Mały

skrypcik

:

Introduction to European Institutional Law ;)

Na podstawie programme 2013.

Materiały → dr Izabela Skomerska-Muchowska,

notatki z zacnych wykładów jejmości i inne niezbędności.

Ania, Asia, Artur ;) Special thanks to Maciek!

1. Evolution of European integration and legal character of the European Union

a. Political foundations of European Communities

9th of May 1950 – Schuman's Plan (Schuman – French foreign minister)



"Europe will not be made all at once, or according to a single plan. It will be built through

concrete achievements which first create a de facto solidarity."



create a new form of organisation of states in Europe called a supranational community.



The plan/declaration provided joining, binding France and western Germany economically by

binding coal and steel industries (so that the war would be impossible from the economical and
financial point of view), the declaration was also made to improve the life status, common
market



It led to the re-organization of post- World War western Europe by treaty. The proposal led first

to the creation of the European Coal and Steel Community (ECSC). It was also the forerunner of
several other European Communities and also what is now the European Union (EU).

18th of April 1951 - Treaty establishing the European Coal and Steel Community (Paris Treaty) – signed
by 6 countries



an international organization serving to unify European countries after the Second World War. It

was formally established by the Treaty of Paris (1951), which was signed by Belgium, France,
West Germany, Italy, the Netherlands and Luxembourg. The ECSC was the first international
organization to be based on the principles of supranationalism and would ultimately lead the way
to the founding of the European Union



institutional structure of ECSC: High Authority; Council of Ministers; Parliamentary Assembly;

Court of Justice

1954 – European Defence Community ; European Political Community

1957- Rome Treaty: The Treaty of Rome, officially the Treaty establishing the European Economic
Community (TEEC), is an international agreement that led to the founding of the European Economic
Community (EEC) on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy,
Luxembourg, the Netherlands and West Germany. The word Economic was deleted from the treaty's
name by the Maastricht Treaty in 1993, and the treaty was repackaged as the Treaty on the functioning
of the European Union on the entry into force of the Treaty of Lisbon in 2009

25th of March 1975 – Treaty establishing European Atomic Energy Community (Euratom)

European Economical Community: (art 2 of EEC)

'establishing a common market and progressively approximating the economic policies of member
states, harmonious development of economic activities, a continuous and balanced expansion, an
increase in stability, an accelerated raising of the standard of living and closer relations between the
states belonging to it.'

Common market: tax provisions, „four freedoms” , customs union, rules on competition; European

Union is the largest internal market in the world today.

Common policies: common commercial policy , common policy in the sphere of agriculture and
fisheries, common policy in the sphere of transport, social policy, association of the overseas countries
and territories

Institutional Structure of the Communities:



ECSC EEC/Euratom



High Authority



Council of Ministers



Parliamentary Assembly



Court of Justice ▫ Commission



Council of Ministers



Parliamentary Assembly



Court of Justice

- 1957 Convention on certain institutions common to the European Communities

- 1965 Merger Treaty - Treaty Establishing a Single Council and Single Commission

repealed by the EU Treaty !

b. From the Rome Treaties to the Treaty of Lisbon

1957: Rome Treaty: The Treaty of Rome, officially the Treaty establishing the European Economic
Community (TEEC), is an international agreement that led to the founding of the European Economic
Community (EEC) on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy,
Luxembourg, the Netherlands and West Germany. The word Economic was deleted from the treaty's
name by the Maastricht Treaty in 1993, and the treaty was repackaged as the Treaty on the functioning
of the European Union on the entry into force of the Treaty of Lisbon in 2009.

1986: SEA - Single European Act:

institutional reform:



extension of QMV – internal market



cooperation procedure (interinstitutional dialog)



extension of executive powers of the Commission (in creation of internal market)

new Community fields of action:



Economic and Social Cohesion (European Regional Development Found),



Research and Technological Development



Environment

reference to a Treaty on Economic and Monetary Union and cooperation in the sphere of Foreign Policy
(European Political Cooperation, European Council)

ECONOMIC AND MONETARY UNION - the Member States must



ensure coordination of their economic policies,



provide for multilateral surveillance of this coordination



are subject to financial and budgetary discipline.

The objective of monetary policy is to create a single currency and to ensure this currency's stability
thanks to price stability and respect for the market economy.

establishment of a single currency - stages:



Liberalisation of the movement of capital (since 1 January 1990);



convergence of the Member States' economic policies (since 1 January 1994);



the creation of a single currency and the establishment of a European Central Bank (ECB) (since

1 January 1999)

1992: Treaty on the European Union

Objectives:



strengthen the democratic legitimacy of the institutions;



improve the effectiveness of the institutions;



establish economic and monetary union;



develop the Community social dimension; establish a common foreign and security policy

EU as a pillar structure.

1997: Treaty of Amsterdam

Objectives:



to create the political and institutional conditions to enable the European Union to meet the

challenges of the future such as the rapid evolution of the international situation, the
globalisation of the economy and its impact on jobs, the fight against terrorism, international
crime and drug trafficking, ecological problems and threats to public health;



to reform the EU institutions in preparation for the arrival of future member countries.

Main changes:



Fundamental Rights – sanctions for the breach of fundamental rights by a Member State (lose

certain rights, particularly voting rights) (Article 7).



Free movement of persons, asylum and immigration - new title (Title IV in the Treaty

establishing the European Community+ Protocol on incorporating the Schengen acquis into the
Treaty



Non-discrimination - the Council, acting unanimously, will adopt measures to act against

discrimination based on sex, racial or ethnic origin, religion, disability, age or sexual orientation
(Article 13, Title II).



Subsidiarity and Proportionality - Protocol defining the criteria for the application of these

principles, including the strict observance and consistent implementation, by all the Community
institutions

new fields of EC activity



employment policy



acquis Schengen



extension of QMV voting procedure in the Council (codecision)



Closer Co-operation/flexibility/ - Member States are able to use the institutional framework of

the Community to develop closer links between them in specific areas without involving all of
the Member States under authorisation of the Council (multi-speed Europe)



renumbering and consolidation of EU and EC treaties

2000: Treaty of Nice

OBJECTIVES OF THE TREATY OF NICE



preparing the European Union for enlargement by revising the Treaties in four key areas:



size and composition of the Commission;



weighting of votes in the Council;



extension of QMV;



enhanced cooperation.

