Cag University
Module
Handbook
Law of the European Union
Part 1: Institutional Law of the European Union
Module leader: Assistant Professor Joseph Ife Ogbonna PhD
Contents Page
Introduction to the Module
Reading List
Access to e-books
Useful web sites
Citing EU case law
Teaching term dates
Topic 1: EU sources of law and Institutions - Revision
Topic 2: Supremacy, Direct effect, Indirect Effect and State
liability
Topic 3: Proceedings before the ECJ/CJEU
Introduction to the Module
SHORT MODULE DESCRIPTOR:
Part one of the module will cover the main sources of EU law; the EU
institutions; implementation and enforcement of EU law.
MODULE AIMS:
In this semester we aim to equip students with a detailed knowledge of EU
institutions along with primary and secondary. We also aim to examine the
role of the Court of Justice of the European Union in the complex area of
enforcement of EU law by the Institutions, Member States and natural and
legal persons. This will include examining some of the key doctrines of EU
law, such as supremacy, direct effect, and State liability.
ASSESSED LEARNING OUTCOMES:
learner will be expected to be able to:


At the end of this semester the
Demonstrate an understanding of the EU legal system and of its main
institutions, how it is evolving and related to the legal systems of
Member States
Evaluate the means of law enforcement including the role of the Court
of Justice
Knowledge and Understanding: detailed knowledge of major contexts of the
module.
Cognitive/Intellectual skills: synthesis of major concepts and information
and the application of appropriate methods to the resolution of problems.
Transferable skills: management of problems and their solution by
appropriate means; effective communication and the confident use of a full
range of learning resources; engage in self-directed learning and research
activities.
Practical skills: ability to act with autonomy with a reduced need for
supervision and direction.
ASSESSMENT: Coursework 50% (this semester) Examination 50% (next
semester)
You are allowed to bring Blackstone’s statute book into the exam but it must not
have any notes in it. You may highlight or underline the text, but post-its are not
allowed.
Reading list - Books:
Core text: Nigel Foster, EU Law Directions, Oxford University Press, 3rd
ed. 2012
Blackstone’s EU Treaties and Legislation (latest edition)
Key texts:
Chris Turner, Unlocking EU Law, Hodder Education, 3rd edition 2012
AVAILABLE AS AN E-BOOK ON THE GSM WEBSITE VIA ATHENS
th
John Fairhurst, Law of the European Union, Pearson, 9 ed. 2012
th
Nigel Foster, Foster on EU Law, Oxford Univ. Press, 4 ed. 2013
rd
Alina Kazcorowska, European Union Law, Routledge-Cavendish, 3 ed. 2011
Josephine Steiner, Lorna Woods, EU Law, Oxford University Press, 11th ed.
2012
Stephen Weatherill, Cases and Materials on EU Law, Oxford University
Press,10thed.2012
Other texts: The following two texts are generally considered to be very
authoritative and can be consulted for more depth than is to be found in the
other texts:
Paul Craig, Gráinne de Búrca, EU Law: Text, Cases, and Materials, Oxford
University Press, 5th ed. 2011
Damian Chalmers, Garth Davies, Giorgio Monti, European Union Law,
Cambridge University Press, 2nd ed. 2010
How to access e-books in the Library:
You can access our growing collection of ebooks via the library catalogue or
via the Online Library. Ebooks can be read online or downloaded using your
PC, laptop, smartphone or tablet.
What is an eBook:
An eBook is an electronic version of a printed book. Our DawsonEra eBooks
can be viewed online from any computer connected to the internet.
Access
1. To
access
http://www.dawsonera.com
DawsonEra
go
to
2. Click on Athens Login
3. Enter your Cag University Athens username and password
Reading online:
Click Read Online to read an eBook onscreen. There is no time limit on how
long you can view an e-book but the session will end after a period of
inactivity.
You can navigate the ebook using the Table of Contents (left hand menu),
directional arrows or by entering the page number if known.
Downloading:
1. Select the title by clicking on the book cover.
2. Click Download and then either Save or Open the PDF.
NOTE: Copying and printing from a download is not possible (see below).
Searching within the document:
Click on the green Search button (bottom left hand menu) to search within
the PDF document. This can be useful for finding the specific section you are
interested in.
Copying & printing:
You may copy or print up to 5% of an eBook. This limit is per user for the
lifetime of each eBook.
1. Click on Print (bottom left hand menu). The online counter will open and
calculate the percentage you are permitted to print (e.g. 5% of a 300 page
eBook is 15 pages).
2. Click on OK.
NOTE : Copying & printing is only possible in Read Online mode. You cannot
copy or print from a download version.
Favourites & Notes:
You can create a list of favourite items for future reference by clicking on Add
to Favourites.
You can also add personal notes to by clicking on the Notes tab (bottom of
left hand menu). Dawsonera will recognise who you are each time you login
and your notes will appear automatically.
Further assistance:
Further guidance can be found on DawsonEra. See Help.
For enquiries or assistance please contact the Library & Information Service
Reading list - Journals:
The following are amongst the most commonly used journals in EU studies:
Common
Market
Law
Review:
<
http://www.kluwerlawonline.com/toc.php?pubcode=COLA >
Columbia Journal of European Law: < www.cjel.net/ >
European Law Journal: < http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)14680386 >
European Law Review: < www.sweetandmaxwell.co.uk > [Conduct search on site]
German Law Journal: < www.germanlawjournal.com >
Maastricht
Journal
of
European
and
Comparative
Law:
<
www.maastrichtjournal.eu/ >
These journals also often contain material relevant to EU law:
Cambridge Law Journal: < www.journals.cambridge.org/action/displayJournal?jid=CLJ
>
European Journal of International Law: < www.ejil.org >
International and Comparative Law Quarterly:
< www.journals.cambridge.org/action/displayJournal?jid=ILQ >
Law Quarterly Review: < www.sweetandmaxwell.co.uk > [Conduct search on site]
Modern Law Review: < www.modernlawreview.co.uk >
Useful Websites:
EU Europa gateway – English: http://europa.eu/index_en.htm
Legislation
and
treaties
(including
EU
http://europa.eu/documentation/legislation/index_en.htm
case
reports):
Searchable
map
of
the
http://europa.eu/europedirect/meet_us/interactive_map/index_en.htm
EU:
Council of Europe (N.B. this is separate to the EU!): www.coe.int
Citing European Union case law
Since 1989, EU cases have been numbered according to whether they were
registered at the Court of Justice of the European Union (CJEU) or the
General Court (GC) and given the prefix C- (for CJEU cases) or T- (for GC
cases). Since the Lisbon Treaty came into effect in 2009, the Court of justice
tends to be referred to as the CJEU, whereas before the Lisbon Treaty it was
referred to as the European Court of Justice or ECJ: either use is acceptable.
The change appears is a matter of practice. Cases prior to 1989 have no
prefix.
Where possible, refer to the European Court Reports (ECR). CJEU cases are
reported in volume one (ECR I-) and GC cases are reported in volume two
(ECR II-). If an ECR reference is not available, cite the Common Market Law
Reports (CMLR). Some cases are also reported in the Law Reports, the
Weekly Law Reports and/or the All England Law Reports (European Cases).
For unreported cases, cite the notice in the Official Journal (OJ). If the case is
not yet reported in the OJ, cite the case number and case name, followed by
the court and date of judgment in brackets.
Give the case registration number and then the name of the case in italics.
Give the report citation in the same form as for UK cases. When pinpointing,
use ‘para’ or ‘paras’ after a comma.
Examples
Case T-344/99, Arne Mathisen AS v.Council [2002] ECR II-2905
Case C-556/07, Commission v. France [2009] OJ C102/8
Case T-277/08, Bayer Healthcare v. OHMU-Uriach Aquilea OTC (CFI, 11
November 2009)
Case C-176/03, Commission v. Council [2005] ECR I-7879, paras 47-48
This is interpreted as European Court of Justice (C), case number (), year it
was added to the register (), party names (), year the report of the decision
was published (), abbreviated title of the series of reports the case was
published in (), section of the reports (), and page number.
Whilst every effort will be made to keep to these dates, teaching times may vary.
