CFEU Lecture 1

Welcome, introduction
and legal evolution
Professor Nuno Ferreira
Teaching and learning opportunities on this module

▪ Critical & engaged thinking on EU constitutional framework

▪ Explore in depth ideas and concepts on the values,
institutions and procedures of the EU
▪ Builds on the knowledge and skills you have already
developed in Public Law
▪ Brings together information and ideas from different
disciplines and legal areas in the EU context
▪ Expectations: combination of directed & independent study.
To do well in this module: keep up with lecture notes,
prepare well for seminars, take formative & use office hours.
▪ This module will challenge you to do your best work by:
gaining a solid knowledge basis, consider range of arguments,
and be critical of legal and policy developments.
▪ Employability and Skills for the Future: time management,
communication skills, critical thinking, legal research skills.
 Student voice
▪ You will be invited to complete a course
evaluation questionnaire half-way through
module and at the end of term.
▪ Online padlet available for comments
throughout term – link provided in week 2.
▪ Feedback is welcome at any point. Any
queries or suggestions can be directed to
module convenor or other team members.
▪ We welcome different voices & are working
towards a decolonised curriculum.
▪ Actions taken throughout module.
 Teaching team
The EU Law teaching team:
Lectures: Prof Nuno Ferreira (convenor)
and Dr Gianluca Gentili (convenor)
Seminars: Lecturers plus Dr Liana
Japaridze, Dr Ioannis Katsaroumpas,
and Dr Emanuela Orlando.
Lectures/Reflective workshops
(2hrs/week) and seminars (1hr / fortnight)
– check your timetable
 Books and reading materials
P Craig & G de Búrca, EU N Foster, Blackstone’s EU
Law Text, Cases and Treaties and Legislation
(OUP)
Materials (7th ed OUP, 2020)
Or electronically via EUR-Lex
Accessible via LawTrove
(https://eur-lex.europa.eu/)

All information and supporting

materials for lectures and
seminars via Canvas and
Leganto Reading List
EU Law – Assessment
Level 5/Year 2: MCQ 30%; Essay 70% (1,000
words)
Level 6/Final year: MCQ 30%; Essay 70% (1,500
words)

MCQ at end of Week 11

Essay due in first assessment block (A1)

NB: Risk-free opportunity to take non-assessed

MCQ test during week 6
 Other activities
Study abroad opportunities:
Sussex European Institute: those in second year may
http://www.sussex.ac.uk/sei/ take a third year out
(seminars, workshops, studying Law in English at a
events, etc.) University in Europe (or
Asia/Australia)

Read the newspapers

and watch the news!
 Module outline
The constitutional framework of the EU:
• Legal evolution
• Competences
• Actors
• Law-making
• Supremacy of EU law
• Direct effect
• Remedies
• Fundamental rights
• Brexit
 The saga of a departure
▪ 1973 accession
▪ 1975 first referendum
▪ Continuous cross-party divisions/anti-scepticism
▪ Conservative government (David Cameron):
European Union Referendum Act 2015
▪ 2016 referendum:
▪ 51.9% Leave / 48.11% Remain
▪ Not legally binding, but…
▪ 31 January 2020
 Why study EU Law (post-Brexit)?
▪ Migration ‘crisis’; security and
▪ Economic and financial crisis terrorism.

▪ The future of the Euro ▪ EU citizenship & the right to move,

reside, work, study, trade, (claim
▪ Trade agreements and welfare benefits?) in any MS. What
external relations about third country nationals (TCNs)?

▪ Human rights protection. Non-

discrimination
▪ Important time for lawyers to
understand the contents and
implications of EU law given the
decision of the UK to leave the EU

▪ European Law is still necessary to

obtain a Qualifying Law Degree
 Evolving economic models

▪ Free trade area (no internal border tariffs)

▪ Customs union (ditto plus common external tariff)
▪ Common market (ditto plus free movement of
goods, labour, services, capital)
▪ Economic and monetary union (inc. common
currency)
▪ Political Union? Federal State?
 Legal evolution: Treaty milestones
▪ Treaty of Rome 1957 founded European
Economic Community): seeking peace,
stability and economic progress among 6
Member States

▪ Single European Act 1986 re-launched

single market

▪ Treaty of Maastricht 1992 established EU,

renamed EEC as European Community
‘pillar ‘ within EU
 The EU’s immediate past (from 1992 TEU):
The 3 pillars of the EU
▪ Why 3 pillars? A symptom of evolving integration
▪ EC (first) pillar more integrated in political
and legal terms: supranational decision-
making, review by Courts, individual rights,
etc.
▪ 2nd and 3rd pillars more intergovernmental
in decision-making processes; greater
powers retained by MSs; less reviewable
N.B.
▪ The Lisbon Treaty has now ended the formal pillar
divisions
▪ But Common Foreign and Security Policy (CFSP)
still has special rules
▪ All elements now called ‘EU’ and ‘EU Law’
 Treaty of Amsterdam 1997
▪ An amending Treaty (i.e. amended the TEU and
EC Treaty)

▪ Some of pillar 3 (Justice and Home Affairs)

moved to pillar 1 (EC)

▪ Stronger anti-discrimination provisions (now

Art.19 TFEU)

▪ Introduced sanction mechanism for violation

fundamental rights by a MS (Art. 7 TEU)

▪ Renumbered the EC Treaty and TEU

 Treaty of Nice 2001
▪ An amending Treaty

▪ Dealt with the ‘Amsterdam leftovers’ regarding

institutional reforms (with a view to 2004 enlargement),
e.g. just 1 Commissioner per MS; more QMV (qualified
majority vote rather than unanimity) in more areas

▪ Charter of Fundamental Rights was solemnly

proclaimed

▪ A very unhappy compromise!

▪ Declaration to open a more fundamental and wide-

ranging debate on the future of the EU
 From Nice to Lisbon
▪ Political dispute over direction of the EU
▪ Social or market directions?
▪ Unwieldy decision-making structures after
2004 enlargement
▪ Conflict over constitutionalising the EU
▪ Draft European Constitution 2004 failure
▪ Agreed by MSs but defeated by French and
Dutch referenda in ratification process
 The Lisbon Treaty 2007
▪ Compromise after failure of 2004 Draft
Constitution
▪ Ratified after original Irish referendum
rejection
▪ Tries to lose (hide?) the constitutional bits
▪ Last-minute accommodation of Czech Rep
alongside Poland and UK ‘opt-outs’ re parts
of Charter of Fundamental Rights
▪ Amends EU Treaties to form today’s
position...
 Evolution summed up
Key Treaties

Treaty of Rome 1957 → EEC Treaty of Maastricht 1992 → EU

Amending Treaties:
- Single European Act 1986
- Treaty of Amsterdam 1997
- Treaty of Nice 2000
- Treaty of Lisbon 2007

TFEU CFR TEU

 CFEU Lecture 2
Objectives and competences
Professor Nuno Ferreira
 The EU and its Treaty base today
The EU’s current (since 2009) legal framework is
based on 3 constituent elements:

▪ Treaty on European Union (TEU) – mainly

constitutional principles and CFSP (as amended)

▪ Treaty on Functioning of EU (TFEU) – the

detailed operational rules (the amended and
renamed Treaty of Rome)

▪ Charter of Fundamental Rights (‘The Charter’) –

now has the same legal value as the Treaties
An evolving legal framework

▪ The EU legal order is Treaty based.

▪ On the face of it, it looks like a type of public
international law. It is not!
▪ See later lectures on supremacy and direct
effect.
▪ The Treaties form the primary legislation.
These are agreed by the Member States (the
‘masters’ of the Treaties).
▪ The Treaties are complemented by secondary
legislation and case law from the Court of
Justice.
Internal and External Dimensions of the Single Market

1. Common Commercial Policy

EXTERNAL
Common Customs Tariff

2. Customs Union Prohibition of duties and charges

Prohibition of discriminatory taxation

INTERNAL

3. Free Movement of Goods, People,

Services/Establishment and Capital
 The EU as an evolving project

▪ Territorial enlargements (now 27 MSs – after

the UK left)
▪ Wider political and social goals
▪ A deepening legal order
▪ Where to after Lisbon? Crisis, multi-speed,
renegotiation, opt-ins, opt-outs, other ‘Brexits’?
▪ European Political Community?
(see BBC News: https://www.bbc.co.uk/news/uk-
politics-62967084)
 The EU as a legal construct
The EU is a legal construct, NOT a state!

▪ It is not omni-competent
▪ It cannot do everything and anything
▪ It has no inherent powers
▪ But it does have legal personality,
competences, institutions and
decision-making processes
The EU’s values: Art 2 TEU
The objectives of the EU are bound up with the EU’s
commitment to respect certain core values:

“The Union is founded on the values of respect for human

dignity, freedom, democracy, equality, the rule of law and
respect for human rights, including the rights of persons
belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-
discrimination, tolerance, justice, solidarity and equality
between women and men prevail.” (Art. 2 TEU)

▪ Rhetorical, aspirational, legally binding?

▪ All new MSs must sign up to these values.

▪ MSs may be sanctioned if they are not respected.

 The EU’s objectives: Art 3 TEU
▪ Art 3(1) ‘The Union’s aim is to promote peace, its values and the
well-being of its peoples.’
▪ Art 3(2) area of freedom, security and justice without internal
frontiers… free movement of persons…appropriate border
controls, asylum, immigration measures
▪ Art 3(3) internal market…sustainable development…full
employment…environmental protection…combat social
exclusion and discrimination…equality between women and
men…solidarity between generations…rights of the
child…solidarity among member states…respect cultural and
linguistic diversity…safeguard Europe’s cultural heritage
▪ Art 3(4) economic and monetary union
▪ Art 3(5) promote its values in wider world…peace, security,
sustainable development of Earth…solidarity and mutual
respect among peoples…free and fair trade…eradication of
poverty…protection of human rights
 Competences: Art 3(6) TEU
▪ However… note Art 3(6)TEU

▪ ‘The Union shall pursue its objectives by

appropriate means commensurate with
the competences which are conferred
upon it in the Treaties.’

▪ ‘Competences’ means the power/right to

act in certain areas
 Competence catalogue:
No competence = no power to act

▪ Art 3 TEU sets out the EU’s broad objectives (note ▪ Art 4(1) TEU: “…competences not conferred
the range of goals and possible conflicts) upon the Union in the Treaties remain with the
MS.”
▪ More specific competences are to be found in Arts
3-6 TFEU: ▪ Art 5(1) TEU: “The limits of Union competences
›Art 3 TFEU (exclusive competences) e.g. are governed by the principle of conferral.”
customs union, competition rules, common
commercial policy ❑ No Treaty base = no EU power to act
›Art 4 TFEU (shared competences) e.g.
internal market, social policy, agriculture,
transport, energy
›Art 6 TFEU (supporting actions) e.g. health,
culture, education
›New categorisation since the Lisbon Treaty –
clearer than before?
 Interpreting competences:
the role of the Court of Justice

▪ Meaning of EU Treaties exclusively determined by

Court of Justice (Art 19 TEU)

▪ Why is boundary marking important?

›It shows the legitimacy of EU action:
the power to act
›It settles supremacy issues: conflict between
national and European law over competence
›It shows the correct legal base (i.e. how relevant
decisions are to be made, by which institutions
and using which procedure)

▪ Some examples of the Court of Justice’s

interpretation....
 Avoiding conflict with Member States:
Case C-159/90 Grogan [1991] ECR I-4685
▪ Irish constitutional prohibition against abortion and
providing info about abortion

▪ G and others supplied women with information

about where to obtain abortions in UK

▪ SPUC (Society for the Protection of the Unborn

Child) brings action; G and others invoked ‘Euro
defence’ – i.e. the freedom to provide and receive
services in another member state under the EC
Treaty; also freedom of expression under ECHR

▪ Was this an area for EU action?

 Advocate General and Court of Justice compared

▪ AG van Gerven ▪ CJEU

›Info = service ›Abortion = service
›Thus EC Treaty applies ›Info ≠ service
›But EC allows derogations in ›EC Treaty therefore not
Treaty applicable
›Morality = recognised ›If no EC dimension, no reason
justification for limit to free to discuss ECHR
movement ›Irish rule not touched by EC
›Irish rule allowed by EC law law
›i.e. EC was competent but MS ›i.e. EC not competent
could ask for a derogation
 No EU power/wrong legal base: the Tobacco
Advertising case

Case C-376/98 Germany v EP and Council

▪ Art 152(4)(c) EC excludes EC power to harmonise
national laws relating to public health [now Art
168(5) TFEU]

▪ Art 95 EC [now Art 114 TFEU] authorises

harmonising measures for the establishment and
functioning of the internal market
▪ EU used Art 95 EC (qualified majority vote) to pass
a measure aimed at banning tobacco advertising,
saying this was an internal market matter. A number
of MSs protested.
 No EU power: the CJEU’s reasoning
▪ ‘Real’ reason for the measure was clearly public health
protection: but harmonization of public health is
excluded by Treaty

▪ Not within the single market competence either:

›Art 95 EC (now Art. 114 TFEU) NOT a general
legislative power
›Measure was too general to satisfy Art 95
conditions (‘establishment and functioning’)
›CJEU annuls measure for lack of ANY legal base
under Treaty
›Note this is a rare example in which the CJEU
says the EU is not competent to do something!
Important points to remember
The EU’s objectives/powers/competences are set out in
the Treaties. Always check the Treaties for the legal
base for action.

There are limits to the EU’s objectives and to the

Treaties.

Court of Justice = interpreter of scope of the Treaties;

style of interpretation becomes critical in defining
boundaries.

Member States have tried to curtail Court’s scope for

interpretation by Lisbon settlement in Arts 3-6 TFEU.
CFEU Lecture 3
MSs, citizens and
institutions
Professor Nuno Ferreira
 Who is the European Union?
Who are the key actors/players in the
EU?

▪ Member States
▪ The ‘peoples of Europe’ - EU Citizens
▪ EU Institutions
 A Union of Member States (EU27)
The 27 Member States of the EU are key actors
within the Union
(Belgium, Bulgaria, Croatia, Czech Rep,
Denmark, Germany, Estonia, Greece, Spain,
France, Ireland, Italy, Cyprus, Latvia, Lithuania,
Luxembourg, Hungary, Malta, Netherlands,
Austria, Poland, Portugal, Romania, Slovenia,
Slovakia, Finland, Sweden)

The Member States are described as the

‘Masters of the Treaties’

The Heads of State or Government of the

Member States agree new Treaties and Treaty
amendments (i.e. the primary legislation) in which
they agree (unanimously) what the EU can do

[
A Union of Citizens
Art 1 TEU: ‘This Treaty marks a new
stage in the process of creating an ever
closer union among the peoples of
Europe...’.

