European Union Law - Barnard & Peers - 2nd edition - BulletPoints

How can the European Union be legitimized? - BulletPoints 1

• The material side of EU law has been expanding. One of the founding fathers of the EU, Jean Monnet, hoped that the spillover effect would occur: integration in one sector needs integration in another sector to maximize the integration in the first sector. For example: free movement of goods was legitimized because of consumer protection and if you really want to optimize the free movement of goods you need a single currency. This was launched by the Maastricht Treaty (1992) and was the first step in creating an economic and monetary union (EMU). With further integration of economic policies and greater political control, the tension between the need for effective governance of the EU while at the same time still respecting State autonomy grows. This tension for example led to the United Kingdom leaving the EU. The EU law seems to be expanding on the non-economic issues as well: for example regarding criminal law and immigration or asylum issues.

• Input legitimacy regards the fairness and the amount of democratic legitimization of the decision-making of the EU. Various systems help achieve this legitimacy, think of separation of powers or procedural rights. These systems all come together in a broader system: protection of human rights. In 2009 the legal order was restructured to provide for a binding EU Charter of Fundamental Rights and the EU had an obligation to sign up for the European Convention of Human Rights (ECHR).

• Output legitimacy regards the effectiveness in contributing to achieve things in subjects that have a wide public support. It relates to the core issues of economic integration and other areas such as health care and social policy. The EU has reinforced its politics and because of this they got better at negotiating international agreements.

How did the European Union develop? - BulletPoints 2

• The European Coal and Steel Community (ECSC) Treaty was signed in 1951. It was signed by France, Germany, Italy, Belgium, the Netherlands and Luxembourg. The ECSC was already seen as a supranational authority and it served as a fist step towards a broader European integration.

• The failure of the EDC/EPC led to a shift of focus from the political to the economic. The European Economic Community (EEC) was founded in March 1957 with the Treaty of Rome. The member states were: France, Germany, the Netherlands, Belgium and Luxembourg. At the same time the Euratom Treaty came into effect.

• After the Treaty of Rome there weren't many treaty reforms until the Single European Act (SEA) in 1986). There were however some importants developments in the time between that.

• The first development was the accession of new member states. The UK tried to join in 1961 and in 1963 but the French president, Charles de Gaulle, vetoed. When he resigned in 1973 the UK became a member together with Ireland and Denmark, followed by the membership of Greece in 1981 and Portugal in 1986.

• Secondly there was a shift in decision-making. There was a dispute: de Gaulle of France thought that the state's interests should be put first and Walter Hallstein, the Commission President, thought the overall Community good should be the primary objective. In 1965 there was a move from unanimous to qualified majority voting in the Council. So when de Gaulle didn't agree with a following proposal he refused to attend further meetings because now suddenly his vote didn't matter anymore (known as the empty-chair policy). After seven months a settlement, the Luxembourg Compromise, was reached: if a State pleaded that its 'very important interests' were at stake, other member states had to respect this. You could compare this to a veto.

• From the mid 70s to the mid 80s there was a period of political stagnation. The passing of legislation was a very slow process which was confirmed by the Tindemans Report and the report of the 'three wiser men', which all recommended a stronger supranational dynamic. This was ignored. In 1984 a radical reform was proposed, but this was ignored as well. In a meeting of the European Council two committees were established to consider Treaty revision. This led to the establishment of an intergovernmental conference (IGC) to discuss Treaty amendments in 1985, this generated the Single European Act (SEA).

• The SEA brought institutional and substantive changes and is therefore one of the most significant Treaty revisions. The SEA gave a legal basis to European Political Co-operation and recognition to the European Council. A Court of First Instance was created and the comitology procedure was formally included.

• The SEA started the transformation of the European Parliament to how it is today as well. A new legislative procedure came to life: the cooperation procedure, which applied to a defined list of Treaty articles. Before the SEA, the commission proposed and the council voted. The change to the cooperation procedure meant that now the Commission would have to take the views of the Parliament serious in the areas where the procedure applied.

• A lot of good things for the internal market happened before 1992, but the internal market couldn't be fully completed because of changing external circumstances. Therefore a committee on economic and monetary union (EMU) reported a plan for reaching EMU. The European Council held an intergovernmental conference (IGC) on the subject. This led to the Treaty on European Union (TEU) signed by the member states in Maastricht in February 1992.

• The TEU made changes in institutional and substantive terms. It also introduced the three-pillar system. The pillar system was later removed by the Lisbon Treaty. The pillars were:
  1. Communities
  2. Common Foreign and Security Policy (CFSP)
  3. Justice and Home Affairs (JHA)

• One of the main institutional changes was the further increase in the Parliament's legislative involvement. This was done by introducing the co-decision procedure, this allowed the European Parliament, when it disapproved, to block legislation. The Parliament now had the right to request the Commision to initiate legislation and the power to block the appointment of a new Commission.

• The next Treaty reform, the Treaty of Amsterdam, happened short after the Treaty of Maastricht, it was signed in 1997 and came into effect in 1999. It deleted provisions from the EC Treaty and renumbered al the articles/ titles of the TEU and the EC Treaty.

• There were some institutional changes. The co-decision procedure was amended to give the Parliament more power and it now was applicable to more articles. The cooperation procedure was eliminated, apart from provisions on EMU.

• The Treaty of Nice was concluded in 2000 en entered into force in 2003. The number of member states had expended to 15, therefore the weighing of votes etc. were amended in this Treaty.

• The European Council in 1999 suggested that the Charter would be important on itself and as a mechanism for enhancing the legitimacy of the EU. A body named a 'Convention' drew up a Charter in 2000. It was drafted to be legally binding. It should've been resolved when the Treaty of Nice was deliberated, but was postponed until 2004.

• In 2004 ten new states entered the EU: the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia. In 2007 Bulgaria and Romania joined and in 2013 Croatia joined, making a total of 28 member states.

• The Lisbon Treaty was to contain two principle clauses, which amended the TEU and the EC Treaty, which would now be named the Treaty of the Functioning of the European Union (TFEU). The Union were to have one single legal personality, and the word 'Community' was replaced by the word 'Union' throughout.

• The Lisbon Treaty was not built on the pillar system, but there are still distinctive rules relating to the CFSP, which means that in reality there still seems to be a 'pillar'.

• Neofunctionalism was the early ideology of Community integration. The concept of spillover is central in neofunctionalism: integration in one sphere creates pressure for integration in other areas.

• Liberal intergovernmentalism was championed by Moravcsik. This thesis is that states are the driving forces behind integration. The demand for integration depends on national preferences. The supply of integration is a function of interstate bargaining and strategic interaction. It is pursued through a supranational instrument, simply because it is more (cost-)efficient.

• Marks, Hooghe and Blank argued that integration was a process across multiple levels of government: sub-national, national and supranational. National governments do not have a monopoly of control and supranational institutions cannot be seen as agents of national government (like with liberal intergovernmentalism).

• Rational choice institutionalism is derived from rational choice theory: individuals have preferences and choose the course of action that is the optimal method of securing them. They acknowledged that institutions are important. They also state that there is a principal-agent relation, with the member states as principals, who delegate to supranational 'agents'. Institutions are rules of the fame that provide incentives within which players pursue their preferences.

• Constructivists agree that institutions matter. They do dispute the idea that preferences are 'given'. They contend that the environment in which preferences are formed is social. Therefore institutions will embody social norms and will affect a person's interests.

What are the EU's political institutions? - BulletPoints 3

• The role of various EU institutions has changed over time: for example the bigger role for the European Parliament, which increases the democratic legitimacy but decreases the effectiveness. Another change is for example the shift from unanimous voting to majority voting, which decreased the democratic legitimacy, but increases the effectiveness.

• In theory a representative democracy means that the public decides which politicians they wish to vote for at the time of the elections, then judge their performance, and decide if they want to keep these politicians at the next election, or if they want someone else.

• The Commission consists of a college of Commissioners. Two particular Commissioners are most important: its President and the EU's High Representative for its common foreign and security policy.

• The president lays down the guidelines for the Commission's work, decides on the internal organization of the Commission, ensuring its efficiency and collegiality and appoints vice-presidents. The president can reshuffle the commission as well and get a commissioner to resign. The president does not have a veto or a right like that.

