Graduate Diploma in Law

Module: EU Law

Year: 2018-19

Term: 1st

Lecturer: Professor Panos Koutrakos

Lectures 1-11

Please note: electronic PDF copies of all City Law School

course materials can be found online at the City University
London student portal CitySpace.

www.city.ac.uk/law
GENERAL INFORMATION

1 Aims

Knowledge of the European Union legal system is an essential part of the legal education in
every Member State. It is not a question of studying some kind of separate ‘foreign’ law but of
understanding the source and effect of major parts of the law applicable in every Member
State. To study EU Law, therefore, it is not necessary to be ‘pro-Europe’, or in favour of
further European integration. It is simply a matter of trying to understand EU law and the EU
legal order in the same way that one seeks to understand domestic law.

This module aims:

 To enable you to develop a general understanding of EU Law and an understanding of

the main substantive aspects of EU Law
 To allow you to gain knowledge of the political institutions of the EU, and the Court of
Justice and its jurisdiction
 To provide you with a specific understanding of the relationship between EU Law and
National Law
 To develop your ability to answer questions and analyse legal concepts in tutorial groups
 To enable you to demonstrate a detailed knowledge of specific areas of current
importance and an appreciation of the evolving nature of European Union Law

2 Learning Outcomes

On successful completion of this module, you will be expected to be able to:

Knowledge and Understanding

 Demonstrate knowledge and understanding at a sound basic level of the well-
established principles in areas covered by the syllabus.
 Demonstrate the ability to apply those principles to problems in a broad and detailed
manner and to reach justified conclusions or judgements.
 Demonstrate the ability to appreciate the connections between material covered in
the different modules and to apply principles and concepts outside the area in which
they were first studied.
 Demonstrate critical awareness of current problems, new insights, current research or
advanced scholarship in the area being studies. In particular, you should be able to
demonstrate understanding of the recent trend in the jurisprudence and be able to
critically evaluate the developing law.

Skills:

• Demonstrate the ability to find primary and secondary legal materials using paper and
electronic sources.
• Demonstrate effective planning and organisational skills.
• Demonstrate the ability to synthesise information on defined problems with minimal
advance guidance.
• Demonstrate effective written and oral communication skills.
• Demonstrate the ability to analyse authorities, principles, policies and other texts on
defined problems using a range of materials with minimal advance guidance.
• Demonstrate the ability to make effective use of information technology.

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 • Demonstrate the ability to compare and evaluate inconsistent doctrines and policy
approaches on defined problems using a range of materials, with minimal advance
guidance.
• Demonstrate the ability to formulate and test concepts and hypotheses on defined
problems using a range of materials, with minimal advance guidance.
• Demonstrate the ability to work both independently and as a member of a team.
• Evaluate the relevant facts of complex legal problems involving questions of EU Law.
• Demonstrate the ability to communicate legal information accurately and effectively.

3. Brexit

You may wonder about the effect of the 23 June 2016 referendum on the status of EU
law in the United Kingdom. You may, also, wonder why you need to study it as part of
the GDL programme.

The answer to your first question is clear: EU law is still part of the law of the land. This
position will only change once the negotiations between the UK and the UK have been
finalized and the UK has left the EU. Do bear in mind that these negotiations have yet
commence.

The above leads to the answer to the second question: you must study EU law as part
of your GDL studies because it is still part of the law of the land and knowledge of it is
still part of the requirements set by the Law Society and the Bar Standards Board.

Following the referendum, the Law Society and the Bar Standards Board made the
following statement:

“At present, the United Kingdom remains a member state of the European Union. It is
too early to know what the timetable for any change as a result of the outcome of the
recent EU referendum vote will be, or the outcome of the post-referendum negotiations
over access to the single market. Neither the SRA nor the BSB will be making any
change to the academic requirements in relation to EU law for either the Qualifying Law
Degree or Common Professional Examination for the coming academic year. The SRA
will be making no change to its requirements for the Legal Practice Course for the
coming academic year. The BSB will be making no change to its requirements for the
Bar Professional Training Course for the coming academic year”.

During this year, we shall discuss Brexit and the legal rules and procedures which
govern the negotiations leading to it. We shall unpack the provisions of Article 50 TEU
and discuss the various possibilities for the future relationship between the UK and the
EU.

We shall also keep up with current affairs and examine the various legal developments
related to Brexit as they unfold.

4 Content

Lecture 1 EU history and Institutions

Lecture 2 Law-making
Lecture 3 Brexit and Article 50 TEU
Lecture 4 Supremacy and direct effect
Lecture 5 The legal effects of directives
Lecture 6 General Principles of law and fundamental human rights
Lecture 7 State liability for breach of EU law
Lecture 8 Enforcement proceedings (Art. 258-260 TFEU)
Lecture 9 Preliminary references (Art. 267 TFEU)
Lecture 10 Action for annulment (Art. 263 TFEU)
Lecture 11 Revision

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5 Teaching

The module will be delivered on the basis of 21 two-hour lectures and 10 one-hour tutorials.

6 Lecturer

Professor Panos Koutrakos, Professor of EU Law and Jean Monnet Professor of EU Law
Office: GIP 1.15; email: [email protected]

7 Assessment

The module is assessed by one 3-hour unseen examination.

The examination will take place during the May-June examination period. Students may take
into the examination un-annotated copies of their statute books. There will be a mixture of
problem type questions which will test your ability to apply the law to a given set of facts and
essay questions which will examine your ability to discuss the development, policy, cases and
problem issues in a particular area of law.

8 Books

a) Students must use a statute book (or have copies of the relevant Treaty materials
and other relevant legislation).

We recommend that you use the 29th edition of Blackstone’s EU Legislation (2018/19) by
Nigel Foster.

b) We recommend:

Craig and de Búrca, EU Law: Text Cases and Materials (OUP, 6th ed. 2015). This consists
of a combination of extracts from case-law, academic literature and analysis.

Alternative textbooks are:

Dashwood, Dougan, Rodger, Spaventa and Wyatt, Wyatt and Dashwood’s European Union
Law (Hart Publishing, 6th ed 2011). This consists of analysis of the areas which we shall cover
this year.

For a shorter textbook dealing with the areas we shall examine during the first term, you may
have a look at

Rosas and Armati, EU Constitutional Law – An Introduction 3rd ed (Hart Publishing, 2018)

Or

Hartley, The Foundations of European Union Law (OUP, 8th ed. 2014).

9. This handout

This lecture handout is long. DO NOT BE ALARMED. It is intended to provide the map which
we shall follow closely at lectures. It is also intended to provide some structure of the material
which shall cover in the first semester. Therefore, it should be your starting point for further
study and reflection. It is precisely tailored to this module. Try to use this handout to give you
the framework and structure of the course, which can be supplemented with your reading of
the textbook (and other resources).

10 The Treaty of Lisbon

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The primary rules of the European Union are laid down in the Treaty of Lisbon. This entered
into force on 1 December 2009 and brought about a number of changes to pre-existing EU
(and what was EC) law. First, it renamed the EC Treaty (which became the Treaty on the
Functioning of the European Union) and led to a renumbering of its Articles, as well as of
those of the EU Treaty. Second, it amended many of the provisions of the Treaties leading to
some major changes which are directly relevant to the issues covered in this course.

The lectures and this handout will alert you to the most important changes. However, it is
important that you should be alert to the way in which the Treaties have changed when
referring to any text (be it a journal article, a judgment of the Court or a piece of secondary
legislation) which predates the end of 2009. You do NOT have to remember both the pre- and
post-Lisbon numbers of the provisions of the Treaties - knowing the current numbering would
suffice.

A GUIDE TO LAW REPORTS AND OTHER

SOURCES OF EUROPEAN LAW

The European Union website is http://www.europa.eu. Click on ‘Welcome’ in whichever EU

language you want to use, and explore from there... If you want to access European legal
materials you can do so via the Eur-Lex portal; http://www.eur-lex.europa.eu.

The European Court’s website can also be accessed from www.europa.eu, or (better) by
going directly to http://www.curia.europa.eu. Judgments from June 1997 onwards are
available from this site and can be printed out. New judgments are put on the web in the
language of the case on the same day or within a couple of days of delivery but it may be
some time before they are available in every language. It is possible to search the Court’s
website by subject (e.g. for cases dealing with the ‘free movement of goods’), and in this way
to keep abreast of recent developments in your areas of interest.

The University Information Services also have access to a range of databases, including
Westlaw and LexisNexis Professional which have EU sections that enable you to access all
decisions of the Court of Justice and General Court (this includes those from before 1997), as
well as the Treaties, European legislation and certain preparatory documents.

1 Official Journal

The Official Journal is an official publication published by the European Commission almost
daily, in every official EU language except Irish. There are two series, ‘L’ and ‘C’. The ‘L’
series contains the texts of secondary legislation. Legislation which is to be in effect only for a
short time (e.g. agriculture Regulations) is listed in the index on the cover in faint type. The ‘C’
series contains information and notices, including drafts of proposed secondary legislation, a
brief statement of cases decided by the Court and new cases filed, and questions in the
European Parliament.

The Official Journal is cited by year, edition number of that year and page number e.g. [1989]
OJ L 395/1 is something appearing on page one of the 395th edition of the legislation series
for 1989 (in fact the Merger Regulation, 4064/89 of 21st December 1989). The Official Journal
has only been published in English since 9th October 1972. On the UK’s Accession authentic
English texts of pre-Accession secondary legislation still in force were prepared and were
published as a Special Edition of the Official Journal (cited as OJ Sp. Ed. 1959 - 62 etc.).

Note that the Official Journal is also available through EUR-LEX (http://www.eur-
lex.europa.eu and follow the links from there). Some parts of the ‘C’ series are now only
available electronically. These have an ‘E’ suffix; eg [2001] OJ C 270 E, of 25 September
2001.

2 Law Reports

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All cases before the European Court are given numbers, which are always used in their
citation. The number includes the year in which the case was filed e.g. Case 27/76 is United
Brands. Since the inception of the General Court (named the Court of First Instance (or CFI)
before the coming into force of the Treaty of Lisbon) cases before the Court of Justice of the
European Union (CJEU) are indicated by the letter C- before the number, while cases before
the General Court are indicated with T- (the French name for what was the CFI, is Tribunal de
Premier Instance, hence the prefix T-. It is now known as the Tribunal, so the prefix remains
unchanged). Cases which are appeals from the General Court to the CJEU have the letter P
after the number e.g. Case C-195/91P Bayer AG v Commission. Cases with R in the number
are interim decisions e.g. Case 792/79R Camera Care v Commission.

(a) European Court Reports

This is the English language edition of the official Court reports. The European Court Reports
contain the text of every judgment and opinion of the ECJ and the General Court and the
opinions of the Advocates General, together with a summary of the facts etc. The Reports
appear in approximately monthly parts for each year. However long the delay in actual
publication, the volumes labelled ‘1996’ will contain all the cases in which the judgment was
given in 1996.

The Court of Justice judgments were cited, until recently, e.g. [1992] ECR I-26 and General
Court cases are cited e.g. [1992] ECR II-27.

(b) European Case-Law Identifier

Judgments are no longer published in European Law Report. Instead, every judgment is now
accompanied by a European Case-Law Identifier (ECLI). All decisions delivered by the
European Union Courts since 1954 and all Opinions and Views of the Advocates General are
now accompanied by an ECLI.

For example, the ECLI of the judgment of the Court of Justice of 12 July 2005 in Case C-
403/03 Schempp is the following: ‘EU:C:2005:446'.

It is broken down as follows:

• ‘EU' indicates that it is a decision delivered by an EU Court or Tribunal (for decisions
of national courts, the code corresponding to the relevant Member State appears in
the place of ‘EU');
• ‘C' indicates that this decision was delivered by the Court of Justice. Decisions
delivered by the General Court are indicated by the letter 'T' and those of the Civil
Service Tribunal by ‘F';
• ‘2005' indicates that the decision was delivered during 2005;
• ‘446' indicates that it is the 446th ECLI attributed in respect of that year.

(c) Internet

The EUR-LEX website (http://www.eur-lex.europa.eu) has all the judgments from 1954
onwards.

So does the website of the Court of Justice (www.curia.eu) which also has an excellent
search form (http://curia.europa.eu/juris/recherche.jsf?language=en).

3 Specialist Journals

You will be referred to journal articles during this module. All general UK legal periodicals
sometimes have articles on EU Law (as do some US periodicals). The principal specialist EU
law journals are:

CYELS Cambridge Yearbook of European Legal Studies

CMLRev Common Market Law Review

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ELRev European Law Review
EPL European Public Law
ELJ European Law Journal
ICLQ International and Comparative Law Quarterly
JCMS Journal of Common Market Studies
LIEI Legal Issues of European Integration
YEL Yearbook of European Law

4 Language

The European Union is multi-lingual. There are 24 official languages. All the language
versions of the Treaty and of secondary legislation are equally authentic. In cases before the
Courts there is an official language of the case, and that language version of the judgment is
the authentic one. The working language of the Court internally is French.

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Lecture 1 EU History and Institutions
Main reading

Craig and de Burca, Chapters 1-2.

 The end of the war and the desire to prevent another one in Europe

 The Historical Evolution of the EU – Key Dates

NOTE that the Council of Europe, founded in 1949, and under whose auspices the European
Convention on Human Rights (1950) and European Social Charter (1961) were adopted, is
an international organisation based in Strasbourg which is NOT part of the EU. PLEASE… Do
NOT confuse them (there is particular scope for damaging confusion in those parts of this unit
which deal with supremacy and fundamental rights).

18 April 1951
Signing of the Treaty of Paris setting up the European Coal and Steel Community (ECSC) as
a result of the Schumann Plan by France, Germany, Italy and the Benelux countries (Belgium,
the Netherlands and Luxembourg).

Major objective of the ECSC: to place under common control these two war-making industries
(coal and steel). The ECSC Treaty came into force on 20 July 1952.

27 May 1952
Signing of the Treaty setting up the European Defence Community (EDC) by the original six
ECSC states.

31 August 1954
The EDC collapses due to the refusal of the French Parliament to ratify the Treaty.

**25 March 1957

Signing of two Treaties in Rome, one establishing the European Economic Community (EEC),
and the other establishing the European Atomic Energy Community (EAEC), commonly
known as Euratom. The Treaties came into force on 1 January 1958.

* Objectives of the EEC: (Art. 2) to establish a common market and to progressively

approximate the economic policies of its Member States and through them to promote
throughout the Community a harmonious development of economic activities, a continuous
and balanced expansion, an accelerated raising of the standard of living and closer relations
between the States belonging to it.

4 January 1960
Signing of the Stockholm Convention establishing the European Free Trade Association
(EFTA) between the UK, Denmark, Sweden, Norway, Switzerland, Liechtenstein, Iceland
Austria, Portugal and (later) Finland. EFTA came into being in May 1960.

January 1966
The Luxembourg Accords, an infamous political compromise about the non-application of the
qualified majority voting system ‘where very important national interests are at stake’, is
included in a press release.

1 July 1967
The Merger Treaty, whereby a Single Council and a Single Commission for the three
Communities are established, comes into force. The establishment of a Single Assembly
(Parliament) and Court for the three Communities was effected by the Convention on Certain
Institutions Common to the European Communities, which entered into force on the same

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date as the EEC and Euratom Treaties. It was repealed by Art 9 of the Amsterdam Treaty
(below), its operative provisions having been moved to other Treaties.

1 January 1971
The First Budgetary Treaty, which increased the power of the European Parliament over the
Budget comes into force.

1 January 1973: The First Enlargement

The UK, the Republic of Ireland and Denmark become members of the three Communities as
the first Treaty of Accession (signed on 22 January 1972) comes into force. Norway’s
application was withdrawn after a referendum showed popular rejection of accession. The
transitional period expired in 1977.

20 September 1976
Council Decision 76/787, OJ 1976 L278, on holding direct elections for the European
Parliament was adopted in Brussels.

1 January 1981: The Second (Southern) Enlargement

Greece enters the three Communities by the second Treaty of Accession. The period of
transition was mainly completed by 1 January 1986.

1 January 1986: The Third (Iberian) Enlargement

Spain and Portugal enter the Communities as the third Treaty of Accession comes into force.
A four year transitional period was granted to the new Member States.

** 1 June 1987
The Single European Act (SEA), signed in 1986, comes into force. This treaty represented the
first major amendment of the Treaty of Rome for almost thirty years. The SEA:
- introduced the concept of ‘internal market’;
- laid down provisions for completing the ‘internal market’ by the target date of 31
December 1992.
- extended the qualified majority voting procedure in the Council;
- introduced the ‘co-operation procedure’ whereby the European Parliament (EP) was
given more influence in the legislative process;
- formalised delegation from the Council to the Commission;
- formally institutionalised the European Council
- introduced a machinery, European Political Co-operation (EPC), whereby Member
States could co-operate in the sphere of foreign policy;
- provided for the Court of Justice to have a Court of First Instance tier (CFI);
- provided for co-operation in economic and monetary policy;
- introduced new measures on social policy and economic and social cohesion;
- introduced provisions on research and technological developments;
- introduced provisions on the environment

9 December 1989
Signing (by 11 of the then 12 Member States) of the Community Charter of the Fundamental
Social Rights of Workers.

1989-1993
First and second generation ‘Europe Agreements’ between the Countries of Central and
Eastern Europe (CCEE) and the European Communities. They were association agreements
designed to prepare the ground for eventual full membership of the European Union. In 1990
the former German Democratic Republic became part of the Community as an extension of
the Federal Republic of Germany rather than as a thirteenth Member State.

** 7 February 1992
Signing at Maastricht of the Treaty establishing the European Union (EU), also known as the
Maastricht Treaty or TEU. However, the process of ratification of the Treaty followed a
tortuous path. The Danish people voted narrowly against ratification in June 1992, and in
December 1992 the European Council reached an agreement designed to offer a solution to

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the Danish problem. A second referendum held in 1993 secured a favourable vote. The ‘yes’
campaign comfortably prevailed in the Irish referendum of August 1992 and secured a narrow
victory in the French referendum of September 1992. In the UK the adoption of the European
Communities (Amendment) Act had to overcome a vote of confidence in Parliament and an
action for judicial review by Lord Rees-Mogg (R. v Secretary of State for Foreign and
Commonwealth Affairs, ex parte Rees-Mogg [1993] 3 CMLR 101). The Act finally received
the Royal Assent on 20 July 1993. Germany was the last Member State to ratify the Treaty in
October 1993 after a citizen’s challenge to the constitutionality of the German accession was
rejected by the German Constitutional Court (Bundesverfassungsgericht); see Brunner v
European Union Treaty [1994] 1 CMLR 57 (which we will look at in tutorial 2).

** 1 November 1993
The TEU comes into force. The TEU is an umbrella-type agreement which is often likened to
a temple resting on three ‘pillars’: that of the (revised) EC Treaty, that of the Common Foreign
and Security Policy (CFSP) and that of Co-operation in Justice and Home Affairs (JHA).
There are stark difference between the first and the other two pillars as regards the
decision-making process, the role of the European Institutions and the effect of legislation
produced under them.

The objectives of the Union are set out in Article 2 TEU. They are: to promote economic and
social progress; to assert its identity on the international scene; to strengthen the protection of
the rights and interests of its citizens; to maintain and develop the Union as an area of
freedom, security and justice; and to maintain in full the acquis communautaire.

As regards the major amendments to the EEC Treaty, the TEU:

- establishes a timetable for progress towards Economic and Monetary Union (EMU)
and a single currency
- changes the EEC into the European Community (EC)
- introduces the ‘co-decision procedure’ (see lecture 2)
- introduces expressly and in writing the ‘subsidiarity’ principle (see lecture 4)
- introduces the concept of ‘Citizenship of the Union’
- adds several new fields of activity, including Employment, Culture, Public Health,
Consumer Protection, Trans-European Networks, Industry, and Development Co-operation
- annexes the Social Policy Agreement (the so-called Social Chapter), concluded
between all Member States bar the UK, to the Protocol on Social Policy
- strengthens the provisions on Economic and Social Cohesion and on the
Environment first inserted by the SEA
- extends the use of qualified majority voting
- formalised the ‘Europe a la carte’ approach by including ‘opt-in’ and ‘opt-out’ clauses
for certain Member States (Denmark and the UK)

1 January 1994
The Treaty between the EC and EFTA establishing a European Economic Area (EEA) comes
into force. In 1991 the Court of Justice gave an Opinion ruling a draft agreement incompatible
with the EC legal order (see Opinion 1/91, Re: the Draft Agreement on a European Economic
Area [1991] ECR I-6079; [1992] 1 CMLR 245) and therefore the Agreement had to be
substantially revised before the Court finally approved it (see Opinion 1/92, Re: the Revised
Draft Agreement on a European Economic Area [1992] ECR I-2821; [1992] 2 CMLR 217). In
December 1992 the Swiss people voted against their country’s participation in the EEA and
this required further readjustment of the latter before it entered into force at the start of 1994.

2 January 1995
Austria, Sweden and Finland become full members of an EU now encompassing 15 Member
States. The Norwegian people, for the second time in twenty years, vote against accession in
the relevant referendum.

March 1998
The Commission approves Accession Partnerships with the ten applicant countries of Central
and Eastern Europe (Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland,
Romania, Slovakia and Slovenia).

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* 1 May 1999
The Treaty of Amsterdam (TA), modifying the TEU, comes into force. The TA:
* lacks a single grand project as its hallmark
* renumbers the provisions of the EC Treaty and of the TEU (by switching from letters
to numbers) and thus has caused a lot of confusion
* develops the principle of ‘closer co-operation’ (also known as ‘variable geometry’ or
‘principle of flexibility’ or ‘Europe a la carte’)
* introduces new provisions on Fundamental Human Rights (FHR)
* modifies and extends the use of the co-decision procedure and limits the application
of the co-operation procedure to matters concerning the EMU
* makes provisions for the eventual abolition of border controls on persons travelling
from one Member State to another by integrating the ‘Schengen Acquis’ into the framework of
the EC Treaty (although three protocols annexed to the Treaty grant permanent opt-outs to
the UK and Ireland and to a more limited extent to Denmark)
* ends Britain’s opt-out on social policy and creates a new one as regards passport
controls
* postpones for future resolution the quest for institutional reform to render the EU
ready for enlargement.
* redistributes some content between the three pillars (most of all, from the ‘third’ pillar
(now termed ‘Police and Judicial Cooperation on Criminal matters’ or ‘PJCC’) to the EC ‘first’
pillar).

* 7 December 2000
Solemn Proclamation of the Charter of Fundamental Rights of the European Union.

1 January 2002
The introduction of the euro. Euro notes and coins introduced in the ‘Eurozone’.

* 1 February 2003
The Treaty of Nice, signed in February 2001, came into force (following two referendums in
Ireland). The TN lacks a single grand project as its hallmark.
- it prepares the way for the enlargement of the EU (see in particular the Protocol on
the Enlargement of the European Union and the Declaration on the Enlargement of the
European Union)
- it further develops the principle of ‘enhanced cooperation’ (see Article 11 EC)
- it creates a new Statute of the Court of Justice (see the Protocol on the Statute of
the Court of Justice).

* 1 May 2004
On 1 May 2004, ten States joined the EU, making the total number 25. The European
Council, meeting in Copenhagen, decided that Hungary, Poland, the Czech Republic, the
Slovak Republic, Slovenia, plus the Baltic states of Estonia, Latvia and Lithuania, and the
Mediterranean islands of Malta and Cyprus could accede to the Union in 2004; the
culmination of a long process of preparation and negotiation.

* 1 January 2007
Accession of Bulgaria and Romania to the EU, making the total number of States 27.

*1 July 2013
Accession of Croatia to the EU, making the total number of States 28. The position of Turkey
remains very uncertain. Progress depends (at least in part) on the European Council
concluding that it fulfils the ‘Copenhagen criteria’; essentially demonstrating its progress in
safeguarding human rights, the rule of law, and the protection of minority groups.  For more
information on the enlargement process, see http://ec.europa.eu/enlargement/

 The Treaty Establishing a Constitution for Europe

* 14-15 December 2001

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At the European Council meeting in Laeken, the European Council adopted the Laeken
Declaration on the Future of the European Union; see
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/68827.pdf.
The Laeken Declaration paved the way for a Convention on the Future of Europe; see
http://european-convention.eu.int/bienvenue.asp?lang=EN, whose task was to consider the
key issues arising for the Union’s future development and to try to identify the various
possible responses.

* 18 July 2003
The Convention, chaired by Valerie Giscard d’Estaing, produced the final text of the draft
Treaty establishing a Constitution for Europe. The full text of the Constitution is in the Statute
book. The draft Constitution claims to:
- propose a better division of Union and Member State competences;
- recommend a merger of the Treaties and the attribution of legal personality to the Union;
- establish a simplification of the Union’s instruments of action;
- propose measures to increase the democracy, transparency and efficiency of the Union, by
developing the contribution of national Parliaments to the legitimacy of the European design,
by simplifying the decision-making processes, and by making the functioning of the European
Institutions more transparent and comprehensible; and
- establish the necessary measures to improve the structure and enhance the role of each of
the Union’s three institutions, taking account, in particular, of the consequences of
enlargement.

The Constitution was agreed by the Intergovernmental Conference (IGC) in June 2004. The
Treaty establishing a Constitution for Europe was signed on 29 October 2004 in Rome.

However, both France and The Netherlands held referendums which rejected the Constitution
in 2005. Therefore, the Constitution could not be ratified, and the referendum which had been
planned in the UK was postponed. For some time, the status of the Constitution was
uncertain.

 The Lisbon Treaty

In 2007, the Heads of State and Government reached a new political agreement on what is
termed a ‘Reform Treaty’ – for some, the Constitution in all but name.

Political leaders signed the Treaty of Lisbon in December 2007; though it was only due to
come into force in 2009, once it had been ratified in all 27 Member States. This time, the only
Member State which decided to hold a referendum, was Ireland. In all other Member States,
ratification was to proceed by Parliamentary vote.

In June 2008, 53.4% of the Irish people rejected the Treaty of Lisbon. Meanwhile, ratification
proceeded in the other Member States but not without provoking some resistance: a legal
challenge to the Treaty in the Czech Republic was resolved November 2008, when the Czech
highest court ruled that the Treaty was compatible with the Czech constitution. In June 2009,
Germany’s Federal Constitutional Court returned a long-awaited judgment on a citizens’
challenge to the Lisbon Treaty (note that the same procedure led to the Brunner judgment on
the Maastricht Treaty in 1994, see above). The Court confirmed the compatibility of the Treaty
with the German constitution but declared that the German ratification process be suspended
until a German law on parliamentary rights of participation was adopted. Such legislation was
adopted in the autumn 2009.

Following Ireland’s rejection of the Treaty, the European Council concluded in June 2008 that
Ireland should bring forward proposals to enable it to ratify the Treaty. At its next two
meetings, in December 2008 and June 2009, the European Council agreed a compromise
whereby Ireland would hold a second referendum on the Treaty (now set for 2 October 2009),
in exchange for certain legal guarantees on national sovereignty (e.g. on taxation and
abortion) and on keeping the current number of members of the EU Commission . Second
time round, Ireland overwhelmingly voted yes (by 67% to 33%), and after some

12
grandstanding by the Presidents of Poland and the Czech Republic, all Member States were
in position to ratify the Treaty, which came into force in December 2009.

The Treaty of Lisbon:

 renumbers Articles of the Treaties;
 ends the ‘pillar structure’ of the EU, and replaces the EU and EC Treaties with the
TEU (Treaty on European Union) and TFEU (Treaty on the Functioning of the
European Union) – but note that separate, more intergovernmental, rules for
common foreign and security policy remain;
 increases the scope for cooperation among willing Member States, or, to put this
another way, multi-speed Europe – and the UK’s opt outs in relation to justice and
home affairs were retained;
 increases the scope for majority voting in the Council of Ministers;
 alters the statements on the values and objectives of the Union;
 increases the Union’s commitment to human rights;
 introduces the office of High Representative for Foreign Affairs and Security Policy;
 introduces a permanent President of the European Council;
 increases the power of the European Parliament;
 changes the way in which the Treaties may be amended (Article 48 TEU);
 makes provision for States to withdraw from the Union (Article 50 TEU)

The text of the Lisbon Treaty is in [2007] OJ C 306/1.

For a consolidated version of the Treaties as amended by the Treaty, see [2010] OJ C 83/1
(http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2010:083:SOM:EN:HTML).

 Further changes?

Once again the EU is facing an existential crisis. Changes to the Treaties have been
mentioned, once again, partly due to the Eurozone crisis and the perceived need to
strengthen ‘the Eurozone’s architecture’.

The implications of the current crisis are beyond the remit of this module, but they raise
existential questions about the EU as a political entity, about the appropriate balance of
powers between the EU and the Member States, and about the democratic accountability and
effectiveness of European level decision-making.

There has been a temptation for European leaders to seek to make progress outside of the
formal architecture of the EU (most famously, this occurred in December 2011 with the Treaty
on Stability, Coordination and Governance, in relation to which the then British Prime Minister
David Cameron wielded his veto, and which was eventually signed by all EU Member States
except the UK and the Czech Republic: http://europa.eu/rapid/press-release_DOC-12-
2_en.htm).

INSTITUTIONAL STRUCTURE
A. The European Council (Art 15 TEU and Art 235-236 TFEU)

While it has existed since 1974, it was only given legal recognition in 1986 by the Single
European Act (SEA), and only formally named among the European Union’s institutions at
Lisbon (see Article 13(1) TEU).

Its governing provision (Art 15 TEU) states that the European Council will provide the EU with
the necessary impetus for its development and will define its general political
directions and priorities.

It consists of the Heads of State or of Government of the Member States, together with its
President, and the President of the Commission. Decisions are normally taken by consensus
(see Article 15(4) TEU and Article 235 and 236 TFEU).

13
It meets twice every six months in summit conferences, and adopts mainly general political
decisions which are then legally implemented at meetings of the (normal) Council of
Ministers. The importance of European Council meetings has increased significantly over
recent years (see some of the key dates in lecture 1).

One of the most contentious amendments made in the Treaty of Lisbon is the new Art 15(5)-
(6) TEU which establishes a permanent European Council President, elected by members
of the European Council, not holding national office, serving for a (renewable) two and a half
year term, and responsible for chairing the European Council and driving forward its work.
The President also represents the Union in the area of the common foreign and security
policy.

B. The Council of Ministers (Art 16 TEU and Art 237-243 TFEU)

B.1. Nature and composition

The Council is the body representing and expressing the interests of the Member States. It
consists of one representative of each of the Member States drawn from the Government of
those states (i.e. it consists of Ministers).

The Government representative attending the Council varies, depending on the

subject-matter being discussed, hence Agricultural Council, Transport Council etc.

Art 16(6) TEU specifically defines the configuration of a Foreign affairs Council, presided over
by the High Representative of the Union for Foreign Affairs and Security Policy (see below),
and a General affairs Council which ensures consistency between the work of the various
Council configurations.

The Council meets when convened by its President or at the request of one of its members or
of the Commission (Art 237 TFEU). The Presidency of the Council configurations, other than
that of Foreign Affairs, is held by Member State representatives in the Council on the basis of
equal rotation, in accordance with the conditions established (by QMV) by the European
Council (Art 16(9) TEU and Art 236 TFEU).

The preliminary work of the Council is done by the Committee of Permanent Representatives,
known as COREPER (Art 16(7) TEU and Art 240 TFEU).

