European Law.pdf

# Historical evolution of European cooperation and integration The historical evolution of European cooperation and integration outlines the journey from post-World War II efforts to establish peace and economic stability to the complex supranational structure of the European Union today [1](#page=1). ## 1. Historical evolution of European cooperation and integration ### 1.1 Preliminary steps towards European cooperation after World War II Following World War II, there was a significant impetus for international and intergovernmental cooperation to prevent future conflicts. However, finding consensus proved challenging [2](#page=2). #### 1.1.1 Early initiatives and organizations * **Benelux Union:** Established between 1944 and 1947, the Benelux Union was the first customs union, setting a precedent for economic integration [2](#page=2). * **Winston Churchill's Speech:** Churchill advocated for the establishment of a "United States of Europe" [2](#page=2). * **Marshall Plan:** The American financial and economic aid program for rebuilding Europe required the establishment of an international organization for its distribution. This led to the creation of the Organization for European Economic Co-operation (OEEC), which later evolved into the Organisation for Economic Co-operation and Development (OECD) with 16 member states initially, and currently 35 [2](#page=2). * **Council of Europe:** Founded on Churchill's idea, it initially comprised 10 member states, excluding Germany. Its purpose was to foster peace through justice and international cooperation [2](#page=2). * **Key characteristic:** The Council of Europe is an intergovernmental organization, meaning member states do not transfer sovereignty to its organs for binding legislation, unlike in the EU [2](#page=2). * **European Convention on Human Rights (ECHR):** Signed in 1950, it is a central legal instrument of the Council of Europe [2](#page=2). * **Functionality:** While it cannot make binding laws, it has produced international treaties like the ECHR. Provisions from the ECHR are often incorporated into the domestic law of member states [3](#page=3). * **European Court of Human Rights:** The most prominent body of the Council of Europe, with jurisdiction over states regarding ECHR violations [3](#page=3). * **Statutory bodies:** The Committee of Ministers (comprising foreign ministers) and the Parliamentary Assembly (composed of national parliament members) [3](#page=3). * **Commissioner for Human Rights:** An institution within the Council of Europe tasked with promoting awareness and respect for human rights. The Council of Europe and its Court are headquartered in Strasbourg, France [3](#page=3). ### 1.2 The European Coal and Steel Community (ECSC) * **Context:** The primary post-WWII political goal was to establish lasting peace between France and Germany, who had a history of conflict. Binding France and Germany within strong institutions was seen as attractive [3](#page=3). * **Economic Foundation:** The idea gained support that durable peace could be built on an economic "platform" of cooperation. Jean Monnet and Robert Schuman proposed close economic cooperation in the coal and steel sectors [3](#page=3). * **Supranational Basis:** This cooperation was designed to be supranational, rather than purely intergovernmental, which was believed to be more effective [3](#page=3). * **Treaty of Paris:** Established the European Coal and Steel Community (ECSC), entering into force in 1952 for 50 years [3](#page=3). * **Founding Members:** France, Germany, Italy, and the Benelux countries [3](#page=3). * **Institutions:** High Authority, Assembly, Council of Ministers, and Court [3](#page=3). * **Treaty-making process:** Involved initiative from member states, drafting by expert committees, and agreement at intergovernmental conferences (IGCs) where unanimity was required. Treaties are signed by heads of state and require ratification by national parliaments [3](#page=3). * **Supranational Character:** Sovereign nations relinquished control over coal and steel matters to a central authority that stood above the member states [4](#page=4). ### 1.3 The European Economic Community (EEC) and Euratom * **Post-ECSC:** After the ECSC, further cooperation beyond coal and steel was desired, primarily in the economic field on a supranational basis [4](#page=4). * **European Economic Community (EEC):** Established with the purpose of unifying member states through economic cooperation and creating a general internal/common market, allowing free circulation of goods, services, workers, and capital [4](#page=4). * **European Atomic Energy Community (Euratom):** Created at France's request to establish a market for nuclear power, develop nuclear energy, and distribute it among member states. The aim was to ensure peace through supervised use of nuclear energy [4](#page=4). * **Treaty of Rome:** Signed to establish the EEC and Euratom, entering into force in 1958 [4](#page=4). * **Institutions:** Commission, Parliament, Council of Ministers, and a shared Court of Justice [4](#page=4). * **The European Communities:** The EEC and Euratom, along with the ECSC, formed the "European Communities" with distinct yet shared institutions [4](#page=4). ### 1.4 Institutional Consolidation: The Merger Treaty * **Agreement:** Some institutions were established as common and shared among the communities [4](#page=4). * **Merger Treaty:** Officially merged the institutions, creating a single Council and a single Commission for the European Communities, officially establishing the "European Communities". The shared institutions included the Commission, European Parliament, Council of Ministers, and Court of Justice [4](#page=4). ### 1.5 Landmark Case Law: Van Gend & Loos . * **Direct Effect of EU Law:** This landmark judgment by the EU Court of Justice established that private individuals can invoke provisions of EU Treaties or secondary law before national courts to enforce their rights [5](#page=5). * **Case Details:** Van Gend & Loos, a transport company, challenged a Dutch import tariff, arguing it violated Article 12 of the Treaty of Rome (now Article 30 TFEU), which prohibited new customs duties or charges with equivalent effect between member states [5](#page=5). * **ECJ Ruling:** The Court ruled that Article 12 created rights for individuals that could be enforced in national courts, not just obligations between member states [5](#page=5). ### 1.6 Development towards the Internal Market * **EEC Treaty Goal:** The EEC Treaty set a 12-year deadline for the internal market, but political issues and member state opposition hindered progress [5](#page=5). * **Customs Union:** Achieved with the abolition of customs checks and border controls on goods, and the introduction of a common external tariff [5](#page=5). * **Decision-Making Blockages:** The unanimity voting system in the Council often led to deadlock, particularly due to France's "empty chair" policy under Charles de Gaulle [5](#page=5). * **Luxembourg Compromise:** Introduced a veto right for member states