Prof. Daniele Gallo Chair of EU Law Law Department Luiss Guido Carli University (Rome, Italy) Visiting Professor: F. Fontanelli (Edinburgh) Guest Lecturer:

Prof. Daniele Gallo Chair of EU Law Law Department Luiss Guido Carli University (Rome, Italy) Visiting Professor: F. Fontanelli (Edinburgh) Guest Lecturer: L. D’Ambrosio (College de France) Teaching Assistant/Adjunct: Eugenio Olita (Consob) European Union Law

General and practical information
Myself and yourselves Attendance et similia Signatures Written tests/exam (not on English) Active participation Program (parts, chapters): slides (uploaded before and re-uploaded every week) + notes + materials + book (only for clarification) Teaching assistants: Caterina Mariotti, Eugenio Olita, Paolo Fernandes, Alexandra Logue Visiting Professors: D. Carreau, L. D’Ambrosio and F. Fontanelli Homepage/Luiss.learn Book: to buy or not to buy and where to find it? Craig and de Burca EU institutional law (substantive law in your 5th year)

Interaction, questions
Should you not understand what the instructor is explaining during the class, raise your hands! Do not behave like Wallace’s fish! There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, "Morning, boys, how's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, "What the hell is water?"

Program Check it out

Political and economic relevance of the EU
Examples Political and economic relevance of the EU Brexit Sanctions vs. Russia Fines vs Google and Facebook Roaming Voile Fincantieri and Vivendi Immigration and humanitarian protection Poland and Art. 7 TEU EMA Glifosate TTIP/CETA Even when it seems that the EU does not have competence … ius soli, Cataluña etc.

Part I – The development of European integration
Ch. 1 – Europe and the EU Europe, EU and Council of Europe (countries and membership) Different concepts and course’s content The idea of Europe Several purposes and roots of the term Charlemagne and Christian humanism Modern nation State Colonialism US and (western) Europe Social market economy, progress, civilization, culture (with atrocious moments though) European Union Union/legal standpoint: legal system established to face contemporary problems + to realise goals that individual States felt unable to manage alone European: European ideal and culture/heritage The idea of EU Proposals for a ‘united Europe’ (XVII and XIX centuries) I World War and II World War Peace and market (and then something more than common market ... legal and rights integration) International or constitutional legal order? It is a supranational legal order (different from international law: broadness of areas of intervention of EU law + application of constitutional legal principles such as direct effect and primacy) EU Law: two dimensions – institutional and substantive The EU, now and its crisis of legitimacy Economic crisis: austerity vs fundamental rights and MS’s economic and social sovereignty Immigration: solidarity (?) among MS; asylum; free movement of persons and future of Schengen area Populism as a product of these two phenomena, along with terrorism…where is the EU? What the EU stands for?

Liber(al)ism: more market more freedom
PART I – THE DEVELOPMENT OF EUROPEAN INTEGRATION CH. 2 – THEORIES ON INTEGRATION Variety of theories Liber(al)ism: more market more freedom Functionalism and neo-functionalism: more market more prosperity in different sectors Ordo-liberalism (the most relevant): more market more prosperity with a social dimension Neo-federalism … utopistic project? Inter-governmentalism and supra-nationalism

Spinelli and Churchill (federalists pro European unity)
Part I – The development of European integration Ch. 3 – the origins of integration and the ECSC War and EU Spinelli and Churchill (federalists pro European unity) Federal Republic of Germany and need for sharing the European coal and steel production (Ruhr and Saar) that would be put under the control of a High Authority Jean Monnet and Robert Schuman Schuman Declaration – check it out ECSC (1951, Paris Treaty for 50 years): 6 MS 4 institutions: High Authority, Assembly, Council, Court of justice EDC (army, budget and joint institutions) but rejection by the French national assembly

EURATOM and EEC (no temporary limit): treaties signed in Rome in 1957
Part I – The development of European integration Ch. 4 – EEC and EURATOM Treaties Messina Conference (1955) The Spaak Committee EURATOM and EEC (no temporary limit): treaties signed in Rome in 1957 Economic aims/common market But through the market greater peace International law? A different legal order … why? Customs union (no customs duties + one external customs tariff) + freedoms of movement (a) and application of constitutional principles such as direct effect and supremacy (CJEU: ‘independent source of law that could not, because of its special and original nature, be overridden by domestic legal provisions’ and can be invoked directly by individuals) (b) – individuals at the heart of EEC, not only States See Van Gend en Loos and Costa Parliamentary Assembly and Court in common with ECSC + Council of Ministers and Commission (until 1965; afterwards same institutions for the 3 communities) Location: Strasburg, Luxembourg, Bruxelles Be aware: articles’ numbering varies over the years and the treaties amendments Institutions Commission: initiative, control, negotiation Council: legislative power + weighted power of vote Parliament: supervision and consultation (but its role will change to a great extent in the future) Court: judicial powers Institutional and substantive parts Supranationalism vs. Intergovernmentalism Countervailing trends: own resources, European Council (1974), Parliament with direct elections (1979), ECJ

EEC 1973 UK, Ireland, Denmark EEC 1981 Greece EEC 1986 Spain, Portugal
Part I – The development of European integration Ch. 5 – Early enlargements EEC 1973 UK, Ireland, Denmark EEC 1981 Greece EEC 1986 Spain, Portugal

European Council (Milan, 1985) White paper (Delors) Treaty (1986/1987)
Part I – The development of European integration Ch. 6 – Single European Act Adonnino Committee (European identity) and Dooge Committee (political reform) European Council (Milan, 1985) White paper (Delors) Treaty (1986/1987) Institutional changes Parliament European Council CFI Comitology Substantive changes Art. 26 TFEU Art. 114 TFEU

Ch. 7 – Maastricht Treaty Delors Committee IGC/European Council 1992 Treaty (1993 in force) New form of political project Art. A Institutional architecture: 3 pillars (EC, not anymore EEC,+ 2 pillars: within the EU) Differences: Commission/Parliament/ECJ in the 1st vs European Council and Council in the 2nd and 3rd + external legal personality Institutional changes Parliament and democracy: Art. 251 TEC (codecision) + appointment of the Commission European System of Central Banks and ECB Parliamentary Ombudsman Committee of the Regions Substantive changes Principle of subsidiarity European citizenship Economic and Monetary Union Art EC New areas of competence (culture, public health, consumer protection, environment)

1995 Finland Austria Sweden
Part I – The development of European integration Ch. 8 – Further Enlargements 1995 Finland Austria Sweden

Ch. 9 – Amsterdam Treaty IGC and consolidation of Community powers 1997 Amsterdam Treaty (1999 in force): deletion of obsolete provisions + adaptation of other provisions AFSJ 1st Pillar Substantive changes: communitarization 2nd Pillar No big changes with the exception of the institution of the High Representative 3rd Pillar Police and judicial cooperation in criminal matters

1st Pillar: codecision enhanced 2nd and 3rd pillars: no changes
Part I – The development of European integration Ch. 10 – Nice Treaty, EURO and further enlargements Nice Treaty 2000 (2003 in force) 1st Pillar: codecision enhanced 2nd and 3rd pillars: no changes Nice Charter: check it out 1st January 2002: EURO Not all Member States have adopted the EURO (UK, Bulgaria, Croatia, Czech Republic, Hungary, Denmark, Poland, Romania, Sweden) Enlargement 2004: 10 States (Czech Rep., Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, Slovakia)