The Treaty of Lisbon introduced a stronger commitment to openness and transparency in

relation to Council meetings (Art 16(8) TEU).

B.2. Powers and Functions

The Council takes the final decision on most EU legislation (under the ‘ordinary legislative
procedure’, it does so together with the European Parliament); ie it makes law.

It exercises legislative and budgetary functions; and carries out policy-making and
coordinating functions as laid down in the Treaties (Article 16(1) TEU).

B.3. Voting

There are currently three systems of voting in the Council: simple majority, qualified majority
and unanimity. It is important to be aware of the circumstances in which each system applies.
Each Treaty provision (or ‘legal basis’) lays down the voting rules by which measures
are adopted.

i) Simple majority is rarely provided for in the Treaties.

14
 ii) Qualified majority voting (QMV) is the norm, ‘except where the Treaties provide
otherwise’ (Art 16(3) TEU).

The Treaty of Lisbon makes significant changes to the QMV system (these will come into
effect only in 2014 or 2017; see Articles 16(4) and (5) TEU).

The old (still existing) system, was based on weighted voting, with the largest states
(Germany, the UK, France and Italy) having 29 votes, down to Malta with 3. A blocking
minority was 91 (of 344) votes; that is about 26.5% of the votes. The relevant provisions
also state that a member of the Council may request verification that the Member States
constituting a qualified majority represent at least 62% of the total population of the Union.

The new system, which will operate from November 2014, defines a qualified majority by
reference to the ‘double majority’ principle, based upon (a) number of Member States,
and (b) population. Art 16(4) TEU provides that a qualified majority requires ‘at least 55%
of the members of the Council, comprising at least fifteen of them and representing
Member States comprising at least 65% of the population of the Union’. A blocking
minority must include at least four Member States, preventing three or fewer of the larger
Member States from being able to block a proposal. Art 238 TFEU introduces some
further complexity. A protocol, annexed to the TEU and TFEU, contains transitional
arrangements between 1 November 2014 and 31 March 2017, during which a member of
the Council may request that acts adopted by QMV, be adopted under the ‘old’ QMV
system.

QMV was rarely used in the pre SEA days. The main reason for this was the Luxembourg
Accords (1966) or the (political) ‘agreement to disagree’. This led the Community to a
prolonged period of legislative stagnation. The Luxembourg Accords have gradually faded
away after the introduction of the SEA and the TEU.

Despite the increasing prevalence of QMV, it is still relatively rare for votes to be taken.
Once it is clear that a measure commands sufficient support, it is adopted.

iii) A number of measures of constitutional significance and/or political sensitivity still

require unanimity, including taxation, social security, foreign policy and common security
policy.

C. The Commission (Art 17 TEU and Arts 244-250 TFEU)

C.1. Nature and composition

i) The Commission is to ‘promote the general interest of the Union and take appropriate
initiatives to that end’ (Art 17(1) TEU).

ii) The rules governing the Commission’s composition are rather complex and have caused
controversy. The Commission currently consists of one national of each Member State (Art
17(4) TEU). Article 17(5) TEU clearly envisages that this number will be reduced, but in order
to placate Ireland’s concerns and pave the way for a second Irish referendum on the Treaty of
Lisbon, the European Council has agreed that it will make the necessary decision to revert to
the current composition (i.e. to continue to allow for one national from each Member State).

iii) The procedure for the appointment of the Commission has been altered by the Treaty of
Lisbon. Under the new appointment procedure, the European Council (acting by QMV) will
propose to the European Parliament (EP) a candidate for President of the Commission,
‘taking into account the elections to the EP and after having held the appropriate
consultations’. The EP then elects the President by majority of its component members. If
there is no majority, the European Council proposes a new candidate within one month and
the EP election procedure is repeated. The President is then involved in the appointment of
the individual Commissioners: ‘The Council, by common accord with the President-elect, shall
adopt the list of the other persons whom it proposes for appointment as members of the
Commission’ (Art 17(7) TEU). The Commission is then subject ‘as a body’ to a vote of

15
consent by the EP. On the basis of this consent, the Commission is appointed by the
European Council, acting by qualified majority.

It is important to note that Commission members are in no sense representatives of their

countries and are required to be above national loyalties. They shall be chosen ‘on the ground
of their general competence and European commitment from persons whose independence is
beyond doubt’ (Art 17(3) TEU).

Each Commissioner is given responsibility for certain affairs. These responsibilities are called
‘portfolios’. The President proposes the allocation of portfolios to individual Commissioners
but the decision is a collective one. Each Commissioner has a personal office called ‘Cabinet’
staffed by officials appointed personally by him who are not necessarily permanent
Commission staff. The Chef de Cabinet is the Commissioner’s right-hand man.

The President chairs the Commission, attends the G8 meetings, presents the Commission’s
annual legislative programme to the EP, delivers a state of the Union address to the EP,
participates in the European Council and can be responsible for promoting major ideas that
are later adopted by the Council or the European Council. Following the 1967 Merger Treaty,
an informal agreement operated whereby a President was appointed for two or, at most, four
years and the nationality of the President was rotated among Member States. The pattern
was broken by Jacques Delors who served as President for ten years (1985-1995).

The Commission is currently divided into departments called Directorates-General (DGs),

each headed by a Director-General who is responsible to the Commissioner holding the
portfolio for the matters dealt by his or her Directorate-General. DGs are subdivided into
Directorates (each headed by a Director) and these in turn are made up of Divisions (each
under a Head of Division).

Individual members of the Commission can currently be dismissed (‘compulsorily retired’)

during their term of office by the Court of Justice on an application by the Council or
Commission (Art 245 and 247 TFEU). Individual members may also (and this is a Lisbon
innovation) be dismissed ‘if the President so requests’ (Art 17(6) TEU).

The whole Commission may be dismissed by the EP if a motion of censure is carried (Article
17(8) TEU). On 15 March 1999, following the publication of an Independent Experts Report
on Allegations regarding Fraud, Mismanagement and Nepotism in the European
Communities, for the first time ever, the Commission was forced to resign en bloc.

C.2. Powers and Functions

The Commission’s powers are summarised in Article 17(1) TEU.

The Commission’s role is threefold: legislative, executive and as guardian of Union

law.

i) In its legislative capacity the Commission:

 has the almost absolute right to initiate the legislative process by making a proposal
to the Council (see Article 17(2) TEU);
 actively participates in Council proceedings leading to the adoption of legislative
measures (when it has submitted a proposal);
 passes implementing legislative measures following delegation of powers from the
Council;
 has, in very few instances, the power to pass its own legislative measures under certain
provisions of the Treaty (e.g. Article 106(3) TFEU in which the Commission has the power
to address directives and decisions to Member States in relation to application of
competition policy provisions to public undertakings).

ii) In its executive capacity the Commission has powers to:

16
 adopt measures in the field of competition policy (e.g. Arts. 101-109 TFEU);
 administer the structural funds (European Social Fund, European Agricultural and
Guarantee Fund, Financial Instrument for Fisheries Guidance and European Regional
Development Fund);
 spend the Union’s budget (but see case C-106/96, UK v Commission (Re the Poverty 4
programme) [1998] ECR I-2729);
 represent the EU vis-à-vis other groups of states and trading organisations (see e.g. Arts
207(3) and 218 TFEU)

iii) Finally, in its capacity as guardian of Union law, the Commission may initiate infringement
proceedings against a Member State that fails to fulfil its obligations under the Treaty (Art
258 TFEU) or to comply fully with a judgment of the Court of Justice (Art 260 TFEU); see
further tutorial 6.

The Treaty of Lisbon reinforces the principle of transparency, providing for the right of EU
citizens to access documents of the EU institutions, including the Commission (Art 15(3)
TFEU).

D. The European Parliament (EP) (Article 14 TEU and Articles 223-234 TFEU)

D.1 Composition and Organization

The EP is intended to represent the peoples of the EU. It began life as the Common
Assembly of the ECSC and became the Assembly for all three Communities after the
adoption of the Merger Treaty. Officially (and legally) it acquired the name ‘European
Parliament’ on 1 July 1987 when the SEA entered into force. As of 1976 its members (MEPs)
have been elected by direct elections for a period of 5 years. The first elections were held in
1979.

Some variant of proportional representation is used throughout the Union. The Treaty of
Lisbon envisages (see Article 223 TFEU) that the EP will ‘draw up a proposal to lay down the
provisions necessary for the election of its Members by direct universal suffrage in
accordance with a uniform procedure in all Member States or in accordance with principles
common to all Member States’.

For the current EP parliamentary term (2014-20), seats were allocated as follows:

Germany 96
United Kingdom 73
France 74
Italy 73
Spain 54
Poland 51
Romania 32
Netherlands 26
Greece 21
Czech Republic 21
Belgium 21
Hungary 21
Portugal 21
Sweden 20
Austria 18
Bulgaria 17
Slovakia 13
Denmark 13
Finland 13
Ireland 11
Lithuania 11
Latvia 8

17
Slovenia 8
Estonia 6
Cyprus 6
Luxembourg 6
Malta 6
Total 751

Note that the number of MEPs allocated to each Member State is not in proportion to its
population, a fact which has been subject to criticism: Germany has fewer representatives per
head of population, while Luxembourg, for example, has a disproportionately high number of
representatives given its size.

The MEPs (who are elected for a five year term) sit in European political parties, not in
national delegations. The President of the EP is elected in a secret ballot by an absolute
majority of the votes cast.

Plenary sessions are held in Strasbourg and Brussels, the Secretariat is in Luxembourg and
committee meetings are held in Brussels.

NOTE: The two seats of the Parliament have been controversial. So much so, that
they have given rise to a legal dispute leading to a judgment by the European Court of Justice
sanctioning the current arrangement: Joined Cases C-237/11 and C-238/11 France v
Parliament ECLI:EU:C:2012:796.

The EP has a large number of standing committees dealing with a variety of subject matters
such as foreign affairs, security and defence, agriculture and rural development, economic
and monetary affairs and industrial policy, external economic relations, legal affairs and
citizen’s rights, civil liberties and internal affairs etc.

MEPs are paid the same salaries as their national counterparts and pay income tax to their
home country. However, they enjoy substantial (untaxed) allowances which often exceed their
salaries.

 Following the TL, the formula establishing the composition of the European Parliament is
left to a unanimous decision of the European Council, with constraints established in
Article 14(2) TEU (maximum number 751; ‘degressively proportional’ system, i.e. MEPs
from more populated Member States represent more people than those from less
populated Member States; anywhere between 96 and 6 seats per Member State).

D.2. Powers and Functions

Each time the Treaties have been amended, further powers have come the way of the EP.
Despite this, it remains weaker than the Council and Commission. It has the following powers:

**1. Power to participate in the legislative process. The procedure is determined by the
legal base on which EU action is proposed.

The most common procedure has been renamed by the Treaty of Lisbon. It is the ‘ordinary
legislative procedure’ and involves the joint adoption by the European Parliament and the
Council of a regulation, directive or decision on a proposal from the Commission (Article 289
TFEU). The ordinary legislative procedure is spelled out, in all its complexity, in Article 294
TFEU. Essentially, the Council and EP are co-legislators, with both institutions having a right
of veto. There is also provision for a ‘Conciliation Committee’, composed of members of both
the Council and EP, to try to reach agreement on a joint text.

Other legislative procedures are deemed ‘special’ (see Article 289 TFEU). They may be
special in a range of ways. There are some areas of the Treaty in which the EP has the right
only to be consulted (here, the Council is obliged to do everything in its power to obtain the
opinion of the EP; BUT crucially does not have to follow it - see Case 138/79 Roquette Freres
v Council [1980] ECR 3333 and Case C-65/93 European Parliament v Council (3rd GSP

18
case) [1995] ECR I-643). There are other areas in which the Council is to act ‘after receiving
the consent of the EP’ (in this case, save as otherwise provided in the Treaties, the EP acts
by a majority of votes cast). Here the EP, as under the ordinary legislative procedure, has a
right of veto. This procedure applies, for example, to Article 49 TEU (on the admission of new
Member States to the EU; here the EP acts ‘by a majority of its component members’), and to
Article 352 TFEU (to be discussed in lecture 3 and tutorial 1).

2. Power to initiate actions for annulment (Art 263(1) TFEU) against the Council and the
Commission.

3. Power to censure the Commission, if the relevant motion is passed by a two-thirds

majority of the votes cast representing a majority of MEPs (Art 234 TFEU).

4. The EP (together with the Council) is responsible for establishing the Union’s annual
budget (see Articles 310-325 TFEU, and in particular Article 314 TFEU).

5. Power to request that the Commission submits ‘any appropriate proposal’ on matters on
which it considers that a Union act is required for the purpose of implementing the Treaties
(Art 225 TFEU). This is a provision without teeth, since no sanction is provided in case that
the Commission declines (though the Commission must inform the EP of the reasons).

6. Power to set up (temporary) committees of inquiry to investigate alleged contraventions or

maladministration in the implementation of Union law (Art 226 TFEU). The report of such a
committee forced the resignation of the Commission in March 1999.

7. Power to elect a European Ombudsman who can receive complaints from any citizen of the
Union concerning maladministration in the activities of any Union institution (except the ECJ);
Art 228 TFEU.

E. The High Representative of the Union for Foreign Affairs and Security Policy

This position was created by the Treaty of Lisbon; see Art 18 TEU. The High Representative
(a) conducts the EU common foreign and security policy, (b) chairs the Foreign Affairs
Council, (c) serves as one of the Vice-Presidents of the Commission; and (d) being part of
both the Council and the Commission, ensures the consistency of the EU external action,
contributing to policy development. The aim is to increase the coherence of the EU’s voice on
the world stage.

F. The Economic and Social Committee (ECOSOC) (Arts. 301-304 TFEU)

The ECOSOC is an advisory body intended to represent various sectional interests,

appointed by the Council for a (renewable) four-year term on the basis of national allocation.
The ECOSOC has, under certain legal bases (e.g. in the social policy field), the right to be
consulted by the Council or the Commission.

G. The Committee of the Regions (Arts. 305-307 TFEU)

The Committee of the Regions is another advisory body representing regional and local
interests, which has the right to be consulted under certain (e.g. social) legal bases.

Further Reading:

Ashiagbor, Countouris and Lianos (eds), The European Union After the Treaty of Lisbon
(Cambridge: CUP, 2012)
Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (OUP, 2010)
Biondi, Eeckhout and Ripley (eds), EU Law After Lisbon (Oxford: OUP, 2012)
Craig, ‘The Treaty of Lisbon, Process, Architecture and Substance’ (2008) 33 ELRev
137.
De Búrca, ‘The EU on the Road from the Constitutional Treaty to the Lisbon Treaty’, Jean
Monnet working paper 03/08,

19
 http://www.jeanmonnetprogram.org/papers/papers08.html
Nic Shuibhne, N., ‘Double Take’, (2007) 32 ELRev 605.
Dougan, M., ‘The Treaty of Lisbon 2007: Winning Minds, not Hearts’ (2008) 45 CMLRev 617
– very good, but much too detailed for your purposes.
Editorial Comments, ‘The post-Lisbon institutional package: Do old habits die hard?’ (2010)
47 CMLRev 597.
Editorial Comments, ‘An ever mighty European Council – some recent institutional
developments’ 46 CMLRev (2009) 1383
De Waele and Broeksteeg, 49 CMLRev (2012) 1039 'The semi-permanent European
Council Presidency: Some reflections on the law and early practice'
Athanassiou, P., ‘Of Past Measures and Future Plans for Europe’s Exit from the Sovereign
Debt Crisis: What is Legally Possible (and What is Not)’, (2011) 36 ELRev 558
'Editorial, 'Some thoughts concerning the Draft Treaty on a Reinforced Economic Union',
(2012) 49 CMLRev 1
Koutrakos, P., 'Is there such a thing as too much law?', (2012) 37 ELRev 1.
Craig, ‘The Stability, Coordination and Governance Treaty: Principle, Politics and
Pragmatism’ (2012) 37 ELRev 231

20
Lecture 2 Law-making

MAIN READING

Craig and de Burca, Chapters 3-5.

POLICIES
A. Internal policies of the European Union

Articles 26 et seq TFEU

1. Core Policies:

Creating the Common/Internal Market; removing barriers to free movement

Regulating the internal market

Competition (anti-trust) law (Articles 101-109 TFEU)

2. Peripheral Policies:

Social, Environmental… Policies (see e.g. Articles 151-161 TFEU and 191-193 EC)

3. Common European Policies

Agriculture (Articles 38-44 TFEU), Fisheries, Transport

4. Coordinating the Policies of the MS

Economic, Employment and Social Policies (Articles 121, 148 and 153 TFEU).

5. Supporting, coordinating or supplementing the actions of the MS

Human health; industry; culture; tourism; education, vocational training and sport; civil
protection; and administrative cooperation.

5. New forms of governance in the EU

See Lisbon European Council, Presidency Conclusions, March 2000:

‘The Union has today set itself a new strategic goal for the next decade: to become the most competitive
and dynamic knowledge-based economy in the world, capable of sustainable economic growth with
more and better jobs and greater social cohesion.’

‘Implementation of the strategic goal will be facilitated by applying a new open method of coordination
as the means of spreading best practice and achieving greater convergence towards the main EU
goals. This method … is designed to help Member States to progressively develop their own policies .. :

B. The Union’s External Action and the Common Foreign and Security Policy

Articles 21-46 TEU

The EU’s external action covers: Common Commercial Policy, development cooperation,
economic, financial and technical cooperation with third countries, humanitarian aid,
restrictive measures, international agreements, the Union’s relations with international

21
organisations and third countries and Union delegations, as well as the Common Foreign and
Security Policy.

Note that the common foreign and security policy remains ‘subject to specific rules and
procedures’ (Art. 24(1) TEU), essentially in order to protect the interests of the Member
States. Unanimity prevails, the adoption of legislative acts is prohibited, and the role of the
Court is limited.

C. The Area of Freedom, Security and Justice

Title V TFEU covers immigration (Article 77 TFEU), asylum (Article 78 TFEU), judicial
cooperation in civil (Article 81 TFEU) and criminal matters (Articles 82-6 TFEU), and police
cooperation (Articles 87-9 TFEU).

The UK and Ireland have retained an opt-out from these measures – Protocol 21.

For example, measures on judicial cooperation in criminal matters may be adopted by QMV,
including ‘minimum rules concerning the definition of criminal offences and sanctions in the
areas of particularly serious crimes’ (Art 83(1) TFEU – but note the ‘emergency brake’
provision in Art 83(3) TFEU, and the restriction of the Court’s power in this area, in Art 276
TFEU)

 The significance of the notion of competence

Article 3(6) TEU

The Union shall pursue its objectives by appropriate means commensurate with the
competences which are conferred upon it in the Treaties.

Article 4 TEU
1. In accordance with Article 5, competences not conferred upon the Union in the
Treaties remain with the Member States.

2. The Union shall respect the equality of Member States before the Treaties as well as
their national identities, inherent in their fundamental structures, political and constitutional,
inclusive of regional and local self-government. It shall respect their essential State functions,
including ensuring the territorial integrity of the State, maintaining law and order and
safeguarding national security. In particular, national security remains the sole responsibility
of each Member State.

3. Pursuant to the principle of sincere cooperation, the Union and the Member States
shall, in full mutual respect, assist each other in carrying out tasks which flow from the
Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of the Treaties or resulting from the acts of the
institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any
measure which could jeopardise the attainment of the Union's objectives.

Article 5 TEU (ex Article 5 EC)

1. The limits of Union competences are governed by the principle of conferral. The use
of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the objectives
set out therein. Competences not conferred upon the Union in the Treaties remain with the
Member States.

22
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive
competence, the Union shall act only if and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States, either at central level or at regional and
local level, but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the
Protocol on the application of the principles of subsidiarity and proportionality. National
Parliaments ensure compliance with the principle of subsidiarity in accordance with the
procedure set out in that Protocol.

4. Under the principle of proportionality, the content and form of Union action shall not
exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the
Protocol on the application of the principles of subsidiarity and proportionality.

 Categories of competence
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only
the Union may legislate and adopt legally binding acts, the Member States being able to do
so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States
in a specific area, the Union and the Member States may legislate and adopt legally binding
acts in that area. The Member States shall exercise their competence to the extent that the
Union has not exercised its competence. The Member States shall again exercise their
competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within
arrangements as determined by this Treaty, which the Union shall have competence to
provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on
European Union, to define and implement a common foreign and security policy, including the
progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall
have competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties
relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be
determined by the provisions of the Treaties relating to each area.

Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal
market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or in so far as its conclusion may
affect common rules or alter their scope.

23
 Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer
on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2. Shared competence between the Union and the Member States applies in the
following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being prevented
from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise of
that competence shall not result in Member States being prevented from exercising theirs.

Article 5 TFEU
1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social
policies.

Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.

 Subsidiarity

- Protocol on the application of the principles of subsidiarity and proportionality

THE HIGH CONTRACTING PARTIES,

WISHING to ensure that decisions are taken as closely as possible to the citizens of the
Union,

24
RESOLVED to establish the conditions for the application of the principles of subsidiarity and
proportionality, as laid down in Article 3b of the Treaty on European Union, and to establish a
system for monitoring the application of those principles,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on
European Union and to the Treaty on the Functioning of the European Union:

Article 1
Each institution shall ensure constant respect for the principles of subsidiarity and
proportionality, as laid down in Article 3b of the Treaty on European Union.

Article 2
Before proposing legislative acts, the Commission shall consult widely. Such consultations
shall, where appropriate, take into account the regional and local dimension of the action
envisaged. In cases of exceptional urgency, the Commission shall not conduct such
consultations. It shall give reasons for its decision in its proposal.

Article 4
The Commission shall forward its draft legislative acts and its amended drafts to national
Parliaments at the same time as to the Union legislator.

Article 5
Draft legislative acts shall be justified with regard to the principles of subsidiarity and
proportionality. Any draft legislative act should contain a detailed statement making it possible
to appraise compliance with the principles of subsidiarity and proportionality. This statement
should contain some assessment of the proposal's financial impact and, in the case of a
directive, of its implications for the rules to be put in place by Member States, including, where
necessary, the regional legislation. The reasons for concluding that a Union objective can be
better achieved at Union level shall be substantiated by qualitative and, wherever possible,
quantitative indicators. Draft legislative acts shall take account of the need for any burden,
whether financial or administrative, falling upon the Union, national governments, regional or
local authorities, economic operators and citizens, to be minimised and commensurate with
the objective to be achieved.

Article 6
Any national Parliament or any chamber of a national Parliament may, within eight weeks
from the date of transmission of a draft legislative act, in the official languages of the Union,
send to the Presidents of the European Parliament, the Council and the Commission a
reasoned opinion stating why it considers that the draft in question does not comply with the
principle of subsidiarity. It will be for each national Parliament or each chamber of a national
Parliament to consult, where appropriate, regional parliaments with legislative powers.

Article 7
1. The European Parliament, the Council and the Commission, and, where appropriate, the
group of Member States, the Court of Justice, the European Central Bank or the European
Investment Bank, if the draft legislative act originates from them, shall take account of the
reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.

Each national Parliament shall have two votes, shared out on the basis of the national
Parliamentary system. In the case of a bicameral Parliamentary system, each of the two
chambers shall have one vote.

2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of
subsidiarity represent at least one third of all the votes allocated to the national Parliaments in
accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This
threshold shall be a quarter in the case of a draft legislative act submitted on the basis of
Article 61 I of the Treaty on the Functioning of the European Union on the area of freedom,
security and justice.

After such review, the Commission or, where appropriate, the group of Member States, the
European Parliament, the Court of Justice, the European Central Bank or the European

25
Investment Bank, if the draft legislative act originates from them, may decide to maintain,
amend or withdraw the draft. Reasons must be given for this decision.

3. Furthermore, under the ordinary legislative procedure, where reasoned opinions on the
non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at
least a simple majority of the votes allocated to the national Parliaments in accordance with
the second subparagraph of paragraph 1, the proposal must be reviewed. After such review,
the Commission may decide to maintain, amend or withdraw the proposal.

If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to
justify why it considers that the proposal complies with the principle of subsidiarity. This
reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to
be submitted to the Union legislator, for consideration in the procedure:
(a) before concluding the first reading, the legislator (the European Parliament and the
Council) shall consider whether the legislative proposal is compatible with the principle of
subsidiarity, taking particular account of the reasons expressed and shared by the majority of
national Parliaments as well as the reasoned opinion of the Commission;

(b) if, by a majority of 55 % of the members of the Council or a majority of the votes cast in
the European Parliament, the legislator is of the opinion that the proposal is not compatible
with the principle of subsidiarity, the legislative proposal shall not be given further
consideration.

 How limited is the Union’s limited competence?

- Article 5 TEU

Article 352 TFEU (ex Article 308 EC)

1. If action by the Union should prove necessary, within the framework of the policies
defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties
have not provided the necessary powers, the Council, acting unanimously on a proposal from
the Commission and after obtaining the consent of the European Parliament, shall adopt the
appropriate measures. Where the measures in question are adopted by the Council in
accordance with a special legislative procedure, it shall also act unanimously on a proposal
from the Commission and after obtaining the consent of the European Parliament.

2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3)
of the Treaty on European Union, the Commission shall draw national Parliaments' attention
to proposals based on this Article.

3. Measures based on this Article shall not entail harmonisation of Member States' laws
or regulations in cases where the Treaties exclude such harmonisation.

4. This Article cannot serve as a basis for attaining objectives pertaining to the common
foreign and security policy and any acts adopted pursuant to this Article shall respect the
limits set out in Article 40, second paragraph, of the Treaty on European Union.

Opinion 2/94 (re: Accession by the EC to the ECHR) [1996] ECR I-1759,

29. [ex Article 308 EC] is designed to fill the gap where no specific provisions of the Treaty
confer on the Community institutions express or implied powers to act, if such powers appear
none the less to be necessary to enable the Community to carry out its functions with a view
to attaining one of its objectives laid down by the Treaty.

30. That provision, being an integral part of an institutional system based on the principle of
conferred powers, cannot serve as a basis for widening the scope of Community powers
beyond the general framework created by the provisions of the Treaty as a whole and, in
particular, by those that define the tasks and the activities of the Community. On any view,
[ex] Article [308] cannot be used as a basis for the adoption of provisions whose effect would,

26
in substance, be to amend the Treaty without following the procedure which it provides for
that purpose.

- Article 114 (ex Article 95 TEC)

1. Save where otherwise provided in the Treaties, the following provisions shall apply for
the achievement of the objectives set out in Article 26. The European Parliament and the
Council shall, acting in accordance with the ordinary legislative procedure and after
consulting the Economic and Social Committee, adopt the measures for the
approximation of the provisions laid down by law, regulation or administrative action in
Member States which have as their object the establishment and functioning of the
internal market.

2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement
of persons nor to those relating to the rights and interests of employed persons.

3. The Commission, in its proposals envisaged in paragraph 1 concerning health, safety,

environmental protection and consumer protection, will take as a base a high level of
protection, taking account in particular of any new development based on scientific facts.
Within their respective powers, the European Parliament and the Council will also seek to
achieve this objective.

4. If, after the adoption of a harmonisation measure by the European Parliament and the
Council, by the Council or by the Commission, a Member State deems it necessary to
maintain national provisions on grounds of major needs referred to in Article 36, or
relating to the protection of the environment or the working environment, it shall notify the
Commission of these provisions as well as the grounds for maintaining them.

5. Moreover, without prejudice to paragraph 4, if, after the adoption of a harmonisation

measure by the European Parliament and the Council, by the Council or by the
Commission, a Member State deems it necessary to introduce national provisions based
on new scientific evidence relating to the protection of the environment or the working
environment on grounds of a problem specific to that Member State arising after the
adoption of the harmonisation measure, it shall notify the Commission of the envisaged
provisions as well as the grounds for introducing them.

6. The Commission shall, within six months of the notifications as referred to in

paragraphs 4 and 5, approve or reject the national provisions involved after having
verified whether or not they are a means of arbitrary discrimination or a disguised
restriction on trade between Member States and whether or not they shall constitute an
obstacle to the functioning of the internal market.

In the absence of a decision by the Commission within this period the national provisions
referred to in paragraphs 4 and 5 shall be deemed to have been approved.

When justified by the complexity of the matter and in the absence of danger for human
health, the Commission may notify the Member State concerned that the period referred
to in this paragraph may be extended for a further period of up to six months.

7. When, pursuant to paragraph 6, a Member State is authorised to maintain or introduce

national provisions derogating from a harmonisation measure, the Commission shall
immediately examine whether to propose an adaptation to that measure.

8. When a Member State raises a specific problem on public health in a field which has
been the subject of prior harmonisation measures, it shall bring it to the attention of the
Commission which shall immediately examine whether to propose appropriate measures
to the Council.

9. By way of derogation from the procedure laid down in Articles 258 and 259, the
Commission and any Member State may bring the matter directly before the Court of

27
 Justice of the European Union if it considers that another Member State is making
improper use of the powers provided for in this Article.

10. The harmonisation measures referred to above shall, in appropriate cases, include a
safeguard clause authorising the Member States to take, for one or more of the non-
economic reasons referred to in Article 36, provisional measures subject to a Union
control procedure.

- Case C-376/98 Germany v European Parliament and Council [2000] ECR I-8419

83. … the measures referred to in Article [114] of the Treaty are intended to improve the
conditions for the establishment and functioning of the internal market. To construe that article
as meaning that it vests in the Community legislature a general power to regulate the internal
market would not only be contrary to the express wording of the provisions cited above but
would also be incompatible with the principle embodied in Article … 5 … that the powers of
the Community are limited to those specifically conferred on it.

84. Moreover, a measure adopted on the basis of [ex] Article [95] of the Treaty must
genuinely have as its object the improvement of the conditions for the establishment and
functioning of the internal market. If a mere finding of disparities between national rules and of
the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of
competition liable to result there from were sufficient to justify the choice of Article [95] as a
legal basis, judicial review of compliance with the proper legal basis might be rendered
nugatory. The Court would then be prevented from discharging the function entrusted to it by
[ex] Article … 220 EC of ensuring that the law is observed in the interpretation and application
of the Treaty.

 The legislative process and the importance of legal basis

Article 288
(ex Article 249 EC)
To exercise the Union's competences, the institutions shall adopt regulations, directives,
decisions, recommendations and opinions.

A regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States.

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.

A decision shall be binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.

 The choice of legal basis

Opinion 2/00 EU:C:2001:664:

5. The choice of the appropriate legal basis has constitutional significance. Since the
Community has conferred powers only, it must tie the Protocol to a Treaty provision which
empowers it to approve such a measure. To proceed on an incorrect legal basis is therefore
liable to invalidate the act concluding the agreement and so vitiate the Community's consent
to be bound by the agreement it has signed….

Case 300/89 Commission v Council (Titanium Dioxide case) [1991] ECR 1-2867.

10 It must first be observed that in the context of the organization of the powers of the
Community the choice of the legal basis for a measure may not depend simply on an
institution' s conviction as to the objective pursued but must be based on objective factors
which are amenable to judicial review (see the judgment in Case 45/86 Commission v Council

28
[1987] ECR 1493, paragraph 11). Those factors include in particular the aim and content of
the measure.

 Decision-making

Article 10 TEU
1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State or
Government and in the Council by their governments, themselves democratically accountable
either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions
shall be taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political awareness and
to expressing the will of citizens of the Union.

