European Union Law

bmqueiroz@ucp.pt beneditaqueiroz@gmail.com

Reading:
 EU Law: text, cases, and materials. Paul Craig & Gráinne de Búrca
o The Substantive Law of the EU – the four freedoms

Blogs
EU Law Analysis + European Law Blog

EU Treaties and Legislation

EU Treaties & Legislation, Nigel Foster, Blackstone’s Statutes

Introduction
What is the European Union?
TEU – article 3, number 3; 27 members

Eu Member States

The evolution of the European Law

Founding members (1958): Belgium, France, Germany, Italy, Luxembourg, The Netherlands

Accessions:
 1973 – Ireland, Denmark, UK
 1981 – Greece
 1986 – Portugal, Spain
 1995 – Austria, Finland, Sweden
 2004 – Estonia, Latvia, Lithuania, Malta, Cyprus, Poland, Czech Republic, Slovenia, Slovakia, Hungary
 2007 – Romani, Bulgaria
 2013 – Croatia
 2020 – Brexit – UK leaves the EU

Winston Churchill speech in Zürich about EU

 The United States of Europe (idea of federalism)
 Combine those who will and those who won’t.
Historical context
 1946 – Winston Churchill’s speech – United States of Europe
 1948 – Hague Congress – European movement was created´
 1948 – customs agreements between Belgium, the Netherlands and Luxembourg (Benelux) –
creation of a Common Customs Tariff
 1948 – Brussels Treaty – Western European Uninon (mutual military assistance between contracting
states: Belgium, France, Luxembourg, the Netherlands, United Kingdom)
 1948 – Paris Convention – OEEC (Organization for European Economic Cooperation) – Marshall Plan
aid from the USA to Europe
 1949 – Washington Treaty – NATO (North Atlantic Treaty Organization9 – military cooperation
 1949 – London Convention – Council of Europe (ECHR, 1950)

The “Schuman Declaration” – 9th May 1950

Reconciliation, solidarity, peace
 "World peace cannot be safeguarded without the making of creative efforts proportionate to the
dangers which threaten it.”
 "Europe will not be made all at once, or according to a single plan. It will be built through concrete
achievements which first create a de facto solidarity.

Timeline

The European Communities

 European Coal and Steel Community (ECSC)
 European Atomic Energy Community (Euratom)
 European Economic Community (EEC)

Treaty of Paris 1952

1952 – ECSC was established by Treat of Paris
Created a community between independent institutions. Is a political corporation between the founding
countries
 Political cooperation between: Luxembourg, the Netherlands and Belgium, France, Germany and Italy
 Independent institutions: High Authority, Assembly, Council of Ministers and Court of Justice
 Limited purpose cooperation (sectorial)
 Signed for a period of 50 years and expired in July 2002

Spaak report – 1956

 Another landmark of the creation of the European union
 Messina conference (intergovernmental conference)
 Focus on transport and energy
 Another document important in the direction to build de EU
Treaties of Rome – 1958 – set up the EEC (European Economic Community) and the Euratom (EU Atomic
Energy Community) *2 Treaties
A key moment of the construction of the EU were the treaties of Rome set of the EEC and the Euratom
 Signed by the six ECSC members:
1. Luxembourg
2. The Netherlands
3. Belgium
4. France
5. Germany
6. Italy

1. The European economic community

Aims:
1. Economic aim
The idea was to abolish all costume duty, to create an area which trade would be a free movement
 Common market – non-limited to coal and steal
 Remove of barriers to trade – abolition of all customs duties
 Approximate economic policies, increase stability, raise the standard of living and promote closer
relations between members
 Common commercial policy

2. Institutional
Creation of a parliamentary assembly and court of justice were shared with ECSC
 There were 3 communities co-existing
 The Parliamentary Assembly and the Court of Justice were shared with ECSC
 There was separate Council of Ministers
 An Economic Social Committee (with advisory status) was set up to be shared with Euratom
 The communities followed the institutional pattern of the ECSC
 Coexistence of ECSC, EEC and Euratom

1960 – European free trade association

European Free Trade Association (EFTA) Austria, Denmark, Norway, Portugal, Sweden, Switzerland and
United Kingdom

1987 – single European act (SEA)

SEA established 31 December 1992 as a deadline for the conclusion of the internal market (free movement
of goods, persons, services and capital)

2. 1983 – Maastricht treaty/European union treaty

A key to the creation of the European union

 Foundation of the EU -> political project with its own values and communities
 Three Pilar system – those pillars don’t exist anymore, they were to divide the powers

A landmark moment for the development of the values of the EU. Introduce the sense of a political project
 Treaties are moments where states agree on a decision, is a moment of reframing the institutional
pattern
First Pillar:
1. The European Community (EC)
2. The European Community for Atomic Energy (EURATOM)
3. The European Coal and Steal Community (ECSC)

Second Pillar
Common foreign and security policy

Third Pillar
Police and judicial cooperation in criminal matters (JHA)
 Introduced the concept of European citizenship
 Increased EU Parliament legislative powers (co-decision procedure)
 Established a Committee of Regions, an European System of Central Banks and a European Central Bank
to oversee economic and monetary union
 Added new policy areas: public health, transports, consumer protection, development cooperation
 The decision to form an Economic and Monetary Union was enshrined in the Maastricht Treaty

1999 – treaty of Amsterdam

How is the law making?
Article 7 is a particular mechanism that was created to sanction members – a political mechanism that was
created in particular by Amsterdam
 Consolidated the co-decision procedure to increase the
 Parliament’s powers
 Set up Article 7 TEU
 Transformed the third pillar (JHA) into Judicial Cooperation in Criminal Matters
 Created the Area of Freedom, Security and Justice (AFSJ – Article 67 TFEU)
 Integrated the Schengen Agreements and their acquis into the TEU

2003 – treaty of Nice

Manly focus on recreating the institutional pattern
 Changed the Treaty provisions concerning the weight of the votes in the Council, the distribution of
seats in the European Parliament and the composition of the Commission
 Reduced the cases of unanimous voting within the Council
 Reinforced the powers of the President of the Commission
 Extended the enhanced/closer/reinforced cooperation mechanism to all three pillars
 Created a specialized court

2004 – an attempt to have a European uninon constitution

Nowadays we have constitutional dimensions, that are constitution materials, however there’s not a formal
constitutional, because not all members signed it
 A Draft Treaty Establishing a Constitution for Europe (Constitutional Treaty) was presented and not
ratified by all Member States
 The Constitution for Europe did not enter into force!

2009 – treaty of Lisbon (treaty on the functioning of the European union

Replaced the European community with the European union
Article 6, no. 2 of the TEU – EU’s to accession to the ECHR – court of justice of the EU 2/15: NO! is not time
for the article 6, no. 2
 The EU replaces the EC
 Amended the TEU and TCE: some fundamental principles that govern the EU are in TEU; the main rules
concerning powers are in TFEU
 Abolished the three-pillar system;
 Increased EU’s democratic legitimacy (clarified the division of competences between Member States
and the Union);
 EU’s to accession to the ECHR.
 the Charter of Fundamental Rights of the EU acquired value of Treaties (art. 6(1) TEU)
 Created the High Representative of the Union for Foreign Affairs and Security Policy (art. 18 TEU; 23,
329, 218 e 220 TFEU)
 Established EU’s legal personality (art. 47 TEU)
 Granted the possibility for Member States to withdraw from the EU (art. 50 TEU)
 Introduced a mutual defense clause and a solidarity clause (collective defense obligation, reinforcing
solidarity with external threats; steps towards a common defense) - 42(7) TEU and 222 TFEU
 The co-decision procedure was renamed ‘ordinary legislative procedure’ and became the regular
legislative procedure (art. 14(1) TEU; 289(1) TFEU)

2013 – accession of Croatia

2016 – UK holds a Membership Referendum and votes to leave the European Union
2017 – March the Government of the United Kingdom invoked Article 50 of the Treaty on European Union
2017 – Negotiations between UK and the EU officially started in June 2017
2020 – UK leaves the EU after the Brexit withdrawal agreement came into effect on 31 January 2020 at 11
p.m. GMT

The nature of the EU

Federation or Confederation

Is more than a confederation

 permanent institutions,
 analysis of the interpretation and validity of norms: competence of CJEU
 EU law has direct effect and primacy over Member States Law

But is less than a federal state

 Member States have the “final say” – e.g. revision of Treaties by unanimity
 Member States can leave the EU (article 50 TEU)
 Reduction of the powers conferred on the Union in the Treaties is possible (article 48(2) TEU)
 The budget is limited, but the EU has its own budget;
 There is no EU army
 Part I
The EU Institutions
 European parliament
 European council
 Council
 European commission
 Court of justice of the European union
 European central bank
 Court of auditors

1. The European Council

Article 15 TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall
define the general political directions and priorities thereof. It shall not exercise legislative functions

Composition
2. The European Council shall consist of the Heads of State or Government of the Member States,
together with its President and the President of the Commission. The High Representative of the Union
for Foreign Affairs and Security Policy shall take part in its work.

Presidency
 The Lisbon Treaty abolished the rotating system, by introducing the office of the permanent President
 The permanent President is elected by European Council by a qualified majority, for a term of two and a
half years (can be renewed once) – 15(5) TEU.
 Ensures the external representation of the EU on issues concerning common foreign and security policy
(without prejudice to the powers of the High Representative of the Union for Foreign Affairs and
Security) – article 15 no. 5 TEU

 Since 1.12.2019 – Charles Michel

Functioning rules
 The European Council shall meet twice every six months – article 15 no. 3 TEU.
 Article 15 no. 4 TEU – except where the Treaties provide otherwise, decisions are taken by consensus

Article 235 TFEU:

 Where a vote is taken, any member of European Council may also act on behalf of not more than one
other member
 When voting by qualified majority –> article 16 no. 4 TEU and 238 no. 2 TFEU
 The European Council President and the President of the Commission shall not take part in the vote
article 235 no. 1 TFEU

Seat: Brussels

Powers
 Political power – political decisions (articles 15, 17, 23, 68 TEU; and articles 48, 82-83, 121, 148, 222, 49,
236, 244, 312, 355 TFEU)
 EU political directions and priorities – articles 15 no. 1 e 26 TEU; 68 TFEU
 Identifies the EU’s strategic interest, determines then objectives and defines the general guidelines for
common foreign and security policy – article 26 no 1 TEU
 Defines de strategic guidelines for legislative and operational planning within the area of freedom,
security and justice – article 68 TFEU
 Assesses the threats the EU is facing – article 222 no 4 TFEU
 Participates in the Treaties revision procedure – article 48 TEU
 Approves the conditions of eligibility for the accession of a new member – article 49 TEU
 Adopts the list of Council configurations – article 236 a) TFEU
 Establishes the system of rotation of the members of the commission – article 244 TFEU
 Participates in the designation of the commission – article 17 no. 17 TEU
 Discusses the conclusions on the broad guidelines of the economic policies of the MS and of the EU –
article 121 no. 2, 2nd p., TFEU
 Appoints the president, vice-president and the other members the executive board of the European
central bank – article 283 no. 2 TFEU, also see articles 48, 82 no. 3 and 86 no. 1 TFEU

2. The Council

Article 16 TEU
 Created in the treaty of Rome as the Council of Ministers
 EU’s intergovernmental institution par excellence
 Represents national interests at the ministerial level
 The members of the council are politicians rather than civil servants

Seat: Brussels

1. The Council shall, jointly with the European parliament, exercise legislative and budgetary functions. It
shall carry out policy-making and coordinating functions as laid down in the Treaties
2. The Council shall consist of a representative of each member state at ministerial level, who may commit
the government of the member state in question and cast its vote

Composition
 A representative of each Member State at ministerial level, who can commit the government of the
Member State in question and cast its vote.
 There is just one Council, however its composition and its name depend on the subject matter of its
deliberations;
 Article 16 no. 6 TEU imposes 2 configurations: the General Affairs Council (to ensure consistency in the
work of different Council configurations) and the Foreign Affairs Council (to elaborate the EU’s external
action).
 Article 236 TFEU – the list of other Council configurations is adopted by the European Council
(e.g.: Agricultural Council; a Council of Ministers of Economic Affairs and Finance (ECOFIN); Home Affairs
Council; Environment Council)

