EU Law I Institutional Law of the EU

SUMMARY

Author: Philip Haibach Year 2012

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TABLE OF CONTENTS

1. Legal Dictionary...................................................................................................... Page 2

2. Basic Union Principles............................................................................................ Page 4

3. Institutions............................................................................................................... Page 5

4. Instruments & Hierarchy of Norms......................................................................... Page 8

5. Legislative & Revision Procedures.......................................................................... Page 9

6. Legal Bases.............................................................................................................. Page 11

7. Legal Effect.............................................................................................................. Page 14

8. Legal Protection....................................................................................................... Page 18

9. Human Rights.......................................................................................................... Page 24

10. Additional Books..................................................................................................... Page 24

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1. LEGAL DICTIONARY

TERM DEFINITION

Acquis Communitaire EU Legislation in its entirety: legal acts, court decisions an so forth, which constitute the body of European Union law

Argument of Reciprocity Argument for justification of breach of the law on the basis of reciprocity i.e. the universal application of law to each individual actor

Common / Case Law

Law established by precedent cases of the respective legal system

Constitutional Law Law established by the constitution of the respective legal system

Constitution A system of fundamental laws and principles that prescribes the nature, functions, and limits of a government as well as the rights and obligations of the citizens of that respective government. The TEU&TFEU form a quasi EU constitution. Each constitution consists of substantive and procedural law.

Erga Omnes For everyone Ex Nunc ‘From now on’ i.e. valid in the future Ex Tunc ‘From the outset’ i.e. valid in the past and future Force Majeure Natural force that is beyond the control of the individual actor Hierarchy of Norms A system in which each norm is derived from its superior norm.

Every legal norm derives its validity from the Grundnorm or primary legal source. Thus all legal sources in this system are ranked according to their position in the hierarchy.

Harmonisation The aim to streamline legislation among the MS Internal Market Major legal aim of the EU. This is a completely integrated single

European market in which the free movement of goods, services, capital and persons is legally protected and European citizens are free to live, work, study and do business.

Jurisdiction The right to administer justice within a defined area of responsibility

Law Rules of conduct drawn from legal sources and executed by an authority

(Supranational) Law The legal constitutional system between national and international law of the EU upon which competences are conferred by the MS. The supranational system of the EU consists of independent legal institutions which implement and apply European law uniformly through the MS. Supranational laws and legal principles take primacy over the national law and are protected by the effective legal system.

Legal Basis The legal justification to pass legislation. Legal bases consist of articles included into the primary law of the legal system.

Legal Effect The condition of being legally evocable Legal Obligation A legal duty to do or refrain from doing something Legal / Judicial remedy The means to achieve justice in any legal matter Legal Right A legally recognized entitlement to do or refrain from doing

something

Legal Source A source of law. E.g. Constitution, TFEU &TEU

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Legislative Acts Acts adopted by the legislator under a legislative process such as the Ordinary Legislative Procedure (Regulations, Decisions, Directives, Recommendations, Opinions)

Non-Legislative acts Acts adopted pursuant to delegation or for the purpose of implementing a legislative act (e.g. Legal acts adopted by the Commission)

Private / Civil Law Horizontal relation. E.g. Individual vs. Individual

Procedural Law

Law defining the formal procedures of enforcing legal rights and obligations

Public Law

Vertical relation. E.g. Individual vs State/EU

Substantive Law

Law establishing the framework of a legal system. Profound and major provisions.

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2. BASIC UNION PRINCIPLES

Name Relation Explanation Legal Base

Institutional Balance

Interinstitutional Interinstitutional checks and balances as alternative to separation of powers, institutions must act within their powers conferred on them by the treaties

Article 13 (2) TEU

Sincere Cooperation

EU v MS Interinstitutional

MS shall cooperate with EU and all Institutions shall cooperate with each other

Article 4 (3) TEU

Subsidiarity EU v MS In areas of shared competences the EU shall act only if the objective cannot be (sufficiently) achieved by MS due to scale or effects of the proposed measures. The Commission should try to choose the least intrusive way of a legal instrument

Article 5 (3) TEU

Supremacy EU v MS In case of a conflict between national and supranational legislation, EU law has primacy over national provisions