 Legislative procedures

Pre-Lisbon: consultation, cooperation, co-decision, assent

Post-Lisbon:

- Ordinary legislative procedure (what used to be ‘co-decision’) – Art. 294 TFEU

1. Where reference is made in the Treaties to the ordinary legislative procedure for the adoption of an
act, the following procedure shall apply.

2. The Commission shall submit a proposal to the European Parliament and the Council.

First reading
3. The European Parliament shall adopt its position at first reading and communicate it to the Council.

4. If the Council approves the European Parliament's position, the act concerned shall be adopted in the
wording which corresponds to the position of the European Parliament.

5. If the Council does not approve the European Parliament's position, it shall adopt its position at first
reading and communicate it to the European Parliament.

6. The Council shall inform the European Parliament fully of the reasons which led it to adopt it position
at first reading. The Commission shall inform the European Parliament fully of its position.

Second reading
7. If, within three months of such communication, the European Parliament:
(a) approves the Council's position at first reading or has not taken a decision, the act concerned shall
be deemed to have been adopted in the wording which corresponds to the position of the Council;
(b) rejects, by a majority of its component members, the Council's position at first reading, the proposed
act shall be deemed not to have been adopted;
(c) proposes, by a majority of its component members, amendments to the Council's position at first
reading, the text thus amended shall be forwarded to the Council and to the Commission, which shall
deliver an opinion on those amendments.

8. If, within three months of receiving the European Parliament's amendments, the Council, acting by a
qualified majority:
(a) approves all those amendments, the act in question shall be deemed to have been adopted;
(b) does not approve all the amendments, the President of the Council, in agreement with the President
of the European Parliament, shall within six weeks convene a meeting of the Conciliation Committee.

9. The Council shall act unanimously on the amendments on which the Commission has delivered a
negative opinion.

29
Conciliation
10. The Conciliation Committee, which shall be composed of the members of the Council or their
representatives and an equal number of members representing the European Parliament, shall have the
task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their
representatives and by a majority of the members representing the European Parliament within six
weeks of its being convened, on the basis of the positions of the European Parliament and the Council
at second reading.

11. The Commission shall take part in the Conciliation Committee's proceedings and shall take all
necessary initiatives with a view to reconciling the positions of the European Parliament and the
Council.

12. If, within six weeks of its being convened, the Conciliation Committee does not approve the joint
text, the proposed act shall be deemed not to have been adopted.

Third reading
13. If, within that period, the Conciliation Committee approves a joint text, the European
Parliament, acting by a majority of the votes cast, and the Council, acting by a qualified majority, shall
each have a period of six weeks from that approval in which to adopt the act in question in accordance
with the joint text. If they fail to do so, the proposed act shall be deemed not to have been adopted.

14. The periods of three months and six weeks referred to in this Article shall be extended by a
maximum of one month and two weeks respectively at the initiative of the European Parliament or the
Council.

Special provisions
15. Where, in the cases provided for in the Treaties, a legislative act is submitted to the ordinary
legislative procedure on the initiative of a group of Member States, on a recommendation by the
European Central Bank, or at the request of the Court of Justice, paragraph 2, the second sentence of
paragraph 6, and paragraph 9 shall not apply.

In such cases, the European Parliament and the Council shall communicate the proposed act to the
Commission with their positions at first and second readings. The European Parliament or the Council
may request the opinion of the Commission throughout the procedure, which the Commission may also
deliver on its own initiative. It may also, if it deems it necessary, take part in the Conciliation Committee
in accordance with paragraph 11.

- Special legislative procedures: this term covers all the other decision-making procedures

 Voting in the Council

Article 238

1. Where it is required to act by a simple majority, the Council shall act by a majority of its
component members.

2. By way of derogation from Article 16(4) of the Treaty on European Union, as from 1
November 2014 and subject to the provisions laid down in the Protocol on transitional
provisions, where the Council does not act on a proposal from the Commission or from the
High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority
shall be defined as at least 72 % of the members of the Council, representing Member States
comprising at least 65 % of the population of the Union.

3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on
transitional provisions, in cases where, under the Treaties, not all the members of the Council
participate in voting, a qualified majority shall be defined as follows:

(a) A qualified majority shall be defined as at least 55 % of the members of the Council
representing the participating Member States, comprising at least 65 % of the population of
these States.

A blocking minority must include at least the minimum number of Council members
representing more than 35 % of the population of the participating Member States, plus one
member, failing which the qualified majority shall be deemed attained;

30
(b) By way of derogation from point (a), where the Council does not act on a proposal from
the Commission or from the High Representative of the Union for Foreign Affairs and Security
Policy, the qualified majority shall be defined as at least 72 % of the members of the Council
representing the participating Member States, comprising at least 65 % of the population of
these States.

4. Abstentions by Members present in person or represented shall not prevent the adoption
by the Council of acts which require unanimity.

 The Luxembourg accords (1966)

 The Union’s ‘democratic deficit’

 Citizen’s initiative

Article 11(4) TEU:

Not less than one million citizens who are nationals of a significant number of
Member States may take the initiative of inviting the European Commission, within
the framework of its powers, to submit any appropriate proposal on matters where
citizens consider that a legal act of the Union is required for the purpose of
implementing the Treaties.

The procedures and conditions required for such a citizens' initiative shall be
determined in accordance with the first paragraph of Article 24 of the Treaty on the
Functioning of the European Union.

Case T-754/14 Michael Efler and Others v Commission (re: TTIP and CETA) EU:T:2017:323:

37. … the principle of democracy, which, as it is stated in particular in the preamble to

the EU Treaty, in Article 2 TEU and in the preamble to the Charter of Fundamental
Rights of the European Union, is one of the fundamental values of the European
Union, as is the objective specifically pursued by the ECI mechanism, which consists
in improving the democratic functioning of the European Union by granting every
citizen a general right to participate in democratic life … , requires an interpretation of
the concept of legal act which covers legal acts such as a decision to open
negotiations with a view to concluding an international agreement, which manifestly
seeks to modify the legal order of the European Union.

Further reading
Craig, ‘Integration, Democracy, and Legitimacy’ in Craig and De Búrca (eds) The Evolution of
EU Law (OUP, 2011, 2nd ed) 13.
Craig, ‘Institutions, Power, and Institutional Balance’ in Craig and De Búrca (eds), The
Evolution of EU Law (OUP, 2011, 2nd ed) 41.
Arnull and Wincott (eds), Accountability and Legitimacy in the European Union (OUO, 2002).
Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’, (2006) 43
CMLRev 63.
Bermann, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the
United States’, (1994) 94 Columbia Law Review 331
Estella, The Principle of Subsidiarity and its Critique (2002, OUP); reviewed by P. Syrpis,
‘In Defence of Subsidiarity’, 24 OJLS (2004) 323
Weatherill, S., ‘Better Competence Monitoring’, (2005) 30 ELRev (2005) 23
Editorial Comments, ‘Taking (the limits of) competences seriously’, 37 CMLRev (2000) 1301.
Karatzia, 'The European Citizens’ Initiative and the EU institutional balance: On realism and
the possibilities of affecting EU lawmaking' (2017) 54 CMLRev 177

31
Dashwood, ‘The Relationship between the Member States and the European Union/European
Community’, (2004) 41 CMLRev 355
Dashwood, ‘The Limits of European Community Powers’, (1996) 21 ELRev 113.

32
Lecture 3 BREXIT AND ARTICLE 50 TEU
NOTE: this is a fast-moving area. At the time of the lecture, we may or may
not know whether there would be a withdrawl agreement and, if so, what it
would be covering and how. In any case, we shall be discussing different
issues about Brexit throughout the year.

 Where are we now?

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern
Ireland from the European Union and the European Atomic Energy Community, 19 March
2018: https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf

 How did we get here?

 Joint Statement by Martin Schulz, President of the European Parliament, Donald

Tusk, President of the European Council, Mark Rutte, Holder of the Presidency of the
Council of the EU, Jean-Claude Juncker, President of the European Commission (24
June 2016)

"In a free and democratic process, the British people have expressed their wish to leave the
European Union. We regret this decision but respect it.

This is an unprecedented situation but we are united in our response. We will stand strong
and uphold the EU's core values of promoting peace and the well-being of its peoples. The
Union of 27 Member States will continue. The Union is the framework of our common political
future. We are bound together by history, geography and common interests and will develop
our cooperation on this basis. Together we will address our common challenges to generate
growth, increase prosperity and ensure a safe and secure environment for our citizens. The
institutions will play their full role in this endeavour.

We now expect the United Kingdom government to give effect to this decision of the British
people as soon as possible, however painful that process may be. Any delay would
unnecessarily prolong uncertainty. We have rules to deal with this in an orderly way. Article
50 of the Treaty on European Union sets out the procedure to be followed if a Member State
decides to leave the European Union. We stand ready to launch negotiations swiftly with the
United Kingdom regarding the terms and conditions of its withdrawal from the European
Union. Until this process of negotiations is over, the United Kingdom remains a member of the
European Union, with all the rights and obligations that derive from this. According to the
Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in
the United Kingdom until it is no longer a Member.

As agreed, the “New Settlement for the United Kingdom within the European Union”, reached
at the European Council on 18-19 February 2016, will now not take effect and ceases to exist.
There will be no renegotiation.

As regards the United Kingdom, we hope to have it as a close partner of the European Union
in the future. We expect the United Kingdom to formulate its proposals in this respect. Any
agreement, which will be concluded with the United Kingdom as a third country, will have to
reflect the interests of both sides and be balanced in terms of rights and obligations.”

 European Council Informal meeting at 27 (Brussels, 29 June 2016) - Statement

1. We, the Heads of State or Government of 27 Member States, as well as the Presidents of
the European Council and the European Commission, deeply regret the outcome of the

33
referendum in the UK but we respect the will expressed by a majority of the British people.
Until the UK leaves the EU, EU law continues to apply to and within the UK, both when it
comes to rights and obligations.

2. There is a need to organise the withdrawal of the UK from the EU in an orderly fashion.
Article 50 TEU provides the legal basis for this process. It is up to the British government to
notify the European Council of the UK's intention to withdraw from the Union. This should be
done as quickly as possible. There can be no negotiations of any kind before this notification
has taken place.

3. Once the notification has been received, the European Council will adopt guidelines for the
negotiations of an agreement with the UK. In the further process the European Commission
and the European Parliament will play their full role in accordance with the Treaties. 1
4. In the future, we hope to have the UK as a close partner of the EU and we look
forward to the UK stating its intentions in this respect. Any agreement, which will be
concluded with the UK as a third country, will have to be based on a balance of rights
and obligations. Access to the Single Market requires acceptance of all four
freedoms.
5. The outcome of the UK referendum creates a new situation for the European Union.
We are determined to remain united and work in the framework of the EU to deal with
the challenges of the 21st century and find solutions in the interest of our nations and
peoples. We stand ready to tackle any difficulty that may arise from the current
situation.
6. The European Union is a historic achievement of peace, prosperity and security on
the European continent and remains our common framework. At the same time many
people express dissatisfaction with the current state of affairs, be it at the European
or national level. Europeans expect us to do better when it comes to providing
security, jobs and growth, as well as hope for a better future. We need to deliver on
this, in a way that unites us, not least in the interest of the young.
7. This is why we are starting today a political reflection to give an impulse to further
reforms, in line with our Strategic Agenda, and to the development of the EU with 27
Member States. This requires leadership of the Heads of State or Government. We
will come back to this issue at an informal meeting in September in Bratislava.

 Triggering the Brexit procedure: the letter by the Prime Minister (29 March 2017):
https://ec.europa.eu/commission/brexit-negotiations/negotiating-documents-article-
50-negotiations-united-kingdom_en

 Article 50 TFEU

1. Any Member State may decide to withdraw from the Union in accordance with its own
constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its
intention. In the light of the guidelines provided by the European Council, the Union
shall negotiate and conclude an agreement with that State, setting out the
arrangements for its withdrawal, taking account of the framework for its future
relationship with the Union. That agreement shall be negotiated in accordance with
Article 218(3) of the Treaty on the Functioning of the European Union. It shall be
concluded on behalf of the Union by the Council, acting by a qualified majority, after
obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into
force of the withdrawal agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in agreement with the
Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of
the Council representing the withdrawing Member State shall not participate in the
discussions of the European Council or Council or in decisions concerning it.

34
 A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty
on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be
subject to the procedure referred to in Article 49.

 Procedural issues

a. When to trigger the procedure

b. Subject-matter of negotiations
c. Duration of negotiations
d. Institutional involvement
e. Other procedural issues

• The withdrawal agreement

a. Subject matter
b. Who negotiates

 Transitional arrangements

a. Subject-matter
b. Duration
c. Legal basis

 The agreement on the UK – EU future relationship

 How does the EU negotiate agreements with third countries?

Article 216 (1) TFEU

1. The Union may conclude an agreement with one or more third countries or
international organisations where the Treaties so provide or where the conclusion of an
agreement is necessary in order to achieve, within the framework of the Union’s policies, one
of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or
is likely to affect common rules or alter their scope.

 Negotiating and concluding international agreements

*Article 218 TFEU:

1. Without prejudice to the specific provisions laid down in Article 207, agreements
between the Union and third countries or international organisations shall be negotiated and
concluded in accordance with the following procedure.

2. The Council shall authorise the opening of negotiations, adopt negotiating directives,
authorise the signing of agreements and conclude them.

3. The Commission, or the High Representative of the Union for Foreign Affairs and
Security Policy where the agreement envisaged relates exclusively or principally to the
common foreign and security policy, shall submit recommendations to the Council, which
shall adopt a decision authorising the opening of negotiations and, depending on the subject
of the agreement envisaged, nominating the Union negotiator or the head of the Union's
negotiating team.

4. The Council may address directives to the negotiator and designate a special
committee in consultation with which the negotiations must be conducted.

35
5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the
signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the
agreement.

Except where agreements relate exclusively to the common foreign and security policy, the
Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the
Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising
cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure
applies, or the special legislative procedure where consent by the European
Parliament is required.

The European Parliament and the Council may, in an urgent situation, agree upon a
time- limit for consent.
(b) after consulting the European Parliament in other cases. The European Parliament
shall deliver its opinion within a time-limit which the Council may set depending on the
urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

7. When concluding an agreement, the Council may, by way of derogation from

paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf
modifications to the agreement where it provides for them to be adopted by a simplified
procedure or by a body set up by the agreement. The Council may attach specific conditions
to such authorisation.

8. The Council shall act by a qualified majority throughout the procedure.

However, it shall act unanimously when the agreement covers a field for which unanimity is
required for the adoption of a Union act as well as for association agreements and the
agreements referred to in Article 212 with the States which are candidates for accession. The
Council shall also act unanimously for the agreement on accession of the Union to the
European Convention for the Protection of Human Rights and Fundamental Freedoms; the
decision concluding this agreement shall enter into force after it has been approved by the
Member States in accordance with their respective constitutional requirements.

9. The Council, on a proposal from the Commission or the High Representative of the
Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of
an agreement and establishing the positions to be adopted on the Union's behalf in a body
set up by an agreement, when that body is called upon to adopt acts having legal effects, with
the exception of acts supplementing or amending the institutional framework of the
agreement.

10. The European Parliament shall be immediately and fully informed at all stages of the
procedure.

11. A Member State, the European Parliament, the Council or the Commission may
obtain the opinion of the Court of Justice as to whether an agreement envisaged is
compatible with the Treaties. Where the opinion of the Court is adverse, the agreement
envisaged may not enter into force unless it is amended or the Treaties are revised.

 Issues of timing

Why do the negotiation and conclusion of the withdrawal agreement and future relationship
agreement not coincide?

36
 a. Substantives issues
b. Procedural issues

 What future relationship between the UK and the EU?

You may find this useful: HM Government, Alternatives to membership: possible models for
the UK outside the EU (2016)
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Altern
atives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf

a. The Norway model (based on the European Economic Area)

b. The Swiss model (a web of bilateral agreements on various policy areas)

c. The Canada model (based on a variant on the Comprehensive Economic and Trade
Agreement between the EU, its Member States and Canada – finalised in 2016 but
not concluded yet) (you may find more about this here:
http://ec.europa.eu/trade/policy/in-focus/ceta/index_en.htm

Further reading:

- European Commission: Negotiating documents on Article 50 negotiations with the

UK: https://ec.europa.eu/commission/brexit-negotiations/negotiating-documents-
article-50-negotiations-united-kingdom_en
- UK Department for Exiting the EU: https://www.gov.uk/government/collections/article-
50-and-negotiations-with-the-eu
- Legal blogs on Brexit: http://www.monckton.com/brexit-blog/
https://brexit.law

Armstrong, Brexit Time (CUP, 2017)

Dougan (ed.), The UK After Brexit – Legal and Policy Chalenges (Intersentia, 2017).
Eeckhout and Frantziou, ‘Brexit and Article 50 TEU: A constitutionalist reading’, (2017) 54
CMLRev 695.
Chalmers, Davies, Monti, EU Law 3rd ed (2013, CUP): Chapter 5A. The Authority of
EU Law Beyond the Union
(http://www.cambridge.org/gb/academic/subjects/law/european-law/european-union-
law-text-and-materials-3rd-edition?format=PB)
Brexit Special: (2018) 55 CMLRev Issue 2/3, including the following articles:
Van Middelaar, L., ‘Brexit as the European Union’s “Machiavellian moment”’, 3;
Hillion, C., ‘Withdrawal under Article 50 TEU: An integration-friendly process’, 29;
Dougan, M., ‘An airbag for the crash test dummies? EU-UK negotiations for a post-
withdrawal “status quo” transitional regime under Article 50 TEU’, 57;
Wessel, R., ‘Consequences of Brexit for international agreements concluded by the
EU and its Member States’, 01;
Baetens, F., ‘”No deal is better than a bad deal”? The fallacy of the WTO fall-back
option as a post-Brexit safety net’, 133;
Moloney, N., ‘Brexit and financial services: (Yet) another re-ordering of institutional
governance for the EU financial system?’, 175;
Barnard, C., ‘Free movement vs. fair movement: Brexit and managed migration', 203;
De Witte, B., ‘An undivided Union? Differentiated integration in post-Brexit times’,
227;
Edward, D., ‘”In Europe history is the unseen guest at every table”’, p. 251
Brexit Special: (2016) 41 ELRev 445 – 490: includes the following articles:
P Craig, Brexit: A Drama in Six Actsat p447
A Dashwood, After the Deluge at p469 Alan Dashwood 469
B De Witte, Near-Membership, Partial Membership and the EU Constitutionat p471
A Arnull, Broken BatsAnthony at p473
P Koutrakos, Negotiating International Trade Treaties after Brexitat p475
Alicia Hinarejos, Brexit and the Euro Area at p479

37
 David Edward and Niamh Nic Shuibhne, “While Europe’s eye is Fix’d on Mighty
Things”: Implications of the Brexit Vote for Scotland 481
C Barnard, The Practicalities of Leaving the EUat p484
D Kostakopoulou, Brexit, Voice and Loyalty: Reflections on Article 50 TEUat p487
Sari, A., ‘Reversing a Withdrawal Notification under Article 50 TEU: Can a Member State
Change its Mind?’, (2017) 42 ELRev 451.
Ostendorf, P., ‘The Withdrawal Cannot Be Withdrawn: The Irrevocability of a Withdrawal
Notification under Article 50(2) TEU’, (2017) 42 ELRev 767.
Benrath, D., ‘Bona Fide and Revocation of Withdrawal: How Article 50 TEU Handles the
Potential Abuse of a Unilateral Revocation of Withdrawal’, (2018) 43 ELRev 234.
Gauci, J.-P. and McCorquodale, R., ‘Brexit Financial Disputes and Public International Law’,
(2017) 42 ELRev 619
Editorial comments, ‘Polar exploration: Brexit and the emerging frontiers of EU law', (2018) 55
CMLRev 1
Editorial Comments, ‘True is that we have seen better days’. (2016) 53 CMLRev 875.
Hillion, ‘Brexit means Br(EEA)xit: The UK withdrawal from the EU and its implications for the
EEA', (2018) 55 CMLRev 135.
Lazowski, ‘Withdrawal from the European Union and alternatives to membership’ (2012)
37 ELRev 523.

38
Lecture 4 Supremacy and Direct Effect
MAIN READING

Craig and de Burca, Chapter 9.

 The principle of supremacy

- Case 6/64 Flaminio Costa v ENEL [1964] ECR 585:

“By contrast with ordinary international treaties, the EEC Treaty has created its own
legal system which, on the entry into force of the Treaty, became an integral part of
the legal systems of the Member States and which their courts are bound to apply.

By creating a Community of unlimited duration, having its own institutions, its own
personality, its own legal capacity and capacity of representation on the international
plane and, more particularly, real powers stemming from a limitation of sovereignty or
a transfer of powers from the States to the Community, the Member States have
limited their sovereign rights, albeit within limited fields, and have thus created a body
of law which binds both their nationals and themselves.

 EU law and national constitutions

Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125

Recourse to the legal rules or concepts of national law in order to judge the validity of
measures adopted by the institutions of the Community would have an adverse effect on
the uniformity and efficacy of Community law. The validity of such measures can only be
judged in the light of Community law. In fact, the law stemming from the Treaty, an
independent source of law, cannot because of its very nature be overriden by rules of
national law, however framed, without being deprived of its character as Community law
and without the legal basis of the Community itself being called in question. Therefore,
the validity of a Community measure or its effect within a Member State cannot be
affected by allegations that it runs counter to either fundamental rights as formulated by
the constitution of that State or the principles of a national constitutional structure.

... In fact, respect for fundamental rights forms an integral part of the general
principles of law protected by the Court of Justice. The protection of such rights, whilst
inspired by the constitutional traditions common to the Member States, must be ensured
within the framework of the structure and objectives of the Community.

Internationale Handelsgesellschaft v EVFG, judgment of the Federal Constitutional

Court (Bundesverfassungsgericht) [1974] 2 CMLR 540

Wuensche Handelsgesellschaft (Solange II), judgment of the Federal Constitutional Court

(Bundesverfassungsgericht), [1987] 3 CMLR 225.

 The role of national courts

Case 106/77 Administrazione delle Finanze dello Stato v. Simmenthal SpA (Simmenthal II)
[1978] ECR 629:

14. …[R]ules of Community law must be fully and uniformly applied in all the Member
states from the date of their entry into force and for so long as they continue in force.

39
 15. These provisions are therefore a direct source of rights and duties for all those
affected thereby, whether Member States or individuals, who are parties to legal
relationships under Community law.

16. This consequence also concerns any national court whose task it is as organ of a
Member State to protect, in a case within its jurisdiction, the rights conferred upon
individuals by Community law.

17. Furthermore, in accordance with the principle of precedence of Community law,

the relationship between provisions of the Treaty and directly applicable measures of
the institutions on the one hand and the national law of the Member State on the
other is such that those provisions and measures not only by their entry into force
render automatically inapplicable any conflicting provision of current national law but
– in so far as they are an integral part of, and take precedence in, the legal order
applicable in the territory of each of the Member States – also preclude the valid
adoption of new national legislative measures to the extent to which they would be
incompatible with Community provisions.

18. Indeed any recognition that national legislative measures which encroach upon
the field within which the Community exercises its legislative power or which are
otherwise incompatible with the provisions of Community law had any legal effect
would amount to a corresponding denial of the effectiveness of obligations
undertaken unconditionally and irrevocably by Member States pursuant to the Treaty
and would thus imperil the very foundations of the Community.
…….

21. It follows from the foregoing that every national court must, in a case within its
jurisdiction, apply Community law in its entirety and protect rights which the latter
confers on individuals and must accordingly set aside any provision of national law
which may conflict with it, whether prior or subsequent to the Community rule.

22. Accordingly, any provision of a national legal system and any legislative,
administrative or judicial practice which might impair the effectiveness of Community
law by withholding from the national court having jurisdiction to apply such law the
power to do everything necessary at the moment of its application to set aside
national legislative provisions which might prevent Community rules from having full
force and effect are incompatible with those requirements which are the very essence
of Community law.

Case C-213/89 R v. Secretary of State for Transport, ex parte Factortame Ltd [1990]
ECR I-2433:
17 … the preliminary question raised by the House of Lords seeks essentially to
ascertain whether a national court which, in a case before it concerning
Community law, considers that the sole obstacle which precludes it from
granting interim relief is a rule of national law, must disapply that rule. .
21 It must be added that the full effectiveness of Community law would be just
as much impaired if a rule of national law could prevent a court seized of a
dispute governed by Community law from granting interim relief in order to
ensure the full effectiveness of the judgment to be given on the existence of the
rights claimed under Community law. It follows that a court which in those
circumstances would grant interim relief, if it were not for a rule of national law,
is obliged to set aside that rule.
22 That interpretation is reinforced by the system established by Article [234
EC] whose effectiveness would be impaired if a national court, having stayed
proceedings pending the reply by the Court of Justice to the question referred

40
 to it for a preliminary ruling, were not able to grant interim relief until it delivered
its judgment following the reply given by the Court of Justice.
23 Consequently, the reply to the question raised should be that Community
law must be interpreted as meaning that a national court which, in a case
before it concerning Community law, considers that the sole obstacle which
precludes it from granting interim relief is a rule of national law must set aside
that rule.
 Accepting supremacy

a. United Kingdom

European Communities Act 1972, Section 2(1):

‘All such rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the Treaties, and all such remedies and procedures
from time to time provided for by or under the Treaties, as in accordance with the
Treaties are without further enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be enforced, allowed and
followed accordingly; and the expression ‘enforceable Community right’ and similar
expressions shall be read as referring to one to which this subsection applies’

Section 3(1):

‘For the purposes of all legal proceedings any question as to the meaning or effect of
any of the Treaties, or as to the validity, meaning or effect of any Community
instrument, shall be treated as a question of law (and, if not referred to the European
Court, be for determination as such in accordance with the principles laid down by
and any relevant decision of the European Court or any court attached thereto)’.

See also the European Union Act of 2011. Note in particular the so-called ‘sovereignty clause’
(section 18) and the provision for wide ranging ‘referendum locks’ in relation to future
transfers of powers to the EU.

Factortame (No 2) [1991] 1 AC 603, 658-9 (per Lord Bridge):

If the supremacy within the European Community of Community law over the national
law of member states was not always inherent in the E.E.C. Treaty… it was certainly
well established in the jurisprudence of the European Court of Justice long before the
United Kingdom joined the Community. Thus, whatever limitation of its sovereignty
Parliament accepted when it enacted the European Communities Act 1972 was
entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it
was the duty of a United Kingdom court, when delivering final judgment, to override
any rule of national law found to be in conflict with any directly enforceable rule of
Community law. Similarly, when decisions of the European Court of Justice have
exposed areas of United Kingdom statute law which failed to implement Council
directives, Parliament has always loyally accepted the obligation to make appropriate
and prompt amendments. Thus there is nothing in any way novel in according
supremacy to rules of Community law in those areas to which they apply and to insist
that, in the protection of rights under Community law, national courts must not be
inhibited by rules of national law from granting interim relief in appropriate cases is no
more than a logical recognition of that supremacy.

Thoburn v Sunderland City Council [2002] 3 WLR 247, per Laws J:

59. … there is nothing in the ECA which allows the Court of Justice, or any other
institutions of the EU, to touch or qualify the conditions of Parliament's legislative
supremacy in the United Kingdom. Not because the legislature chose not to allow it;
because by our law it could not allow it. That being so, the legislative and judicial
institutions of the EU cannot intrude upon those conditions. The British Parliament

41
 has not the authority to authorise any such thing. Being sovereign, it cannot abandon
its sovereignty. Accordingly there are no circumstances in which the jurisprudence of
the Court of Justice can elevate Community law to a status within the corpus of
English domestic law to which it could not aspire by any route of English law itself….

69. In my judgment … the correct analysis of that relationship involves and requires these
following four propositions. (1) All the specific rights and obligations which EU law
creates are by the ECA incorporated into our domestic law and rank supreme: that is,
anything in our substantive law inconsistent with any of these rights and obligations is
abrogated or must be modified to avoid the inconsistency. This is true even where the
inconsistent municipal provision is contained in primary legislation. (2) The ECA is a
constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is
derived, not from EU law, but purely from the law of England: the common law
recognises a category of constitutional statutes. (4) The fundamental legal basis of
the United Kingdom's relationship with the EU rests with the domestic, not the
European, legal powers. In the event, which no doubt would never happen in the real
world, that a European measure was seen to be repugnant to a fundamental or
constitutional right guaranteed by the law of England, a question would arise whether
the general words of the ECA were sufficient to incorporate the measure and give it
overriding effect in domestic law. But that is very far from this case.

R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the
European Union [2017] UKSC 5

65. In our view, then, although the 1972 Act gives effect to EU law, it is not itself the
originating source of that law. It is, as was said on behalf of the Secretary of State
echoing the illuminating analysis of Professor Finnis, the “conduit pipe” by which EU
law is introduced into UK domestic law. So long as the 1972 Act remains in force, its
effect is to constitute EU law an independent and overriding source of domestic law.

66. … The primacy of EU law means that, unlike other rules of domestic law, EU law
cannot be implicitly displaced by the mere enactment of legislation which is
inconsistent with it. That is clear from the second part of section 2(4) of the 1972 Act
and Factortame Ltd (No 2) [1991] 1 AC 603. The issue was informatively discussed
by Laws LJ in Thoburn v Sunderland City Council [2003] QB 151, paras 37-47.

67. The 1972 Act accordingly has a constitutional character, as discussed by Laws LJ
in Thoburn cited above, paras 58-59, and by Lord Reed and Lords Neuberger and
Mance in in R (Buckinghamshire County Council) v Secretary of State for Transport
[2014] 1 WLR 324, paras 78 to 79 and 206 to 207 respectively. Following the coming
into force of the 1972 Act, the normal rule is that any domestic legislation must be
consistent with EU law. In such cases, EU law has primacy as a matter of domestic
law, and legislation which is inconsistent with EU law from time to time is to that
extent ineffective in law. However, legislation which alters the domestic constitutional
status of EU institutions or of EU law is not constrained by the need to be consistent
with EU law. In the case of such legislation, there is no question of EU law having
primacy, so that such legislation will have domestic effect even if it infringes EU law
(and that would be true whether or not the 1972 Act remained in force). That is
because of the principle of Parliamentary sovereignty which is, as explained above,
fundamental to the United Kingdom’s constitutional arrangements, and EU law can
only enjoy a status in domestic law which that principle allows. It will therefore have
that status only for as long as the 1972 Act continues to apply, and that, of course,
can only be a matter for Parliament.

b. Germany

Internationael Handelsgesellschaft GmbH v EVGF (Solange I) (judgment of 29 May 1974)

Wunsche Handelsgesellschaft (Solange II) (judgment of 22 October 1986)

(https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=572)

42
Brunner (judgment of 12 October 1993)
(http://www.proyectos.cchs.csic.es/euroconstitution/library/Brunner_Sentence.pdf)

Lisbon Treaty (judgment of 30 June 2009)

(https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es2009
0630_2bve000208en.html):

233. [A]n extensive autonomy of political authority conferred upon the European
Union … can, in German constitutional law, come about only as afunction of the
freedom of action fo the self -determining [German] people. According to the
constitution, such integratioin steps … must, in principle, be revocable.

