European Union Law Class Notes PDF

ALWAYS REMEMBER: The EU always pursues a goal. Any action that the EU takes is in the pursuit of such a goal. Class 1 (02/10) The most common legal order is the states. The STATE is the legal order. Institutions put in place by the state regulate the relationship between all the elements in its t...

ALWAYS REMEMBER: The EU always pursues a goal. Any action that the EU takes is in the pursuit of such a goal. Class 1 (02/10) The most common legal order is the states. The STATE is the legal order. Institutions put in place by the state regulate the relationship between all the elements in its territory. Sovereignty is the power to act independently from any other influences coming from outside. The legitimization of the state as the legal order of a given territory. National Law -> State Institutions (Sovereignty) -> Territory -> People International Law -> 2 or more states -> Treaties -> Territories -> State Instituitions (only indirectly peoples) Inter = Latin “Between” EUROPEAN UNION LAW TEU: Treaty on the European Union TFEU: Treaty on the Functioning of the European Union Treaty of Paris 1951: The European Coal and Steel Community was established. Treaty of Rome 1957: Established the European Economic Community and the EURATOM (European Atomic Energy Community). Supranational Method: Government Transfers National Sovereignty to European Institutions that adopt supranational rules that are binding for every member state. A state cannot give precedence to other rules that are inconsistent with supranational law -> Community Law Intergovernmental method: Governments cooperate among themselves and adopt international rules binding for those that want to adhere to them. It is a political compromise between governments with heterogeneous preferences. -> International Law Note: If the EU hasn’t given specific criteria on the legal production of a certain good if a product is legally made in a certain way in one of the member states, it is legal to be commercialized freely in all member states. Four freedoms: Workers, Goods, Capital, and Services. Class 2 - 09/10 Treaty of Paris (1952) - Formed the European Coal and Steele Community (ECSC) Treaty of Rome (1957) - Formed the European Economic Community (ECC) Single European Act (1986) - Major reform of the Institutions and accession of Portugal and Spain Schengen Treaty (1985) - Formed the Schengen Zone The Maastricht Treaty (1992/1993) - Formed the EU and set a date for the adoption of a common currency. Treaty of Amsterdam (1997) - Enacting the Common Foreign and Security Policy (CFSP), transfer of national government competencies to the competence of the European Parliament giving it more powers. European Union (Competences) European Community domain (most of common policies) Common Foreign and Security Policy (CFSP) Police and Judicial Cooperation in Criminal Matters The Withdrawal of a Member State Article 50 of TEU: 1. Any Member State may decide to withdraw from the Union following its own constitutional requirements. 2. Any Member State may decide to withdraw shall notify the European Council of its intention. Guidelines provided by the EC (European Council), the Union will negotiate and agree, by negotiating its exit as well as its future relationship with the Union. 3. The UK votes to exit in 2016 and formally exits in 2021. “Brexit” “European integration or disintegration upon Brexit?” Note: Until the Treaty of Lisbon in 2009, there was no mention of European values in the founding laws of the Union. In 2009, they added Article 2 stating: “The European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities, as laid down in Article 2 of the Treaty on European Union (TEU).”  The Rule of Law The Rule of Law: The rule of law is a political ideal which all people and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is sometimes stated simply as "no one is above the law". Toolbox to protect the Rule of Law: Preventive Tools: (ex ante) Programs to support structural reforms Programs to support judicial networks, pluralism, and media freedom European Rule of Law Mechanism (annual dialogue with the Commission) Repressive Tools: (ex post) Infringement procedure Article 7 (1), (2), TEU Budgetary conditionality (EU Regulation 2020/2092) - i.e.: Freezing structural funds to Hungary Article 7 (1), (2), (3) TEU: 1. On a reasoned proposal by one-third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply. 2. The European Council, acting by unanimity on a proposal by one-third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations. 3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. Article 7 Procedure The Article 7 procedure is sometimes referred to as the EU’s “nuclear option” because it allows for potentially severe sanctions, including the suspension of a Member State’s voting rights within the EU. The process is complex, with two stages: 1. Preventive Mechanism (Article 7(1) TEU) ○ This stage can be triggered if there is a clear risk of a serious breach of EU values by a Member State. It does not require an actual breach, just a high risk of one occurring. ○ The procedure can be initiated by one-third of Member States, the European Parliament, or the European Commission. ○ The Council (composed of Member State representatives) must approve the preventive measures by a four-fifths majority after hearing the Member State in question. ○ The Council can issue recommendations to the Member State to address and prevent further deterioration of the situation. 2. Sanction Mechanism (Article 7(2) TEU) ○ This more severe stage applies when there is a serious and persistent breach of EU values. ○ It can only be initiated by a proposal from one-third of the Member States or the European Commission. ○ The European Council (heads of state or government of Member States) must unanimously determine that a breach has occurred. ○ After this determination, the Council can impose sanctions, including the suspension of certain rights, such as the voting rights of the Member State in the Council. However, other obligations, such as financial contributions, still apply. Recent Use and Context of Article 7 The Article 7 procedure has been invoked in cases concerning Poland and Hungary, where concerns were raised about the rule of law, judicial independence, and respect for democratic principles. These cases highlight the EU's commitment to upholding its fundamental values, though Article 7’s requirements for consensus and high voting thresholds make sanctions difficult to achieve in practice. Hungary, Romania, and Slovakia are in breach of EU fundamental rights. Legal Crisis Ahead of the EU?  