Professor Anna Wyrozumska
Jean Monnet Chair of European Constitutional Law
Introduction to European Institutional Law 2010 - 2011
EU LEGAL CHARACTER
1. TRANSFER OF THE SOVEREIGN COMPETENCES TO ATTAIN COMMON
OBJECTIVES/ CONFER
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–
–
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26/62 Van Gend en Loos
full transfer = Komptenzkomptenz
The Union shall replace and succeed the EC (Art. 1 TUE)/TL
Legal personality Art. 47 TEU/ conferred powers/ return to the MSs
EU membership Art. 49, withdrawal Art. 50 TEU
2. CONSTITUTIONAL CHARACTER OF THE TREATIES
– 26/62 Van Gend en Loos new legal order
– 6/64 Costa v ENEL own legal order
– 294/83 Les Vert
EC is based on the rule of law, inasmuch as neither its member states nor its
institutions can avoid a review of the question whether the measures adopted
by them are in conformity with the basic constitutional character, the Treaty
– Opinion 1/91
(...) the EEC Treaty, albeit concluded in the form of an international
agreement, none the less constitutes the constitutional charter of a Community
based on the rule of law.
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–
–
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Primacy of the Treaties
Procedure for amendment Art. 48 TEU ordinary and simplified
Constitutional character impeded => protocols with opt-outs
Treaty establishing Constitution for Europe of 2004
Terminology questioned: constitution, federal objective (TM) an ever closer
union among the peoples of Europe (TL)
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Constitution = the fundamental and organic law of nation or state, establishing the
conception, character, and organization of its government, as well as prescribing the extent of
its sovereign power and the manner of its exercise/ Black’s Law Dictionary
= a body of fundamental principles according to which a State or other organization is
governed/ Oxford English Dictionary
– Should the EU have a constitution ?
– EU is not a federal state/ no Komptenzkomptenz, external competence not complete,
lack of one legislator, lack of one external representative body, lack of federal
government, lack of demos
–
Respect for national identities
Art. 4 TEU 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.
C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien
EU ensures the observance of the principle of equal treatment of citizens, which is
implemented by the Austrian Law on the abolition of the nobility
– Values
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.
3. EU DEMOCRATIC CHARACTER
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Article 15 TFEU
(ex Article 255 TEC)
1. In order to promote good governance and ensure the participation of civil society, the
Union institutions, bodies, offices and agencies shall conduct their work as openly as
possible.
2. The European Parliament shall meet in public, as shall the Council when considering and
voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered
office in a Member State, shall have a right of access to documents of the Union
institutions, bodies, offices and agencies, whatever their medium, subject to the principles
and the conditions to be defined in accordance with this paragraph.
General principles and limits on grounds of public or private interest governing this right of
access to documents shall be determined by the European Parliament and the Council, by
means of regulations, acting in accordance with the ordinary legislative procedure.
Each institution, body, office or agency shall ensure that its proceedings are transparent and
shall elaborate in its own Rules of Procedure specific provisions regarding access to its
documents, in accordance with the regulations referred to in the second subparagraph.
The Court of Justice of the European Union, the European Central Bank and the European
Investment Bank shall be subject to this paragraph only when exercising their administrative
tasks.
The European Parliament and the Council shall ensure publication of the documents
relating to the legislative procedures under the terms laid down by the regulations referred
to in the second subparagraph.
TITLE II
PROVISIONS ON DEMOCRATIC PRINCIPLES
Article 9
In all its activities, the Union shall observe the principle of the equality of its citizens, who
shall receive equal attention from its institutions, bodies, offices and agencies. Every national
of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional
to national citizenship and shall not replace it.
Article 10
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.
Article 11
1. The institutions shall, by appropriate means, give citizens and representative associations
the opportunity to make known and publicly exchange their views in all areas of Union
action.
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2. The institutions shall maintain an open, transparent and regular dialogue with
representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in
order to ensure that the Union's actions are coherent and transparent.
4. 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.
Article 12
National Parliaments contribute actively to the good functioning of the Union:
(a) through being informed by the institutions of the Union and having draft legislative acts of
the Union forwarded to them in accordance with the Protocol on the role of national
Parliaments in the European Union;
(b) by seeing to it that the principle of subsidiarity is respected in accordance with the
procedures provided for in the Protocol on the application of the principles of subsidiarity and
proportionality;
(c) by taking part, within the framework of the area of freedom, security and justice, in the
evaluation mechanisms for the implementation of the Union policies in that area, in
accordance with Article 70 of the Treaty on the Functioning of the European Union, and
through being involved in the political monitoring of Europol and the evaluation of Eurojust's
activities in accordance with Articles 88 and 85 of that Treaty;
(d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of
this Treaty;
(e) by being notified of applications for accession to the Union, in accordance with Article 49
of this Treaty;
(f) by taking part in the inter-parliamentary cooperation between national Parliaments and
with the European Parliament, in accordance with the Protocol on the role of national
Parliaments in the European Union.
4. MAIN ELEMENT OF THE CONSTITUTIONAL ORDER  VERTICAL
DIVISION OF COMPTENCES
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4.1.
exclusive and concurrent competences
extension of the competences
implied powers
general/residual powers
proportionality
subsidiarity
EXCLUSIVE, CONCURENT COMPTENCES, ACTIONS TO SUPPORT,
COORDINATE OR SUPPLEMENT THE ACTIONS OF THE MEMBER
STATES
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TITLE
I
CATEGORIES AND AREAS OF UNION 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
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.
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Article 4
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
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
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;
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(c)
culture;
(d)
tourism;
(e)
education, vocational training, youth and sport;
(f)
civil protection;
(g)
administrative cooperation.
4.2. MATTERS OUTSIDE THE SCOPE OF THE EU COMPTENCE
– E.g. 