Honeywell (judgment of 6 July 2010)

(https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/07/rs20100
706_2bvr266106en.html)

c. Poland

Polish Constitutional Court, judgment K18/04 of 11 May 2005:

“The concept and model of European law created a new situation, wherein, within each
member States, autonomous legal orders co-exist and are simultaneously operative. … The
existence of the relative autonomy of both, national and Community, legal orders in no way
signifies an absence of interaction between them. Furthermore, it does not exclude the
possibility of a collision between regulations of Community law and the Constitution. … Such
a collision may in no event be resolved by assuming the supremacy of a Community norm
over a constitutional norm.”

d. Czech Republic

Czech Constitutional Court, judgment of 20 March 2007, PI. 4/06 re: ECJ judgment in C-
399/09 Landtová

 The principle of direct effect

Case 26/62 N.V. Algemene Transporten Expeditie Onderneming van Gend en

Loos v Nederlandse Administratie der Belastingen [1963] ECR 1:

“10. The objective of the EEC Treaty, which is to establish a Common Market, the
functioning of which is of direct concern to interested parties in the Community,
implies that this 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. It is also confirmed
more specifically by the establishment of institutions endowed with sovereign rights,
the exercise of which affects Member States and also their citizens. Furthermore, it
must be noted that the nationals of the states brought together in the Community are
called upon to cooperate in the functioning of this Community through the
intermediary of the European Parliament and the Economic and Social Committee.

12. The conclusion to be drawn ... 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 comprise not only Member
States but also their nationals. Independently of the legislation of Member States,
Community law therefore not only imposes obligations on individuals but is also
intended to confer upon them rights which become part of their legal heritage. These
rights arise not only where they are expressly granted by the Treaty, but also by
reason of obligations which the Treaty imposes in a clearly defined way upon

43
 individuals as well as upon the Member States and upon the institutions of the
Community.

 The conditions for the direct effect of Treaty provisions

Case 26/62 Van Gend en Loos [1963] ECR 1

‘The wording of Article [25] contains a clear and unconditional prohibition which is not a
positive but a negative obligation. This obligation, moreover, is not qualified by any
reservation on the part of states which would make its implementation conditional upon a
positive legislative measure enacted under national law. The very nature of this prohibition
makes it ideally adapted to produce direct effects in the legal relationship between Member
States and their subjects.’

Case 2/74 Reyners v. Belgium [1974] ECR 631

‘26. In laying down that freedom of establishment shall be attained at the end of the
transitional period, Article [43] … imposes an obligation to attain a precise result, the fulfilment
of which had to be made easier by, but not made dependent on, the implementation of a
programme of progressive measures.

27. The fact that this progression has not been adhered to leaves the obligation itself intact
beyond the end of the period provided for its fulfilment…’

Case 43/75 Defrenne v. SABENA [1976] ECR 455

’19. It is impossible not to recognise that the complete implementation of the aim pursued by
Article [141] … in certain cases involve the elaboration of criteria whose implementation
necessitates the taking of appropriate measures at Community or national level. …

21. Among the forms of direct discrimination which may be identified solely by reference to
the criteria laid down by Article [141] must be included in particular those which have their
origin in legislative provisions … and which may be detected on the basis of a purely legal
analysis of the situation. …

24. In such a situation, at least, Article [141] is directly [effective] and may thus give rise to
individual rights which the courts must protect.’

 Regulations

Article 288 TFEU:

‘A Regulation shall have general application. It shall be binding in its entirety and directly
applicable in all Member States’

Case 93/71 Leonesio v Italian Misinstry of Agriculture [1972] ECR 293

 Decisions
Article 288 TFEU:

‘A Decision shall be binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them.’

Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825

 International agreements concluded by the EU

Case 104/81 Kupferberg [1982] ECR 3641.

44
  “Vertical” and “Horizontal” Direct Effect

The question here is about who is bound by particular provisions of Union law. The
terminology is capable of being confusing. ‘Vertical’ direct effect refers to the capacity to bind
States; ‘horizontal’ direct effect is broader, and refers to the capacity to bind individuals (as
well as States). The distinction becomes crucial in relation to directives (see lectures 7 and 8).

Case 43/75 Defrenne v. SABENA [1976] ECR 455.

The case concerned an interpretation of ex Article 119 EEC which read as follows: ‘Each
Member State shall during the first stage ensure and subsequently maintain the application of
the principle that men and women should receive equal pay for equal work.’

‘39. … since Article 119 is mandatory in nature, the prohibition on discrimination

between men and women applies not only to the action of public authorities, but also extends
to all agreements which are intended to regulated paid labour collectively, as well as to
contracts between individuals …’

FURTHER READING

De Witte, B., ‘Direct Effect, Primacy, and the Nature of the Legal Order’ in P. Craig and G. de
Búrca (eds) The Evolution of EU Law (OUP, 2011, 2nd ed) 323.
Gordon, M. and Dougan, M., ‘The United Kingdom’s European Union Act 2011: “Who Won
the Bloody War Anyway?”’, (2012) 37 ELRev 3.
Craig, 'The European Union Act 2011: Locks, limits and legality', 48 CMLRev (2011) 1915.
Sadurski, W, ‘Solange, Chapter 3': Constitutional Courts in Central Europe – Democracy –
European Union’ (2008) 14(1) European Law Journal 1-35
Albi, A, ‘From the Banana saga to a sugar saga and beyond: Could the post-Communist
constitutional courts teach the EU a lesson in the rule of law?’ 47 CMLRev (2010)
791.
Zbiral, 'Czech Constitutional Court, judgment of 31 January 2012, Pl. ÚS 5/12. – A Legal
revolution or negligible episode? Court of Justice decision proclaimed ultra vires', 49
CMLRev (2012) 1475–1491.

45
Lecture 5 The Legal Effects of Directives
MAIN READING

Craig and de Burca, Ch. 7.

 The legal nature of directives

Article 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’.

 The elastic quality of directives and the duty of Member States

Case C-212/04 Adenler [2006] I-6057:

121. In accordance with the Court’s settled case-law, it follows from the second
paragraph of Article [54(3) TEU] in conjunction with the third paragraph of Article [288
TFEU] and the directive in question itself that, during the period prescribed for
transposition of a directive, the Member States to which it is addressed must refrain
from taking any measures liable seriously to compromise the attainment of the result
prescribed by it … . In this connection it is immaterial whether or not the provision of
national law at issue which has been adopted after the directive in question entered
into force is concerned with the transposition of the directive … .

122    Given that all the authorities of the Member States are subject to the obligation
to ensure that provisions of Community law take full effect … , the obligation to refrain
from taking measures, as set out in the previous paragraph, applies just as much to
national courts.

123    It follows that, from the date upon which a directive has entered into force, the
courts of the Member States must refrain as far as possible from interpreting domestic
law in a manner which might seriously compromise, after the period for transposition has
expired, attainment of the objective pursued by that directive.

 The direct effect of directives

Case 41/74 Van Duyn v. Home Office [1974] ECR 1337

12. If, ..., by virtue of the provisions of Article [249 EC], regulations are directly
applicable and, consequently, may by their very nature have direct effects, it does not
follow from this that other categories of acts mentioned in that Article can never have
similar effects. It would be incompatible with the binding effect attributed to a directive

46
 by Article 189 to exclude, in principle, the possibility that the obligation which it
imposes may be invoked by those concerned. In particular, where the Community
authorities have, by directive, imposed on member States the obligation to pursue a
particular course of conduct, the useful effect of such an act would be weakened if
individuals were prevented from relying on it before their national courts and if the
latter were prevented from taking it into consideration as an element of Community
law. Article [234 EC], which empowers national courts to refer to the court questions
concerning the validity and interpretation of all acts of the community institutions,
without distinction, implies furthermore that these acts may be invoked by individuals
in the national courts. It is necessary to examine in every case, whether the nature,
general scheme and wording of the provision in question are capable of having direct
effects on the relations between Member States and individuals.

Case 148/78 Pubblico Ministero v. Tullio Ratti [1979] ECR 1629; [1980] 1 CMLR 96:

20. It would be incompatible with the binding effect which Article 189 ascribes to
directives to exclude on principle the possibility of the obligations imposed by them being
relied on by persons concerned.

21. Particularly in cases in which the Community authorities have, by means of directive,
placed Member States under a duty to adopt a certain course of action, the effectiveness
of such an act would be weakened if persons were prevented from relying on it in legal
proceedings and national courts prevented from taking it into consideration as an element
of Community law.

22. Consequently a Member State which has not adopted the implementing measures
required by the directive in the prescribed periods may not rely, as against individuals, on
its own failure to perform the obligations which the directive entails.

23. … a national court requested by a person who has complied with the provisions of a
directive not to apply a national provision incompatible with the directive not incorporated
into the internal legal order of the defaulting Member State, must uphold that request if
the obligation in question is unconditional and sufficiently precise.’

Ministre de l’Interieure v Cohn-Bendit, judgment of the Conseil d’Etat, [1980] 1 CMLR

543.

 Vertical and horizontal direct effect of directives

Case C-152/84 Marshall v Southampton and South West Hampshire Area Health
Authority (No 1) [1986] ECR 523

48. With regard to the argument that a directive may not be relied upon against an
individual, it must be emphasized that according to article 189 of the EEC Treaty the
binding nature of a directive, which constitutes the basis for the possibility of relying
on the directive before a national Court, exists only in relation to' each Member State
to which it is addressed'. It follows that a directive may not of itself impose obligations
on an individual and that a provision of a directive may not be relied upon as such
against such a person. It must therefore be examined whether, in this case, the
respondent must be regarded as having acted as an individual.

49. In that respect it must be pointed out that where a person involved in legal
proceedings is able to rely on a directive as against the State he may do so
regardless of the capacity in which the latter is acting, whether employer or public
authority. In either case it is necessary to prevent the State from taking advantage of
its own failure to comply with Community law.

Case C-91/92 Faccini Dori [1994] ECR I-3325:

47
23 It would be unacceptable if a State, when required by the Community legislature to adopt
certain rules intended to govern the State's relations (or those of State entities) with
individuals and to confer certain rights on individuals, were able to rely on its own failure to
discharge its obligations so as to deprive individuals of the benefits of those rights. Thus the
Court has recognized that certain provisions of directives on conclusion of public works
contracts and of directives on harmonization of turnover taxes may be relied on against the
State (or State entities) (see the judgment in Case 103/88 Fratelli Costanzo v Comune di
Milano [1989] ECR 1839 and the judgment in Case 8/81 Becker v Finanzamt Muenster-
Innenstadt [1982] ECR 53).

24 The effect of extending that case-law to the sphere of relations between individuals would
be to recognize a power in the Community to enact obligations for individuals with immediate
effect, whereas it has competence to do so only where it is empowered to adopt regulations.

HOWEVER: in his Opinion, Advocate General Lenz provides a strong argument FOR the
horizontal direct effect of directives:

48. Considerations favouring the horizontal effect of directives reflect a drive to do

justice by the beneficiary of a provision which the Community legislator intended
to be binding and not to abandon his situation for an indefinite period to the whim
of a Member State in default of its obligations.
49. At the time of the completion of the internal market, ‘an area without internal
frontiers’, when harmonizing provisions governing legal relations between private
individuals are increasingly being adopted, it seems to me to be appropriate to
reconsider the effect of directives. …
50. Foremost among the arguments in favour of directives' having horizontal
effect is that relating to equality of the conditions of competition. Moreover, in the
absence of horizontal effect, persons in Member States which comply with
Community law are frequently placed at a disadvantage.
51. The principle of the prohibition of discrimination, which ranks as a
fundamental right, also militates in favour of directives' being given horizontal
effect, from several points of view. First, it is unsatisfactory that individuals should
be subject to different rules, depending on whether they have comparable legal
relations with a body connected with the State or with a private individual.
Secondly, it is contrary to the requirements of an internal market for individuals to
be subject to different laws in the various Member States even though
harmonizing measures have been adopted by the Community.
52. If those disparities were to be maintained, it would go against the stated aim
of the approximation of legislation. That finding cannot be refuted by arguing that
it is in the nature of directives that there are bound to be different conditions as
between Member States until such time as the directives are transposed into
national law…. Such inequality should be allowed only during the period
prescribed for implementation. It is one of the aims of directives that comparable
conditions should prevail after that period has expired.
53. The discrimination argument has gained even more substance since the entry
into force of the Maastricht Treaty and of citizenship of the Union, enshrined in
the EC Treaty. According to the intention of the Contracting States, … the Treaty
on European Union marks "a new stage in the process of European integration
undertaken with the establishment of the European Communities". Articles 3a
and 7a of the EC Treaty stress the importance of the internal market. Articles 2, 3
and 3a of the EC Treaty promote the placing of economic policy more on a
common footing. Article 3(s) requires a contribution to be made to the
strengthening of consumer protection. More detailed provisions in that regard are
set out in Article 129a. The introduction of citizenship of the Union raises the
expectation that citizens of the Union will enjoy equality, at least before
Community law.

48
54. In the case of directives whose content is intended to have effects in relations
between private persons and which embody provisions designed to protect the
weaker party, … it is obvious that the failure to transpose a directive deprives it of
effet utile. Following the expiry of the period for transposition, the application of
protective provisions with precise and unconditional content should be possible. A
provision of a directive, which the Community legislator intended to be binding,
should be recognized as having substantive effect and the conduct of a Member
State contrary to the Treaty should not be able to impede the assertion of legal
positions which are in themselves complete.
55. In order to come out in favour of the horizontal direct effect of directives, the
starting point should be that the rationale and manner of effect are fundamentally
different than in the case of directives having vertical direct effect. Whereas, on
the traditional view of the direct applicability of directives, conduct contrary to
Community law on the part of the Member State directly determines legal
relations between the individual and the State, a third party who is a private
person has no influence on the implementation of a directive. … The arguments
and legal principles … put forward in support of the direct applicability of
directives vis-à-vis the Member State to the effect that the Member State is not
entitled to profit by its conduct contrary to Community law … apply no more in
relations between private persons inter se than the reference to the nature of a
sanction … of direct effect vis-à-vis the State.
56. The direct applicability of directives as between private persons would cease
to be in the nature of an objection in the sense that the favourable provision is
"relied upon". The directly applicable provision of a directive would in contrast be
given effects erga omnes. It would as a result be equated with the directly
applicable provisions of the Treaty. … The provision of a directive producing
horizontal effects would participate in the primacy of Community law, which would
be desirable in the interests of the uniform, effective application of Community
law.
57. Although horizontal direct effect of directives appears desirable for the
reasons given above, substantial arguments exist against such a change in the
case-law.
58. Reference is made regularly in those arguments to the wording of Article [249
EC] and to the nature of directives, which are binding only on Member States and
then only as to the results to be achieved.
59. In my view, those arguments can be refuted. As regards in the first place the
freedom given to the Member States as to the choice of the form and methods for
implementing directives, that freedom is completely unaffected until the
transitional period expires. Even after that, the Member States retain (also where
individual provisions have direct effect) leeway wherever that is intended by the
directive. Only a fraction of provisions of directives will lend themselves to
horizontal applicability. For the rest, the Member States are not entitled to invoke,
after the expiry of the period for transposition, freedoms which were conferred on
them only for the purposes of the due implementation of the directive within the
time-limit laid down.
60. The obligation for the Member State to achieve the results intended by the
directive exists immediately that the directive takes effect. As far as the results
intended to be achieved by a directive are concerned, the Member States do not
normally have any discretion. Such results include, for example, making
protective provisions binding by no later than the end of the period for
implementation. … The binding nature of such rules is (as I have already
observed) intended by the Community legislator and inherent in the nature of
directives. Directives are not measures of lesser quality but are addressed, with a
view to their implementation, to the Member States, which are under an obligation
under the Treaty to transpose them into national law in full and in good time.

49
61. In my view, the nature of directives does not preclude their having horizontal
effect. Neither would that eliminate the demarcation between regulations and
directives, since directives cannot have direct effect until the period for
transposition has elapsed and only in the case of clear and unconditional
provisions.
62. Another argument put forward against horizontal applicability for directives
relates to the burden imposed on third parties on the ground that it is incompatible
with the rule of law. That argument cannot in fact be dismissed forthwith. It is
questionable whether a private person whose conduct is lawful under the national
legal system may have burdens imposed upon him under an unimplemented
directive not addressed to him for which, moreover, he will have scarcely any
remedy against the Member State in default. …
63. On grounds of legal certainty the horizontal effect of directives appears to me
to be extremely problematic from the point of view of the third party suffering the
burden. The fact that private individuals have had burdens imposed on them
indirectly as a result of directly applicable directives (for example, owing to
irregularities committed in a tender calling in question the legal situation of the
other tenderers and, possibly, the contractor … or owing to the effect of such
directives resulting from their interpretation in conformity with Community law in a
dispute between companies subject to private law … ) cannot eliminate the
reservations evoked by horizontal effect on grounds of the rule of law.
64. The basic condition for a burden imposed on the citizen by legislative
measures is their constitutive publication in an official organ. … That condition is
not fulfilled by directives adopted on the basis of the EEC Treaty. … The usage of
publishing directives in the Official Journal of the European Communities as
measures whose publication is not a condition for their applicability does not
remedy that situation. Publication in the Official Journal of the European
Communities is purely declaratory and is not a condition for directives to take
effect, which is sometimes clarified by a footnote indicating the date on which the
directive was notified to the Member States, … since directives take effect by
notification. … The fact that it is possible to take cognizance of a measure does
not replace its constitutive publication.
65. In the case of directives adopted and to be adopted following the entry into
force of the Maastricht Treaty on 1 November 1993, the situation is fundamentally
different. Article 191 of the EC Treaty also requires directives to be published in
the Official Journal of the Community. An objection based on absence of
publication could therefore no longer be raised against the horizontal effect of
such recent directives.
66. For reasons of legal certainty, which is a fundamental right of the citizen on
whom a burden is imposed, the public must be prepared as of now for the fact
that directives will in future have to be recognized as having horizontal direct
effect. For those reasons, too, one must be gratified at the aforementioned stands
taken by members of the Court. …
67. The principle of legitimate expectations is invoked in favour of private
individuals on whom a burden is imposed and against the horizontal effect of
directives. Expectations deserving of protection certainly exist, in so far as a
private individual does not have to reckon with the imposition of additional
burdens provided that he acts lawfully within the context of his national legal
system. On the other hand, once a directive has been published and the period
for transposition has expired, the burden is foreseeable. I would ask whether the
expectation that the national legislature will act contrary to Community law is
worthy of protection.
68. An argument based on the democratic principle is put forward against the
horizontal effect of directives. According to that argument, the democratic deficit,
which is deplored in any event in the context of Community legislation, is

50
 increased where national parliaments are by-passed when directives are
implemented.
69. As far as the alleged democratic deficit is concerned, I would observe, on the
one hand, that the European Parliament' s rights to collaborate in drawing up
Community legislation have gradually been increased by the Single European Act
and the Maastricht Treaty. On the other hand, it cannot be argued, I submit, that
the national legislature is by-passed.
70. The national legislature has every freedom during the period for transposition
to choose the form and means of transposing the directive into national law. …
Even after the period for transposition has elapsed, the obligation … on the
national legislature to transpose the directive continues to exist, as well as leeway
to fulfil that obligation in one way or another to the extent permitted by the
directive. Only provisions of directives or protective rules which are sufficiently
precise to be asserted without being fleshed out in any way and therefore have to
be taken over by the national legislature would have legal effects as between the
addressees of the legislation in question within the national legal system. To my
mind, fears that there will be a hiatus between the legal situation existing during
the intermediate period preceding the transposition of the directive into national
law and that existing thereafter are groundless, since the provisions suitable for
horizontal applicability must also be found in the implementing measure.
71. The objection that recognition of the horizontal direct effect of directives would
increase Member State’s carelessness in transposing them does not convince
me, since the national legislature remains responsible for their implementation in
full. Recognition in principle of horizontal effect might possibly encourage Member
States to effect transposition within the prescribed period in order to forestall
horizontal application by the authorities and courts of the Community and the
Member States. In my view, the arguments on the educative effect of horizontal
applicability balance themselves out and hence do not tip the balance for or
against.
72. Before concluding, I would further observe that, if directives are recognized as
having horizontal effect, the necessary consequences should be drawn as
regards legal protection. Thus they should be capable of being challenged (as
regulations and decisions are) under the second paragraph of Article 173. …
73. In the final analysis, I consider that for reasons of legal certainty it is not
possible to envisage directives having horizontal effect as regards the past. As far
as the future is concerned, however, horizontal effect seems to me to be
necessary, subject to the limits mentioned, in the interests of the uniform,
effective application of Community law. In my view, the resulting burdens on
private individuals are reasonable, since they do not exceed the constraints which
would have been applied to them if the Member State concerned had acted in
conformity with Community law. Lastly, it is the party relying on the unconditional
and sufficiently precise provision of a directive who will have to bear the risk of
the court proceedings.

 The definition of the ‘State’ or the ‘emanation of the State’

Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986]
ECR 1651.
Case 103/88 Fratelli Constanzo v Comune di Milano [1989] ECR 1839.

Case C-188/89 A. Foster and Others v. British Gas plc [1990] ECR I-3313

‘20. … a body, whatever its legal form, which has been made responsible, pursuant to a
measure adopted by the State, for providing a public service under the control of the State
and has for that purpose special powers beyond those which result from the normal rules

51
applicable in relations between individuals, is included… among the bodies against which the
provisions of a Directive capable of direct effect may be relied upon.’

Case C-413/15 Farrell EU:C:2017:745:

’28. … the conditions that the organisation concerned must, respectively, be subject to the
authority or control of the State, and must possess special powers beyond those which result
from the normal rules applicable to relations between individuals cannot be conjunctive (see,
to that effect, judgments of 4 December 1997, Kampelmann and Others, C-253/96 to
C-258/96, EU:C:1997:585, paragraphs 46 and 47, and of 7 September 2006, Vassallo,
C-180/04, EU:C:2006:518, paragraph 26).

 The Establishment of Indirect Effect

Case 14/83 Von Colson and Kamann v. Land Nordreihn-Westfalen [1984] ECR 1891

24. … national provisions limiting the right to compensation of persons who have
been discriminated against as regards access to employment to a purely nominal
amount, such as, for example, the reimbursement of expenses incurred by them in
submitting their application, would not satisfy the requirements of an effective
transposition of the Directive [76/207] …

26. … the Member States’ obligation arising from a directive to achieve the result
envisaged by the directive and their duty under Article [10] of the Treaty to take all
appropriate measures, whether or particular, to ensure the fulfilment of that
obligation, is binding on all the authorities of Member States including, for matters
within their jurisdiction, the courts. It follows that, in applying the national law …,
national courts are required to interpret their national law in the light of the wording
and the purpose of the directive in order to achieve the result referred to in the third
paragraph of Article [249].

28. … it is for the national court to interpret and apply the legislation adopted for the
implementation of the Directive in conformity with the requirements of Community
law, insofar as it is given a discretion to do so under national law.

Case 80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969; [1989] 2 CMLR 18.

Case C-106/89 Marleasing SA v. La Comercial Internacionale de Alimentacion SA

[1990] ECR I-4135:

8. … in applying national law, whether the provisions in question were adopted before or after
the directive, the national court called upon to interpret it is required to do so, as far as
possible, in the light of the wording and purpose of the directive.
Case C-168/95 Luciano Arcaro [1996] ECR I-4705,

42. [The] obligation of the national court to refer to the content of the directive when
interpreting the relevant rules of its own national law reaches a limit where such an
interpretation leads to the imposition on an individual of an obligation laid down by a directive
which has not been transposed, or, more especially, where it has the effect of determining or
aggravating, on the basis of the Directive and in the absence of a law enacted for its
implementation, the liability in criminal law of persons who act in contravention of that
directive’s provisions.

Case C-62/00 Marks and Spencer plc v Commissioners of Customs and Excise [2002]
ECR I-6325:

27. Consequently, the adoption of national measures correctly implementing a

directive does not exhaust the effects of the directive. Member States remain bound
actually to ensure full application of the directive even after the adoption of those

52
 measures. Individuals are therefore entitled to rely before national courts, against the
State, on the provisions of a directive which appear, so far as their subject-matter is
concerned, to be unconditional and sufficiently precise whenever the full application
of the directive is not in fact secured, that is to say, not only where the directive has
not been implemented or has been implemented incorrectly, but also where the
national measures correctly implementing the directive are not being applied in such
a way as to achieve the result sought by it.

28. As the Advocate General noted …, it would be inconsistent with the Community
legal order for individuals to be able to rely on a directive where it has been
implemented incorrectly but not to be able to do so where the national authorities
apply the national measures implementing the directive in a manner incompatible with
it.

Case C-122/17 Smith EU:C:2018:631:

49. … a national court, hearing a dispute between private persons, which finds itself
unable to interpret provisions of its national law in a manner that is compatible with a
directive, is not obliged, solely on the basis of EU law, to disapply the provisions of its
national law which are contrary to those provisions of that directive that fulfil all the
conditions required for them to produce direct effect and thereby to extend the
possibility of relying on a provision of a directive that has not been transposed, or that
has been incorrectly transposed, to the sphere of relationships between private
persons.

 ‘Incidental’ effect of directives

Case C-194/94 CIA Security v Signalson and Securitel [1996] ECR I-2201.

Case C-443/98 Unilever Italia v Central Foods [2000] ECR I-7535:

50. Whilst it is true, as observed by the Italian and Danish Governments, that a
directive cannot of itself impose obligations on an individual and cannot therefore be
relied on as such against an individual (see Case C-91/92 Faccini Dori…), that case-
law does not apply where non-compliance with Article 8 or Article 9 of Directive
83/189, which constitutes a substantial procedural defect, renders a technical
regulation adopted in breach of either of those articles inapplicable.

51. In such circumstances, and unlike the case of non-transposition of directives with
which the case-law cited by those two Governments is concerned, Directive 83/189
does not in any way define the substantive scope of the legal rule on the basis of
which the national court must decide the case before it. It creates neither rights nor
obligations for individuals.

 Directives and general principles

Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981:

74. … Directive 2000/78 does not itself lay down the principle of equal treatment in the
field of employment and occupation. Indeed, in accordance with Article 1 thereof, the sole
purpose of the directive is ‘to lay down a general framework for combating discrimination on
the grounds of religion or belief, disability, age or sexual orientation’, the source of the actual
principle underlying the prohibition of those forms of discrimination being found, as is clear
from the third and fourth recitals in the preamble to the directive, in various international
instruments and in the constitutional traditions common to the Member States.

75. The principle of non-discrimination on grounds of age must thus be regarded as a

general principle of Community law. Where national rules fall within the scope of Community
law, which is the case with Paragraph 14(3) of the TzBfG, as amended by the Law of 2002,
as being a measure implementing Directive 1999/70 (see also, in this respect, paragraphs 51

53
and 64 above), and reference is made to the Court for a preliminary ruling, the Court must
provide all the criteria of interpretation needed by the national court to determine whether
those rules are compatible with such a principle (Case C-442/00 Rodríguez Caballero [2002]
ECR I-11915, paragraphs 30 to 32).

76. Consequently, observance of the general principle of equal treatment, in particular in

respect of age, cannot as such be conditional upon the expiry of the period allowed the
Member States for the transposition of a directive intended to lay down a general framework
for combating discrimination on the grounds of age, in particular so far as the organisation of
appropriate legal remedies, the burden of proof, protection against victimisation, social
dialogue, affirmative action and other specific measures to implement such a directive are
concerned.

77. In those circumstances it is the responsibility of the national court, hearing a dispute
involving the principle of non-discrimination in respect of age, to provide, in a case within its
jurisdiction, the legal protection which individuals derive from the rules of Community law and
to ensure that those rules are fully effective, setting aside any provision of national law which
may conflict with that law (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629,
paragraph 21, and Case C-347/96 Solred [1998] ECR I-937, paragraph 30).

78. Having regard to all the foregoing, the reply to be given to the second and third
questions must be that Community law and, more particularly, Article 6(1) of Directive
2000/78, must be interpreted as precluding a provision of domestic law such as that at issue
in the main proceedings which authorises, without restriction, unless there is a close
connection with an earlier contract of employment of indefinite duration concluded with the
same employer, the conclusion of fixed-term contracts of employment once the worker has
reached the age of 52.

It is the responsibility of the national court to guarantee the full effectiveness of the general
principle of non-discrimination in respect of age, setting aside any provision of national law
which may conflict with Community law, even where the period prescribed for transposition of
that directive has not yet expired.

Case C-411/05 Felix Palacios de la Villa [2007] ECR I-8531, Opinion of AG Mazak:

89. On a closer analysis it is actually a bold proposition and a significant move to infer, solely from the
general principle of equal treatment, the existence of a specific prohibition of discrimination on grounds
of age – or any other specific type of discrimination as referred to in Article 1 of Directive 2000/78. The
following general remarks on the mechanism of non-discrimination may illustrate that view.

97. In the light of the foregoing considerations I do not regard as particularly compelling the conclusion
drawn in Mangold as to the existence of a general principle of non-discrimination on grounds of age.

Case C-555/07 Kükükdeveci v Swedex [2009] ECR I-8963:

45 As regards, first, the role of the national court when called on to give judgment in proceedings
between individuals in which it is apparent that the national legislation at issue is contrary to European
Union law, the Court has held that it is for the national courts to provide the legal protection which
individuals derive from the rules of European Union law and to ensure that those rules are fully effective
(see, to that effect, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835,
paragraph 111, and Case C-268/06 Impact [2008] ECR I-2483, paragraph 42).

46 In this respect, where proceedings between individuals are concerned, the Court has consistently
held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied
on as such against an individual (see, inter alia, Case 152/84 Marshall [1986] ECR 723, paragraph 48;
Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20; and Pfeiffer and Others, paragraph 108).

47 However, the Member States’ obligation arising from a directive to achieve the result envisaged
by that directive and their duty to take all appropriate measures, whether general or particular, to ensure
the fulfilment of that obligation are binding on all the authorities of the Member States including, for
matters within their jurisdiction, the courts (see, inter alia, to that effect, Case 14/83 von Colson and
Kamann [1984] ECR 1891, paragraph 26; Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8;
Faccini Dori, paragraph 26; Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411,

54
paragraph 40; Pfeiffer and Others, paragraph 110; and Joined Cases C-378/07 to C-380/07 Angelidaki
and Others [2009] ECR I-0000, paragraph 106).

48 It follows that, in applying national law, the national court called on to interpret it is required to do
so, as far as possible, in the light of the wording and the purpose of the directive in question, in order to
achieve the result pursued by the directive and thereby comply with the third paragraph of Article 288
TFEU (see, to that effect, von Colson and Kamann, paragraph 26; Marleasing, paragraph 8; Faccini
Dori, paragraph 26; and Pfeiffer and Others, paragraph 113). The requirement for national law to be
interpreted in conformity with European Union law is inherent in the system of the Treaty, since it
permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of European
Union law when it determines the dispute before it (see, to that effect, Pfeiffer and Others, paragraph
114).

49 According to the national court, however, because of its clarity and precision, the second
sentence of Paragraph 622(2) of the BGB is not open to an interpretation in conformity with Directive
2000/78.

50 It must be recalled here that, as stated in paragraph 20 above, Directive 2000/78 merely gives
expression to, but does not lay down, the principle of equal treatment in employment and occupation,
and that the principle of non-discrimination on grounds of age is a general principle of European Union
law in that it constitutes a specific application of the general principle of equal treatment (see, to that
effect, Mangold, paragraphs 74 to 76).

