CHAPTER 1

1. EUROPE and EU

There are 3 main concepts of Europe:

• Territorial concept, it is considered as a continent (historical-geographic area);
• The Council of Europe (CoE), which is an International Organization based in
Strasburg, France, set up arose in the ’50s and it’s composed of 47 members
now. Its aims is to protect human rights, democracy and the rule of law, keeping
pece towards its member States. It was founded in 1949 as a regional
intergovernmental organization. The best known body of the Council of Europe is
the European Court of Human Rights, which enforces the European Convention
on Human Rights. The Council of Europe's work has resulted in standards,
charters and conventions to facilitate cooperation between European countries as
an advisory body. Its two statutory bodies are the Committee of Ministers,
comprising the foreign ministers of each member state, and the Parliamentary
Assembly, composed of members of the national parliaments of each member
state. The Commissioner for Human Rights is an independent institution within
the Council of Europe, mandated to promote awareness of and respect for
human rights in the member states; the Secretary General heads the secretariat
of the organization. The headquarters of the Council of Europe are in Strasbourg,
France. English and French are its two official languages. The Committee of
Ministers, the Parliamentary Assembly and the Congress also use German,
Italian, Russian and Turkish for some of their work.;
• The European Union is composed of Members of the European Parliament
(MEPs) that are directly elected by EU citizens to represent their interests. The
official seat of the European Parliament is in Strasbourg (France), although the
institution has three places of work: Strasbourg, Brussels (Belgium) and
Luxembourg. The main meetings of the whole Parliament, known as ‘plenary
sessions’, take place in Strasbourg 12 times per year. Additional plenary sessions
are held in Brussels. Committee meetings are also held in Brussels. It’s
composed of 28 members, all of its members has already the ECHR, so they are
also under the European Court of Human Rights (ECHR) jurisdiction. EU member
States are not obliged to ratify the ECHR, but de facto every member State has
already ratify the HR Charter, before entering in the EU. To better understand this
institution, we should analyze the “name” from a legal point of view, in fact the
term “Union” should indicate a legal system to face contemporary problems which
cannot be solved by individual States alone and also some Europeans States
created an International Organization in order to face those problems (e.g.
 poverty); the attribute “European” is linked to the common cultural heritage and
background. Between the 17th-19th centuries it was seen as a simple union od
Countries and States, but only in the 1950s, after the WWII, it was created in
practice; in fact the earliest projects were created in the 1940s and the main goal
was the peace, so achieving peace was the main purpose and it was realized
through the creation of an economic common market for 2 reasons : it would have
created prosperity and equality and relying on an economic aim would have been
much more effective so economic oriented integration: necessity of legal and
rights integration. We should also consider that EU was and is different from UN:
first of all EU constitution binds its member States with strict obligation and there
are formal sanctions after an EU norm has been breached, then even individuals
are member into EU. In addition, we should specify that EU has 2 nature :
1. it has an International Law dimension and a Supranational Law dimension;
2. EU is can be placed between them, so a double nature which led to a crisis of
legitimacy. In particular, to better understand, we can take the example of the
Economic crises and the Immigration matter : Economic Crises, i.g. the conflict
between the Austerity (Germany, UK, Scandinavian States) and the EU
Member States serenity (France, Italy, Spain). About immigration we can
consider the conflict arose between who supports solidarity among Member
States and who reacts in an aggressive way against the flux of migrants; in
particular, Germany supports the borders opening, according to Schengen,
other States prefer the austerity. Schengen is a a number of provisions which
oblige MS to open borders and to grant the freedom of circulation among EU
MS; but if you are not a MS of EU, you do not face obstacles because EU is
based on the mutual trust among MS: no control on the borders according to
this principle but some Countries fed up and introduced the passport control,
impact on the circulation of EU Nations. These problems should be solve by
International law conventions: fiscal compact and Schengen.

It has several origins:

1. It has been seen as a place of civilization, a place in which people who were
not considered Barbarians used to live;
2. She was a Phoenician woman kidnapped by Zeus and brought from Lebanon to
Europe;
3. It indicates the settings from East to West (the Sun and the West);
4. It indicates the clash of society: it was used by Alexander the Great to indicate
who was not Persians and later by Charles Magne to distinguish Christians
from Muslims, who live in the South-Eastern part of the words;
5. 18th-19th century: it was used to justify the Colonialism;
6. 20th century: it was used by Rousseau to indicate the idea of Europe
represented the opposite model from the new liberal economic approach of the
USA;
7. Market and Economic principle as a basis adopted by legislators;
8. Progress and Civilization Contrast with the crimes during the Second World
War.

There are 2 principles about EU:

1) supremacy of EU law over domestic law;
2) direct effects of EU law.

2. Theories on integration

EU is based on several theories:

1) Liberalism: individual seen as homo economicus “more market more freedom”;
2) Functionalism and Neo-Functionalism: more market, more prosperity in
different sectors;
3) Ordoliberalism: more market, more prosperity with a social dimension, that is
social-democracy mixed with liberalistic theory, which leads, for example, to the
promotion of a welfare State;
4) Neo-Federalism: it is a much more utopian project than the others, extremely
theoretical nowadays, it is the US System;
5) Intergovernmentalism: States are stronger than EU and States are seen as the
key actors in every decision-making process, supranationalism: EU is stronger
than States, States decide to give their power to an IO, i.e. the EU.

3. Before the treaties: the origins of integration and the ECSC

After the destruction of the war years, and the climate of nationalism which precede
them, many hoped for a new model of political cooperation in Europe. During the
war, the Resistance movement had strongly supported the idea of united Europe, to
replace the destructive forces of national aggressive patriotism. However, the first
who had been a strong proponent of the European unity were Spinelli, an Italian
Politician, and Churchill, UK Prime Minister.
The EU is born in order to react to the consequences of the War, in fact it was
aimed at achieving the general peace and prosperity. Ruhr and Saar were two
regions of the Federal Republic of Germany administered by France after WWII
whose most important role was to provide coal and steel for the production (in
particular of weapons) of all Europe. For this reason the French foreign minister
Robert Schuman, proposed the pooling of Franco-German coal and steel
resources under a single High Authority, with the option for other European states to
partecipate. The plan had been drafted by Jean Monnet, a committed federalist and
wasn’t not only economically inspired, but its aim is to destabilize relations between
France and Germany after the war. This Declaration was concluded on the 9th of
May 1950 in Paris, therefore it posed the basis for the line and the core of ECSC
(European Coal and Steel Convention) with a limited life-span of fifty years, to
expire in 2002. The ECSC was signed in 1951 by France, Germany, Italy and the
three Benelux countries.; Four institutions were set up: a High Authority composed
of nine independent appointees of the six Member State governments, an
Assembly made up of national parliamentarians’ delegates, a Council composed of
nation ministers, and a Court of Justice of nine judges These would ultimately form
the blueprint for today's European Commission, European Parliament, the Council
of the European Union and the European Court of Justice.
In the period between 1951 and 1957, some States (in which there was even Italy)
proposed to create a European Defense Community (EDC) with a European army,
a common budget and joint institutions, but France, which was afraid of a German
remilitarization, refused this proposal so the project never passed.

4. EEC and EURATOM Treaties

A Conference of foreign ministers of the six states of ECSC in Messina in Italy in

1955 generated on moving in the direct of economic integration. It gave the basis to
the creation of Spaak Committee, Spaak was the Belgium Prime Minister, which
contained that basic plan for what became in 1957 the European Atomic Energy
Community (Euratom) and the European Economic Community (EEC).
EURATOM: on nuclear energy, still in force; coordination of programs on nuclear
energy by peaceful means.
The EEC’s first aim was to create a common market, pulling down transnational
duties and fees (we can talk about economic boundaries in general), so, there will
be created :
1) AN INVESTMENT BANK: in order to give loans to any EEC member State;
2) AN EUROPEAN SOCIAL FUND: improvement of employment opportunities;
3) A PARLIAMENTARY ASSEMBLY: with the power of supervision;
4) A COURT: judicial powers;
5) A COUNCIL OF MINISTERS: with the power of adopt legislative acts;
6) A COMMISSION: with the power of propose legislative acts, control the
application of the obligations arising from the Conventions and negotiate
international treaties, thus implying that this organ had a separate legal personality.

During this period some tensions arose between the French President Charles De
Gaulle, who has an Intergovernmental view of EEC and Walter Hallstein, the
Commission President, who, on the contrary, has a much more Supranational
perspective of the Community. This situation led to a crisis in 1965, when the
Council of Ministers discussed how the Community could became independent in
the agriculture matter. The tension erupted into crisis in June 1965, therefore De
Gaulle strenuously objected to the “federalist logic” of the proposal, thus France
refused to attend further Council meetings and adopted the “empty-chair” policy.
This lasted for 7 months, until January 1966, after which a settlement was reached:
the “Luxembourg Accords”, an agreement to disagree over voting methods in the
Council, in which was provided that whenever some decision would imply national
interests, it had to be reached unanimity.
In 1969 it was reached by a decision on the financial independence of the
Community, which was no longer obliged to be kept alive by Member States
subdues during the ’70: in 1976, direct elections to the Parliament were finally
agreed by the Member States and the first election took place in 1979.

CLARIFICATIONS:
• Supranational legal order: the treaties created a customs union and by doing that
it promotes the free circulation of sectors of production, CUSTOM UNION
DIMENSION:
a) INTERNAL: according to these treaties MS cannot impose customs on the
circulation of goods;
b) EXTERNAL: it deals with the relationship among EU and other States which are
external, borders between EU and third countries; Feature of Common Union =
some economic treatment of the good coming from abroad EU Countries in order to
balance the commerce of good among States.
FACTORS OF PRODUCTION :
- Workers;
- Capital;
- Services;
- Loafers.
Freedom of movement : freedom of exchange without charges restriction and
custom duties;
Optimal allocation of resources: it is a principle which tries to achieve an optimal
equilibrium between demand and offer at European level and not only at the
national one.
• Treaties have been applied by European Institution in a way which is comparable
to what Constitutional Law does:
Direct effect of supremacy ( applied in particular the Court of
Justice);
• Strong impact of EU supremacy (this law binds national institutions; EU law may
be invoked directly by individuals before national courts against the state or other
individuals;
• Subjects of EU law: also individual (differently from International law which admits
only states).

5. EARLY ENLARGEMENTS
In 1973, UJ, Ireland, Denmark joined EEC, followed by Greece in 1981 and Spain
and Portugal in 1986.

6. Single European Act

After the Fontainebleau European Council summit in 1984, two committees were
established to consider Treaty revision and political integration: the Adonnino
Committee on a people’s Europe considered furthering a European identity and the
Dooge Committee looked at political reform. Although the Dooge Report was not
acted on, the 1985 European Council in Milan agreed, voting for the first time by
majority only, to convene an intergovernmental conference under what was then
Article 236 EEC, to discuss treaty amendment, this led to single European act.
Moreover, in 1985 the British Commissioner, Lord Cockfield, drew up behalf of the
Commission a precise timetable for the completion of the internal market, “White
Paper”, setting out a long list of the barriers to be removed before a deadline of
1992 and the SEA incorporated the White Paper’s goals.
It is very important to analyze all the changes which the SEA comported, we can
distinguish 2 kind of changes, the institutional and the substantive changes.
INSTITUTIONAL CHANGES:
1) More powers to the European Parliament, through the creation of the new
legislative “cooperation procedure”, a veto over accession of new member States
and the conclusion of agreements with associate States.
2) A formal recognition to the European Council was given as an European
Community organ.
3) A Court of First Instance (CFI) was created to assist the Court of Justice.
4) The “comitology" procedure was created, under which the Council delegates
powers to the Commission on certain conditions.
SUBSTANTIVE CHANGES:
1) Art. 26 TFEU: “ The Union shall adopt measures with the aim of establishing or
ensuring the functioning of the internal market, in accordance with the relevant
provisions of the Treaties. The internal market shall comprise an area without
internal frontiers in which the free movement of goods, persons, services and
capital is ensured in accordance with the provisions of the Treaties. The Council, on
a proposal from the Commission, shall determine the guidelines and conditions
necessary to ensure balanced progress in all the sectors concerned.”
“Person” are considered as employees, “services” are considered both as self-
employed who go to provide a service in another country and self-employed who
move themselves permanently to another State in order to work directly there.
2) Art. 114 TFEU : “The EU Parliament and the Council shall, acting in accordance
with the ordinary legislative procedure and after consulting the Economic and
Social Committee, adopt the measures for the approximation of the provisions laid
down by law, regulation or administrative action in Member States which have as
their object the establishment and functioning of the internal market. […]”.

7. Maastricht Treaty

Jacque Delors chaired a committee on Economic and Monetary Union in 1989, it

consisted in a three-stage plan for reaching it.
The European council held 2 Intergovernmental Conferences (IGC):
- The conference on economic integration;
- The conference on political integration.
These 2 IGCs led to the draft of a treaty, it so called MAASTRICHT TREATY (also
called TEU) which was signed in Maastricht in 1992 and still in force since 1993.
There were originally seven titles in the TEU: Title I included the “common
provisions”, Title II, III and IV covered the First Pillar amendments to the EEC,
ECSC and Erratum Treaties respectively. Title V created the Second Pillar of the
Common Foreign and Security Policy, Title VI the Third Pillar of Justice and Home
Affairs and Title VII contained the final provisions. To better understand the
importance of this treaty you should analyze Article A: “This Treaty marks a new
stage in the process of creating an ever closer union among the peoples of Europe,
in which decisions are taken as closely as possible to the citizen”.
The most important change has been the introduction of the 3 pillars structure:
1) THE COMMUNITY PILLAR: provides that there were three communities on
which the EU was grounded: EURATOM, ECSC, EEC. In this pillar there is more
supranational decision-making structure;
2) THE COMMON FOREIGN AND SECURITY POLICY PILLAR: concerns external
actions in general. In this and the third pillar is characterized more
intergovernmental and less supranational decision-making structure;
3) THE JUSTICE AND HOME AFFAIRS PILLAR: included cooperation on a range
of international crime issues and various forms of judicial, customs and police
cooperation, including the establishment of a European Police Office (Europol) for
exchanging information. The Third Pillar existed the decision-making process was
more intergovernmental than under the Community Pillar.

Under the Maastricht Treaty we have two kinds of changes:

• institutional changes: we have some horizontal changes:
1. increasing European Parliament legislative power, introducing co-decision
procedure under article 251 TEC, i.e. the adoption or the block of some
legislative acts on which EP can legislate on;
2. giving the European Parliament the power to request the Commission to initiate
legislation or the power to block the appointment of a new Commission;
3. giving the Court of Auditors the same importance as the Council, the EP, the
Commission and ECJ;
4. creating both a European Central Bank and a European Central Bank System
as provided under article 8 TEC;
5. creating the Parliamentary Ombudsman, an individual who has the power of
controlling over the EP administrative activities;
6. creating the Committee of the Regions, which must be consulted when regional
issues are discussed within the EP.
• substantive changes:
1. creating the subsidiarity principle, by which different matters are divided for the
aim of intervening between European Institutions and Member States on their
own;
2. creating the European Citizenship statues, by which Member Stats’ citizens own
some specific rights because of they come from a Community State;
3. laying the basis for the creation of a common currency, i.e. the Economic and
Monetary Union (EMU);
4. creating new areas of competences felt under European Community
Jurisdiction (culture, public health, consumer protection, environment).
8. Further enlargements
In 1995 Finland, Austria and Sweden joined the EU.

9. Treaty of Amsterdam

The Amsterdam Treaty was signed on 2 October 1997 and came into effect on 1
May 1999. It deleted obsolete provisions from the EC Treaty, adapted others, and
renumbered all the Articles, titles, and sections of the TEU and the EC Treaty, i.e. it
made substantial changes to the Treaty of Maastricht, which had been signed in
1992. Under the Treaty of Amsterdam, member states agreed to devolve certain
powers from national governments to the European Parliament across diverse
areas, including legislating on immigration, adopting civil and criminal laws, and
enacting foreign and security policy (CFSP), as well as implementing institutional
changes for expansion as new member nations join the EU, among the new areas
of competence acquired by EU. Even in Amsterdam Treaty has been some
horizontal changes:
• Community pillar: talking about substantive changes, the principle of non-
discrimination has been included in the matters covered under the first pillar. The
major structural change was the incorporation into the Community Pillar of a large
part of the former Third Pillar on free movement of persons, covering visas,
asylum, immigration and judicial cooperation in civil matters. The aim of this title
and that of the amended third Pillar was to establish “an area of freedom, justice
and security”. Moreover, some matters covered under the remaining two pillars
has been included in the first pillar: this process took the name of
“communitarization”, meaning a more supranational structure of the EU;
• CFSP pillar: no big changes with the exception of the Secretary General of the
Council who was also nominated as “High Representative” for the CFSP to assist
the Council Presidency, it’s a sort of Minister of Foreign Affairs for the EU;
• PJCC pillar renominated “Police and Judicial Cooperation in Criminal
Matters” (PCJJ): its aim is to provide citizens with a high level of safety within an
area of freedom, security, and justice, by developing “common action” in three
areas: police cooperation in criminal matters, judicial cooperation in criminal
matters, and the prevention and combating of racism and xenophobia. Particular
targets mentioned were terrorism, drug and arms trafficking, trafficking in persons,
and offense against children, corruption and fraud.

The failure of the Treaty of Amsterdam to address the EU’s institutional structure
pending enlargement meant that a further IGC (intergovernmental conference) was
inevitable, and it was called in 1999 to address the composition of the Commission,
when weighting of votes in the Council and the extension of qualified-majority
voting.

10. Nice Treaty and the EURO

The Treaty of Nice was signed by European leaders on 26 February 2001 and
came into force on 1 February 2003. It amended the Maastricht Treaty and the
Treaty of Rome, this treaty reformed the institutional structure of the European
Union to withstand eastward expansion, a task which was originally intended to
have been done by the Amsterdam Treaty, but failed to be addressed at the time.
In 2000 was also concluded the Nice Charter, a charter of fundamental rights for
the EU, which was a soft law document, then, with Lisbon Treaty in 2007, it will
acquire legal force. One of the most important changes dealt with the adoption of
the common currency, the EURO, by some MS on the 1st January 2002, within the
Economic and Monetary Union; not all Member States have adopted the EURO
(UK, Ireland, Bulgaria, Croatia, Czech Republic, Hungary, Denmark, Poland,
Romania, Sweden). In 2004 there was an enlargement which brought 10 States
within the EU, which are : Czech Rep., Estonia, Cyprus, Latvia, Lithuania, Hungary,
Malta, Poland, Slovenia, Slovakia. The entrance into force of the treaty was in
doubt for a time, after its initial rejection by Irish voters in a referendum in June
2001; this referendum result was reversed in a subsequent referendum held a little
over a year later. The Nice Treaty modified only the first pillar (the Community Pillar)
extending the co-decision procedure to other matters, instead the second and the
third pillars were not modified.

11. The Constitutional Treaty

The Treaty establishing a Constitution for Europe (TCE), commonly referred to as

the European Constitution or as the Constitutional Treaty, was an unratified
international treaty intended to create a consolidated constitution for the European
Union (EU). It would have replaced the existing European Union treaties with a
single text, given legal force to the Charter of Fundamental Rights, and expanded
Qualified Majority Voting into policy areas which had previously been decided by
unanimity among MS. In December 2001, the Laeken European Council was
created in order to discuss over a reform process to be taken, which had to be
contained in the so called “Constitutional Treaty”. This reform process had to be
intended as a “constitutionalization” of the EU, meaning that the “treaty system”
adopted until that moment had to be abandoned, in order to create a Constitution
which had to contain all the previsions about EU. The Council was composed of
representatives from national governments, national parliaments, the Parliament,
the Commission , the accession countries and Giscard d’Estaing as Chairman and
Amato and Dehaene vice-chairmen. We can highlight 4 parts of the Constitutional
Treaty:
- Part I: basic objectives, fundamental rights, institutional division of power;
- Part II: Charter;
- Part III: policies and functions;
- Part IV: final provisions.
The Treaty was signed on 29 October 2004 by representatives of the then 25
member states of the European Union and it was later ratified by 18 member
states, which included referendums endorsing it in Spain and Luxembourg.
However the rejection of the document by French and Dutch voters in May and
June 2005 brought the ratification process to an end.

12. Lisbon Treaty

The Treaty of Lisbon was created to replace the Constitutional Treaty and was
forged by Member States and Community institutions, and there was scant time
afforded for further deliberation; this contained many of the changes that were
originally placed in the Constitutional Treaty but was formulated as amendments to
the existing treaties. The Treaty was signed on 13 December 2007 and entered into
force on 1 December 2009. By the end of 2007, the IGC produced a document,
initially named the Reform Treaty, but then called the Lisbon Treaty, which has been
ratified by each MS (because of the Unanimity Principle), but Ireland, through a first
referendum, decided to withdraw from the Treaty; in addition, a second referendum
took place in Ireland, claiming that Irish citizens wanted to ratify the Treaty. Another
obstacle was identified with the reluctance of Czech president to ratify the
document because, according to him, there were some provisions which went
against the Czech Constitution so many statements has been cut down by the
Czech Constitutional Court. The Lisbon Treaty amends the Treaty on European
Union and the Treaty Establishing the European Community. The Lisbon Treaty has
seven Articles, of which Article 1 TEU amends the Treaty on European Union and
contains core principles governing the EU and CFSP, Art. 2 amends the EC Treaty
renamed TFEU; the EU has to be founded on these 2 treaties, the TEU and the
TFEU, which have the same legal value; moreover EU is no more founded on the
“pillars structure”.
Further enlargements:
- 2007: Bulgaria and Romania;
- 2013: Croatia.

9. Asymmetries in the membership: the case of UK.

We have a number of asymmetries within European integration process. This deals

with different areas. Asymmetry covers in various sectors of some States (are
partially not bound by EU provisions), which can count on a special status.
• A first example is economic and monetary union and the consequent adoption
of a common currency. Not all MS have euro, they are the so called “Eurosceptic”
countries: UK, Bulgaria. Croatia. Denmark, Czech Republic, Hungary, Romania,
Sweden, Poland and so on.
• Another example is the Schengen area in migration matters. The Schengen
Convention covers an agreement finalized to support free circulation across
member states territories. Some States did not undertaken it with the
consequence that is not possible talking about free circulation over there.
Individuals need passport/other documents in order to pass borders. Once again
UK case is useful to proof the subsistence of asymmetries as the country is not
part of the area.
United Kingdom always had a special status within EU context. Nowadays its
position affects a particularly complicated issue due to the 2016 referendum about
Brexit. Before that European Council even statued that UK had to benefit of further
advantages, so that’s quite odd that British citizens anyhow decided to leave but,
frankly talking, European Council statement was more about negotiations related to
avoiding the risk of a withdrawal. In 2017 UK Supreme Court recognized that EU
law is directly binding National authorities. The consequence was the necessity to
first consultate Parliament to correctly adopting the procedures ex. art. 50 of TEU.
There is a paradox: EU may lost any residual power on UK even tho it had
consistently kindly approach to UK institutions.
In the current situations it is up to the European authorities eventually negotiating
with United Kingdom to find a feasible solution. What kind of deal it should be?
There’s not a single possible way. The truth is that different settlement could
actually work. EU may decide to give UK the same status that Norway has. It is part
of the so called European economic area. The country could have several
advantages even tho it wouldn’t be part of EU. Here we have soft Brexit.
What are the problems of this option? Every MS could decide to withdraw and
paradoxically get more benefits than before. Further question: why hard Brexit
would be a good solution for EU? Giving relevancy to a strict interpretation of article
50 enhance links between being part of European Union and accordingly get
advantages.