Institutional changes - Treaty of Nice 1992:



Council -new weighting of votes in the Council: adjustment in the weighting of votes in favour

of the more populated Member States and redistribution of votes among the 25 then 27 Member
States.



Commission - future change in the composition, increase in the powers of the President , change

in the way he or she is nominated.



Reform of judicial system- new division of tasks between the Court of Justice and the Court of

First Instance and the possible creation of specialist judicial Chambers.



Other Institutions:

Parliament: extension of the codecision procedure and adjustment of the number of seats allocated to
each current and future Member State. The Court of Auditors, the European Economic and Social
Committee and the Committee of the Regions: composition and nomination of members.

CONSTITUTIONAL TREATY – does EU has a constitution?

Declaration on the future of the EU



a more precise demarcation of responsibilities between the European Union and the Member

States;



the status of the Charter of Fundamental Rights of the European Union;



a simplification of the Treaties;



the role of national parliaments in the European architecture.

Treaty establishing the Constitution for Europe



abolition of Pillar’s structure



no EC – only EU



state-like symbols



EU – legal personality



ordinary legislative procedure



Co-decision and QMV



Institutional changes



principle of primacy of EU law in the

main text



Charter of Fundamental Rights included

into Treaty



European Laws/European Framework

Laws



Minister for Foreign Affairs

2007: Treaty of Lisbon



abolition of Pillar’s structure



No state-like symbols



EU – legal personality



Ordinary legislative procedure Co-

decision and QMV



Institutional changes



No principle of primacy of EU law in the

main text



Charter of Fundamental Rights is not a

part, however binding



No European Laws/European

Framework Laws



No Minister for Foreign Affairs/ High

Representative of the Union for Foreign
Affairs and Security Policy



European External Action Service

CONSTITUTIONAL NATURE OF EU:

Article 1 TEU

This Treaty marks a new stage in the process of creating an ever closer union among the peoples of
Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European
Union (hereinafter referred to as "the Treaties"). Those two Treaties shall have the same legal value. (…)

The EU is something more than „classic” international organization:



aim of the Treaties – integration,



not only cooperation between Member States but also integration of peoples,



„transfer” of powers from Member States to the EU,



Treaties as „constitutional charter”,



ECJ as constitutional Court

6/64 Flamino Costa v ENEL

‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which
... became an integral part of the legal systems of the Member States and which their courts are bound to
apply.

By creating a Community of unlimited duration, having its own institutions, its own personality, its own
legal capacity and capacity of representation on the international plane and, more particularly, real
powers stemming from a limitation of sovereignty or a transfer of powers from the States to the
Community, the Member States have limited their sovereign rights ... and have thus created a body of
law which binds both their nationals and themselves.’



institutions are not free to choose their objectives in the same way as a sovereign state;



the EU has not the comprehensive jurisdiction enjoyed by sovereign states;



the EU has not powers to establish new areas of responsibility (‘jurisdiction over jurisdiction’).

Article 1 TEU

The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European
Union (hereinafter referred to as "the Treaties"). Those two Treaties shall have the same legal value. (…)

Treaty on European Union



Common provisions (I)



Provisions on democratic principles (II),



Provisions on institutions (III),



Provisions on enhanced cooperation (IV),



General provisions on the Union’s external action and specific provisions on the common foreign

and security policy (V)



Final provisions (VI).

Treaty on the Functioning of the European Union (‘TFEU’) - developed from the Treaty establishing the
European Community. The Treaty establishing the European Atomic Energy Community (EAEC Treaty
— ‘Euratom Treaty’). The TEU and the TFEU have the same legal standing.

c. The process of enlargement

1. The European Economic Community (EEC) was an international organization created by the Treaty
of Rome of 1957

Its aim was to bring about economic integration, including a common market, among its six founding
members: Belgium, France, Italy, Luxembourg, the Netherlands and West Germany.

2. THE FIRST ENLARGEMENT 1973:

enlargement of 1972 (in force in 1973)



Great Britain



1960 – EFTA – GB, Austria, Denmark, Norway, Switzerland, Sweden, Portugal



Denmark



Ireland



acquis communautaire



French veto of 1963



new application of 1967 – + Norway – De Gaulle veto

3. THE SECOND ENLARGEMENT (Mediterranean enlargement) 1981:

4. THE THIRD ENLARGEMENT: Portugal and Spain – 1985/1986

secession of Greenland of 1985

5. THE FOURTH ENLARGEMENT: 1995 : The EU expands to 15 members

Accession of Sweden, Finland, Austria

6. THE FIFTH ENLARGEMENT: 2004 - the biggest round of enlargement : Cyprus, Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia

7. THE SIXTH ENLARGEMENT (2007)

d. Debate on the future of the European Union

Objectives of the EU:



establishment of an economic and monetary union including a single currency



a common foreign and security policy including the eventual framing of a common defence

policy



the introduction of a citizenship of the Union



cooperation on justice and home affairs



the maintenance of the acquis communautaire



the respect of the principle of subsidiarity

e. The European Union as an international organization, f. Specific character of the European Union,
legal character

EU is the (single) international organization



created under the Treaty by Members States;



legal personality;



principle of conferred powers



Member States are still ‘Masters of the Treaties”

 Article 48 - an amendment of the Treaties ‘may, inter alia, serve either to increase or to reduce

the competences conferred on the Union in the Treaties’;

 subject to ratification by all Member States

 Simplified revision procedure (may not increase the competences conferred on the Union in the

Treaties ): subject to approval by the Member States in accordance with their respective
constitutional requirements

 Article 50 withdrawal from the EU;

LEGAL CHARACTER OF EU:

Article 1 TEU

By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called "the Union", on which the Member States confer competences to attain
objectives they have in common.

Article I-1 (TCE)

1. Reflecting the will of the citizens and States of Europe to build a common future, this Constitution
establishes the European Union, on which the Member States confer competences to attain objectives
they have in common. The Union shall coordinate the policies by which the Member States aim to
achieve these objectives, and shall exercise in the Community way the competences they confer on it.

Community Method:



legislative initiative of the Commission



QMV



co-decision - EP involved in decision-making process



direct effect



ECJ review

II & III pillar - intergovernmental method:



legislative initiative - MSs &Commission



unanimity, exceptionally QMV



EP - consultation



no direct effect for framework decisions and decisions



ECJ review only in III pillar – Art. 35 EU

2. Institutions, organs of the UE and decision-making process

PRINCIPLES GOVERNING RELATIONS BETWEEN INSTITUTIONS

Article 13

Each institution shall act within the limits of the powers conferred on it in the Treaties, and in
conformity with the procedures, conditions and objectives set out in them. The institutions shall practice
mutual sincere cooperation.