Teaching term dates:
Week 1
7th October –
Lecture: Introduction to the course; Basic history
and enlargements; Context of the EU in
international law; Institutions of the EU
(No tutorial)
Week 2
14th October –
Lecture: Sources of EU Law: Treaties and
Secondary Legislation (Directives, Regulations;
Decisions)
Introduction to EU law and national law:
Supremacy and Direct effect
Tutorial 1 Questions: The Nature of the EU
Week 3
21th October
Lecture:
Supremacy
and
Direct
effect
(continued)
Tutorial 2 Questions: Supremacy and Direct
effect
Week 4
28th October
Lecture: Indirect effect and Incidental direct
effect
Tutorial 3 Questions: Direct effect, Indirect effect
and Incidental direct effect
Week 5
4th November
Practice questions/timed exam: Direct effect and
supremacy
Week 6
11th November
Lecture: State Liability; The Role of the
ECJ/CJEU
Tutorial 4 Questions: State liability; ECJ/CJEU
Week 7
18th November
Lecture: Enforcement action against Member
States
Tutorial 5 Questions: Enforcement actions
against Member States
Week 8
25th November
Lecture: (1) Recap on Preliminary References
and (2) Separation of Powers
Tutorial 6 Questions: Separation of Powers in
the EU
Week 9
2nd December
Lecture: Reviews of Legality of EU Institutions;
Aspects of Procedure before the ECJ
Tutorial 7 Questions: Proceedings Before the
ECJ
Week 10
9th December
Revision
Lecture Materials:
Please note that:
► This Workbook contains detailed notes for the first three hours of lectures
(Week 1 and the first half of Week 2), as well as the main tutorial question
sheets.
► For the remaining lectures, the detailed notes will be made available on
Blackboard a day prior to lectures and Powerpoint from lectures will be made
available a day after.
► There will be some recommended/assigned reading for each Tutorial: you
will get the reading in a separate document.
Lecture Notes for Week 1 and the first half of Week 2:
Overview of the EU
1. The European Union:
- Some General points:

EU law is complicated compared to national law, e.g. in a national
system, there are usually only one kind of law passed by a single
voting procedure in parliament (an Act of Parliament, passed by a
majority of members of parliament); in the EU there are several
types of laws, which may be passed by several different types of
voting procedure.

Do not mix up the EU or any of its organs/institutions with the
Council of Europe (see Part 7, below).

The EU is different to other international organisations in that it has
more power vis-à-vis its Member States.
- What is the European Union (EU)?:
The EU is an organisation of 27 European countries (‘Member States’)
who have agreed to cooperate in primarily economic and social matters ('the
common market'): but also, to a lesser extent in other areas, such as criminal
justice and foreign policy.
- it involves ‘pooling’ or sharing sovereignty: this means that instead of just
acting individually, as they usually had done previously, the participating
countries/ Member States act collectively in these areas.
- as such, the EU is an international organisation; but what makes it
distinctive to or different from many other types of international organisation is
the amount or degree of power-sharing between States: generally speaking,
more power or ‘sovereignty’ is shared by the Member States of the EU as
compared to other international organisations, i.e. other international
organisations are usually more informal and less legally binding ways of
cooperating.
- What does the EU involve?:
When it was first established in the 1950s by 6 countries (France, West
Germany, Italy, Belgium, the Netherlands, Luxembourg), the aim was to
establish a common market.
- the common market essentially meant linking up the economies of Member
States, by removing obstacles to economic cooperation between these
countries - this was done by removing border barriers, so goods could be
imported and exported freely between the participating countries, workers
were to be allowed to move freely between the countries (i.e. workers had a
right to work in any one of the countries) – this involved 'four freedoms of
movement':
- goods
- labour/workers
- capital
- establishment/services
Member States are not allowed to discriminate between each others' nationals
as regards these four freedoms of movement: non-discrimination principle.
- The second central principle of the common market is freedom of
competition.
- Note that not all aspects of economic life are made part of the common
market: government spending and taxation is still (for the most part) decided
by national governments - essentially, what the common market is about is
allowing workers and business to move freely between Member States with
as little hindrance as possible, so it is about free trade:
- It did not start off exactly as it is today:
- 1. Enlargement of Member States: since the 1950s, 21 new
countries (including the UK, which joined along with Ireland, Denmark
in 1973) have joined the original 6
- 2. Expansion of competence: the areas of cooperation have been
extended at different times, to include:
- monetary policy (money supply and interest rates)
- environmental policy
- research and technology
- social policy
- culture
- consumer protection
- education
- tourism
- development cooperation
Also:
- asylum and immigration policy
- criminal justice
- foreign policy
However, in these last 3 areas (and especially the last 2), which are
considered to be more politically connected with individual nation states, so
there is not the same amount of cooperation (it is more informal and less
legally binding), especially in foreign policy.
- Why was it set up?:
The primary reason for establishing the EU was a hope that if countries
cooperated in important areas of industrial and economic life, it was less
likely that political conflicts would occur or that political conflicts where
they did occur would result in warfare between the countries involved - it
was seen as a way of getting away from the national rivalries that resulted in
World War I and World War II - so its purpose was and is to secure peace,
stability and prosperity in Europe
- Name Changes:
1950s - European Economic Community (EEC) + European Coal and Steel
Community (ECSC), European Atomic Energy Community
(EURATOM)
1992 - European Union (EU), but EEC replaced by European Community
(EC) and used legally to describe most of this, the First Pillar or
Common Market, until Treaty of Lisbon came into effect in 2009)
- N.B. ‘Supranationalism’ versus ‘Intergovernmentalism’:
The EU law is exceptional compared to other international law because of the
degree of sovereignty Member States have given to transnational institutions
 i.e. State sovereignty is no longer as decisive
•
The term ‘supranational’ is used to describe this, in contrast to
traditional ‘intergovernmental’ cooperation (some parts of EU still
intergovernmental – Common Foreign and Security Policy entirely
intergovernmental, criminal justice cooperation to some extent)
•
Specifically what does supranational cooperation in the EU involve?:
(1) Direct effect of EU laws, individual can invoked EU law in
national court (unlike international law)
(2) Supremacy of EU laws over national law
(3) Compulsory jurisdiction of a transnational court
(4) Legislative role for a directly elected European Parliament
(5) Majority voting often (not always) rather than unanimity amongst
Member States on proposed laws
- What Kind of Legal Organisation or Entity is the EU?:
One of the features of the EU that makes it different to other international
organisations is the extensive set of institutions established to allow it to
function. They make the EU more like a single federal system or state (e.g.
the USA) than are other international organisations - however, it is not now
formally a federal system, just closer to it than are other international
organisations (whether it continues to develop to become a federal single
state is very much politically controversial).
- There are other free-trade associations in the world, but none has achieved
the level of integration or cooperation as has the EU + the EU goes well
beyond trade to include integration in other economic, social and political
areas - some examples of other trade organisations are:
- North Atlantic Free Trade Area (NAFTA) (USA, Canada, Mexico)
- Association of Southeast Asian Nations (ASEAN) (Philippines,
Indonesia, Malaysia, Singapore, Thailand, Brunei, Vietnam, Laos,
Myanmar/Burma, Cambodia)
- European Free Trade association (EFTA) (Norway, Iceland,
Switzerland, Liechtenstein)
- Andean Community (Bolivia, Colombia, Ecuador, Peru)
- Treaties:
The rules governing the workings of the EU have been set out in
treaties between the Member States. Countries can make
agreements with each other that are equivalent to contracts. They
are legally binding under international law - there have been a series
of such treaties since the EU was founded, most recently the Treaty of
Nice. The following is a list of the main treaties (the first three taken
together are considered to be the founding treaties – note
‘Communities’ is sometimes used to denote the three treaties
together, though more informally just ‘Community’ is used ):
European Coal and Steel Community Treaty 1951 (ECSC))
European Atomic Energy Community Treaty 1957 (EURATOM)
European (Economic) Community Treaty 1957 (EECT/ECT)
(now known as the Treaty on the Functioning of the European
Union or TFEU)
Merger Treaty 1965 (merged the previous three Treaties)
Single European Act 1986 (SEA) (QMV; CFI; formalised
cooperation in e.g. social policy, economic and monetary union,
economic and social cohesion, research and technological
development, environmental policy)
Treaty of Maastricht 1992 (ToM) (introduced Pillar structure –
everything involved in cooperation up to this date was put in the
First Pillar and relabelled the ‘European Community Treaty’ or
ECT, instead of ‘European Economic Community Treaty’ as it
had been up to then, and new and more informal ‘Pillars’ relating
to cooperation in foreign policy and in criminal law and home
affairs were added, with an overarching Treaty called the Treaty
on European Union or TEU – see further below under ‘Pillars’;
co-decision with European Parliament, which greatly
strengthened the Parliament’s role; greater flexibility; citizenship;
subsidiarity; social policy annex with UK opt-out; competences
expanded to include, e.g. health protection, education, culture,
development cooperation, consumer protection, energy civil
protection, tourism)
Treaty of Amsterdam 1997 (ToA) (confirmed flexible geometry;
transfer of visa, asylum, and immigration from 3 rd Pillar to 1st
Pillar, with some transitional provisions)
Treaty of Nice 2001 (agreed institutional changes necessary for
enlargement, including changes to weighting of votes in the
council of Ministers, etc; dealing with expiry of ECSC Treaty by
incorporating it into ECT; reformed ECJ and CFI; extension of
co-decision and QMV; enhanced flexible cooperation)
Treaty establishing a Constitution for Europe 2004 (not ratified)
Treaty of Lisbon 2006 (ratified in November 2009, came into
effect in December 2009) – various reforms (see below)
(various) Accession Treaties (most recently for Croatia in 2011,
Croatia)
Note on terminology:
- The term ‘Communities’ was often used in the past rather than the
‘Community’ because originally with three Treaties (ECSC, EURATOM,
and EEC Treaties), there was technically three Communities, though
the Treaties themselves were merged in the 1965 Merger Treaty and
the institutions were essentially the same.
