Theorie EU Law
Les 1: Chapters 1, 5 & 6
Chapter 1: Union Institutions
Article 13:
European Parliament
o With the council a chamber of union legislature.
o Directly elected by the European citizens.
o Not exceed 751 members, plus the president.
o Minimum van 6 members; degressively proportional
o Not more than 96 seats
o The European council shall adopt by unanimity, on the initiative of the
European parliament and with its consent, a decision establishing the
composition of the European parliament, respecting the principles.
o Terms of 5 years by direct universal suffrage in a free and secret ballot.
(geheime verkiezingen).
b) parliamentary powers
Article 14: The European parliament shall, jointly with the council, exercise legislative and
budgetary powers. It shall exercise functions of political control and consultation as laid down
in the treaties. Its shall elect the president of the commission.
Making European laws; parliament may informally purpose new legislation.
Budgetary powers: on the expenditure side of the national budgets.
Power to debate: they receive the general report on the activities of the union from
the commission, which it shall discuss in open session.
Power to question: the commission shall reply orally or in writing to questions put to
by the Parliament.
Power to investigate: contraventions or maladministration in the implementation of
European law.
Has a ombudsman which shall be empowered to receive complaints.
Can elect a president of the commission, by majority art. 17 TEU (semi-
parliamentary democracy)
When the trust is lost in the Commission, or in one of the members the parliament
mat vote a motion of censure.
Appointment of other European officers; courts of auditors, ECB and the ombudsman.
European Council
o Decides on the union general policy choices.
o consist of the Heads of State or Government of the
Member States, together with its President and the President of the
Commission” => art. 15 TEU
“shall define the general political directions and (...) shall not exercise
legislative functions
Council
o 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.
, o The council has different configurations which all have there own scope and
tasks.
o It has also have committees; a committee of permanent representatives of the
governments of the member states shall be responsible for preparing the work
of the council.
o Will physically meet in Brussel to decide.
Discussing legislation must be in public.
o A majority of the members of the council are required to enable the council to
vote.
Unaminity voting requires the consent of all national ministers and is
provided in the treaties for sensitive political questions.
Formal majority voting, a number of votes that correlated with the size
of the population; degressively proportional.
Article 16 (4): A qualified majority shall be defined as at least
55% of the members of the council, compromising at least
fifteen of them and representing member states comprising at
least 65% of the population. A blocking minority must include at
least four Council members, failing which the qualified majority
shall be deemed attained.
o Joannina Compromise: The commission is under a obligation to continue
deliberations, where one-quarter of the states representing one-fifth of the
union population oppose a decision.
D) functions:
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.
The European commission
o Consists one national from each member state.
On the grounds of their general competence and European
commitment from persons whose independence is beyond doubt.
There are independent.
o Five years.
o Election takes place by: adopting a list of candidate by the council and
consent by the parliament.
Powers of the president: art. 17 (6)
Law down guidelines within which the commission is to work;
Decide on the internal organization of the commission, ensuring that it acts
consistently, efficiently and as a collegiate body;
Appoint vice presidents;
Shall represent the commission (art. 17 (6)
Functions; art 17:
Shall promote the general interest of the union and take appropriate initiatives to that
end: union acts may only be adopted on the basis op a commission proposal, except
where the treaties provide otherwise.
Ensure the application of the treaties.
Execute the budget and manage programmes.
Exercise coordinating, executive and management functions
Ensure the union’s external representation.
, Initiate the union’s annual and multiannual programming with a view to achieving
interinstitutional agreements.
The court of justice
o Court of justice, general court an specialized courts.
General court: shall have jurisdiction to hear and determine actions or
proceedings brought against decisions of the specialized courts.
o The highest court is the court of justice.
Consist one judge per member state
Independent
For six years
Decide there own president.
Assisted by the advocate General: by a reasoned submissions
Powers: art. 19 (3)
Rule on actions brought by a member state, an institution or a natural or legal person;
Give preliminary rulings, at the request of courts or tribunals of the member states, on
the interpretation of union law or the validity of acts adopted by the institutions
Rule in other cases provides for in the treaties.
The european central bank
The court of auditors
Chapter 5; Direct effect
Monism: International law part of the domestic legal order.
Dualism: international law apart from the domestic law. It has to be incorporated.
The union insists on a monistic relationship between European and the national law.
Secondary law contains: art. 288 TFEU:
To exercise the union competences, the institutions shall adopt regulations,
directives, decisions, recommendations and opinions.
A regulations shall have general application. It shall be binding in its entirety and
directly applicable in all member states.
A directive shall be binding, as to the result to be achieved, upon each member state
to which it is addressed, but shall leave to the national authorities to choice of form
and methods.
