European Union Law

Yuliya Kaspiarovich (Yuliya).

What is the European Eu
States and International Organization (incorporated by a treaty) – Subjects of
international law.
The EU is a subject of international law. It’s a separate legal entity from the States.
The objective of the EU is economic integration.
States have given part of their sovereignty to the EU.
Under EU law, the EU goes beyond a typical international organization.
Switzerland’s relation with the EU is based in bilateral treaties.
Art. 49 of the EU treaty establishes the procedure for joining the EU. The accession
agreements solely are in force for the incorporation procedure. Once incorporated,
the accession treaty ceases to have effect.
Op-out: Reservations on certain provisions.
Requirements:
- To be a European country (its “geographically flexible”).
- Market economy.
- Huaman Rights / Democracy.
- Integrate the de EU Law into their systems.
The incorporation needs the unanimous vote of all members.
TFUE – 1957 / Treaty establishing the European Economic Community. 1958
(entered into force). -> aimed at Economic Integration.
TEU – 1992 / Treaty on European Union (Treaty of Maastricht). 1993 (entered into
force). -> Set a common roof for the existing European communities.
- 3 pilar structure:
o Community pillar (Steel, energy and economic integration). Giving
sovereignty over those matters.
o Security
o Justice and home affairs
- Pillars 2 and 3 were retained by the States.
- The 3 pillars structure ended with the Treaty of Lisbon (2007 – entered into
force on 2009).
The EU Constitution (2004): Was rejected by referendums in France and the
Netherlands.
Thursday 19, 2024
Organisms of the EU
The following are 4 of the 7 ones listed in Art. 13 of the Treaty on the
European Union
1. European Council: Brussels (Belgium) Heads of state or government. They
meet 4 times a year. They define the priorities of the EU. They are at the top
of the EU. They don’t have legislative powers.

2. European Commission (the Commission): Brussels (Belgium)

Government of the EU. They have a quasi-monopoly of the legislative
initiative (95% of the cases). There are exceptions that allow the European
Parliament, BCE, European Court, or citizens can propose legislation. Very
powerful organism.

27 commissioners + 1 president (can be reelected). 5 year-term. The term is

linked to the elections of the European Parliament. The president is appointed
by the European Parliament at the proposal of the European Council. The
number of members has been agreed by the European Council.

The president decides on the internal organization of the Commission. The

Council of Europe, in accordance with the President, proposes the list of
commissioners to the European Parliament. EP gives a vote of consent. Then
the Council of Europe appoints them.

Each commissioner has a topic he oversees.

The High Representative and Vice-President of Foreign Affairs and Security

Policy is a “treaty” position. It cannot be changed by the president of the
Commission.

3. Council of the European Union (the Council) : Brussels (Belgium).

Ministers of the states, based on the matter at hand. There are 2 referred in
the treaties.
- Simple majority: 14 member states in favor.
- Qualified majority: 55% of Member States representing at least 65% of the
EU population.
- Unanimous vote.

There is country presiding over the Council which changes every 6 months.
The president works as a trio with the previous and next presidency.

Committee of Permanent Representatives in the EU.

 COREPER: A council working group where member States representatives
prepare and negotiate on behalf of their countries in advance to a Council
meeting.

4. European Parliament: Elected by citizens of the EU states. Citizens of the

EU vote for the candidates of the country they are residing in. There are no
European Parties. The candidates are from “local” political parties and answer
to the voters of their home-countries.

The Parliament has their meetings in Strasburg (France) and Brussels

(Belgium).

It can request the Commission to submit a proposal.

The Council and the European Parliament act like co-legislators. Both comment
on the proposal sent by the European Commission.
The EU has exclusive competence over trade agreements with foreign powers.
For security is only for coordination purposes.

Tuesday 25, 2024

Legal instruments of the EU and how they are produced
- Legal instruments:
o Biding: Regulations, directives and decisions.
o Non-binding: Recommendations and opinions.

o Regulation: General application. Biding in its entirety and directly

applicable in all Member States.

o Directive: Biding. It leaves it to the member States on how to achieve

the goal contained in the directive.

Member States are given a time frame to comply with the directive
(Transposition).

o Decision: Also binding but addressed to specific party (e.g. to the

European Commission). It’s a form of act.

- Hierarchy of norms: In public international law there is no hierarchy (despite a

preference for a treaty, if there is one). The limit is ius cogens.

However, there is a hierarchy in the EU:

 1. Primary law: The EU Treaties (TEU and TFEU), Chart of Fundamental Rights
of the EU and Protocols.
2. In between: General Principles of law established by the Court of Justice of
the European Union.
3. Secondary Law:
o Legislative acts. There is no formal hierarchy between the regulations,
directives and decisions.
o Delegate act.
o Implementation acts.
- Legislative acts, delegated acts, implementing acts .