on issues deemed "very important" [5](#page=5). * **Accessions:** * 1973: Denmark, Ireland, UK [5](#page=5). * 1981: Greece [5](#page=5). * 1986: Portugal & Spain [5](#page=5). * **Delors Plan:** A plan drafted under Jacques Delors aimed to boost the development of the internal market, setting a new deadline of 1992 and requiring treaty amendments and a new decision-making process [5](#page=5). ### 1.7 The European Single Act . * **Entry into Force:** 1987 [5](#page=5). * **Modifications:** Amended the founding treaties of the EEC [6](#page=6). * **Key Changes:** * **Decision-Making:** Introduced the "qualified majority voting system" (QMV) in the Council [6](#page=6). * **European Council:** Established the European Council [6](#page=6). * **Commission Powers:** Extended the executive competences of the Commission [6](#page=6). * **Parliament Powers:** Increased the competences of the European Parliament (EP), particularly in legislative procedures through a "double lecture" process [6](#page=6). * **Competences:** Granted more powers to the European Community in areas like environment, research, and social policy to facilitate the internal market [6](#page=6). * **Objective:** To prepare for the signing of the Maastricht Treaty in 1992 [6](#page=6). #### 1.7.1 Understanding Qualified Majority Voting (QMV) * **Contrast to Unanimity:** In intergovernmental organizations, decision-making relies on unanimity, whereas supranational organizations employ majority voting systems [6](#page=6). * **QMV in the Council:** Decisions are taken by weighted votes, with member states having different numbers of votes. This system historically benefited smaller countries due to disproportionately high votes attributed to them compared to larger states [6](#page=6). * **Evolution of Voting Systems:** * **Until November 1, 2014:** QMV was based on 260 out of 352 possible votes in the Council [6](#page=6). * **Post-Lisbon Treaty:** QMV was replaced by the "double majority" system [6](#page=6). * **Double Majority:** Requires 55% of the Council members representing at least 65% of the total EU population in those participating member states [6](#page=6). * **Blocking Minority:** A decision is blocked if a minimum number of Council members representing at least 35% of the population of participating member states, plus one additional member state, opposes it [6](#page=6). * **Super-Qualified Majority:** In specific cases, 72% of member states must vote in favor if a proposal does not originate from the Commission [7](#page=7). * **Purpose of New System:** To make decision-making more efficient and implement an effective supranational legal order [7](#page=7). ### 1.8 The Maastricht Treaty . * **Expansion of Cooperation:** Cooperation extended beyond purely economic matters, facilitated by the realization of the internal market. The abolition of internal economic borders necessitated addressing other issues transnationally [7](#page=7). * **Schengen Agreement:** Concluded between Benelux, Germany, and France, it removed border controls for people within the "Schengen Zone," eliminating visa requirements for free travel. Currently, 22 out of 27 EU member states are part of the Schengen Agreement [7](#page=7). * **Treaty on European Union (Maastricht Treaty):** Entered into force in 1993, establishing the EU as a "dome" with three pillars: * **Pillar 1: The European Communities (ECSC, EEC, Euratom):** The supranational pillar, where member states transferred decision-making power to higher legal order [7](#page=7). * **Pillar 2: Common Foreign and Security Policy (CFSP):** An example of "political cooperation," operating on an intergovernmental basis [7](#page=7). * **Pillar 3: Justice and Home Affairs (JHA):** Addressing issues arising from open internal borders, free movement of persons, and cross-border criminality, also intergovernmental [7](#page=7). * **Modifications to Pillar 1:** Former treaties were modified, and the EEC was replaced by the European Community (EC) to reflect new competences in non-economic areas like social policy, culture, consumer protection, and environment [7](#page=7). * **Citizenship of the Union:** Introduced, granting rights beyond economic ones, such as free movement of persons [7](#page=7). * **Economic and Monetary Union (EMU):** Commitment to establish EMU with a single currency [7](#page=7). * **Institutional Changes:** Increased competences for the EP and expanded the scope of QMV [7](#page=7). ### 1.9 Towards a European Constitution #### 1.9.1 The Treaty of Amsterdam . * **Entry into Force:** 1999 [7](#page=7). * **New Members:** Finland, Austria, and Sweden joined in 1995 [7](#page=7). * **Supranationalization of Pillar 3:** Increased willingness to regulate aspects of the third pillar supranationally, transferring some areas to the first "Community" pillar [8](#page=8). * **Transferred Areas:** Asylum, immigration, border crossing, fraud combating, customs cooperation, and judicial cooperation in civil matters [8](#page=8). * **Remaining Pillar 3 Areas:** Police, security, and judicial cooperation in criminal matters [8](#page=8). * **EP Powers:** The EP received stronger powers, and QMV became applicable to more domains [8](#page=8). #### 1.9.2 The Treaty of Nice . * **Context:** Prepared for the accession of 10 new member states in 2004 [8](#page=8). * **Modest Treaty:** It involved modifications to older treaties but remained relatively modest in scope [8](#page=8). #### 1.9.3 A European Constitution . * **Goal:** To simplify the complex web of treaties by introducing a single "European Constitution" [8](#page=8). * **Key Proposals:** * Stronger EU with QMV for all legislation. * Complete abolition of intergovernmental pillars, merging all domains into the supranational pillar [8](#page=8). * EU adopting "laws" instead of regulations and directives [8](#page=8). * Appointment of an EU Minister of Foreign Affairs and a Prime Minister of the EU [8](#page=8). * Introduction of EU nationality, a European anthem, and flag [8](#page=8). * **Failure:** The treaty was agreed upon and signed but failed ratification due to referendums in the Netherlands and France [8](#page=8). ### 1.10 The Lisbon Treaty . * **Context:** Following the failure of the constitution, a new approach was taken, reworking existing treaties rather than starting anew. Bulgaria and Romania joined in 2007 [8](#page=8). * **Treaty Structure:** * **Treaty on European Union (TEU):** Reworked the Maastricht Treaty [8](#page=8). * **Treaty on the Functioning of the EU (TFEU):** Reworked the Treaty of Rome (EEC Treaty) [8](#page=8). * **Pillar Reduction:** The three pillars were reduced to two: * The third pillar (JHA) was integrated into the first pillar (Community pillar), making police and judicial cooperation in criminal matters supranational [8](#page=8). * Only the Common Foreign and Security Policy (CFSP) remained purely intergovernmental [8](#page=8). * **Key Modifications:** * **Modernization:** Aimed to modernize and improve the decision-making process for an enlarged EU of 28 countries [8](#page=8). * **Double