Who are the ‘peoples of Europe’?

Who are EU citizens?

 Citizenship of the European Union
▪ Entered into force in 1993 with the introduction of
the Treaty on European Union (Maastricht)

▪ Art 9 TEU and Arts 20-24 TFEU (ex 17 EC)

▪ Confer EU citizenship on nationals of the MSs

▪ It is additional to, and does not replace, national

citizenship

▪ N.B. Nationality is granted by each Member State

according to national law

▪ Further developments: Directive 2004/38/EC, CJEU’s

case law
 Art 18 TFEU (ex 12 EC):
The right not to be discriminated against

Within the scope of application of

the Treaties, and without
prejudice to any special
provisions contained therein, any
discrimination on the grounds of
nationality shall be prohibited.

N.B. Applies only to nationals of

the member states – not third
country nationals.
 C-184/99 Grzelczyk [2001]
Union Citizenship is destined to be the
fundamental status of nationals of the
Member States [LEARN THIS PHRASE!],
enabling those who find themselves in the
same situation to enjoy the same
treatment in law irrespective of their
nationality,
subject to such exceptions as are
expressly provided for.

OK to be a ‘reasonable’ burden!
 A Union of Institutions
▪ The EU’s institutional framework does not
look like that of a typical nation state

▪ Balance of powers, not separation;

system of governance, not government

▪ An institution may have several different

functions (e.g. Commission)

▪ Several institutions may participate in the

same function (e.g. law-making)
 Article 13 TEU – the institutional framework
➢The EU institutions (7):
European Parliament
Art. 13(1) ‘The Union shall have an European Council
Council
institutional framework which shall European Commission
aim to promote its values, advance its Court of Justice
European Central Bank
objectives, serve its interests, those of Court of Auditors
its citizens and those of the Member
➢Art. 13(2) ‘Each institution shall act within
States, and ensure the consistency, the limits of the powers conferred on it in the
Treaties, and in conformity with the
effectiveness and continuity of its procedures, conditions and objectives set out
in them. The institutions shall practise mutual
policies and actions. …’ sincere cooperation.’

➢Note important changes under the Lisbon

Treaty.
Institutional power relations in the EU
Consider the institutions in terms of:

▪ Supranational or intergovernmental
character

▪ Significance of their powers

▪ Accountability of institutions to each

other and democratic legitimacy more
generally

▪ Participation in legislative
process(es)

▪ Dynamics and factors that influence

change
 The European Commission
▪ Art. 17 TEU
▪ 1 Commissioner per MS
▪ 5 year term of office
▪ Independence of Commissioners
▪ Power of legislative initiative
▪ (Limited) unilateral decision-making (e.g.
fining companies for breaches of
competition law)
▪ Guardian of Treaties (e.g. bring
enforcement actions against MSs in the
Court of Justice)
▪ In 2019 Ursula von der Leyen became
the new President of the Commission
Council of the European Union
▪ Art. 16 TEU
▪ No fixed members. The Council consists of
government representatives at ministerial level
(highly political)

▪ Meets in 10 different configurations according to

policy areas:
▪ General Affairs Council as coordinator
▪ Foreign Affairs Council for external actions,
chaired by High Rep for Foreign Affairs (Josep
Borrell Fontelles)

▪ Each MS holds the presidency on a 6 month rotating

basis (now Spain, next Belgium)

▪ Co-legislator with European Parliament under the

‘ordinary legislative procedure’ (Art. 294 TEU)
 Voting in the Council
▪ Voting varies: simple, unanimous or qualified
majority (QMV) depending on Treaty basis and
the policy
▪ QMV = 55% of countries (with 27 current
members, this means 15 countries) representing
at least 65% of total EU population
▪ To block a decision, at least 4 countries are
needed (representing at least 35% of total EU
population)
▪ Exception - sensitive topics like foreign policy
and taxation require a unanimous vote (i.e. all
countries in favour).
▪ A simple majority is required for procedural &
administrative issues
 The European Council
▪ European Council = Heads of Govt plus its own
President and Commission President
▪ Recognised formally for first time by Lisbon Treaty
changes but already existed politically
▪ Not to be confused with the Council of EU or the
Council of Europe!
▪ Enhanced powers post-Lisbon
▪ No legislative powers – but its role is to ‘define
general political directions and priorities’
▪ Permanent/stable President
▪ 2 and half years, renewable once
▪ Current President Charles Michel took office in
2019
Operation of the European Council

▪ Some vague rules under Art 15 TEU:

‘shall provide the Union with the
necessary impetus for its development’
▪ Decisions to be taken by ‘consensus’
▪ President to ‘chair it and drive
forward its work’

▪ N.B. Art 263 TFEU gives Court of Justice

power to review decisions of the
European Council intended to produce
legal effects re 3rd parties
 The European Parliament

▪ Art 14 TEU
▪ Directly elected (numbers of seats allocated
to MSs) every 5 years. Last elections May
2019.
▪ Co-legislator with the Council under
‘ordinary legislative procedure’
▪ Budgetary control
▪ Elects President of Commission on
proposal from European Council and
approves Commission as a whole.
▪ Power to force resignation of Commission
as a body by two-thirds vote
The Court of Justice of the EU
▪ Art 19 TEU
▪ 1 judge from each MS
▪ 11 impartial Advocates General who give (non-
binding) Opinions
▪ Single judgments, no dissents
▪ Sit in Chambers (3 or 5) or as Grand Chamber (15)
or as a Full Court
▪ Lower division = General Court (ex Court First
Instance)
▪ Sits in Luxembourg - not EVER to be confused with
the European Court of Human Rights in Strasbourg!
 Think about…
institutional relations post-Lisbon

Winners? Losers?
▪ European Council ▪ Commission
o Elevated legal status even though no o Formal power of initiative but
legislative power
o Initiatives for future Treaty change increasingly told what to initiate
(from E Parl and European
▪ European Parliament Council)
o Expansion of OLP role ▪ Council of EU
▪ Court of Justice o Rotating State presidency
o Gains jurisdictions
o Overshadowed by permanent
President of European Council
More state-centric, democratic? Less supranational? A different inter-
institutional balance?
In a picture…

Source: BBC / pre-Brexit

Summary
Think about how different the EU institutions are
from those of a nation state and why they are so
different?

Think about what the EU is and who it is for.

Member states? Citizens? Residents? Workers?
Students? Welfare tourists?

Different institutions exhibit different degrees of

supranationality, inter-governmentalism or
democratic accountability

Are EU institutions fit for purpose?

 EU Law Lecture 5
Law-making in the EU
Professor Nuno Ferreira
 The institutional framework
Article 13 TEU

Recap on Commission (independent, power of initiative)

the EU
Council of the EU (ministers, co-legislator under
Ordinary Legislative Procedure (OLP))

institutions
European Council (Heads of Govt, driver of EU
priorities)
European Parliament (directly elected, co-
legislator under OLP)

Court of Justice (judiciary, exclusive

interpreter of meaning of EU law)
Law-making in the EU
Before looking at how laws are made
in the EU, we need to understand the
different types of legislative output.

Secondary legislation Art. 288 TFEU

(NB The primary legislation is the
Treaties)
Art. 288 ‘To exercise the Union’s
competences, the institutions shall
adopt regulations, directives, decisions,
recommendations and opinions …’
 Legally binding secondary measures
Regulations
general application, binding in its entirety,
directly applicable in all Member States

Directives
binding as to result on MSs to which it is
addressed, leaves to MS the choice of form and
methods by deadline, not directly applicable

Decisions
binding in its entirety on those to whom it is
addressed
 Non-legally binding measures
Recommendations and opinions

▪ No legally binding force

▪ Sit alongside resolutions, declarations,
action programmes, plans,
communications and guidelines from the
Commission
▪ No legal sanction, but organise relations
between the institutions, commit EU
institutions to respect certain rules/values,
set out programmes for legislation, etc.
New forms of governance: ‘soft law’
▪ MSs objections to ‘hard’ law (Regs and Directives)
and preference for non-binding ‘soft law’
▪ E.g. Open Method of Co-Ordination (OMC):
Recognised as working method since 2000 and
applied to employment strategy and various
social policies: e.g. parental leave directive
▪ Informal, sharing (good) practices, consensus,
guidelines for common action, etc.;
development of convergence by learning from
others’ experiences
▪ BUT, problems of accountability / predictability
/ implementation
 Legislative processes
Be careful!

There is more than one EU decision-making /

legislative procedure (see Art. 289 TFEU)

The Ordinary Legislative Procedure [OLP]

(used to be called ‘co-decision’)
is now the default system

but other ‘special procedures’ (i.e.

consultation and consent) still exist
OLP under Art 294 TFEU
▪ You need to read it!
▪ Simplified summary:
▪ Commission proposal
▪ Co-decision by Council (QMV) and European
Parliament over 3 readings
▪ Legally genuine institutional parity – EP has
veto
▪ Joint conciliation committee in event of conflict
between Council and E Parl
▪ Legislation outputs = EU secondary legislation
(Regulations, Directives), as above
 The EP perspective on OLP
▪ Double veto opportunity for E Parl:

▪ After 2nd reading, reject Council’s

‘common position’
▪ Or, if conciliation committee report has
been required, reject this (3rd reading)

▪ N.B. Less than 1% of co-decision procedures

pre-Lisbon were actually vetoed by E Parl
▪ But over 80% measures included EParl
amendments
 Special Procedures - Consent

EP enjoys formal powers and must

actively say yes (rather than just veto a
measure).

Applies, for example, to anti-

discrimination law, criminal justice
policy, the budget, international
agreements and the flexibility principle
(which allows the EU to act to fulfil its
objectives where there is no other
appropriate legal base).
Special Procedures - Consultation
▪ Amounts to a duty to consult the EP (see
Case 138/79 Roquette Frères [1980]) and
reflects the ‘fundamental democratic
principle that the peoples should take part in
the exercise of power through the
intermediary of a representative assembly’.
▪ No obligation to take account of Parliament’s
views though.
▪ Before the Single European Act this was the
usual legislative process.
▪ Applies now, for example, to some (sensitive)
areas of Freedom, Security and Justice (Art.
74 TFEU)
Conflict: Which policy? Which legal base?
Institutional/horizontal turf wars
▪ Political wrangling between institutions for
power

▪ Remember the institutions represent different

interests:
supranational / intergovernmental / democratic

▪ And the balance between these interests

changes as the Treaties change

▪ Leads to inter-institutional litigation to

ascertain correct legal base for EU measure
in question
 Turf War Litigation

Court of Justice criteria to settle horizontal turf

war disputes:

▪ Look at the aim and content of the

measure
▪ If there is dual purpose, one of which is
predominant, ONLY the predominant
purpose must be the base (the centre
of gravity argument)
▪ If there are multi-linked objectives,
none of which is predominant, then
base is potentially ALL of them
 Applying objective criteria: E.g. 1
Case C-300/89 Commission v Council
(Titanium Dioxide)
▪ Measure to harmonize progress to reduce
pollution in the titanium dioxide industry
▪ The Commission said the legal base was
the internal market (co-operation and QMV)
▪ The Council said it was the environment
(consultation and unanimity)
▪ The Court agreed with the Commission –
the centre of gravity of the measure was the
internal market (about the circulation of
waste across borders)
Applying objective criteria: E.g. 2

Case C-269/97 Commission and E Parl v

Council
▪ Directive on registration of animals and
labelling of beef (anti-BSE - Bovine
spongiform encephalopathy – measure)
▪ Legal base: Agriculture (mere
‘consultation’ of E Parl) OR consumer
protection (co-decision)?
▪ Court’s answer: This time agreed with
the Council
 Summary and conclusions
Output of law-making = Secondary
Different processes matter: legislation (EU Regulations and Directives)
▪ Which institutions participate (EP, Council,
Commission) and what type of vote Increasing use of ‘soft law’ in form of
(Unanimity/QMV) is required
negotiated/agreed targets and best practice
▪ The OLP (pre-Lisbon co-decision) was arrangements.
extended by Lisbon to new policy areas
▪ Response to the criticism of ‘democratic
deficit’ in the EU and entails more democratic Law-making procedures clearer post-Lisbon with
involvement of the EP/peoples of Europe OLP and QMV now the default rules

Turf wars still possible – preferably solved by

inter-institutional agreement but otherwise
end up before the Court
 EU Law Lecture 6
The Principle of Subsidiarity
Professor Nuno Ferreira
Exercising - and Limiting - Powers
Broad values and objectives in Arts. 2
and 3 TEU

The EU is Art. 5(1) TEU ‘The limits of Union competences

not omni-
are governed by the principle of conferral’

competent Art 4(1) TEU ‘…competences not conferred upon

the Union in the Treaties remain with the MS’

No Treaty base = no power to act!

Categorisation of competences (post-Lisbon)
See lecture 2
Arts 3-6 TFEU

Art 3 TFEU - EU exclusive

competences
Art 4 TFEU – EU/MS shared
competences
Art 5 TFEU – MS shall coordinate their
economic policies within the Union
Art 6 TFEU – EU competence to carry
out actions to ‘support, coordinate or
supplement’ MS actions
 Competence disputes (turf wars)
Horizontal disputes (i.e. between institutions)
E.g. Commission and EP v Council
(see previous lecture)

Vertical disputes
(i.e. between EU and MS)
 Vertical disputes: when both the EU and MS could
act who should do so?
If EU has exclusive power in a
field of activity, MS action is
precluded

But if both MSs and EU have

power to act (i.e. competence is
shared), which should do so?

The answer lies in Art 5(3) TEU

and the principle of
SUBSIDIARITY
Art 5(3) TEU subsidiarity
‘...in areas which do not fall within its
exclusive competence, the Union shall
act only if and in so far as the objectives
of the proposed action cannot be
sufficiently achieved by the Member
States, either at central level or at
regional and local level, but can rather,
by reason of the scale or effects of the
proposed action, be better achieved at
Union level.’