A decisions shall be binding in its entirety. A decision which specifies those to whom it
is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
Van gend and loos:
The union implies that this treaty is more than a agreement which merely creates mutual
obligations between the contracting parties. The union constitutes a new legal order of
international law for the benefit of which states have limited their sovereign rights, albeit
within the limited fiels, and the subjects of which comprise not only member states, but also
their nationals. Independently of the legislation of member states, Eu law therefore not only
imposes obligations on individuals but is also intended to confer upon them rights which
become part of their legal heritage.
The direct applicability of eu law allowed the union to develop two foundational doctrines of
the eu legal order:
, 1. The doctrine of direct effect
a. Direct effect thus relates to the executive and judicial branches, not the
legislative.
2. Doctrine of supremacy or primacy
5.2 Direct effect of primary law
It would be directly applicable in the national legal orders if:
The treaty contains a clear and unconditional rule.
o Automatic prohibition; it should not depend on a subsequent positive
legislation by the European union.
o The prohibition should ideally be absolute: not qualified by any reservation on
the part of the states.
But today a provision has direct effect when it is capable of being applied by a national court.
direct effect does not depend on a European norm granting a subjective right; but on the
contrary; the subjective right is a result of a directly effective norm.
b) vertical and horizontal effect
Individual against a state; vertical effect
Parties against parties horizontal effect.
5.3 Direct effect of secondary law; directives
Art. 228 (3) TFEU: A directive shall be binding, as to the result to be achieved, upon member
states to which it is addressed, but shall leave to the national authorities the choice of form
and methods.
The directives could under certain circumstances have direct effect and thus entitle
individuals to have rights.
Direct effect would only arise after a member state had failed to properly implement
the directive by the end of the period prescribed or where it fails to implement the
directive correctly (temporal) and then only in relation to the state authorities
themselves (normative; no-horizontal effect rule).
Arguments in van Duyn v Home Office’
To execlude direct effect would be incompatible with the binding effects of directives.
Their useful effect would be weakened if individuals could not invoke them.
Since the preliminary ruling did not exclude directives, the latter must be capable of
being invoked.
A member state may not rely own its own failure. Estoppel argument
No-horizontal effect rule: Marshall; a directive is binding in relation to each member state to
which it is addressed.
Wide ambit of vertical effect:
The court has giving extremely extensive definitions to what constitutes the State, and what
constitutes public actions:
Foster
Les 1: Chapters 1, 5 & 6
Chapter 1: Union Institutions
Article 13:
European Parliament
o With the council a chamber of union legislature.
o Directly elected by the European citizens.
o Not exceed 751 members, plus the president.
o Minimum van 6 members; degressively proportional
o Not more than 96 seats
o The European council shall adopt by unanimity, on the initiative of the
European parliament and with its consent, a decision establishing the
composition of the European parliament, respecting the principles.
o Terms of 5 years by direct universal suffrage in a free and secret ballot.
(geheime verkiezingen).
b) parliamentary powers
Article 14: The European parliament shall, jointly with the council, exercise legislative and
budgetary powers. It shall exercise functions of political control and consultation as laid down
in the treaties. Its shall elect the president of the commission.
Making European laws; parliament may informally purpose new legislation.
Budgetary powers: on the expenditure side of the national budgets.
Power to debate: they receive the general report on the activities of the union from
the commission, which it shall discuss in open session.
Power to question: the commission shall reply orally or in writing to questions put to
by the Parliament.
Power to investigate: contraventions or maladministration in the implementation of
European law.
Has a ombudsman which shall be empowered to receive complaints.
Can elect a president of the commission, by majority art. 17 TEU (semi-
parliamentary democracy)
When the trust is lost in the Commission, or in one of the members the parliament
mat vote a motion of censure.
Appointment of other European officers; courts of auditors, ECB and the ombudsman.
European Council
o Decides on the union general policy choices.
o consist of the Heads of State or Government of the
Member States, together with its President and the President of the
Commission” => art. 15 TEU
“shall define the general political directions and (...) shall not exercise
legislative functions
Council
o 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.
, o The council has different configurations which all have there own scope and
tasks.
o It has also have committees; a committee of permanent representatives of the
governments of the member states shall be responsible for preparing the work
of the council.
o Will physically meet in Brussel to decide.
Discussing legislation must be in public.
o A majority of the members of the council are required to enable the council to
vote.
Unaminity voting requires the consent of all national ministers and is
provided in the treaties for sensitive political questions.
Formal majority voting, a number of votes that correlated with the size
of the population; degressively proportional.
