European Union Integration Process PDF

Chapter 1: The Origins and Development of the European Integration Process and the EU Legal Order. Post-WWII Context The devastation of WWII prompted e orts for lasting peace and stability in Europe. Key Initiatives: ◦ 1948 Hague Congress: Discussed E...

Chapter 1: The Origins and Development of the European Integration Process and the EU Legal Order. Post-WWII Context The devastation of WWII prompted e orts for lasting peace and stability in Europe. Key Initiatives: ◦ 1948 Hague Congress: Discussed European unity (confederal, federalist, and functionalist visions). ◦ 1950 Schuman Declaration: Laid the foundation for integration based on economic solidarity.. Foundational Treaties and Communities European Coal and Steel Community (ECSC, 1951): ◦ Goal: Joint coal and steel production to prevent war. ◦ Founding Members: France, Germany, Italy, Belgium, Netherlands, Luxembourg. ◦ Institutional Framework: High Authority, Council, Assembly, and Court of Justice. European Economic Community (EEC, 1957): ◦ Treaty of Rome established the EEC to create a common market and harmonize economic policies. ◦ Broader scope than ECSC, including agriculture, transport, and competition policy. EURATOM (1957): ◦ Was stablished by the Treaty of Rome (1957) to promote cooperation in the eld of nuclear energy. The institutional framework of the three founding European Communities shared several core institutions but had distinct elements due to their di erent focuses and goals. Shared Institutions Across the Three Communities - Commission ◦ Role: Acts as the executive body and enforcer of the Communities’ policies. It had some variations in its powers across the three Communities, but generally, it was responsible for proposing legislation, managing policies, and ensuring compliance by member states. ◦ Key Feature: The High Authority of the ECSC was a precursor to the Commission but was more powerful in the ECSC context. - Council of Ministers ◦ Role: The Council represents member states' governments and was responsible for decision-making, including adopting legislation and setting policy direction. Its powers varied, especially regarding voting procedures and the scope of its decision-making authority, depending on the Community. - Parliamentary Assembly ◦ Role: The legislative body that represented the interests of citizens of the member states. In the case of the ECSC, this body was limited in its powers, but in the EEC, it had more in uence, and it eventually became the European Parliament under the Maastricht Treaty. - Court of Justice ◦ Role: Ensures uniform interpretation and application of the law across the Communities. This body was shared by all three Communities and had signi cant powers in the development of EU law, particularly through cases concerning the direct e ect and primacy of EU law. Distinct Institutions Across the Communities - ECSC (European Coal and Steel Community) ◦ High Authority: This was the most powerful institution in the ECSC, tasked with overseeing the coal and steel sector and ensuring compliance with Community rules. It had the authority to make binding decisions and was considered the supranational component of the ECSC. fl ff ff fi ff fi  ◦ Parliamentary Assembly: Limited powers, mainly advisory, compared to other institutions. - EURATOM (European Atomic Energy Community) ◦ Distinct Focus: EURATOM had its own Commission, Council, and Parliamentary Assembly, but its role was strictly limited to nuclear energy matters, including the peaceful use of atomic energy and nuclear safety. The institutions had similarities with the EEC but were more focused on sector-speci c regulation. - EEC (European Economic Community) ◦ Broader Scope: The EEC shared the same institutions (Commission, Council, Parliamentary Assembly, Court of Justice) but with a broader mandate to establish a common market and pursue economic integration in diverse sectors like agriculture, trade, and transportation. ◦ Merger Treaty (1967): The EEC and the other two Communities merged their institutions to form a uni ed structure, with the same Commission and Council overseeing all three Communities, creating an integrated governance system for the European Union. In conclusion, while the ECSC, EURATOM, and EEC shared common institutions like the Commission, Council, and Court of Justice, each had speci c roles tailored to their founding purposes. The merger in 1967 streamlined these structures into a uni ed set of institutions, paving the way for the modern European Union.. Milestones in the Integration Process Single European Act (1986) ◦ Codi ed European Council’s role and set a deadline for completing the internal market by 1992. Maastricht Treaty (1992) ◦ Established the European Union and introduced EU citizenship. ◦ Created a three-pillar structure: 1. European Communities (economic integration). 2. Common Foreign and Security Policy (CFSP). 3. Justice and Home A airs (JHA). Amsterdam Treaty (1997) ◦ Simpli ed decision-making and prepared for EU enlargement. ◦ Introduced "enhanced cooperation" for member states opting into speci c initiatives. Lisbon Treaty (2007) ◦ Abolished the three-pillar structure, giving the EU a single legal personality. ◦ Made the Charter of Fundamental Rights legally binding.. Key Principles Underpinning EU Legal Order Supranationalism: Transfer of sovereign powers from states to EU institutions. Gradualism: Integration achieved step-by-step, starting with economic collaboration. De Facto Solidarity: Economic interdependence fosters political unity (Schuman Declaration). Key Case Van Gend en Loos (1963): ◦ Established the doctrine of direct e ect, allowing individuals to invoke EU treaty provisions before national courts. Case Background: Facts: ◦ A Dutch transport company, Van Gend en Loos, imported a product from Germany. ◦ Dutch customs authorities increased import duties, violating Article 12 of the EEC Treaty (now Article 30 TFEU), which prohibited new customs duties or equivalent charges. ◦ Van Gend en Loos challenged the duty, arguing that it directly infringed upon their EU treaty rights. Key Findings of the Court: 1. New Legal Order: fi fi fi ff ff fi fi fi fi  ◦ The EEC Treaty created a new legal order of international law, conferring rights and obligations not only on member states but also directly on individuals. ◦ The case is foundational because it established that EU law can have direct e ect, meaning individuals can directly invoke speci c EU treaty provisions in national courts without relying on member states to implement them. 2. Direct Effect Requirements: ◦ For a treaty provision to have direct e ect, it must be: 1. Clear and precise. 2. Unconditional (not dependent on further implementation by national or EU authorities). 3. Supremacy of EU Law: ◦ Established that EU law takes precedence over con icting national law, forming the basis for the primacy of EU law. 4. Empowerment of Individuals The case marked a shift, emphasizing that EU law is not just about state-to-state obligations, but also about creating enforceable rights for individuals. It paved the way for individuals to challenge national laws and administrative actions that violate EU law in their own national courts. Outcome: Article 12 of the EEC Treaty was held to have direct e ect, and Van Gend en Loos could rely on it in Dutch courts. Signi cance: Foundation of EU Legal Order: Recognized EU law as a self-contained system where individuals can directly enforce rights. Empowered Individuals: Enabled citizens to challenge national laws that breach EU rules in their own courts. This case is pivotal in de ning the relationship between EU law, member states, and individuals. Van Gend en Loos transformed the nature of EU law by allowing individuals to bypass member state authorities and seek remedies directly through national courts when their rights under EU law are violated. This principle makes EU law highly e ective and enforceable at the grassroots level. Chapter 2: The Institutional Framework of the European Union Key Institutions The EU's institutional framework consists of institutions with distinct roles, collectively ensuring the balance between supranationalism and intergovernmentalism. 