51 In those circumstances, it for the national court, hearing a dispute involving the principle of non-
discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of
its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the
full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that
principle (see, to that effect, Mangold, paragraph 77).
………………………..
53 The need to ensure the full effectiveness of the principle of non-discrimination on grounds of age,
as given expression in Directive 2000/78, means that the national court, faced with a national provision
falling within the scope of European Union law which it considers to be incompatible with that principle,
and which cannot be interpreted in conformity with that principle, must decline to apply that provision,
without being either compelled to make or prevented from making a reference to the Court for a
preliminary ruling before doing so.

54 The possibility thus given to the national court by the second paragraph of Article 267 TFEU of
asking the Court for a preliminary ruling before disapplying the national provision that is contrary to
European Union law cannot, however, be transformed into an obligation because national law does not
allow that court to disapply a provision it considers to be contrary to the constitution unless the provision
has first been declared unconstitutional by the Constitutional Court. By reason of the principle of the
primacy of European Union law, which extends also to the principle of non-discrimination on grounds of
age, contrary national legislation which falls within the scope of European Union law must be disapplied
(see, to that effect, Mangold, paragraph 77).

55 It follows that the national court, hearing proceedings between individuals, is not obliged but is
entitled to make a reference to the Court for a preliminary ruling on the interpretation of the principle of
non-discrimination on grounds of age, as given expression by Directive 2000/78, before disapplying a
provision of national law which it considers to be contrary to that principle. The optional nature of such a
reference is not affected by the conditions of national law under which a court may disapply a national
provision which it considers to be contrary to the constitution.

Case C-414/16 Egenberger EU:C:2018:257:

75      In the event that it is impossible to interpret the national provision at issue in the main
proceedings in conformity with EU law, it must be pointed out, first, that Directive 2000/78
does not itself establish the principle of equal treatment in the field of employment and
occupation, which originates in various international instruments and the constitutional
traditions common to the Member States, but has the sole purpose of laying down, in that
field, a general framework for combating discrimination on various grounds, including religion
and belief, as may be seen from its title and from Article 1 (see, to that effect, judgment of
10 May 2011, Römer, C-147/08, EU:C:2011:286, paragraph 59 and the case-law cited).

76      The prohibition of all discrimination on grounds of religion or belief is mandatory as a

general principle of EU law. That prohibition, which is laid down in Article 21(1) of the Charter,

55
is sufficient in itself to confer on individuals a right which they may rely on as such in disputes
between them in a field covered by EU law (see, with respect to the principle of non-
discrimination on grounds of age, judgment of 15 January 2014, Association de médiation
sociale, C-176/12, EU:C:2014:2, paragraph 47).

77      As regards its mandatory effect, Article 21 of the Charter is no different, in principle,
from the various provisions of the founding Treaties prohibiting discrimination on various
grounds, even where the discrimination derives from contracts between individuals (see, by
analogy, judgment of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 39; of 6 June
2000, Angonese, C-281/98, EU:C:2000:296, paragraphs 33 to 36; of 3 October 2000, Ferlini,
C-411/98, EU:C:2000:530, paragraph 50; and of 11 December 2007, International Transport
Workers’ Federation and Finnish Seamen’s Union, C-438/05, EU:C:2007:772, paragraphs 57
to 61).

78      Secondly, it must be pointed out that, like Article 21 of the Charter, Article 47 of the
Charter on the right to effective judicial protection is sufficient in itself and does not need to be
made more specific by provisions of EU or national law to confer on individuals a right which
they may rely on as such.

79      Consequently, in the situation mentioned in paragraph 75 above, the national court

would be required to ensure within its jurisdiction the judicial protection for individuals flowing
from Articles 21 and 47 of the Charter, and to guarantee the full effectiveness of those articles
by disapplying if need be any contrary provision of national law.

80      That conclusion is not called into question by the fact that a court may, in a dispute
between individuals, be called on to balance competing fundamental rights which the parties
to the dispute derive from the provisions of the FEU Treaty or the Charter, and may even be
obliged, in the review that it must carry out, to make sure that the principle of proportionality is
complied with. Such an obligation to strike a balance between the various interests involved
has no effect on the possibility of relying on the rights in question in such a dispute (see, to
that effect, judgments of 12 June 2003, Schmidberger, C-112/00, EU:C:2003:333,
paragraphs 77 to 80, and of 11 December 2007, International Transport Workers’ Federation
and Finnish Seamen’s Union, C-438/05, EU:C:2007:772, paragraphs 85 to 89).

81      Further, where the national court is called on to ensure that Articles 21 and 47 of the
Charter are observed, while possibly balancing the various interests involved, such as respect
for the status of churches as laid down in Article 17 TFEU, it will have to take into
consideration the balance struck between those interests by the EU legislature in Directive
2000/78, in order to determine the obligations deriving from the Charter in circumstances
such as those at issue in the main proceedings (see, by analogy, judgment of 22 November
2005, Mangold, C-144/04, EU:C:2005:709, paragraph 76, and order of 23 April
2015, Commission  v Vanbreda Risk & Benefits, C-35/15 P(R), EU:C:2015:275,
paragraph 31).

 The rule of no horizontal effect of directives confirmed

Case C-122/17 Smith EU:C:2018:631.

Further reading
Dashwood, A., ‘From Van Duyn to Mangold via Marshcall: Reducing Direct Effect to
Absurdity?’, (2006-2007) 9 CYELS 81.
Weatherill, ‘From Myth to Reality: The EU's 'New Legal Order' and the Place of General
Principles Within It’ in Vogenauer and Weatherill (eds), General Principles of Law –
European and Comparative Perspectives (Hart Publishing, 2017) (for an analysis of
Mangold – it also raises issues that are examined in the next lecture).
Editorial Comments, ‘Horizontal direct effect – A law of diminishing coherence’, (2006) 43
CMLRev 1
Craig, P., ‘The legal effects of Directives: policy, rules and exceptions’, (2009) 34 ELRev 349.

56
Dougan, M., ‘When worlds collide! Competing visions of the relationship between direct effect
and supremacy’ (2007) 44 CMLRev 931.
Arnull, A., The European Union and its Court of Justice (Oxford: OUP, 2006 2nd ed) Ch. 7.
Craig, P.P., ‘Sovereignty of the United Kingdom Parliament after Factortame’,
(1991) 11 YEL 221
Maltby, ‘Marleasing: What is all the fuss about?’, (1993) 109 LQR 301.
Mancini, C. F. and Keeling, D. T., ‘Democracy and the European Court of Justice’,
(1994) 57 MLR 175.
Mancini, F., ‘The Making of a Constitution for Europe’, (1989) 26 CMLRev 595 reprinted in
Mancini, F., Democracy and Constitutionalism in the European Union (Oxford: Hart
Publishing, 2000) 1.
Pescatore, P., ‘The Doctrine of Direct Effect: An Infant Disease of Community Law’,
1983) 8 ELRev 155
Tridimas, T., ‘Black, White, and Shades of Grey: Horizontality of Directives Revisited’, (2002)
21 YEL 327.
Dougan, M., ‘In Defence of Mangold?’ in Arnull, A., Barnard, C., Dougan, M. and Spaventa,
E. (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan
Dashwood (Hart Publishing, 2011) 219.

Lecture 6 General principles and fundamental human rights

MAIN READING

Craig and de Búrca, Ch. 11

 Primary law

Article 19 TEU:

The Court of Justice of the European Union shall include the Court of Justice, the General
Court and specialised courts. It shall ensure that in the interpretation and application of the
Treaties the law is observed.

Article 263 subparagraph 2 TFEU:

[The Court] shall for this purpose have jurisdiction in actions brought by a Member State, the
European Parliament, the Council or the Commission on grounds of lack of competence,
infringement of an essential procedural requirement, infringement of the Treaties or of any
rule of law relating to their application, or misuse of powers.

Art. 340 subpara 2 TFEU:

In the case of non-contractual liability, the Union shall, in accordance with the general
principles common to the laws of the Member States, make good any damage caused by its
institutions or by its servants in the performance of their duties.

GENERAL PRINCIPLES OF LAW

1. What are General Principles of Law (GPL)?

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Note the lack of an agreed definition, and the lack of agreed treatment among textbook
writers. Our focus (at least until we zoom in on fundamental rights) is on the rationale for a
body of rules which somehow exist independently of the Treaty.

There is almost no Treaty authority for the development of GPL:

 Art. 6(3) TEU (since Treaty of Lisbon) (‘fundamental rights… shall constitute general
principles of the Union’s law.’)
 Art. 19 TEU (... ‘the law’ is observed);
 Art. 263 TFEU (... infringement of this Treaty or ‘any rule of law’ relating to its
application...);
 Art. 340(2) TFEU (... in accordance with ‘the general principles common to the laws of the
Member States’...)

…though there may be authority for the development of specific GPL, for example:
 Art. 2 TEU (human dignity, freedom, equality and human rights as foundational ‘values’)
 Art. 6 TEU (fundamental rights)
 Art. 5(1), (3) and (4) TEU (the principles of subsidiarity and proportionality)
 Arts. 18, 19, 40, 157 TFEU (various strands of ‘equality’)

However, the Court has identified and applied an (open) list of GPL including:
• Fundamental rights
• Equality
• Subsidiarity
• Transparency
• ‘Precautionary Principle’
• Rules of administrative justice: proportionality (discussed below), legal certainty,
legitimate expectations, right to fair hearing, duty to give reasons, right to legal redress
(‘due process’) etc.

2. Sources of GPL

 Public international law (e.g. the European Convention of Human Rights (ECHR))

 Domestic legal systems: ‘The court … chooses from each member state those solutions
which, having regard to the objects of the Treaty, appear to be the best or …the most
progressive’; Case 14/61 Hoogovens v High Authority [1962] ECR 253. The preferred
formulation is: the constitutional traditions common to the Member States (see below).

 The Court’s own case-law (e.g. on legal certainty, protection of legitimate expectations
and non-retroactivity, right to a fair hearing, legal professional privilege)

PROPORTIONALITY

 Where to find it?

Article 5(4) TEU: ‘Under the principle of proportionality, the content and form of Union action
shall not exceed what is necessary to achieve the objectives of the Treaty.’

Article 5 of the Protocol on the Application of the Principles of Subsidiarity and Proportionality
requires draft EU legislation to ‘be justified with regard to the principles of subsidiarity and
proportionality. Any draft legislation should contain a detailed statement making it possible to
appraise compliance with the principles of subsidiarity and proportionality…’

Case C-331/88 Fedesa [1990] ECR I-4023:

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‘The principle of proportionality … requires that measures adopted by the EU do not exceed
the limits of what is appropriate and necessary in order to attain the objectives legitimately
pursued by the legislation in question’;

 Scope of application

FUNDAMENTAL HUMAN RIGHTS

 The initial approach of the ECJ to human rights

Case 1/58 Stork v High Authority, [1959] ECR 17

 The turning point

Case 29/69 Stauder v City of Ulm, [1969] ECR 419

Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125

‘However, an examination should be made as to whether or not any analogous guarantee

inherent in [EU] law has been disregarded. In fact, respect for fundamental rights forms an
integral part of the general principles of Community law protected by the Court of Justice. The
protection of such rights, whilst inspired by the constitutional traditions common to the
Member States, must be ensured within the framework of the structure and objectives of the
Community.’

Case 4/73, Nold v Commission, [1974] ECR 507

 The German courts’ reaction

Internationale Handelsgesellschaft [1972] CMLR 177 (a case before a German Administrative

Court); and [1974] CMLR 540 (before the Federal Constitutional Court).

‘Solange I’: ‘… the guarantee of fundamental rights in the Constitution prevails so long as the
competent organs of the [EU] have not removed the conflict of norms in accordance with the
Treaty mechanism’.

The threatened rebellion of the German Constitutional Court, to the effect that it would
disapply EU acts which encroached upon human rights protected by the German Constitution,
only ended with the case of Wünsche Handelsgesellschaft, [1987] 3 CMLR 225.

‘Solange II’: ‘… so long as the [EU]… generally ensure[s] an effective protection of

fundamental rights as against the sovereign powers of the [EU] which is to be regarded as
substantially similar to the protection of fundamental rights required unconditionally by the
Constitution… the Federal Constitutional Court will no longer exercise its jurisdiction to decide
on the applicability of secondary [EU] legislation… and it will no longer review such legislation
by the standard of the fundamental rights contained in the Constitution’.

 Who is bound by human rights as protected under EU law?

a. EU institutions

- Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat [2008] ECR I-6351
(‘Kadi I’):

281 … the Community is based on the rule of law, inasmuch as neither its Member States
nor its institutions can avoid review of the conformity of their acts with the basic constitutional
charter, the EC Treaty, which established a complete system of legal remedies and
procedures designed to enable the Court of Justice to review the legality of acts of the
institutions (Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23).

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282 It is also to be recalled that an international agreement cannot affect the allocation of
powers fixed by the Treaties or, consequently, the autonomy of the Community legal system,
observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred
on it by Article 220 EC, jurisdiction that the Court has, moreover, already held to form part of
the very foundations of the Community (see, to that effect, Opinion 1/91 [1991] ECR I-6079,
paragraphs 35 and 71, and Case C-459/03 Commission v Ireland [2006] ECR I-4635,
paragraph 123 and case-law cited).

283 In addition, according to settled case-law, fundamental rights form an integral part of
the general principles of law whose observance the Court ensures. For that purpose, the
Court draws inspiration from the constitutional traditions common to the Member States and
from the guidelines supplied by international instruments for the protection of human rights on
which the Member States have collaborated or to which they are signatories. In that regard,
the ECHR has special significance (see, inter alia, Case C-305/05 Ordre des barreaux
francophones et germanophone and Others [2007] ECR I-5305, paragraph 29 and case-law
cited).

284 It is also clear from the case-law that respect for human rights is a condition of the
lawfulness of Community acts (Opinion 2/94, paragraph 34) and that measures incompatible
with respect for human rights are not acceptable in the Community (Case C-112/00
Schmidberger [2003] ECR I-5659, paragraph 73 and case-law cited).
…………………..
317 The question of the Court’s jurisdiction arises in the context of the internal and
autonomous legal order of the Community, within whose ambit the contested regulation falls
and in which the Court has jurisdiction to review the validity of Community measures in the
light of fundamental rights.
…………………….
326 It follows from the foregoing that the Community judicature must, in accordance with
the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of
the lawfulness of all Community acts in the light of the fundamental rights forming an integral
part of the general principles of Community law, including review of Community measures
which, like the contested regulation, are designed to give effect to the resolutions adopted by
the Security Council under Chapter VII of the Charter of the United Nations.

b. Member States

- Case C-260/89, Elliniki Radiophonia Tileorassi (ERT), [1991] ECR I-2925:

where such rules do fall within the scope of Community law, and reference is made to the
Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the
national court to determine whether those rules are compatible with the fundamental rights
the observance of which the Court ensures and which derive in particular from the European
Convention on Human Rights.

 What type of issues do human rights cases raise for EU judges?

- Case 159/90, SPUC v Grogan, [1991] ECR I-4685

- Open door and Dublin Well Woman v Ireland, judgment of ECtHR of 23 September
1992:

63. The Court cannot accept that the restrictions at issue pursued the aim of the prevention of
crime since, as noted above (paragraph 59), neither the provision of the information in
question nor the obtaining of an abortion outside the jurisdiction involved any criminal offence.
However, it is evident that the protection afforded under Irish law to the right to life of the
unborn is based on profound moral values concerning the nature of life which were reflected
in the stance of the majority of the Irish people against abortion as expressed in the 1983
referendum (see paragraph 28 above). The restriction thus pursued the legitimate aim of the
protection of morals of which the protection in Ireland of the right to life of the unborn is one

60
aspect. It is not necessary in the light of this conclusion to decide whether the term "others"
under Article 10 para. 2 (art. 10-2) extends to the unborn.

68. The Court cannot agree that the State’s discretion in the field of the protection of morals is
unfettered and unreviewable (see, mutatis mutandis, for a similar argument, the Norris v.
Ireland judgment of 26 October 1988, Series A no. 142, p. 20, para. 45).

It acknowledges that the national authorities enjoy a wide margin of appreciation in matters of
morals, particularly in an area such as the present which touches on matters of belief
concerning the nature of human life. As the Court has observed before, it is not possible to
find in the legal and social orders of the Contracting States a uniform European conception of
morals, and the State authorities are, in principle, in a better position than the international
judge to give an opinion on the exact content of the requirements of morals as well as on the
"necessity" of a "restriction" or "penalty" intended to meet them (see, inter alia, the Handyside
v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48, and
the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 22, para.
35).

However this power of appreciation is not unlimited. It is for the Court, in this field also, to
supervise whether a restriction is compatible with the Convention.

73. The Court is first struck by the absolute nature of the Supreme Court injunction which
imposed a "perpetual" restraint on the provision of information to pregnant women concerning
abortion facilities abroad, regardless of age or state of health or their reasons for seeking
counselling on the termination of pregnancy. The sweeping nature of this restriction has since
been highlighted by the case of The Attorney General v. X and Others and by the concession
made by the Government at the oral hearing that the injunction no longer applied to women
who, in the circumstances as defined in the Supreme Court’s judgment in that case, were now
free to have an abortion in Ireland or abroad (see paragraph 25 above).

74. On that ground alone the restriction appears over broad and disproportionate. Moreover,
this assessment is confirmed by other factors.

75. In the first place, it is to be noted that the corporate applicants were engaged in the
counselling of pregnant women in the course of which counsellors neither advocated nor
encouraged abortion, but confined themselves to an explanation of the available options (see
paragraphs 13 and 14 above). The decision as to whether or not to act on the information so
provided was that of the woman concerned. There can be little doubt that following such
counselling there were women who decided against a termination of pregnancy. Accordingly,
the link between the provision of information and the destruction of unborn life is not as
definite as contended. Such counselling had in fact been tolerated by the State authorities
even after the passing of the Eighth Amendment in 1983 until the Supreme Court’s judgment
in the present case. Furthermore, the information that was provided by the relevant applicants
concerning abortion facilities abroad was not made available to the public at large.

76. It has not been seriously contested by the Government that information concerning
abortion facilities abroad can be obtained from other sources in Ireland such as magazines
and telephone directories (see paragraphs 23 and 27 above) or by persons with contacts in
Great Britain. Accordingly, information that the injunction sought to restrict was already
available elsewhere although in a manner which was not supervised by qualified personnel
and thus less protective of women’s health. Furthermore, the injunction appears to have been
largely ineffective in protecting the right to life of the unborn since it did not prevent large
numbers of Irish women from continuing to obtain abortions in Great Britain (see paragraph
26 above).

77. In addition, the available evidence, which has not been disputed by the Government,
suggests that the injunction has created a risk to the health of those women who are now
seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and
who are not availing themselves of customary medical supervision after the abortion has
taken place (see paragraph 26 above). Moreover, the injunction may have had more adverse

61
effects on women who were not sufficiently resourceful or had not the necessary level of
education to have access to alternative sources of information (see paragraph 76 above).
These are certainly legitimate factors to take into consideration in assessing the
proportionality of the restriction.

 The EU Charter on Fundamental Rights 2000

WHEN? The Charter was agreed and adopted in December 2000.

WHAT? The Charter is made up of 54 articles. There are seven chapters including Dignity,
Freedoms, Equality, Solidarity, Citizens’ Rights, Justice and Final Provisions

INITIAL EFFECT? Case C-173/99 BECTU [2001] ECR I-4881, Opinion of AG Tizzano, paras
26-28.

- Case C-540/03 European Parliament v Council [2006] ECR I-5769

38. … While the Charter is not a legally binding instrument, the Community legislature did,
however, acknowledge its importance by stating, in the second recital in the preamble to the
Directive, that the Directive observes the principles recognized not only by Article 8 of the
ECHR but also in the Charter. Furthermore, the principal aim of the Charter, as is apparent
from its preamble, is to reaffirm ‘rights as they result, in particular, from the constitutional
traditions and international obligations common to the Member States…

 The Lisbon Treaty

Article 2 TEU

‘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 Member States in a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and
men prevail.’

*Article 6 TEU

‘1. The Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg,
on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as
defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted
in accordance with the general provisions in Title VII of the Charter governing its interpretation
and application and with due regard to the explanations referred to in the Charter, that set out
the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights
and Fundamental Freedoms. Such accession shall not affect the Union's competences as
defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of

Human Rights and Fundamental Freedoms and as they result from the constitutional
traditions common to the Member States, shall constitute general principles of the Union's
law.’

 What if there is a serious breach of human rights by a Member State?

Article 7 TEU

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 1. On a reasoned proposal by one third of the Member States, by the European
Parliament or by the European Commission, the Council, acting by a majority of four
fifths of its members after obtaining the consent of the European Parliament, mauy
determine that there is a clear risk of a serious breach by a Member State of the
values referred to in Article 2. Before making such a determination, the Council shall
hear the Member State in question and may address recommendation to it, acting in
accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was
made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member
States or by the Commission and after obtaining the consent of the European
Parliament, may determine the existence of a serious and persistent breach by a
Member State of the values referred to in Article 2, after inviting the Member State in
question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a
qualified majority, may decide to suspend certain of the rights deriving from the
application of the Treaties to the Member State in question, including the voting rights
of the representative of the government of that Member State in the Council. In doing
so, the Council shall take into account the possible consequences of such a
suspension on the rights and obligations of national and legal persons.

The obligations of the Member State in question under this Treaty shall in any case
continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or

revoke measures taken under paragraph 3 in response to changes in the situation
which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council
and the Council for the purposes of this Article are laid down in Article 354 of the
Treaty on the Functioning of the European Union.

 Applying Article 7 TEU for the first time

COM(2017) 835 fin (20 December 2017) - Reasoned Opinion in accordance with Article 7(1)
of the Treaty on European Union regarding the rule of law in Poland - Proposal for a Council
Decision on the determination of a clear risk of a serious breach by the Republic of Poland of
the rule of law (http://europa.eu/rapid/press-release_IP-17-5367_en.htm

(5) The concerns of the Commission relate to the following issues:

(1)  the lack of an independent and legitimate constitutional review;
(2)  the adoption by the Polish Parliament of new legislation relating to the Polish
judiciary which raises grave concerns as regards judicial independence and
increases significantly the systemic threat to the rule of law in Poland:
(a)  the law on the Supreme Court; approved by the Senate on 15 December
2017.
(b)  the law amending the law on the Ordinary Courts Organisation ('law on
Ordinary Courts Organisation'); published in the Polish Official Journal on 28
July 2017 and in force since 12 August 2017;
(c) the law amending the law on the National Council for the Judiciary and
certain other laws ('law on the National Council for the Judiciary'); approved
by the Senate on 15 December 2017;
(d) the law amending the law on the National School of Judiciary and Public
Prosecution, the law on Ordinary Courts Organisation and certain other laws
('law on the National School of Judiciary'); published in the Polish Official
Journal on 13 June 2017 and in force since 20 June 2017.

63
C92017) 9050 (20 December 2017) Commission Reccommendation regarding the rule of law
in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146
and (EU) 2017/1520)

RECOMMENDED ACTION
45. The Commission recommends that the Polish authorities take appropriate action to
address the systemic threat to the rule of law identified in section 2 as a matter of
urgency.

46. In particular, the Commission recommends that the Polish authorities take the
following actions with regard to the newly adopted laws in order to ensure their
compliance with the requirements of safeguarding the independence of the judiciary,
of separation of powers and of legal certainty as well as with the Polish Constitution
and European standards on judicial independence:
(a)  ensure that the law on the Supreme Court is amended so as to:
–  not apply a lowered retirement age to the current Supreme Court
judges;
–  remove the discretionary power of the President of the Republic to
prolong the active judicial mandate of the Supreme Court judges;
–  remove the extraordinary appeal procedure;
(b)  ensure that the law on the National Council for the Judiciary is amended
so that the mandate of judges-members of the National Council for the Judiciary
is not terminated and the new appointment regime is removed in order to ensure
election of judges-members by their peers;
(c)  refrain from actions and public statements which could undermine further
the legitimacy of the Supreme Court, the ordinary courts, the judges,
individually or collectively, or the judiciary as a whole.

47. In addition, the Commission recalls that none of the following actions, recommended
in its Recommendation of 26 July 2017, relating to the Constitutional Tribunal, the law
on Ordinary Courts Organisation and the law on the National School of Judiciary have
been taken and therefore reiterates its recommendation to take the following actions:
(d) restore the independence and legitimacy of the Constitutional Tribunal as
guarantor of the Polish Constitution by ensuring that its judges, its President and its
Vice-President are lawfully elected and appointed and by implementing fully the
judgments of the Constitutional Tribunal of 3 and 9 December 2015 which require that
the three judges that were lawfully nominated in October 2015 by the previous
legislature can take up their function of judge in the Constitutional Tribunal, and that
the three judges nominated by the new legislature without a valid legal basis no
longer adjudicate without being validly elected;
(e)  publish and implement fully the judgments of the Constitutional Tribunal
of 9 March 2016, 11 August 2016 and 7 November 2016;
(f)  ensure that the law on Ordinary Courts Organisation and on the National
School of Judiciary is withdrawn or amended in order to ensure its compliance with
the Constitution and European standards on judicial independence; concretely, the
Commission recommends in particular to:
–  remove the new retirement regime for judges of ordinary courts, including
the discretionary power of the Minister of Justice to prolong their mandate;
–  remove the discretionary power of the Minister of Justice to appoint and
dismiss presidents of courts and remedy decisions already taken;
(g)  ensure that any justice reform upholds the rule of law and complies with
EU law and the European standards on judicial independence and is prepared in
close cooperation with the judiciary and all interested parties.

48. The Commission underlines that the loyal cooperation which is required amongst the
different state institutions in rule of law related matters is essential in order to find a
solution in the present situation. The Commission also encourages the Polish
authorities to implement the opinions of the Venice Commission on the law on the
National Council for the Judiciary, the law on the Ordinary Courts Organisation and

64
 the law on the Supreme Court as well as to seek the views of the Venice Commission
on any new legislative proposal aiming to reform the justice system in Poland.

49. The Commission invites the Polish Government to solve the problems identified in
this Recommendation within three months of receipt of this Recommendation, and to
inform the Commission of the steps taken to that effect.

50. The present Recommendation is issued at the same time as the reasoned proposal
presented by the Commission in accordance with Article 7(1) TEU regarding the rule
of law in Poland. The Commission is ready, in close consultation with the European
Parliament and the Council, to reconsider that reasoned proposal, should the Polish
authorities implement the recommended actions set out in the present
Recommendation within the time prescribed.

51. On the basis of this Recommendation, the Commission is ready to pursue a

constructive dialogue with the Polish Government.

 Scope of the Charter

Article 51
Scope

1. The provisions of this Charter are addressed to the institutions and bodies of the Union with
due regard for the principle of subsidiarity and to the Member States only when they are
implementing Union law. They shall therefore respect the rights, observe the principles and
promote the application thereof in accordance with their respective powers.

2. This Charter does not establish any new power or task for the Community or the Union, or
modify powers and tasks defined by the Treaties.

Case C-617/10 Åkerberg Fransson ECLI:EU:C:2013:105:

19      The Court’s settled case-law indeed states, in essence, that the fundamental
rights guaranteed in the legal order of the European Union are applicable in all
situations governed by European Union law, but not outside such situations. In this
respect the Court has already observed that it has no power to examine the
compatibility with the Charter of national legislation lying outside the scope of
European Union law. On the other hand, if such legislation falls within the scope of
European Union law, the Court, when requested to give a preliminary ruling, must
provide all the guidance as to interpretation needed in order for the national court to
determine whether that legislation is compatible with the fundamental rights the
observance of which the Court ensures (see inter alia, to this effect, Case C-260/89
ERT [1991] I-2925, paragraph 42; Case C-299/95 Kremzow [1997] ECR I-2629,
paragraph 15; Case C-309/96 Annibaldi [2007] ECR I-7493, paragraph 13; Case
C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; Case C-349/07 Sopropé
[2008] ECR I-10369, paragraph 34; Case C-256/11 Dereci and Others [2011] ECR
I-11315, paragraph 72; and Case C-27/11 Vinkov [2012] ECR, paragraph 58).

20      That definition of the field of application of the fundamental rights of the

European Union is borne out by the explanations relating to Article 51 of the Charter,
which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7)
of the Charter, have to be taken into consideration for the purpose of interpreting it
(see, to this effect, Case C-279/09 DEB [2010] ECR I-13849, paragraph 32).
According to those explanations, ‘the requirement to respect fundamental rights
defined in the context of the Union is only binding on the Member States when they
act in the scope of Union law’.

21      Since the fundamental rights guaranteed by the Charter must therefore be

complied with where national legislation falls within the scope of European Union law,
situations cannot exist which are covered in that way by European Union law without

65
 those fundamental rights being applicable. The applicability of European Union law
entails applicability of the fundamental rights guaranteed by the Charter.

22      Where, on the other hand, a legal situation does not come within the scope of
European Union law, the Court does not have jurisdiction to rule on it and any
provisions of the Charter relied upon cannot, of themselves, form the basis for such
jurisdiction (see, to this effect, the order in Case C-466/11 Currà and Others [2012]
ECR, paragraph 26).

Case C-206/13 Siragusa ECLI:EU:C:2014:126:

30      In that regard, there is nothing to suggest that the provisions of Legislative
Decree No 42/04 which are relevant to the case before the referring court fall within
the scope of EU law. Those provisions do not implement rules of EU law, a fact which
distinguishes the case in which the present request for a preliminary ruling has been
made from the case which gave rise to the judgment in Case C-416/10 Križan and
Others [2013] ECR, cited by the referring court.

31      It is also important to consider the objective of protecting fundamental rights in

EU law, which is to ensure that those rights are not infringed in areas of EU activity,
whether through action at EU level or through the implementation of EU law by the
Member States.

32      The reason for pursuing that objective is the need to avoid a situation in which
the level of protection of fundamental rights varies according to the national law
involved in such a way as to undermine the unity, primacy and effectiveness of EU
law (see, to that effect, Case 11/70 Internationale Handelsgesellschaft [1970] ECR
1125, paragraph 3, and Case C-399/11 Melloni [2013] ECR, paragraph 60). However,
there is nothing in the order for reference to suggest that any such risk is involved in
the case before the referring court.

 Level of protection under the Charter

Article 52 of the Charter

‘Scope of guaranteed rights

1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must
be provided for by law and respect the essence of those rights and freedoms. Subject to the
principle of proportionality, limitations may be made only if they are necessary and genuinely
meet objectives of general interest recognised by the Union or the need to protect the rights
and freedoms of others.

2. Rights recognised by this Charter which are based on the Community Treaties or the
Treaty on European Union shall be exercised under the conditions and within the limits
defined by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and
scope of those rights shall be the same as those laid down by the said Convention. This
provision shall not prevent Union law providing more extensive protection.’

Article 53 of the Charter

‘Level of protection

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights
and fundamental freedoms as recognised, in their respective fields of application, by Union
law and international law and by international agreements to which the Union, the Community

66
or all the Member States are party, including the European Convention for the Protection of
Human Rights and Fundamental Freedoms, and by the Member States' constitutions.’

