Foundation of European Union Law

Key ideas;
 * Economic and political intergration in the European Union
 * Development of a new form of governance outside of the State (Supranational)
 * Relationship between the Community and National Law
 * Community economic and social law
 * Community rights and remedies
 * Implementation and Enforcement
 * How is EU law made?
 * Democratic defecit?

Economic and Political Integration in the European Union

"Ever-closer Union"  - Preamble to the Treaty of Rome
 * The Member States have transferred considerable sovereignty to the Union
 * Member States have to agree to each Treaty, so competences are strictly within the powers of the Member States to supervise
 * After WW2 uncertainties - strong motive to integrate
 * EU removes barriers to trade, free flow of capital and free movement of persons - free movement of labor, abolition of tax barriers to trade and differing customs preventing international trade (conflicting regulations), monetary integration means greater certainty and trust,
 * But significantly reduces the autonomy of its Member States
 * Maastricht Treaty 1992 - desire to organize and maintain a single market with 4 fundamental freedoms (goods, services, capital, people)
 * Potential for fiscal union - yet to be realised
 * Free trade area
 * ERASMUS project - free movement of ideas and sharing of education towards a more prosperous future - mutual recognition of education / qualifications
 * International research - more efficient and successful
 * Charter of Fundamental Rights - incorporated under Lisbon - UK opted out

EU Organizations

 * The European Parliament
 * The Council of the European Union (Council of Members)
 * The European Commission
 * The European Court of Justice
 * The European Court of Auditors
 * European Central Bank
 * Committees

 Commission - ARTICLE 17 TEU: independent members, appointed by the Council of Members, consented to by EP. Suggested by the Member States, and work in the interest of the Union. It operates as the GUARDIAN OF THE TREATIES and drafts legislation, manages budgets and costs, enforces EU law together with the ECJ, negotiates with other countries. Proposing laws = right of legislative initiative with subsidiarity. The commission checks that law is being applied sufficiently by the member states, and if not, can begin enforcement proceedings to the ECJ. It begins by sending a warning of compliance to the Member State and considering the justifications.

 The Council  - ARTICLE 16 TEU: Made up of ministers from the Member states. Co-decides legislation with the EP, though it used to act alone. Represents National interests. Can delegate legislative power directly to the Commission. Shares its eminence with Parliament.

 Co-decision Legislative procedure  -

European Parliament  - ARTICLE 14 TEU: Directly elected body of MEPs. Co-decision with the Council. May reccommend amendments. Supervises the commission - power of censure, may sack entire commission with vote of no confidence. Supranational body.

The court of Justice of the European Union  - ARTICLE 19: Primary role is judicial, but have shown increasing willingness to use powers of adjudication to further the political aims of the EU. Must ensure that EU law is applied and interpreted and observed correctly in the MS.

Democratic Defecit
European Citizens have the right to vote in local elections for the European Parliament.

But there can be no democracy without a demos. It can be argued that a European Demos has been created with the advent of the European Union due to integration socially, economically and politically and democratization with voting and representation of interests. The EU seems innaccessible to the ordinary citizen because of its complex and centralised nature. Could be altered by more transparency, awareness campaigns (althoug Commission reports suggest that people are increasingly aware of their rights under the treaties) and more federalism. Similar to embassy buildings, an EU office located in each Member State Capital so that advice could be more accessible and local than the EU ombudsman or access through the courts.

The Lisbon Treaty
Amending Treaty of EC Treaty to become TFEU -> Community becomes Union

Rejected the proposed Constitutional Treaty (2004) Lisbon contains most of the content of the original treaty, but avoids the attempt to convert the Union into a state.
 * The TCE would have enshrined the principles of conferral (EU competences are voluntarily conferred upon it by the MS), subsidiarity (decisions should be taken at the lowest possible level, as close to the citizen), proportionality (The EU will only act where necessary to attain a goal) primacy of EU law.
 * The TCE would have stated the principles upon which the EU is founded, namely; human dignity, freedom, democracy, equality, rule of law, human and minority rights, free market, justice, equality,
 * It would also have noted the aims of the union - Promotion of peace, maintenance of freedom and justice, social justice and cohesion, economic cohesion, free and fair trade, eradication of poverty, development of international laws, 
 * It would also have noted the scope of the Union's competences, to the exclusion of any not mentioned
 * FLAG - ANTHEM - MOTTO - CONSTITUTIONAL SIGNIFCANCE

It also granted a '''withdrawal clause. '''