1. European Commission Role: Executive body responsible for: ◦ Proposing legislation. ◦ Ensuring enforcement of EU law (guardian of treaties). ◦ Representing the EU in international negotiations. Composition: One Commissioner from each member state. Key Feature: Independent of national governments, acting in the EU's interest. 2. European Council Role: Sets the EU's political direction and priorities. ◦ De nes strategic goals, especially on complex issues like migration and foreign policy. Composition: Heads of state or government from member states, plus the President of the European Council and the President of the Commission (no voting rights). Key Feature: Not involved in legislative functions. 3. Council of the European Union (Council of Ministers) fi fi fi ff ff fi fl ff ff  Role: Co-legislator (with the European Parliament), adopts EU laws, and coordinates policies. Voting: ◦ Quali ed Majority Voting (QMV) for most areas (55% of member states, representing 65% of the EU population). ◦ Unanimity in sensitive areas like foreign policy and taxation. Con gurations: Di erent ministers participate based on the agenda (e.g., ECOFIN for nance). 4. European Parliament Role: Represents EU citizens and shares legislative and budgetary powers with the Council. Key Powers: ◦ Co-decision with the Council in the Ordinary Legislative Procedure. ◦ Approves and supervises the European Commission. ◦ Participates in budget approval. Composition: Directly elected members (MEPs), with proportional representation among member states. 5. Court of Justice of the European Union (CJEU) Role: Ensures uniform interpretation and application of EU law. Structure: ◦ Court of Justice: Handles references from national courts (preliminary rulings). ◦ General Court: Reviews decisions made by EU institutions. Key Power: Resolves disputes between member states, EU institutions, and individuals. Key Principles Underpinning the Framework 1. Institutional Balance: Each institution operates within the powers conferred by the treaties. 2. Sincere Cooperation: Institutions must collaborate in good faith to achieve EU objectives. Signi cance The institutional framework ensures that the EU operates e ectively by balancing supranationalism (e.g., the Commission, CJEU) with intergovernmentalism (e.g., European Council, Council of Ministers), re ecting the shared sovereignty model of the EU. Chapter 3: The EU Competences – Principles of Conferral, Subsidiarity, and Proportionality Principles Governing EU Competences Conferral: ◦ De nition: The EU can act only within the limits of the competences explicitly conferred on it by the treaties. Competences not conferred to the EU remain with member states. ◦ Examples: ◦ Customs Union (EU competence). ◦ Healthcare policy (primarily member state competence). Legal Basis: Article 5(2) TEU. Subsidiarity: ◦ De nition: In areas of shared competence, the EU acts only if: 1. The proposed action cannot be su ciently achieved by member states individually. 2. It can be better achieved at the EU level due to its scale or e ects. ◦ Application: Ensures that decisions are made as close to citizens as possible unless cross-border issues require EU intervention. Oversight Mechanisms: National Parliaments can review EU legislative proposals under subsidiarity using the Yellow Card and Orange Card procedures: ◦ Yellow Card: If 1/3 of national parliaments object to a proposal, the Commission must review it. ◦ Orange Card: If a majority of national parliaments object, the Council and Parliament must decide whether to proceed. Legal Basis: Article 5(3) TEU. fl fi fi fi fi fi ff ffi ff ff fi  Proportionality : ◦ De nition: The EU’s actions must not exceed what is necessary to achieve the objectives set out in the treaties. ◦ Examples: ◦ A regulation requiring detailed reporting may be deemed disproportionate if simpler measures achieve the same goal. Legal Basis: Article 5(4) TEU. Types of Competences (TFEU Articles 3–6) The treaties classify EU competences into three main categories to clarify the scope of EU and member state powers: Exclusive Competence (Article 3 TFEU): ◦ De nition: Only the EU can legislate and adopt legally binding acts. Member states cannot act unless empowered by the EU. ◦ Areas include: ▪ Customs union. ▪ Competition rules for the internal market. ▪ Common commercial policy. Shared Competence (Article 4 TFEU): ◦ De nition: Both the EU and member states can legislate. However, EU law takes precedence when the EU acts in a given area. ◦ Areas include: ▪ Internal market. ▪ Environment. ▪ Consumer protection. Supporting Competence (Articles 5–6 TFEU): ◦ De nition: The EU can act only to support or coordinate member states' actions. EU measures cannot harmonize national laws. ◦ Areas include: ▪ Education. ▪ Culture. ▪ Tourism. Flexibility and Exceptional Powers Flexibility Clause (Article 352 TFEU): ◦ Requires unanimous agreement by the Council and consent of the Parliament. It cannot be used to expand competences beyond what is authorized by treaties. Example: Actions related to climate change, which were not originally foreseen in earlier treaties. Theory of Implied Powers: ◦ Recognized by the CJEU, enabling the EU to act where powers are essential to achieving conferred competences. ◦ Example: External agreements in areas tied to internal competences. Signi cance These principles and competence classi cations ensure a clear division of powers between the EU and member states, preserving sovereignty while enabling e ective EU action in key areas. Key Cases Omega (C-36/02, 2004) ◦ The protection of public policy, including human dignity, can justify restrictions on fundamental EU freedoms such as the free movement of goods and services, provided the restrictions are proportional and necessary. Case Background Facts: ◦ Omega, a German company, sought to operate a laser-tag game involving simulations of killing ("laser combat"). fi fi fi fi fi fi ff  ◦ The city of Bonn prohibited the activity, citing concerns over human dignity, protected under German constitutional law. ◦ Omega challenged the prohibition, claiming it violated EU law, particularly the freedom to provide services under Article 56 TFEU (formerly Article 49 EC). ◦ The equipment for the game was imported from the UK, implicating the free movement of goods under Article 34 TFEU. Court's Ruling Human Dignity as Public Policy Justi cation: ◦ The CJEU con rmed that human dignity is a legitimate ground for restricting EU fundamental freedoms. ◦ Member states have broad discretion in de ning public policy, as it re ects their national values. Proportionality of the Measure: ◦ The restriction must be necessary and proportional to achieve the stated public policy objective. ◦ The German ban was deemed proportional because it speci cally targeted activities simulating homicide and did not impose a blanket ban on other games or services. Balancing Fundamental Rights and Freedoms: ◦ The Court highlighted the need to balance EU freedoms (free movement of services and goods) with fundamental rights, such as the protection of human dignity. Signi cance ◦ Public Policy and Fundamental Rights: This case broadened the scope of public policy exceptions, particularly for issues tied to national constitutional values like human dignity. ◦ Proportionality test: Reinforced that any restriction on EU freedoms must be proportional and not excessive. ◦ Autonomy of Member States: Member states retain signi cant discretion in de ning public policy, but their measures must align with EU law. The Omega case con rmed that member states can restrict the free movement of services and goods to protect public policy, such as human dignity, provided the measure