Cover
Half title
Oxford Principles of European Union Law
Copyright
Summary Contents
Table of Contents
Table of European Court of Justice Cases
Table of General Court Cases
Table of Legislation
Table of Treaties and International Instruments
Table of Treaty on the European Union (TEU) Provisions
Table of Treaty on the Functioning of the European Union (TFEU) Provisions
Table of Equivalences
Part I: History and Nature
1. An Historical Perspective I: From Community to Union (1957–1993)
I. The Launching of the EEC: 1952–1972
A. Visions and Reality: The EEC Treaty
B. The EEC Governing Institutions Begin Operations
C. The Court of Justice: Composition, Operational Role, and Constitutional Doctrines
(1) Structure and Operational Role
(2) The Court’s Constitutional Doctrines
D. The European Council Authorizes the First Enlargement
II. 1973–1984: Post-enlargement Progress Followed by Euro-stagnation
A. The European Council Provides New Political Leadership
B. Constitutional Developments: The Direct Election of Parliament
C. The Court’s Constitutional Doctrines
D. Progress Towards Achieving the Common Market
E. New Fields of Action: Social Policy, Environmental Protection, and Consumer Protection
III. 1985–1993—New Horizons: The Internal Market Programme and the Single European Act
A. The June 1985 Internal Market Programme
B. The Single European Act Rejuvenates the EEC
C. New Ambitions: Monetary Union and the Maastricht Treaty
(1) The Road to Monetary Union
(2) The Road to Maastricht
D. The Social Charter and the 1989 Social Action Programme
E. Continuity in Court of Justice Doctrines
IV. Conclusion
2. An Historical Perspective II: The New Architecture (1994–2009)
I. Introduction
A. The Community Governmental Institutions Take on a Modern Look
B. Enlargement: The Union’s Success Proves a Magnet
C. The Road to Monetary Union and the Euro
D. Maastricht and Amsterdam Treaty Innovations
(1) The Subsidiarity Principle
(2) Citizenship of the Union: Rights of Free Movement and Residence
(3) New Fields: Social Policy, Employment Policy, Consumer Protection, Education, and Public Health
(4) The 2000 Anti-discrimination Directives
(5) The Charter of Fundamental Rights
E. Noteworthy European Community Developments, 1994–2009
(1) Internal Market Programmes and Legislation
(2) External Commercial Relations and Trade Policies
(3) Competition Policy
F. The Pillars: Intergovernmental Fields of Action
(1) Common Foreign and Security Policy (CFSP)
(2) Cooperation in Justice and Home Affairs (CJHA)
II. Conclusion
3. An International Perspective
I. Introduction
II. The European Union as a Global Actor
A. ‘State-Like’ Actions of the EU in International Relations?
B. Classifying the EU under Public International Law
C. The Division of Competences between the EU and its Member States: Special Treatment?
III. Reconsidering the Union’s External Posture in the Light of Sovereignty
A. Sovereignty and Statehood
B. Sovereignty under Public International Law: A Popular Element?
C. EU Law’s ‘Original’ Nature Built on Assumed Sovereign Rights
D. The National Perspective
IV. Classification and Conclusion
4. A Constitutional Perspective
I. Introduction
II. An Autonomous, Self-sufficient, and Coherent System of Norms
III. The Constitutional Features of EU Law
A. Individual Liberty, the General Interest, and Constitutional Pluralism
(1) Limitations on Individual Liberty
(2) Individual Liberty, EU Harmonization, and Value Diversity
(a) In the Presence of EU harmonization
(b) In the Absence of EU harmonization
B. Federalism and the EU
(1) The Principle of Conferral
(2) Subsidiarity and Proportionality
(a) The Principle of subsidiarity
(b) The Principle of proportionality
(3) The Principle of Sincere Cooperation
(4) The Principle of National (Constitutional) Identity
(5) Within and beyond the Bounds of the Principle of Conferral
(6) Mutual Trust and Mutual Recognition
C. The Principle of Institutional Balance
(1) The Principle of Institutional Balance and the European Parliament
(2) The Principle of Institutional Balance as Applied to the ECJ
(3) New Challenges to the EU Institutional Framework
(a) EU Agencies
(b) A new form of governance?
