EU Law Semester 2 Year 1 PDF

Lecture 1 – History of EU and its Institutions EU Law : - important tool for the organization, functioning and development of EU - includes substantive law (e.g. EU consumer law) but also constitutional law (the EU’s legal foundations, the institutions, the relation between EU law and national law etc.) Evolution of the EU since 1945: - Europe in ruins after WW II - Divided continent and a divided Germany - Start of the cold war - Marshall Plan The 1950’s: - 18 April 1951 signing of the Treaty establishing the European Coal and Steel Community (ECSC) - 6 founding member states: o France o West-Germany o Italy o The Netherlands o Belgium o Luxembourg - Several attempts to create further political integration (European Defense Community, European Political Community) failed - The ‘low road of economic integration’ proved more feasible - 25 March 1957 signing of the Treaty establishing the European Economic Community (EEC) (+ Treaty establishing the European Atomic Energy Community (Euratom)) - Same 6 founding member states The EEC Treaty: - Signed 25 March 1957 in Rome - Entered into force 1 January 1958 - Focus on economic integration - Common market - Most of the current institutions (European Commission, European Parliament, Council, Court of Justice) already present (albeit under slightly different names) - EEC Treaty would remain unchanged for 30 years (until the Single European Act) The 1960’s and 1970’s: - No formal treaty amendment - But several legally relevant developments took place: o case-law (Van Gend & Loos + Costa ENEL) (1963, 1964) o Merger Treaty (1965)  1 o Luxembourg compromise (1966) o Creation of the European Council (1974) o Agreement on direct elections for the European Parliament (1979) o Enlargement (new member states; first round of accessions in 1973 The Single European Act: - Entered into force 1 July 1987 - Treaty amending the EEC treaty (for the first time) - Single market (abolishment of internal borders) - Role of the EP strengthened - Formal inclusion of the EC in the Treaties The Maastricht Treaty: - Entered into force 1 November 1993 - absorb geopolitical shock of 1989 for EEC - EEC became the EC (European Community) - Amendment of the EEC Treaty (which became the EC Treaty) - Creation of the EU by way of the TEU - ‘Pillar structure’ - Economic and Monetary Union (EMU) - Union Citizenship ‘Pillar structure’: - European Communities (EC Treaty) - Common Foreign and Security Policy (EU Treaty) - Justice and Home Affairs / Police and judicial cooperation (EU Treaty) - ‘Communitarization’, i.e., the moving of parts of the 3rd pillar to the 1st (Amsterdam Treaty) - Abolishment of the pillar structure (current Lisbon Treaty) Recurring issues treaty amendments ‘Amsterdam’ and ‘Nice’: - Entered into force: 1999 (Amsterdam) and 2003 (Nice) - Division of competences between the EU and the member states - Decision-making - Institutional arrangements (e.g. number of seats in EP, votes per member state in the CEU) The Constitutional Treaty: - Convention method (instead of Intergovernmental Conference / IGC) - Ambition to produce one single document - Rejected in two referenda (2005) - Much of the content would be maintained 2 The Lisbon Treaty: - Signed 13 December 2007 - Entered into force 1 December 2009 - Amendment of the TEU - Amendment and renaming of the EC Treaty, now it is called the Treaty on the Functioning of the European Union (TFEU) - Single legal entity (EU) (EC has ceased to exist) - EU Charter legally binding - Enhanced role for the EP - Permanent President for the EC The EU as a regulatory entity: - ECSC and EEC deeply political endeavors but primarily of a regulatory nature - With a huge increase of competences over time, the EU has become a magnificent regulatory machinery - EU is a political community in the making - exists to serve the interests of its member states and its citizens EU and MS: - EU is not becoming a ‘superstate’ that will replace the member states - The EU does not have Kompetenz-Kompetenz (the power to determine what its competences are) - MS jointly are the primary legislature of EU - no such thing as free membership - MS are obliged to act in good faith (principle of sincere cooperation, principle of solidarity) - includes the acceptance of binding decisions even when outvoted - voluntary decision to become or remain MS of the EU - National governments have always played an important role in EU decision-making - MS are represented in EC by their head of state or government and in the CEU by their government EU’s Constitution: - For the EU these rules follow from primary law (Treaties + Charter), case-law, practice and convention→ the EU’s constitutional settlement Lecture 2 – EU’s political Institutions EU’s institutional framework: - The European Parliament (EP) - The European Council (EC) Political institutions - The Council (CEU) - The European Commission (COMM) - The Court of Justice of the European Union (CJEU) 3 - The European Central Bank - The Court of Auditors The Executive Branch – attributions: - Taking responsibility, action, initiative (active) - Determining the (longer term) direction of the body politic (taking political decisions, setting the legislative agenda) - Dealing with crises and unforeseen events - Other (e.g. appointments) - Generally consists of (elected) politicians The Executive Branch – members: - EC - The President of EC - The Euro Summit - COMM - The President of COMM - CEU (Foreign Affairs Council + Eurogroup and their Chairs) - The ECB - DUAL EXECUTIVE: EC + COMM EC – membership: - Heads of state or government are members of the EC - Dual role for heads of state or government - National elections determine EC membership - Political and constitutional consequences at national level EC – role: - EC factual role is still more significant than described in the Treaties - national constitutions (political executive institutions generally the least defined legally) The permanent President of EC: - Since Lisbon Treaty - Elected by the members - Term in office 2,5 years, renewable once - Sets the agenda and chairs meetings - External representation - Internal cohesion, facilitating consensus - Presents a report to EP after each meeting Decision-making in EC: - Frequency of meetings - twice every six months, in practice more often - Conclusions adopted after each meeting - Adopted by consensus 4 - Conclusions not legally binding but factually they are considered as such - No legislative functions - But: power to take several legally binding decisions on the basis of specific Treaty provisions, e.g. appointment of the High Representative - For such decisions, the President of EC and the President of COMM shall not take part in a vote - Informal meetings of the heads of state or government (to have exchanges of views) - Informal contacts between individual members or with the cabinet of EC’s president COMM: - Original institution (High Authority ECSC) - Represents the general interest of the Union - Independent body - Consisting of commissioners and a president - Each commissioner has a portfolio (e.g. competition, energy) with a Directorate-general (civil servants) - One member of the Commission per member state (27 in total) - Originally 2 commissioners for the large member states - Initiatives to limit the size of the Commission so far to no avail (effectively set aside) - Difficult to create for each Commissioner a relevant portfolio COMM – membership: - Term in office 5 years (aligned with electoral calendar of the European Parliament) - MS decide who they want to suggest as ‘their’ Commission member - Hearings with candidate members before EP - Vote of consent from EP for COMM as a body (on that basis appointed by EC) - COMM as a body responsible to EP; the EP can send home the whole COMM but not individual commissioners - ‘Special’ members: o Most Commissioners are just commissioners o Vice-President also known as The High Representative o Executive Vice-President (appointed as such by the COMM President) o The President COMM President – role: - Internal role - External role: representing COMM (before the EP) and representing EU - Member of the EC - After EP elections, EC proposes a candidate for COMM President to the EP; the EP has to elect this candidate COMM – tasks and responsibilities: - Promote the general interest of EU - Ensure and oversee the application of EU law (by MS) 5 - External representation - Budgetary and management functions - Other (coordinating) functions laid down in the Treaties - Right of initiative in practice - The content and timing of an initiative from COMM can often be traced back to conclusions of EC - EC in its conclusions often makes specific requests to COMM to make use of its right of initiative EU’s dual executive: - EC leads EU - EC has the political authority, COMM has the right of initiative and a lot of expertise Lecture 3 - EU institutions II Institutional Balance : - Complex institutional design: o need to ensure checks and balances o strike a balance between elected and non-elected institutions o balance between EU-wide interests and national interests - EU institutions have to act within the limits of their respective powers in the context of a division of powers defined by the Treaties - the institutional balance is maintained as long as every institution does not exceed its respective powers to the detriment of the others - Maintaining the institutional balance is particularly important in the framework of the legislative procedure - Strengthening role of EP throughout the history of the European integration – now on equal footing with CEU The Legislative Branch: - EP: most resembling a national parliament – directly elected - CEU: o CEU consists of 1 minister from each MS o But ministers are acting as much as representatives of their Member States as officers of the executive! o Important difference with national systems is the exclusive right of initiative of the COMM to propose new legislation. EP: - only directly elected EU institution - 705 Members of the European Parliament (MEPs) - Represents 447 million inhabitants 6 - Powers: o Legislative o Budgetary o Supervisory - Seats – Strasbourg, Brussels, Luxembourg EP – membership: - elected for a term of 5 years by direct universal suffrage (right to all adult citizens to vote) in a free and secret ballot - EU citizens e right to vote and to stand as candidates in elections to EP - EC decides about the composition of EP - Before Brexit - 751 MEPs, after Brexit - 705 MEPs - Principle of ‘degressive