Increasing number of Euroskeptics MEPs elected. About ⅓ of the Parliament now. Institutions of the EU (Defined by Article 13 of TEU) European Parliament: Elected by the people, votes on proposed laws European Council: Sets the direction of the Union Council of the EU (Council of Ministers): Can exercise both legislative and executive European Commission: Has the power to draft legislation and executes it Court of Justice of the EU: The only judicial body of the EU, it has two branches. European Central Bank: Sets monetary policy - Merely a technical body European Court of Auditors: Audits how the EU budget is spent (watchdogs) - Merely a technical body Executive powers: European Council, Council of the EU, European Commission Legislative Powers: European Parliament, Council of the EU, European Commission Judiciary Power: Court of Justice of the EU European Council: 27 heads of state or heads of government. They define the EU’s overall political direction and priorities, “setting the agenda”. This strategic agenda is the first step in a process that will be taken forward by EU institutions and the member-states. It does not negotiate or adopt EU laws. It adopts conclusions. (Set the agenda) European Commission: Each Commissioner is assigned a focus area by the EU President. Similar to a cabinet. Class 3 - 10/16 European Commission: Citizens can propose proposals if they register and gather 1M signatures. European Parliament: One of the legislative adopter bodies of the EU. 720 members in total + president. Most of the work of the European Parliament is carried out by parliamentary committees, which are divided into standing and temporary. Rapporteur: This is the MEP who is instructed by his/her committee to prepare a report on the legislative proposal in question. His/her task is to draft a text to be voted on within the commission and subsequently in the plenary session. Some committees are temporary only created for a legislative body temporarily, and standing committees are permanent ones. Trilogues: Informal discussions between the Commission, Parliament, and Council to discuss proposals suggest amendments, and suggest withdrawal of the proposal altogether. Council of the European Union - Council of Ministers: 10 configurations with one member of each member-state at a ministerial level: Negotiates and adopts EU laws (legislative power); Coordinates member-states policies; (executive power); Develops the EU’s common foreign and security policy; Concludes international agreements Adopts the EU budget Those configurations are set by the European Council with the exception of two that are prescribed in the TFEU. Council voting: Member states’ ministers meet when they discuss or vote on draft legislative acts. When the Council votes on a proposal by the Commission, a qualified majority voting (QMV), is reached if two conditions are met: QMV: 55% of member-states (15 out of 27 member-states) vote in favor, and that proposal is proposed by member-states representing at least 65% of the total EU population. Blocking minority: The blocking minority must include at least 4 Council members representing more than 35% of the EU population. https://euvote.eu/ Josep Borrell, currently, the HIGH COMMISSIONER for SECURITY AND EXTERNAL AFFAIRS (European Commission), presides over the Council of the European Union when they discuss issues of security and foreign affairs. The Court of Justice of the European Union: Interpretation of EU law. Reviews the legality of the acts of the EU’s institutions; Ensures that the member states comply with obligations under the treaties; Interprets EU Law at the request of National Courts and Tribunals; It comprises 2 courts: The Court of Justice and the General Courts; Advocate-General: The Court of Justice (deliver an opinion) NOT A PROSECUTOR, mainly a legal aide? An expert. Class 4 Legislative Procedures in the EU: *The Council being the Council of Ministers. The legislative proposal comes from the European Commission. The ordinary procedure is the most common in which the Council and the Parliament must approve the legislative bill. The Council of Ministers and the European Parliament are called co-legislators. The Special Legislative Procedures only requires a single-chamber approval to adopt the binding version of the legislation. The Consent procedure, in which the other body has the power to accept or reject a legislative proposal by an absolute majority vote (or QMV for the Council), but cannot amend it. In the consultation procedure, the other body is entitled to deliver an opinion to approve, reject, or propose amendments to a legislative proposal. That opinion, however, is not binding. Note: In the consultation role, the Parliament only can express its opinion on the original draft by the Commission, not the Council-adopted version. EU Legal Sources - Primary Sources Treaty on European Union Treaty on Functioning of EU Charter of the EU on Fundamental Rights General Principles of EU Law Secondary Sources: International Treaties Regulations Directives Decisions Recommendations and Opinions Case law of the EU Court of Justice Binding Secondary EU Law Regulations: Binding legislative act. It must be applied in its entirety across the EU. Directive: A directive is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to decide how. Decisions: A decision is binding on those to whom it is addressed. (I.e.: EU Country or an individual company) 1. Regulations Nature: Binding legislative acts that are directly applicable in all Member States.  Scope: Apply uniformly across the entire EU without the need for national implementation measures. Effect: Once adopted, they become immediately enforceable in all Member States as part of their national law. Example: The General Data Protection Regulation (GDPR) applies directly to all Member States, ensuring standardized data protection rules across the EU. 2. Directives Nature: Binding legislative acts that set out goals or results that Member States must achieve, but allow each country the flexibility to decide how to implement the directive. Scope: Directives require national transposition, meaning each Member State must pass its own laws to implement the directive within a specified time frame. Effect: They are not directly applicable; they rely on Member States to create national laws aligning with the directive's objectives. Example: The Working Time Directive sets minimum standards for working hours across the EU, but each country decides how to incorporate these standards into its own labor laws. 3. Decisions Nature: Binding acts that apply to specific individuals, companies, or Member States. They can also have a general application in some cases. Scope: They are only binding on those to whom they are addressed, whether a particular Member State, an individual, or a company. Effect: Decisions do not require transposition and have direct effect, meaning the addressee must comply with the decision. Example: A decision on a competition case might apply only to a particular company, requiring it to cease certain practices to comply with EU competition rules. Type Binding? Directly Who It Affects Applicable? Regulation Yes, fully binding Yes All Member States (uniformly) Directive Yes, sets goals to No, requires All Member States be achieved national (but with flexibility) transposition Decision Yes, but only on Yes Specific entities or addressees Member States Where does the EU Act? Principal of conferral (of competences) Consequences: The subject matters over which European competence is exercised are exhaustively determined by the states The types of competencies (and thus the extent of the EU’s regulatory power) are defined by the member states Any act adopted by the EU without competence is voidable by the Court of Justice of the EU. Article 5 Article 13 (ex Article 5 TEC) 2. Each institution shall act within the limits of the 1. The limits of Union competences are powers conferred on it in governed by the principle of conferral. The use the Treaties, and in of Union competences is governed by the conformity with the principles of subsidiarity and proportionality. procedures, conditions 2. Under the principle of conferral, the Union and objectives set out in shall act only within the limits of the them. The institutions competences conferred upon it by the Member shall practice mutual States in the Treaties to attain the objectives sincere cooperation. set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. ____________________________________________________________________________ Class 5: 30/10 For shared competencies, the EU applies the legal principle of subsidiarity to define when the EU should act in a shared competency vs the member-state. The principles of subsidiarity and proportionality are fundamental to the functioning of the European Union, governing how and when the EU can act in areas where both the EU and Member States have authority. They aim to balance the power between the EU and individual Member States. 