IV. The EU Principle of Democracy
A. The Democratic Transformation of the EU
B. Understanding Democracy in a Supranational Context
C. The EU Principle of Democracy as Applied by the ECJ
V. Concluding Remarks: A Constitutional Order of States and Their Peoples
5. A Comparative Perspective
I. Two Europes
A. Federal Europe
(1) Competences
(2) Sovereignty
(3) Subsidiarity
(4) Constitutionalism and the Democratic Deficit
B. Intergovernmental Europe
(1) Governmental Capacity
(2) Administrative Capacity and Implementation
(3) Identity
II. The Future of European Integration: Of Federalism and Time
A. ‘Ever Closer Union’?
B. Shocks to the System: The Euro and Other Crises
(1) Fiscal Federalism and Member State Sovereignty
(2) Variable Geometry and Intergovernmentalism
III. Conclusion
Part II: Constitutional Foundations
6. The Competences of the Union
I. Introduction
II. Express Provisions Defining EU Competences
A. Getting to Grips with the Lisbon Typology
B. Exclusive Competence
C. Shared Competence
Recourse to Article 114 TFEU
D. Supporting Competence
E. Separate Categories of Competence
III. Express Embodiments of Implied Competence
A. The Flexibility Clause of Article 352 TFEU
B. External Implied Competence under Article 216(1) TFEU
IV. The Balance of EU Competences
V. Concluding Remarks: The Future
7. The Principle of Subsidiarity
I. Introduction
II. Nature and Meaning
III. Philosophical Foundations
IV. Judicial Safeguards
V. Political Safeguards
VI. Conclusion
8. The Principle of Proportionality
I. Definition and Scope
II. What Does Proportionality Entail?
A. Suitability
III. The Less Restrictive Alternative Test
A. The Standard of Scrutiny
B. The Manifestly Inappropriate Test
C. Strict Scrutiny
IV. Proportionality and the Internal Market
V. Proportionality and Limitations on Charter Rights
A. The Right to Personal Data and the Right to Family Life
B. Proportionality in the AFSJ
C. The Enduring Appeal of Proportionality
VI. Conclusions
9. Direct Effects and Indirect Effects of Union Law
I. Introduction
II. Direct Effect(s): General Principles
A. Direct Applicability and Direct Effect
B. Direct Effect: From Strict to Lenient Test
C. Addressees: Judicial and Executive Authorities
D. Dimensions: Vertical and Horizontal
III. Direct European Law: Special Principles
A. Primary Law: EU Treaties and Charter
B. EU Secondary Law: Regulations and Decisions
IV. Indirect European Law: Directives
A. Direct Effect: Conditions and Limits
B. The No-horizontal-direct-effect Rule
C. Vertical Effects: The Wide Definition of State (Actions)
D. (Incidental) Horizontal Direct Effect: An Exception to the Rule
V. External European Law: International Agreements
A. Direct Effect: Legal and Political Conditions
B. Dimensions: Vertical and Horizontal
C. Beyond Treaties: Customary International Law
VI. Indirect Effects: General Principles
A. Indirect Effects of European on National Law
B. Indirect Effects of Primary on Secondary Union Law
C. Indirect Effects of Secondary on Primary Union Law?
D. Indirect Effects of External on Internal Union Law
VII. Conclusion
10. The Twin Doctrines of Primacy and Pre-emption
I. Introduction
II. The Doctrine of EU Primacy
A. The Origins, Development, and Nature of EU Primacy
(1) EU Primacy’s Jurisprudential Genesis: From Humblet to Costa
(2) From Costa Onwards: The Manifold Primacy Mandate of National Organs
(3) The Nature of EU Primacy: ‘Constitutionalisation’ of a Treaty or ‘Creative Development’ of International Treaty Law?
B. The Scope and Limits of EU Primacy
(1) The Broader Context: International Treaties and Domestic Constitutions
(2) The Internal Limits to EU Primacy: A Non-absolute Principle
(3) The External Limits to EU Primacy: National Judicial Defiance as a Catalyst for Decentralized Change?
III. The Doctrine of EU Pre-emption
A. The Origins and Conceptualizations of EU Pre-emption
B. A Comprehensive Conceptual Framework for EU Pre-emption
C. Legislative Pre-emption: Conflicts Involving EU Secondary Law
(1) Scope-overlap Test
(2) Conflict Pre-emption
(3) Field Pre-emption
D. Constitutional Pre-emption: Conflicts Involving EU Primary Law
(1) Scope-overlap Test
(2) Conflict Pre-emption
(3) Field Pre-emption
E. ERTA Pre-emption: The Subsequent Exclusivity of EU External Competences
(1) Scope-overlap Test
(2) Conflict Pre-emption
(3) Field Pre-emption
IV. Conclusions
11. Sincere Cooperation and Respect for National Identities
I. Introduction: Article 4 of the Treaty on European Union
II. The Principle of Presumed Member State Competence
III. The Principle of Sincere Cooperation
A. The ‘Positive’ Obligation upon Member States to Take Any Appropriate Measure to Ensure Fulfilment of the Obligations Arising Out of EU Law
B. The ‘Negative’ Obligation upon Member States to Refrain from Any Measure Jeopardizing the Attainment of the Union’s Objectives
C. Loyalty in Comparative Perspective
(1) Sincere Cooperation in EU Law and Good Faith in International Law
(2) Sincere Cooperation in EU Law and Federal Fidelity in Constitutional Law
IV. The Principle of Respect for Member States’ National Identities
A. History of the Identity Clause
B. The Use of Article 4(2) TEU in the Case Law of the Court of Justice of the European Union
(1) Review of National Measures
(2) Review of EU Measures
V. The Unitary and Pluralist Twists of the European Integration Process
A. The Unitary Twist of the Principle of Sincere Cooperation
B. The Pluralist Twist of the Duty to Respect Member States’ National Identity
VI. Towards a Less ‘Integrationist-biased’ Concept of Sincere Cooperation? The New Balance Provided by the Treaty of Lisbon
12. The European Union and Fundamental Rights
I. Introduction
II. Fundamental Rights in the EU: The Growth of an Idea
III. The EU Charter of Fundamental Rights
A. The Earlier History of the Charter
B. The Content of the Charter
C. The Legal Effect and Scope of the Charter: Problematic Issues
(1) The Applicability of the Charter
(2) Protocol 30: An ‘Opt-out’ for the UK and Poland
(3) Horizontal Effect
(4) The Distinction between Rights and Principles
(5) The Charter and National Constitutional Law
(6) The Charter and the ECHR
IV. EU Accession to the ECHR
A. The Court’s Reasoning in Opinion 2/13
(1) The Specific Characteristics and the Autonomy of EU Law
(2) Article 344 TFEU
(3) The Co-respondent Mechanism
(4) The Procedure for the Prior Involvement of the Court of Justice
(5) The Specific Characteristics of EU Law as Regards Judicial Review in CFSP Matters