• The post of high representative was created by the Treaty of Amsterdam, the post was at that time part of the Council. The post was intended to simplify the Union's representation regarding foreign policy. The Treaty of Lisbon made the High Representative member of the Commission, but answerable to the Council

• Starting with the executive tasks: the Commission proposes EU legislation, the Commission negotiates international treaties on behalf of the EU and represents the EU on an international level (except for foreign policy and monetary issues). The Commission can adopt delegated acts or implement measures as well: this is comparable to the powers that are delegated to the executive and civil servants in de member states in order to implement legislation. Lastly, the Commission has the right to take infringement actions against member states that haven't met their obligations under EU law.

• The Commission is completely independent, it cannot take instructions from governments or any other body. As an exception: the High Representative is accountable to the Council as far as foreign policy is concerned. The college of Commissioners make decisions by a majority. For the administrative tasks, the Commission is organized into Directorates-General, each responsible for a particular subject.

• The European Parliament is elected for five-year terms (art. 14(3) TEU). The term is absolutely fixed, which means that the Parliament cannot resign earlier/reelections can happen before this term is over.

• There are two main categories of powers for the Parliament: legislative and budgetary functions and political control and consultation. All five Treaty amendments have expanded the Parliament's decision-making powers, so that it now has equal power with the Council on most areas.

• The most important power of political control is the appointment and dismissal of the Commission President and the rest of the Commission.

• The council is the main decision-making organ. To a large extent this role is now shared with the Parliament. It is made up of ministers from the member states' governments, therefore it's one of the most intergovernmental institutions. Keep in mind that the Council is different from the 'European Council'.

• The Council consists of national ministers, who represent their government: the minister is chosen by the member states themselves. There is no fixed membership, it is made up of different ministers depending on the subject being discussed. There for example is a General Affairs Council and a Foreign Affairs Council.

• The Council has two main categories of powers: legislative and budgetary functions and policy-making and coordination functions. The first one matches the powers of the European Parliaments.

• Before the Treaty of Lisbon, the presidency was held by each member state for six months. This system was amended by the Treaty of Lisbon to provided that the Foreign Affairs Council is chaired by the High Representative. For the remaining Council configurations, according to art. 16 TEU the role must be taken on the basis of equal rotation. The presidency is nominally held by groups of three member states working together. One small member state, one medium and one small, from different parts of the EU.

• The European Council exists primarily of the heads of State of each member state. The rules concerning the European Council are set out in art. 15 TEU and artt. 235-236 TFEU.

• The Maastricht Treaty specified that the task of the European Council was to provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof. it provided the European Council with a few formal roles as well.

• The European Council must act by consensus, except when Treaties provide otherwise and this frequently happens.

• The Treaty of Amsterdam provided some rules regulating access to their documents: there is an exception for the access to the documents when it's related to the decision-making process, but the Court of Justice doesn't go with it: the right of access to documents is linked to the democratic accountability of the EU institutions.

What is constitutionalism in the context of the EU? - BulletPoints 4

• Constitutionalism is the set of ideas that sets what a constitution is or ought to be. There are multiple conceptions of constitutionalism. Descriptive constitutionalism: a constitution is a factual description of the institutions and powers of the government. Normative constitutionalism: a constitution prescribes governments their composition and powers (in contrary to describing)

• Normative constitutionalism has a Formal definition: A constitution stands above all law. Material understanding of constitutionalism: the concept of a constitution is linked with a particular political philosophy

• This can be divided in two political understandings:Democratic constitutionalism: A constitution only exists when it's based on the idea of a government of the people, by the people, for the people. Liberal constitutionalism: A constitution only exists if it sets limits to the powers of government (e.g. separation of powers and fundamental rights)

• In Costa v ENEL the EU judiciary had been asked if national legislation could prevail over the EU treaties. The court in this matter insisted on the supremacy of EU law.

• Constitutional pluralism accepts the coexistence of multiple constitutional orders that interact in a heterarchical way (opposed to: hierarchical). This theory (which is like federal constitutionalism) has the problem that it results in contradictory answers to the question of supremacy.

• Democratic constitutionalism insists on sovereignty of the people. The constitution has to be adopted through a referendum or by an elected assembly, which adopts the constitution on behalf of the people.

• The best theoretical generalization of federal constitutionalism came from Carl Schmitt: he stated that the normative foundation of every union of states is a federal treaty: this is a treaty of a constitutional nature. Its conclusion is an act of the pouvoir constituant. A federal constitutional theory will not locate the constitution-making power in one unitary body, but there is a pluralist constituent power.

• The EU's governmental regime sits somewhere in between the parliamentary and the presidential mode: the European Council is composed of the heads of state, which is not dependent of any parliamentary election, whereas the Commission got its power from the Parliament that has been given legitimacy. The European Union's governmental system can be seen as a semi-parliamentary democracy.

• According to the functional separation vision, each governmental institution must not be given more than one function.
  According to the institutional cooperation vision, each governmental function should be distributed over more than one institution.

• The Treaty of Rome (1958) only gave the European Parliament 'advisory and supervisory powers'. This meant only the Commission and the Council could challenge the legality of Union acts before the Court. In Parliament v Council (1988) the Court rejected the idea that the Parliament should be able to action before the Court, because the SEA provided the Parliament with rights to cooperate in the adoption of legislation. In Parliament v Council (Chernobyl) the Court changed its view and gave the Parliament the power to action before the Court. This because the principle of institutional balance should mean that institutions can penalize any breach of rules which may occur.

• Two sources for fundamental rights in the EU treaties were developed: the European Court identifies fundamental rights in the constitutional traditions of member states. And with the Lisbon Treaty the Charter of Fundamental Rights of the European Union was added.

How does legislation come to life in the EU? - BulletPoints 5

• The main forms of normative act adopted by the institutions in implementing EU's policy objectives are regulations and directives. However, they may also adopt rule-making decisions and international agreements and guidelines and recommendations.

• A regulation 'shall have general application and is binding in its entirety and directly applicable in all Member States'. Thus, it is the equivalent of a law in a national legal order. The member states need to adopt any national measures to give effect to a regulation.

• Directives are normative acts, which require member states to adopt the necessary national provisions to give effect to the policy objectives set out in this directive. A directive is therefore binding as to the result, while leaving the choice of form and methods to the member states. Thus, it is equal to a guideline.

• A decision is an act which is binding in its entirety upon those to whom it is addressed.

• The institutions also adopt 'soft law'. These do not have legal effect. An example is the 'open method of coordination', this is applied in areas where traditional mechanisms are inappropriate. Under this method the Union gives guidelines, the fulfillment of these guidelines is monitored by benchmarking and peer review.

• The Treaties, the Charter of Fundamental Rights and the fundamental principles of Union law developed in the case law of the court, are on the highest point of the pyramid. They are termed primary law.

• After that, there's secondary law: Acts based directly on the Treaty, including Union legislation and similar normative measures.

• The Treaty of Lisbon classified the competences of the Union into three categories: exclusive, shared and ancillary competences. Which provided a definition of competence as power to 'legislate and adopt legally binding acts'. The principles of conferral, subsidiarity and proportionality watch over the Union's competences.

• Conferral determines what competences the Union enjoys. Subsidiarity provides a test as to whether or not they should be exercised. Proportionality ensures the competences are exercised in a manner as to hurt the competences of member states and the rights of individuals as little as possible.

• Exclusive Competence: Only the Union may legislate and adopt legally binding acts in this category. This is in areas where member state action would render Union action ineffective and the Union is legally obliged to exercise. The exclusive character is not absolute.

• Most Union competences are shared. It is a category, which includes everything that is not exclusive and not ancillary.

• In some areas, the Union is allowed to 'carry out actions to support, coordinate or supplement actions of the member states: its action is ancillary to that of the member states.

• Subsidiarity in the Union means that decisions be taken as closely as possible to the citizen. In art. 5(3) TEU it is formulated that subsidiarity provides a test, which can act as a brake on the exercise of competence.

• The early warning mechanism is designed to allow national parliaments to ensure the Union legislation complies with the subsidiarity test. The national parliaments receive draft legislative acts as well as the amended drafts and the drafts are accompanied by a statement making it possible to appraise compliance with subsidiarity and proportionality. The parliaments then produce an opinion. There are three varieties: the individual opinion, the collective opinion and the special legislative opinion.

• The proportionality principle is currently formulated in art. 5(4) TEU: 'The content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties'.

• The proportionality does not have an early warning mechanism or special provisions on judicial reviews.

• There are: the ordinary legislative procedure (OLP), the special legislative procedures (SLPs) and various innominate non-legislative procedures (INPs). The OLP is the most important.

• The OLP is set out in art. 294 TFEU. The procedure may only be initiated by the Commission submitting a proposal (with some exceptions). Prior to submitting a proposal, the Commission is legally obliged to 'carry out broad consultations with parties concerned': the Commission is obliged to engage with citizens and representatives to keep an open, transparent dialogue.