PRINCIPLE OF INSTITUTIONAL BALANCE

Case C-70/88 European Parliament v. Council

„The Treaties set up a system for distributing powers among the different Community institutions,
assigning to each institution its own role in the institutional structure of the Community and the
accomplishment of the tasks entrusted to the Community.

Observance of the institutional balance means that each of the institutions must exercise its powers with
due regard for the powers of the other institutions. It also requires that it should be possible to penalize
any breach of that rule which may occur.”

INSTITUTIONS COMPOSITIONS AND FUNCTIONS

The European Parliament - voice of the people

Martin Schulz, President of the European Parliament

The Council - voice of the Member States

Herman Van Rompuy, President of the European Council

The European Commission - promoting the common interest

José Manuel Barroso, President of the European Commission

PARLIAMENT - Article 14

2. The European Parliament shall be composed of representatives of the Union’s citizens. They shall not
exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be
degressively proportional, with a minimum threshold of six members per Member State. No Member
State shall be allocated more than ninety-six seats. [degressively proportional – the bigger state, the
fewer seats it will vahe relatively to population; the minimum number of seats for a MS must be six, the
maximum ninety-six]

The European Council shall adopt by unanimity (UNANIMITY! (jednomyślność na nasze) -
Abstentions by members present in person or represented do not prevent the adoption by the European
Council of acts which require unanimity), on the initiative of the European Parliament and with its
consent, a decision establishing the composition of the European Parliament, respecting the principles
referred to in the first subparagraph.

Article 14

3. The members of the European Parliament shall be elected for a term of five years by direct universal
suffrage in a free and secret ballot.

Decision of 20 September 1976, as amended by Council decision of 25 June and 23 September 2002

each Member State lays down its own election procedure, but must apply the same basic democratic
rules:



direct general election,



proportional representation,



free and secret ballots,



renewable five-year term

Structure:



President



14 Vice-Presidents



5 Quaestors (advisoty)

 Group of the European People's Party (Christian Democrats) EPP

 Group of the Progressive Alliance of Socialists and Democrats in the European Parliament

S&D

 Group of the Alliance of Liberals and Democrats for Europe --> ALDE

 European Conservatives and Reformists Group ECR

 Group of the Greens/European Free Alliance Greens (Efa)

 Confederal Group of the European United Left - Nordic Green Left GUE / NLG

 Europe of Freedom and Democracy Group EFD

Functions of EP: Article 14 TEU

1. The European Parliament shall, jointly with the Council, exercise legislative:



ordinary legislative procedure (act is adopted jointly by the EP and the Council);



special legislative procedure (acts is adopted by the Council with participation of the EP or by

the EP with participation of the Council)



bugetary procedure.

and budgetary functions. It shall exercise functions of political control:



political control



over the Commission,

 motion of censure – Commision resign as a body;

 dissusion on the annual general report of the Commission;



over the Council and the European Council;



temoprary Committee of Inquiry;



petitons;



European Ombudsman

and consultation as laid down in the Treaties. It shall elect the President of the Commission.



„Flying institution” – EUROPEAN PARLIAMENT



Strasbourg – plenary sessions

Brussels – plenary sessions, meetings of the political groups and committees



Luxembourg – Secretariat General



Number of seats per country (2009 – 2014 parliamentary term) -> total 754

138/79 SA Roquette Frères v Council

4 . The consultation provided for in (…) the EEC treaty, is the means which allows the parliament to
play an actual part in the legislative process of the community . Such power represents an essential
factor in the institutional balance intended by the treaty . Although limited, it reflects at community level
the fundamental democratic principle that the peoples should take part in the exercise of power through
the intermediary of a representative assembly .

Article 10 of the TEU (representative democracy)

1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State or Government and in
the Council by their governments, themselves democratically accountable either to their national
Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be
taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political awareness and to
expressing the will of citizens of the Union.

EUROPEAN COUNCIL THE COUNCIL

The European Council consists of the Heads of State or Government of the Member States, together
with its President and the President of the Commission. The High Representative of the Union for
Foreign Affairs and Security Policy shall take part in its work.

Article 16 (2) ‘the Council shall consist of a representative of each Member State at ministerial level,
authorised to commit the government of that Member State’.



provides the Union with the necessary impetus for its development



defines the general political directions and priorities



do not exercise legislative functions. The Council meets in different compositions depending on

the particular subject matter on the agenda.

With the exception of the Foreign Affairs Council (which is chaired by the High Representative) each of
those meetings is chaired by the representative of the Member State which holds the Presidency

The General Secretariat

The Presidency is assisted by the General Secretariat, which prepares and ensures the smooth
functioning of the Council's work at all levels.

Ambassadors of the Memeber States (known as ‘permanent representatives’) meet weekly within the
Permanent Representatives Committee (COREPER). The role of this committee is to prepare the work
of the Council, with the exception of most agricultural issues, which are handled by the Special
Committee on Agriculture. COREPER is assisted by a number of working groups, made up of officials
from the national administrations.

THE COUNCIL FUNCTIONS:

The Council is responsible for decision-making and co-ordination



passes laws, usually legislating jointly with the European Parliament.



co-ordinates the broad economic policies of the Member States.



defines and implements the EU’s common foreign and security policy, based on guidelines set

by the European Council.



concludes, on behalf of the Community and the Union, international agreements between the

EU and one or more states or international organisations.



co-ordinates the actions of Member States and adopts measures in the area of police and

judicial co-operation in criminal matters.



the Council and the European Parliament constitute the budgetary authority that adopts the

Community’s budget.

QMV – Qualified majority voting



Distribution of votes for each Member State



Germany, France, Italy, United Kingdom 29



Spain, Poland 27



Romania 14



Netherlands 13



Belgium, Czech Republic, Greece, Hungary, Portugal 12



Austria, Bulgaria, Sweden 10



Denmark, Ireland, Lithuania, Slovakia, Finland 7



Cyprus, Estonia, Latvia, Luxembourg, Slovenia 4



Malta 3



TOTAL 345

A qualified majority will be reached if the following two conditions are met:



a majority of Member States approve (when the Council does not act on a proposal from the

Commission or from the High Representative of the Union for Foreign Affairs and Security
Policy - two-thirds majority);



a minimum of 255 votes is cast in favour of the proposal, out of a total of 345 votes.