CHAPTER 2
1. General remarks and overview
Article 13 TEU, under paragraph 1, provides a list of the European Institutions.
Under paragraph 2 is provided the mutual cooperation between the EU institutions,
paragraph 3 makes an express reference to the regulation of the European Central
Bank and of the Court of Auditors under TFEU. Paragraph 4 provides that the EP,
the Commission and the Council should be assisted by an Economic and Social
Committee and a Committee of the Regions, both having and advisory capacity.
Under article 13 TEU there is no rigid separation between the European Institutions.

2. The Commission

The European Commission, according to the article 17 TEU, has the power of
promoting the EU integration and is the “guardian of treaties”. Commissioners must
have general competence and must be independent.
Article 17 TEU provides that Commissioners term should be of five years and
provides for their competences:
a) it promotes the general interest of the Union;
b) it takes appropriate initiatives to that end;
c) it ensures the application of the Treaties and of measures adopted by the
institutions pursuant to them;
d) it oversees the application of the Union law under the control of the Court of
Justice of the European Union;
e) it executes the budget and manage programmers;
f) it exercises coordinating, executive and management functions;
g) it ensures the Union’s external representation;
h) it initiates the Union’s annual and multiannual programming with a view to
achieving inter institutional agreements.
Article 17.4 TEU provides for the size of the Commission, which shall be formed of
one national of each Member State, including the President and the High
Representative, who shall be one of its Vice-Presidents, but, according to article
17.4 TEU, the size of the Commission should be this way until 31 October 2014,
then, from 1 November 2014 on, article 17.5 TEU is applied, providing that the
number of the Commissioners shall be the two third of the number of the Member
States, including the President and the High Representative, unless the European
Council decides to alter this number. According to article 17.6 TEU, the President of
the Commission shall lay down guidelines for the Commission, by deciding on the
internal organization of the Commission and appoint Vice-Presidents. Article 17.7
provides for the appointment of the Commission and of the President, claiming that
the European Council, acting by a qualified majority, shall propose to the European
Parliament a candidate for President of the Commission. The Council, by common
accord with the President-elected, shall adopt the list of the other persons whom it
proposed for appointment as members of the Commission. The President, the High
Representative and the other members of the Commission shall be subject as a
body to a vote of consent by the European Parliament. On the basis of this consent
the Commission shall be appointed by the European Council, acting by a qualified
majority.
After the appointment proceeding, we should talk about the removals:
1. individual removals: according to article 247 TFEU, if any Commissioner no
longer fulfill the conditions required to be in charge or is found guilty of serious
misconduct, the CJEU may compulsory retire him. Moreover, article 17.6 TEU
provides that a Commissioner or the High Representative shall resign if the
President of the Commission so requests. Under no circumstances the EP can
force a single Commissioner to resign;
2. collective removals: article 17.8 TUE and article 234 TFUE provide that the EP
may vote on a motion of censure of the Commission, forcing both the
Commission and the High Representative to resign.

The decision-making proceeding operates in 4 different ways:

A. through weekly meetings, usually on Wednesday;
B. when the meeting seems to be not necessary because all the point have been
agreed by the relevant Directorate General, it’s used the written procedure, i.e.
a proposal sent to the Commissioners and if there is no objection whiten a
specified period of time, the decision is taken;
C. a third decision-making proceeding can be the so called empowerment, i.e. the
decision of the Commission to give the power of taking a decision to one of the
Commissioners, respecting the principle of collective responsibility;
D. the Commission delegates the Directors General and Heads of Service for
taking some decisions.
Talking about the Commission bureaucracy, every Commissioner has:
a) a portfolio (i.e. the list of different matters with which every Commissioner deal);
the Commission decides to whom attribute every portfolio;
b) Below each Commissioner there is a Director General who holds a Directorate
General: these DGs cover almost every matter on which the Commission has
the power to decide.
c) Below each DG there are Heads of Division/Unit;
d) There usually are consultations even with national civil servants.

Moreover, the power of the Commission, provided under article 17 TEU, are
divided in:
• legislative power: the Commission has the power of legislative initiative, so it’s
know as “motor of integration” of the EU, then, the Commission has to develop
once a year an overall legislative plan, which shall contain the guidelines for the
forthcoming year reforms. The Commission has san autonomous legislative
power, according to which this organ can adopt a legislative act without involving
any other EU Institution;
• administrative power: the Commission has the power of managing programs
and policies, once a legislative act has been approved by the Commission, it has
to be implemented into domestic laws, and this happens through shared
administration, using national governments, over which the Commission will put
its control;
• executive power: the Commission prepares and approves the EU budget, it
plays an important role within the external relations, indeed it negotiates
international treaties;
• quasi-judicial power: the Commission has two kinds of judicial powers: first of all
there is the power for which the Commission must control the application of the
EU law; if a branch is found, then the Commission must bring the case before the
CJEU (infringement proceeding). The second judicial power is that for which the
Commission acts, only in some matters, as investigator and initial judge.

3. The Council

The Council (or Coucil of Ministers) is regulated by the article 16 TEU. At the
paragraph 2 of this article, it’s provided that the Council shall consist of a
representative from each Member State at ministerial level. This is the first
difference between the Council and the Commission, being the latter formed of
both politicians and technicians, while the former is formed of only politicians.
The Council meets in Brussels on the request of the Commission, of the President
of the Council or of one of the members of the Council.
Council meetings are divided in two parts: those dealing with legislative acts
(which must be public meetings) and those dealing with non-legislative acts.
The Council has different formations depending on which act it has to deal with,
currently there are ten formations but three of them are most relevant: ECOFIN
Council (Economic and Finance matters), Foreign Affairs Council (which is chaired
by the High Representative) and General Affairs Council (which deals with matters
being at the crossroad of various formations).
The Presidency of the Council is formed of a bureau, composed of three States
(Italy, Latvia and Luxembourg). The President of the Council, six mouths before
taking the office, together with the High Representative, the Commission and the
President of the European Council, prepares a list of the activities to be made by
the Council in an eighteen mouths term.
The drafts to be discussed by the Council are prepared by the so called Committee
of the Permanent Representatives (COREPER). It has two different formations:
COREPER 1 (which is composed of deputy permanent representative of Member
States) and COREPER 2 ( composed of ambassadors) dealing with different
matters. They both in the “consensus” way (raising the hand for not letting the acts
pass).
The Council has a Secretariat, which is held by Secretary General. It deals with
translations, logistic matters and so on.
Talking about the powers of the Council, there are:
1. legislative power: the Council shall adopt legislative acts, in pair with the EP,
usually with the principle of qualified majority, unless a Treaty claims otherwise.
Article 16.4 explains us more clearly what is the qualified majority, claiming that
it “shall be defined as at least 55% of the Members of the Council, comprising at
least fifteen of them” and those Member States must represent at least 65 % of
the population of the Union. It’s provided that a blocking minority must be
formed at least of 4 member States;
2. initiative power: according to article 241 TFEU, the Council may request to the
Commission, acting by a simple majority, to undertake a proposal in order to
achieve in a better way a common objective;
3. delegated power: the Council may delegate the Commission to adopt acts
without the involvement of itself;
4. the power of approving EU’s budget in pair with the EP;
5. the power of concluding international agreements in pair with the
Commission;
6. the power of preparing works of the European Council.
4. The European Council

The European Council has been introduced before the adoption of the SEA (about
the 1970s), then under this Act, it has been formally recognized. As claimed under
paragraph 2 article 15 TEU, the European Council is composed of Heads of State
or Government of the Member States, so it’s composed only of politicians at the
highest level. Member States decide whom to send to the European Council.
Article 15.3 TEU claims that the European Council shall meet twice every six
months, convened by its President, which can also convene special meetings.
The General Affairs Council prepares the works of the European Council, so it
has two roles: dealing with the matters at the crossroad of competences of then
formations of the Council and this one for the European Council.
Powers and functions of the European Council are listed under article 15.1 TEU,
claiming that “the European Council shall provide the Union with the necessary
impetus for its development and shall define the general political directions and
priorities thereof. It shall not exercise legislative functions”. Within its functions,
there is also the power to create the IGCs for amending the treaties, then it’s
possibile find power even in smoothing conflicts, the power of dealing with external
relations and foreign policies, the power of dealing with enlargements and
accessions and so on. The European Council shall decide by consensus, as
provided under article 15.4 TEU.
The President of the European Council, according to article 15.5 TEU, shall be
elected by the European Council, acting by qualified majority, and stays in charge
for two and a half years. M.S. prefer have not well known figure as President of the
European Council, because they are scared of being overshadowed by the
European Council or its President. Article 15.6 TEU provides for a list of
competences of the President, who:
1) shall chair it and drive forward its work;
2) shall ensure its good work, according to what is claimed by the General Affairs
Council;
3) shall facilitate cohesion and consensus within the European Council;
4) shall present a summary after each meeting.
The President has also a lot of powers within the CFSP, but there is clearly an
overlap of powers between him and the High Representative.

5. The European Parliament

The European Parliament was created under the Paris Treaty of 1951 and in 1979
here has been the first election of the EP.
Article 14 (2) TEU states that the EP shall be composed of representatives of the
citizens of the Member States, which shall not exceed 751 members, including the
President of the European Parliament. There is a demographic criterion
(digressively proportional principle) for which no State shall have less than six or
more than ninety-six seats, e.g. Germany has 96 seats, France has 74 ones, Italy
73 ones and so on. EP members are elected for a 5 years-term, by direct universal
suffrage in a free and and secret ballot. There are no uniform procedures among
States for the elections, there are only few provisions under the TEU and the TFEU.
The new Statute for Member of the European Parliament entered into force in July
2009. Under article 20.2 TFEU, all the provisions about the European Citizenship
are stated. In particular, under letter B it’s provided that every citizen of the Union
shall have the right to vote and stand as candidates everywhere in the Union.
Bureau is the organ within the EP, composed of the President and his 14 Vice-
Presidents. This organ draws up EP’s preliminary draft budget and decides all
administrative, staff and organizational matters. Then there are the so called
quaestors, having an advisory capacity, moreover there are: the Conference of the
Presidents from the political group, which forms the agenda and the Conference
of Committee Chairs, which works in the EP for better cooperation between the 21
standing committees within the EP and the Secretariat, which deals with
translations and administrative issues.

6. The European Central Bank

The European Central Bank has been created under SEA and received formal
recognition under Maastricht Treaty. The ECB nowadays deals with monetary
policies and price stability within the eurozone, which is formed of 19 member
States of the EU. Article 119 TFEU states that the Union and the Member States
shall adopt and economic policy based on cooperation. Not to confuse is the ECB
and ESCB (European System of Central Bank), which is the European community
including the ECB and the Central Bank of all the 28 member States. The ECB has
a legal personality, which allows it to ratify and to adopt international agreements.
The President of the European Central Bank is elected from the European Council,
acting by a qualified majority. The ECB has two main organs: the Executive Board
(composed of the ECB President and his Vice President, with 4 other members)
and the Governing Council (composed of the ECB President and the governors of
the Central Banks within the eurozone). All of them stay in charge for 8 years, term
non renewable. The ECB may appeal before the Court of Justice of the European
Union (CJEU) against Member States.
7. The Court of Justice of the European Union
8. Court of Auditors

The Court of Auditors is composed of representatives from all the Member States.
According to article 285 TFEU, the Court of Auditors shall carry out the EU’s audit,
so it makes a control over the financial matters, making an annual report.

9. High Representative
10. Advisory bodies
11. European Investment Bank
12. Agencies
There are over 40 agencies within the EU. They facilitate use of experts outside the
normal bureaucratic structure, allowing the main Institutions to be concentrated on
the EU policy. They don’t have a wide margin of discretion within their areas of
competences. The Commission plays a fundamental role in the life of agencies,
deciding on what shall be their competences are their decision-making structure.

CHAPTER 3: COMPETENCE

1. GENERAL REMARKS AND PRINCIPLE OF CONFERRAL

Article 5 (1,2) provides for the principal conferral, stating that it governs the limit of
the EU competences and article 4 TEU claims that if the Treaties don’t confer to the
EU any competence, the Member States shall exercise it.

2. EXCLUSIVE COMPETENCE
3. SHARED COMPETENCE
4. SUPPORTING/COMPLEMENTARY/COORDINATING COMPETENCE

5. SUI GENERIS COMPETENCE

EU limits its role by giving guidelines, meaning that in the areas of economic
employment, social policy and CFSP Member States exercise a very important role.
This doesn’t mean per se that EU hasn’t great powers in those areas.
Article 5 (1) TFEU states that the Council shall adopt measures for these policies,
i.e. economic policies within the EU. There are also specific provisions for those
Member States whose currency is the euro. Paragraph 2 claims that in the field of
employment, Member States shall have an exclusive competence by defining
guidelines.

6. IMPLIED COMPETENCE AND FLEXIBILITY

Article 352 (1) TFEU provides for the principle of implied competence, stating that, if
a Treaty doesn’t provide for whom shall have competence in certain matters, the
Council, acting unanimously, shall adopt appropriate measures (for instance, the
Kadi case is clear use from the EU of the principle of implied competence, giving
individual sanctions in certain cases). Article 114 TFEU provides for the principle of
harmonization, giving a very important power to the EU.

CHAPTER 4: secondary law and the hierarchy of norms

1. general remarks and article 288 TFEU

Talking about secondary law and the hierarchy of norms, there are three main
issues:
• identification and legal nature of secondary legal acts as well as of international
agreements;
• non legislative acts;
• hierarchy of norms (some acts which prevail over some others).
The main provision is article 288 TFEU, the institutions shall adopt five kind of acts:
regulations, directives and decision, recommendations and opinion. The binding
force of an act defines it as “legislative”. This article isn’t an exhaustive list of acts.
Talking about hierarchy, there is none between legislative acts as well as there is no
hierarchy between non legislative acts, indeed there is hierarchy between
legislative and non legislative acts. Usually the Treaties provide for the adoption of
a specific act, but when the Treaty remains silent, article 296 TFEU is taken into
consideration, claiming that the Institutions shall choose which act must be used.

2. Legislative acts

Article 289, paragraph 3, states that the legislative acts are those legal acts which
have been adopted following a legislative procedure. This legislative procedure may
be ordinary (co-decision procedure) and special (some legislative acts may be
adopted only from the Commission or some other organ). This procedures will be
explained in a cleared way further on.
3. Regulations

Article 288 (1) TFEU states in order to exercise the EU’s competences, the
Institutions shall adopt regulations, directives and decisions. Moreover, paragraph
2, states that regulations shall have general application, they shall be binding in
their entirety and directly applicable in all Member States. Regulations generally
enter into force 20 days after its publication on the Official Journal of the EU. They
are adopted from the EP; the Council may adopt regulations only in some matters.
In order to divide the fields of regulations and decisions, we can talk about the
Calpak case: the request to the ECJ was that a natural person would have annulled
an act adopted from a EU Institution. The legal opinion of the ECJ was that an
individual may ask to annul an act only if it’s not a regulation; that’s why the element
which defines a regulation is that there is a general dress, instead a decision
dresses itself to a specific subject.
Moreover, under article 288.2 TFEU, regulations are directly applicable, it means
that there is no need of an implementing act adopted by national legal order, indeed
MS’s authorities must change their national law. Even if MS don’t change their
national law, the regulation has its own legal effects.
The principle of direct effect is the subjective dimension of the other principle (direct
applicability), meaning that an individual can invoke before a Court a provision
contained in a regulation. Even direct effect has two-sub-dimensions: vertical (an
individual can invoke a provision contained in a regulation against a MS, and
horizontal (an individual may invoke a provision contained in a regulation against
another individual).
An example of a regulation could be the regulation no. 2081, involving the
regulatory of DOC and DOP products, even in order to safeguard farmers which
don’t use chemical products on their goods. This regulation deals with DOC and
DOP products, in order to safeguard farmers who don’t use chemical products on
their goods. It’s involved the principle of free movement of goods within the EU. As
a product is exported from one State to another, the legislation of the “importing
State” will be applied, following the principle of the country of origin. This principle
let the EU Internal Market function smoothly, because local producers would not
comply with 27 different domestic legislations. This regulation stated that EU
citizens must be able to know the Country of origin of a good.

4. Directives
Article 288 (3) TFEU underscores the first difference between directives and
regulations: the directive shall be binding, but leaving to the member States the
choice on how to implement it within their domestic law. Directives enter into force
20 days after their publication on the Official Journal of the EU. Another difference
from the regulations is that that directives are addressed only to member States,
which must implement in their national legal order the directives, otherwise they
would have no legal effect: in order to achieve this objective deadline for
implementation are fixed, generally of 2/3 years after the entering into force of the
directive. In order to confirm the differences between regulations and directives,
article 114 TFEU explains us that EP and the Council shall adopt measures for the
approximation of the provisions laid down by law, following the harmonization
principle. Other differences between those 2 acts in that the directives are not
always addressed to all member States and they are not directly applicable.
Directives cannot produce direct effect, but there are some cases in which this
effect can be invoked: there is the case in which the member State implement the
directive using an incorrect method; then there is the case in which the deadline for
implementation has expired. It’s necessary that the directive must contain
unconditional, clear and precise obligation, otherwise the directive cannot be
applied. As these conditions are respected, an individual may invoke a provision
contained in a directive directly before a National Court.
When a directive cannot produce direct effects for one the cases explained, the
member State must compensate for damages the individual who could not exercise
his right.

5. Decisions

According to article 288 (4) TFEU, a decision shall be binding in its entirety and a
decision which specifies those to whom it is addressed shall be binding only on
them. Decisions and regulations are generally addressed to private parties, but
even to member States. As a decision is addressed to private party, the receivers
are notified. They are directly applicable and produce direct effects only if they are
addressed to member States.

6. Delegated acts and implementing acts

Delegated and implementing acts are no legislative act, rather they are below
legislative acts; delegated acts have been introduced under the Lisbon Treaty,
which has only modified the implementing acts.
According to article 290 (1) TFEU, “a legislative act may delegate to the
Commission the power to adopt a non-legislative act (delegated act) of general
application to supplement or amend certain non-essential elements of legislative
act”. The rationale of the “non-essential element” is not to give too much power to
the Commission. Second sub-paragraph of paragraph 1 of the same article states
that “the objectives, content, scope and duration of the delegation of powers must
be explicitly defined in the legislative act”.
The rationale of the “non-essential element” is not to give too much power to the
Commission. The second sub-paragraph of the same article states that “the
objectives, content, scope and duration of the delegation of powers must be
explicitly defined in he legislative act”. Paragraph 2 claims that “legislative acts shall
explicitly lay down the conditions to which the delegations is subject, the conditions
may be as follows:
1) European Parliament or the Council may decide to revoke the delegation;
2) the delegated act may enter into force only if no objection has been expressed
by the European Parliament or the Council within a period set by the legislative
act”.

Article 291 (2) TFEU, states that there are some legally binding acts adopted from
the EU, and when uniform conditions for implementing this kind of acts are needed,
those legislative acts shall confer implementing powers on the Commission. There
are some differences between delegated and implementing acts: the former may
amend or supplement legislative act, while the latter may implement some
legislative acts.

7. International agreements

The core article concerning international agreements is article 216 (1) TFEU,
stating that the EU may conclude an international agreement with third countries or
International Organizations whenever a Treaty provide for it or if its conclusion is
necessary in order to achieve an EU’s objective. Paragraph 2 states that those
international agreements are legally binding upon the member States of the EU.
According to article 218 (5) TFEU, the Council shall adopt a decision authorizing
the signing of an international agreement. Whenever the EU holds exclusive
competences, the international agreement is adopted by the EU itself, while if the
competences are shared with the member States, there will be a mixed agreement
to which member States must give their consent. Anyway, the filed of competences
isn’t clear, because article 3 (2) TFEU states that the EU shall hold exclusive
competence within the area of conclusion of international agreements.
There are 2 categories of agreements in which the EU holds exclusive
competences: bilateral investments treaties and treaties related to the World Trade
Organization. In these categories the Court of Justice shall adopt a uniform
legislation. Article 218 (11) TFEU states that a member State, the European
Parliament, the Council or the Commission may obtain from the Court of Justice an
opinion on the compatibility of an international agreement with the treaties. Some
international agreements have direct effect, but they must be unconditional, clear
and precise in their provisions.

8. Inter-institutional agreements

Inter-institutional agreements, according to article 295 TFEU, are agreements

concluded between the different Institutions of the EU in order to enhance their
cooperation. This kind of agreements is not legally binding stricto sensu.

9. Soft law

As we already said, the acts of soft law aren’t legally binding and don’t produce
legal effects. Within this kind of acts. there are recommendations and opinions.
Moreover, they are sources of interpretation by the ECJ.

10. Hierarchy of norms

We have already mentioned the absence of hierarchy amongst legally binding acts
and the same it will be said for the non-legally binding acts, but, actually, there is a
hierarchy amongst EU acts: at the top there are the Treaties (TEU, TFEU) and the
Protocols, the Nice Charter and the European Charter on Human Rights (ECHR).
Moreover, there are some principles which were born as unwritten sources of law
and, nowadays, some of them have become written: they are the general principles
of EU law system.
There are two sub-categories of general principles:
1. principles which have taken inspiration by the National Constitutions (e.g.
principle of legitimate expectation);
2. principles created by EU Institutions and renamed from ECJ in an autonomous
way (e.g. principles of non-discrimination, even in the economic meaning of the
term).
11. CFSP acts

There are no legislative acts within the CFSP area.

Council shall adopt decisions over these matters:
• strategic interests and objectives of the Union;
• actions to be undertaken by the Union;
• procedures for implementing the actions and position of the Union.

Chapter 5: Law making

1. Overview

There are two procedures concerning the law making process:

1) ordinary legislative procedure (co-decision procedure);
2) special legislative procedure.
While the so called enhanced cooperation is not a legislative procedure at all,
because this process involves several Member States which want to create
amongst them a more advance link of cooperation on some matters (e.g. France
decided, for immigration issue, to crate a linkage with other Member States in order
to regulate this area; in this enhance cooperation there is neither UK and
Denmark).
Within the process of adoption of implementing acts (most of the times) but also of
delegated acts, the Commission is supported by a group of experts coming from
Member States as well as EU: Comitology.