Words in italics added by Lisbon

changes
 Subsidiarity: the political context

▪ Idea from Catholic social tradition and federalism

▪ First included in EU law by Treaty of Maastricht
▪ ‘A Treaty too far’? Expansion of EU
competences into new fields
▪ Subsidiarity = ‘the word that saved the
Maastricht Treaty’
▪ Insertion of subsidiarity provision to put brakes
on unnecessary actions at EU level
▪ John Major’s (UK PM at time) ‘repatriation of
powers’?
▪ Or not….
 Does subsidiarity make a difference?

▪ ‘the chief advantage...seems to be its capacity

to mean all things to all interested parties –
simultaneously’ (Mary Robinson, President of
Ireland, 1996)
▪ ‘[subsidiarity] is primarily a state of mind’
(European Commission 1993)
▪ Ex ante effects – making legislators think
before they act?
▪ N.B. Commission claims to have dropped
EU harmonisation plans for, e.g., zoos
 Can subsidiarity be a basis for subsequent
judicial review?

▪ Art 8 of Protocol No 2: Court of Justice

jurisdiction to review EU legislative acts for
breach of subsidiarity

▪ But pre-Lisbon track record of judicial reticence

- why?

▪ Alternative review methods: conferral of

powers principle, proportionality principle
 The Court’s light touch approach
▪ Case C-84/94 UK v Council (Work-Time
Directive)
▪ Max 40 hours working week
▪ Rest day=Sunday
▪ Court rejects UK claims of subsidiarity
infringement

▪ Case C-491/01 BAT (Tobacco Control

Directive)
▪ Eliminating barriers between MSs
‘cannot be sufficiently achieved by
MSs individually’
Telecommunications
Case C-58/08 Vodafone and others v
Sec State for Business

EU legislation on retail and wholesale

charges for roaming mobile phone
networks

Challenged by Vodafone and other

operators, on basis, inter alia, that
inclusion of retail framework was a breach
of subsidiarity
The Vodafone judgment
▪ Subsidiarity does not call into question the
powers of the EU as interpreted by the Court
▪ Recitals of the EU Reg clearly show
interdependence of retail and wholesale charges
for roaming services
▪ ‘that interdependence means that the [EU]
legislature could legitimately take the view that it
had to intervene... Thus, by reason of the effects
of the common approach...the objective pursued
by that Reg could best be achieved at [Union]
level.’
▪ Still the same soft touch!
Current EU institutional application
New Protocol No. 2 to EU Treaties adopted
by ToL; replaces 1997 ToA version

Art 1: ‘Each [EU] institution shall ensure

constant respect of the principles of
subsidiarity and proportionality’

Art 5: draft EU legislation to contain detailed

statement making it possible to appraise
compliance with subsidiarity, including
reasons substantiated by qualitative and,
wherever possible, quantitative indicators
 The post-Lisbon rules

▪ New procedure, involving national parliaments

in the drafting stage of EU legislation

▪ Specific reference to national parliaments in

Art 12 TEU (Lisbon)
‘National Parliaments contribute actively to
the good functioning of the Union:…
…(b) by seeing to it that the principle of
subsidiarity is respected in accordance with
the procedures provided for in the Protocol…’
 National Parliaments in the Protocol
Art 4: Commission to send draft EU acts to
national parliaments at same time as to Union
legislator

Art 6: Nat parls have 8 weeks to send reasoned

opinions why draft legislation does not comply with
subsidiarity

Nat parls have 2 votes each (e.g. in Italy one for

Parliament, one for Senate)

Art 7: EParl, Commission and Council ‘shall take

account of’ opinions of Nat parls
Impact of national Parls’ votes
Art 7(2): if a third of national votes are
against legislation, the draft must be

Can national reviewed by its initiator

‘yellow card’

parliaments Art 7(3): For OLP proposals, a simple majority of

nat parl votes will require Commission to produce
block EU a reasoned opinion response and 55% of Council
or simple majority of E Parl can drop the measure

action? ‘orange card’

No red card!
 Moving forward post-Lisbon
Enhanced legitimacy for EU law-making?
National parliaments have (only) acquired
scrutiny role; does not change EU
institutional balance in decision-making

Continuing Will national parliaments be sufficiently organised to

act together?

questions Data so far suggests not (Kiiver and Cygan articles

2011 ELRev). In any case their representations are
limited to subsidiarity comments

The Court - continuing its reticence to

intervene?
 Conclusions and the future
Balance political/legal impact of subsidiarity

Politics: impact more at proposal stage?

The limits Law: not being used as a tool for intense ex

post facto judicial review of legislation

of law… Lisbon involvement of nat parls in EU legislative

process = strengthening ex ante scrutiny

But lack of coordination among national

parliaments

Will changes force more Court involvement or is

Vodafone a clue to continued reticence?
 CFEU Lecture 7
The EU’s Legal Order and
Supremacy – The CJEU perspective
Professor Nuno Ferreira
Lecture outline for rest of module
Having looked at the basic institutional
and legislative structures of the
European Union, we will spend the rest
of the module examining the core
constitutional principles of EU law:

▪ Supremacy
▪ Direct effect
▪ Remedies
▪ Fundamental Rights
 Recap on the basics so far
Primary Treaties: TEU, TFEU + Protocols

The Charter of Fundamental Rights: same legal value as

Treaties

Sources of
Secondary legislation (Regs, Directives as a result of EU
institutional law-making, eg OLP)

EU Law Case law of the Court of Justice

‘Soft law’ (non-binding)

Recommendations and opinions (non-binding)

 But is the EU a distinct legal order?
Treaties are silent on this question

The Court of Justice has always taken the

view that EEC/EC/EU law is distinctive:
Neither international law nor national law,
but a ‘sui generis’ legal order

Legal theorists may differ: how many legal

systems are there in the EU?
E.g., 27, 27+1, 1, some other number?
The European Court’s Perspective
Judicial activism and judicial politics
- This will be a continuing theme in this module.
- Think about why the Court decides cases in the
way that it does. Who benefits? Who is the Court
and what is its role? How does the Court fit
alongside other institutions and actors? How are
hard cases to be decided?

The emergence of the supremacy doctrine

Van Gend en Loos, Case 26/62 [1963] ECR 1
a simple case about customs duties…
 Van Gend en Loos [1963]
▪ Van Gend en Loos was a company
importing chemicals from Germany
into the Netherlands.
▪ VGL was charged an import duty by
Customs and Excise
▪ VGL said the duty was contrary to
the then Art 12 EEC (now Art 30
TFEU) which prohibits customs
duties on imports and exports
between member states
▪ Simple question - should the Treaty
apply over the national requirement
to pay the duty?
 Van Gend en Loos - reasoning

Yes!
‘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 the member states
but also their nationals.’

Learn this!
 A special legal order limiting sovereign rights

Costa v. ENEL, Case 6/64 [1964] ECR 585

‘It follows… that the law stemming from the Treaty, an independent
source of law, could not, because of its special and original nature, be
overridden by domestic legal provisions, however framed, without
being deprived of its character as Community law and without the
legal basis of the Community itself being called into question.’
‘The transfer by the states from
their domestic legal system to the
Community legal system of the
rights and obligations arising under
the Treaty carries with it a
permanent limitation of their
sovereign rights, against which a
subsequent unilateral act
incompatible with the concept of
Community law cannot prevail.’
Is EU law supreme even over national constitutional
law and FRs?
Internationale Handelsgesellschaft,
Case 11/70 [1970] ECR 1125

What happens when a provision of

European law appears to conflict with
fundamental rights as set out in the
Basic Law or Constitution of a member
state (in this case Germany)?
And the EU (at the time) did not have
any fundamental rights provisions in the
EC Treaty…
Is national constitutional law (the
highest law in the land) not supreme?
Internationale Handelsgesellschaft
‘…the law stemming from the Treaty, an independent source of
law, cannot because of its very nature be overridden by rules
of national law, however framed, without being deprived of its
character as Community law and without the legal basis of the
Community itself being called into question. Therefore the
validity of a Community measure or its effect within a Member
State cannot be affected by allegations that it runs counter to
either fundamental rights as formulated by the constitution of
that State or the principles of a national constitutional
structure.’

…and happily the EC does actually protect fundamental rights

which are part of the unwritten general principles of EU law…
Setting aside conflicting national law
Case 106/77 Simmenthal (no 2) [1978]
ECR 629

- Must national courts wait until their

national constitutional court has
declared an incompatibility between
national and European law and set
aside the conflicting national law
before they may apply the supremacy
principle?
- And does it matter whether or not the
national law was in place before the
European measure with which it is in
conflict?
 Case 106/77 Simmenthal (no 2)

No!
‘... any national court must, in a
case within its jurisdiction, apply
Community law in its entirety
and protect rights which the
latter confers on individuals and
must accordingly set aside any
provision of national law which
may conflict with it, whether
prior or subsequent to the
Community rule...’
The Court’s perspective in summary
EU law is supreme no matter what.

How big of a role See the key case law identified in the extra lecture

did this play during notes on Canvas, from Costa (1964) to the present,
which continually asserts the supremacy of EU law.

the Brexit debate

Note the increasingly confident and bold language used by
and vote? the Court as the case law has evolved – more recently in C-
430/21, RS (re lack of review of compatibility with EU law of
domestic legislation in Romania)

This position is unequivocal - no room for

negotiation!
 Do the MS agree?: The battle for supremacy

Instead, Declaration 17, attached

to the EU Treaties, provides:
‘in accordance with well
The (failed) Constitutional Treaty settled case law of the Court
2004 would have acknowledged of Justice..., the Treaties and
the law of the Union have
primacy of EU law primacy over the law of the
Member States under the
conditions laid down by the
said case law’
Not binding, but politically
significant?

N.B. Also Art 19 TEU: ‘Member States

shall provide remedies sufficient to
ensure effective legal protection in the
fields covered by Union law’
 And there is more… Supremacy is just one key
element in building the EU’s sui generis legal order
• Limitation of Member State
sovereignty and supremacy of EU
law over conflicting national law

• Individual EU rights protected by

national courts (direct effect)

• Establishment of EU remedies

• Entrenchment of EU fundamental
rights protection
Summary and Conclusions
The Court of Justice has deliberately embarked
on creating a distinctive EU legal order

The battle for This legal order is supreme over conflicting

national law
supremacy
continues… The principle applies no matter what kind of national law is in
conflict with EU law and regardless of whether the national
law is about important rights such as fundamental rights

The principle applies to all 27 MSs. However, supremacy is not

something to be given away lightly. See next lecture for examples
of MS responses to the supremacy doctrine…
 CFEU Lecture 8
The EU’s Legal Order and Supremacy –
The Perspectives of the Member States

Professor Nuno Ferreira

 Recap on the CJEU’s perspective on supremacy

Internationale Handelsgesellschaft, Case 11/70 [1970]

Van Gend en Loos, Case 26/62 [1963] ECR 1 ECR 1125
‘the … Community constitutes a new legal order of ‘... the validity of a Community measure or its effect
international law for the benefit of which the states have within a Member State cannot be affected by allegations
limited their sovereign rights’ that it runs counter to either fundamental rights as
formulated by the constitution of that State or the
principles of a national constitutional structure.’
Costa v. ENEL, Case 6/64 [1964] ECR 585
‘special and original nature’ ‘permanent limitation of Case 106/77 Simmenthal (no 2) [1978] ECR 629
sovereign rights’ ‘... any national court must, in a case within its
jurisdiction, apply Community law in its entirety and
protect rights which the latter confers on individuals and
must accordingly set aside any provision of national law
which may conflict with it…’
 Crucial question
Related questions:

How do Member States receive/incorporate EU law into

their domestic legal systems?
Do the Member States
accept the position of the What is the hierarchy of legal norms in the Member
States?
CJEU on supremacy of
EU Law? Who determines ‘Kompetenz-Kompetenz’ (i.e. the
boundary between EU and national competences and
jurisdiction)?

What is the role of national supreme

courts/constitutional courts in determining supremacy?

How and why do Member States differ in their approaches

(depending on their histories, legal systems, etc.)?
 Parallel universes or collisions?
▪ Monist and Dualist national approaches to
international law,
i.e. different Member States address the status
and reception of EU law differently according to
domestic constitutional requirements

▪ Written constitutions adopt techniques to

accommodate EU law

▪ Flashpoints lead to litigation:

typically, fundamental rights protection
clashing with national constitutions or when
new Treaties are to be ratified (e.g.
Maastricht 1992, CT 2004 and Lisbon 2009)
Incorporating EU Law into National
Law – the example of the UK
The UK’s dualist approach to international law

The European Communities Act 1972, Section 2 (1)

‘All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising by
or under the [EC/EU] Treaties, and all such
remedies and procedures from time to time
provided for by or under the Treaties, as in
accordance with the Treaties are without further
enactment to be given legal effect or used in the
United Kingdom shall be recognised and available
in law, and be enforced, allowed or followed
accordingly; and the expression ‘enforceable
Community right’ and similar expressions shall be
read as referring to one to which this subsection
applies.’

i.e. UK courts had to enforce any directly effective

EU measures
 Challenges from national courts: early UK case law

Shields v. Coomes [1979] 1 All ER 456

Lord Denning – willing to accept the principle of supremacy of EC law because

Parliament clearly intended to abide by the principles of direct effect and
supremacy when it enacted the ECA. Courts had to resolve any ambiguity or
inconsistency in a manner to give primacy to EC law.

Macarthys v. Smith [1979] 3 All ER

325

Lord Denning – However, if

Parliament in future deliberately
adopts an Act with the express
intention of repudiating the Treaty,
then the courts are obliged to give
precedence to Parliament’s Act (UK
doctrine of implied repeal to apply).
 Supremacy accepted: the Factortame saga

▪ As a reaction to the effects of the

Common Fisheries Policy, the
Merchant Shipping Act 1988 was
enacted in UK.
▪ Nationality restrictions were applied
to boats entitled to fish.
▪ Spanish fishing crew challenged the
new legislation in the British courts
arguing that it violated their freedom
of establishment and discriminated on
grounds of nationality.
 Factortame in the CJEU
Factortame I, Case C-213/89 [1990] ECR I-2433
(CJ preliminary reference on question of interim relief)

This led to 4
different legal
Factortame II, Case C-221/89 [1991] ECR I-3905
(CJ prelim. ref. on substantive issues = nationality
discrimination and violation of freedom of establishment)

actions before Commission v. UK, Case C-246/89 [1991] ECR I-4585

the CJEU
(enforcement proceedings brought by Commission)
[Meanwhile: Factortame Ltd v. Secretary of State for Transport
[1991] 1 AC 603 HL response accepting the primacy of EC law]

Factortame III, Joined Cases C-46 and 48/93 [1996]

ECR I-1029 (CJ prelim. ref. on state liability and
damages issue)
The interim relief action (Factortame I)
English law: no interim relief possible against the
Crown (i.e. legislation should not be set aside
while awaiting judgment on the substantive issue)

Court of Justice: fishermen entitled to effective

protection of their [EU] rights of freedom of
establishment and non-discrimination.