Internationale Handelsgesellschaft

Conferral EU v MS EU must have competences for action to achieve the objectives of the Treaties

Article 15 (3) TFEU

Consistency EU v MS EU v Individuals

The Union shall ensure consistency of its policies and actions, taking all of its objectives into account

Article 7 TFEU

Proportionality EU v MS EU v Individuals

EU legislation must not exceed what is necessary to achieve the aims of the Treaties

Article 5 (4) TEU

Transparency EU v Person General access to EU documents for natural and legal persons

Article 15 (3) TFEU

Legal Certainty

General Law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial obligations. The adoption of laws which will have legal effect in the European Union must have a proper legal basis.

Belgium vs Commission

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3. INSTITUTIONS Seven main institutions govern the European Union, these institutions and their functions are listed in the Treaties mostly under Articles 13 to 19 in the TEU Relevant Articles

Ø Article 12 TEU Governs for the role of national parliaments in the environment of the European Union.

Ø Articles 13 - 19 TEU Describes the general functions of the EU institutions

Ø Articles 223 - 287 TFEU Gives a more detailed overview of the functions on the main EU institutions

Ø Article 13 (2) TEU Governs for the principle of institutional balance in the environment of the EU institutions.

Ø Articles 14 - 19 TEU Explains and elaborates on the principle of checks and balances between the institutions of the EU

3.1 European Council

• Governed for by àArticle 15 TEU and àArticles 235 & 236 TFEU • Made up of Heads of State, President and the Commission President • It appoints most senior positions of the EU, such as the President, the Commission

President and the Commission • The President of the European Council may be impeded under àArticle 15 (5) TEU

3.1.1 Tasks

• Concerned with the Revision and amendments of the Treaties under àArticle 48 TEU

• And the procedure concerning the withdrawal of member states from the Treaty under àArticle 50 TEU

• Provides the general political direction, priorities but has no legislative functions under àArticle 15(1) TEU

3.2 European Commission

• Governed for by àArticle 17 TEU and àArticles 244 and 250 TFEU • The independence of the European Commission is governed for by àArticle 17 TEU

and àArticle 245 TFEU • Part of the legislative and executive branch of the EU • The Commission President provides Guidelines and is responsible for the internal

organisation and the appointment of the vice-president 3.2.1 Tasks

• Initiates legislative proposals • Externally represents the Union except under the CFSP • Possesses the supervisory power of the guardian of the Treaties • May start the infringement procedure under àArticle 258 TFEU • It may under àArticle 290 and 291 TFEU adopt non-legislative delegated and

implementing acts

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3.3 European Parliament • Governed for by àArticle 14 TEU and àArticles 223 to 234 TFEU • Uses political parties rather than national groupings àArticle 224 TFEU • Part of the legislative branch of the EU

3.3.1 Tasks

• The EP has supervisory, co-legislative and budgetary powers • It acts as the committee of inquiry under àArticle 226 TFEU • It has hearing rights under àArticle 230 TFEU. It may hear the European

Council and the Council under this hearing right • It elects the Commission President and the Commission under àArticle 17(7)

TEU • It may appoint an Ombudsman under àArticle 228 TFEU • It has co-legislative power in the ordinary legislative procedure under àArticle

289 and 294 TFEU • It also has certain powers under the consultation procedure such as in àArticle

21 (3) TFEU and àArticle 113 TFEU • And it has certain powers under the consent procedure in situations depicted in

àArticle 49 TEU and àArticle 352 TFEU 3.4 Council of the European Union

• Governed for by àArticle 16 TEU and àArticles 237-243 TFEU • Members are representatives at the ministerial level of the member states • The Council has different working formations such as the General Affairs Council or

the foreign affairs council. Usually with the respective minister of the member state 3.4.1 Tasks

• COREPER has legislative functions in matters concerning the internal market and the technical and economic market