Art. 289: Ordinary legislative procedure. Joint adoption by the EU Parliament

and the Council of a regulation, directive or decision on a proposal from the
Commission.

Special legislatives procedures are specified in the treaties. Either, taken by

the European Parliament with the participation of the Council or vice versa.
Participation means prior notice or agreement.

Legislatives acts are those adopted by legislative procedures.

The co-legislators can delegate the issuance of legislative acts to the

Commission.

- Decision-making.
- Enhanced cooperation.

October 1, 2024

Implementing act: The Commission can enact a legislation act for the
implementation of a legislation across the EU -in each legal system-. It replaces
the governments of the States.
Delegating vs. Implementing act: In delegation, the Commission replaces -for
non-essential elements- the Council and EU Parliament. In implementing act, it
replaces the governments of the member States.
How does the Commission decide if it’s going to generate a Regulation, Directive
or Decision? It first depends on the aim of the legislation.
Conciliation committee: If there is a problem in the approval of the legislation, a
Conciliation Committee is formed. This has 6 weeks to come to an agreement on
the text. There would be equal number of representatives from the Commission
and the Parliament. The text approved by them needs to be approved by a
majority of the votes casted in the EU Parliament and a qualified majority In the
Council.
 For the EU Court, the Commission has full power over the legislative procedure,
unless a unanimous decision by the Council.

Special legislative procedure Art. 289.2: Exceptional cases where the Treaties
contemplate that a procedure different from the regular, can be followed. E.g.
legislative act can be proposed by the Commission and approved by the Council
-with consultation to the Parliament- or vice versa. Usually security matters
(when its approved by the Council).
Competences:
3 categories of competences:
- Exclusive Art. 2.1 TFEU: Only EU. States only in the EU empowers them or if
its an application legislation due to a Directive.
- Shared Art. 4.2: Once EU exercises a competence on a matter, it is excluded
from the scope of the State.

Subsidiarity: In matters that are not of exclusive competence, EU can only act if the
objectives cannot be sufficiently meet by the Member States but can be better
achieved at the Union level.

Monday 7, 2024

- Principle of subsidiarity EU: In areas not within the exclusive competence of

the EU, the EU shall act only if the objectives cannot be sufficiently achieved
by the Member States. Rather, by reason of the scale or effects of the
proposed actions, be better achieved at Union Level.

National parliaments are the ones who are entitled to control the
fulfillment of the principle of subsidiarity. It’s an ex-ante control.

This is regulated in the Protocol on the Application of the Principle of

Subsidiarity and Proportionality. Note: Protocols are at the same legislative
level as the treaties on the EU.

The protocol has a “Yellow card” (can go on) and “Red card” (can’t go on)
procedure.

When the Commission has a legislative act proposal, it sends it to the

Nacional Parliament (in parallel to sending it to the Council and the EU
 Parliament). NP’s can issue reasoned opinions on the compliance (or non-
compliance) subsidiary or proportionality.

If less than 1/3 of the votes of the Parliaments are for non-compliance,
nothing happens.

If more than 1/3 of the votes of the Parliaments are for non-compliance, the
Commission reviews and can go forward -including adjustments if it deems it
necessary-.

If more than 1/2 of the votes of the Parliaments are for non-compliance (28
votes), the Commission reviews and can decide to withdraw or maintain the
proposal. If the Commission dices to go forward, the Commission must issue
an opinion supporting compliance. Both opinions go to a vote to the EU
Parliament and the Council. If a majority of the council or 55% votes of the UE
Parliament go for the non-compliance, then the legislative proposal is
discarded.

GPT: The subsidiarity principle in European Union (EU) law ensures that
decisions are made at the most local level possible, unless action at the EU
level is more effective. It applies particularly to areas where both the EU and
member states share competence.
The principle seeks to maintain a balance between national sovereignty and
the EU's ability to act collectively. It means that the EU should only intervene
if issues cannot be sufficiently addressed by individual member states or if
collective action is more efficient in achieving the desired outcomes.
Subsidiarity is outlined in Article 5(3) of the Treaty on European Union (TEU).
It works alongside the principle of proportionality, which requires that any EU
action must not exceed what is necessary to achieve its objectives. National
parliaments play a role in monitoring adherence to this principle through a
"yellow card" system, allowing them to challenge proposed legislation if they
believe it breaches subsidiarity.