is proportional and necessary. Council v Commission (C-409/13) The case addressed the balance of powers between the Council of the EU and the European Commission in international agreements. It established that the Commission can withdraw its legislative proposals if amendments made by the Council distort the essence of the proposal and its intended purpose. Case Background Facts: ◦ The European Commission proposed signing a decision concerning the EU's position in an international sheries agreement. ◦ The Council of the EU adopted a di erent position, altering key aspects of the proposal, particularly on nancial contribution levels. ◦ The Commission withdrew its proposal, arguing that the Council’s amendments distorted the substance of the decision. ◦ The Council challenged the Commission’s ability to withdraw its proposal, claiming it interfered with the Council's power to amend proposals. Court's Ruling Commission's Right to Withdraw Proposals: ◦ The CJEU a rmed that the Commission has the power to withdraw its legislative proposals before the Council adopts them, especially if the amendments made by the Council undermine the proposal’s essential purpose. ◦ This power ensures the institutional balance between the Council, which represents member states, and the Commission, which represents the EU's interest. Council’s Limitations: fi ffi fi fi fi fi ff fi fi fi fi fl fi  ◦ While the Council can amend proposals, it cannot fundamentally alter the essence or purpose of the proposed decision. Doing so infringes on the Commission’s prerogative to de ne the policy direction. Preserving Institutional Balance: ◦ The ruling reinforced the principle of institutional balance between the Council and the Commission, ensuring neither institution oversteps its treaty-based powers. Signi cance ◦ Institutional Balance: The case clari ed the roles and limits of the Council and Commission in the legislative process. The Council cannot force the Commission to accept fundamental changes that distort its proposals. ◦ Commission’s Autonomy: Highlighted the Commission’s discretion to withdraw proposals, protecting its role as the initiator of legislation in the EU. ◦ Precedent for International Agreements: This case is particularly relevant in the context of international agreements, where a clear division of powers is critical for negotiations and decision-making. The Council v Commission (C-409/13) case reinforced the Commission’s right to withdraw proposals if the Council’s amendments distort their essence, ensuring the institutional balance between the EU's executive and legislative bodies. Chapter 4: Sources of EU Law – Primary Law: Treaties and General Principles Primary law is the highest level in the EU legal hierarchy, forming the backbone of the EU's legal system. It serves as the legal basis for all EU action and underpins the functioning of EU institutions, the distribution of competences, and the protection of fundamental rights. Key Treaties Comprising Primary Law Treaty on European Union (TEU) Focus: Broad constitutional principles of the EU. Important Articles: ◦ Article 1 TEU: Establishes that the EU operates on conferred competences. ◦ Article 2 TEU: Declares EU values, including democracy, human dignity, equality, and respect for human rights. ◦ Article 3 TEU: De nes the EU’s objectives, such as promoting peace, ensuring a single market, and achieving sustainable development. ◦ Article 5 TEU: Lays out the principles of conferral, subsidiarity, and proportionality that govern EU competences. Treaty on the Functioning of the European Union (TFEU) Focus: Detailed rules on the EU’s functioning and competences. Important Parts: ◦ Part 1 (Principles): Establishes non-discrimination and equality as key principles. ◦ Part 2 (Non-Discrimination and Citizenship): Articles 18–19 prohibit discrimination on the basis of nationality and other factors like gender or race. ◦ Part 3 (Union Policies and Internal Actions): Governs areas like the internal market, competition, agriculture, and the environment. Charter of Fundamental Rights of the European Union Legal Status: Became binding with the Lisbon Treaty in 2009. Purpose: Consolidates fundamental rights already protected under the ECHR and national constitutions. Structure: ◦ Title I (Dignity): Right to life, prohibition of torture. ◦ Title II (Freedoms): Privacy, freedom of thought, and expression. ◦ Title III (Equality): Non-discrimination, equality before the law. ◦ Title IV (Solidarity): Workers’ rights and social protection. ◦ Title V (Citizens' Rights): Voting rights, freedom of movement. fi fi fi fi  ◦ Title VI (Justice): Right to a fair trial and e ective remedy. General Principles of EU Law General principles serve as unwritten norms derived from treaties, the constitutional traditions of member states, and international law. They provide exibility and ll gaps where speci c treaty provisions may not exist. Rule of Law Ensures that all actions by EU institutions and member states comply with EU law and are subject to judicial review. Equality and Non-Discrimination Ensures no unfair treatment based on nationality, gender, age, religion, or other factors. Key Case: Mangold – Extended the principle of non-discrimination to areas not explicitly covered by EU directives. Legal Certainty and Legitimate Expectations EU laws must be clear and predictable. Individuals can expect that EU institutions and member states will not act retroactively or arbitrarily. Proportionality EU actions must be suitable and necessary to achieve their objectives without exceeding what is required. Key Case: Fedesa (1990) – De ned proportionality as a measure being: 1. Appropriate to achieve the objective. 2. Necessary to achieve the objective. 3. Not excessive compared to its purpose. Subsidiarity Ensures decisions are taken as closely as possible to the citizen, limiting EU action to cases where member states cannot e ectively achieve the goal. Fundamental Rights Protection Inspired by the ECHR and member states’ constitutional traditions. Key Case: Stauder (1969) – Recognized the protection of fundamental rights as general principles of EU law. Hierarchy of Norms in EU Law 1. Primary Law: Treaties and general principles. 2. Secondary Law: Regulations, directives, and decisions. 3. Soft Law: Guidelines, recommendations, and opinions (non-binding). Principle of Supremacy Established in Costa v ENEL (1964): EU law takes precedence over con icting national law, ensuring uniform application across member states. Direct Effect of Primary Law Certain treaty provisions and general principles can have direct e ect, meaning individuals can invoke them in national courts. Criteria for Direct E ect (established in Van Gend en Loos): 1. The provision must be clear and precise. 2. It must be unconditional. 3. It must not require further implementation by national authorities. Key Signi cance of Primary Law 1. Foundation of the EU Legal Order: Primary law de nes the institutional framework, competences, and objectives of the EU. 2. Flexibility through General Principles: Allows the legal system to evolve and adapt to new challenges. 3. Uniformity and Integration: Principles like supremacy and direct e ect ensure EU law is consistently applied across all member states. 