Management of the Council

COREPER – Committee of Permanent Representatives of the MS – responsible for preparing the work of the
Council – article 16 no. 7 TUE; article 240 no. 1 TFEU
 COREPER I - prepares technical questions and is composed of deputy permanent representatives.
Responsible for issues such as the environment, social affairs and transport.
 COREPER II - deals with political and controversial matters (e.g. economic and financial affairs and
external relations).
And the General Secretariat – article 240 no. 2 TFEU

Presidency – article 16 no. 9 TEU

 The Presidency of Council configurations (other than the Foreign Affairs Council) is held by Member
State representatives in the Council on the basis of equal rotation – article 236 TFEU
 Rotates among the Member States every 6 months. During this period, the presidency chairs meetings
at every level in the Council, helping to ensure the continuity of the EU's work in the Council

Functioning rules
 Article 237 TFEU: convened by its President on his own initiative or at the request of one of its
members or of the Commission
 The Lisbon Treaty provides that the public has access to Council meetings when it votes on a draft
legislative act (article 16 no. 8 TEU) – the part dealing with non-legislative activities is not public

Powers
 Political, legislative and budgetary functions (article 16 no. 1 TEU);
 Adoption legislative acts, according to the ordinary legislative procedure (article 294 TFEU);
 Adoption of the Union’s annual budget (article 314 TFUE);
 Conclusion of international agreements (article 218 TFEU)
 Treaty revision procedure and in the accession of new states (articles 48 and 49 TEU)
 Decisions necessary for defining and implementing the common foreign and security policy – article 26
no. 2 TEU
 See also article 7 no. 1 and no. 3; 42 no. 7 TEU; and art. 222 TFEU

Decision-making rules: Council

a. Simple vote majority

 Each member state has one vote
 Ate least 14 members
 Used in procedural matters
E.g.: the adoption of its own rules of procedure and organization of its secretariat general – article 238 no.
1 TFEU

b. Unanimity
 Each member state has the power to veto but abstention is not enough – article 238 no. 4 TFEU
 Politically sensitive areas, e.g. common foreign and security policy; EU membership

c. Qualified majority voting

 Mos common form of voting QMV – article 16n no. 3 TEU
 Weighted system of voting in which regard is had to the number of states voting and the populations of
those states
 Also known as the “double majority”
 When the Council votes on a proposal by the Commission or the high Representative a qualified
majority is reached if 2 conditions are met:
1) 55% of member states vote in favour (15 of 27)
2) The proposal is supported by member states representing at least 69% of the total EU
population
 Blocking minority: at least four Council members representing more than 35% of the EU population –
article 238 no. 3 TFEU

How do we calculate it?

 Qualified majority voting – article 16 no. 3 TEU
 Article 16 no. 4 TEU: default rule

“As from 1 November 2014, a qualified majority (…) at least 55% of the members of the Council, comprising
at least 15 of them and representing (…) at least 65% of the population of the Union
 A blocking minority must include at least four Council members, falling which the qualified majority
shall be deemed attained” (representing 35% of the EU population)

Article 238 TFEU

No. 2 – BY way of derogation from article 16 no. 4 of TEU, as from 1 November 2014 (…), where the Council
does not act on a proposal from the Commission or from the High representative of the Union for Foreign
Affairs and Security policy, the qualified majority shall be defined as at least 72% of the members of the
Council, representing member states comprising at least 65% of the population of the Union
No. 3 – as from 1 November 2014 (…), in cases where, under the treaties, not all the members of the
Council participate in voting, a qualified majority shall be defined as follows:
a) A qualified majority shall be defined as at least 55% of the members of the Council representing the
participating member states, comprising at least 655 of the population of these States

A blocking minority must include at least the minimum number of council members representing
more than 35% of the population of the participating member states, plus one member, failing
which the qualified majority shall be deemed attained

b) By way of derogation from point (a), where the Council does not act on a proposal from the
Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the
qualified majority shall be defined as at least 72% of the members of the Council representing the
participating Member States, comprising at least 65% of the population of these States

CJEU Opinion 2/13

 ”157 - As the Court of Justice has repeatedly held, the founding treaties of the EU, unlike ordinary
international treaties, established a new legal order, possessing its own institutions, for the benefit of
which the Member States thereof have limited their sovereign rights, in ever wider fields, and the
subjects of which comprise not only those States but also their nationals (…).
 158 - The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its
own constitutional framework and founding principles, a particularly sophisticated institutional
structure and a full set of legal rules to ensure its operation (…) “

3. The European Commission

 The EU Commission

The College of The Directorates The Cabinets

Commissioners General (DGs)

The college of commissioners

 Article 17 no. 3 TEU “Independence byonde doubt”
 The body that takes the Commission decisions appointed for 5 years

Composition
As from 1/11/2014 – the Commission shall consist of a number od members, including its President and
the High Representative, corresponding to two thirds of the number of Member States, unless the
European Council (acting unanimously) decides to after this number – article 17 no. 5 TEU
 2013/272/EU European Council Decision – the rule of one Commissioner per Member State continues
in force: 27 Commissioners

Appointment Rules (article 17 no. 7 TEU)

 President of the commission (see also article 14 no. 1 TEU)
Taking into account the elections to the European Parliament and after having held the appropriate
consultations, the European Council, acting by a qualified majority, shall propose to the European
Parliament a candidate for President of the Commission. This candidate shall be elected by the European
Parliament by a majority of its component members
1. Commissioners
The council, by common accord with the President-elect, shall adopt the list of the other persons whom it
proposes for appointment as members of the Commission. They shall be selected, on the basis of the
suggestions made by member States.
2. Commission
The President, the High representative and other members of the Commission shall be subject as a body to
a vote of consent by European Parliament.
On the basis of this consent the Commission shall be appointed by European Council, acting by qualified
majority

Democratic legitimacy of the Commission

 Process of appointment envolves the European Parliament and European Council;
 The Commission depends (politically) on European Parliament (which is elected by direct universal
suffrage): motion of censure against the Commission (article 234 TFEU);
Seat: commission is based in Brussels and Luxembourg and has offices (representations) in every EU
Member State and delegations in capital cities around the world

The president of the EU Commission

 “The first among equals”: articles 17 no. 6 TEU and 248 TFEU;
 Powers increased over subsequent treaty amendments;
 After the Lisbon Treaty: indirectly elected (support of the dominant grouping EP);
 Article 14 no. 1 TEU – EP shall elect the President of the Commission (although Article 17 no. 7);
 Lays down guidelines for the work of the Commission, decide on its internal organization, and appoints
Vice - President of the Commission;
President of the EU Commission: Ursula von der Leyen
Functioning rules – article 17 TEU; 248 TFEU; 3.º e 5.º of Rules of Procedure of the Commission

1. Principle of collegiate responsibility: the Commission acts as collective body – Article 17 no. 8 TEU: acts
by a majority of its Members (article 250 TFEU) under the political guidance of its president

2. Self-organization: the Commission adopts its Rules of Procedure (article 249 TFEU)

3. Hierarchical structure: the President shall lay down guidelines which the commission is to work;
decides on the internal organization of the commissions and participates in the appointment of
commissioners (article 17 no. 6 and no. 7 TEU)

Status of The Commissioners – article 17 no. 3 TEU; articles 245-247 TFEU)

 The members of the Commission shall refrain from any action incompatible with their duties
 The member States shall respect their independence and shall not seek to influence them in the
performance of their tasks
 The members of the Commission may not, during their term of office, engage in any other occupation,
whether gainful or not
 When entering upon their duties they shall give a solemn undertaking that, both during and after their
term of office, they will respect the obligations arising therefrom (and in particular their duty to behave
with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain
appointments or benefits)
 In the event of any breach of these obligations, the CJEU can rule his compulsorily retired in accordance
with Article 247 or deprived of his right to a pension or other benefits in its stead
Termination of the activities
 Resignation, compulsory retirement, normal replacement or death (article 17 no. 6 TEU; articles 245,
246 and 247 TFEU). Case Cresson, case C-432/04, 2006 (“breach of the obligations arising from her
office”)
 Motion of censure of the Commission by the European Parliament (article 17 no. 8) TEU + 234 TFEU)
e.g. – The Santer Commission resign in Merch 1999

The European Parliament politically controls the Commission

 Appointment procedure: participation and vote of consent (article 17 no. 7 TEU)
 The Commission shall reply orally or in writing to questions put to it by the European Parliament or by
its Members (article 230 TFEU)
 The Commission submits an annual general report to European Parliament (article 233 TFEU)
 Motion of censure (article 234 TFEU)

3.1. The Powers of the EU Commission

1. Legislative power
a. Legislative initiative (Article 17 no. 2 TEU);
b. Develops the overall legislative plan for the year - agenda – setting aspect (Article 17 no. 1 TEU annual
and multi-annual programme);
c. Development of general policy strategies;
d. Exercises the legislative power without the formal involvement of other institutions; exercises
delegated powers (Article 290 TFEU – makes further regulations within particular areas)

2. Administrative Power
(Article 17 no. 1 TEU) management of programmes of policies and legislations – general supervisory
overview of their implementation at Member State’s level
 3. Executive power
a. Finance: EU budget (article 317 TFEU)
b. Finance external relations: for example EU’s external trade relations;
c. Implementation of EU law in different areas (administration of the customs, common agricultural policy,
competition policy, state aids, common commercial policy);
d. Application and implementation of competition rules – articles 101-102 TFEU; administers the
European Social Fund – article 163 TFEU

4. Judicial Power
a. Article 17 (1) TEU) “guardian of the treaties” – ensure the application of the treaties under the control
of the CJEU (infringement action procedure – article 258 TFEU;
b. Investigates violations of EU law in the area of competition policy and state aid

4. The high representative of the Union for Foreign Affairs and Security Policy

Functions – article 18 TEU

 Represents EU at the international level;
 Appointed by the European Council; also European Council may end his term of office.
 Gives opinions and proposals (articles 329; 218; 215, 218, 222 TFEU)
 Presides the Foreign Affairs Council & is one of the Vice-Presidents of the Commission (article 18 no. 2
to no. 4 TEU);
 The common foreign and security policy shall be put into effect by the High Representative and
 by Member States – article 24 no. 1 TEU
 Ensures the cooperation with International Organizations and third countries – article 220 and 221
TFEU

Seat: Brussels
High Representative of the EU for Foreign Affairs and Security Policy: Josep Borrell Fontelles
 5. The EU Parliament

Composition – article 14 TEU

 Composed of representatives of Unions citizens – MEPs (grouped by political affiliation);
 Elected by direct universal suffrage in a free and secret ballot - for a term of five years
 The total number of members shall not exceed 705 (including the President - 704 + 1)
 Representation is degressively proportional: minimum of 6 members per Member State; maximum of
96 seats per Member State
! Article 22 no. 2 TFEU – every citizen of the Union residing in a Member State of which he is not a
national shall have the right to vote and to stand as a candidate in elections to the European Parliament in
the Member State in which he resides, under the same conditions as nationals of that State
Division of work
Committees (to prepare legislation) and Plenary sessions (to pass legislation)

Functioning
 Self-organization: it adopts its Rules of Procedure – article 232 TFEU
 Members are grouped by European political groups (according to ideological/ political affinity)
 “Political parties at European level contribute to forming European political awareness and to
expressing the will of citizens of the Union” – article 10 no. 4 TEU

Seat: Strasbourg (France), Brussels (Belgium), Luxembourg (Luxembourg). Plenary sessions in Brussels and
Strasbourg; Committee meetings in Brussels; Secretariat is based in Luxembourg

The President and the officers are elected by the EP from among its members: article 14 no. 4 TEU
President: Roberta Metsola

Deliberation/voting system
 European Parliament acts by a majority of the votes cast (article 231 TFEU)
 Quorum – 1/3 of the members (Rules of Procedure)
 Members vote on an individual and personal basis and they are not bound by any instructions

5.1. The Powers of the European Parliament

Article 14 TEU
No. 1 – the European Parliament shall, jointly with the Council, exercise legislative and budgetary functions.
It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the
President of the Commission.

