Week 1 European Law introduction
- Follow the news;
- Know the member states of the EU and the capitals.
Substantive Part of the Lecture
EU Law Sources
Treaties (primary law):
- TUE
- TFEU
- CFR
Constitution has many norms already. The Dutch constitution is much more celebrated. A lot
of norms are found in the treaties while similar norms are on national level are found in
legislation.
- Rules of competition law are found in the TFEU, norms on nature are also found on
treaty level.
The interaction between the first and the second level is an implementation of the treaty
norms. Legislation is also implemented of the treaty objectives. If treaties say that there
should be further elaboration on the norm of competition, legislation is made with the
elaboration of implementation;
Implementation: legislation also come in if there is a problem with such nature-norms. The
treaty gives the opportunity to make legislation about this, but the treaty itself remains vague.
The treaties are implemented in the legislation (regulations and directives). There is an
dynamic interaction between the treaty level, primary and secondary level is an characteristic
of EU law. The further elaboration is done by the legislator.
Legislation (secondary law)
Is an implementation of the treaty rules (primary law). The legislator gives steps in by for
example obstacles to make the law effective.
- Regulations: transformation in national law.
o Is prohibited to transport intro national law, because there will be a risk that
there is a difference between the laws.
- Directives: must be transported (= omzetting) intro national law. The nature can
change by transportation.
o Is a big advantage by criminal law, to make a code visual. The member states
can bring the regulation in a criminal code/ frame work.
Both are identified legislation by EU treaties and are binding.
Case law
, - Law making by the CJEU
The CJEU is more important than the supreme court in the EU. The framework is set by
legislation. The CJEU has the power to annul legislation and civil code if is not complaint
with the EU law. CJEU also makes the law, which makes it more important in national courts.
We have such a thick constitution, if there are that many law imbedded in the treaties the
courts get the possibly to apply the laws and attach legal consequences to the treaty-norms.
- Review of legislation
TEU/TFEU quite elaborate on the Internal market.
Some provisions show what the treaty promised to the EU society years ago:
- article 34 TFEU
- article 56 TFEU
- article 45 TFEU
- Article 28 TFEU
- Article 102 TFEU
Revisiting EU Judicial Protection
Direct effect and supremacy
Primacy
- In case of conflict between provision of EU law and of national law, EU provision
prevails
Van Gend & Loos. Even case law station a principle, still the EU case law has to prevail
over national law.
If the right form treaties can’t be forest, the civilian can appeal on the treaty.
, - Treaties, but also legislation & case law.
Direct effect comes in by Dutch citizens. The Court of Justice said the citizens can rely on the
directive, when the directive is not implemented.
- Van Gend & Loos: not all provisions have direct effect. The CJEU gives conditions for
the direct effect.
Direct effect
- Business and citizens can rely on provisions from EU law
- Courts and administrative authorities must apply them
- Extends to provisions of the Treaties, regulations and
o by exception
o directives
- Not all provisions: Conditions:
o Sufficiently clear and precise
o Unconditional
(Third principle: indirect effect (EU conforme interpretatie)) A “lighter” mechanism of EU
law enforcement (and individual protection):
Indirect effect Obligation of national courts to interpret domestic law, as far as possible, in
line with the objectives and wording of EU law. Avoid the conflict: you should the provisions
of nationals law in the notion of EU law. There are limits to this.
Look first if you there is indirect effect: because it respects the national and the EU norms.
Indirect is preferred above direct effect. If the interpretation can only be done contra legem,
direct effect should be used.
- Remember Von Colson & Kamann?
- Limits: no contra legem interpretation; legal certainty
- Requires: suitable national law
First, see if indirect is possible. Indirect effect is preferable to direct effect.
Positive & Negative Integration
Both are ways to achieve the policy results that a treaty visits.
The internal market that we want is that complies us of goods, services, capital an people. The
question is comes it from positive or negative integration?
Hierarchy of norms:
- Positive integration is on legislation level.
- Negative integration is on treaty level.