In addition, a Member State may ask for confirmation that the votes in favour represent at least 62% of
the total population of the Union. If this is found not to be the case, the decision will not be adopted

From 1 November 2014



QMV- at least 55 % of the members of the Council representing the participating Member

States, comprising at least 65 % of the population of these States.



A blocking minority - at least the minimum number of Council members representing more than

35 % of the population of the participating Member States, plus one member, failing which the
qualified majority shall be deemed attained;



where the Council does not act on a proposal from the Commission or from the High

Representative of the Union for Foreign Affairs and Security Policy - at least 72 % of the
members of the Council representing the participating Member States, comprising at least 65 %
of the population of these States.

THE EUROPEAN COMISSION:

a) composition



27 members, i.e. one Commissioner per Member State (2009-2014)



Article 17 (5) As from 1 November 2014, the Commission shall consist of a number of members,

including its President and the High Representative of the Union for Foreign Affairs and Security
Policy, corresponding to two thirds of the number of Member States, unless the European
Council, acting unanimously, decides to alter this number.

b) appointment



the future President of the Commission is proposed to the European Parliament on the basis of a

selection by the European Council acting by a qualified majority;



the Council, by common accord with the President-elect, adopts the list of the other persons

whom it proposes for appointment,



the proposed Commission is subject ‘as a body to a vote of consent by the European Parliament’



Commission is appointed by the European Council, acting by a qualified majority.

The members of the Commission are chosen on the ground of their general competence and European
commitment from persons whose independence is beyond doubt. In carrying out its responsibilities, the
Commission is completely independent. The members of the Commission must neither seek nor take
instructions from any Government or other institution, body, office or entity. They shall refrain from any
action incompatible with their duties or the performance of their tasks. !!!

c) functions



to propose legislation to Parliament and the Council;



to manage and implement EU policies and the budget;



to enforce European law (jointly with the Court of Justice);



to represent the European Union on the international stage, for example by negotiating

agreements between the EU and other countries.

The President Of The Commission shall:

(a) lay down guidelines within which the Commission is to work;

(b) decide on the internal organization of the Commission, ensuring that it acts consistently, efficiently
and as a collegiate body;

(c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and
Security Policy, from among the members of the Commission.

A member of the Commission shall resign if the President so requests.

The High Representative of the Union for Foreign Affairs and Security Policy



appointed by the European Council (qualified majority), with the agreement of the President of

the Commission, for an unspecified period



hybrid position within the institutional framework of the Union



the Vice-Presidents of the Commission, albeit in a special privileged position,



the Council and the European Council.



conducts the Union's common foreign and security policy;



contributes by her proposals to the development of that policy, which she will carry out as

mandated by the Council, and ensures implementation of the decisions adopted in this field;



presides over the Foreign Affairs Council;



is one of the Vice-Presidents of the Commission; ensures the consistency of the Union‘s external

action and is responsible within the Commission for responsibilities incumbent on it in external
relations and for coordinating other aspects of the Union's external action.



represents the Union for matters relating to the common foreign and security policy, conduct

political dialogue with third parties on the Union's behalf and expresses the Union's position in
international organisations and at international conferences.



exercises authority over the European External Action Service and over the Union delegations in

third countries and at international organization.

COURT OF JUSTICE

Article 19 (TFEU)

1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and
specialized courts. It shall ensure that in the interpretation and application of the Treaties the law is
observed The Court is composed of one judge per member state, so that all 27 of the EU’s national legal
systems are represented. For the sake of efficiency, however, the Court rarely sits as the full court. It
usually sits as a ‘Grand Chamber’ of just 13 judges or in chambers of five or three judges. The Court is
assisted by eight ‘advocates-general’. Their role is to present reasoned opinions on the cases brought

before the Court. They must do so publicly and impartially.

The Court gives rulings on cases brought before it. The five most common types of case are:



references for a preliminary ruling;



actions for failure to fulfill an obligation;



actions for annulment



actions for failure to act;



actions for damages

EUROPEAN COURT OF AUDITORS

The Court of Auditors carries out the Union's audit.

It consists of one national of each Member State. Its Members shall are completely independent in the
performance of their duties, in the Union's general interest.

The European Parliament, the Council and the Commission are assisted by an Economic and Social
Committee and a Committee of the Regions, exercising advisory functions.

The Economic and Social Committee consists of representatives of organisations of employers, of the
employed, and of other parties representative of civil society, notably in socio economic, civic,
professional and cultural areas.

The Committee of the Regions consists of representatives of regional and local bodies who either hold a
regional or local authority electoral mandate or are politically accountable to an elected assembly.

DECISION MAKING PROCESS

Revision of the Treaty

Ordinary revision procedure:



The Government of any Member State, the European Parliament or the Commission may submit

to the Council proposals for the amendment of the Treaties. These proposals is submitted to the
European Council by the Council and the national Parliaments are notified.



If the European Council, after consulting the European Parliament and the Commission, adopts

by a simple majority a decision in favour of examining the proposed amendments, the President
of the European Council convenes a Convention composed of representatives of the national
Parliaments, of the Heads of State or Government of the Member States, of the European
Parliament and of the Commission. The European Central Bank is consulted in the case of
institutional changes in the monetary area. The Convention examines the proposals for
amendments and adopts by consensus a recommendation to a conference of representatives of
the governments of the Member States.



The European Council may decide by a simple majority, after obtaining the consent of the

European Parliament, not to convene a Convention should this not be justified by the extent of
the proposed amendments. In the latter case, the European Council shall define the terms of

reference for a conference of representatives of the governments of the Member States.



A conference of representatives of the governments of the Member States is convened by the

President of the Council for the purpose of determining by common accord the amendments to
be made to the Treaties.



The amendments shall enter into force after being ratified by all the Member States in

accordance with their respective constitutional requirements.



If, two years after the signature of a treaty amending the Treaties, four fifths of the Member

States have ratified it and one or more Member States have encountered difficulties in
proceeding with ratification, the matter shall be referred to the European Council.



Special revision procedure → simplified revision procedure:



The Government of any Member State, the European Parliament or the Commission may submit

to the European Council proposals for revising all or part of the provisions of Part Three of the
Treaty on the Functioning of the European Union relating to the internal policies and action of
the Union.



The European Council may adopt a decision amending all or part of the provisions of Part Three

of the Treaty on the Functioning of the European Union. The European Council acts by
unanimity after consulting the European Parliament and the Commission, and the European
Central Bank in the case of institutional changes in the monetary area. That decision shall not
enter into force until it is approved by the Member States in accordance with their respective
constitutional requirements.