• There's a wide variety of special procedures. Most of these are derogations from the application of an OLP in a particular area. For example: measures to facilitate the right to free movement is adopted under the OLP, but there's an exception concerning social security and social protection, here an SLP applies.

• With INP's the procedural requirements are mostly minimal. In many of the cases the Council adopts a measure by a qualified majority on the basis of a Commission proposal, without any participation of the Parliament. Examples of things that would be going through the innominate non-legislative procedure are: measures that are more executive rather than legislative, the adoption of rules on private and public sector competition and certain emergency measures.

• Derived normative measures are measures based on an enabling provision contained in an act which is based directly on the Treaty, thus, legislation or acts under the INP. This may not be called 'legislation' because the Treaty reserves that term only for normative measures by the OLP or an SLP. Therefore, there's the term 'regularly act', this covers all non-legislative normative acts (delegated acts, implementing acts and acts adopted under an INP).

• Delegated acts are a particular kind of measures, which the Commission adopts under art. 290 TFEU. These measures could in principle have been adopted by the legislature, but have been delegated to the Commission. In 290 TFEU they are described as 'non-legislative acts of general application which supplement or amend non-essential aspects of the legislative act'

• An implementing act allows the Commission to provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in member states. It must comply with art. 291(2) TFEU and the provision of the legislative measure conferring the power to adopt such an act (interpreted in the light of art. 291(2) TFEU). The Commission cannot amend nor supplement the measure.

• The borderline between delegated acts and implementing acts is not clear. The Treaty defines a delegated acts in terms of its content (non-legislative acts of general application..) , while the implementing act is defined in terms of its rationale (laying down uniform conditions for implementing legally binding acts).

• When support of a measure is insufficient for adoption, the Treaty allows for a coalition of the willing to proceed, adapting the calculation of voting majorities. This is called enhanced cooperation.

• The Treaties may be amended under the 'ordinary revision procedure' or a simplified revision procedure. It depends on the character and the extent of the modifications.

• There are three different simplified procedures. They are laid down in art. 48(6) TEU, art. 48(7) TEU and art. 48(3) TEU.

• The ordinary revision procedure is available for any Treaty amendment. They can be proposed by Parliament, the Commission or any member state. The European Council decides, after consulting the Parliament and the Commission, by a simple majority vote, whether the process should continue.

• The decision to grant accession to a state is taken by the Council, unanimously, informing the national parliaments, consulting the Commission and obtaining consent of the majority of the Parliament.

• It is perceived that the Union institutions have lesser accountability than the governments of the member states. The Court of Justice has noticed this too. In Van Gend en Loos the Court relied on the fact that the citizen participate through the choosing of the European Parliament, therefore the legal order can be justified. In the Titanium dioxide ruling the Court prioritized the Community-level democratic participation in the legislative procedure of the European Parliament over the rights of member states to exercise a veto.

What are the effects of EU law in the national legal systems? - BulletPoints 6

• The Union could currently be seen as a type of cooperative federalism. On one side the Union has moved away from a public international model, through unification and harmonization, principles of national application became unified and so did certain procedures and remedies. On the other side, the Union could be seen as far from a fully fledged federal structure, in which a structure and procedures would be set up and the supremacy would be clear.

• The Union is sui generis, which means of its own kind.

• Direct effect first appeared in 1963. Van Gend en Loos, a company in the Netherlands, imported urea-formaldehyde from Germany and the company disagreed with the amount of duty charged by the Dutch Inland Revenue. It claimed that the Netherlands changed the duty, which was contrary to the (then) art. 12 EEC. The Court ruled that this provision did indeed have direct effect, because the Community constitutes a new legal order. They stated that such a clear and unconditional prohibition such as art. 12 EEC, is capable of producing direct effect.

• In 2009 the Charter of Fundamental Rights became primary law. It was to have the same legal value as the Treaties. Does it therefore have direct effect? There is definitely vertical direct effect (an individual suing the state). Whether it could have horizontal application (private individuals on both sides) is left open by the Court.

• Regulations are 'directly applicable in all member states', direct applicability means that unless expressly requested by the regulation, no national implementing act is necessary. Direct effect focuses on the justiciability of the provision: can it be applied directly by a national authority? The Court did state that direct effect of regulations can generally be presumed.

• Under art. 288 TFEU there are two kinds of decisions: addressed and non-addressed. An addressed decision is an individual act, stating its addressee. A non-addressed decision amounts to a legislative act in all but name: it does not expressly name its addressees, but it provides general and abstract rules. Direct effect of a decision is linked with vertical situations. The Court ruled that they cannot have direct effect horizontally.

• The estoppel argument: when a member state has failed to implement a directive, the state cannot rely on that failure as a defense. In that context it is almost like a sanction for not implementing the directive.

• Indirect effect is also known as consistent interpretation, harmonious interpretation or EU-consistent interpretation. It means the duty of all national bodies to interpret all national law in light of EU law. It is an important principle.

• Indirect effect thus is an alternative to the prohibition of the horizontal effect of directives. The only thing needed is a national law provision that could be claimed to be interpreted in conformity with EU law, then all the previously discussed limitations fall away.

• Any non-harmonized questions of national procedure are subject to the double requirement. The requirement of equivalence is a prohibition of discrimination. EU law based claims cannot be treated as less than national claims.
  The requirement of effectiveness requires that the enforcement of eu law-based claims cannot be seen as practically impossible, but also not as excessively difficult.

• The member state can be liable for violations by any branch of government. The duty to implement EU law rests on the state as a unity and may therefore be committed by any body of the state.

Is EU law international law? - BulletPoints 7

• Many EU law scholars have argued that the legal characteristics of Union law are so peculiar that it does not make sense that it would be a part of international law. The EU is a sui generis legal system.

• Especially the democratic control of the European Commission and democratic input in the law-making by the Parliament, which is directly elected by European citizens makes the EU different from any other international law regime. It is also rare to have international courts with direct access for individual plaintiffs.

• The power of the European Commission to sue the member states before the court of justice is unique as well. This allowed the Court to state that the general international rule that allows states to retaliate in the event of non-compliance by other parties to the same treaty, does not apply in Union law.

• The EU is both an object of international law made by others (the member states) and a subject entitled to make new law. This is not a unique feature of EU law.

• When the EU concludes an international agreement, then international law acts as a constraint on the EU. This can be concluded by the rule in the TFEU that says that EU agreements are binding on the institutions of the EU and on its member states. The Union often seeks to insert clauses into these agreements that guarantee the prevalence of EU law over the obligations in the agreement. This phenomenon we call 'reverse primacy'.

• The most blatant form of reverse primacy is the 'disconnection clause', according to this clause EU law dealing with that subject shall continue to apply between EU member states, so that the conventions provisions will only apply to non-eu states.

What are the general principles of EU law and EU administrative law? - BulletPoints 8

• An important factor in how law can take effect in reality is the implementation through administrative action. Administrative law is part of public law enabling and constraining administrative conduct (activity designed to implement EU law).

• The EU cannot enact legislation where it's not authorized to do so and it cannot pass implementing acts if not authorized. This results from the principle of conferral (art. 5(1) and (2) TFEU, art. 291 (1) TFEU).

• When administrative powers are conferred to a body, they are authorized to adopt acts with general content (rule-making). More and more EU agencies are taking decisions of EU wide concern. However, in most policy areas final decisions are taken by member states' bodies. This is referred to as indirect administration of EU law.

• When there are no EU law provisions, member states are obliged to implement EU law through their administrative apparatus. This is stated in art. 4(3) TEU and is called 'the principle of sincere cooperation'.

• Under the principle of equivalence, member states must, when EU law is absent, grant equivalent protection for violation of EU law to that available against violation of national law. Provisions used in national law cannot be less favorable than provisions governing similar domestic actions. The principle of equivalence will override the principle of effectiveness, where there is no equivalent national law or when is application doesn't leas to the result of enforcing a right under EU law.

• Under the principle of effectiveness, member states cannot make the exercise of rights conferred by Union law impossible or extremely difficult

• In the Meroni case the Court allowed sub-delegation of Commission powers to private parties.

• Art. 5 (4) gives a definition of proportionality, however its meaning mostly arises from the interpretation by the Court of Justice. Proportionality is the most widely used principle of EU law. The Court has defined a three step test: Measures of the European Union institutions cannot exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation, Where there's a choice between more than one measure, the last onerous has to be chosen, The disadvantages caused cannot be disproportionate to the aim pursued. There has to be a reasonable ratio between means and outcome.

