Table of Contents
Session 1 – Introduction + The transition in the EU institutions following the European elections 2
Session 2 – Testing the scope of EU competences: free movement and Member States’ societal
choices ................................................................................................................................. 8
Session 4 – EU Decison-Making Procedures (I): Legislation – Democracy in practice ............... 13
Session 5 – EU Decision-Making Procedures (II) & Beyond: The Finances of the EU ................. 23
Session 6 – Enforcement and EU law: the challenges of ensuring compliance in a transnational
legal system (Guest lecture Gillian More) .............................................................................. 37
Session 7 – EU decision-making procedures (III): Implementation and Delegation of Power ..... 45
Session 8 – EU citizenship: Constructing the fundamental status of Member State nationals (guest
lecture Jonathan Tomkin) ..................................................................................................... 52
Session 9 – EU law in the national legal order (guest lecture Tim Corthaut) ............................. 67
Session 10 – Rule of Law in the EU (I): EU standards on judicial independence in Member States
........................................................................................................................................... 82
Session 11 – EU law and the National Constitutions: Ordering Pluralism ................................. 95
Session 12 – Fundamental Rights in the EU .......................................................................... 107
Session 13 – Rule of Law (II): Monitoring the Rule of Law in the EU ........................................ 125
Session 15 – Economic (& Monetary) Governance in the EU: A Constitutional Perspective ...... 138
Session 16 – The interaction between the European Court of Justice and the EU legislator...... 154
Session 17 – Institutional Responsiveness to Crises within the EMU: Examples from the Euro
Crisis, COVID-19 & military aggression on Ukraine ................................................................ 164
Session 18 – Diberentiated integration in the EU ................................................................... 178
Note: Session 3 (practice session) and Session 14 (exam preperation) not included
1
, Session 1 – Introduction + The transition in the EU institutions following the European
elections
I. What is ‘constitutional law of the EU’?
Very strange title of the course because there is no constitution of the EU
- We are faced with an EU system (EU law) consisting of
o The Treaties (TEU, TFEU and Charter)
o Legislation made by the EU institutions (EP and Council, proposed by the
Commission)
o Implementing and delegating acts
- However, there is no overall constitution
EU law is applied over national law, the law of the 27 Member States (which each have their own
constitution), but this not EU constitutional law
We are pretending in this course that there is constitutional law of the EU itself
ð The title of the course is descriptive rather than normative.
There almost was an EU constitution, about 20 years ago
- There was a constitutional treaty that was vetoed in a referendum by the people in the
Netherlands and France
o There is no reference to a referendum in the Treaties
- It was an attempt to replace the existing treaties (EC and EU)
- It was named the Constitution for Europe
o But treaties can only be modfied by another treaty, meaning this new constitution
could only be a treaty (an amendment of the existing treaties)
- It was signed but still had to be ratified, which happens in each Member State through a
process decided by that Member State themselves
- A reflection period started after the failure of the constitution and for many years nobody
tried to speak of an amendment of the constitution, until the amendments of the existing
treaties was taken on in a new text, simply called a treaty (not a constitution), signed in
Lisbon (the Lisbon Treaty)
o This amendment also changed the names: TEU (originally the EU Treaty of ’92) and
the TFEU (originally the EC Treaty of ’57)
o In addition to these treaties the Charter of Fundamental Rights exists
What would you expect to be in an EU constitution?
- Basic rules for the functioning of the EU
- Basic rights for legal subjects
- Relationship between EU and Member States
ð Could the Treaties and the Charter be considerd a constitution?
o Kind of a rethorical question
2
,What is part of (most) Member States’ constitutions?
- Fundamental rights of citizens
- Seperation of powers, balance/control between the institutions
o Legislative institution(s)
o Judicial institution(s)
o Executive institution(s)
- (Protection of) political parties
- Democracy/rule of law
o = making sure that the authorities are also subjects of the law
o Should not only be written in the constitution, but should also be clear in its
structure
- In a federal system: the principles of said system
ð Is all of this present in the EU Treaties?
o The EP and the Council are the legislator: both directly elected representatives
and Member States’ governments have to agree on legislation
§ The EP is elected by the people and consists of 720 MEPs
§ The Council is where the governements of the Member States meet
o The Commission will be given the power to implement EU legislation where the
Member States cannot do so (because implementation also involves the Member
States)
o The judiciary applying EU law consists of:
§ National judges, who will apply EU law, when there is a conflict
§ The CJEU when asked a question by a national judge or when dealing with
certain cases that only the CJEU can speak on
• The CJEU has a central role because it may provide binding advice
to the national judges and has direct powers to control the balance
between the institutions and can control that the Member States
abide by/respect EU law
o Principles of the relationship between the EU and the Member States:
§ EU conferred powers
§ Primacy of EU law
• Not expressed in the Treaties, because the Constitution for Europe
had an article on primacy but it failed and the Lisbon Treaty did not
mention it
• It is referred to in case-law
è Because of these characteristics, it may be said that the EU Treaties have
constitutional value!