Legislative Powers
 Vary in accordance with the legislative procedure adopted after the treaty of Lisbon extension (article
294 TFEU for ordinary procedure together with the Council)
 Can request the Commission to submit a proposal (article 225 TFEU)

Powers over the executive

 Approval of the President of the Commission – articles 14 no. 1 and 17 no. 7 TEU
 Approval of the Members of the Commission and the High Representative 17 no. 7 TFEU)
 Dismissal of the Commission: voting a motion of censure (article 17 no. 8 TEU and 234 TFEU)
 The appointment of the European Ombudsman and apply for her dismissal to the CJEU (article 228
TFEU)
 Setting up a temporary Committee of Inquiry (article 226 TFEU)
 The right of petition, handled by a special Petitions Committee (article 227 TFEU).
 Submitting oral or written questions to the Commission (article 230 no. 2 TFEU);
 Participating in proceedings before CJEU – articles 263 and 265 TFEU;
 Power to revoke the delegation to adopt a legislative act (delegated acts) – article 290 no. 2 TFEU;
 EP may submit to the Council proposals for the amendment of the Treaties (article 48 TEU);
 Approval of international agreements (article 218 no. 6 a) TFEU);
 Approval the accessions of new members (article 49 TEU)

Budgetary powers
Powers over the EU budget (article 312 no. 1 and no. 2 and 314 TFEU)

5.2. Types of EU Law

1. Principle of the autonomy of EU Law

 Autonomous from the national law and international law
 Different sources, principles, decision-making procedures and law application

2. Principle of Union of Law

 Article 2 TEU
 Case Les Verts – (…) a Community based on the rule of law

5.3. EU Law Primary Law

EU Treaties (constitutional treaties)

 Rome Treaty
 Maastricht Treaty
 Revision Treaties (Lisbon Treaty, …)
 Accession Treaties
 Annexed Protocols…

EU Charter of Fundamental Rights

Fundamental Principles of EU Law

 CJEU case-law
 *and the general of EU Law

 Outlines the Union’s objectives and the institutional structure;

 Parameter for interpretation and the basis for secondary law;
 Judicial system that ensures the “Union of law”
 Hierarchically superior to secondary law (article 19 TEU; articles 218 no. 11 and 263 TFEU)

International Agreements
 Concluded by the EU with other non- EU States or international organizations (article 216 no. 2, TFEU)
 Subordinated to EU Treaties
 In a superior position as to other acts of EU institutions

5.4. EU Secondary Law

 Regulations
 Directives binding force
 Decisions

 Recommendations no binding
 Opinions force

acts adopted by EU Institutions when using the powers conferred by the Treaties

Regulations
 General application – apply to a:
o “objectively determined situation and produce(s) legal effects with regard to categories of persons
described in a generalized and abstract manner.” Case AJD Tuna v. Direttur tal-Agrikoltura u s-Sajd,
para 51
 Entirely binding
 Directly applicable: become part of the domestic legal order of MS without need for transposition
(adoption of national measures)
 Entry in force: article 297 no. 1 and no. 2 TFEU
 Authors: Council/EP and Council/Commission/ ECB

Uniformity tool

Directives
 Binding as to the result to be achieved;
 MS have freedom of form and method (implementation discretion);
 Not directly applicable (but may produce direct effect)
 Addressed to Member States but do not necessarily to all (not general)
 Differences in implementation between MS are possible (Portuguese Constitution: Article 112 no. 8)
 Direct effect (individuals vs state & liability for non-implementation);
 Fixed implementation deadline – before it MS must refrain from measures that comprise the objectives
of the Directive;
 Author: Council / Council and EP / Commission

Decisions
 Binding in its entirety upon their addresses (notified) and if no addressees bind the EU as an
organizational entity
 May have individual addressees (MS or private citizens or companies) and apply to concrete cases
 Since the Lisbon Treaty: decisions may also be general
 Author: European council/European parliament/council/council and EP/commission/ECB

5.4.1. Recommendations, opinions & rulings

Recommendations & opinions
 Nonbinding (article 288 TFEU) – no direct effect
 Soft law (also includes resolutions, declarations, action programmes, communications, etc)

Some CJEU’s opinions are binging (article 218 no. 11 TFEU)

CJEU’s rulings
 Binding (article 280 TFEU)

5.5. Hierarchy of Norms

Primary Law
 Primary law is the foundation of secondary law
 Sets out the powers of EU institutions
 Parameter of competence and validity of secondary legislation
 Hierarchically superior to secondary law (article 19 TEU; articles 218 no. 11 and 263 TFEU)

After the Treaty of Lisbon

Treaties (article 6 no. 1 TEU) – top of the hierarchy

1. General principles of law

 Interpret Treaty Articles and are grounds of invalidity of EU law acts

2. Legislative acts (article 289 TFEU)

 Regulations, directives and decisions – formal definition article 289 no. 3 TFEU

3. Delegated acts (article 290 TFEU):

 Non – legislative in the formal sense
 Supplement or amend certain non-essential elements of the legislative act

4. Implementing acts (article 291 TFEU)

 Execute the legislative act without amendment or supplementation

5.6. Lawmaking procedures

Article 13 no. 2 TEU – European institutions shall act:

 Within the limits of the powers conferred in the Treaties and
 In conformity with the procedures, conditions and objectives set out in the Treaties

Article 10 no. 1 TEU – The EU is founded on representative democracy:

 Strengthened the EP powers
 Participation of citizens (article 11 no. 4 TEU)
 Contribution of the National Parliaments to the good functioning of EU – article 12 TEU

Legislative acts (article 289 no. 3 TFEU)

Ordinary legislative procedure (article 289 no. 1 and 294 TFEU)

Treaty of Lisbon
procedure But:
1. Proposal of the commission *Article 225 TFEU – EP request to Commission
*Article 241 TFEU – Council may request the
Commission to submit appropriate proposals
2. First reading
3. Second reading
4. Conciliation committee
5. Third reading
 5.7. Special legislative procedures
Article 289 no. 2 TFEU

 Cases where the Council decides alone (usually, after consulting the EP or after its approval)
e.g.: accession of new states – article 49 TEU; withdraw from EU – article 50 TEU; adoption of measures
against discrimination – article 19 TFEU; adoption of regulations or directives to give effect to the principles
set out in the competition field – article 103 no. 1; adoption of directives for the approximation of national
laws – article 115 TFEU; clause of necessary powers – article 352 TFEU

 Cases where the EP decides alone (after the opinion or the consent of the Commission or after the
approval (consent of the Council)
e.g.: adoption of regulations to establish the regulation and general conditions governing the performance
of the duties of the Members of EP (article 223 TFEU).
Determination of the provisions governing the exercise of the right of inquiry (article 226 TFEU).
Establishment of the regulations and general conditions governing the performance of the Ombudsman’s
duties (article 228 TFEU)

In specific cases provided for by the Treaties:

 Accession of new states (article 49 TEU)
 EU’s annual budget (article 314 TFEU)
 International agreements (article 218 TFEU)
 Enhanced cooperation (article 20 TEU)
 Revision of the Treaties (article 48 TEU)
 (...)

Accession of new states – article 49 TEU

Any European State
 - Which respects the values referred to in article 2 TEU and
- Is committed to promoting them may apply to become a member of the union

 The European Parliament and national Parliaments shall be notified

 The applicant State shall address its application to the Council
 Consultation of the Commission and consent of the European Parliament
 The conditions of eligibility agreed upon by the European Council shall be taken into account
 The conditions of admission and the adjustments to the Treaties on which the Union is founded, which
such admission entails, shall be the subject of an agreement between the Member States and the
applicant State
 This agreement shall be submitted for ratification by all the contracting States in accordance with their
respective constitutional requirements

Accession/Copenhagen criteria
The Treaty on European Union sets out the conditions (Article 49) and principles (Article 6 no. 1) to which
any country wishing to become a member of the European Union (EU) must conform:
 Stable institutions guaranteeing democracy, the rule of law, human rights and respect for and
protection of minorities
 A functioning market economy and the capacity to cope with competition and market forces in the EU
 The ability to take on and implement effectively the obligations of membership, including adherence to
the aims of political, economic and monetary union

Budgetary decision-making process

Article 314 TFEU
 Procedure to establish the EU’s annual budget
 Draft budget is submitted by the Commission to the European Parliament and the Council
 Budget is approved with the European Parliament and Council agreement (possible intervention of the
Conciliation Committee)

International decision-making process

Procedure of conclusion of international agreements

 Council authorizes the opening of negotiation and nominated the Union negotiator or head of the
Union’s negotiating team
 The Commission or the High Representative (where the agreement deals with issues common foreign
and security policy) submit recommendations to the Council
 CJUE’s opinion may be asked an opinion - article 218 no. 11 TFEU) example: Opinion 2/13 on the
Accession of the European Union to the ECHR
 EP gives its opinion (article 218 no. 6 b) TFEU) or its consent (article 218 no. 6 a) TFEU)

Enhanced cooperation mechanism – artciles 20 TEU and 326-334 TFEU

 Allows a group of Member States within the EU to cooperate more closely than is provided for by the
rules applying to all Member States
 Conditions to achieve this closer cooperation – article 326 TFEU

 Only possible in areas not subject to exclusive Union competence

 Should not undermine the internal market, social and territorial cohesion
 It should not constitute a barrier to or discrimination in trade
 It should not distort competition between MS
Member State’s Withdraw from EU – article 50 TEU
 Any Member State may decide to withdraw from the Union in accordance with its own constitutional
requirements.
 Notification of the European Council of its intention
 In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude
an agreement with that State (arrangements for its withdrawal)
 The agreement shall be negotiated in accordance with Article 218 no. 3 of TFEU
 Shall be concluded on behalf of the Union by the Council, after obtaining the consent of the European
Parliament
 If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the
procedure referred to in Article 49

50. In addition, Article 50 no. 1 TEU provides that any Member State may decide to withdraw from
the European Union in accordance with its own constitutional requirements. It follows that the
Member State is not required to take its decision in concert with the other Member States or with
the EU institutions. The decision to withdraw is for that Member State alone to take, in accordance
with its constitutional requirements, and therefore depends solely on its sovereign choice.

56. It follows that Article 50 TEU pursues two objectives, namely, first, enshrining the sovereign
right of a Member State to withdraw from the European Union and, secondly, establishing a
procedure to enable such a withdrawal to take place in an orderly fashion.

Treaty revision procedure

Is a very important legislative procedure, is what defines the European project, is the primary source of the
treaties

 Ordinary revision procedure

Article 48 no. 1 to no. 5 TEU – key amendments made to the treaties, such as increasing or reducing the
competences of the EU

 Simplified revision procedures

Amendment of the EU's internal policies and actions (for example, agriculture and fisheries, internal
market, border controls, economic and monetary policy).
Article 48 no. 6 TEU + Article 48 no. 7 TEU – “passerelle clauses” or bridging clauses

5.8. The role of National Parliaments

Article 12 TEU – principle of subsidiarity

 Intervention on the revision procedures of the Treaties - articles 12 d) and 48 TEU
 New accessions to the Union – articles 12 e) and 49 TEU
 Interparliamentary cooperation (article 10 Protocol no. 1) - to promote the exchange of information and
best practice between national Parliaments and the European Parliament
 National Parliaments can veto “passerelle clause”/ bridging clauses that allow the transition from
unanimity to qualified majority voting and from the special legislative procedure to the ordinary
legislative procedure (see article 48 no. 7 § 3, TEU; or e article 81 no. 3, § 3, TFUE)

The National Parliaments & the ex ante (before de fact) control of subsidiarity
 Participation in EU legislative procedure – Article 12 a) TEU and Protocol no. 1 on the Role of National
Parliaments in the EU

 Article 2 the Protocol: drafts of legislative acts sent to the EP and the Council shall be forwarded directly
by the National Parliaments.