B. Reflections on the Opinion
C. The Bosphorus ‘Presumption of Equivalence’
D. The Future of the EU in the ECHR
V. Fundamental Rights as ‘General Principles of Law’
A. ‘The Sins of Youth’
B. Defensive Use of Human Rights
C. Binding the Member States
D. The Continuing General Principles of Jurisprudence
VI. Further Development of a Fundamental Rights Jurisprudence
A. Conflicts of Rights
B. Fundamental Rights at the Pinnacle of the EU Legal Order?
C. The Ongoing Dialogue with National Courts and Authorities
D. The Silence of EU Fundamental Rights Law?
E. A More Developed Fundamental Rights Law for the EU?
VII. Human Rights in the Broader Context
VIII. Conclusion
13. Amending the EU Treaties
I. Introduction
II. Ordinary Treaty Revision Procedure
A. Scope of the Procedure
B. Procedural Rules
III. Simplified Revision Procedures
A. Amendments to Part Three of the TFEU
(1) Overview
(2) Article 48(6) in Practice
(3) Procedural Rules
(4) Substantive Limits on Article 48(6)
B. Changes to Decision-making Rules
IV. Accession and Withdrawal
A. Accession Treaty Procedure
B. Withdrawal Procedure
V. Conclusions
Annex I
List of Special Legislative Procedures
(1) Covered by Article 48(7) TEU
(2) Not covered by Article 48(7) TEU
Annex II
List of Unanimous Voting Requirements
(1) Covered by Article 48(7) TEU
(2) Not covered by Article 48(7) TEU
Part III: Institutional Framework
14. The European Parliament
I. Introduction: Parliament as an ‘Institution’ and Representative of the Citizens
II. Composition of Parliament and Elections
A. Number and Allocation of Seats
B. Adoption of the Election Procedure
C. Electoral Procedure (1976 Act)
D. Rights to Vote and to Stand as a Candidate in European Parliament Elections
E. Verification of Credentials
F. Incompatibilities
G. Vacancy of Seat
III. The Role and Status of Members of the European Parliament
A. Representative Functions and Independence
B. Rights of Individual Members
C. Legal Proceedings by Individual Members of the European Parliament
D. Statute of Members of the European Parliament
E. Privileges and Immunities of Members of the European Parliament
(1) Absolute Immunity (Article 8 PPI)
(2) Qualified Immunity (Article 9 PPI)
(3) Justiciability of Immunity Decisions
(4) Disclosure of Certain Personal Data of Members of the European Parliament
IV. Organization of Parliament’s Work
A. Organizational Autonomy and the Treaty
B. Parliament’s Rules of Procedure
C. Officers of Parliament
D. Standing Parliamentary Committees and Interparliamentary Delegations
E. Political Groups
F. Political Parties at the European Level
G. The Seat and Working Places of the European Parliament
V. Supervisory Functions and Powers
A. Council and European Council
B. Commission
C. The European Ombudsman
D. Appointment Powers in Respect of other Institutions and Officers
E. Petitions
(1) Scope and Admissibility of Petitions
(2) Procedure for Handling Petitions
F. Inquiry Committees
VI. Parliament and the Court of Justice
VII. National Parliaments
15. The European Council
I. Introduction: Looking at a Key Institution
A. Political and Academic Relevance
B. Models: Contrasting Concepts and Assessments
(1) The Presidency Model: The European Council as Supreme Authority
(2) The Council Model: Towards Communitarization
(3) The i Model: The Dominant Multi-level Player
II. Basic Features: Legal Provisions and Real Performance
A. Legal Provisions: Ambiguous Formulations
B. Real World Observations: Search for Comprehensive Leadership
(1) Economic Governance: Towards an Economic Government
(2) External Action: A Voice for a Common Foreign and Security Policy
(3) Area of Freedom, Security, and Justice: Pre-constitutional and Pre-legislative Leadership