Positive and negative integration. Examples inspired by the Reyners case:
, 1. Dutch lawyer is not accepted to the Belgium bar because of his Dutch nationality →
TFEU.
a. In any case, how difficult it could be, this is prohibited. With negative
integration, positive integration is not necessary. In any case discrimination is
prohibited by the free movement of persons rights. So in any case how difficult
it may be, discrimination on the basis of nationality is prohibited and the left
bottle already works.
It means that the court of justice simply apply the free movement provision from the treaty to
say this is prohibited; Reyners should have excess to the bar. The legislator is not necessary.
When this doesn’t work; despite the fact there is a free movement of persons, it is a
constitutions provision in the TFEU, still he won’t get it. For instance, in the next situation:
2. Dutch lawyer is not accepted to the Belgium bar because of his Dutch law diploma →
Legislation.
a. Negative integration does not work anymore, so positive integration is needed.
The process can check if there is an system that applies on the problem
(diploma recognisme). The Belgium authorities have an legitimate interest that
he knows Belgium law if he practice in Belgium. The clients should have the
confidence that he know every thing about Belgium law. Than positive
integration is needed, the legislator need to make a legislation on diploma
recognisme. There is legislation on diploma recognisme. The system is not
based on the treaties but on the issue (problem); only when there is this
legislation comes in when negative integration does not work. The legislator
need to make an own procedures that can not be granted on the TFEU.
Negative integration cannot remove all obstacles to the internal market.
- Solution: positive integration
- Example: Regulation of toys
o Situation without the Directive: application of the Treaty, free movement of
goods. BUT: MS may invoke the Rule of reason
o Situation on the basis of the Toys Directive:
Harmonisation of essential safety requirements
MS can no longer adopt such requirements individually
Equal level of protection throughout the EU → level playing field –
Well-functioning of the internal market
Core: EU legislature regulates the public interest that would otherwise lead to national
disparities.
National measures and their compatibility with EU law
Step 1: Directive or Regulation regulating the matter?
Yes? → apply Directive/Regulation
No? → step 2
- Follow the news;
- Know the member states of the EU and the capitals.
Substantive Part of the Lecture
EU Law Sources
Treaties (primary law):
- TUE
- TFEU
- CFR
Constitution has many norms already. The Dutch constitution is much more celebrated. A lot
of norms are found in the treaties while similar norms are on national level are found in
legislation.
- Rules of competition law are found in the TFEU, norms on nature are also found on
treaty level.
The interaction between the first and the second level is an implementation of the treaty
norms. Legislation is also implemented of the treaty objectives. If treaties say that there
should be further elaboration on the norm of competition, legislation is made with the
elaboration of implementation;
Implementation: legislation also come in if there is a problem with such nature-norms. The
treaty gives the opportunity to make legislation about this, but the treaty itself remains vague.
The treaties are implemented in the legislation (regulations and directives). There is an
dynamic interaction between the treaty level, primary and secondary level is an characteristic
of EU law. The further elaboration is done by the legislator.
Legislation (secondary law)
Is an implementation of the treaty rules (primary law). The legislator gives steps in by for
example obstacles to make the law effective.
- Regulations: transformation in national law.
o Is prohibited to transport intro national law, because there will be a risk that
there is a difference between the laws.
- Directives: must be transported (= omzetting) intro national law. The nature can
change by transportation.
o Is a big advantage by criminal law, to make a code visual. The member states
can bring the regulation in a criminal code/ frame work.
Both are identified legislation by EU treaties and are binding.
Case law
, - Law making by the CJEU
The CJEU is more important than the supreme court in the EU. The framework is set by
legislation. The CJEU has the power to annul legislation and civil code if is not complaint
with the EU law. CJEU also makes the law, which makes it more important in national courts.
We have such a thick constitution, if there are that many law imbedded in the treaties the
courts get the possibly to apply the laws and attach legal consequences to the treaty-norms.
- Review of legislation
TEU/TFEU quite elaborate on the Internal market.