proportionality’: The basic concept consists of assigning fewer seats to larger states than their corresponding proportion, in order to assign more seats to smaller states EP President: - EP elects its President from among its members - President is elected for a term of 2.5 years – renewable - Functions (mainly organization and representation): o Represents EP towards the outside world & the other EU institutions o Oversees the work of EP in its constituent bodies as well as the plenary debates o Sets out the EP’s point of view in every EC meeting concerning the topics on the agenda o Signs the EU’s budget adopted by EP to render it operational o Signs the legislative acts adopted under the ordinary legislative procedure EP – The Plenary: - The high point of the EP’s political activity - plenary sittings represent the culmination of the legislative work done in committee and in the political groups - forum where representatives of the citizens of the EU – the MEPs - take part in the EU’s decision-making and express their standpoint vis-à-a vis the COMM and CEU - Meets in Strasbourg every month + additional part-sessions in Brussels EP – Transnational political groups: - According to their political affinities → MEPs form political groups with a transnational character - Each political group must: o Comprise MEPs elected from at least 25% of the Member States o Consist of at least 23 MEPs o Hold regular meetings & seminars to determine the main principles of their activity 7 o MEPs may not belong to more than one political group o MEPs can choose not to belong to any political group and become nonattached EP – Committees: - MEPs are divided up among 26 specialized standing committees (to organise their work internally) - Role of MEPs in committees: o Amend & adopt legislative proposals o Draw up reports prepared on MEPs’ own initiative, to be presented in the plenary assembly o Organize hearings with experts o Scrutinize other EU institutions & bodies - For each legislative proposal, the EP allocates a ‘rapporteur’ (MEP) in the relevant committee - EP can set up: o Sub-committees & special temporary committees dealing with specific issues EP – Delegations: - Delegations: Official groups of MEPs who develop & maintain relations with the parliaments of non-EU countries, regions or organizations - EP currently has 45 permanent delegations - Every MEP is a member of a delegation & some belong to more than one - Role of MEPs in delegations: o Help to represent the Union externally o Promote in 3rd countries the EU’s fundamental values o Organize "inter-parliamentary meetings" to discuss issues directly with elected representatives from the countries they focus on EP – Intergroups: - Formed by MEPs from any political group & any committee - Intergroups are not formal bodies of the EP and therefore, they may not express EP’s opinion! - Role of MEPs in intergroups: o to hold informal exchanges of views on specific topics & promote exchange of views between MEPs & civil society EP – powers: - Two main categories: o Legislative and budgetary functions o Political control, supervisory and consultation powers Legislative and budgetary power of EP: - legislative functions jointly with the CEU - ordinary legislative procedure 8 - special legislative procedure - CEU and EP adopt EU budget Consultation power of EP: - Special legislative procedure - Consultation and consent procedures - EP does not legislate as in the ordinary legislative procedure Supervisory and Control power of EP: - Control over the executive: o Appointment & removal of COMM o Question COMM & receive a reply, orally or in writing o Discuss in open session the annual general report submitted to it by COMM o Set up a Temporary Committee of Inquiry – to investigate alleged contraventions or maladministration in the implementation of EU law - Protecting interests of citizens, residents and legal persons registered in the EU: o Right to petition EP – on issues falling within Union competence and which affect the complainant directly o EP elects the European Ombudsman who receives complaints about instances of maladministration. Individuals may complain either directly or through an MEP. o Right to address EP in any of the official languages of EU with a question & to receive an answer in the same language Power to litigate of EP: - can bring an action to the CJEU against other Union institutions, bodies, agencies - Acts or omissions of EP can also be challenged! CEU: - “The Council of Ministers” - Consists of ministers from Member States - Convenes in 10 different council groups (council of interior ministers, justice ministers, etc.) - Legislative power, together with the EP - Budgetary power, together with the EP - EC and CEU are the institutions of the European Union, but they have TOTALLY different functions - consists of a representative of each Member State at ministerial level, who may commit his/her government & cast its vote - Ministers in CEU act on instruction from their government & represent their government’s interest - BUT They also act as an institution of EU & should represent the EU’s interest → Frictions between the interests of EU & the national interests of the individual MS CEU – membership: - no fixed members in the Council - 10 different configurations depending on the policy area 9 - The list of the configurations is determined by EC (except the General Affairs Council & the Foreign Affairs Council) - Each country sends its minister or state secretary responsible for the relevant policy area - The General Affairs Council: o Ensures consistency in the work of the different CEU configurations o Prepares & ensures follow-up to meetings of the EC, with the President of EC and COMM o Responsible for institutional, administrative & horizontal matters - The Foreign Affairs Council: o Elaborates EU’s external action on the basis of strategic guidelines laid down by EC o Ensures that EU’s action is consistent o Is chaired by the High Representative - In addition to the General Affairs Council & the Foreign Affairs Council: o Economic & Financial Affairs o Justice & Home Affairs o Employment, Social Policy, Health & Consumer Affairs o Agriculture & Fisheries o Environment o Competitiveness – including Internal Market, Industry, Research, Space o Education, Youth, Culture & Sport o Transport, Telecommunications & Energy - NO hierarchy among the Council configurations! CEU President : - CEU is chaired by a Presidency held by each Member State in turn for 6 months - The order of the rotating presidency is decided by the EC - Member States holding the presidency work together in 'trios‘ - Roles: o Acting as an honest & neutral broker o Planning and chairing meetings in the CEU and its preparatory bodies such as COREPER –> safeguarding the rules of procedure o Representing the CEU in relations with the other Union institutions – facilitating agreement on legislative initiatives o Working in close coordination with the President of EC & the High Representative CEU – powers: - Legislative and budgetary powers - Coordination of MS policies - Concluding international agreements - Foreign & security policy 10 Coordination of MS policies: - Economic & fiscal policies: o Drafts broad guidelines on the Economic Policies of MS and of EU based on a COMM recommendation o MS coordinate their economic policies within CEU o CEU monitors MS budgetary policies - Tasks of CEU under economic policy coordination are vaguely defined → informal decisions raise concerns with regard to their democratic character - Employment: o CEU adopts annual Guidelines on the Employment Policy for MS based on the EC conclusions on the employment situation in EU - Education, vocational training, youth and sport: o CEU adopts recommendations based on COMM proposals Concluding International Agreements: - Provides the mandate to the Commission to negotiate on behalf of the Union, agreements between: o The EU & non-EU states o The EU & international organizations - Adopts the final decision to conclude the agreement, once EP has given its consent (required in areas set forth in the Treaties) and it has been ratified by all MS Foreign and Security Policy: - Together with the High Representative, CEU ensures the unity, consistency and effectiveness of the EU's external action - Defines and implements EU’s foreign and security policy following the guidelines provided by the EC - Can launch EU crisis management actions, both civil and military, to pursue EU's objectives of peace & security - Can adopt measures to implement the EU's foreign & security policy, including sanctions CEU – decision-making: - Once a COMM proposal is received → text examined simultaneously by COU and EP (“reading”) - At each reading, the proposal passes through 3 stages in COU: o Working Party (→ technical scrutiny) o Permanent Representatives (COREPER) (→ technical expertise + political consideration) o CEU configuration (→ political responsibility at ministers’ level) COREPER: - CEU’s main preparatory body - Purpose: o to ensure permanent presence of MS in Brussels 11 o ensure link between the national governments & EU institutions - Composition: o COREPER II (Permanent Representative of a MS to the EU) o COREPER I (Deputy Permanent Representative of a MS to the EU) - COREPER II: ‘high politics’ – Foreign Affairs, Economic and Financial Affairs, Justice and Home Affairs, General Affairs - COREPER I: ‘low politics’ – Agriculture and Fisheries, Employment, Social Policy; Competitiveness, Education and other CEU configurations - They are assisted by several working groups composed by civil servants from the MSs chaired by a representative of the MS holding the Presidency of CEU - Tasks: o Closely follow EU’s activities on a daily basis o Prepare the work of CEU & carry out tasks given by it - No formal decision-making power - but strong influence on CEU - A COMM proposal for a legislative act arrives first to the COREPER & usually ends up in one of its working groups, where the real negotiations take place CEU – voting: - Unanimity – all Member States in favor, usually used under special legislative procedures - Simple majority – 14 Member States in favor, usually used for procedural issues - Qualified majority – the general voting rule under the ordinary legislative procedure: o At least 55% of MS (15) & representing at least 65% of the EU population, vote in favor o To block a decision - at least 4 CEU members are needed, 35% of the population - A member of CEU may only act on the behalf of one other member CEU can vote only if a