- In the past, the term ‘the Treaties’ was often used to refer to the
ECSC, EURATOM and EEC Treaties taken together:
→ now the term ‘Treaties’ is used to convey the Treaty on the
Functioning of the European Union and the Treaty on European
Union (reflecting changes introduced by the Treaty of Maastricht
in 1992)
After the Lisbon Treaty, the European Community Treaty is known as
the ‘Treaty on the Functioning of the European Union’ (TFEU).
- ‘Pillars’:
From 1992 (Treaty of Maastricht) until 2009 (Treaty of Lisbon), the
Treaties were organised into three sections, called Pillars - the three
Pillars are as follows:
1. First Pillar (‘European Community’ or EC) = all areas except
foreign policy and criminal law
2. Second Pillar (‘Common Foreign and Security Policy’) =
foreign policy and security issues
3. Third Pillar (‘Police and Judicial Cooperation in Criminal
Matters’) = criminal law/justice
↓ all 3 together = EU
The reason foreign policy and criminal law had their own separate
sections or Pillars (i.e. separate to the ECT) was because the nature
of cooperation in these areas was different - more sensitive as regards
national sovereignty - more informal, less binding/less ‘legal’ types of
cooperation
Before 1992, it was just the First Pillar (although it was not called a
Pillar) - the EU was then known as the European Community (EC).
 the Lisbon Treaty incorporates the Third Pillar into the First Pillar (note the
UK has an opt out from this) and drops the ‘Pillar’ terminology. However,
criminal matters still have significant intergovernmental elements and the
CFSP is still entirely intergovernmental. In addition, the UK and Ireland have
opted out of the new criminal law provisions.
- Accession and Enlargement:
1957 – founding members: France, West Germany, Italy, Belgium, the
Netherlands, Luxembourg
1973 – UK, Ireland, Denmark
1986 – Spain, Portugal
1995 – Austria, Sweden, Finland
2004 – Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Malta, Poland, Slovakia, Slovenia
2007 – Bulgaria, Romania
2011 – Croatia
- Institutions of the EU:
The main institutions of the EU are (there are a number of others, such as the
Committee of the Regions and Social and Economic Committee, but these
have mainly consultative roles):
- the European Council (body consisting of all of the heads of
government - prime ministers, though, e.g. in France, the president is
the head of government) - this decides the broad policy of the EU.
Since the Treaty of Lisbon, the European Council has a permanent
chairperson (appointed for a term of 2 & ½ years).
- the Council of Ministers (consists of government ministers with
same responsibility acting collectively - e.g. all ministers for finance) this deals with more specific matters in the different areas of
cooperation, and it is also one of the main authorities with power to
make laws (for a long time, only it could make EC/EU law, but now it
usually must act with the approval of the European Parliament)
- the Presidency of the Council of Ministers: for a period of six
months, one Member State will hold the Presidency of the Council of
Ministers and of the European Council. The Presidency acts as
chairperson and involves organising meetings of the both councils for
the six-month period, liaising between the Member States for the
conduct of EU business, and also acting as a spokesperson for the
EU, especially in international affairs. The Presidency rotates between
all the Member States for six-month periods. After the Lisbon Treaty,
the Presidency of the European Council will be held by a separate
appointed official.
- the European Parliament (EP): consists of representatives from all
Member States who are directly elected (it does not have as much
power as a parliament in a national system, it must cooperate with the
European Council and Council of Ministers in the passing of laws until 1992, it had very little power to participate in passing laws)
- the European Commission: this is the executive part of the EU this means it has the main responsibility for making sure decisions
adopted by the other Institutions are put into effect + it also has the
central role in proposing new policies and laws (it enjoys the more or
less exclusive right to make proposals for new laws, although the
Parliament and Council of Ministers may suggest such proposals to
the Commission). One of the vice-presidents of the Commission is
responsible for coordinating EU foreign policy and is known as the
High Representative for Foreign Affairs and Security Policy. The High
Representative also chairs meetings of the Council of Ministers
consisting of foreign ministers of the Member States.
- the European Court of Justice (ECJ)/Court of Justice of the
European Union (CJEU): this is the Court of the EU and decides
legal concerning the laws of the EU - Member States must accept its
decisions and put them into effect - this follows from what is called the
principle of supremacy, which is very important for the working of the
EU - supremacy means that where there is a conflict between EU law
and the law of a Member State (e.g. UK law), the Member State must
apply the EU law over and above its law (under to the procedural law
relating to the ECJ, which is quite complex, there are a number of
different types of actions that can be brought before it – the most
common and important is the preliminary reference procedure,
whereby national courts refer a question of EU law to the ECJ for
clarification, whereby the ECJ then returns the case to the national
court and the national court decides the outcome according to the
interpretation by the ECJ of the requirements of EU law)
- the General Court (prior to Lisbon, known as the Court of First
Instance (CFI)): this was established in 1988 initially to assist the ECJ,
but it has since become more important and has jurisdiction over a
wide variety of cases. Some of its decisions may be appealed to the
ECJ.
- the Court of Auditors: this is not really a court as we normally
understand, rather it is a regulatory body that makes sure the EU and
its institutions spend money properly - it acts as an auditor for the EU,
just as accountants act as auditors for companies
- the European Central Bank (ECB): this is responsible for monetary
policy, which includes the single currency (Euro) and bank interest
rates
- the Committee of Permanent Representatives (COREPER): this
consists of the permanent ambassadors of each country/Member
State to the EU. It does the preparatory work for Council of Ministers
meetings. In practice, it is very important, since the Council of
Ministers can only meet infrequently, whereas COREPER is a
permanent ongoing body of officials.
These institutions are based in:
- Brussels (European Council, Council of Ministers, Parliament,
Commission)
- some are in Luxembourg (ECJ, General Court, Court of
Auditors)
- and the ECB is in Frankfurt
Note: There are quite a few other specialist bodies set up by
secondary legislation (i.e. regulations, directives, etc), but the above
are the main institutions under the Treaties.
- EU Finances:
-
Originally, the EU (or Communities as it was then) came mostly
from contributions from the Member States (though under the
ECSC Treaty, that Community was self-financing through levies on
coal and steel). From the 1970s on, however, the Communities
developed greater financial independence from the Member States
by being directly financed through. The Communities’ finance now
was provided partly by agricultural levies, taxes on goods from
outside the Communities, and a 1% Value Added Tax. The effect
was to make the Communities’ institutions (e.g. the Commission)
more independent of the Member States, since the Communities’
income was not dependent on the goodwill of current national
political administrations.
-
Since 1968, the common customs union has been agreed by the
Member States, which means that they have agreed common
tariffs (‘common customs tariff’) for goods coming from third
countries, though there can be agreed exceptions. The EU is now
represented as a bloc in the World Trade Organisation (WTO) and
so all EU Member States agree a common customs duty to apply
to goods from third countries, within the framework of the WTO.
Money from the common customs tariff goes directly to the
Union budget (though because of WTO rules, the amount is not
now very large) along with a percentage of VAT and agricultural
levies, these together are what give the EU institutions a degree of
financial independence.
- EU Laws:
Supremacy and direct effect:
One of the central principles of EU law is supremacy - nearly all EU
law are supreme over national law, although it is debatable whether
EU law has supremacy over national constitutional law.
A second central principle of EU law is direct effect – this means that
individuals can invoke EU law in national courts. This may seem
unremarkable, but its significance can be seen in the context that
traditionally, any international law could only be invoked in national
courts by a government, international law could not be relied on by a
citizen. Direct effect allowed individuals to enforce their rights under
EU law in national courts, and in combination with supremacy, this is a
very important way of enforcing EU law in national systems.
Conditions for direct effect = clear and precise, unconditional, and
entailing an individual right.