Laeken European Council
Part I – The development of European integration Ch. 11 – Constitutional Treaty Laeken European Council Convention: representatives from national governments, national parliaments, the Parliament, the Commission + accession countries + Giscard d’Estaing Chair and Amato and Dehaene vice-chairmen Praesidium: chairman, 2 vice-chairmen, 3 representatives of national governments, 2 from the Parliament, 2 from the Commission and 2 from national parliaments Constitutional Treaty: Part I (basic objectives, fundamental rights, institutional division of power); Part II (Charter); Part III (policies and functions); Part IV (final provisions) Referenda in France and Holland (unanimity needed)

Ch. 12 – Lisbon Treaty and further enlargements ICG and reform Treaty Lisbon Treaty (December 2007, 2009 in force) Ireland’s first and then second referendum and reluctance of the Czech President then overstepped (unanimity) 7 Articles: 1 amends TEU and contains core principles governing the EU and CFSP; 2 amends the EC Treaty renamed TFEU 2 treaties with the same legal value Legal personality of the EU: The EU replaces and succeeds the EC + elimination of pillars Legal status of the Charter Renumbering Enlargements 2007: Bulgaria and Romania 2013: Croatia

Ch. 13 – Asymmetries in the membership: the case of UK EURO/Economic crisis Migration and Schengen UK special status in the EU European Council of 19 February 2016: legally binding and irreversible decision for a new settlement on UK June referendum (2016) January UK Supreme Court’s ruling and invokation of Article 50 TUE on withdrawal (2017) UK is thus due to leave the EU on 29 March 2019 Brexit before the CJEU? Paradox: EU is today much more similar to UK’s aspirations than it was before What will it happen next? Consequences for UK and EU individuals A new FTA? EEA? Switzerland? TTIP or CETA?

Part II – EU institutions Ch. 1 – General remarks and overview
Art. 13 TEU + Committee of the Regions, Economic and Social Committee, European investment bank, agencies, EU High Representative No strict separation of powers

Part II – EU institutions
Ch. 2 – Commission Art. 17 Role of the Commission: motor of integration Duration and commissioners’ competence and independence (17.3) Size (17.4 and 5) President (17.6) Appointment (17.7) Individual removal (Art. 247 TFEU and 17.6 TEU) + collective removal (17.8 and Art. 234 TFUE) Commission bureaucracy (Commissioner’s portfolio + DG + Heads of Division/Unit + civil servants) Decision-making (draft legislation from the lower level up to the College of the commissioners: weekly meetings and discussion by heads of cabinets in the oral procedure + written procedure + delegated decision-making) Generally by consensus or, if requested by a member, by majority Powers (17.1 and others) Legislative power (initiative + overall legislative plan + autonomous legislative power) Administrative power (management and implementation of policies) Executive power (budget and external relations) (Quasi) Judicial power (infringement proceedings + investigator and initial judge in competition/state aid)

Ch. 3 – Council Art. 16 TEU Composition, nature of MS’s representatives (not only at national level) and functioning of the Council (Art. 16.2, 6 and 8) When and where meetings are held 2 capacities: legislative or non-legislative Council meeting, subject matters and formations Presidency of the Council (Art. 16.9) Foreign affairs All other formations (18 months) – 3 successive presidencies: trio Committee of permanent representatives (7) Functions Composition, (senior officials) configurations (II and I) and vote (consensus or majority) Council Secretariat (preparatory work + smoothing conflicts) Powers (Art. 16.1) Legislative: qualified majority (Art and 4) or unanimity and simple majority (if so stated by the treaties) EU’s budget Art. 241 TFEU Delegated power International agreements CFSP and AFSJ European Council Resorting to the CJEU Role of the Council (representation of national interests but transferred into a EU framework + policy-making and coordinating functions)

Ch. 4 – European Council Art. 15 TEU Evolution (SEA: formal recognition) Composition and meetings (Art and 3) Role of the General Affairs Council Powers and functions as top-level institution (Art. 15.1) Creation of the IGC amending the treaties Economic affairs Resolution of conflicts External relations as well as crucial policies both foreign (terrorism, Ukraine) and internal (migration, UK) Enlargements and accessions Consensus general rule with exceptions (Art. 15.4) No legislative functions Presidency of the European Council (Art and 6) Rationale