• There has to be a minimal openness of process, access to documents and publication of official measures. The key provision on acces to documents and freedom of information is art. 15 TFEU. Under art. 297 TFEU the legislature has to publish all legislative measures and decisions.

• The right of good administration can be found under art. 41 of the Charter of Fundamental Rights. Failures to comply with the rules set out in this article can result in a manifest error of assessment and thus lead to annulment.

• Even though there's a right to transparency, the Court has stated that activities of the Commission should enjoy a general presumption of confidentiality.

• Under the Factortame formula, the right to an effective remedy offers protection against any provision of a national legal system and any legislative judicial practice which might impair the effectiveness of Union law.

What are the fundamental rights in the EU? - BulletPoints 9

• The original Treaties did not contain any reference to fundamental rights. Therefore the Court had to establish a fundamental rights jurisprudence. With the Charter of Fundamental Rights, the EU now had its own catalogue of rights, which became legally binding with the Lisbon Treaty. The Lisbon Treaty also provided for competence for the EU to accede to the European Convention on Human Rights (ECHR).

• Fundamental laws apply first as a limit to the acts of Union institutions. It is therefore a precondition of the legality of any act.

• The Lisbon Treaty gave the Charter the same legal value as the Treaties themselves (art. 6(1) TEU). Art. 6 allows the Court of Justice to go beyond the rights contained in the Charter, should this ever be needed.

• The charter applies to member states whenever they are implementing EU law. This means the Commission cannot bring infringement proceedings against a member state violating fundamental rights, unless this is connected with EU law.

• EU institutions are the addressees of the Charter and they can never escape the provisions of the Charter. The court can annul an act of the EU institutions infringing the Charter.

• Art. 6 (2) TEU provides that the EU shall accede to the European Convention for the Protection of Human Rights an Fundamental Freedoms, such accession shall not affect the Union's competences as defined in the Treaties

• Art. 3 (2) draft agreement provides that when an application is directed against a member state, the EU can become a co-respondent. The EU will then be a full party to the proceedings, which means it will be bound by the ruling of the ECtHR.

• The reverse is also possible: in cases concerning an EU provision, member states can be co-respondents since, should a violation be found, they would have to act collectively to modify the treaties.

• In the case of national rules, an individual must have exhausted domestic remedies before being able to bring a complaint before the ECtHR. It is, however, not a further court of appeal. It just ensures that a minimum standard of protection is applied throughout the territories of contracting parties.

• In case of the EU this is harder. It's not that easy for an individual to get in front of the Court of Justice. It isn't fair to penalize an individual for not being able to go to the Court, however it is beneficial for the Court to have a first look. Therefore when the EU is con-respondent, the proceedings are delayed to allow the Court to examine the matter.

How does judicial protection before the Court of Justice of the EU work? - BulletPoints 10

• Art. 19 (1) provides that the Court of Justice of the European Union has three tiers: The Court of Justice, the General Court and the specialized courts. There are two main sets of proceedings: direct actions and preliminary references. Preliminary references begin before a national court, the Court of Justice then provides a preliminary ruling on the issue, and the national court then will decide on the dispute. In this chapter the two of these procedures are further explained.

• There are four main types of direct actions: Infringement (art. 258 to 260 TFEU), Action for annulment (art. 263 and art. 264 TFEU), Action for failure to act (Art. 265 and art. 266 TFEU), Action for damages (art. 268 and 340 (2) and (3) TFEU)

• The plea of illegality (art. 277 TFEU) is brought directly before the Court but is used to plead the illegality of an EU act in an incidental way. It cannot be brought independently, but is attached to a direct action.

• The Court of Justice has full jurisdiction in most matters covered by EU law: including the provisions in the area of freedom, security and justice. The Court doesn't have jurisdiction in common foreign and security policy.

• Infringement procedures address the situation in which a member state has breached EU law. The main applicant is the Commission. Private parties can't bring infringement actions before the Court.

• A Member state can mean the legislative, executional, judicial branch, but also any other public bodies of a member state. The question should be whether the activities leading to the infringement can be attributable to the State. In the end action is formally brought against the member state and not the branch that has failed.

• The action for annulment together with the action for a failure form one same remedy; one that addresses the situation where an EU institution has adopted an illegal act or has failed to act when it had an obligation to act.

• The essential quality of a reviewable act is that it must be legally binding. In the case of regulations, directives and decisions the requirement of reviewability will be automatically fulfilled. When it isn't one of these, the Court takes a non-formalistic approach, it looks at the substance of the act and the intention of who drafted it.

• Applicants can be classified in the categories privileged, semi-privileged and non-privileged.

• According to art. 263 (2) TFEU privileged applicants are the member states, the Parliament and the Council. They have an automatic right to bring proceedings.

• The semi-priviliged applicants are the Court of Auditors, the European Central Bank and the Committee of Regions. They do not have the automatic right of action. They can only bring proceedings, when their prerogatives are at stake.

• Natural and legal persons are non-privileged applicants, because art. 263 (4) TFEU imposes strict conditions when they want to challenge an unlawful act. They can only challenge an act when:

• They are the addressee of the act, they will have automatic standing; When they are not the addressee, they need to show that they are concerned directly and individually (The General Test of standing)
  But if they are not the addressee and they want to challenge a regulatory act, they need to show that they are directly concerned by the act and that it does not entail implementing issues. (The Lisbon test)

• The concept of individual concern was explained in the Plaumann case. The Plaumann test held that: 'By reason of certain attributes that 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.' The Court ruled that carrying out a particular economic activity that was affected by the measure, this does not satisfy the test of individual concern. Not even when the applicant was gravely affected or the applicant was one of the very few/ only one that was affected, as long as others could decide to undertake that activity in the future

• The action for failure to act is the complement to the action for annulment. This is applicable when an institution failed to act when it had an obligation to do so. The action for failure to act has a lot in common with the action for annulment. The most significant difference is the admissibility requirement: before an action for failure to act can be brought to Court, the institution must have been called upon to act. When it doesn't define its position within two months, action can be brought.

• In relation to direct actions, interlocutory relief is provided in the Treaty itself. Articles 278 and 279 TFEU allow for the application for negative and positive interim relief in connection with a direct action pending before the Court. The requirements are existence of urgency and the existence of a prima facie case.

• In the case of preliminary references on interpretation, interim relief will be granted according to the rules of national law, while a reference is pending as long as these rules are both effective and non-discriminatory.

How does the internal market work? - BulletPoints 11

• In the EU the four freedoms of goods, services, persons and capital provide for the free market.

• In theory there are three different models of organizing an internal market. Host country control. The rules of the country where the economic activity takes place apply; Harmonized model. There are conditions at EU level. For each issue there is only one rule, made by the EU; Home country model. The rule that applies is that of the country of origin

• The common market was at the heart of the Treaty of Rome. The groundwork for the common market was laid down in the Spaak Report. This report argued for the merger of national market into a common market. First, national protections creating obstacles had to be suppressed. Secondly distortions of competition needed to be dealt with. Thirdly conditions for common growth had to be ensured.

• In the early 70s the Court found that the four freedoms were directly effective. It also brought to life the principle of mutual recognition, which meant that if a product is good enough for country X, the product is also good enough for country Y.

• The success of the single market was a qualified one and the paradigm was not fully stable. Mutual recognition is in practice less effective than it seems on paper. Attempts by companies to penetrate the market of another country were often frustrated by the insistence of the host State that local rules had to be obeyed.

• The law needs to supply in rules on free movement and rules that allows the EU to legislate for international market purposes in order to establish the internal market.

• Art. 114 TFEU is the most important one. The reach of art. 114 TFEU was confronted in the case Tobacco Advertising. The key points are that art. 114 does not provide a general power to regulate the economy: measures adopted under it must genuinely seek to establish the internal market. This means two things: either the measure must eliminate obstacles or it must deal with appreciable distortions.

• Article 114 (4) allows a member state to maintain a higher level of protection, then what was envisaged in a harmonization measure. A derogation for pre-existing national rules is provided.

• Article 114 (5) provides a derogation for new national rules adopted after the harmonization.Again there are cumulative conditions:

• Total harmonization takes place when an EU measure regulates something exhaustively, not leaving any room for rules of member states. A consequence is that a national rule that complies with an EU measure is no longer open to challenge on the basis of the four freedoms.

• Minimum harmonization sets the floor below which member states cannot go. But they are free to adopt more demanding rules.