Direct taxation

Measures for the protection of legal order, internal security

Education – organization, substantive content, linguistic diversity

Organization of the army /C-186/01 Alexander Dory against Germany
Article 345
(ex Article 295 TEC)
The Treaties shall in no way prejudice the rules in Member States governing the system of
property ownership.
Article 346
(ex Article 296 TEC)
1.
The provisions of the Treaties shall not preclude the application of the following rules:
(a)
no Member State shall be obliged to supply information the disclosure of which it
considers contrary to the essential interests of its security;
(b)
any Member State may take such measures as it considers necessary for the protection
of the essential interests of its security which are connected with the production of or
trade in arms, munitions and war material; such measures shall not adversely affect
the conditions of competition in the internal market regarding products which are not
intended for specifically military purposes.
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2.
The Council may, acting unanimously on a proposal from the Commission, make
changes to the list, which it drew up on 15 April 1958, of the products to which the provisions
of paragraph 1(b) apply.
– MSs competences have to be exercised with due regard to EU law (principles of
proportionality, non-discrimination, respect for fundamental freedoms)
– Primacy of EU law  the doctrine of pre-emption/ field occupation/ C-459/03
Commission v Ireland
5. EXTENTION OF THE EU COMPETENCE
5.1.
TREATIES’ AMENDMENTS
5.2.
IMPLIED POWERS
ECJ  joined cases 281, 283, 284, 285 and 287/85 Federal Republic of Germany and
others v Commission of the European Communities
Migration policy/ cooperation in social matters/ Art. 118 EC
May the Commission adopt the decision binding upon MSs to submit information?
Art. 118 TWE
(…) The Commission shall have the task of promoting close cooperation between Member
States in the social field, particularly in matters relating to (…)
To this end, the Commission shall act in close contact with Member States by making studies,
delivering opinions and arranging consultations both on problems arising at national level and
on those of concern to international organisations. (…)
WHERE AN ARTICLE OF THE EEC TREATY - IN THIS CASE ARTICLE 118 /later on 137/CONFERS A SPECIFIC TASK ON THE COMMISSION IT MUST BE ACCEPTED, IF THAT
PROVISION IS NOT TO BE RENDERED WHOLLY INEFFECTIVE, THAT IT
CONFERS ON THE COMMISSION NECESSARILY AND PER SE THE POWERS
WHICH ARE INDISPENSABLE IN ORDER TO CARRY OUT THAT TASK .
ACCORDINGLY, THE SECOND PARAGRAPH OF ARTICLE 118 MUST BE INTERPRETED
AS CONFERRING ON THE COMMISSION ALL THE POWERS WHICH ARE
NECESSARY IN ORDER TO ARRANGE THE CONSULTATIONS . IN ORDER TO
PERFORM THAT TASK OF ARRANGING CONSULTATIONS THE COMMISSION MUST
NECESSARILY BE ABLE TO REQUIRE THE MEMBER STATES TO NOTIFY
ESSENTIAL INFORMATION, IN THE FIRST PLACE IN ORDER TO IDENTIFY THE
PROBLEMS AND IN THE SECOND PLACE IN ORDER TO PINPOINT THE POSSIBLE
GUIDELINES FOR ANY FUTURE JOINT ACTION ON THE PART OF THE MEMBER
STATES; LIKEWISE IT MUST BE ABLE TO REQUIRE THEM TO TAKE PART IN
CONSULTATIONS. THE COMMISSION IS THEREFORE EMPOWERED UNDER
ARTICLE 118 TO ADOPT A BINDING DECISION VIS-A-VIS THE MEMBER STATES
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ESTABLISHING A COMMUNICATION AND CONSULTATION PROCEDURE .
HOWEVER, SINCE THE COMMISSION HAS A POWER OF A PURELY PROCEDURAL
NATURE TO INITIATE A CONSULTATION PROCEDURE IT CANNOT DETERMINE THE
RESULT TO BE ACHIEVED IN THAT CONSULTATION AND CANNOT PREVENT THE
MEMBER STATES FROM IMPLEMENTING DRAFTS, AGREEMENTS AND MEASURES
WHICH IT MIGHT CONSIDER NOT TO BE IN CONFORMITY WITH COMMUNITY
POLICIES AND ACTIONS .

Objective
(or
function/task)
necessary/indispensable to achieve it
implies
powers
reasonably
C-176/03 Commision v Council
(Action for annulment – Articles 29 EU, 31(e) EU, 34 EU and 47 EU – Framework Decision
2003/80/JHA – Protection of the environment – Criminal penalties – Community competence – Legal
basis – Article 175 EC)
Summary of the Judgment
Environment — Protection — Community competence — Criminal penalties — Framework Decision
2003/80 on the protection of the environment through criminal law — Appropriate legal basis —
Article 175 EC – Decision based on Title VI of the Treaty on European Union — Infringement of
Article 47 EU
(Arts 135 EC, 175 EC and 280(4) EC; Art. 47 EU; Council Framework Decision 2003/80, Arts 1 to 7)
Framework Decision 2003/80 on the protection of the environment through criminal law, being based
on Title VI of the Treaty on European Union, encroaches upon the powers which Article 175 EC
confers on the Community, and, accordingly, the entire framework decision being indivisible, infringes
Article 47 EU. Articles 1 to 7 of that framework decision, which entail partial harmonisation of the
criminal laws of the Member States, in particular as regards the constituent elements of various criminal
offences committed to the detriment of the environment, could have been properly adopted on the basis
of Article 175 EC in so far as, on account of both their aim and their content, their principal objective is
the protection of the environment, which constitutes one of the essential objectives of the Community.
In this regard, while it is true that, as a general rule, neither criminal law nor the rules of criminal
procedure fall within the Community’s competence, this does not, however, prevent the Community
legislature, when the application of effective, proportionate and dissuasive criminal penalties by the
competent national authorities is an essential measure for combating serious environmental offences,
from taking measures which relate to the criminal law of the Member States which it considers
necessary in order to ensure that the rules which it lays down on environmental protection are fully
effective. That competence of the Community legislature in relation to the implementation of
environmental policy cannot be called into question by the fact that Articles 135 EC and 280(4) EC
reserve to the Member States, in the spheres of customs cooperation and the protection of the
Community’s financial interests respectively, the application of national criminal law and the
administration of justice. (see paras 41-42, 47-48, 51-53)
– external powers  parallelism /22/70 ERTA
5.3.
GENERAL POWERS
– for approximation of the laws of the MSs
o art. 115 TFUE/ art. 94 EC – Council – unanimity/ for directives/ if directly
affect the establishment or functioning of the common market
o art. 114 TFUE/ 95 EC – measures to achieve the objectives of the common
market /QMV/
– applied if the other articles are not better suited
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o C-376/98 Germany v EP and Council (Tobacco advertising case) – art. 95
no/act invalid measure aimed more for the protection of health than
completing common market
o C-380/03 Second tobacco advertising case – use of art. 95 ok  differences in
the national laws = obstacles to free trade
5.4. RESIDUAL POWERS
– if the Treaties have not provided the necessary powers
– art. 308 TWE /used for adoption of the Equal Treatment Directive 76/207
– limits  Opinion 2/94
– now Art. 352 TFUE
o May be used to attain one of the EU objectives / before LT - EC
o Consent EP / before LT - consultation
o Control of national parliaments/subsidiarity !!
Article 308 TEC
If action by the Community should prove necessary to attain, in the course of the
operation of the common market, one of the objectives of the Community, and this
Treaty has not provided the necessary powers, the Council shall, acting
unanimously on a proposal from the Commission and after consulting the
European Parliament, take the appropriate measures.
Article 352 TFEU
(ex Article 308 TEC)
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.
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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.
6. LIMITS ON THE EU POWERS
6.1. PRINCIPLE OF PROPORTIONALITY
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 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.
Article 5/ Protocol
Draft legislative acts shall be justified with regard to the principles of subsidiarity and
proportionality (…) 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.
– Measure has to be appropriate and necessary to attain the objective
– Applied to control EU and MSs measures

C-285/98 Tanja Kreil

120/78 Cassis de Dijon

36/75 Rutili

115 and 116/81 Adoui and Cornuaille

178/84 Commission v Germany/beer purity case
– No unnecessary burdens/ least onerous/

114/76 Bela-Muchle

C-320/03 Commission v Austria/ prohibition on the movement of lorries of more than
7.5 tonnes carrying certain goods/ Inn valley in Tyrol
“A Member State which, in order to ensure the quality of ambient air in the
zone concerned, adopts legislation prohibiting lorries of over 7.5 tonnes,
carrying certain goods, from driving on a road section of paramount
importance, constituting one of the main routes of land communication
between certain Member States fails to fulfil its obligations under Articles 28
EC and 29 EC.
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Such a prohibition obstructs the free movement of goods and, in particular,
their free transit, and must be regarded as constituting a measure having
equivalent effect to quantitative restrictions, incompatible with Community law
obligations under Articles 28 EC and 29 EC, unless that measure can be
objectively justified.
Such legislation cannot be justified by imperative requirements in the
interests of environmental protection where it has not been demonstrated
that the aim pursued could not be achieved by other means less restrictive
of freedom of movement.”
–
Proportional sanction