2. The power of initiative

The Commission shall hold the power of initiative, but, according to article 241
TFEU, the Council may request the Commission to undertake a proposal for the
achievement of a common objective.
Moreover, even the European Parliament, according to article 225 TFEU, may
request the Commission, acting by the majority of its Members, to undertake a
proposal for the aim of implementing the Treaties by the adoption of an EU act.
But the most important change brought under Lisbon Treaty has been the enhance
importance given to EU citizens: according to article 11.4 TEU, not less than one
million EU’s citizens may request the Commission to undertake a proposal for the
aim of implementing the Treaties by the adoption of an EU act.
3. The ordinary legislative procedure

Article 14.1 & 16.1 TEU states that the European Parliament shall, jointly with the
Council, exercise legislative and budgetary functions. The great power given to the
European Parliament under this article is subsequent to the Treaty amendments
taken by the Single European Act in 1986.
Nowadays, the ordinary legislative procedure shall consist in the joint adoption by
the European Parliament and the Council of a regulation, directive or a decision on
a proposal from the Commission (which, as we have already said, holds the power
of initiative). The Treaties shall contain precise provisions in order to clarify which
procedure shall be taken into consideration.
The details of this procedure are listed under article 294 TFEU:
1) naturally, the first phrase is the proposal of the Commission;
2) phrase of “first reading”; now there are two possibilities”:
• the European Parliament shall adopt its position at first reading and communicate
it to the Council. If the Council approves the European Parliament’s position, the
act shall be adopted exactly in the way in which it has been approved by the
European Parliament;
• the European Parliament shall adopt its position at first reading and communicate
it to the Council. If the Council doesn’t approve the European Parliament’s
position, the Council shall adopt its position at first reading and communicate it to
the European Parliament;
3) phrase of “second reading”: if, within three months of such communication, the
European Parliament:
• approves the Council’s position at first reading or has not taken a decision, the act
is adopted according to the position of the Council;
• reject, by a majority of its Members, the Council’s position at first reading, the act
is not adopted;
• proposes, by a majority of its Members, amendments to the Council’s position at
first reading, the text amended shall be forwarded to the Council and the
Commission, which shall give an opinion on it.
4) if, within three months of receiving the European Parliament’s amendments the
Council, acting by a qualified majority:
• approves all this amendments, the act in question is adopted;
• does not approve all the amendments, the President of the Council, in
agreements with the President of the European Parliament, shall, within six
weeks, convene a meeting of the Conciliation Committee.
5) phrase of “Conciliation”: the Conciliation Commitee, which shall be composed
of the members of the Council or their representatives and an equal number of
members representing the European Parliament, shall reach an agreement on
a joint text, by a qualified majority of the members of the Council and the same
qualified majority of the members of the European Parliament within six weeks
of its being convened. Even the Commission shall take part to the Conciliation
Committee. If, within six weeks of its being convened, the Conciliation
Committee doesn't approve the joint text, the proposed act isn’t approved.
6) phrase of “third reading”: if the Conciliation Committee, within the six weeks
term, approves the joint text, the European Parliament, acting by a majority of
the votes cast, and the Council, acting by a qualified majority, shall each have a
period of six weeks from that approval in which to adopt the act in question in
accordance with the joint text. If they fail, the proposed act isn’t adopted.

4. Special legislative procedure

Article 289.2 TFEU states that are some specific cases in which the Treaties
provide for the adoption of a regulation, directive or decision by the European
Parliament; jointly with the Council, adopting a special legislative procedure. This
special legislative may also stipulate that a measure should be adopted by the
Council, acting unanimously.

5. The enhanced cooperation

According to article 20 TEU, at least nine Member States shall partecipate to the
enhanced cooperation and the Council should authorize it only when it’s clear that
the EU isn’t able to achieve the object of this enhanced cooperation shall comply
with the Treaties and the EU law and it shall not undermine the internal market or
economic, social and territorial cohesion”. Moreover, there shall be respect of those
Member States with don’t participate to the enhance cooperation.

Chapter 6: the impact of EU law on national laws: direct effect

1. General overview
Amongst the most important issues within EU law, there are the supremacy of EU
law and the issue of direct effect (which has been elaborated by the ECJ before the
first issue we have mentioned).
There are two dimensions concerning the principles of direct effect and direct
applicability, an objective and subjective one:
The principle of direct applicability is said to fall within the objective dimension. This
principles deals with the relationships between Member States’ authorities and EU.
A provision contained in a EU act is directly applicable when it isn’t necessary for a
Member State to implement the EU act which contains the Provision. Regulations
and decisions are directly applicable.
While the principles of direct effect falls within the subjective dimension. It deals
with the relationships between individuals and EU law. If a provision contained in a
EU act has direct effect, that provision can be invoked by individuals directly before
a National as well as EU Courts. Thus, this principle is strictly related with another
principle, i.e. the justiciability, conferring upon individuals rights and private
enforcement (the enforcement is private because there is no need of an
enforcement by a Member State).
We use to call the principle of direct effect as an “institute principle” (through it’s not
a general principle of EU law), because it highlights the Constitutional nature of the
EU. However, this principle is not formally recognized under the Treaties. It has
been elaborated by the ECJ (underscoring the “common law approach” of the EU
law”). Talking about direct effect, the core question is: which provision may have
direct effect? It’s something conferred upon provisions contained within the Treaties
(such as TEU and TFEU): primary law, such as Protocols, the Nice Charter and the
Treaties have direct effect, especially with regard to the Treaties, secondary law,
such as regulations (which have direct effect) and directives (which generally
idon’thave direct effect but, as we have already seen, they may produce only
vertical direct effect under certain conditions. Even international agreements may
produce direct effect but ECJ doesn’t agree with this theory. Another core question
on the same issue is: when does provision produce direct effect?
Actually, whenever that provision contains clear, precise and unconditional
obligations. The term “unconditional” means that the obligation contained in a EU
provision, for the aim of being applied, doesn’t need to be implemented. Moreover,
there are some other conditions to be respected in order, for that obligation, to
produce direct effect: they depend on what kind of provision is involved. Finally,
direct effect may have two sub categories: vertical and horizontal direct effect. The
former consists in the possibility for an individual to invoke an obligation contained
in a EU act directly before a National Court against a Member State (i.e. individual
vs. Member State), while the latter is the possibility for an individual to invoke an
obligation contained in a EU act directly before a National Court against another
individual or private company.
2. Van Gend en Loos and the direct effect of European Treaties’ provisions

The “Van Gend en Loos” judgment is considered as one of the top three judgment
of ECJ for its importance and for the fact that it shed light on legal orders of the
Member States.
In 1960, a Dutch company (Van Gend & Loos) imported into the Netherlands from
the Federal Republic of Germany a quantity of urea-formaldehyde (a chemical
substance), charging to this importation a fee of 8%, apparently breaching article 12
of EEC Treaty (current article 30 TFEU, which provides for the prohibition of
customs duties on imports and exports amongst Member States). The case was
brought before a Dutch Court, which asked the ECJ for a preliminary ruling. The
main question was wether an individual would be able to invoke a provision
contained in a EU act (in this case the EEC Treaty) directly against a Member
State.
In 1963, the ECJ gave its judgment. The Court started on the basis that “the EEC
Treaty is more than an agreement which merely creates an obligation between the
contracting States”. ECJ stated that: “the wording of article 12 contains a clear
unconditional prohibition which isn’t positive but a negative obligation .. (thus, a
negative obligation doesn’t give the possibility of a wider interpretation). The
implementation of article 12 doesn’t require any legislative intervention on the part
of the states. It follows on the foregoing consideration that, according to the spirit,
the general skin and the wording of the Treaty, article 12 must be interpreted as
producing direct effects and creating individual rights which National Court must
protect”.
Briefly, the Court claimed that the EEC Treaty (as well as any other Treaty amongst
Member States) is more than an agreement, it’s a revolutionary idea of a “common
path” between Member States as well as referring to individuals. The Court
continued stating that article 12 (current article 30) can be invoked by an individual
(in this case by a company), the it produces direct effect, but only order under its
vertical dimension (meaning that an individual would be able to invoke this
provision only against a Member State).
Another important judgment gave by ECJ was the Defrenne (1976). The fact
concerned a woman, called Gabrielle Defrenne, which suffered for economic
discrimination (related to her sexual gender) caused by her employer, the Belgium
airplanes company, Sebena. Article 199 of the EEC Treaty (current article 157
TFEU) started that: “each Member State shall […] maintain the application of the
principle that men and women should receive equal pay for equal work”.
Defrenne asked before the court of travail in Bruxelles for the compensation for
damages (so the question was wether Defrenne would be able to invoke article 199
EEC Treaty directly against a private company or not). The Belgian Court asked for
a preliminary ruling to the ECJ which, according to what stated under article 119 of
the EEC Treaty and taking into consideration the precedent case of Van Gend en
Loos, decided that Defrenne was right in her exception, thus giving application to
article 119. The revolutionary issue was that, within this decision, ECJ accepted the
fact that an obligation arising under a EU act may produce even horizontal direct
effect (meaning that an individual is able to invoke an obligation arising under a EU
act directly against another individual).
Finally, there is another case involving the direct effect of EU Treaties’ provisions,
i.e., the Viking case. The fact was that a Finnish company (Viking line) which
changed its flag from Finland to Estonia, because of the cheaper cost of the labour
in the latter Country. The main problem arose under the Union of Finnish Seamen
which didn’t want the company to change flag. The question brought before the
ECJ was wether the Company would be able to move from one Country to another.
ECJ stated the Finnish company (Viking line) was right in its claims.

3. The direct effect of secondary law

Talking about direct effect of secondary law, we may draft a list of those acts:
1. regulations produce both horizontal and vertical direct effect because they are
addressed to both private parties and Member States;
2. decisions produce both horizontal and vertical direct effect under certain
conditions, i.e. only if the decision is addressed to specific parties (so, only if the
decision has a specific address);
3. directives normally don’t produce direct effect (because they aren’t direct
applicable), but they may produce it if the term of implementation has expired or
the Member States has wrongfully implemented it. Directives may have direct
effect in order to compel member States for adopting the directives, otherwise it
would be better for Member States not to implement directives. Moreover,
whenever a directive produces direct effect, it would be only under its vertical
dimension.
In 1976, the ECJ gave its judgment on the Marshall case. The fact was that
Marshall suffered for mistreatments caused by the UK Public Health Authority. The
main issue brought before the ECJ was that a directive couldn’t be invoked by an
individual against a company, but only by an individual against a member State.
The ECJ decided to extend as much as possible the notion of “public authority”,
including in to this term mixed public and private companies.

4. The indirect effect of secondary law

The core question about directives and their production of direct effect is: are
National authorities subject to an obligation if a directive doesn’t produce direct
effect? Yes, especially National Courts must help the Member States in order to
fulfill a EU obligation, by interpreting in a harmonious way the directive with
National law.
Another important question is: what does it happen if an issue is covered under
directives as well as under general principles of law? General principles prevail
over directives for many reasons, such as the fact that general principles of law
deals with principles which are at the core of EU law and as the fact that these
kinds of principles produce direct effect and are directly applicable. In 2005, the
ECJ gave its judgment on the Mangold case. This case deals with the application of
a directive or general principles of law. The fact was that an employee was
discriminated by his employer. Germany, at the time, hadn’t implemented directive,
because the deadline hadn’t expired yet. Whilst, there was a general principle of
law on the same issue which was invoked by the individual against his employer,
because we have already said that a general principle of law prevails over a
directive for the fact that it produces direct effect and it’s directly applicable.

CHAPTER 7: A specific form of national remedy, the principle of State liability

for breach of EU law

1. General overview

The principle of effectiveness can be considered as a sub-category of the winder

principle of the State Liability. The former principle deals with the fact that a breach
of a EU norm can be invoked even before a National Court, indeed the first judge
within the EU legal order is the National judge. The National judge can ask for a
preliminary ruling before the ECJ, according to article 19 TEU. Thus this article
provides for the real recognition of the principle of State liability, but this principle
has to be interpreted even in a “negative way”, because it’s strictly related to the
principle of judicial autonomy of Member States, meaning that a Member State
must five reparation for damages caused by the breach of a EU norm.
1.1. A SPECIFIC FORM OF NATIONAL REMEDY

In some cases it could happen that a State could be liable for eventual breach of
EU law due to its behavior and consequently forced to pay compensation for
damages. So we are talking about State liability for damages caused by breaches
arising around Eu law. The idea is that each right should have its remedy, such as
damage liability and interim measures. The starting point is the principle of
effectiveness of EU law. The ECJ has pointed out that in fact effectiveness is a
general principle of EU legal order and what is relevant for our purposes is that
from this principle we can derive the existence of an obligation upon national courts
to ensure an adequate effect to EU provisions in domestic frameworks. We have
already seen, talking about supremacy and direct effect, how national courts have
to apply EU law and in this sense are parts of the EU judicial system, contributing to
the idea of decentralizing application of EU law. According to art. 19 TEU,
introduced by the Lisbon Treaty, Member States shall provide remedies sufficient to
ensure effective legal protection in the fields covered by Union law. According to art.
47 of the Nice Charter there’s a right to an effective remedy and to a fair trial:
Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.
Everyone is entitled to pretend a fair and public hearing within a reasonable time by
an independent and impartial tribunal previously established by law. Everyone shall
have the possibility of being advised, defended and represented. Legal aid shall be
made available for those who suffer a lack of sufficient resources. Here aid is a tool
to guarantee the access to the Court (national) - fundamental right - to the
individual and consequently let the Tribunal practically work in compliance with EU
law. About national remedies and EU law compliance during the application
processes, the Court of Justice has established a principle which is called the
principle of procedural autonomy, coinciding with the traditional approach of ECJ:
Eu law has to be enforced according to the procedures established into national
levels. The consequence is that every State has its own procedure which could be
used in ensuring the effectiveness. Then there’s no requirement for ‘’European
remedies’’ as long as the national ones could indeed be suitable to pursue those
scopes. The principle of procedural autonomy is not any absolute, so it has been
qualified and limited.
The two principal limits to this principle are:
1. Principle of equivalence: The rights deriving from EU Law must be subject to
the same procedure as the rights deriving from national law. So the idea is that
 you should not discriminate against EU Law, EU rights in a national framework
should not be treated in a way which is less favorable than the one of national
rights. National procedures and remedies for the enforcement of EU law must
not be less favorable that those related to a similar action within an internal
(MS) context.
2. Principle of practical possibility: National rules and procedures should not
render the exercise of EU rights impossible in practice.

2. The Francovich case

As a result of the bankruptcy of his employer, so Mr. Francovich went before the
pretura di Bassano del Grappa asking for a compensation from his former company
because he lost his job without having reimbursement. Moreover, Italy had not
implemented a EU directive 80/987 on the approximation on the laws of the
member States relating to the protection of employees in the event of the
insolvency of their employer he had the right to obtain the payment of the lost
amount of money. On this issue, then, the Italian pretura asked to the ECJ a
preliminary ruling, claiming an answers on wether Italy had to compensate for
damages Mr. Francovich because of non implementation of the directive. ECJ
actually recognized that Italy breached a EU norm, according to article 4.3 TFEU,
which states that EU and member States shall cooperate in order to fulfill the
obligations contained in the Treaties (according to the principle of sincere
cooperation). The legal reasoning conducted by the ECJ that the directive was not
provided to have direct effect. The most important statement contained in the ECJ
judgment on the Francovich case is the drafting of a three points-list in order to
underscore the liability of a member State:
1) conferral of specific rights: the provision of EU law gives specific rights to the
applicants;
2) the provision must be clear
3) the existence of a causal link between the violation of EU law and the damages
suffered by the applicants.

Here we have the principle of State liability to pay compensation for damages.
There was a directive designed to protect employees in the case of insolvency of
their employers. This directive was requiring to MS to adopt legislation in ways that
would have guaranteed the payment of related wages/salaries. Italy failed to
implement this directive and so Mr. Francovich and some other people who did not
receive their salaries, suffering these losses, decided to procede against the
Country, also pretending by the Italian State the due payments.
As we can see there is a breach caused by the Italian authorities behavior that
acted incorrectly in implementing the directive. Consequentially there is a damage
to individuals consisting in suffered losses. In the course of this proceeding a
national court asked the Court of Justice whether the State in itself would be
obliged to cover the losses of the employees. Preliminary ruling procedure ex. art.
267 TFEU. ECJ stated a number of things. First: Direct effect. It concluded that this
provision contained in the directive providing for the establishment of a system of
guarantees did not have direct effect, because the Italian State had broad discretion
in implementing this directive. The consequence is that the persons concerned can
not invoke those rights against the State before the national courts if no
implementing measures are adopted in the prescribed areas.

However the Court has not stopped here. It intended to justify the principle. ECJ
confirmed that is seems to be inherent in the system of the Treaty.
The Court made also references to some issues that had already considered in Van
Gend en Loos and Costa such as the idea that the EU is a new legal system, the
fact that the Treaties have created their own legal system and subjects to that
system are not only the MS but also their nationals. Just as it imposes burdens on
individuals, Community law is also intended to give rise to rights which become part
of their legal patrimony. Then national courtier called into question in order to
ensure that those rules have full effect and must detect the rights conferred on
individuals (“idea of full effectiveness of EU law”). The idea is that without a
principle to establish State liability for breaches of the Eu law, the full effectiveness
of Eu rules would be at risk, the rights granted by Eu law would be weakened, in
danger. ECJ considered as a second point of justification the principle of sincere
cooperation (art. 4.3 TEU) the Union and the Member States shall assist each other
in carrying out tasks which flow from the Treaties. Member States are required to
take all appropriate measures, whether general or particular, to ensure the
fulfillment of their obligations under Community law. There is the obligation to nullify
the unlawful consequences of a breach of Community law. So here the Court
essentially establishes that an action for compensation against the State for
breaches of Eu law must be made available and national court must provide for the
damages remedy due to the breaches. But under which conditions Is the State
liable? The Court of Justice set three conditions that must be fulfilled in order to ask
for compensation:
a) conferral of specific rights: an EU act shall intend to grant individual rights;
b) identifiability: even in the provision which does not have direct effect, these
rights must be identifiable, it should be possible to understand what is the
content of them.
c) casual link: there should be a causal link between the breach of the State and
the loss suffered by the individual.

3. Brasseire and factortame

Following the principle of State liability, there are two other case to be seen:
Brasserie du Pêcheur and Factortame case.
In 1992, the ECJ judged both the cases involving the same principles of EU, in both
cases there was a violation of a EU rules with direct effect. The ECJ recalled the
three condition applied to the Francovich case concerning the State liability, adding
to them other conditions:
1) the clarity and the precision of the rule: if there is an unclear rule, it would be
difficult to establish the liability of a member State;
2) the possible excusable of law;
3) the existence of some positions expressed by the EU Institutions which could
have led a Member State to break the considered EU rule;
4) the presence of an established case-law.
One of the most important provisions was the needing of a sufficiently serious
breach. When member States has a wide margin of discretion, only a very serious
breach could be invoked, if no (e.g. Francovich case), a sufficiently serious breach
can be more easily invoked.

4. The issue of national judges’ responsibility

One of the most important problems concerning the State liability is wether a
behavior could led to that, so whenever there is a breach carried out by an organ of
the MS . The ECJ has recognized that also National judges may breach EU rules
with their decisions. Another difficult issue is the principle of member States’
procedural autonomy, meaning that the action for reparation before national Courts
is governed by National procedural requirements.

CHAPTER 8: The impact of EU law on national laws: supremacy

1. General overview
Formally there is no recognition of EU law supremacy in the Treaties, even if de
facto is so, this supremacy above national order is a very original issue introduced
by the Union.
There are two types of approach towards a system with more than a legal order for
what concerns the implementation of law:
1) monism: is the theory supported by Kelsen, who affirms that National and
International law are one unitary and coherent system, but in case of conflict
International law always prevails over the National one. According to it, there is no
need for “transformation” of International law into National law; furthermore there is
no a strict distinction between subjects of National and International law, it’s a role
of individuals.
2) dualism: is the theory supported by Triepel and Anzillotti, denies that
International and National law operate in the same sphere, they exist as two
separated and distinct sets of legal orders, because their difference in subjects,
sources and content; moreover National law has the priority over International law
that hasn’t been incorporated. Nothing changes and countries, such as Italy
recognized the supremacy of EU law.
We can sigle out the concept of supremacy in three points:
1) it isn’t possible to interpret EU law on the light of national law;
2) the National courts are obliged to give immediate effect to EU law;
3) the National courts are obliged to set aside National law in conflict with EU law.

2. The Costa Case

The creation of the European Community has conferred a new nature to the
juridical system according to the limitation of sovereignty ex. art. 11 of the Italian
Constitution so that the EU law prevails over domestic law. With the 14/1964
judgment the conflict between domestic and EU law has been led, either about the
legislative either in the constitutive matter, to a conflict among internal rules,
because they are thought to be subject to the Constitutional Court competence, so
it has been used categories of domestic law. It’s applied the principle of iura novit
cura, the judge applies the rules applicable to the case so it becomes a conflict of
domestic rules because the European/International rules applicable to the case so
it becomes a conflict of domestic rules, because the European/International rules
come into the Italian Legal system through the ratification rules of the President of
the Republic. Through this procedure the rules of the Parliament acquired the same
legal level so that it was possible to apply the chronological criterion which implied
the abrogation of the previous rule. This principle was rejected because obviously it
would have rendered the Treaty inapplicable.
In July 1964, Mr. Costa went before the “Giudice conciliatore di Milano” against
ENEL. The judge decided to submit the issue to the Italian Constitutional Court as
well as the ECJ. The Constitutional Court, giving its judgment before the ECJ,
states that, according to the principle “lex posterior derogat priori”. This principle
was rejected though because obviously it would have rendered the Treaty
inapplicable.
The Court held that: “the Italian Government submits that the request of the Giudice
Conciliatore is “absolutely inadmissible”, inasmuch as a national court which is
obliged to apply a national law cannot avail itself of article 177. By contrast with
ordinary international treaties, the EEC Treaty has created its own legal system
which became an integral part of the legal system of the member States and which
their courts are bound to apply”. “The integration into the laws of each member
States of provisions which derive from the Community, and more generally the
terms and the spirit of the Treaty, make it impossible for the States to accord
precedence to an unilateral and subsequent measure over a legal system accepted
by them on a basis of reciprocity”.

3. The legal status of EU law in National legal orders

In 1973, the Constitutional Court of Italy judged over the “Frontini case”, whose
principle was entirely rejected by the ECJ in 1978 in the “Simmenthal case”. Since
the Italian law introduced, after joining the EEC required veterinary inspections of
beef and veal, the Simmenthal S.p.A. had to pay fee for veterinary and public
health inspection on imported beef. It asked for having the money back because
the fee was a clear breach of what is prescribed under article 30 EC Treaty (current
article 36 TFEU).
The ECJ held that those charges were infringing EU law and the pretore ordered to
pay back Simmenthal S.pA., but Italian Administration appealed. Italian
Constitutional Court case law (1973) held that, whenever there is an incompatibility
with National law, a local judge has no power to “set aside” the National law and
should submit the issue to the Constitutional Court. The ECJ (1978) stated that the
judge should immediately apply EU law without consulting the Constitutional Court,
and none of the official body could take action which may jeopardize or delay the
full, complete and uniform application of EU law.

4. The principle of supremacy and res judicata

The principle of supremacy of EU law requires that a National court must refuse
to apply any provision likely to conflict with the Commission’s exclusive competence
to asses the compatibility of state aid measures with the common market, including
a national provision that seeks to lay down the principle of res judicata. This
principle covers if a National judge render a judgment of last instance, such as the
Cassation Court in Italy, there is no way for appealing against this judgment;
otherwise, there would be the case in which the counterpart decides not to appeal
against the first instance judgment. The real problem with it is the case in which an
EU Institution discover that a National judge has rendered his judgment for a party
which goes against EU law.
The most important case is the Lucchini case, in 1990 the European Commission
adopted a decision declaring a plan to grant State aids (economical fundings and
helps given to company, which usually are not in compliance with EU law) to a
company, Lucchini, but this aid was incompatible with the EU common market
rules. Lucchini didn’t appeal against this decision, but brought the proceedings
against the Italian authorities in the civil courts found in 1994 that Lucchini was
actually entitled to receive the aid claimed. As this judgment wasn’t challenged by
the Italian authorities, it became final in 1995, with the aid being paid to Lucchini.
The Commission issued an opinion confirming that the aid granted was
incompatible with the common market. The Italian authorities then adopted a
decree of revocation, demanding repayment of the aid. This decree was then
challenged by Lucchini, and it was in relation to it that the Consiglio di Stato
claimed a request for a preliminary ruling to the ECJ about the interpretation and
application of the principle of the primacy of Community law. After evoking the
principle of primacy of Community law, the ECJ claimed that the principle of
supremacy shall prevail over the Constitutional principles within the National legal
orders.