III. Inside the European Council: The Puzzle of Consensus Formation
A. Working Style: Confidential Deliberations
B. The Role of the President
(1) History and Legal Provisions
(2) The Election of the President: Constraints for an Ambitious Leader
C. Phases, Procedures, and Patterns of Deliberations and Decision-making
(1) Preparation
(2) Getting to Consensus: Concluding Agreements
(3) The Power Factor: Leaders and Followers
IV. Shifting the Institutional Balance: Towards Horizontal Fusion
A. The European Parliament: Towards an Uneasy Bicameral System
B. The Council: Serving the Masters?
C. The Commission: Only Agent for the Principal?
D. The Court: The Legal Watchdog
E. The European Central Bank: New Forms of Participation
F. National Parliaments: Emerging Players in the Institutional Architecture
G. Revisiting the Models
V. Conclusion: Trends towards Fusion
A. Revisiting the Performance
B. Long-term Perspectives: Rise or Decline of the European Council?
(1) The European Council as a Guardian of the Nation State
(2) The European Council as a Federator
(3) The European Council as Fusion Engine
16. The Council
I. Context and Conceptual Framework: Executive Federalism
II. Organizational Structure: Form Follows Function
A. Composition: Appointed Executives, Not Elected Politicians
B. Configurations: The Pyramid of Working Groups, Committees, and Ministers
C. Coherence: General Affairs Council, Rotating Presidency, and General Secretariat
(1) General Affairs Council
(2) Rotating Council Presidency
(3) The General Secretariat of the Council
III. Competences and Partners: The Council as Team Player
A. Overview and General Characteristics
B. General EU Stewardship and Implementation—with the Commission
C. Legislature and Budgetary Power—with the European Parliament
(1) Governments as Legislature?
(2) Relation between Council and European Parliament
(3) The Council and the Legislative Procedures
(4) Budgetary Role of the Council
D. Agenda-setting and Foreign Policy—with the European Council
E. The Council as Coordinator
IV. Decision-making: Consensus in the Shadow of the Vote
A. Challenges to the Consensus Culture
B. Reasons for the Longevity and Necessity of Consensus
V. Legitimacy: Fifty Shades of Grey
A. Conceptualizing the Legitimacy of the Council
B. Interrogating the Legitimacy of the Council
(1) General Concerns
(2) Democratic Concerns about the Council as Legislature
(3) Democratic Concerns about the Council as Coordinator
VI. Conclusion
17. The Commission
I. Introduction
II. Composition and Term of Office
A. The Size of the Commission
B. Qualifications Required of Members of the Commission
C. The Appointment Procedure
(1) The President
(2) The High Representative
(3) The Other Members of the Commission
(4) The Final Steps
(5) Replacement of Individual Members of the Commission
D. Term of Office and Removal of Commissioners
III. Duties of Members of the Commission
A. During their Term of Office
B. After their Term of Office
C. Sanctions
IV. Internal Organization
V. Functions, Duties, and Powers
A. General
B. Guardian of the Treaties
C. Legislative Proposals
D. The Adoption of Non-legislative Acts
E. Amending the Treaties
F. The Budget
G. Coordination, Executive, and Management Functions
H. Internal and External Representation of the Union
I. Annual and Multi-annual Programming
J. Ancillary Communications
VI. ‘Dealing with Current Business’
VII. Concluding Remarks
18. The Court of Justice of the European Union
I. Introduction
II. Article 19 TEU: The Rule of Law, the Separation of Powers, and the Bifurcated Nature of the EU Judicial System
III. Composition, Appointment, and Tenure
A. Composition
B. Method of Appointment and Tenure
C. The Role of the Advocate General
IV. Jurisdiction
A. Categories of Jurisdiction
B. Exclusivity
C. From Exclusivity to Autonomy
V. Organization and Procedure
A. Organization
B. Procedure
C. The Collegiality of the Judgment
VI. The Judicial Architecture and the Reform of 2015
A. The Judicial Architecture
B. The General Court
C. Judicial Caseload
D. The Reform of the GC
19. The European Central Bank
I. Introduction
II. Institutional Framework of the European System of Central Banks, the Eurosystem, and the ECB
A. ESCB and Eurosystem
B. Objectives and Tasks of the Eurosystem
C. The ECB
(1) The ECB’s Legal Status and Its Implications
(2) The ECB’s Place within the EU
(a) The ECB’s place in the international arena
(3) ECB Independence
(4) ECB Transparency and Accountability
(5) ECB Decision-making Bodies
(a) Governing Council
(b) Executive Board
(c) General Council
(6) ECB Regulatory Powers
(a) ECB legal acts
(b) ECB legal instruments
III. Eurosystem Governance, Structure, and the Relationship between ECB and NCBs
A. Introductory Remarks
B. Structure and Governance of the Eurosystem
C. Decentralization of Operations
D. The Principle of Specialization