181/84 R v Intervention Board for Agricultural Produce
– If broad discretionary powers = measure must be manifestly inappropriate/

C-331/88 Fedesa

C-491/01 Second tobacco directive (British American Tobacco)
Examples:
C-331/88 Fedesa
The alleged infringement of the principle of proportionality
12 It was argued that the directive at issue infringes the principle of proportionality in three respects . In the first
place, the outright prohibition on the administration of the five hormones in question is inappropriate in order
to attain the declared objectives, since it is impossible to apply in practice and leads to the creation of a
dangerous black market . In the second place, outright prohibition is not necessary because consumer anxieties
can be allayed simply by the dissemination of information and advice . Finally, the prohibition in question
entails excessive disadvantages, in particular considerable financial losses on the part of the traders concerned,
in relation to the alleged benefits accruing to the general interest .
13 The Court has consistently held that the principle of proportionality is one of the general principles of
Community law . By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject
to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives
legitimately pursued by the legislation in question; when there is a choice between several appropriate
measures recourse must be had to the least onerous, and the disadvantages caused must not be
disproportionate to the aims pursued .
14 However, with regard to judicial review of compliance with those conditions it must be stated that in matters
concerning the common agricultural policy the Community legislature has a discretionary power which
corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty . Consequently, the
legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate
12
having regard to the objective which the competent institution is seeking to pursue ( see in particular the
judgment in Case 265/87 Schraeder [1989] ECR 2237, paragraphs 21 and 22 ).
15 On the question whether or not the prohibition is appropriate in the present case, it should first be stated that
even if the presence of natural hormones in all meat prevents detection of the presence of prohibited hormones
by tests on animals or on meat, other control methods may be used and indeed were imposed on the Member
States by Council Directive 85/358/EEC of 16 July 1985 supplementing Directive 81/602/EEC ( Official Journal
1985 L 191, p . 46 ). It is not obvious that the authorization of only those hormones described as "natural"
would be likely to prevent the emergence of a black market for dangerous but less expensive substances .
Moreover, according to the Council, which was not contradicted on that point, any system of partial
authorization would require costly control measures whose effectiveness would not be guaranteed. It
follows that the prohibition at issue cannot be regarded as a manifestly inappropriate measure .
16 As regards the arguments which have been advanced in support of the claim that the prohibition in question is
not necessary, those arguments are in fact based on the premiss that the contested measure is inappropriate for
attaining objectives other than that of allaying consumer anxieties which are said to be unfounded . Since the
Council committed no manifest error in that respect, it was also entitled to take the view that, regard being had to
the requirements of health protection, the removal of barriers to trade and distortions of competition could not be
achieved by means of less onerous measures such as the dissemination of information to consumers and the
labelling of meat .
17 Finally, it must be stated that the importance of the objectives pursued is such as to justify even substantial
negative financial consequences for certain traders .
18 Consequently, the principle of proportionality has not been infringed .
C-491/01 Second tobacco directive (British American Tobacco)
133.
Article 7 of the Directive calls for the following observations.
134.
The purpose of that provision is explained in the 27th recital in the preamble to the Directive,
which makes it clear that the reason for the ban on the use on tobacco product packaging of
certain texts, such as ‘low-tar’, ‘light’, ‘ultra-light’, ‘mild’, names, pictures and figurative or
other signs is the fear that consumers may be misled into the belief that such products are less
harmful, giving rise to changes in consumption. That recital states in this connection that the
level of inhaled substances is determined not only by the quantities of certain substances
contained in the product before consumption, but also by smoking behaviour and addiction,
which fact is not reflected in the use of such terms and so may undermine the labelling
requirements set out in the Directive.
135.
Read in the light of the 27th recital in the preamble, Article 7 of the Directive has the purpose
therefore of ensuring that consumers are given objective information concerning the toxicity of
tobacco products.
136.
Such a requirement to supply information is appropriate for attaining a high level of
health protection on the harmonisation of the provisions applicable to the description of
tobacco products.
137.
It was possible for the Community legislature to take the view, without overstepping the
bounds of its discretion, that stating those tar, nicotine and carbon monoxide levels in
accordance with Article 5(1) of the Directive ensured that consumers would be given objective
information concerning the toxicity of tobacco products connected to those substances,
whereas the use of descriptors such as those referred to in Article 7 of the Directive did not
ensure that consumers would be given objective information.
138.
13
As the Advocate General has pointed out in paragraphs 241 to 248 of his Opinion, those
descriptors are liable to mislead consumers. In the first place, they might, like the word
‘mild’, for example, indicate a sensation of taste, without any connection with the
product's level of noxious substances. In the second place, terms such as ‘low-tar’, ‘light’,
‘ultra-light’, do not, in the absence of rules governing the use of those terms, refer to
specific quantitative limits. In the third place, even if the product in question is lower in
tar, nicotine and carbon monoxide than other products, the fact remains that the amount
of those substances actually inhaled by consumers depends on their manner of smoking
and that that product may contain other harmful substances. In the fourth place, the use
of descriptions which suggest that consumption of a certain tobacco product is beneficial
to health, compared with other tobacco products, is liable to encourage smoking.
139.
Furthermore, it was possible for the Community legislature to take the view, without going
beyond the bounds of the discretion which it enjoys in this area, that the prohibition laid down
in Article 7 of the Directive was necessary in order to ensure that consumers be given objective
information concerning the toxicity of tobacco products and that, specifically, there was no
alternative measure which could have attained that objective as efficiently while being
less restrictive of the rights of the manufacturers of tobacco products.
140.
It is not clear that merely regulating the use of the descriptions referred to in Article 7, as
proposed by the claimants in the main proceedings and by the German, Greek and
Luxembourg Governments, or saying on the tobacco products' packaging, as proposed by
Japan Tobacco, that the amounts of noxious substances inhaled depend also on the user's
smoking behaviour would have ensured that consumers received objective information, having
regard to the fact that those descriptions are in any event likely, by their very nature, to
encourage smoking.
141.
It follows from the preceding considerations concerning Question 1(c) that the Directive is not
invalid by reason of infringement of the principle of proportionality
6.2. PRINCIPLE OF SUBSIDIARITY
Article 5 (3) TUE
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.
Article 5/ Protocol
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
14
can be better achieved at Union level shall be substantiated by qualitative and, wherever
possible, quantitative indicators. (…)
– TM /before SEA protection of environment
– ECJ review = action for annulment
o C-376/98 Germany v EP and Council (Tobacco advertising case) – Art. 95 not
a proper legal base/act invalid measure aimed more for the protection of
health than completing common market2
o C-491/01 Second tobacco advertising case – use of Art. 95 ok  differences in
the national laws = obstacles to free trade
Example:
C-491/01 Second tobacco directive (British American Tobacco)
179.
It is to be noted, as a preliminary, that the principle of subsidiarity applies where the Community
legislature makes use of Article 95 EC, inasmuch as that provision does not give it exclusive
competence to regulate economic activity on the internal market, but only a certain competence
for the purpose of improving the conditions for its establishment and functioning, by eliminating
barriers to the free movement of goods and the freedom to provide services or by removing
distortions of competition (see, to that effect, the tobacco advertising judgment, paragraphs 83
and 95).
180.
As regards the question whether the Directive was adopted in keeping with the principle of
subsidiarity, it must first be considered whether the objective of the proposed action could be
better achieved at Community level.
181.
As the Court has stated in paragraph 124 above, the Directive's objective is to eliminate the
barriers raised by the differences which still exist between the Member States' laws,
regulations and administrative provisions on the manufacture, presentation and sale of
tobacco products, while ensuring a high level of health protection, in accordance with
Article 95(3) EC.
182.
2
ECJ annulled the directive on the ground of the wrong legal base (Art. 95 EC), thus did not developed the
argument of the infringement of the principle of subsidiarity. Nonetheless the Court demonstrated its
willingness to protect the MSs powers. The judgment is perceived as an answer to the national courts,
especially German Federal Court pronouncing in the Maastricht Treaty Case its own competence to
adjudicate upon EU ultra vires acts (acts overstepping the limits of the EU competence).
15
Such an objective cannot be sufficiently achieved by the Member States individually and
calls for action at Community level, as demonstrated by the multifarious development of
national laws in this case (see paragraph 61 above).
Second, the intensity of the action undertaken by the Community in this instance was also in
keeping with the requirements of the principle of subsidiarity in that, as paragraphs 122 to 141
above make clear, it did not go beyond what was necessary to achieve the objective pursued.
– Lisbon Treaty:
o action for annulment on grounds of infringement of the principle of
subsidiarity by a legislative act / Art. 8 Protocol No. 2