House of Lords lifts the bar on interim relief –

Spanish fishermen protected.

In effect, a new English remedy brought

about from EU obligation to protect EU rights
 Factortame II and the enforcement action

▪ Court of Justice – MS in blatant violation of

fundamental principles of the Treaty: non-
discrimination on grounds of nationality and freedom
of establishment

▪ HoL disapplies Act (no power to repeal it)

i.e., Act remains English law but HoL to disregard it

▪ Thus, HoL applies supremacy doctrine:

‘it was the duty of a UK court, when delivering final judgment,
to override any rule of national law found to be in conflict with
any directly enforceable rule of Community law’ (Lord Bridge)
Factortame III –the damages action

Court of Justice – finds that the conditions

for application of the (relatively new) EU
principle of state liability are satisfied.
CJEU elaborates further on these
conditions and the need for a ‘sufficiently
serious’ breach (see later lectures)
i.e. CJEU provides an EU remedy

HoL accepts the CJEU ruling and finally

awards damages!
 Thoburn v. Sunderland County Council [2002] 1
CMLR 50 (Metric Martyrs)
High Court, judgment of Sir John Laws
The ECA was a ‘constitutional statute’ and should not therefore be
subject to implied repeal by a subsequent inconsistent statute:
‘In the event, which no doubt would never happen in the real world,
that a European measure was seen to be repugnant to a fundamental
or constitutional right guaranteed by the law of England, a question
would arise whether the general words of the ECA were sufficient to
incorporate the measure and give it overriding effect in domestic law.’
Prosecution of traders for
failure to comply with the UK
Weights and Measures Act
1985 and other statutory
instruments to the effect that
all weighed goods should be
sold (also) in metric units
 Challenges from national courts: the example of
France

▪ Monist approach to international law:

Art. 55 French Constitution 1958
Constitution is at the summit of the pyramid of legal norms
(i.e. above international/EU law)

▪ Duality of jurisdictions in France = duality of approaches:

Cour de cassation – Café Jacques Vabre [1976]
Conseil d’Etat – Semoules [1970]; Nicolo [1990]

▪ EU supremacy accepted because of the French

Constitution (not by virtue of inherent nature of EU Law)
 Challenges from national courts: the example of
Germany

▪ The German BVerfG (Constitutional Court): protecting

fundamental rights

▪ Solange I, [1974] 2 CMLR 540

[This German case follows on from the Internationale
Handelsgesellschaft litigation - see previous lecture]

▪ The German court may review the compatibility of

European Law with German Law so long as the
standard of fundamental rights protection is higher
in Germany than the EC

▪ Solange II, [1987] CMLR 225:

the above position is no longer necessary so long as
the EC protects fundamental rights as well as the
German Basic Law
 Brunner v The European Union Treaty [1994] 1
CMLR 57

▪ Again, tension between EU law and the

protection of fundamental rights in the
German Basic Law
▪ MS keeps the ‘Kompetenz-Kompetenz’

‘If, for example, European institutions…were … to

develop the Maastricht Treaty in a manner which
would no longer be covered by the Treaty in the
form… [in] which the German Act of Accession is
based, [then] any legal instrument arising from such
activity would not be binding within German territory.
[…] Accordingly, the … Constitutional Court must
examine the question of whether or not legal
instruments of European institutions… may be
considered to exceed those bounds.’
The Gauweiler (Lisbon) judgment
▪ BVerfG (German Const. Court) subjects Lisbon
Treaty to scathing criticism for lack of democracy

▪ Rejects idea of ‘absolute primacy’ of Union law,

which would be ‘constitutionally objectionable’
under the Basic Law

▪ ‘The Basic Law aims to integrate Germany into

the legal community of peaceful and free states,
but does not waive the sovereignty contained in
the last instance in the German constitution...’

▪ Moreover...
The BVerfG’s punchline...
▪ ‘it is no contradiction to the objective of openness
towards European law...if exceptionally, and under
special and narrow conditions, the [BVerfG] declares
EU law inapplicable in Germany.’

▪ Really? What might the Court of Justice make of this

claim?

▪ N.B. The BVerfG (as usual) ultimately declared the

Lisbon Treaty compatible with the German
Constitution!

▪ And in 2020, judgment in PSPP (on ECB bond-buying

programme) – See German Law Journal July 2020
And now Poland…
▪ Polish Constitutional Tribunal

▪ “Polish court rules EU laws incompatible with

its constitution” in The Guardian

▪ A legal Polexit?

▪ “Mass protests in Poland amid EU exit fears”

in BBC News
 Summary and Conclusions
National supreme courts occupy a key position in

The battle for supremacy accommodating supremacy doctrine within own

constitutional terms and arrangements
continues…

Conflict, or the repeated threat of conflict, does

Miller at the Supreme Court: occur: see, in particular, BVerfG
https://youtu.be/LhAvr-AgD7k

Supremacy resistance not confined to ‘old’ MS!

Will UK courts continue to apply See Polish courts in relation to CT 2004 and in 2021
EU law post-Brexit?
But judicial disobedience is comparatively rare: Court
of Justice and national supreme courts rationalise
their own positions to avoid conflict situations
 CFEU
Individuals and EU Law
– Direct and
Exclusionary Effect
Professor Nuno Ferreira
 Supremacy - Recap
The Court of Justice has deliberately
embarked on creating a distinctive EU
legal order, supreme over conflicting
national law

The CJEU’s and the National supreme courts occupy a key

position in accommodating supremacy
MSs’ perspectives doctrine within own constitutional terms
and arrangements
on the supremacy
of EU law… Conflict, or the repeated threat of conflict,
does occur: see the BVerfG in particular

But judicial disobedience is comparatively

rare: Court of Justice and national
supreme courts rationalise their own
positions to avoid conflict situations
 Is EU Law directly applicable?

▪ Does the EU Law norm need to be transposed to national legislation to

come into force?
▪ Do the national authorities need to implement the EU Law norm through an
internal measure?

✓ No → Then the norm is directly applicable

E.g.: Treaty provisions, Regulations and Decisions

✓ Yes → Then the norm is not directly applicable

E.g.: Directives
Does EU law have direct effect?

▪ Does the EU Law norm confer rights that can be invoked in national courts?

A) In case of directly applicable EU Law norms (treaty provisions,

regulations, and decisions):

✓ Yes, if the EU Law norm is unconditional and sufficiently clear and

precise to give rise to rights and duties to individuals

✓ No, if the EU Law norm is not unconditional or sufficiently clear and

precise to give rise to rights and duties to individuals
 Examples…
▪ Vertically
Article 30 TFEU (ex Article 25 TEC, ex 12 Article EEC)
Customs duties on imports and exports and charges having
equivalent effect shall be prohibited between Member States. This
prohibition shall also apply to customs duties of a fiscal nature.

▪ Horizontally
Article 157 TFEU (ex Article 141 TEC, ex 157 Article EEC)
1. Each Member State shall ensure that the principle of equal pay
for male and female workers for equal work or work of equal
value is applied.
→ Case 43/75 Defrenne v Sabena (No. 2)
 More examples…
Article 2 TEU

The Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including the
rights of persons belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail.
 Why?
▪ Court’s teleological (purposive) approach

▪ Effet utile

✓ Was the EU Law norm given the necessary effect to fulfil its
aims?

✓ Is the EU Law norm effective and operative?

 What about directives?
B) In case of non directly applicable EU Law norms (directives)?

Case 41/74 Van Duyn v. Home Office

 Cont.
‘IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED
TO A DIRECTIVE BY ARTICLE 189 TO EXCLUDE, IN PRINCIPLE, THE
POSSIBILITY THAT THE OBLIGATION WHICH IT IMPOSES MAY BE
INVOKED BY THOSE CONCERNED . IN PARTICULAR, WHERE THE
COMMUNITY AUTHORITIES HAVE, BY DIRECTIVES, IMPOSED ON
MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR
COURSE OF CONDUCT, THE USEFUL EFFECT OF SUCH AN ACT WOULD
BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM RELYING ON
IT BEFORE THE NATIONAL COURTS AND IF THE LATTER WERE
PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT
OF COMMUNITY LAW .’
 Cont. (Directives)
B. i) In vertical relationships (public authority – private party):

✓ Yes, if the EU Law norm is unconditional and sufficiently

clear and precise to give rise to rights and duties

✓ No, if the EU Law norm is not unconditional or sufficiently

clear and precise to give rise to rights and duties
Going too far?

▪ Nature of Directives
→ MS discretion

▪ Judicial activism
→ Court as a political body
Refining the Court’s position

▪ Time-limits for
implementation
(148/78 Ratti; 8/81 Becker)

▪ Estoppel argument
(148/78 Ratti)
 Horizontal direct effect of Directives?

B. ii) In horizontal relationships (private party – private party)

‘ACCORDING TO ARTICLE 189 OF THE EEC TREATY THE BINDING

NATURE OF A DIRECTIVE , WHICH CONSTITUTES THE BASIS FOR THE
POSSIBILITY OF RELYING ON THE DIRECTIVE BEFORE A NATIONAL
COURT , EXISTS ONLY IN RELATION TO ' EACH MEMBER STATE TO
WHICH IT IS ADDRESSED ' . IT FOLLOWS THAT A DIRECTIVE MAY NOT OF
ITSELF IMPOSE OBLIGATIONS ON AN INDIVIDUAL AND THAT A
PROVISION OF A DIRECTIVE MAY NOT BE RELIED UPON AS SUCH
AGAINST SUCH A PERSON .’ (152/84 Marshall)

✓ In principle: No
 Why? Fair?
1. What is a vertical relationship / what is “State”?

2. What about national legislation that does not comply

with non-transposed Directive?

3. What about individuals clearly in horizontal

relationships?
 1. Notion of “State”
‘Unconditional and sufficiently precise provisions of a directive may be
relied upon against organizations or bodies which are subject to the
authority or control of the State or have special powers beyond those
which result from the normal rules applicable in relations between
individuals . They may in any event be relied upon against a body,
whatever its legal form, which has been made responsible, pursuant to
a measure adopted by the State, for providing a public service under
the control of the State and has for that purpose special powers beyond
those which result from the normal rules applicable in relations between
individuals.’
C-188/89 Foster v British Gas
Confirmed by C-413/15, Farrell v Whitty and Others, 10/10/2017
2. Exclusionary / incidental horizontal effect

‘Articles 8 and 9 of Directive 83/189, as amended by Directive 88/182, are to

be interpreted as meaning that individuals may rely on them before the
national court which must decline to apply a national technical regulation
which has not been notified in accordance with the directive.’
(C-194/94 CIA Security International v Signalson and Securitel)

‘A national court is required, in civil proceedings between individuals

concerning contractual rights and obligations, to refuse to apply a national
technical regulation which was adopted during a period of postponement of
adoption prescribed in Article 9 of Council Directive 83/189/EEC laying down a
procedure for the provision of information in the field of technical standards
and regulations...’ (C-443/98 Unilever v Central Food)
 Cont.
Non(adequately)-transposed Directive is enforced by public authority
(vertical relationship), and that excludes national legislation (not
replaced by Directive) and has consequences in the legal position of a
third private party…

State authority

Private Party A --------------------------------------- Private Party B

 But…

▪ Isn’t this horizontal effect through the backdoor? → No reliance on content

of Directive (C-226/97 Lemmens)

▪ Legal uncertainty

And Court hasn’t stopped here….

▪ General principles and fundamental rights (later lecture)

 Summing up…
Is the EU Law norm
in question directly
applicable?

Treaties provisions, Directives

Regulations and
Decisions
No

Yes
Vertical relationships Horizontal relationships

Is the norm unconditional and sufficiently clear and

precise to give rise to rights and duties to individuals? Is the norm unconditional and No, but…
sufficiently clear and precise to give rise
to rights and duties to individuals?
1. Broad
Yes No notion of
Yes No state
The norm has The norm doesn’t
The norm has The norm doesn’t 2. Exclusionary
direct effect have direct effect
direct effect have direct effect / incidental
effect
Vertically Horizontally E.g.: Art. 2
E.g.: Art. 30 E.g.: Art. TEU Time-limits Estoppel 3. General
TFEU 157 TFEU argument principles…
 Lecture 11
The principle
of indirect effect I
 Focus

• The principle of direct effect and the limitations of Directives

• Overcoming the lack of horizontal direct effect of Directives

☞ The principle of indirect effect ( = consistent interpretation

OR harmonious interpretation)

• Case law of the CJEU

 Recapping…
Is the EU Law
norm in question
directly
applicable?

Treaties Directives
provisions, Art.
Regulations and 288
Decisions TFEU No

Yes
Vertical relationships Horizontal
relationships
Is the norm unconditional and sufficiently clear
and precise to give rise to rights and duties to Is the norm unconditional and No, but…
individuals? sufficiently clear and precise to
give rise to rights and duties to
1.
Yes No individuals?
Broad
Yes No notion
of state
The norm has The norm doesn’t
direct effect have direct effect The norm has The norm doesn’t
2.
direct effect have direct effect
Exclusionary
/ incidental
Vertically Horizontally E.g.: Art. effect
E.g.: Art. E.g.: Art. 2 TEU Time- Estoppel
30 TFEU 157 TFEU limits argument
 Vertical but not horizontal direct effect

“With regard to the argument

that a directive may not be
relied upon against an
individual, it must be emphasized
that according to Article 189 of the
EEC Treaty the binding nature of
a directive, which constitutes the
▪ Article 288(3) TEU basis for the possibility of relying
on the directive before a national
court, exists only in relation to
▪ ‘A directive shall be binding, 'each Member State to which it
as to the result to be is addressed'. It follows that a
achieved, upon each Member
State to which it is directive may not of itself
addressed,[…].’ impose obligations on an
individual and that a provision of
a directive may not be relied
▪ Para. 48 (Marshall, Case upon as such against such a
152/84) > textual fidelity
person.”
Vertical but not horizontal direct effect – conts.