majority of its members are present Lecture 4 – Competences of the EU The European Legal Order: - often associated with: o territorial state o hierarchy of norms that govern the exercise of public power o the relations between the citizens and vis-à-vis the executive - Constitutions are constituting the state, creating a legal order withing which the state can operate - No EU constitution per - Instead→ MSs who have decided to transfer some of their powers to an international legal body through Treaties - the EU’s legal actions are – even if only theoretically – only as effective as the MSs’ legal orders allow them to be 12 - CJEU has stated and reiterated that there is a European legal order that sets aside whatever national rules exist EU Constitutional Structure: - Founding values and aims - Articles 2+3 TEU - Democratic principles - Articles 9-12 TEU - Basic Principles of Law - Articles 4-6 TEU - Economic Freedoms - Article 18 TFEU - Horizontal Requirements - Articles 8-17 TFEU Basic Principles of EU Law: - Principle of conferral of competence - Requires respect for EU’s actions: o Subsidiarity and proportionality o Fundamental rights o National identity - Effectiveness: o Principle of sincere cooperation o Principle of primacy of EU Law Principle of Conferral: - EU can only act if the Treaties explicitly authorize it to do so - there must always be a legal basis for EU action→ no Treaty base = no grounds to act Principle of Conferral – legal basis: - Requirement that all EU measures must have a legal basis is important for two reasons: o Material safeguard: ensures EU does not overstep its competences by taking action in areas where it is not authorized to do so o Procedural safeguard: TFEU prescribes different decision-making procedures and varying degrees of institutional involvement for EU action depending on the area in question Issues determined by legal basis: - The field in which EU action is possible - The type of act that is made - The procedure to be followed - Rarely: degree or type of harmonization Principle of Conferral – Breach – Action for annulment: - a lack of competence to act→ the CJEU can annul EU secondary legislation - Action for annulment must be instituted within two months of the publication of the measure - If the CJEU annuls an EU law this law is declared to be void→ see case Tobacco Advertising I 13 Principle of Conferral – classification of competences Principle of Conferral – Exercise of EU Competences: - Important principles governing use of EU competences: o Principle of subsidiarity (only non-exclusive competences) o Principle of proportionality - Guidelines concerning their practical application: o Protocol No 1 on the role of the national Parliaments in the EU o Protocol No 2 on the principles of subsidiarity and proportionality Principle of Conferral – Subsidiarity: - The principles of subsidiarity and proportionality govern the exercise of the EU’s competences - In areas of non-exclusive competences → safeguards the ability of the MSs to take decisions and action and authorizes intervention by the EU when the objectives of an action cannot be sufficiently achieved by the MS, but can be better achieved at Union level - The purpose of including a reference to the principle in the EU Treaties is also to ensure that powers are exercised as close to the citizen as possible - there are 3 preconditions for intervention by EU institutions: o the area concerned EU’s non- exclusive competence o objectives of proposed action can’t be sufficiently achieved by MSs o taction can thus be implemented more successfully by the EU - applies only to areas of shared competences - applies to all the EU institutions and has practical significance for legislative procedures in particular - Lisbon Treaty: 14 o introduced an explicit reference to the subnational dimension of the principle o strengthened role of the European Committee of the Regions o made it possible, at the discretion of national parliaments, for regional parliaments with legislative powers to be involved in the ex ante ‘early warning’ mechanism (=any national parliament or any chamber of a national parliament has 8 weeks from the date of forwarding of a draft legislative act to send to the Presidents of the EP, the CEU and the COMM a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity) - Compliance with the principle of subsidiarity may be reviewed retrospectively - MSs and European Committee of the Regions may bring actions for annulment against a legislative act on grounds of infringement of the principle of subsidiarity on behalf of their national parliament or a chamber thereof Principle of Conferral – Proportionality: - the content and form of EU action must not exceed what is necessary to achieve the objectives of the Treaties - Applies in all cases (exclusive + non-exclusive competences) - restricts authorities in the exercise of their powers by requiring them to strike a balance between the means used and the intended aim - requires that advantages due to limiting the right are not outweighed by the disadvantages to exercise the right → the limitation on the right must be justified - A pre-condition is that the measure is adequate to achieve the envisaged objective Lecture 5 – Legal Instruments Hierarchy of norms: - Treaties and the Charter of Fundamental Rights - General Principles of EU law - Legislative Acts – (Regulations and Directives) - Non-legislative Acts (Delegated Acts and Implementing Acts) Treaties: - New Treaties represent a significant change in the EU - Constitutional building blocks of the EU - Every power that the EU has ultimately is given to it by the Treaties - MSs as ‘Masters of the Treaties’ – using them to set up institutional structures they are participating in EU Charter of Fundamental Rights: - ‘The same legal value as the Treaties.’ - Many different fundamental rights - Many conventional 1st generation rights - A number of 2nd and 3rd generation rights 15 - A number of rights from elsewhere in the EU as Fundamental Rights General Principles of EU Law: - Creation of the EU Judicial System - All developed legal systems involve some principles of judicial review - ‘Lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or any rule of law relating to their application, or misuse of powers - Many examples throughout EU law including some significant principles: o Proportionality o Fundamental Rights o Legal Certainty o Legitimate Expectations o Equality o The Precautionary Principle o Procedural Justice - Treaty provisions are interpreted in the light of General Principles - Can’t strike down Treaty provisions - Used as a ground to assess, review and interpret legislation and EU acts - Create a more functional legal system, especially initially - Build up a system of judicial review Regulations: - ‘Directly Applicable’ - Binding in their entirety - Just becomes part of national legal systems - Does not require any measures incorporating it into national law - Approximate to legislation made by MS - When legislators want to do something that doesn’t require particular different implementation or flexibility from Member States - Regulation (EU) 2015/478 of the European Parliament and of the Council of 11 March 2015 on common rules for imports - GDPR Directives: - Binding as to the effect to be achieved while leaving some choice as to form and method to the Member States - Ends to be met laid out in considerable detail - MS have different legal systems that function differently - Goals require specific legal responses - Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights Decisions: - Binding on those they are addressed to EUMS, individuals 16 - Directly Applicable - Something targeting one specific group/state Soft Law: - Recommendations – non-binding, allows institutions to make their suggestions known without imposing legal obligations - Opinions - non-binding, allows institutions to make their opinions known without imposing legal obligations - Policy guidelines – how they will implement something - Open Method of Coordination - Wide variety of creatively-named instruments - Generally considered to be a useful part of the toolbox - Generally something relatively common in most legal systems Legislative Acts: - Legal acts adopted by the legislative procedure - Very formalistic - Regulations, Directives, sometimes Decisions - Default is that it’s the Ordinary Legislative Procedure, could be Special Legislative Procedure Non-legislative Acts: - ‘Non-legislative acts of general application’ - Non-legislative in the formal sense that they do not go through the legislative procedure - Similar to ‘secondary legislation’ in a national legal system - Delegated Acts - Implementing Acts - Implementing powers conferred to the European Commission - Made pursuant to any legally-binding Union act Lecture 6 - Legislative Procedures I- The ordinary legislative procedure Art.289 TFEU : 1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the commission. 2. In the specific cases provided by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the council or by the latter with the participation of the European Parliament , shall constitute a special legislative procedure. 