Ch. 5 – Parliament Art. 14 TEU History and location Composition, duration, seats and votes 751 Population (96/74/73/54/50/6) and over-representation of small countries (Art. 14.2, 3 and 4) No uniform procedure but Article 223 TFEU European citizenship Art. 22 TFEU Political groups (8/European People’s Party and Socialists and Democrats), not nationality Bureau, quaestors, conference of the presidents, 20 standing committees and secretariat Powers (Art. 14.1) Generally majority of the votes cast (but 1/3 of the components) with exceptions (majority of component members) Legislative (ordinary procedure ex Art. 294 TFEU and other procedures) Over the Commission: censure with 2/3 of votes and 376 of members (power of deterrence as happened with the Santer Commission/never passed) + appointment/election of the Commission + committees on appointed commissioners + asking of questions and committees of inquiry Debate and reports from the Commission, the European Council and the ECB Ombudsman: Art. 228 TFEU Power of inquiry and committee of petitions – Article 227 TFEU Over the finances of the EU Composition and functioning. Located in Strasburg with a secretariat in Luxemburg and certain sessions and committee meetings in Brussels to facilitare contact with Commission and Council. Statute enacted in 2005 and into force from the 2009: independence + practical matters of the members of the EP. Number of seats per country: 96 for Germany for example, 73 UK e Italia. Like overreprentation for the votes in the Council, over-representaiton also for the EP: smaller countries (in terms of population size) over represented. 223 TFEU: uniform procedure but never happened. There is only a decision saying that elections must be secret and free and on the basis of proportionali system. Ok for a threshold but not more than 5 % of votes cast at national level. Term: 5 years like that of the Commission. Balance of powers! EU Citizenship. MEPs sit according to the political grouping (see the case of PD) rather than according to nationality. The biggest now: socialists/democrats and conservative. The Parliament elects its own President and 14 vice-presidents for 2 and half years and they form the bureau of Parliament, which is the organ responsible for administrative etc. 5 Quaestors who assist the bureau in advisory capacity. Big role of the Conference of the Persidents (President with leaders of the various political groups): draws up the agenda, fixes the timetable of the work etc. 20 standing committees in the Parliament on various matters (enery, external affairs, women’s rights and gender, etc.). There is a secretariat headed by a General Secretary that helps the Parliament. Powers. Legislative + power over the executive + power over the finances of the State: art. 14. - Legislative (process: see later on) and powers of litigation: power like that of the Council with the codecision procedure, now named ordinary legislative procedure + locus standi for annulment proceedings and so on. Can make questions to the High Reprensenative and Council. Consulted for the CFSP matters. - Over the executive: power strengthened over the years. Always had the power to censure the Commission and require its resignation but never used…as a threat yes…Santer Commission in 1999 (Buttiglione 2004) + since Maastreicht right to partcipiate in the appointment of the Commission. Power to dismiss the Commission: motion of censure against the Commissione as a whole, passed by 2/3 majority of votes representing the EP. Against one Commission can only ask the Presidnet of the Commission to justifiy hir or her presence within the Commission. Election of the President of the Commission by the EP but the European Council has a strong power in putting the candiadate before the EP. Now: the Ecouncil, after having consulted the EP, on qualified majority and having takne into account the EP elections (see te politcla majority….) proposes to the EP a candidate for President of the Commission. Candidate then elected by the EP on the basis of majority of its component members. If not obtained the majority within a month the ECouncil start again. Commissioners, Presidenta and Highr Presperentative sujcet to consnt of the EP and then formally appointed by the ECouncil acting by qualified majority. - Other powers of appointment and dismissal: For members of Court of Audtiors, President Vice President and Exrcutive Board of the ECB the EP must be consulted but not required its approval. Appointment of the European Omusdman that can be dismissed only by the ECJ though on request of the EP for cases of srious misoncudct. Since Maastricht. He receives compleains from EU citizens or resident third country nationals or legal perons concerning instancies of maladministration in the activities of EU institutions, bodies, etc. - Power of inquiry: EU citizens and residents of the eU entitled to petition the Parliament. Now within the EP there is a Committee of Petitions composed of MEPs to consider the petitions. From human rights to other issues of national authorizes (mainly) or private bodies. Right to request questions or receive reports from most of EU institutions…annual reports to the EP by all institutions. - Financial powers: central powers over the EU budget and crucial player together with the Council. Budget drafted by the Commmission adna dopted by the Council but veto of the EP. Variant of the ordinary legislative procedure. Petitions: pollution coming fomr ILVA plant toxic dust + violation of electoral rights in Bulgaria 1500 each year The petitions process is inherently open and transparent. Many petitions are debated at committee meetings (click here to watch clips from the meetings of the Petitions Committee), at which petitioners participate actively. Given the diverse nature of petitions, however, and the large number of petitions received, not all petitions are discussed in the Committee; members may choose to take decisions on them by means of a regular system of political scrutiny. The objective of the Petitions Committee is to provide a response to all petitions and, when possible, to provide a non-judicial remedy to legitimate concerns on issues related to the EU fields of activity which petitioners raise with us. This varies from case to case: If the petition concerns a specific case requiring individual attention, the Commission may contact the appropriate authorities or intervene through the permanent representation of the Member State concerned, as this course of action is likely to settle the matter. In certain cases, the Committee on Petitions asks the President of the European Parliament to contact the national authorities in question. If the petition relates to a matter of general interest, for example if the Commission finds that EU law has been breached, it can open infringement proceedings. This may result in a Court of Justice ruling to which the petitioner can then refer. The petition may result in political action being taken by Parliament or the Commission. In all cases, the petitioner will receive a response detailing the results of the action taken. 2.The Lyon-Turin rail tunnel The residents of the Susa Valley, backed by the local authorities, filed a petition expressing their concerns about the impact on the environment and public health of the construction of the high-speed Lyon-Turin railway line. Following a visit from a Committee on Petitions delegation, MEPs urged that more detailed, independent impact assessments be drawn up. These assessments were then considered at a joint meeting of the Committee on Petitions and the Committee on Transport and Tourism, with Commissioner Barrot and the petitioners in attendance. The conclusions were then referred to the Italian Government. The file remains open, with the Committee on Petitions continuing to work on it in conjunction with the committees responsible for transport and the environment. 3.Incompatibility with EU law of the Valencia urban development law, Spain Several petitions, signed by more than people, challenged an urban development law (the ‘LRAU’ law) adopted by the autonomous region of Valencia, which the petitioners felt infringed their rights as property owners. The Committee on Petitions sent two fact-finding missions to Valencia. This persuaded the Valencia authorities to make changes to the law and Parliament was even invited to submit recommendations. These recommendations were the subject of a resolution adopted in December In 2006, Parliament received a petition alleging that the Alicante authorities, regardless of the imminent repeal of the LRAU law, had authorised urban development plans which did not comply with EU rules on the environment and public procurement. The Committee on Petitions then organised a fact-finding mission, the results of which were the subject of a Parliament resolution adopted in June The recommendations elicited no response from the local authorities concerned for several months. The Commission ultimately decided to bring the Spanish authorities before the Court of Justice for non-compliance with the Public Procurement Directive. At the request of the Committee on Petitions, it also opened an investigation into more than 250 urban development projects which were in breach of the Water Framework Directive. Finally, in March 2009, on the basis of the report by Ms Auken (Verts/ALE, DK) Parliament adopted a resolution on the impact of extensive urbanisation in Spain on the individual rights of European citizens, on the environment and on the application of EU law. The resolution called on the Spanish Government and the regional authorities to thoroughly review their legislation affecting the rights of individual property owners in order to bring it into line with EU rules. As a result of the action taken, the Alicante authorities ultimately abandoned their urban development plans for the village of Parcent.

Part II – EU institutions Ch. 6 – European Central Bank
Current times: monetary policy and price stability (no: Sweden, UK, Denmark, Poland, Czech Rep., Hungary, Croatia, Romania, Bulgaria) Stage 1: SEA Stage 2: Maastricht Stage 3: 1999/2002 (euro) EMU: Art. 119 TFEU ECB, Eurosystem and ESCB Articles TFEU President of the ECB Executive board and governing council Duration Independence Locus standi before the CJEU Trojka No time to see the EMU. Just know that nowadays we have a complex architecture of EU treaties and international treaties (MS parties) as a reaction to the crisis. What about the ECB? Stage one: SEA – reference in the preamble. State two: TEU Maastricht. Stage trhee: 1999 and then January 2002: EURO – Austria, Bel, Cy, Fin, Fra, Ger, Gree, Ireland, Italy, Lux, Malta, Neth, Portugal, Slovakia, Slovenia, Spain. Provisions on the EMU: in particular art. 119 TFEU on monetary. ECB and ESCB. ECB together with the national central banks whose currency is the Euro have the primary responsibility for monetary policy: Eurosystem. Aim: price stability. Has legal personality. Has an executive board and a governing council. Executive board composed of a President, Vice-President and 4 other members recognized experts in monetanry and banking matters. 8 years and posts non renewable. Govenring Council: Executive board plus governons of national central bancks with euro. President of the ECB invited in Council meeting with an impact on the ECSB and on all proposal for regulations on EMU matters should the ECB give an opinion. Independence. The European System of Central Banks (ESCB) is composed of the European Central Bank (ECB) and the national central banks (NCBs) of all 28 European Union (EU) Member States

Ch. 7 – CJEU Art. 19 TEU CJEU (Art and 2 and Articles TFEU): collective institution, not separate opinions ECJ (Art TFEU) Composition and appointment Qualifications Duration Advocates General Different formations Interpretation, annulment, compensation, failure to act, enforcement + advisory functions GC (Art. 254 TFEU): to relieve the burden of the ECJ Composition and appointment (Art. 255 TFEU) Advocates General? Art. 256 TFEU Procedure and system of (atypical) appeals Specialized courts: Art. 257 TFEU (Civil service tribunal) Procedure: judge rapporteur, written stage and then eventually oral stage (public hearing) Role of the CJEU (Art. 19.3) and judicial activism

Ch. 8 – Court of auditors Origin (Maastricht) Art TFEU Composition and appointment Power of control Annual report Observations and special reports Locus standi before the CJEU

Part II – EU institutions Ch. 9 – High representative
Art. 18 TEU Institution? Appointment Position within the Commission Functions CFSP (in many but not all matters: see Articles 222 TFEU vs 42.7 TEU) European Council Foreign affairs council

Ch. 10 – Advisory bodies Not Art. 13 TEU Art. 300 TFEU: economic and social committee + committee of the regions ESC Specific interests Composition: employers, workers and other interest groups Appointment Consultation CR Composition

Part II – EU institutions Ch. 11 – European Investment Bank
Art TFEU Origin Composition Board of Governors + Board of directors + Management committee + Audit committee

Ch. 12 – Agencies more executive (more administrative management of the programme) Examples: air safety, medicines, food safety, maritime safety, fundamental rights Set of different functions Information and coordination Individual decisions Quasi regulatory powers – not legislative functions Not strong discretionary powers Frontex, ERC, Food Safety Lampedusa: 2500 deaths in 2015: Mare nostrum (October 2013-November 2014: € 9 millions per month and no support from EU) – Triton (European + border control and no rescuing + within 30 miles from the coast + € 2.9 millions per month) – back to the old rules (and financing) from April 2015

