EUL

Art. 13 TEU

§European Council

§Council [of the European Union]

§European Parliament

§[European] Commission

§Court of Justice of the European Union

§European Central Bank

§[European] Court of Auditors

Art. 13 (2)

-> Principle of conferal

-> Principle of institutional balance

-> Principle of sincere cooperation

Main Features

§Purpose: "The European Council shall provide the Union with the necessary impetus for its deve-  lopment and shall define the general political directions and priorities thereof. It shall not exercise  legislative functions." (Art. 15(1) TEU)

Composition (Art. 15(2) TEU)

ØHeads of member states

ØPresident of the European Council and President of the Commission,  but both without a vote (Art. 235(1) TFEU)

ØThe High Representative for Foreign Affairs and Security Police is  not a member of the European Council, but takes part in its work

Meetings (Art. 15(3) TEU): It meets twice every six months;  the President can convene special meetings

§Purpose: "The Council shall, jointly with the European Parliament, exercise  legislative and budgetary functions. It shall carry out policy-making and  coordinating functions as laid down in the Treaties." (Art. 16(1) TEU): 

Presidency: Romania, Finland & Croatio -> Always three countries for 1.5 year

Composition

ØThe Council acts by a qualified majority except where the Treaties provide otherwise  (Art. 16(3) TEU)

Configurations: General affairs, foreign affairs, justice and home affair, einvironment, education...

ØThe Council consists of a representative of each Member State

at ministerial level (Art. 16(2) TEU)

ØThe Council meets in different configurations, namely the General Council, the  Foreign Affairs Council and further configurations as determined by the European  Council (Art. 16(6) TEU)

ØA Committee of Permanent Representatives of the governments of the member  states (Coreper) is responsible for preparing the work of the Council

(Art. 16(7) TEU, Art. 240(1) TFEU)

§  The Presidency of the Council, with the exception of the Foreign Affairs configuration, is held by  pre-established groups of three member states for a period of 18 months; the groups are made up  on a basis of equal rotation among the member states; each member of the group shall in turn chair

for a period of six months all configurations except the Foreign Affairs configuration (Art. 16(9) TFEU  in conjunction with Art. 1 Declaration No. 9 TFEU and Art. 1 European Council Decision 2009/881)

§Purpose: "The European Parliament shall, jointly with the  Council, exercise legislative and budgetary functions. It shall  exercise functions of political control and consultation as laid  down in the Treaties. It shall elect the President of the  Commission." (Art. 14(1) TEU)

§Composition (Art. 14(2) TEU):

Ø751 members

ØThe representation of the member states is degressively proportional (i.e. larger member  states have less representatives relative to their population than smaller member states)

ØThe most populous member state, Germany, has 96 seats, the least populous, Malta, has 6

§Elections take place every five years (Art. 14(3) TEU) on the basis of proportional representation  (Art. 1 of the 1976 Election Act); the details of the election process in each member state are  governed by its domestic law (Art. 8 Election Act)

§Decision-making: As a rule, Parliament decides by a simple majority (Art. 231 TFEU)

§  Purpose: The Commission is the EU's main executive body (see the  overview in Art. 17(1) TEU)

ØPromote the general interest of the Union and take appropriate initiatives

to that end: The Commission is the "motor" of European integration; for instance,  the Commission has the exclusive right to propose legislation (Art. 17(2) TEU)

ØEnsure the application of the treaties (in particular through adopting secondary  legislation [legislative function] or by applying the Treaties directly [executive function])

Ø  Oversee the application of Union Law: Guardian of the Treaties (e.g. through launching  enforcement actions against member states before the Court of Justice of the EU)

§Composition

ØOne commissioner from each member state (European Council Decision 2013/272; contrary to  Art. 17(5) TEU [18 Commissioners]; compromise offered to induce Irish voters to ratify the Lisbon  Treaty), including a President and the High Representative for Foreign Affairs and Security Policy

ØCommission members are independent from the member states (Art. 17(3) TEU)

ØPresident of the Commission (Art. 17(6) TEU)

-  Lays down guidelines within which the commission is to work

-  Decides on the internal organization of the Commission and appoints Vice-Presidents

-  Can force Commissioners to resign

Main features

§Purpose: "The Court of Justice of the European Union (...) shall ensure that in the  interpretation and application of the Treaties the law is observed." (Art. 19(1) TEU)

§Composition (Art. 19(1) TEU): "The Court of Justice of the European Union shall  include

Øthe Court of Justice,

Øthe General Court and

Øspecialised courts. (...)."

