreement
IACS Integrated Administration and Control System
ICAO International Civil Aviation Organization
CB International Commodity Bodies
ICCAT International Commission for the Conservation of Atlantic Tuna
ICJ International Court of Justice
ICS Investment Court System
ICSID International Centre for Settlement of Investment Disputes
IcSP Instrument contributing to Stability and Peace
IfG Instrument for Greenland
IFI International Fund for Ireland/International Financial Institution
IGC Intergovernmental Conference
IIC International Review of Intellectual Property and Competition Law
ILO International Labour Organization
IMF International Monetary Fund
IMO International Maritime Organization
IO International Organization
IP Intellectual Property
IPA Instrument for Pre-​accession Assistance
IPCR Integrated Political Crisis Response
IPEX InterParliamentary EU information eXchange


xxviii Abbreviations

IPR Intellectual Property Rights

IPRax Praxis des Internationalen Privat- und Verfahrensrechts
ISAA Integrated Situational Awareness and Analysis
ISF International Security Fund
ISSG International Syria Support Group
ITLOS International Tribunal for the Law of the Sea
ITU International Telecommunication Union
JBI Juristische Blätter
JCMS Journal of Common Market Studies
JECL&Pract Journal of European Competition Law & Practice
JEI Journal of European Integration
JEPP Journal of European Public Policy
JHA Justice and Home Affairs
JIT Joint Investigation Team
JRC Joint Research Centre
LDC Least Developed Country
LGBT Lesbian, Gay, Bisexual, and Transgender
LIC Lower-​income Country
LJIL Leiden Journal of International Law
LPIS Land Parcel Identification System
MAFF Multi-​Annual Financial Framework
MEP Member of European Parliament
MFA Macro-​Financial Assitance
MFN Most-​Favoured-​Nation
MIC Multilateral Investment Court/​Middle-​income Country
MoU Memorandum of Understanding
MJ Maastricht Journal of European and Comparative Law
MoU Memoradum of Understanding
MS Member State(s)
MSY Maximum Sustainable Yield
NATO North Atlantic Treaty Organization
NCA National Competition Authority
NCB National Central Bank
NEAFC North-​East Atlantic Fisheries Commission
NFF Neighbourhood Finance Facility
NGO Non-​governmental Organization
NPS New Psychoactive Substances
OAD Overseas Assocation Decision
OCTs Overseas Countries and Territories
OCTA Overseas Countries and Territories Association
ODA Official Development Assistance
OECD Organisation for Economic Co-​operation and Development
OIE World Organisation for Animal Health
OIV International Organisation of Vine and Wine
OJ Official Journal of the European Union
OJLS Oxford Journal of Legal Studies
OLAF European Anti-​Fraud Office


Another random document with
no related content on Scribd:
his cannibal's thought-pattern, torrents of perfectly stable electricity,
slowly influencing his own pattern as he had expected to influence
the impulse, influencing his into a frozen, stable, inflexible pattern of
continuous hunger-satisfaction.
His crystalloid jaws spread wide, Rahll floated in the black void of
space, motionless, unable to move, unable to twist into new thought-
patterns, and therefore unable to think. The inflexible current of
electricity poured steadily into his body....

Slowly the effects of the morphine wore off, and the haze lifted from
Brenner's mind. As his power to think returned, he began to realize
that his plan had worked, and that the alien had been overcome; and
he was glad of this only because it removed him, Brenner, from
danger. He no longer cared that the creature might have absorbed
the impulses of every living being in existence; the thing was frozen,
and he was safe from it—that was all that mattered to him.
Of course he could not see, or feel, or hear the motionless crystalloid
pattern outside. But he knew it was there. He could sense it.
He could sense it because his heretofore unmethodical hub-impulse
pattern, in its close association with Rahll's, had been slowly twisted
and molded into a form very much like the alien's, giving him Rahll's
powers of sightless observation of other impulses and objects.
Brenner no longer had any need for his lost powers of sight, hearing,
taste, smell and touch.
He groped his way back to the nose seat, sensing his way as he
could not feel it. He would find Base—he would be able to sense the
way back to it as soon as it was close enough. He would go back to
Base, because, naturally, his basic thought-form had also been
molded into the shape of Rahll's; and Brenner was hungry, and he
knew he could find food at Base.
Food. He pictured Hale, and the other men at the station.
Food. His jagged cannibal's pattern contracted in ecstacy at the
thought of it.
He activated the atomic generator and whirled the ship around.
THE END
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