Ch. 1 – General remarks and principle of conferral
Part III – Competence Ch. 1 – General remarks and principle of conferral Art. 5.1 and 5.2 TEU: principle of conferral Art. 4.1 TEU When exclusive, shared or ancillary in order to support, coordinate and supplement action? Articles 2-6 TFEU For economic, social and emplyment policies and CFSP different kind of competence: Art. 2.3 and 5.4 TFEU Implied competence

Ch. 2 – Exclusive competence
Part III – Competence Ch. 2 – Exclusive competence Art. 2.1 TFEU Art. 3.1 TFEU Art. 3.2 TFEU + Art. 216 TFEU: 3 types of external exclusive competence Conclusion of an international agreement provided for by a EU legislative act Conclusion of an international agreement necessary for internal competence (but no express external competence) Conclusion of an international agreement by MS as a risk for affecting common rules or altering their scope

Art. 4.2: principal (not exhaustive) areas
Part III – Competence Ch. 3 – Shared competence Art. 2.2 TFEU + Art. 4 TFEU Residual ex Art. 4.1 (if not exclusive ex Art. 3 or supporting/coordinating ex Art. 6) Art. 4.2: principal (not exhaustive) areas Weak boundaries between shared and exclusive competence No one fits all system Pre-emption: shared competence but great power to the EU Subsidiarity and proportionality: Art. 5.3 and 5.4 TEU Protocol

Ch. 4 – Supporting/complementary/coordinating competence
Part III – Competence Ch. 4 – Supporting/complementary/coordinating competence Art. 2.5 TFEU Not EU harmonization but still important (legislative) power Art. 6 TFEU + other areas not identified therein

Ch. 5 – Sui generis competence
Part III – Competence Ch. 5 – Sui generis competence Economic, employment and social policy + CFSP Art. 2.3 and 2.4 TFEU Art. 5.1 and 5.2 TFEU

Ch. 6 – Implied competence
Part III – Competence Ch. 6 – Implied competence Implied competence: Art. 352 TFEU

Secondary legislative acts International agreements
Part IV – The EU legal order: overview and legislative acts Ch. 1 – General remarks and Art. 288 TFEU Five main issues Secondary legislative acts International agreements Secondary non legislative acts General principles of EU law Hierarchy of norms Art. 288 TFEU 3 legislative acts + 2 non legislative (non binding) acts Interaction amongst acts Express indication of the required act or Art TFEU

Part IV – The EU legal order: overview and legislative acts
Ch. 2 – Legislative acts Art TFEU Legislative acts: legal acts adopted following a legislative procedure. Crucial role attributed to the procedure Ordinary (legislative) procedure + special (legislative) procedures Formal (rather than substantial) requirements. To distinguish from non-legislative (delegated) acts.

Art. 294 TFEU Commission proposal
Part IV – The EU legal order: overview and legislative acts Ch. 2 – The ordinary legislative procedure Art. 294 TFEU Commission proposal First reading (exchange of readings and positions between Parliament and Council) Second reading (same) Conciliation Committee Third reading of the Committee’s proposal

Ch. 3 – Regulations Art. 288 TFEU Binding in their entirety, with general application and directly applicable in all MS General application: what does it mean? Addressed to open-ended categories of persons, not to identified persons (irrespective of actual reach) Directly applicable: what does it mean? From the date that they enter into force, regulations automatically form part of MS domestic legal orders. “Direct source of rights and duties”. MS must comply with regulations, even change their laws Direct effect (clear, precise and unconditional) Into force: on a date which they lay down or on the 20th day following their publication in the Official Journal

Ch. 3 – Regulations – EXAMPLE DUBLIN III Regulation Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. Article 3 Access to the procedure for examining an application for international protection Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones.

Ch. 3 – Regulations – EXAMPLE Streaming! Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal marketText with EEA relevance. Article 3 Obligation to enable cross-border portability of online content services The provider of an online content service provided against payment of money shall enable a subscriber who is temporarily present in a Member State to access and use the online content service in the same manner as in the Member State of residence…

Ch. 4 – Directives Art. 288 TFEU Binding (yes but…) upon Member States Results vs form/methods In force and deadline for implementation (after publication) Three differences from regulations: not general application (never addressed to individuals) + not always addressed to all MS + not directly applicable (being not binding in their entirety) Harmonization Individuals – any direct effect? Only vertical direct effect, not horizontal: individuals are not the primary addressees. Usual conditions: sufficiently clear and precise + transposed incorrectly or deadline expired (not transposed) Alternatively: State liability and compensation for damages

Ch. 4 – Directives EXAMPLE - Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Article Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest at the end of a period of three years from the date of its adoption. - Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) - Legge 31 dicembre 1996 n. 675, Tutela delle persone e di altri soggetti rispetto al trattamento dei dati personali - Decreto legislativo 30 giugno 2003, n. 196 Codice in materia di protezione dei dati personali

Ch. 5 – Decisions Art. 288 TFEU Binding in their entirety and directly applicable Non-legislative Addressees: MS or private parties or generic (examples in competition law and antitrust) Generally applicable? It depends Direct effect? Yes, in principle but it depends Decision specifically addressed Decision not specifically addressed

Ch. 5 – Decisions EXAMPLE of Decision 2015/1601 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece Art. 4: applicants shall be relocated to the other Member States as follows: … (Challenged by Slovakia and Hungary, but upheld by the Court of Justice in annulment proceedings, see Judgment in Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council)

Ch. 1 – Delegated acts and implementing acts
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 1 – Delegated acts and implementing acts Two binding acts (non-legislative) acts introduced in the Lisbon Treaty Delegated acts (new): Art. 290 TFEU Legislative in nature (not procedurally, which means formally not legislative) because of their general application Content, scope and duration in the legislative act Amending or supplementing non essential elements of legislative acts Subject to a set of conditions Implementing acts (new implementing power to the Commission, besides the Council): Art. 291 TFEU Pursuant to legislative or delegated acts Setting out uniform application for implementing EU legislative acts (executing them) without amending or supplementing them

Article 7 Functional separation
Part V – The EU legal order (II): overview and legislative acts Ch. 1 – Decisions EXAMPLE of delegated regulation Commission Delegated Regulation (EU) 2018/72 of 4 October 2017 supplementing Regulation (EU) 2015/751 of the European Parliament and of the Council on interchange fees for card-based payment transactions with regard to regulatory technical standards establishing the requirements to be complied with by payment card schemes and processing entities to ensure the application of independence requirements in terms of accounting, organisation and decision-making process. Article 7 Functional separation Payment card schemes and processing entities that are not established as two separate legal entities shall be organised in two separate internal business units.