4. Citizen Empowerment: Direct e ect allows individuals to enforce their rights under EU law in national courts. fi ff ff fi ff ff fl fi fi ff ff fl fi  Chapter 5: Sources of EU Law – Primary Law and the Protection of Fundamental Rights The Evolution of Fundamental Rights Protection in the EU Initially, the EEC Treaty (1957) did not explicitly address fundamental rights, as the EU’s focus was primarily economic. Fundamental rights gained prominence through the Court of Justice of the European Union (CJEU), which recognized their importance as general principles of EU law. Milestones in development: ◦ Stauder v City of Ulm (1969): First case where the CJEU acknowledged fundamental rights as general principles of EU law. ◦ Lisbon Treaty (2009): Made the Charter of Fundamental Rights of the EU (CFR) legally binding. Sources of Fundamental Rights in the EU The EU draws on multiple sources to ensure the protection of fundamental rights: Charter of Fundamental Rights of the European Union (CFR) Became legally binding in 2009 under the Lisbon Treaty (Article 6 TEU). Structure: ◦ Title I: Dignity (e.g., right to life, prohibition of torture). ◦ Title II: Freedoms (e.g., privacy, expression, assembly). ◦ Title III: Equality (e.g., non-discrimination, gender equality). ◦ Title IV: Solidarity (e.g., workers’ rights, environmental protection). ◦ Title V: Citizens' Rights (e.g., voting rights, freedom of movement). ◦ Title VI: Justice (e.g., fair trial, presumption of innocence). Scope of Application: ◦ Applies to EU institutions and member states only when implementing EU law (Article 51 CFR). ◦ Does not extend to purely national matters. European Convention on Human Rights (ECHR) While the EU is not formally a party to the ECHR, the CJEU has aligned its rulings with the European Court of Human Rights (ECtHR). Lisbon Treaty (Article 6 TEU): Provides for EU accession to the ECHR, though this has not yet been achieved. Key Case: Kadi (2008): Demonstrated the EU’s commitment to human rights, even in the context of international obligations (e.g., UN sanctions). General Principles of EU Law Derived from: ◦ Common constitutional traditions of member states. ◦ International agreements (e.g., UN treaties). Ensure protection of rights not explicitly codi ed in EU law. Example: The right to non-discrimination was recognized before being codi ed in EU directives. Fundamental Rights in Practice Binding E ect of the Charter Ensures that EU institutions and member states respect fundamental rights when implementing EU law. Key Case: Digital Rights Ireland (2014) – The CJEU struck down the Data Retention Directive for breaching fundamental rights to privacy and data protection (Articles 7 and 8 CFR). Interaction with National Systems National courts must ensure that fundamental rights are respected when implementing EU law. Key Case: Melloni (2013) – The CJEU ruled that national authorities cannot invoke higher national standards of rights if it undermines the uniform application of EU law. Con ict with International Obligations fl ff fi fi  The CJEU ensures EU fundamental rights take precedence, even in the face of con icting international obligations. Key Case: Kadi (2008) – Fundamental rights outweighed UN sanctions imposed without proper safeguards. Challenges and Limitations Scope of Application: ◦ The CFR only applies when member states are implementing EU law (Article 51 CFR), not in purely national contexts. Harmonization vs. Diversity: ◦ Balancing a uni ed standard of rights while respecting member states’ diverse constitutional traditions. Accession to the ECHR: ◦ The EU’s accession to the ECHR remains incomplete due to institutional and legal complexities. Signi cance of Fundamental Rights Protection in the EU 1. Legal Certainty: Ensures that individuals’ rights are uniformly protected across all member states. 2. Judicial Oversight: The CJEU plays a critical role in interpreting and enforcing fundamental rights. 3. EU Integration: Balances the supranational nature of the EU with the diversity of national constitutional systems. 4. Global In uence: The EU’s robust fundamental rights framework serves as a model for human rights protection globally. The EU’s fundamental rights protection has evolved signi cantly, with the Charter of Fundamental Rights now a central, legally binding component of primary law. Complemented by the ECHR and general principles of EU law, the EU provides a robust framework for protecting rights, although challenges remain in ensuring consistency across member states. Key cases Mangold (C-144/04) The Mangold case established that general principles of EU law, such as non-discrimination on the grounds of age, can have direct e ect and must be applied by national courts, even if an EU directive has not yet been fully implemented by a member state. Case Background Facts: ◦ Mangold, a 56-year-old German worker, was employed under a xed-term contract based on a German law that permitted such contracts for older workers to promote their employment. ◦ Mangold challenged the law, arguing that it discriminated against him on the basis of age, contrary to Directive 2000/78/EC (which prohibits discrimination in employment). ◦ The directive's transposition deadline had not yet expired, but Mangold argued that the principle of non-discrimination as a general principle of EU law was already applicable. Court’s Ruling General Principle of Non-Discrimination: ◦ The prohibition of discrimination on the grounds of age is a fundamental principle of EU law. ◦ National courts must apply this principle regardless of the directive’s transposition status. Directive 2000/78/EC as a Reference: ◦ Although the directive was not directly applicable, it provided speci c guidance on the principle of non-discrimination. Disapplication of National Law: ◦ National laws that con ict with EU general principles, such as non-discrimination, must be set aside by national courts, even in disputes between private parties (horizontal direct e ect). 5. Signi cance ◦ Primacy of EU Law and General Principles: Reinforced the primacy of EU law by requiring national courts to uphold general principles over con icting national laws. fi fi fl fi fl ff fl fi fi fi fl ff  ◦ Horizontal Direct Effect of General Principles: Extended the scope of general principles, such as non-discrimination, to disputes between private parties, even though directives do not typically have horizontal direct e ect. ◦ Broad Application of Non-Discrimination: Strengthened the EU’s commitment to combating discrimination, with age discrimination recognized as a critical area. The Mangold case is pivotal because it highlighted that general principles of EU law, like non- discrimination, are enforceable immediately, even without the directive being fully implemented, and take precedence over con icting national laws. Puppinck (C-418/18) The Puppinck case clari ed the European Citizens’ Initiative (ECI) mechanism and reinforced the European Commission’s discretionary powers when responding to an ECI, even if it meets formal requirements. Case Background Facts: ◦ The European Citizens’ Initiative (ECI) titled "One of Us" sought to prohibit EU funding for activities that involve the destruction of human embryos, particularly in scienti c research and development aid. ◦ The ECI gathered over 1.7 million valid signatures across the EU, meeting the criteria for consideration by the Commission. ◦ The Commission decided not to act on the ECI after reviewing its content and legal implications, citing existing policy frameworks. ◦ Puppinck and others challenged the Commission's refusal, arguing it violated democratic principles and the ECI process. Court’s Ruling Discretion of the Commission: ◦ The Commission is not obliged to propose legislation in response to an ECI, even if it formally complies with all requirements. ◦ The Commission must provide reasons for its decision, ensuring transparency and accountability. Democratic Function of the ECI: ◦ The ECI serves as a mechanism for participatory democracy, allowing citizens to request legislative consideration. ◦ However, it does not diminish the Commission’s exclusive right of initiative under EU law (Article 17 TEU). Commission’s Decision Upheld: ◦ The Court ruled that the Commission acted lawfully by explaining its refusal to propose new legislation. Signi cance ◦ Commission’s Exclusive Right of Initiative: The case rea rmed that while the ECI allows citizens to in uence the legislative agenda, the Commission retains full discretion over whether to act on these initiatives. ◦ Transparency Requirements: The Commission must justify its decision, ensuring that ECIs are