Year 2 Block 1
European Law
Week 1
LECTURE ONE
Treaties:
• TEU (constitutional rules and CFSP)
• TFEU (makes constitutional rules work, contains actual EU policies)
• EU charter of fundamental rights
• Protocols
European Law:
• Primary law (treaties, protocols)
• Secondary law (Art 249 EC)
• Unwritten law (ex general legal principles (no retroactive effect, legal certainty, etc))
• Case law of CJEU
=> Relationship with International law: a species of int law that has gone beyond but it
concerns both states and individuals. Principle of reciprocity not applicable in EU law.
Important cases:
• Van Gend and Loos
- Could individuals rely on provisions of the treaty?
- Yes;
1. democratic participation ,
2. existence of reference of preliminary ruling Art 267 TFEU
- “The Community constitutes a new legal order of international law”
- Characteristics: autonomy, legal order based on rule of law and on respect for
fundamental human rights (FR)
- Effects: supremacy, duty of sincere and loyal cooperation (MS must take all
necessary steps to ensure objectives and abstain from undermining/preventing EU
aims)
• Costa v Enel
- Last instance jurisdiction of EU => EU law is its own legal system standing above and
apart from that of the MS national law
- If theres conflict between EU and national law, EU law is followed! (or else it would
destroy autonomous character)
, Year 2 Block 1
- National courts are bound to comply and apply EU law = Limitation of MS sovereignty
- Why supremacy is necessary:
- Necessary for uniform application of law
- Necessary for effectiveness
- Pragmatic an purposive interpretation of Treaty law
• 90&91/63 Commission v Luxembourg and Belgium
• 232/78 Commission v France
=> EU law is constantly evolving, as does the interpretation!
Fundamental Principles:
• Art 2 TEU: Union founded on rule of law and respect for human rights
- Rule of Law
- All decisions of public authorities are subject to review by independent courts
- All acts of institutions/bodies/etc intended to have legal effect will be subject to
review (doesn’t mean everyone has standing)
- Case 294/83 Les Verts: neither its MS nor its institutions can avoid a review of the
question whether the measures adopted by them are in conformity with the Treaty
- Case Kadi:
- CFI: UN charter prevails over EU law
- ECJ: An international agreement cannot affect the allocation of powers by
the Treaties (para 282) and respect for human rights is a condition of the
lawfulness of Union acts (incompatability with HR Is unacceptable) (para
284)
• Protection of Fundamental Rights
- Supremacy
- Van Gend & Loos: its up to national constitutional law to decide on whether int treaty
prevails over national law
- ECJ: states have limited their sovereign rights
- Costa v Enel: because of its special law, EU law cannot be deprived of its character;
its unthinkable that the law of a MS would have priority over EU law in the event of
conflict
- When supreme
- Case Internatinoale Handelsgesellschaft: supremacy principle against alll national law
- Case Simmenthal: supremacy applicable for legislation that pre and post-dates EU
law
, Year 2 Block 1
• History of EU integration:
2. Schuman Plan (lets work together to try and prevent war; cooperation rather than
Versailles approach; create a supranational authority that has the power to regulate
matters in coal and steel industry)
3. Spaak Report: suggests establishment of founding treaties
4. Founding treaties (EEC and Euratom; Rome) = 6 MS
5. Single European Act
6. Delors Report
7. Treaty on EU
8. Treaty of Amsterdam
9. Traty of Nice
10. Euro introduced
11. Treaty on Constitution for Europe
12. Treaty of Lisbon (abolition of three pillar structure)
• EU institutions:
- Parliament
- Commission
- Council
- European Council
- Etc
- Court of Justice
- Court of Auditors
- EU Central bank
- Economic and Social committee
• Principle of Conferral (art 2-6 TFEU)
- No legal basis = no lawful action ; has the body concerned acted within the limits of its
powers?
1. Exclusive Competences: Art 3 (ex. Customs union) => only the EU has power there
(MS has no power)
2. Shared Competences: MS free to legislate (in compliance with EU law) as long as EU
has not already done so (based on sincere cooperation; MS has to respect EU aims/
funcitoning)
3. Support, Coordinate, Supplement
- CFSP: art 24 TFEU; MS domain
, Year 2 Block 1
- Qualified majority voting prevents MS holding __ ransom
• Harmonisation
- Aim: reduce/remove disparities between national law of the MS
- Types:
1. Total: no room for diverging national measures; union totally occupies field
2. Partial: some aspects are harmonised, but others are left uo to the MS
3. Minimum: seek to achieve a minimum level of harmonisation
4. Optional: (no longer used)
- Exhaustiveness: focus on room for MS OUTSIDE the scope of the Union measure
concerned (if exhaustive there’s no room; for derogations)
- Total/Partial/Minimum: what room is left for MS WITHIN the scope of he union measure
concerned (intensity)
- Negative: case law
- Positive: legislative action
- Institutional principles: conferral, subsidiarity and subsidiarity procedure,
proportionality
- Substantive EU law: general principles, FR (CHARTER), primary EU law
• Conferral
- Links policy field to specific objective (Art 3-6 TFEU)
- Determination of legal basis
- Determines content of EU measure (substantive effect; Tobacco Advertising Case)
- Determines decision making procedure (procedural effect; European Parliament v
Council Case)
• Subsidiarity
- EU should act where union level is more appropriate and can better achieve desired effect
compared to MS action (ex. In environment)
- Transboundary nature of the problem
- Economies of scale (cheaper and more effective)
- Subsidiarity procedure (protocol 2; see book)
Choosing Legal Basis
• Principle of attribution (conferral of powers): competences are voluntarily conferred by MS to EU
• Legal Basis = authorises the union to legislate in a given field using a certain procedure
1. Specific legal basis: for specific policy areas (ex Art 46 TFEU)
European Law
Week 1
LECTURE ONE
Treaties:
• TEU (constitutional rules and CFSP)
• TFEU (makes constitutional rules work, contains actual EU policies)
• EU charter of fundamental rights
• Protocols
European Law:
• Primary law (treaties, protocols)
• Secondary law (Art 249 EC)
• Unwritten law (ex general legal principles (no retroactive effect, legal certainty, etc))
• Case law of CJEU
=> Relationship with International law: a species of int law that has gone beyond but it
concerns both states and individuals. Principle of reciprocity not applicable in EU law.