Part V – The EU legal order (II): overview and legislative acts
Ch. 1 – Decisions EXAMPLE of implementing regulation Commission Implementing Regulation (EU) 2016/2286 of 15 December 2016 laying down detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment. Article 3 Basic principle A roaming provider shall provide regulated retail roaming services at domestic price to its roaming customers who are normally resident in … the Member State of that roaming provider while they are periodically travelling in the Union. Article 4 Fair use For the purposes of any fair use policy the roaming provider may request from its roaming customers to provide proof of normal residence in the Member State of the roaming provider …

Ch. 2 – International agreements
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 2 – International agreements Only EU or mixed agreements Legally binding effects within EU as well as within MS + rights and obligations for EU and MS Legal status – see Art. 216(2) TFEU Direct effect? Interpretation of the agreement

Ch. 2 – International agreements EXAMPLES
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 2 – International agreements EXAMPLES World Trade Organization United Convention on the Law of the Sea See EC declaration: - The Community points out that its Member States have transferred competence to it with regard to the conservation and management of sea fishing resources. Hence in this field it is for the Community to adopt the relevant rules and regulations (which are enforced by the Member States) and, within its competence, to enter into external undertakings with third States or competent international organizations. Aarhus Convention

Ch. 3 – Inter-institutional agreements
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 3 – Inter-institutional agreements Not legislation stricto sensu but legally binding Guiding principles + foundations for more concrete legislative action Art. 295 TFEU

No direct effect but object of interpretation
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 4 – Soft law No binding No direct effect but object of interpretation Recommendations and opinions + other several forms of soft law Commitment about the conduct of institutions respecting certain values programming legislation

Ch. 5 – General principles of EU law
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 5 – General principles of EU law General principles From external or internal sources of law Interpretation of the treaties + possible invalidation of legislative acts The issue of fundamental rights: from unwritten to written source of law

Is there a hierarchy of norms in the EU legal system?
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 6 – Hierarchy of norms Is there a hierarchy of norms in the EU legal system? Yes but not amongst legislative acts Treaties, protocols and Charter General principles International agreements Legislative acts Inter-institutional agreements Delegated and implementing acts Soft law

Council shall adopt only decisions on (Art. 25 TUE):
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 7 – CFSP acts No legislative acts Council shall adopt only decisions on (Art. 25 TUE): strategic interests and objectives of the Union actions to be undertaken by the Union positions to be taken by the Union procedures for implementing the actions and positions of the Union European Council: Art. 26 TUE

Ch. 1 – Delegated acts and implementing acts
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 1 – Delegated acts and implementing acts Two binding acts below legislative acts post Lisbon Treaty Delegated acts (new): Art. 290 TFEU Legislative in nature (not procedurally, which means formally not legislative) because of their general application Content, scope and duration in the legislative act Amending or supplementing non essential elements of legislative acts Subject to a set of conditions Implementing acts (new implementing power to the Commission, besides the Council): Art. 291 TFEU Pursuant to legislative or delegated acts Setting out uniform application for implementing EU legislative acts (executing them) without amending or supplementing them

Ch. 2 – International agreements
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 2 – International agreements Only EU or mixed agreements Legally binding effects within EU as well as within MS + rights and obligations for EU and MS Legal status Direct effect? Interpretation of the agreement

Ch. 3 – Inter-institutional agreements
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 3 – Inter-institutional agreements Not legislation stricto sensu but legally binding Guiding principles + foundations for more concrete legislative action Art. 295 TFEU

No direct effect but object of interpretation
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 4 – Soft law No binding No direct effect but object of interpretation Recommendations and opinions + other several forms of soft law Commitment about the conduct of institutions respecting certain values programming legislation

Ch. 5 – General principles of EU law
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 5 – General principles of EU law General principles From external or internal sources of law Interpretation of the treaties + possible invalidation of legislative acts The issue of fundamental rights: from unwritten to written source of law

Is there a hierarchy of norms in the EU legal system?
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 6 – Hierarchy of norms Is there a hierarchy of norms in the EU legal system? Yes but not amongst legislative acts Treaties, protocols and Charter General principles International agreements Legislative acts Inter-institutional agreements Delegated and implementing acts Soft law

Council shall adopt only decisions on (Art. 25 TUE):
Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 7 – CFSP acts No legislative acts Council shall adopt only decisions on (Art. 25 TUE): strategic interests and objectives of the Union actions to be undertaken by the Union positions to be taken by the Union procedures for implementing the actions and positions of the Union European Council: Art. 26 TUE

General principles, Art. 6 TEU and Charter of Fundamental Rights ECHR
PART VI – HUMAN RIGHTS CH. 1 – OVERVIEW General principles, Art. 6 TEU and Charter of Fundamental Rights ECHR Challenges against the EU as well as against MS implementing EU law Agency (see Article 51 of the Charter)

CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU
PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU 50s and 60s: refusal by the CJEU to treat fundamental rights as part of the Community’s legal order Principle of conferral: fundamental rights lay outside the scope of EU law. No need to consider them. Problem: constitutional courts would reserve the power to invalidate or ignore EU law.

PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU Change: Stauder Fundamental rights may be protected as general principles of EU law: the CJEU will take care of safeguarding them as a matter of EU law

PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU Internationale Handelsgesellschaft (confirmation of Stauder + HRs derived from MS’ constitutional traditions) Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community. It must therefore be ascertain, in the light of doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system.

PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU Hauer The Community prohibition on the planting on new vines pursued goals of general interests (avoiding surpluses) and was therefore proportionate to the limitation of the right to property. No infraction of the substance of the right.

PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU Nold Small wholesaler cut out of the coal market by a Regulation. Right to property and freedom to pursue business activities. Restriction proportionate  international documents another source of general principles.

PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU Solange doctrine, « controlimiti »: constitutional tolerance of EU law. First: refusal in principle; Second: acceptance in principle. Embracing fundamental rights a necessary step. Otherwise intolerable to have both primacy and impossibility of review of EU law. Remember: EU law prevails (Costa) and cannot be reviewed by national courts (Fotofrost)

PART VI – HUMAN RIGHTS CH. 2 – HUMAN RIGHTS AS GENERAL PRINCIPLES AND THE ROLE OF THE CJEU Fundamental rights are still outside the conferred compentences of the EU. They operate as a limit (condition of validity of EU acts) on the EU activities. Differences between several sources: constitutions, EU law, general principles, ECHR, UN HR treaties…

CH. 3 – ART. 6 TEU, NICE CHARTER AND THE ECHR
PART VI – HUMAN RIGHTS CH. 3 – ART. 6 TEU, NICE CHARTER AND THE ECHR Art. 6 TEU EU Charter of Fundamental Rights Art and 52.3 ECHR: accession Need for homogeneity NS (the ECJ follows the ECtHR) but McCarthy (the same case before the ECtHR would have a different outcome) Opinion 2/13

CH. 4 – HUMAN RIGHTS CHALLENGES TO EU ACTION
PART VI – HUMAN RIGHTS CH. 4 – HUMAN RIGHTS CHALLENGES TO EU ACTION Challenges against EU legislation Kadi, Test-Achats, Digital Rights Challenges against EU administrative acts Staff cases

CH. 5 – HUMAN RIGHTS VS INTERNAL MARKET
PART VI – HUMAN RIGHTS CH. 5 – HUMAN RIGHTS VS INTERNAL MARKET Schmidberger, Omega, Dynamic Medien

CH. 6 – IRREGULAR MIGRATION: IS THE EU A HUMAN RIGHTS ACTOR?
PART VI – HUMAN RIGHTS CH. 6 – IRREGULAR MIGRATION: IS THE EU A HUMAN RIGHTS ACTOR? El Dridi: prima facie not about human rights but with an impact on the protection of human rights

CH. 7 – ACCESSION TO THE ECHR, A FAILED ATTEMPT
PART VI – HUMAN RIGHTS CH. 7 – ACCESSION TO THE ECHR, A FAILED ATTEMPT Opinion 2/13: the CJEU Impossible to authorise accession – the draft accession agreement did not safeguard the autonomy and specificity of the EU legal system. Problem: the Strasbourg Court would carry out, even only superficially, a review of the attribution of competences between MS and Union: inacceptable (para. 230), or an assessment of the CJEU’s case-law (para. 239).