MS on behalf of NP

Committee of Regions
o NPs control mechanism
7. PRINCIPLE OF SINCERE COOPERATION
 now has more federal character3
Article 4 (3)TEU
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.
3
Federal principle of loyalty = mutual respect of the competences of the legislative, executive and judiciary
organs on different levels of governance within a federal system and their cooperation. principle of
federal loyalty has been eloquently expressed by the German Federal Constitutional Court, which has
stated that "all members of the constitutional ‘alliance’ are required to cooperate with one another in a
manner compatible with the nature of that alliance and to contribute to its consolidation and to the
protection of its interests and the well-considered interests of its members." [Translation]
In Germany = on account of the unwritten priciple of federal loyalty both the Laender and the Federation must
act federal state friendly. They are not allowed to pursue their own interests ruthless against the other
partners in the federal state.
16
– Former Art. 5/ Art. 10 EC / p. of loyalty, solidarity etc.
– ECJ derived main obligations of MSs4
C-459/03 Commission v Ireland/ Mox case/ mixed agreement/ shared powers/ the UNCLOS
dispute settlement
C-246/07 Commission v Sweden/shared powers/ Sweden proposed that a substance,
perfluoroctane sulfonate, be listed in Annex A to the Stockholm Convention on Persistent
Organic Pollutants/ Commission proposal different
Example:
C-459/03 Commission v Ireland
(Failure of a Member State to fulfil obligations – United Nations Convention on the Law of the Sea – Part XII –
Protection and preservation of the marine environment – Dispute-settlement system provided for under that
convention – Arbitration proceedings initiated on the basis of that system by Ireland against the United Kingdom
– Dispute relating to the MOX plant at Sellafield (United Kingdom) – Irish Sea – Articles 292 EC and 193 EA –
Undertaking not to submit a dispute relating to the interpretation or application of the Treaty to a method of
settlement other than those provided for by the Treaty – Mixed agreement – Community competence – Articles
10 EC and 192 EA – Duty of cooperation)
4.
The obligation devolving on Member States, set out in Article 292 EC, to have recourse to the
Community judicial system and to respect the Court’s exclusive jurisdiction, which is a fundamental
feature of that system, must be understood as a specific expression of the Member States’ more general
duty of loyalty resulting from Article 10 EC. It is for that reason unnecessary to find that there has been a
failure to comply with the general obligations contained in Article 10 EC if a failure to comply with the more
specific Community obligations devolving on a Member State pursuant to Article 292 EC has already been
established.
5.
The Member States and the Community institutions have an obligation of close cooperation in fulfilling
the commitments assumed by them under joint competence when they conclude a mixed agreement. That is in
particular the position in the case of a dispute concerning essentially undertakings resulting from a mixed
agreement which relates to an area in which the respective areas of competence of the Community and the
Member States are liable to be closely interrelated. The act of submitting a dispute of this nature to a judicial
forum such as an arbitral tribunal established pursuant to Annex VII to the United Nations Convention on the
Law of the Sea involves the risk that a judicial forum other than the Court of Justice will rule on the scope of
obligations imposed on the Member States pursuant to Community law. In those circumstances, the obligation
of close cooperation within the framework of a mixed agreement involves, on the part of a Member State,
4
78/70 Deutsche Grammophon: „5 ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 5 OF THE
TREATY, MEMBER STATES " SHALL ABSTAIN FROM ANY MEASURE WHICH COULD
JEOPARDIZE THE ATTAINMENT OF THE OBJECTIVE OF THIS TREATY ". THIS PROVISION
LAYS DOWN A GENERAL DUTY FOR THE MEMBER STATES, THE ACTUAL TENOR OF
WHICH DEPENDS IN EACH INDIVIDUAL CASE ON THE PROVISIONS OF THE TREATY
OR ON THE RULES DERIVED FROM ITS GENERAL SCHEME”; Art. 10 EC does not have
direct effect  44/84 Hurd
17
a duty to inform and consult the competent Community institutions prior to instituting dispute-settlement
proceedings under the Convention.
Case C-246/07, Commission v Sweden
On 4 August 2004, a proposal for a Decision (COM(2004) 537 final) was presented by the Commission, seeking
authorisation to submit, on behalf of the Community and the Member States which were parties, proposals to
have a certain number of chemicals included in the relevant Annexes to the Aarhus Protocol and/or the
Stockholm Convention.
That proposal, in so far as it concerned the Aarhus Protocol, sought to have hexachlorobutadiene,
octabromodiphenyl ether and pentachlorobenzene included in Annex I to that protocol, polychlorinated
napthalenes included in Annexes I and III and short-chained chlorinated paraffins included in Annex II. PFOS
was not covered by the proposal for a Decision, either as regards inclusion in the Annexes to the Aarhus Protocol
or inclusion in the Annexes to the Stockholm Convention.
On 14 July 2005, Sweden submitted in its name and on its own behalf a proposal to list PFOS in Annex A of the
Stockholm Convention to the Secretariat of that convention.
The Court stressed that the duty of genuine cooperation was of general application and did not depend either on
whether the Community competence concerned was exclusive or on any right of the Member States to enter into
obligations towards non-member countries. In particular, Member States were subject to special duties of action
and abstention in a situation in which the Commission had submitted to the Council proposals which, although
they had not been adopted by the Council, represented the point of departure for concerted Community action.
Likewise, the Court found that the adoption of a decision authorising the Commission to negotiate a multilateral
agreement on behalf of the Community marked the start of a concerted Community action at international level
and required for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty
of close cooperation between the latter and the Community institutions in order to facilitate the achievement of
the Community tasked and to ensure the coherence and consistency of the action and its international
representation.
The Court found that Sweden, by unilaterally proposing that a substance, perfluoroctane sulfonate, be listed in
Annex A to the Stockholm Convention on Persistent Organic Pollutants, Sweden failed to fulfil its obligations
under Art. 10 EC
– Applied to all EU law5, relations between:
o MSs
o Institutions C-65/93 EP v Council/ lack of the EP opinion unjustified
o Institutions – MSs 2/88 criminal proceedings against Zwartveld and others
8. PRINCIPLE OF INSTITUTIONAL BALANCE
– Consists of several postulates e.g.
o institutions have mutual duties of genuine cooperation
5
ECJ confirmed its application in the Third Pillar - C-105/03 criminal proceedings against Maria Pupino.
18
o each of the institutions must exercise its powers with due regard for the
powers of the other institutions/ it should be possible to penalize any breach
of that rule which may occur
Examples:
Case 138/79 Roquette Frère v Cn.  due consultation with PE, lack of the opinion/ Cn. not exhausted all
possibilities of obtaining opinion/ emergency procedure
C-65/93 EP v Cn./ lack of the EP opinion unjustified
Summary
Due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential
procedural requirement, disregard of which renders the measure concerned void. The effective
participation of the Parliament in the legislative process of the Community, in accordance with the
procedures laid down by the Treaty, represents an essential factor in the institutional balance
intended by the Treaty. Such power reflects the fundamental democratic principle that the people
should take part in the exercise of power through the intermediary of a representative assembly.
Observance of the consultation requirement implies that the Parliament has expressed its opinion; the
requirement cannot be satisfied by the Council' s simply asking for it. In an emergency, it is for the
Council to use all the possibilities available under the Treaty and the Parliament' s Rules of Procedure
in order to obtain the prior opinion of the Parliament.
However, the dialogue between institutions, on which the consultation procedure in particular is