How does the free movement of goods work? - BulletPoints 12

• According to art. 28 (1) TFEU, the EU constitutes a customs union, which entails liberalization of trades, but also entails the establishment of uniform rules for goods coming from third countries. Therefore there is an external and an internal dimension.

• The provisions on free movements apply to goods originating in any member state: this is states in art. 28 (2) TFEU. The provisions also extend to products that come from third countries, that are in free circulation in member states. They are to be considered in free circulation if the import formalities have been complied with and any custom duties or CEEs due have been levied in a member state.

• In Commission v Italy the court defined goods as 'products which can be valued in money and which are capable of forming the subject of commercial transactions'. This definition is not exhaustive.

• The provisions are about borders between member state. However, case law has made it clear that a charge on an internal border can also be regarded to as an CEE.

• Article 34 TFEU states that quantitive restrictions (QRs) and measures of equivalent effect (MEEs) are prohibited. These provisions are intended to eliminate non-fiscal barriers.

• The Court has established that the prohibition on QRs covers measures which amount to a total or partial restraint of imports, exports or goods in transit.

• Article 35 TFEU is about restrictions on exports. The Court says that art. 35 only covers measures that discriminate against goods intended for export in favour of those destined for the domestic market.

• Art. 36 lays down exceptions to art. 34 and 35. The mandatory requirements are the grounds of justification not mentioned in art. 36. In Cassis de Dijon they appeared for the first them, the Court there recognized three public interest exceptions: the prevention of tax evasion, the prevention of unfair competition and consumer protection. Others followed: environmental protection, improvement of working conditions, fundamental rights.

• Proportionality is a general principle. The word 'justified' in art. 36 should be understood to mean 'necessary'. The measure is not proportionate if it's not appropriate (applied in a systematic manner). An aspect of proportionality is mutual recognition.

• Art. 34 and 35 are directly effective. Therefore persons who suffer from it are entitled to an effective remedy. In appropriate circumstances, the usual remedies should be available: annulment, injunctions and damages

• Art. 110 TFEU prevents member states from circumventing the prohibitions in art. 30/34/36 TFEU by introducing internal taxes. This article relates to imported products and products intended for domestic consumption. The provision 'covers all taxation procedures which directly or indirectly conflict with the principle of equality of treatment.'

• According to the court a comparison between products has to be made between products which have similar characteristic and satisfy the same consumer needs, at the same stage of production. The concept of similarity has been interpreted broadly by the Court, but there are no real clear boundaries.

• According to art. 110 member states must ensure that their taxation is neutral between imported and domestic products. It prohibits direct and indirect discrimination.

What are the rules on free movement of natural persons and citizenship of the Union? - BulletPoints 13

• Since the Maastricht Treaty every person with the nationality of a member state, is a citizen of the Union (art. 20 TFEU). This gives them the right to free movement (art. 21 TFEU)

• In the Viking case, the Court states that even in areas such as social security, taxation and strike action, where the EU has no competence to legislate, the four freedoms and their provisions will still apply.

• The workers must be involved in economic activity. This is the decisive factor. In many cases economic activity is assumed. In Jundt the Court ruled that the activity must not be provided for nothing'. However for art. 21 to apply they merely have to hold the nationality of one of the member states.

• In Lawrie-Blum the Court said that the essential feature of an employment relationship that 'for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration'.

• Art. 49 (freedom of establishment) focuses on independent labour. The distinction with service providers (art. 56) might be hard. In Gebhard the Court clarified that if the service provision is on a 'stable and continuous basis' art. 49 will apply. If it's temporary, art. 56 will apply.

• Case law makes clear that the Treaty provisions have vertical as well as horizontal direct effect. However, with art. 49 and 56 it isn't clear if they really have horizontal effect as well or if it's just an extended vertical effect.

• With workers, the Workers Regulation 492/11 and the CRD (Capital Requirements Directive) are important. For the self-employed it is only the CRD. Service providers don't fall under the CRD, but they could fall within art. 6 CRD and art. 7 CRD.

• Union citizens have the right to residence another member state for up to three months without being subject to any conditions or formalities. However, the citizens who are not economically active are not entitled to equal treatment in respect of social assistance or student loans.

• They can stay for longer than three months if they fulfill certain confition. These conditions are only about economically active and semi-economically active migrants. Economically active migrant EU citizens enjoy equal treatment with nationals. Semi-economically active migrants will enjoy equal treatment except in respect of maintenance aid for studies.

• EU migrants with permanent residence enjoy equal treatment with nationals. There are two ways of acquiring permanent residence: EU citizens residing in the host state for more than five years will have the right of permanent residence. Workers and self-employed migrants have the right to permanent resident if there in one of the following situations:

• EU migrants can migrate with their family members, including third country nationals (TCNs). Family members fall in the categories of those who must be admitted and those whose entry and residence the host state merely must facilitate.

• The Court developed a principle of mutual recognition of qualification: this means that a host state can compare a migrant's qualifications with those required by the national system. If these were equivalent the host had to recognize the diploma.

• Migrant citizens enjoy the right to vote in local and European elections, they have the right to diplomatic and consular protection and migrants enjoy the right to equal treatment. The right of equal treatment can be read from art. 21, 20 (2) and 18 TFEU. With the CRD the equality principle is even more protected

• In situations that fall outside the scope of the CRD and Regulation 492/11 the Court has applied the Treaty. Discriminatory national rules wil always breach the Treaty. Now non-discriminatory rules can still be considered as restrictions to free movement, when they hinder market access.

• Individuals can in their first three months be refused/deported on one of the three grounds. The key issue for the public policy and public security derogations is personal conduct. The member state does have to consider whether it is proportionate and in accordance with fundamental rights to refuse/deport.

• The only ground on which the state can deport after three months is public policy or public security. The state must take into account the human right questions and the proportionality as well as the degree of the individual's integration into society

• After five years they can only be deported on serious grounds of public policy.

• Once a breach has been established and the member state invokes an exception, derogation or justification, it must be read subject to the principles of fundamental human rights and proportionality.

What are the rules on the free movement of legal persons and the provision of services? - BulletPoints 14

• Articles 49 and 56 TFEU apply only to movements of the self-employed and companies within the EU/EEA, whereas article 63 applies to movements of capital within the EU/EEA and between the EU/EEA and third countries.

• The borderline between freedom of establishment and free movement of capital is difficult. The Court looks at the object and purpose of the rule.

• The Court prohibited direct and indirect discrimination. Direct discrimination concerns less favorable treatment on the grounds of origin or on the grounds of establishment in another member state. Indirect discrimination concerns a rule, which applies to all companies, but disadvantages the companies with only a branch in the host state.

• The Court can find that rules that are non-discriminatory still hinder market acces (see chapter 13).

• Member states do remain free (under public international law) to identify the tax base, the tax rate, the way of collecting and the tax unit. The principle of territoriality entails that resident companies are taxed on their worldwide profits and non-resident companies are only taxed on the profits from sources located in the taxing state.

• Art. 52 (1) and 62 allow member states to derogate on the grounds of public policy, public security and public health. The general rules which apply are set out in Église de Scientologie (see chapter 13)

• There is an exception from the free movement rules for the exercise of official authority. The meaning of that was defined in Reyners: it applies only to those activities that have a direct and specific connection with official authority.

• The EU legislature adopted a set of directive that were designed to create an internal market utilizing the device of mutual recognition: minimum standards were established. Later the directives went to full harmonization. Currently efforts are on the way of establishing a full banking union. As can be seen: there's been a focus on greater centralization

• There are still holes in the EU legislation in which national law applies. This can be problematic, for example: in Germany and France the seat of a company is determined by the real seat theory, which says that a company is to be established under the law of the state in which its operational headquarters are. Another theory used by for example the UK is the incorporation theory, which says a company is subject to the law of the state in which it is formally incorporated.

What are the rules on the free movement of capital? - BulletPoints 15

• Capital movements cover those resources used for investment intended to generate revenue. It covers all financial dealings relating to trade in goods and services.The Court has given some indications on what is meant by capital: Investments in and transfers of immovable property, Acquisition of shares or securities in the capital markets, Receipts of dividends

• The Court is often ambiguous as to whether the rules on capital, establishment or both should be applied. Holböck and Scheunemann provide examples of the division works. In Reischi the Court clarified that the right to acquire, use or dispose of immovable property on another member state generates capital movement when it is exercised.

• Art. 63 creates vertical direct effect. The manner in which art. 63 applies to measures that don't depend on public law powers has not been resolved yet and the issue of horizontal effect has not yet been addressed by the Court as well.

• The Court has never applied free movement of capital to a wholly internal situation. With other freedoms, it has been cleared up that when a cross-border element is in place, a national of a member state is free to invoke the Treaty's provisions against their own national authorities.