 Article 5 no. 3 TEU and article 3 of Protocol no.1 and Protocol no. 2 on the Application of the Principles
of Subsidiarity and of Proportionality:

Early-warning mechanism – articles 6 and 7 of Protocol no. 2 on the Application of the Principles of
Subsidiarity and Proportionality

 Any national Parliament within eight weeks from the date of transmission of a draft legislative act may
formulate a reasoned opinion stating why it considers that the draft in question does not comply with
the principle of subsidiarity

5.9. Article 7 of the Protocol no. 2 on the application of the Principles of Subsidiarity and
Proportionality: the early warning system
Principle of subsidiarity – whenever we have a topic that we need to decide upon the position that decides on the
matter is the closest

“Yellow card”
 If reasoned opinions represent at least 1/3 of the votes allocated to the national parliaments and
challenge the compliance with the principle of subsidiarity the draft must be reviewed.
 The institution which produced the draft legislative act may decide to maintain, amend or withdraw it,
giving reasons for that decision.
 For draft acts relating to police cooperation or judicial cooperation in criminal matters is 1⁄4 of the votes.
 If, in the context of the ordinary legislative procedure, at least a simple majority of the votes allocated
to national parliaments challenge the compliance of a proposal for a legislative act with the principle of
subsidiarity
*The Commission must reexamine the draft legislation: can decide to keep it or not*

“Orange card”
 Under the ordinary legislative procedure:
 If the Commission decides to maintain its proposal, the matter is referred to the legislator (European
Parliament and Council), which takes a decision at first reading
 If the legislator considers that the legislative proposal is not compatible with the principle of
subsidiarity, it may reject it subject to a majority of 55% of the members of the Council or a majority of
the votes cast in the European Parliament

Not used very often but:

 In 2012, the first “yellow card” was issued with regard to a Commission proposal for a regulation
concerning the exercise of the right to take collective action within the context of the freedom of
establishment and the freedom to provide services (“Monti II”);
 In October 2013, another “yellow card” was issued following the submission of the proposal for a
regulation on the establishment of the European Public Prosecutor’s Office.
 In May 2016, a third “yellow card” was issued against the proposal for a revision of the directive on the
posting of workers
ex post (after the fact) subsidiarity control
 Article 8 of Protocol No 2 on the application of the principles of subsidiarity and proportionality states
that:
 “The Court of Justice of the European Union shall have jurisdiction in actions on grounds of
infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules
laid down in Article 263 of the Treaty on the Functioning of the European Union by Member States,
or notified by them in accordance with their legal order on behalf of their national parliament or a
Chamber thereof”

Action for annulment

6. The European Central Bank

Article 282 TFEU
Role
ECB, together with the national central banks, shall constitute the European System of Central Banks
(ESCB):
 Central bank for Europe’s single currency
 Main task is to maintain the euro’s purchasing power and price stability in the eurozone (articles 127
no. 1 and 282 no. 2 TFEU)
 Independent body (article 130 TFEU)

ECB Composition – articles 283 and 284 TFEU

President: Christine Lagarde

Powers (articles 128 no. 1 and 282 TFEU)

 Defines and implements the monetary policy of the UNION
 Conducts foreign-exchange operations consistent with the provisions of article 219
 Holds and manages the official foreign reserves of the Member States
 Promotes the smooth operation of payment systems
 Authorizes the production of euro bank notes within the Union
 Ensures the safety and soundness of the European banking system
 Monitors price trends and assesses risks to price stability

Acts
 ECB adopts regulations, decisions, recommendations and opinions (articles 132 e 282 no. 5 TFEU)
 ECB has legal personality and it is independent in the exercise of its powers and in the management of
EU finances (article 282 no. 3 TFEU)

Decision-making bodies of ECB (article 129 no. 1 TFEU)

 Governing council (the members of the Executive Board of the European Central Bank and the
Governors of the national central banks of the Member States whose currency is the euro – article 283
no. 1 TFEU)
 Executive Board (President, Vice-president and the other members of the Executive board shall appoint
by the European Council – article 283 no. 2 TFUE)
 General Council (President and Vice-President of ECB + Governors of the national central banks of the
28 Member States -> Rules of Procedure of ECB – article 141 no. 1 TFEU)

7. Other bodies of the EU

 The other bodies are to support, advise the European union
a) The European Economic and Social Committee (EESC) – articles 301-304 TFEU
 Represents sectorial interests
 Consists of representatives of the various economic and social components of organized civil society,
among others, producers, farmers, carriers, workers, dealers, consumers, general public (...)
 Shall be consulted where the Treaties so provide or in all cases in which the European institutions
consider it appropriate

b) The Committee of Regions (COR) – articles 305-307 TFEU

 Represents regional and local bodies within the EU
 It shall be consulted where the Treaties so provide or in all cases in which the European institutions
consider it appropriate

c) The Economic and Financial Committee – article 134 TFEU

 In order to promote coordination of the policies of Member States to the full extent needed for the
functioning of the internal market

d) Europol (EU’s Law Enforcement Agency) – article 88 TFEU

Supports and strengthens the action of Member States' police authorities and other law enforcement
services and their mutual cooperation in preventing and combating serious crime affecting two or more
Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.

Europol helps preventing security threats within the EU such as:

 Terrorism
 International drug trafficking and money laundering
 Organized fraud
 The counterfeiting of euros
 Trafficking in human beings

e) Eurojust (The European Union’s Judicial Cooperation Unit) – article 85 TFEU

Supports and strengthens coordination and cooperation between national investigating and prosecuting
authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on
common bases, on the basis of operations conducted and information supplied by the Member States'
authorities and by Europol

Eurojust may ask the competent authorities of the Member States concerned to:
 investigate or prosecute specific acts
 coordinate with one another
 accept that one country is better placed to prosecute than another
 set up a joint investigation team or
 provide Eurojust with information necessary to carry out its tasks

f) Specialized bodies/agencies/observatories
The European Medicines Agency; The European Maritime Safety Agency; European Chemicals Agency;
Fundamental Rights Agency etc.

8. The EU Courts
Seat: Luxembourg
 Court of Justice (CJEU)
  General Court (GC) courts of Justice of the EU
 Specialized Courts

Court of Justice, General Court and specialized courts

 Article 19 TEU and 251 et seq TFEU
 Protocol no. 3 – The Statute of the Court of Justice of the European Union
 CJEU: article 19 TEU
 Includes the CJEU, the GC and specialized courts
 Ensures that in the interpretation and application of the Treaties the law is observed

8.1. The Court of Justice

Composition
27 Judges (1 judge per MS) assisted by 11 Advocates-General (AG) – article 252 no. 1 TFEU
 The Judges and AG of the CJEU shall be chosen from persons whose “independence is beyond doubt” –
article 253 TFEU;
 They are appointed by Governments of Members States (after the opinion of the panel/committee - a
panel shall be set up in order to give an opinion on candidates) - article 255 TFEU and article 3 Statute
CJEU;
 Term of six years – article 253 TFEU;
 The President of the Court is elected every three years by its judges (reelection possible) – article 253
TFEU
o President: Koen Lenaerts

Functioning
 Article 251 TFEU: the CJEU sits in chambers or in a Grand Chamber (15 judges); and when provided for
in the Statute, the CJEU may also sit a full Court
 The CJEU establishes its Rules of Procedure (with the approval of the Council) – Article 253 TFEU
 No dissenting opinions
Seat: Luxembourg

Powers
 Acts both as a court of first instance and as an appeal court for cases from the General Court: article
256 TFEU
 Delivers preliminary rulings (article 267 TFEU)
 Advisory powers (article 218 no. 11 TFEU)
 Infringement action procedures and on the necessary measures to comply with the judgment of the
Court – financial penalty on the offending Member State (articles 258 and 260 TFEU)
 Failure to act procedures (article 265 TFEU)
 Can impose penalties (article 261 TFEU)
 Actions for annulment (article 263 TFEU) – to ensure that in the interpretation and application of the
Treaties the law is observed (article 19 TEU)
 Interim measures in direct actions, including in infringement proceedings (articles 278 and 279 TFEU)
 Jurisdiction in any dispute between Member States which relates to the subject matter of the Treaties
(article 273 TFEU)
 Jurisdiction in disputes involving the European Investment Bank (article 271 TFEU) and on arbitration
clauses (article 272 TFEU)
8.2. The General Court

Composition
Article 48 Statute of CJEU
 Minimum of 28 judges
 Currently 54 Judges (two per Member State)
 The GC does not have any Advocate General (AG), but its members may be called upon to perform the
task of AG (Article 49 of the Statute)
 The Judges and AGs shall be chosen from persons whose “independence is beyond doubt” – 254 no. 2
TFEU
 They shall be appointed by common agreement of the governments of the Member States for a term of
six years, after consultation of the panel (Article 255 and article 3 Statute CJEU)

Functioning
 Sits in chambers, in a Grand Chamber, or also in a single judge chamber
 No dissenting opinions
 Establishes its Rules of Procedure – 254 TFEU
Seat: Luxembourg

Powers
Articles 256 TFEU and 51 of Statute of CJEU
 Jurisdiction to hear and determine at first instance actions or proceedings referred to in Articles 263,
265, 268, 270 and 272, with the exception of those assigned to a specialized court set up under Article
257 and those reserved in the Statute for the Court of Justice;
 Preliminarily responsible for adjudication of direct actions (actions of annulment) – article 263 TFEU;
 Actions for failure to act – article 265 TFEU;
 *Attention: Article 51 Statute CJEU
 Actions for damages – articles 268 and 340 no. 2 TFEU
 Adjudicatory and appeal powers in field-specific areas (e.g. State aid and trade marks)
 Jurisdiction in disputes relating to compensation for damages provided in 2nd and 3rd paragraphs of
article 340 TFEU (268 TFEU)
 Jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or
on behalf of the Union, whether that contract be governed by public or private law (article 272 TFEU)
 Jurisdiction to hear and determine actions or proceedings brought against decisions of the specialized
court (article 256 TFEU).

8.3. Specialized courts

 The 1st specialized court – the former European Union Civil Service Tribunal: responsible for ruling on
disputes between the EU institutions and EU staff/ Civil Service where these were not the responsibility
of a national court

* dissolved on 1/09/2016 and integrated into the General Court (Regulation 2016/1192) *

 further specialized courts may be created for specific areas - e.g.: intelectual property)

8.4. The European Court of Auditors

Articles 285-287 TFEU
 Established by the second Budgetary Treaty in 1975 and came into force in 1977;
 Maastricht Treaty: institutional status

Role
Checks if EU funds are collected and used correctly. Helps improving EU financial management

Powers
 Audits EU revenue & expenditure, to check EU funds are correctly raised, spent, achieve value for
money and accounted for.
 Checks any person or organization handling EU funds – including spot checks in EU institutions
(especially the Commission), EU countries and countries receiving EU aid.
 Provides the EP and the Council with a ‘statement of assurance as to the reliability of the accounts and
the legality and regularity of the underlying transactions’ – article 287 no. 1, 2nd paragraphs TFEU:
o Draws up an annual report after the close of each financial year

Composition
The members are appointed by the Council, after consulting the Parliament for renewable 6 year terms
Seat: Luxembourg

8.5. The Courts of the European Union and The Nacional Courts
 National courts are common or ordinary courts of EU law;
 There is no hierarchical relationship between the national courts and the Union Courts – no appeal
against national judgments before Union Courts;
 Judicial cooperation mechanism - > preliminary ruling (article 267 TFEU)

8.6. The vity in the interpretation and the application of EU Law

 Guarantees of the uniform interpretation and application of the EU Law
 EU law effectiveness; legal certainty; prevents different solutions
 Preliminary Ruling Procedure (article 267 TFEU)

Non- contentious procedure

Key aspects:
If a national court has doubts
 about some aspect of the relationship between EU law and domestic law (direct effect of EU rules, its
primacy ...) or,
 in general, on the interpretation or validity of rules of European Union law,
In certain cases the national court may be obliged to refer the question to the CJEU (article 267 TFEU)
Article 267 no. 1 TFEU
Rules
 of the treaties or
 secondary law

Issues
 interpretation (treaties, secondary legislation)
 validity (only secondary law) – court does not assess the incompatibility of national rules with EU law
 issues can arise at the request of the parties or from the court’s own initiative, but it is only the national
court that has the power to refer the question to the CJEU

Preliminary ruling – topics to be discussed

 What is a national court or tribunal of a Member State?
 Are there exceptions to the obligation to refer?
 Can national courts declare the invalidity of EU law rules without referring a question to the Court?