ØArt. 19 TEU and Arts. 251-281 TFEU

ØStatute of the CJEU (Protocol 3 to the TEU and TFEU)

ØRules of Procedure of the Court of Justice of 25 September 2012

ØRules of Procedure of the General Court of 4 March 2015

§  Working language: Unlike the other EU institutions, who use English as (unofficial) working language,  the CJEU has adopted French as (unofficial) working language (although officially all languages of the EU  members states have the same rank, cf. Arts. 36-42 Rules of Procedure of the CJ, and all important  documents and judgments are translated into all EU languages)

ØOne judge per member state (Art. 19(2) TEU),  currently 28 judges

ØJudges are appointed by the member states for  a renewable term of six years (Arts. 19(2) TEU,  253(3) TFEU)

ØFormations: The CJ usually sits in chambers  of three or five judges, and exceptionally as  Grand Chamber (15 judges) or full Court

(all judges) (Art. 251 TFEU, Art. 16 Statute  of the CJEU)

ØMost important competences (actions) (Arts. 256 TFEU, 51 Statute of the CJEU)

-  Direct actions (in particular: infringement actions by the Commission  against member states; annulment actions by EU institutions and bodies  and, in certain cases, member states against EU acts)

-  Appeals against decisions from the General Court

-  Preliminary rulings (requested by national courts)

Ø  The CJ is supported by Advocates General (Art. 19(2) TEU, Art. 252 TFEU)

-  Advocates General provide written opinions on cases to the Court; they serve as impartial  and independent experts for the Court

-  There are currently 1  Advocates General

General Court:

ØMost important competences (actions) (Arts. 256 TFEU, 51 Statute of the CJEU)

-  Annulment actions by private persons and, in certain cases, by member states against EU acts

-  Damages actions against EU institutions and bodies

-  Disputes between the EU and its civil servants

1. Primary law

• Treaties (Art. 1 (2) & (3)
• Charter of fundamental rights of the EU (CFR)

2. General principles of law  (developed by the Court of Justice)

3. International agreement concluded by the EU (Art. 216 TFEU)

4. Secondary law (EU legislation) -> Art. 288 TFEU Regulations, Directives

• Legislative Acts
• Non-legislative Acts

Not ratified yet. The constitution consolidated the legal framework -> all in one document. The people said no to that constitution. They wanted to stay sovereign member states. The responsible people decided to let the 3 part section (like before).

§Principles inherent in all organized legal systems

Examples

ØPrinciple of legal certainty (e.g. principle of non-retroactivity, principle of good faith)

ØProcedural rights (e.g. right to be heard, right to a defense)

Ø

§Principles common to the law of all member states

Examples

ØPrinciple of the prohibition of unjust enrichment

ØPrinciple of confidentiality of communication between attorney and client

Ø

§Principles inferred from the nature of the EU

Examples

ØPrinciple of proportionality (see Art. 5(4) TEU)

ØPrinciple of supremacy of EU law

Ø

§Fundamental rights (see Art. 6(3) TEU)

picture

• Legislative Acts
  -> Adopted by a legislative procedure Art. 289(3) TFEU
• Non-legislative Act
  Art. 289(3) e contratio
  • Legal acts adopted by the executive (Commission) based on legislative acts)
    • Delegated acts Art. 290 TFEU
  • Other
    • Implementing acts Art. 291 TFEU

Ordinary revision procedure Art. 48 TEU

§The government of any member state, the European Parliament and the Commission can submit proposals to the European Council (Art. 48(2) TEU)