1. Principle of Subsidiarity This principle ensures that the EU intervenes only when action at the EU level is more effective than action taken at national, regional, or local levels. It is mainly applied in areas of shared competence, where both the EU and Member States have the authority to legislate (e.g., environmental policy, and consumer protection). Key elements of subsidiarity: EU action is justified if objectives cannot be sufficiently achieved by Member States. The EU should act only if it can do so more effectively than Member States on their own. Subsidiarity is monitored by national parliaments, which can issue "reasoned opinions" if they believe a proposal breaches this principle. Exceptions/National Parliaments Contesting it Case 1: The Yellow Card Mechanism If ⅓ of national parliaments (or ¼ in cases related to justice and home affairs) issue reasoned opinions stating that a proposed EU measure breaches the principle of subsidiarity, this triggers the “yellow card” procedure. The European Commission (or the EU institution that proposed the measure) must then review the proposal. It can decide to either maintain, amend, or withdraw the measure. While the Commission must provide a reasoned response to the national parliaments, there is no direct mechanism for national parliaments to take the matter to the European Court of Justice (ECJ) if they disagree with the Commission’s response. Instead, individual Member States could potentially bring an action before the ECJ on the grounds of subsidiarity, but this would be separate from the yellow card procedure. Case 2: The Orange Card Mechanism If a majority (½) of national parliaments issue reasoned opinions against the measure, this triggers the “orange card” procedure, which applies only to the ordinary legislative procedure. The Commission must again review the proposal and may choose to withdraw, amend, or maintain it. If the Commission decides to maintain the proposal, it must send a justification to the European Parliament and the Council. These institutions will then decide whether the proposal should proceed. ○ The European Parliament can reject the proposal by a majority vote. ○ The Council can reject the proposal by a majority of 55% of its members. Thus, neither mechanism directly grants national parliaments the power to bring the matter before the ECJ or to nullify the proposal themselves. Instead, they prompt a review process within the EU institutions, which may lead to amendment or withdrawal of the proposal. Note: Everything the EU legislates in shared competencies, there is an inevitable erosion of the national sovereignty, given that that aspect of the law/measure will become of exclusive competence of the EU (meaning that if there’s an EU rule on it, national governments can no longer issue different rules on it). 2. Principle of Proportionality The proportionality principle ensures that EU action does not exceed what is necessary to achieve the objectives set out in the EU treaties. Even when the EU has the authority to act, this principle limits the scope and intensity of EU measures to what is strictly necessary. Key elements of proportionality:  EU actions must be suitable for achieving the intended goals. They should not go beyond what is necessary (i.e., they must be the least restrictive means). Legislative acts must be carefully tailored to avoid excessive burdens on Member States and individuals. Proportionality three-part test: 1) Is the measure suitable to achieve a legitimate aim? 2) Is the measure necessary to achieve that aim or are less restrictive means available? 3) Does the measure have an excessive effect on the applicant’s interest? In this case, the ECJ is to review both the legality of an act and also to some degree evaluate the merit of legislative and administrative measures. Practical Application Subsidiarity and proportionality often come into play during the legislative process in the EU, particularly for policies affecting multiple Member States. They help ensure that EU actions are justified and that Member States retain control where possible, supporting both effective governance and national sovereignty within the EU framework. Part III: Three tools of EU Law Procedure I. Infringement procedure II. Annulment procedure III. Preliminary Reference procedure I. The Infringement proceeding Article 17 (1) TEU - The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive, and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements. Article 258 TFEU - (ex Article 226 TEC) If the Commission considers that a Member State has failed to fulfill an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. Note: It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a member state. The relation between Article 7 TEU, Article 17 TEU, and Article 258 TFEU: Article 7, as a hard-to-implement measure due to the need for unanimity against infringements on the ECHR, the Commission can opt to act via the infringement procedures. E.g.: Hungary-Poland vetoed Article 7, and the Commission opted to pursue infringement procedures instead. Five infringement types: 1. Violation of treaty provisions, regulations, and decisions (“violation”) 2. Non-transposition of directives (“no measure notified”) 3. Incorrect legal implementation of directives (“not properly incorporated”) 4. Improper application of Directives (‘not properly applied”) 5. Non-compliance with ECJ judgments (“not yet complied with”) Key Steps in the Infringement Procedure 1. Pre-Litigation Phase (Informal): EU Pilot: Before formally launching an infringement procedure, the Commission often uses the EU Pilot system, an informal pre-litigation dialogue to resolve issues with the Member State. This phase is not mandatory and serves as a preliminary measure to avoid escalation. 2. Formal Notice (Article 258 TFEU): If the informal approach fails or is bypassed, the Commission sends a letter of formal notice to the Member State, detailing the alleged breach and requesting information or corrective measures. The Member State typically has two months to respond. 3. Reasoned Opinion (Article 258 TFEU): If the Member State’s response is unsatisfactory, the Commission may issue a reasoned opinion, providing a formal statement of the infringement, clarifying why it believes the Member State violates EU law, and specifying the actions required for compliance. 4. Referral to the Court of Justice (Article 258 TFEU): If the Member State still fails to comply, the Commission can bring the case to the European Court of Justice (ECJ), which will examine the case and issue a binding judgment.  