*cases Vaassen-Göbbels, Dorsch, Lyckeskog, CILFIT, Foto-Frost and Consorzio Italian Management

8.7. What is a national court or tribunal of a Member State?

 Autonomous notion of “national court” (Ascendi, 2015)

Guiding elements (Vaassen-Göbbels, 1966):

 Legal origin (established by law)
 Permanent (vs. temporary)
 Compulsory jurisdiction (regardless of the agreement of the
 parties)
 Application of rules of law (vs. equity)
 Respect for the principle of adversarial trial (inter partes procedure)
 arbitration tribunals

Additional guiding elements (Dorsch, 1997):

 Independent body – impartiality; cannot be removed from office
 Judicial (binding) nature of decision
 prosecutors
 administrative authorities

 Case-by-case assessment – weight of the guiding elements in the specific case + it is not necessary to
verify all the elements in all cases

A preliminary question can be:

 Optional – article 267 np. 2 TFEU (default rule)
 Mandatory – article 267 no. 3 TFEU + additional casa of mandatory reference (Foto-Frost)
 CJEU does not decide the dispute in progress at the national jurisdiction
 The process is suspended at the national court until the CJEU’s delivers its decision

8.8. When must national courts refer a question to the CJEU?

1. No judicial remedy under national law – article 267 no. 3 TFEU: abstract vs. concrete theory
 A question is raised before a court whose decision there is no judicial remedy under national law –
mandatory
 Supreme courts or lower courts whose decisions are not susceptible of appeal – Lyckeskog (2002)

2. Additional case of mandatory reference – Foto-Frost, 1987: issues of validity there is always
mandatory reference, as long as, the national court is inclined towards the invalidity (regardless of
the existence of remedy or not)

Reasoning of the CJEU:

 Uniform application of EU Law Exception to Fotofrost:
 Systematic coherence – article 263 TFEU Urgent procedures (Zucker Fabrik, 1991)
 Allows institutions to defend the act
 Ensures primacy of EU Law

8.9. Exceptions to the duty to refer a question to the CJEU (only interpretation questions)

 Irrelevance of the question (Lourenço Dias, 1992) or general or hypothetical questions (Foglia, 1980)
o *Presumption of relevance of questions posed by national jurisdictions (Van der Weerd, 2007)

 Prior answer to the issue by the court (clarified norm – theory of act éclairé). Da Costa, 1963: when the
questions were raised before

 Apparent clarity of the rule in question (theory of acte clair) CILFIT, 1983: no obligation to refer where
the correct application of EU Law is so obvious as to leave no scope for any reasonable doubt

Case 283 no. 81, CILFIT

“Does the third paragraph of 267 TFEU (Article 177 of the EEC Treaty), which provides that where
any question of the same kind as those listed in the first paragraph of that article is raised in a
case pending before a national court or tribunal against whose decisions there is no judicial
remedy under national law that court or tribunal must bring the matter before the Court of
Justice, lay down an obligation so to submit the case which precludes the national court from
determining whether the question raised is justified or does it, and if so within what limits, make
that obligation conditional on the prior finding of a reasonable interpretative doubt?”

The answer to the question (exempted to be referred) must be obvious “as to leave no scope for any
reasonable doubt as to the manner in which the question raised is to be resolved”:
 For that the national court should take into consideration that:
Case 282 no. 81, CILFIT, paragraph 16-20
 The interpretation of a provision of EU law involves a comparison of the different language versions of
the provision concerned
 Terms and concepts in EU Law do not necessarily have the same meaning as the laws of the various
Member States
 Every provision of Eu law should be interpreted in the light of EU law as a whole, taking into
consideration its objectives and its state of development and the moment of application of the
provision in question

What happens inf national court does not refer when they had the duty to?
 Infringement proceedings: initiated by the commission against the defaulting State: article 238 TFEU
 State liability action submitted by the harmed private entity against the defaulting State: Köbler, 2003;
Ferreira da Silva e Brito
 Application to the ECHR (infringement of article 6 – right to a fair trial) – Santos Pardal

Effects of preliminary ruling – article 280 TFEU

 The decision of the CJEU is binding on the nation court in the case

Binding effects between the parties – inter partes effects (Milch-, Fett-und Eierkontor, 1969)
 But by the virtue Da Costa and CILFIT, national courts that follow prior rulings of the CJEU are no longer
obliged to refer (erga omnes effects) – substantive judicial precedent

1. Preliminary ruling on interpretation

a) The interpretation has retroactive effects to the moment of its entry in force
b) The interpretation applicable by all national jurisdictions

2. Preliminary ruling on validity

a) The invalidity of the EU norm declared by the CJEU determines that the national judge cannot apply it
b) Every national jurisdiction in future cases that have an identical question have to decide in the same
manner (substantive precedent) or have to submit a new question to the CJEU
c) Retroactive effects to the moment of its entry in force
d) Effects may be limited due to legal certainty

Conclusion
Preliminary rulings are biding upon the referring court (as the interpretation or decisions on the validity); it
may operate as a precedent for all national courts in subsequent cases involving the same EU provision; it
has retroactive effects (ex tunc)

However: CJEU can limit the retroactive effects of the judgment (Defrenne, case 43/75, 1976) – in
exceptional cases, where interest of legal certainty so demands, the CJ has prepared to limit the general
retrospective effect of its ruling

Urgent preliminary ruling procedure and expedited preliminary ruling procedure

 Urgent procedure for preliminary rulings – article 23 of the Statute CJEU article 107 of the Rules of
Procedure of the CJ
 Expedited procedure – article 23 A of the Statute CJEU and article 105 of Rules of Procedure
*both procedures can be requested by the referring national court”

Differences between urgent and expedited procedure

1.
a) Expedited procedure can be applied in any subject matter of EU
b) Urgent procedure is only applicable:
o Under the Title V part III of the TFUE (Area of Freedom, Security and Justice) – article 23 A of
Statute
o If the question is raised in a case pending before a national court or tribunal of a MS against a
person in custody (the issues is a determining factor in the assessment of the legal situation of a
person detained or deprived of his or her freedom – article 267, 4th paragraph TFEU)
o Or in the case of a dispute relating to parental authority or custody of children, where the
jurisdiction of the court upon to adjudicate the case depends on the answer to the question
referred
 2.
a) Urgent procedure – on average 2 months
b) Expedited procedure – on average 4 months
3.
a) Urgent procedure can be requested by the President of the CJEU if the referring court did not submit
request
b) Expedited procedure must be requested by national court
 Part II
Fundamental Principles of European Union Law

1. Principle of Conferral

The limits of the Union’s powers are governed by the principle of conferral

 International law -> international organizations have only tho0se powers which were delegated by
member states:
 The EU does not decide its own powers, it cannot enact any legislation it pleases ( Member States)
 The EU can only legislate in those areas entrusted to it by the Treaties (Articles 5 no. 1 and 2 TEU)

Article 5 no. 1 and 2 TEU

 Expression of the so-called vertical division of competences between the MS and the EU
 Institutions should indicate for each adopted act the rule that enables them to act-horizontal division of
competences (between institutions) – e.g.: commission vs council, case 45/06; commission vs council,
case C-300-89

1.1. Categories of conferred powers

Exclusive competence – articles 2 and 3 TFEU

 Customs union
 The establishing of competition rules necessary for the functioning of the internal market
 Monetary policy for euro-area countries
 Conservation of marine biological resources under the common fisheries policy
 Common commercial policy
*Areas in which the EU alone is able to legislate and adopt binding acts. Member States are able to do s
themselves only if given the powers by the EU to implement these acts*

Shared competence – article 4 TFEU

 Internal market
 Social policy (but only for aspects specifically defined in the treaty)
 Economic, social and territorial cohesion (regional policy)
 Agriculture and fisheries (except conservation of marine biological resources)
 Environment
 Consumer protection
 Transport
 Energy
 Area of freedom, security and justice
 Common safety concerns in public health matters (limited to the aspects defined in the TFEU)
 Research, technological development and space
*The EU and its Member States are able to legislate and adopt legally binding acts. Member States exercise
their own competence where the EU does not exercise, or has*

Competence to carry out actions to support, coordinate or supplement the actions of MS – article 6 TFEU
 Protection and improvement of human health
 Industry
 Culture
 Tourism
 Education, vocational training, youth and sport
 Civil protection
 Administrative cooperation
*The EU can only intervene to support, coordinate or complement the action of its member states. Legally
binding EU acts must not require harmonization of the laws or regulations of the Member States*

2. Principle of pre-emption

Article 2 TFEU – member states cannot legislate:

 In areas of EU exclusive competence (even if the EU did not use those powers yet) – article 2 no. 1
 In areas of shared competence to the extent that the Union has exercised its competence – article 2/2

3. Principle of implied powers

Principle of conferral powers is not absolute

The principle of implied powers

 Article 352 TFEU – the clause of necessary powers

EU powers may arise implicitly from the Treaties

Powers may arise the express attribution or may by implicitly derived from the Treaties or from acts
adopted by the institutions

 When a provision confers a task, it must be admitted that it confers the powers necessary to carry out
that task otherwise that provision would be ineffective (no practical effect) – Germany v commission,
case 282/85 (1987)

4. Primacy & direct effect

“The Community treaties established a new legal order for the benefit of which the States have
limited their sovereign rights and the subjects of which comprise not only Member States but also
their nationals.
The essential characteristics of the Community legal order which has thus been established are in
particular its primacy over the law of the Member States and the direct effect of a whole series of
provisions.”

CJEU, Opinion 1/91, 14-XII-1991, para 21

Principle of primacy
When:

Declaration no. 17 – declaration concerning primacy

(declaration annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of
Lisbon, signed on 13 December 2007 – declaration concerning primacy)

“The Conference recalls that, in accordance with well settled case law of the CJEU, the Treaties and
the law adopted by the Union on the basis of the Treaties have primacy over the law of member
States, under the conditions laid down by the said case law”

although still not formally included in

the treaties, constitutional courts (and
other national courts) should take it into
consideration when primacy is questioned

Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260) of 22 June
2007

“It results from the case-law of the Court of Justice that primacy of EU law is a cornerstone
principle of Union law. According to the Court, this principle is inherent to the specific nature of the
European Community. At the time of the first judgment of this established case law (Costa/ENEL,15
July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The
fact that the principle of primacy will not be included in the future treaty shall not in any way
change the existence of the principle and the existing case-law of the Court of Justice.”