3.5 European Courts

• The courts are governed by àArticle 19 TEU and àArticles 251 – 281 TFEU • The court of justice is part of the judiciary branch of the EU • The EU Court system contains the Court of Justice, the General Court and the

specialised Court • àArticle 253 TFEU governs for the independence of judges

3.5.1 Tasks of the General Court

• Concerned with the Direct actions of individuals under àArticle 263 & 265 TFEU

• Claims of non-contractual damages under àArticle 340 TFEU • Concerned with the direct actions of member states against the Commission, ECB

or Council in the fields of aid, dumping and implementing powers under àArticle 263 & 265 TFEU

3.5.2 Tasks of the ECJ

• Concerned with preliminary rulings under àArticle 267 TFEU • Enforcement actions by the Commission or MS under àArticle 258 & 260 TFEU

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• Direct actions of EU institutions against EU institutions or member states against the Parliament or Council under àArticles 263 & 265 TFEU

• Appeals from the General Court

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4. INSTRUMENTS & HIERARCHY OF NORMS There are five principal tiers to the hierarchy of norms in EU law, which are, in descending order: the Treaties; principles of law; legislative acts; delegated acts and implementing acts.

Relevant Articles

Ø Article 6 (1) TEU The Charter of Rights has the same hierarchical status as the Treaties themselves.

Ø Article 296 TFEU In the majority of cases, the Treaties detail the type of act which should be used. In those cases where it does not, Article 296 TFEU permits the institutions to choose the type of act to be adopted on a case-by-case basis

Ø Article 288 TFEU Listing and elaboration of Regulations, Directives, Decisions and Recommendations

Ø Article 289 TFEU The governing provisions dealing with the hierarchical status and the procedures of legislative acts

Ø Article 290 TFEU Defines the new category of delegated acts and sets the conditions and controls over the making of such acts

Ø Article 291 TFEU Governs for the use of implementing acts

4.1 Hierarchy of Norms

• The hierarchy of norms is based on the hierarchy of the Treaties, general principles of law, legislative acts, delegated acts and implementing acts

• The constituent Treaties, TEU and TFEU sit at the top of the hierarchical order. • Followed by the General principles of law containing principles such as the

principle of proportionality, fundamental rights and legal certainty. • Legislative acts are positioned below the general principles and are governed for by

àArticle 289 TFEU. Examples of legislative acts are regulations, directives or decisions. Which are only binding if they are adopted in accordance with a legislative procedure.

• Second-last in the hierarchy of norms are delegated acts which are non-legislative acts of general application which supplement or amend certain non-essential elements of the legislative act.

• Lastly, the Commission, which is conferred with implementing powers, generally adopts implementing acts; in certain cases the Council may also be called upon to adopt implementing acts.

4.2 Specific Legal Instruments

• The after-mentioned legal instruments are based on àArticle 288 TFEU • A Regulation becomes immediately enforceable as law in all member states

simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law.

• Directives require member states to achieve a particular result without dictating the means of achieving that result.

• Decisions are binding upon those individuals/MS to which they are addressed • Recommendations are not binding for Member States. Though without legal force,

they do have a political weight.

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5. LEGISLATIVE & REVISION PROCEDURES Foster p. 86-91* Legislative procedures are used to adopt, not exclusively, directives and regulations. While Revision procedures are used to amend and revise Treaties of the European Union. Relevant Articles

Ø Articles 294 TFEU Outlines the process and the stages of the ordinary legislative procedure

Ø Article 48 TEU Outlines and describes the process of treaty revision and amendment

Relevant Definitions

Ø Filibuster A type of procedure where an individual extends debate, allowing a lone member to delay or entirely prevent a vote on a given proposal

5.1 Ordinary Legislative Procedure • Based on àArticle 294 TFEU • Main legislative procedure by which directives and regulations are adopted • The Commission initiates the legislative proposal • The Council and the European Parliament are co-legislators • There are a maximum of three rounds • For the third round there is a conciliation committee under àArticle 294 (10) TFEU

5.2 Consultation Procedure

• Used for legislation concerning internal market exemptions and competition law • Commission initiates the proposal • Council has to consult the EP for opinion but must not take it into account • Council adopts the proposal by the Commission by QMV or unanimity depending on

the policy area concerned • The Council can not adopt legislation before receiving the EP opinion àfilibuster

5.3 Consent / Assent Procedure

• Used for the accession of new member states, combatting discrimination and methods of withdrawal