not dismissed arbitrarily, thereby maintaining the credibility of the participatory process. ◦ Limitations of the ECI: Highlighted the non-binding nature of the ECI, underscoring its role as a tool for advocacy rather than a direct legislative instrument. The Puppinck case established that the European Citizens’ Initiative is a participatory democracy tool, but the European Commission has no legal obligation to act on it, provided the Commission gives su cient reasoning for its decisions. Chapter 6: Sources of EU Law – Secondary Law: Regulations, Directives, and Decisions ffi fi fl fi fl ff ffi fi  Secondary law refers to the legally binding acts and instruments created by EU institutions to implement and apply the provisions of primary law (e.g., TEU, TFEU). Legal basis for secondary law: Article 288 TFEU, which outlines the forms of secondary law. Types of Binding Secondary Law Regulations De nition: Binding legislative acts that apply directly and uniformly across all member states without requiring national implementation. Key Features: 1. Direct applicability: Regulations become enforceable as soon as they are published in the O cial Journal of the EU. 2. Uniformity: Ensures consistency across all member states, avoiding discrepancies. 3. Supremacy: Takes precedence over con icting national laws. Examples: General Data Protection Regulation (GDPR): Establishes uniform rules for data protection across the EU. Directives De nition: Binding legislative acts that specify the result to be achieved but allow member states to choose the form and methods of implementation. Key Features: 1. Not directly applicable: Directives must be transposed into national law within a speci ed period. 2. Flexibility: Allows member states to adapt the directive to their national legal systems. 3. Partial direct e ect: If a directive is not properly implemented, individuals may rely on it against the state (vertical direct e ect). Key Case: Francovich v Italy (1991): States can be held liable for failing to implement a directive if individuals su er damages. Examples: Consumer Rights Directive: Harmonizes consumer protection across the EU. Decisions De nition: Binding legislative acts addressed to speci c individuals, companies, or member states. Key Features: 1. Directly binding: Applies only to the addressees (e.g., member states, corporations). 2. Does not require implementation: Binding in its entirety. Examples: Merger control decisions by the European Commission directed at companies. Types of Non-Binding Secondary Law Non-binding instruments include recommendations and opinions. While these do not have legal force, they in uence the interpretation and development of EU law. Example: A recommendation on environmental policy might guide future binding legislation. Hierarchy of Secondary Law 1. Legally Binding Acts: Regulations, directives, and decisions. 2. Non-Binding Acts: Recommendations and opinions. 3. Delegated and Implementing Acts: Further speci ed in Articles 290 and 291 TFEU: ◦ Delegated Acts: The Commission makes non-legislative acts to amend or supplement certain elements of EU legislation (e.g., detailed rules). ◦ Implementing Acts: Ensure uniform implementation across member states. Enforcement of Secondary Law Direct Effect: ◦ Regulations are directly applicable and enforceable in national courts. ◦ Directives can have vertical direct e ect (individuals vs. state) but not horizontal direct e ect (individuals vs. individuals). State Liability: ◦ Established in Francovich: Member states can be held liable for damages caused by failure to implement directives. ff ffi fi fi fi fl ff ff ff ff fl fi fi fi  Importance of Secondary Law ◦ Uniformity and Integration: Regulations and directives ensure the consistent application of EU policies across all member states. ◦ Flexibility for Member States: Directives allow member states to adapt implementation based on national contexts, balancing harmonization and sovereignty. ◦ Judicial Enforcement: Secondary law is directly enforceable in national courts, ensuring compliance with EU law and protecting individual rights. ◦ Dynamic Nature: Delegated and implementing acts allow the EU to address evolving needs and technical details e ciently. Chapter 7: The Creation of EU Secondary Law – Decision-Making Procedures Legal Basis for EU Decision-Making Article 289 TFEU: De nes legislative acts as laws adopted following a legislative procedure. The treaties (TEU and TFEU) outline the legal framework and determine which legislative procedure applies to speci c policy areas. Decision-making is guided by the principles of conferral, subsidiarity, and proportionality. Legislative Procedures The EU uses two main legislative procedures to create secondary law: Ordinary Legislative Procedure (OLP) De nition: The default and most common legislative process where the European Parliament and the Council of the EU jointly adopt legislation. Steps: 1. Proposal by the European Commission: ▪ The Commission submits a legislative proposal based on treaty provisions. 2. First Reading (Parliament and Council): ▪ Parliament reviews, debates, and votes on the proposal. It may suggest amendments. ▪ The Council then reviews Parliament’s position. If it agrees, the proposal is adopted. If not, amendments are proposed. 3. Second Reading: ▪ Both institutions examine each other's amendments. ▪ If disagreements persist, the proposal moves to conciliation. 4. Conciliation: ▪ A Conciliation Committee (representatives from Parliament and the Council) works to resolve di erences. 5. Final Adoption: ▪ Both Parliament and the Council must approve the nal text for it to become law. Key Features: Ensures democratic accountability by involving both directly elected MEPs and member state representatives. Applies to most policy areas, including the internal market, environment, and consumer protection. Special Legislative Procedure (SLP) De nition: A procedure used in speci c policy areas where either the Council or the Parliament has more power. Types: Consent Procedure: ▪ The Council adopts legislation, but Parliament must give its approval (cannot amend). ▪ Example: International agreements like trade deals. Consultation Procedure: ▪ The Council consults Parliament but is not bound by its opinion. ▪ Example: Taxation and competition policy. Key Features: Grants the Council greater in uence in areas considered sensitive or intergovernmental in nature. fi fi ff fi fi ffi fl fi fi  Role of EU Institutions in Decision-Making European Commission Initiates legislation: The Commission has the exclusive right to propose EU laws. Mediates: Acts as a neutral broker between the Parliament and the Council during negotiations. Implements law: Once adopted, the Commission oversees implementation through delegated and implementing acts. European Parliament Represents EU citizens and co-legislates in the Ordinary Legislative Procedure. Role in Special Legislative Procedures: ◦ Gives consent or issues opinions but has less in uence compared to the Council. Ensures transparency and accountability in the legislative process. Council of the European Union (Council of Ministers) Represents member states’ governments. Co-legislates with Parliament in the OLP. Holds signi cant power in the Special Legislative Procedure (e.g., taxation). In addition to legislative acts, the EU uses non-legislative procedures for speci c purposes: Delegated Acts (Article 290 TFEU) De nition: Non-legislative acts that supplement or amend certain non-essential elements of legislative acts. Adoption: The Commission adopts these acts, but Parliament and the Council can revoke the delegation or object to speci c acts. Example: Adding technical details to existing laws (e.g., environmental standards). Implementing Acts (Article 291 TFEU) De nition: Non-legislative acts that ensure uniform implementation of EU law across member states. Supervision: The Council or committees of member state representatives oversee