E. Guidelines and Instructions: The NCBs’ Duty of Compliance
F. Status of the NCBs When Performing Eurosystem Tasks
IV. The ECB’s Involvement in the Legislative Process
A. The ECB’s Right of Initiative
B. The ECB’s Advisory Role
(1) The ECB’s Advisory Role with Regard to EU Legal Acts
(2) The ECB’s Advisory Role with Regard to Draft National Legislative Provisions
V. The Evolving Role of the ECB Since the Start of the Financial Crisis
A. ECB Crisis-related Response
(1) Temporary Broadening of the Eurosystem Collateral Eligibility Rules and Enhanced NCBs Collateral Policy Discretion
(2) Provision of Liquidity in Leading Foreign Currencies
(3) The Covered Bonds Purchase Programmes
(4) Securities Markets Programme and Outright Monetary Transactions
(5) ABS Purchase Programme and
(6) Concluding Remarks
B. ECB and Macro-prudential Supervision
C. ECB and Micro-prudential Supervision
D. The ECB’s Role in Supporting the ESM
VI. Concluding Remarks
20. The Court of Auditors
I. Introduction: The Role of the Court of Auditors
A. The Role of the Court
B. The Fight against Fraud
C. The Seat of the Institution
II. History
III. The Composition of the Court of Auditors
A. Number of Members
B. Appointment of Members
(1) Qualifications
(2) Procedure for Appointment
(3) Members’ Term of Office
(4) Conditions and Privileges
C. The President and Chambers
(1) The President
(2) The Chambers
D. The Secretary General and Staff of the Court
(1) The Secretary General
(2) Staff
(3) Budget
IV. The Work of the Court of Auditors
A. Scope of the Audit
(1) All Revenue and Expenditure of the Union
(2) Implementation of the Budget of the Union
(a) Revenue
(b) Expenditure
(3) The DAS
(a) Reliability of the Accounts
(b) Legality and Regularity of the Underlying Transactions
(c) The Holy Grail—An unqualified DAS
B. Audit Criteria
(1) The Three Criteria
(2) Legality
(3) Irregularity
(4) Timing of the Audit
C. The Court’s Audit Powers
(1) General
(2) Institutions
(3) Member States
(4) European Investment Bank
D. Reporting the Audit
(1) Annual Reports
(a) The general budget
(b) The European Development Funds
(c) Specific Annual Reports
(2) Special Reports
(3) Opinions
(a) Mandatory Opinions
(b) Discretionary Opinions
V. Conclusion
A. Direct Impact
(1) The Discharge Procedure
(2) Legislative Procedure
B. Indirect Impact
C. Constraints
D. Review and Reform
E. The Future
Part IV: Legislative and Executive Governance
21. Primary Legislation and Legislative Procedures
I. Introduction
II. Concept and Meaning of Union Legislation
III. Legislative Procedures
A. Initiation of Union Legislation
B. Ordinary Legislative Procedure
(1) First Reading
(2) Second Reading
(3) Third Reading
C. Special Legislative Procedures
IV. Scope of Union Legislation
V. Legal Effects of Union Legislation
VI. Conclusion
22. Delegated and Implementing Acts
I. Introduction
II. The Lisbon Model: Core Assumptions
A. Secondary Norms: Their Centrality and Importance
B. Comitology: The Pre-Lisbon Model
C. Comitology: The Lisbon Model
III. Analytical and Temporal: The Fragile Divide between Articles 290 and 291 TFEU
A. The Analytical and Temporal Problem
B. The Relative Use of Article 290 and Article 291: Current Practice
C. The Choice between Article 290 and Article 291: Limited Legislative Guidance
D. The Choice between Article 290 and Article 291: Particular Regulatory Schemes
E. The Choice between Article 290 and Article 291: Transitional Issues
IV. Constitutional: Politics and Constitutional Architecture
A. Constitutional ‘Modification’: Decision-making under Article 290 TFEU
B. Constitutional ‘Modification’: The New Schema and the European Parliament
C. Constitutional ‘Modification’: Commission and the ‘New’ Status Quo
V. Institutional: Agencies, Conferral, Delegated Acts, and Implementing Acts
A. Agencies: Conferral and Delegation
B. ESAs and Delegated Acts
C. ESAs and Implementing Acts
VI. Legal Form: Hard Law, Soft Law, and Articles 290–291 TFEU
VII. Conceptual: Rule-making and Adjudication
VIII. Conclusion
23. Decentralized Implementation: European Agencies
I. Introduction
II. Explaining and Conceptualizing the ‘Agencification’ Process
A. The Proliferation of European Agencies in the 1990s
B. The Explanations Provided by European Legal Scholarship
C. A Different Interpretation: A ‘Game of Forces’
D. European Agencies in the 1990s: A Peculiar Component of the EU Administrative System
E. A New Model for the Administrative Implementation of EU Laws and Policies
F. The ‘Agencification’ Process in the New Century: Consolidation, Clarification, and Complication
III. The Agency Model: Distinguishing Features, Shortcomings, Adjustments
A. Administrative Integration
(1) European Agencies’ Internal Organization
(2) The Uneasy Search for Simplification
B. The Relationship with the Commission
(1) Partial Autonomy
(2) Neither Executive Agencies, nor Intergovernmental Bodies, nor Independent Authorities