The significance of direct effect, for the UK at least, can be understood
in the context of the distinction between monism and dualism as
approaches to incorporating international law into national law:
this distinction concerns the general relationship between a domestic
legal system and international law (EU law can be considered a type
of international law). In a dualist system, such as the UK, international
treaties or conventions agreed to and signed by the UK government
only become part of UK law where they are subsequently incorporated
by an Act of Parliament; in contrast, in monist jurisdictions, when the
government signs up to an international treaty or convention, it
automatically becomes law, without the need for any approval by
Parliament). So direct effect, in practice, means the UK is dualist as
regards EU law.
Both supremacy and direct effect were first developed by the ECJ,
rather than having been set out in the treaties themselves.
- Types of EU law:
There are different types of EU law, the differences in the type of laws
relate to the exact effect of the law with regard to national law and the
level of discretion or further implementation left to national authorities.
The three main types of legal instrument or law are:
(1) Regulations - general application (i.e. addressed to all
Member States), binding in entirety,
(2)
Directives - not necessarily of general application (i.e. they are
not generally directed to all the Member States), binding as to
result to be achieved,
(3)
Decisions - usually directed more particularly (i.e. they are not
generally directed to all the Member States), binding in entirety,
(4)
Recommendations and Opinions - just that, no legal force.
Usually, the Treaties do not state which type of law can be passed in
particular areas of cooperation – the institutions generally have a choice
as to which method to adopt. There is no hierarchy among them, so they
all have the same status.
- Primary and Secondary Legislation/Laws in EU:
(1) The Treaties are considered primary law/legislation
(2) Regulations, Directives, and Decisions are considered ordinary
legislation, which in the EU is called considered secondary
legislation.
Note that this is different to the use of these terms in a national system. In
national systems, ‘secondary legislation’ refers to delegated legislation, the
latter is a distinct third category in EU law – also in a national system, the term
primary ‘legislation’ refers to Acts of Parliament, which are roughly equivalent
to EU directives and regulations.
- Unanimity versus Qualified Majority Voting (QMV):
The different types of law may be passed using one of the procedures listed
below (co-decision etc.). A distinction exists as to the voting in the Council of
Ministers (the Council of Ministers is involved in all of the different methods of
passing legislation) - a system of unanimous voting in the Council or
Qualified Majority Voting.
Which of these applies (QMV or unanimity) in the Council of Ministers is
specified in the Treaty articles on the particular area of cooperation involved.
The normal procedure is for QMV as part of what the Treaties call the
‘ordinary legislative procedure.’
Following what is referred to as the Luxembourg Compromise of 1965, it
became normal not to use QMV where a Member State asserted that its
important national interests were involved, even where legally QMV could be
used under the Treaty. This tendency decreased somewhat as integration
became more developed, and especially following the Single European Act
1986. Unanimity is still required as specified by the Treaty in a number of
areas considered especially politically sensitive – e.g., accession (Article 49
TEU) or employment (Article 153(2) TFEU).
- Methods of adopting/passing EU Law:
A second dimension of the law-making process is the manner in which these
different types of law may be passed. There are several different methods
of passing laws, though the there is a normal method called the ‘ordinary
legislative procedure’.
The significance of the different methods relates to the role of different
institutions in making the law. For example, some methods give the
European Parliament a substantial role, other methods reduce its role relative to the Council of Ministers. The Council of Ministers is centrally
involved in all of the methods of law-making (the main differences between
the methods relates to the role of the European Parliament).
The complexity of the law-making procedure has been much criticised.
There is an ongoing debate as to whether the EU is democratic enough and
understandable for ordinary citizens. Although some attempt to simplify the
law-making/legislative procedure has been made since the Treaty of
Amsterdam, it is still complex.
A particular feature of EU law is that only the Commission may formally
propose new legislation. The Commission enjoys a more or less exclusive
right of initiative. There are some exceptions, e.g. Article 76 TFEU gives a
quarter of the Member States a right of initiative in matters relating to the
‘Area of freedom, Security and Justice’, relating to criminal and immigration
matters.
The Treaties (TEU and TFEU) do not always specify which method of passing
a law is to apply, often it does not. It is sometimes to some extent a matter of
practice or custom.
There are several procedures, but the main one is or ‘ordinary legislative
procedure’ is the co-decision procedure – Council, Commission and Codecision by European Parliament (Article 294 TFEU):
-
Cannot pass a measure without approval of European Parliament
– now more common than co-operation procedure, now the main
method for making EU legislation – applies whenever specified in
Treaty – detailed procedure, broadly comparable to Co-operation
procedure – Conciliation Committee – Council acting by QMV,
European Parliament acting by absolute majority – European
Parliament can effectively veto, but cannot force Council to accept
its amendments – successfully in practice. Generally, only 25
percent have needed Conciliation procedure, only 12% of those fail
to produce a compromise
- Other Points – Right/Possibility of Initiative for Council and European
Parliament:
Both the Council of Ministers and the European Parliament may
request the Commission to initiate legislation. Only the
Commission has a formal right of initiative, but it would feel a strong
pressure to respond to such a request from either the Council (Article
241 TFEU) or the European Parliament (Article 225 TFEU), though it
is technically not obliged to do so.
- Consultation with social partners in social policy area:
The Treaty of Amsterdam 1997 introduced in what is now Article 154
TFEU a procedure involving the participation of social partners in the
adoption of legislative measures relating to the definition of European
social standards – the Commission is required to consult them under
these Articles.
- Delegated legislation and Commission legislating alone – Development of
‘Comitology’:
In some technical areas, the Commission has the power to pass a
Regulation itself – this power derives from a parent Regulation passed
by the Council. These Regulations passed by the Commission relate
to matters of detail and implementation only.
In order to have some oversight of how the Commission exercises this
power of delegated legislation, a committee system has developed
whereby representatives of Member States would sit in a
committee to discuss delegated legislation with the Commission
(this system became known as ‘Comitology’) – this system was put on
a formal basis by a Decision passed in 1987. A Declaration
(Declaration 31) appended to the Treaty of Amsterdam provided that
the European Parliament should also be consulted as part of this
Comitology system and that transparency of the latter should be
enhanced.
- Some Leading Decisions of the European Court of Justice:
Case 26/62, Van Gend en Loos [1963] ECR 1:
– an individual of a Member State is allowed to invoke EU law in a
national court, and so can sue his or her own government on EU law
grounds (this is known as ‘direct effect’ – traditionally in international
law, only a State could invoke international law in a national court).
Case 6/64, Costa v. ENEL [1964] ECR 585:
– if there is a conflict between a national law of a Member State and an
EU law, the EU law takes priority (this is known as ‘supremacy’).
Case 41/74, Van Duyn v. Home Office [1974] ECR 1337:
– a Directive (remember a Directive is a particular type of EU law, see
above) could have direct effect, i.e. be invoked by an individual in a
national court against the individual’s own government.
Case 92/78, Simmenthal v. Commission [1979] ECR 777:
– an individual could bring a case relating to EU acts/measures that
were not in the form of Regulations (remember a Regulation is a
particular type of EU law, see above), but had similar effects to
Regulations.
Case 152/84, Marshall v. Southampton Area Health Authority [1986] ECR
723:
– EU Directives (see above) could not be a basis for an individual suing
another individual, directives could only be a basis for an individual to
sue the State (this is called vertical direct effect)
Case C-6/90, Francovich v. Italy [1991] ECR I-5357:
– where an EU Member States breaks EU law, it is liable in damages
to the person affected (this is called State liability’).
- The Lisbon Treaty (came into effect December 2009):
•
Integrates what is now the Third Pillar (criminal justice matters) into
what was previously the First Pillar (i.e. the standard supranational
framework), so these would be ‘communitarised’ and thus subject to
doctrines of direct effect, possibly some degree of supremacy (though
scope of this unclear), State liability. Some intergovernmental elements
(i.e. relatively strong powers for the Member States) remain in criminal
matters.
•
New flexibility features, e.g. provisions on closer cooperation between
the Euro-group (Ch. 4, Title VIII, Part Three TFEU) and revised rules
on enhanced cooperation (Title IV TEU and Title III, Part Six TFEU)
generally;
•
Recent changes to legislative procedures by the Council of Ministers,
amending its Rule of Procedure, to ensure greater transparency by
increasing public access, cf. issue of Council of Ministers as upper
chamber in a bicameral Parliament;
•
Background context of failed Treaty establishing a Constitution, but
many features of the latter are retained;
•
Supremacy doctrine and Charter on Fundamental Rights incorporated
by reference (though scope of former debatable);
•
ECT becomes Treaty on the Functioning of the European Union
(TFEU)  division between the two Treaties (i.e. TEU and TFEU) not
always very logical, e.g. principles of attributed powers, subsidiarity,
and proportionality are in the TEU, but provisions on exclusive, shared,
and complementary competences are in the TFEU;
•
Principle of conferral retained, Article 5(1) TEU, but ‘spillover’ in
practice + some new competences: major new competence is that
Third Pillar is integrated into First Pillar and ‘communitaised’;
•
CFSP still intergovernmental, simplification of its legal instruments, now
just ‘decisions’;
•
Legislation largely the same, though with confusing distinction between
non-legislative and legislative versions of the same instruments;
•
New posts of Presidency of
Representative for Foreign Affairs.