• The Council may adopt legislation based on a proposal by the Commission after obtaining the consent of the EP

• EP can accept or reject a proposal, but it cannot officially propose amendments 5.4 Ordinary Revision Procedure

• Based on àArticles 48(2) – 48(5) TEU • There are no limits to which kind of amendments to which part of the Treaty or

Treaties are proposed • See the aforementioned àArticles 48 (2) – 48 (5) for the full procedural details

5.5 Simplified Revision Procedure

• Based on àArticles 48(6) – 48(7) TEU • Only used for the revision of internal policies and actions i.e. part 3 of the TFEU • The given proposals may not increase EU competences • All member states must approve the decision in accordance with their constitutions

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5.6 The Passerelle Clause • Based on àArticle 48 (7) TEU • The passerelle clause is only used when the amendment of voting procedures are

concerned • Under this clause the European Council can, after receiving the consent of the

European Parliament, vote unanimously to: o Allow the Council of Ministers to act on QMV where they previously had to

act on the basis of unanimity o Allow for legislation to be adopted on the basis of the Ordinary Legislative

Procedure where it had to be previously adopted by the Special Legislative Procedure

• A decision by the European Council can only come into effect if six months after all national parliaments are notified, none object.

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6. LEGAL BASES The legal base refers to the Article or Articles of the Treaties giving the Union power to act Relevant Case Law

Ø Recovery of Indirect Taxes – 2001 The choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure. An objective justification for the used legal base must be provided, including aim, purpose and content of the legal measure

Ø Titanium Dioxide – 1991 Restricts the use of a dual legal base if these two contradict each other.

Ø Tobacco Advertising – 2000 Limits the use of Article 114 in the way that mere disparities between member states may not justify harmonisation measures.

Relevant Articles Ø Articles 3 – 6 TFEU

Listing and elaboration of shared and exclusive competences. Ø Article 288 TFEU

Listing and elaboration of Regulations, Directives, Decisions and Recommendations Ø Article 114 TFEU

The legal base for general harmonisation measures, later limited by the Tobacco Advertising case.

Ø Article 5 TEU The Union can only act if it has the competence to do so, this competence is given by being based on a concrete legal base

Ø Article 352 TFEU Also known as the Flexibility Provision.

6.1 General Features

• àArticles 3 – 6 TFEU indicate the policies which include legal bases • The legal basis for the issuing of legislative acts is listed under àArticle 288 TFEU • Gives an indication of which institutions are involved in which legislative procedures • For every EU legal measure a concrete legal base is needed • The EU is not a state therefore it has to justify its actions on the basis of legislation

every time they act • Due to the Principle of subsidiarity, they have to justify why it is necessary for them

to act on a Union level

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6.2 Competence Areas Foster p. 72-75* • Competence areas are governed for by àArticles 2-6 TFEU, which contain the listing

and elaboration of competences. • Exclusive competence means that the EU has sole legislative competences

o Member states have lost their competences in this area, therefore no subsidiarity check or justification needed

§ Customs Union § Common Commercial Policy § Monetary Policy for € countries § Competition Policy concerning the Internal market

• Shared competences means that the EU is only responsible when it can justify the necessity of regulation on the Union level

§ Internal market § Social Policies

• Supplementary competences means that the EU is not permitted to issue binding legislation to harmonise these areas

o EU harmonisation is generally prohibited in this area § Culture § Tourism § Administrative Cooperation

6.3 Multiple legal bases

• Not many different legal bases can be combined, as some legal bases refer to the ordinary legislative procedure and others to the special legislative procedure

• Multiple legal bases are seen as a last resort and used only if: o The main purpose/aim cannot be identified o The twofold purposes are inseparably linked o The legal measures or procedures do not contradict

6.4 Consequence of wrong legal base

• If the Parliaments feel that a wrong legal base has been provided, the annulment procedure can be used before the European Court of Justice

o The ECJ may declare the measure null and void 6.5 Article 114 TFEU

• àArticle 114 TFEU is a residual provision, meaning that it operates only where it is not otherwise provided in the Treaty

• Not applicable where fiscal provisions, free movement of persons and the right & interests of employed persons are concerned.