5. Financial Penalties (Article 260 TFEU): If the ECJ finds that the Member State has breached EU law, the Member State must take action to comply. If it fails to do so, the Commission may refer the case back to the Court under Article 260, and the Court may impose financial penalties (either a lump sum or a daily fine until compliance is achieved). Applicable Laws Infringement procedures cover any EU law that binds Member States, including: Treaties: Foundational treaties (e.g., TFEU, Treaty on European Union - TEU). Regulations: Directly applicable and binding across all Member States. Directives: Binding in terms of the results to be achieved, though Member States have discretion in their implementation methods. Decisions: Binding on the specific Member State(s) or entities to whom they are addressed. ECJ Rulings: Binding interpretations of EU law, and Member States must comply with these judgments. Notes: If a first infringement procedure results in an ECJ ruling demanding fixing, for instance, and the plaintiff continues to infringe it, then a secondary infringement procedure can be initiated given that the grounds must be on infringing an ECJ rule. Additionally, sanctions (fines) can only be applied to the secondary infringement, not the first one. Infringement procedures are the Commission against a member-state, entity, persons, or companies. II. Action for annulment of an EU Act Under Article 263(1) of the Treaty of the Functioning of the European Union (TFEU), any legislative acts (regulations, decisions, and directives) or any acts of bodies, offices, or agencies of the Union intended to produce legal effects vis-a-vis third parties. Lack of competence Infringement of an essential procedural requirement Infringement of the Treaties Infringement of any rule of law relating to the application of the Treaties and Misuse of powers EU Primary law cannot be subject to an action for annulment. Parties eligible to bring an action: Privileged applicants are allowed to bring an action for annulment without proving any interest on their side.  Partially privileged applicants have limited power to bring an action for annulment - only ‘for the purpose of protecting their prerogatives.’ (Court of Auditors, Committee of Regions, European Central Bank). Non-privilege applicants, i.e. natural and legal persons, may only bring an action: (a) against an act addressed to them, (b) or against an act not addressed to them, but that is of direct and individual concern to them. Effects of annulment: the contested act is void (declaration of nullity). Important: A party only has two months following the publication of the law to initiate a procedure asking for an annulment. Class 6 - 11/06 III. Preliminary Reference Procedure Laid down in Article 19 (3) b) TEU and in Article 267 TFEU: Article 19(3)(b) b) 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; Article 267 TFEU: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. This procedure relies on cooperation between national judges and the Court of Justice The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of acts under common foreign and security policy. Its goal is twofold:  1) To achieve a uniform interpretation of European Union law by all domestic courts. 2) To assist in the effective judicial protection of individuals within the national legal orders. Types of Preliminary References 1) Referring to the court for interpretation of EU Law 2) Referring to the court asking for the validity of EU Law Important Only national judges, after the expiry of the 2-month max period for an annulment of EU secondary law, can refer to the ECJ an EU Law to check for validity. Before the two-month expiration, national judges can bring an annulment case before the ECJ as civil individuals given that they provide reasons as to why this concerns them as individuals After the two-month expiration, national judges can only bring an annulment case if a controversy (a trial) is brought before them as national judges), that way they can refer to the ECJ. Object of the reference: (1) The interpretation of primary European Union law (including the Charter of Fundamental Rights), and/or (2) The interpretation and/or validity of secondary European Union law, that is regulations, directives, decisions, and international agreements of the European Union. (3) In contrast, the interpretation or validity of domestic law is not a valid object for reference. Subjective prerequisites References can only be made by courts of the member states, but not by other bodies. Objective prerequisites All questions must be relevant to the outcome of the case pending before the domestic court (i.e.: no purely hypothetical problems or problems that have no relation to the actual facts of the main action). Important If questions concerning the interpretation of European Union law arise in a pending case, all domestic courts are competent to refer (Article 267(2) TFEU) Courts of last instance (any national court or tribunal against whose decisions there is no judicial remedy under national law) are under an obligation to refer the question to the CJEU (Article 267(3) TFEU). However, if (a) the CJEU has already dealt with the point of law in question or (b) the correct application of European Union law is obvious (acte claire) a reference is not necessary. Article 267 (ex Article 234 TEC) The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) The interpretation of Treaties; (b) The validity and interpretation of acts of the institutions, bodies, offices, agencies, or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. Case of Family Law and Free Movement of Family Members on Directive 2004/38 Article 2 (2) of directive 2004/38 on the rights of citizens of the Union and family members to move and reside freely within the territory of the Member States. For the purpose of this Directive “family member” means: (a) the spouse, (b) ….. The facts: Mr. Coman (Romania) and Mr. Hamilton (USA) got married in Brussels where they lived in 2010. Three years later they decided to move to Romania under the Directive 2004/38. Under Romanian law, marriage between people of the same sex is not recognized. Mr. Hamilton’s application for a residence permit is rejected. The question: Does the term “spouse” in Article 2(2)(a) of Directive 2004/38 include the same-sex spouse of an EU citizen to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State? Direct Effect Principle of EU Law What if a member-state does not comply with EU Law and thus prevents an individual (either a citizen or an enterprise) from enjoying a right provided for by EU Law? Can an individual invoke and enforce a piece of EU Legislation in a court of a member-state Can an individual enjoy a right provided for by EU Law… … regardless of the content of the legislation in force at that tme in the member-state in which the case is located? Van Gend en Loos v Nederlandse Administratie der Belastingen Judgment of 5 February 1963, NV Algemene Transport- En Expeditie Ondernming van Gend en Loos v Netherlands Inland Revenue Administration, C-26/62. Dutch company importing goods from Germany The Dutch government increased the import duty levied against it. The company complains of a violation of the rule (Article TEEC) that required Member States to refrain from introducing new duties and increasing those they already applied in their mutual trade relations. Preliminary question: whether Article 12 TEEC has direct effect within the territory of a member-state, in other words, whether nationals of such a State can, on the basis of the article in question, lay claim to individual rights which the courts must protect. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61962CJ0026 The court ruled in favor of recognizing the direct effect of the provision in question. The Van Gend en Loos case (1963) is a foundational case in European Union law that established the principle of "direct effect." This principle means that EU law can confer rights on individuals which they can directly enforce before national courts, without requiring implementation by national legislation. 