European
Council
and
High
2. European Union Law in UK Law: The ‘Special’ Nature of European
Union Law
1) The European Communities Act 1972, ss 2 & 3
s.2(1):
“All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising 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 U.K.
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.”
The European Union Act 2011 – two main developments, very
significant constitutionally, at least symbolically:
(1) A referendum is now required for any future transfer of
competence to the EU from the UK
(2) Section 18 confirms that EU law only has effect in UK law
because of being recognised by UK law, i.e. it does not have a
status in UK law independent of recognition by the UK
Parliament
2) Caselaw:
a) McCarthys Ltd v. Smith [1981] QB 199 – concerned
interpretation of Equal Pay Act 1970 - Lord Denning MR said
must look to relevant European Economic Community Treaty
(EEC Treaty) (now TFEU) provision (then Article 119) that the
Act was intended to give effect to, thereby implicitly accepted
supremacy, but considered it in monist terms to the effect that
Community law was now in effect UK law:
“... the provisions of Article 119 of the EEC Treaty
take priority over anything in our English statute on
equal pay which is inconsistent with Article 119.
That priority is given by the European
Communities Act 1972 itself. Community Law is
now a part of our law: and whenever there is any
inconsistency, community law has priority. It is not
supplanting English law. It is part of our law which
overrides any other part which is inconsistent with
it.”
b) Garland v. British Rail Engineering [1982] 2 All ER 402 –
issue at
stake similar to McCarthys re interpretation – whether words
used in the Sex Discrimination Act 1975 should be construed in
light of Article 119 of the ECT – Lord Diplock:
“it is a principle of construction of United Kingdom
statutes, now too well established to call for
citation of authority, that the words of a statute
passed after the treaty has been signed and dealing with the subject matter of the international
obligation of the United Kingdom, are to be construed if they are reasonably capable of bearing
such a meaning, as intended to carry out the
obligation and not to be inconsistent with it ... The
instant appeal does not present an appropriate
occasion to consider whether, having regard to the
express direction as to the construction of
enactments “to be passed” which is contained in
s.2(4), anything short of an express positive
statement in an Act of Parliament passed after 1
January 1973 that a particular provision is
intended to be made in breach of an obligation ...
would justify a court in construing that provision in
a manner inconsistent with a Community treaty
obligation.”
c) Marshall v. Southhampton and South West Hampshire Area
Authority [1986] QB 401 – concerned compulsory retirement at
age of 62 a woman dietician working for Health Authority –
discrimination on grounds of sex alleged – ECJ said the practice
was contrary Dir. 76/207, after CA referred case to under
preliminary ruling procedure in Article 177 ECT (now Article
267 TFEU).
d) R v. Sec. of State for Transport, ex parte Factortame Ltd.
[1989] 2 All ER 692; 2 WLR 997 – this was the first UK case
to explicitly turn on the question of supremacy of EC law –
facts concerned Merchant Shipping Act 1988, which contained
certain requirements for registering a fishing vessel as a British
fishing vessel, the effect of which was to make it more difficult
for nationals from other member States to have their fishing
boats registered as such in Britain – Divisional Court (DC) (part
of High Court) wished to refer the question to the ECJ on the
questions of Community law, but in the meantime, pending the
decision of the ECJ, the question of interim relief under English
law arose, i.e. should the Court suspend the operation of the
Merchant Shipping Act 1988 and how could it do so in light of
the doctrine of Parliamentary Sovereignty? – the DC ordered
suspension of Part II of the 1988 Act, but on appeal CA held the
DC could not do so and the HL agreed with CA that as a matter
of English law, the 1988 Act had to be applied by the Courts –
but the HL then referred a second preliminary reference to ECJ
as to what was the requirement of Community law as to
remedies, as opposed to the substantive issues (the ECJ had
already ruled on those) – ECJ said EC law must take priority,
unsurprisingly, and HL then agreed to suspend application of the
relevant provisions of the 1988 Act.
e) Thoburn v. Sunderland City Council [2002] EWHC 195; 3
WLR 247; 1 CMLR 50 Laws LJ on implied repeal (see also
Diplock LJ above in Garland):
“The ECA is, by force of the common law, a
constitutional statute.”
“Ordinary statutes may be impliedly repealed.
Constitutional statutes may not. For the repeal of a
constitutional Act or the abrogation of a
fundamental right to be effected by statute, the
court would apply this test: is it shown that the
legislature’s actual--not imputed, constructive or
presumed--intention was to effect the repeal or
abrogation? I think the test could only be met by
express words in the later statute, or by words so
specific that the inference of an actual
determination to effect the result contended for
was irresistible. The ordinary rule of implied repeal
does not satisfy this test. Accordingly, it has no
application to constitutional statutes. I should add
that in my judgment general words could not be
supplemented, so as to effect a repeal or
significant amendment to a constitutional statute,
by reference to what was said in Parliament by the
minister promoting the Bill pursuant to Pepper
(Inspector of Taxes) v. Hart. A constitutional
statute can only be repealed, or amended in a way
which significantly affects its provisions touching
fundamental rights or otherwise the relation
between citizen and State, by unambiguous words
on the face of the later statute.”
 from the point of view of the UK legal system,
modification of Parliamentary Sovereignty is a function of
the ECA 1972, and not of EC law? e.g. TRS Allan,
‘Parliamentary sovereignty: law, politics, and revolution’, 113
Law Quarterly Review 443-452 (1997) versus view of Sir William
Wade that Factortame represents a
‘revolution’, see
‘Sovereignty: revolution or evolution?’, 112 Law Quarterly
Review 568-575 (1996).
3. Key Points about the Council of Europe:
•
An international organisation of 47 countries , mostly in Europe;
•
Founded after World war II to promote human rights, democracy;
•
Like most international organisations, it works by the principle of State
consent, i.e. States are bound to any laws it proposes only if they
agree (they cannot be outvoted);
•
The Council of Europe adopts treaties and conventions in its area of
competence;
•
Though there are now over 200, the most important by far is the
European Convention on Human Rights (1950);
•
See further below at 7 for comparison with EU.
4. Council of Europe Law in UK Law:
- Not many Council of Europe laws have been incorporated into UK law, the
most important by far was the incorporation of the European Convention on
Human Rights into UK law by the Human Rights Act 1998:
 The Human Rights Act thus introduced the concept of a Bill of
Rights into UK law for the time. Unlike other Bills of Rights in
countries with a system of constitutional review, however, the
Act does not provide that statutes inconsistent with the stated
human rights are not valid, rather it adopts a compromise
position, reflecting the UK tradition of Parliamentary
Sovereignty’, providing that:
- under s. 3, that the Courts should “in so far as possible” seek
to interpret UK statute law in a manner compatible with the
provisions of the European Convention on Human Rights that
the Act incorporated into UK law, i.e. a duty of interpretation
- under s. 4, if it is not possible under s. 3 to interpret an Act so
as to render it compatible with the Convention rights, the Courts
(though only the High Court, Court of Appeal, and House or
Lords) may issue a declaration of incompatibility, which is just
that  a declaration that the provisions of the Act in question
are incompatible with the Convention rights involved, but, the
Act is still valid and must be applied by the Courts to the
case at hand
- under s. 2, the UK Courts are obliged, when adjudicating on
ECHR issues, to take into account jurisprudence/caselaw
from the European Court of Human Rights (which sits in
Strasbourg) (Note: difference between taking into account and
following as a binding precedent  Strasbourg jurisprudence is
persuasive precedent only)
- under s. 6, all public bodies are under a statutory duty to
carry out their functions in a way that is compatible with the
ECHR (this is important as a matter of Administrative Law,
which we will examine in more detail in Term 2)
● The ECHR rights (‘the Convention rights’) incorporated:
- Most though not all of the right set out in the ECHR were
incorporated by the Act into UK law by s. 2 of the Act:
○ Articles 2 to 12 and 14 of the Convention, so Article 13 on the
right to an effective remedy was omitted (the HRA has its own
provisions on remedies in ss. 8-10)
○ Articles 1 to 3 of the First Protocol, and
○ Articles 1 and 2 of the Sixth Protocol,
○ as read with Articles 16 to 18 of the Convention, so
Article 15 was also not incorporated (Article 15 is on
derogations, which are dealt with separately in ss. 14-16
of the HRA)
5. Relating the EU and Council of Europe to Each Other:
- Both these organisations, the Council of Europe, and the EU, were set up
after World War II (1939-1945) to encourage cooperation between European
countries.