Supranational... state? And Supremacy
The Commission represents the EU and negotiates with other countries on its behalf, as if it is an entity.
 * The constitution was rejected, however the TFEU and TEU may be considered the constitutional documents of the European Union, setting out core ideals, values and competences.
 * The Treaties were described as 'Constitutional charters' in the Partie Ecologiste case.
 * Direct effect and primacy/supremacy of EU law establish a new legal order 
 * EU law has uniform effect and application in all Member States
 * Otherwise it would not function as intended, with inequality and inconsistencies abound and the EU would lose its 'essential character'
 * Costa v ENEL -  "Community of unlimited duration, having its own personality, its own legal capacity, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community."
 * Qualified supremacy - hesitancy of many states to outright accept
 * State Liability affects national procedural autonomy.
 * Sui Generis theory - evolving polity of multilayered governance
 * Policy making above the state
 * Cooperative governance
 * Union based on law - therefore not a state - multilayered governance influenced by a number of cultures and ideologies
 * It is not a supranational state because any competences not conferred by the MS remain with them, and the Union respects their equality and autonomy in those areas.
 * Principle of sincere cooperation / mutual loyalty

TFEU
Article 288 - sets out regulations (binding in entirety and directly applicable), Directives (binding but adopted by MS), recommendations and opinions have no binding force but are influential.

Regulations - Are automatically binding, directly applicable, usually carry abstract norms

Directives - MS must use their own legislative tools to achieve the directive in National Law.

Article 289/294 - Ordinary legislative procedure

Article 291 - Member States must do all that is necessary to correctly transpose the legally binding European Acts.

Principles
Conferral - Article 5 TEU, Article 4 - anything not transferred to the European Union will remain within the sovereignty of the Member state. Tobacco Advertising - the court annulled a decision because it was decided on the wrong basis, it wasn't necessary for the internal market and was an infringement onto national competences.

Subsidiarity - Article 4 TEU

Proportionality - Article 5 TEU

Legitimate Expectations

Equality

Non-Discrimination

Transparency

Direct Effect
Regulations have direct applicability under Article 288 TFEU. Variola case.

Directives are not directly applicable - Article 288 TFEU states that they must be transposed into National law and are only binding on the Member State in relation to the objective to be achieved. Form and methods are discretionary but MUST BE TRANSPOSED CORRECTLY.

Van Gend en Loos - establishes direct effect "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 the Member States but also their nationals" ESTABLISHED DIRECT EFFECT OF DIRECTIVES.

Van Gend en Loos - "Community law therefore not only imposes obligations on individuals but also is intended to confer on them rights which become a pat of their legal heritage".

Direct effect concerns the effects of EU Law. It enhances the ffectiveness and meaning of EU law to establish the new legal order envisaged by the commission and in Van Gend.

Vertical Direct Effect - Against state, public authorities - see Foster

Horizontal Direct Effect - Against natural and legal persons, employers, etc.

The Conditions for direct effect;

Directives only have vertical direct effect, not horizontal, because they are addressed to the member states under treaty. This creates what critics have called, an EMPLOYMENT LOTTERY - if you work for a public body you may enforce rights against them, but not if you work for a non-public body. To remedy this the ECJ has given public body a wide meaning - Foster case. Considered NORMATIVE DEFECIT. Indirect effect, state liability and incidental horizontal direct effect go some way towards lessening this.

REYNERS v BELGIUM - conditions for Direct Effect are held to be; Sufficiently clear and precise, Unconditional (must establish unconditional obligation), Must be complete and legally perfect (No need for further implementation).

FOSTER v BRITISH GAS - Wide interpretation of what is meant by a state body, to include any 'eminence of the state' particularly where special tie or responsbility / answerable to the state / special powers / Public Function

GRIFFIN v SOUTH WEST WATER - Privatised water company held to be public body following Foster.

DOUGHTY v ROLLS ROYCE - Expands on meaning of emination of the state (Foster) to mean a body with state-like responsibilities and offering public services. Defense services are not public functions in this regard (company made air planes) because they aid the state with services not the public.

DEFRENNE v SABENA - The Treaties' prohibition on discrimination may be invoked against natural and legal persons and against the Member State. Has horizontal and vertical effect. Furthermore all treaty provisions capable of satisfying Reyners will be horizontally effective - not directives though.

WALRAVE AND KOCH - It was held that prohibition of discrimination based on sex or nationality applies equally to actions of authorities and also employers

VAN DUYN v HOME OFFICE - Directives have vertical direct effect where general scheme and nature of provisions suggests they are capable.

MARSHALL - Directives DO NOT have horizontal direct effect. Defferential treatment - employment lottery. Discriminatory retirement age policy.