C. Scientific Independence
(1) The Reasons of Science
(2) The Attempt to Strengthen Scientific Independence vis-à-vis the Market
D. Transnational Polycentrism and European Agencies’ Functional Prominence
(1) Sectoral Administrative Networks
(2) The Implications on National Administrations
E. Powers
(1) Mainly Instrumental Powers
(2) Concerns of Procedural and Judicial Protection
F. Accountability
(1) The Gradual Emergence of Accountability Regimes
(2) An Imperfect Development
IV. The Complication of the Agency Model and the Emergence of a New Type of European Agency
A. From Autonomy to Independence
B. More Incisive Powers
V. Conclusion
24. The Open Method of Coordination: Obstinate or Obsolete?
I. The OMC as a New Form of EU Governance
A. Origin and Context
B. Defining the OMC
C. What Is the Function of the OMC?
(1) Motivations for Policy Coordination
(2) The Material Dimension of Policy Coordination
(a) Guidelines
(b) Indicators, Benchmarks and Targets
(c) Recommendations
(3) The Accountability Dimension
(4) The Temporal Dimension
D. Institutional Authorship and the OMC
II. Law, Legal Principles, and Policy Coordination
A. Legal Principles and the Distribution of Political Authority
(1) The Principles of Conferred Competence and Subsidiarity
(2) Participation, Openness, and Transparency
B. Procedural and Substantive Dimensions of the Rule of Law
(1) Effective Judicial Protection
(2) Fundamental Rights
III. Conclusion
25. The Union Budget and the Budgetary Procedure
I. Introduction
II. The Union Budget, Still Small Compared to the Union’s Ambitious Aims
A. Revenues: The Failure to Introduce Truly Own Resources
B. Expenditures: At the Centre of the Inter-institutional Struggle and Subject to Progressive Diversification
C. Perspectives: Proposals for Reforming the Union Budget
III. The Sources of Law Regulating the Union Budget and the Budgetary Procedure
IV. The Institutional Dimension of the Budgetary Procedure
A. The Multi-annual Financial Framework
B. The Annual Budget after the Treaty of Lisbon
(1) The Draft Budget by the Commission
(2) The Position of the Council
(3) The European Parliament’s Role at First Reading: Strengthened or Weakened?
(4) The Conciliation Committee and the Different Outcomes of the Procedure
(5) From the Centrality of the Annual Budget to the Centrality of the Amending Budget Acts?
(6) The Signature of the Budget by the President of the European Parliament and Its Meaning
C. The Implementation and Monitoring of the Budget
D. The Discharge Procedure(s)
V. Conclusion: The Strategic Use of the European Parliament’s Budgetary Powers to Increase Its Role: Myth or Reality?
26. Supranational Differentiation and Enhanced Cooperation
I. Introduction
II. The Concept of Differentiated Integration and Its Realization
A. Political Debate
(1) Multiple Speeds: Reflection of Economic Differences
(2) Federal Core Europe
(3) Flexibility à la carte
B. Pragmatism of the Treaty Regime
III. The Practice of Supranational Differentiation
A. Generic Model: Enhanced Cooperation
(1) Substantive Constraints
(2) Procedural Requirements
B. Differentiation in Action: Area of Freedom, Security, and Justice
(1) Incorporation of the Schengen Cooperation
(2) Diverse Opt-out Arrangements
(a) Denmark
(b) United Kingdom and Ireland
(3) Lisbon: Towards ‘Cherry-picking’
C. Economic and Monetary Union
(1) The Concept of the Treaty of Maastricht
(2) Towards an ‘Economic Government’ for the Eurozone
D. Limits of Differentiation: Foreign Affairs
(1) CFSP: Benefits of External Uniformity
(2) CSDP: Much Noise, Little Impact (So Far)
(a) Improvement of defence capabilities
(b) Enhanced cooperation and military missions
IV. Constitutional Implications
A. Unity of the Legal Order
B. Single Institutional Framework
C. Cohesion: United in Diversity
D. Drawbacks for Identity and Legitimacy
V. Conclusion
Part V: Judicial Protection in the EU
27. Judicial Review
I. Introduction
II. Action for Annulment: Direct Review of EU Measures
A. Reviewable Acts and Time Frame
B. Applicants
(1) Privileged and Semi-privileged Applicants
(2) Non-privileged Applicants
(3) What Are Regulatory Acts?
(4) Regulatory Acts that Do Not Entail Implementing Measures
(5) Direct Concern
(6) Individual Concern
(7) The Standing of Interest Groups
C. Grounds for Review
(1) Lack of Competence
(2) Infringement of an Essential Procedural Requirement
(3) Infringement of the Treaties or of Any Rule relating to Their Application
(a) Legal Certainty and Legitimate Expectations
(b) Non-discrimination
(4) Misuse of Powers
III. The Plea of Illegality
IV. Interim Relief
V. Consequences of Annulment
VI. Concluding Remarks
28. EU Liability Actions
I. Introduction
II. Raison d’être and Scope of EU Liability Actions
A. EU Liability Action and the Rule of Law
B. Broad Scope of EU Liability Actions
(1) An Action Available to Any Person
(2) A Broad Concept of ‘Institution’
(3) A Broad Concept of ‘Attributable’ Conduct
(4) A Broad Concept of the Institutions’ ‘Conduct’
(5) ‘Effet Utile’ and Independence of the EU Liability Action
C. Exceptions and ‘Grey Areas’
(1) No ‘Circumvention’ of Other Remedies
(2) Responsibility in Case of Joint Union and National Actions
(3) Subsidiarity of the EU Liability Action in Case of Joint Action?