• The persons invoking the free movement of capital right need not be nationals of a member state; nor is it necessary that the currencies are those of a member state. The Court also stated that the same concept of 'restriction' applies whether the relation is between member states or a member state and a third country. Whether it's between member states or member states and third countries could affect whether a restriction can be justified.

• In UK Golden Shares the Court stated that the prohibition of art. 63 goes beyond the elimination of discrimination. If a rule doesn't discriminate, it could still fall in the scope of art. 63.

• Article 65 (1) (a) TFEU is about fiscal matters: the provisions of art. 63 should be without prejudice to the right of member states to apply tax law between taxpayers who are not in the same situation. In Verkooijen it is confirmed that the principle of proportionality would apply if this clause is invoked.

• Article 65 (1) (b) allows a member state to take al measures to prevent infringements of national law and regulation. It allows them to lay down procedures for the declaration of capital movements for administrative or statistical information as well. Lastly, a member states may take measures which are justified on grounds of public policy or public security.

• The national measure must allow traders or other persons invoking the freedom to be sure that any restriction will not be applied in a discriminatory manner, ass well as being clear when a particular restriction will be applied. The Court has ruled that if these requirements are not satisfied, the Treaty precludes such a measure without examining its proportionality.

What are the exceptions to the free movement rules? - BulletPoints 16

• When there's regulatory standards for a particular issue, derogation is only permitted if derogation is expressly provided for by the relevant legislation.

• When EU legislation provides for minimum harmonization, states remain free to adopt more stringent standards. However in Tobacco advertising it was stated that minimum harmonization measures must now include a free movement clause. Because of this, national measures that go beyond the standards can still be tested against the derogation and justification framework.

• Treaty freedoms may be derogated from for reasons connected to public policy, public security or public health.

• Discriminatory restrictions can only be defended on the grounds provided by the Treaty. Indirectly discriminatory and non-discriminatory restrictions can be defended by any public interest argument states wish to use.

• The open-ended justification route was first developed in Cassis the Dijon, the Court in this stated that other grounds than those in the Treaty can be used: for example the protection of press diversity or protecting workers.

• The Court has confirmed that national measures can be justified in order to meet imperative requirements or by overriding public interest reasons of justifying restrictions on the fundamental freedoms.

• Aims of a purely economic nature cannot constitute an overriding reason in the general interest justifying a restriction of a fundamental freedom. However, case law accepts that none the less interests of an economic nature can provide a legitimate defense to free movement restrictions.

• The Treaty can catch the actions of private bodies and private individuals, but can these individuals rely on derogation and justification frameworks? In Fra.Bo the Advocate General identified two approaches to this questions. In most judgement the Court applies the usual justification standards. But there's also a limited thread on what are 'special grounds in the private interest'.

• The function of the Court of Justice is different in direct actions and indirect actions. In infringement procedures the Court must decide directly on all aspects of the case, including the outcome of any justification and proportionality arguments. However, for preliminary rulings the Court only replies in abstract and general terms.

• Fundamental rights are protected as general principles of EU law and through the Charter of Fundamental Rights. The Court has made it clear that a member state may invoke public rights reasons to justify a measure that restricts the free movement rights, only if the measure is compatible with the fundamental rights.

• When a member state tries to extract itself from the free movement laws, the argument can be made that the national measures therefore fully fall outside the scope of Union law altogether. In ERT however, the Court held that these measures must be interpreted in the light of the general principles of law and in particular of fundamental rights. Therefore the frameworks of derogation and justification are part of Union law and any measures taken for that purpose therefore also fall under Union law.

• A restriction can only be justified if the measure is appropriate to ensure the attainment of the objective and does not go beyond what is necessary to attain it. The test of whether it is appropriate is referred to as the suitability test.

• Directive 2004/38 has laid down the extent to which member states can lawfully deport EU citizens from their territories.

• Art. 27 (2) states that a decision based on public policy or public security should comply with the principle of proportionality and it should be based exclusively on the personal conduct of the concerned individual. Personal conduct should be representing a genuine, present and sufficiently serious threat affecting one of the fundamental interests.

• Art. 28 of the Directive requires a member state to take into account considerations such as how long the individual has resided on the territory, the age, state of health, family, economic circumstances and social and cultural integration. The article also prescribes criteria for the nature of public policy and public security issues, which can be taken into account. When a resident has the status of permanent residence, they can only be expelled on serious grounds of public policy or public security. Only imperative grounds can justify an expulsion decision against a citizen who has resided in the host state for ten years or is a minor.

What are the provisions on competition law? - BulletPoints 17

• The two core TFEU competition rules are the rules governing anti-competitive agreements (art. 101) and abuse of a dominant position (art. 102).

• Council Regulation 1/2003 gives powers to the Commission to enforce articles 101 and 102. The case law of the European Court of Human Rights states that decisions are subject to review by EU Courts. The burden is on the Commission or other person, alleging an infringement, to establish sufficiently precise and coherent proof of an infringement.

• Regulation 1/2003 removed the Commission's exclusive competence to apply art. 101 and 102. Therefore they could be enforced at a national level. The National Competent Authorities (NCAs) are now permitted to apply articles 101 and 102 in addition to the national competition laws. They often have the power to fine undertakings when they breach the articles or in some countries even stricter sanctions.

• Art. 101 and 102 apply to undertakings: every entity engaged in economic activity, regardless of the legal status of the entity and the way in which it is financed as defined in Höfner.

• Economic activity is the offering of goods or services on a market. An entity might be regarded as an undertaking for one part of its activities while the rest does not fall under the competition rules. It is not good enough if an a state is just purchasing goods. Consumers consuming is not considered as an economic activity either.

• The Court has held that in order to fall within art. 101 the agreement must affect trade between member states and the free play of competition to an appreciable extent. Therefore there must be a minimum level of cross-border effects.

• Article 101 (1) prohibits joint conduct. There is some element of collusion between independent undertaking. The different types of collusion are distinguishable by their intensity and the forms in which they manifest themselves.

• When undertakings have expressed their joint intention to conduct themselves on the market in a specific way, an agreement is made. An agreement may also be found where an offer to collude is accepted tacitly.

• The term concerted practice does not require an agreement, but catches reciprocal coordination which substitutes practical co-operation. Firms who do this may be found not to be acting independently and fall under 101.

• An agreement is likely to be of minor importance when it does not contain object restraints and the parties market does not exceed 10% (when it's between competitors) or 15% (when it is between non-competitors).

• Art. 102 prohibits abuse by one or more undertakings of a dominant position. The dominant position must be in the internal market or in a substantial part of it.

• Where market shares are very large the Court stated that that generally is a good proxy for dominance. There is a presumption of dominance for firms with a market share of 50% or more. Not only should the market shares be considered, but it should also be compared to those of its rivals, it should be considered how the shares have changed over time, the dynamics of the market should be determined etc.

• Art. 102 specifically targets exploitative behavior such as charging customers more than the competitive price or through providing an inferior service.

• There's a difficult line between unlawful exclusionary behavior and competition on the basis of performance or competition on the merits.

• The Courts have consistently held that a dominant undertaking may provide objective justification for behavior that is otherwise prohibited. The dominant undertaking should show that the gains counteract the negative effects.

What EU law applies to public services? - BulletPoints 18

• Services in EU law are defined in art. 57 TFEU, however public services are not defined. Opinions on what a public service is differ per member state. They are understood as services that supply some public good, thus a good of which the consumption is in the general interest. When the State does not perform the public service itself, it usually defines the characteristics of the service.

• EU law does recognize the concept of SGEIs (Services of General Economic Interest) in art. 14 and art. 106 TFEU. SGEIs are a subcategory of Services of General Interest (SGIs). SGEIs are economic in nature. Qualifying as an SGEI requires that the services involved are provided by undertakings in markets.

• Article 106 TFEU is the main substantive provision with regard to SGEIs. It states that special rights may not breach the provisions of the Treaty. This is referring to the rules on competition and free movement. An exception is warranted to the extent that this is proportional to the public interest pursued and the measures must be: suitable to their goal, necessary in the sense of employing the least restrictive means

• The rules on commercial monopolies can be found in art. 37 TFEU. Article 37 prohibits quantitative restrictions and measures of equivalent effect (MEEs) between member states. Monopolies in themselves are not prohibited: they need to be adjusted to ensure the abolition of discrimination.