17 Pre-Lisbon History : Numerous legislative procedures pre-TFEU —> main difference : power given to EP: Rome Treaty : smallest role to EP (mainly consultation) SEA (1986) : EP gets input for the first time ‘Commission proposes, Council disposes’ maxim changes 3 players in the game The most significant increase of power : Maastricht Treaty Introduced co-decision procedure : prevented a measure being adopted without approval of COU and EP Later Treaty reforms extended subject matter areas of co-decision procedures History - the Lisbon treaty Major restructuring of the power of EU Institutions - 2010 EU mindful of the complexity of legislative procedures and their damaging effect on legitimacy - simplification EP becomes much more powerful in the legislative process EP and COU exercise legislative and budgetary functions jointly (Art.14(1)) Readings : 18 Power Dynamics : 19 EP has functional veto/ co-decision powers under Art.294 EP Amendments - modifying COMM proposal but rarely significantly altering - instead significant discussion beforehand and during the process COMM also has significant powers under Art.294 procedure: can withdraw and submit modified version, but this is not a veto power - would be contrary to principle of conferral / institutional balance Institutional checks and consultation avoids vetoes and rejections Normative foundations : ‘Ordinary’ indicates common usage, normality Co-equal role of EP and enabling EP to have input into the making of legislation : Improvement of democracy within the EU Strengthens the EU’s legitimacy The Special Legislative Procedure Used in specific instances : Defined in Art.289 (2) TFEU: ‘In the specific case provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council or by the latter with the participation of the European Parliament,, shall constitute a special legislative procedure’ Art.289 (2) TFEU provides for SLP Applies in specific cases provided by treaties Takes the form of a regulation, directive decision adopted by the EP with participation of COU, or by COU with participation of EP Legal acts adopted by the SLP are legislative acts Consultation : Special legislative procedure may stipulate : EP consultation : limited nr of policy areas , e.g.: Internal market exemptions Competition law Some financial matters Some intellectual property Some administrative issues Consent: Special legislative procedure may stipulate : EP consent - deal with sensitive issues : Additions to citizens’ rights Establishment of an European Public Prosecutor Aspects of EU finances Creation of a uniform method of electing MEPs 20 Enhanced cooperation : A procedure where min. 9MSs are allowed to set up advanced integration or corporation in a particular field within the EU, when its clear the EU as a whole cannot achieve the goals of such corporation within a reasonable period Move at different speeds and towards different goals To overcome statemate where a particular proposal is blocked by one one or more Mss who do not want to take part It does not allow for extension of powers outside those permitted by Treaties 1. Thus far, discussion of processes predicated on assumption that legislation is made with participation of all 27 Mss 2. Already, pre-Lisbon, there was a provision whereby certain states could, subject to certain conditions, adopt acts even though not all members took part 3. However, pre-Lisbon political reality was that the provisions on enhanced cooperation did not provide the foundation for such initiatives 4. The Lisbon Treaty rendered the use of enhanced cooperation provisions easier in an EU with more Mss. Article 20 TEU authorises enhanced cooperation art.20 TFEU stipulates that such acts shall : Further the objectives of the EU Protect its interests Reinforce the integration process Minimum of 9 MS must be wishing to participate Corporation must be open by any time to all MS in accordance with Art.328 TFEU It must be decided qualified majority, in foreign and security policy by unanimity Enhanced cooperation is a last resort, to bemused when COU had established the EU as a whole cannot attain the objectives of such cooperation in a reasonable time (Art.20((2) TEU) ‘Authorisation to proceed with the enhanced cooperation is granted by the Council as a last resort on a proposal from the European Commission and after obtaining the consent of the EP’ MS intending to establish enhanced cooperation shall address a request to the COMM, which may submit a proposal to the COU to that effect Authorization shall regranted by the COU, acting by a QM on a proposal from the COMM and after consulting the EP Following this final discussion, the matter is referred back to the COU, which may act by the majority provided for in the Treaties (Art.329 TFEU) All members of COU may participate in its deliberations, but only members of the COU representing the Mss participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Art.330 TFEU. (Art.20(3) TEU) Acts adopted in the framework of enhanced cooperation shall bind only participating MS. They shall not be regarded as part of the acquisition which has to be accepted by candidate States for accession to the Union. (Art.20(4) TEU) Examples of enhanced cooperation: 21 Schengen acquis Applicable law to divorce (Rome III) Unitary Patent European Public Prosecutor OPEN METHOD OF COORDINATION The open method of coordination (OMC) may be described as a form of ‘soft’ law. →a form of intergovernmental policy-making that →does not result in binding EU legislative measures and →it does not require EU MSs to introduce or amend their laws. OMC, originally created in the 1990s as part of employment policy and the Luxembourg process, was defined as an instrument of the Lisbon strategy (2000) - a time when EU economic integration was advancing quickly but EU countries were reticent to give more powers to the European institutions. The OMC has provided a new framework for cooperation between the EU MSs, whose national policies can thus be directed towards certain common objectives. Under this intergovernmental method, MSs are evaluated by one another (peer pressure), with the COMM's role being limited to surveillance. The EP and the CJEU play no part in the OMC process. The OMC takes place in areas which fall within the competence of EU MSs, such as employment, social protection, education, youth and vocational training. The OMC is principally based on: → jointly identifying and defining objectives to be achieved (adopted by the Council); → jointly established measuring instruments (statistics, indicators, guidelines); → benchmarking, i.e. comparison of EU countries' performance and the exchange of best practices (monitored by the Commission) OTHER METHODS OF NON-LEGISLATIVE DECISION MAKING Why use these? Creativity and flexibility Avoids non-cooperative Member States EU DEMOCRACY - Checks And Balances Democracy in the sense of checks and balances Successful balance between state governments, elected representatives Successful balance between executive, legislature, judiciary? Lecture 7 : Primacy and Direct Effect of EU Law Direct Effect : The capacity of a provision of EU law to be invoked before a national court Case 26/62 Van Gend & Loos: 22 Art.12 EEC: Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already already apply in their trade with each other. Repealed but similar to what is now Art.30 TFEU: Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. EEC Treaty (1957) a normal international treaty - I.e. ; effects in domestic legal orders determined by national constitutions ? Member states : Yes! CJEU : No! The EEC Treaty is more than an agreement which merely creates mutual obligations between the contracting states —> this view is confirmed by the preamble to the treaty which refers not only to governments but to peoples. - nationals called upon to corporate in the functioning of the community through the intermediary of the European Parliament. The conclusion to be drawn from this is that the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which compromise not only member states but also their individuals. Case 26/62 Van Gend & Loos - consequences: Direct effect of EU Law on its own authority Individuals can invoke EU law before a national court National courts get a European Mandate Protection of rights of individuals that they derive from EU law Private enforcement of EU law Primacy of EU law over national law (EU Law prevails over national law) Primacy : Case 6/64 Costa v ENEL: Italy dualist system (EEC Treaty transposed into national law) Later national law adopted that deviated from the national law adopted to transpose the EEC Treaty and the from the EEC Treaty itself. Case 26/62 Van Gend & Loos - consequences: Primacy of EU Law on its own authority Primacy confirmed by the CJEU in later case-law as to mean primacy of all (primary & secondary) EU law over all national law incl.national constitutions (Case 11/70 Internationale Handelsgesellschaft) Not fully or unconditionally accepted by all member states Practical v ideological understanding of primacy (primacy v supremacy) Case 26/62 Van Gend & Loos 23 A Treaty provision (art.12 EEC) can be invoked by a private party against the member state when : Clear, negative, unconditional, containing no reservation on the part of the member state and not dependent on any. National implementing measure. Direct effect after Van Gend & Loos: after Van Gend Loos , the CJEU has gradually but consistently: Broadened and loosened the initial criteria for direct effect; Extended direct effect to other instruments of EU law (i.e secondary EU law) Extended direct effect to horizontal situations (with the exception of directives) Direct effect - criteria : The CJEU’s current criteria for direct effect: A provision of EU law must be unconditional and sufficiently precise Sufficiently precise ? -the provision is clear and concrete Unconditional ? - no further elaboration is necessary for its application (the provision can be applied as it is; without taking further discretionary implementing measures) Main idea behind these criteria : a provision must be suitable to be applied by a national court Direct effect : It follows from the CJEU’s case law that provisions of : Treaties Regulations Decisions Which are unconditional and sufficiently precise Can invoked before a national court by a private party Against the member state / national authorities Direct effect: Vertical and horizontal situations Vertical direct effect : private v organ of the state Horizontal direct effect : private party vs private party Private party = individual or private entity such as a company Vertical direct effect : treaties, regulations, decisions V : Provision must be unconditional and sufficiently precise Horizontal direct effect of treaty provisions : Case 43/75 Defrenne v SABENA Art. 157 TFEU: Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied 24 It follows from the CJEU’s case law that provisions of : Treaties Regulations Decisions Which are unconditional and sufficiently precise Can be invoked before a national court by a private party Against the member state / national authorities And against another private party Horizontal direct effect : treaty (mainly mandatory non-discrimination provision) Decision (not when addressed to a MS) Direct effect of directives Art. 288 TFEU: A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. Vertical Direct effect of directives Case 41/74 Van Duyn v Home Office Vertical Direct effect of directives Arguments of the CJEU: Effectiveness of EU law Estoppel argument (Ratti) Vertical direct effect of directives Criteria for VDE of directives Unconditional and sufficiently precise + Time limit for implementation must have expired No VDE before the expiration of the time limit. BUT : During the period for implementation, MS (including courts) have to act in good faith. VDE of directives after the expiration of the time