5. The case of Italy

Italy has been involved in many cases concerning the principle of supremacy. For
instance, in the Frontini case, articles 11 and 117 of the Italian Constitution have
been involved. Through the interpretation of article 11, the Italian Constitutional
Court decided to limit its sovereignty as imposed by the EC. The case declared that
European law can force the Italian national courts to revoke national laws that
contradict European law There are some Constitutional fundamental principles
which cannot be modified or even interpreted in an “extensive way” by EU law: this
is the counter limits doctrine, which establishes if that if there were an
interpretation giving European bodies “an unacceptable power to violate the
fundamental principles of the Italian Constitution, the Italian Constitutional Court
reserves the right to control the continuing compatibility of the Treaty as a whole
with such fundamental principles. The counter limits doctrine shall prevail over the
principle of supremacy, but it has never been applied.
In the Granital judgment in 1984, the Italian Constitutional Court ruled that
community regulation prevailed over conflicting national legislation. At same time,
the Court accepted the principle followed in the Simmenthal case and it opted for a
dualistic approach for Italy. In the following years (e.g. 2008 and 2013), the Italian
Constitutional Court fully accepted the principle of supremacy, in particular asking
for many preliminary rulings.

6. EU law and international law

It is part of the international legal order as it is considered an international

organization. It is also bound by Treaty law as far it concludes an international
agreement. We could also confirm that international law is part of the EU legal order
in the sense that EU has to follow its rules. Even some parts of customary law may
bound EU. The main idea is that if EU want to interplay with third parties it has to do
so. One of the best example is the Kadi case. Here the Union had implemented
some resolutions of the Security Council that caused a violation of private property
and fair trial principle. ECJ confirmed that EU is certainly bound by those
international guidelines but it could be possible to review EU implementing
regulations to guarantee Mr. Kadi his fundamental right. In terms of hierarchy we
would first have Treaty provisions, the Charter provisions and Protocols, then we
would have international agreements. This means that there’s no need to modify
the treaties in light of international law principles for instance. But secondary law is
lower than international agreements. This means that EU should be aware of
structuring those norms in light of a correct interpretation of international law
principles.

CHAPTER 9: THE LAW OF EU EXTERNAL RELATIONS

1. Introduction
The entry into force of the Lisbon Treaty brought several important changes in the
field of EU international relations. Two important questions dominating the doctrine
are: whether a given external power exist and whether it is exclusive to the EU or
shared with the MS. The ECJ answered the first question in very broad terms, while
the second is under ongoing discussions. The EU usually gets involved into
internationals relations, for instance, the EU is concluding the so called TTIP
(Transatlantic Trade and Investment Partnership) with USA, and many sanctions
are imposed by EU against Russia (for he Ukrainian situation).
External relations became over the years a separated branch of EU legal order. A
First important point is referred to the nature of EU in a global view. The European
Union is a special international organization as it has a peculiar relationship regime
and owns certain powers due to the partial transfer of competencies from MS. It
covers a sui generis position on the international level. Because of this the rest of
the world faces some difficulties to deal with EU participation in International
Organizations. EU sometimes has been compared to a federal State. Different
elements seem to support this thesis: ex. similarities between European Treaties
and constitutions of federal states across the globe (Canada for instance). But
there’s one legal problem that actually arises if we admit that EU is more like a full
State than an international organization: we would undermine the position of the 28
components. If we look at the treaties there’s no reference to what EU is. The art. 1
TEU states: ‘’the high contracting parties establish among themselves a European
Union, hereinafter called ‘the Union’, on which the Member States confer
competences to attain objectives they have in common’’. But it does not specify
nothing more. According to Wessel definition: EU is an entity that interacts with third
countries and international organizations in ways that are legally distinguished from
the ones of MS. This entity has a stand alone identity composed by values,
interests and policies in addition promoted at an international level.

2. International legal personality

Article 47 TEU states that the EU shall have legal personality. There is no
mentioned about an international legal personality, the ECJ stated that actually the
EU should have it.

3. The objectives of the EU as an international actor

Article 21 (1) TEU makes a list of general provisions at which the EU shall look
when acting as an international actor: “The Union's action on the international
scene shall be guided by the principles which have inspired its own creation,
development and enlargement, and which it seeks to advance in the wider world:
democracy, the rule of law, the universality and indivisibility of human rights and
fundamental freedoms, respect for human dignity, the principles of equality and
solidarity, and respect for the principles of the United Nations Charter and
international law.
The Union shall seek to develop relations and build partnerships with third
countries, and international, regional or global organisations which share the
principles referred to in the first subparagraph. It shall promote multilateral solutions
to common problems, in particular in the framework of the United Nations”.
Under paragraph 2, a list of objectives which the EU must pursue while acting as an
international actor is drafted: “The Union shall define and pursue common policies
and actions, and shall work for a high degree of cooperation in all fields of
international relations, in order to:
a) safeguard its values, fundamental interests, security, independence and integrity;
b) consolidate and support democracy, the rule of law, human rights and the
principles of international law;
c) preserve peace, prevent conflicts and strengthen international security, in
accordance with the purposes and principles of the United Nations Charter, with the
principles of the Helsinki Final Act and with the aims of the Charter of Paris,
including those relating to external borders;
d) foster the sustainable economic, social and environmental development of
developing countries, with the primary aim of eradicating poverty;
e) encourage the integration of all countries into the world economy, including
through the progressive abolition of restrictions on international trade;
f) help develop international measures to preserve and improve the quality of the
environment and the sustainable management of global natural resources, in order
to ensure sustainable development;
g) assist populations, countries and regions confronting natural or man-made
disasters; and
h) promote an international system based on stronger multilateral cooperation and
good global governance.

4. Competencies of EU in external relations field

The most important element in the field of EU external relation is the division of
competencies between MS and EU. We can recognize the existence of a dynamic
division of competencies because some of the related points are laid down in the
Treaties while others depends on factual parameters: thing may change over the
years as it is proofed by the principle of preemption.
Here is important to remind the ERTA doctrine: there was a case before ECJ about
transports area affecting the conclusion of an international agreement. The issues
were related to the absence of references in the Treaties. Then the Council noticed
that it was actually contained in the Treaties, but it was implied. Here we have a
parallelism of internal and external competence of EU which means that internal
competence implies the existence of external one. The rationale is ensuring the
achievement of common objectives precluding MS for instance to freely contrast
what EU states thanks to the conclusion of an international agreement (where the
Union would be excluded) not in compliance with EU law. The Court availed this
solution.
In defining the distribution of competencies a first step would be verify the existence
of EU powers. Then we have to figure out what kind of competence it is, depending
on the areas for instance. But not always treaty provisions are exhaustive as de
facto we could have deep switches. Ex. overregulation by EU on some concerns
previously falling under shared competence determine the introduction of
exclusivity. This ERTA doctrine came into the Treaties: art. 216 [1] TFEU ‘’the
Union may conclude an agreement with one or more third countries or international
organizations where the Treaties so provide or where the conclusion of an
agreement is necessary in order to achieve, within the framework of the Union's
policies, one of the objectives referred to in the Treaties, or is provided for in a
legally binding Union act or is likely to affect common rules or alter their scope’’.

The EU has certain limit within its competences: these limits are listed under article
5.2 TEU, which provides for the principle of conferral, thus the EU shall act only
within the limits conferred upon it by member States in the Treaties, all the other
competences shall remain within the member States’ competence. There are also
the competences of entering in international relations with third States, i.e. the
external competences of the EU.
There are two types of external competences:
a) express external competences of the EU (which are those conferred upon the
Union by member States in the Treaties);
b) implied external competences.
5. Principles that guides EU external actions

The first one is the principle of conferral. Art. 5.2 TEU: “under the principle of
conferral, the Union shall act only within the limits of the competences conferred
upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member
States’’. So there’s the need to always find a legal basis that eventually legitimate
EU to act, even in the international field. The Court here cover a fundamental role
as long as EU could go beyond its competencies and MS could sue it for the
violation of art. 5.2 TEU. So ECJ could be called into question to establish what EU
can do and what it cannot do before that the agreement is concluded, e.g. opinion
2/13 on EU accession to ECHR. Another important principle is the one of loyal or
sincere cooperation, contained in the treaties. It has been used by the Court in
external relations concerns a lot of time. It basically says that: MS have to be loyal
to EU in external relation and EU has to be loyal to MS in external relation. A sort of
mutual loyalty. This principle could let EU stretch its competencies. In several cases
MS pretended to do something on their own (negotiations, conclusion of an
agreement) on the basis of shared competence. But, according to sincere
cooperation principle, they cannot stand in the way of contrasting what EU actually
is pursuing and requesting. A third principle is the one of institutional balance.
Art. 13 (2): “each institution shall act within the limits of the powers conferred on it in
the Treaties, and in conformity with the procedures, conditions and objectives set
out in them. The institutions shall practice mutual sincere cooperation.’’ Here there
could be the risk of countervailing positions of EU institutions within the field of
international agreements. That principle is intended to smooth possible conflicts.
Anyway, in the Lisbon Treaty for instance we have a set of provisions that clearly
express the openness of EU to international frameworks. Art. 3.5 TEU: “In its
relations with the wider world, the Union shall uphold and promote its values and
interests and contribute to the protection of its citizens.’’

It shall contribute to peace, security, the sustainable development of the Earth,
solidarity and mutual respect among peoples, free and fair trade, eradication of
poverty and the protection of human rights [...] including respect for the principles of
the United Nations Charter. As political scientist would confirm, the Union here is a
sort of normative actor as it want to export of some
values in the global context. It wants to influence. The same thing is specified in art.
21 TEU: “The Union’s action on the international scene shall be guided by the
principles which have inspired its own creation, development and enlargement, and
which it seeks to advance in the wider world […] and respect the principles of the
United Nations Charter and international law.’’ Here is about substantive
requirements. This means that something involving contents has always to be
included. Then the other thing to underline is that art. 21 is very comprehensive, it
basically affects everything in the field of external relations. In this way consistency
and coherence in ER policy is guaranteed.

6. CFSP area

Common foreign and security policy covers a special role within external
relations field, in fact it has a different story than the other branches. It used to be
intergovernmental cooperation and it has been gradually included in the Treaties.
According to Art. 24 TEU, the common foreign and security policy is subject to
specific rules and procedures. No legislative measure shall be included. Most of the
European institutions cover different roles within CFSP than the ones that they have
would covered in other areas. A lot of the issues actually touch strategic concerns
falling under the competence of the European Council. Then a lot of the interested
decisions are taken by the Council in its Foreign Affairs formation (here High
Representative is chairing all the sessions). MS and the High Representative shall
put into effect the interested policies.
In addition the European Parliament and the Commission are somehow involved.
Here the Commission and EP do not cover a crucial roles, they have just to be
informed, consulted on the main aspects. The Commission does not have the right
of initiative, EP does not have the codecision right. Lastly we have the European
Court of Justice, basically excluded from CFSP even though on a number of issues
the Court has found the way to intervene, the Court is also competent to establish
the legal basis. It is the only policy context that is touched by the Treaty of the
European Union and not yet by the Treaty on the Functioning of EU. The reason
here can be found in MS position about CFSP. They wanted to cooperate and were
not ready to give more powers to EU (TFUE has a more supranational asset). The
Union’s competence in matters of common foreign and security policy shall cover
all areas of foreign policy and all questions relating to the Union’s security, including
the progressive framing of a common defense policy that might lead to a common
defense. The nature of the competence in CFSP is not specified in the treaty even
though we can confirm that is a sort of parallel competence: EU and both MS are
legitimated to act somehow. Again consistency is very important as we recognize
CFSP as a “separate’’ area. Here there’s the need to ensure the efficiency of the
activities done within the context, precluding possible contrasts with other general
frameworks.
According to Article 13 TEU the Union shall ensure the consistency, effectiveness
and continuity of its policies and actions. then Article 16(6) TEU states that the
General Affairs Council shall ensure consistency in the work of the different Council
configurations, ensuring that the Union’s action is consistent. Article 22 (3) TEU
provides that the Union shall ensure consistency between the different areas of its
external action and between these and its other policies. The Council and the
Commission, assisted by the High Representative of the Union for Foreign Affairs
and Security Policy, shall ensure that consistency and shall cooperate to that effect.
The information and consultation policy is the key element of CFSP area. Here we
have the concept of systematic cooperation which directly builds on the system of
European Political Cooperation (EPC), where it was agreed that the participating
states “undertake to inform and consult each other on any foreign policy matters of
general interest”. According to Art. 32 TEU, Member States shall inform and consult
one another within the European Council and Council on any matter of foreign and
security policy [...] on any matter of foreign and security policy of general interest.
Once they have agreed on something, MS should be loyal. Finally, according to
Article 24(3) TEU, the Member States shall support the Union’s external and
security policy in a spirit of loyalty and mutual solidarity.
As it comes to voting in CFSP Unanimity continues to form the basis for the
decisions, “except where the Treaties provide otherwise”. Sometimes qualified
majority is requested (ex. appointment of special representatives ex. art. 33 TEU).
In addition it is now possible for the Council to adopt measures by qualified majority
following a proposal submitted by the High Representative. Such proposals should,
however, follow a specific request by the European Council, in which, of course,
Member States can foreclose the use of qualified majority. Overall, however, it is
clear that any action on the part of the EU will in the end continue to depend on the
consent of its Member States.
To conclude: the image of CFSP as a purely ‘intergovernmental’ form of
international cooperation is not supported by the treaty provisions. The Court here
became more active over the years. We could conclude that is now part of EU legal
order. It is not to be seen as a common policy as common agricultural policy or
common commercial policy. The non-exclusive nature of CFSP is paramount. A
common policy that would not unconditionally replace the national policies of the
individual states, but that would only emerge where and when possible. A number
of vague notions (‘important common interests’, ‘general interest’, ‘reasons of
national policy’) allow for a large margin of appreciation on the part of the member
states. Practice reveals that most decisions have a narrow scope only, allowing for
parallel national policies. A number of CFSP features indicate serious constraints on
the member states in executing their foreign policy as well as on the EU institutions
involved.

7. Common defense and security policy

The CFSP area concerns military issues. Over the last decade, the EU has
launched over 30 civilian missions and military operations on three continents
deployed in response to crises. The Common Security and Defense Policy (CSDP)
has developed into a major policy area in EU external relations. Like CFSP, it is
formed on the basis of specific rules and procedures. By now the EU has also
become a security actor but what is meant by ‘security’? Article 24(1) TEU: The
Union’s competence in matters of common foreign and security policy shall cover
all questions relating to the Union’s security, including the progressive framing of a
common defense policy that might lead to a common defense. In addition,
according to Art. 42 (1) TEU, CDSP shall provide the Union with an operational
capacity drawing on civilian and military assets. Article 43 (1) TEU reports the so
called ‘Petersberg tasks’. In art. 42 (1) is provided that the Union may use civilian
and military missions, for peace keeping for instance. By assuming that, art. 43 lists
different tasks that may be functional to those scopes (ex. rescuing, joint
disarmament and so on). Last normative references: according to the art. 42 (2),
there’s the interest of framing a Union defense policy. Then art. 42 (7) states that
MS have the obligation to aid other members if they’re victims of armed aggression.
Here the NATO is called into question as it comes to compliance with collective
defense commitments for its members.

8. Express external competences of the EU

The express external competences of the EU are those conferred upon it by

member States in the Treaties. They are contained both in the TEU and the TFEU,
but the most of them are into the latter. Article 24 TEU provides for the CFSP, which
is separated by the other competences of external actions for some issues. CFSP
have an inter-governmental character, meaning that the member States want to
have a sort of control over the CFSP. The main actors are the European Council
and the Council. The adoption of legislative acts should be excluded from the CFSP
and the CJEU shall not have any jurisdiction over the CFSP.
The CFSP is regulated by article 25 TEU, claiming that the EU shall define the
general guidelines and should adopt three types of decision:
1) actions to be undertaken by the Union;
2) positions to be taken by the Union;
3) arrangements for the implementation of the decision referred to the two previous
decisions.
The EU shall have the jurisdiction for the adoption of international agreements
concerning the CFSP. Article 26 (1) TEU, states that the European Council shall
adopt general guidelines with regard to CFSP, while paragraph 2 states that the
Council is the real decision-making body and the High Representative shall assist
the Council while discussing about CFSP.
Common Commercial Policy: listed under title II, it concerns the commercial
relations between EU and third States. This is an exclusive competence of the EU.
Under article 207 (1,2) TFEU are listed the instruments of Common Commercial
Policy: unilateral measures (which are legislative acts) and international
agreements (trade agreements such as anti-dumping procedures).
Development cooperation, humanitarian aid: listed under title 3, they are about
assistance to developing countries.
Restrictive measures: listed under title 4, they are about economic sanctions
against third States.
Relations with International Organizations: listed under title 4. According to
article 220 TFEU and 1977 ECJ opinion, the EU can be a member of International
Organizations.

9. Implied external competences of the EU

The ECJ has established the principle of parallelism, meaning that the EU external
competence mirrors its internal competence. In 1971, the ECJ began a line of case
law which ruled that: where the Treaty granted a competence, despite the absence
of an explicit external dimension, a parallel external competence would be implied
in many circumstances.

10. EU and international agreements / Treaty-making procedure

Negotiations and conclusion of international agreements by EU has to do with the

kind of competencies that the Union has in the interested field. In areas in which we
do recognize the existence of exclusivity EU can be a party on his own but there
would be sectors falling under shared competence that would require the
conclusion of a s.c. mixed agreement, simultaneously undertaken by MS and EU.
We could also have multilateral agreements together with a further number of
parties. In mixed agreements if one of the parties does not sign or ratify the treaty it
couldn't enter into force. Ex. MS precluding the entering into force of a climate
treaty. A big issue over here.
The most common procedure for the treaty-making procedure is provided for under
article 218 (2) TFEU, which states that the key actor of the negotiation and the
conclusion of international agreements shall be the Council. The procedure thanks
to which EU does conclude international agreements is laid down in Art. 218 TFUE
and the treaty-making procedure is composed of:
1) initiation: article 218.3 TFEU provides for this phase. First, there’s a proposal
by either the Commission and the High Representative (when CFSP is
concerned it is only about the High Representative). They shall submit
recommendations to the Council that, then, adopts a decision on the opening of
the negotiations. Once that they are started the Council shall also provide for
the nominee of an ‘’Union negotiator”, generally the Commission, (High
Representative in CFSP).
2) negotiation: once the Council has appointed the Union negotiator, it shall
control its operation processes, in dealing with many third parties. Until now, the
European Parliament does not cover a crucial role but, in accordance with
paragraph 10, it shall be informed of all the steps of the treaty making
procedure.
3) 3) conclusion: according to article 218.6 TFEU, the Council shall adopt the
final decision of the conclusion of the international agreement, but, in some
specific cases, the European Parliament has to be involved (ex. association
agreements). Article 218.11 TFEU states that the Court of Justice could be
involved in the treaty making procedure: before the conclusion of international
agreements the Court may deliver an opinion, potentially hindering the
conclusion of it. The Court of Justice has also a sort of veto power through its
opinions.Then a peculiar kind of international agreement is the association one.
It is a treaty intended to create an association based on reciprocal rights and
obligation, parties would be embraced by common procedures and actions. But
we should be aware of the possible confusion that could arise in confirming that
the conclusion of an association agreement with EU confer to the other party
the membership. It is not the case. We just have a different relation that has
nothing to do with the one interplaying between proper MS and EU

11. The EU and International agreements

Article 216.2 TFEU claims that “agreements concluded by the EU are binding upon
the institutions of the Union and on its member Sates”. The CJEU has states that
the international agreements concluded by the EU are recognized as an integral
part of EU law. About the legal effects of international agreements, the CJEU has
stated that they may produce direct effect only under certain circumstances, i.e.
Van Gend en Loos criteria, but there are also political and strategic considerations
to be taken into consideration. Recently, the CJEU has begun to deny direct effect
also for other kinds of international agreements.

12. Role of the EU in international field

It has legal personality as art. 47 TEU confirms. This means that has the power to
conclude international agreements, Treaties, in the respect of division of
competencies, having the legal capacity to be a party by itself. This is a clear proof
of further limitations upon MS. That’s a crucial situation. Most of the tensions’
sources derive from this field. The mere subsistence of art. 47 was in fact unfair in
order to define the EU related tasks over there, with the consequence of a
consistent loss of MS sovereignty in international agreements conclusion and
negotiations. This is why MS decided to state, in declaration no.24 to the Lisbon
Treaty, that even if EU has legal personality, it cannot anyway go beyond its
competencies. From the legal perspective, in EU external relations, is always
important to keep in mind the clear distinction between EU and MS: both
international legal persons but in their own duties and rights. We should not
combine.

13. European external actions service

One of the solutions to ensure consistency has been found in the creation of the so
called European External Action Service based in Brussels. Its buildings is
conveniently located between Commission and Council’s structures. Very closed to
a ministry of foreign affairs of EU. EEAS is very important in creating consistency in
external relation policy. According to Art. 27.3 TEU: ‘’In fulfilling his mandate, the
High Representative shall be assisted by a European External Action Service. This
service shall work in cooperation with the diplomatic services of the Member States
The organization and functioning of the European External Action Service shall be
established by a decision of the Council.’’ EEAS has been established in 2010, it
started to functioning in 2011. It is not an institution. It is a special body.

We do also have many delegations of EU in third countries (at the moment 138)
very closed to be a sort of embassies. Another sign of originality, normally an
international organization does not have proper ambassadors. All the tasks are
comparable to what national ambassadors actually do. Here the concept of EU
seems to be closer to the one of State.