the Commission's adoption of implementing acts. Example: Setting rules for product labelling or certi cation. Voting Mechanisms in the Council The Council uses di erent voting procedures depending on the policy area: Quali ed Majority Voting (QMV) Default rule for most decisions. Threshold: 55% of member states (15/27) representing 65% of the EU population. Ensures e ciency while protecting smaller states. Unanimity Required for sensitive areas like foreign policy, taxation, and treaty amendments. Simple Majority Used for procedural or administrative matters. Transparency and Accountability Legislative transparency ensures that EU citizens and stakeholders can monitor the decision-making process. Documents, proposals, and voting records are publicly accessible, enhancing trust in the legislative process. Importance of Decision-Making Procedures ◦ Democratic Legitimacy: The OLP ensures a balance between democratic representation (Parliament) and intergovernmental cooperation (Council). ◦ Flexibility: Di erent procedures (OLP, SLP, delegated acts) allow for tailored approaches to various policy areas. ◦ Uniformity and Ef ciency: The Commission ensures proposals are harmonized and that laws are e ectively implemented across the EU. fi fi fi ffi ff fi ff fi ff fi fl fi fi  Chapter 8: The Direct E ect of EU Law Direct e ect means that provisions of EU law can create rights and obligations for individuals, which national courts are obligated to enforce. Introduced in the landmark case Van Gend en Loos (1963), it transformed EU law into a new legal order that applies not only to member states but also to individuals. Criteria for Direct Effect For a provision to have direct e ect, it must meet speci c criteria: 1. Clear and Precise: The obligation must be unambiguous. 2. Unconditional: The provision must not depend on further actions by EU institutions or member states. 3. Negative Obligations: It must impose a negative obligation (e.g., to refrain from certain actions) or be complete in itself. Example: In Van Gend en Loos, Article 12 EEC (now Article 30 TFEU) met these criteria by explicitly prohibiting customs duties. Scope of Direct Effect Direct Effect of Treaty Provisions Van Gend en Loos (1963) established that treaty provisions can have direct e ect if they meet the criteria. Example: Article 45 TFEU (free movement of workers) has direct e ect and can be invoked by individuals. Direct Effect of Regulations Regulations are directly applicable by nature (Article 288 TFEU) and have full direct e ect. National authorities must apply regulations as they are, without the need for implementation measures. Example: Leonesio v Italian Ministry of Agriculture (1972) – Individuals enforced a regulation granting nancial bene ts for cattle slaughter. Direct Effect of Directives Directives are binding as to the result to be achieved but require implementation by member states. Vertical Direct E ect: ◦ If a member state fails to implement a directive or implements it incorrectly, individuals can invoke it against the state (or state entities). ◦ Established in Van Duyn v Home O ce (1974). Horizontal Direct E ect: ◦ Directives cannot generally be invoked against private individuals or companies (Marshall v Southampton Health Authority (1986)). Direct Effect in Different Legal Instruments Decisions: ◦ Decisions addressed to speci c individuals or entities can have direct e ect for those addressees. International Agreements: ◦ Some international agreements entered into by the EU can have direct e ect if they meet the criteria (e.g., EU-Turkey Association Agreement in Demirel (1987)). State Liability for Failure to Implement Direct Effect When direct e ect cannot fully resolve an issue (e.g., horizontal situations), the Francovich principle (1991) provides that member states can be held liable for failing to implement directives. Criteria for State Liability: 1. The directive confers rights on individuals. 2. The breach is su ciently serious. 3. There is a causal link between the breach and the damage su ered. Direct Effect vs. Consistent Interpretation Even when direct e ect is not applicable, national courts are obligated to interpret national laws in conformity with EU law (Marleasing (1990)). This ensures that EU objectives are still achieved indirectly. ff fi ff ff ffi ff ff fi fi ff ffi ff fi ff ff ff ff ff ff  Importance of Direct Effect ◦ Empowers Individuals: Direct e ect allows individuals to enforce EU law rights in their own national courts without relying on their governments. ◦ Ensures Uniform Application: Direct e ect creates a consistent legal framework across all member states, reducing discrepancies in enforcement. ◦ Reinforces Supremacy: National courts must give precedence to EU law with direct e ect over con icting national legislation. Chapter 9: Primacy of EU Law Primacy of EU law means that when there is a con ict between EU law and national law, EU law prevails, and national courts must set aside the con icting national provisions. The principle is essential to ensure that EU law is applied uniformly across all member states, safeguarding the EU’s legal order. Legal Basis for Primacy Treaty Provisions: ◦ The treaties themselves do not explicitly mention primacy, but the principle has been established and reinforced through CJEU case law. ◦ Declaration 17 of the Lisbon Treaty rea rms the primacy of EU law, referencing Costa v ENEL and subsequent case law. Development of the Principle The Court of Justice of the European Union (CJEU) developed the principle of primacy through landmark rulings: Costa v ENEL (1964) Key Principle: Established the primacy of EU law over national law, even over later-enacted national laws. Rationale: EU law constitutes a new legal order, and its e ectiveness would be undermined if national laws could override it. Quote from the Case: “The transfer by the States of rights and obligations arising under the Treaty results in a permanent limitation of their sovereign rights.” Simmenthal (1978) Key Principle: National courts must immediately disapply con icting national laws without waiting for those laws to be annulled by national authorities. Signi cance: Strengthened the role of national courts as enforcers of EU law. Factortame (1990) Key Principle: National courts must suspend the application of national legislation if it con icts with EU law. Example: A UK law restricting shing rights was set aside to comply with EU regulations. Scope of Primacy Primacy Over National Constitutions Internationale Handelsgesellschaft (1970): ◦ The CJEU held that EU law takes precedence even over fundamental principles in national constitutions. ◦ However, this has led to tensions, as some national constitutional courts (e.g., German Federal Constitutional Court) have reserved the right to review the compatibility of EU acts with national constitutional principles. Application to All National Laws Primacy applies to: Constitutional Laws: EU law takes precedence even over national constitutions. Statutory Laws: National statutes con icting with EU law must be disapplied. Administrative Acts: National administrative decisions that breach EU law are invalid. Limitations to Horizontal Situations While primacy applies in all con icts involving public authorities, its e ect in horizontal situations (private individuals vs. private individuals) depends on the speci c EU provision and its direct e ect. fi fl fi fl ff ff fl ffi fl fl ff fl fi ff ff fl ff  Tensions Between EU Law and National Courts Solange Cases (Germany) Solange I (1974): The German Constitutional Court reserved the right to review EU law until fundamental rights protections were su ciently ensured at the EU level. Solange II (1986): The Court accepted the primacy of EU law as long as the EU continued to provide adequate fundamental rights protection. Weiss Case (2018) The German Constitutional Court challenged the CJEU’s ruling on the European Central Bank’s monetary policy, illustrating the ongoing tensions between EU primacy and national constitutional sovereignty. Role of National Courts National courts are the primary enforcers of EU law and play a critical role in ensuring its primacy: Direct Application: They must apply EU law directly when it con icts with national law. Disapplication: Courts must set aside national laws that contravene EU law without requiring legislative or administrative intervention. Example: In Simmenthal, the CJEU clari ed that national courts are obligated to disapply con icting laws even if there is no explicit instruction from national authorities. Challenges to the Principle of Primacy ◦ National Sovereignty: Some member states, particularly their constitutional courts, have challenged the absolute primacy of EU law. ◦ Lack of Explicit Treaty Provision: The absence of a clear treaty article codifying primacy can be a source of contention. ◦ Judicial Resistance: Courts in some member states, such as Poland and Hungary, have recently questioned the application of primacy, citing national constitutional identity. Importance of Primacy 1. Uniformity: Ensures that EU law is applied consistently across all member states. 