RR102 European Law
1. Introduction European Law
In the European Union, there is a free movement within the Internal Market. How did we get there?
After WOII they came up with a plan to prevent wars in the future. This can be achieved by making countries
that go to war dependent from each other, make their economy dependent of each other. It is also good for the
trade and it would make it easier to get certain products. Timeline
The European Coal and Steel Community was the beginning (1952), then the European Economic Community (with
a common market, 1958). Then the European Union (Treaty of Maastricht, 1993), Euro coins (2002), in 2005 the
idea of an European Constitution (a federal model, like the USA) was rejected. Then, in 2009 came the Treaty of
Lisbon which could be seen as a replacement of the Constitution. Market integration and stages
Market integration= merging the economies of the Member States. So there are no borders between Member States
with regards to their economic activities.
1st Stage: Free Trade Area
2nd Stage: Customs union = Free Trade Area + common commercial policy towards third countries.
3rd: Internal market= Customs union + free movement
EU since 1993
4th: Economic and monetary union (since the Treaty of Maastricht)
We now have the 3rd and 4th stage.
The Internal Market (Rules for Member States)
Art. 3(3) TEU: The Union shall establish an internal market.
Art 26 (1) TFEU: The Union shall adopt measures with the aim of establishing or ensuring the functioning of the
internal market (…)
Art. 26 (1) TFEU is the first legal basis that can be used to make more rules about the internal market. Article 26(2) TFEU: The internal market shall comprise an area without internal frontiers in which the free
movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties. European competition law (Rules for companies)
Not only Member States can hinder the Internal Market. Companies can do this too. That’s why in the Treaties we
find rules about:
Prohibition of cartels;
Prohibition of abuse of a dominant position;
Prohibition of State aid;
Enforcement of competition law.
To enforce the rules concerning the Internal market, there must be some kind of integration. There are two types:
Negative Integration: This type removes illegal national barriers to trade.
Here legislation is not imposed. There is just a European rule that tells the Member States not to
do a certain thing.
Positive Integration: This is EU legislation adopted to overcome the diversity in national rules.
The European Court of Justice:
Treaty infringement proceedings (arts. 258- 260 TFEU);
When a Member State violates EU-rules.
Judicial Review (art. 263 TFEU);
When the EU violates your rights.
Preliminary proceedings (art. 267 TFEU).
When a national court will ask the ECJ how an European provision should be interpreted.
The legal protection acts like an ‘’umbrella’ .
Some important internal market principles
Cross border element/European dimension
The basic rule of this principle is that the application of internal market rules require a cross-border element. If
there is no cross-border element (so pure internal situation) the internal market rules do not apply and it should
then be solved with national law. Prohibition of discrimination
The principle of non-discrimination is laid down in art. 18 TFEU (lex generalis). It basically says that other EU
nationals cannot be treated worse than nationals. It applies in all sectors.
The lex spexialis rules can be find in other articles, such as the articles of the free movements. Forms of discrimination
Direct discrimination (Discrimination with distinction);
There is a direct link between national measures and the nationality of a citizen or origin of a
Language requirement, residence requirement, etc.
Non-discriminatory measures (without distinction);
Principle of mutual recognition
Definition: Products that comply with the rules of a Member State must also be allowed to be legally marketed in
another Member State. Member States should respect and recognize each other's rules. Justifications and proportionality
There are two types of justifications:
Explicit/Express/Treaty-based (TFEU articles)
Implicit/Imperative/Mandatory Requirements (ECJ case law)
The justifications (often) need to be proportionate.
Measure suitable to attain the objective?
Measure necessary to attain the objective and does not go further than needed (no less restrictive
How to do open case studies
When dealing with the free movements. When solving a case study about the freedoms, always start with the pre-test. Pre-test
1. Is there a cross-border element/European dimension?
2. Is it a measure of a Member State or attributable to a Member State?
Could also be an organ of the State
3. Is there harmonization in this area?
If there is no mention of some regulations in the case, there is no harmonization.