CHAPTER 10: Human Rights in the EU

1. Overview

The general principles of EU law prevail over secondary law and are at the same
level of the Treaties. While some of them derive from National legal traditions, some
others derive from International Treaties; moreover, some of them are endogenous
(i.e., elaborated by EU Institutions) and some others are exogenous. The nature of
human rights can be descrive as “universal, indivisible and inalienable”, because
they belong to every human being without any distinction, they complement and
reinforce each other because some rights derive from others and they can’t be at
disposal of their holders, because of the impossibility to waive them.
Human rights had been elaborated, in the EU context, by the European Court of
Justice over the years. From 50s to 90s there wasn't any explicit reference to them
in the Treaties. So it has been up to ECJ to come up with this new category of
rights elaborated on the basis of the primary law provisions. There is a similarity
with principles of direct effect and primacy. Even in those cases there isn’t a clear
reference in the Treaties and it was the ECJ to elaborate them in Costa and Van
Gend en Loos rulings. Here we can appreciate the Common law dimension of the
EU legal order.
Human rights first became General Principles of EU law and thanks to the
Maastricht Treaty, they were transposed from unwritten to written sources of law.
Another important normative reference is the so called Nice Charter, based on
Human Rights flow, adopted in 2001, considered as a soft law document that
acquired legally binding value thanks to the Lisbon Treaty in 2009.
As it comes to Human Rights concerns there is another system that has nothing to
do with EU: The Council of Europe, where the main judicial body is the European
Court of Human Rights that operate on a wider scheme than the European Court of
Justice (including political rights, civil rights, environmental rights, social rights and
so on).
Well, the conclusion is that the EU position about HR has to be seen in contest,
meaning that this alternative system has necessarily to be considered. First
difference: ECoHR born as a HR actor while the European Court of Justice partially
became it over the years. As a consequence the ECoHR approach is more
advanced in terms of fostering rights to individuals, more efficiently than what ECJ
actually does.
This view is confirmed by the Oliari case where the ECHR condemned Italy for not
having a law considering allowable civil unions and the adoption by Italian
authorities of such a set of provisions had been caused by that judgement.
European Court of Justice has never came up with such a decision. This contrast is
the reason behind a lot of issues. The possible clashes have to be examined in the
light of the different structures of the two organizations. EU integration should have
pushed ECJ to be more active in Human Rights field but it is, in fact, a quite
passive actor over there. Paradoxically, in the Council of Europe heterogeneity,
ECHR succeeded in adopting a decisive position.
For many year the ECJ hadn't recognized fundamental rights as one of the sources
of EU legal order and there had been a change due to the Stauder case where
ECJ confirmed that HR were General Principles of Community law and, as such,
perfectly binding upon MS, institutions and so on.
In addition, ECJ, in Internazionale Handelgesellshaft case, stated that fundamental
rights not only derives from the roots of EU law but they may be the result of
constitutional traditions of MS.
In 1974, in Nold case, the ECJ also stated that human/fundamental rights may
derive from international law.

THE CLASSIFICATION OF HUMAN RIGHTS:

a) CRITERIA: it’s common in doctrine and practice the classification regarding the
first, the second, the third and even the fourth generation of human rights. The
classification refers to a very simple criterion based on the time in which the
different human rights emerged at the international level, or based on the different
level of protection, existing rights more important and better protected than others.
The violation of these rights of particular relevance is a violation of jus cogens and
of erga omnes international obligations, according to the explanation of ICJ,
Barcelona Traction in 1970.
b) THE GENERATIONS:
• civil and political rights;
• economic, social and cultural rights;
• solidarity rights.

2. Human Rights as general principles and the role of the CJEU

Until the establishment of United Nation, the human rights regime was very weak
and based solely on domestic law. The human rights were sometimes regarded as
inherent and natural rights of human beings to be respected in all circumstances,
but with a very limited basis in positive law, in particular in written law. At that time it
was operating in international law the limit of the domestic jurisdiction of States over
their territory and the community of people therein. The application of this principle
implied an almost absolute power of the territorial State regarding the treatment of
its citizens and stateless persons. The citizens were considered as a property of the
national state, which exerted on them a right of ownership in an essentially private
law conception of the relations between the State and its citizens. The State was
therefore free, on an international point of view, to exercise any power over its
citizens, including serious violations of human rights, without the possibility for third
States to intervene in any way. National of a State could therefore be protected only
by internal rules. Among the most relevant national acts, it’s possible to refer to the
Declarations of rights of some American states (e.g. that of Virginia, 1776), the US
Constitution of 1787 and the French Declaration of the Rights of Man and Citizens
of 1789, which are generally limited to protecting International Law requested in the
past the protection of the rights belonging to the foreigners, such international
obligation partly absorbed today in human rights regime, it started from the middle
of 1600 with the conclusion of many treaties in order to avoid conflicts among
states whose citizens had different religion. Further obligations of the territorial state
are to adopt preventive and repressive measures for harmful acts against
foreigners, to respect the principle of non-discrimination and to have the possibility
to access to national justice in order to claim the violation of their civil rights and
political rights.
In the ’50s and ‘60s there was a refusal by the CJEU to consider fundamental rights
as principles of EU law and to consider them as a part of the Community’s legal
order, but this approach changed with the Stauder case. In 1969, a German Court
based in Stuttgart asked the ECJ for a preliminary ruling: an act adopted by the
Commission concerning the sale of butter at reduced prince to some individuals
under certain welfare schemes was subdued to a condition, i.e. the revelation of the
name of beneficiaries; thus the issue concerned the struggle between the right to
privacy and the right to transparency. The decision of the ECJ was that the issue
should be decided on a “flexible ground”, meaning that it’s up to National authorities
the decision concerning the revelation of the name of the beneficiaries. This can be
considered as a way to avoid a struggle between EU law and fundamental human
rights, Through this decision, the ECJ considered:
1) general principles of EU law as a part of EU legal order;
2) fundamental rights as a part of general principles of EU law.

Another leading case in the ECJ case law is the Internationale

Handelsgesellschaft case. The fact concerned the free movement of goods, in
particular, an obligation imposed by EU law concerning deposit of money and
goods in a member State before exporting those money or goods to another
member State. Briefly, the ECJ confirmed what stated under the Stauder case, but
adding to this decision a revolutionary issue: the Court identified the Constitutional
traditions of member States as a source of law.
The last leading case concerning these issue is the 1974 Nold case. The ECJ
confirmed the previous cases, but then it identified another source of EU law:
International treaties.
Member States decided to amend the legal basis of the Community law by their
choice and, in Maastricht Treaty, they have chosen to introduce those principles into
written sources. An example is art. 6 TEU:

“… [1] The Union recognizes the rights, freedoms and principles set out in the
Charter of Fundamental Rights of the European Union which shall have the same
legal value as the Treaties.
[2] The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s
competences as defined in the Treaties…”

The article contains a reference to fundamental rights as a result of international

treaties and constitutional traditions of MS. Here we can appreciate the formal
recognition of the rulings delivered by the European Court of Justice in Hand and
Nold cases. Nowadays the art. 6 also provides for a reference to the Nice Charter,
considered as a legally binding act. This happens by virtue of an amendment
ascribable to the Lisbon Treaty that gave to the Charter that value. Art. 6 contains in
addition a reference to the future accession of EU to the European Convention of
Human Rights. Despite of this the European Court of Justice has blocked the
accession.

3. Article 6 TEU, Nice Charter and the ECHR

Between the ’60s and the ‘70s there was the feeling that the human rights should
be implemented in the Treaties, there are three reasons why there was this kind of
need:
1) in order to give human rights a formal recognition;
2) for a political reason (EU is not only about common market, is more than that);
3) in order to reduce the power of judges conferred upon them by the principle of
judicial activism.
The implementation of human rights within the Treaties came with article 6 TEU,
introduced by the Maastricht Treaty (and subsequently amended by the Lisbon
Treaty).
1) paragraph 1 of this article makes a clear reference to the Nice Charter, claiming
that the Nice Charter cannot extend the competences of the EU
2) paragraph 2 states that “the Union shall accede to the European Convention for
the Protection of Human Rights and Fundamental Freedoms” (ECHR). There is a
huge problem concerning this point: the ECJ asked the Commission for an opinion
on the accession of the EU in the ECHR, and the Commission claimed that it was
impossible for the EU to accede to the ECHR. The ECJ is able to give a binding
opinion on an under-negotiation Treaty, because according to the veto power of the
ECJ concerning international agreements.
3) paragraph 3 claims that fundamental rights, which derive from the ECHR and the
Constitutional traditions of member States, shall constitute general principle of EU
law.
In order to clarify the problem of coordination and coherence between the ECJ case
law and the ECtHR case law, there are two cases on which the ECJ ruled.

McCarthy case. (ECJ not confirming specific rights for static citizens).
Ms. McCarthy was an Irish national who had always resided there without having
exercised the right of free movement and freely reside in MS territories. She had a
marriage with a Jamaican guy that was living in UK under the immigration rules. Ms
McCarthy applied for a residence permit in UK, basing the request on EU law. The
Jamaican national did the same as a spouse of a EU citizen. The requests have
been refused by British authorities and UK Supreme Court asked ECJ to solve the
issue (preliminary ruling). Here we can clearly notice the establishment of a kind of
hierarchy within the human rights context as the Court refused to avail the claims of
a lady that just wanted to exercise those rights in function of her marriage. Ms.
McCarthy did not have the possibility to rely on EU law, the concerns were purely
internal and the decisions adopted by British authorities were not precluding her
right to freely move and reside in UK. Here the Jamaican national could be
eventually sent out by national authorities despite of being the spouse of Ms.
McCarthy because the right to have a marriage is less relevant than children
protection concerned in the Zambrano case. We can consequently appreciate a
hypothetical clash with the ECoHR possible approach to the matter.
There the European Court of HR would have confirmed the right to get the
residence in U.K. for both of the interested individuals in order to preserve their
marriage. There’s no involvement of the ECoHR, even though it is possible to
notice potential clashes with an eventual ECoHR intervention . According to the
European Court of Justice a distinction has to be made as it comes to the
Citizenship status and the consequent conferral of rights: on one hand we have
static citizens, on the other there’s the s.c. dynamic dimension. Only the dynamic
citizens could count on the benefits related to that status, exercising and invoking
interested rights while those who have never traveled across shall be excluded as
they couldn’t be properly defined “european Citizens’’. A weird statement that was
consisting in a serious cause of discrimination (for instance, someone that wasn’t
able to afford the costs of moving around MS territories was in addition object of a
further limitation due to the impossibility of laying down on principles potentially
referred to broad scale of individuals but indeed protecting a part of them). This is
why the European Court of Justice changed its approach to the matter in favor of a
more opened position. Even static citizens are addressees of those rights and they
could invoke, exercise them without any difficulty. But it depends on the different
situations.

Zambrano case. (ECJ confirming specific rights for static citizens). The issue was
related to a couple of refugees who’d decided to move to EU, Belgium for instance.
The country was availing the jus soli principle in the field of national citizenship
acquirement. The couple had babies holding the Belgian nationality (as they born
there) and consequently considered EU citizens in accordance with art. 20 TFEU.
What if Belgian authorities decide to expel their parents? Here ECJ somehow
recognized the inner prevalence of family union and child protection principle over
national and EU procedures affecting migration concerns. According to ECJ,
parents count on derived right of residence thanks to the European citizenship of
their children.

N.S. case: the fact concerned some requests for preliminary rulings made to the
ECJ in order to clarify the principle stating that it’s only up to the Country of first
entrance to assess wether the applicant is able to acquire or not the refugee status.
Through the principle of mutual trust, the other member States shall not control
over the lawfulness of the request, The ECJ, ruling in this case, confirmed what this
principle stated, but ECtHR claimed that this application of the principle of mutual
trust was not in compliance with the ECHR, claiming that ECHR shall prevail over
EU law. Thus, ECJ decided to comply with ECtHR case law, ruling another time on
the same issue and claiming that actually not only the Country of first entrance of
the applicant shall have jurisdiction over the lawfulness of the asylum request, but
even a second member State in which the applicant might go shall have the
jurisdiction on its asylum request.

4. Human Rights challenges to EU action

Human rights may be “used” in various ways: one of those is using them as a legal
ground in order to challenged an EU legislation (i.e. an individual may invoke
human rights in order to ask the annulment of an EU act).
One of the most important cases concerning this issue is the Kadi case. Mr. Kadi
was a suspect terrorist who found his counts frozen according to a EU regulation
which implemented one of the UN Security Council’s resolution: if an individual is
suspected of terrorism, he/she shall be put into a blacklist, which makes his/her
funds frozen. The ECJ annulled the regulation on the basis of fundamental rights,
so, in this case there’s a sort of counter limits doctrine.

4.1 The Kadi Case

It was about an Arabian business man who saw his fund and properties blocked by
the European Union because he had been inserted into a list of persons that
somehow where connected with terrorism support. He appealed to the Court of
First Instance but he saw its argument refused because it has been noticed that the
decision regarding to hold those lists by the Security Council of UN has direct effect
inside EU legal order. But after the ECJ found out that fundamental rights had been
violated ex. right to property, right to a fair trial, but it had no jurisdiction to review
the legality of the resolutions, it could review EU regulations that had implemented
SC decisions. Here the interplay between international law and EU law is touched.
European Court of Justice responded to those issues confirming that EU law
prevails over international law when a core of fundamental rights is infringed by the
application or implementation of that system within EU legal order. Thanks to this
ECJ ruling, EU could do somehow implement in its own way by caring about
fundamental rights, ensuring that Mr. Kadi wouldn't have suffered further violations.
Protection of human rights entails violation of international law.
These statements recalls a doctrine that has been elaborated at a national level
mainly by ICC and German Constitutional Court: the counter limits doctrine. Born
as a concept to be used in the interaction between EU law and national legal
orders. Then availed by ECJ in the I.L. / EU law relation.
Once again constitutional principles arise in constituting this fundamental core of
rights that would entail a violation of international law [ph. 285 of the Judgement]. In
the explicit reference to constitutional principles we can appreciate another sign of
originality of EU legal order as something that is at the crossroad between
international law and constitutional law.

5. Human Rights challenges to member States’ action

An important issue raises in the interaction between fundamental freedoms on hand
and fundamental rights on the other. Striking a balance within the interplay of
internal market construct and HR, which concerned a dispute between a transport
company (Schmidberger) and Austria. First we can notice how the concept of
fundamental freedoms affects a single economical dimension on the legal basis of
the principle of free movement of goods capitals, services, workers, establishment
and so on: so here there’s a conflict between the right of demonstrate and the
commercialization of good. Austrian authorities gave a permission to some
individuals to organize a 30 hours-demonstrations that has been held in the
Brenner Motorway intended to cause losses to the interested company due to
environmental issues. This company claimed the infringement of its economic
freedom to import and export goods in EU before the Austrian tribunal. National
Court asked the ECJ for a preliminary ruling. Before the Austrian tribunal, the
Austrian Public Attorney claimed that the permission was in accordance with the
principle of the freedom of expression. According to the European Court of Justice,
some conditions have to be fulfilled in order to let individuals exercise the
fundamental right of demonstration despite of any legitimate concerns (object of the
protest in themselves). Through this decision, individuals are able to rely on human
rights in order to call into question National legislation.
It’s up to national authorities to legally frame the way in which those demonstrations
should take place. This ruling had been mentioned by NOTAVs in order to
legitimate what they’re doing in Val di Susa. It has also been used by national
authorities to respond to protesters to evaluate the need of respecting the law (both
national - framing - and European - import/export). Here, in Schimdberger case,
the ECJ avails an anti - populistic way of looking at EU law. It makes clear that
fundamental rights are stronger than any fundamental freedoms as long as the
States are able to legally frame somehow their exercise.
6. Agency

The agency for the protection of fundamental rights has few powers.

7. Nice Charter

It was first a soft law, political document which has received legally binding force
thanks to the Lisbon Treaty in 2009. It actually contains a set of provision that has
do to with several extents of HR flow.
“Conscious of its spiritual and moral heritage, the Union is founded on the
indivisible, universal values of human dignity, freedom, equality and solidarity; it is
based on the principles of democracy and the rule of law.’’

The art. 52 of the Charter provides for specifying the scope of the guaranteed
rights: “…[1] Any limitation on the exercise of the rights and freedoms recognized
by this Charter must be provided for by law and respect the essence of those rights
and freedoms.
[2] Those rights shall be exercised under the condition and the limits specified by
the Treaties…”

The rationale of this norm is specifying the particular nature of HR within the
context of the Union. EU is neither the European Council nor a different HR actor. In
addition, the Union could not act when there’s no competence (a further limitation).
Here the main interest is circumscribing the extent of the guaranteed right in
compliance with some other principles that characterizes EU legal order.

[52.3] Here we have a reference to the Convention for the Protection of Human
Rights and Fundamental Freedoms. When the Charter calls into question principles
already guaranteed by that Convention, EU shall provide for an equal protection, it
could eventually enforce it, but the Union is not allowed to minimize the extents
stated in the Convention in itself. The main issue is about coordination. For instance
there could be clashes between the two systems.
This is why European Court of Justice decided to block the EU accession to the
Convention because there would have been a violation of the principle of autonomy.
ECJ would loose part of its power in favor of ECoHR that could overtake the judicial
monopoly of ECJ. Here there’s a need of homogeneity. The ECJ opinion has been
delivered thanks to a request made by some EU institutions in accordance with art.
289 Ph. 11 TFUE that allows ECJ to adopt binding positions.
8. ECoHR and ECJ position

We had several cases in which the approach availed by the ECJ contrasted with
the statements pointed out by the ECoHR. Let’s start from NS case, concerning
humanitarian protection, specifically asylum. It is a ruling adopted by the European
Court of Justice in 2013. ECJ here availed the position previously stated by the
European Court of Human Rights called to solve a similar issue in 2012: the MSS
case. Here we have a problem that was actually related to procedures laid down by
EU law affecting the entrance of asylum seekers in MS territories. According to the
interested procedures there was the need of making a request in the country of first
entrance (Greece in that case). Seekers were forced to wait the results of the
application in order to travel across. Here the refugee moved to Belgium without
having fulfilled the requested conditions and he was risking to be consequently
expelled by the national authorities bound by EU law provisions about that.
According to the lawyer of the seeker, those rules were in fact unfair in terms of
guaranteeing humanitarian protection as long as Greece (country of first entrance)
had not sufficiently enforced HR flow. The European Court of Human Rights has
been called into question to solve the issue, interpreting EU law in a manner that
clashed with the previous judgements of the ECJ. According to ECoHR, EU law
could effectively compromise HR protection, it confirmed that the seeker had the
right to remain in Belgium and eventually move, even if there’s no compliance with
EU provisions. Here we can see how ECoHR overturned a decision taken by a
single MS that was just following what the Union was pretending. ECoHR
supported this thesis: the European Convention of Human Rights pursues a higher
scope in comparison with EU law norms and it has undoubtedly to prevail as long
as those concerns are touched.
In the light of MSS case, as I first said, the European Court of Justice had changed
its position.

9. El Dridi case

EU actually intervene as a human rights actor indirectly in areas where it is not

vested with those kind of powers. An example is irregular immigration. We have a
case where the ECJ, by delivering a ruling concerning irregular migration concerns,
had an enormous impact on the condition of irregular immigrants in the light of HR
extent: The El Dridi case, arose thanks to a request for preliminary ruling came out
by the Court of Appeal of Trent in 2011. Hassen El Dridi had been subject to some
criminal proceedings. He is a third country national having reached Italy. After a
certain period of time spent in prison because of trafficking he remained in the
Country as an irregular immigrant. Then he had been caught once again by the
police and this time , because of his irregularity, had been put into prison because
of the Bossi - Fini law providing for the criminalization of irregular migration. Bossi -
Fini provided for an obligation upon national authorities to put in jail irregular
persons regardless of what they’ve done. This judgment prima facie did not affected
HR protection even though indirectly that happened. In addition, because of that
judgement, Italy had to change a national law. The idea of Bossi - Fini law was to
have a stronger system to contrast the illegal migration phenomenon by using the
tool of criminal law and its consequent power of deterrence in order to dissuade
migrants to come to Italy. The claim of Mr. El Dridi was having suffered a Human
Rights violation. The Court of Appeal of Trent raised two fundamental points to ECJ:
Human Rights ground. It wouldn't be fair to put in jail irregular immigrants as a
normal criminal such as a rapist for instance. It was not fair to stay in prison for two
years without having committed a proper crime. We have to remember that in the
contemporary time we had thousands of cases like that. Some courts had
recognized the full validity of Bossi - Fini set of provisions without any doubt while
others have not availed the same position. Heterogeneity over here.
Effectiveness (Effet Utile) of EU law issue. There was a directive called returns
directive that had been providing for imposition of an obligation upon MS to fight
irregular migration. The Court of Appeal noticed that by putting in prisons the
interested persons Italy did not correctly implemented the directive due to the use
of a wrong tool (jail instead of returns). Bossi - Fini might be disproportioned in
order to reach what EU request.

[Ph. 23] That court is in doubt as to whether a criminal penalty may be imposed

during administrative procedures concerning the return of a foreign national to his
country of origin. Such a penalty seems contrary to the principle of sincere
cooperation, to the need for attainment of the objectives of Directive for ensuring
the effectiveness thereof, and also to the principle that the penalty must be
proportionate, appropriate and reasonable. Here an implicit reference to Human
Right emerges in a very clear manner. [Ph. 52] The Court of Justice made a
reference to the measures that have to be used in order to properly fight against
irregular migration. Member States of course had the rights to use criminal law in
order to dissuade migrant to reach irregularly the Country but not in that way. [Ph.
53] It should be noted, however, that, although in principle criminal legislation and
the rules of criminal procedure are matters for which the Member States are
responsible, this branch of the law may nevertheless be affected by European
Union law.

Once that EU has adopted certain directive, providing for some guidelines that has
to be followed, MS are no more free to do whatever they want. Here we can
appreciate the existence of a practical proof of the principle of preemption. Once
that EU has step in a sector, MS are fully obliged to respect some specific rules.
Italy must adjust their legislation in that area in order to ensure compliance with
European Union law because of the unfairness of Bossi - Fini law. So ECJ does not
refer to human rights yet the ultimate result is self guarding, protecting irregular
migrants even if ECJ has been focused on the effectiveness of EU law concerns.
The consequence’d been the release of thousands of migrants that got previously
jailed because of the principle of primacy that let ECJ deliver ruling that impose
obligation upon national authorities even if there’s res judicata.

CHAPTER 11: Overview of the EU judicial system

1. The Court of Justice of the European Union

According to article 13 TEU, the Court of Justice of the European Union is one of
the EU’s Institutions. Moreover, article 19 TEU provides for a general description of
the CoJ, being formed of:
1) the European Court of Justice (ECJ), which has been established under the
Treaty of Paris for the European Col and Steel Community of 1951;
2) the General Court, called “Court of First Instance” before the Lisbon Treaty;
3) the Civil Service Tribunal, which currently is the only one specialized court within
the CoJ.

2. The main functions

Article 19 TEU claims that “the CoJ shall ensure that in the interpretation and
application of the Treaties the law is observed”. It makes sure that:
a) EU law is interpreted and applied consistently across all EU member States, so
that the law is equal for every company and citizen;
b) EU member State and Institutions do what the EU law requires.
The Court performs its functions as follows:
a) interprets EU law at the request of the national courts;
b) review the legality of the acts or failures to act of the EU institutions and bodies;
c) ensures that the member States comply with their obligations under EU law.
According to article 13 TEU, the ECJ can only act where jurisdiction has been
specifically given to it by the Treaties, whilst, according to article 24 TEU the Court
has no jurisdiction in the field of the Common Foreign and Security Policy (CFSP),
but for two exceptions. It may:
1) review the legality of restrictive measures taken by the EU against natural or
legal persons (article 275 TFEU);
2) monitor the compliance with article 40 TEU as well as the respect of the powers
of EU institutions when implementing the CFSP.