Majority:** Extended the application of double majority voting in the Council of the EU [8](#page=8). * **EP Co-decision:** Enhanced the European Parliament's role, making the co-decision procedure the "ordinary legislative procedure" (Article 294 TFEU) where the EP and Council act as co-legislators on equal footing [8](#page=8) [9](#page=9). * **High Representative:** Introduction of the High Representative for Foreign Affairs and Security Policy [9](#page=9). * **Permanent President:** Introduction of a Permanent President of the European Council [9](#page=9). * **ECHR Membership:** The EU may become a member of the European Convention on Human Rights [9](#page=9). * **Charter of Fundamental Rights:** Added to the Treaty, becoming part of Union Law [9](#page=9). * **Exit Clause:** Introduced the possibility for member states to leave the EU [9](#page=9). ### 1.11 Future and Criticisms * **Further Accessions:** Croatia joined in 2013, bringing the number of member states to 28 [9](#page=9). * **Criticisms:** The EU has faced criticism for: * Lack of transparency in decision-making [9](#page=9). * Perceived lack of responsibility by decision-making institutions [9](#page=9). * Complexity of legislation [9](#page=9). * A "democratic deficit" [9](#page=9). * **Brexit:** The withdrawal agreement entered into force on January 31, 2021, representing a significant challenge to European integration [9](#page=9). --- # Legal acts and instruments of the European Union The European Union operates within a structured legal framework that delineates the powers of its institutions and the means by which they enact law, distinguishing between primary and secondary law, and further categorizing secondary law into various legal instruments with specific characteristics and binding force. ### 2.1 Primary and secondary European law Primary European law comprises the foundational Treaties, Protocols, and Annexes, such as the Charter of Fundamental Rights. These Treaties grant the EU institutions the authority and competences to adopt secondary law. Secondary European law encompasses the various legal instruments that the EU institutions are empowered to create, including regulations, directives, decisions, and others like recommendations [10](#page=10) [11](#page=11). ### 2.2 Legislative acts According to Article 289 TFEU, legal acts adopted through a legislative procedure are classified as legislative acts. These can be adopted via the ordinary legislative procedure or a special legislative procedure [10](#page=10) [3](#page=3). #### 2.2.1 Ordinary legislative procedure The ordinary legislative procedure involves the joint adoption of a legislative act by the European Parliament (EP) and the Council, acting on a proposal from the Commission. In this procedure, the EP and the Council act as co-legislators on equal footing, typically voting by Qualified Majority Voting (QMV). This procedure is further detailed in Article 294 TFEU [10](#page=10). #### 2.2.2 Special legislative procedure The special legislative procedure serves as an exception to the ordinary procedure and is employed in more sensitive policy areas. Unlike the ordinary procedure, the TFEU does not precisely describe these special procedures; their rules are defined on a case-by-case basis within specific treaty articles. In these procedures, the Council often acts as the sole legislator, with the Parliament's role being limited to consent or consultation [10](#page=10). ##### 2.2.2.1 Consent procedure Under the consent procedure, the Council can adopt legislative proposals after obtaining the consent of the European Parliament. The Parliament can only accept or reject a proposal by an absolute majority vote; it cannot amend it. The Council is not empowered to overrule the Parliament's opinion. This procedure is used for new legislation on combating discrimination and for the conclusion of international agreements, such as those concerning human rights, accession of new Member States, or withdrawal of Member States under Article 50 TEU and Article 218 TFEU [10](#page=10) [6](#page=6). ##### 2.2.2.2 Consultation procedure In the consultation procedure, the Council adopts a legislative proposal after the Parliament has submitted its opinion. The EP may approve, reject, or propose amendments to the proposal. While the Council is not legally obliged to consider the Parliament's opinion, the Court of Justice has ruled that it must not make a decision without having received it. This procedure is applied in areas such as social security and social protection (Article 21 TFEU) and administrative cooperation in the area of freedom, security, and justice, like police cooperation in cross-border criminal matters (Article 74 TFEU) [10](#page=10) [11](#page=11) [3](#page=3). ### 2.3 Legal instruments Article 288 TFEU outlines the primary legal instruments of the EU: regulations, directives, and decisions, along with "others" like recommendations, which do not generate legal consequences [11](#page=11). #### 2.3.1 Regulations Regulations are characterized by having a general scope, being legally binding, and possessing direct effect, making them directly applicable in all Member States. They are employed in domains where uniformity across Member States is essential, preventing regulatory differences [11](#page=11). #### 2.3.2 Directives Directives are binding as to the result to be achieved by Member States, allowing national authorities the freedom to choose the means and methods of implementation. This provides Member States with more flexibility but carries the risk of divergence. Directives do not typically have direct effect during their implementation period. Once a Member State has fulfilled its implementation obligation, the directive can generate effects between citizens and be invoked in national court proceedings. Modern directives often specify how and by what means the objectives should be achieved [11](#page=11). ##### 2.3.2.1 Importance of harmonisation directives for the internal market Harmonisation directives are crucial for the realization of the internal market, which is built upon the free movement of goods, services, capital, and people. They ensure consistent rules, norms, and technical, safety, and quality standards across all Member States. This harmonisation is vital for several reasons [11](#page=11): * **Promoting free movement:** Without harmonisation, differing national legislation on safety and quality norms could continue to hinder trade and free movement. Harmonisation aligns these rules and standards [11](#page=11). * **Mutual recognition:** Harmonisation forms the basis for the principle of mutual recognition, allowing products legally sold in one country to be sold in others, with Member States recognizing goods, products, and services from other Member States [11](#page=11). * **Increasing consumer confidence:** Consumers can trust that products sold across the EU meet comparable safety and quality standards [11](#page=11). * **Creating a level playing field:** Equal rules ensure fairer competition among companies from different Member States, including