ØMore important amendments: If the European Council decides by simple majority to examine the proposals,  the President of the European Council convenes a Convention (of representatives of the nationals parliaments,  the heads of Governments, the European Parliament and the Commission) which then makes recommendations  to a Conference of representatives of the members states (Art. 48(3)(1) TEU)

ØLess important amendments: If the European Council considers the proposals less important, it may decide  by simple majority, after obtaining the consent of the European Parliament, to send them directly to the  Conferences of representatives of the member states (Art. 48(3)(2) TEU)

§The Conference of representatives of the member states then determines by unanimity the amendments  (Art. 48(4)(1) TEU)

§The amendments will only enter into force after they have been ratified by all member states (Art. 48(4)(2) TEU)

Simplified revision procedure (Art. 48)

§Changes to Part III of the TFEU without increase of EU competences: Can be decided by the European Council  by unanimity, on proposal by the government of any member state, the European Parliament or the Commission,  with the approval of all member states (Art. 48(6) TEU)

§Change Council decision-making from unanimity to qualified majority / change from special to ordinary  legislative procedure: Can be decided by the European Council by unanimity and with the consent of the  European Parliament, unless a national parliament objects within six months (Art. 48(7) TEU)

• Ordinary legislative procedure: Art. 289(1) TFEU
  Joint adoption by the EP and the Council on a proposal from the Commission (Art. 289(1) TFEU
• Special legislative procedures Ar.t 289(2) TFEU
  Adoption by the Council with the participation of the EP or vise versa, on a proposal from the comission. 
  • Consent procedure:
    Role of EP and Council vary depending on provision, but consent of the EP is required.
  • Consultation procedure:
    Council adopts, EP is only conculted. 

Choice of procedure: Whether the ordinary or a special legislative procedure is to be used  is stated in the treaty provision which provides the competence for the legislative act at issue

Art. 5 TEU:

• Extent of EU competences -> Principle of conferral
• Use of EU comptences
  • Principle of subdsidiarity
  • Principle of proportionality

The principles of conferral, subsidiarity and proportionality are all aimed at limiting EU competences.

By contrast, teleological interpretation as practiced by the Court of Justice tends to increase EU competences

Categories Art. 2-6 TFEU

• Exclusive competences Art. 2(1) & 3 TFEU: Only the EU may act
• Shared comptetences Art. 2(2) & 4 TFEU:
  Member states may only act to the extent that the EU has not exercised its competences
• Special cases:
  • Coordination of economic employment and social policies (Art. 2(3) and 5 TFEU
  • Defining & implementing a common foreign and security policy Art. 2 (4) TFEU
• Supporting, coordinating or suplementing competences Art. 2(5) & 6 TFEU

1. Principles of Conferral Art. 5(1) and (2) The EU can only act if there is a corresponding competence in the Treaties

2. Try to find an EU competence in the Treaties and determine its scope and the arrangments for exercising it Art. 2(6). You can find the oftne in the part three (internal actions) and part four (external actions).

3. If there is a competence, determine the category of the competence.

1. Direct applicability
   Are a states int. law obligations part of its domestic legal order?
   
    
2. Direct effect (self-executing)
   Can an individual invoke a provision of int. law before domestic courts?
    
3. Primacy (supremacy)
   In case of conflict, does int. prevail over domestic law?

Van Gend en Loos

Beginnend mit der Entscheidung im Verfahren Van Gend & Loos gegen niederländische Finanzverwaltung vom 5. Februar 1963 entwickelte der Gerichtshof der Europäischen Gemeinschaften (EuGH) seine mittlerweile nahezu unbestritten geltende Rechtsprechung von der Eigenständigkeit und dem Vorrang des Rechts der Europäischen Gemeinschaften und begründete damit den Anwendungsvorrang des Unionsrechts. 

Relatively lenient test that leaves a lot of discretion for the Court of Justice

• Vertical direct effect: Relationship between state and private persons
• Horizontal effect: Relationship among private persons.