• Whether State aid is involved in public service compensation, is the Altmark test under art. 107 TFEU. The question whether if aid is involved, this may merit an exemption under 106 (2) has been addressed most in the Viasat case. The Court stated that these two test have to be applied sequentially:

• In Altmark the Court ruled that if the undertaking concerned was entrusted with a PSO (Public Service Obligation) in exchange for its financing, there could be no case of State aid, because the compensation was a quid pro quo instead of an economic advantage. In order for State aid rules to apply the Altmark conditions should be satisfied: 1) The undertaking is actually required to discharge PSOs and those obligations have been clearly defined, 2) The parameters on the basis of which the compensation is calculated have been established beforehand is an objective and transparant manner, 3) The Compensation does not exceed what is necessary to cover the costs incurred in discharging the PSOs, 4) Where the undertaking which is to discharge PSOs is not chosen in a public procurement procedure, the level of compensation needed has been determined on the basis of an analysis of the costs with a typical undertaking

• If a public service is provided by undertakings, then competition and State aid rules usually apply. Public tasks must be clearly defined and any restrictions on competition must be necessary and the costs may not exceed the public benefits achieved.

How was the EMU established? - BulletPoints 19

• The EMU is one of the most important aspects of EU integration. It envisages a single monetary policy, conducted by a single monetary authority, a single currency and coordination of national economic policies.

• The limits on national fiscal policies were initially laid down in the Treaties as well as the Stability and Growth Pact. Member states agreed to keep their annual deficit below a certain percentage of their Gross Domestic Product (GDP). This was called the 'preventive arm' of the Pact. The Council could also penalize a member state that didn't obey the rules: the 'corrective arm' of the Pact. The corrective arm however lacked effectiveness. Therefore the Pact was reformed in 2005.

• In the crisis, markets started to doubt the ability of Ireland, Portugal and Greece to repay the debts they had. They all got loans from the International Monetary Fund as financial assistance. It did help Ireland and Portugal, but Greece had bigger problems. Greece had a greater debt than everyone knew. Because of the mistrust, borrowing money got more expensive and other countries saw their economy threatened.

• The EU response had many aspects. A quick intervention was necessary at first to stabilize the situation of euro countries. Loan facilities were created and the European Central Bank helped. Then several measures were adopted to improve budgetary surveillance and economic coordination. Lastly, the EU has undertaken important reforms aimed to create a stronger financial framework and a 'banking union'.

• According to the Treaties the ECB cannot provide liquidity directly to the EU of member state. The main task of the ECB was maintaining price stability. The ECB had to adjust this role in the crisis: it intervened in the markets to assist euro countries, it bought their bonds directly (this is prohibited in the Treaty). The role of the ECB continues to evolve and expand.

• In 2011 the European Council agreed that a new Treaty had to be established. This Treaty would be purely intergovernmental adopted outside the EU framework. The Treaty on Stability, Coordination and Governance (TSCG). One part deals with budgetary discipline, the other with economic convergence and cooperation.

What are the EU's laws on labour and equality? - BulletPoints 20

• Labour law regulates the employment relationship and employment rights, but it also regulates the labour market in general. Equality law is a central part of labour law, but it now extends beyond labour as well.

• EU law on labour and equality aims for partial harmonization od the different industrial relation systems. EU labour law emphasizes and regulates issues of a cross-border nature.

• EU labour and equality law is an area of shared competence, therefore the principles of subsidiarity and proportionality are important.

• The Restructuring Directives (The Transfer of Undertakings Directive, the Collective Redundancies Directive, the Employer Insolvency Directive) were adopted to address social consequences of restructuring and economic change and they aimed to increase the protection of employees.

• The Posted Workers Directive 96/71 aims to enable free movement and to provide protection for workers. The focus is on posted workers and their terms and conditions, not on workers in the host State and their protection.

• In Laval the Court concluded that the collective action did constitute a restriction on the free movement of services. The right to collective action for the protection of workers could constitute an overriding reason of public interest, but it wasn't.

• In Viking the Court found that the collective action did constitute a restriction on the freedom of establishment. The national court had to rule itself on the proportionality and justification.

• First equality law only contained protection against discrimination on grounds of nationality and gender. Through the Treaty of Amsterdam (1999) the scope of combatting discrimination was broadened to sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

• Direct discrimination cannot be justified, there are however some exemptions from the equal treatment principle, for example provisions for the protection of women and as regards employment where 'by reason of the nature of the particular occupational activities concerned or the context in which they are carried out such a characteristic constitutes a genuine and determining occupational requirement' (the GOR test).

• The Race Directive 2000/43 combats discrimination on grounds of racial origin. Art. 2 states that direct discrimination requires one person to have been treated less favorably. In Firma Feryn the Court however found that if an employer would not recruit employees of a certain origin still constituted direct discrimination, even though there was no real victim.

What are the EU's health laws? - BulletPoints 21

• Eu health law has been developed through litigation, Treaty reform and EU legislation.

• Patient mobility is ensured by EU legislation covering migrant workers; Treaty law on free movement of services; and EU legislation on patients right.

• Art. 56 TFEU is about the freedom of services. The Court has stated that this also is about recipients of services. Private medical services fall within the scope of this article.

• In the Kohll case the Court held that 'the special nature of certain services does not remove them from the fundamental principle of freedom of movement'.

• In the 70s some directives aimed to promote free movement by enabling the automatic recognition in all member states of a license to practice a profession (e.g. doctor, nurse) in one member state. Each sector was covered by two directives: one defining the level of minimum educational requirements and the other listing all diplomas which satisfy these requirements.

• In the 80s the EU moved to a system of general directives on mutual recognitions. In this system, member states are required to consider, case by case, whether a qualification is equivalent to its own qualification.

• EU law on freedom of establishment and freedom to provide services applies to health care institutions where they provide services for remuneration. Policy should be justified by a public interest and the proportionality test should be met. The proportionality test is very flexible, therefore the Court can distinguish between the institutions that are closely associated with a national health care system and those that are not.

• When a member states has a health care system on a social solidarity flooring, healthcare institutions will not be covered by EU law. If the state however acts as an economic operator, then EU law will apply.

What does the EU's environmental law entail? - BulletPoints 22

• The Treaty of Rome did not contain any reference to the environment. At the first global summit on environmental protection in 1972 the urgent need for environmental protection was recognized. In 1985 the Court affirmed that environmental protection now was one of the Community's essential objectives. In the SEA an explicit legal basis for environmental law was created. The Maastricht Treaty elevated environmental protection to be one of the main objectives of the EC. The Treaty of Amsterdam fine-tuned the inclusion of environmental protection. The Lisbon Treaty singled out climate change as one of the global environmental issues in which the EU is expected to play a significant role. An emphasis was placed on the international dimension of the EU environmental policy.

• The principle of a high level of environmental protection prevents the EU from adopting the lowest common denominator among the member states' environmental protection measures. It doesn't necessarily call for the highest standard that is possible.

• The precautionary principle provides guidance in situations of scientific uncertainty. It's a risk-managing tool.

• The prevention principle calls for taking action at an early stage. Preventing damage and not repairing it.

• The rectification at source principle means that the damage should as a priority be rectified at its source.

• The polluter pays principle means that the costs of the measure should be borne by those causing the pollution.

• The principle of environmental integration acts as a mechanism for the operationalization of sustainable developments. It aims to prevent environmental protection from being undermined by developments in other fields. It does not assign priority to environmental concerns, it just obliges the Union to reach a balance with the other objectives.

• The principle of sustainable development aims to balance between the three pillars: environmental, social and economic development.

• The EU's laws on nature protection are mainly focused on traditional conservation measures. There are two main directives in nature protection law: the Wild Birds Directive and the Habitats Directive

• The main directive on water is the 2000 Water Framework Directive (WFD), which ensures the implementation of international agreements on the protection of fresh water and marine water.

• The 2009 Climate and Energy Package is a set of legal acts aimed at responding to European and global climate change. The sustainable development package is significant: the law offers opportunities to explore the use of economic instruments to support protection of the environment

• EU environmental law aims to fulfill the international obligations. The EU increasingly develops its regulation to anticipate or influence the making of international environmental law.

What are the EU's consumer laws? - BulletPoints 23

• The EU has aimed to remove national rules that claimed to protect consumers, but acted as unjustified barriers to trade. A harmonized approach seems to be the only way to promote the free circulation of goods and services.

• Art. 169 provides for a specific consumer protection provision. Not many EU provisions rely on this article as a legal base for consumer protection rules. Most provisions are based on article 114 TFEU which provides for the adoption of measures for the approximation of the provisions laid down by law, regulation of administrative action in member states. This might explain why there's a dominance of the internal market perspective in the consumer policy.