 The Charter and its application to the United Kingdom

Protocol on the application of the Charter of Fundamental Rights of the European Union to
Poland and to the United Kingdom

- THE HIGH CONTRACTING PARTIES,

WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights,
freedoms and principles set out in the Charter of Fundamental Rights of the European Union;

WHEREAS the Charter is to be applied in strict accordance with the provisions of the
aforementioned Article 6 and Title VII of the Charter itself;

WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by
the courts of Poland and of the United Kingdom strictly in accordance with the explanations
referred to in that Article;

WHEREAS the Charter contains both rights and principles;

WHEREAS the Charter contains both provisions which are civil and political in character and
those which are economic and social in character;

WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union
and makes those rights more visible, but does not create new rights or principles;
RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty
on European Union, the Treaty on the Functioning of the European Union, and Union law
generally;

NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the
application of the Charter;

DESIROUS therefore of clarifying the application of the Charter in relation to the laws and
administrative action of Poland and of the United Kingdom and of its justiciability within
Poland and within the United Kingdom;

REAFFIRMING that references in this Protocol to the operation of specific provisions of the
Charter are strictly without prejudice to the operation of other provisions of the Charter;

REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other
Member States;

REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon
Poland and the United Kingdom under the Treaty on European Union, the Treaty on the
Functioning of the European Union, and Union law generally,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on
European Union and to the Treaty on the Functioning of the European Union:

Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or
any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or
administrative provisions, practices or action of Poland or of the United Kingdom are
inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates
justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the
United Kingdom has provided for such rights in its national law.

67
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only
apply to Poland or the United Kingdom to the extent that the rights or principles that it
contains are recognised in the law or practices of Poland or of the United Kingdom.

 The relationship between the EU and the ECHR

- Bosphorus v Ireland [2006] 42 EHRR 1:

‘State action taken in compliance with [obligations entered into as a result of a transfer of
powers to an international organisation such as the EU] is justified as long as the relevant
organisation is considered to protect fundamental rights, as regards both the substantive
guarantees offered and the mechanisms controlling their observance, in a manner which can
be considered at least equivalent to that for which the Convention provides’.

- Opinion 2/94, Accession by the Community to the European Convention for the protection of
Human Rights and Fundamental Freedoms, [1996] ECR I-1759

29. [Article 308 EC] is designed to fill the gap where no specific provisions of the Treaty
confer on the Community institutions express or implied powers to act, if such powers appear
none the less to be necessary to enable the Community to carry out its functions with a view
to attaining one of its objectives laid down by the Treaty.

30. That provision, being an integral part of an institutional system based on the principle of
conferred powers, cannot serve as a basis for widening the scope of Community powers
beyond the general framework created by the provisions of the Treaty as a whole and, in
particular, by those that define the tasks and the activities of the Community. On any view,
Article [308] cannot be used as a basis for the adoption of provisions whose effect would, in
substance, be to amend the Treaty without following the procedure which it provides for that
purpose.

 Accession to ECHR under the Treaty of Lisbon

Article 6(2) TEU:

The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined
in the Treaties.

- The Draft EU-ECHR Agreement

http://www.coe.int/t/dghl/standardsetting/hrpolicy/accession/Meeting_reports/47_1%2
82013%29008_final_report_EN.pdf

 The 2014 Opinion of the Court of Justice on ECHR accession

Opinion 2/13 ECLI:EU:C:2014:2454:

164. For the purposes of that review, it must be noted that, as is apparent from
paragraphs 160 to 162 above, the conditions to which accession is subject under the
Treaties are intended, particularly, to ensure that accession does not affect the
specific characteristics of the EU and EU law.

165. It should be borne in mind that these characteristics include those relating to the
constitutional structure of the EU, which is seen in the principle of conferral of powers
referred to in Articles 4(1) TEU and 5(1) and (2) TEU, and in the institutional
framework established in Articles 13 TEU to 19 TEU.

68
166. To these must be added the specific characteristics arising from the very nature
of EU law. In particular, as the Court of Justice has noted many times, EU law is
characterised by the fact that it stems from an independent source of law, the
Treaties, by its primacy over the laws of the Member States (see, to that effect,
judgments in Costa, EU:C:1964:66, p. 594, and Internationale Handelsgesellschaft,
EU:C:1970:114, paragraph 3; Opinions 1/91, EU:C:1991:490, paragraph 21, and
1/09, EU:C:2011:123, paragraph 65; and judgment in Melloni, C-399/11,
EU:C:2013:107, paragraph 59), and by the direct effect of a whole series of
provisions which are applicable to their nationals and to the Member States
themselves (judgment in van Gend & Loos, EU:C:1963:1, p. 12, and Opinion 1/09,
EU:C:2011:123, paragraph 65).

167. These essential characteristics of EU law have given rise to a structured network

of principles, rules and mutually interdependent legal relations linking the EU and its
Member States, and its Member States with each other, which are now engaged, as
is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever
closer union among the peoples of Europe’.

168. This legal structure is based on the fundamental premiss that each Member
State shares with all the other Member States, and recognises that they share with it,
a set of common values on which the EU is founded, as stated in Article  2 TEU. That
premiss implies and justifies the existence of mutual trust between the Member
States that those values will be recognised and, therefore, that the law of the EU that
implements them will be respected.

169. Also at the heart of that legal structure are the fundamental rights recognised by
the Charter (which, under Article 6(1) TEU, has the same legal value as the Treaties),
respect for those rights being a condition of the lawfulness of EU acts, so that
measures incompatible with those rights are not acceptable in the EU (see judgments
in ERT, C-260/89, EU:C:1991:254, paragraph 41; Kremzow, C-299/95,
EU:C:1997:254, paragraph 14; Schmidberger, C-112/00, EU:C:2003:333,
paragraph 73; and Kadi and Al Barakaat International Foundation v Council and
Commission, EU:C:2008:461, paragraphs 283 and 284).

170. The autonomy enjoyed by EU law in relation to the laws of the Member States
and in relation to international law requires that the interpretation of those
fundamental rights be ensured within the framework of the structure and objectives of
the EU (see, to that effect, judgments in Internationale Handelsgesellschaft,
EU:C:1970:114, paragraph 4, and Kadi and Al Barakaat International Foundation v
Council and Commission, EU:C:2008:461, paragraphs 281 to 285).

171. As regards the structure of the EU, it must be emphasised that not only are the
institutions, bodies, offices and agencies of the EU required to respect the Charter but
so too are the Member States when they are implementing EU law (see, to that
effect, judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraphs 17 to
21).

172. The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a
series of fundamental provisions, such as those providing for the free movement of
goods, services, capital and persons, citizenship of the Union, the area of freedom,
security and justice, and competition policy. Those provisions, which are part of the
framework of a system that is specific to the EU, are structured in such a way as to
contribute — each within its specific field and with its own particular characteristics —
to the implementation of the process of integration that is the raison d’être of the EU
itself.

173. Similarly, the Member States are obliged, by reason, inter alia, of the principle of
sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in
their respective territories, the application of and respect for EU law. In addition,
pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to

69
 take any appropriate measure, general or particular, to ensure fulfilment of the
obligations arising out of the Treaties or resulting from the acts of the institutions of
the EU (Opinion 1/09, EU:C:2011:123, paragraph 68 and the case-law cited).

174. In order to ensure that the specific characteristics and the autonomy of that legal
order are preserved, the Treaties have established a judicial system intended to
ensure consistency and uniformity in the interpretation of EU law.

175. In that context, it is for the national courts and tribunals and for the Court of
Justice to ensure the full application of EU law in all Member States and to ensure
judicial protection of an individual’s rights under that law (Opinion 1/09,
EU:C:2011:123, paragraph 68 and the case-law cited).

176. In particular, the judicial system as thus conceived has as its keystone the
preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a
dialogue between one court and another, specifically between the Court of Justice
and the courts and tribunals of the Member States, has the object of securing uniform
interpretation of EU law (see, to that effect, judgment in van Gend & Loos,
EU:C:1963:1, p. 12), thereby serving to ensure its consistency, its full effect and its
autonomy as well as, ultimately, the particular nature of the law established by the
Treaties (see, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 67 and 83).

177. Fundamental rights, as recognised in particular by the Charter, must therefore

be interpreted and applied within the EU in accordance with the constitutional
framework referred to in paragraphs 155 to 176 above.

Further reading:

De Búrca, 'The Evolution of EU Human Rights Law' in G. De Búrca and P Craig (eds), The
Evolution of EU Law (2nd ed., 2011 OUP) 465.
Weatherill, ‘From Myth to Reality: The EU's 'New Legal Order' and the Place of General
Principles Within It’ in Vogenauer and Weatherill (eds), General Principles of Law –
European and Comparative Perspectives (Hart Publishing, 2017)
Douglas-Scott, ‘Luxembourg, Strasbourg and the growing European Human Rights acquis’
(2006) 43 CMLRev 629
Jacque, ‘The Accession of the European Union to the European Convention on Human
Rights and Fundamental Freedoms’, 48 CMLRev (2011) 995
Lock, ‘Walking on a Tightrope: The Draft ECHR Accession agreement and the autonomy of
the EU Legal Order’ 48 CMLRev (2011) 1025
De Burca, G., ‘The EU, the European Court of Justice and the International Legal Order after
Kadi’, (2010) 51 Harvard International Law Journal, 1 (also available as Fordham
Law Legal Studies Research Paper No. 1321313)
Koutrakos, ‘Does the United Kingdom have a General Opt Out from the EU Charter of
Fundamental Rights?’, (2014) 39 ELRev 1.
Coppell and O’Neill, ‘The European Court of Justice: Taking Rights Seriously’, 29 CMLRev
(1992) 669
Iglesias Sanchez, S., ‘The Court and the Charter: The impact of the entry into force of the
Lisbon Treaty on the ECJ’s approach to fundamental rights’, (2012) 49 CMLRev
1565.
Von Bogdandy, A., Kottmann, M., Antpoehler, C., Dickschen, J., Hentrei, S. and Smrkolj, M.,
‘Reverse Solange – Protecting the essence of fundamental rights against EU Member
states’, (2012) 49 CMLRev 481.
Lenaerts, K. and Gutierrez-Fons, J.A., ‘The Role of General Principles of EU Law’ in in Arnull,
A., Barnard, C., Dougan, M. and Spaventa, E. (eds), A Constitutional Order of
States? Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, 2011) 179.
Timmermans, C., ‘The Relationship between the European Court of Justice and the European
Court of Human Rights’ in Arnull, A., Barnard, C., Dougan, M. and Spaventa, E.
(eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan
Dashwood (Hart Publishing, 2011) 151.
Peers, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare”, (2015) 16

70
 German Law Journal 213.
Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue – Autonomy or
Autarky?’ (2015) Jean Monnet Working Paper 01/2015;
Spaventa, ‘A Very Fearful Court? The Protection of Fundamental Rights in the European
Union after Opinion 2/13’, (2015) 22 Maastricht Journal of European and
Comparative Law 35;
Editorial: The EU's Accession to the ECHR - A ‘NO’ from the ECJ!’, (2015) 52 CMLRev 1.
Kochenov and Pech, ‘Better Late than Never? On the European Commission's Rule of Law
Framework and its First Activation, (2016) 54 JCMS 1062.

Lecture 7 State Liability for Breach of EU Law

MAIN READING

Craig and de Burca, Ch. 16.

 The principle of procedural autonomy

Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989:

5 … Applying the principle of cooperation laid down in Article [4] of the Treaty, it is the
national courts which are entrusted with ensuring the legal protection which citizens derive
from the direct effect of the provisions of Community law.

Accordingly, in the absence of Community rules on this subject, it is for the domestic legal
system of each Member State to designate the courts having jurisdiction and to determine the
procedural conditions governing actions at law intended to ensure the protection of the rights

71
which citizens have from the direct effect of Community law, it being understood that such
conditions cannot be less favourable than those relating to similar actions of a domestic
nature.
………….
In the absence of … measures of harmonisation the right conferred by Community law must
be exercised before the national courts in accordance with the conditions laid down by
national rules.

The position would be different only of the conditions and time-limits made it impossible in
practice to exercise the rights which the national courts are to protect.

 What does it mean for national courts?

Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v SPF [1995] ECR I-
4705:

‘19. [E]ach case which raises the question whether a national procedural provision renders
application of Community law impossible or excessively difficult must be analysed by
reference to the role of that provision in the procedure, its progress and its special features,
viewed as a whole, before the various national instances. In the light of that analysis the basic
principles of the domestic judicial system, such as protection of the rights of the defence, the
principle of legal certainty and the proper conduct of procedure, must, where appropriate, be
taken into consideration’.

 Effectiveness

Case C-213/89 R v. Sec of State for Transport ex p. Factortame [1990] ECR I-2433:

19 In accordance with the case-law of the Court, it is for the national courts, in application of
the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal
protection which persons derive from the direct effect of provisions of Community law

20 The Court has also held that any provision of a national legal system and any legislative,
administrative or judicial practice which might impair the effectiveness of Community law by
withholding from the national court having jurisdiction to apply such law the power to do
everything necessary at the moment of its application to set aside national legislative
provisions which might prevent, even temporarily, Community rules from having full force and
effect are incompatible with those requirements, which are the very essence of Community
law ( judgment of 9 March 1978 in Simmenthal, cited above, paragraphs 22 and 23 ).

21 It must be added that the full effectiveness of Community law would be just as much
impaired if a rule of national law could prevent a court seised of a dispute governed by
Community law from granting interim relief in order to ensure the full effectiveness of the
judgment to be given on the existence of the rights claimed under Community law . It follows
that a court which in those circumstances would grant interim relief, if it were not for a rule of
national law, is obliged to set aside that rule.
………………………………

23. … Community law must be interpreted as meaning that a national court which, in a case
before it concerning community law, considers that the sole obstacle which precludes it from
granting interim relief is a rule of national law must set aside that rule.’

 Summarising the position so far

Case C-432/05 Unibet [2007] ECR I-2271

37     … according to settled case-law, the principle of effective judicial protection is a general
principle of Community law stemming from the constitutional traditions common to the
Member States, which has been enshrined in Articles 6 and 13 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms (Case 222/84 Johnston

72
[1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR
4097, paragraph 14; Case C-424/99 Commission v Austria [2001] ECR I-9285, paragraph 45;
Case C-50/00 P UPA [2002] ECR I-6677, paragraph 39; and Case C-467/01 Eribrand [2003]
ECR I-6471, paragraph 61) and which has also been reaffirmed by Article 47 of the Charter of
fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice…

38      Under the principle of cooperation laid down in Article 10 EC, it is for the Member
States to ensure judicial protection of an individual’s rights under Community law (see, to that
effect, Case 33/76 Rewe, [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR
2043, paragraph 12; Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 22; Case
C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 19; and Case C-312/93
Peterbroeck [1995] ECR I-4599, paragraph 12).

39      It is also to be noted that, in the absence of Community rules governing the matter, it is
for the domestic legal system of each Member State to designate the courts and tribunals
having jurisdiction and to lay down the detailed procedural rules governing actions for
safeguarding rights which individuals derive from Community law (see, inter alia, Rewe,
paragraph 5; Comet, paragraph 13; Peterbroeck, paragraph 12; Case C-453/99 Courage and
Crehan [2001] ECR I-6297, paragraph 29; and Case C-13/01 Safalero [2003] ECR I-8679,
paragraph 49).

40      Although the EC Treaty has made it possible in a number of instances for private
persons to bring a direct action, where appropriate, before the Community Court, it was not
intended to create new remedies in the national courts to ensure the observance of
Community law other than those already laid down by national law (Case 158/80 Rewe [1981]
ECR 1805, paragraph 44).

41      It would be otherwise only if it were apparent from the overall scheme of the national
legal system in question that no legal remedy existed which made it possible to ensure, even
indirectly, respect for an individual’s rights under Community law (see, to that effect, Case
33/76 Rewe, paragraph 5; Comet, paragraph 16; and Factortame, paragraphs 19 to 23).

42      Thus, while it is, in principle, for national law to determine an individual’s standing and
legal interest in bringing proceedings, Community law nevertheless requires that the national
legislation does not undermine the right to effective judicial protection (see, inter alia, Joined
Cases C-87/90 to C-89/90 Verholen and Others [1991] ECR I-3757, paragraph 24, and
Safalero, paragraph 50). It is for the Member States to establish a system of legal remedies
and procedures which ensure respect for that right (Unión de Pequeños Agricultores v
Council, paragraph 41).

43      In that regard, the detailed procedural rules governing actions for safeguarding an
individual’s rights under Community law must be no less favourable than those governing
similar domestic actions (principle of equivalence) and must not render practically impossible
or excessively difficult the exercise of rights conferred by Community law (principle of
effectiveness) (see, inter alia, Case 33/76 Rewe, paragraph 5; Comet, paragraphs 13 to 16;
Peterbroeck, paragraph 12; Courage and Crehan, paragraph 29; Eribrand, paragraph 62; and
Safalero, paragraph 49).

44      Moreover, it is for the national courts to interpret the procedural rules governing actions
brought before them, such as the requirement for there to be a specific legal relationship
between the applicant and the State, in such a way as to enable those rules, wherever
possible, to be implemented in such a manner as to contribute to the attainment of the
objective, referred to at paragraph 37 above, of ensuring effective judicial protection of an
individual’s rights under Community law.

 The notion of liability for illegal acts

Article 340(2) TFEU

In the case of non-contractual liability, the Union shall, in accordance with the general

73
principles common to the laws of the Member States, make good any damage caused by its
institutions or by its servants in the performance of their duties.

Case 5/71 Aktien-Zuckerfabrik Schoeppenstedt v Council [1971] ECR 975:

‘11. In the present case the non-contractual liability of the Community presupposes at
the very least the unlawful nature of the act alleged to the cause of the damage,
where legislative action involving measures of economic policy is concerned, the
Community does not incur noncontractual liability for damage suffered by individuals
as a consequence of that action, …, unless a sufficient flagrant violation of a superior
rule of law for the protection of the individual has occurred.

 The introduction of the principle of State liability

Cases C-6/90 and C-9/90 Francovich and Bonifaci v. Italy [1991] ECR I-5357.

33. The full effectiveness of Community rules would be impaired and the protection of the
rights which they grant would be weakened if individuals were unable to obtain redress when
their rights are infringed by a breach of Community law for which a member State can be held
responsible.

34. The possibility of obtaining redress from the Member State is particularly indispensable
where, as in this case, the full effectiveness of Community rules is subject to prior action on
the part of the state and where, consequently, in the absence of such action, individuals
cannot enforce before the national Courts the rights conferred upon them by Community law.

35. It follows that the principle whereby a state must be liable for loss and damage caused to
individuals as a result of breaches of Community law for which the state can be held
responsible is inherent in the system of the Treaty.

36. A further basis for the obligation of Member States to make good such loss and damage
is to be found in article [10] of the Treaty, under which the Member States are required to take
all appropriate measures, whether general or particular, to ensure fulfilment of their
obligations under Community law. Among these is the obligation to nullify the unlawful
consequences of a breach of Community law …

37. It follows from the foregoing that it is a principle of Community law that the Member States
are obliged to make good loss and damage caused to individuals by breaches of Community
law for which they can be held responsible.

38. Although State liability is thus required by Community law, the conditions under which that
liability gives rise to a right to reparation depend on the nature of the breach of community law
giving rise to the loss and damage.

 Substantive conditions

39 Where, as in this case, a Member State fails to fulfil its obligation under the third
paragraph of Article 189 of the Treaty to take all the measures necessary to achieve the
result prescribed by a directive, the full effectiveness of that rule of Community law
requires that there should be a right to reparation provided that three conditions are
fulfilled.
40 The first of those conditions is that the result prescribed by the directive should entail
the grant of rights to individuals. The second condition is that it should be possible to
identify the content of those rights on the basis of the provisions of the directive. Finally,
the third condition is the existence of a causal link between the breach of the State' s
obligation and the loss and damage suffered by the injured parties.
41 Those conditions are sufficient to give rise to a right on the part of individuals to obtain
reparation, a right founded directly on Community law.

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  Which violations?

Joined Cases C-46/93 and 48/93 Brasserie du Pecheur SA v Germany and R v Secretary for
Transport, ex parte Factortame Ltd and Others [Factortame III] [1996] ECR I-1029:

32. [The] principle [of State liability in damages] holds good for any case in which a Member
State breaches Community law, whatever be the organ of the State whose act or omission
was responsible for the breach

 Which organs of the State?

*Case C-224/01 Gerhard Koebler v Austria, [2003] ECR I-10239.

33. In the light of the essential role played by the judiciary in the protection of the rights
derived by individuals from [EU] rules, the full effectiveness of those rules would be called in
question and the protection of those rights would be weakened if individuals were precluded
from being able, under certain conditions, to obtain reparation when their rights are affected
by an infringement of [EU] law attributable to a decision of a court of a Member State
adjudicating at last instance. …

36. Consequently, it follows from the requirements inherent in the protection of the rights of
individuals relying on [EU] law that they must have the possibility of obtaining redress in the
national courts for the damage caused by the infringement of those rights owing to a decision
of a court adjudicating at last instance.

Case C-17303 Traghetti del Mediterraneo v Italy [2006 ECR I-5177

 What is a ‘sufficiently serious breach’?

Joined Cases C-46/93 and 48/93 Brasserie du Pecheur and Factortame III:
47 … where a Member State acts in a field where it has a wide discretion, comparable to
that of the Community institutions in implementing Community policies, the conditions
under which it may incur liability must, in principle, be the same as those under which the
Community institutions incur liability in a comparable situation.
……………………….
51 In such circumstances, Community law confers a right to reparation where three
conditions are met: the rule of law infringed must be intended to confer rights on
individuals; the breach must be sufficiently serious; and there must be a direct causal link
between the breach of the obligation resting on the State and the damage sustained by
the injured parties.
………………………..
55 … as regards both Community liability under Article [288] and Member State liability
for breaches of Community law, the decisive test for finding that a breach of Community
law is sufficiently serious is whether the Member State or the Community institution
concerned manifestly and gravely disregarded the limits on its discretion.

56 The factors which the competent court may take into consideration include the clarity
and precision of the rule breached, the measure of discretion left by that rule to the
national or Community authorities, whether the infringement and the damage caused was
intentional or involuntary, whether any error of law was excusable or inexcusable, the fact
that the position taken by a Community institution may have contributed towards the
omission, and the adoption or retention of national measures or practices contrary to
Community law.

75
57 On any view, a breach of Community law will clearly be sufficiently serious if it has
persisted despite a judgment finding the infringement in question to be established, or a
preliminary ruling or settled case-law of the Court on the matter from which it is clear that
the conduct in question constituted an infringement.

Joined Cases C-178, 179, 188, 189, 190/94 Dillenkofer and other v. Germany [1996] ECR
I-4845:
23 ‘In substance, the conditions laid down in [Factortame/Brasserie] are the same [as in
Francovich], since the condition that there should be a sufficiently serious breach, although
not expressly mentioned in Francovich, was nevertheless evident from the circumstances of
that case.

24 When the Court held that the conditions under which State liability gives rise to a right to
reparation depended on the nature of the breach of [EU] law causing the damage, that meant
that those conditions are to be applied according to each type of situation.

Case C-352/98 Bergaderm [2000] ECR I-5291 (extract in Craig and De Burca, p. 562)

43 ‘…as regards both [EU] liability under Article [340]… and Member State liability for
breaches of [EU] law, the decisive test for finding that a breach of [EU] law is sufficiently
serious is whether the Member State or the [EU] institution concerned manifestly and gravely
disregarded the limits of its discretion.

 The role of national courts and national law

Cases C-6/90 and C-9/90 Francovich

42. … In the absence of [EU] legislation, it is for the internal legal order of each
Member State to designate the competent courts and lay down the detailed
procedural rules for legal proceedings intended fully to safeguard the rights which
individuals derive from [EU] law …

’43. … the substantive and procedural conditions for reparation of loss and damage
laid down by the national law of the Member States must not be less favourable than
those relating to similar domestic claims and must not be so framed as to make it
virtually impossible or excessively difficult to obtain reparation.’

R. v Secretary of State for Transport, Ex parte Factortame Ltd. and Others, judgment of the
House of Lords, [2000] 1 A.C. 524, [1999] 3 C.M.L.R. 597.

 What happens in practice?

Case C-392/93 [1996] R v. HM Treasury ex parte British Telecommunications plc [1996]

ECR I-1631

Case C-5/94 R v. Ministry of Agriculture, Fisheries and Food ex parte Hedley Lomas
(Ireland) Ltd [1996] ECR I-2553.

Joined Cases C-283, 291 and 292/94 Denkavit International v Buendesamt fuer FInanzen
[1996] ECR I-5063.

 Which response by national courts?

R. v Secretary of State for Transport, Ex parte Factortame Ltd. and Others, judgment of
the House of Lords, [2000] 1 A.C. 524, [1999] 3 C.M.L.R. 597.

Further Reading:

76
Davies, A., “State Liability for Judicial Decisions in European Union and International Law”
(2012) 61 ICLQ 585
Dougan, M., 'The Vicissitudes of Life at the Coalface: Remedies and Procedures for
Enforcing Union Law before the National Courts' in G. De Búrca and P Craig (eds),
The Evolution of EU Law (2nd ed., 2011 OUP) 407
Granger, ‘National applications of Francovich and the construction of a European
administrative jus commune’, (2007) 32 ELRev 157.
Nassimpian, D., ‘… And we keep on meeting: (de-)fragmenting state liability’, (2008) 32
ELRev 819.
Varga, 'National remedies in the case of violation of EU law by Member State courts' (2017)
54 CMLRev 51
Wakefield, J., 'Retrench and Reform: The Action for Damages', (2009) 28 YEL 390
Beutler, ‘State Liability for Breaches of Community Law by National Courts: Is the
Requirement of a Manifest Infringement of the Applicable Law and Insurmountable
Obstacle?’ (2009) 46 CMLRev 773
Anagnostaras ‘Erroneous Judgments and the Prospect of Damages: the scope of the
Principle of Governmental Liability for Judicial Breaches’, (2006) 31 ELRev 735.
Dougan, National Remedies before the Court of Justice (2004)
Tridimas ‘Liability for Breach of Community Law: Growing Up and Mellowing Down?’ 38
(2001) CMLRev 301.
Lock, T., ‘Is private enforcement of EU law through State liability a myth? An assessment 20
years after Francovich’, (2012) 49 CMLRev 1675.

Lecture 8 Enforcement Proceedings Art. 258-260

TFEU
MAIN READING

Craig and de Burca, Ch. 12.

 The jurisdiction of the Court of Justice

Article 258 TFEU

‘If the Commission considers that a Member State has failed to fulfill an obligation under the
Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned an
opportunity to submit its observations.

77
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.’

 The objective nature of the procedure

Case 416/85 Commission v UK [1988] ECR 3127:

9 … In the context of the balance of powers between the institutions laid down in the Treaty, it
is not for the Court to consider what objectives are pursued in an action brought under Article
[226] of the Treaty. Its role is to decide whether or not the Member State in question has
failed to fulfil its obligation as alleged. … an action against a Member State for failure to fulfil
its obligations, the bringing of which is a matter for the Commission in its entire discretion, is
objective in nature.

 The scope of Art. 258 TFEU

Case 77/69 Commission v Belgium (re: timber tax) [1970] ECR 237:

‘whatever the organ of the state whose action or inaction constitutes a failure [to fulfill and EU
law obligation], even if it concerns an institution which is constitutionally independent.’

Case 265/95 Commission v France (re: blockades) [1997] ECR I-6959

 National courts too?

Case C-129/00 Commission v Italy [2003] ECR I- 14637

See also Case 30/77 R. v Bouchereau [1977] ECR 1999, the Opinion of AG Warner.

 The administrative stage

- Case C-494/01 Commission v Ireland [2005] ECR I-3331:

198    …. the Member States are required to cooperate in good faith with the inquiries of the
Commission pursuant to Article 226 EC, and to provide the Commission with all the
information requested for that purpose

Case C-96/89 Commission v Netherlands [1991] ECR 2461.

16 It is true that in certain cases the excessive duration of the pre-litigation procedure laid
down by Article [226] is capable of making it more difficult for the Member State concerned to
refute the Commission' s arguments and of thus infringing the rights of the defence. However,
in the instant case, the Netherlands Government has not proved that the unusual length of the
procedure had any effect on the way in which it conducted its defence.

- Case C-350/02 Commission v. Netherlands [2004] ECR I-6213

20. … the subject-matter of proceedings under Article 226 EC is delimited by the pre-
litigation procedure governed by that provision. The Commission’s reasoned opinion and
the application must be based on the same grounds and pleas, with the result that the
Court cannot examine a ground of complaint which was not formulated in the reasoned
opinion (Case 76/86 Commission v Germany [1989] ECR 1021, paragraph 8).

 The judicial stage

Joined Cases C-142-3/80 Amministrazione della Finanze v Essevi Spa [1981] ECR 1413:

18. … opinions delivered by the Commission pursuant to Article [258] have legal effect only in

78
relation to the commencement of proceedings before the Court against a State alleged to
have failed to fulfill its obligations under the Treaty… the Commission may not, by adopting
an attitude in the context of that procedure, release a Member State from its obligations or
impair rights which individuals derive from the Treaty.

 The Commission’s discretion

Case 7/71 Commission v France (re: Euratom) [1971] ECR 1003:

5. The action for a declaration that a State has failed to fulfil an obligation … does not
have to be brought within a predetermined period, since, by reason of its nature and
its purpose, this procedure involves a power on the part of the Commission to
consider the most appropriate means and time-limits for the purposes of putting an
end to any contraventions of the Treaty.

6. The fact that the Commission only commenced its action after a lengthy period of
time cannot have the effect of regularizing a continuing contravention.

Case 416/85 Commission v UK [1988] ECR 3127:

9 … In the context of the balance of powers between the institutions laid down in the
Treaty, it is not for the Court to consider what objectives are pursued in an action
brought under Article [226] of the Treaty. Its role is to decide whether or not the
Member State in question has failed to fulfil its obligation as alleged. … an action
against a Member State for failure to fulfil its obligations, the bringing of which is a
matter for the Commission in its entire discretion, is objective in nature.

Case 7/68 Commission v Italy [1968] ECR 423:

‘It is for the Commission, under [Art. 258 TFEU], to judge at what time it shall bring an
action before the Court; the considerations which determine its choice of time cannot
affect the admissibility of the action, which follows only objective rules.’

Case C-74/82 Commission v Ireland [1984] ECR 317:

‘…it is indeed unreasonable … to allow a Member State five days to amend

legislation which has been applied for more than 40 years and which, moreover, has
not given rise to any action on the part of the Commission over the period which has
elapsed since the accession of the Member State in question.…’

 The reasoned opinion

Case 7/61 Commission v Italy (re: ban on pork imports) [1961] ECR 317.

The Opinion referred to in Article [226] of the Treaty must be considered to contain a sufficient
statement of reasons to satisfy the law when it contains … a coherent statement of the
reasons which let the Commission to believe that the State in question has failed to fulfil an
obligation under the Treaty.

- Case 48/65 Lütticke v Commission [1966] ECR 19.

The part of the procedure which precedes reference of the matter to the Court constitutes an
administrative stage intended to give the Member State concerned the opportunity of
conforming with the Treaty. During this stage, the Commission makes known its view by way
of an opinion only after giving the Member State concerned the opportunity to submit its
observations.

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No measure taken by the Commission during this stage has any binding force. Consequently,
an application for the annulment of the measure by which the Commission arrived at a
decision on the application is inadmissible.

 Defences by Member States

- practical arguments:

Case 167/73 Commission v France (re: French merchant seamen) [1974] ECR 359.

