Summary part European law

Samenvatting EU-recht

Week 1

The EU is a supranational legal order: it extends above the interest of states.
The principles of direct effect and supremacy distinguish EU law from ordinary international
law.

Development of primary law
 1951: European Coal and Steel Community (ECSC)  this was regulated collectively
because steel and coal were the things you need for weapons and tanks.
 1957: European Economic Community (EEC) and the European Atomic Energy
Community (Euratom)  instruction of an internal market.
 1986: Single European Act
 1992: Maastricht Treaty, Establishment of the European Union with three pillars
 1997: Treaty of Amsterdam
 2002: Treaty of Nice
 2004: Failed Constitutional Treaty
 2007: Lisbon Treaty

The treaties are a living project, it changes, it is dynamic. The endpoint is unknown.

Current state of affairs: Treaties




Basis is EU-verdrag (TEU) met zijn waardes, zit de basis in van de hele EU. Dan daarom zit
een laag met de functionaliteiten van het werkingsverdrag (TFEU): hoe wordt omgegaan met
beleid, interne markt. Dat alles wordt omarmd door het EU-Handvest.
Dat alles bij elkaar is de EU.

 Treaty on the Functioning of the European Union (TFEU)  about the way you should be
exposed by this treaty is by the internal market.
 Treaty on European Union (TEU)  *previously the Maastricht-Treaty previously the Maastricht-Treaty  Values on
which the EU is founded.
 Eurotom
These are ‘framework treaties’ and the hence are further specified by secondary legislation
(directives and regulations) which exist in every conceivable area.

De interpretation of the treaty leaves freedom for the court.
EU law is as much law as our national law. If you have 2 laws in conflict (EU-law and national
law), EU law always prevails. It always wins in case of clash = precedence of EU-law.

Secondary EU Law: article 288 TFEU
 ‘Regulation’: (verordening) ‘shall have general application. It shall be binding in its
entirety and directly applicable in all Member States’  a regulation is a law adopted in
Brussel that comes *previously the Maastricht-Treaty bang*previously the Maastricht-Treaty part of Dutch law. Regulations are extremely powerful tools.
Binding in every respect, both in substance, but all the words are the same in all Member

, States. If you want to be absolutely sure that something is identical in all the Member
States.
 ‘Directive’: (richtlijn) ‘binding, as to the result to be achieved, upon each Member State to
which it is addressed, but shall leave to the national authorities the choice of form and
methods’  binding, but before it reaches you and me it normally should be transposed
in national law. The law needs to be adopted. It needs to be transposed. Most EU law are
directives. You can decide how you can make it happen, as long as you make it happen.
It is handy. No sorts of new stuff. Member States have to transpose or implement these
rules into their national law.
 ‘Decision’: ‘binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them’  the same as directive, but doesn’t address a
Member State, but an individual, like a company. For them it is directly applicable.
 Recommendations, opinions: ‘have no binding forces’ (soft law).  not legally binding.




The EU is a sui generis autonomous legal order
List of what is unique and powerful about EU-law
1. Transfer of competences  transfer one of my powers to you forever, unless I get out
(sovereignty).
2. Legal personality  complex, it can do the staff we can do
3. Independent Institutions  institutions that are not composed of Member States or
agents of the Member States. Institutions have 1 interest in mind: the interest of Europe.
4. Unique decision-making procedures  if they sit together with 28 member states and
there is a majority then the minority may be outvoted.
Stel: Duitsland als groot land wil iets niet, maar de andere 27 willen het wel, dan gebeurd
het alsnog.
5. Unique sources  the EU can adopt regulations. Regulations are the same as Dutch
law, the only difference is that they are adopted in Brussels. It can be by a majority. The
Dutch parliament doesn’t get involved. That is unique.
Bijv. om te zorgen dat alle lidstaten hetzelfde doen.
6. Compulsory (= dwingend) jurisdiction of the CJEU
7. Unique methods of interpretation
Je moet de woorden interpreteren in de zin van een statisch toekomstige visie.
Je hoort kritiek dat de rechter de wet opvat op een hele andere manier dan de wetgever
heeft neergeschreven. Maar de rechter heeft hier dus een goede reden voor.
8. Unique position of individuals  if there is an EU-law saying something, but Member
States refuse to live up to its promises, you can go to court directly.

The EU and the rule of law
There are different relations in the EU:
EU – Member States
Member States – Member States
EU – Citizens
EU – EU

,All those relationships are governed by law, and we can actually enforce those relationships.
These relations are governed by primary law, secondary law and case law of the CJEU.

Institutions of the EU
The Union is not based on a strict separation of functions between its institutions but follows
a ‘checks and balances’ version of the separation-of-powers principle. The various Union
institutions share in the exercise of various governmental functions.