The decision must not increase the competences conferred on the Union in the Treaties.



Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for

the Council to act by unanimity in a given area or case, the European Council may adopt a
decision authorizing the Council to act by a qualified majority in that area or in that case. This
subparagraph shall not apply to decisions with military implications or those in the area of
defense.



Where the Treaty on the Functioning of the European Union provides for legislative acts to be

adopted by the Council in accordance with a special legislative procedure, the European Council
may adopt a decision allowing for the adoption of such acts in accordance with the ordinary
legislative procedure.



Any initiative taken by the European Council is notified to the national Parliaments. If a national

Parliament makes known its opposition within six months of the date of such notification, the
decision referred to in the first or the second subparagraph shall not be adopted. In the absence of
opposition, the European Council may adopt the decision.



The European Council acts by unanimity after obtaining the consent of the European Parliament,

which shall be given by a majority of its component members.

LEGISLATIVE PREOCEDURES (chyba dała to w każdej prezentacji pod koniec ;<)

ORDINARY LEGISLATIVE PROCEDURE:

1. COMMISSION PROPOSAL

Only the Commission may put forward legislative proposals ("right of initiative") (except where Treaty
provides otherwise).

The legal basis adopted by the Commission will determine the legislative procedure.

The proposal is forwarded simultaneously to the European Parliament and to the Council but also the all
National Parliaments and, where applicable, to the Committee of the Regions and the Economic and
Social Committee.

1a Opinions of the national Parliaments

If a draft legislative act's compliance with the subsidiarity principle is contested by a third (a quarter in
the Area of Freedom Security and Justice) the votes allocated to national Parliaments , the Commission
has to review the proposal and decide to maintain, amend or withdraw the act, also motivating its
decision („yellow card”)

If a draft legislative act's compliance with the subsidiary principle is contested by at least one third of all
the votes allocated to the national Parliaments the Commission has to re-examine the proposal.

Commission may:



maintain – obligatory opinion,



amend



withdraw the proposal

If a draft legislative act's compliance with the subsidiarity principle is contested by at least one third of
all the votes allocated to the national Parliaments the Commission has to re-examine the proposal.

Reasons must be given!

a reasoned opinion of the Commission and the reasoned opinions of the national Parliaments are
transmitted to the co-legislator, for consideration in the legislative procedure.

first reading - the co-legislator considers the compatibility of the legislative proposal with the principle
of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national
Parliaments as well as the reasoned opinion of the Commission.

majority of 55% of the members of the Council or a majority of the votes cast in the European
Parliament, the co-legislator is of the opinion that the proposal is not compatible with the principle of
subsidiarity, the legislative proposal is abandon (orange card),

1b Opinions of the Committee of the Regions and the Economic and Social Committee

The Economic and Social Committee and the Committee of the Regions respectively consist of
“representatives of the various economic and social components of organized civil society …”
and “representatives of regional and local bodies …”.

2. European Parliament (EP) First reading

The European Parliament delivers at first reading a position. This position, prepared by a rapporteur, is
discussed and amended within the relevant parliamentary committee, then debated in plenary session,
where it is adopted by a simple majority.

3. Amended Commission proposal

Article 293(2) TFEU authorizes the Commission to alter its legislative proposal, enabling it to
incorporate European Parliament amendments which, in its view, improve the initial proposal and/or are
likely to facilitate an agreement.

4. Council first reading

The Council makes its position known after preparatory work has taken place within working parties
made up of experts from the Member States and chaired by the Member State holding the six-monthly
Presidency of the Council. The Council finalises its position on the basis of the Commission’s proposal,
amended where necessary, in the light of the European Parliament’s first reading and resultant
amendments.

possible scenarios:

 the Council accepts without alteration the Commission’s proposal, which the European

Parliament has not amended, and the act can be adopted ;

 the Council accepts all the European Parliament’s amendments which the Commission has

incorporated into its amended proposal, and the act can be adopted ;

 in all other cases, the Council adopts a common position.

5. The Council approves all the EP amendments

If the Council approves the Commission’s proposal as amended by the European Parliament, the act is
deemed to have been adopted in the wording which corresponds to the position of the European
Parliament.

6. The Council can adopt the act as amended

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the
European Parliament and of the Council, and is published in the Official Journal

The procedure is ended.

7. The EP has approved the proposal without amendment

If the European Parliament has not adopted any amendments, and if the Council does not wish to alter
the Commission’s proposal either, it can approve the act on that basis by a QMV. The act is then adopted
in the wording which corresponds to the position of the European Parliament which, in this particular
case, is identical with the wording of the Commission proposal.

8. The Council can adopt the Act

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the
European Parliament and of the Council, and is published in the Official Journal.

9. Council common position

When the Council does not share the views expressed by Parliament, it adopts a common position,
which is forwarded to the European Parliament together with a statement of reasons.

Where the European Parliament has approved the Commission’s proposal without amendment, but the
Council wishes to make changes to it, the Council will again adopt a common position.

10. Commission communication on the common position

In this document, which is forwarded to the European Parliament in tandem with the common position,
the Commission explains why it has decided to support or oppose the common position. The
Commission also comments on the Council’s reaction to the EP amendments which it had supported in
plenary at the first reading. Only if the Commission amends its proposal in line with the common
position, the Council can act by qualified majority.

In this document, which is forwarded to the European Parliament in tandem with the common position,
the Commission explains why it has decided to support or oppose the common position. The
Commission also comments on the Council’s reaction to the EP amendments which it had supported in
plenary at the first reading. Only if the Commission amends its proposal in line with the common
position, the Council can act by qualified majority.

11. EP second reading

A three-month time limit is laid down by the Treaty (this period may be extended by a month) for the
European Parliament to take action on the basis of the Council position at first reading.

The adoption procedure is similar to that at first reading but has some distinct differences. As a general
rule, the amendments must:

 include amendments adopted at first reading and not accepted by the Council;

 be concerned with a part of the common position which did not appear in,

 be substantially different from, the Commission’s initial proposal; or introduce a compromise

between the positions of the co-legislators.

12. EP approves the common position or does not take a decision

If the European Parliament endorses the common position as it stands, fails to adopt amendments as a
result of not obtaining an absolute majority of its Members or does not take a decision within the
stipulated time limit, the President of Parliament will declare that the common position is approved and
the act is adopted in accordance with the common position. This is also the case when trilogue meetings
have taken place after the EP first reading and before the Council adopts its common position. Such an
agreement is called "negotiated common position" or "early second reading".