based, is subject to the same mutual duties of genuine cooperation as those which govern relations
between Member States and the Community institutions.
The Parliament fails in its duty of genuine cooperation with the Council if, following a request from the
Council which was justified having regard to the special relations between the Community and the
developing countries and to the difficulties which would result from an abrupt interruption in the
application of the system of generalized tariff preferences established in favour of certain products
originating in those countries, it decides to deal with a draft regulation applying those preferences for
the forthcoming year under its procedure for urgent cases, but then decides to adjourn the last
plenary session during which the draft could have been debated in time without debating it. In those
circumstances, the Parliament is not entitled to complain of the Council' s failure to await its opinion
before adopting the contested regulation.
Case C-70/88 Judgment of 22 May 1990/ EP v Cn. / Chernobyl case/
- Capacity of the EP to bring an action for annulment
19 Finally, while the Commission is required to ensure that the Parliament' s prerogatives are respected,
that duty cannot go so far as to oblige it to adopt the Parliament' s position and bring an action for
annulment which the Commission itself considers unfounded .
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
19
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 173 of the EEC Treaty or Article 146 of the Euratom Treaty
without being required to demonstrate an interest in bringing an action .
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 .
26 The absence in the Treaties of any provision giving the Parliament the right to bring an action for
annulment may constitute a procedural gap, but it cannot prevail over the fundamental interest in
the maintenance and observance of the institutional balance laid down in the Treaties establishing
the European Communities .
27 Consequently, 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 and that it is
founded only on submissions alleging their infringement . Provided that condition is met, the
Parliament' s action for annulment is subject to the rules laid down in the Treaties for actions for
annulment brought by the other institutions .
9.1. The rule of law
9.1.1. Legal certainty
Eg. the legal act has to:
— be precise and clear
— have its legal base
— state reasons
— be notiefied to the adreesee
— be not retroactive
98/78 Racke: A FUNDAMENTAL PRINCIPLE IN THE COMMUNITY LEGAL ORDER REQUIRES
THAT A MEASURE ADOPTED BY THE PUBLIC AUTHORITIES SHALL NOT BE APPLICABLE TO
THOSE CONCERNED BEFORE THEY HAVE THE OPPORTUNITY TO MAKE THEMSELVES
ACQUAINTED WITH IT .
C-161/06 Skoma Lux
Example:
98/78 Racke
QUESTION 2
14 THE SECOND QUESTION IS IN THE FOLLOWING TERMS :
20
' ' IS A REGULATION TO BE REGARDED AS PUBLISHED WITHIN THE MEANING OF ARTICLE 191 OF
THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY :
( A ) ON THE DATE BORNE BY THE OFFICIAL JOURNAL IN QUESTION ;
( B) AT THE TIME WHEN THE OFFICIAL JOURNAL IN QUESTION IS IN FACT AVAILABLE AT THE
OFFICE FOR OFFICIAL PUBLICATIONS OF THE EUROPEAN COMMUNITIES ; OR
( C)AT THE TIME WHEN THE OFFICIAL JOURNAL IN QUESTION IS ACTUALLY AVAILABLE IN THE
TERRITORY OF THE PARTICULAR MEMBER STATE? “
(…)
HOWEVER , SHOULD EVIDENCE BE PRODUCED THAT THE DATE ON WHICH AN ISSUE WAS IN FACT
AVAILABLE DOES NOT CORRESPOND TO THE DATE WHICH APPEARS ON THAT ISSUE , REGARD
MUST BE HAD TO THE DATE OF ACTUAL PUBLICATION .
A FUNDAMENTAL PRINCIPLE IN THE COMMUNITY LEGAL ORDER REQUIRES THAT A
MEASURE ADOPTED BY THE PUBLIC AUTHORITIES SHALL NOT BE APPLICABLE TO THOSE
CONCERNED BEFORE THEY HAVE THE OPPORTUNITY TO MAKE THEMSELVES ACQUAINTED
WITH IT .
9.1.2. Non retroactivity
Retroactive effect of penal provisions
63/83 Kent Kirk  the principle that penal provisions may not have retroactive effect is one which
is common to all the legal orders of the Member States and is enshrined in Article 7 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms as a fundamental right
which takes its place among the general principles of law whose observance is ensured by the Court of
Justice.
80/86 Kolpinghuis  a directive cannot, of itself and independently of a national law adopted by a
Member State for its implementation, have the effect of determining or aggravating the liability in
criminal law of persons who act in contravention of the provisions of that directive . None of the
provisions of the directive at issue seek to produce that effect.
Retroactive effect outside the criminal sphere
98/78 Racke
C-331/88 Fedesa
“45 As regards the retroactive effect of the directive at issue outside the criminal sphere, it
should be recalled that, as the Court has already held on several occasions (…), although in
general the principle of legal certainty precludes a Community measure from taking
21
effect from a point in time before its publication, it may exceptionally be otherwise
where the purpose to be achieved so demands and where the legitimate expectations of
those concerned are duly respected . In order to reply to the question raised, it is therefore
necessary to determine whether those criteria were satisfied in the present case.
By fixing 1 January 1988 as the date of expiry of the period for implementation of Directive
88/146 prohibiting the use in livestock farming of substances having a hormonal action,
Article 10 of the directive gives it retroactive effect in so far as the directive was adopted and
notified in March 1988 .
Outside the criminal sphere, such retroactive effect is permissible, since, first, the directive
replaced an earlier directive annulled because of a procedural defect, and the Council
considered it necessary in order to avoid a temporary legal vacuum during the period
between the annulment of one instrument and its replacement by a lawfully adopted text with
regard to the existence of a basis in Community law for national provisions adopted by the
Member States in order to comply with the directive which was annulled, and, secondly, there
was no infringement of the legitimate expectations of the traders concerned, in light of the
rapid succession of the two directives and the reason for which the first one was annulled .
9.1.3. Protection of legitimate expectations
120/86 Mulder
12/77 Toepfer v Commission/ agriculture
C-331/88 Fedesa
2/75 EVGF v Mackprang
Examples:
120/86 Mulder:
THE SECOND QUESTION
MR MULDER MAINTAINS THAT THE LEGISLATION IN QUESTION INFRINGES GENERAL
PRINCIPLES OF COMMUNITY LAW AND IS THEREFORE INVALID . HE CLAIMS IN THE FIRST
PLACE THAT REGULATION NO 857/84 INFRINGES THE PRINCIPLES OF LEGAL CERTAINTY AND
PROTECTION OF LEGITIMATE EXPECTATIONS, SINCE THOSE PERSONS WHO TOOK
ADVANTAGE OF THE SYSTEM INTRODUCED BY REGULATION NO 1078/77 WERE ENTITLED
TO EXPECT TO BE ABLE TO RESUME PRODUCTION UPON THE EXPIRY OF THEIR NONMARKETING UNDERTAKING .
(…)
22
THE FACT REMAINS THAT WHERE SUCH A PRODUCER, AS IN THE PRESENT CASE, HAS BEEN
ENCOURAGED BY A COMMUNITY MEASURE TO SUSPEND MARKETING FOR A LIMITED PERIOD
IN THE GENERAL INTEREST AND AGAINST PAYMENT OF A PREMIUM HE MAY LEGITIMATELY
EXPECT NOT TO BE SUBJECT, UPON THE EXPIRY OF HIS UNDERTAKING, TO RESTRICTIONS
WHICH SPECIFICALLY AFFECT HIM PRECISELY BECAUSE HE AVAILED HIMSELF OF THE
POSSIBILITIES OFFERED BY THE COMMUNITY PROVISIONS .
(…)
CONTRARY TO THE COMMISSION' S CONTENTION, TOTAL AND CONTINUOUS EXCLUSION OF
THAT KIND FOR THE ENTIRE PERIOD OF APPLICATION OF THE REGULATIONS ON THE
ADDITIONAL LEVY, PREVENTING THE PRODUCERS CONCERNED FROM RESUMING THE
MARKETING OF MILK AT THE END OF THE FIVE-YEAR PERIOD, WAS NOT AN OCCURRENCE
WHICH THOSE PRODUCERS COULD HAVE FORESEEN WHEN THEY ENTERED INTO AN
UNDERTAKING, FOR A LIMITED PERIOD, NOT TO DELIVER MILK . THERE IS NOTHING IN THE
PROVISIONS OF REGULATION NO 1078/77 OR IN ITS PREAMBLE TO SHOW THAT THE NONMARKETING UNDERTAKING ENTERED INTO UNDER THAT REGULATION MIGHT, UPON ITS
EXPIRY, ENTAIL A BAR TO RESUMPTION OF THE ACTIVITY IN QUESTION. SUCH AN EFFECT
THEREFORE FRUSTRATES THOSE PRODUCERS' LEGITIMATE EXPECTATION THAT THE
EFFECTS OF THE SYSTEM TO WHICH THEY HAD RENDERED THEMSELVES SUBJECT
WOULD BE LIMITED .
IT FOLLOWS THAT THE REGULATIONS ON THE ADDITIONAL LEVY ON MILK WERE ADOPTED IN
BREACH OF THE PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATIONS . THOSE
REGULATIONS MUST THEREFORE BE DECLARED INVALID ON THAT GROUND (…).
C-331/88 Fedesa:
The alleged infringement of the principle of legal certainty
7 (…) On that point it was argued during the proceedings that the directive lacked any