D. Conclusion
III. Substantive Regime of EU Liability
A. No Liability for Lawful Union Conduct
B. Liability for Normative Acts
(1) Reason for Adopting a Restrictive Approach
(2) Functional Understanding of ‘Normative Acts’
(3) ‘Protectiveness’ of the Infringed (Superior) Rule of Law
(4) Seriousness of the Breach
(5) Non-discretionary Normative Acts
C. Liability for Individual Measures
D. The Court’s Recast Illegality Test
(1) Focusing on Discretion, Not on the Nature of the Act
(2) Generalizing the ‘Serious Breach’ Requirement
(3) Consequences
E. Application
F. Causation and Damage
(1) A Direct—and Non-broken—Chain of Causation
(2) An Actual, Certain, Specific, and Quantifiable Damage
G. Conclusion
IV. Concluding Remarks
29. Enforcement Actions
I. Introduction
II. Substantive Aspects
A. Nature of the Proceedings
B. Author of the Infringement
(1) National Courts
(2) Private Entities
C. The Infringement
(1) Rules Breached
(2) Member States’ Conduct
(3) Transposition of Directives
(4) General and Persistent Infringements
D. Member States’ Defences
(1) Substantive Defences
(2) Force Majeure and Absolute Impossibility
(3) Plea of Illegality
III. Procedural Aspects
A. The Standard Procedure under Article 258 TFEU
(1) The Informal Stage and EU Pilot
(2) The Administrative Stage
(3) The Litigation Stage
(4) Admissibility of the Action
(5) Past Infringements
(6) The Court’s Decision
B. The Procedure under Article 259 TFEU
C. Special Forms of Procedure
D Interim Measures
E. The Role of Private Parties
(1) Relations with Complainants
(2) Transparency and Access to Documents
IV. The Consequences of the Court’s Judgments
A. Compliance
B. Member States’ Liability
C. Financial Sanctions
(1) The Procedure under Article 260(2) TFEU
(a) Type and amount of sanctions
(2) The Procedure under Article 260(3) TFEU
30. Preliminary References
I. Introduction
II. Which Bodies May Refer?
A. Who May Refer Preliminary Questions?
B. References from Judicial Bodies
C. References from Administrative Authorities and Ombudsmen
D. References from Private Bodies
E. The Phrase ‘of a Member State’
F. Other Forms of Preliminary References
III. What Questions May Be Referred?
A. Introduction
B. Article 267(1)(a) on ‘the Interpretation of the Treaties’
C. Article 267(1)(b) on ‘the Validity and Interpretation of Acts of the Institutions, Bodies, Offices, or Agencies of the Union’
D. Agreements under International Law
E. Questions that Fall Outside the Jurisdiction of the Court of Justice
IV. When Can a Reference for a Preliminary Ruling Be Made?
V. When Must a Reference for a Preliminary Ruling Be Made?
A. The Obligation to Refer
B. National Courts Covered by Article 267(3)
C. Exceptions to the Obligation to Refer
(1) The Question Is Not Relevant
(2) Acte éclairé
(3) Acte clair
(4) Reasons that Do Not Justify Failure to Make Preliminary References
D. The Obligation of Courts Other than Those of Last Instance to Make a Reference
VI. When Ought a Reference for a Preliminary Ruling Be Made?
VII. The Form and Content of a Preliminary Reference
VIII. The Procedure before the Court of Justice
A. Overview
B. Observations on the Preliminary Reference
C. The Written and the Oral Procedure before the Court of Justice
IX. The Preliminary Ruling
A. Reformulating the Preliminary Question
B. The Effects of a Preliminary Ruling
31. Remedies Before National Courts
I. Introduction
II. The Principle of National Procedural Autonomy
A. Origins
B. Development
(1) Effectiveness
(2) Equivalence
C. Appraisal
III. The Principle of Effective Judicial Protection
A. Origins
B. Development
C. The Demise of National Procedural Autonomy?
IV. National Obstacles to the Enforcement of Union Law Rights
A. Recovering Unlawful Imposts
B. Time Limits
C. Interest
D. Damages
E. Interim Relief
V. The Relationship between the Court of Justice and the Union Legislature
VI. Conclusion
32. Damages in EU Law
I. Introduction
II. Damages in EU Law: A Snapshot
A. From Community Liability to State Liability and Back Again
(1) The Origins
(2) Il Signor Francovich and Member State Liability
(3) The Alignment of Liability Conditions
III. The Importance of Actions for Damages within the EU Legal Order
A. The CJEU Case Law: Between Federalist Aspirations and Respect for the Rule of Law
(1) Damages and the EU Constitutional Order
(2) Damages and Federalist Aspirations
(3) Damages and the Principle of Good Administration
(4) The Limits of a Symbol: Damages against the Individual
IV. How Does an Action for Damages against Member States Work?
A. Non-contractual Liability in Damages against the State
(1) EU Law versus National Procedural Law
(2) The First Condition: Conferral of Rights for the Protection of Individuals
(3) The Second Condition: Serious Breach
(4) The Third Condition: Causation
V. How Does an Action for Damages against the EU Work?
A. Procedural Rules Governing the Application of Article 340(2) TFEU
(1) Classical Questions of Admissibility
(2) Procedural Rules: Independent Form of Action
(3) Procedural Rules: Which Court Has Jurisdiction?