13. Act deemed to have been adopted

The legislative act is submitted directly for the signature of the Presidents and Secretaries–General of
the European Parliament and of the Council, and is published in the Official Journal.

The procedure is ended.

14. EP rejects the common position

Rejection of the common position requires the votes of an absolute majority of the component Members
of the European Parliament – The act is deemed not to have been adopted.

The procedure is ended.

16. EP proposes amendments to the common position

The European Parliament may propose amendments to the common position, by an absolute majority of
its component Members and the text thus amended is forwarded to the Council and the Commission.

17. Commission opinion on EP amendments

The Treaty specifically requires the Commission to deliver an opinion on the European Parliament’s
amendments. The Commission’s position on the European Parliament’s amendments will determine the
type of vote necessary in the Council: if the Commission has given a negative opinion on at least one
amendment, the Council will have to act unanimously as regards acceptance of the European
Parliament’s position overall

18. Council second reading

The Council has a period of three months (which may be extended by a further month), following
receipt of the European Parliament’s amendments, in which to approve them by a qualified majority or
unanimously if the Commission has delivered a negative opinion.

19. The Council approves the amended common position

If the Council agrees to accept all the amendments of the European Parliament, the act will be deemed
to have been adopted in the form of the common position thus amended (wording corresponds to the EP
second reading).

20. Act adopted as amended

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the
European Parliament and of the Council, and is published in the Official Journal.

The procedure is ended.

21. The Council does not approve the amendments to the common position

If, within a three-month period (may be extended by one month), the Council does not approve all the
amendments of the European Parliament, the President of the Council, in agreement with the President
of the European Parliament, will convene a meeting of the Conciliation Committee within six weeks
(may be extended by two weeks).

23. The conciliation procedure

The Conciliation Committee brings together members of the Council or their representatives and an
equal number of representatives of the European Parliament, as well as the Commissioner responsible.

Negotiations focus on all the amendments adopted by the European Parliament at second reading on the
basis of the Council's common position. The Treaty stipulates a time limit of six weeks (which may be
extended by two weeks) for approving a joint text.

24. The Conciliation Committee produces a joint text

Once the negotiators have arrived at a compromise, the Conciliation Committee must give approval in
the form of a “joint text”. The Council's delegation acts by a QMV(unanimity in cases stipulated by the
Treaty) while the European Parliament’s delegation acts by a simple majority of its component
members.

25. Parliament and the Council adopt the act in accordance with the joint text

The European Parliament (by a majority of the votes cast; no amendment may be tabled) and the
Council (by a qualified majority with certain exceptions) must adopt the act within six (or eight) weeks,
in line with the joint text.

26. Act adopted

The legislative act is submitted directly for the signature of the Presidents and Secretaries-General of the
European Parliament and of the Council, and is published in the Official Journal.

The procedure is ended.

27. Parliament and the Council do not approve the joint text

Should either of the institutions fail to give approval within the stipulated time limit, the act is deemed
not to have been adopted and the procedure is ended.

SPECIAL LEGISLATIVE PROCEDURES:

In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by
the European Parliament with the participation of the Council, or by the latter with the participation of
the European Parliament, shall constitute a special legislative procedure.

 Conssent

 Consultation

Special legislative procedures - consultation

Under Article 289 of the TFEU, consultation is a special legislative procedure, whereby European
Parliament is asked for its opinion on proposed legislation before the Council adopts it.

Special legislative procedures - consent

In certain legislative areas, the European Parliament is requested to give its consent, as a special
legislative procedure under Article 289(2) of the TFEU (eg. non-discrimination Article 19 TFEU)

The consent procedure gives Parliament the right of veto - Parliament’s role is thus to approve or reject
the legislative proposal without further amendments and the Council cannot overrule Parliament’s
opinion.

Consent is also required as a non-legislative procedure when the Council is adopting certain
international agreements (eg. assiociate agreements).

Basic institutional principles and division of competencies between the EU and member states:

a. Principle of the national identity of the Member States

Respect of identity of the Member States

Article 2 EU Treaty

2. The Union shall respect the equality of Member States before the Treaties as well as their national
identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and
local self-government. It shall respect their essential State functions, including ensuring the territorial
integrity of the State, maintaining law and order and safeguarding national security. In particular,
national security remains the sole responsibility of each Member State.

Aspects:



equality of Member States before the Treaties (see: sovereign equality of states);



national identities – constitutional and political structure (e.g.. division powers between national

authorities, political order, language of the State etc.)



essential State functions (territorial integrity of the State, maintenance of law and order, national

security).

C-208/09 Ilonka Sayn-Wittgenstein

92. It must also be noted that, in accordance with Article 4(2) TEU, the European Union is to respect
the national identities of its Member States, which include the status of the State as a Republic.

93 In the present case, it does not appear disproportionate for a Member State to seek to attain the
objective of protecting the principle of equal treatment by prohibiting any acquisition, possession or use,
by its nationals, of titles of nobility or noble elements which may create the impression that the bearer of
the name is holder of such a rank. By refusing to recognise the noble elements of a name such as that of
the applicant in the main proceedings, the Austrian authorities responsible for civil status matters do not
appear to have gone further than is necessary in order to ensure the attainment of the fundamental
constitutional objective pursued by them.

94 In those circumstances, the refusal, by the authorities of a Member State, to recognise all the
elements of the surname of a national of that State, as determined in another Member State – in which
that national resides – at the time of his or her adoption as an adult by a national of that other Member
State, where that surname includes a title of nobility which is not permitted in the first Member State
under its constitutional law cannot be regarded as a measure unjustifiably undermining the freedom to
move and reside enjoyed by citizens of the Union.

Respect of common values

Article 2

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule
of law and respect for human rights, including the rights of persons belonging to minorities. These
values are common to the Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail.

b. Principle of democracy, rule of law and protection of fundamental rights

PRINCIPLE OF DEMOCRACY:

 citizenship of the Union - the principle of democratic equality,

 the principle of representative democracy,

 The principle of participatory democracy

In all its activities, the Union observe the principle of the equality of its citizens, who shall receive equal
attention from its institutions, bodies, offices and agencies.

the principle of representative democracy → Citizens are directly represented at Union level in the
European Parliament.