The CJEU rationales:

❖ A rule of law argument

❖ Erosion of the
regulation/directive
distinction argument

❖ Legal certainty argument

 Case 14/83, von Colson

• Principle of indirect effect

(also known as Von
Colson Principle)

• National courts are

required to interpret their
national law in the light of
“The Member States’ obligation arising
the wording and the
from a Directive to achieve the result
purpose of the Directive envisaged by the Directive and their
duty under Article [4(3) TEU] to take all
appropriate measures, whether
• Para. 26 of the judgment general or particular, to ensure the
fulfilment of that obligation, is
binding on all the authorities of
Member States including, for matters
within their jurisdiction, the courts.”
What does indirect effect mean?

Use of EU Law by
Duty of consistent
national courts as an
interpretation > a duty to
interpretative tool when
give effect to a directive
applying national law that
by indirect means.
contradicts directives.
Meaning &
application Where a national
legislator has failed to
implement a directive,
National courts are here
under an obligation to
‘implement’ the directive
the task will be judicially through a
transferred to the ‘European’ interpretation
national judiciary. of national law.

See also Case 79/83,

Dorit Harz v Deutsche
Tradax GmbH
 Basis?...
Art. 4(3) TEU [ex- Art. 10 EC]

‘Pursuant to the principle of

sincere cooperation, the Union
and the Member States shall,
in full mutual respect, assist
each other in carrying out
tasks which flow from the Principle of consistent
Treaties.’ interpretation/harmonious
interpretation/indirect effect
 Case C-106/89, Marleasing
Para. 8: “…in applying national law,
whether the provisions in question
EU Directive
were adopted before or after the
directive, the national court called
upon to interpret it is required to do
so, as far as possible, in the light
of the wording and the purpose of
Pre-directive Post-directive
the directive in order to achieve the
national law national law
result pursued by it and thereby
comply with the third paragraph of
Article 189 of the Treaty [now Article
288 TFEU].”
 Joined cases C-397/01 to C-403/01, Pfeiffer

Para. 115: “ Although the principle

that national law must be
interpreted in conformity with
Community law concerns chiefly
domestic provisions enacted in
order to implement the directive in
question, it does not entail an
interpretation merely of those
provisions but requires the
national court to consider
national law as a whole in order
to assess to what extent it may be
applied so as not to produce a
result contrary to that sought by
the directive.”
 Advantages…
Complements the principle of direct The House stays intact…..
effect
▾
Individuals get to exercise their
In harmony with exclusionary /
Union rights also under EU
incidental effects of directives
Directives
▾
Enhances the principle of
supremacy of EU law
▾
Enhances the legitimacy &
effectiveness of EU law
 Next (Lecture 12)

❖ Further judicial developments

❖ Limitations to the application of the principle of
indirect effect
 Lecture 12
The principle of indirect
effect II
 Focus

▪ Further extension of its application

▪ Limitations to the application of the principle

of indirect effect

▪ Case law of the CJEU

 How far?
Two sets of limits:

1. Temporally > the duty of consistent interpretation (i.e. pple of indirect

effect) only starts applying after the implementation period of the
directive has passed
2. Normatively > the application of the pple of indirect effect finds limits
in the express wording of a provision(s)

IMP: Where one of these limits applies national law cannot be used as
an instrument for the indirect effects of EU law
Case 80/86, Kolpinghuis Nijmegen BV

Para. 13: “ [Indirect effect]

Obligation is limited by the
general principles of law
which form part of
Community law and, in
particular, the principles of
legal certainty and non-
retroactivity.”
No. 1: Pples of
legal certainty &
non-retroactvity
 Case C-168/95, Arcaro

This has been taken to imply

that the indirect effect of
directives cannot aggravate
the criminal liability of a
private party, as criminal law
is subject to particularly strict
rules of interpretation.
→ See also Joined cases C-387/02,
C-391/02 and C-403/02, Criminal
proceedings against Silvio
Berlusconi, and others
No. 2: non-
criminal liability
 Case C-212/04 Adeneler

Para. 110: “It is true that the

obligation on a national court to
refer to the content of a directive
when interpreting and applying the
relevant rules of domestic law is
limited by general principles of
law, particularly those of legal
certainty and non-retroactivity, and
that obligation cannot serve as the
basis for an interpretation of
national law contra legem.”

(See also Case C-105/03, Pupino)

No. 3: contra legem

Joined cases C-240/98 to C-244/98,
Océano Grupo Editorial

Para. 32:
”The requirement for an
interpretation in conformity
with the Directive requires
the national court, in
particular, to favour the
interpretation that would
allow it to decline of its own
motion the jurisdiction
conferred on it by virtue of an
unfair term.”
 Concluding remarks
❑ Difficult application of the
doctrine of indirect effect

❑ Existence of a number of
uncertainties

❑ Unclear whether the outcome

will be the imposition of legal
obligations on a private
defendant

❑ Difficult to predict the outcome

of litigation
Next (Lecture 13)

• The Principle of State Liability

• An “EU” judicial remedy for

breaches of EU law
 Lecture 13
The Principle of State liability
 Focus
• Examine how the principle of state liability was developed by the Court of
Justice

• Rationale/reasoning of the Court of Justice

• A tool/process intended to overcome and avoid the problems associated

with the principle of direct effect (initially and primarily in relation to
Directives)

• Case law of the Court of Justice

 Key points
By the end of this lecture, you should be able to:

■ explain the reasoning of the Court of Justice for establishing the principle of
state liability in damages first established in Francovich (Joined Cases C-6 &
9/90)

■ explain the conditions for liability set out in Francovich and Brasserie du
Pêcheur and Factortame III; Joined Cases C-46 & 48/93) and identify the
differences between them

■ identify the different types of breach of EU law so far held by the Court of
Justice to give rise to state liability and the conditions for liability applicable to each
Case C-334/92, Teodoro Wagner Miret
v Fondo de Garantía Salarial

In the event that, even when

interpreted in the light of that
directive, national law does not
enable higher management staff to
obtain the benefit of the guarantees
for which it provides, such staff are
entitled to request the state concerned
to make good the loss and damage
sustained as a result of the failure to
(RE indirect effect) implement the directive in their
respect.
 Joined cases C-6/90 and C-9/90, Andrea Francovich and
Danila Bonifaci and others v Italian Republic

• Francovich (& others) was owed

wages by his employer who had
become insolvent
• Italy provided no remedy in these
circumstances
• Directive 80/987/EEC required each
Member State to set up a scheme
under which employees of insolvent
companies would receive at least
some of their outstanding wages
• The applicants sought to rely on
this Directive to claim
compensation from the Italian state
• The Italian government had failed to
transpose the rights in the
Directive into national law as it was
legally obliged to do
 The CJEU

• The Court of Justice held that

the relevant provisions were
insufficiently clear to be directly
effective [paras. 12 and 26]

• The Court did not consider the

possibility of indirect effect in
Francovich: why?

• Answer: The Directive at issue

in Francovich could not have
indirect effect on the facts of
this particular case because
there was no relevant Italian
legislation in accordance with
which it could be construed
 Why State Liability?
Para. 33: The full effectiveness of Para. 36: A further basis for
Community rules would be impaired and the obligation of Member
the protection of the rights which they States to make good such
grant would be weakened if individuals loss and damage is to be
were unable to obtain reparation when found in Article 5 of the
Treaty (now Article 4(3)
their rights are infringed by a breach of
TEU), under which they are
Community law for which a Member State required to take all appropriate
can be held responsible. measures, whether general or
particular, to ensure the
implementation of Community
Para. 35: It follows that the principle law, and consequently to
whereby a state must be liable for loss nullify the unlawful
and damage caused to individuals by consequences of a breach of
breaches of Community law for which the Community law.
State can be held responsible is inherent
in the system of the Treaty.
 Legal basis for state liability
Para. 37: It follows from all the
foregoing that it is a principle of
Community law that the Member
States are obliged to make good loss
and damage caused to individuals by
breaches of Community law for which
they can be held responsible.

➢ Art. 4(3) TEU (ex- 10 TEC, 5 TEC)

 Conditions for state liability [Para. 40]

Premise: Although the liability of the Member State to make good loss and
damage caused to individuals by breaches of Community law for which it
can be held responsible is required by Community law, the conditions under
which there is a right to reparation depend on the nature of the breach of
Community law giving rise to the loss and damage which have been
caused. [Para. 38]

1) ‘the result prescribed by the directive should entail the grant of rights to
individuals’ → conferral of rights on individuals

2) ‘it should be possible to identify the content of those rights on the basis
of the provisions of the directive’ → identifiable content of rights

3) ‘there should be a causal link between the breach of the State's

obligation and the loss and damage suffered by the injured parties’ →
causal link between loss and state’s failure
 Reparation is made on the basis
of national rules

Para 42: In the absence of any

Community legislation, it is in
accordance with the rules of
To note: Even though it is a national law on liability that the
‘Community’ remedy it is to be State must make reparation for the
provided on the basis of national consequences of the loss and
damage caused. Nevertheless, the
rules relevant substantive and procedural
conditions laid down by the national
law of the Member States must not
be less favourable than those
relating to similar domestic claims
and must not be so framed as to
make it virtually impossible or
excessively difficult to obtain
reparation.
 State liability enforcement
▪ Principle of national
procedural autonomy
(but Court may interfere re
causal link if MS frustrates
effective compensation, see C-
140/97 Rechberger v Austria)

▪ Principle of
equivalence

▪ Principle of
effectiveness
 Subsequent developments…
Joined cases…

C-46/93, Brasserie du Pêcheur SA v

Bundesrepublik Deutschland

C-48/93, The Queen v Secretary of State

for Transport, ex parte: Factortame Ltd
and others [Factortame III]
 Brasserie du Pêcheur / Factortame III

Facts

Brasserie du Pêcheur a French brewery, had been prevented from exporting its beer to
Germany because of German “beer purity“ legislation imposing strict content and
labelling requirements

Factortame III concerned the Merchant Shipping Act 1988, which prevented the
applicants, Spanish fishermen, from fishing in UK territorial waters

The Court of Justice held that the legislation breached Treaty provisions on the
free movement of goods (“beer purity” laws) and the right of establishment (the
Merchant Shipping Act 1988)
Brasserie du Pêcheur / Factortame III

Paras. 18 and 19: The application of the principle that Member States are obliged
to make good loss and damage caused to individuals by breaches of Community
law for which they can be held responsible cannot be discarded where the breach
relates to a provision of directly applicable Community law.
Para. 20: The right of individuals to rely on directly effective provisions before
national courts is only a minimum guarantee and is not sufficient in itself to
ensure the full and complete implementation of Community law. That right, whose
purpose is to ensure that provisions of Community law prevail over national
provisions, cannot, in every case, secure for individuals the benefit of the rights
conferred on them by Community law and, in particular, avoid their sustaining
damage as a result of a breach of Community law attributable to a Member
State.

Liability valid RE any source of EU law!

 Brasserie du Pêcheur / Factortame III (cont.)

Para. 47 > The conditions under which Member States incur liability for breach
of EU law cannot differ from those governing the liability of the EU

Article 340 TFEU

Brasserie du Pêcheur / Factortame III
(cont.)

Paras. 75 to 80… national court cannot make reparation of loss or damage

conditional upon fault (intentional or negligent) on the part of the organ of the
State responsible for the breach, going beyond that of a sufficiently serious breach
of Community law.
Para. 57: The decisive test for finding that a breach of Community law is
sufficiently serious is whether the Member State concerned manifestly and
gravely disregarded the limits on its discretion.

New condition for state liability: ‘sufficiently serious breach’

i.e., state authority has manifestly and gravely exceeded the limits of its
discretion
Brasserie du Pêcheur / Factortame III
(cont.)

→ Factors to determine seriousness of breach:

▪ Clarity and precision of law breached (serious per se)
▪ Measure of discretion left by that rule to the national or EU authorities
▪ Intentional or involuntary character of breach
▪ Excusable nature of error of law
▪ Contribution by EU to breach
▪ Existence of national measures or practices
contrary to EU law

‘Serious’ as ‘clear’ breach, not ‘grave’

Case 392/93 British Telecom:

is it sufficiently serious?
 Brasserie du Pêcheur / Factortame III
(cont.)
→ Which institutions?
▪ Legislature (Brasserie du Pêcheur / Factortame III)
▪ Government/Administration (C-5/94, ex parte Hedley
Lomas)
▪ Legally independent bodies (C-424/97, Haim v
Kassenzahnärztliche)
▪ Courts (C-224/01, Gerhard Köbler v Republic of Austria;
Case C-173/03 Traghetti) → if there is a manifest
infringement and it is a court of last instance
▪ Individual officials (C-470/03 AGM-COS.MET)
To be noted: If breach concerns a directly applicable EU
provision, then liability is of the administration, not
legislature (C-319/96, Brinkmann Tabakfabriken GmbH v
Skatteministeriet)
 To conclude...
▪ Conditions: 1) Conferral of clearly identifiable rights on
individuals, 2) causal link between loss and state’s failure,
3) sufficiently serious breach
▪ No need for fault
▪ Liability can be determined by domestic authority
▪ Damages generally correspond to loss or damage proved,
including loss of profits
▪ Clearly a remedy, not just a right
▪ But overall restrictive approach of the Court towards state
liability
Next (Lecture 14)

Reflective Workshop No. 3

 Lecture 15

Enforcement Actions against

Member States

Infringement Proceedings
under Articles 258-260 TFEU
 Purpose of the procedure
▪ Enforcement actions ≠ P.ple of State
Liability

▪ Enforce compliance with EU law through

effective sanctions against a M/S in breach
of its obligations deriving from EU law

▪ Centralized EU enforcement procedure

to be used as a last-resort mechanism
after other problem-solving networks and
strategies to encourage compliance have
failed

▪ The existence of this enforcement

mechanism confers a unique status on
EU law in the international legal order
 Main actors

European Commission key role as ‘Guardian of the Treaties’ in

monitoring compliance and in bringing infringement proceedings
(Article 17(1) TEU + Article 258 TFEU = Commission v M/S)

Member States (Article 4(3) TEU + Article 259 TFEU = MS v MS)

CJEU (Article 19(1) & (3) TEU+ Article 260 TFEU) ultimate authority
on whether there has been a violation, what type of penalty, if any, and
whether an infringement has been brought to an end
What does ‘failure to fulfil an obligation’
under article 258 TFEU mean?