- Internal difficulties

Case C-265/95 Commission v France (re: blockades) [1997] ECR I-6959:

56 It is for the Member State concerned, unless it can show that action on its part would
have consequences for public order with which it could not cope by using the means at its
disposal, to adopt all appropriate measures to guarantee the full scope and effect of [EU]
law so as to ensure its proper implementation in the interests of all economic operators. ...
65. ... the French Government has manifestly and persistently abstained from adopting the
appropriate and adequate measures to put an end to the acts of vandalism which jeopardize
the free movement on its territory of certain agricultural products originating in other Member
states and to prevent the recurrence of such acts”.

Case C-191/95 Commission v Germany (re: annual accounts) [1998] ECR I-5449:

68 … the lack of appropriate penalties cannot be justified by the fact that, because of the
large numbers involved, application of such penalties to all companies that do not publish
their accounts would create considerable difficulties for the German administrative authorities
which would be disproportionate to the aim pursued by the [EU] legislature.

- unintentional violation

Case C-385/02 Commission v Italy [2004] ECR I-8121

40’…the admissibility of an action based on [Art 258 TFEU] depends only on an objective
finding of a failure to fulfil obligations and not proof of any inertia or opposition on the part of
the Member State concerned.’

- alleged illegality of EU law

Case 226/87 Commission v Greece [1988] ECR 3611

14’…In the absence of a provision of the Treaty expressly permitting to do so, a Member
State cannot … plead the unlawfulness of a decision addressed to it as a defence in an action
for a declaration that it has failed to fulfil its obligations arising out of its failure to implement
that decision.’

 Involvement of citizens as complainants

Case 247/87 Star Fruit v Commission [1989] ECR 291

11. ‘It is clear from the scheme of [Art. 258 TFEU] that the Commission is not bound
to commence the proceedings provided for in that provision but in this regard has a
discretion which excludes the right for individuals to require that institution to adopt a
specific position.’

 Art. 259 TFEU

80
A Member State which considers that another Member State has failed to fulfil an obligation
under this Treaty may bring the matter before the Court of Justice.

Before a Member State brings an action against another Member State for an alleged
infringement of an obligation under this Treaty, 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 of Justice’.

Case C-145/04 Spain v UK [2006] ECR I-7917

 The effect of the Court’s ruling

Article 260(1) TFEU

‘If the Court of Justice of the European Union finds that a Member State has failed to fulfill an
obligation under the Treaties, the State shall be required to take the necessary measures to
comply with the judgment of the Court.’

Joined Cases 314-6/81 and 83/82 Procureur de la Republique v Waterkeyn [1982] ECR 4337:

“16. [I]f the Court finds in proceedings under [Art. 258 TFEU] that a Member State’s
legislation is incompatible with the obligations which it has under the Treaty, the
courts of that State are bound by virtue of [Art. 258] to draw the necessary inferences
from the judgment of the Court. However, it should be understood that the rights
accruing to individuals derive, not from that judgment, but from the actual provisions
of [EU] law having direct effect in the internal legal order”.

Case C-503/04 Commission v Germany, [2007] ECR-I 6153:

‘36. … even if it were to be accepted that the principles of legal certainty and of the
protection of legitimate expectations, the principle pacta sunt servanda and the right
to property could be used against the contracting authority by the other party to the
contract in the event of rescission, Member states cannot rely thereon to justify the
non-implementation of a judgment establishing a failure to fulfil obligations under [Art.
258 TFEU] and thereby evade their own liability under [EU] law.’

 Sanctions for non-compliance

Art. 260(2) TFEU

‘2. If the Commission considers that the Member State concerned has not taken the
necessary measures to comply with the judgment of the Court, it may bring the case before
the Court after giving that State the opportunity to submit its observations. It shall specify the
amount of the lump sum or penalty payment to be paid by the Member State concerned which
it considers appropriate in the circumstances.

If the Court finds that the Member State concerned has not complied with its judgment it may
impose a lump sum or penalty payment on it.

This procedure shall be without prejudice to Article 259.

Article 260 (3) TFEU (added at Lisbon)

81
3. When the Commission brings a case before the Court pursuant to Article 258 on the
grounds that the Member State concerned has failed to fulfil its obligation to notify measures
transposing a directive adopted under a legislative procedure, it may, when it deems
appropriate, specify the amount of the lump sum or penalty payment to be paid by the
Member State concerned which it considers appropriate in the circumstances.

If the Court finds that there is an infringement it may impose a lump sum or penalty payment
on the Member State concerned not exceeding the amount specified by the Commission. The
payment obligation shall take effect on the date set by the Court in its judgment.

See: Communication by the Commission on the Implementation of Article 260(3) TFEU, SEC
(2010) 1371 final.

 How are the sanctions determined?

Commission Communication SEC (2005)1658 on the Application of [Art. 260 TFEU (then Art.
228 ECT)]
(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005SC1658:EN:HTML), as
amended regularly in order to update the data used to calculate lump sum and penalty
payments to be proposed to the Court of Justice).

These documents set out the ‘general principles’ as well as more detailed calculations for the
fixing of sanctions. The Commission considers that:

‘6. The fixing of the sanction must be based on the objective of the measure itself, that is to
ensure effective application of [EU] law. The Commission considers the calculation should be
based on three fundamental criteria:
- the seriousness of the infringement,
- its duration,
- the need to ensure that the penalty itself is a deterrent to further infringements.’

 Who decides whether a judgment has been complied with?

- Case C-70/06 Commission v Portugal [2008] ECR I-1

Case C-292/11 P Commission v Portugal ECLI:EU:C:2014:3:

50. The Court of Justice thus enjoys, in this regard, exclusive jurisdiction which is directly and
expressly conferred on it by the Treaty and on which the Commission cannot encroach when
checking whether there has been compliance with a judgment delivered by the Court of
Justice pursuant to Article 260(2) TFEU.

51. Likewise, as it correctly pointed out in paragraph 90 of the judgment under appeal, the
General Court also cannot itself give a ruling on the Commission’s assessment as to whether
compliance with a judgment establishing a failure to fulfil obligations can be achieved through
a national practice or national legislation which has not previously been examined by the
Court of Justice. Were it to do so, the General Court would, inevitably, be required to make a
ruling as to whether that practice or national legislation complied with European Union law,
thereby encroaching on the exclusive jurisdiction of the Court of Justice in that regard.

52  It follows that, in the case where, in the context of verification of compliance with a
judgment delivered by the Court of Justice pursuant to Article 260 TFEU, a difference arises
between the Commission and the Member State concerned as to whether national legislation
or a national practice which the Court of Justice has not examined beforehand is appropriate
for ensuring compliance with that judgment, the Commission cannot, by adopting a decision,
resolve such a difference itself and draw from this the necessary inferences for the calculation
of the penalty payment.

82
 How are the sanctions applied?

Case C-387/97 Commission v Greece (re: toxic waste) [2000] ECR I-5047:

“89. It should be stressed that these suggestions of the Commission cannot bind the
Court. It is expressly stated in the third paragraph of [Art. 260(2) TFEU] that the Court, if it
'finds that the Member State concerned has not complied with its judgment ... may impose a
lump sum or a penalty payment on it. However, the suggestions are a useful point of
reference.

90. First, since the principal aim of penalty payments is that the Member State should remedy
the breach of obligations as soon as possible, a penalty payment must be set that will be
appropriate to the circumstances and proportionate both to the breach which has been
found and to the ability to pay of the Member State concerned.

91. Second, the degree of urgency that the Member State concerned should fulfil its
obligations may vary in accordance with the breach.

92. In that light, and as the Commission has suggested, the basic criteria which must be
taken into account in order to ensure that penalty payments have coercive force and [EU] law
is applied uniformly and effectively are, in principle, the duration of the infringement, its
degree of seriousness and the ability of the Member State to pay. In applying those
criteria, regard should be had in particular to the effects of failure to comply on private and
public interests and to the urgency of getting the Member State concerned to fulfil its
obligations.”

Case C-304/02 Commission v France (re: fisheries) [2005] ECR I-6263:

80. The procedure laid down by [Art. 260(2) TFEU] has the objective of inducing a
defaulting Member State to comply with a judgment establishing a breach of obligations
and thereby of ensuring that [EU] law is in fact applied. The measures provided for by
that provision, namely a lump sum and a penalty payment are both intended to achieve
this objective.

81. … While the imposition of a penalty payment seems particularly suited to inducing a
member State to put an end as soon as possible to a breach of obligations which, in the
absence of such a measure, would tend to persist, the imposition of a lump sum is
based more on assessment of the effects on public and private interests of the failure of
the Member State concerned to comply with its obligations, in particular where the
breach has persisted for a long period since the judgment which initially established it.
82. … recourse to both types of penalty provided for in [Art. 260(2) TFEU] is not
precluded, in particular where the breach of obligations both has continued for a long
period and is inclined to persist.

- Communication by the Commission on the Implementation of Article 260(3) TFEU,

[2011] OJ C 12/1.

 An annual overview of Commission’s practice

- COM(2017) 370 final Report from the Commission - Monitoring the application of
European Union law - 2016 Annual Report (Brussels, 6.7.2017) (http://eur-
lex.europa.eu/legal-content/EN/TXT/?
qid=1502059860470&uri=CELEX:52017DC0370)

Further reading

Jack, B., ‘Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of
Judgments?’, (2013) 19 ELJ 404.
P Wenneras, ‘Sanctions against Member States under Article 260 TFEU: Alive, but not

83
 Kicking?’ 49 CMLRev (2012) 145.
Kilbey, 'Financial Penalties under Art 228(2) EC: Excessive Complexity' (2007) 43 CMLRev
743.
Bonnie, ‘Commission discretion under Article 171 (2) EC’ (1998) 23 ELRev, 537
European Ombudsman, Annual Report:
http://www.ombudsman.europa.eu/activities/annualreports.faces
(A long document only parts of which are relevant for Art. 258 TFEU)
Harlow and Rawlings, ‘Accountability and Law Enforcement: The Centralized EU Infringement
Procedure’, (2006) 31 ELRev 447.
Wenneras, ‘A New Dawn for Commission Enforcement under Arts 226 and 228 EC: General
and Persistent (GAP) Infringements, Lump Sums, and Penalty Payments’, (2006) 43
CMLRev 31.
Taborowski, M., ‘Infringement proceedings and non-compliant national courts’, (2012) 49
CMLRev 1881

84
LECTURE 9 Preliminary references – Art 267
TFEU
MAIN READING

Craig and de Burca, Ch. 13.

 Article 267 TFEU:

The Court of Justice of the European Union shall have jurisdiction to give preliminary
rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the
Union;

Where such a question is raised before any court or tribunal of a Member State, that court or
tribunal may, if it considers that a decision on the question is necessary to enable it to give
judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member
State against whose decisions there is no judicial remedy under national law, that court or
tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State
with regard to a person in custody, the Court of Justice of the European Union shall act with
the minimum of delay.

Case 35/76 Simmenthal v Ministero delle Finanze [1976] ECR 1871:

4. Article [267 TFEU] is based on a distinct separation of functions between national

courts and tribunals on the one hand and the Court of Justice on the other hand and it
does not give the Court jurisdiction to take cognizance of the facts of the case, or to
criticize the reasons for the reference.

The Court is entitled to pronounce on the interpretation of the Treaty and of acts of
the institutions but cannot apply them to the case in question since such application
falls within the jurisdiction of the national court.

 Which questions may be referred pursuant to Article 267 TFEU?

Joined Cases C-297/88 and C-197/89 Drodzi v Belgium [1990] ECR I-3763.

“36 It does not appear either from the wording of Article [267 TFEU] or from the aim
of the procedure introduced by that article that the authors of the Treaty intended to
exclude from the jurisdiction of the Court requests for a preliminary ruling on a
Community provision in the specific case where the national law of a Member State
refers to the content of that provision in order to determine rules applicable to a
situation which is purely internal to that State.

37. On the contrary, it is manifestly in the interest of the Community legal order that,
in order to forestall future differences of interpretation, every Community provision
should be given a uniform interpretation irrespective of the circumstances in which it
is to be applied .

85
 38. Since the jurisdiction of the Court under Article [267 TFEU] is designed to ensure
uniform interpretation in all Member States of the provisions of Community law, the
Court merely deduces from the letter and the spirit of those provisions the meaning of
the Community rules at issue . Thereafter it is for the national courts alone to apply
the Community provisions thus interpreted in the light of the factual and legal
circumstances of the case before them.

39. Consequently, in accordance with the division of judicial tasks between the
national courts and the Court of Justice pursuant to Article [267 TFEU], the Court
gives its preliminary ruling without, in principle, having to look into the circumstances
in which the national courts were prompted to submit the questions and envisage
applying the provision of Community law which they have asked the Court to
interpret.

40. The matter would be different only if it were apparent either that the procedure
provided for in Article [267 TFEU] had been diverted from its true purpose and sought
in fact to lead the Court to give a ruling by means of a contrived dispute, or that the
provision of Community law referred to the Court for interpretation was manifestly
incapable of applying”.

Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen

Amsterdam 2 [1997] ECR I-4161:

“32. In those circumstances, where in regulating internal situations, domestic

legislation adopts the same solutions as those adopted in Community law in order, in
particular, to avoid discrimination against foreign nationals or, as in the case before
the national court, any distortion of competition, it is clearly in the Community interest
that, in order to forestall future differences of interpretation, provisions or concepts
taken from Community law should be interpreted uniformly, irrespective of the
circumstances in which they are to apply”.

 Which questions may not be referred?

- Article 275 TFEU

The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty
on European Union and to rule on proceedings, brought in accordance with the conditions laid
down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions
providing for restrictive measures against natural or legal persons adopted by the Council on
the basis of Chapter 2 of Title V of the Treaty on European Union.

- Article 276 TFEU

In exercising its powers regarding the provisions of Chapters 4 and 5 of Title V of Part Three
relating to the area of freedom, security and justice, the Court of Justice of the European
Union shall have no jurisdiction to review the validity or proportionality of operations carried
out by the police or other law-enforcement services of a Member State or the exercise of the
responsibilities incumbent upon Member States with regard to the maintenance of law and
order and the safeguarding of internal security.

 What is “a court or tribunal” pursuant to Article 267 TFEU?

Case 246/80 Broekmeulen v Huisarts Registratie Commissie [1981] ECR 2311.

Case 14/86 Pretore di Salo v Persons Unkown [1987] ECR 2445.

86
Case 102/81 Nordsee v Reederei Mond [1982] ECR 1095.

Case C-54/96 Dorsch Consult [1997] ECR I-4961:

“23. In order to determine whether a body making a reference is a court or tribunal for
the purposes of Article [267 TFEU] , which is a question governed by Community law
alone, the Court takes account of a number of factors, 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 ...”.

Case C-53/03 SYFAIT et als v GlaxoSmithKline plc [2005] ECR I-4609.

Further reading:
Editorial: ‘Goldilocks Europe’ (2011) 34(4) European Law Review 455

 What is the scope of the discretion conferred by Article 267 (2) TFEU ?

Case 166/73 Rheinmuehlen v Einfuhr-und Vorratsstelle Getreide [1974] ECR 33.

‘4…. national courts have the widest discretion in referring matters to the Court of
Justice if they consider that a case pending before them raises questions involving
interpretation, or consideration of the validity, of provisions of Community law,
necessitating a decision on their part. It follows from these factors that a rule of
national law whereby a court is bound on points of law by the rulings of a superior
court cannot deprive the inferior courts of their power to refer to the Court questions
of interpretation of Community law involving such rulings. It would be otherwise if the
questions put by the inferior court were substantially the same as questions already
put by the superior court. On the other hand, the inferior court must be free, if it
considers that the ruling on law made by the superior court could lead it to give a
judgment contrary to Community law, to refer to the Court questions which concern it.
If inferior courts were bound without being able to refer matters to the Court, the
jurisdiction of the latter to give preliminary rulings and the application of Community
law at all levels of the judicial systems of the Member States would be compromised.

- Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland [1981] ECR
735:

“6. The need to provide an interpretation of Community law which will be of use to the
national court makes it essential ... to define the legal context in which the
interpretation requested should be placed. From that aspect it might be convenient, in
certain circumstances, for the facts of the case to be established and for questions of
purely national law to be settled at the time the reference is made to the Court of
Justice so as to enable the latter to take cognizance of all the features of fact and of
law which may be relevant to the interpretation of Community law which it is called
upon to give.

7. However, those considerations do not in any way restrict the discretion of the
national court, which alone has a direct knowledge of the facts of the case and of the
arguments of the parties, which will have to take responsibility for giving judgment in
the case and which is therefore in the best position to appreciate at what stage in the
proceedings it requires a preliminary ruling from the Court of Justice.

8. Hence it is clear that the national court’s decision when to make a reference under
Article [234] must be dictated by considerations of procedural organization and
efficiency to be weighted by that court”.

- Case C-173/09 Georgi Ivnov Elchinov ECLI:EU:C:2010:581:

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 30. ... the national court, having exercised the discretion conferred on it by the second
paragraph of Article 267 TFEU, is bound, for the purposes of the decision to be given
in the main proceedings, by the interpretation of the provisions at issue given by the
Court and must, if necessary, disregard the rulings of the higher court if it considers,
having regard to that interpretation, that they are not consistent with European Union
law.

- Case 194/79 Pasquale Foglia v Mariella Novello [1980] ECR 745.

‘11. The duty of the Court of Justice under Article [267 TFEU] is to supply all courts in
the Community with the information on the interpretation of Community law which is
necessary to enable them to settle genuine disputes which are brought before them.
A situation in which the Court was obliged by the expedient of arrangements like
those described above to give rulings would jeopardize the whole system of legal
remedies available to private individuals to enable them to protect themselves against
tac provisions which are contrary to the Treaty.

- Case 244/80 Pasquale Foglia v Mariella Novello (No 2) [1981] ECR 3045:

Whilst, according to the intended role of Article [267 TFEU], an assessment of the
need to obtain an answer to the questions of interpretation raised, regard being had
to the circumstances of fact and law involved in the main action, is a matter for the
national court it is nevertheless for the Court of justice, in order to confirm its own
jurisdiction, to examine, where necessary, the conditions in which the case has been
referred to it by the national court.

- Case C-83/91 Weinand Meilicke v ADV/ORGA F.A. Meyer AG [1992] ECR I-4871.

- Joined Cases C-320-2/90 Telemarsicabruzzo SpA and others v Circostel and others
[1993] ECR I-393.

5 It must be pointed out that the need to provide an interpretation of Community law
which will be of use to the national court makes it necessary that the national court
define the factual and legislative context of the questions it is asking or, at the very
least, explain the factual circumstances on which those questions are based. ….

8 Although the Court has been provided with some information by the file submitted
by the national court and the written observations, as is clear from the Report for the
Hearing, and by the oral observations of the parties at the hearing, that information is
fragmentary and does not enable the Court, in the absence of adequate knowledge of
the facts underlying the main proceedings, to interpret the Community competition
rules in the light of the situation at issue, as it has been requested to do by the
national judge.

9 In those circumstances, there is no need to give a decision on the questions

submitted by the Vice Pretore of Frascati.

Case C-157/92 Pretore di Genova v Banchero [1993] ECR I-1085.

Case C-386/92 Monin Automobiles I [1993] ECR I-2049.

- A summary:

Case C-547/14 Philip Morris ECLI:EU:C:2016:325:

31. … it is solely for the national court before which the dispute has been brought,
and which must assume responsibility for the subsequent judicial decision, to
determine in the light of the particular circumstances of the case both the need for a
preliminary ruling in order to enable it to deliver judgment and the relevance of the
questions which it submits to the Court. Consequently, where the questions submitted

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 concern the interpretation or the validity of a rule of EU law, the Court is in principle
bound to give a ruling (judgment in Gauweiler and Others, C-62/14, EU:C:2015:400,
paragraph 24).

32      It follows that questions concerning EU law enjoy a presumption of relevance.

The Court may refuse to give a ruling on a question referred by a national court only
where it is quite obvious that the interpretation, or the determination of validity, of a
rule of EU law that is sought bears no relation to the facts of the main action or its
purpose, where the problem is hypothetical, or where the Court does not have before
it the factual or legal material necessary to give a useful answer to the questions
submitted to it (judgment in Gauweiler and Others, C-62/14, EU:C:2015:400,
paragraph 25).

 What does a preliminary reference look like?

Recommendations to national courts and tribunals, in relation to the initiation of preliminary

ruling proceedings [2016] OJ C 439/01 (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=OJ:C:2016:439:FULL).

 Which courts are under a duty to refer?

Case C-99/00 Lyckeskog [2002] ECR I-4839:

19. …. where the decisions of a national court or tribunal can be appealed to the supreme
court under conditions such as those that apply to decisions of the referring court in the
present case, that court or tribunal is not under the obligation referred to in the third
paragraph of Article [267 TFEU].

 What is the scope of the duty imposed under Article 267 (3) TFEU?

Case 107/76 Hoffmann-La Roche v Centrafarm [1977] ECR 957:

“5. In the context of Article [267 TFEU], whose purpose is to ensure that Community
law is interpreted and applied in a uniform manner in all the Member States, the
particular objective of the third paragraph is to prevent a body of national case-law
not in accord with the rules of Community law from coming into existence in any
Member State”.

- The principle of precedent (or acte éclairé)

Joined Cases 28-30/62 Da Costa [1963] ECR 31:

'13. Although the third paragraph of Article [167] unreservedly requires courts or
tribunals of a Member state against whose decisions there is no judicial remedy
under national law … to refer to the Court every question of interpretation raised
before them, the authority of an interpretation under Article [267] already given by the
Court may deprive the obligation of its purpose and thus empty it of its substance.
Such is the case especially when the question raised is materially identical with a
question which has already been the subject of a preliminary ruling in a similar case’.

Case 283/81 CILFIT [1982] ECR 3415:

14 The same effect, as regards the limits laid down by the third paragraph of Article
[267], may be produced where previous decisions of the Court have already dealt
with the point of law in question, irrespective of the nature of the proceedings which
led to those decisions, even though the questions at issue are not strictly identical.

- The acte clair principle

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Case 283/81 CILFIT [1982] ECR 3415:

‘16. … the correct application of Community law may be so obvious as to leave no

scope for any reasonable doubt as to the manner in which the question raised is to be
resolved. Before ti comes to the conclusion that such is the case, the national court or
tribunal must be convinced that the matter is equally obvious to the courts of the other
Member States and to the Court of Justice. Only if those conditions are satisfied, may
the national court or tribunal refrain from submitting the question to the Court of
Justice and take upon itself the responsibility for resolving it.

17. However, the existence of such a possibility must be assessed on the basis of the
characteristic features of Community law and the particular difficulties to which its
interpretation gives rise.

18 To begin with, it must be borne in mind that Community legislation is drafted in

several languages and that the different language versions are all equally authentic.
An interpretation of a provision of Community law thus involves a comparison of the
different language versions.

19 It must also be borne in mind, even where the different language versions are
entirely in accord with one another, that Community law uses terminology which is
peculiar to it. Furthermore, it must be emphasized that legal concepts do not
necessarily have the same meaning in Community law and in the law of the various
Member States.

20 Finally, every provision of Community law must be placed in its context and
interpreted in the light of the provisions of Community law as a whole, regard being
had to the objectives thereof and to its state of evolution at the date on which the
provision in question is to be applied.

Case C-160/14 da Silva e Brito and Others ECLI:EU:C:2015:565:

44      It follows that, in circumstances such as those of the case before the referring
court, which are characterised both by conflicting lines of case-law at national level
regarding the concept of a ‘transfer of a business’ within the meaning of Directive
2001/23 and by the fact that that concept frequently gives rise to difficulties of
interpretation in the various Member States, a national court or tribunal against whose
decisions there is no judicial remedy under national law must comply with its
obligation to make a reference to the Court, in order to avert the risk of an incorrect
interpretation of EU law.

Joined Cases C-72/14 X and C-197/14 Can Dijk EU:C:2015:564:

57      It must be borne in mind that it is solely for the national court before which the
dispute has been brought, and which must assume responsibility for the subsequent
judicial decision, to determine in the light of the particular circumstances of the case
both the need for a preliminary ruling in order to enable it to deliver judgment and the
relevance of the questions which it submits to the Court (judgment in Eon Aset
Menidjmunt, C-118/11, EU:C:2012:97, paragraph 76).
58      Moreover, the case-law as stated in Cilfit and Others  (283/81, EU:C:1982:335)
gives the national court sole responsibility for determining whether the correct
application of EU law is so obvious as to leave no scope for any reasonable doubt
and for deciding, as a result, to refrain from referring to the Court of Justice a
question concerning the interpretation of EU law which has been raised before it
(judgment in Intermodal Transports, C-495/03, EU:C:2005:552, paragraph 37 and the
case-law cited) and take upon itself the responsibility for resolving it (judgment
in Cilfit and Others, 283/81, EU:C:1982:335, paragraph 16).
59      It follows therefrom that it is for the national courts alone against whose
decisions there is no judicial remedy under national law, to take upon themselves

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 independently the responsibility for determining whether the case before them
involves an ‘acte clair’.
60      Thus, although in a situation such as that at issue in the main proceedings a
supreme court of a Member State must bear in mind in its assessment that a case is
pending in which a lower court has referred a question to the Court of Justice for a
preliminary ruling, that fact alone does not preclude the supreme court of a Member
State from concluding, from its examination of the case and in keeping with the
criteria laid down in the judgment in Cilfit and Others (283/81, EU:C:1982:335), that
the case before it involves an ‘acte clair’. 
61      Lastly, since the fact that a lower court has made a reference to the Court for a
preliminary ruling on the same legal issue as that raised before the national court
ruling at final instance does not in and of itself preclude the criteria laid down in the
judgment in Cilfit and Others (283/81, EU:C:1982:335) from being met, with the result
that the latter court might decide to refrain from making a reference to the Court and
resolve the question raised before it on its own, nor is the supreme national court
required to wait until the Court of Justice has given an answer to the question referred
for a preliminary ruling by the lower court.

 At the other end of the spectrum

Commissioners of Customs and Excise v Samex ApS [1983] 3 CMLR 194, 210-211,
per Bingham, J:

“Sitting as a judge in a national court, asked to decide questions of Community law, I

am very conscious of the advantages enjoyed by the Court of Justice. It has a
panoramic view of the Community and its institutions, a detailed knowledge of the
Treaties and of much subordinate legislation made under them, and an intimate
familiarity with the functioning of the Community market which no national judge
denied the collective experience of the Court of Justice could hope to achieve. Where
questions of administrative intention and practice arise the Court of Justice can
receive submissions from the Community institutions, as also where relations
between the Community and non-Member States are in issue. Where the interests of
Member States are affected they can intervene to make their views known ... Where
comparison falls to be made between Community texts in different languages, all
texts being equally authentic, the multinational Court of Justice is equipped to carry
out the task in a way which no national judge, whatever his linguistic skills, could rival.
The interpretation of Community instruments involves very often not the process
familiar to common lawyers of laboriously extracting the meaning from words used
but the more creative process of applying flesh to a spare and loosely constructed
skeleton. The choice between alternative submissions may turn not on purely legal
considerations, but on a broader view of what the orderly development of the
Community requires. These are matters which the Court of Justice is very much
better placed to assess and determine than a national court”.

 What is the effect of an Article 267 TFEU judgment?

Joined Cases C-231/06 to C-233/06 National Pensions Office v Jonkman and others, [2007]
ECR I-5149.

37 … under the principle of cooperation in good faith laid down in Article 10 EC, the
Member States are required to nullify the unlawful consequences of a breach of
Community law (Case C-201/02 Wells [2004] ECR I-723, paragraph 64, and the
case-law cited).

38 Therefore, following a judgment given by the Court on an order for reference from
which it is apparent that national legislation is incompatible with Community law, it is
for the authorities of the Member State concerned to take the general or particular
measures necessary to ensure that Community law is complied within that state (see,
to that effect, Wells, paragraphs 64 and 65, and Case C-495/00 Azienda Agricola
Giorgio, Giovanni e Luciano Visentin and Others [2004] ECR I-2993, paragraph 39).

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 While they retain the choice of the measures to be taken, those authorities must in
particular ensure that national law is changed so as to comply with Community law as
soon as possible and that the rights which individuals derive from Community law are
given full effect.

39 In addition, as the Court has repeatedly held in situations of discrimination contrary
to Community law, for as long as measures reinstating equal treatment have not been
adopted, observance of the principle of equality can be ensured only by granting to
persons within the disadvantaged category the same advantages as those enjoyed by
persons within the favoured category. In such a situation, a national court must set
aside any discriminatory provision of national law, without having to request or await
its prior removal by the legislature, and apply to members of the disadvantaged group
the same arrangements as those enjoyed by the persons in the other category (Case
C-408/92 Avdel Systems [1994] ECR I-4435, paragraphs 16 and 17; Case C-442/00
Rodríguez Caballero [2002] ECR I-11915, paragraphs 42 and 43, and Case C-81/05
Cordero Alonso [2006] ECR I-7569, paragraphs 45 and 46).

40      A Member State is, moreover, required to make reparation for loss and damage
caused to individuals as a result of breaches of Community law. Where the conditions
for State liability are fulfilled, it is for the national court to apply that principle (see,
inter alia, Case C-66/95 Sutton [1997] ECR I-2163, paragraph 35, and Case C-224/01
Köbler [2003] ECR I-10239, paragraphs 51 and 52).

 Preliminary rulings on validity

Case 314/85 Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199.

14. [National] courts may consider the validity of a Community act and, if they
consider that the grounds put forward before them by the parties in support of
invalidity are unfounded, they may reject them, concluding that the measure is
completely valid. By taking that action they are not calling the existence of the
Community measure into question.

15. On the other hand, those courts do not have the power to declare acts of the
Community institutions invalid. … the main purpose of the powers accorded to the
Court by Article [267 TFEU] is to ensure that Community law is applied uniformly by
national courts. That requirement of uniformity is particularly imperative when the
validity of a Community act is in question.

Joined Cases C-143/88 and 92/89 Zückerfabrik Suderdithmarschen AG v Hauptzollamt

Itzehoe [1991] ECR I-415.

Case C-465/93 Atlanta Fruchthandelsgesellschaft I [1995] ECR I-3761.

Case 461/03 Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en

Voedselkwalitei [2005] ECR I-10513:

19     Nevertheless, the interpretation adopted in the Cilfit judgment, referring to

questions of interpretation, cannot be extended to questions relating to the validity of
Community acts. ,,,

25     … the third paragraph of [Article 267 TFEU] requires a court or tribunal of a
Member State against whose decisions there is no judicial remedy under national law
to seek a ruling from the Court of Justice on a question relating to the validity of the
provisions of a regulation even where the Court has already declared invalid
analogous provisions of another comparable regulation.

 Variations to the preliminary reference procedure

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Under the previous Treaties (for instance, in relation to Visas, Asylum, Immigration and other
policies related to free movement of workers, as well as Police and Judicial Cooperation in
Criminal Matters) BUT Lisbon has repealed them, and maintains a single system, that set out
in Article 267 TFEU.

 National courts as European courts

Opinion 1/09 on the European and Community Patents Court [2011] I-1137

‘84. The system set up by Article 267 TFEU therefore establishes between the Court of
Justice and the national courts direct cooperation as part of which the latter are closely
involved in the correct application and uniform interpretation of European Union law and also
in the protection of individual rights conferred by that legal order.’