- Though the main concern of the Council of Europe was democracy and
human rights and the EU was originally concerned with the essentially
economic issue of a common market, as the EU expands its competence,
there is increasing potential for duplication and overlap, e.g. criminal justice,
human rights
- The aim/objectives of the Council of Europe are set out in Article 1 of the
Statute of the Council of Europe 1949 (ETS no. 01):
“Chapter I – Aim of the Council of Europe
Article 1
a
The aim of the Council of Europe is to achieve a greater unity between
its members for the purpose of safeguarding and realising the ideals
and principles which are their common heritage and facilitating their
economic and social progress.
b
This aim shall be pursued through the organs of the Council by
discussion of questions of common concern and by agreements and
common action in economic, social, cultural, scientific, legal and
administrative matters and in the maintenance and further realisation of
human rights and fundamental freedoms.
c
Participation in the Council of Europe shall not affect the collaboration
of its members in the work of the United Nations and of other
international organisations or unions to which they are parties.
d
Matters relating to national defence do not fall within the scope of the
Council of Europe.”
- The main differences between the EU and Council of Europe are:
- Areas of competence: The focus of EU cooperation was economic,
whereas the focus of Council of Europe cooperation was more
concerned with social matters, and human rights, and criminal justice
cooperation. However, the EU has now become more involved in social
matters and in criminal justice matters (although to a lesser extent than
economic matters), so there is now more overlap between the EU and
Council of Europe.
- Nature and degree of the cooperation: In EU cooperation,
countries give up more of their sovereignty to the institutions of the EU,
e.g. they may be outvoted (so a unanimity rule does not always apply,
whereas it does always apply in the Council of Europe), compulsory
(not optional) jurisdiction of a transnational court, supremacy and direct
effect of laws. This is not so with cooperation in the Council of Europe,
which is always on a voluntary basis.
- Members: The EU is smaller in that few countries are members,
although it has expanded overtime (now 27), whereas almost every
country in Europe is a member of the Council of Europe.
- Types of laws: The Council of Europe operates through typical
international law legal instruments – treaties and conventions (there
are now just over 200 of these). The EU has its own special legal
instruments, which are more like laws at a national level (see below).
There are many hundreds of EU laws.
- Effect of laws: Laws passed by the EU automatically become part of
national law and have (generally speaking) precedence/supremacy
over national law if there is a conflict between the EU law and a
national law. In contrast, whether treaties and conventions agreed as
part of the Council of Europe become a part of national law is a matter
for each country, and if there is a conflict between a Council of Europe
measure and a national law, usually the national law has
priority/supremacy.
- Terminological Similarity between the EU and the Council of Europe:
A frequent cause of confusion is the similarity of terminology between the
Council of Europe and EU systems.
→ For example, the EU has two institutions that can be easily confused with
the Council of Europe – meetings of ministers in the EU are called ‘the
Council of Ministers’ (often shorted to ‘the Council’) and meetings of heads of
government in the EU are called ‘the European Council’:
Main Institutions of the EU (most are based in Brussels):
European Council (heads of government meeting)
Council of Ministers (ministers meeting)
European Parliament (directly elected)
European Commission (head of EU executive/civil
service)
European Court of Justice (sits in Luxembourg,
has
jurisdiction over nearly all EU law)
Main Institutions of the Council of Europe (based in
Strasbourg):
- Committee of Ministers (ministers meeting)
Parliamentary
representatives)
Assembly
(appointed
- European Court of Human Rights (only has
jurisdiction over the European Convention on
Human Rights)
* In the past, a body called the Commission of Human
Rights acted as a preliminary court for the European
Court of Human Rights, but this Commission has now
been abolished.
* The Council of Europe has no executive body
equivalent to the European Commission in the EU.
Week 2 Tutorial 1 Questions: Overview of the EU
1. What was the original purpose of what is now the EU?
2. Why was the expression ‘Communities’ used from the 1950s to 1992 to
describe what is now the EU?
3. What was the first major Treaty revision in the history of the EU?
4. When did the EU come into being?
5. What
is
the
difference
intergovernmentalism?
between
supranationalism
and
6. What were the main changes introduced by the Lisbon Treaty?
7. What started off as the EEC Treaty later became the EC Treaty. When
did it become the EC Treaty? What is it called now? What is the other
main EU Treaty called (there is a hint in this question …)?
8. What does s. 18 of the (UK) European Union Act 2011 say? What do
you think is the significance of this?
Essential Reading:
European Union Act 2011
Week 3 Lecture Outline: Supremacy and Direct Effect
- Supremacy:
Case 6/64, Costa v. ENEL [1964] ECR 585
Case 11/70, International Handlesgesellschaft [1970] ECR 1125
Case 106/77, Simmenthal [1978] ECR 629
Internationale Handelsgesellschaft, BVerfGE 37, 271, [1974] 2 CMLR 540
(Germany)
Wünsche Handelsgesellschaft, BVerfGE 73, 339; [1987] 3 CMLR 225
(Germany)
Brunner v. European Treaty, BVerfGE 89, 155; [1994] 1 CMLR 57 (Germany)
Lisbon Treaty Case, BVerfG, 2 BvE 2/08, judgment of 30 June 2009
(Germany)
Constitutional Court of Spain, Declaration on the consistency of the European
Constitutional Treaty with the Spanish Constitution, DTC 1/2004, 13 Dec.
2004
R v. Sec. of State for Transport, ex p. Factortame Ltd. (No. 1) [1989] 2 All ER
692
(UK)
- Supremacy in Context and Competences of the EU:
Articles 4, 5 TEU
Articles 2-6 TFEU
Case 22/70, Commission v. Council (Re European Road Transport
Agreement)
[1971] ECR 263 (‘ERTA’)
Case 8/74, Procureur du Roi v. Dassonville [1974] ECR 837
Opinion 1/76 Re Draft Agreement Establishing a Laying-up Fund for Inland
Waterway Vessels [1977] ECR 741
Cases 3, 4 & 6/76, Kramer [1976] ECR 1279
Opinion 1/91 Re European Economic Area Agreement I [1991] ECR 6079
Opinion 2/91 Re Convention No. 170 International Labour Organisation on
Safety in
the Use of Chemicals at Work [1993] ECR I-1061
Joined Cases 177 and 178/82, van de Haar and Kaveka de Meern [1984]
ECR 1797
Opinion 2/94 Re Accession of the Community to the European Convention on
Human Rights [1996] ECR1-17
Case C-376/98, Germany v. Parliament and Council [2000] ECR I-8419
(‘Tobacco
Advertising’)
- Meaning of direct effect:
Case
26/62,
Van
Gend
en
Loos
v.
Netherlands
Inland
Revenue
Administration
[1963] ECR 1
- Expansion of direct effect:
Case 9/70, Franz Grad v. Finanzamt Traunstein [1970] ECR 825
Case 39/72, Commission v. Italy [1973] ECR 101
Case 41/74, Van Duyn v. Home Office [1974] ECR 1337
Case 148/78, Publico Minister v. Tullio Ratti [1979] ECR 1629
Case 152/84, Marshall v. Southampton Area Health Authority [1986] ECR 723
Case C-91/92, Faccini Dori v. Recreb Srl. [1994] ECR I-3325
Duke v. Reliance [1988] 2 WLR 359
Case C-253/00, Muñoz & Superior Fruiticola v. Frumar Ltd & Redbridge Ltd.
[2002]
ECR I-7289
Week 3 Tutorial 2 Questions: Direct Effect
1.
How does the doctrine of supremacy take effect in national legal
systems?
2.
In what sense has there been ‘resistance’ to supremacy in the Member
States?
3.
If an EU measure (i.e. legislative act in the form of a Regulation,
Directive, or Decision) is said to be ‘directly effective’, what does that
mean? How does it differ from ‘directly applicable’?
4.
What conditions have to be met for the direct effect of a Treaty article
in Van Gend en Loos? How were they changed in the later cases of?
(a)
(b)
Case 57/65, Alfons Lütticke v. Hauptzollamt Saarlouis
Case 43/75, Defrenne v. SABENA (No.2)
5.
In Case 41/74, Van Duyn v. Home Office, the ECJ ruled that
unimplemented directives can have direct effect if certain conditions
are satisfied. What are those conditions and how do they differ from
those identified in Q4 above? Is it possible for an implemented directive
to be still subject to direct effect and under what circumstances?
6.
Explain the difference between vertical and horizontal direct effect. Are
all types of legislation capable of horizontal direct effect?