3. The Court’s composition

According to article 19 TEU and articles 251-252-253 TFEU, the ECJ:

a) shall be composed of 28 judges (one judge per Member State);
b) shall be assisted by 8 Advocates-General;
c) the judges and the Advocates-General shall be appointed by joint agreement of
the member States governments for a renewable mandate of 6 years;
d) thy shall be chosen from persons whose independence is beyond doubt and
who possess the qualifications required for appointment to the highest judicial
offices in their respective countries or who are jurisconsults of recognized
competence;
e) shall sits in Chambers, which can be composed of 13 or even 15 judges, it’s
called Grand Chamber, or they can be composed of 5-to-3 judge and even only
one judge can form a Chamber; they can also sit as a Full Court.
The General Court, according to article 19 TEU and articles 254-255-256 TFEU:
a) shall be composed of 28 judges (one for each member State);
b) the judges be chosen from persons whose independence is beyond doubt and
who possess the ability required for appointment to high judicial office;
c) they shall be appointment by common accord of the governments of the
member States for a renewable term of six years;
d) shall sit in Chamber of 3 or 5 Judges or as a single judge. It may also sit as a
Grand Chamber (13 Judges) or in plenary session.
The Civil Service Tribunal, according to article 257 TFEU and Annex 1 to the
Statute of the CJEU:
a) shall be composed of 7 judges;
b) they are appointed by the Council acting unanimously for a period of 6 years,
which is renewable;
c) they shall be chosen from persons whose independence is beyond doubt and
who possess the ability for appointment to judicial office;
d) shall sit in Chambers of 3 or 5 Judges or a single judge. Its can also sit as a full
court.
The Advocates-General (AG):
a) shall assist the ECJ;
b) shall present reasoned “opinions” on cases brought before the Court. They must
do so publicly, impartially and independently;
c) the AG’s opinion constitutes the individual reasoned opinion, expressed in open
court, of a member of the Court of Justice itself, who takes part, publicity and
individually, in the process by which the Court reaches its judgment, and therefore
in carrying out the judicial function entrusted to the Court (Emesa Sugar, case
C-17/98).

4. The jurisdiction

The ECJ gives rulings in various categories of proceedings:

a) preliminary rulings procedure;
b) actions for the annulment of the EU binding acts by a member State against the
European Parliament or against the Council or brought by one EU institution
against another;
c) against for failure to act brought by a member state against the European
Parliament or against the Council or brought by one EU institution against another;
d) actions against member States for failure to fulfill their obligations under EU law;
e) appeals, limited to points of law, against the General Court’s judgments/orders.
The General Court has jurisdiction to hear and determine:
a) actions brought by natural or legal persons against EU institutions/bodies for the
annulment of their acts or for failure to act;
b) direct actions brought by Member States against the Commission or against the
Council relating to acts adopted in the field of State aid, trade protection measures
and acts by which it exercises implementing powers;
c) actions seeking compensation for damage caused by EU institutions or bodies or
their staff;
d) appeals, limited to points of law, against the decisions of the Civil Service
Tribunal.
According to article 257, specialized court attached to the General Court may be
established with jurisdiction to hear and determine at first instance certain classes
of action or proceeding brought in specific areas. The Civil Service Tribunal has
complete jurisdiction at first instance disputes between the European Union and its
servants pursuant to article 270 TFEU.

CHAPTER 12: PRELIMINARY RULINGS PROCEDURE

1. ARTICLE 267 TFEU

According to article 267 TFEU (former article 177 EEC Treaty), the CJEU shall have
jurisdiction to give preliminary rulings concerning:
a) the interpretation of the Treaties;
b) the validity and the interpretation of acts of the institutions, bodies, offices or
agencies of the Union.
Where such a question is raised before any court or tribunal of a member State,
that court or tribunal may (if it considers that a decision on the question is
necessary to enable it to five judgment) request the ECJ to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a
Member State against whose decisions there is no judicial remedy under national
law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member
State with regard to a person in custody, the Court of Justice of the European Union
shall act with the minimum delay.

2. PURPOSE OF THE PRELIMINARY RULING PROCEDURE

The preliminary ruling procedure:

a) ensures the correct and uniform interpretation and application of EU law through
a system of cooperation between the ECJ and the national Courts;
b) contributes to the achievement of the full and effective judicial protection of the
individuals versus the EU unlawful acts;
c) makes it possible to indirectly scrutinize the compatibility of national law with EU
law.

3. MAIN FEATURES OF THE PRELIMINARY RULING PROCEDURE

It is preliminary in terms of time, since the ECJ’s judgment comes before that of the
National Court, but also preliminary in terms of function, being instrumental for the
decision by the National Court on the case at stake. Moreover, it’s a Court-to-Court
procedure and it’s a non-contentious and incidental procedure.
4. OBJECT OF THE REFERENCE FOR A PRELIMINARY RULING

The ECJ has jurisdiction to give preliminary rulings concerning:

a) the interpretation of any EU law provision can be referred to the preliminary
questions concerning validity.
b) the validity of any act adopted by the EU institutions, bodies, offices or agencies
of the Union can be referred to the preliminary questions concerning validity.
The preliminary questions concerning the interpretation and/or the validity of the EU
law must be relevant for the solution of the case at stake. These questions must be
necessary to enable the National Court to give judgment. It is entirely for the
National Court to access whether the question is relevant or not. A National Court
cannot be deprived of its power to refer by the national rules as to precedent
(Rheinmuhlen-Dusseldolf, case 166/73).
The reference for a preliminary ruling cannot have as its object:
1) the validity of EU primary law provisions;
2) the validity of national law or the compatibility of national law with EU law (e.g.,
Centro Europa 7, case C-380/05)
3) the facts of the case at stake;
4) the application of the EU law to the specific case in hand;
5) hypothetical and theoretical questions.

5. THE MEANING OF COURT/TRIBUNAL

It’s a matter of EU Law, meaning that national qualification is not decisive.

The ECJ in Dorsch Consult (case C-54/96) has indicated the factors to be taken
into account to determine whether a body making a reference is a court/tribunal:
a) the body
b) it is permanent;
c) its jurisdiction is compulsory;
d) its procedure is inter partes;
e) it applies rules of law;
f) it is independent
According to the ECJ an arbitration tribunal is not a court of member States within
the meaning of article 267 TFEU where the parties are under no obligation, in law
or in fact, to refer their disputes to arbitration. Moreover, still according to the ECJ,
the role of the Procura della Repubblica in the main proceedings is not to role on an
issue in complete independence but, acting as prosecutor in the proceedings, to
submit that issue, if appropriate, for consideration by the competent judicial body.
The Procura of Repubblica cannot, therefore, be regarded as a court or tribunal
within the meaning of article 267 TFEU. The ECJ keeps deciding under the national
rules governing the “giurisdizione volontaria”, the national court which rules on an
application for confirmation of a company’s articles of association with a view to its
registration is performing a non-judicial function which, in other member States, is
entrusted to administrative authorities (Job Centre, case C-111/94).
In 2008 the use of the preliminary reference was made, for the first time, by the
Italian Constitutional Court (order no. 103/2008). This happened in the context of
principal proceeding, i.e. an action brought before the Court either by the State or
by a Region to have the legislative acts of the other reviewed in light of
constitutional rules. The thus, it is “entitled” to refer questions to the ECJ.
Subsequently, in 2013, the Italian Constitutional Court referred a question to the
ECJ in the ordinary judge to incidentally rule on the compatibility with the
Constitution of a piece of legislation that should be applied to the case at hand
(order no. 207/2013).

6. OPTION OR DURY TO MAKE A REFERENCE

According to article 267.2 TFEU, courts against whose decisions there is judicial
remedy in national law may seek a preliminary ruling (if a question or the
interpretation/validity of EU law is relevant), so there is an option to make a
reference.
Moreover, article 267.3 TFEU actually claims that courts against whose decision
there is no judicial remedy in national law shall seek a preliminary ruling, it involves
a duty to make a reference.
Lower courts, although generally subject to the second paragraph, can find
themselves subject to the third paragraph if no appeal is available in a particular
case (Costa versus ENEL, case 6/64). Decisions of a national appellate court which
can be challenged by the parties before a supreme court are not decisions of a
court of last resort (Lyckeskog case C-99/00). There are certain exceptions to the
duty for national court of last resort to make reference:
a) the preliminary question concerning the interpretation/validity of an EU law
provision is hypothetical or irrelevant (CILFIT, case 283/81);
b) the answers is clear from settled case-law of ECJ, theory of acte éclairé (Da
Costa, joint cases 28, 29 and 30/62);
c) the correct interpretation of the EU law provision concerned is so obvious as to
leave no scope for reasonable doubt, theory of acte clair (CILFIT, case 283/81;
International Transports, case C-495/03).
A national court has no power to declare an act of an EU institution or body invalid
(FotoFrost case 314/85). The ECJ has exclusive authority in this situation: a
national court whose decisions can be challenged before superior court is obliged
to make a reference if it suspect that an EU act may be invalid. In exceptional
cases, the referring court may suspend the application of the national measure
based on such act (Zuckerfabrik, joined cases C-143/88 and C-92/89).

7. MAIN CONSEQUENCES OF THE FAILURE TO REFER QUESTION

Following the failure to refer a question, there may be:

a) claims for damages at the national level (State liability claim under EU law)
(Kobler case C-224/01);
b) infringement proceedings at the Union level (article 258 TFEU) (Commission
versus Italy, case C-129/00);
c) breach of article 6 of the European Convention of Human Rights, which has to be
assessed on a case-by-case basis.

8. COOPERATION BETWEEN THE NATIONAL COURT AND THE ECJ

It’s up to the National Court:

a) to assess the relevance of the question concerning the interpretation/validity of
an EU law provision;
b) to formulate one or more questions to the ECJ (e.g. Alsatel, C-247/86)
c) to decide when to refer (e.g. Pretura di Salò, C-14/86)
The National Court has a proactive role, too.
Normally, the ECJ answers the questions submitted to it by the National Courts
(usually playing a reactive role), however sometimes the ECJ reformulates the
preliminary question so that the answer it gives is more useful to the National Court
(if necessary, the ECJ takes a more proactive approach).
The ECJ hasn’t the power to assess the invalidity of National Law, through: if it
asked to do so, it may reformulate the question and return an abstract answers in
the point of EU law involved (Costa versus Enel, C-6/64).
The National Court must enable the ECJ to give a useful ruling: it must clearly
define factual and legal circumstances in which the question arises
(Telemursicaabruzzo, joined C-320-322/90), and it cannot make a reference after
the principal issue has been decided (Pardini, C-388/85).
The ECJ doesn’t check the relevance of the reference for a preliminary ruling,
however there are three situations when such reference have been declared
inadmissible:
a) contrived dispute, i.e. hypothetical questions (Leur-Bloem, case C-28/95; Foglia
versus Novello, case 244/80);
b) manifestly irrelevance of the question (Meilicke versus ADV/ORGA, case
C-83/91; B P Superhas versus Greece, case C-62/93);
c) insufficient information about the factual and/or legal background
(Telemursicaabruzzo, joint cases C-320-322/90; La Pyramide, case C-378/93).

9. THE EFFECTS OF PRELIMINARY RULINGS

Any preliminary ruling is binding on the referring court. The interpretative

preliminary ruling is also binding on the other courts or administrations. The
preliminary ruling declaring an EU act invalid has erga omnes effect. Preliminary
ruling have a retroactive effect (Denkavit case 61/79). However, exceptionally the
ECJ may limit the temporal effects on its judgment.

10.THE SEMINAL IMPORTANCE OF THE PRELIMINARY PROCEEDING

The “milestone” judgements in EU Law have been delivered as reactions to

references for preliminary rulings, for instance, in Van Gend & Loos judgment
(1963), the ECJ introduced the principle of the direct effect of Community law in the
Member States; in Costa judgment (1964), the ECJ established the primacy (or
supremacy) of Community law over domestic law; in Francovich judgment (1991),
the ECJ formulated the principle of liability of a member State; in Marleasing
judgment (1990) the ECJ stated that even if the principle of direct effect does not
apply, national courts are required to interpret national legislation in the “light of the
wording and the purpose of the directive in order to achieve the result pursued by
it”.

11. THE GENERAL COURT AND THE PRELIMINARY RULING PROCEDURE

According to article 256.3 TFEU, the General Court shall have jurisdiction to hear
and determine questions referred for a preliminary ruling under article 267, in
specific areas laid down by the Statute. Where the General Court considers that the
case requires a decision of principle likely to affect the unity or consistency of Union
law, it may refer the case to the Court of Justice for a ruling. Decisions given by the
General Court on questions referred for a preliminary ruling may exceptionally be
subject to review by the Court of Justice, under the conditions and within the limits
laid down by the Statute, where there is a serious risk of the unity or consistency of
Union law being affected.

12.REFORM PROPOSAL

There are: proposal which seek to reduce the volume of request coming into the
ECJ, including the proposal to restrict the range of national courts with the
discretion to ask rulings; to tighten the Dorsch Consult criteria, to abolish mandatory
referral for national courts of last resort. There other proposals that seek to improve
the EU’s judicial capacity for dealing with these cases, including the proposal that
seek to improve the EU’s judicial capacity for dealing with these cases, including
the proposal to allow the ECJ to filter questions, to set up regionalized courts with
EU legal specialism.

CHAPTER 13: THE INFRINGEMENT PROCEDURE

1. ARTICLE 258 TFEU

The core article for the infringement procedure is article 258 TFEU, which claims
that: “If the Commission considers that a Member State has failed to fulfill an
obligation under the Treaties, it shall deliver a reasoned opinion on the matter after
giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down
by the Commission, the latter may bring the matter before the Court of Justice of
the European Union”.
Fist of all, the infringement procedure starts whenever a law is breached, but
actually 2 kinds of breaches exist:
a) the breach of a new EU norm: usually member States fail or are late in
implementing a directive (expiration of the deadline) or they just transpose it
within their national legal order in an incorrect method;
b) the breach of an existing EU norm.

2. The complaint procedure

Art. 258 TFUE states that if the Commission considers that a Member State has
failed to fulfill an obligation under the Treaties, it shall deliver a reasoned opinion on
the matter after giving the State concerned the opportunity to submit its
observations. If the State concerned does not comply with the opinion within the
period laid down by the Commission, the latter may bring the matter before the
Court of Justice of the European Union.
Starting from the procedure structure settled in art. 258, we do recognize the
existence of different stages. The first important step is the so called pre-
contentious procedure. The Commission could either activate the process on the
basis of its initiative or react to complaints pointed out by private parties (private
organizations, companies, associations of general interest and so on) by
investigating on the issues and eventually deciding to act against the infringer. Here
we do not have any involvement of the European Court of Justice. Very often it
affects lacks (ex ante, originally) of implementation or incorrect implementation of a
directive. Within the pre contentious procedure we do have Commission exercising
its power of initiative.
Once that the European Commission has decided to take the appropriate actions
against the infringer, we have the so called early settlement where all the
interested MS (addressees of the procedure, potential infringers) have the chance
to explain their position by relying on further factual or legal evidences. Informal
dialogue.
If the European Commission has been convinced by the Member State explanation,
it may decide to accomodate the issue or eventually withdraw from investigations.
But in practical terms an ending up of the procedure to the early settlement stage is
particularly rare as the Commission could hardly be satisfied by irrelevancies or not
sufficiently appreciable informations conferred by MS most of the times.
After the early settlement, the proper formal procedure takes place. The
European Commission send to the supposed infringer/MS the s.c. letter of formal
notice which is the result of tasks referred to the Directorate General considered
competent for the touched matter. National authorities can actually count on a
certain period of time to reply, normally settled in two months (less in case of
urgency). In addition the European Commission has one year to close the case or
further proceed.
If the State does not react in that period, a different proceeding may begin pursuant
to Art. 4.3 TEU. It is a sort of parallel procedure determined by the principle of
loyal cooperation. MS have to sincerely cooperate with the European Institutions
in this way being precluded from not replying without any effective consequence.
“Pursuant to the principle of sincere cooperation, the Union and the Member States
shall, in full mutual respect, assist each other in carrying out tasks which flow from
the Treaties.’’
In case of an unsatisfactory reply or non compliance with the letter of formal
notice, Commission states reasons why it believes the State has breached EU law
by means of a detailed reasoned opinion and the setting of the time limit. Reasoned
opinion is actually different than the letter of formal notice as it’s (reasoned opinion)
much more detailed and intrusive than the second one.

Then we have the contentious procedure - eventual stage - it is the outcome of the
joint application of art. 258 and 260 TFUE. If there’s no reply or unsatisfactory reply
by the MS to the reasoned opinion, the Commission asks the Court of Justice to
open a judicial procedure (litigation) through a referral of the case. The CJ
involvement is very rare because of the fact that States are intentioned to avoid the
risk of consistent (financial) sanctions. Here we can underline another relevant
difference between EU law and International Law: in I.L. system we do not have
effective consequences to a violation of a certain provision, there’s no private
enforcement (as it is proofed by the functioning of international courts, for instance)
or public enforcement as it comes to the absence of an effective institutional
framework that could guarantee what European Union does.

The European Commission has a wide discretion to asses wether there are legal
grounds to refer the case to ECJ. In the meanwhile, if the State complies, the
procedure goes on anyway. Here MS have to be fast, they cannot accomplish their
tasks into an unfair amount of time without incurring into any sanction. After an
average of 2 years, the CJ decides whether there has been a breach (the Court just
verify the breach existence, there’s no imposition at this stage). MS are responsible
for the adoption of the necessary measures to solve the issues. If the State does
not comply another letter of formal notice is sent to national authorities by the
Commission. In case of absent answer or unsatisfactory answer, the Commission
goes before the CJ and asks for lump sum or penalty measure.

Here the Court delivers a binding ruling that actually imposes a sanction and is not
merely declaratory (as in the firs stage). A penalty is grounded on factual
parameters, should be much more motivated, while the lump sum measure is fixed
by the Court regardless of what the State did. These financial sanctions are a sort
of deterrence, quite consistent, not symbolic. Here some conditions have to be
fulfilled in order to fix those tools against a MS: seriousness of the infringement/ its
duration / need to secure that the penalty is a deterrent to further infringements.

3. Article 559 TFEU

Looking at article 259 TFEU, it can seem to be redundant being compared to article
258 TFEU, but it finds its historic roots in the fact that also the Member States are
“the guardians of the Treaties”, so this article can be seen as a way in which the
intergovernmental character of the Commission is balanced.
Paragraph 2 claims that a Member States, before bringing the action against
another Member State for an alleged infringement of an EU norm, shall bring the
matter before the Commission. After paragraph 2 of the article 259 TFEU, it brings
the same proceeding listed under article 258 TFEU. Now, if the point three of the
complaint proceeding is reached (i.e. the case brought before the ECJ), it brings
the proceeding before the ECJ, which shall comprise the following phases:
1. the written phases: the parties make the presentation of the defense
memories. There may be several presentations of the defense memories and
the Court shall discuss each memory. Once the Court has discussed all the
defense memories, the “juge rapporteur” shall prepare a preliminary report,
which covers an analysis of the evaluation on the cases.
2. the oral hearings: is held always in Luxembourg and it’s quite formal session
with the Court sitting. In front of the Court there are two desks: one for the
defendant (MS) and one for the Commission (there are also accredited lawyers)
Here there is a question session between the two parties and the Court. The
used language is just of procedure and it is established at the beginning. The
most used language among judges is French;
3. the final discussion: the Court meets and holds the final discussion on the
issue at stake. After the discussion, and not always on the basis of the precise
conclusion made previously, the juge rapporteur must prepare a preliminary
draft or judgment. Once he/she had done it, it is sent to the other judges of the
Chamber. After some weeks, a meeting is organized. At the end of the meeting,
the President calls for a vote: the vote is perceived by the judge as a freedom
expression. The dissenting vote is not made public. The vote is usually on the
preliminary draft made by the juge rapporteur, so it isn’t the very end of the
decision-making proceeding. The juge rapporteur can be asked to modify or
amend the preliminary draft. The final draft is rarely discusses in another
meeting and the judges decided through the consensus way. After it, there is a
linguistic revision of the judgement, because the preliminary draft and the final
 draft are prepared in French, so there is the translation of the judgement in all
the languages of the EU.

The normal timing for the judgment within the Court is one and a half or two years,
while within the General Court the length of a judgment is longer because the
General Court decides on the facts. Judgment which are made in accordance with
articles 258 or 259 TFEU are the last instance judgment, thus they cannot be
appealed.

CHAPTER 14: ACTIONS FOR ANNULMENT OF EU ACTS

1. THE MAIN FUNCTIONS

The core article for annulment is article 263 (1) TFEU, which claims that:

“The Court of Justice of the European Union shall review the legality of legislative
acts, of acts of the Council, of the Commission and of the European Central Bank,
other than recommendations and opinions, and of acts of the European Parliament
and of the European Council intended to produce legal effects vis-à-vis third
parties. It shall also review the legality of acts of bodies, offices or agencies of the
Union intended to produce legal effects vis-à-vis third parties.”

The procedure has two main functions:

1) it provides a means of controlling the legality of binding acts of EU
institutions and other bodies;
2) it offers a form of legal protection to those who are subject to the EU
binding acts and who are adversely affected by acts that are illegal.

2. THE REQUIREMENTS

An action for annulment can be brought before the Court of Justice of EU if certain
requirements are met. Such requirements concern:
1) the acts which can be reviewed;
2) the identity of those who may bring an action (so-called “locus standi”);
3) the grounds for annulment;
4) the time limit for bringing an action.

3. THE REVIEWABLE ACTS

According to the article 263 TFEU these acts are reviewable:
a) legislative acts;
b) acts of the Council, of the Commission and of the European Central Bank (ECB)
other than recommendations and opinions;
c) acts adopted by the European Parliament (EP) and the European Council
intended to produce legal effects with regards to third parties;
d) acts of bodies, offices or agencies of EU intended to produce legal effects vis-à-
vis third parties.

Moreover, there are some elements to be taken into account in order to verify if an
act is reviewable according to article 263 TFEU:
1) the author of the act: the act must must be adopted by the EU
institutions or other bodies;
2) the nature of the act: the act must produce legal effects towards third
parties.
According to the first theory, we can say that Treaties, Protocols and Annexes
attached to them as well as the Charter of Charter of Fundamental Rights of the EU
are not reviewable by the European Court of Justice of the EU; moreover, even a
national measure adopted pursuant to an EU act is not reviewable; the same will be
said concerning an act adopted by Member States within the Council, but outside
its competence as an EU institution; even international agreements concluded
between the EU and third Countries are not reviewable under article 263 TFEU.
Finally, the acts adopted by the EU institutions regarding the conclusion or
application of the aforesaid agreements are reviewable (if they produce legal
effects).

Moreover, according to the second theory, the ECJ has held that not only acts listed
under article 288 TFEU, but also any act which has binding legal effects, whatever
its nature and form, (Case 22/70, European Road Transport Agreement).
An act produces binding legal effects when it adversely affects the interest of a third
party by worsening the third party's legal position.

In the ECJ case law, there are some acts which are not reviewable at all under
article 263 TFEU:
a) all acts which only confirm an existing situation;
b) all preparatory acts of the EU institutions;
c) all internal measures adopted by EU institutions and bodies;
d) all acts which set up a policy of the EU in a specific subject area;
e) all acts which are highly discretionary (e.g., a decision by the Commission to
refuse to start an infringement produce against a Member State).

Under article 276 TFEU, the ECJ may not review the following measures adopted
by Member States in the Area of freedom, security and justice:
1) the validity or proportionality of operations carried out by the police or
other law-enforcement services of a Member State;
2) or the exercise of the responsibilities incumbent upon Member States
with regard to the maintenance of law and order and the safeguarding of internal
security.