• The Ordinary Legislative Procedure is used concerning proposals of this Article. • Limits of àArticle 114 TFEU laid out in àTobacco Advertising

o Finding of disparities and abstract risk of obstacles to the exercise of fundamental rights not sufficient

o Emergence of obstacles to internal market must be likely and measure must seek to prevent those

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6.6 Flexibility Provision • àArticle 352 TFEU • Very broad tool for legislation-making • Requires the Council to vote unanimously after the consent of the EP has been

acquired. • Can be used in almost all areas of the EU, except Common Foreign and Security

Policies. • Cannot harmonise where the Treaties have excluded harmonisation

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7. LEGAL EFFECT Concerns itself with the issues of direct effect, indirect effect, and liability of member states and the Union itself. Relevant Case Law

Ø Costa vs ENEL - 1964 The EU created a body of law which binds both the MS and their nationals. Landmark case in supporting the idea of the supremacy of EU law over the law of the member states.

Ø Van Duyn – 1974 Primary and secondary law produce direct effect, it however depends on the nature, scheme and wording of the provisions. A Directive is to be invoked before national courts by individuals.

Ø Becker – 1982 Concerned the effectiveness of the direct effect of non-implemented Directives on the vertical axis only

Ø Internationale Handelsgesellschaft – 1970 Case concerning the supremacy of EU Law even over constitutional law of the member states.

Ø Simmenthal – 1978 Case concerning the supremacy of EU Law even over prior and subsequent law of the member states.

Ø Marleasing – 1989 It was to be decided whether a private company could rely on a Directive against another company and decided that Directives do not have horizontal Direct Effect; but they may have an indirect effect owing to the action of àArticle 10 TEU

Ø Adeneler – 1999 This case clarified the point at which the duty of consistent interpretation started. It further clarified that the duty started when the transposition period of the Directive had expired

Ø Francovich – 1991 European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state's failure to transpose a EU directive into national law. It is now known as the principle of state liability.

Ø Faccini Dori – 1992 The Court reaffirmed that directives do not have horizontal vertical effect. However, it confirmed that “Community law required the Member States to make good damages caused to individuals through failure to transpose a directive” and stated the three conditions of Francovich again. Thus, it reaffirmed that failure to implement directives within the time limit can lead to state liability.

Ø Köbler - 2003 Ruled that state liability can be invoked against national courts, whose decision has been ruled incorrectly. There is however also the need for it to be a sufficiently serious breach

Ø Brasserie du Pecheur - 1993 In this case, the Court extended the principle of state liability to damages incurred through the national legislature. It has to be kept in mind, that also in this case, the Francovich criteria have to be fulfilled.

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Relevant Articles Ø Article 288 TFEU

Only indirectly mentions direct effect in the way that it states regulations are “directly applicable”.

Ø Article 340 TFEU Contains the provisions concerning Union liability

7.1 Direct Effect

• Individuals can rely on certain rights against the EU and member states • Direct effect cannot be invoked by member states or the EU itself, but its is all about

individuals who can rely on direct effect • Only indirectly mentioned in àArticle 288 TFEU • Mainly based on case law rather than provisions in the Treaties • Direct effect can be applied on primary and secondary law, but not in all cases • In àvan Gend en Loos it was stated that direct effect can be invoked on primary

law if the van Gend en Loos criteria are fulfilled • Direct effect can be invoked concerning Regulations if the àvan Gend en Loos

criteria are fulfilled. Consult àLeonesio case for further details. • Directives are not automatically directly applicable as they need to be implemented

into national law. However the case of àvan Duyn states that if they are not implemented in time they may be directly effective if the àvan Gend en Loos criteria are fulfilled

• According to the Grad case, Decisions are also directly applicable if they are clear, precise and unconditional

7.1.1 Treaty Articles

• The direct effect of Treaty articles is subject to the àvan Gend en Loos criteria: o the article has to be clear & precise o unconditional o there are to be no further implementing measures required o and no further discretion left to the member state

• The case of àDefrenne v Sabena confirmed the horizontal direct effect concerning only àArticle 18 TFEU

• The case of àHurd v Jones denied horizontal direct effect concerning àArticle 4(3) TEU