in the digital market [12](#page=12). * **Lower costs for companies:** Companies avoid the expense of creating separate product variants for each country with different safety standards [12](#page=12). * **Compliance with EU law:** Harmonisation ensures uniform interpretation and application of EU law across all Member States [12](#page=12). Directives concerning consumer protection are important for the proper functioning of the single market, safeguarding consumers' rights against merchants and protecting vulnerable consumers. These rules promote fairer markets and encourage greener and more socially responsible outcomes through better consumer information. Articles 4 (f), 12, 114, and 169 TFEU provide the legal basis for harmonisation directives, aiming to promote consumer interests and ensure high-level protection of health, safety, economic interests, and rights to information. Directive (EU) 2019/771, for instance, updates rules for contracts for the sale of goods, providing consumers with protection measures and rights when goods lack conformity, such as reduction of price, repair, replacement, or termination of the contract [12](#page=12) [2](#page=2). #### 2.3.3 Decisions Decisions are binding in their entirety, but if specific addressees are mentioned, they are only binding on those addressees. Decisions can have a general scope or a more particular, limited scope, and they possess direct effect [12](#page=12). ##### 2.3.3.1 Decision-making procedures and voting systems Decision-making in supranational organizations like the EU is based on agreed principles within the Treaties. Member States must comply with legislation even if they voted against it in their respective legislative organs. Voting systems include simple majority, Qualified Majority Voting (QMV), and unanimity [12](#page=12). * **Qualified Majority Voting (QMV):** According to Article 16 TEU, QMV is achieved when at least 55% of Member States vote in favour, representing at least 65% of the EU population. A blocking minority consists of at least 4 Member States voting against. This system ensures participation from all Member States. Article 238 TFEU addresses situations where not all Member States participate in a vote, such as due to opt-outs allowed by the Lisbon Treaty. In such cases, the QMV thresholds are adapted to consider only the participating Member States [13](#page=13) [3](#page=3). * **Abstention vs. Non-Participation (Opt-Out):** Abstention is not the same as not participating in a vote. Under QMV, an abstention is counted as a vote against. Non-participation, or an opt-out, is a formal exclusion from specific policy areas established by the Lisbon Treaty. A Member State that opts out does not take part in the vote, but this does not prevent decisions from being made by other Member States. The voting thresholds under Article 238 TFEU apply only to participating Member States [13](#page=13) [3](#page=3). * **Super Qualified Majority Voting:** This requires 72% of participating Member States representing 65% of the EU population [13](#page=13). * **Unanimity:** The Council votes unanimously on matters Member States consider sensitive. An abstention from voting does not prevent a decision from being adopted by unanimity [13](#page=13) [14](#page=14). > **Tip:** Understanding the nuances between abstention and non-participation (opt-out) is crucial when analyzing voting procedures in the Council, especially in the context of QMV and unanimity. ### 2.4 Purposes of the EU Article 3 TEU outlines five key purposes for which the EU is committed, pursued through appropriate means and in accordance with conferred competences (the principle of conferral) [14](#page=14). #### 2.4.1 Promotion of peace This was the initial reason for the EU's existence, evolving from economic cooperation to enhanced confidence among Member States to prevent war. The EU was recognized for this commitment by receiving the Nobel Prize for Peace in 2012 [14](#page=14). #### 2.4.2 An area of freedom, security, and justice This objective was first established at the Treaty of Maastricht and expanded significantly with the Treaty of Amsterdam. It encompasses immigration, asylum, border crossing and security, cooperation on duties and customs, fighting fraud, judicial cooperation in civil matters, and judicial cooperation in cross-border criminal matters. The Lisbon Treaty integrated most of these areas into the first pillar, leaving the Common Foreign and Security Policy (CFSP) as the second, intergovernmental pillar [14](#page=14). #### 2.4.3 Establishment of the internal market This was an initial core purpose of the EU, involving two main parts: the establishment of the customs union (realized by 1970) and the creation of a single internal market where goods, services, persons, and capital can move freely without hindrances at internal borders [14](#page=14). * **Customs Union:** This means no customs duties or taxes are applied when goods are transferred between Member States, and a single common tariff is applied at the EU's external border [14](#page=14). * **Removal of Hindering Factors:** All barriers to free movement must be abolished, including the removal of internal physical borders, harmonization of Member State legislation, and prohibition of distortions of competition on the internal market. The Commission, the Court of Justice of the European Union (CJEU), and the General Court supervise compliance with these rules [14](#page=14). ##### 2.4.3.1 Anti-competitive behaviour Prohibited under Articles 101 and 102 TFEU are agreements between undertakings, concerted practices, and abuses of a dominant position that restrict competition. Examples of prohibited actions include price-fixing, market sharing, limiting production, and applying dissimilar conditions to similar transactions [15](#page=15). Violations can lead to automatic nullity of agreements, significant fines imposed by the European Commission (up to 10% of annual turnover), claims for damages, and reputational harm. Adverse effects on competition include higher prices for consumers, erosion of consumer choice, reduced innovation, misallocation of resources, and distortion of supply and demand signals [15](#page=15) [16](#page=16). > **Example:** Price-fixing, where companies agree on purchase or selling prices, directly leads to artificially high prices for consumers and reduces the incentive for companies to innovate. ##### 2.4.3.2 Distorted competition and market effects Distorted prices, whether artificially high (price floors) or low (price ceilings), disrupt the natural signals in a free market, leading to irrational decisions, shortages, or surpluses. This results in inefficient allocation of economic resources, where valuable resources may be used to produce unwanted goods, while goods in high demand are underproduced. Misaligned production occurs when goods consumers value are underproduced due to low prices, and goods with artificially high prices are overproduced even if unwanted. This leads to waste and reduced economic welfare [16](#page=16). Poor investment decisions also