CH. 8 – MINIMUM AND MAXIMUM PROTECTION
PART VI – HUMAN RIGHTS CH. 8 – MINIMUM AND MAXIMUM PROTECTION Melloni MS protection of fundamental rights can be higher than is required by the Charter and the EU general principles, while implementing EU law. However, national idiosyncrasies cannot undermine the “primacy, unity and effectiveness of EU law.” EAW (European Arrest Warrant) prevails on Spanish constitutional practice to prohibit trials in absentia.

Part VII – The impact of EU law on national laws: direct effect (I)
Ch. 1 – General overview How EU law is applied in practice, within each MS. Effects of international law in domestic settings (versus federal law). No decentralised agencies: national authorities serve as EU authorities for the domestic application and enforcement of EU law. Certain principles operate to govern conflicts between EU and national law.

Ch. 1 – General overview Which provisions may have direct effect? Clear, precise and unconditional obligations + other conditions (last word on the nature of a EU provision: EU courts) Vertical vs. horizontal direct effect

Ch. 1 – General overview Subjective dimension and objective dimension: direct effect and direct applicability What does “direct effect” mean? Justiciability (before national or EU authorities and courts), conferring rights and private enforcement Originality of EU law No formal recognition in EU primary law

Ch. 2 – Van Gend en Loos and the direct effect of European treaties’ provisions Facts of Van Gend en Loos

Ch. 2 – Van Gend en Loos and the direct effect of European treaties’ provisions Reasoning of Van Gend en Loos this Treaty is more than an agreement which merely creates mutual obligations between the contracting states … states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals . … the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals . Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.

Ch. 2 – Van Gend en Loos and the direct effect of European treaties’ provisions Conditions for direct effect? Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between member states and their subjects. The implementation of article 12 does not require any legislative intervention on the part of the states.

Ch. 2 – Van Gend en Loos and the direct effect of European treaties’ provisions Vertical and horizontal direct effect Defrenne Viking

on the personal conduct of the individual concerned.”
Part VII – The impact of EU law on national laws: direct effect (I) Ch. 3 – The direct effect of secondary law And directives? Art. 288 TFEU: no direct effect (normally) due to MS discretion in their implementation Van Duyn: can an individual rely on a directive? Consider Art. 3 of Directive 221/64: “Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.”

How did the Court solve the issue?
Part VII – The impact of EU law on national laws: direct effect (I) Ch. 3 – The direct effect of secondary law When do directives have direct effect? Deadline passed or incorrect implementation + clear and precise obligations Why can directives have direct effect? Binding (more effectively enforced if individuals can rely on them + estoppel argument) Vertical/horizontal/reverse vertical distinction and problems of discretion (see Marshall case) Why not horizontal? Not addressed to individuals + difference with regulations and lack of direct applicability (legal certainty, no estoppel) How did the Court solve the issue? Expansive notion of State Incidental direct effect for technical standards (CIA, Unilever) Indirect effect?

Part VII – The impact of EU law on national laws: indirect effect (II)
Ch. 4 – The indirect effect of secondary law (directives) National authorities and harmonious interpretation in case of non implementation within the deadline or incorrect implementation of a directive without direct effect (Von Colson) Example of “strong” indirect effect: Czech Constitutional Court upholding the compatibility between “no citizen may be forced to leave his homeland” and EAW

Part VII – The impact of EU law on national laws: indirect effect (II)
Ch. 4 – The indirect effect of secondary law (General Principles) General principles of law + involvement of 2 private parties + deadline not expired Mangold

Part VII – The impact of EU law on national laws: primacy (III)
Ch. 5 – Overview Costa v. Enel The reception, within the laws of each member-State, of provisions having a Community source, and more particularly of the terms and of the spirit of the Treaty, has as a corollary the impossibility, for the member-State, to give preference to a unilateral and subsequent measure against a legal order accepted by them on a basis of reciprocity.[...] It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.

Ch. 6 – Rationale Important: primacy AND direct effect. Founding principles of the EU legal order. Priority of all EU law over all domestic law; Automatic effect and invocability. Guarantee of effectiveness and consistent application across all MS

Ch. 7 – Disapplication The effects of primacy: EU law takes precedence, but does not invalidate domestic law; If directly effective, judges must apply it, thus setting aside any conflicting domestic law  disapplication. Think of an unimplemented directive: in vertical situation domestic law can be disapplied, but it will remain effective in horizontal disputes.

The implications of primacy:
Part VII – The impact of EU law on national laws: primacy (III) Ch. 8 – counter-limits and procedural law The implications of primacy: From the domestic point of view, constitutional acceptance. In Italy, see Article 11 of the Constitution (Frontini 1973; Granital 1984). “Counter-limits”

Part VIII – A specific form of national remedy
Ch. 1 – General overview Effectiveness of EU law as a general legal principle The role of national courts to give adequate effects to EU Law Art. 19 TEU Art. 47 Nice Charter The previous and settled case-law The remedies before national courts Principle of State liability for breach of EU Law Procedural requirements and national judicial autonomy

Inherent in the Treaty: Art. 4.3 TEU 3 conditions:
Part VIII – A specific form of national remedy Ch. 2 – The Francovich case First application of the principle of Member state liability to pay compensation for breach of the Treaties The case and the nature of the breach: a directive with no direct effect Inherent in the Treaty: Art. 4.3 TEU 3 conditions: conferral of specific rights clear content causal link between breach and damage

Brasserie and Factortame The extension of Francovich principle
PART VIII – A SPECIFIC FORM OF NATIONAL REMEDY CH. 3 – STATE LIABILITY AND DIRECT EFFECT Brasserie and Factortame The extension of Francovich principle Provisions with direct effect: the right to reparation as a corollary of a direct effect Conditions for State liability: the limitation of Francovich to “sufficiently serious” breaches Wide discretion of the Member State: there is violation in case of manifest and grave disregard of limits on powers Reduced discretion or no discretion at all: there is violation in case of mere infringement of EU law

CH. 4 – STATE LIABILITY AND THE NATIONAL REMEDIAL FRAMEWORK
PART VIII – A SPECIFIC FORM OF NATIONAL REMEDY CH. 4 – STATE LIABILITY AND THE NATIONAL REMEDIAL FRAMEWORK 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 Member States’ procedural autonomy The action for reparation before National Courts is governed by national procedural requirements Time limits Causation Assessment of damages Limits: Equivalence of remedies Effectiveness: practical possibility to exercise the rights

Ordinary and special legislative procedures
PART IX – LAW MAKING CH. 1 – OVERVIEW Ordinary and special legislative procedures Delegated acts and implementing acts Enhanced cooperation 97

CH. 2 – THE POWER OF INITIATIVE
PART IX – LAW MAKING CH. 2 – THE POWER OF INITIATIVE The Commission and its right of initiative The power of the Council under Art. 241 TFEU The position of the European Parliament under Art. 225 TFEU and the Parliament’s rules of procedure The EU citizens’ initiative under Art. 11 (4) TEU 98

CH. 3 – THE ORDINARY LEGISLATIVE PROCEDURE
PART IX– LAW MAKING CH. 3 – THE ORDINARY LEGISLATIVE PROCEDURE The evolution of the role of European Parliament From consultation to co-decision From Maastricht to Lisbon: the ordinary legislative procedure Articles 14 (1) and 16 (1) TEU The aim of the ordinary legislative procedure: jointly adoption of a regulation, directive, decision on a proposal from the Commission The phases of the procedure laid down in Article 294 TFEU First reading, second reading, conciliation, third reading 99

CH. 4 – SPECIAL LEGISLATIVE PROCEDURES
PART IX – LAW MAKING CH. 4 – SPECIAL LEGISLATIVE PROCEDURES Art. 289 (2) TFUE: notion of special legislative procedure Specif cases provided by TEU or TFEU Different degree of power and role of the Council and the Parliament Mere consultation of Parliament and/or decisions adopted by the Council unanimously 100