General rule: No direct effect

Exception: If the general conditions of direct effect (sufficiently clear and precise / unconditional) ar met

And  the state failed to transpose the directive into domestic law 

General: Absolute primacy

Limited: Int. agrreements concluded by member states before entering the EU take precedence of EU law (Art. 351 TFEU)

Legal effect of conflict between a member state norm and a EU law norm: Disapplication, not  invalidation of the member state law norm (Simmenthal [1978]), and without having to wait for the  setting aside of such a member state norm by the competent body under domestic law (The Minister  for Justice and Equality and Commissioner of the Garda Síochána [2018])

Costa v. ENEL

Costa v ENEL (1964)

Facts: In 1962 Italy nationalized, by Law No 1643, the production and distribution of  electric energy and created the National Electricity Board (Ente Nazionale Energia  Elettrica [ENEL]), to which the assets of the existing Italian electricity companies were  transferred. Mr. Flaminio Costa, an Italian lawyer, received in 1963 from ENEL an invoice  for electricity in the amount of 1'925 lire (at the time equivalent to about 13 Swiss francs).

Procedural history: Mr. Costa challenged the invoice before the competent national court, the Giudice  Concliatore, arguing that Law No 1643 violated the Italian constitution and various provisions of the Treaty  establishing the European Economic Community (TEEC). On request of Mr. Costa, the Guidice Concliatore  referred the case to, on the one hand, the Italian Constitutional Court, and, on the other hand, the European  Court of Justice for a preliminary ruling (under Art. 177 TEEC, today Art. 267 TFEU).

The Italian government argued before the Court of Justice that a private person could not use the preliminary  reference procedure to challenge the validity of domestic legislation. While the case was pending before the  Court of Justice, the Italian Constitutional Court decided that under Italian law a violation of the TEEC did not  question the validity of Law No 1643, since it was younger than the Italian law that had given effect to the  TEEC in Italy (lex posterior derogat legi priori).

Legal issue: Could the Court of Justice in a preliminary reference procedure declare the domestic law of a  member state to be in breach of the TEEC?

Answer of the Court: Yes, because the TEEC takes precedence over domestic law

• EU actions:
  • Against member states
    • Infringement action:
      Brought by the commission (Art. 258 TFEU) oder brought by another member state (Art. 259 TFEU)
      Procedure in Art. 260 TFEU
       
  • Against EU bodies
    • Annulment action (Art. 263 TFEU)
    • Failure to act action (Art. 265 TFEU)
    • Damages action (Art. 268 TFEU)
       
• National actions:
  Before national courts -> Ask for preliminary ruling (Art. 267 TFEU)
  It is a decision of the ECJ on the inerpretation of European Union law, given in response to a request from a court or tribunal of a European Union Member State

1. Informal Phase: Detecting problems and informal discussions
2. Formal infringement procedures
   1. Commission sends a letter of formal notice to the member state at issue and asks for a response
   2. If the answer does not satify the Commission it sends to the member a reasoned opionon, including a deadline for compliance
   3. If the member state does no comply with the specific deadline, the Commission can refer the case to the CJ, which then rules on the issue.

Art. 263 and 264 TFEU

Conditions for bringing:

• EU legislative acts
• All other legally binding acts of EU bodies intended to produce legal effects vis a vis third parties

Reasons of review:

• Lack of competence
• Infringement of an essentail procedural requirement
• Infringement of the traties or any rule of law relating to it
• misuse of power

Standing: 

• Privileged applicants Art. 263(2) TFEU
  Member states, European Parliament, Council and Commission -> always standing
• Semi-privileged applicants Art. 263(3)
  Court of Auditors, European Central Bank and Commitee -> Standing for the purpose of protecting their prerogatives
• Non-privileged applicants Art. 263(4) TFEU -> Nautral and legal persons
  • Acts adressed to them -> Always standing
  • Acts not addressed to them
    • Acts addressed to another person -> Standing if the act is of direct and individual concern to the person.
    • Act of general application:
      • Legislative acts -> Standing if the act is of direct and individual concern to the person.
      • Non-legislative acts -> Standing if the act is of direct concern to the person 
        Ex. Iniut I (2013)

Time limit Art. 263(2-4) TFEU:
Within two month of the publication of the measure.Even after this expiry when the act is based on 277 TFEU

Art. 267 TFEU

The CJEU shall have jurisdiction to give preliminary rulings concering:

1. The interpretation of treaties
2. The validty and interpretation of acts of institutions, bodies, office or agencies of Union

Functions:

• Homogenous interpretation of EU law
• Enforcement of EU law

Which kind of questions can the CJ answer? Art. 267(1)

• Questions on the intepretation of primary and secondary law
• Questions on the validity of secondary EU law. 