§ However, it depends on the perspective: the Member States will argue that
their own constitutions are the only ones with constitutional value
3
, CJEU, Case 294/83 Les Verts v European Parliament
- Facts: In 1979 the first direct elections of the EP happened (the EP existed before, but it
was composed of delegations of the national parliaments). Les Verts, did not exist in
1979 but prepared itself to be running for the 1984 EP elections.
Meanwhile, the EP decided that certain money from their budget would go to
promotion campaigns for the elections. Actually, the promotion campaigns came down
to reimbursement of election expenses for the political parties. But the budgetary rules,
internally approved within the EP, foresaw that a certain amount of money would go to
the parties already represented in the 1979 elections. There was also a key that after
the results of the 1984 elections they would see how many members every party had
and the parties would additionally get money based on that.
Les Verts argued that they would only benefit from the 1984 key, because they were not
yet present in the 1979 elections. They brought a case against the EP before the CJEU.
The issue was that the EEC Treaty provided for an action from one institution to bring an
action against another (e.g. institutions could bring a case against the Commission and
the Council), but nothing was foreseen for bringing a case against the EP. The CJEU was
thus faced with a question of admissability. The EP legal service did not say no and
realised it was not in the Treaty, but they also noticed that the Treaty did not foresee in the
possibility for the EP to bring a case before the Court and actually should have said power.
- Ruling: The CJEU said that they did not contest that a case may be brought against the
Parliament, because the EP should also be able to bring a case (but none of this was in
the Treaty). So, the CJEU concluded that it was possible to bring a case against the EP,
at least if the Parliamants decision had legal eYect for the one bringing the case
(admissability).
However, they also said that the EP actually did not have the power to make rules on
reimbursment of election campaigns, because this was a competence reserved for the
Member States (so not conferred).
Les Verts won the case and the rule of the EP was annuled.
o The most interesting is the way the CJEU reasoned a case could be brought against
the EP (lookt at §23)
§ Paragraph 23: the CJEU called the EEC the basic constitutional charter
- Note: Judges at the time of this case only had one legal assistent (nowadays they have
three or more)
o The legal assistent of the Belgian judge in this case was Koen Lenaerts!
II. The 2024 European elections and the transition process within the EU institutions
EU elections and consequences: impact of the 2024 elections on institutions
- European Parliament
o Every institution has its own article in the TEU: Art. 14 TEU
o President: decided by members of the European Parliament through voting
- European Council
o Every institution has its own article in the TEU: Art. 15 TEU
o Consists of the head of states or the head of governments
4
Session 1 – Introduction + The transition in the EU institutions following the European elections 2
Session 2 – Testing the scope of EU competences: free movement and Member States’ societal
choices ................................................................................................................................. 8
Session 4 – EU Decison-Making Procedures (I): Legislation – Democracy in practice ............... 13
Session 5 – EU Decision-Making Procedures (II) & Beyond: The Finances of the EU ................. 23
Session 6 – Enforcement and EU law: the challenges of ensuring compliance in a transnational
legal system (Guest lecture Gillian More) .............................................................................. 37
Session 7 – EU decision-making procedures (III): Implementation and Delegation of Power ..... 45
Session 8 – EU citizenship: Constructing the fundamental status of Member State nationals (guest
lecture Jonathan Tomkin) ..................................................................................................... 52
Session 9 – EU law in the national legal order (guest lecture Tim Corthaut) ............................. 67
Session 10 – Rule of Law in the EU (I): EU standards on judicial independence in Member States
........................................................................................................................................... 82
Session 11 – EU law and the National Constitutions: Ordering Pluralism ................................. 95
Session 12 – Fundamental Rights in the EU .......................................................................... 107
Session 13 – Rule of Law (II): Monitoring the Rule of Law in the EU ........................................ 125
Session 15 – Economic (& Monetary) Governance in the EU: A Constitutional Perspective ...... 138
Session 16 – The interaction between the European Court of Justice and the EU legislator...... 154
Session 17 – Institutional Responsiveness to Crises within the EMU: Examples from the Euro
Crisis, COVID-19 & military aggression on Ukraine ................................................................ 164
Session 18 – Diberentiated integration in the EU ................................................................... 178
Note: Session 3 (practice session) and Session 14 (exam preperation) not included
1
, Session 1 – Introduction + The transition in the EU institutions following the European
elections
I. What is ‘constitutional law of the EU’?
Very strange title of the course because there is no constitution of the EU
- We are faced with an EU system (EU law) consisting of
o The Treaties (TEU, TFEU and Charter)
o Legislation made by the EU institutions (EP and Council, proposed by the
Commission)
o Implementing and delegating acts
- However, there is no overall constitution
EU law is applied over national law, the law of the 27 Member States (which each have their own
constitution), but this not EU constitutional law
We are pretending in this course that there is constitutional law of the EU itself
ð The title of the course is descriptive rather than normative.