7.1.2 Regulations

• For Regulations to have direct effect, they will also have to fulfil the àvan Gend en Loos criteria

• Under the àLeonesio case, the use of direct vertical effect was confirmed • The àMunoz case further confirmed that horizontal direct effect was possible if

the àvan Gend en Loos criteria were fulfilled

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7.1.3 Directives • The àGrad case confirmed that direct effect was possible concerning Directives,

this was controversial before • The case of àvan Duyn confirmed the above and stated that concerning

Directives the àvan Gend en Loos criteria would also have to be fulfilled • àRatti confirmed that vertical direct effect is only applicable after the expiry of

the implementation period • àBecker further confirmed the restriction of the direct effect of Directives as

operating on the vertical axis only 7.1.4 Decisions • The abovementioned case of àGrad held that for a Decision to be directly

effective it must fulfil the àvan Gend en Loos criteria • The àGrad case also held that direct effect would only be directly effective

against those obligated.

7.1.5 Alternatives to Horizontal direct effect? • According to the àFoster case, the state can be defined as broadly as any public

service under the control of the state • Duty of consistent interpretation – indirect effect • State liability of Member states

7.2 Indirect Effect Foster p. 191*

• Contains the obligation to interpret national law in the light of EU law, especially Directives àMarleasing

• The obligation to interpret the national laws in light of the non-implemented Directive • Cannot be used if there are no national law to be interpreted in the light of EU law. • According to the àAdeneler case indirect effect may be commenced as soon as the

transposition time has expired • If the national law and the non-implemented Directive contradict each other, indirect

effect may not be used. • No interpretation contra legem

7.3 State Liability Foster p. 195*

• Used for example when an individual has to pay more to a private company due to the fact that the state has not implemented a Directive correctly or not at all

• State liability is used if direct effect and indirect effect cannot be applied, however following conditions according to àFrancovich have to be fulfilled: o The provisions has to be clear and precise except for the fact that it may be

unclear whether the provision is addressed against a company or state o Or there may be a clear lack of vertical effect

• In àBrasserie du Pecheur german authorities stopped beer not brewed according to the German Purity law at the border, this constitutes a clear cut breach of free movement of goods

• In the above case and the àKöbler case state liability was extended to judicial breaches and breaches of primary law.

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7.4 Member State Liability • The general conditions for the use of member state liability are:

o Has to be a serious breach of EU law o The breached EU law has to be directly enforceable for individuals o Breach can be by legislative, administrative judicial authorities o There has to be a direct causal link between the breach and the damage

7.5 Union Liability

• Based on àArticle 340 TFEU • The ability of EU citizens to claim financial damages sustained as a result of EU

failure to fulfill obligations arising from EU legislation • Invoked before GC in case if appeal by individual • The conditions for the application of Union liability are equivalent to the conditions

of state liability and are as such: o It has to manifest a sufficiently serious breach o The legislation must have conferred certain rights o There has to be a direct causal link between the breach and the damage

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8. LEGAL PROTECTION Procedures and doctrines ensuring the legal protection of citizens, bodies and institutions of member states and the European Union as such Relevant Case Law

Ø Foto-Frost – 1987 Contains the decision that a national court may never declare EU law invalid.

Ø Broeckmeulen – 1981 Defines the criteria that need to be fulfilled in order for a body to refer to the ECJ under the preliminary ruling procedure

Ø CILFIT - 1982 Defines the acte clair doctrine, the conditions for the exception from the obligation to refer to the ECJ under the preliminary ruling procedure

Ø Star Fruit – 1989 The Commission has the discretion to act and to commence proceedings under Article 258 TFEU, the Commission cannot be held liable for failure to act.

Ø Spanish Strawberries – 1997 Under the infringement procedure, state-controlled private authorities may also be held liable

Ø Commission vs France The inability to plead on the basis of the principle of reciprocity under the infringement procedure

Ø Plaumann – 1963 Established the Plaumann criteria. Concerns non-privileged applicants under the annulment procedure. States that certain characteristics which may be unique to a certain group (closed class), they may act as if an act was addressed to them personally.

Ø Inuit – 2011 Defines the meaning of a regulatory act under the annulment procedure. Also defines the term direct concern.