Member States are represented in the European Council by their Heads of State or Government and in
the Council by their governments, themselves democratically accountable either to their national
Parliaments, or to their citizens.

The principle of participatory democracy

Article 11

1. The institutions shall, by appropriate means, give citizens and representative associations the
opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative
associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to
ensure that the Union's actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may
take the initiative of inviting the European Commission, within the framework of its powers, to submit
any appropriate proposal on matters where citizens consider that a legal act of the Union is required for
the purpose of implementing the Treaties.

PROTECTION OF HUMAN RIGHTS

1. the absence of reference to individual human rights in the treaty establishing the EEC (1957)

2. the ECJ starts with its case-law on human rights protection: fundamental human rights
incorporated in the general principle of community law are protected by the Court (Stauder case, 1969)

further steps in the case-law of the ECJ: the sources of law used by the ECJ for the protection of human
rights constitutional traditions common to Member States (Internationale Handelsgeselschaft case,
1970) international treaties on human rights, in particular the European Convention on Human Rights
and Fundamental Freedoms of 1950, (Nold case, 1974)

3. the recognition of human rights in the Treaty on European Union (Maastricht, 1992)

“The Union shall respect the fundamental rights, as guaranteed by the European Convention on Human
Rights (…) and as they result from the constitutional tradition common to the Member States, as general
principles of Community law” (Art. F)

4. the absence of a catalogue of human rights within the EU legal order

the European Council of Cologne (1999):

“The European Council takes the view that, at the present stage of development of the European Union,
the fundamental rights applicable at the Union level should be consolidated in a Charter and thereby
made more evident”

5. human rights → the adoption of the charter of fundamental rights of the European union (nice, 7
December 2000)

the structure of the Charter:



the rights are grouped under six universal values (dignity, freedoms, equality, solidarity, citizen’s

rights, justice) and



four general provisions governing the interpretation and application of the Charter

6. The Treaty of Lisbon

Article 6

1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental
Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in
any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in
the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter
governing its interpretation and application and with due regard to the explanations referred to in the
Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the
Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms and as they result from the constitutional traditions common to the Member
States, shall constitute general principles of the Union's law.

7. Acts of the EU institutions



interpretation



legality review

8. Acts of the Member States:



when they are implementing EU law - 5/88 Wachauf



when they derogate according to the provisions on fundamental freedoms - C-260/89 ERT

Podręcznik: 'At least 3 formal sources for EU human rights law are today listed in Article 6 TEU. The
first is the Charter of Fundamental Rights which was [proclaimed in 2000 and upgraded to the same
binding legal status as the treaties by the Lisbon Treaty in 2009. The second is the ECHR, which has
long been treated by the ECJ as a special source of inspiration' for EU human rights principles, and
which become formally binding on the EU when the EU accedes to the ECHR as Articles 6(2) TEU now
mandates it to do. The third is the 'general principles of EU law', a body of legal principles, including
human rights, which have been articulated and developed by the ECJ over the years, drawing from
national constitutional traditions, the ECHR and other institutional treaties signed by the MS. These 3
sources overlap, since many provisions of the EU Charter are based on the ECHR, creating a certain
amount of legal confusion. Other international sources of human rights law have only rarely been
invoked. The ECJ has recently made clear that it views the Charter as 'the principal basis' on which the
EU Courts will ensure that human rights are observed. However, the UK, Poland and the Czech
Republic negotiated a protocol to the Lisbon Treaty which purports to limit the impact of the Charter in
those states. EU human rights standards are binding on the EU and its institutions and bodies in all of
their activities and on the MS when they are acting within the scope of EU law. Questions continue to
arise about what MS action falls 'within the scope of EU law' for these purposes.'

PRINCIPLE OF SINCERE COOPERATION/SOLIDARITY

Article 4

3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the
obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure
which could jeopardise ( jeopardise WTF;O → pose a threat to) the attainment of the Union's objectives.

PRINCIPLE OF CONFERRED POWERS

Article 5

1. The limits of Union competences are governed by the principle of conferral. (…)

2. Under the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.

Powers of the EU:

 Explicit powers

 Implied powers

Art. 352 TFEU

Implied powers

the existence of a given power implies also the existence of any other power which is reasonably
necessary for the exercise of the former;

the existence of the given objective or function implies the existence of any power reasonably necessary
to attain it.

Implied powers

27 (…) it must be considered whether the second paragraph of Article 118, which provides that the
Commission is to act, inter alia, by arranging consultations, gives it the power to adopt a binding
decision with a view to the arrangement of such consultations .

28 In that connection it must be emphasized that where an article of the EEC Treaty - in this case Article
118 - confers a specific task on the Commission it must be accepted, if that provision is not to be
rendered wholly ineffective, that it confers on the commission necessarily and per se the powers which
are indispensable in order to carry out that task . Accordingly, the second paragraph of Article 118 must
be interpreted as conferring on the Commission all the powers which are necessary in order to arrange
the consultations . In order to perform that task of arranging consultations the Commission must
necessarily be able to require the Member States to notify essential information, in the first place in
order to identify the problems and in the second place in order to pinpoint the possible guidelines for
any future joint action on the part of the Member States; likewise it must be able to require them to take
part in consultations .

Case C-376/98 Germany v EP and Council (Tabaco Advertising case)

83. Those provisions, read together, make it clear that the measures referred to in Article 100a(1) of
the Treaty are intended to improve the conditions for the establishment and functioning of the internal
market. To construe that article as meaning that it vests in the Community legislature a general power to
regulate the internal market would not only be contrary to the express wording of the provisions cited
above but would also be incompatible with the principle embodied in Article 3b of the EC Treaty (now
Article 5 EC) that the powers of the Community are limited to those specifically conferred on it.

Case C-376/98 Germany v EP and Council (Tabaco Advertising case)

84. Moreover, a measure adopted on the basis of Article 100a of the Treaty must genuinely have as its
object the improvement of the conditions for the establishment and functioning of the internal market. If
a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise
of fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to
justify the choice of Article 100a as a legal basis, judicial review of compliance with the proper legal
basis might be rendered nugatory. The Court would then be prevented from discharging the function
entrusted to it by Article 164 of the EC Treaty (now Article 220 EC) of ensuring that the law is observed
in the interpretation and application of the Treaty.

85. So, in considering whether Article 100a was the proper legal basis, the Court must verify whether
the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature
(…).