B. Substantive Rules under Article 340(2) TFEU
(1) Rules Conferring Rights on Individuals
(2) Sufficiently Serious Breach
(3) Liability for Lawful Acts
(4) Causation
(5) Damages
VI. Conclusions
Part VI: The External Relations of the Union
33. The Institutional Structure
I. Introduction
II. Institutions
A. The European Council and Its President
B. The Council
(1) Dual Legal Basis of EU Instruments in External Action
(2) Determining the Legal Basis of Legal Instruments in EU External Action
(3) The Council and EU Treaty-making: Charting the New Article 218 TFEU
(4) The Foreign Affairs Council and the Political and Security Committee
(5) Preliminary Concluding Remarks
C. The High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission, and the European External Action Service
(1) Wearing the Hat of the High Representative
(2) Wearing the Hat of the Vice-President of the Commission
(3) The European External Action Service and Union Delegations
D. The European Commission
(1) External Representation in the Area of Shared Competences
(2) Appointment of EU Negotiator of International Agreements
(3) Representation of the EU in Judicial Proceedings
E. The European Parliament
(1) The Parliament and EU Treaty-making
(2) The Parliament and
(3) The Parliament and the CFSP
F. The Court of Justice of the European Union
(1) The Court and EU Treaty-making
(2) The Court of Justice and the CFSP: Interpreting Article 40 TEU and Article 275 TFEU
G. The Rotating Presidency and the Member States
III. Conclusion
34. External Competences and the Principle of Conferral
I. Introduction
II. The Principle of Conferral and Express External Competence
A. The Common Commercial Policy
(1) Intellectual Property Rights, TRIPs and the CCP
(2) Services and the CCP
B. The Common Foreign and Security Policy
(1) The CFSP, the AFSJ, and Counter-terrorism
(2) The CFSP and the AFSJ, ‘External’ and ‘Internal’ Security
C. Development Cooperation and Association Agreements
III. The Rationale for Implied Powers
IV. The Exercise of Competence
V. Conclusion
35. The Decision-making Process
I. Introduction
II. Treaty-making under Article 218 TFEU
A. The Definition of International Agreements
B. Negotiation of International Agreements
(1) Proposing the Negotiation of International Agreements
(2) Authorizing the Negotiation of International Agreements
(3) The Negotiator of International Agreements on Behalf of the EU
(4) Negotiating International Agreements
C. Signature and Provisional Application of International Agreements
D. Conclusion of Agreements
(1) The Role of the Council
(a) Agreements Covering a Field for which Unanimity is Required for the Adoption of an EU Act
(b) Association Agreements
(c) Agreements on Economic, Financial, and Technical Cooperation with Countries which are Candidates for Accession
(d) Accession of EU to ECHR
(2) The Role of the European Parliament
E. Modification of Agreements
F. Suspension of Agreements
G. Establishing the EU’s Position in a Body Set Up by an International Agreement
III. Decision-making in Common Commercial Policy
IV. The Significance of Decision-making Procedures
V. Decision-making in CFSP and CSDP
A. Decision-making in CFSP
B. Decision-making in CSDP
VI. Conclusion
36. Mixed Agreements: The EU Law Fundamentals
I. Introduction
II. The General Legal Framework
A. The Rules on Competence: The Rationale and Structure of a Mixed Agreement
(1) The Limited Scope of Union Competence
(2) The Non-exclusive Nature of Union Competence
(3) The Circumscription of Member State Discretion
(a) The Opinion 2/91 Doctrine
(b) The Doctrine of Subsidiary, Ancillary, or Incidental Provisions
(4) The Rules on Competence as Elements for Typologies of Mixed Agreements
B. The Rules on Obligations of Union Law: The Duty of Loyal Cooperation
III. Negotiation, Conclusion, and Application
A. Negotiation
B. Signature, Provisional Application, and Conclusion
(1) The Extent of the Exercise of Union and Member State Competence
(2) Declarations of Competence
(3) The Question of Coordination: Incomplete Mixed Agreements
C. Application (Implementation)
(1) Acts and Arrangements Governing Implementation
(2) The Exercise of Union and Member State Competence
(3) The Duties of Information, Consultation, and Abstention
IV. Jurisdiction of the Court
A. References for a Preliminary Ruling
B. Infringement Proceedings
V. The Future
37. The Reception of International Law in the EU Legal Order
I. Introduction
II. Towards a Conceptual Framework
III. The Written Constitution
IV. EU Trade, Association, and Partnership Treaties
V. GATT and WTO Law
VI. Other Treaties
VII. Customary International Law
VIII. Some Treaties of the Member States
IX. To Conclude: The Cost of Autonomy
38. EU Status in Other International Organizations
I. Introduction
II. EU Membership
A. The Right to Accession of the Union under EU Law
B. The Right to Accession of the Union under International Law
C. The Procedure of Accession under Union Law
D. The Union and its Member States as Members of an International Organization
(1) Decision-making in a Body Set Up by an International Agreement
(2) The Establishment of a Judicial or Dispute Settlement Body
(3) The Union as a Founding Member: The WTO
(4) The EU’s Membership of a Pre-existing International Organization: The FAO
III. EU Observer or Equivalent Status in Other International Organizations
A. Introduction
B. The Status of the EU at the UN
C. The Status of the EU at the ILO
D. The Status of the EU at the IMO
IV. EU Action through Member States
A. The EU at the United Nations Security Council
B. The EU in International Financial Institutions
C. The EU at the International Organisation of Vine and Wine
V. Sincere Cooperation
VI. Conclusion
Index