There almost was an EU constitution, about 20 years ago
- There was a constitutional treaty that was vetoed in a referendum by the people in the
Netherlands and France
o There is no reference to a referendum in the Treaties
- It was an attempt to replace the existing treaties (EC and EU)
- It was named the Constitution for Europe
o But treaties can only be modfied by another treaty, meaning this new constitution
could only be a treaty (an amendment of the existing treaties)
- It was signed but still had to be ratified, which happens in each Member State through a
process decided by that Member State themselves
- A reflection period started after the failure of the constitution and for many years nobody
tried to speak of an amendment of the constitution, until the amendments of the existing
treaties was taken on in a new text, simply called a treaty (not a constitution), signed in
Lisbon (the Lisbon Treaty)
o This amendment also changed the names: TEU (originally the EU Treaty of ’92) and
the TFEU (originally the EC Treaty of ’57)
o In addition to these treaties the Charter of Fundamental Rights exists
What would you expect to be in an EU constitution?
- Basic rules for the functioning of the EU
- Basic rights for legal subjects
- Relationship between EU and Member States
ð Could the Treaties and the Charter be considerd a constitution?
o Kind of a rethorical question
2
,What is part of (most) Member States’ constitutions?
- Fundamental rights of citizens
- Seperation of powers, balance/control between the institutions
o Legislative institution(s)
o Judicial institution(s)
o Executive institution(s)
- (Protection of) political parties
- Democracy/rule of law
o = making sure that the authorities are also subjects of the law
o Should not only be written in the constitution, but should also be clear in its
structure
- In a federal system: the principles of said system
ð Is all of this present in the EU Treaties?
o The EP and the Council are the legislator: both directly elected representatives
and Member States’ governments have to agree on legislation
§ The EP is elected by the people and consists of 720 MEPs
§ The Council is where the governements of the Member States meet
o The Commission will be given the power to implement EU legislation where the
Member States cannot do so (because implementation also involves the Member
States)
o The judiciary applying EU law consists of:
§ National judges, who will apply EU law, when there is a conflict
§ The CJEU when asked a question by a national judge or when dealing with
certain cases that only the CJEU can speak on
• The CJEU has a central role because it may provide binding advice
to the national judges and has direct powers to control the balance
between the institutions and can control that the Member States
abide by/respect EU law
o Principles of the relationship between the EU and the Member States:
§ EU conferred powers
§ Primacy of EU law
• Not expressed in the Treaties, because the Constitution for Europe
had an article on primacy but it failed and the Lisbon Treaty did not
mention it
• It is referred to in case-law
è Because of these characteristics, it may be said that the EU Treaties have
constitutional value!
§ However, it depends on the perspective: the Member States will argue that
their own constitutions are the only ones with constitutional value
3
, CJEU, Case 294/83 Les Verts v European Parliament
- Facts: In 1979 the first direct elections of the EP happened (the EP existed before, but it
was composed of delegations of the national parliaments). Les Verts, did not exist in
1979 but prepared itself to be running for the 1984 EP elections.
Meanwhile, the EP decided that certain money from their budget would go to
promotion campaigns for the elections. Actually, the promotion campaigns came down
to reimbursement of election expenses for the political parties. But the budgetary rules,
internally approved within the EP, foresaw that a certain amount of money would go to
the parties already represented in the 1979 elections. There was also a key that after
the results of the 1984 elections they would see how many members every party had
and the parties would additionally get money based on that.
Les Verts argued that they would only benefit from the 1984 key, because they were not
yet present in the 1979 elections. They brought a case against the EP before the CJEU.
The issue was that the EEC Treaty provided for an action from one institution to bring an
action against another (e.g. institutions could bring a case against the Commission and
the Council), but nothing was foreseen for bringing a case against the EP. The CJEU was
thus faced with a question of admissability. The EP legal service did not say no and
realised it was not in the Treaty, but they also noticed that the Treaty did not foresee in the
possibility for the EP to bring a case before the Court and actually should have said power.
- Ruling: The CJEU said that they did not contest that a case may be brought against the
Parliament, because the EP should also be able to bring a case (but none of this was in
the Treaty). So, the CJEU concluded that it was possible to bring a case against the EP,
at least if the Parliamants decision had legal eYect for the one bringing the case
(admissability).
However, they also said that the EP actually did not have the power to make rules on
reimbursment of election campaigns, because this was a competence reserved for the
Member States (so not conferred).
Les Verts won the case and the rule of the EP was annuled.
o The most interesting is the way the CJEU reasoned a case could be brought against
the EP (lookt at §23)
§ Paragraph 23: the CJEU called the EEC the basic constitutional charter
- Note: Judges at the time of this case only had one legal assistent (nowadays they have
three or more)
o The legal assistent of the Belgian judge in this case was Koen Lenaerts!
II. The 2024 European elections and the transition process within the EU institutions
EU elections and consequences: impact of the 2024 elections on institutions
- European Parliament
o Every institution has its own article in the TEU: Art. 14 TEU
o President: decided by members of the European Parliament through voting
- European Council
o Every institution has its own article in the TEU: Art. 15 TEU
o Consists of the head of states or the head of governments
4