Under article 24 TEU the ECJ may not review the legality of the acts adopted by the
EU institutions by virtue of the Treaty provision concerning the Common foreign and
security policy, but there are just two exceptions:
1) the ECJ can monitor compliance with article 40 TEU (the
implementation of the common foreign and security policy shall not affect the
application of the procedures and the extent of the powers of the institutions […]);
2) the legality of decisions providing for restrictive measures against
natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V
of the Treaty on European Union (article 275 TFEU).

4. The locus standi of the applicant

According to article 263 TFEU there are three groups of applicants enjoying
different locus standi:
a) the privileged applicants: the Council, the EP, the Commission and the member
States may challenged any reviewable acts without having to show a specific
interest in doing so;
b) the semi-privileged applicants: the Court of Auditors, the ECB and the Committee
of Regions can challenge those EU acts which encroach on their prerogatives;
c) the non privileged applicants: nature and legal persons can challenge the EU
decisions addressed to them. They can contest other legal acts if certain
requirements are met.

Talking about the privileged applicants, the EP was initially denied locus standi.
However, in case C-70/88, Chernobyl, the ECJ held that the EP was entitled to
challenge the legal acts which adversely affected its prerogatives. According to the
ECJ, this was necessary to safeguard the institutional balance under the Treaty.
The EP formally acquired the status of a semi-privileged applicant under the Treaty
of Maastricht and finally became a privileged applicant under the Treaty of Lisbon.
The current status of the EP is well justified given that it has become a co-legislator
and the fact it is the only directly elected body of the EU.
The EU bodies and agencies are not listed among the applicants, they might be
considered as semi or non-privileged applicants by the ECJ.

Moreover, talking about the non-privileged applicants, any natural or legal person
can bring an action if they have an interest to act and one of the following
circumstances is present:
a) the applicant is the addressee of the act;
b) the act is of direct and individual concern to the applicant;
c) there is a regulatory act which is of direct concern to the applicant and doesn’t
need implementing measures.
Interest to act: non-privileged applicants are required to show that the contested act
has adversely affected their rights under EU law. There must be an immediate
casual link between the EU act and the violation of the applicant’s right. Direct
concern is also met if the EU act leaves no discretion to member State as to its
implementation or the possibility for the member State not to implement it is purely
theoretical.
a) decision addressed to the applicant: if the contested act is a decision
addressed to the applicant there is no problem in demonstrating locus standi;
b) act of direct and individual concern: if a non-privileged applicant challenges a
decision which is addressed to another person or an act of general application, it’s
necessary to prove direct and individual concern. By the way, a measure is of direct
concern if it affects directly the legal situation of applicant and leaves no discretion
to the addresses of the measures who are entrusted with its implementation. This
implementation must be automatic and result from EU rules without the application
of other intermediate rules. It must be examined whether there was any discretion
on the part of member State, between the decision and the applicant (C. 41-44/70,
NV International Fruit Company). A measure is of individual concern if the legal act
in which it is contained affect their position by reason of certain attributes peculiar to
them, or by reason of a factual situation which differentiates them from all other
persons and distinguishes them individually in the same way as the addressee (this
is Plaumann formula). The applicant is required to belong a “closed class”: the
contested act must be in its essence a decision addressed to the applicant. The
definition of “individual concern” in Plaumann is very narrow, therefore it has always
been very difficult for a natural and legal person to prove to be individually
concerned by an EU act not addressed to them, especially if the contested act is of
general application. The Plaumann test is satisfied if the contested regulation is not
a measure of general application, but a “bundle of individual decisions’ affecting a
close and definable group of persons which were know to, or identifiable by the
institution that has adopted the act. The restricted locus standi of individuals has
raised concerns with regard to the effective judicial protection that should be
granted to individuals in the EU law. The right to an effective judicial remedy is a
general principle of law which underlies the constitutional traditions common to the
member States, and is also laid down in articles 6 and 13 of the European
Convention for the protection of Human Rights and Fundamental Freedoms. In a
few cases, the ECJ has held that even if the contested act is a “true” regulation
(i.e., an act whose provisions are addressed in abstract terms to undefined classes
of person and apply to objectively determined situations) an individual may
nevertheless be individually concerned by it.
c) regulatory act of direct concern, not needing implementing measures: the
member States modified the conditions of locus standi in the Treaty of Lisbon.
Indeed, article 263.4 TFEU enables private applicants to challenge regulatory acts
even if they are not individually concerned. The private applicant only has to show
direct concern. The individual concern is no more required. By the way, no definition
of regulatory act is given under the Treaties, but there are two different
interpretations to be possibly made:
1) “regulatory act” means “any act of general application, including the legislative
acts”;
2) “regulatory act” stands for “all acts of general application apart from legislative
acts”;
According to the ECJ case law, the second theory is preferred. The conditions for
new standing rule to apply are:
a) the act must be of general application, then the act must have been adopted by a
non-legislative procedure (e.g. delegated or implementing at or an act adopted
following a sui generis procedure);
b) the act must not need any implementing measure.

5. The grounds for annulment

Under article 263 TFEU, the grounds for annulment of EU legal acts are:
1) lack of competence: EU institutions and other bodies have only the powers
conferred upon them by the Treaties. It’s possible to identify lack of competence
when an institution (or other body) exercises a power that isn’t conferred upon it by
EU law or it invades the power given to another institution (or other body);
2) infringement of an essential procedural requirement: it occurs when an EU
institution or body fails to comply with mandatory procedural requirement in the
adoption of an act. The procedural requirements in relation to the preparation of
measure or respect of the form by which the measure is created.
3) infringement of the Treaties or any rule of law relating to their application: it
deals with not only with infringements of provisions of the Treaties, but of all
sources of EU law, including the general principles of EU law formulated by the
case law of the EU Courts.
4) misuse of powers: it refers to the situation where an institution (or other body)
uses its power for an objective that is contrary to those for which the power was
granted. It includes any illegitimate use of power. It’s quite difficult for an applicant
to prove this ground for annulment.

6. The time limit

The time limit for bringing an action for annulment is two months and begins to run
from the data of the publication of an act in the Official Journal or from the
notification to the applicant or from the day when the act comes to the knowledge of
the applicant, as the case may be.

7. The effects of annulment

According to article 264: “If the action is well founded, the Court of Justice of the
European Union shall declare the act concerned to be void. However, the Court
shall, if it considers this necessary, state which of the effects of the act which it has
declared void shall be considered as definitive”.

If the action for annulment is well-grounded, the act is declared void by the EU
Court. If the act is declared void by the ECJ, the act is immediately devoid of any
legal effects as if it never in fact existed.
If the act is declared void by the General Court, the act is void from the expiry of the
time limit for appeal, or from the time the appeal was rejected. Any person shall no
more apply the act that has been declared void. By the way, the Court may decide
that some or even all of provisions contained in the “annulled” act must continue to
produce effects. Such limitation of the retroactive effects of a decision of annulment
can be justified by the need for legal certainty or to protect legitimate expectation or
by the opportunity to suspend the effects of annulment until the competent EU
institution adopts an act which will amend or replace the one struck down.
According to article 266 (1) TFEU: “the institution whose act has been declared void
or whose failure to act has been declared contrary to the Treaties shall be required
to take the necessary measures to comply with the judgment of the Court of Justice
of the European Union”.
It’s up to the institutions (or other body) that has adopted the “annulled” act to
definitely remove or replace or amend the act. Other measures can also be
necessary to comply with the Court’s judgment (e.g., the abrogation or modification
of the measures based on the “annulled act”).

CHAPTER 15: Failure to act

1. Article 265 TFEU

The core article for this action (i.e. failure to act) is article 265 TFEU, which claims
that: “should the European Parliament, the European Council, the Council, the
Commission or the European Central Bank, in infringement of the Treaties, fail to
act, the Member States and the other institutions of the Union may bring an action
before the Court of Justice of the European Union to have the infringement
established. This Article shall apply, under the same conditions, to bodies, offices
and agencies of the Union which fail to act. The action shall be admissible only if
the institution, body, office or agency concerned has first been called upon to act. If,
within two months of being so called upon, the institution, body, office or agency
concerned has not defined its position, the action may be brought within a further
period of two months. Any natural or legal person may, under the conditions laid
down in the preceding paragraphs, complain to the Court that an institution, body,
office or agency of the Union has failed to address to that person any act other than
a recommendation or an opinion.”

2. The proceeding

First of all, the requirements which must exist in order to legally propose a failure-
to.act action (according to article 265 TFEU) are:
1) the existence of an obligation to act coming from the EU law toward an
institution;
2) the violation of the above mentioned obligation to act.
(Being necessary the existence of an obligation to act, it shall be excluded the
application of article 265 TFEU against the violation of the obligation to act when
the Treaties allow that is up to the discretion of the institutions whether acting or
not).

The violation of the above mentioned obligation to act is able of being presented if:
a) institutions, organs or other EU bodies concerned in the violation have been
called upon to act;
b) the term of two months since the above mentioned request is expired without
the institution concerned having defined its position.
If one of these conditions isn’t respected, te failure-to-act action isn’t admissible.
Now, if the institution concerned doesn’t take its position within the two months
term, the complainant is able of presenting the action before the ECJ within the
same time limit.
The subject against which is possible to perform this kind of action are the
European Parliament, the Commission, the Council, the European Council and the
European Central Bank, together with the other offices and agencies of the EU.
The subjects which can perform the action against the above mentioned subjects
are divided into two categories:
a) privileged applicants: member States and other institutions;
b) non-privileged applicants: natural and legal persons directly involved in the
inaction of the subjects concerned.
If the complaint is accepted by the ECJ, the Court will emanate a judgment through
which the institution will be compulsorily forced to act in the way in which it did not.

CHAPTER 16: Plea of illegality

1. Legal basis and article 277 TFEU

According to article 277 TFEU: “notwithstanding the expiry of the period laid down
in article 263 (6), any party may, in proceedings in which an act of general
application adopted by an institution, body, office or agency of the Union is at issue,
plead the grounds specified in article 263 (2), in order to invoke before the Court of
Justice of the European Union the inapplicability of that act”. In the course of
proceedings initiated for a different reason, an individual may wish to call into
question the legality of the some other measure, e.g. the applicant may challenge a
decision which the decision is based.
2. The function of the procedure

The illegal acts or omissions of the institutions can be subject to both direct and
indirect judicial review by the ECJ. The action for annulment provided in article 263
TFEU and the action for a failure to act in article 265 TFEU are specific direct
actions that can be used, respectively, to directly contest the legality of the act and
of the omissions of the EU institutions. The legality of EU measures can be
controlled indirectly through preliminary references on validity under article 267
TEU or through the plea of illegality under article 277 TFEU. Indirect challenge
occurs when a party cannot directly claim the illegality of an EU act before the
European Courts, but instead contest the legality of the EU act in the course of a
proceeding concerning a measure based on such act.
The preliminary ruling on the validity of an EU act can be requested by a national
court in a proceeding pending before it. Thus, private parties may challenge the
national measure implementing an EU act before the national court on the ground
that the underlying EU act is illegal and this may trigger a preliminary reference on
validity to the ECJ. Talking about the plea of illegality, a European Court can be
request by one of the parties to review the legality of an EU general act constitutes
the basis of the act directly challenged before the Court. Any party may challenge a
general act that constitutes the basis of another act which is the subject of a
proceeding before a European Court. The plea of illegality complements the action
for annulment under article 263 TFEU likewise the preliminary ruling procedure.
Private parties that can’t directly challenge a normative act due to the restrictive
conditions required by article 263.4 TFEU have the chance to plead the illegality of
the normative act in proceedings concerning the illegality of individual measures
based on the normative act.

3. The reviewable acts

The acts that can be reviewed under article 277 TFEU must have binding legal
effect vis-à-vis third parties. They must also be of general application and they may
be either legislative or non-legislative acts. Therefore private applicants that cannot
challenge legislative acts under article 263 TFEU may challenge these acts by
means of a plea of illegality. Legislative acts normally require some EU
implementing measures or delegate power to the Commission to adopt further
measures. In these cases, private applicants may use pending proceedings against
EU implementing or delegated acts to plea the illegality of the underlying legislative
act.
4. The applicants

According to the ECJ, an individual who hasn’t challenged an act addressed to him
within the time-limit for bringing the action for annulment may not rely on the plea of
illegality. An individual who undoubtedly has a right of action before the General
Court to seek the annulment of an EU act, but who didn’t exercise that right, cannot
subsequently plead the invalidity of that act before a national court in order to
convince the latter to request for a preliminary ruling.
The ECJ held that: “ a member State may challenge the legality of a regulation
against which it hasn’t brought an action for annulment before the expiry of the
time-limits laid down of article 263 (5) TFEU”, although member State have an
unlimited locus standi rights to bring an action for annulment.
The ECJ held that an EU institution may challenge the legality of a regulation
against which it hasn’t brought an action for annulment before the expiry of the
time-limits laid down of article 263 (5) TFEU.

5. The grounds for the annulment

The grounds for a plea of illegality are the same as for an action for annulment
under article 263 TFEU:
a) lack of competence;
b) infringement of an essential procedural requirement;
c) infringement of the Treaty or any rule of law relating to its application;
d) misuse of power.

6. The effects of a successful plea of illegality

If the plea of illegality is well-founded, the general act is declared inapplicable only
to the applicant’s case. The incidental declaration of inapplicability of the general
act has effects inter partes only.
On the other hand, the individual act is annulled due to illegality of its legal basis.
The declaration of invalidity of the individual act has effects not just inter partes but
also erga omnes.

CHAPTER 17: JUDICIAL SYSTEM AND ROLE OF CJEU

1.
The legal basis concerning the judicial system are part of the TEU and TFEU set of
provisions. The Treaty of the European Union has two specific norms related to the
European Court of Justice: art. 13, art. 19. Art. 13: the European Court of Justice in
itself. It covers a different role than the other institutional bodies by owning the
judicial power. It was there from the very beginning of the Treaties, even before,
alongside the existence of the ECSC. According to paragraph 2 of art. 13, the
Institutions shall act within the limits of the powers conferred to them in the Treaties.
This means that the Court is very keen in looking at the limits of its own jurisdiction.
Art. 19 Ph. 1 states that The Court of Justice of the European Union shall include
the Court of Justice, the General Court and specialized courts. It shall ensure that
in the interpretation and application of the Treaties the law is observed. The Court
of Justice is the highest branch, underneath we have the General Court that used
to be the so called Court of First Instance. The Lisbon Treaty brought this change.
ECJ in its whole has the duty to ensure a coherent interpretation and a correct
application of EU law.

Member States shall provide remedies sufficient to ensure effective legal protection
in the fields covered by Union law. Member States have to cooperate in order to
implement ECJ decision within the national legal system.
The judicial system of the European Union is definitely not similar to the federalist
one that US actually has. There the first thing that we can notice is the subsistence
of a high number of Courts, based on a distribution of first degrees tribunals
throughout the States. According to art. 19, here we have just two bodies and we
do not have a proper decentralized structure. MS courts are not comparable to US
districts even though they are bound somehow to interpret and apply EU law in a
consistent way, having regards of uniformity and so complying with the guidelines
laid down by Luxembourg

The Court of Justice shall consist of one judge from each Member State. It shall be
assisted by Advocates-General. The General Court shall include at least one judge
per Member State. So the Court of Justice currently consist of 28 members while
the General Court is composed by 56 of them as the reform doubled the previous
amount. We have 11 Advocates - General and here the smaller Countries count on
a rotation system. The Judges and the Advocates-General of the Court of Justice
and the Judges of the General Court shall be chosen from persons whose
independence is beyond doubt. They shall be appointed by common accord of the
governments of the Member States for six years. Retiring Judges and Advocates-
General may be reappointed.
According to art. 255 TFEU, a panel shall be set up in order to give an opinion on
candidates' suitability to perform the duties of Judge and Advocate-General of the
Court of Justice and the General Court before the governments of the Member
States make the appointments. So these expert will assess whether the candidate
are suitable to efficiently accomplish those functions. The proceedings are
completely closed. We don’t even know who has been selected by the MS, if he/
she has eventually failed. There’s no transparency on that.

The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal
person. It is Art. 263 TFEU procedure - Annulment
(b) give preliminary rulings, at the request of courts or tribunals of the Member
States, on the interpretation of Union law or the validity of acts adopted by the
institutions;
(c) rule in other cases provided for in the Treaties.

ECJ has different main characteristics.

1. Multilingualism: There are 24 official languages of the European Union that can
be the language of a case. Most of the Court budget goes to translations, we have
whole offices that are enrolled to carry out this huge task. This had to do with a view
of dissemination in all Member States. Is actually possible to plea to the ECJ in
every language in the light of a broader access to litigants. Despite of this, the
working language remain French. The opinions of Advocates General are not
translated in every language, only few of them, but they can work in their own
language.
2. Frequent changes of structure: The Judges have a six year mandate but
there’s a partial renewal of the Court members every three years, including the
President. 3. Supranational: Another important feature consist in the idea of
jurisdiction referred to ECJ. The corner stone of its functioning consist in the
preliminary ruling request - art. 267 TFEU. It allows the European Court of Justice
to have a broad jurisdiction by recognizing to national courts the possibility to refer
the case to the Court of Justice as long as EU provisions concerns are touched (ex.
how to interpret a norm of the Treaties). A national judge could also be convinced of
the fact that would be unnecessary the intervention of ECJ, deciding to solve the
issue on his own. In the cases in which reference has been made the Court of
Justice will hand down a judgement that has two fundamental functions: a) Solve
the case at stake thanks to a general interpretation of EU law. b) Give a common
criteria of interpretation before the entire system of EU law. When the Court of
Justice respond to a ruling we have erga omnes consequences. Then we have
direct cases from or against Member states (infringement proceedings -
Commission plea for MS violation of EU law. Here the Commission could be
considered as an executive agent) or cases lodged by individuals and entities from
member states but even beyond.
4. No cost: It is completely supported by the European Budget. 5. How the work of
the Court is actually supported? First we have a lot of comments that become part
of the case law, creating the so called dossier de procedure or dockets. Each case
has its own docket consisting in ex. parties files, witness documents and even
newspaper clips sometimes had been reported, mentioned. Nowadays it is possible
to find in the general archive the documentation concerning every case that has
been touched by the Court. 6. We have a Chamber division of the Court. Each of
the judges will have a role within the interested chambers. They work in close
contacts with a staff of 3 or 4 référendaire (there’s no limit of duration concerning
this role - in America it is possible to be a référendaire for one year only).
ECJ has different limits and constraints. First there’s the impossibility to select
litigation with a consequent lack of control over the workload. Then there are
concerns related to the rules on fair trial: the art 47, second paragraph , of the
Charter of Fundamental Rights of the European Union states that everyone has the
right to have his case heard fairly, publicly and within a reasonable time by an
independent and impartial tribunal.
For instance, the request for preliminary ruling procedure oftentimes takes two
years. In the light of art. 47, there would be a consistent problem as long as it could
be difficult for the national judges to deliver a solution in reasonable time - a certain
amount of time has already passed form the beginning to the reference, then two
additional years have to be waited and lastly the national judges could return on the
discussed issues. By assuming this, one of the main idea of the reform was allow
the judges to be speedier, faster and also give a bigger number of cases to the
Court in order to properly attribute to it a role vey much similar to the one covered
by the Courts of Appeal. The Court should have another way in order to work in
time. Indeed each Tuesdays the Court meets in Luxembourg, also the President is
there and they assign the cases to the Chambers.

The Court can sit in plenary session, as a Grand Chamber of fifteen judges
(including the president and vice-president), or in chambers of three or five judges.
Plenary sittings are now very rare, and the court mostly sits in chambers of three or
five judges. It depends on the allocation of the importance related to the case at
hand. An important role is covered by the so called reporting judge, the one that
can tear the discussion to a certain direction and will then get the comments on the
case by all the others but he/she would be entitled to draft the first relevances then
adding all the necessary edits after the deliberation. The deliberation of the Court is
completely secret. The main reason is precluding a strong link between MS and
judges in order to protect their independence.
So the Court has a President. He/she is appointed with a term of three years not
renewable. Since 2012 we also have a Vice President (currently Antonio Tizzano).
Within the 11 Advocates - General we do have the s.c. first Advocate - General that
actually on the Tuesdays meetings decides wether the cases deserve an AG
intervention in concordance with the President of the Court but also he/she decides
on the proper assignment (who is going to be involved).

The competencies of the Court of Justice: 1. Action of annulment on decisions

adopted by other EU institutions. A basic judicial review power that the Court has to
annul partially or entirely the EU legislation. The interested norm or set of provisions
can be challenged within 60 days. The Court of Justice can also decide as it is the
appeal organ considering the General Court statements.The Court, mostly thanks
to the preliminary ruling procedure, is responsible for clarifying interpretation of EU
law concerns. The Court deliberates also on the validity of EU institutions acts.
Additional functions assigned to it by the EU Treaties. For instance preliminary
opinions given before the international agreements are signed (art. 289 Ph. 11
TFEU and ECHR concerns).
Then we have the General Court, established in 1989. As from 1 December 2009,
(Treaty of Lisbon) new denomination (no more Court of First Instance).
It has the Jurisdiction to hear:
a) direct actions brought by natural or legal persons against acts of the institutions,
bodies, offices or agencies of the European Union (which are addressed to them or
are of direct and individual concern to them) and against regulatory acts (which
concern them directly and which do not entail implementing measures) or against a
failure to act on the part of those institutions, bodies, offices or agencies; for
example, a case brought by a company against a Commission decision imposing a
fine on that company;
b) Actions brought by the Member States against the Commission or the Council
relating to acts adopted in the field of State aid, ‘dumping' and acts by which it
exercises implementing powers; Actions seeking compensation for damage caused
by the institutions of the European Union or their staff;
c) Actions based on contracts made by the European Union which expressly give
jurisdiction to the General Court;
d) Actions relating to Community trade marks; Appeals, limited to points of law,
against the decisions of the European Union Civil Service Tribunal (even if it has
been elided thanks to the Lisbon Treaty we still have some pending cases); Actions
brought against decisions of the Community Plant Variety Office or of the European
Chemicals Agency.
The rulings made by the General Court may, within two months, be subject to an
appeal, limited to points of law, to the Court of Justice.

ECJ does accomplish several important functions. It makes sure that EU law is
interpreted and applied consistently across all EU Member States, so that the law is
equal for every company and citizen. Then EU Member States and Institutions (or
bodies) do what EU law requires. It performs its functions as follows: Interprets EU
law at the request of the national courts. Preliminary references procedure;
Reviews the legality of the acts or failures to act of the EU institutions and bodies. It
ensure that EU institutions act in compliance with the Treaties and the Principles of
the Union legal order; Ensures that the Member States comply with their obligations
under EU law. Ex. infringement proceeding and incorrect implementation. We do
have several cases in which this actually happens. Someone could mention the
existence of MS bad faith but in fact those pathologic concerns are linked with
something else: ex. difficulty in national legislative bodies to implement EU
directives as they may be contested in the interested guidelines.