CJEU has included obligations to be found in:

▪ Treaties, Protocols, Annexes and all other primary sources

▪ EU secondary legislation: regulations, directives and decisions

▪ Other bindings acts adopted by EU Institutions

▪ International agreements by virtue of Article 216(2) TFEU

How does the infringement procedure
start?
▪ Complaints Handling System (CHAP)

▪ EU Pilot, FIN-Net and SOLVIT networks > schemes designed to

resolve compliance problems without having to resort to
infringement proceedings

▪ Annual Report on Monitoring the Application of Union Law

▪ Complaint from individuals (through Europe Direct, ECAS,

European Business Centres) or other Institutions (e.g. EU
Ombudsman or European Parliament) to the European
Commission → a complaint does not give rise to a ‘right’ to an
infringement proceeding

▪ Own-initiative cases (where the Commission has itself identified

infringements, e.g. through the media)

▪ Non-communication cases (e.g. where a M/S has failed to notify

the Commission of its measures to transpose a Directive)
 Main stages of infringement proceedings

▪ Administrative phase (or pre-litigation procedure,

see Articles 258(1) TFEU and 259(2)-(3) TFEU) →
© DG Environment
Two-stage process: informal & formal phase
- discretion of the Commission
- formal notice of non-compliance
- M/S submission of observations
- Reasoned Opinion

▪ Judicial phase (see Articles 258(2) TFEU and

259(1) & (4) TFEU; 260 TFEU)
- M/S fails to comply with the reasoned opinion
- Application to the CJEU made by the Commission
- CJEU declares breach of Treaty
obligations/sanctions
 Types of breach by Member States
of EU law

▪ Breach of sincere cooperation under Article 4(3) TEU (Case 96/81

Commission v Netherlands)

▪ Inadequate implementation of EU Law (Case 167/73 Commission v

France)

▪ Breaches related to EU external relations (Cases C-466-476/98

Commission v UK et al [Open Skies])

▪ Systemic and persistent breaches combined with inadequate

implementation and compliance in practice (Case C-494/01
Commission v Ireland)
 State Defences
❑ What are the reasons or
justifications given by a default
Member State?

❑ Procedural and substantive

❑ Substantive defences are more

likely to be rejected by the CJEU

❑ The CJEU has rarely accepted

state defences (even when it
would be allowed under PIL)
Examples of defences based on procedural
requirements

▪ If the time-limit fixed by the Commission either in the formal notice

letter or in the reasoned opinion is not reasonable (Case 293/85
Commission v Belgium [Re University Fees])

▪ If the Commission fails to identify the subject matter of the dispute

with sufficient precision in its application (Case C-141/10
Commission v the Netherlands)
Examples of defences based on substantive
grounds

IMP: Court agrees in principle that a plea of illegality might be

permitted as a defence under Article 258 TFEU

Unlawful obligation

1. AG Mancini in Case 204/86 Commission v Greece (decision is

affected by evident and serious vices which render it ‘non-existent’);
2. Cases 6 and 11/69 Commission v France; Case 70/72 Commission v
Germany [1973] ECR 813 (illegality of a decision infringing a p.ple of
a constitutional nature)
 Unsuccessful procedural &
substantive defences

▪ Force majeure (Case 101/84 Commission v Italy; Case 77/69 Commission v

Belgium)

▪ Reciprocity (Case 232/78 Commission v France; Case C-359/93 Commission v the

Netherlands)

▪ Peculiarity of national legal system (Case 77/69 Commission v Belgium)

▪ Technical, institutional & political difficulties (Case 8/70 Commission v Italy;

Case 128/78 Commission v UK (Tachographs))

▪ De minimis rule (Case C-105/91 Commission v Greece)

 Judicial phase
▪ Article 260(1) TFEU

▪ CJEU judgment → Declaration on failure to

fulfil an obligation under the Treaty

▪ M/S required to take the necessary measures

to comply with judgment of the CJEU

▪ Financial sanctions under Article 260(2) TFEU

→ Commission may bring case before CJEU
for 2nd time to secure compliance with an
Article 258 TFEU ruling

▪ M/S will be given the opportunity to submit its

observations

▪ CJEU will specify amount of lump sum or

penalty payment to be paid by M/S for failure to
comply with 1st judgment (Article 260(2)-(3)
TFEU)
Calculation of penalties under Art 260 TFEU

▪ Commission guidelines and memorandum on methods of

calculation

▪ The amount should reflect the aim of the sanction, i.e. to secure
effective compliance as quickly as possible

▪ The most appropriate means of achieving this aim is a periodic

penalty payment from the date of service of the CJEU judgment

▪ Penalties should act as a deterrent

▪ CJEU while agreeing with these guidelines is not bound by them

 Pecuniary sanctions available
under Article 260(2) and (3) TFEU

▪ Case C-387/97 Commission v Greece (waste):

first ruling on a pecuniary penalty > periodic
penalty payment

▪ Case C-494/01 Commission v Ireland (waste):

sets a new development for imposing a
pecuniary sanction as the CJEU found a
general and persistent, i.e. systemic failure to
implement a directive

▪ Case C-278/01 Commission v Spain (bathing

water): an annual penalty to be assessed on
an on-going basis

▪ Case C-304/02 Commission v France: , where

it ordered the M/S to pay a lump sum penalty
payment for a long-standing violation

▪ Case C-177/04 Commission v France where it

concluded that it should not impose a lump
sum because of partial compliance with the
judgment
Main changes introduced by the Treaty of
Lisbon 2009

1. When the Commission brings proceedings for the imposition of

pecuniary sanctions (Article 260(2) TFEU) it is no longer obliged
to issue a reasoned opinion before bringing a M/S before the
CJEU for non-compliance with an Article 258 TFEU ruling
2. The Commission may specify the amount of the lump sum or
penalty payment against a M/S where the state has failed to
notify measures transposing an EU Directive (Article 260(3) TFEU)
3. The CJEU in imposing a penalty payment for non-transposition
may not exceed the amount specified by the Commission (Article
260(3) subpara. 2 TFEU)
 How effectiveness are infringement
proceedings?

▪ No upper limit to the amount of penalty which can be imposed by

the CJEU is specified
▪ The CJEU is not bound to follow the Commission’s proposal other than
in not exceeding the penalty proposed in cases of non-transposition
under para. 3 of Article 260 TFEU
▪ No formal mechanism for collection of the payment should a M/S
refuse to comply (although Commission may withhold payments which
may be due to the M/S under other EU funds)
▪ Article 260 TFEU provides no possibility for the Commission to seek
an injunction from the CJEU
 Next (Lecture 16)

Preliminary rulings under Article 267

TFEU & Judicial Dialogue between the
CJEU and national courts
 Lecture 16

The Preliminary Ruling

Procedure under Article 267
TFEU
 Key points
By the end of this lecture you should be able to understand and
explain:

• The overall operation of the preliminary ruling process

• The purpose of the preliminary ruling procedure
• The role of national courts
• The nature of the judicial dialogue between the CJEU & national
courts
Court of Justice of the EU (CJEU)

 Art 19 TEU

 Judge from each MS

 Advocates General who give (non-

binding) Opinions

 Sit in Chambers

 Lower division = General Court (ex Court

First Instance)
 Judgments of the CJEU

 The judgment is that of the entire Court, i.e.

no dissenting opinions

 Opinion of the Advocate General is only

advisory in nature
 Functions of the CJEU –
Art. 19 TEU

➢ Art. 19(1) TEU

The Court of Justice ‘shall ensure that in the interpretation and application of the
Treaties the law is observed.’

➢ Art. 19(3) TEU

The Court of Justice of the EU shall, in accordance with the Treaties:
(a) Rule on actions brought by a Member State, an institution or a natural or legal
person;
(b) Give preliminary rulings, at the request of courts or tribunals of the Member
States, on the interpretation of Union law or the validity of acts adopted by
the institutions;
(c) Rule in other cases provided for in the Treaties.
 Summary of the jurisdictions of
the Court of Justice

Art 267 Art 263 Arts 258/259

TFEU TFEU TFEU
• Preliminary • Judicial • Infringement
rulings review of EU actions
• Referred by acts • Brought by
national • Locus standi Commission
courts in restrictions or (rarely) MS
pending cases
What is the preliminary ruling procedure?

➢ A process enabling national courts

to refer questions of EU Law to IMP: Although the Treaty of Nice
the CJEU in order to help them (and also the Treaty of Lisbon)
resolve disputes in the national provided for the transfer of some
courts Article 267 TFEU jurisdiction over
preliminary rulings to the General
• IMP: the process starts and ends in Court (see Article 256(3) TFEU) in
the national courts specific areas laid down by the
• IMP: The CJEU does not decide the Statute of the Court of Justice, this
merits of the domestic case has yet to be implemented.

• An innovative and creative aspect of

the EU judicial system
 The Jurisdiction of the CJEU – EU law

Article 267(1) TFEU > ‘The Court of Justice of the EU

shall have jurisdiction to give preliminary rulings
concerning:

(a) The interpretation of the Treaties;

(b) The validity and interpretation of acts of the

institutions, bodies, offices or agencies of the Union’
 The Jurisdiction of the CJEU – National
Courts

Article 267(2-4) TFEU – covers both lower and higher courts

 ‘Where such a question is raised before any court or tribunal of a

Member State, that court or tribunal may, if it considers that a
decision on the question is necessary to enable it to give
judgment, request the Court to give a ruling thereon.

 Where any such question is raised in a case pending before a

court or tribunal of a Member State against whose decisions there
is no judicial remedy under national law, that court or tribunal shall
bring the matter before the Court.

 If such a question is raised in a case pending before a court or

tribunal of a Member State with regard to a person in custody, the
Court of Justice of the EU shall act with the minimum of delay.’
 Overview
of the PRP
 Types of PR procedures

CoJ Rules of Procedure (OJ 2012 L265/1)

❖ Standard procedure
❖ Special procedures
➢ Decision by reasoned order
➢ Expedited procedure
➢ Urgent procedure (PPU)
 The purpose of the preliminary ruling
procedure

• IMP: It is not an appeal process and the individual

litigant is not involved in the decision to refer.

• Secures uniformity of interpretation across the Article 267 TFEU =

EU (and thus effectiveness of EU law)
‘Jewel in the Crown’
of the Court’s
• Allows (indirect) access by individuals to Court of
Justice jurisdiction

• Provides a key route for developing new EU Article 267 TFEU

principles and multilateral effects has been of seminal
Van Gend En Loos, Francovich, Von Colson,
Mangold, Kücükdeveci etc importance to the
development of EU
• Low levels of actual judicial disobedience law
 The effects of a preliminary ruling

▪ Initially relationship between national courts

and the Court was horizontal and bilateral

▪ It has become more vertical and multilateral

effect – Decisions valid for every court in any
EU MS

▪ C- 28-30/62, Da Costa en Schaake NV, Jacob

Meijer NV, Hoechst-Holland NV v Netherlands
Inland Revenue Administration
 The binding effect of preliminary rulings

International Chemical Corporation v Amministrazione Finanze (Case

66/80) established that all national courts and tribunals are bound by rulings on
validity

In Kühne & Heitz v Productschap voor Pluimvee en Eieren (Case C-453/00)

the CJEU confirmed that its rulings on interpretation bind all national courts and
administrative authorities across the EU.

IMP: The binding effect of a preliminary ruling does not preclude national courts
from seeking further guidance from the Court of Justice on interpretation or validity.

IMP: The Court retains the right to depart from its previous rulings and may do so,
for instance when a different conclusion is warranted by different facts.
 What type of questions can be raised to
the CJEU?

- Any matter that relates to the EU legal order

- The interpretation (not application)

of the Treaties

- Or validity and interpretation of acts of the

institutions (ie secondary legislation) see Case 314/85 Firma
Foto-Frost [1987] ECR 4199 (national courts have no
authority to declare EU legislation invalid)
 To which bodies does
Article 267 TFEU apply?

 ‘any Court or tribunal’

◦ EU concept, not a national one

Case C-246/80 Broekmeulen v. Huisarts Registratie

Commissie [1981] ECR 2311

Case C-54/96, Dorsch Consult Ingenieurgesellschaft mbH v

Bundesbaugesellschaft Berlin mbH

➢ ‘of a Member State’

 Court or Tribunal

Factors to be taken into account when determining whether a body is a

‘court or tribunal’ include (see Case C-54/96 Dorsch Consult
Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH ):

■ whether the body is established by law;

■ whether it is permanent;
■ whether its jurisdiction is mandatory;
■ whether its procedure is inter partes
■ whether it applies rules of law; and
■ whether it is independent.
 When to refer? Discretionary references

‘any court or tribunal…may…’

- Rejections by Court of Justice remain exceptional

o Hypothetical questions
o No real dispute between the parties
 Foglia v Novello (No. 1) (Case 104/79) & (No. 2) (Case
244/80)
o Questions raised not relevant to dispute
o Questions not articulated clearly
o Facts are insufficiently clear
 When to refer? - Mandatory references

◦ A reference shall be made from a court or tribunal against whose

decisions there is no further remedy

◦ ‘Concrete theory’ and ‘abstract theory’

◦ Exceptions to mandatory references

- The doctrine of acte clair

ie national courts need not refer where the CJEU has already given a
ruling on the point of law in question or where the EU provision being
contested is regarded by the court as clear and free from doubt.

◦ See Case 283/81 CILFIT [1982] ECR 3415

◦ But note the strict conditions. Can they ever be satisfied?
 System of precedent?