• Regulations are the preferred legislative instrument for consumer protection regulation.

• The EU puts a great focus on information provisions. If consumers have more information, they will make better decisions.

• The right of withdrawal gives consumers encouragement to buy with the confidence that they can return goods that do not meet their expectations. There are some limitation on its effectiveness. Consumer behavior for example shows that consumers can be reluctant to admit that they made a poor choice and they will not withdraw from the contract. Sometimes it can be had as well to determine whether to return in the time allowed to withdraw.

• The EU adopted a General Product Safety Directive in 1992 that set general safety requirements for all consumer products, that applied when there were no specific EU rules.

How does the EU organize its relations to the outside world? - BulletPoints 24

• The High Representative was introduced by the Lisbon Treaty to ensure consistency of the Union's external action.

• The CFSP has an absence of a precise list of what it encompasses. The allocation of competences consists of he general grant of competence in art. 24 (1). Article 21 (2) provides some CFSP objectives.

• In the Lisbon Treaty the legal personality is given by art. 47 TEU. Article 216 (1) TFEU affirms the capacity of the Union to conclude international agreements.

• The implied competences have been relief on the most when it comes to external action. The implied external competences has been codified in art. 216 TFEU. It encompasses three principles

• The ERTA principle entails that the member states are not allowed to act internationally in a way that would affect existing EU law. The member states' competence is thus excluded, which means that the EU has to act.

• The complementarity principle entails that the Union may act when it is necessary to achieve one of the objectives referred to in the Treaties.

• The Union can take external action as well where the conclusion of an agreement is provided for in a legally binding Union act (a directive, regulation or decision).

• The possibility for an EU external competence to become exclusive through the exercise of an internal competence is called the ERTA doctrine. Determining whether and to what extent the EU has exclusive external competence requires a detailed analysis.

• If the possibility to conclude an international agreement is provided for in a legally binding Union act, the EU gets competence on the basis of art. 216 (1) TFEU. But if that same possibility is provided for in a legislative act, the Union acquires exclusive competence to conclude that agreement (thus through art. 3 TFEU).

• When there's an exclusive competence, only the Union may legislate and adopt legally binding acts. The member states can only act when the Union has specifically asked them to implement an act.

• International agreements in shared competences lay down minimal standards. The Union may decide to raise these standards.

• Parallel competences leave the Union and the member states competent to act internationally without being able to prevent the other from acting.

• CSFP measures are in the first place to be implemented by the member states, however where uniform conditions for implementing legally binding CFSP acts are needed, those acts confer implementing powers on the Council (as opposed to the Commission in the ordinary method).

• The High Representative is to form a bridge between the CFSP and the other elements of the EU's external action. Art. 27 (3) provides that the High Representative is to be assisted by the EEAS.The EEAS is adopted as a functionally autonomous body separate from the General Secretariat of the Council and from the Commission with the legal capacity necessary to perform its tasks and attain its objectives.

• EU decision-making and external representation need to be distinguished. Art. 17 TEU provide that with exception of the CFSP, the Commission is to ensure the Union's external representation

• Mixed agreements are agreements that include among their parties the Union and some of the member states and that fall partly within the competence of the EU and party in the competence of the states.

• The majority of mixed agreements is negotiated under art. 218 TFEU. A mixed agreement is ratified through the normal art. 218 TFEU procedure. Mixed agreements concluded by the Union are an integral part of the EU legal order.

• The principle of sincere cooperation is laid down in art. 4 (3) TEU. It requires member states and the Union to assist each other in carrying out tasks.

• The Union's external action operates as a multi-level system. This is a very complex system.

What is the EU's criminal law? - BulletPoints 25

• There's a tension between member states having a practical necessity for certain problems to be dealt with at an EU level and a resistance with this happening. This means that the criminal law in the EU mainly is focused on helping and encouraging that criminal justice systems of the different states work together instead of making uniform rules.

• One of the main reasons for the existence of EU criminal law is to deal with the unwanted consequences of the free movement rules: the free movement of crimes and criminals.

• The main powers of the EU to legislate are contained in articles 82 to 89 of the TFEU. Art. 82 is about criminal procedure. The EU may lay down rules and procedures for ensuring recognition throughout the Union. The EU is allowed to adopt directives to establish minimum rules as well. Art. 83 provides that the European Parliament and the Council can enact directives establishing minimum rules for defining criminal offenses and sanctions. Art. 87 to 89 confer competences in relation to police cooperation.

• OLAF is the European Anti-Fraud Office. It conducts administrative investigations for the purpose of fighting fraud, corruption and any other illegal activities. It is equipped with wide inquisitorial powers.

• Europol is the European Police Office. It supports and strengthens action by the competent authorities of the member states and their mutual cooperation.

• Eurojust does what Europol does for the police for the prosecutors.

• Mutual recognition is the arrangement whereby the decisions and rulings of the courts from one legal systems are accepted by those of another legal system. There are various mutual recognition instruments, but the European Arrest Warrant (EAW) has had the greatest impact.

• When it comes to harmonization of substantive criminal law, there are worries that these instruments impose unreasonable burdens of criminalization on the member states.

How does the EU deal with immigration and asylum issues? - BulletPoints 26

• The EU has to manage two conflicts: the balance between EU competence in the field of immigration and asylum and national sovereignty, and the balance between immigration control and the protection of human rights.

• Initially the legal framework was an informal intergovernmental system. Member states either agreed Conventions among themselves or adopted non-binding acts such as regulations or recommendations. With the entry into force of the TEU, it became a formal intergovernmental system, which set out framework for the adoption of measures by the Council.

• The Treaty of Lisbon completed the process of applying the usual Community method. The co-decision process (inc. QMV) has been applied to the issue of legal migration ever since.

• The application of the borders code is complemented by the Schengen Information System. It provides for a system of issuing alerts for refusal of entry of third-country nationals who should be refused entry in the Schengen area.

• In 2001 the Council adopted a Regulation which completely harmonized the lists of the countries whose nationals did require a visa to cross external borders. The criteria to waive a visa requirement are usually political and take foreign policy consideration into account. The visa application system is now bolstered by the VIS, which has been rolled out worldwide. The EU's visa regime is becoming more liberal.

• Art. 67 (2) TFEU provides that the EU 'shall frame a common policy on asylum, immigration and external border control, based on solidarity between member states, which is fair towards third-country nationals. Art. 79 (1) only requires the EU to be fair toward legally resident third-country nationals. (2) of the same article sets out the powers to regulate migration for the purposes set out in art. 79 (1).

• The objectives can be found in art. 79 (1) TFEU, which provides that the EU 'shall develop a common immigration policy aimed at ensuring, at all stages .. fair treatment of third-country nationals residing legally in member states.

• The Treaty of Amsterdam granted the EU powers to set minimum standards as regards asylum law. EU leaders, however, decided that the EU should aim to establish a Common European Asylum System (CEAS). The first phase of this legislation was adopted around 2003 and consisted of a Directive on the qualification for and content of refugee and subsidiary protection status (the Qualification Directive). The second phase was established in 2013. This legislation provides for further harmonization.

• The EU legislation raises issues. For example issues concerning the definition of refugee and subsidiary protection status.

• The core definition of a refugee is a person who has 'a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group'.

• As for subsidiary protection, it must be granted where there are 'substantial grounds' for believing that the person faces a real risk of serious harm.

What is the legal dimension of the Brexit? - BulletPoints 27

• The Vienna Convention on the Law of Treaties provides for consensual withdrawal. This is complemented by art. 56 which states that a treaty without a provision regarding withdrawal, is not subject to withdrawal. Only in exceptional situations withdrawal is possible.

• With the Lisbon Treaty a withdrawal provision was introduced: art. 50 TEU. Leaving the EU is now governed by the internal rules of the EU.

• Art. 50 (1) provides that a member state may withdraw in accordance with its own domestic constitutional requirements. The UK's leave was governed by the European Union Referendum Act 2015. It sets out rules governing who could vote in the referendum and provided for citizens who had moved to another member state, if they had been gone for over 15 years, they could not vote in the referendum. This Act does not fall within the scope of EU law.

• A member state that decides to withdraw shall notify the European Council of its intention. Did the outcome of the referendum constitute a decision to withdraw? There is nothing in the provisions of the European Union Referendum Act 2015 that said that it was binding.

• There is a distinction between the withdrawal agreement under art. 50 and any future agreement providing for future relations between the UK and the EU. The actual withdrawing agreement will only deal with the actual terms of terminating the membership and a separate agreement will be made on the future relation.