FACCINI DORI - Directives are only binding against the Member State and eminations of the state. If the State had implemented it however, can claim damages.

''What would a European Union without direct effect look like? :  Should Directives have Direct Effect? What should it be like?''
 * Very basic rights protection, essentially meaningless provisions of EU law with no recourse
 * Equality of application of law very low
 * Direct effect is necessary to impose EU law
 * However, although addressed to the state lack of horizontal effect has created an Employment lottery (defferential treatment - Marshall case) requiring much judicial activism from the ECJ in order to grant a wide meaning to Public body to protect the rights of the many. This is called the NORMATIVE DEFECIT
 * Direct effect is necessary to ensure adequate rights protection for the state
 * Estoppel - the Member States' failure to transpose correctly prevents them from refusing its binding effect
 * However, directives are only binding as to the result to be achieved and are therefore conditional upon the Member States' realisation of them.
 * They are addressed to the Member State and therefore not natural or legal persons. - says Paul Craig
 * Natural and legal persons (non-public) can benefit from the directives under national law therefore shouldn't they be bound by them as well?
 * If there was horizontal direct effect regulations would become indistinguishable from directives
 * Individuals have no power over the implementation of directives

RATTI - A directive only becomes directly effective after it has been implemented or once the date for implementation has passed - again, no horizontal effect. Retroactivity is PROHIBITED in the interests of legal certainty.

Indirect Effect
Indirect effect establishes that National courts have a duty to interpret cases in accordance with EU law in light of its purpose and wording.

Principle of mutual loyalty upholds indirect effect.

VON COLSON - National courts must take all reasonable steps to ensure the fulfillment of their obligations under EU law and as such much interpret all national law to ensure the objectives of the directives. MARLEASING - All national laws must be interpreted in line with EU law regardless of whether it was implemented before or after, and whether it is implementing. Extends Von Colson to cover all law.

PFEIFFER - National courts must consider the entirety of national law in this way, indicates total supremacy of EU law regardless of competences. Indicates wide EU competence.

ADENELER - Courts duty to interpret this way as soon as implementation or date of implementation required - whichever comes first. Retroactivity is PROHIBITED in the interests of legal certainty.

INCIDENTAL DIRECT EFFECT EXISTS -

MANGOLD - Asserts that parties can rely on a general principle of EU law in a court. Qualified. Eg. Equal treatment. General principles go both ways - horizontally and vertically.

Supremacy of EU Law
Costa v ENEL 

It was held that: "The EEC Treaty has created its own legal system" "Community of unlimited duration, having its own personality, its own legal capacity, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community."

Internationale Handelgesellschaft: "the law stemming from the Treaty cannot because of its very nature be overridden by rules of national law, without the legal basis of the Community itself being called into question."

Declaration 17 of the Lisbon Treaty says that primacy is established by the case law on those terms. It isn't recognized by a treaty provision but is no less relevant.

Simmenthal  - Every national court has an obligation to apply EU law in its entirety, protect the rights that it confers onto nationals, and set aside conflicting national laws.

National procedural autonomy is maintained by the Member States.

Chalmers - Constitutional tolerance, we tolerate it but it is a grudging acceptance any many states hold reservations about consitutional ramifications. Qualified.

Walker - Constitutional pluralism - co-existance, though many MS would deny this as it detracts from the primacy of their constitutional orders. Analogy of tensions and shared responsabilities and delegated competences akin to a 'partnership' with the EU.

Member State Approaches to Supremacy of EU Law
Kompetenz-kompetenz issue - who will have the ultimate supremacy to decide whether a competence is MS or EU? ECJ operates under the assumption that it does, whereas National courts have not always readily accepted this. GERMANY : Solange I and II - Germany held that its courts maintain the right to review all EC legislation to ensure its compatibility with the German constitution and with democracy and fundamental rights. Germany feared that democracy was going to be stifled by the EU. German government was effectively denying the supremacy of the EU. In the second case it was decided that Germany would no longer examine compatability as long as the EU continues to adequately uphold rights and strike down any legislation contrary to rights. Brunner - (Ratification of TEU) It was held in German courts that if the EU infringes too much onto sovereignty or has a democratic defecit then it will be incompatible with constitution and will be abandoned, held that Treaty of Lisbon didn't infringe too much in Bundesverfassungsgericht . Germany used an Accession Act to incorporate EU legal supremacy, qualified acceptance of supremacy.