▪ Da Costa and CILFIT indicate the development of a system

of precedent

▪ IMP: The binding effect of a preliminary ruling does not

preclude national courts from seeking further guidance from
the CJEU

▪ IMP: The Court retains the right to depart from its

previous rulings and may do so, for instance, when a different
conclusion is warranted by different facts
Has the CJEU revisited its CIlFIT
criteria?
Case C-561/19 Consorzio Italian Management and Catania Multiservizi (judgment of the
Grand Chamber, 6 October 2021)

Para 50: National courts or tribunals of

Paras. 33 & 66: A court or tribunal of last instance must take upon
last instance cannot be relieved of themselves, independently and with all
its obligation to make a reference the requisite attention, the responsibility
for a preliminary ruling merely
because it has already made a for determining whether the case before
reference to the Court for a them involves one of the situations in
preliminary ruling in the same national which they may refrain from submitting to
proceedings. the Court a question concerning the
interpretation of EU law which has been
Para. 40: Before concluding that there
is no reasonable doubt as to the raised before them […] the statement of
correct interpretation of EU law, the reasons for its decision must show that
national court or tribunal of last the matter involves one of those three
instance must be convinced that the situations.
matter would be equally obvious to the Para 58: By contrast, if the question
other courts or tribunals of last concerning the interpretation of EU law
instance of the Member States and to does not involve any of those situations,
the Court of Justice. the court or tribunal of last instance must
bring the matter before the Court.
 The nature of the judicial dialogue

 How tight a rein does the Court of Justice keep on

national courts?
◦ Can the exceptions allowed in CILFIT (acte clair) be
reconciled with duties of final courts under Kőbler v
Austria (Case C-224/01) or Traghetti del Mediterraneo SpA v
Italy (Case C-173/03) (state liability)?

 The Court’s ‘open door’ approach

◦ Will not normally second-guess why national court thinks a
ruling is necessary
◦ If national court thinks necessary (see above)
= A vertical but nevertheless empowering dialogue for the
national courts
 Summary

 Functions/usage of Art 267 TFEU has changed over time

 Vital constitutional link between national courts and Court of

Justice (bridge between national/EU legal systems)

 Forum for airing/resolving conflicts?

 Practice under Article 267 TFEU: Horizontal co-operation or

hierarchical diktat?
Next (Lecture 17)

Fundamental Rights in the EU

Fundamental rights in the EU
 Focus - General

• Pre-EU Charter > Fundamental rights as ‘general principles of EU law’ >

Unwritten Bill of Rights
• EU Charter > Bill of Rights?
• ECHR > “External” Bill of Rights?
• Key role of the Court of Justice

How were human rights included in

the
EU legal system?
 Focus – EU Charter
▪ EU Charter – Overview

▪ Phase 1: non-legally binding

▪ Phase 2: legally binding

▪ ‘Horizontal clauses’

▪ Judicial references
 Key points of analysis

• The level and standard of protection of human rights in the EU vis-à-vis

the sui generis nature of the EU

• The influence of and relationship with the ECHR (i.e. External Bill of
Rights)

• The intersection between EU law and European human rights law

• Is there a general EU human rights policy?

 Two “European” human rights regimes -
Institutional framework
Committee of

EU The
Commission
CoE Ministers

Parliamentary
Assembly

The Council
of Ministers

Congress of
Local and
Regional
Authorities

The
Parliament

Secretary
General

The Court of
Justice

CFR Commissioner
for Human

ECHR
Rights

The
European
Council European
Court of
Human Rights
 Two “European” human rights regimes

• Council of Europe [≠ EU] > founded in 1949; a regional

intergovernmental HR organisation; 47 member states (27 of which are
members of the EU)
• All Council of Europe member states have signed up to the ECHR
• The ECtHR (based in Strasbourg) oversees the implementation of the
Convention in the member states [≠ CJEU; “EU Court” based in
Luxembourg]
• Individuals can bring complaints of HR violations to the Strasbourg
Court once all possibilities of appeal have been exhausted in the member
state concerned
• http://www.coe.int
 ECHR
▪ International Treaty
▪ Signed in 1950, entered into force
in 1953
▪ Sets out basic civil and political
rights
▪ First major convention created
under Council of Europe
▪ Aims at securing the universal and
effective recognition & observance
of the rights enshrined in the 1948
UDHR
 The EU’s first approach
to human rights

• The Treaty of the European Economic Community (EEC) omitted any

reference to human rights

• The EEC was focused on the creation of a Common Market

• Human rights concerns were (and remain) controversial aspects of the

European integration project
 Sources of EU human rights law:
SEA 1987 & ToM 1992

• Single European Act (SEA) 1987 – Preamble “ to work together to

promote democracy on the basis of the fundamental rights recognised in
the constitutions and laws of the Member States, in the Convention for the
Protection of Human Rights and Fundamental Freedoms and the European
Social Charter, notably freedom, equality and social justice”

• Article F(2) TEU (the ‘Maastricht Treaty’) – required the EU to respect

FHR as general principles of EC law, as guaranteed by the ECHR and as
they result from the constitutional traditions common to the Member States

• BUT under Article L TEU it was not justiciable [to become Article 6 TEU with ToA]
 Sources of EU human rights law:
Article 6 TEU

1. The Union recognises the rights, freedoms and principles

set out in the Charter of Fundamental Rights of the
The Union is founded on […] European Union of 7 December 2000, as adapted at
respect for human rights and Strasbourg, on 12 December 2007, which shall have the
same legal value as the Treaties.
fundamental freedoms […] which are
The provisions of the Charter shall not extend in any way the
common to the Member States. competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be

interpreted in accordance with the general provisions in Title
VII of the Charter governing its interpretation and application
The Union shall respect fundamental and with due regard to the explanations referred to in the
rights as guaranteed by the ECHR Charter, that set out the sources of those provisions.

and as they result from the 2. The Union shall accede to the European Convention
for the Protection of Human Rights and Fundamental
constitutional traditions common to Freedoms. Such accession shall not affect the Union's
competences as defined in the Treaties.
the Member States, as general
3. Fundamental rights, as guaranteed by the European
principles of Community law. Convention for the Protection of Human Rights and
Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.
ToA
ToL
 EU human rights powers

• Respect for human rights appears as a value

(Article 2 TEU; see also Article 49 TEU) and a
goal (Article 3 TEU)

• However, there is no express Treaty

commitment to the protection and
promotion of human rights and there is no
specific EU competence across the EU’s
internal policies ≠ from the EU’s external
relations where there is a clear commitment to
the promotion of human rights (Articles 3(5)
TEU & 21(1) TEU)

• Article 7 TEU – Empowers the Council to

suspend some of the voting rights and other
rights of a M/S which is found to be in breach
of the pples in Article 2 TEU (no relevance in
practice)
The protection of fundamental rights as
general principles of EU law

• General principles of EU law = A body of legal principles which have

been developed by the Court of Justice over the years on the basis of
national constitutional traditions, the ECHR & other international treaties
signed by the M/S

• IMP: General principles of EU law are autonomous in source but draw

on the national constitutional and legal traditions of the M/S

• Case 29/69 Stauder – Court recognises the existence of general

principles of EU law with the inclusion of the protection of fundamental
rights
• See also > Case 11/70, Internationale Handelsgesellschaft mbH v
Einfuhr- und Vorratsstelle für Getreide und Futtermittel; Case 4/73,
Nold v. Commission; Case 36/75, Rutili v. Minister for the Interior
ECHR as a “special source” of inspiration for
general principles of EU law

• Article 6(3) TEU – ‘Fundamental rights as guaranteed by the

European Convention for the Protection of Human Rights and
Fundamental Freedoms and as they result from the constitutional
traditions common to the Member States, shall constitute general
principles of the Union’s law’

• The ECJ and GC have referred to the “special significance” of the

Convention and the rulings of the European Court of Human
Rights (ECtHR) as a key source of inspiration for the general
principles of EU law
 Acceding to the ECHR as an obligation
enshrined in EU primary law

Art. 6 TEU (ToL) ▪ Protocol No. 14 to the ECHR,

(…) whose Article 17 amends Article
59 ECHR as to allow this
2. The Union shall accede to the accession
European Convention for the
Protection of Human Rights and ▪ Protocol (no 8) to the TEU
Fundamental Freedoms. Such relating to Article 6(2) of the
accession shall not affect the Treaty on European Union on
Union's competences as defined the accession of the Union to
in the Treaties. the European Convention on the
Protection of Human Rights and
Fundamental Freedoms
 Acceding to the ECHR
EU procedural requirements CoE procedural requirements

▪ Unanimity in Council of Ministers ▪ Accession agreement to be ratified

by all parties to ECHR
▪ Consent of the EU Parliament
▪ Ratification by all MS through
domestic constitutional rules (Article
218 TFEU)
▪ Court of Justice Opinion (Article
218(11) TFEU)
 Acceding to the ECHR

Opinion 2/94, of 28 March 1996,

on the Accession by the
Community to the European
Convention

‘As Community law now stands,

the Community has no
competence to accede to the
European Convention for the
Protection of Human Rights and
Fundamental Freedoms.’
 Acceding to the ECHR
Opinion 2/13 – Opinion of the Court
(Full Court) of 18 December 2014
‘The agreement on the accession of the
European Union to the European
Convention for the Protection of Human
Rights and Fundamental Freedoms is not
compatible with Article 6(2) TEU or with
Protocol (No 8) relating to Article 6(2) of
the Treaty on European Union on the
accession of the Union to the European
Convention on the Protection of Human
Rights and Fundamental Freedoms.’

Again…
 Fundamental Rights in the EU today

▪ FR as internal values and principles

Role of CFR
→ ECHR and EU Charter (Articles 2
and 6 TEU)
→ Sanctions (Art. 7 TEU)

▪ FR as condition for accession

Relationship
→ Aricle 49 TEU with ECHR
EUCFR: Why (I)
Re Article 6 TEU (previous wording):
‘Precisely what rights? Which
traditions? And what limitations?
There is, it must be admitted, a lack
of something – legal certainty,
perhaps transparency or
accessibility.’

Francis G. Jacobs, 'Human Rights in

the European Union: The Role of the
Court of Justice', European Law
Review, 26/4 (2001), 331-41, at 339
 EUCFR
The “written” bill of rights -
the typology of rights protected

• Fundamental rights that apply to Chapters:

EU citizens and TCNs
▪ Dignity (Title I)
• General principles set out in
the ECHR and those derived from ▪ Freedoms (Title II)
the constitutional traditions
common to EU countries ▪ Equality (Title III)
• Economic and social rights ▪ Solidarity (Title IV)
contained in the Council of Europe
▪ Citizens' Rights (Title V)
Social Charter and the Community
Charter of Fundamental Social ▪ Justice (Title VI)
Rights of Workers
▪ General provisions (Title VII)
• Principles derived from the ECJ
and ECtHR case law
 EU Charter
Horizontal clauses

• The general provisions of the EU Charter are located in Title VII, Articles
51-54

• Provisions concerning the scope and applicability of the EU Charter

• Its relationship with other legal instruments

• Standard and level of legal protection

 Horizontal clauses - conts

• Article 51(1) – addressees: EU Institutions and agencies and the M/S only
when they are ‘implementing’ Union law; respect of the rights and principles &
promotion of the EU Charter within their powers
• Article 51(2) – EU Charter does not create any new power or task for the
EU nor modify any existing task
• Article 52(1) - Any limitation on the exercise of the rights and freedoms
recognised by this Charter must be provided by law and must be subject to the
proportionality pple (= Article 9(2) ECHR)
• Article 52(2) - Rights shall be exercised under the conditions and within the
limits defined by EU Treaties
• Article 52(3) – Rights in the Charter which correspond to rights in the ECHR
shall have the same meaning and scope of those in the ECHR
 Meaning of ‘implementing EU law’ under
article 51(1) EU Charter

When the matter falls within the scope of EU law (> MS)

• Åkerberg Fransson, Case C-617/10

•
• Texdata, Case C-418/11

• NS and ME, Joined Cases C-411/10 and C-493/10

 Horizontal clauses - conts

ToL additional paras. Article 52

4. Respect of the fundamental rights as they result from the constitutional
traditions common to the M/S
5. The provisions of this Charter which contain principles may be implemented by
legislative and executive acts taken by Institutions and bodies of the Union, and by
acts of M/S when they are implementing Union law, in the exercise of their
respective powers. They shall be judicially cognisable only in the interpretation of
such acts and in the ruling on their legality IMP: clarifies the distinction between
"rights" and "principles" set out in the Charter!
6. Full account shall be taken of national laws and practices as specified in this
Charter
7. Explanations drawn up as guidance in the interpretation of the Charter shall
be considered by European and national courts
 Horizontal clauses - conts

Article 53 – general non-regression clause (= similar to Article 53 ECHR)

Nothing in this Charter shall be interpreted as restricting or adversely

affecting human rights and fundamental freedoms as recognised by Union law
and international law and by international agreements to which the Union or all the
M/S are party, including the ECHR and by the Member States' constitutions
→ (C-399/11 Melloni)

Article 54 – Prohibition of abuse of rights (= Article 17 ECHR) by way of

engaging in any activity aimed at the destruction or excessive limitation of any of
the EU Charter rights
 Rule of Law Framework – Art. 7 TEU
procedure

The RoL framework establishes a. ❖ If no solution is found within the rule

three-stage process These are: of law framework, Article 7 TEU is
•Commission assessment the last resort to resolve a crisis and
to ensure the EU country complies
•Commission recommendation with EU values.
•monitoring of the EU country’s
follow-up to the Commission’s ❖ Article 7 TEU provides for special
recommendation mechanisms with far-reaching
sanctions in case an EU country
K Scheppele, D Kochenov, B Grabowska-Moroz,
does not respect the fundamental
‘EU Values Are Law, after All: Enforcing EU Values values referred to in Article 2 TEU,
through Systemic Infringement Actions by the including the rule of law.
European Commission and the Member States of
the European Union’ (2020) 39 Yearbook of
European Law, Volume ❖ Enforcement actions?
3 https://doi.org/10.1093/yel/yeaa012

The case of Hungary

Future?