limit only in situations of mis- implementation (when a directive is fully implemented you can rely on national law) No Horizontal Direct Effect of directives!!! A directive may not of itself impose obligations on individuals See case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority and case C-91/92 Faccini Dori The private enforcement of EU Law : Individuals (or private entities) invoke a provision of EU Law before a national court To claim a right they derive from EU law, by challenging an action that is incompatible with EU Law Different solutions: Substitution Exclusion 25 Primacy and direct effect : Exclusion follows from the primacy of EU Law The obligation to set aside conflicting provision of national law was explicitly confirmed in case 106/77 Simmenthal Note : setting aside is not the same as invalidating Primacy crucial to ensure the practical significance of direct effect Powerful tools for the protection rights but also for the enforcement of EU law in the MS , in addition to the enforcement mechanisms laid down in the treaties (infringement procedures) Lecture 8 Direct and Indirect effect No horizontal direct effect of directives !! - a directive may not itself impose obligations on individuals Broad interpretation of ‘vertical’ : All public entities Not only when acting as public authority but also as employer Private entities sometimes have to be regarded as public (emanation of the state) Broad interpretation of ‘vertical’ - Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority 1976 Equal treatment directive (retirement age) - Case C-188/90 Foster v British Gas 1976 Equal treatment directive (retirement age) British Gas a privatized entity Still to be considered as public in the context of direct effect? What the situation is and remains horizontal… What if the other party is private - No emanation of the state… - No horizontal direct effect of directives… No horizontal Direct Effect of directives Indirect effect (Consistent / harmonious interpretation) - Facing Dori v Recreb Sri Indirect effect : Or consistent/ harmonious interpretation As an alternative for direct effect In situations of mis-implementation National courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the aim of the directive Indirect effect: 26 Basis Aim Scope Limitations Indirect effect - Basis: (Case 14/83 Von Colson and Kamann para 26) The MS obligation arising from the directive to achieve the result envisaged by the directive and their duty under Article (4(3) TEU) to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation is binding on all the authorities of MS including for matters within their jurisdiction, the courts. National courts are required to interpret their national law in the light of the wording and purpose of the Directive.. Indirect effect - Aim (E.g Facing Dori para 26) ; when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with [Article 288 TFEU]. National courts must interpret their national law in such a way that the objectives of the directive are achieved To ensure that the directive is fully effective To achieve the same result ultimately as via direct effect Indirect effect - Scope : Case C - 106/89 Marleasing : whether the provisions in question were adopted before or after the directive Cases C-397-403/01 Pfeiffer and others : Although the principle that national law must be interpreted in conformity with community law concerns chiefly domestic provisions enacted in order to implement the directive question , it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole Case C-212/04 Adeneler: where a directive is transposed belatedly, the general obligation owed by national courts to interpret domestic law in conformity with the directive exists only once the period for its transposition has expired. Case C-282/10 Dominguez: the principle that national law must be interpreted in conformity with European Union law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it. Indirect effect - Limitations 27 There must be national law to interpret What if there are no implementing measures at all and no other national laws related to the substance of the directive ? E.g Facing Dori : NO Implementing measures and no national laws on consumer protection? National court cannot create new laws that is for the legislative branch Case C-212/04 Adeneler para. 110: the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem. No interpretation of national law contra legume Contra legem - against the law' National courts cannot interpret national law in such a way that it gets an entirely different meaning Legal certainty National courts cannot change provisions of national law, that is for the legislative branch No interpretation of national law contra legem What kind of provisions of national law are suitable for consistent interpretation? If a national court applies IDE successfully, the legislature must still ensure that the directive is properly implemented. Indirect effect : As an alternative for direct effect Direct effect always first? Not necessarily See Case C-282/10 Dominguez para. 23: (…) the question whether a national provision must be disapplied in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves possible. A private party may be able rely on a directive; Directly (direct effect) or Indirectly (indirect effect) Lecture 9 : The Rule of Law The concept of rule of law : (1) legality including a transparent, accountable and democratic process for enacting law (2) legal certainty (3) prohibition of arbitrariness 28 (4) access to justice before independent and impartial courts, including judicial review of administrative acts (5) respect for human rights (6) non- discrimination and equality before the law The EU as a community of law : The rule of law is one of the core values on which the EU is founded ESC and EEC Treaties did not contain any solemn reference to the RoL similar to what can be found in the Council Of Europe Statute or the ECHR Maastricht treaty —> the principle of the rule of law formally enshrined in EU primary law Formal enshrinement of RoL principle preceded by Court’s judgement in Les Verts Following the fall of the Berlin Wall, the rule of law became an increasingly popular concept in political and legal discourses. MSs decided to insert multiple symbolic references to the RoL at the time of the 1992 Maastricht Treaty Preamble of the 1992 TEU merely stipulated that the MS confirm ‘their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the RoL’ Significant developments in Amsterdam Treaty (1997) 1. RoL described it as one of the EU’s foundational principles which were said to be principles which are common to the MSs. 2. Current MSs : ref to the nuclear option of Art.7 TEU 3. Future MSs: any EU STATE wishing to become a Member of the EU must respect the principles on which the Union is founded. (Art.49 TEU) Lisbon Treaty (2007) 29 EU no longer described as being founded on a nr of key principles but rather as being founded on a nr of key values, with new values being added to the previous list: The 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. These values are common to the MS in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. (Art.2 TEU) In short: Article 2 TEU makes express reference to the rule of law concept Art.2 TEU has consequential effects for candidate countries as Art.49 TEU. Provides that any ‘European state which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.’ RoL also features as a guiding principle in relation to the EU's external action in Art.21(1) TEU. It is central to any conception of the RoL that the government should act on a basis that is deemed valid by that legal system. If a government or legislature exceeds the boundaries of its own lawful authority, then its action can be rendered null and invalid. Independent courts must be able to assess, in an objective manner, whether the limits on lawful authority have been exceeded. If courts lack such independence / are subservient to the will of the political branch of government —> real danger that fundamental limits on the political scope of political power will be ignored. Independent national courts are also central to regime of EU adjudication (Art.267 TFEU and Art.19 TEU) EU Membership inheres compliance with the rule of law Backsliding by some MSs - Hungary and Poland, most prominently - has been causing difficult problems for the EU Backsliding of RoL Impact of an EU level : Abuse of democratic values NOT a national concern : Independent judiciary Independent media Civic freedom Integrity of national elections Institutional Concerns ; The EU has used a range of measures to address the RoL problem, there is a two fold tension ; Vertical Horizontal Institutional approach : 30 COMM has emphasized the connection between RoL , democracy and fundamental rights : No democracy or respect of fundamental rights without respect for RoL and vice versa Fundamental rights only effective if justifiable Democracy only protected if judiciary can ensure freedom of expression & assembly , rules governing political and electoral process EU has deployed a plethora of initiatives to take RoL problem Addressing the RoL problem: 2012 : Commissioner for Justice Viviane Reding : ‘RoL crisis’ 2013 EP’s Tvares Report on Hungary expressed concerns BUT nothing done to stop Hungary’s descent to authoritarianism For the first time, COMM acknowledges in 2019 that we have seen several instances in which ‘principles such as the separation of powers, loyal cooperation amongst institutions, and respect for the opposition or judicial independence seem to have been undermined – sometimes as the result of deliberate [emphasis added] policy choices.” (European Commission Communication, Strengthening the rule of law within the Union. A blueprint for action, p. 5)’ Addressing the RoL Problem : → major and rapid evolution of the EU’s RoL Toolbox COMM launched new Justice Scoreboard (2013) COMM adopted Rule of Law Framework (2014) COU launched new Annual Rule of Law Dialogue (2014) Preliminary Rulings and Infringement Proceedings Invocation of Art. 7 TEU COMM proposed new Rule of Law Review Cycle Monetary incentives for compliance: Conditionality Mechanism 31 V. ADDRESSING THE RoL PROBLEM Judicial actions When: Systematic breach of fundamental rights - C-791/19 - Commission v Poland (Régime disciplinaire des juges) - C-66/18 - Commission v Hungary (Enseignement supérieur) - C-558/18 - Miasto Łowicz (Régime disciplinaire concernant les magistrats) - C-83/19 Asociaţia ‘Forumul Judecătorilor Din România’ v Inspecţia Judiciară Why: - Using existing remedies before the CJEU - This has made the CJEU a leading voice in the fight against rule of law backsliding What: - Infringement: process initiated by the Commission when a MS breaches a provision of EU law. It can lead to the imposition of sanctions and fines. 