1. Facts of the Case: Van Gend en Loos, a Dutch transport company, challenged a tariff imposed by the Dutch government on goods imported from Germany. The company argued that the tariff violated Article 12 of the Treaty of Rome, which prohibited new customs duties or increased tariffs between member states. 2. Issue: The main question was whether individuals could rely on EU law (in this case, Article 12 of the Treaty of Rome) in national courts, even if the state had not implemented it domestically. 3. Judgment: The Court of Justice of the European Union (CJEU) ruled that EU law has "direct effect," meaning individuals can invoke EU treaty provisions in national courts. This was based on the EU’s unique nature as a legal system that imposes obligations and grants rights to both member states and individuals.  4. Significance: The case established that EU treaties are not just agreements between states; they also have an internal legal effect, creating rights and obligations for citizens of member states. This principle of direct effect is a cornerstone of EU law, allowing individuals to enforce EU rights in national courts. Impact of this case Empowered individuals to enforce their EU law rights directly. Strengthened the authority of EU law over national laws when they conflict. Shaped EU legal doctrine, paving the way for other principles like the supremacy of EU law. Direct Effect of EU Law Direct Effect is a principle in European Union (EU) law that allows individuals to invoke certain EU legal provisions directly before their national courts, without the need for further national legislation. For Direct Effect, the Van Gend en Loos case laid down the condition that the obligations must be precise, clear and unconditional and that they must not call for additional measures, either national or European. What must be precise and clear? 1. The owner of the obligation 2. The owner of the subsequent right 3. The content of both the obligation and the right Being ‘unconditional’ = No margin of discretion at all regarding the implementation of the EU provision in the member states. Article 12 of the Treaty of Rome Article 12 Member States shall refrain from introducing, as between themselves, any new customs duties on importation or exportation or charges with equivalent effect and from increasing such duties or charges as they apply in their commercial relations with each other. From this article, a right is given for one to not pay new or increased duties. (Duties that existed from before the Treaty are still applicable).  ECJ Judgment of 11 January 2001 in Case C-403/98, Azienda Agricola Monte Arcosu v Regione Autonoma della Sardegna ECJ Judgement of 11 January 2001, Case C-403/98, Azienda Agricola Monte Arcosu vs Regione Autonoma della Sardegna. Who is a ‘farmer practicing farming as his main occupation’? https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61998CJ0403 Azienda Agricola Monte Arcosu, an agricultural business in Sardinia, Italy, applied for EU agricultural subsidies under the agri-environmental schemes established by EU Council Regulations. The Sardinian regional authority required additional, stricter conditions for eligibility, which the company did not meet. Azienda Agricola Monte Arcosu challenged these additional conditions, arguing they were inconsistent with EU law. Legal Issue: The main question was whether the provisions of EU regulations governing agricultural subsidies had a direct effect, allowing individuals and companies to enforce these provisions directly in national courts. Specifically, the case questioned if the EU regulations precluded Sardinia from imposing stricter conditions than those outlined in the EU legislation. Judgment: The Court of Justice of the European Union (CJEU) ruled that certain provisions of EU regulations could have a direct effect if they were clear, precise, and unconditional. However, the CJEU determined that the specific regulations in question required national implementation to define certain elements, making them unsuitable for direct effect in this case. The Court ruled that EU regulations allowed member states some discretion in implementing agricultural subsidies and, therefore, Sardinia’s additional conditions were not automatically incompatible with EU law. Significance: The judgment clarified that not all EU regulations grant direct rights to individuals. Provisions requiring national measures to clarify or implement specific criteria do not have direct effect. The CJEU highlighted the balance between EU and national competencies, affirming that member states can implement additional eligibility requirements within the scope provided by EU legislation. Impact: The Azienda Agricola Monte Arcosu case clarified that direct effect does not apply universally to all provisions in EU regulations. If a regulation grants discretion to member states for specific details (in this case, legal definitions of what a farmer is), those provisions need national implementation and do not confer immediate rights enforceable by individuals. This reinforced the importance of examining the exact wording and intent of EU legislation when considering direct effect. Direct effect and primacy of EU Law The 3 characters of direct effect: 1) Direct effect’s constitutive element is the conferral of a right on the individual (even as a mere consequence of an obligation imposed on someone else). 2) Direct effect excludes the application of the conflicting domestic rule to the individual’s case by national judges and national public bodies. 3) The directly effective EU rule supersedes the domestic rule, in regulating the individual’s case (substitution effect) - PRIMACY Direct Effect Dissected Definition: Direct effect means that specific EU laws can create rights and obligations for individuals, which they can enforce in their domestic courts. Types of Direct Effect: 1. Vertical Direct Effect: Individuals can invoke EU law against the state or public authorities. 2. Horizontal Direct Effect: Individuals can invoke EU law against other individuals or private entities. However, horizontal direct effect is limited to certain types of EU law, like regulations, and does not apply to directives unless certain conditions are met (per cases like Marshall and Foster). Conditions for Direct Effect: For an EU provision to have direct effect, it must be:  1. Clear and precise: The wording must be unambiguous. 2. Unconditional: It must not depend on further implementation by member states. Types of EU Laws and Direct Effect: 1. Treaties: Can have both vertical and horizontal direct effect. 2. Regulations: Automatically apply in member states and can have both vertical and horizontal direct effect. 