IV.

EUROPEAN LAW : HISTORY OF THE EU

◦The Evolution of European Law

• Classic international law allows each state to determine the relationship between its domestic law and
international law.

• There are two constitutional theories: monism and dualism. Monism considers international law as part
of domestic legal order, while dualism requires "transposition" of international law into domestic law.

• The European Union (EU) follows dualism, and member states need to "transpose" EU law into their
domestic law before it takes effect.

• Individuals do not have direct contact with EU law.

• The Van Gend en Loos case established the EU as a "new legal order," independent from international
law.

• European law imposes obligations on individuals and confers rights upon them, separate from domestic
legislation.

• The principle of conferral dictates that the EU can only act within the limits of powers delegated to it by
member states.

• The EU cannot extend or limit its own competences.

• Competences are divided into exclusive and shared categories, with the EU having sole authority in
certain areas, such as customs union and competition rules.

• In shared competences, both the EU and member states can legislate and adopt legally binding acts, with
member states acting only to the extent that the EU has not already done so.

◦Competences in EU Law
• Complementary competences (Arts. 2(3) & 5 TFEU) in EU law are more diffuse and include economic
policy or employment policy.

• "Arrangements," "guidelines," and "initiatives" are used to describe these competences, but they are
largely undefined.

• Complementary/supporting competences (Arts 2(5) and 6 TFEU) involve actions to support, coordinate,
or supplement the actions of Member States in industries such as culture and tourism.

• CFSP/CSDP (Common Foreign and Security Policy/Common Security and Defense Policy) falls under
Article 2(4) TFEU, allowing the Union to define and implement a common foreign and security policy.

• Arts 114 and 352 TFEU are two general competences that horizontally cut through the Union's sectoral
policies.

• Art. 114 TFEU allows for the approximation of national laws related to the establishment and
functioning of the internal market, with a wide interpretation of its scope.

• The limits of Article 114 TFEU were tested in the Tobacco Advertising I case where the European
directive banning tobacco advertising was annulled.

• Article 352 TFEU grants the most general competence, but with express boundaries in terms of
harmonization and CFSP.
• The concept of competence creep is discussed, referring to the adoption of EU legislation in areas
without specific legislative competence.

• Competence creep can arise from case law, soft law, etc., and a national provision contrary to EU law
can be disapplied.

• An example of competence creep is illustrated through the case of Mary Carpenter, involving the free
movement of persons/freedom of establishment.

V. EUROPEAN LAW : EU LAW MAKING

◦Introduction to EU Law
• EU Legal Instruments: regulations, directives, decisions, recommendations, and opinions
• Ordinary Legislative Procedure: first reading, second reading, third reading
• EU-Law Making: non-unitary actors, lobbying, taking account of different opinions
• Special legislative procedures: consent procedure, consultation procedure, CFSP decision-making

• Non-Legislative Acts: delegated acts, implementing acts, comitology

• Challenging Brussels: procedures before the CJEU, actions for annulment, preliminary reference
procedures, actions by national parliaments and citizens

• Early Warning Mechanism: principle of subsidiarity, yellow card procedure, orange card procedure,
possibility of a red card procedure

• Citizenship Initiatives: registration, verification and submission, meetings with Commission and EP

• Direct Effect: conferring rights on individuals, conditions for direct effect

• Direct Effects and Secondary Law: primary law, nearly all sources of EU law can be directly effective.

◦Direct and Indirect Effects of EU Directives

•Direct effect of directives in vertical situations:
◦Case 41/74, Van Duyn: Direct effect applies when regulations, decisions, and directives are
involved. number year
◦Individual v Member State: Case 148/78, Ratti emphasizes that the conditions for direct effect
must be fulfilled and the transposition period must have expired.

• No horizontal direct effect between individuals:

◦Case C-91/92, Faccini Dori: Direct effect only applies vertically, not horizontally between
individuals.

•Indirect effect of directives:

◦Case 14/83, Von Colson: National courts must interpret national law in line with directive wording
and purpose to achieve desired results.

• Compensation for breaches: Compensation must be adequate in relation to the damage sustained if a
Member State chooses to penalize breaches with compensation.

•State liability:
◦Joined cases C-6/90 and C-9/90, Frankovich: Three conditions for state liability:
‣ 1) the breached rule must confer rights on individuals,
‣ 2) the breach must be serious,
‣ 3) there must be a direct causal link between the breach and the loss or damage sustained.
• National procedural autonomy:
◦Case C-33/76, Rewe: Each Member State determines the procedural conditions governing actions to
protect citizens' rights from the direct effect of EU law in the absence of Union rules on the subject.

• Principles of effectiveness and equivalence: These principles are relevant in national procedural
autonomy.

VI. EUROPEAN LAW : CJEU

◦Introduction to EU Law

• ECJ, Case C-294/83, Le Verts, para 23, states that the European Union is based on the rule of law and
requires a review of measures adopted by Member States and institutions to ensure conformity with the
treaty.

◦The Judicial Structure of the European Union :

• The CJEU is composed of one judge per EU Member State. It hears cases related to infringement
proceedings and annulment actions.
• The GC is composed of two judges per Member State and hears appeals and actions for failure to act.
• The ECJ also hears preliminary reference procedures and requests for opinions.
• The GC and specialised courts hear appeals for failure to act brought by natural and legal persons.