32 Invocation of Article 7 TEU When: - Amsterdam (1997) and Nice (2000) reforms. - Triggered by the EP in 2018 against Hungary; triggered by the EC against Poland in 2016 Why: Response to the enlargement process What: procedure foreseen in the Treaties to suspend certain rights from a MS. While rights can be suspended, there is no mechanism to expel a state from the EU. How: - Stage 1: submission of a reasoned proposal by the players of Art. 7(1) TEU (the EP, the COMM, 1/3 of the MS) that there is a clear risk of a serious breach by a MS of the values of Art. 2. The MS has the right to be heard by the Council before the determination is made. The Council must verify that the grounds for such a determination continue to apply. The Council can also issue recommendations to the MS. 33 - Stage 2: the European Council, by unanimity on a proposal by 1/3 of the MSs or by the Commission, with consent of the EP, may determine the existence of a serious and persistent breach by a MS of the values of Art. 2 after inviting the MS to submit observations. This can lead to the suspension of certain rights, like voting in the Council. The measures can be revoked if the situation changes. Conditionality mechanism When: Regulation 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget. What: a set of budgetary measures, incl. withdrawal of EU funds, to respond to breaches of RoL principles that directly affect or seriously risk affecting the sound financial management of the EU budget or of the financial interests of the EU in a sufficiently direct way. How: - Commission Guidelines of 2 March 2022 - Under the conditionality regulation, the COMM will propose appropriate and proportionate measures to the COU in case rule of law breaches threaten the EU financial interests. The COU will take final decision on the proposal of measures. The final recipients and beneficiaries of EU funding remain entitled to receive their payments → MSs concerned should continue to make these payments. Conclusions : - Rule of Law: a fundamental democratic value and a core principle of the EU - Values set out in Art. 2 TEU & impose membership obligations (Art.49 TEU) - Independent judiciary is central to any conception of RoL. Independence of national courts especially important in EU: - Application of EU law - Mutual trust between national courts - Problem: backsliding of RoL - Toolbox combining legal, political and financial tools to resolve problems – there is no single mechanism to tackle the problem. Are the tools efficient? Lecture 10: EU Fundamental Rights Original treaties- no fundamental rights but they interacted with FR in: property, judicial elements and various other freedoms. General Principles of EU Law: - CJEU initiative to incorporate FR - lack of FR protection= compromise EU law supremacy Application of GP: - whenever in the scope of EU Law 34 - when MS implement/apply/derogate from EU Law - when sufficient connection between national act- EU law - treaty provisions interpreted in the light of GP - can’t strike down treaty provisions - used as ground to assess + review + interpret legislation and EU acts - more functional legal system created + system of judicial review Charter of FR of EU: - FR as GP from evolving jurisprudence - need for a concrete FR doc to: clarify EUFR law + limit court’s ability to develop law + increase FR protection - Charter proclaimed in 2000 - Main EUFR doc - Legal status= deliberately left unclear by MS - Lisbon treaty brought significant changes Art. 6 TEU: - main points of EUFR law - specifies legal status of Charter= same legal value as treaties →increase of legal status - role of GP codified= FR part of GP of EU LAW - some countries can opt-out - Charter doesn’t extend powers of EU - Charter sets boundaries as to its application - EU should accede to ECHR= work in progress Charter of FR content: - Preamble - I Dignity - II Freedoms - III Equality - IV Solidarity - V Citizen’s rights→ traditional rights+ others - VI Justice - VII General Provisions Charter application: - similarly to GP= within the scope of EU law + MS when implementing EU law - WHENEVER EU LAW APPLIES→ CHARTER APPLIES - fill normative gaps - aid to interpretation in the light of GP - grounds for judicial review Limitations: 35 - Art. 52→ rights in Charter, based on Community treaties/ TEU should be exercised under conditions + within limits defined by those treaties - Art. 53→ can’t limit/adversely affect HR elsewhere in EU law/international treaties/ MS constitution Institutional FR Structure: - EUFR Agency- one of many decentralized agencies + help safeguard rights, values and freedoms enshrined in EU Charter + collect and analyze law and data + provide independent evidence-based advice on rights + help better law making and implementation Accession to ECHR: - useful→ external check on HR within EU - EU causes gap within ECHR protection - Draft Agreement→ rejected by CJEU because insufficient respect to CJEU autonomy Lecture 11: The implementation and enforcement of EU law Who holds power in EU administration? - COMM - Other institutions - MS responsible for day-to-day implementation EU’s use of power: - EU institutions and bodies= large number of regulatory powers - Principle of Conferral - Through administrative law (= regulate exercise of public power by executive + how decisions are made) Principle of Conferral: - EU can only act if power to act conferred by the treaties - must comply with: International Law + The EU Treaties and General Principles of EU Law (codified in the treaties) + the EU Charter of Fundamental Rights (EUCFR) - applied in cases of: law-making, legislative process and administrative decisions Administrative Law: - Applied within scope of EU law + to EU bodies, institutions and MS when implementing EU law - Includes: rules, rights, principles that govern EU acts 36 EU Administrative Law: - primarily applies to EU bodies and institutions but can also apply to MS when implementing EU law (area of ‘indirect administration’) - These include, but are not limited to 1. The rule of law (legality and legal certainty) 2. The principle of proportionality 3. The principle of good Administration - EU Administrative Law – sources: - ‘General Principles of EU Law’ (in the beginning) - eventually the CFREU 1 – The Rule of Law: - EC= community based on RoL → MS/EU Institutions can’t avoid a review if the measures adopted are in conformity with the treaty - seen as umbrella principle covering a large number of legal points - scope:  legality  legal certainty and protection of legitimate expectations  legal and institutional transparency - legality= acts must be adopted under and within the law not ultra vires (within the powers EU has) + must be in line with principle of proportionality and the principles of good administration, with the purpose for which the competence is granted - the principle of legal certainty= requires that individuals must be able to ascertain unequivocally their rights and obligations so that they can act accordingly and legal rules be clear and precise and EU law remain foreseeable - institutional and legal transparency= minimal openness of process, access to documents and publications of official measures - protection of legitimate expectations= related to principle of legal certainty + giving individuals the right to rely on positions and decisions made by EU Institutions/administration + right to expect and rely on a reasonable (not absolute) stability of public policies → justifiable reliance, affected (legitimate) interest, priority of the interest over the interests of the EU→ consequence – in principle no retroactive effect of normative rules 2 – Principle of Proportionality: - applied in different ways in different areas - the case law of CJEU sets out a three-part test - used in a lot of circumstances but not limited to: acts of EU Institutions and bodies when limiting MS powers by adopting EU acts + when limiting or regulating the exercise of rights of individuals+ when limiting or regulating rights or freedoms otherwise guaranteed by EU law + when acts of MS bodies when implementing EU law 37 Three-part test by CJEU: - suitability/appropriateness= measure should be appropriate to achieve the legitimate aim - indispensability/necessity= the measure should not go beyond what is necessary to achieve the legitimate objective - proportionate (sensu stricto) = in particular when measures restrict fundamental rights the imposed disadvantage must not be disproportionate to the aims pursued 3 – Principle of Good Administration: - CFREU→ decision-making on single cases affected by individuals + focuses on institutions, bodies and agencies of EU - GP→ general acts and non-legislative acts to MS within the scope of EU law (not just limited to bodies) - various sub-principles: right to have his/ her affairs handled impartially, fairly and within a reasonable time→ the duty of care + hearing and access to one’s file + reasoning of decisions + damages + language rights - right to an effective judicial remedy - must be effective in both law and practice - procedural= actual access to a court and fair possibility of bringing a case - substantive= remedy available capable of addressing your EU law rights - independence and impartiality of tribunals (Poland v. Hungary) - access to documents= ability to see docs generally + those that concern you specifically - right to a defense + professional privilege + confidentiality + limited tights against self- incrimination Administrative Law binding: - binds the EU and MS - RoL→ legality, legal and institutional transparency, legal certainty and protection of legitimate expectations - proportionality of measures and decisions - good administration→ handles impartially and properly, access to files, proper reasoning and motivation, damages, language rights, effective judicial remedy, independent tribunals etc. Obligations of MS: - EU law not just for EU bodies, but also for MS + enforceable at a MS level - also binds MS to certain standards of legal protections in order to function – without this EU law rights wouldn’t be guaranteed or enforceable - the principle of sincere co-operation= obligation to co-operate in good faith with EU bodies and EU interests to the full implementation