CH. 5 – THE ENHANCED COOPERATION
PART IX– LAW MAKING CH. 5 – THE ENHANCED COOPERATION Rationale of enhanced cooperation Art. 20 TEU Minimum requirements and features Open character Effects on acquis communautaire Limits of enhanced cooperation: Articles 326 and 327 TFEU 101

Part X – Judicial proceedings
Ch. 1 - Introduction Art. 13 TEU one of the EU’s institutions Art. 19 TEU See the previous slides on the structure and composition of the CJEU

Part X – Judicial proceedings
Ch. 2 – Main functions Art. 19 TEU: it shall ensure that in the interpretation and application of the Treaties the law is observed 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 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 reviews the legality of the acts or failures to act of the EU institutions and bodies ensures that the Member States comply with their obligations under EU law Art. 24 TEU: no jurisdiction in the field of the Common Foreign and Security Policy (CFSP) with two exceptions: it may review the legality of restrictive measures taken by the EU against natural or legal persons (Art. 275 TFEU) it may monitor the compliance with Art. 40 TEU and the respect of the powers of EU institutions when implementing the CFSP

Part X – Judicial proceedings Ch. 3 – Jurisdiction of the CJ
Preliminary rulings procedure Actions for the annulment of EU binding acts brought by MS against EU institutions or brought by one institution against another + plea of illegality 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 Appeals, limited to points of law, against the General Court’s judgments/orders Opinions on the compatibility of international agreements with the Treaties (before they enter into force) i.e. Opinion 2/13

Part X – Judicial proceedings Ch. 4 – Jurisdiction of the GC
Actions brought by natural or legal persons against EU institutions/bodies for the annulment of their acts or for failure to act Actions seeking compensation for damage caused by EU institutions or bodies or their staff Appeals (still pending), limited to points of law, against the decisions of the CST Disputes between the EU and its servants (before the reform, they fell under the jurisdiction of the CST)

Part XI – Preliminary procedures
Ch. 1 – Art. 267 TFEU: overview and main dichotomy Relationship between national courts and the CJ at the core of the procedure Unlike the US, the EU did not develop a system of federal courts designed to apply EU law; yet all national courts must apply EU law in settling internal disputes on the basis of a system of cooperative federalism where national courts and the CJ collaborate in the adjudication of a single case Major changes brought by this procedure, amongst which direct effect and supremacy Triangle magique: preliminary procedures, direct effect and primacy Preliminary: questions posed by national courts to the CJ that precede the final application of EU law by them The CJ does not decide directly the case: indirect actions and rulings (but in reality it often does…) CJ and not the GC But Art TFEU Dichotomy Interpretation of the Treaty: not of national law Validity and interpretation of acts (binding and non binding)

Part XI – Preliminary procedures Ch. 2 – Notion of court and tribunal
Courts or tribunals: same meaning but terms not always employed in all MS Up to the CJ to decide who falls under the notion Body established by law? Is it permanent? Is its jurisdiction compulsory? Does it apply the rules of law? Is it independent? Examples Arbitration Constitutional courts Bar Council Administrative authorities Hot issue on international (especially investment) adjudication: how to safeguard the autonomy of the EU law?

To ensure uniformity and effectiveness of EU law
Part XI – Preliminary procedures Ch. 3 – Discretion or obligation to refer? Discretion Obligation To prevent the establishing of a national case law inconsistent with EU law To ensure uniformity and effectiveness of EU law In both cases ex officio or upon the request of a party When national judges (including of last instance) do not have to refer the matter before the CJ? Decision of the CJ not necessary to settle the case The CJ has already ruled on the same matter (not the same facts): it is for the national court to apply the prior ruling; the creation of a precedent alike system increases and fosters the CJ’s powers No doubt about the interpretation/validity of the EU measure: acte clair

Part XI – Preliminary procedures Ch. 4 – Role and powers of the CJ
Costa and for the following decade Power to correct improperly framed references Afterwards stricter in the admissibility of the references CJ ultimate authority to accept or not the request coming from national judges…it may also decline to give rulings if: hypothetical cases – waste of time + risky for the coherence of the judgments and the clearness of its implications question raised not relevant for the resolution of the dispute questions not sufficiently clearly raised and elaborated facts not sufficiently clear

Part XI – Preliminary procedures Ch. 5 – Nature of the rulings
Validity Interpretation but not application, which should remain a matter for national courts The boundaries between interpretation and application are weak The more the interpretation is precise and detailed the more interpretation tends to overlap with application The more it is detailed the more national courts merely execute the decision In reality the CJ has often assessed whether national laws violated EU law although it should not do so The CJ decides whether to apply the expedited procedure and urgent procedure in accordance with Art. 23a of the Statute when the nature of the case and exceptional circumstances require it to be handled quickly Only within AFSJ

National courts must stay the proceedings
Part XI – Preliminary procedures Ch. 6 – Legal status and effects of preliminary rulings Binding effects on the national judge who referred the matter otherwise application of Art. 258 TFEU Interpretation: erga omnes effect, should there be the same point of law but facts and national procedures would be different? Yes. Why? Need for uniformity Ex tunc effects with the exception of the relevant economic effects produced by the judgment in cases where the legal situations were created in bona fide in compliance with national law which was considered until that moment in compliance with EU law Validity: if it is declared, possibility for other reasons to ask for a preliminary ruling; if invalidity it happens like in respect to Art. 263 TFEU: erga omnes In case of a declaration of invalidity, all instruments adopted based on it are invalid and EU institutions must rectify the law National courts must stay the proceedings

Direct effect + primacy + preliminary procedure: private enforcement
Part XI– Preliminary procedures Ch. 7 – The relevance of private enforcement Direct effect + primacy + preliminary procedure: private enforcement Individuals as legal vigilantes of EU law National courts as EU law courts

Principal way to challenge EU law provisions
Part XII – Art. 263 TFEU Annulment proceedings (review of legality) Ch. 1 – Nature of the acts and standing Principal way to challenge EU law provisions Amended with Lisbon to ensure greater effectiveness of EU law, especially as far as individuals are concerned Indirect hypothesis for individuals: art. 267 TFEU CJ and GC Limitations in CFSP: art. 275 TFEU Nature of bodies whose acts are subject to review Nature of applicants: privileged (art. 263, par. 2) quasi privileged (art. 263, par.3) and non privileged applicants (art. 263,par. 4).

Part XII – Art. 263 TFEU Annulment proceedings (review of legality)
Ch. 2 – Grounds of Review Lack of competence Infringement of an essential procedural requirement (right to be heard, consultation and participation, duty to give reasons) Infringement of the Treaties or any rule of law relating to its application (proportionality, non discrimination, transparency) Misuse of power (adoption by an EU institution of a measure with the exclusive or main aim of achieving an end other than that stated)

void means ex tunc and erga omnes
Part XII – Art. 263 TFEU Annulment proceedings (review of legality) Ch. 3 – Consequences of illegality Art. 264 TFEU void means ex tunc and erga omnes The CJ can qualify the extent of the nullity Art. 266 TFEU: the effects of the judgments towards the Institutions →eradicating the effects that were produced

Part XII – Art. 263 TFEU Annulment proceedings (review of legality)
Ch. 4 – Non privileged applicants A natural or legal person can bring an action in three types of cases The addressee of a decision can challenge it before the CJ or the GC (act addressed to him/her) An act can be challenged when it is of direct and individual concern to the natural or legal person or persons (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 What is the meaning of ‘regulatory’? Legislative acts or not? Individual rights or democracy? Direct concern 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 There must be a direct link between the act of the EU institution and the damage inflicted on the applicant The interest safeguarded must be a legal entitlement rather than any other form of interest Individual concern Plaumann: the effects must be peculiar to the applicant(s) as differentiated from all other persons Very strict test: not greenpeace, etc.