4. Which fundamental freedom applies in the present case?
Then you proceed with the 3-step test. 3-step test
Personal scope (Who benefits from the rights)?
Material scope (What are the rights one can benefit from)?
So what is the measure? Is this a measure that is not allowed? Does it correspond with the provision?
End with a conclusion.
2. Judicial protection
The European Court of Justice The European Court of Justice consist of 3 courts (art. 19 TFEU);
The General Court;
First instance court.
The Court of Justice;
The role of the ECJ
The ECJ shall ensure that in the interpretation and application of the Treaties the law is observed (art. 19 TFEU). What can it do?
Article 19 TEU:
The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) Can rule on actions brought by a Member State, an institution or a natural or legal person; (see art.263
(b) Give preliminary rulings, at the request of the courts or tribunals of the Member States, on the
interpretation of Union law or the validity of acts adopted by the institutions; (see art. 267 TFEU)
(c) Rule in other cases provided for in the Treaties (e.g. Enforcement procedures under Articles 258 - 260)
Judicial competence of the European Court of Justice
The treaties distinguish between direct and indirect actions:
Direct actions: Direct actions start directly in the European Court.
Indirect actions: Start in the national courts and involve the European Court only indirectly in the dispute.
The sole indirect action acknowledged by the treaties is called the preliminary reference procedure. This procedure
is the judicial cornerstone of the Union’s cooperative federalism, for it combines the central interpretation on Union
law by the court of justice with the decentralized application of European law by the national courts. Judicial Competence and procedures articles: art. 258 t/m 281 TFEU
There are two general jurisdictional limitations to their competence: Art. 275 +276 TFEU.
The European Court of justice has:
1. Annulment powers
2. Remedial powers
3. Adjudicatory powers
Annulment powers - direct review (Judicial review) Example (when is this article used?);
Situation = An EU Institution is alleged to have enacted an illegal act (for example, a Regulation has been adopted
by the Council and the European Parliament which violates a general principle of EU law).
Outcome of a successful action = Article 263 is an action for annulment. If the action is successfully, the Court of
Justice will declare the act to be void. This requires the EU institution to ‘’take the necessary measures to comply
with the judgment‟ (art. 264 TFEU and 266 TFEU). Art. 263 TFEU: Admissibility
The most powerful function of a court is the power to un make law; to annul an act that was adopted by the
legislative of executive branches.
The competence and procedure for judicial review in the European Legal order is set out in article 263 TFEU. The Procedural requirements for a judicial review action are set out in 236 TFEU. It follows a complex structure.
This can be broken down in 4 components: 1. Whether the court has the power to review particular types of union acts (Is there a reviewable act? par 1)
This question has two dimensions:
Whose acts may be challenged
According to art. 263 (1) The court can challenge:
Legislative acts: Acts whose joint authors are the European Parliament and Council.
Unilateral acts of all Union institutions and bodies including agencies except for the Court of
The court cannot challenge:
Acts of member states, including unilateral national acts and international agreements of
member states. European treaties cannot ever be reviewed by the Court. Collective acts of
the Member States can’t be attributed to the Union institutions and as such are beyond the
review powers of the Court.
Which acts might be reviewed
Art. 263 TFEU only states what cannot be reviewed:
Recommendations and opinions because they have no binding force so there is no need to
challenge their legality.
Acts of the European Parliament, European Council and other Union bodies not intended to
produce legal effects vis-à-vis third parties. The rationale behind this that it excludes that
are internal to an institution and have no external effect.
Preparatory acts of the Commission or the Council.
As you can see, the nature of the act itself is irrelevant.
2. On what grounds one can challenge the legality of a European act (par. 2)
The European legal order limits judicial review to four legitimate grounds. These being:
Lack of competence
Infringement of an essential procedural requirement
Infringement of the treaties or of any rule of law relating to their application
Misuse of power
The Union Legal order recognizes three formal grounds of review.
1. The European act can be challenged on the ground that the European Union lacked the
competence to adopt it.