UNITED KINGDOM: Factortame saga, UK courts were originally hesitant to apply EU law as capable of overiding competing and conflicting existing national laws which predate or are more recent than the EU principle. In the case it was held that where national and EU law conflicts, EU law will always take precedence after the EC Act 1972. Paul Craig has said that; if the Parliament ever wanted to derogate from its obligations "it must do so expressly and unequivocally". Thoburn - EU law has now formed part of the constitutional order of the UK.

European Union Act 2011 - sovereignty clause - will not transfer anymore without great consideration and formal acceptance.

FRANCE: French courts are still unwilling to accept that EU law can be supreme over the constitution. They do accept otherwise the supremacy of EU law, though in the original SEMOULES case it was held that no body had the right to question national law's legitimacy. Conseil d'Etat unwilling to accept otherwise at first, but now EU supremacy has been adopted into the constitution which gives it legitimacy.

ITALY:  Italy was relatively quick and cooperative to accept EU law. FRONTINI case and GRANITAL case - which both held that Italian courts must be prepared to discount conflicting national laws. COSTA asserted principle of new legal order.

Conceptual basis - Whilst France, UK and Germany accepted EU supremacy on the basis of it becoming part of their National order, whereas Italy accepted on the basis of necessity to peace and justice in a new world order. Most EU states accepting on conditions - unconditional acceptance is rare. Reservations were expressed about sovereignty which place limits on the EU's ability to infringe on national constitutional principles and fundamental rights.

Legislative Procedure
Has adapted over time such that the EP and Council can be considered equals under co-decision procedure - the ordinary legislative procedure post-Lisbon.

This is a marked change from Treaty of Rome - mere consultation. Outside observer, council makes final decision.

SEA - Co-operation, but no active / significant role - mere dialogue and opinion which can be overridden. Stronger position, but because can be overruled lack on input / legitimacy.

Maastricht - Council and Parliament must both agree after 3 readings - co-decision - PROPOSAL WILL LAPSE if Parliament outright rejects it, whereas previously such a conclusion could be overruled. Not always used. Not ordinary.

Lisbon - Became known as ordinary legislative procedure. '''Art. 289/294'''

State Liability
Doesn't exist in the Treaties - ECJ developed it to adequately give redress where Member States fail to realise objectives of the EU and this has led to a loss on the part of a national.

Exists under principle of mutual loyalty, because new legal order - must be universal in order to promote certainty. The subjects of the legal order are the MS and the individuals. State liability ensures that obligations and rights are conferred upon individuals effectively with adequate redress and consequence.

FRANCOVICH -  Failure to correctly implement a directive can lead to state liability. This affects national procedural autonomy. Failure to do so would mean that the effectiveness of community laws would be impaired significantly. Protection of rights would be weakened. Provides obligatory remedy - it is a matter of EU law that there be a remedy. There are three conditions; Created a number of questions about applicability and other conditions...Other breaches have been suggested - breach by legislature (eg. Factortame, was implemented discriminatorily.)
 * 1) The measure must be intended to confer rights
 * 2) Rights must be clearly indentifiable
 * 3) Must be causal link between breach and loss suffered.

BRASSERIE DU PECHEUR  - Links with Factortame saga. Adds a fourth condition - that the breach may be sufficiently serious in order to warrant redress. So where no strict liability - must be  manifest and grave disregard for the limits of its discretion.  Can also be breach by legislature, in this case was implemented discriminatorily, which meant that the protection was ineffecitve.

HEDLEY LOMAS - Narrow discretion - mere illegality is sufficiently serious. This constitutes breach by the executive national administration.

KOBLER  - Breach by judiciary in applying the act. Manifest infringements of EU law by a supreme court of MS.

TRAGHETTI - Intentional fault is too restrictive because it would lead to unfairness - Kobler must be followed even in innocent mis-application - where a sufficiently serious and manifest breach has occured causing damage. (Francovich)

Preliminary Reference Procedure
Many important cases have been decided as a result of PRP. (Costa, Factortame, Mangold, Van Gend)

Its basis in the Treaties is Article 267 TFEU - rulings concerning validity, meaning and interpretation.

Lisbon established urgent preliminary ruling where liberties are at stake. Freedom, security, justice.

This ties the partnership between the ECJ and the national courts.

Under 267 there is no jurisdiction for the ECJ to give a ruling on the validity of national law - merely EC law.

DZODZI - Area of law outside the jurisdiction of EU but it had been based upon EU so a referral was possible if desired.