Relevant Articles Ø Articles 256 – 271 TFEU

Contains provisions on the statutes of the Courts Ø Articles 263 & 265 TFEU

Contains the provisions on the annulment procedure Ø Article 340 TFEU

Contains the provisions on non-contractual liability Ø Article 267 TFEU

Contains the provisions on preliminary rulings Ø Articles 258 & 260 TFEU

Contains provisions on the infringement procedure Ø Article 259 TFEU

Contains provisions on enforcement actions by member states and infringement procedure by one member state against another

Ø Article 228 TFEU Contains the provisions on the empowerment of a European Ombudsman in order to receive complaints concerning maladministration of union bodies by individuals

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8.1 Court Competences for Legal Protection 9.1.1 General Court • Administrative Court • All direct actions by individuals go to the General Court • Direct actions by member states against the Commission, ECB & European Council

only if non-legislative acts are concerned • However claims under àArticle 267, preliminary ruling, are reserved to the Court of

Justice • Appeals from the General Court go to the Court of Justice

8.1.2 ECJ • Constitutional Court & Preliminary • All pending cases and appeals from the General Courts go to the Court of Justice

8.2 Preliminary Ruling Foster p. 147-167*

• Based on àArticle 267 TFEU • The individual can not go to the ECJ straight away, he has to go to the national court

and the national court will ask the ECJ for an interpretation, if it is in doubt • Most important procedure for individuals challenging an MS on direct effect and state

liability • Even though its most important feature is interpretation, it may also consider its

validity • The national court has the obligation of referral if the validity of EU Law is in

question • Preliminary rulings of the ECJ focus on the interpretation of primary, secondary law

and international treaties. • No ruling on national law and no hypothetical questions or advisory opinions. • A national court may never declare EU law invalid according to the àFoto-Frost

case. • Any court or tribunal of a member state may refer to the ECJ for a preliminary ruling,

it must however be a: o Permanent and independent body o Established by law o With the ability to give binding decisions o See àBroeckmeulen Case

• Simple decision-making bodies or international courts may not refer • Lower national courts may refer, while national courts of last instance have to refer • Acte clair doctrine contains case in which the obligation to refer does not apply:

o If an identical question has already been interpreted – acte eclaire o If the correct application leaves no room for doubt – acte clair

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8.3 Infringement Procedure Foster p. 168-173* • Based on àArticle 258 & 260 TFEU • Commission has the freedom to choose against which member state they wish to start

to procedure. • Majority of cases stop before it reaches the ECJ • In the majority of cases the individual will provide information about and

infringement to the Commission. • Individuals may accuse member state before a national court àArticle 267 TFEU • Individuals can complain to the Commission, but the Commission has no obligation

to act upon the complaint • If individuals are unhappy with the practice of the Commission they may turn towards

the European Ombudsman àArticle 228 TFEU • May be invoked upon failures of a member state, which may be of regulatory,

administrative or judicial in nature, no matter whether the MS was active or passive • Even liable for the wrongdoing of any branch of power • Priority on cases concerning:

o Breaches of principles of primacy and the uniform application of EU Law o Violations of fundamental freedoms o Serious damage to the Community’s financial interests o Repetition of violations o Failure or incorrect transposal of Directives

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8.3.1 Defence Pleas

• MS cannot claim the unlawfulness of a Directive, the MS would then invoke à Article 263 TFEU

• MS internal matters cannot be put forward, grave procedural mistakes may • Procedural reasons may be named as the most successful claims e.g. time-limit for

implementation too short

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8.4 Annulment Procedure Foster p. 208-216* • Based on àArticle 263 & 265 TFEU • Protection against unlawfully binding acts of Union institutions or the omission of

acting • Applicants are divide into three groups: privilege, non-privileged and semi-privileged

applicants • If a body has the obligation to act and it does not, it may be held liable under the

failure to act procedure under àArticle 265 TFEU • Privileged Applicants such as a MS, Commission or EP can only challenge:

o Acts which entail a legal effect o Acts of institutions o Binding measures under àArticle 288 TFEU

• Semi-privileged Applicants such as the Court of Auditors or the ECB can challenge: o Acts which affect their legal interests