4.1. Case Costa/ENEL

 CJEU’s arguments to justify the supremacy of EU law over national law:
 Autonomy of union law
 Transfer of member states powers – limitation their sovereign powers
 Requirement of uniformity and effectiveness of EU law
 Regulations are directly applicable in Member States legal orders
 Rules of the treaty are binding
“Existential requirement” of EU Law

4.2. Case Internationale Handelsgesellschatt

 The supremacy principle is applicable against all national law (paragraph 3)
 Not even constitutional law could be invoked to challenge the supremacy of EU law
 In Ciola the CJEU reaffirmed this principle with regards administrative acts

 All EU Law rules prevail over all national rules

4.3. Case Simmenthal

 EU law prevails over all conflicting national rules
 The supremacy of EU law must be respected irrespective of whether the national law pre-dated or post-
dated the EU rule
 National conflicting provisions are inapplicable -> the consequence is inapplicability (not invalidity)

*The national judge must refuse to apply the *including administrative authorities,
national provisional Case Nimz confirms this Case Fratelli Costanzo

Limits to the inapplicability of a national rule that conflicts with EU Law:

 Res judicata (final decisions) – Kapferer
 National procedural autonomy
 Wholly internal situations

Consequences of the principle of primacy

 Simmenthal (1978) – all national courts (regardless of their position) are bound by the principle of
primacy and must refuse to apply the conflicting national provisions
 Commission vs France (1974) – national legislator must revoke all conflicting national provisions (article
4 no. 3 TFEU)
 Fratelli Costanzo (1989) – member states administrative bodies must refuse to apply national provision
incompatible with EU Law

5. Constitutional courts and the authority of EU law

Internationale Handelsgesellschaft
1. EU law prevails over all conflicting national rules even if these rules are allegedly contrary to
constitutional rules protecting fundamental rights

2. However, the CJEU verifies whether EU rules respect fundamental rights inspired by the
constitutional traditions common to the member states as general principles of EU Law

 There is consensus about the primacy of the EU law over non constitutional national law
 However, with regards the primacy of EU law over constitutional norms the answer is not so
straightforward
 Cooperation between the constitutional courts and the CJEU as key aspect for solving these
reservations of national constitutional courts

Case Solange II
The German Constitutional Court would review the acts of the EU institutions if the protection of the
fundamental rights at EU was equivalent to that offered in national order

Case of Slovak pensions, Landtová

Czech Constitutional Court – reexamined the issue of Slovak pensions in other case and stated that the
CJEU ruling was ultra vires
but this was an exceptional case

5.1. Primacy & Portuguese Constitution

Article 8 no. 4 of the Portuguese Constitution:

 Majority of Portuguese scholars considers that Article 8 no. 4 enshrines the primacy of EU law over all
national rules
 Unless "fundamental principles of the democratic rule of law” are disrespected

“The provisions of the treaties that govern the European Union and the norms issued by its
institutions in the exercise of their respective competences are applicable in Portuguese internal law
in accordance with Union law and with respect for the fundamental principles of a democratic state
based on the rule of law.”

5.2. Direct effect

(...) the Treaty has created a Community not only of States but also of peoples and persons and that
therefore not only Member States but also individuals must be visualized as being subjects of
Community law. This is the consequence of a democratic ideal, meaning that in the Community, as
well as in a modern constitutional State, Governments may not say any more what they are used to
doing in international law: L’Etat, c’est moi. Far from it; the Community calls for participation of
everybody, with the result that private individuals are not only liable to burdens and obligations, but
they have also prerogatives and rights which must be legally protected.
It was thus a highly political idea, drawn from a perception of the constitutional system of the
Community, which is at the basis of Van Gend en Loos and which continues to inspire the whole
doctrine flowing from it.

P Pescatore, The Doctrine of Direct Effect: An Infant Disease of Community Law

The Community treaties established a new legal order for the benefit of which the States have
limited their sovereign rights and the subjects of which comprise not only Member States but also
their nationals.
The essential characteristics of the Community legal order which has thus been established are in
particular its primacy over the law of the Member States and the direct effect of a whole series of
provisions.”
CJEU, Opinion 1/91, 14-XII-1991, paragraph 21

Principle of direct effect

Van Gen en Loos (1963):
 The rules of European treaties
 Mau be invoked direct effect of EU primary law
 By individuals (against sates)
 In national courts

Reasons for the development of the principle of direct effect

 Objectives of EEC treaty: creating common/internal market addressed to nationals of member states
 The treaties create institutions that exercise powers affecting the nationals of member sates
o Therefore, nationals of member states are EU Law subjects
 Article 267 TFEU: EU Law may be applied in and invoked before national courts
 Articles 258 and 259 do not provide the direct jurisdictional protection of individuals rights

Direct effect: conditions

For the productions of direct effect, rules must be:
 Clear, precise (unambiguous)
 Unconditional (not subject do deadlines or reservations on the part of member states): not dependent
on any national executive measure
 Confer rights to individuals or impose duties on public bodies that benefit individuals

Categories of direct effect

 Vertical direct effect

 Horizontal direct effect: (Defrenne)

 Direct effect  direct applicability (EU Law becomes part of the national law without intervention of
Parliament)

EU Law rules that produce direct effect

 Rules of the treaties (Van Gen en Loos)
 Provisions in the regulations (article 288 TFEU & Leonesio)
 Rules of directives in certain circumstances (Van Duyn and Ratti)
 Provisions of decisions (article 288 and Franz Grad)
 Rules of international conventions concluded by the EU (Kupferberg)

(Direct effect) Directives

 Directives are not directly applicable (transposition: articles 288 TFEU and 112 no. 8 Portuguese
Constitution – as law, executive law or regional legislative decree)
o Commission vs. Germany: if national law already respects the directive’s requirements, member
states must only notify the EU Commission of that fact

 directives may procedure direct effect (Van Duyn)

o Besides the general requirements for the productions of direct effect, there is an additional one:

the deadline for the implementation of the directive has already elapsed
(Van Duyn & Ratti paragraph 24)

Reasons for the direct effect of directives

 Directives are mandatory & effect utile – article 288 TFEU
 Textual argument – preliminary reference – article 267 TFEU
 Principle of sincere cooperation – article 4 no. 3 TFEU: MS should adopt not only measures that are
compatible with the treaties and with the obligations arising from them, but also adopt the measures
which best ensure compliance with those obligation
 Estoppel (Ratti paragraph 22): the member state that did not transpose the directive cannot take
advantage of that infringement
direct effect of directives is a sanction for failure to transpose

The duty to transpose the directive:

 Commission vs. Belgium: Despite the recognition of the direct effect of a directive (or provisions): there
is still the duty to duly transpose the directive
 Commission vs. Germany: if national legislation already guarantees the objective of the directive,
States only have to communicate that to the Commission
 Inter-Environnement Wallonie: Even before the transposition deadline has passed, Member States
must abstain from adopting rules that compromise de implementation of the Directive
 Adeneler: Since the date a directive has entered into force, the courts of the Member States must
refrain as far as possible from interpreting domestic law in a manner which might seriously compromise

 Directives can only be invoked against the states (Van Duyn) cannot be invoked by an
 Directives do not have horizontal Effect (Marshall; Faccini Dori) individual against another
individual

Why should directives only have vertical and not horizontal direct effect?
 Textual argument: directives are only addressed to Member States (articles 288 TFEU and Marshall
paragraph 48)
 Distinction between regulations and directives would not exist (Marshall and Faccini Dori)
 Legal certainty (Faccini Dori – before the Treaty of Lisbon not required to be published in the official
journal cf. (confer) article 297 TFEU for current regime)

Reasons for the need to recognize the horizontal direct effect of directives
 Direct effect as a unitary concept
 Discrimination between workers of public and private companies
 Distortions of competition and compromise the internal market
 Political reasons

Alternative solutions for the lack of directive’s horizontal direct effect

1. A broad concept of the “state” (Foster)
 The body must provide public service
 It must do so pursuant to a measure adopted by the State
 It must do so under the control of the state
 Must possess special powers beyond those normally applicable in relations between individuals
2. Principle of harmonious interpretation – national courts should interpret the national law according
to EU Law
3. Principle of state liability for infringement of EU Law (including non-transposition of directives)
4. Direct effect in triangular situations (Delena Wells) – individuals may invoke provision of directive
against the state, even if this invocation has negative repercussions on the rights of third party

6. Principle of harmonious interpretation or indirect effect

 The duty of indirect effect or harmonious interpretation imposes that national
law should be interpreted in the light of EU

Von Colson & Kamann

National Courts must interpret and apply the legislation adopted for the implementation of the directive in
conformity with the requirements of union law

Reasons:
 National courts are part of the state thus, they are also bound by article 288 TFEU and the principle of
sincere cooperation (article 4 no. 3 TEU)
 Principal of effective judicial protection
 Need to ensure the effectiveness of EU law

Marleasing
Harmonious interpretation is:
 Applicable to all national laws
 Applicable to all national authorities
 Applicable to all relationships – either vertical or horizontal

! Harmonious interpretation is required, not only in relation to directives, but also all other acts of EU law
(including non-binding acts such as recommendations – Grimaldi)
! Not necessary that the norm is clear, precise and unconditional (differently from what happens in direct
effect) – but…

Adeneler
 Only after the expiry period for transposition of the directive (paragraph 115)
o Before the deadline for transposition: an interpretation that seriously compromises the objectives
of the directive cannot be adopted

! Inter environment Wallonie: Member States should refrain from adopting provisions that would
compromise the result of the directive

6.1. The limits to the principle of harmonious interpretation

1. Prohibition of contra legem interpretation

2. May not aggravate a criminal conviction
3. Respect for legal certainty and other principles of law

 Kolpinghuis Nijmegen: The principle of harmonious interpretation is derogated by the principles of

legal certainty and non-retroactivity when it results in a more serious criminal conviction for the
individual
 Wagner Miret: national law may not be reinterpreted in a way that would result in a contra legem
interpretation of its meaning
 Maribel Dominguez: contra legem interpretation is not accepted (does not require an interpretation of
national law that cannot bear)

7. Principle of State Liability for Breach of EU law

 Action or omission of the MS that violates EU law (if the requirements are met):
*compensation for damages*

Reasons:
 Effect utile of EU law norms
 Protection of individuals
 Principle of primacy
 Article 4 no. 3 TEU – principle of sincere cooperation

! Liability of MS  EU’s liability – article 340 TFEU

Examples of Member State’s liability for breach of EU law

 For non-transposition of directives (Francovich, joined cases C-6/90 and 9/90)
 Incorrect transposition of Directives (British Telecommunications, case C-392/93)
 Adoption of an invalid act by the administrative authorities (Hedley Lomas, Case C-5/94; Dillenkoffer) or
 National court of last instance in the exercise of judicial function (Köbler): failure to comply with the
obligation to refer may lead to MS liability

Francovich – non-transposition of Directives

Requirements:
1. EU law confers rights on individuals (“where there is a right there is a remedy”)
2. The content of which must be identifiable under the directive
3. There is a casual link between breach of the State’s obligation and the damage suffered by the
injured parties
- no need to prior conviction of the State in Infringement procedure (paragraph 40)

Brasserie du Pêcheur & Factortame III

 Aligned the Member States liability requirements with EU liability requirements (article 340 TFEU)
 + Added another requirement:
“sufficiently serious” breach of EU law: manifest and serious breach of the limits of State’s direction

! Factors to be taken into account by the national court to decide if there is a sufficiently serious
breach of EU Law: paragraphs 55 and 56 Brasserie du Pêcheur

Examples of “sufficiently serious” breach of EU law

 Failure to transpose a directive – Francovich & Dillenkoffer
 Incorrect transposition of a Directive – British Telecommunications
 Breach of an order of the CJEU
 Breach of settled case law
 Breach of a provision of EU law whose interpretation leaves no room for reasonable doubt

After Brasserie du Pêcheur the requirements for State liability are the following:
1. The rule of EU law infringed must be intended to confer rights on the individuals
2. The breach of that rule must be sufficiently serious
3. There must be a direct causal link between the breach and the loss or damage sustained by the
individuals

 Brasserie du Pêcheur -> violation of EU law by the legislator

 Dillenkoffer -> violation of EU law by the administrative authorities
 Köbler -> violation of EU law by national courts when exercising judicial functions (example: violation of
the obligation to refer a question to the CJEU)

Reasons:
- Principle accepted by the Member States
- State considered as unit
- Effectiveness of Eu law rules
- Protection of the rights of individuals

Objections raised by some Member states against liability for infringements of national courts:
 Legal certainty and authority of the res judicata
 Independence of the judiciary
 Practical problems like absence of a competent national court to determine disputes relating to state
liability for such decisions

All arguments reject by the CJEU

(Köbler paragraphs 37 to 45)

Traghetti del Mediterraneo SpA

44. Accordingly, although it remains possible for national law to define the criteria relating to the nature
or degree of the infringement which must be met before State liability can be incurred for an
infringement of Community law attributable to a national court adjudicating at last instance, under no
circumstances may such criteria impose requirements stricter than that of a manifest infringement of
the applicable law, as set out in paragraphs 53 to 56 of the Köbler judgment

 EU law does not accept a limitation of liability solely to cases not intentional fault and misconduct
 Part III
The Internal Market & The Four Freedoms

Economic integration

 Instruments for economic integration:

1. Negative: mere removal of obstacles to trade
- Prohibition of discriminatory measures
- Prohibition of measures restricting trade
- Mutual recognition of national laws
2. Positive: creation of new institutions and mechanisms
- Harmonization of the MS’s internal law
- Harmonization of internal law encouraged by mutual recognition of national laws

 General or sectorial integration

o Sectoral: only certain economic areas (e.g.: European coal and steel community)
o General: every sector of activity (e.g.: EEC; EU)

“the concept of a common market (…) involves the elimination of all obstacles to intra-community trade in
order to merge the national markets into a single market bringing out conditions as close as possible to
those of a genuine internal market”
Schul Douane Expediteur, 15/81, no. 33
 Article 3 no. 3 TEU
 Article 26 no. 2 TFEU

1. Free movement of goods

Requeriments:

1. Goods
 “products which can valued in money and which are capable, as such, of forming the subject to
commercial transactions (case commission vs Italy, 1968)
 Do not have to be tangible (e.g.: electricity)

2. Cross-border element – goods should:

 Originate in another MS (produced in the union); or
 From 3rd countries, provided they are in free circulation in a MS – import formalities and paid customs
duties or charges (article 28 no. 2 and 29 TFEU)

! May result in a less favorable treatment for goods produced and marketed internally compared to goods
produced in other MS (reverse discrimination – Mathot, case 98/8)
! Member States can follow a commercial strategy to ensure that domestic products are of higher quality
than those imported from other MS.