PART XII – ART. 263 TFEU ANNULMENT PROCEEDINGS (REVIEW OF LEGALITY) CH
PART XII – ART. 263 TFEU ANNULMENT PROCEEDINGS (REVIEW OF LEGALITY) CH. 5 – NON PRIVILEGED APPLICANTS- A FOCUS The Plaumann Test: “Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed . In the present case the applicant is affected by the disputed decision as an importer of clementines, that is to say, by reason of a commercial activity which may at any time be practised by any person and is not therefore such as to distinguish the applicant in relation to the contested decision as in the case of the addressee . Still applied by the CJ even if there is some criticism. In UPA judgement, the Court confirmed Plaumann test, thus rejecting the possible broadening suggested by the GC (see Jégo-Qéré) and AG opinion →“a natural or legal person can bring an action challenging a regulation only if it is concerned both directly and individually. Although this last condition must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty.”

Part XIII – Failure to act Ch. 1 – Overview on Art. 265 TFEU
Para. 1 Para. 2 Para. 3 This proceeding is carried out against the inaction of an EU Institution/body/etc. can be brought against any EU Institution, body, office or agency There are two categories of applicants: privileged applicants: Member States and EU Institutions non privileged applicants: natural or legal persons complaining that an Institution/body/etc. has failed to adopt an act addressed to that person (act different from a recommendation or an opinion) Jurisdiction: CJ and GC What is different from the review of legality proceeding?

Part XIII – Failure to act Ch. 2 – Procedure and effects
The procedure comprises two stages: administrative stage: an action may be brought only if the Institution/body/etc. concerned has been called upon to act by the applicant and the Institution/body/etc. has failed to define a position within two months from the applicant’s request judicial stage: if the Institution/body/etc. does not define its position within two months, the applicant has another two months to bring proceedings before the competent EU Court If the Institution/body/etc. defines its position while the proceeding is pending, the action is considered as ‘without object’ Object It can be challenged only the failure to adopt an act which the defendant Institution/body/etc. had the duty to adopt according to a specific EU law provision it is not possible to complain the failure to adopt a discretionary act according to the ECJ, the act which had to be adopted can also be a non-binding act (unless the applicant is a private person) Effects If the applicant is successful, the defendant Institution/body/etc. shall take the necessary measures to comply with the Court’s judgment The defendant is not condemned by the Court to adopt a specific measure. See article 266 TFUE

PART XIV – PLEA OF ILLEGALITY CH. 1 – OVERVIEW, OBJECTS AND EFFECTS
Article 277 TFUE The applicant raises the legality of a general act in the course of another judicial proceeding before the CJ. Not an autonomous remedy Object: only act of general application (the CJ follows a substantial over formal criterion. Simmenthal vs. Commission 92/78 case: “[Article 277 TFEU ] gives expression to a general principle conferring upon any party to proceedings the right to challenge , for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under [ article 263 TFEU ] to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void. The field of application of the said article must therefore include acts of the institutions which, although they are not in the form of a regulation, nevertheless produce similar effects and on those grounds may not be challenged under [article 263] by natural or legal persons other than Community institutions and Member States”. Effect: inapplicability. Which effects on Institutions?

PART XV– ACTION FOR DAMAGES
CH. 1 - OVERVIEW Function and object Art. 268 the jurisdiction of the CJ in disputes relating to compensation for damage provided for in the second and third paragraphs of Article 340. Art. 340 establishes the principle of non contractual liability of EU: in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its Institutions or by its servants in the performance of their duties. Autonomy from other judicial means: CJ, Aktien-Zuckerfabrik Schöppenstedt, ”The action for damages […] was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific nature. It differs from an application for annulment in that its end is not the abolition of a particular measure, but compensation for damage caused by an institution in the performance of its duties . Which act/inaction under review? Autonomy from Member States’ actions? Only acts referrable to Institutions: not only the Institutions and ECB, also other EU bodies (e.g. European Investment Bank, Mediator). 121

PART XV – ACTION FOR DAMAGES
CH. 2 - CONDITIONS Conditions Infringement of a rule of EU law which is intended to confer rights on individuals; the breach is sufficiently serious, and there is a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the applicant. CJ in Brasserie du pêcheur – Factortame/EU: “the conditions under which the State may incur liability for damage caused to individuals by a breach of [EU] law cannot, in the absence of particular justification, differ from those governing the liability of the [Union] in like circumstances. The protection of the rights which individuals derive from [EU] law cannot vary depending on whether a national authority or a [EU] authority is responsible for the damage However the EU does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred (CJ in FIAMM). No liability for lawful acts (also FIAMM) Time limit: 5 years (reference to CJ Statute). Acts or inaction of EU servants: only acts made in performance of their duties. 122

Art. 17.1 TEU: Commission guardian of the treaties
Part XVI – Enforcement actions against MS (infringement) Ch. 1 – Legal basis and general remarks Art TEU: Commission guardian of the treaties Art. 258 TFEU: procedure against a State brought by the Commission Only the CJ will determine whether the State breached EU law Art. 259 TFEU: involvement of the Commisson but State against another State Art. 260 TFEU: role of the CJ

Initiative: Commission itself or a reaction to a complaint
Part XVI – Enforcement actions against MS Ch. 2 – Art. 258 TFEU/The pre-contentious procedure Initiative: Commission itself or a reaction to a complaint Very often is on the lack or incorrect implementation of a directive Early settlement Explanation of the MS’ position by means of further factual or legal information on a potential case of violation of EU law + possible accomodation of the issue with the Commission through structured dialogue If matter not clarified or resolved informally, the formal procedure begins Letter of formal notice Two months for the State to reply (or less in cases of urgency) and one year for the Commission 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 If the reply is not satisfactory, the State does not comply 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

Part XVI – Enforcement actions against MS
Ch. 3 – Art. 258 and 260 TFEU/The contentious procedure If no reply or unsatisfactory reply, the Commission asks the CJ to open a judicial procedure (litigation) through a referral of the case Relatively rare: only 15% of cases are not resolved before the referral Wide discretion of the Commission Even if in the meantime the State complies, the procedure goes on After an average of 2 years, the CJ decides whether there has been a breach MS is responsible to adapt its laws or practices and resolve initial dispute ASAP If the State does not comply Another letter of formal notice and possibly detailed reasoned opinion If no answer or unsatisfactory answer The Commission goes before the CJ and asks for lump sum or penalty measure Financial sanctions Deterrent and not symbolic 3 criteria: seriousness of the infringement/its duration/need to secure that the penalty is a deterrent to further infringements

Ch. 4 – Art. 259 TFEU The Commission is always involved and manages the procedure although it is about a litigation between States

Ch. 5 – Examples See See Italian Waste management case

End of lessons THANKS! GOOD LUCK!

Prof. Daniele Gallo Chair of EU Law Law Department Luiss Guido Carli University (Rome, Italy) Visiting Professor: F. Fontanelli (Edinburgh) Guest Lecturer:

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Prof. Daniele Gallo Chair of EU Law Law Department Luiss Guido Carli University (Rome, Italy) Visiting Professor: F. Fontanelli (Edinburgh) Guest Lecturer:

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Presentation on theme: "Prof. Daniele Gallo Chair of EU Law Law Department Luiss Guido Carli University (Rome, Italy) Visiting Professor: F. Fontanelli (Edinburgh) Guest Lecturer:"— Presentation transcript:

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