3. Directives: Primarily have vertical direct effect if the state has failed to implement them by the deadline or has done so incorrectly. However, they generally do not have horizontal direct effect. (because directives are directly binding on the member-state and not on the individuals) Importance: Empowers individuals: Individuals in EU countries can claim EU rights directly in their courts. Enhances EU law supremacy: Reinforces the CJEU’s position that EU law takes precedence over conflicting national law. Ensures uniformity and effectiveness: Direct effect promotes consistent application of EU law across all member states. Direct effect is fundamental to the EU legal system, making it possible for EU law to have real, practical effects for citizens and strengthening the authority and uniformity of EU law across Europe. National laws can prevail over EU Law in two cases: 1. If EU Law doesn’t produce direct effect 2. If the EU Law, even producing direct effect, goes against the very core of the national legal system. Each member-state has come up with their own protocols for that. Italy, for example, has the Counter-Limit principle, in which EU Law cannot prevail over the first 13 articles of the Italian Constitution. (Core value of the national legal system) ECJ’s judgment in Case C-42/17 M.A.S. & M.B., deals with the relationship between the principles of primacy, effectiveness, and direct effect of EU law, on the one hand, and the concept of constitutional identity of the Member States, on the other. In Case C-42/17, M.A.S. & M.B. (Taricco II), the EU Court decided that while EU law requires countries to combat VAT fraud effectively, Italy doesn’t have to ignore its own  time limits for prosecuting crimes if doing so would go against key principles in its constitution, like protecting people from retroactive punishment (national stature of limitations). This means Italian courts can follow their constitution even when applying EU law. The Counter-Limit Principle is a doctrine used by some constitutional courts in the EU, like Italy’s and Germany’s, to protect fundamental constitutional principles from being overridden by EU law. According to this principle, while EU law generally takes precedence over national law, it cannot override a country’s "core constitutional identity," which includes fundamental rights and key constitutional values. If an EU law conflicts with these core principles, national courts may refuse to apply it, maintaining their constitutional protections. This principle aims to balance national sovereignty with EU integration, allowing countries to uphold essential constitutional safeguards even within the EU legal system. 13/11 What is the citizenship of the European Union? Art. 9 TEU In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices, and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. Art. 20 TFEU 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. Created during the Maastricht Treaty in 1992. Acquisition of Citizenship: Member States are free to decide on the acquisition and loss of citizenship under their national legal orders. Micheletti Judgment: Under international law, each Member State, having due regard to Community law, is responsible for laying down conditions for the acquisition and loss of nationality. “The provisions of Community law concerning freedom of establishment preclude a Member State from withholding that freedom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host State deems him to be a national of the non-member country. Whenever a Member State, having due regard to Community law, has granted its nationality to a person, another Member State may not, by imposing an additional condition for its recognition, restrict the effects of the grant of that nationality with a view to the exercise of a fundamental freedom provided for in the Treaty, particularly since the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another.” The EU cannot establish criteria for the acquisition of the citizenship nor harmonize national legislation MS cannot question how citizenship is acquired in other Member States 1. Citizenship of the European Union (EU) 1. Definition and Purpose: ○ EU Citizenship: Established to create a unified space with common identity and rights for Member States' nationals. ○ Recognized by the CJEU as the "fundamental status of citizens of Member States." ○ It supplements, not replaces, national citizenship (Articles 9 TEU and 20 TFEU). 2. Creation: ○ Introduced by the 1992 Maastricht Treaty. ○ Grants rights and imposes duties tied to EU membership. 2. Acquisition and Rules Governing Citizenship 1. Member State Sovereignty: ○ Each Member State independently defines criteria for granting and revoking citizenship (Micheletti Judgment). ○ EU cannot harmonize these criteria, fostering mutual trust between states. 2. Notable Case Law: ○ Micheletti v. Delegación del Gobierno en Cantabria (C-369/90): Dual nationality case: Italy and Argentina.  Spain cannot impose additional conditions on recognizing Micheletti's Italian nationality. ○ Chen v. Secretary of State for the Home Department (C-200/02): A child’s EU citizenship (Irish nationality) granted the right to reside in another Member State (UK), ensuring the parent’s right to reside for caregiving. 3. Loss of EU Citizenship 1. Key Case: Rottman v. Freistaat Bayern (C-135/08): ○ Citizenship revocation due to deception (naturalization in Germany). ○ Court’s View: Legitimate to revoke, but proportionality must guide decisions to avoid statelessness. 2. Proportionality Principle: ○ Loss of EU citizenship must consider impacts on individual rights and freedoms. 4. Controversies: Citizenship “Sale” Schemes 1. Malta’s Investor Scheme: ○ Grants citizenship in exchange for substantial investments, criticized for lacking genuine ties. ○ The Commission argues this breaches EU principles (Article 20 TFEU). 2. Legal Developments: ○ Advocate General’s Opinion (2024): EU law does not explicitly require a "genuine link" for nationality but emphasizes compliance with national laws. 5. Rights of EU Citizenship EU citizenship ensures extensive rights, classified as follows: A. Free Movement and Residence (Directive 2004/38/EC): 1. Movement: ○ Right to leave and enter Member States with valid ID or passport. 2. Residence: ○ Up to 3 months: No formalities required. ○ Beyond 3 months: Conditions: Work, self-employment, sufficient resources + health insurance, or education. No undue burden on the host state’s social assistance system.  ○ Permanent Residence (5+ years): Unconditional right to stay but revocable if absent for 2+ years. B. Political Rights: 1. Voting and Candidacy: ○ Eligible for European Parliament and municipal elections in the state of residence, under the same conditions as nationals. ○ Elections adhere to EU democratic standards (proportional representation, secret ballot). C. Consular Protection (Article 23 TFEU): 1. Directive 2015/637: ○ Ensures assistance for EU citizens in third countries without their home Member State's representation. ○ Examples of assistance: Arrest, detention, or crime victimization. Serious accidents, illness, or death. Emergency travel documents and repatriation. D. Right to Petition and Address EU Institutions: 1. Petitions to European Parliament (Article 227 TFEU): ○ Citizens can raise issues directly affecting them within the Union’s scope. ○ Outcomes include acknowledgment, examination, and action where admissible. 2. European Ombudsman (Article 228 TFEU): ○ Investigates maladministration complaints against EU bodies (excluding CJEU). ○ Operates independently with a 5-year term, ensuring transparency and accountability. 6. Current and Recent Developments 1. 2024 Advocate General’s Opinion: ○ Reinforces Member States’ autonomy in defining nationality requirements. ○ However, EU law may limit practices undermining the integrity of EU citizenship. 