The Court counts on a number of procedures: 1. The Annulment procedure affects

binding acts on the basis of actions brought by MS against the EU institutions or
eventually brought by an EU institution against another for a plea of illegality. There
are applicants that have the immediate right to challenge these acts within 60 days.
Privileged applicants as they do not have to demonstrate anything. Why 60 days?
Well, this has to do with the structure of French Council of State that influenced the
makings of this procedure. The other group of applicants that could rely on this
procedure is coinciding with a non privileged category. We’re talking about
individuals, both natural and legal persons. They have to raise the interested
concerns to the attention of the Court. They have to be individually. specifically
touched.
This choice has the rationale to limit the access to ECJ in order to preclude
possible paralysis of EU legislation process. According to some that’s not fair. There
should be a broader avenue as it comes to the possible access of individuals (as
Advocate General Jacobs thought); Actions for failure to act brought by a MS
against the EU institutions or brought by one institution against another;
Enforcement actions against MS brought by the Commission for failure to fulfill their
obligations under EU law. The Commission has to inform MS about an issue of non
compliance in the reference of some EU policy. After having informed MS, the
Commission, where it is necessary, could bring the case before the Court. The
Commission, after Maastricht has an additional power: in case of contrasts with
ECJ ruling, it could lead a second action against the MS asking for monetary
sanctions; Appeals, limited to points of law, against the General Court’s judgments/
orders. In fact the Court of Justice had overturned GC statements quite frequently.
Anyway, generally speaking, there’s no dissenting opinion; Opinions on the
compatibility of international agreements with the Treaties (before they enter into
force). Opinion 2/13 on the accession of EU to the ECHR for instance or Opinion
2/15 about Singapore agreement.

2. ENFORCEMENT ACTIONS AGAINST MEMBER STATES

We have already seen how individuals could play a crucial role in order to enforce
EU law in pointing out preliminary procedure structure and functions (individuals as
legal vigilantes, private enforcement of EU law). Then we have another important
dimensions related to the public enforcement, meaning that EU institutions and MS,
under the fulfillment of certain conditions, could take actions against Member States
who are infringing EU law. In this cases individual are somehow involved but they’re
not the leading actors. We are mostly talking about the so called infringement
procedure. It normally falls under the tasks conferred to the European Commission
in accordance with its role of guardian of the Treaties in a great extent ex. art. 17.1
TEU. The articles referred to this theme are contained in the TFUE: artt. 258, 259,
260.
The most commonly used procedure is the one specified in art. 258 TFUE. Here the
Commission owns the so called power of initiative, functional to start the process,
then acting against the infringer. The Commission could be pushed to investigate
thanks to complaints coming from private parties such as media, companies and so
on, but, formally speaking, everything continue to be ascribable to the Institution in
itself (it is just a kind of incipit). Then we have art. 259 TFUE. Here MS (one or
more) activate the procedure, then managed by the Commission, against another
Member State/s that has/have infringed EU law. For instance we recently had
Portugal claiming that Hungary, by closing it borders, was not complying with
European Union provisions (specifically principle of free movement of persons). Art.
260 concerns the involvement of the European Court of Justice. It shall be
considered applicable to both artt. 258 and 259 TFUE. ECJ may be called into
question to eventually deliver a ruling. Anyway we will deal with this aspect further
on.

According to art. 259 TFUE: “A Member State which considers that another
Member State has failed to fulfill an obligation under the Treaties may bring the
matter before the Court of Justice of the European Union. Before a Member State
brings an action against another Member State for an alleged infringement of an
obligation under the Treaties, it shall bring the matter before the Commission. The
Commission shall deliver a reasoned opinion after each of the States concerned
has been given the opportunity to submit its own case and its observations on the
other party's case both orally and in writing. If the Commission has not delivered an
opinion within three months of the date on which the matter was brought before it,
the absence of such opinion shall not prevent the matter from being brought before
the Court.”
It is clearly possible to highlight some divergences between the two provisions. In
art. 259 we do have the involvement of a State in terms of starting the process.
They could bring the matter before the ECJ, in case of infringement of EU law due
to some others MS behavior. But a previous application to the Commission is
required. Here the European Commission does not exercise any power of initiative,
it will ‘’just’’ manage the procedure once that it has been activated. It could be
interesting to remark that Italy is the State that has been more frequently subject to
an infringement procedure in the last ten years.

3. Waste management: case of Italy

Italy has been sanctioned for maladministration of waste. The procedure started
thanks to the European Commission. Then it referred the issue to ECJ which
verified that EU had been breached by the MS. Italy did not comply and
Commission referred the case once again to ECJ that fixed a high sanction flowed
in the European Budget. There’s been another case called Disarno, Campania, on
waste management and public health concerns, involving ECoHR. Once again Italy
had been condemned. In both cases fundamental rights had been touched
(indirectly by ECJ and directly by ECoHR).

4. ANNULMENT PROCEDURE
Annulment procedure is the main tool to challenge the EU law provisions. It may
happen that secondary law acts could infringe the primary provisions. In those
situations they can be annulled in accordance with art. 263 TFEU. Only secondary
law can be challenged here as unanimity and MS intervention are needed for
Treaty amendments. The consequences would be similar to the ‘’validity’’
preliminary ruling but, in the annulment procedure, there’s an involvement of the
General Court in addition to the Court of Justice that is the one empowered to
intervene in preliminary ruling and infringement procedure. Another difference is
that in preliminary ruling we have references coming for national courts while in
annulment procedure we have direct actions before the European Judicial bodies.

Art. 263 TFEU has been amended thanks to the Lisbon Treaty. The idea was
ensuring more effectiveness to EU law as far individuals are concerned. The
General Court owns jurisdiction vis a vis applications coming from national and
legal persons. Art. 263 makes a number of distinctions based on the nature of the
applicants and the bodies whose act are subject to review.

“The Court of Justice of the European Union shall review the legality of legislative
acts, of acts of the Council, of the Commission and of the European Central Bank,
other than recommendations and opinions, and of acts of the European Parliament
and of the European Council intended to produce legal effects vis-à-vis third
parties. It shall also review the legality of acts of bodies, offices or agencies of the
Union intended to produce legal effects vis-à-vis third parties. Legally binding acts
intended to produce general effects can be challenged.

It shall for this purpose have jurisdiction in actions brought by a Member State, the
European Parliament, the Council or the Commission on grounds of lack of
competence, infringement of an essential procedural requirement, infringement of
the Treaties or of any rule of law relating to their application, or misuse of powers.
Here we have the so called privileged applicants. Some conditions (lack of
competence, infringement of an essential procedural requirement, infringement of
the Treaties…) have to be fulfilled to let them challenge EU provisions but they’re
not so strict.

The Court shall have jurisdiction under the same conditions in actions brought by
the Court of Auditors, by the European Central Bank and by the Committee of the
Regions for the purpose of protecting their prerogatives. Then we have the quasi
privileged applicants. Stricter conditions to act. They could do this only to protect
their prerogatives. (prerogatives and further requirements ex. paragraph 2).

Any natural or legal person may, under the conditions laid down in the first and
second paragraphs, institute proceedings against an act addressed to that person
or which is of direct and individual concern to them, and against a regulatory act
which is of direct concern to them and does not entail implementing measures.

Acts setting up bodies, offices and agencies of the Union may lay down specific
conditions and arrangements concerning actions brought by natural or legal
persons against acts of these bodies, offices or agencies intended to produce legal
effects in relation to them.’’

Paragraph 4 of art. 263 TFEU is the normative reference as it comes to the so

called non privileged applicants. Natural and legal persons for instance. The may
challenge EU provisions under the strictest conditions (in comparison with the other
categories of applicants). Requirements of ph. 1 and 2 have to be fulfilled.
Then it would be possible to bring direct actions when the claimed act is specifically
referred to him/her or it. An act can be challenged when it is of direct and individual
concern to the natural or legal person/s (not being addressed at a specific
individual): not only decisions but also provisions in regulations and directives. A
regulatory act can be challenged if the claimant proves that it had a direct (not also
individual) concern.
In addition we have to specify the meanings of regulatory act and direct concern.
Regulatory is not regulations strictu sensu. That’s a way to come up with a new
category of acts which could be everything (not a clear concept). A measure is of
direct concern where it directly affects the legal situation of the applicant and leaves
no discretion to the addressees of the measure who are entrusted with its
implementation. ECJ stated that even though we have a general provision,
individuals’ position may be somehow affected. Here it is not about general
interests (associations for instance). Individuals should proof the inherence
between the act extent and a specific concerns.

The consequences of illegality are the following ones: According to art. 264 TFEU
“If the action is well founded, the Court of Justice of the European Union shall
declare the act concerned to be void. However, the Court shall, if it considers this
necessary, state which of the effects of the act which it has declared void shall be
considered as definitive.’’
Here void means that the act is annulled with an ex tunc and erga omnes affect.
The judgement is retroactive and it has a general applicability (ultra partes). In
some cases the Court of Justice may say that the related effects do produce ex
nunc where it is necessary.
According to art. 266 TFEU, the institution whose act has been declared void or
whose failure to act has been declared contrary to the Treaties shall be required to
take the necessary measures to comply with the judgment of the Court of Justice of
the European Union. The produced affects are eradicated.

BRASSERIE AND FACTORTAME

In both these 2 cases there are individuals who seek damages for the breach by a
national legislation of Treaty provisions. This is a first difference with the
Francovich case, in which the breach regarded a directive. In Factortame, the UK
conditions for registration of ships as British vessels were in breach of art 49 TFEU
(concerning freedom of establishment), according to some fishermen who claimed
to have suffered a loss and wanted a reparation. In Brasserie, a German law was
claimed in breach of EU Treaty about the free movement of goods. In fact, a French
brewery sued the German government for damages for not allowing it to export
beer to Germany. An important difference with Francovich is that, in both cases, the
Treaty provisions we are talking about do have direct effect. It is so overstepped the
extend of the Francovich principle, that until then, should not apply to provisions
with direct effect. The Court in fact stated for the first time that the Francovich
principle applies also to provisions with direct effect. The reasoning that the Court
made is that direct effect is only a minimum guarantee and it is not sufficient in itself
to ensure the full and complete implementation of the Treaty, the full effectiveness
of EU law.
What’s more, it cannot in every case secure for individuals the benefit of the rights
conferred on them by Community law and avoid their sustaining damage as a result
of a breach of EU Law attributable to MS. Finally, it stated that the right to
reparation is the necessary corollary of direct effect of EU law provisions. In this
sense, there is so an extension of the Francovich principle. In those two cases,
there is an extension of the Francovich Principle and of the State Liability: it applies
also to provisions with direct effect. The right to reparation is considered a corollary
of direct effect. The Court recalled the 3 conditions for State Liability applied to the
Francovich case: Conferral of specific rights; clear content of the provision; causal
link between breach and damage.
In those 3 conditions, there wasn’t any reference on how “serious” that breach had
to be: any breach was potentially considered sufficient to justify the right to
reparation. As a consequence, the Court provided in these 2 cases a restriction of
those conditions: there is a limitation of the Francovich Principle, not only an
extension. In fact, another condition is added: there shall be a “sufficiently serious”
breach of the EU Law. Not any breach will give rise to State Liability. This limitation
was justified by the Court with the wide discretion that MS might enjoy when they
are exercising legislative powers. In pursuing the general interest, the exercise of
legislative functions by the State shall not be restricted by the prospect of the
actions of reparation undertaken by individuals. Because of that, the Court
highlighted the need to limit the cases of State Liability to situations in which the
breach is “sufficiently serious”.
What does this expression mean? That the State manifestly and gravely
disregarded the limits on the exercise of its powers. What’s more, elements that are
taken into consideration to conclude that a breach is sufficiently serious are: the
clarity and the precision of the rule; the possible excusable error of law; the position
taken by EU institutions. Moreover, another reference that the Court made is that
the breach of EU law will be clearly sufficiently serious if it has persisted despite a
judgment finding the infringement in question to be established, or a preliminary
ruling or settled case-law of the Court on the matter from which it is clear that the
conduct in question constituted an infringement (the presence of an established
case-law). In the case of Brasserie, the Court suggested that the National
Authorities must have known that prior rulings by the ECJ had already stated that in
similar cases there was a breach of EU law.

State liability and the national remedial framework

Another important point is the that a Member State is liable for a breach of a EU
Law rule whichever of its organs is responsible and regardless of the internal
division of powers. In other words, a federal State cannot consider itself innocent
just because a sub-federal entity has caused the breach. It is a principle that has
been affirmed also in international law and it applies to the legislative branch, as
well as to the executive and judicial ones in certain conditions. Moreover, it’s
important to say that the idea of MS’s procedural autonomy still applies to an action
for damages. In fact, despite the fact that Francovich, Brasserie and Factorame
cases provided guidelines for the conditions required to invoke State Liability, a lot
of issues are still left to be addressed by National Law. In fact, the action for
compensation of damages is provided within the framework of domestic legal
systems by national procedural requirements, especially about aspects such as:
Time limits; Causation; Mitigation of loss; Assessment of damages. However, in
these areas governed by National law, the principle of procedural autonomy is
limited as ordinary by the principle of the practical possibility and by the one of the
equivalence of remedies. The one of practical possibility states that national rules
shall not make impossible or excessively difficult to obtain reparation. According to
the one of equivalence, national law shall not discriminate between national law
rights and EU law rights.
KOBLER CASE: In Kobler case was established that the principle of the State
liability for its organs responsibility applies also to the judicial branch, even in the
cases of the violations of EU law by national courts of final appeal. The case
concerns the failure of the Austria Supreme Administrative Court to refer to the ECJ
a question of preliminary ruling about the interpretation of Treaty. This failure by the
National judge was considered to give rise to the State liability. The State liability
will take place in this case only if the court has “manifestly infringed the applicable
law”.
LAW MAKING PROCESS
Law making process affects the procedure thanks to which EU adopts legal binding
acts. The involved institutions are: the Parliament, the Council and the Commission.
The Commission has the right of legislative initiative, it means that the Commission
has the power to promote and to start the procedure. The related tasks are
translated in various prerogatives, indeed it also has the right to withdraw and
modify its original proposal until the act has being adopted by the Council or the
European Parliament. The right of initiative of the Commission was not introduced
by the Lisbon Treaty, it derived from the Treaty of Rome. In the past, this power was
also pressured in certain way by the Council that used to request the Commission
to undertake studies functional to propose the appropriate measures to adopt a
certain legislative act. Nowadays this has been transposed into art. 241 TFEU: “The
Council, acting by a simple majority, may request the Commission to undertake any
studies the Council considers desirable for the attainment of the common
objectives, and to submit to it any appropriate proposals”. If the Commission does
not accomplish this task it has the duty to inform the Council about the reasons
behind that choice.
The power to request a proposal belongs also to the European Parliament.
According to art. 225 “The European Parliament may, acting by a majority of its
component members, request the Commission to submit any appropriate proposal
on matters on which it considers that a Union act. If the Commission does not
submit a proposal, it shall inform the European Parliament of the reasons”.

A proposal for a Union act on the basis of the right of initiative granted to Parliament
under Article 225 of the Treaty on the Functioning of the European Union may also
be proposed by an individual Member of the European Parliament. Such a proposal
shall be submitted to the President of the Parliament who refers it to the committee
responsible for consideration. It may decide to submit it to the plenary session. In
the areas where the treaties give the European Parliament the right of initiative, its
committees may draw up a report on a subject within its remit and present a motion
for a resolution to Parliament. They must request authorization from the Conference
of Presidents before drawing up a report.
Finally, the right of legislative initiative belongs also to European citizens indeed,
thanks to the Lisbon Treaty art. 11.4 TEU states that at least one million citizens of
UE could invite the European Commission, within the framework of its powers, to
submit any appropriate proposal on matters where citizens consider that a legal act
of the Union is required for the purpose of implementing the Treaties.
THE ORDINARY LEGISLATIVE PROCEDURE
In the Rome Treaty, the role of the Parliament was not so strong, it had only an
advisory functions and it was just consulted by the Council and the Commission.
The European integration brought enforced its role over there. This reflected on law
making procedure: first consultation, then cooperation, nowadays co-decision
procedure (by Parliament and Council), introduced by the Maastricht Treaty. The
ordinary legislative procedure, based on co-decision, gives an effective meaning to
the norm of TEU that stated that the Parliament and the Council shall jointly
exercise legislative and budgetary function. Joint approval of the act is needed;
there’s no any legislative act without the consent of the Parliament. The output of
the ordinary legislative procedure is the adoption of a regulation, a directive, a
decision on a proposal coming from the Commission. The ordinary legislative
process is the default procedure that has to be followed when Treaties do not
provide for further specification, in addition the Treaties in themselves lay down the
general framework within EU is allowed to enact legislation (principle of legal
basis).
Art. 294 TFEU regulates the phases of this procedure. A first step is the proposal of
the European Commission. Then we have a first reading. Here there could be two
different scenarios: the European Parliament shall adopt its position and
communicate it to the Council. If the Council approves EP statements, the act is
officially adopted; if the Council doesn't approve what EP has stated, it adopts its
own position, communicating it to the Parliament. Consequently we have a second
reading. EP shall report its position to the Council within three months. In that
period, if EP approves what Council said the act is adopted. Once that the deadline
has expired, in case of absence of any EP relevance, the act is equally adopted
according to the Council amendments. It could also happen that the majority of the
EP members rejects the approval. The same majority could proposes amendments
to the Council position, then the amended text shall be forwarded to the Council
and the Commission that shall release its own opinion. The Council, within three
months, could approve the EP amendments by voting with qualified majority. With
the same majority it could reject the modified act (here the its president and the EP
president shall convene, within six weeks, a meeting of the Conciliation Committee
in order to smooth the conflicts). The conciliation committee, composed of members
of the Council or its representatives and an equal number of components
representing EP, shall reach an agreement on a joint text (where EP and Council
second reading positions are taken into account) acting by a qualified majority
within six weeks from its formation. In case of disagreement, the act is not
approved. If a joint text is agreed, it is forwarded to the European Parliament and
Council for a 3rd reading. Here Council and EP examines the joint text without
being legitimated to change its wording. They shall both vote through qualified
majority in order to approve the act. In case of rejections or failure to act there won’t
be any approval.
As it comes to the voting criteria concerning EP, qualified majority corresponds to
2/3 of the vote casts. The scenario is more complex in Council context: According to
art. 16.4 TEU As from 1 November 2014, a qualified majority shall be defined as at
least 55% of the members of the Council, comprising at least fifteen of them and
representing Member States comprising at least 65 % of the population of the
Union. A blocking minority must include at least four Council members
(representing the 35% of Union’s population).
In the fact the necessary phase is only the first reading, because since 90’s it was
common a practice the so called “trilogue”. So there are informal meetings between
representatives of European Parliament and members of the Council, chaired by
the Commission which have the role to reach the agreement before the formal start
of the procedure. This facilitate the achievement of a common position. It is clear
that the institutionalization of these informal meetings raised some objections
because is a way to by pass the procedure laid down by the Treaty and maybe the
use of this tool may hinder an upright and physiological political debate. This is why
nowadays there are some limitations. Those negotiations requires the authorization
by the responsible Committee that also has to be informed on their developments
and shall vote on the final text.
SPECIAL LEGISLATIVE PROCEDURES

Art 289 TFEU states that the ordinary legislative procedure shall consist in the joint
adoption by the European Parliament and the Council of a regulation, directive or
decision on a proposal from the Commission.

In the specific cases provided for by the Treaties, the adoption of a regulation,
directive or decision by the European Parliament with the participation of the
Council, or by the latter with the participation of the European Parliament, shall
constitute a special legislative procedure.

Special legislative procedures have a different degree of participation of Parliament
and Council. EP has only to be consulted and/ or the Council could decide
unanimously. Differently from ordinary legislative procedure here there is a lack of a
fair interplay between the two institutions.
For instance we do have special procedure in the adoption delegated acts and
implementing acts. The commission is empowered, thanks to the Treaties, to
formulate them, in exercising its quasi legislative power. The normative references
are artt. 290,291 TFEU. This two categories of acts are functional to better define
the extent of the proper legal acts of EU. This is why there’s a need of a speed
adoption.
Before the Lisbon Treaty, these acts were part of the same category. Then a (not so
clear) distinction has been introduced. A lot of criticism arose in the reference to
these executions tasks of the Commission intended to guarantee a uniform
legislation. A competence that was potentially deprived of any MS control and
further limitations. In order to solve the issue a specific tool had been structured:
Comitology (before the Lisbon Treaty).
It was a practice, institutionalized by a decision of the EP and the Council, used to
convene mixed groups of representatives from MS and representatives from the
Commission, chaired by the Commission in itself where national experts were
giving their opinion on the exercise of that execution power. There were two
procedures: The advisory procedure: where this Committee was barely consulted;
the management procedure: in which the opinion given by the Committee was
binding and necessary to forward the act to the Council, with the consequence that
the Commission was deprived by its power in case of dissent. During the
preparatory work of the Lisbon Treaty, comitology was one of the problems that had
to be solved, because the Commission did not approve this limitation of its
prerogatives in favor of MS overseeing. This is why the distinction has been pointed
out.
Delegated acts are regulated under article 290 TFEU: A legislative act may
delegate to the Commission the power to adopt non-legislative acts of general
application to supplement or amend certain non-essential elements of the
legislative act.
Paragraph 2 provides for some limitations: Legislative acts shall explicitly lay down
the conditions to which the delegation is subject; these conditions may be as
follows:

(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed
by the European Parliament or the Council within a period set by the legislative act.
For the purposes of (a) and (b), the European Parliament shall act by a majority of
its component members, and the Council by a qualified majority.
Art. 291 deals with implementing acts. Member States shall adopt all measures of
national law necessary to implement legally binding Union acts.

Where uniform conditions for implementing legally binding Union acts are needed,
those acts shall confer implementing powers on the Commission, or, in duly justified
specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on
European Union, on the Council.

For the purposes of paragraph 2, the European Parliament and the Council, acting
by means of regulations in accordance with the ordinary legislative procedure, shall
lay down in advance the rules and general principles concerning mechanisms for
control by Member States of the Commission's exercise of implementing powers.
EP and Council undertook a new form of comitology that is restricted only to
general examination and study procedure. In the study procedure the Committee,
composed by national experts and chaired by the Commission, has the power to
deliver an opinion that has to be considered by the Commission in enacting the
implementation acts. This means that the Commission when does not follow the
opinion deliver by the Committee has to explain why. While in the examination
procedure if the Committee does not express a positive opinion on draft of the
implementation text the question is sent back to an appeals Committee and if this
Committee reaffirm a negative opinion the act cannot be adopted. Finally we can
say that is a soft version of the previous comitology.
ENHANCED COOPERATION
According to the principle of enhanced cooperation, defined by the article 20 of
TEU, in areas of non exclusive competence of EU, a number of MS could carry out
a common action in order to reach common objectives. The States that are willing
to activate enhanced cooperation shall respect TFEU limitations for the procedure.
Other MS are not compelled to follow what has been stated.

At least 9 Member States shall intend to act. The enhanced cooperation shall be
always open to the participants (MS). In the deliberation all EU members shall take
part to the discussion, but of course the deliberation is adopted only by those who
are practically part of the process. The act adopted in execution of enhanced
cooperation are legally binding only for the joining parties. This mean that those
acts are not part of the “acquis communautaire”. New participants shall not
necessarily to accept them in order to accede.
Art. 20.2 reports the so called resort principle. The decision authorizing enhanced
cooperation shall be adopted by the Council as a last resort, when it has
established that the objectives of such cooperation cannot be attained within a
reasonable period by the Union as a whole.
Further limitations to enhanced cooperation are listed under the artt. 326, 327
TFEU. They state that any enhanced cooperation shall comply with the Treaties
and EU law general frameworks and it cannot undermine the internal market or
economic, social, or territorial cohesion. Those who are not participating shall be
respected.