The Commission: (Europese Commissie)
 28 independent members – 1 for each member state – the Commission’s term of office is
five years.
 They only have a European interest and that makes them independent.
 The Commission President helps in the selection of ‘his’ institution. The President has 3
powers, identified in article 17(6) TEU.
Functions:
1. ‘Promote the general interests of the Union’ – therefore the Commission is given the
(almost) exclusive right to formally propose legislative bills. The right of initiative extends
to (multi)annual programming of the Union (agenda-setter) and embraces the power to
make proposals for law reform.
2. ‘Ensure the application’ of the Treaties: it may be entitled to apply the Treaties by
adopting secondary legislation. In some areas it may also be granted the executive
power to apply the Treaties itself.
 Act as guardian of the Union: it shall ‘oversee the application’ of European law.
Watchdog: supervision of Member States  Act as ‘police’ and ‘prosecutor’ of the Union.
The Commission takes a state to court. The EC is an enforcement agency and do it all
the time.
Staten kunnen elkaar ook voor de rechter dagen maar doen dat eigenlijk nooit, want ze
willen geen ruzie maken met de buren.
States rarely dare to take other states to the CJEU. And the commission is doing it all the
time.

The Council of Ministers: (Raad van Ministers)
 One specialized minister per member state, article 16 (2): pursues national interest! 
within the Council, each national minister represents the interests of ‘his’ Member State.
These interest may vary depending on the subject matter decided in the Council. And
depending on the subject matter at issue, there are different Council configurations. And
for each configuration, a different national minister will be representing ‘his’ State. Thus,
practically there are ten different Councils.
 ‘The Council consists 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.’
 These Ministers are elected by their own governments, so direct democratic legitimacy.
 Rotating president, apart from foreign affairs  for 6 months one member state gets to
be the boss of the Council of Ministers.
 Functions: exercise legislative and budgetary functions with the European Parliament.
And it shall carry out policy-making and coordinating functions as laid down in the
Treaties.
 Decisive role in CFSP  violence the CFSP comes.

The European Council (de Europese Raad)
!! Don’t mix it up with the Council of Ministers!!
Where the bosses of the bosses meet.
 Exercises political leadership
 Body consisting of Heads of State and Government and president of the Commission
 Permanent President since Lisbon  Donald Tusk (Polish)
 Crucial role in cases when Treaty is to be changed – if something big happens.

, The European Parliament (Europees Parlement)
 750 representatives of EU citizens, political groupings
3 powers:
1. Legislature: together with Council of Ministers (‘ordinary legislative procedure’. Drafts
budget, also together with the Council of Ministers). Primary power of the European
Parliament is making European laws. The Parliament has to give its consent before the
Council can adopt European legislation.
2. Budgetary powers: it establishes the Union’s annual budget.
3. Supervisory powers: holding the executive to account (= de leidinggevende tot
verantwoording reopen). It involves the power to debate, question and investigate.
 It is directly elected by the European citizens – digressively proportional system: that
means a Luxembourg citizen has ten times more voting power than a British, French or
German citizen (meer stemkracht omdat je minder hebt om uit te kiezen).
 Democratic control of all EU activities
 Can seize the Court of Justice! – go to court of Justice to complain about breaches of
EU-law.

The European Court: The Court of Justice of the European Union (Hof van Justitie)
 In Luxembourg
 ECJ (and AG’s), the General Court  AG give advice before the Court makes a
judgement.
 Task: ‘Ensures respect in the interpretation and application of EU law’, art. 19 (1)
 Judgements collegial  we don’t have dissenting opinions, you get one judgement.

Other important institutions
 High Representative of Foreign Affairs
 European Central Bank
 Court of Auditors
 Ombudsman (elected by the European Parliament)
 Agencies – 25 agencies and they do interesting work. Whole network of job opportunities.
 EcoSoc
 Committee of the Regions

Legislators of the EU consists of the European Parliament and the European Council of
Ministers.
Er is sprake van democratische legitimiteit, omdat wij zelf kunnen stemmen voor het
Europees Parlement. En voor de Council of Ministers geldt dat ze zijn verkozen door eigen
parlement.

The EU and the Member States
 Member States are ‘Guardians of the Treaty’  nothing in the EU can happen without the
Member States doing it. Because all the EU does is legislate. Without Member States the
EU will collapse.
 The Member States need to implement, apply and enforce EU law.

Principle of Loyalty, article 4(3) TEU
 You must sincerely cooperate to this project. You have to take all the measures to make
the EU the success.

Het is als het ware de bedoeling dat je als staat alles op alles zet om te zorgen dat de
rechten en plichten uit het verdrag of die voortvloeien uit een van de instanties van de EU
worden nageleefd.