2. Elections and Participation: ○ Preparation for European Parliament elections emphasizes enhanced citizen engagement. Class 7 - Nov 20 Petition to the European Parliament ○ Art. 227 TFEU: Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Union's fields of activity and which affects him, her or it directly. ○ Examples: Complaint, a request to adopt a position, request to act on a potential breach of rights, put attention on a public issue. ○ Registration -> acknowledgment -> summary -> decision on admissibility (if admitted, action follows -> publication) The Ombudsman ○ Elected by the European Parliament ○ Art. 228 TFEU: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12016E228 ○ Receives complaint from any citizen of the EU or any natural or legal person residing its having its registered office in a Member-State concerning instances of mal-administration in the activities of the Union institutions, bodies, offices or agencies (except the CJEU) ○ Reports on the instances received and refers them to the institution or body concerned; carries out inquiries. Right to information of the person who lodges the complaint. ○ 5 years term; can be reappointed; completely independent. New election in December 2014 HUMAN RIGHTS BETWEEN THE EUROPEAN UNION (EU) AND THE COUNCIL OF EUROPE (COE)  COE EU Human Rights in the European Union - a long path Stork (1958): The court is only required to ensure that in the interpretation and application of the Treaty, and of rules laid down for implementation thereof, the law is observed. There is no provision on the respect of fundamental rights in the Treaties Reaction from National Courts Internationale Handeslgesellschaft (1970): Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. While inspired by the constitutional traditions common to the Member States, the protection of such rights must be ensured within the framework of the Community's structure and objectives. Nold (1974): Similarly, international treaties for the protection of human rights on which the Member States have collaborated or are signatories can supply guidelines that should be followed within the framework of Community law. Today: Human rights in the European Union - 3 main sources Art 6. TEU 1. The Union recognises the rights, freedoms, and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.  3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. The Charter of Fundamental Rights of the European Union Some key features: Solemnly proclaimed in 2000, reaffirmed in 2007. Has the “same legal value as the Treaties” -> implications? EU must respect its provisions in secondary legislation A list of human rights on… ○ Dignity: Human dignity, right to life, integrity, prohibition of slavery. ○ Freedoms: Liberty, private and family life, personal data. ○ Equality: Before the law, between men and women, non-discrimination, children, the elderly, and people with disability. ○ Solidarity: Working rights, social assistance, healthcare. ○ Citizenship: Voting rights, free movement, diplomatic assistance, access to ombudsman, petition. ○ Justice: effective remedy, fair trial, right to defense, principle of legality. N.B. (Nota bene - pay attention) The Scope of the Charter, Art. 51 The provisions of this Charter are addressed to the institutions, bodies, offices, and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles, and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties; Protocol 30 - “NOTING THE WISH OF POLAND AND THE UNITED KINGDOM TO CLARIFY CERTAIN ASPECTS OF THE APPLICATION OF THE CHARTER…” Article 1 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law. Article 2 To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom. Art 1 of the Protocol explains art. 51 of the Charter BUT does not exempt Poland or (at the time) the UK from complying with the provisions of the Charter nor does it prevent a court of one of those Member States from ensuring compliance with those provisions. N.B. The scope of the Charter Art. 53 of the Charter: Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States'' constitutions. But see recent jurisprudence (means “legal system”) of the Court (Melloni judgment, Åklagaren judgment) Melloni judgment, 2013: ○ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62011CJ0399 ○ Article 53 of the Charter gives general authorization to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law. ○ Such an interpretation of Article 53 of the Charter cannot be accepted. That interpretation of Article 53 of the Charter would undermine the principle of the primacy of EU law since it would allow a Member State to disapply EU legal rules that are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution”. EU Law on Asylum - between protection and regulation The Common European Asylum System The Dublin Regulation The Qualification Directive The ‘Procedures’ Directive -> on common procedures to be shared among Member States The ‘Reception’ Conditions Directive -> on conditions of reception, such as food, clothing, access to healthcare and housing\ Qualification Directive (2011/95) In the EU -> 2 types of protection under the umbrella of International Protection  [Art. 2 Directive 95/2011” ‘international protection’ means refugee status and subsidiary protection status as defined in points (e) and (g)] Refugee status -> Geneva Convention (recognized by international law) Article 1 of the 1951 Convention defines a refugee as someone who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence, is unable or, owing to such fear, is unwilling to return to it." In the EU, a third-country national (see Protocol 24: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E%2FPRO%2F2 4) Examining the refugee - Two tests - In the EU, asylum claims are assessed under the Qualification Directive using two criteria: 1. Subjective Element (Test): Whether the applicant genuinely and personally holds a fear of persecution based on a Convention ground (e.g., race, religion, political opinion). 2. Objective Element (Test): Whether this fear is objectively well-founded, supported by evidence such as country of origin information (COI) or reports on systematic rights violations Subsidiary Protection -> Art. 2 and 15 Qualification Directive Class 9 - Nov 27 Subsidiary Protection -> Art. 2 and 15 Qualification Directive A person entitled to subsidiary protection is someone who “does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 (a) The death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c ) serious and individual threat to a civilian’s life or person because of indiscriminate violence in situations of international or internal armed conflict. The subsidiary protection is a very innovative and enhanced coverage of refugees. Rights of International Protection Beneficiaries  Duration: 5 years Family reunification without income requirements Freedom of movement in Italy Freedom of movement in the Schengen area (no visa for max 3 months) Right to adequate housing, social assistance, education, and work. Differences Documents for Travelling abroad Refugees can ask for documents from national authorities, and subsidiary protection holders in their country of origin. Naturalization (become Italian citizen) Refugees after 5 years Subsidiary Protection Holders after 10 years How to decide which MS examines the application Dublin Regulation (n. 604/2013) Art 8: Unaccompanied minors -> The MS where a family member or a sibling (or another relative, in their absence) is legally present, provided that it is in the best interest of the minor. In their absence, the MS where the minor has lodged the application. Art 9: Applicants with family members in a Member State -> that State is responsible, request in writing Art. 10: Family Member applicants in a Member State -> that State is responsible for all of them, request in writing. Art. 13: Where it is established [...] that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection. The EU & the ECHR Art. 6 (2) TEU: The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Art. l59 (2) ECHR: The European Union may accede to the Convention. Connections: The Accession of the EU to the ECHR A first failed attempt -> CJEU Opinion 2/13, 18 December 2014 The CJEU gave a negative opinion on the draft agreement Recent developments: The new draft agreement was adopted in March 2023 at the level of negotiators Must be submitted to the Court of Justice of the EU Must be submitted to the National Parliament for ratification Human Rights in the Council of Europe 75 year anniversary of the Council of Europe in 2024!!! 