Article 28 no. 1 TFEU

a) The prohibition of the imposition of Tariff Barriers between MS:

 Customs duties on imports and exports:
o pecuniary duties payable at customs when importing or exporting goods
 Charges of equivalent effect (CEEs):
 o which are not formally designated as customs duties, required by the passage of certain goods
across the border from one MS to another regardless of its name or technique
o (e.g.: case Statistical Levy, case 24/68; Commission v. Italy, 1969; Carbonati, case C- 72/03)
 Customs duties of a fiscal nature
o Article 30 TFEU

b) Adopting a Common Customs Tariff regarding third countries (articles 31 and 32 TFEU)
 Customs duties which MS should pay on the importation of goods from third countries

c) Prohibition of quantitative restrictions on imports and exports (articles 34 and 35 TFEU)

 Quantitative restrictions (quotas, bans, etc...) are: “all measures involving a total or a partial ban on
imports, exports or goods in transit” (Geddo v. Ente, 1973)

d) Prohibition of Measures of Equivalent Effect to Quantitative Restrictions on imports and exports

(Articles 34 and 35 TFEU)
 National measures that do not lead to the creation of customs barriers or the imposition of quantitative
restrictions on imports or exports, but that produce the same practical result

Case Dassonville:
Belgium provision required that importers of Scotch whiskey presented a certificate of authenticity issued
by the UK, this favored those who imported whisky directly from Scotland to those who imported Scotch
from other member states

1.1. What are measures having equivalent effect (MEE) to quantitative restrictions?

Dassonville (1974)
 Measure having equivalent effect:
"All trading rules enacted by Member States which are capable of hindering directly or indirectly, actually
or potentially, intra-Community trade”
(Examples: rules on licenses, regulations on the presentation of the product such as packaging, shape, content)

Concept of MEE
a) Covers any regulation of economic activity (case Buy Irish)
b) Even if they do not directly discriminate imported goods
 Distinctly applicable MEEs – less favorable way for imported goods vis-à-vis domestic goods (e.g.:
inspections imposed to import goods); or
 Indistinctly applicable MEEs to national and imported products, even though they have a
disadvantageous effect on intra-Union trade (e.g.: measures dealing with the characteristics of the
products. Cases Foie Gras – Commission v France, Walter Rau, …)
c) Regardless of the intention of the MS
d) There is no need to ascertain the real effect on Union trade

Case Cassis de Dijon (1979)

 Applied the concept of MEE & restricted the Dassonville reasoning:
o National legislation applicable without distinction to national and imported goods is a MEE,
because it affects the import of goods (double burden)

But it also added reasons to justify the MEE (cases in which they would not be prohibited:
“mandatory requirements” + article 36 TFEU)
Principle of Mutual Recognition (presumption of equivalence)
Member states are, in principle, bound to accept in their market goods produced and marketed in
accordance with the regulations of other member states even if those goods do not comply with the
regulations (indistinctly applicable= of the member state of destination

Risk of market deregulation or “race to the bottom” – the trend will be lowering the requirements for
the production rules of all MS

Limits to the internal market (derogations to the free movement of goods)

 Article 36 TFEU: Prohibitions or restrictions on imports, exports or goods in transit may be justified on
certain grounds, provided they are non-discriminatory or disguised restrictions on trade between
Member States (public moral, public policy, protection of health ...) + proportionality
 Mandatory requirements: in Cassis Dijon the CJEU recognized the possibility of invoking "mandatory
requirements" – a public interest not provided for in Article 36 TFEU (e.g. environmental protection,
protection of fundamental rights, public health, combating tax evasion) ...) + proportionality

Keck e Mithouard
 National measures on product requirements or characteristics (designation, form, size, weight, labeling,
packaging): ⚠ are considered MEE (Cases Foie Gras, Walter Rau, Cassis Dijon) and are prohibited unless
they could be justified according to Cassis Dijon.
 National measures restricting or prohibiting conditions of sale / selling arrangements (opening hours of
the shops where the products are sold, price controls, advertising restrictions) ⚠ are not MEE if they:
(paragraphs 15 and 16)
✔️Apply equally to all relevant traders in the territory of the Member State; and
✔️Effect similarly the marketing of national and imported products

Case Gourmet
 Reinterpretation of Keck’s formal criterion
The prohibition to advertise could harm more alcoholic beverages of MS (consumers are less familiar with
these drinks), as such, a national measure on the conditions of sale or selling arrangements can be MEE

National measures limiting or prohibiting conditions of sale are not MEE, if (paragraphs 21-25):
they do not prevent access of goods from other Member States or
hinder the access for imported goods to the market
Market access approach

! But even if is a MEE it could be justified by article 36.º of mandatory requirements + proportionality
(paragraphs 26-34 for public health)

Case commission vs. Italy (trailers)

 CJEU:
“Any other measure which hinders access of products originating in other member states to the market of a
member state is also covered by that concept” (paragraph 37)
Market access approach
o Even if they affect national and imported goods – could be a MEE

! But even if is a MEE it could be justified by article 36.º of mandatory/imperative requirements +

proportionality (paragraphs 59 to 69 for road safety)

2. Free Movement of Workers

Articles 45 to 48 TFEU
Notion of “work”
Levin, 1982 – a work activity has to be effective and genuine, not marginal and ancillary (Trojani, 2004:
even if the national is entitled to social assistance benefits).

Notion of “workers”
 Workers – nationals of the MS
 EU. Autonomous concept (Unger – 1964)
 Broad concept of worker (Lawrie Blum – 1986)

“Genuine and effective” criteria

Minimum income and working time:
 Part-time workers: Levin, 1982
 Social assistance/public funds: Kempf, 1986
Purpose of employment:
 Betray
 Trojani

The concept of workers also covers

Jobseekers:
 i. Nationals of MS seeking employment are entitled to lay down a reasonable period for this purpose –
they may stay in other MS for a maximum period of six months (Antonissen, 1991 and Directive
2004/38);
 ii. if after expiry of that period, the person concerned provides evidence that he is continuing to seek
employment and that he/she has genuine chances of being engaged cannot be required to leave the
territory of the host Member State (Commission v. Belgium, 1997, Case 344/95; article 7 no. 3 and 14
no. 4, b) of Directive 2004/38)
 iii. Union citizen who is temporarily unable to work as the result of an illness or accident (Article 7 no. 3
of Directive 2004/38);
 iv. Those who are in involuntary unemployment (Article 7 no. 3 b) Directive 2004/38);
 v. Those who are doing vocational training (Article 7 no. 3 d) of Directive 2004/38

Excluded from the concept of worker:

 employment in the public service: article 45 no. 4 TFEU and Commission vs. Belgium (149/79) see also
Lawrie Blum (paragraph 27)
o ex: justice, police, armed forces, …
 internal situations: where there is no cross-border element; but reverse discrimination is possible
(Saunders)
 workers from third-countries

The content and evolution of the free movement of persons

 regulation 1612/68: granted free movement and the right of residence to family members (even if they
are nationals of a third country) of the worker – spouse, descendants who are minors or dependents,
and dependent relatives in the ascending line

replaced by the Workers Regulation 492/11

 directive 2004/38 – citizens rights directive

Free movement of workers includes

 The right to accept offers of employment actually made – article 45 no. 3 a) and b) + regulation no.
492/2011
 The right to move freely, to stay and to remain in the territory of MS – article 45 no. 3 Directive 2004/38
 The prohibition of any discrimination on the ground of nationality as regards employment,
remuneration and other conditions of work and employment – article 45 no. 2 TFEU and Regulation
492/2011

The right to move and reside in another Member State

 Not exclusive to workers also applicable to EU citizens and members of their family – articles 4 no. 1
and 6 no. 2 Directive 2004/38
o Family – article 2 no. 2 directive 2004/38: spouse or partner, direct descendants (under the age of
21 who are dependents and those of the spouse or partner), the dependent direct relatives in the
ascending line (and those of the spouse or partner)
 Right to entry and exit – articles 4 and 5 directive 2004/38 – union citizens only required valid identify
card or passport
 Right of residence – article s 6 to 33 directive 2004/38

Right of residence
a) Up to 3 months – without any conditions other than holding a valid id card – article 6 directive
2004/38
b) More than 3 months – article 7 a) directive 2004/38
c) Five years and beyond – right of permanent residence – article 16 directive 2004/38

Rights of the members of the family

Article 23 directive 2004/38 – the family members of EU citizen, irrespective of nationality, are intitled:
 To move
 To reside
 To take up employment or self-employment

Equal treatment
Article 24 directive 2004/38 and workers regulation 492/2011
 Article 45 no 2 TFEU – employment, remuneration and other conditions of work and employment
 Direct discrimination: the migrant is, or may be, differently and usually less favorably treated on the
grounds of nationality (Bosman ~ 3+2 rule – and commission v. Italia 2001)
 Indirect discrimination: “although applicable irrespective of nationality, they affect essentially migrant
workers or the great majority of those affected are migrant workers” (O’Flynn) (Alluè 33/88/Scholz 94)
o Article 3 of the workers regulation 492/2011
o Groener, 1989
 Non-discriminatory measures which hinder or prevent access of other MS to the market may be
incompatible with article 45 TFEU
 Bosman (1995) paragraph 104 – these national measures are only acceptable if:
o They pursue a legitimate aim compatible with article 45 and were justified by “pressing reasons of
public interest”
o They are adequate to achieve the aimed goals
o Do not go beyond what is necessary for that purpose (proportionality)
 2.1. Limits to the application of free movement of workers

1. Third-country nationals do not benefit from free movement of workers

But – family members of a EU citizen who have the right of residence or the right of permanent residence
are entitled to take up employment or self-employment in the host MS (article 23 Directive 2004/38)

2. Limitations justified on grounds of public policy, public security and public health
Article 45 no. 3 TFEU and articles 27 and 29 directive 2004/38

3. Employment in the public service – article 45 no. 4 TFEU

 Commission/ Belgium (1980)
 Lawrie-Blum
 Communication from the commission of 18 March 1988: posts on justice, police, armed forces,
diplomacy, public prosecution, local governments and central banks
 Does not include public transport, water or electricity supply, health or education services

4. Purely internal situations

 No factor linking them with EU law
 But is enough to be concerned a citizen of a ME born in another MS (Rutili)

5. Imperative (pressing) reasons of public interest (Bosman)

Free movement of workers rules have direct effect (horizontal and vertical) – case: Bosman paragraph
84; Angonese; Walrave

3. European Citizenship

 Introduced in the treaty of Maastricht

 Articles 20-25 TFEU

Objectives
 Bring closer the peoples of Europe
 Strengthen the rights of EU citizens
 Contribute to legitimacy of The Union

Beneficiaries:
 Every person holding the nationality of a MS is a Eu citizen – article 20 no. 1 TFEU

Opinion of Advocate General La Pergola, Martinez Sala, case C-85/96, 1997

“That legislation [article 21 TFEU] was adopted by the Council to cover situations in which citizens did
not enjoy a right of residence under other provisions of Community law. (...)
The right to move and reside freely throughout the whole of the Union is enshrined in an act of primary
law and does not exist or cease to exist depending on whether or not it has been made subject to
limitations under other provisions of Community law, including secondary legislation. (...)