Week 4 Lecture Outline: Direct Effect, Indirect Effect,
Incidental Direct Effect
- Vertical Direct Effect:
Case 43/75, Defrenne v. SABENA [1976] ECR 455
Case C-438/99, Jiménez Melgar v. Ayuntamiento de Los Barrios [2001] ECR
I-6915
Case 222/84, Johnston v. Chief Constable of the RUC [1986] ECR 1651
Case C-6/05, Medipac-Kazantzidis v. Venizelio-Pananio [2007] ECR I-4557
- Horizontal direct effect:
Case C-188/89, Foster v. British Gas [1990] ECR I-3133
Case C-281/98, Angonese [2000] ECR I-4139
Case C-453/99, Courage Ltd v. Crehan [2001] ECR I-6297
National Union of Teachers and others v. the Governing Body of St Mary’s
Church of
England (Aided) junior School and others [1997] IRLR 242
- Other caselaw:
Case C-413/99, Baumbast and R v. Home Department [2002] ECR I-7091
Case-36/74, Walrave & Koch v. Ass. Union Cycliste Internationale [1974]
ECR 1405
Case 2/74, Reyners v. Belgium [1974] ECR 631
Case 33/74, Van Binsbergen v. Bestuur van de Bedrijfsverening [1974] ECR
1299
- Indirect effect:
Case 14/83, Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR
1891
Case 79/83, Harz v. Deutsche Tradex GmbH [1984] ECR 1921
Duke v. GEC Reliance [1988] 2 WLR 359
Case C-106/89, Marleasing SA v. La Comm. Internac. de Alimen. [1990] ECR
I-4135
- Incidental direct effect:
Case C–194/94, Case C-6/05, Medipac-Kazantzidis v. Venizelio-Pananio
[2007]
ECR I-4557
Case C–226/97, Johannes Matinus Lemmens [1998] ECR 1-3711
Case C-443/98, Unilver Italia SpA v. Central food SpACase 222/84 Johnston
v Chief
Constable of the RUC [1986] ECR 1651
Case C-201/02, R (on the application of Wells) v. Secretary of State for
Transport,
Local Government & the Regions [2004] ECR I-723
Week 4 Tutorial 3 Questions: Direct Effect, Indirect
Effect, and Incidental Effect
1.
In case C-91/92, Faccini Dori the Advocate-General attempted to
persuade the ECJ to extend horizontal direct effect to directives. What
were his arguments? And how did the Court respond? Do you think
their arguments are valid?
2.
The ECJ laid down a test in Case C-188/89, Foster v. British Gas to
determine whether a body is an ‘emanation of the state’. What is that
test? Is it adequate?
3.
What does indirect effect mean? How does it differ from direct effect?
4.
Does the doctrine apply horizontally, vertically or both? Or is this a
relevant question at all? It has been called ‘horizontal direct effect by
the back door’. Do you think this is a fair assessment?
5.
Why was the relevant EC directive in Von Colson not directly effective?
6.
How did the ECJ’s ruling in Marleasing extend the principle of indirect
effect? Do you think this decision was reasonable or was the CJEU
exceeding its jurisdiction?
7.
Might Indirect Effect apply in any of the following situations? Explain
your answer:
(a)
A directive has been implemented incorrectly into national law
(i) accidentally (ii) deliberately.
(b)
A directive has not been implemented into national law because
it is claimed that the existing national law already adequately
covers the necessary requirements.
A directive has not been implemented into national law. There is
some general law in the national legal system in the subject
area of the directive.
A directive relevant to a case in court has not been
implemented. If Indirect Effect is found to be possible, it will
have the effect of imposing a custodial sentence on the
defendant. Should the court go ahead?
(c)
(d)
Week 5 Practice Questions: Supremacy and Direct
Effect
Formative assessment:
1. The absolute supremacy claim made by the ECJ/CJEU in Costa v.
ENEL and later in Internationale Handelsgesellschaft is
unsustainable.
Critically discuss
2. Article 2(2) of an (imaginary) Directive adopted by the Community
on 1st April 2003 entitled “Teachers’ Employment Rights” provides
that
“Teachers employed in schools and in higher education establishments
and working in the territory of any of the Member states shall have the
right to take a meal break of a minimum duration of one hour after
every single teaching session lasting two and a half hours or at the end
of any series of consecutive teaching sessions lasting a total of three
hours.”
The Directive was to have been implemented in all Member States by
30 June 2005, but the UK government has not yet taken any steps to
do so. Indeed, the government has publicly expressed its opposition to
the Directive as being an unnecessary encroachment on the part of the
community into areas which should remain within the sovereign powers
of the Member States and in fact a breach of the principle of
subsidiarity. The UK had also voted against the Directive when it was
adopted by a qualified majority vote in the Council.
Rachel, who has been working in a state comprehensive school in
North London for several years, was told by her headmistress in
January of this year that, owing to staff shortages, she would be
required to teach economics this academic year to four consecutive
classes of one hour each from 9am to 1pm on Tuesdays. Rachel told
her headmistress that it was unreasonable to work for four hours
continuously without a break, and she in turn said that the school
governors will instantly dismiss any teacher who does not work in
accordance with the new timetable.
José, who is a Spanish citizen, works for the Pan-European University,
a privately-owned institution running specialised post-graduate courses
in European cultural studies based in London. On his return to work in
January, José was required by his head of department to deliver a
three-hour lecture on Spanish history each Wednesday without a
break. He told his employers that he was not prepared to work for so
long without a break, and that he would deliver two separate lectures of
one and a half hours each instead (as he had done in previous years).
José has also been threatened with instant dismissal if he refuses to
comply.
3. The EU passes a (fictitious) directive saying workers should wear
protective masks when working with members of the public
because of the risk of infection with a new strain of avian flu which
has been detected in Germany. The directive is implemented in the
UK by a statutory instrument.
A separate directive is passed stating that any one working with public
sources of water must wear waterproof gloves to avoid contamination
of the water supply and to avoid workers being infected.
Andrea works for a PFI hospital near Tunbridge Wells. The hospital
refuses to supply the protective masks as it has already spent its
budget for personal equipment. Andrea demands a mask from the
hospital management.
Brian works for the Environment Agency and contracts avian flu which
could have been avoided had he been wearing the gloves. However,
the UK has not implemented the Directive even though the deadline
has passed.
Week 6 Lecture Outline: State Liability; Role of the
ECJ/CJEU
- State liability:
Case C-6 & 9/90, Francovich v. Italy [1991] ECR I-5357
Case C-91/92, Faccini Dori v. Recreb Srl. [1994] ECR I-3325
- Conditions for State liability:
Cases C-46 & C-48/93, Brasserie du Pêcheur SA v. Germany [1996] ECR I1029
Case C-392/93, R v. HM Treasury ex parte British Telecom PLC [1996] ECR
I-1631
Case C-178,179,188,189 and 190/94, Dillenkofer and others v. Federal
Republic of Germany [1996] ECR I-4845
Case C-5/94, R v. Ministry of Agriculture Fisheries and Food, ex parte Hedley
Lomas (Ireland) Ltd. [1996] ECR 1-2553
Case C-470/03, AGM v. Finland [2007] ECR I-2749
Case C-445/06, Danske Slagterier v. Germany [2009] ECR I-2119
- State liability for judicial error:
Case C-224/01, Köbler v. Austria [2003] ECR I-10239.
Case C-173/03, Traghetti del Mediterraneo SpA v. Italy [2006] ECR I-5177
Cooper v. Attorney General [2010] EWCA Civ 464
- Role of the ECJ/CJEU:
This section will look at a variety of caselaw from different areas across the
course.
Week 6 Tutorial 4 (5 including last week) Questions:
State Liability
1. Write an introductory paragraph of no more than 10 lines, explaining
the purpose behind state liability.
2. What does sufficiently serious mean? Case C-224/01, Gerhard Köbler
v. Republic of Austria.
3. “Since state liability is enforced through national courts, the CJEU
stipulated that national procedures should determine how state liability
is enforced.” Critically discuss.
Critically discuss with reference to authorities.
The EU passes a (fictitious) directive saying any one working with
public sources of water must wear waterproof gloves to avoid
contamination of the water supply and to avoid workers being infected.
a. Brian works for Western Water and contracts avian flu which could
have been avoided had he been wearing the gloves. However, the UK
delayed implementing the Directive. Discuss Western Waters liability.
b. How are damages if any to be assessed, and are there any
defences?