Article 16 (4): A qualified majority shall be defined as at least
55% of the members of the council, compromising at least
fifteen of them and representing member states comprising at
least 65% of the population. A blocking minority must include at
least four Council members, failing which the qualified majority
shall be deemed attained.
o Joannina Compromise: The commission is under a obligation to continue
deliberations, where one-quarter of the states representing one-fifth of the
union population oppose a decision.
D) functions:
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.
The European commission
o Consists one national from each member state.
On the grounds of their general competence and European
commitment from persons whose independence is beyond doubt.
There are independent.
o Five years.
o Election takes place by: adopting a list of candidate by the council and
consent by the parliament.
Powers of the president: art. 17 (6)
Law down guidelines within which the commission is to work;
Decide on the internal organization of the commission, ensuring that it acts
consistently, efficiently and as a collegiate body;
Appoint vice presidents;
Shall represent the commission (art. 17 (6)
Functions; art 17:
Shall promote the general interest of the union and take appropriate initiatives to that
end: union acts may only be adopted on the basis op a commission proposal, except
where the treaties provide otherwise.
Ensure the application of the treaties.
Execute the budget and manage programmes.
Exercise coordinating, executive and management functions
Ensure the union’s external representation.
, Initiate the union’s annual and multiannual programming with a view to achieving
interinstitutional agreements.
The court of justice
o Court of justice, general court an specialized courts.
General court: shall have jurisdiction to hear and determine actions or
proceedings brought against decisions of the specialized courts.
o The highest court is the court of justice.
Consist one judge per member state
Independent
For six years
Decide there own president.
Assisted by the advocate General: by a reasoned submissions
Powers: art. 19 (3)
Rule on actions brought by a member state, an institution or a natural or legal person;
Give preliminary rulings, at the request of courts or tribunals of the member states, on
the interpretation of union law or the validity of acts adopted by the institutions
Rule in other cases provides for in the treaties.
The european central bank
The court of auditors
Chapter 5; Direct effect
Monism: International law part of the domestic legal order.
Dualism: international law apart from the domestic law. It has to be incorporated.
The union insists on a monistic relationship between European and the national law.
Secondary law contains: art. 288 TFEU:
To exercise the union competences, the institutions shall adopt regulations,
directives, decisions, recommendations and opinions.
A regulations shall have general application. It shall be binding in its entirety and
directly applicable in all member states.
A directive shall be binding, as to the result to be achieved, upon each member state
to which it is addressed, but shall leave to the national authorities to choice of form
and methods.
A decisions shall be binding in its entirety. A decision which specifies those to whom it
is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
Van gend and loos:
The union implies that this treaty is more than a agreement which merely creates mutual
obligations between the contracting parties. The union constitutes a new legal order of
international law for the benefit of which states have limited their sovereign rights, albeit
within the limited fiels, and the subjects of which comprise not only member states, but also
their nationals. Independently of the legislation of member states, Eu law therefore not only
imposes obligations on individuals but is also intended to confer upon them rights which
become part of their legal heritage.
The direct applicability of eu law allowed the union to develop two foundational doctrines of
the eu legal order:
, 1. The doctrine of direct effect
a. Direct effect thus relates to the executive and judicial branches, not the
legislative.
2. Doctrine of supremacy or primacy
5.2 Direct effect of primary law
It would be directly applicable in the national legal orders if:
The treaty contains a clear and unconditional rule.
o Automatic prohibition; it should not depend on a subsequent positive
legislation by the European union.
o The prohibition should ideally be absolute: not qualified by any reservation on
the part of the states.
But today a provision has direct effect when it is capable of being applied by a national court.
direct effect does not depend on a European norm granting a subjective right; but on the
contrary; the subjective right is a result of a directly effective norm.
b) vertical and horizontal effect
Individual against a state; vertical effect
Parties against parties horizontal effect.
5.3 Direct effect of secondary law; directives
Art. 228 (3) TFEU: A directive shall be binding, as to the result to be achieved, upon member
states to which it is addressed, but shall leave to the national authorities the choice of form
and methods.
The directives could under certain circumstances have direct effect and thus entitle
individuals to have rights.
Direct effect would only arise after a member state had failed to properly implement
the directive by the end of the period prescribed or where it fails to implement the
directive correctly (temporal) and then only in relation to the state authorities
themselves (normative; no-horizontal effect rule).
Arguments in van Duyn v Home Office’
To execlude direct effect would be incompatible with the binding effects of directives.
Their useful effect would be weakened if individuals could not invoke them.
Since the preliminary ruling did not exclude directives, the latter must be capable of
being invoked.
A member state may not rely own its own failure. Estoppel argument
No-horizontal effect rule: Marshall; a directive is binding in relation to each member state to
which it is addressed.
Wide ambit of vertical effect:
The court has giving extremely extensive definitions to what constitutes the State, and what
constitutes public actions:
Foster