Important cases:
• Van Gend and Loos
- Could individuals rely on provisions of the treaty?
- Yes;
1. democratic participation ,
2. existence of reference of preliminary ruling Art 267 TFEU
- “The Community constitutes a new legal order of international law”
- Characteristics: autonomy, legal order based on rule of law and on respect for
fundamental human rights (FR)
- Effects: supremacy, duty of sincere and loyal cooperation (MS must take all
necessary steps to ensure objectives and abstain from undermining/preventing EU
aims)
• Costa v Enel
- Last instance jurisdiction of EU => EU law is its own legal system standing above and
apart from that of the MS national law
- If theres conflict between EU and national law, EU law is followed! (or else it would
destroy autonomous character)
, Year 2 Block 1
- National courts are bound to comply and apply EU law = Limitation of MS sovereignty
- Why supremacy is necessary:
- Necessary for uniform application of law
- Necessary for effectiveness
- Pragmatic an purposive interpretation of Treaty law
• 90&91/63 Commission v Luxembourg and Belgium
• 232/78 Commission v France
=> EU law is constantly evolving, as does the interpretation!
Fundamental Principles:
• Art 2 TEU: Union founded on rule of law and respect for human rights
- Rule of Law
- All decisions of public authorities are subject to review by independent courts
- All acts of institutions/bodies/etc intended to have legal effect will be subject to
review (doesn’t mean everyone has standing)
- Case 294/83 Les Verts: neither its MS nor its institutions can avoid a review of the
question whether the measures adopted by them are in conformity with the Treaty
- Case Kadi:
- CFI: UN charter prevails over EU law
- ECJ: An international agreement cannot affect the allocation of powers by
the Treaties (para 282) and respect for human rights is a condition of the
lawfulness of Union acts (incompatability with HR Is unacceptable) (para
284)
• Protection of Fundamental Rights
- Supremacy
- Van Gend & Loos: its up to national constitutional law to decide on whether int treaty
prevails over national law
- ECJ: states have limited their sovereign rights
- Costa v Enel: because of its special law, EU law cannot be deprived of its character;
its unthinkable that the law of a MS would have priority over EU law in the event of
conflict
- When supreme
- Case Internatinoale Handelsgesellschaft: supremacy principle against alll national law
- Case Simmenthal: supremacy applicable for legislation that pre and post-dates EU
law
, Year 2 Block 1
• History of EU integration:
2. Schuman Plan (lets work together to try and prevent war; cooperation rather than
Versailles approach; create a supranational authority that has the power to regulate
matters in coal and steel industry)
3. Spaak Report: suggests establishment of founding treaties
4. Founding treaties (EEC and Euratom; Rome) = 6 MS
5. Single European Act
6. Delors Report
7. Treaty on EU
8. Treaty of Amsterdam
9. Traty of Nice
10. Euro introduced
11. Treaty on Constitution for Europe
12. Treaty of Lisbon (abolition of three pillar structure)
• EU institutions:
- Parliament
- Commission
- Council
- European Council
- Etc
- Court of Justice
- Court of Auditors
- EU Central bank
- Economic and Social committee
• Principle of Conferral (art 2-6 TFEU)
- No legal basis = no lawful action ; has the body concerned acted within the limits of its
powers?
1. Exclusive Competences: Art 3 (ex. Customs union) => only the EU has power there
(MS has no power)
2. Shared Competences: MS free to legislate (in compliance with EU law) as long as EU
has not already done so (based on sincere cooperation; MS has to respect EU aims/
funcitoning)
3. Support, Coordinate, Supplement
- CFSP: art 24 TFEU; MS domain
, Year 2 Block 1
- Qualified majority voting prevents MS holding __ ransom
• Harmonisation
- Aim: reduce/remove disparities between national law of the MS
- Types:
1. Total: no room for diverging national measures; union totally occupies field
2. Partial: some aspects are harmonised, but others are left uo to the MS
3. Minimum: seek to achieve a minimum level of harmonisation
4. Optional: (no longer used)
- Exhaustiveness: focus on room for MS OUTSIDE the scope of the Union measure
concerned (if exhaustive there’s no room; for derogations)
- Total/Partial/Minimum: what room is left for MS WITHIN the scope of he union measure
concerned (intensity)
- Negative: case law
- Positive: legislative action
- Institutional principles: conferral, subsidiarity and subsidiarity procedure,
proportionality
- Substantive EU law: general principles, FR (CHARTER), primary EU law
• Conferral
- Links policy field to specific objective (Art 3-6 TFEU)
- Determination of legal basis
- Determines content of EU measure (substantive effect; Tobacco Advertising Case)
- Determines decision making procedure (procedural effect; European Parliament v
Council Case)
• Subsidiarity
- EU should act where union level is more appropriate and can better achieve desired effect
compared to MS action (ex. In environment)
- Transboundary nature of the problem
- Economies of scale (cheaper and more effective)
- Subsidiarity procedure (protocol 2; see book)
Choosing Legal Basis
• Principle of attribution (conferral of powers): competences are voluntarily conferred by MS to EU
• Legal Basis = authorises the union to legislate in a given field using a certain procedure
1. Specific legal basis: for specific policy areas (ex Art 46 TFEU)