arise from artificially manipulated prices, preventing accurate assessment of risk, cost, and return on investment, leading to capital misallocation and weakened economic growth. The market fails to produce the optimal quantity of goods or services, resulting in deadweight loss and reduced overall welfare [16](#page=16). * **Price Fixing:** Companies agree to keep prices artificially high, limiting competition and increasing consumer prices [16](#page=16). * **Predatory Pricing:** Prices are kept artificially low, often below cost, to force smaller competitors out of the market [16](#page=16). Both practices create barriers to market entry, particularly for small businesses and new entrants, distorting market conditions and discouraging innovation. The EU's competition policy objective is to ensure the internal market remains open and fair, creating a space without market entry barriers [16](#page=16) [17](#page=17). > **Example:** Predatory pricing, where a large company lowers its prices below cost to drive out smaller rivals, ultimately allows the dominant firm to gain monopoly power and raise prices significantly in the long term, harming consumers. #### 2.4.4 Establishment of the Economic and Monetary Union and introduction of a single currency The existence of different currencies between Member States created economic risks and inefficiencies that hindered commercial transactions and the movement of goods and services. The solution was the introduction of a single currency to facilitate the establishment of the internal market [17](#page=17). --- # Principles of EU law and fundamental purposes The European Union is underpinned by a set of core principles that govern its functioning and dictate its fundamental objectives, ensuring its actions are lawful, effective, and aligned with its foundational aims [14](#page=14) [18](#page=18) [19](#page=19). ### 3.1 Fundamental purposes of the EU The EU is committed to pursuing several fundamental purposes [14](#page=14): * **Promotion of peace:** This was the initial driving force behind the EU's creation, fostered through economic cooperation and later expanded competences. The enhancement of confidence among Member States aimed to prevent further conflict, a goal recognized when the EU received the Nobel Peace Prize in 2012 [14](#page=14). * **An area of freedom, security, and justice:** This purpose, initially addressed by the Treaty of Maastricht and further developed by the Treaty of Amsterdam, encompasses areas such as immigration, asylum, border control, customs and fraud prevention, and judicial cooperation in civil and criminal matters. The Lisbon Treaty integrated judicial cooperation in criminal matters into the first pillar, leaving two main pillars: the "community pillar" and the Common Foreign and Security Policy (CFSP) in the second intergovernmental pillar [14](#page=14). * **Establishment of the internal market:** This was an original objective of the EU, achieved through the establishment of a customs union (completed in 1970) and the creation of a single market where goods, services, persons, and capital can move freely without internal border hindrances. This involves abolishing customs duties between Member States and applying a common external tariff, as well as removing all hindering factors, harmonizing legislation, and ensuring fair competition [14](#page=14). * **Economic and Monetary Union (EMU) and the introduction of a single currency:** A strong EMU is considered crucial for the stability of a single currency to prevent devaluation due to economic or budgetary problems in individual Member States. While nineteen Member States currently form the Eurozone, the EU is not a complete economic union as Member States retain political and legislative powers over their budgets, provided they comply with EU principles and accept economic policy monitoring by the EU [18](#page=18). ### 3.2 General principles of EU law Several overarching principles guide the EU's actions and the relationship between the Union and its Member States [18](#page=18) [19](#page=19): #### 3.2.1 Principle of loyalty or “sincere cooperation” * **Definition:** This principle, enshrined in Article 4 TEU, imposes both positive and negative obligations on Member States. They must make all positive efforts to achieve the Union's objectives and refrain from any measures that could be detrimental to them [18](#page=18) [3](#page=3). * **Two-way obligation:** The Lisbon Treaty extended this principle to the EU institutions themselves (Article 13 TEU), meaning it operates in two directions: Member States must support the institutions, and the institutions must cooperate with and support the Member States [18](#page=18) [2](#page=2). * **Implications:** Member States are obliged to support the EU institutions in achieving the EU's purposes and legal order. Breaches of this principle can lead to sanctions through judgments by the Court of Justice of the European Union (CJEU) [18](#page=18). #### 3.2.2 Principle of conferral * **Definition:** According to Article 5 TEU and Article 2 TFEU, the EU only possesses "attributed competences" or "conferred competences" [18](#page=18) [2](#page=2) [6](#page=6). * **Consequence:** The EU can only adopt legislative acts if it has been granted the competence to do so by the Treaties (TEU or TFEU). A clear legal basis, referencing the specific article or provision of the Treaties, is always required for any legislative act [18](#page=18). * **Types of competences:** * **Exclusive competences:** Power to legislate is completely transferred from Member States to the EU institutions [18](#page=18). * **Shared competences:** The EU and Member States share regulatory powers in these domains [18](#page=18). * **Supporting competences (or accessory responsibilities):** The EU supports Member States in policy-making, particularly in cross-border aspects, to harmonize their policies [18](#page=18). * **Exception to the Principle of Conferral (Accessory/Supporting Competences):** * **General Rule:** The EU can only act within explicitly granted competences [18](#page=18). * **Exception:** Even without an explicit competence, the EU may adopt legislation if it is necessary for the effective application of EU law, deriving from the principle of sincere cooperation [19](#page=19). * **Scope:** The EU can support, coordinate, or complement Member State actions [19](#page=19). * **Limitation:** This does not allow the EU to supersede or replace Member State competences but rather to coordinate, promote, or assist. These are used when necessary to implement EU law effectively and do not permit full harmonization or legislative override of national competences [19](#page=19). * **Connection to Core Competences:** Accessory competences are an implicit way for the EU to extend its influence, but only if there is a clear connection to a core competence explicitly granted by the Treaties. Without this link to a primary EU competence, accessory action is not permissible [19](#page=19). #### 3.2.3 Principle of subsidiarity * **Definition:** As per Article 5 TEU, in