Discuss
Week 7 Lecture Outline: Enforcement Actions Against
Member States under Articles 258 & 259 TFEU
Article 4(3) TFEU
(1) Actions by the Commission against Member States:
Article 258.TFEU If the Commission considers that a Member State has
failed to fulfil an obligation under the Treaties, it shall deliver a reasoned
opinion on the matter after giving the State concerned the opportunity to
submit its observations. If the State concerned does not comply with the
opinion within the period laid down by the commission, the latter may bring
the matter before the Court of Justice of the European Union
- Administrative stage:
Case 240/86, Greece v. Commission [1998] ECR 1835
Case 7/71, Commission v. France [1971] ECR 453
Case 247/87 Star Fruit Company v Commission [1989] ECR 291
- Reasoned Opinion:
Case C-1/00, Commission v. France [2001] ECR I-9989
Case 7/69, Commission v. Italy [1970] ECR 111
- Judicial stage:
Case C-129/00, Commission v. Italy [2003] ECR I-14637
C-265/95 Commission v. France (Spanish Strawberries) [1997] ECR I-6959
- Defences:
1. Force majeure:
Case 77/69, Commission v. Belgium (Belgian Wood) 1970] ECR 237
Case 101/84, Commission v. Italy [1985] ECR 2629
2. Political or economic difficulties:
Case 128/78, Commission v. UK (Tachographs) [1979] ECR 419
3 .Necessity:
Case 7/61, Commission v. Italy [1961] ECR 317
4. Reciprocity:
Case 90-91/63, Commission v. Belgium and Luxembourg (Re import of
Powdered
Milk products [1964] ECR 625
Case 232/78, Commission v France [1979] ECR 2729
5. Threat to public order:
Case C-265/95, Commission v France (Spanish Strawberries) [1997] ECR I6959
6. Conflicting national laws are not applied:
Case 167/73, Commission v. France [1974] ECR 359
7. Complied within time limit:
Case C-439/99, Commission v. Italy [2002] ECR I-305
(2) Action by Member States:
Article 259 TFEU A Member State which considers that another Member
State has failed to fulfil an obligation under the Treaties may bring the matter
before the Court of Justice of the European Union
Before a Member State brings an action against another Member State for an
alleged infringement of an obligation under the Treaties, it shall bring the
matter before the Commission.
The Commission shall deliver a reasoned opinion after each of the States
concerned has been given the opportunity to submit its own case and its
observations on that of the other party’s case both orally and in writing.
If the Commission has not delivered an opinion within the three months of the
date on which the matter was brought before it, the absence of such an
opinion shall not prevent the matter from being brought before the Court of
justice.
Case 232/78, Commission v. France [1979] ECR 2729
Case C-1/00, Commission v. France [2000] ECR I-9989
Case 141/78, France v. UK [1979] ECR 2923
Case C-388/95, Belgium v. Spain [2000] ECR I-03123
Case C-145/04, Spain v. UK [2006] ECR I-7917
(3) Lack of compliance:
Article 260 TFEU
Cases C-382-383/92, Commission v. UK [1994] ECR I-2435
Case C-387/97, Commission v. Greece [2000] ECR I-5047
Case C-278/01, Commission v. Spain [2003] ECR I-14141
Case C-304/02, Commission v. France [2005] ECR I-6263
Case C-212/99, Commission v. Italy [2001] ECR I-4923
Article 7 TEU
Week 7 Tutorial 6 Questions: Role of the ECJ/CJEU
1. Why has the ECJ sometimes been called a ‘motor of integration’?
2. What caselaw of the ECJ can be said to have contributed to the
‘constitutional character of the EU?
3. If the Member States wished to reverse a judgment of the ECJ, how
would they do this? What difference would it make whether the
judgment concerned in the interpretation of primary or secondary
legislation?
4. What role does precedent play in the legal reasoning of the ECJ?
5. Has the ECJ ever reversed its own rulings? Can you find any
specific example?
6. What does meta-teleological interpretation mean? In what sense
does the legal reasoning of the ECJ tend to be teleological? How
might the approach of the ECJ be different in particular case if it just
focused on textual interpretation?
7. What criticism might be made of the role of the ECJ with respect to
a separation of powers?
Week 8 Lecture Outline: Judicial Review/Reviews of
Legality
Article 263 TFEU
(1) Privileged applicants:
Case C-70/88, European Parliament v. Council ('Chernobyl') [1990] ECR I2041
(2) Non Privileged Applicants:
1. Direct concern
Case T-139/02, Instituoto N. Avgerinopoulou and Others v. Commission
[2004] ECR-II 875
Case T-341/02, Regione SIciliana v. Commission [2004] ECR II-2877
2. Individual concern:
Case 25/62, Plaumann v. Commission [1963] ECR 95
Cases 106-107/63,Töpfer v. Commission [1965] ECR 177
Cases 789-790/79, Calpak SpA ans Società Emiliana Lavorazione Frutta SpA
v.
Commission [1980] ECR 1949
Case C-309/89, Codorniu SA v. Council [1994] ECR I-1853
Case 11/82, Piraiki–Patraiki v. Commission [[1985] ECR
Case T-177/01, Jégo Quéré v. Commission [2002] ECR II-2365
Case C-209/94 P, Buralux SA v. Council [1996] ECR I-615
(3) Substantive grounds for review:
1. Lack of competence (same thing as ultra vires):
Case C-327/91, France v. Commission [1994] ECR I-1409
Case T-85/94, Eugénio Branco v. Commission [1995] ECR II-45
Case C-137/92P, Commission v. BASF AG and Others [1994] ECR I-2555
2. Infringement of the Treaties or any rule relating to their application:
Case 17/74,Transocean Marine Paint Association v. Commission [1974] ECR
1063
3. Misuse of powers:
Case 105/75, Giuffrida v. Council Case [1976] ECR 1395
Week 8 Tutorial 7 Questions: Enforcement Actions
Against Member States
1. Discuss the effectiveness of the Article 258 TFEU procedure in ensuring
compliance with EU law on the part of Member States.
2. Why do you think the Commission was given the power under Article 258
TFEU?
3. Why do you think it is important for a Member State to get into contact
with the Commission before starting an action for Article 259 TFEU?
4. Create your own flow chart: Who can take action? When? What treaty
article?
5. Why do you think Article 259 is rarely used by the Member States?
6. What defences have Member States raised in past Article 260 actions?
Give examples from the case law and consider how the ECJ has
responded. Is there any circumstance in which a Member State might
successfully defend an action?
7. In what circumstances can interim relief be granted? Give an example of
a case in which this was granted.
8. If a Member State corrects its breach, can the Commission still be
justified in maintaining its action before the CJEU?
9. If a Member State persistently refused to pay a financial penalty, what is
likely to happen? Read Article 7 TEU.
Week 9 Lecture Outline: Recap on Preliminary
References and the Separation of Powers in the EU
1. Recap on Preliminary References
Article 267 TFEU
Case 166/73, Rheinmühlen Düsseldorf [1974] ECR 33
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.
- ‘Court’ or ‘Tribunal’:
Case 246/80, Broekmeulen [1982] ECR 1095
Case 102/81, Nordsee [1982] ECR 1095
Case C-55/94, Gebhard [1995] ECR I-4165
Case C-74/95, Criminal Proceedings Against X [1996] ECR I-6609
Case C-407/98, Abrahamsson and Anderson [2000] ECR I-5539
Case C-125/04, Denuit & Cordenier [2005] ECR I-923
Case C-1/05, Jia [2007] ECR I-1
- Article 267(3) TFEU:
Case C-99/00, Lyckeskog [2002] ECR I-4839
- Acte clair:
Case 283/81, CILFIT v. Ministry of Health [1982] ECR 3415
1. Separation of Powers:
1. Concept of a Separation of Powers
2. The Legislature in the EU
3. The Executive in the EU
4. The Judiciary in the EU
5. Concept of Institutional Balance
Case 9/56, Meroni v. High Authority [1958] ECR 133
Case 302/87, European Parliament v. Council [1988] ECR 5615
Case C-70/88, European Parliament v. Council of the European Communities
[1990]
ECR I-2041
Case C-133/06, European Parliament v. Council [2008] ECR I-3189
Week 9 Tutorial 8 Questions: Judicial Review/Review
of Legality and Preliminary References
1. What is the purpose of Judicial Review?
2. By reference to case law, what are the grounds for Judicial Review?
3. Who can apply for Judicial Review? Illustrate your answer by reference to
case law.
4. What does individual concern mean? Illustrate your answer by reference to
case law.
5. Can a non-privileged applicant apply for judicial review, and under what
circumstances?
6. Explain how the system of preliminary references interacts with direct effect
and supremacy.
Week 10: Revision
Lecture 10: Revision: How to answer problem and essays questions.
A previous examination question will be set, it will be posted on blackboard or
given out in the previous weeks lecture. Come to class for a 30 minute timed
essay. The answer will form the basis of this week’s class.
End of part one
Good luck with your coursework
See you next semester for part two EU Law