2. E ectiveness: Guarantees that EU laws achieve their intended objectives without being undermined by national legal systems. 3. Integration: Strengthens the supranational nature of the EU by limiting the scope for national divergence. The primacy of EU law ensures the supremacy of EU provisions over con icting national laws, as established in key cases like Costa v ENEL and Simmenthal. While essential for uniformity and integration, the principle faces challenges from national sovereignty claims and judicial resistance in some member states. National courts play a critical role in upholding this principle, making it a cornerstone of the EU’s legal system. Key cases Simmenthal (C- 106/77, 1978) The Simmenthal case rmly established the obligation of national courts to immediately disapply con icting national laws when they clash with EU law, reinforcing the primacy of EU law and the role of national courts in upholding it. Case Background Facts: ◦ Simmenthal, an Italian company, imported beef from France into Italy. ◦ Italian authorities imposed a public health inspection fee on the imports. ◦ Simmenthal argued that the fee was contrary to EU law, speci cally Article 30 TFEU (prohibition of charges having equivalent e ect to customs duties). ◦ The Italian court was uncertain about its ability to disapply the Italian law and sought a preliminary ruling from the Court of Justice of the European Union (CJEU). Court’s Ruling Primacy of EU Law: ff fl fi ffi fi ff fi fl fl fl  ◦ The CJEU rea rmed that EU law takes precedence over any con icting national law, whether it was adopted before or after the EU provision. Obligation to Disapply Conflicting National Law: ◦ National courts must immediately disapply any national law that con icts with directly applicable EU law. ◦ Courts cannot wait for the national law to be repealed by the legislature or invalidated by a higher court. Effectiveness of EU Law: ◦ EU law must be fully e ective in all member states, and national courts are obligated to ensure this e ectiveness. No Procedural Barriers: ◦ National procedural rules (e.g., requiring referral to a constitutional court) cannot prevent or delay the disapplication of con icting national law. Key Principles Established Immediate Disapplication: ◦ National courts must ensure the direct and immediate application of EU law. ◦ They cannot refer cases to higher national courts or wait for con icting laws to be annulled through legislative or judicial processes. Primacy of EU Law: ◦ EU law has absolute supremacy over national law, ensuring its uniform and e ective application across all member states. Role of National Courts: ◦ National courts are decentralized enforcers of EU law and must act independently to protect the supremacy and e ectiveness of EU law. Signi cance of Simmenthal ◦ Strengthened the Primacy of EU Law: Simmenthal clari ed that EU law must take precedence without exception, even if national procedural rules would suggest otherwise. ◦ Empowered National Courts: National courts were recognized as key players in upholding EU law, ensuring that individuals can directly rely on EU provisions. ◦ Legal Certainty: The case reinforced the principle that EU law must be applied immediately and uniformly, avoiding delays caused by national legal systems. ◦ Direct Applicability: Highlighted that provisions of EU law, especially treaty provisions and regulations, are directly applicable in national courts. The Simmenthal case established that national courts must immediately disapply any con icting national law to uphold the primacy of EU law, ensuring its full e ectiveness and uniform application across the EU. Foto-Frost (C- 314/85, 1987) The Foto-Frost case established that only the Court of Justice of the European Union (CJEU) has the power to declare EU acts invalid. National courts may question the validity of EU acts but must refer the matter to the CJEU under Article 267 TFEU. Case Background Facts: ◦ Foto-Frost, a German company, imported goods from a non-EU country. ◦ German customs authorities charged import duties based on an EU regulation. Foto-Frost contested the validity of the regulation, claiming it was unlawful under EU law. ◦ The German national court questioned whether it could declare the EU regulation invalid on its own without referring the matter to the CJEU. Court's Ruling Exclusive Competence of the CJEU: ◦ National courts do not have the authority to declare EU acts invalid. ◦ Only the CJEU has the exclusive jurisdiction to declare an EU act (regulations, directives, or decisions) invalid. Obligation to Refer: ff fi ffi ff fl ff ff fi fl fl fl ff fl  ◦ If a national court doubts the validity of an EU act, it must refer the question to the CJEU under the preliminary ruling procedure (Article 267 TFEU). ◦ National courts can rule on the validity of EU acts provisionally but cannot invalidate them. Uniformity of EU Law: ◦ This exclusive jurisdiction ensures the uniformity and consistency of EU law across all member states. ◦ Allowing national courts to invalidate EU acts would risk fragmentation and con icting rulings. Validity and Interpretation: ◦ While national courts may interpret EU law, they must defer to the CJEU for questions regarding validity. Key Principles Established Centralized Judicial Review: ◦ Only the CJEU can declare EU acts invalid to ensure consistency and legal certainty across the EU. Role of National Courts: ◦ National courts play a crucial role in applying EU law but are limited to referring questions of validity to the CJEU. Obligation to Refer: ◦ If a national court has doubts about the validity of an EU act, it must seek a preliminary ruling from the CJEU. ◦ This ensures that no con icting rulings arise from di erent national courts. Signi cance of Foto-Frost ◦ Preserves Uniformity: Ensures a single, authoritative interpretation of EU law by centralizing the power to invalidate EU acts in the CJEU. ◦ Prevents Fragmentation: Avoids a situation where di erent national courts might declare EU acts invalid, undermining the legal order. ◦ Clari es the Role of National Courts: While national courts are empowered to apply and interpret EU law, they must refer questions of validity to the CJEU. The Foto-Frost case established that only the CJEU has the authority to declare EU acts invalid, ensuring the uniformity and supremacy of EU law across all member states. Chapter 10: The Duty of Consistent Interpretation De nition of Consistent Interpretation Consistent interpretation obliges national courts to interpret domestic laws as far as possible in line with the wording and purpose of EU law, even if the domestic law predates the EU provision. This principle applies broadly to all EU legal provisions, including treaties, regulations, directives, and general principles