areas not falling 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 (at central, regional, or local level) but can be better achieved at Union level due to the scale or effects of the action [19](#page=19) [3](#page=3). * **Applicability:** This principle applies only to shared and supporting/accessory competences [19](#page=19). * **Practical application:** The EU can only adopt legislative measures if its approach is more efficient than that of the Member States. The presence of a cross-border element often determines whether the EU will take initiative [19](#page=19). #### 3.2.4 Principle of proportionality * **Definition:** This principle, regulated by Article 5 TEU, governs the exercise of powers by the EU, ensuring that actions do not exceed what is necessary to achieve the objectives of the Treaties. The content and form of Union action must be proportionate to the aim pursued [19](#page=19) [4](#page=4). * **Criteria:** The criteria for application are set out in Protocol No. 2 annexed to the Treaties [19](#page=19). * **Implications:** Legislation may not go beyond what is strictly necessary for the intended purpose, meaning the EU must limit the exercise of its powers [19](#page=19). * **Applicability:** This principle *always* applies to all domains, including exclusive, shared, and supporting competences [19](#page=19). * **Supervision:** Compliance with both the principles of subsidiarity and proportionality is subject to supervision and judicial control by the CJEU and national parliaments [19](#page=19). > **Tip:** Remember that the principles of subsidiarity and proportionality are crucial checks on the EU's legislative power, ensuring it acts only when necessary and to the extent required. They are closely interconnected and subject to judicial review. > **Tip:** The principle of conferral establishes the EU's limited powers. Always look for the legal basis in the Treaties when analyzing EU legislative acts. Pay close attention to the distinction between exclusive, shared, and supporting competences. --- # Direct effect and primacy of EU law The concepts of direct effect and primacy are fundamental to understanding how EU law operates within Member States, enabling individuals to invoke EU law and ensuring its superiority over conflicting national provisions. ### 4.1 Primacy of EU law The principle of primacy, also known as supremacy, of EU law addresses the potential conflict between EU law and national law. When national legislation and EU law have contradictory content, or when national law is interpreted differently or attempts to override EU law, the uniform application of EU law requires a solution. This solution is the primacy of EU law [20](#page=20). * **Derivation:** The principle of primacy can be derived from the creation of a supranational legal order [20](#page=20). * **Scope:** It applies even to the Constitutions of Member States, meaning EU law takes precedence even if the national constitution does not explicitly grant primacy to international treaties [20](#page=20). * **Consequence:** All national regulations that are contrary to EU law must be set aside and left without application, including later national legislation. This principle applies to all judges, national implementation organs, and public authorities [20](#page=20). * **Key Case:** The **Costa-Enel case** is significant in establishing this principle [20](#page=20). ### 4.2 Direct effect of EU law Direct effect concerns the possibility for individuals to invoke EU legal provisions before national courts, thereby deriving rights and obligations from them. #### 4.2.1 Direct effect of primary EU law Primary EU law refers to the provisions found in the EU Treaties, specifically the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) [21](#page=21) [22](#page=22). * **Introduction:** The question arose whether Treaty articles, such as Article 12 EEC, could be directly applied within Member States, allowing individuals to claim individual rights based on these articles. Essentially, it addresses whether an individual can directly enforce rights derived from the Treaty before a national court [20](#page=20). * **Court of Justice's Stance:** The Court of Justice of the European Union (CJEU) affirmed that the EEC Treaty not only creates rights and obligations for Member States but also for individuals [20](#page=20). * **Arguments supporting direct effect:** * **General Purpose of the Treaty:** The creation of the internal market is of direct interest and importance to all citizens [20](#page=20). * **Preamble of the EC Treaty:** The Preamble is addressed to "the peoples of the Member States" [20](#page=20). * **Citizen Cooperation:** Citizens can cooperate in the decision-making procedure through their representation in the European Parliament (EP) [20](#page=20). * **Transfer of Sovereignty:** Member States have transferred substantial parts of their sovereign legislative powers and competences to the supranational legal order constituted by the EU and its organs [20](#page=20). * **Enforceability in National Courts:** Individuals can enforce rights derived from the Treaty before national courts [20](#page=20). * **Arguments confirming enforceability of Article 12 EEC:** The CJEU interpreted Article 12 EEC as producing direct effect, containing rights and obligations for individuals that must be protected by national courts, in line with the spirit, scheme, and wording of the EEC Treaty. Article 12 was found to contain a clear and unconditional prohibition, well-adapted to creating direct effect in the legal relationship between Member States and their individual citizens, even without specific national implementation [20](#page=20). * **Consequence:** Individuals can derive rights and obligations from the Treaties; if these obligations are clear and unconditional, individuals must be able to invoke them against Member States before national courts to protect those rights [20](#page=20). ##### 4.2.1.1 Conditions for direct effect of primary EU law For a provision of primary EU law to have direct effect, the following conditions must be fulfilled [21](#page=21) [22](#page=22): * **Source:** The provision must originate from EU primary law (TEU and TFEU) [21](#page=21) [22](#page=22). * **Clear Obligation:** There must be a clear obligation within the provision addressed to the Member States [21](#page=21) [22](#page=22). * **Unconditional Obligation:** The obligation must be unconditional [21](#page=21) [22](#page=22). * **Individual Rights:** It must be possible to derive a right for individual citizens from that obligation [21](#page=21) [22](#page=22). **Tip:** If there is doubt about whether these conditions are met, a preliminary question on the interpretation of the Treaty provision can be asked to the CJEU [21](#page=21). * **Applicability:** Once these conditions are met, the provision can be invoked against Member States (vertical relationship) and also against other individuals, such as citizens, undertakings, companies, and organizations (horizontal relationship) [21](#page=21). * **Examples of TFEU