- Principle of proportionality EU:

The principle of proportionality in EU law ensures that any action taken by
the European Union is limited to what is necessary to achieve the objectives
of the treaties. In other words, EU measures must be appropriate and not go
beyond what is required to address a given issue.
This principle is outlined in Article 5(4) of the Treaty on European Union
(TEU) and applies to all EU actions. It requires that:
1. Suitability: The action taken must be appropriate for achieving the
intended objective.
 2. Necessity: The measure must not exceed what is necessary to achieve
the objective. If there are less restrictive alternatives available, those
should be pursued.
3. Proportionality stricto sensu: The benefits of the action must outweigh
the burdens or negative consequences imposed by it.
The principle is closely linked to subsidiarity and is designed to prevent
excessive intervention by the EU, ensuring that the scope and intensity of EU
action are carefully tailored to the problem at hand. It is often invoked when
assessing the legality and validity of EU laws, particularly by the Court of
Justice of the European Union (CJEU).

Judicial Body of the EU

Art. 19 TEU / Arts 251- 257 TFEU / Arts. 258-267 TFEU
Court of Justice of the European Union: is comprised of:
- Court of Justice of the European Union
- General Court of Justice of the European Union
27 judges in the CJEU. 1 per state.
8 Advocates-General. They present an opinion on the cases. The judges may or may
not follow the opinion.
54 judges in the General Court. 2 per member state.
The working language of the CJEU is French. However, rulings are issued in all 24
official languages of the EU.
Requirements for Judges and Advocate-General of the Court of Justice: 1.
Independence beyond doubt and 2. the qualifications requirements for the
appointment to the highest judicial office of their countries or jurisconsults o
recognized competence.
The member state proposes its candidates, a panel of 7 people issue an opinion of
the candidate to the Council. Considering the Opinion, the Council votes and
appoints the Judges or Advocate General -as applicable-. The appointment needs
“common accord”. That no one opposes.
Art. 257 = The EU Parliament and the Council, by ordinary legislative (but its
actually an special), can create specialized courts attached to the General Court as
first instance courts. Its enacted by a regulation at the proposal of the Commission
or of the EU Court.

Thursday 10, 2024

Agriculture in the EU is heavily funded by the EU.
 Article 258 TFEU (ex Article 226 TEC)
If the Commission considers that a Member State has failed to fulfil an
obligation under the Treaties, it shall deliver a reasoned opinion on the
matter after giving the State concerned the opportunity to submit its
observations.
If the State concerned does not comply with the opinion within the period laid
down by the Commission, the latter may bring the matter before the Court of
Justice of the European Union.
Article 259 TFEU (ex Article 227 TEC)
A Member State which considers that another Member State has failed to
fulfil an obligation under the Treaties may bring the matter before the Court
of Justice of the European Union.
Before a Member State brings an action against another Member State for an
alleged infringement of an obligation under the Treaties, it shall bring the
matter before the Commission.
The Commission shall deliver a reasoned opinion after each of the States
concerned has been given the opportunity to submit its own case and its
observations on the other party's case both orally and in writing.

If the Commission has not delivered an opinion within three months of the
date on which the matter was brought before it, the absence of such opinion
shall not prevent the matter from being brought before the Court.
Note. The affected state can still go before the Court if the Commission’s
opinion is that there is no breach.
It is uncommon for this clause to be activated.