46 Member States “Promote democracy, human rights, and the rule of law across Europe and beyond” Organization: Secretary-General Committee of Ministers Parliamentary Assembly European Court of Human Rights Commissioner for Human Rights Other Monitoring and Advisory Bodies European Convention on Human Rights Art 33: Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party. Individual Complaints: The Court may receive applications from any person, non-governmental organization, or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Article 35: 1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of four months from the date on which the final decision was taken. 2. The Court shall not deal with any application submitted under Article 34 that (a) is anonymous; or (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits. 4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings. Soering v. the United Kingdom (1989) Having regard to the “death row phenomenon” he would thereby be subjected to inhuman and degrading treatment and punishment contrary to Article 3 of the Convention. Soering, a German citizen, was accused of killing people in Virginia and facing the death penalty, flew to the UK, and the US requested for him to be extradited. Hirsi Jamaa and others v. Italy (2011) “In the instant case, the Court can only find that the transfer of applicants to Libya was carried out without any form of examination of each applicant’s individual situation.” “The transfer of the applicants to Libya also violated Article 3 of the Convention because it exposed the applicants to the risk of arbitrary repatriation” Issues of Jurisdiction The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedom defined in Section I of this Convention. The question: what is jurisdiction? Jurisdiction is primarily territorial BUT There are exceptional situations in which the State is responsible for acts carried out outside its territory ○ Exercise of public powers in another State ○ Effective control over individuals (e.g. case of Hassan v. the United Kingdom) Derogation in time of emergency - Art. 15 ECHR 1. In times of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. Class 10 Preliminary Distinctions 1. External Action of the EU: ○ Broad term for the EU's international activities, focusing on diplomacy, development aid, trade, and security partnerships. ○ Goal: Build relationships with third countries, regional and global organizations (e.g., UN, WTO). 2. Common Foreign and Security Policy (CFSP): ○ Covers all foreign policy areas and issues affecting EU security. ○ Includes diplomacy, defense coordination, and global crisis responses. 3. Common Security and Defence Policy (CSDP): ○ Subset of CFSP focusing on peacekeeping, crisis management, and building a shared defense strategy. ○ May lead to a common defense framework within the EU. Normative Framework 1. Treaty on European Union (TEU): ○ Articles 21-22: Guide general external actions based on EU values. ○ Articles 23-41: Define CFSP and its intergovernmental nature. ○ Articles 42-47: Focus on CSDP, including mechanisms like PESCO. 2. Treaty on the Functioning of the European Union (TFEU): ○ Clarifies EU’s foreign policy roles and tools. ○ Article 2(4): Establishes EU competence in foreign policy areas. ○ Articles 205-222: Outline external action processes. ○ Article 275: Limits CJEU jurisdiction, with exceptions for sanctions involving individuals. Principles and Objectives of EU External Action 1. Principles: ○ Democracy, rule of law, and respect for human rights. ○ Adherence to the UN Charter and international law. ○ Promoting equality, solidarity, and human dignity. 2. Key Objectives (Article 21.2): ○ Safeguard EU values in international relations. ○ Prevent conflicts and promote sustainable peace. ○ Support disaster-stricken regions and foster economic sustainability. ○ Encourage multilateral cooperation and robust trade networks. 3. Coherence: ○ Internal policies must align with external actions to enhance effectiveness and consistency. Institutional Roles  1. European Council: ○ Defines overarching external strategy and objectives. ○ Decisions require unanimity, emphasizing Member States' influence. 2. Council of the EU: ○ Coordinates operational decisions and adopts CFSP-related measures. 3. High Representative for Foreign Affairs and Security Policy (HR/VP): ○ Serves as a key figure coordinating and representing EU external policies. ○ Ensures coherence between EU institutions and Member States in external actions. ○ Example: Kaja Kallas, as of December 2024, oversees EU responses to crises. 4. European External Action Service (EEAS): ○ A diplomatic body assisting the HR/VP and managing EU delegations worldwide. ○ Delegations represent the EU in political, trade, and developmental areas. Common Foreign and Security Policy (CFSP) 1. Intergovernmental Nature: ○ Decisions require Member States' unanimity, limiting EU-wide autonomy. ○ Legislative acts are excluded; focus is on resolutions and agreements. 2. Implementation: ○ Executed by Member States and the HR/VP. ○ Prioritizes alignment with EU values and international obligations. Common Security and Defence Policy (CSDP) 1. Functions: ○ Peacekeeping, conflict prevention, and strengthening international security. ○ Use of both civilian and military resources. 2. PESCO (Permanent Structured Cooperation): ○ Framework for enhanced defense collaboration among willing Member States. ○ Denmark is the latest participant; some remain outside, like Malta. 3. Collective Self-Defense (Article 42.7): ○ Obligation for Member States to assist others in cases of armed aggression, in line with UN principles. EU Missions and Operations 1. Mission Types: ○ Civilian: Justice reforms, training national officers, law enforcement support. ○ Military: Ceasefire monitoring, military training. 2. Examples: ○ EUBAM Rafah: Border assistance for Palestinian territories. ○ EUFOR Althea: Peacekeeping in Bosnia and Herzegovina. Sanctions and Restrictive Measures  1. Purpose: ○ Tools to enforce international norms or address security threats (e.g., terrorism, chemical weapons). 2. Types: ○ Economic embargoes, travel bans, asset freezes targeting individuals, groups, or states. 3. Adoption Procedure: ○ Proposed by the HR/VP and the Commission. ○ Adopted by the Council via a qualified majority vote. The European Peace Facility 1. Objective: ○ Enhance the EU’s capacity to prevent conflicts and stabilize regions. 2. Functions: ○ Provides military equipment and infrastructure to partner nations. ○ Supports international missions within humanitarian and international law. Current Challenges: The Palestinian Crisis 1. EU Position: ○ Advocates a two-state solution with peaceful coexistence. 2. Actions: ○ Missions like EUBAM Rafah (border support) and EUPOL COPPS (justice capacity building). ○ Sanctions on Hamas for terrorism support, including asset freezes and travel bans. ○ Humanitarian aid, focusing on food, shelter, health, and water. Key Developments 1. European Council (October 2024): ○ Condemned Hamas’ attacks and civilian casualties. ○ Called for: Ceasefire in Gaza. Hostage releases. Enhanced humanitarian aid access. ○ Supported mediation efforts by Egypt, Qatar, and the US.