• Non-privileged Applicants such as natural or legal persons can challenge: o Acts of direct and individual concern o Acts addressed to individuals o Regulatory acts of direct concern o Acts which fall under the criteria of individual concern or the àPlaumann

criteria • Consequences of successful actions:

o Act will be declared void under àArticle 264 TFEU, may be partially or completely

o May be declared ex tunc o May bring the erga omnes effect with it o All necessary measures under àArticle 266 TFEU must be taken o There may be possible claims for damages under àArticle 340 TFEU

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8.5 Failure to act Foster p. 225-228* • Based on à Article 265 TFEU • Protection against unlawful omission of action of EU Institutions • Counterpart of Annulment Procedure • Same legal standing and conditions except for non-privileged applicants • Conditions for non-privileged applicants

o Directly and individually concerned with an act which the institution failed to adopt and which ought to have been addressed to him or her

o OR: Addressed to another person or Member State but would have been directly and individually concerned by it

• Only applicable if institution does not have discretion • Any action avoided if institution acts within 2 months after initiation of the procedure

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9. HUMAN RIGHTS Foster p. 109-112* The inalienable fundamental rights to which a person is inherently entitled simply because he or she is a human being. Human rights are thus conceived as universal and egalitarian. Relevant Case Law

Ø Internationale Handelsgesellschaft – 1970 States that the ECJ has the general duty to ensure observance of the general principles of law, of which fundamental rights form an integral part.

Ø Van Gend en Loos – 1963 Established the principle of direct effect and the ability to enforce TEU and TFEU provisions before member states courts by natural and legal persons

Ø Costa vs ENEL – 1964 States that European law has supremacy over the laws of its member states

Relevant Articles

Ø Article 6 TEU The European Convention on Human Rights possesses the same legal status as the Treaties itself.

Ø Article 2 TEU Ensures the respect for human rights, democracy, rule of law and equality

Ø Article 4(3) TEU Contains the provision on the principle of sincere cooperation

Ø Article 5(1) & 5(2) TEU Contains the provision on the principle of attributed competences

Ø Article 13(2) TEU Contains the provision on the institutional balance between institutions

Ø Article 5(3) & 5(4) TEU Contains the provision on the subsidiarity and proportionality principle

9.1 General Features

• Fundamental rights protected by the Charter, ECHR, and constitutional traditions of the MS

• Institutional principles relevant for the protection of human rights o Principle of sincere cooperation o Principle of subsidiarity o Institutional balance

9.2 Legislation on Human & Fundamental Rights

• European Convention on Human Rights o Same legal value as the treaties àArt. 6 TEU

• Charter of Fundamental Rights of the Union o Human rights form an integral part of EU law àInternationale

Handelsgesellschaft 9.3 Legal Principles

• Principle of sincere cooperation based on àArticle 4(3) TEU o Applies to the relations between the EU & institutions o Applies to the relations between the EU & member states and vice versa o Duties comprise the duty to abstain from any measure that may jeopardise the

attainment of Treaty objectives

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• Principle of institutional balance based on àArticle 13(2) TEU o Contains the idea of checks and balances and the division of judicial,

executive and legislative powers o Institutions have to have the necessary independence in exercising their

powers o Institutions may never unconditionally assign powers to other institutions o Institutions must pay due regard to the powers of other institutions

• The case of àVan Gend en Loos and the case of àCosta vs ENEL elaborate on the principles of autonomous legal order, supremacy of EU law and direct effect.

• The principle of supremacy of EU Law is based on the primacy of EU law while EU law will always supersede in the case of conflicts with national law

• Principle of attributed competences based on àArticle 5 TEU o Contains the idea that the EU needs to justify whenever it acts or initiates

legislation o The principle is closely connected with the principles of rule of law and

democracy, subsidiarity and proportionality • Principle of subsidiarity and proportionality

o This principle limits the powers of both the Union and the member state to act o This principle restricts the exercise of powers and the avoidance of

centralisation o This principle has a procedural aspect under the annulment procedure

* refers to Foster, Nigel G. EU Law. 2nd ed. Oxford: Oxford University Press, 2010. Print. EU Law offers straightforward and at times more coherent explanations