The freedom which we now find characterized as the right, not only to move, but also to reside in every
Member State: a primary right, in the sense that it appears as the first of the rights ascribed to
citizenship of the Union (...) Let us say that it is the fundamental legal status guaranteed to the citizen of
every Member State by the legal order of the Community and now of the Union.”
European citizenship
 Does not substitute the status of national citizen!

 Grzelcyk: citizenship of the union is intended to be the fundamental status of nationals of the member
states
 Rules nationality -> exclusive competence of MS, but: cases Chen, Rottman, Tjebbes
 Baumbast, C-413/99, 2002; Chen C, C-200/02, 2004: article 21 no. 1 TFEU produces direct effect

Right to move and reside freely within the territory of the MS

 articles 20 np. 2 a) + article 21 TFEU and directive 2004/38

political rights
 right to vote and stand as candidates in elections to the EP and in municipal elections in their MS of
residence, under the same conditions as nationals of that state: articles 20 no. 2 b) + 22 TFEU
 right to enjoy, in the territory of a third country in which the MS of which they are nationals is not
represented, the protection of the diplomatic and consular authorities of any MS on the same
conditions as the nationals of that state articles 20 no. 2 c) + 23 TFEU
 right to petition the EP, the right to apply to the European Ombudsman, and to address the institutions
and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same
language (articles 24; 227; 228 TFEU; 15 TFEU and 42 EU Charter of Fundamental Rights)

Right to move and reside in the EU: article 21 no. 1 TFEU accepts restrictions -> directive 2004/38
 Right to enter and exit
 Right to reside in another Member State
o Up to 3 months
o More thank 3 years
o More than 5 years (permanent residence)

 Derived right to reside of the parents of minor EU citizens (when the parents are TCNs) – Chen and
Zambrano;
 Refusal of the right to reside to the family members of EU citizens without cross border element (when
the family members are TCNs) – McCarthy and Dereci

Restrictions to free movement and on the right of entry and the right of residence
Article 21 TFEU + articles 27 to 29 directive 2004/38
 Public policy
 Public security
 Public health

EU citizenship & the prohibition of discrimination on the grounds of nationality

 Extension of the prohibition of any discrimination on grounds of nationality (article 18 TFEU) to
European citizens who are not economically active or economically not self- sufficient (Martinez Sala)
 Principle of non-discrimination regarding non-contributive social security benefits - Martinez Sala;
Collins; and Trojani)

The prohibition of discrimination on grounds of nationality (Articles 18 and 19 TFEU)

 I - Access to (non-contributive) social benefits
o Martinez Sala
o Trojani
o Collins
 II - Education
o D’Hoop
 III – Right to name
o Garcia Avello

Exceptions to the application of EU citizenship rules

 Purely internal situations – Uecker and Jacquet
o See also –Shirley McCarthy, case C-434/09
o Could lead to situations of reverse discrimination

But in Garcia Avello, C-148/02, 2003; and Zambrano - purely internal situation/ no exercise of the right to
freedom of movement and CJEU allowed the invocation of the EU citizenship rules

 Directive 2004/38: grounds of public policy, public security and public health

 Justified by imperative reasons of public/general interest

Garcia Avello, Shirley McCarthy, D'Hoop, Collins
o for objective reasons
o Principle of proportionality

National provisions could “constitute an obstacle to freedom of movement that could be justified only if it
was based on objective considerations and was proportionate to the legitimate aim pursued”

4. Freedom of establishment

Article 49 TFEU
 Right to take up and pursue activities as self-employed persons and to set up and manage undertakings,
in particular companies or firms (≠ free Movement of Workers)
 Gebhard (paragraph 25) - The concept of establishment requires the participation of the natural or legal
person, on a stable and continuous basis, in the economic life of a Member State other than his State of
origin
o  Freedom to provide services: the provision of services is temporary
 Even if the activity is immoral or illegal in some MS (case Jany)
 The activity should be effective and genuine

Beneficiaries
 Natural persons – nationals of a Member State (article 49 TFEU)
 Legal persons – companies or firms (article 54 TFEU)
o profit-making companies
o formed in accordance with the law of a Member State and
o having their registered office, central administration or principal place the Union shall
o developing an economic activity in a MS

Freedom of establishment
 Right of entry and of establishment in a MS
o Primary or principal right of establishment
o Secondary right of establishment
 Right to take up and pursue activities as self-employed persons and to set up and manage undertakings
in other Member State
 Right to leave the Member State of origin and establishment in other MS – Daily Mail & Centros
o Cadburry – activity has to be real and effective

Prohibition of discrimination applicable to:

1. The host Member State may not limit the exercise of the right of establishment to beneficiaries of
another Member State;
2. The Member State of origin may not limit the right of establishment in the other Member State -
Daily Mail

 Prohibition of non-discriminatory measures that represent obstacles to the access to the market:
o Gebhard: paragraph 37 “national measures liable to hinder or make less attractive the exercise of
fundamental freedoms”;
o Centros: paragraphs 27 – 38: broad interpretation of the norms of the right of establishment “not
sufficient to prove the existence of abuse or fraudulent conduct”;
o Caixa-Bank: “significantly” affect the access to the market (a narrow interpretation?)

Scope of the freedom of establishment

 Right to move and reside in the EU (Directive 2004/38);
 Right to exercise an economic activity:
o independent;
o for an indeterminate period of time;
o with a cross-border element;
o through the exercise of primary or secondary right of establishment
 Prohibition of discrimination on the grounds of nationality
o direct discrimination
o indirect discrimination
o article 49 paragraph 2 TFEU

Case law on the recognition of professional qualifications

 Thieffry: recognition: principle of equivalence (paras 19 - 27)
 Vlassopoulou: when there is no recognition by the MS? principle of mutual recognition of diplomas
(paras 16 -18)

The recognition of professional qualifications:

 Article 53 TFEU
Directive 2005/36/EC of 7 September 2005, on the recognition of professional qualifications (RPQ Directive)
establishes rules according to which a Member State which makes access to or pursuit of a regulated
profession in its territory contingent upon possession of specific professional qualifications (referred to
hereinafter as the host Member State) shall recognize professional qualifications obtained in one or more
other Member States (referred to hereinafter as the home Member State) and which allow the holder of
the said qualifications to pursue the same profession there, for access to and pursuit of that profession

4.1. The recognition of professional qualifications directive

 Tittle III – those wishing to establish themselves on a permanent basis

Right of Establishment
 The general system for the recognition of evidence of training – Chapter I - All professions not covered
by II and III – Article 13 (regulated ≠ not regulated profession) + (possibility of requiring compensatory
measures – Article 14);
 The system of automatic recognition of qualifications attested by professional experience in certain
industrial, craft and commercial sectors – Chapter II
 The system of automatic recognition of qualifications for specific professions (doctor, nurse, dentist, vet,
midwife, pharmacist and architect) – Chapter III

Direct effect of freedom of establishment rules

 Article 49.º TFEU has vertical direct effect (Reyners, 1974)
 Horizontal direct effect? Wouters + Viking Line

Exceptions to the right of establishment

 Public policy, public security and public health (article 52 TFEU + proportionality) – Concept article 27 et
seq. Directive 2004/38
 Activities connected to the exercise of official authority (51 TFEU)
o Reyners: THE EXCEPTION MUST BE RESTRICTED TO THOSE OF THE ACTIVITIES WHICH IN
THEMSELVES INVOLVE A DIRECT AND SPECIFIC CONNEXION WITH THE EXERCISE OF OFFICIAL
AUTHORITY”
o Commission vs. Belgium, C-47/08,
 Purely internal situations
 Restrictions justified by imperative/mandatory requirements of general interest (Gebhard; Caixa Bank;
Centros p. 34). If the measures are non-discriminatory.
+ Principle of proportionality

5. Freedom to provide services

Articles 56 and 57 TFEU
 Independent economic activity / self-employed ( Free Movement of Workers)
 Temporary activity, sporadic or irregular ( Right of Establishment)
 Schintzer and Gebhard: Freedom to provide services is subsidiary in relation to the right of
establishment, but no priority established in the case-law.

 Services  goods
the import of objects is not an end in itself and is intended to enable participation in the service
(Schindler);
“where a national measure affects both the FPS and the FMG, the Court will, in principle, examine it in
relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case,
one of those freedoms is entirely secondary in relation to the other and may be attached to it.” (Omega;
Schindler)

 provided for remuneration (Steymann)

include, inter alia: activities of commercial/business or industrial nature, handicraft activities and liberal
professions - economic nature activities (Schindler) “operated by private or public persons with a view to
profit”.
Although can be financed by the State (e.g. education - Humbel; health – Kohll; Watts)
 Activities can be amateur or professional – Deliège

 Cross border element: Article 56 TFEU and Debauve: provisions are not applicable to activities whose
relevant elements are confined within a single Member State

⚠Concept of services is an axiologically neutral' concept - Schindler and Grogan – even if the services are
illegal in some Member States

Scope of the Freedom to provide services

1. Service provider moves to a member state to provide it (Luisi and Carbone)
2. The recipient of a service who travels to receive it (Luisi and Carbone) (provided it is not for an
indefinite period – Sodemare)

Beneficiaries – who can rely on articles 56.º and 57.º of TFEU?

 Member states nationals – article 56
 Legal persons under – article 54 ex vie 62

 Luisi e Carbone:
1. The service provider who moves to provide it
2. The recipient of the service who travels to receive it

Direct effect – article 56.º TFEU

 Produces direct effect – Van Binsbergen
 Vertical – Alpine Investments
 Horizontal – Walrave and Koch; Donà; Deliège; Wouters

Prohibited Restrictions to the Freedom to Provide Services

 Prohibition of direct and indirect discrimination - on the basis of nationality or residence (Article 61
TFEU; Cowan; Van Binsbergen)
 Prohibition of non-discriminatory measures (measures which apply without distinction between
nationals and nationals of other MS and are not discriminatory) 'capable of preventing or hindering in
some way the activities of the provider established in another Member State' (Säger – paragraph 12)
o even if not discriminatory: “directly affects access to the markets in services in other MS and is thus
capable of hindering intra – Union trade services” (Alpine Inv.): market access approach.
o “liable to hinder or make less attractive the exercise of fundamental freedoms” (Gebhard paragraph
37)

Exceptions to the freedom to provide services

 Public policy, public security and public Health grounds (52 and 62 TFEU and Directive 2004/38 - Articles
27 et seq.)
 Activities linked to the exercise of public authority (articles 51 and 62 TFEU)
 Purely internal situations (article 56 TFEU and Debauve)
 imperative reasons relating to public interest (Säger; Alpine Invest.) – if measures indistinctly applicable
and which hinder the provision of services between Member States can be justified for these reasons
+ principle of proportionality

Directive 2006/123 - on services in the internal market

Establishes general provisions facilitating the exercise of the freedom of establishment for service providers
and the free movement of services, while maintaining a high quality of services.
 Article 16: national provisions may restrict freedom to provide services if duly justified by certain
principles
The recognition of Professional Qualifications Directive
Directive 2005/36: applies to all nationals wishing to pursue a “regulated profession” in a Member State
other than that in which they obtained their professional qualifications on either a self-employed or
employed basis. (articles 45, 49 and 56 TFEU)

Title II – those providing services on a temporary basis

Free Provision of Services: Member States shall not restrict, for any reason relating to professional
qualifications, the free provision of services in another Member State:
 Article 5 n.º 1 a) – If the service provider is legally established in a Member State for the purpose of
pursuing the same profession there
 Article 5 n.º 1 b) – If the provider moves and the profession is not regulated in the Member State of
origin, the host MS may require that the service provider have exercised the profession within two
years of the last ten. The condition requiring two years' pursuit shall not apply when either the
profession or the education and training leading to the profession is regulated