◦Notes on EU Law and the Preliminary Reference Procedure

•Art. 267 (2) vs. Art. 267 (3) TFEU: Exceptions to the duty to refer, as explained in the Case 283/81,
CILFIT, stating acte clair (no doubt) and acte éclairé (existing ruling by CJEU).

•No exceptions when it comes to the validity of an EU legislative act, as seen in Case 314/85, Foto-Frost.

•Article 263 TFEU: actions for annulment, listing grounds for annulment such as lack of competence,
infringement of procedural requirements, infringement of Treaties or rules of law, and misuse of powers.
•"Dieses Foto" von Unbekannter Autor ist lizenziert gemäß CC BY-SA-NC, indicating the licensing of a
photo.
•Describing acts subject to review, including final acts, acts of direct concern to individuals, and
regulatory acts without implementing measures.
•Three groups of applicants:
‣ privileged (COM, MS, Council, EP)
‣ semi-privileged (Central Bank, Court of Auditors, Committee of the Regions)
‣ non-privileged (individuals with direct and individual concern).

•The Plaumann Case, explaining direct concern and individual concern criteria for challenging EU legal
acts not directly addressed to individuals.

•The Inuit & Microban Cases, discussing the meaning of "regulatory act" and the conditions for bringing an
action for annulment against legislative acts.

•Reference to the Case 6/64, Costa/Enel, highlighting the independence of EU law as a source of law.

◦"Infringement Procedure: Overview and Process"

• The transfer of rights and obligations from domestic legal systems to the Community legal system
carries a permanent limitation on sovereign rights.

• Commission infringement proceedings were initiated and closed in 2020-2021 for the PSPP case of the
German Federal Constitutional Court.

• The 2021 judgment of the Polish Supreme Court (case K3/21) led to ongoing Commission infringement
proceedings and Poland being referred to ECJ Infringement procedure.

•There are two types of applicants in the infringement procedure:

‣ The Commission (Art. 258 TFEU)
‣ A Member State (Art. 259 TFEU).
◦The respondent is another Member State.

• The procedure under Article 258 TFEU involves the Commission noticing an alleged breach, commencing
an investigation, and determining if there is a breach of EU law.

• If there is no breach, the process ends, but if there is, the Member State may give observations within a
given time.

• If observations are sufficient, the process ends.

‣ Otherwise, the Commission issues a reasoned opinion with a time limit for the Member State
to alter their conduct.
‣ If there is still no change in conduct…
◦The case goes in front of the ECJ to determine if there is an infringement.
‣ If there is an infringement, the Member State has to change their conduct or face sanctions
under Art. 260(2) TFEU.

VII. EUROPEAN LAW : INTERNATIONAL AND EUROPEAN LAW

◦The Kadi case: EU & International Law
• Case T-315/01 (2005) and Joined Cases C-402/05 P and C-415/05 P (2008) provide the background.

• UN Security Council (UNSC) created lists of persons and entities associated with terrorist organizations
following the 9/11 attacks.
‣ Member states (MSs) had to freeze personal funds and economic resources as per UNSC
decisions.

• EU, even though not a member of the UN, implemented these decisions within its competences.

• Mr. Kadi brought an action for annulment, claiming his innocence and breach of fundamental rights.
‣ Fundamental rights (FRs) act as a limit to acts of Union institutions.
• The question arises about the relationship between EU legal order, international legal order under the
UN, and the protection of FRs.

• The General Court (GC) held that acts implementing obligations under the UN fell outside its jurisdiction,
immune to review against EU law.
‣ The GC stated it was not its role to review the compatibility of UNSC resolutions with
fundamental rights.
‣
• The applicant had no judicial remedy available, and his interests did not outweigh the essential public
interest.

• The sanctions against Mr. Kadi were upheld, and the application of FRs to EU acts was not universal.

• The Court of Justice argued for the autonomy of the EU legal order, ranking the UN Charter between
primary and secondary EU law.

◦Court of Justice's Ruling on EU's Obligations and Judicial Review

• The Court of Justice no longer filters the effects of international law in the EU, allowing the Union to
give effect to obligations that may breach fundamental rights.

• Measures can be annulled if Member States fail to comply with UN Charter obligations, as no
international law obligations can justify violations of fundamental rights.

• Obligations imposed by an international agreement cannot prejudice the constitutional principles of the
EC Treaty, which include that all Community acts must respect fundamental rights.

• The Court dismissed the notion of Union acts having 'immunity' from judicial review.

• EU Courts must ensure full review of the lawfulness of all EU acts in the light of fundamental rights,
even when implementing UNSC resolutions.

• The effectiveness of judicial review requires the communication of grounds for contested listing
decisions and the right to be heard.

• Mr. Kadi was never informed of the reasons for his inclusion on the list, thus infringing his rights and
making it impossible for the Court to review whether the inclusion was justified.

• The Court held that Mr. Kadi's rights of defense and right to effective judicial review were not respected
and annulled the regulation freezing his assets.

• In 2008, the Court annulled large parts of the 2005 decision on appeal, emphasizing that all EU
measures, including those implementing UNSC resolutions, must comply with EU Treaties and general
principles of EU law.

• Autonomy is a necessary precondition for the EU to ensure that individuals enjoy the constitutional
guarantees under EU law.

• Fundamental rights review can only be achieved through this approach.