of EU law - the problem of shared EU administration and the principle of procedural autonomy→ solution= principles of equivalence and effectiveness (standard by which MS implementation of EU law rights is protected within the national legal system) 38 The principle of sincere co-operation: - EU and MS required to assist each other in carrying out tasks derived from the Treaties - assistance should be provided in full mutual respect - MS must take appropriate measures, both general and specific, to fulfill their obligations from the Treaties or acts of EU institutions. - MS are obligated to facilitate the achievement of the EU's tasks. - MS should avoid any measures that could jeopardize the attainment of EU's objectives. - can be done by applying existing national legislation - may be specific national implementing legislation - thus limited procedural autonomy on how to implement EU law→ can only set their own standards on substantive and procedural administrative law so far as EU lacks specific standards - bound by equivalence and effectiveness The principle of equivalence: - if no specific applicable EU law rules, MS must provide at least equivalent protections for violations of EU law as to national law - remedies in MS must be applied without distinction between EU law and national law The principle of effectiveness: - national courts are obliged to set aside any provisions of a national legal system and any legislative, administrative or judicial practice which may impair the effectiveness of EU law - equivalence and effectiveness apply to both national courts and national administrations - administrations must set aside national law that are in conflict with directly effective EU law Lecture 12: Infringement procedure, state liability and action for damages Infringement procedure – phases: - initiative→ usually COMM in response to a complaint or on its own initiative starts the ‘Letter of Formal Notice’ - first round→ pre-litigation phase, closed by the reasoned opinion + deadline for compliance (2 months), judicial phase results in a CJEU judgment - second round→ if non-compliance redo pre-litigation phase, judicial phase leading to financial penalties First round – pre-litigation phase: - purpose: give MS the opportunity to comply or defend itself - steps: - Informal dialogue between COMM and Permanent Representative of MS - Letter of formal notice containing brief initial summary of the complaint + giving MS opportunity to submit observations 39 - Reasoned opinion containing a detailed statement of the complaint + setting a time period in which the MS must comply - EXCEPTION: Art. 114(9) TFEU + Art. 108(2) TFEU State Liability: - MS enjoy national procedural autonomy→ limited by the principle of effectiveness and the duty of loyal cooperation - EU may require national courts to ensure the availability of certain specific remedies (e.g.: San Giorgio: repayment of charges, Factortame I: interim relief, Munoz: civil remedies, Courage: damages) 40 - state liability= MS’ obligation to pay compensation for harm caused to individuals by breaches of EU law for which MS can be held responsible State liability and direct effect: - when a private party is harmed by the incorrect/ no transposition of a directive, it may be able to still rely on the directive:  directly via direct effect  indirectly via indirect effect  Incidentally via incidental horizontal effect - when national law can’t be interpreted compatibly with an unimplemented directive, state liability may present an alternative remedy on certain conditions Conditions for state liability: - conditions set in Brasserie du Pecheur case :  infringed must be intended to confer rights on individuals  breach= sufficiently serious  a direct causal link between the breach of the MS’ obligation and the damage sustained by the injured parties Sufficiently serious breach: - if MS manifestly and gravely disregarded the limits of its discretion - factors that CJEU consider:  clarity and precision of the rule violated  level of discretion granted by the rule to national or Community authorities  intentionality or involuntariness of the infringement and resulting damage  excusability0 or inexcusability of any legal errors  potential contribution of a Community institution's stance to the omission  adoption or retention of national measures or practices conflicting with Community law Application of the action for damages against MS: - domestic procedure on state liability but provided that complies with principle of effectiveness and equivalence - the action for compensation is governed by the domestic legal system - there is procedural autonomy on matters such as time limits, proof of causation, mitigation of loss and assessment of damages - national procedural norms are limited by the principle of effectiveness and equivalence - effectiveness→ a national requirement on intent to prove loss was not compatible with EU law - equivalence→ the requirement of exhaustion of domestic remedies was incompatible with EU law because it didn’t apply for breaches of national constitutional law 41 Application of the action for damages against EU: - in cases of non-contractual liability:  EU obligated to compensate for any damage caused by its institutions or servants while performing their duties  the conditions for the State's liability for damage resulting from a breach not differ from those governing the liability of the Community unless justified otherwise  the protection of rights derived from Community law should not vary based on whether a national authority or a Community authority is responsible for the damage - the principles governing the liability of EU institutions for breaching EU law are largely similar to those governing the liability of Member States for breaching EU law Lecture 13: EU Citizenship EU Citizenship: - every national of MS= citizen of EU→ national gains ADDITIONAL EU citizenship, which DOESN’T replace the national citizenship - EU citizenship= fundamental status of nationals of MS Gain EU citizenship: - up to MS to decide requirements to become MS citizen= national competence - laws on nationality vary between MS - some have ‘jus soli’=acquisition by place of birth - some have ‘jus sanguinis’= acquisition by parents’ nationality - also acquisition through naturalization= min period of residence in EU (28 yrs) Losing EU citizenship: - up to MS with regard to EU law - losing citizenship must be done proportionally - can’t make people stateless→ main concern of CJEU - covered in ‘Tjebbes’→ rules on loss due to prolonged absence + permissible if proportional + adequate safeguards - loss of citizenship if state no longer EUMA Rights as EU citizen: - free movement - voting + being elected - protection abroad - taking action + defending rights Right to free movement: - most commonly used right 42 - NOT ABSOLUTE right, comes with conditions around employment, sufficient resources etc. - being able to move, travel, work around continent Voting and being elected: - EU Parliament elections - EU citizens can vote - If you are in another EUMS you can vote where you live/your home country - Registration required - Next voting in 2024 Being protected abroad: - If no diplomatic representatives of your EUMS in a 3rd country→ right to claim protection from an EUMS that has diplomatic representation there Action, rights and information: - right to petition EP to apply to the European Ombudsman + address the institutions + advisory bodies of EU in any of the treaty languages + obtain reply in the same language - series of rights aimed at fully participating in democracy Art. 20 TFEU: - citizens of EU enjoy rights + subject to duties in treaties - they have inter alia: right to move + reside freely within the territory of MS *Cases*:  Zhu and Chen: - case about treaty art + applicable legislation - Catherine Zhu born in Northern Ireland to Chinese parents - deliberate choice to make her eligible to Irish citizenship→ child didn’t physically move residence but was resident in a MS other than which they were national - court held: sufficient that financial resources came from parents + no economic activity requires + residing in another MS than they were a national even if born there→ counted as exercising right to free movement and right to residence  Ruiz Zambrano: - Ruiz born in Belgium to Colombian parents, parents’ deportation→ children leaving EU - free and self-standing right to reside- even if you don’t move and are residing in your home MS - citizens entitled to genuine enjoyment of the substance of the rights→ later case establishes it as a living in the territory of EU - creates new category of parental and carer residence based on care for EU citisens Art. 21 TFEU: - right to move + reside freely within territory of MS + subject to limitations + conditions in treaties + by the measures adopted to give them effect 43 Other sources of restrictions: - Treaties - Measures adopted- Citizenship Directive Citizenship Directive: - aim- facilitate + regulate free movement - balances + compromises - increases in freedom→ increases in restrictions - legislation limits court’s ability to interpret treaty provisions Art. 6 Citizenship Directive: - right to residence for up to 3 months possible if→ hold a valid ID/passport from an EUMS / family members in possession of a valid passport who aren’t nationals of a MS accompanying/joining an EU citizen Art. 7 Citizenship Directive: - residence for more than 3 months if→ you are a worker / have sufficient resources not to become a burden on the social welfare system and have comprehensive sickness insurance / a student and have comprehensive sickness insurance / you are a family member accompanying or joining one of the above - worker= anyone who undertakes genuine and effective work + may not be expelled from state if you can provide evidence you are seeking work - sufficient resources= MS not a fixed amount but they must take into account the personal situation of the person concerned + doesn’t matter where resources come from as long as you are not a burden *Cases:*  Bajratari→ resources came from father-n-law’s unlawful employment  Zhu and Chen→ child’s resources came from parent  Dano: - non-economically active Romanian in Germany - sought equal treatment and access to non-contributory social benefits - must be lawfully resident in compliance with the Directive in order to qualify for equal treatment with regards to benefits - specific proportionality test not required if recipient moved solely for benefits - family