provisions with direct effect:** Articles 21, 30, 101, 102, and 157 TFEU are cited as examples [21](#page=21). * **Key Case:** The "Cream cheese case law" from the Belgian Court of Cassation in 1971 is also relevant [21](#page=21). #### 4.2.2 Direct effect of secondary EU law Secondary EU law comprises various legal instruments, with differing rules on direct effect. * **Regulations and Decisions:** By their nature, regulations and decisions already have direct effect. They can be invoked by individual citizens against other citizens and against public authorities, meaning they have both horizontal and vertical direct effect [21](#page=21). * **Directives:** Directives are not automatically directly effective [21](#page=21). * **Before expiry of implementation period:** No direct effect is possible before the deadline for implementation by Member States has passed [21](#page=21). * **After expiry of implementation period:** * **Vertical direct effect:** Only vertical direct effect is possible, meaning directives can be invoked against public authorities (Member States) [21](#page=21) [22](#page=22). * **Horizontal direct effect:** No horizontal direct effect is possible between private individuals [21](#page=21) [22](#page=22). * **Directive-conform interpretation:** In cases of conflict between private individuals, the directive may influence the interpretation of national legislation in line with the directive's scheme, wording, and spirit, thus indirectly having an "effect" through the application of national law [21](#page=21) [22](#page=22). * **State liability:** Individuals may claim damages from the state if specific conditions are met, as established in the **Francovich liability** case law, confirmed in the **Faccini Dori** case [21](#page=21). * **Conditions for vertical direct effect of directives:** For a directive to have vertical direct effect after the implementation period, the provision must contain a clear obligation that confers rights upon individual citizens [21](#page=21) [22](#page=22). * **Princ of Nemo auditur propriam turpitudinem allegens:** A Member State that has failed to adopt the required implementing measures within the prescribed period cannot rely on its own failure to perform its obligations under the directive against individuals. This principle means a Member State may not apply national legislation that is not adapted to the content of a directive to individuals who have complied with the directive, even if the directive has not been transposed into national law [21](#page=21). * **National Court's Duty:** If a national court is asked by a person who has complied with the directive's provisions not to apply an incompatible national provision that has not been incorporated into the internal legal order, the court must uphold this request if the obligation from the directive is unconditional and sufficiently precise. The same applies if a directive contains rights that individuals can invoke against a Member State [21](#page=21). **Tip:** Remember that for directives, the primary avenue for individuals against the state after the implementation period expires is vertical direct effect or, in certain circumstances, state liability [21](#page=21) [22](#page=22). * **Key Cases:** **Ratti** case for vertical direct effect of directives **Francovich** case for state liability and **Faccini Dori** case [21](#page=21) [22](#page=22). ### 4.3 Summary of EU law's direct effect vehicles EU law can have direct effect through three main "vehicles" [21](#page=21) [22](#page=22): 1. **Primary EU Law (Treaty Provisions):** * Must be from TEU and TFEU. * Must contain a clear obligation addressed to the Member States. * The obligation must be unconditional. * A right for individual citizens must be derivable from the obligation. * Can have vertical and horizontal effect. 2. **Directives (in case of non-implementation by Member States):** * **Vertical effect only:** Can be invoked against Member States. * Requires a clear and unconditional obligation imposed upon Member States and derivable rights for individuals (Case Ratti) [22](#page=22). * **No horizontal direct effect** in conflicts between private individuals [22](#page=22). * **Alternative avenues:** * **Directive-conform interpretation:** National law can be interpreted to align with the directive's spirit, wording, and scheme [22](#page=22). * **State liability:** For damages caused by the Member State's breach of its obligation to implement the directive within the implementation period (three conditions, Francovich case) [22](#page=22). > **Tip:** The Faccini Dori case clarified that horizontal direct effect of directives is not possible; the "effect" individuals might experience in such situations arises from directive-conform interpretation of national law, not direct invocation of the directive itself against another individual [22](#page=22). --- # Free movement of workers and EU institutions The principle of free movement of workers within the EU grants individuals the right to seek and undertake employment in any Member State, with EU institutions tasked with facilitating this process and adopting related legislation [23](#page=23). ### 5.1 The right to free movement of workers The right to free movement of workers is a fundamental freedom within the European Union [23](#page=23). #### 5.1.1 Who is entitled to invoke this right? * **Definition of a "worker"**: A "worker" is defined as a person who has a working relationship with another person. This relationship is characterized by [23](#page=23): * A definite or indefinite duration [23](#page=23). * The performance of deliverables under the supervision and authority of an employer [23](#page=23). * The receipt of financial compensation as consideration for the work performed [23](#page=23). * No specific requirements regarding salary or wages are mandated to qualify as a "working relationship" or "labour agreement" [23](#page=23). #### 5.1.2 Who must respect and comply with this principle? The principle of free movement of workers must be respected and complied with by: * Member States and their public authorities [23](#page=23). * Private organizations and associations [23](#page=23). * Private employers [23](#page=23). > **Tip:** Specific case law, such as the Bosmans and Angonese cases, are mentioned as relevant examples to consult in the presentation slides for a deeper understanding of how these principles are applied in practice [23](#page=23). #### 5.1.3 Derived rights from the principle of free movement of workers Derived from Article 45 of the Treaty on the Functioning of the European Union (TFEU) individuals benefit from the following rights [23](#page=23) [3](#page=3): * The ability to accept an offer of employment anywhere within the EU [23](#page=23). * The freedom to travel and move freely within the EU [23](#page=23). * The right to move from one Member State (MS A) to another (MS B) to reside in MS B for the purpose of carrying out an economic activity [23](#page=23). * The right to remain in MS B, even after the employment activity has concluded [23](#page=23). > **Tip:** The Case Las is referenced as another important legal case that illustrates the scope and application of these rights [23](#page=23). ### 5.2 Role of EU institutions The European Union (EU) has the responsibility to adopt legislation that facilitates the free movement of workers. This includes [23](#page=23): * Adopting laws to make it easier for individuals to exercise their right to work in other Member States [23](#page=23). * Addressing other connected rights that are essential for the effective exercise of free movement, such as family reunification and ensuring similar tax and social security advantages across Member State borders [23](#page=23). --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Supranational cooperation | A form of international cooperation where member states transfer a degree of sovereignty to common institutions that can make binding decisions, often independently of national governments. | | Intergovernmental cooperation | A form of international cooperation where member states retain full sovereignty and decisions are made through negotiation and agreement among national governments, typically requiring unanimity. | | Customs union | An agreement between countries to eliminate customs duties and other trade barriers among themselves and to adopt a common external tariff for goods imported from outside the union. | | Schengen Agreement | An international treaty that led to the creation of the Schengen Area, a zone comprising 27 European countries that have officially abolished all types of passport and other types of border control at their mutual borders. | | Direct effect | A principle of EU law that allows individuals to invoke provisions of EU law directly before national courts, even if the Member State has not fully implemented them into national law. | | Supremacy of EU law (Primacy of EU law) | The principle that EU law takes precedence over conflicting national law in Member States, meaning national courts must set aside national legislation that is incompatible with EU law. | | Regulations | A type of EU legal act that has general application, is binding in its entirety, and is directly applicable in all Member States without the need for national implementing measures. | | Directives | A type of EU legal act that is binding as to the result to be achieved, but leaves to national authorities the choice of form and methods to implement it within a specified timeframe. | | Decisions | A type of EU legal act that is binding in its entirety on those to whom it is addressed, whether that be Member States, individuals, or undertakings. | | Qualified Majority Voting (QMV) | A voting system used in the Council of the European Union where decisions are adopted if a certain percentage of Member States, representing a certain percentage of the EU population, vote in favour. | | Double majority | The voting system established by the Lisbon Treaty, requiring a decision to be supported by at least 55% of the Member States, representing at least 65% of the EU population. | | Principle of Conferral | A fundamental principle of EU law stating that the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties. | | Principle of Subsidiarity | A principle that dictates that the EU should only act in areas not falling under its exclusive competence if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather be better achieved at Union level. | | Principle of Proportionality | A principle of EU law that requires that any action taken by the EU institutions must not exceed what is necessary to achieve the objectives of the Treaties. | | Freedom of movement of goods | The principle that prohibits customs duties and quantitative restrictions on goods traded between EU Member States, ensuring that goods lawfully produced and marketed in one Member State can be sold in another. | | Freedom of movement of services | The principle that allows individuals or companies established in one EU Member State to provide services in another Member State without being subject to discriminatory restrictions. | | Freedom of movement of capital | The principle that prohibits restrictions on the movement of capital and payments between Member States and between Member States and third countries. | | Freedom of movement of persons | Encompasses both the free movement of workers and the freedom of establishment, allowing EU citizens to live, work, and study in any Member State under certain conditions. | | Internal market | A single market within the European Union where goods, services, capital, and people can move freely across national borders, promoting competition and economic integration. | | European Court of Justice (ECJ) | The supreme court of the European Union in relation to EU law, responsible for ensuring that EU law is interpreted and applied the same way in every Member State. | | Charter of Fundamental Rights of the European Union | A legally binding document that sets out a range of civil, political, economic, and social rights for EU citizens and residents. | | EMU (Economic and Monetary Union) | An economic arrangement within the EU involving the coordination of economic and monetary policies, a common currency (the euro), and a single monetary policy conducted by the European Central Bank. | | CFSP (Common Foreign and Security Policy) | A policy area of the EU aimed at enabling the EU to speak with a single voice on the international stage and to pursue common foreign and security objectives. | | Treaty on European Union (TEU) | One of the two core treaties of the EU, setting out the EU's objectives, principles, and institutional framework, as well as provisions on common foreign and security policy and justice and home affairs. | | Treaty on the Functioning of the European Union (TFEU) | The other core treaty of the EU, detailing the EU's competences and the functioning of its internal market, including provisions on free movement, competition, and various policy areas. | | Legislative acts | Legal acts adopted by a legislative procedure, typically involving the European Parliament and the Council of the EU. | | Ordinary legislative procedure | The primary legislative procedure in the EU, where the European Parliament and the Council of the EU act as co-legislators, adopting legislative acts on a proposal from the European Commission. | | Special legislative procedure | A legislative procedure used in specific policy areas where the European Parliament or the Council of the EU acts alone, with the other institution’s role limited to consent or consultation. | | Francovich liability | A principle established by the ECJ that allows individuals to claim damages from a Member State if they have suffered loss as a result of that State’s failure to implement an EU directive, provided certain conditions are met. | | Nemo auditur propriam turpitudinem allegans | A legal maxim meaning that no one can rely on their own wrongdoing or failure to act to their own advantage. In the context of EU law, it means a Member State cannot benefit from its own failure to implement an EU directive. |