of EU law. Legal Basis Article 4(3) TEU: Establishes the principle of sincere cooperation, requiring national authorities to ensure the e ective application of EU law. Case Law: The CJEU developed the principle of consistent interpretation through landmark cases such as Von Colson (1984) and Marleasing (1990). Scope of the Duty Directives Directives are binding only as to the result to be achieved, but consistent interpretation ensures their e ectiveness, especially in cases where direct e ect does not apply. Example: If a directive lacks horizontal direct e ect (individual vs. individual), consistent interpretation ensures its objectives are still achieved. Regulations and Treaties National courts must also ensure consistent interpretation of domestic law with directly applicable EU regulations and treaty provisions. Temporal Scope ff fi fi fi ff fl ff ff ff ff fl  Consistent interpretation applies to all domestic laws, including those enacted before or after the relevant EU provision. Limitations Interpretative Boundaries: National courts are not required to interpret domestic laws contra legem (against their clear meaning). Clarity of EU Law: The EU provision must provide su cient guidance for consistent interpretation. Key Case: Wagner Miret (1993) – The CJEU ruled that consistent interpretation cannot apply when domestic law explicitly con icts with EU law. Interaction with Other EU Law Principles Direct Effect and Consistent Interpretation When direct e ect is unavailable (e.g., horizontal cases with directives), consistent interpretation acts as an alternative means of ensuring the e ectiveness of EU law. Primacy and Consistent Interpretation The principle complements primacy by encouraging national courts to align their legal interpretations with EU law before resorting to disapplication of con icting national laws. State Liability If consistent interpretation fails to achieve EU objectives, individuals may claim damages under the principle of state liability (Francovich case). Practical Importance Ensures Uniformity: Promotes the uniform application of EU law across all member states, minimizing legal discrepancies. Reduces Con icts: Avoids direct clashes between national and EU law by harmonizing interpretations. Preserves Domestic Sovereignty: Provides a cooperative mechanism where national courts align laws with EU provisions rather than outright disapplying con icting domestic laws. Challenges and Limitations 1. Contra Legem Interpretation: Courts cannot rewrite national laws to comply with EU law. 2. Clarity of EU Provisions: Vague EU directives or regulations may hinder e ective consistent interpretation. 3. Judicial Expertise: National courts may lack su cient knowledge of EU law, impacting their ability to interpret laws consistently. The duty of consistent interpretation requires national courts to interpret domestic law in line with EU law to ensure its e ectiveness and uniform application. Landmark cases like Von Colson, Marleasing, and Pfei er demonstrate how this principle operates, especially when direct e ect or primacy cannot fully resolve con icts. While consistent interpretation enhances cooperation between national and EU legal systems, its limitations—such as contra legem interpretations—highlight the ongoing challenges in ensuring EU law's supremacy. Chapter 11: Member States’ Liability for Breaching EU Law Member State liability refers to the obligation of member states to compensate individuals for damages caused by breaches of EU law. Introduced in Francovich v Italy (1991), it is a fundamental principle to ensure the practical enforcement of EU law. Legal Basis Derived from the principle of sincere cooperation under Article 4(3) TEU, which requires member states to ensure the ful llment of EU obligations. Reinforced by CJEU case law, particularly Francovich and subsequent rulings. Criteria for Member State Liability Established in Francovich and clari ed in Brasserie du Pêcheur and Factortame (1996), the CJEU outlined three cumulative criteria: 1. The EU Law Confers Rights on Individuals: ◦ The breached provision must intend to grant speci c rights to individuals. ff fl ff fl ff fi fl fi ff ffi fi ffi fl fl ff ff  ◦ Example: Rights under directives, such as equal treatment or environmental protection. 2. The Breach Is Suf ciently Serious: ◦ A breach is su ciently serious if the member state has manifestly and gravely disregarded the limits of its discretion. ◦ Example: Failure to transpose a directive within the set deadline. 3. Direct Causal Link Between the Breach and Damage Suffered: ◦ Individuals must prove that the breach directly caused their loss or harm. Key Cases on Member State Liability Francovich v Italy (1991) Principle: Established Member State liability for failing to implement EU law. Facts: Italy failed to implement a directive requiring the creation of a fund to protect employees in cases of employer insolvency. Ruling: Individuals could claim damages from the state for not implementing the directive, as it conferred speci c rights. Brasserie du Pêcheur and Factortame III (1996) Principle: Clari ed and broadened the criteria for liability, including the requirement of a su ciently serious breach. Facts: ◦ Brasserie du Pêcheur: A French brewery claimed damages after Germany adopted beer purity laws that violated free movement rules. ◦ Factortame III: Spanish shermen sought compensation for losses caused by a UK law restricting their shing rights, which was found to breach EU law. Ruling: Both cases emphasized the need for manifest and grave disregard of EU law for liability. Scope of Liability Liability for Legislative Inaction: States can be held liable for failing to implement directives or other binding measures. Example: Francovich. Liability for Legislative Action: States are liable for adopting national laws that con ict with EU law. Example: Factortame III. Liability for Judicial Action: Extends to breaches by national courts of last instance. Example: Köbler. Liability for Administrative Actions: Breaches caused by administrative bodies (e.g., environmental permits that violate EU law) can trigger liability. Interaction with Other Principles Direct Effect and Primacy When direct e ect or primacy cannot fully remedy a situation, Member State liability acts as a fallback mechanism to ensure enforcement. State Liability vs. Consistent Interpretation Consistent interpretation is preferred to avoid direct con ict between national and EU law. However, when consistent interpretation is not possible, liability ensures individuals can seek redress. Practical Importance Individual Rights: ◦ Provides a remedy for individuals who su er harm due to a member state’s breach of EU law. Accountability: ◦ Encourages member states to comply with their EU obligations, knowing they could face nancial consequences for breaches. Uniform Enforcement: ◦ Reinforces the uniform application of EU law across all member states. Judicial Oversight: ◦ Empowers national courts to play a key role in ensuring state accountability under EU law. Challenges and Limitations ◦ Proving Suf ciently Serious Breaches: Determining what constitutes a manifest and grave disregard of EU obligations can be subjective. fi ff ffi fi fi fi fi fi ff fl fl fi ffi  ◦ Causation and Evidence: Individuals must establish a direct causal link between the breach and the harm, which can be complex. ◦ Judicial Reluctance: National courts may hesitate to hold their own governments or judicial systems liable for breaches of EU law. Key Takeaways Criteria for Liability: Rights conferred, su ciently serious breach, and causal link. Broad Scope: Liability covers legislative, administrative, and judicial actions or inactions. Judicial Precedents: Cases like Francovich, Brasserie du Pêcheur, and Köbler de ne the principle’s application. E ectiveness: Acts as a critical mechanism to uphold the rights of individuals under EU law and ensure state compliance. Key cases