Art. 267(2) TFEU -> Right to ask

Art. 267(3) TFEU -> Obligation to ask 

§The CJ's interpretation of EU law is binding on all courts in the EU which have to apply EU law

§The CJ only rules on the interpretation and validity of EU law; the application of EU law  to the facts of the case is done by the national court (but is in fact often determined by the  interpretation of the CJ)

§Effects of a finding of violation of EU law

ØViolation of EU law by EU law (e.g. if an EU legislative act violates the EU Treaties)

-  Invalidation (according to Art. 267(1) TFEU, the CJ can rule on the validity of EU law)

-  Compare with the legal effects of an annulment action (Art. 264 TFEU)

ØViolation of EU law by national law (e.g. if a national statute violates an EU legislative act)

-  No invalidation, only disapplication of national law found to be in breach of EU law

-  Compare with the legal effects of an infringement action (Art. 260(1) TFEU)

• By the EU:
  Legal basis: 340(2) TFEU
  Enforcement: Damages action against the EU before the CJEU (Art. 268 TFEU)
   
• By the member states 
  Legal basis: Nox explicit basis
  Enforcemnet: Damages actions against member states before national courts (Art. 267)

Facts: Directive 80/987 required member states to establish a guarantee institution to ensure that if an  employer became insolvent, the wages of the employees would still be be paid for a certain period of time.  Italy had failed for years after the end of the transposition period to comply with this directive. Mr. Francovich  had been an employee of a company that had become insolvent, and, due to Italy's failure to transpose the  directive into national law, had not been paid the wages he would have been entitled to under the directive.

Procedural history: Mr. Francovich sued the Italian state before the competent national court for his wages,  relying on the directive. The national court referred questions of EU law for a preliminary ruling to the CJ.

Legal questions

§Did the relevant provisions of the directive have direct effect?

§If no, can a member state become liable for damage suffered as a consequence of failing to  transpose a directive into national law?

Judgment of the CJ

§The CJ held that the directive had no direct effect, but there was liability of the state for not transposing  the directive into national law

§It argued that state liability for breaching EU law was inherent in the system of the treaties, and without  it the full effectiveness of EU law and the protection of rights granted by it would be impaired

§Conditions for liability: (1) Directive has to grant rights to individuals, (2) content of the right has to be  identifiable in the directive, (3) causal link between breach and damage

-> Thomasova case
§Three conditions

1.The rule of EU law infringed must be intended to confer rights on individuals

2.The breach of the rule of EU law must be sufficiently serious

Factors relevant for the evaluation of the seriousness of the breach

§Margin of discretion of the violator (if the violator had relatively wide discretion [like typically  a legislator], then a breach will less likely be found serious; for a serious breach by a legislator  the CJ demands a grave and manifest disregard of its discretion)

§Clarity and precision of the norm breached / difficulty of interpreting that norm

§Whether the breach was intentional or involuntary

§Complexity of the situation to be regulated

3.There must be a direct causal link between the breach of the obligation incumbent on the  state or the EU and the loss or damage sustained by the injured parties

• Internal policies: Primarly Part three of the TFEU
  • Core exonomic policies
    • Internal market
    • Economic and monetary union
  • Other policies
    to a large extent these policies aim at supplementing and furthering the core economic policies.
• External policies
  • Trade: Common commercial polivy
  • General foreign policy: Common foreign and security policy

-> Fundamental EU rights. Limit and guide the EU in all of its policy areas.