This goes for primary and secondary legislation. The Union may only exercise those powers
conferred on it by the Treaties, any action beyond these powers is ultra vires (=buiten
bevoegdheid) and thus voidable. With regard to secondary legislation the Court may not only
review whether the delegate has acted within the scope of the powers delegated, but it also
ensure that the absolute limits to such a delegation have not been violated.
2. A union act can be challenged if it infringes an essential procedural requirement.
When are essential requirements breached? An essential procedural step is breached when the
Union adopts an act under a procedure that leaves out an institution that was entitled to be
involved. Alternatively the Union may have adopted an act on the basis of a wrong voting
arrangement within one institution. No requirement breached when the Union acts under a
3. A union act can be challenged when there is a misuse of power.
The subjective rationale behind it is the prohibition on pursuing a different objective from the
one underpinning the legal competence.
The union legal order recognizes one ‘’substantive’’ ground of review.
4. A Union act can be challenged on the grounds that it represents an infringement of the Treaties
or of any rule of law relating to their application.
The most important expression of this substantive rule of law idea is the ability of the European
Courts to review Union acts against EU fundamental rights.
The European Court has used this ground as a constitutional ground to import a range of
unwritten general principles into the Union Legal order. The most important one being ‘’ the
principle of proportionality’’. Proportionality principle
The constitutional function of this principle is to protect liberal values. The principle is codified in
article 5(4) TEU. How will the court asses the proportionality of a union act? The court has
developed a proportionality test: it analyses the suitability, necessity and proportionality of a
Union act (the Court does not always distinguish between the second and third):
Suitability: The court will check whether the European measure is suitable to achieve a
Necessity: The union will have to show that the act adopted represents the least
restrictive means to achieve a given objective.
Proportionality: Does the burden imposed on an individual is excessive or not.
Inuit II – case (par. 87 + 88)
3. Who may ask for judicial review (par. 2-4)
The treaty distinguishes three types of applicants:
The privileged applicants: Paragraph 2 mentions the privileged applicants: the Member States, the
European Parliament, the Council and the commission. These applicants can always bring an action for
judicial review. They are privileged because they are ex officio deemed to be affected by the adoption of a
The semi-privileged applicants: Paragraph 3 lists the semi-privileged applicants: the Court of Auditors,
the European Central Bank and the Committee of the Regions. They are partly privileged because they
may solely bring review proceedings for the purpose of protecting their prerogatives.
Non-privileged: Paragraph 4 addresses the natural or legal person, or non-privileged. They are non-
privileged because they have to demonstrate that the union act affects them specifically.
The Rome formulation
The Rome formulation granted applicants the right to apply for judicial review ex art. 230 EC:
‘’Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to
that person or against a decision which, although in the form of a regulation or a decision addressed to another
person, is of direct and individual concern to the former.’’ Direct: The contested measure as such would have to affect the position of the applicant. This would not be the
case, where the contested measure envisaged any form of discretionary implementation that would breach the
‘’direct’ link between the measure and the applicant.
The ‘’direct concern’ condition follows from the Microban case.
As regards to the direct concern criterion (..) Firstly, the contested Community measure must directly
affect the legal situation of the individual and, secondly, it must leave no discretion to its addressees, who
are entrusted with the task of implementing it, such implementation being purely automatic and resulting
from Community rules without the application of other intermediate rules” (par. 27).
So basically, it may not be the ‘’fault’ of the act of the Member State. The EU institutions must be at
Individual: The ‘individual concern’ condition follows from the Plaumann case:
Persons other than those to whom a decision is addressed may only claim to be individually concerned if that
decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in
which they are differentiated from all other person and by virtue of these factors distinguishes them individually
just as in the case of the person addressed. This formulation is now known as the Plaumann-test.
The Lisbon formulation
The restrictive reading of private party standing was heavily criticised as an illiberal limitation on an individual’s fundamental right to judicial review.
This formulation has amended the Rome formulation. The standing of private parties is now enshrined in art. 263 (4) TFEU.