Some provisions show what the treaty promised to the EU society years ago:
- article 34 TFEU
- article 56 TFEU
- article 45 TFEU
- Article 28 TFEU
- Article 102 TFEU
Revisiting EU Judicial Protection
Direct effect and supremacy
Primacy
- In case of conflict between provision of EU law and of national law, EU provision
prevails
Van Gend & Loos. Even case law station a principle, still the EU case law has to prevail
over national law.
If the right form treaties can’t be forest, the civilian can appeal on the treaty.
, - Treaties, but also legislation & case law.
Direct effect comes in by Dutch citizens. The Court of Justice said the citizens can rely on the
directive, when the directive is not implemented.
- Van Gend & Loos: not all provisions have direct effect. The CJEU gives conditions for
the direct effect.
Direct effect
- Business and citizens can rely on provisions from EU law
- Courts and administrative authorities must apply them
- Extends to provisions of the Treaties, regulations and
o by exception
o directives
- Not all provisions: Conditions:
o Sufficiently clear and precise
o Unconditional
(Third principle: indirect effect (EU conforme interpretatie)) A “lighter” mechanism of EU
law enforcement (and individual protection):
Indirect effect Obligation of national courts to interpret domestic law, as far as possible, in
line with the objectives and wording of EU law. Avoid the conflict: you should the provisions
of nationals law in the notion of EU law. There are limits to this.
Look first if you there is indirect effect: because it respects the national and the EU norms.
Indirect is preferred above direct effect. If the interpretation can only be done contra legem,
direct effect should be used.
- Remember Von Colson & Kamann?
- Limits: no contra legem interpretation; legal certainty
- Requires: suitable national law
First, see if indirect is possible. Indirect effect is preferable to direct effect.
Positive & Negative Integration
Both are ways to achieve the policy results that a treaty visits.
The internal market that we want is that complies us of goods, services, capital an people. The
question is comes it from positive or negative integration?
Hierarchy of norms:
- Positive integration is on legislation level.
- Negative integration is on treaty level.
Positive and negative integration. Examples inspired by the Reyners case:
, 1. Dutch lawyer is not accepted to the Belgium bar because of his Dutch nationality →
TFEU.
a. In any case, how difficult it could be, this is prohibited. With negative
integration, positive integration is not necessary. In any case discrimination is
prohibited by the free movement of persons rights. So in any case how difficult
it may be, discrimination on the basis of nationality is prohibited and the left
bottle already works.
It means that the court of justice simply apply the free movement provision from the treaty to
say this is prohibited; Reyners should have excess to the bar. The legislator is not necessary.
When this doesn’t work; despite the fact there is a free movement of persons, it is a
constitutions provision in the TFEU, still he won’t get it. For instance, in the next situation:
2. Dutch lawyer is not accepted to the Belgium bar because of his Dutch law diploma →
Legislation.
a. Negative integration does not work anymore, so positive integration is needed.
The process can check if there is an system that applies on the problem
(diploma recognisme). The Belgium authorities have an legitimate interest that
he knows Belgium law if he practice in Belgium. The clients should have the
confidence that he know every thing about Belgium law. Than positive
integration is needed, the legislator need to make a legislation on diploma
recognisme. There is legislation on diploma recognisme. The system is not
based on the treaties but on the issue (problem); only when there is this
legislation comes in when negative integration does not work. The legislator
need to make an own procedures that can not be granted on the TFEU.
Negative integration cannot remove all obstacles to the internal market.
- Solution: positive integration
- Example: Regulation of toys
o Situation without the Directive: application of the Treaty, free movement of
goods. BUT: MS may invoke the Rule of reason
o Situation on the basis of the Toys Directive:
Harmonisation of essential safety requirements
MS can no longer adopt such requirements individually
Equal level of protection throughout the EU → level playing field –
Well-functioning of the internal market
Core: EU legislature regulates the public interest that would otherwise lead to national
disparities.
National measures and their compatibility with EU law
Step 1: Directive or Regulation regulating the matter?
Yes? → apply Directive/Regulation
No? → step 2