scientific basis justifying the public-health considerations and consumer anxieties which
underlay its adoption and that it frustrated the legitimate expectations of traders, who were
entitled to expect that the substances in question would not be prohibited in the absence
of any objectively based doubt as to their safety, efficacy and quality .
8 Even if it were to be held, as the applicants in the main proceedings have argued, that the
principle of legal certainty requires any measure adopted by the Community institutions to be
founded on a rational and objective basis, judicial review must, having regard to the
discretionary power conferred on the Council in the implementation of the common
agricultural policy, be limited to examining whether the measure in question is vitiated by
a manifest error or misuse of powers, or whether the authority in question has
manifestly exceeded the limits of its discretion .
9 In the light of the foregoing, the claim based on the existence of scientific evidence
demonstrating the safety of the five hormones in question cannot be upheld . It is not
necessary to order any measures of inquiry to verify the accuracy of that allegation; it need
merely be stated that, faced with divergent appraisals by the national authorities of the
Member States, reflected in the differences between existing national legislation, the
Council remained within the limits of its discretionary power in deciding to adopt the
solution of prohibiting the hormones in question, and respond in that way to the concerns
23
expressed by the European Parliament, the Economic and Social Committee and by several
consumer organizations .
10 Nor did the directive frustrate the legitimate expectations of traders affected by the
prohibition of the use of the hormones in question . It is true that Council Directive
81/602/EEC of 31 July 1981 concerning the prohibition of certain substances having a
hormonal action and of any substances having a thyrostatic action ( Official Journal 1981 L
222, p . 32 ) refers to the fact that the harmless or harmful effects of the substances in question
have yet to be examined in detail ( fourth recital ), and requires the Commission to take
account of scientific developments ( Article 8 ). However, that directive does not pre-empt the
conclusions which may be drawn therefrom by the Council in the exercise of its discretion .
Moreover, in view of the divergent appraisals which had been made, traders were not
entitled to expect that a prohibition on administering the substances in question to
animals could be based on scientific data alone .
11 It follows from the foregoing that the alleged infringement of the principle of legal
certainty cannot be upheld .
2/75 EVGF v Mackprang
4 ACCORDINGLY, THE APPLICATION OF THE COMMISSION'S DECISION OF 8 MAY 1969 TO
OFFERS TO INTERVENTION OF CEREALS HARVESTED IN ANOTHER MEMBER STATE OF THE
COMMUNITY WHICH AT THAT TIME WERE IN TRANSIT TO THE FEDERAL REPUBLIC OF
GERMANY IS IN ACCORDANCE WITH THE PURPOSES OF THE INTERVENTION SYSTEM AND
DOES NOT, AS WAS ARGUED BY THE RESPONDENT IN THE NATIONAL PROCEEDINGS,
CONSTITUTE AN INFRINGEMENT OF THE PRINCIPLE OF PROTECTION OF LEGITIMATE
EXPECTATION OF THE INDIVIDUAL, BUT A JUSTIFIED PRECAUTION AGAINST PURELY
SPECULATIVE ACTIVITIES.
9.2. Non-discrimination/ general principle of law/ fundamental
right
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 3 TEU/ aims
Article 10 TFEU
In defining and implementing its policies and activities, the Union shall aim to combat
discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or
sexual orientation.
24
PART TWO/ TFEU
NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION
Article 18
(ex Article 12 TEC)
Within the scope of application of the Treaties, and without prejudice to any special
provisions contained therein, any discrimination on grounds of nationality shall be
prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, may adopt rules designed to prohibit such discrimination.
Article 19
(ex Article 13 TEC)
1.
Without prejudice to the other provisions of the Treaties and within the limits of the
powers conferred by them upon the Union, the Council, acting unanimously in accordance
with a special legislative procedure and after obtaining the consent of the European
Parliament, may take appropriate action to combat discrimination based on sex, racial or
ethnic origin, religion or belief, disability, age or sexual orientation.
2.
By way of derogation from paragraph 1, the European Parliament and the Council,
acting in accordance with the ordinary legislative procedure, may adopt the basic principles
of Union incentive measures, excluding any harmonisation of the laws and regulations of
the Member States, to support action taken by the Member States in order to contribute
to the achievement of the objectives referred to in paragraph 1.
Article 20
(ex Article 17 TEC)
1.
Citizenship of the Union is hereby established. Every person holding the
nationality of a Member State shall be a citizen of the Union. Citizenship of the Union
shall be additional to and not replace national citizenship.
2.
Citizens of the Union shall enjoy the rights and be subject to the duties provided for in
the Treaties. They shall have, inter alia:
(a)
the right to move and reside freely within the territory of the Member States;
(b)
the right to vote and to stand as candidates in elections to the European Parliament and
in municipal elections in their Member State of residence, under the same conditions
as nationals of that State;
25
(c)
the right to enjoy, in the territory of a third country in which the Member State of which
they are nationals is not represented, the protection of the diplomatic and consular
authorities of any Member State on the same conditions as the nationals of that
State;
(d)
the right to petition the European Parliament, to apply to the European Ombudsman,
and to address the institutions and advisory bodies of the Union in any of the Treaty
languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Treaties and by the measures adopted thereunder.
C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien/ free movement/ EU
citizenship
EU ensures the observance of the principle of equal treatment of citizens, which is
implemented by the Austrian Law on the abolition of the nobility
The general principle of equal treatment requires that comparable
situations must not be treated differently and different situations must not be
treated in the same way unless such treatment is objectively justified !!!
Seminal cases
o nationality eg. Gravier, 115 i 116/81 Adoui i Cornuaille przeciwko Belgia,
C-247/96 Bickel i Franz, C-184/99 Grzelczyk (2001)6
6
With the decision in Grzelczyk case a general principle has started to develop: that discrimination on ground
of nationality will not be allowed against EU citizens who have exercised their free movement rights.
Grzelczyk was the first judgment which dealt with the right of economically inactive persons to reside in another
Member State. The case concerned a French national who, for three years had studied in Belgium and had
worked there to pay for his studies. In the fourth and last year of his studies he stopped working in order to
concentrate on his studies. He applied for the minimum subsistence allowance (the so-called “minimex”), but did
not fulfill the condition set by Belgian law (to be a Belgian or a worker).
The national court asked ECJ whether the refusal to grant the “minimex” was contrary to the EC Treaty rules on
EU citizenship and the prohibition of discrimination on grounds of nationality enshrined in Article 12 EC Treaty.
ECJ considered that the condition which had been imposed, by reason of not being imposed on Belgian nationals
too, discriminated on grounds of nationality. ECJ found that articles 12 and 18 EC Treaty precluded entitlement
to a non-contributory benefit, such as the minimex, from being made dependent on a condition that did not apply
to nationals of the host Member State as well.
EU citizenship allows nationals of other Member States, who are lawfully residing in that Member State, access
to social benefits beyond existing secondary Community law.
26
o religion (130/75 Prais)
o sex (43/75 Defrenne) rights of transsexuals/gender reassignment
 C-13/94 P v S and Cornwall County Council
 C-117/01 K.B. v National Health Service Pensions Agency
(birth certificate/ benefits attaching to marriage/ pension
elegibility that would be extended to the surviving partner)
 C-423/04 Sara Margaret Richards (pension rights)
o sexual orientation
 C-249/96 Grant v South-West Trains Ltd
 C-125/99 P D v Council
 C-267/06 Tadeo Maruko