members= spouse, registered civil partnership considered equivalent to marriage, direct descendants that are under 21 or dependent, direct ascendents that are dependent *Cases:*  Coman: - a 3rd country national married a same sex EU citizen, marriage in accordance with the EUMS law has right to reside in MS for more than 3 months - that derived right of residence can’t be made subject to stricter conditions than those laid down in art. 7 44 Art. 16 Citizenship Directive: - residence beyond 5 yrs→ can be made permanent - also applicable for family members - not interrupted by absences of up to 6 months (or longer given some exceptions) Other restrictions in Directive: - Art. 27-33→ public policy, public security, public health + dangerous and risky individuals, disease and pandemics + can involve expulsion or denial of entry - requires notification, procedural safeguards, limited duration - must be proportional and based on considerations of how long they have resided there - criminal conviction alone not enough to bar entry - expulsion can’t necessarily follow a criminal conviction unless it meets the main reasoning - system designed for limited use in severe cases, comparable to existing treaty art. on free movement (pandemic, extremist political figures, violent crime) Lecture 15: Action for annulment Purpose: - ensure that EU institutions comply with all requirements of EU law when they take action - if action is well founded CJEU should declare the act concerned to be void Rationale: - both the MS and institutions of EEC are subject to a review to determine if the measures they adopt comply with the Treaty - CJEU’s role is to ensure that the interpretation and application of the Treaties adhere to the law - MS are required to provide adequate remedies to ensure effective legal protection in the areas covered by EU law ! JUDICIAL REVIWE OF THE LEGALITY OF EU ACTS IS A FUNCTION OF CJEU ! Conditions for actions of annulment: 45 Admissibility – acts of which institutions are reviewable: - initially only acts of COMM or CEU (art. 173 EEC) - in case ‘Les Verts’ CJEU established→ according to CJEU an act is intended to produce binding legal effects vis-à-vis 3rd parties - acts or COREPER are NOT reviewable because COREPER ISN’T an EU decision- making body and any agreement it reaches can be pushed aside by CEU - acts of EC are reviewable if those acts are intended to produce legal effects vis-à-vis 3rd parties Admissibility – which acts are reviewable: - prior Lisbon treaty→ only Regulations, Directives and Decisions - CJEU interpreted the concept of acts widely and CJEU case law extended reviewable acts to other forms of acts→ see Le Verts case in doc cases for exam EU law - not always clear whether an act/ measure is a reviewable acts or a non reviewable - a wide range of acts can be held reviewable by CJEU depending on the legal effects they produce Admissibility – time limit: - proceeding should be instituted within 2 months of the publication of the measure, or of its notification to the plaintiff, or in the absence thereof, of the day on which it came to the knowledge of the latter - TIME LIMIT VERY STRICTLY APPLIED BY CJEU→ case Germany v. EP and CEU Admissibility – which applicants can bring an action for annulment (locus standi): - locus standi= recognition of a legal interest in a matter + expressed in TFEU, further defined and interpreted by CJEU - restrictions on locus standi constitute impediment faced by some categories of applicants → no standing= no right to challenge! - 3 categories of applicants: 46  privileged applicants  semi-privileged applicants  non-privileged applicants Locus standi – privileged applicants: - MS (can bring action of annulment even if MS didn’t oppose that act during the decision- making process in CEU) - CEU - COMM - EP - TFEU → no restriction on the purpose of bringing action for annulment - MS v. EU Institutions (e.g.: Federal Republic of Germany v. European Parliament and Council) - EU institution v. EU institution (e.g.: COMM v. CEU or COMM v. EP) Locus standi – semi-privileged applicants: - Court of Auditors - European Central Bank - Committee of the Regions - have a restricted right to challenge EU acts→ can only do so for the purpose of protecting their own prerogatives, meaning where their own interests are clearly affected Locus standi – non-privileged applicants: - natural/legal persons (includes individuals, for profit and not-for-profit entities like companies, associations) - face considerable restrictions on locus standi - may challenge acts which are addressed to them / are of direct and individual concern to them + regulatory acts which are of direct concern to them and do not entail any implementing measures - 4 possible scenarios + time limit 2 months applies to all scenarios:  1 – act is addressed to the applicant  2 – act is addressed to another person not the applicant  3 – act is of general application, other than a regulatory act  4 – act is a regulatory act that doesn’t entail any implementing measures - scenario 1:  act= addressed to the applicant if the applicant is directly addressed  when applicant addressed→ only restriction is the time limit  applicant can only challenge final decisions intended to have a binding effect as stated by the General Court, not possible to challenge a potential decision which hasn’t actually been taken at the moment of the challenge! - scenario 2 + 3: 47  act not addressed to the applicant if addressed to another person (include not only other natural/ legal persons but also the MS→ case Plaumann & Co v. Commission) OR act is of general application (lays down GP and produces legal effects for everyone or broad categories of persons determined in an abstract manner)  face considerable restrictions when they try to challenge acts not addressed to them and only under certain conditions  if acts are of direct and individual concern to them OR are regulatory acts which are of direct concern to them and don’t entail implementing measures are the conditions under which they can challenge  direct concern= 2 conditions must be met: must show direct link / an unbroken chain of causation between act and consequences AND measure leave NO DISCRETION to the MS in implementation, otherwise that act can’t give rise to direct concern because then applicant is affected not by the acts itself but by its implementation  individual concern= CJEU requires that the applicant must show the existence of factors that distinguish him/her uniquely case Plaumann & Co v. Commission - scenario 4:  natural/legal persons may challenge regulatory acts which are of direct concern to them and don’t entail any implementing measures  regulatory acts introduced in Lisbon treaty and are non-legislative acts  implementing measures= if there is an intervention -> the regulatory act entails an implementing measure -> non-privileged applicants have NO right to challenge it in front of the CJEU, under Article 263 TFEU!  the CJEU stated that in case of challenging regulatory acts, nonprivileged applicants only need to demonstrate direct concern! Grounds for annulment: - lack of competence or authority - misuse of powers - infringement of an essential procedural requirement - infringement of the treaties or any other rule of law relating to their application Lack of competence or authority: - acting without competence= acting beyond the power to act OR acting without a lawful basis - acting only in accordance with principle of conferral - acting only within the limits of the powers conferred on it in the treaties Misuse of powers: - rarely successful because the required standard of proof is difficult to meet - use of power for the wrong purpose Infringement of an essential procedural requirement: 48 - ground includes:  breach of general procedural requirements  breach of specific procedural requirements set forth in specific treaty provisions  insufficient or vague or inconsistent reasoning of a legal act Infringement of the treaties or any other rule of law relating to their application: - most frequently argued ground because it’s able to include all sorts of errors of EU law - breaches of the treaties or CFREU - breaches of GP including non-discrimination, HR, proportionality, non-retroactivity etc. Effects of a well-founded action for annulment: - CJEU shall declare the act concerned to be void BUT CJEU if necessary state which of the effects of the act which it has declared void, should be considered as definitive - the institution should be required to take the necessary measures to comply with the judgement of CJEU - annulment no result in imposing a fine on EU Institution which adopted the act AND awarding financial compensation for applicants who were damaged - damages can be pursued as a separate and autonomous action brought as a parallel or a follow-up to an action for annulment Lecture 16: The CJEU: organization, actions, procedures and preliminary reference procedure The CJEU – functions and organization: The CJEU structure: 49 - Specialized courts - The General Court - CJEU Actions and procedures before the CJEU: - no jurisdiction, in principle in the field of CFSP 50 - to review the validity/ proportionality of operations carried out by the law enforcement services of a MS or the exercise of MS responsibilities with regard to the maintenance of law and order and safeguarding of internal security Distribution of work in CJEU: Indirect actions – references for a preliminary ruling: - CJEU has jurisdiction to give preliminary rulings concerning:  interpretation of treaties  the validity and interpretation of acts of the institutions, bodies, offices or agencies of EU - courts or tribunals of MS can send a question to CJEU - CJEU takes account of a number of factors, in order to determine who can send a question, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent - the duty to refer on courts of last instance→ “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 seeCourt” (art. 267 TFEU) BUT there are exceptions for questions on interpretation see case Cilfit in doc cases for exam EU law - questions on validity of EU law always need to be referred because national courts have no jurisdiction themselves to determine the validity of acts of the EU institutions What can be asked? - the problem can’t be hypothetical - the question must be relevant - the question must be clearly articulated - the facts must be sufficiently clear - plus see cases: Foglia, Filipiak and Bacardi-Martini in doc cases for exam EU law 51

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