Will not adjudicate on every question; Admissability of questions

MELLICKE - 

FOGLIA v NOVELLO - It was held that if there is no genuine dispute it will not consider the question - no general or hypothetical questions

ZABALA - Cannot refer questions unless a case is actually for review before it - no hypotheticals

TELEMARK - Court will not consider if there has been a failure to establish factual and legal context, unless sufficient information to make a informed judgment

SOLONIA - If the question is quite obvious there is no obligation to give an answer, question must also be relevant to case at hand

Which bodies are entitled to refer?

A court must refer is there is no further appeal - Article 267 - MUST apply unless covered by exceptions - acte clair or previously materially decided. Other courts merely have the option open to them.

DE COSTER / BROECKMEULEN -  establishes the requirements, for a body to refer,
 * Must be established by law
 * Have permanent existence
 * Exercise a binding jurisdiction
 * Must be adversarial
 * Apply the rule of law
 * Be independent

No obligation to refer, when;
 * It is not necessary on the courts finding, for the ECJ to give a decision in order to reach its own decision.
 * Already dealth with or materially similar to other case pre-decided - CILFIT
 * Or, under ACTE CLAIR doctrine under CILFIT that the case is sufficiently obvious - must have been obvious to ALL member states that they would reach the same conclusion, otherwise lack of mutual loyalty.
 * For Acte Clair to apply there must be no reasonable doubt left as to the outcome, no scope of doubt.

If not properly adhered to - STATE LIABILITY under Kobler - Judiciary have made a manifest and grave disregard to their duties and discretions under EU law.

What is the effect of the ruling?
 * Binds the court which made the reference but no set system of precedence - Da Coster
 * May form part of national law for further national decisions
 * Binds administrative body - executive - government
 * National courts may either follow or make a fresh reference

Enforcement Actions
Article 258 - If failed to fulfill must give reasoned opinion, commission as guardian of the treaties (article 17 TEU) will consider it, and may bring matter before the ECJ.

Derived from mutual loyalty - must facilitate Union objectives and refrain from jeopardizing them.

Commission prosecutes when individuals complain, but individuals themselves are not part of the process.

What constitutes a breach? Defences?
 * Failure to cooperate
 * Inadequate implementation
 * Can mean a deficiency of judiciary, executive, parliament
 * Failure to give proper effect to the law
 * Failure by courts (Kobler)
 * Force Majeure - unforeseeable circumstances not necessarily complete impossibility
 * Illegality of the measure so serious that it would justify a declaration of its non-existence
 * Reciprocity - NOT possible, because no justification. Mutual loyalty.
 * Defences of a technical, institutional, political nature.

Penalties
 * Where the breach is serious enough a flat fine will be applied every day until dealt with
 * Other sanctions

Fundamental Rights
Discovery -> Development -> Entrenchment

The EU is destined to accede to the ECHR. It is currently a separate legal order.

However, the Charter on Fundamental rights which is already enshrined in EU law under Lisbon, protects more rights more widely. Inspiration drawn from national constitutional traditions, international treaties and the ECHR. Originally a guide to interpretation, now fully incorporated under Lisbon.

Internationale Handelgesellschaft - EC law cannot be called into question by national constitutional traditions

To accede has ramifications for the autonomy of EU law and raises questions about democracy given that we do not vote on the ECHR...

Treaty of Rome originally did not incorporate fundamental rights as we know them today - economic objective for single market, stemming from Coal and Steel Treaty. Living conditions and abolition of poverty were considered.

Maastricht - led to guarantee of fundamental rights under ECHR but did not accede.

Why accede? To give image of caring legal community, enhancing democratic underpinning. Enhance international personnality. Unite Europe. Serve as a precedent of accession to other organizations. Ensure enforcement of human rights in the context of the community.

However ECJ scared of losing autonomy when in reality it ought to be a cooperative respect of jurisdiction.

ECHR gives Members of convetion more deference and margin of appreciation under the convention. Whereas the ECJ has antagonized and defined competences rather than deferring to them as the ECHR has done.

Would there be a hierarchy or would they be equally influential? What if they conflicted?

Should there be a bill of rights for the Union?
 * It would enhance recognition and legitimacy as well as protections
 * It was rejected in the Treaty on the Constitution of Europe in 2004
 * It would promote legal certainty and integration
 * It would reduce democratic defecit
 * It would reduce the work load of the ECtHR
 * It would promote enforcement of such rights
 * Enhance personality
 * Promote rights based rather than economic based Europe.
 * Plurality of legal systems otherwise under the ECHR

UNITED KINGDOM opted out of the fundamental charter - just specific rights such as right to strike. This means that Member States are not necessarily ready to adopt an absolute bill of rights.

MISC
Lord Denning in Bulmer v Bollinger: "Any rights or obligations created by the Treaty are to be given legal effect in England without more ado."