age
 C-144/04 Mangold
 C-555/07 Seda Kücükdeveci (2010)
9.3. Protection of fundamental rights
9.3.1. General principles of law
– ECJ case law
o 29/69 Stauder, 11/70 Internationale Handelsgesellschaft, 4/73 Nold, 44/79
Hauer
o
TM, TA  Art. 6 ( 2) TEU = general principles of Community law
o
ECJ inspirations:

constitutional traditions common to the MSs
 155/79 AM & S Europe Ltd v Commission/ the principle of legal
professional privilege/ the right to defend himself and the right to
confidentiality of documents in the hands of his lawyer


international instruments / eg. ECHR
Treaties
C-402/05P & C-415/05P Kadi v Council (2008)  EU
constitutional status of general principles of law
27
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 European
Convention for the Protection of Human Rights and Fundamental Freedoms has special
significance. Respect for human rights is therefore a condition of the lawfulness of
Community acts, and measures incompatible with respect for human rights are not
acceptable in the Community.
The obligations imposed by an international agreement cannot have the effect of prejudicing
the constitutional principles of the EC Treaty, which include the principle that all
Community acts must respect fundamental rights, that respect constituting a condition
of their lawfulness which it is for the Court to review in the framework of the complete
system of legal remedies established by the Treaty.
It is not a consequence of the principles governing the international legal order under the
United Nations that any judicial review of the internal lawfulness of the Regulation No
881/2002 imposing certain specific restrictive measures directed against certain persons and
entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban in the light
of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give
effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the
United Nations. Such immunity from jurisdiction for a Community measure, as a corollary of
the principle of the primacy at the level of international law of obligations under the Charter
of the United Nations, especially those relating to the implementation of resolutions of the
Security Council adopted under Chapter VII of that Charter, cannot find a basis in the EC
Treaty. Article 307 EC may in no circumstances permit any challenge to the principles
that form part of the very foundations of the Community legal order, which include the
principles of liberty, democracy and respect for human rights and fundamental
freedoms enshrined in Article 6(1) EU as a foundation of the Union. If Article 300(7) EC,
providing that agreements concluded under the conditions set out therein are to be binding on
the institutions of the Community and on Member States, were applicable to the Charter of
the United Nations, it would confer on the latter primacy over acts of secondary Community
law. That primacy at the level of Community law would not, however, extend to primary law,
in particular to the general principles of which fundamental rights form part.
The Community judicature must, therefore, 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 regulation at issue, are designed to give effect to the resolutions adopted by the
Security Council under Chapter VII of the Charter of the United Nations.
(see paras 283-285, 299, 303-304, 306-308, 326)
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Confirmed by C-101/08 Audiolux SA v GBL (2009)  have
constitutional status and should be of general application
/Protection of minority shareholders
Community law does not include any general principle of law under which minority
shareholders are protected by an obligation on the dominant shareholder, when acquiring or
exercising control of a company, to offer to buy their shares on the same conditions as those
agreed when a shareholding conferring or strengthening the control of the dominant
shareholder was acquired.
The mere fact that secondary Community legislation lays down certain provisions relating to
the protection of minority shareholders is not sufficient in itself to establish the existence of
a general principle of Community law, in particular if the scope of those provisions is
limited to rights which are well defined and certain. In order to establish whether such a
principle exists it is necessary to ascertain whether such provisions give any conclusive
indications of its existence, for those provisions have indicative value only if they are drafted
so as to have binding effect.
9.3.2. Main references to fundamental rights
Article 6
(ex 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.
29
Article 7
(ex Article 7 TEU)
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, may 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 recommendations 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 natural 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.
(…)
9.3.3. Fundamental rights application
Acts of the EU institutions
– interpretation
– legality review
Acts of the MSs/ fundamental rights review:
– when they are implementing EU law / 5/88 Wachauf
– when they derogate according to the provisions on fundamental freedoms /C260/89 ERT
C-112/00 Schmidberger v Austria
C-36/02 Omega
9.3.3. Charter of Fundamental Rights and Explanations 2000/
2007
30
Vide text/ different character of rights/ Article 52 etc.
1. Declaration concerning the Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union, which has legally binding force,
confirms the fundamental rights 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.
The Charter does not extend the field of application of Union law beyond the powers of the
Union or establish any new power or task for the Union, or modify powers and tasks as
defined by the Treaties.
61.
Declaration by the Republic of Poland on
the Charter of Fundamental Rights of the European Union
The Charter does not affect in any way the right of Member States to legislate in the sphere
of public morality, family law, as well as the protection of human dignity and respect for
human physical and moral integrity.
62.
Declaration by the Republic of Poland
concerning the Protocol on the application of the
Charter of Fundamental Rights of the European Union
in relation to Poland and the United Kingdom
Poland declares that, having regard to the tradition of social movement of "Solidarity" and its
significant contribution to the struggle for social and labour rights, it fully respects social