October 17th
Van Gend & Loos case
Regarding application of Art. 12 of the EEC Treaty.
The Court was asked if the increase of a tariff after the entering into force of the
EEC.
Monist countries: entering a treaty automatically enters into the national law
system.
Dualist countries: the treaty needs a national legislative act to inter into the national
law system.
The Court said that lex posteriori won’t apply to the treaties (EU Law), specifically,
lex posteriori.
Chat GPT
The Van Gend en Loos case (1963) is one of the most important decisions in the
history of the European Union law. It was a landmark ruling by the European Court
of Justice (ECJ) that established the doctrine of direct effect, significantly shaping
the relationship between European law and national laws of member states. Here
are the key implications:
1. Introduction of the Doctrine of Direct Effect
 The ECJ ruled that European Community (now EU) law could create rights for
individuals which national courts must protect. This means that individuals
can directly invoke European treaties and legislation before national courts,
even if the country in question has not passed domestic laws to implement
that EU legislation.
 This doctrine of direct effect means that EU law is not just an agreement
between member states, but a legal system that creates rights and
obligations for individuals.
2. Limitation on National Sovereignty
 The case reduced the extent to which national governments could ignore or
delay the implementation of European law. The ruling essentially made EU
law superior to national laws in areas where the EU has competence.
 It created a direct channel between EU law and citizens, bypassing national
governments if they failed to implement European law.
3. Supremacy of EU Law
 Although Van Gend en Loos did not explicitly state the principle of the
supremacy of EU law, it paved the way for future cases that would develop
this doctrine. Essentially, if there is a conflict between national law and EU
law, the latter takes precedence.
4. Enhanced Role of the ECJ
 The case expanded the role of the ECJ by affirming its authority to interpret
EU law and ensure its uniform application across all member states. It
established the ECJ as the final arbiter in disputes over the interpretation and
application of European law.
5. Increased Accountability of Member States
 By allowing individuals to bring cases against their national governments for
not adhering to EU law, it increased the accountability of member states.
Governments could no longer hide behind domestic legal processes to avoid
implementing EU law.
Case Background:
  The case originated when Van Gend en Loos, a Dutch transport company,
was charged a tariff on imports from Germany into the Netherlands. The
company argued that this violated Article 12 of the Treaty of Rome (now
Article 30 of the Treaty on the Functioning of the EU), which prohibited new
customs duties between member states.
 The Dutch court referred the matter to the ECJ for a preliminary ruling on
whether individuals (like the company) could rely directly on provisions of the
Treaty of Rome.
Conclusion:
The Van Gend en Loos ruling is a foundational case that solidified the EU's legal
order by allowing individuals to enforce European law in national courts and
significantly strengthening the ECJ's role in ensuring the uniform application of EU
law across member states. It shifted the European legal landscape, contributing to
the development of a more integrated and supranational legal system in Europe.
Costa v. Enel
When must a national court ask the court and when it can in a case of interpretation
or validity of EU law?
- The last instance court must ask the Court. However, they have some margin
of appreciation, as long as they don’t violate EU law.
- Other instance can ask the Court if they deem that they need the
interpretation of the Court to solve the case.
Paragraph 13 was the basis for the principle of supremacy of EU law. The EU law
become a supreme source of law.
Chat GPT:
The Costa v. ENEL case (1964) is another landmark ruling by the European Court of
Justice (ECJ), and it built upon the principles established in Van Gend en Loos. It
solidified the supremacy of European Union (EU) law over national laws. Below are
the key implications:
1. Doctrine of Supremacy of EU Law
 The central ruling in Costa v. ENEL established that EU law takes precedence
over conflicting national law. This means that when there is a conflict
between a provision of EU law and national law, EU law must prevail,
regardless of whether the national law was passed before or after the EU
provision.
 It reinforced the idea that member states have transferred a part of their
sovereignty to the European legal order, and as such, they cannot unilaterally
enact laws that contradict EU law.
2. Reinforcement of the Direct Effect Principle
  Building on Van Gend en Loos, Costa v. ENEL confirmed that individuals could
invoke EU law before their national courts, even when national law
contradicts it. This strengthened the legal protection of individuals under EU
law.
 National courts were made responsible for ensuring the application of EU law,
even in cases where national legislation conflicted with it.
3. The Creation of a Supranational Legal Order
 The ruling in Costa v. ENEL confirmed that EU law is a distinct and
autonomous legal system, separate from the domestic legal systems of
member states. Member states cannot opt out of EU law, nor can they enact
laws in direct opposition to it once they have entered into the EU legal
framework.
 It marked a shift toward a more federal-like system, where EU law holds a
higher position than national laws in specific policy areas where the EU has
competence.
4. Limitation on National Sovereignty
 The case underscored that by joining the EU, member states accepted
limitations on their national sovereignty in favor of creating a unified and
coherent legal framework within the European Union. This decision had a
profound impact on how member states viewed their role within the EU.
Case Background:
 The case began when Mr. Costa, an Italian citizen, challenged the
nationalization of the electricity company ENEL in Italy, arguing that the
nationalization law violated certain provisions of the Treaty of Rome (the
founding treaty of the European Economic Community, now the EU).
 He refused to pay his electricity bill to ENEL, claiming that the Italian law
conflicted with European Community law. The Italian court referred the case
to the ECJ for a preliminary ruling on whether EU law took precedence over
the conflicting Italian national law.
5. Empowering National Courts to Uphold EU Law
 National courts, by virtue of this ruling, were empowered to disapply national
laws that conflicted with EU law. This effectively integrated EU law into the
legal systems of member states, giving it a higher legal status in areas of EU
competence.
Conclusion:
The Costa v. ENEL case firmly established the principle of the supremacy of EU law,
ensuring that national legal systems could not override or undermine EU law. It
played a critical role in the further integration of Europe by ensuring that EU laws
are uniformly applied and respected in all member states. This case, alongside Van
Gend en Loos, laid the legal foundation for a unified European legal order, where EU
law directly affects individuals and limits national sovereignty in favor of a
supranational legal framework.

For next class: Definition of the principle of supremacy and its legal basis in today’s
EU legal system.

Monday 21
- Principle of supremacy: The EU law has primacy over national law of the
EU state, within the field of the EU competences.
- It’s based in the rulings of Costa v. ENEL (1964) and Van Gend en Loos
(1963), however it is not in the treaties -no express legal provision-.
- Its foundation is that is just tolerated by the States.
Human Rights in the EU
- The initial EU agreements (European Coal and Steel Community) had a focus
for economic integration. It didn’t develop human rights.
- In parallel, the Council of Europe emerged as the forum for the protection of
human rights in Europe.
-