▪ EUCFR as key piece in EU

constitutional framework

▪ EUCFR embedded limitations

▪ Fragmented HR framework
 Next

Assessed Essay Clinic

 Lecture 19
The UK’s Withdrawal
from the EU – Selected
Constitutional Aspects
 Focus
▪ A (Hi)story of Brexit

▪ Selected constitutional/PIL
aspects

▪ The UK-EU Withdrawal

Agreement – Overview

▪ The European Union

(Withdrawal) Act 2018
(EUWA) and the European
Union (Withdrawal
Agreement) Act 2020 (WAA)

▪ Impact on existing domestic

legislation/ Adoption of new
domestic legislation

▪ EU-UK Trade and Cooperation

Agreement 2020 (TCA)
 Key points

▪ When did it all start – Back to the Future

▪ Implications for the UK constitution, sovereignty or legislative

supremacy of Parliament

▪ Governance structure of the EU-UK relationship

▪ Retaining EU law
 Continuity with the past?
The United Kingdom European Communities
membership
Referendum took place on 5 June1975 (Referendum Act
1975)
First national referendum to be held throughout the UK
Referendum question: Do you think that the United
Kingdom should stay in the European Community (the
Common Market)?
Permitted answer: YES / NO (to be marked with a (X))
National turnout of 64% : electorate voted to continue
EC/EEC membership (67% to 33%) - Single majority vote
https://www.youtube.com/watch
?v=qMGkB5xu3wE
 2016 Brexit Referendum
• 23 June 2016
• Referendum question: Should
the United Kingdom remain a
member of the European Union
or leave the European Union?
• Permitted answers: Vote to
remain a member of the EU or
vote to leave the EU
• Turnout: 72.2%
• UK votes to Leave the EU by
52% to 48% - Simple majority
rule
• http://www.bbc.co.uk/news/politics
/eu_referendum/results
 The formal mechanism for leaving the
EU: Article 50 TEU

1. Any Member State may decide to withdraw from the Union 4. For the purposes of paragraphs 2 and 3, the member of the
in accordance with its own constitutional requirements. European Council or of the Council representing the
withdrawing Member State shall not participate in the
discussions of the European Council or Council or in
2. A Member State which decides to withdraw shall notify decisions concerning it. A qualified majority shall be defined
the European Council of its intention. In the light of the in accordance with Article 238(3)(b) TFEU.
guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that State, setting
out the arrangements for its withdrawal, taking account of the 5. If a State which has withdrawn from the Union asks to
framework for its future relationship with the Union. That rejoin, its request shall be subject to the procedure referred to
agreement shall be negotiated in accordance with Article in Article 49 TEU.
218(3) TFEU. It shall be concluded on behalf of the Union by
the Council, acting by a qualified majority, after obtaining the
consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question

from the date of entry into force of the withdrawal agreement
or, failing that, two years after the notification referred to in
paragraph 2, unless the European Council, in agreement with
the Member State concerned, unanimously decides to extend
this period.
Brexit – Key Events
Brexit – Key Events cont.
 CONSTITUTIONAL DECISIONS IN THE UK > REINFORCE THE
SUPREMACY OF PARLIAMENT

On 3 November 2016 the EW High Court On 24 January 2017 the Supreme Court
ruled that the government cannot use the dismissed the Secretary of State’s appeal
royal prerogative to trigger Article 50 TEU
The Supreme Court ruled by majority that an Act
Government cannot formally
of Parliament is required to give Notice of the
commence the process to leave the
decision of the UK to withdraw from the EU
EU without parliamentary approval

 R (Miller) -v- Secretary of State for Exiting the European Union [2016]  R (on the application of Miller and another) (Respondent) v Secretary of
EWHC 2768 (Admin) State for Exiting the European Union (Appellant) [2017] UKSC 5

AND
 McCord, Re Judicial Review [2016] NIQB 85 “Where, as in this case, implementation of a
referendum result requires a change in the law of the
On 28 October 2016 the NI High Court ruled that land, and statute has not provided for that change, the
there was nothing in the 1998 Good Friday Peace change in the law must be made in the only way in
Agreement that prevents the Government from which the UK constitution permits, namely through
triggering Article 50 TEU Parliamentary legislation.” [para. 121]
THE UK’S CONSTITUTIONAL MOMENT
OR
THE WAR OF THE ROSES?
 KEY QUESTION ABOUT THE WITHDRAWAL
PROCESS

The right to withdraw from an Intl

IMPORTANT QUESTION FROM Treaty flows from PIL, specifically the
THE PERSPECTIVE OF PUBLIC Vienna Convention on the Law of
INTERNATIONAL LAW Treaties (VCLT), see Articles 42, 54, 56
and 68 VCLT
Article 50 TEU is the formal
Once Article 50 TEU has been mechanism for withdrawal from the EU,
triggered, and thus, once the pursuant to the VCLT
withdrawal process has begun, Article 50(3) TEU envisages 2
can it be stopped by the MS alternative scenarios which indicate that
concerned? before the 2yrs clock has run out the
MS concerned that has given
notification could decide to rethink its
position
BUT
Supreme Court has ruled that once
Article 50 TEU is triggered it cannot
be reversed
 The CJEU’s Answer
Case C-621/18 Wightman ▪ Purpose of Article 50 TEU - Two
objectives: first, to enshrine the
sovereign right of a Member State to
withdraw, and secondly to ensure that
▪ Fills a lacuna in EU law
such a withdrawal takes places in an
▪ A Member State may revoke orderly fashion (para. 56)
its notice of intention to ▪ The first of these principle supports
withdraw and may also do so the conclusion of a unilateral right to
revoke notification, BUT only for as
unilaterally, without having to
long as a withdrawal agreement has
obtain the agreement of the not entered into force, or failing such a
EU or other Member States conclusion, for as long as the two-
year period and any possible
extension has not expired (para. 57)
 Withdrawal Agreement

The Withdrawal Agreement provided the grounds

for an ‘orderly’ departure of the UK from the EU

WHAT IS THE
WHITDRAWAL
AGREMENT?
 Withdrawal Agreement I
STRUCTURE The UK ceased to be a
Member State of the
EU with the entry into
2019 Withdrawal Agreement force of the Withdrawal
Agreement (WA) on 31
Part One: Common Provisions (Arts 1– January 2020 at 11pm
8) GMT
Part Two: Citizens’ Rights (Arts 9–39)

Part Three: Separation Provisions (Arts

40–125)
1 Feb. 2020
Part Four: Transition (Arts 126–32)

Part Five: Financial Provisions (Arts 31 Jan. 2020,

133–57) 11:00 PM
Part Six: Institutional and Final
Provisions (Arts 158–85)
The WA was
Protocol on Ireland/Northern Ireland concluded in October
2019; it entered into
Protocol on Sovereign Base Areas in force on 1 February
Cyprus 2020

Protocol on Gibraltar
Transition period
• Offered extra time for
an orderly withdrawal (and legal
certainty after the Treaties and EU law
ceased to apply to the UK)
• This period expired on 31 December
2020
• The UK had to continue to apply
(almost) all EU law, e.g. the Single
Market (with all four freedoms
applying)
• The UK was no longer able to actively
participate in the Union institutions
• This period has elapsed & the UK is
now fully outside of the EU
• BUT the European Court of Justice
can receive preliminary references on
certain matters within the Withdrawal
Agreement from British courts for up to
eight years
 Supremacy and direct effect
under the WA 2020
• Article 4 of the Withdrawal Agreement entitled: ‘Methods and principles relating to the effect, the
implementation and the application of this Agreement’
• The most constitutionally significant provision for the UK
• It provides that:
1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall
produce in respect of and in the United Kingdom the same legal effects as those which they produce within
the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely
directly on the provisions contained or referred to in this Agreement which meet the conditions for direct
effect under Union law.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers
of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions,
through domestic primary legislation.
3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be
interpreted and applied in accordance with the methods and general principles of Union law.
4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their
implementation and application be interpreted in conformity with the relevant case law of the Court of Justice
of the European Union handed down before the end of the transition period.
5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative
authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed
down after the end of the transition period.
 Supremacy and direct effect
under the WA 2020 cont.

• The UK must produce “the same legal effects” for the WA as those
produced in the Member States = the WA will prevail over inconsistent UK
law (i.e. primacy of the WA)
• Relevant rights, powers, liabilities, obligations, restrictions, remedies and
procedures arising from the WA and relevant EU law should be enforceable
in UK courts (i.e. they should have direct effect)
• Where and to the extent that the WA refers to EU law, concepts or
provisions, they shall be interpreted and applied in accordance with the
methods and general principles of Union law
• Where the WA incorporates EU law by reference, that law, to the extent
applicable, would then also have supremacy over UK law
 EUWA 2018
▪ EUWA arranged for the repeal of the European Communities Act
1972 as of the UK’s formal departure from the EU
▪ It also arranged to “retain” or “convert” much of EU law into
domestic law
▪ Two-fold approach of delegated powers and primary legislation
▪ Broad “Henry VIII powers” in EUWA to be used to make regulations
to change UK law where deficiencies might arise as a result of the
UK’s withdrawal
▪ Where sector-wide arrangements need significant alteration
dedicated Acts of Parliament to replace common EU arrangements
 WAA 2020
• Substantially modified and supplemented the EUWA 2018

• The Act as passed conferred a significantly lesser role for

Parliament in subsequent stages of the Brexit process

• Broad “Henry VIII powers” conferred on Ministers

• Constitutional concerns
 EU RETAINED LAW
IMP > The withdrawal of the UK • The 2018 Act protects ‘retained EU
from the EU has resulted in a very law’ from immediate demise on
complex legal framework departure
• The EUWA 2018 created the broad • Any later amendments to EU
category of ‘EU retained law’ retained law by the EU will not be
Section 6(7) of the 2018 Act – applicable to the UK
definition of ‘retained EU law’: • Section 5(2) of the 2018 Act -
‘anything which, on or after exit day, supremacy is still a relevant
continues to be, or forms part of, principle for all EU retained law
domestic law […](as that body of law
is added to or otherwise modified by
or under this Act or by other domestic
law from time to time);’
 EU RETAINED LAW conts
• EU-derived domestic
legislation
• Direct EU legislation
• Rights, powers, liabilities etc.
under section 2(1) of the ECA
1972
• Retained case law
• Retained general principles of
law (= general principles of EU
law)
 OTHER CATEGORIES OF EU LAW THAT WILL
CONTINUE TO APPLY

• EU Law in Northern Ireland (Single Market law will continue to

apply to the UK on the basis of the Protocol on Ireland/Northern
Ireland)

• ‘Relevant separation agreement law’ (combined reading of

Section 26(2) of the EUWAA 2020 and Section 7C of the EUWA
2018))

• Secondary ‘Trade and Cooperation Law’ (Sections 31-33 of the

European Union (Future Relationship) Act 2020)
 Retained EU Law (Revocation and Reform) Bill 2022

An enabling Bill to allow for

the revocation or amendment
of retained EU law ( REUL )
and to remove the special
features REUL has in the UK
legal systems (and which had
been retained as part of the
European Union (Withdrawal)
Act 2018)
 Brexit and devolution –
the case of Northern Ireland

• The Irish border question

• The problem stems from the complex legal arrangements governing

(British) Northern Ireland and the Republic of Ireland

• The 1998 Good Friday Agreement guarantees open borders between

Northern Ireland and the Republic of Ireland

• With the UK leaving the EU, the border between the Republic of Ireland and
Northern Ireland becomes an external border of the EU requiring border
checks for goods entering the EU internal market
 Brexit and devolution – the case of
Northern Ireland conts

• The Protocol on Ireland/Northern Ireland = set of unique arrangements in

the WA designed to avoid a “hard border” on the island of Ireland

• Sections 21 and 22 of WAA 2020 confer powers on UK Ministers and

devolved authorities (respectively) to make domestic provision
implementing that part of the WA

• Ministers may by regulations make “appropriate” provisions to implement

the Protocol
Brexit and devolution – the case of Northern Ireland conts

1. The so-called ‘Irish backstop’ solution

- All of the UK —including Northern
Ireland—would have remained within
the EU customs union until a future
trade agreement had solved the Irish
border problem

2. ‘Irish sea border’ option - takes the

UK out of the EU customs union (and
the single market); yet in practice it
leaves Northern Ireland within that
customs union (and elements of the
single market)
2a. In practice a hard border
between the Irish Republic and
Northern Ireland has been
replaced by an invisible border in
the Irish Sea
 Northern Ireland Protocol Bill

• It was introduced in Parliament on

13 June 2022

• Provides the legal basis for

amending/disapplying certain parts
of the Northern Ireland Protocol

• The Bill and the trigger of Article

16 of the Northern Ireland Protocol
 Where are we now?

1 January 2021
The UK is outside of the EU
(including Single Market)

31 December
2020
End of Transition
Period
 Where are we now?
▪ Relations between the UK and EU
are now governed in part by the
remaining Withdrawal Agreement (WA)
2020 & the TCA 2020

▪ The WA 2020 entered into force on 1

February 2020

▪ The TCA 2020 was signed on 30

December 2020, was applied
provisionally as of 1 January 2021 and
entered into force on 1 May 2021
 TCA - Introduction
The negotiations, completed on 24
December 2020, resulted in 3
agreements:
▪ the Trade and Cooperation
Agreement
▪ the EU-UK Agreement on security
procedures for exchanging and
protecting classified information
▪ an Agreement between the
Government of the UK and Euratom
for Cooperation on the Safe and the
Peaceful Uses of Nuclear Energy
 TCA - Introduction
Article 1 COMPROV.1: Purpose
This Agreement establishes the basis
for a broad relationship between the
Parties, within an area of prosperity
and good neighbourliness
characterised by close and peaceful
relations based on cooperation,
respectful of the Parties’ autonomy
and sovereignty.

Q. The Government wanted a

”Canada-style” trade agreement – is
the TCA comparable?
 TCA – Key legal features
▪ Territorial scope - certain parts apply
to the Channel Islands and Isle of Man;
there are no provisions on the UK’s
overseas territories
▪ The TCA does not create directly
effective rights for individuals
▪ The TCA will be reviewed every 5
years
▪ Either the UK or the EU may decide to
terminate the Agreement with 12
months’ notice
▪ There is no jurisdiction of the CJEU
(in contrast with WA for citizenship
rights)
TCA – Key areas
TCA – Institutional Framework
 Where are we now?
• The United Kingdom Internal Market
Act 2020
UK…the Island Nation?
• Guarantees the continued seamless
functioning of the UK's internal
market/ preserve the territorial
integrity of the United Kingdom

• Any disputes are to be settled by a

new Office for the Internal Market

• European Union (Future

Relationship) Act 2020

• Main primary implementing

legislation for the TCA 2020; also
makes other provision in connection
with the future UK-EU relationship
Next Session

Assessed
Essay Clinic