and labour rights, as established by European Union law, and in particular those
reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union.
PROTOCOL (No 30)
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,
31
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.
32
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.
9.3.4. ECHR and the EU law
– ECHR rights respected as general principles of the EU law/ Article 6 /the rule of
reason/ proportionality test
 Article 52
 Scope and interpretation of rights and principles
 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.
– Different decisions can produce problems? / eg. 46/87 i 227/88 Hoechst AG v
Commission / Niemietz v Germany
– Accession to the ECHR / opinion 2/94 / Protocol No. 14 of 2004/ ratified by Russia
June 2010
– ECtHR review of the EU law
 13258/87 Melchers & Co. v Germany/ 24833/94 Mathews v United Kingdom
 45036/98 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v.
Ireland (2005)
 the equivalent protection test
 a presumption could be rebutted if, in a particular case, it was
considered that the protection of Convention rights was manifestly
deficient.
 In such cases, the interest of international co-operation would be
outweighed by the Convention's role as a "constitutional instrument of
European public order" in the field of human rights.
Bosphorus (...) v Irland
33
The case concerned an application brought by an airline charter company registered in Turkey, Bosphorus Hava
Yollari Turizm ve Ticaret Anonim Sirketi ("Bosphorus Airways"). In May 1993 an aircraft leased by Bosphorus
Airways from Yugoslav Airlines ("JAT") was seized by the Irish authorities. It had been in Ireland for
maintenance by TEAM Aer Lingus, an aircraft maintenance company owned by the Irish State, and it was seized
under EC Council Regulation 990/93 which, in turn, had implemented the UN sanctions regime against the
Federal Republic of Yugoslavia (Serbia and Montenegro).
Bosphorus Airways' challenge to the retention of the aircraft was initially successful in the High Court, which
held in June 1994 that Regulation 990/93 was not applicable to the aircraft. However, on appeal, the Supreme
Court referred a question under Article 177 of the EEC Treaty to the European Court of Justice (ECJ) on whether
the aircraft was covered by Regulation 990/93. The ECJ found that it was and, in its judgment of November
1996, the Supreme Court applied the decision of the ECJ and allowed the State's appeal. By that time, Bosphorus
Airways' lease on the aircraft had already expired. Since the sanctions regime against the Federal Republic of
Yugoslavia (Serbia and Montenegro) had also been relaxed by that date, the Irish authorities returned the aircraft
directly to JAT. Bosphorus Airways consequently lost approximately three years of its four-year lease of the
aircraft, which was the only one ever seized under the relevant EC and UN regulations.
Bosphorus Airways complained that the manner in which Ireland implemented the sanctions regime to impound
its aircraft was a reviewable exercise of discretion within the meaning of Article 1 of the Convention and a
violation of Article 1 of Protocol No. 1.
Article 1
It was not disputed that the impoundment of the aircraft leased by Bosphorus Airways was implemented by the
Irish authorities on its territory following a decision by the Irish Minister for Transport. In such circumstances
Bosphorus Airways fell within the "jurisdiction" of the Irish State.
Article 1 of Protocol No. 1
Legal basis for the impoundment of the aircraft:
The Court observed that, once adopted, EC Regulation 990/93 was "generally applicable" and "binding in its
entirety" (under Article 189, now Article 249, of the EC Treaty), so that it applied to all Member States, none of
whom could lawfully depart from any of its provisions. In addition, its "direct applicability" was not, and in the
Court's view could not be, disputed. The Regulation became part of Irish domestic law with effect from 28 April
1993, when it was published in the Official Journal, prior to the date of the impoundment and without the need
for implementing legislation.
The Court considered it entirely foreseeable that a Minister for Transport would implement the impoundment
powers contained in Article 8 of EC Regulation 990/93. The Irish authorities rightly considered themselves
obliged to impound any departing aircraft to which they considered Article 8 of EC Regulation 990/93 applied.
Their decision that it did so apply was later confirmed, among other things, by the ECJ
The Court also agreed with the Irish Government and the European Commission that the Supreme Court had no
real discretion to exercise, either before or after its preliminary reference to the ECJ.
The Court concluded that the impugned interference was not the result of an exercise of discretion by the Irish
authorities, either under EC or Irish law, but rather amounted to compliance by the Irish State with its legal
obligations flowing from EC law and, in particular, Article 8 of EC Regulation 990/93.
Was the impoundment justified?
The Court found that the protection of fundamental rights by EC law could have been considered to be, and to
have been at the relevant time, "equivalent" to that of the Convention system. Consequently, a presumption
34
arose that Ireland did not depart from the requirements of the Convention when it implemented legal obligations
flowing from its membership of the EC. Such a presumption could be rebutted if, in a particular case, it was
considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of
international co-operation would be outweighed by the Convention's role as a "constitutional instrument of
European public order" in the field of human rights.
The Court took note of the nature of the interference, of the general interest pursued by the impoundment and by
the sanctions regime and of the ruling of the ECJ, a ruling with which the Supreme Court was obliged to and did
comply. It considered it clear that there was no dysfunction of the mechanisms of control of the observance of
Convention rights.
In the Court's view, therefore, it could not be said that the protection of Bosphorus Airways' Convention rights
was manifestly deficient. It followed that the presumption of Convention compliance had not been rebutted and
that the impoundment of the aircraft did not give rise to a violation of Article 1 of Protocol No. 1.
35