Case C-62/14 Gauweiler ECLI:EU:C:2015:400:

‘14  … here, the request for a preliminary ruling concerns directly the interpretation and
application of EU law, which means that the present judgment will have definitive
consequences as regards the resolution of the main proceedings.

15 In that regard, it should be observed that, according to settled case-law of the Court of
Justice, Article 267 TFEU establishes a procedure for direct cooperation between the Court
and the courts of the Member States (see, inter alia, judgments in SAT Fluggesellschaft,
C-364/92, EU:C:1994:7, paragraph 9, and ATB and Others, C-402/98, EU:C:2000:366,
paragraph 29). In that procedure, which is based on a clear separation of functions between
the national courts and the Court, any assessment of the facts of the case is a matter for the
national court, which must determine, in the light of the particular circumstances of the case,
both the need for a preliminary ruling in order to enable it to deliver judgment and the
relevance of the questions which it submits to the Court (see, to that effect, inter alia,
judgments in WWF and Others, C-435/97, EU:C:1999:418, paragraph 31, and Lucchini,
C-119/05, EU:C:2007:434, paragraph 43), whilst the Court is empowered to give rulings on
the interpretation or the validity of an EU provision only on the basis of the facts which the
national court puts before it (judgment in Eckelkamp and Others, C-11/07, EU:C:2008:489,
paragraph 52).

16 It must also be borne in mind that it is settled case-law of the Court that a judgment in
which the latter gives a preliminary ruling is binding on the national court, as regards the
interpretation or the validity of the acts of the EU institutions in question, for the purposes of
the decision to be given in the main proceedings (see, inter alia, judgments in Fazenda
Pública, C-446/98, EU:C:2000:691, paragraph 49, and Elchinov, C-173/09, EU:C:2010:581,
paragraph 29).

17 It follows that the Court must reply to the referring court’s request for a preliminary ruling’.

Further reading:

Wahl, N, and Prete, L., ‘The gatekeepers of Article 267 TFEU: On jurisdiction and
admissibility
of references for preliminary rulings’, (2018) 55 CMLRev 511.
Arnull, ‘The UK Supreme Court and References to the CJEU’, (2017) YEL
Frenz, W., ‘No Judicial Brexit of the German Federal Constitutional Court’, (2017) 42 ELRev
577.
de la Mare, T. and Donnelly, C., 'Preliminary Rulings and EU Legal Integration: Evolution and
Stasis' in De Burca, G. and Craig, P., The Evolution of EU Law (2nd ed., Oxford OUP,
2011) 363.
Broberg, M. and Fenger, N., 'Preliminary References as a Right: But for Whom? The Extent to
which Preliminary Reference Decisions can be Subject to Appeal', (2011) 36 ELRev
276

93
Bobek, M., ‘Learning to Talk: Preliminary Rulings, the Courts of the new Member States and
the Court of Justice’, (2008) 45 CMLRev 1611.
Broberg, M., 'Acte Claire revisited', (2008) 45 CMLRev 1383.
Lenaerts, K., ‘The rule of law and the coherence of the judicial system of the European
Union’, (2007) 44 CMLRev 1625.
Tridimas, T., ‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance
in the Preliminary Reference Procedure’, (2003) 40 CMLRev 9.
Koutrakos, ‘Speeding up the preliminary reference procedure – fast but not too fast’, (2008)
33 ELRev 617.
Koutrakos, ‘The Court of Justice as the guardian of national courts – or not?’ (2011) 36
ELRev 319.
Kornezov, 'The new format of the acte clair doctrine and its consequences' (2016) 53
CMLRev 1317.
Krommendijk, “Open Sesame!”: Improving Access to the ECJ by Requiring National Courts to
Reason their Refusals to Refer’, (2017) 42 ELRev 46.
Schwensfeier, ‘The TWD principle post-Lisbon’ 37 ELRev (2012) 156.
Barnard, C., ‘The PPU: Is it Worth the Candle? An Early Assessment’, (2009) 34 ELRev 281.
Komárek, 'In the court(s) we trust? On the need for hierarchy and differentiation in the
preliminary ruling procedure' (2007) 32 CMLRev 467.
Broberg, M. and Fenger, N., ‘Variations in Member States’ Preliminary References to the
Court of Justice - Are Structural Factors (Part of) the Explanation?’, (2013) 19 ELJ
488.
Arnull, A., ‘Judicial Dialogue in the European Union’ in Dickson, J. and Eleftheriadis, P. (eds),
Philosophical Foundations of European Union Law (OUP, 2012) 109.
Snell, ‘Gauweiler: Some Institutional Aspects/, (2015) 40 ELRev 133.

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Lecture 10 Action for annulment – Art 263 TFEU

MAIN READING

Craig and de Burca, Ch. 14

 Article 19 (1) TEU

The Court of Justice of the European Union shall include the Court of Justice, the General
Court and specialised courts. It shall ensure that in the interpretation and application of the
Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the
fields covered by Union law.

 Article 263 TFEU:

The Court of Justice of the European Union shall review the legality of legislative acts, of acts
of the Council, of the Commission and of the European Central Bank, other than
recommendations and opinions, and of acts of the European Parliament and of the European
Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality
of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis
third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State, the European
Parliament, the Council or the Commission on grounds of lack of competence, infringement of
an essential procedural requirement, infringement of the Treaties or of any rule of law relating
to their application, or misuse of powers.

The Court shall have jurisdiction under the same conditions in actions brought by the Court of
Auditors, by the European Central Bank and by the Committee of the Regions for the purpose
of protecting their prerogatives.

Any natural or legal person may, under the conditions laid down in the first and second
paragraphs, institute proceedings against an act addressed to that person or which is of direct
and individual concern to them, and against a regulatory act which is of direct concern to
them and does not entail implementing measures.

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions
and arrangements concerning actions brought by natural or legal persons against acts of
these bodies, offices or agencies intended to produce legal effects in relation to them.

The proceedings provided for in this Article shall be instituted within two 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, as the case may be.

 Action for failure to act under Article 265 TFEU

Should the European Parliament, the European Council, the Council, the Commission or the
European Central Bank, in infringement of the Treaties, fail to act, the Member States and the
other institutions of the Union may bring an action before the Court of Justice of the European
Union to have the infringement established. This Article shall apply, under the same
conditions, to bodies, offices and agencies of the Union which fail to act.

The action shall be admissible only if the institution, body, office or agency concerned has first
been called upon to act. If, within two months of being so called upon, the institution, body,
office or agency concerned has not defined its position, the action may be brought within a
further period of two months.

95
Any natural or legal person may, under the conditions laid down in the preceding paragraphs,
complain to the Court that an institution, body, office or agency of the Union has failed to
address to that person any act other than a recommendation or an opinion.

 What is an act under Article 263 TFEU?

Case 22/70 Commission v Council (re: European Road Transport Agreement) [1971]
ECR 263.

“42. An action for annulment must ... be available in the case of all measures adopted
by the institutions, whatever their nature or form, which are intended to have legal
effects.”

Case 60/81 IBM Corporation v Commission [1981] ECR 2639.

9 In order to ascertain whether the measures in question are acts within the meaning of
Article [230] it is necessary … to look to their substance. … any measure the legal affects of
which are binding on, and capable of affecting the interests of the applicant by bringing about
a distinct change in his legal position in an act or decision which may be the subject of an
action under Article [230] for a declaration that it is void.

 Why WAS the European Parliament a ‘semi privileged’ applicant in previous

Treaties?

Case 302/87 European Parliament v Council (Comitology) [1988] ECR 5615.

Case 70/88 European Parliament v Council (Chernobyl) [1990] ECR I-2041.

20. It follows from the foregoing that the existence of those various legal remedies is not
sufficient to guarantee, with certainty and in all circumstances, that a measure adopted
by the Council or the Commission in disregard of the Parliament' s prerogatives will be
reviewed .

21 Those prerogatives are one of the elements of the institutional balance created by the
Treaties. The Treaties set up a system for distributing powers among the different
Community institutions, assigning to each institution its own role in the institutional
structure of the Community and the accomplishment of the tasks entrusted to the
Community.

22 Observance of the institutional balance means that each of the institutions must
exercise its powers with due regard for the powers of the other institutions. It also
requires that it should be possible to penalize any breach of that rule which may occur.

23 The Court, which under the Treaties has the task of ensuring that in the interpretation
and application of the Treaties the law is observed, must therefore be able to maintain
the institutional balance and, consequently, review the observance of the Parliament' s
prerogatives when called upon to do so by the Parliament, by means of a legal remedy
which is suited to the purpose which the Parliament seeks to achieve.

24 In carrying out that task the Court cannot, of course, include the Parliament among
the institutions which may bring an action under Article [230] of the EEC Treaty or Article
146 of the Euratom Treaty without being required to demonstrate an interest in bringing
an action.

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 25 However, it is the Court's duty to ensure that the provisions of the Treaties
concerning the institutional balance are fully applied and to see to it that the Parliament's
prerogatives, like those of the other institutions, cannot be breached without it having
available a legal remedy, among those laid down in the Treaties, which may be
exercised in a certain and effective manner.

 When is a private applicant individually concerned?

Case 25/62 Plaumann & Co v Commission [1963] ECR 95.

“Persons other than those to whom a decision is addressed may only claim to be
individually concerned if that decision affects them by reason of certain attributes
which are peculiar to them or by reason of circumstances in which they are
differentiated from all other persons and by virtue of these factors distinguishes them
individually just as in the case of the person addressed.”

Case 11/82 A.E. Piraiki-Patraiki v Commission [1985] ECR 207.

Joined Cases 106-7/63 Alfred Toepfer v Commission [1965] ECR 405.

 When is a private applicant directly concerned?

Case 294/83 Parti Ecologiste “Les Verts” v European Parliament [1986] ECR 1339.

“31. The contested measures are of direct concern to the applicant association. They
constitute a complete set of rules which are sufficient in themselves and which
require no implementing provisions, since the calculation of the share of the
appropriations to be granted to each of the political groupings concerned is automatic
and leaves no room for any discretion”.

Case 69/69 Alcan v Commission [1970] ECR 385.

 Are there areas of activity where a more liberal approach has been applied?

- Anti-dumping law:
Case 264/82 Timex Corporation v Council and Commission [1985] ECR 849.

-Competition law
Case 26/76 Metro-SB-Grossmaerkte GmbH & Co KG v Commission [1977] ECR
1875.

-State aids:
Case 169/84 Compagnie Francaise de l’ Azote (COFAZ) SA v Commission [1986]
ECR 391.

-Other cases
Case 294/83 Parti Ecologiste “Les Verts” v Parliament [1986] ECR 1339, [1987] 2
CMLR 343.

 A tendency towards a more liberal approach to standing?

Case C-309/89 Codorniu SA v Council [1994] ECR I-1853.

“19. Although it is true that according to the criteria in the second paragraph of Article
173 of the Treaty the contested provision is, by nature and by virtue of its sphere of
application, of a legislative nature in that it applies to the traders concerned in
general, that does not prevent it from being of individual concern to some of them.

20. Natural or legal persons may claim that a contested provision is of individual
concern to them only if it affects them by reason of certain attributes which are

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 peculiar to them or by reason of circumstances in which they are differentiated from
all other persons ...

21. Codorniu registered the graphic trade mark "Gran Cremant de Codorniu" in Spain
in 1924 and traditionally used that mark both before and after registration. By
reserving the right to use the term "crémant" to French and Luxembourg producers,
the contested provision prevents Codorniu from using its graphic trade mark.

22. It follows that Codorniu has established the existence of a situation which from
the point of view of the contested provision differentiates it from all other traders.

23. It follows that the objection of inadmissibility put forward by the Council must be
dismissed”.

 Not for long …

Case C-209/94P Buralux and Others v Council [1996] ECR I-615.

24 It is settled case-law that the possibility of determining more or less precisely the number
or even the identity of the persons to whom a measure, such as the contested provision of
Regulation No 259/93, applies does not in any way imply that it must be regarded as being of
individual concern to them, as long as it is established that such application takes effect by
virtue of an objective legal or factual situation defined by the measure in question…

25 For such persons to be capable of being regarded as individually concerned, their legal
position must be affected because of a factual situation which differentiates them from all
other persons and distinguishes them individually in the same way as a person to whom a
measure is addressed…
…………………..
29 That finding is not negated by the fact that the appellants are practically the only operators
who transport waste from Germany to France. A circumstance of that kind is not sufficient to
differentiate the appellants from any other operator in the light of the contested provision,
which deals generally with waste shipments between Member States without distinction.

 Calls for a more liberal approach to standing

Case C-50/00 P Unión de Pequeňos Agricultores v Council [2002] ECR I-6677 - Opinion by
Advocate General Jacobs:

59. The key to the problem of judicial protection against unlawful Community acts lies
therefore, in my view, in the notion of individual concern laid down in the fourth paragraph of
Article 230 EC. There are no compelling reasons to read into that notion a requirement that
an individual applicant seeking to challenge a general measure must be differentiated from all
others affected by it in the same way as an addressee. On that reading, the greater the
number of persons affected by a measure the less likely it is that judicial review under the
fourth paragraph of Article 230 EC will be made available. The fact that a measure adversely
affects a large number of individuals, causing wide-spread rather than limited harm, provides
however to my mind a positive reason for accepting a direct challenge by one or more of
those individuals.

60. In my opinion, it should therefore be accepted that a person is to be regarded as

individually concerned by a Community measure where, by reason of his particular
circumstances, the measure has, or is liable to have, a substantial adverse effect on his
interests.

Advantages of the suggested interpretation of the notion of individual concern

61. A development along those lines of the case-law on the interpretation of Article 230 EC
would have several very substantial advantages.

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62. First, if one rejects the solutions advanced by UPA and by the Council and Commission -
and there are very strong reasons for doing so - it seems the only way to avoid what may in
some cases be a total lack of judicial protection - a déni de justice.

63. Second, the suggested interpretation of the notion of individual concern would
considerably improve judicial protection. By laying down a more generous test for standing for
individual applicants than that adopted by the Court in the existing case-law, it would not only
ensure that individual applicants who are directly and adversely affected by Community
measures are never left without a judicial remedy; it would also allow issues of validity of
general measures to be addressed in the context of the procedure which is best suited to
resolving them, and in which effective interim relief is available.

64. Third, it would also have the great advantage of providing clarity to a body of case-law
which has often, and rightly in my view, been criticised for its complexity and lack of
coherence, and which may make it difficult for practitioners to advise in what court to take
proceedings, or even lead them to take parallel proceedings in the national courts and the
Court of First Instance.

65. Fourth, by ruling that individual applicants are individually concerned by general measures
which affect them adversely, the Court of Justice would encourage the use of direct actions to
resolve issues of validity, thus limiting the number of challenges raised via Article 234 EC.
That would, as explained above, be beneficial for legal certainty and the uniform application of
Community law. It may be noted in that regard that the TWD case-law - according to which an
individual cannot challenge a measure via Article 234 EC where, although there was no doubt
about his standing under the fourth paragraph of Article 230 EC, he omitted to take action
within the time-limit laid down in the fifth paragraph of that Article - would, in my view, not
normally extend to general measures. Individuals who were adversely affected by general
measures would therefore not be precluded by that case-law from challenging such measures
before national courts. None the less, if the notion of individual concern were interpreted in
the way I have suggested, and standing for individuals accordingly liberalised, it may be
expected that many challenges would be brought by way of direct action before the Court of
First Instance.

66. A point of equal, or even greater, importance is that the interpretation of Article 230 EC
which I propose would shift the emphasis of judicial review from questions of admissibility to
questions of substance. While it may be accepted that the Community legislative process
should be protected against undue judicial intervention, such protection can be more properly
achieved by the application of substantive standards of judicial review which allow the
institutions an appropriate margin of appreciation in the exercise of their powers than by the
application of strict rules on admissibility which have the effect of blindly excluding applicants
without consideration of the merits of the arguments they put forward.

67. Finally, the suggested interpretation of the notion of individual concern would remove a
number of anomalies in the Court's case-law on judicial review. The most important
anomalies arise from the fact that the Court has adopted different approaches to the notion of
individual concern and to other provisions of Article 173 of the EEC Treaty (now, after
amendment, Article 230 EC).

68. Thus, the Court has taken a generous view of the types of acts which are susceptible to
review. Under the first paragraph of Article 173 of the EEC Treaty, the Court was originally
competent to review acts of the Council and the Commission other than recommendations
and opinions. Article 189 of the EEC Treaty (now Article 249 EC) defined binding Community
acts as regulations, directives and decisions. It might have been thought, on the basis of
those provisions, that the Court was only competent to review regulations, directives and
decisions adopted by the Council or the Commission. However, in ERTA the Court was willing
to review the legality of Council proceedings regarding the negotiation and conclusion by the
Member States of an agreement on the working conditions of the crews of vehicles engaged
in international road transport on the ground, essentially, that the purpose of the procedure for
judicial review laid down in Article 173 of the EEC Treaty - which is to ensure observance of
the law in the interpretation and application of the Treaty - would not be fulfilled unless it was

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possible to challenge all measures, whatever their nature or form, which are intended to have
legal effects. In Les Verts the Court was asked to review two measures, adopted by the
European Parliament, on the reimbursement of expenses incurred by parties taking part in the
1984 elections. In declaring that action admissible, it held that while Article 173 refers only to
acts of the Council and the Commission ... an interpretation of [that provision] which excluded
measures adopted by the European Parliament from those which could be contested would
lead to a result contrary to both the spirit of the Treaty as expressed in Article 164 [now Article
220 EC] and to its system.

69. When deciding which institutions are entitled to bring proceedings for annulment under
the Treaty, the Court has not adopted a strict reading of the Treaty text either. Prior to the
entry into force of the Treaty on European Union, the first paragraph of Article 173 of the EEC
Treaty provided that the Court had jurisdiction in actions brought by a Member State, the
Council or the Commission. The absence of any reference to the European Parliament in that
provision did not, however, prevent the Court from holding in Chernobyl that an action for
annulment brought by the Parliament against an act of the Council or the Commission is
admissible provided that the action seeks only to safeguard its prerogatives, for while [t]he
absence in the Treaties of any provision giving the Parliament the right to bring an action for
annulment may constitute a procedural gap, ... it cannot prevail over the fundamental interest
in the maintenance and observance of the institutional balance laid down in the Treaties.

70. Similarly, when considering on what grounds the validity of Community measures adopted
may be challenged, the Court held that although Article 173 of the EEC Treaty provided that
the Court had jurisdiction in actions brought on grounds of infringement of this Treaty or of
any rule of law relating to its application, the need for a complete and consistent review of
legality require[d] that provision to be construed as not depriving the Court of jurisdiction to
consider, in proceedings for the annulment of a measure based on a provision of the EEC
Treaty, a submission concerning the infringement of a rule of the EAEC or ECSC Treaties.

71. The restrictive attitude towards individual applicants which the Court has adopted in the
context of the fourth paragraph of Article 230 EC - and which it has, despite the extension of
the powers of the Community by successive Treaty amendments, declined to reconsider -
appears difficult to justify in the light of the cases decided under the other paragraphs of
Article 173 of the EEC Treaty, where the Court has adopted a generous and dynamic
interpretation of the Treaty, or even a position contrary to the text, to ensure that the evolution
in the powers of the Community institutions does not undermine the rule of law and the
institutional balance.

72. A further anomaly in this area arises from the fact that under Community law there are no
restrictions on the standing of individuals to bring actions for damages under Articles 235 EC
and 288 EC. The class of individuals capable of seeking damages for loss caused by
Community measures is thus unlimited. In the context of the strict standing rules applied
under the fourth paragraph of Article 230 EC, that seems paradoxical since damages actions
will often involve, or effectively involve, challenges to the legality of general Community
measures. Thus the Court of First Instance already has jurisdiction to review the legality of
general measures in claims for damages (or on a plea of illegality under Article 241 EC) at the
suit of an unlimited class of individuals.

- Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365

47. On the basis of the foregoing, the inevitable conclusion must be that the procedures
provided for in, on the one hand, Article 234 EC and, on the other hand, Article 235 EC and
the second paragraph of Article 288 EC can no longer be regarded, in the light of Articles 6
and 13 of the ECHR and of Article 47 of the Charter of Fundamental Rights, as guaranteeing
persons the right to an effective remedy enabling them to contest the legality of Community
measures of general application which directly affect their legal situation.
…………………
49. … as Advocate General Jacobs stated in point 59 of his Opinion in Unión de Pequeños
Agricultores v Council …, there is no compelling reason to read into the notion of individual
concern, within the meaning of the fourth paragraph of Article 230 EC, a requirement that an

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individual applicant seeking to challenge a general measure must be differentiated from all
others affected by it in the same way as an addressee.

50. In those circumstances, and having regard to the fact that the EC Treaty established a
complete system of legal remedies and procedures designed to permit the Community
judicature to review the legality of measures adopted by the institutions (paragraph 23 of the
judgment in Les Verts v Parliament, … , the strict interpretation, applied until now, of the
notion of a person individually concerned according to the fourth paragraph of Article 230 EC,
must be reconsidered.

51. In the light of the foregoing, and in order to ensure effective judicial protection for
individuals, a natural or legal person is to be regarded as individually concerned by a
Community measure of general application that concerns him directly if the measure in
question affects his legal position, in a manner which is both definite and immediate, by
restricting his rights or by imposing obligations on him. The number and position of other
persons who are likewise affected by the measure, or who may be so, are of no relevance in
that regard.

 Calls rejected

Case C-50/00 P Unión de Pequeňos Agricultores v Council [2002] ECR I-6677:

38. The European Community is, however, a community based on the rule of law in which its
institutions are subject to judicial review of the compatibility of their acts with the Treaty and
with the general principles of law which include fundamental rights.

39. Individuals are therefore entitled to effective judicial protection of the rights they derive
from the Community legal order, and the right to such protection is one of the general
principles of law stemming from the constitutional traditions common to the Member States.
That right has also been enshrined in Articles 6 and 13 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (see, in particular, Case 222/84
Johnston [1986] ECR 1651, paragraph 18, and Case C-424/99 Commission v Austria [2001]
ECR I-9285, paragraph 45).

40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by Article 177,
on the other, the Treaty has established a complete system of legal remedies and procedures
designed to ensure judicial review of the legality of acts of the institutions, and has entrusted
such review to the Community Courts (see, to that effect, Les Verts v Parliament, paragraph
23). Under that system, where natural or legal persons cannot, by reason of the conditions for
admissibility laid down in the fourth paragraph of Article 173 of the Treaty, directly challenge
Community measures of general application, they are able, depending on the case, either
indirectly to plead the invalidity of such acts before the Community Courts under Article 184 of
the Treaty or to do so before the national courts and ask them, since they have no jurisdiction
themselves to declare those measures invalid (see Case 314/85 Foto-Frost [1987] ECR 4199,
paragraph 20), to make a reference to the Court of Justice for a preliminary ruling on validity.

41. Thus it is for the Member States to establish a system of legal remedies and procedures
which ensure respect for the right to effective judicial protection.

42. In that context, in accordance with the principle of sincere cooperation laid down in Article
5 of the Treaty, national courts are required, so far as possible, to interpret and apply national
procedural rules governing the exercise of rights of action in a way that enables natural and
legal persons to challenge before the courts the legality of any decision or other national
measure relative to the application to them of a Community act of general application, by
pleading the invalidity of such an act.

43. As the Advocate General has pointed out in paragraphs 50 to 53 of his Opinion, it is not
acceptable to adopt an interpretation of the system of remedies, such as that favoured by the
appellant, to the effect that a direct action for annulment before the Community Court will be
available where it can be shown, following an examination by that Court of the particular

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national procedural rules, that those rules do not allow the individual to bring proceedings to
contest the validity of the Community measure at issue. Such an interpretation would require
the Community Court, in each individual case, to examine and interpret national procedural
law. That would go beyond its jurisdiction when reviewing the legality of Community
measures.

44. Finally, it should be added that, according to the system for judicial review of legality
established by the Treaty, a natural or legal person can bring an action challenging a
regulation only if it is concerned both directly and individually. Although this last condition
must be interpreted in the light of the principle of effective judicial protection by taking account
of the various circumstances that may distinguish an applicant individually (see, for example,
Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR 219,
paragraph 14; Extramet Industrie v Council, paragraph 13, and Codorniu v Council,
paragraph 19), such an interpretation cannot have the effect of setting aside the condition in
question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by
the Treaty on the Community Courts.

45. While it is, admittedly, possible to envisage a system of judicial review of the legality of
Community measures of general application different from that established by the founding
Treaty and never amended as to its principles, it is for the Member States, if necessary, in
accordance with Article 48 EU, to reform the system currently in force.

- Case C-131/03 P Reynolds Tobacco Holdings and others v Commission [2006] ECR I-7795.

81 … although the requirement as to legal effects which are binding on, and capable of
affecting the interests of, the applicant by bringing about a distinct change in his legal position
must be interpreted in the light of the principle of effective judicial protection, such an
interpretation cannot have the effect of setting aside that condition without going beyond the
jurisdiction conferred by the Treaty on the Community courts (see, by analogy, Unión de
Pequeños Agricultores v Council, paragraph 44, as regards the condition that the contested
act must be of individual concern to the natural or legal person lodging an application).

 What is a ‘regulatory act not entailing implementing measures’?

Article 289(3) TFEU:

Legal acts adopted by legislative procedure shall constitute legislative acts.

- Article 290 (1) TFEU:

A legislative act may delegate to the Commission the power to adopt non-legislative acts of
general application to supplement or amend certain non-essential elements of the legislative
act.

Case C-583 P Inuit ECLI:EU:C:2013:625:

58      As regards the concept of ‘regulatory act’, it is apparent from the third limb of
the fourth paragraph of Article 263 TFEU that its scope is more restricted than that of
the concept of ‘acts’ used in the first and second limbs of the fourth paragraph of
Article 263 TFEU, in respect of the characterisation of the other types of measures
which natural and legal persons may seek to have annulled. The former concept
cannot, as the General Court held correctly in paragraph 43 of the order under
appeal, refer to all acts of general application but relates to a more restricted category
of such acts. To adopt an interpretation to the contrary would amount to nullifying the
distinction made between the term ‘acts’ and ‘regulatory acts’ by the second and third
limbs of the fourth paragraph of Article 263 TFEU.

59      Further, it must be observed that the fourth paragraph of Article 263 TFEU
reproduced in identical terms the content of Article III-365(4) of the proposed treaty
establishing a Constitution for Europe. It is clear from the travaux préparatoires

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 relating to that provision that while the alteration of the fourth paragraph of Article 230
EC was intended to extend the conditions of admissibility of actions for annulment in
respect of natural and legal persons, the conditions of admissibility laid down in the
fourth paragraph of Article 230 EC relating to legislative acts were not however to be
altered. Accordingly, the use of the term ‘regulatory act’ in the draft amendment of
that provision made it possible to identify the category of acts which might thereafter
be the subject of an action for annulment under conditions less stringent than
previously, while maintaining ‘a restrictive approach in relation to actions by
individuals against legislative acts (for which the “of direct and individual concern”
condition remains applicable)’ (see, inter alia, Secretariat of the European
Convention, Final report of the discussion circle on the Court of Justice of 25 March
2003, CONV 636/03, paragraph 22, and Cover note from the Praesidium to the
Convention of 12 May 2003, CONV 734/03, p. 20).

60      In those circumstances, it must be held that that the purpose of the alteration to
the right of natural and legal persons to institute legal proceedings, laid down in the
fourth paragraph of Article 230 EC, was to enable those persons to bring, under less
stringent conditions, actions for annulment of acts of general application other than
legislative acts.

61      The General Court was therefore correct to conclude that the concept of
‘regulatory act’ provided for in the fourth paragraph of Article 263 TFEU does not
encompass legislative acts.

 The relationship between Articles 267 and 263 TFEU

Case C-188/92 TWD Textilwerke Deggendorf GmbH v Germany [1994] ECR I-833.

Case C-178/95 Wiljo NV v Belgian State [1997] ECR I-585.

 Do representative bodies have standing under Art 263 TFEU?

Case T-122/96 Federolio v Commission [1997] ECR II-1559

“60. As regards ... actions brought by associations, these have been held to be
admissible in at least three types of situation, namely
(a) where a legal provision expressly grants trade associations a
series of procedural rights ...;
(b) where the association represents the interests of undertakings
which could be entitled to bring proceedings in their own right ...’
(c) where the association is differentiated because its own interests
as an association are affected, in particular because its position
as negotiator is affected by the measure which it seeks to have
annulled ...

61. In those three situations, the Court of Justice and the Court of First Instance have
also taken into account the participation of the association in question in the
procedure”.

Case C-362/06 P Markku Sahlstedt and others v Commission [2009] ECR I-2903.

“35. … the defence of the general and collective interests of a category of persons is
not sufficient to establish the admissibility of an action for annulment brought by an
association. In the absence of special circumstances, such as the role which it could have
played in a procedure leading to the adoption of the measure in question, such an
association is not entitled to bring an action for annulment on behalf of its members where
the latter cannot do so individually.”

 Time limits

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Article 102(1), Rules of Procedure of the Court of First Instance:

“The period of time allowed for commencing proceedings against a measure adopted
by an institution shall run from the day following the receipt by the person concerned
of notification of the measure or, where the measure is published, from the 15 th day
after publication thereof in the Official Journal of the European Communities”.

Joined Cases T-121/96 and T-151/96 Mutual Aid administration Services NV v Commission
[1997] ECR II-1355, para. 38:

“It is settled case-law that the time-limit prescribed for bringing actions under Article
[230] of the Treaty is a matter of public policy and is not subject to the discretion of
the parties of the Court, since it was established in order to ensure that legal positions
are clear and certain and to avoid any discrimination or arbitrary treatment in the
administration of justice…”.

 The effect of annulment

Art 264 TFEU:

‘If the action is well founded, the Court of Justice shall declare the act concerned to
be void.

In the case of a regulation, however, the Court of Justice shall, if it considers this
necessary, state which of the effects of the regulation which it has declared void shall
be considered as definitive’.

Further reading:

Balthasar, S., 'Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants:
The New Article 263(4) TFEU', (2010) 34 ELRev 542.
Barents, R., 'The Court of Justice after the Treaty of Lisbon', (2010) 47 CMLRev 709
Tridimas, T. and Poli, S., 'Locus Standi of Individuals under Article 230 (4): The Return of
Euridice?' in Arnull, A., Eeckhout, P. and Tridimas, T. (eds), Continuity and Change in
EU Law - Essays in Honour of Sir Francis Jacobs (Oxford: OUP, 2008), 70
Prek and Lefèvre, 'The EU Courts as “national” courts: National law in the EU judicial
process' (2017) 54 CMLRev 369.
Arnull, The European Union and its Court of Justice (2nd ed 2006), Ch. 3.
Albors-Llorens, ‘Judicial Protection before the Court of Justice of the European Union’ in
Barnard and Peers (eds), European Union Law (2014, OUP) 255 (pp1 255-288 are
relevant to this lecture)
‘Sealing the Fate of Private Parties in Annulment Proceedings: The
General Court and the New Standing Test in Article 263(4) TFEU’ 71 Cambridge Law
Journal [2012] 52.

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Lecture 11 Revision
The aim of this lecture is twofold. First, to identify the threads which bring together the
different aspects of EU law we have examined so far, and to point out the ways in which EU
law has an impact on our every day life and it is inextricably linked to national law.

Second, this will be a revision lecture. I shall invite you in advance to identify topics and
issues which you find complex and shall try to clarify them in class.

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