Article 352

(ex Article 308 TEC)

1. If action by the Union should prove necessary, within the framework of the policies defined in the
Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the
necessary powers, the Council, acting unanimously on a proposal from the Commission and after
obtaining the consent of the European Parliament, shall adopt the appropriate measures.

Limitations:

Measures based on Article 352 may not entail harmonisation of Member States' laws or regulations in
cases where the Treaties exclude such harmonisation;

Article 352 cannot serve as a basis for attaining objectives pertaining to the common foreign and
security policy;

Article 352 cannot be used as a basis for the adoption of provisions whose effect would, in substance, be
to amend the Treaties without following the procedure which they provide for that purpose.

Opinion 2/94

Article 235 [now 352] is designed to fill the gap where no specific provisions of the Treaty confer on the
Community institutions express or implied powers to act, if such powers appear none the less to be
necessary to enable the Community to carry out its functions with a view to attaining one of the
objectives laid down by the Treaty.

That provision, being an integral part of an institutional system based on the principle of conferred
powers, cannot serve as a basis for widening the scope of the Community powers beyond the general
framework created by Treaty as a whole and, in particular, by whose that define the tasks and the
activities of the Community. On any view, Article 235 cannot be used as a basis for the adoption of
provisions whose effects would, in substance, be amend the Treaty without following the procedure
which it provides for that purpose.

CATEGORIES AND AREAS OF UNION COMPETENCE



Exclusive competencies of the Union;



Shared competencies;



Competencies to support, coordinate or supplement the actions of the Member States;



Exclusive competencies of the Member States.



Exclusive competencies

Article 2 TFEU

only the Union may legislate and adopt legally binding acts, the Member States being able to do so
themselves only if so empowered by the Union or for the implementation of Union acts.

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning of the internal market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common fisheries policy;

(e) common commercial policy.

Article 2 TFEU

conclusion of an international agreement when its conclusion is provided for in a legislative act of the
Union, or is necessary to enable the Union to exercise its internal competence, or in so far as its
conclusion may affect common rules or alter their scope.

Shared competencies

the Union and the Member States may legislate and adopt legally binding acts in that area. The Member
States exercise their competence to the extent that the Union has not exercised its competence. The
Member States again exercise their competence to the extent that the Union has decided to cease
exercising its competence

Shared competencies

(a) internal market;

(b) social policy, for the aspects defined in the Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in the Treaty.

Competencies to carry out supporting action

Article 2 TFEU

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence
to carry out actions to support, coordinate or supplement the actions of the Member States, without
thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these
areas shall not entail harmonisation of Member States' laws or regulations.

Competencies to carry out supporting action

Article 6

The Union shall have competence to carry out actions to support, coordinate or supplement the actions
of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health;

(b) industry;

(c) culture;

(d) tourism;

(e) education, vocational training, youth and sport;

(f) civil protection;

(g) administrative cooperation

SUBSIDIARITY

Article 5

1. (…)The use of Union competences is governed by the principles of subsidiarity and proportionality.
(…)

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the
Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently
achieved by the Member States, either at central level or at regional and local level, but can rather, by
reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the
application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance
with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Question – who should act in particular case: the EU or Member States? (within the area of other than
exclusive competencies):

the affirmative statement that the EU must act where the objectives to be pursued can be better attained
at the Union level, which enhances its powers;

the negative statement that it must not act where objectives can be satisfactorily attained by the Member
States acting individually, which constrains them.

PROPORTIONALITY

Article 5

4. Under the principle of proportionality, the content and form of Union action shall not exceed what is
necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on
the application of the principles of subsidiarity and proportionality.

next question - the intensity and the form that the action of the EU should take

Proportionality test:



whether the measure was suitable to achieve the desired end,



whether it was necessary to achieve the desired end



whether the measure imposed a burden on the individual that was excessive in relation to

objective sought to be achieved (proportionality stricto sensu)

Case C-331/88 Fedesa

13 The Court has consistently held that the principle of proportionality is one of the general principles of
Community law . By virtue of that principle, the lawfulness of the prohibition of an economic activity is
subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve
the objectives legitimately pursued by the legislation in question; when there is a choice between several
appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not
be disproportionate to the aims pursued .

14 However, with regard to judicial review of compliance with those conditions it must be stated that in
matters concerning the common agricultural policy the Community legislature has a discretionary power
which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty .
Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is
manifestly inappropriate having regard to the objective which the competent institution is seeking to
pursue (…)

The legal order of the European Union

a. Primary and secondary law

Primary law



„constitutional charter” of the Union,



revision procedures – ratification/consent by all Member States,



jurisdiction of the ECJ

Primary law -sources



the Treaty on the European Union, the Treaty on functioning of the European Union, the Treaty

establishing Euratom, Protocols, revision Treaties, accession Treaties;



constitutional acts of the Council or the European Council (e.g. Art. 311 TFEU - own resources);



general principles of law

General principles of law – legal basis for application:

Article 19 TEU

The Court of Justice of the European Union shall include the Court of Justice, the General Court and
specialized courts. It shall ensure that in the interpretation and application of the Treaties the law is
observed.

Primary law → General principles of law – scope of application



Interpretation of the EU law and national law adopted in implementation of the EU law;



Control of legality of acts of institutions;



Review of the law of the Member States

Secondary law



made by institutions acting within powers conferred on them by the Treaties,



•conformity with primary law,



judicial control of legality (ECJ).

Secondary law-sources



legislative acts (regulations, directives, decisions)



non-legislative acts (regulations, directives, decisions)

 delegated acts

 implementing acts



acts of the common foreign and security policy



other acts

b. The hierarchy of legal acts (legislative acts, delegated acts and implementive acts)

Legislative acts (Article 289 TFEU)

Adopted in legislative procedure jointly by the European Parliament and/or the Council on a proposal of
the Commission



ordinary legislative procedure - act is adopted jointly by the PE and the Council;



special legislative procedure - in the specific cases provided for by the Treaty, by the European

Parliament with the participation of the Council, or by the latter with the participation of the
European Parliament (consultation/consent)

In the specific cases provided for by the Treaties, legislative acts may be adopted on the initiative of a
group of Member States or of the European Parliament, on a recommendation from the European
Central Bank or at the request of the Court of Justice or the European Investment Bank.

Delegated acts (Article 290 TFEU)



non –legislative acts of general application



to supplement or amend certain non-essential elements of the legislative act.



adopted by the Commission,



a legislative act must be drawn up explicitly delegating power to the Commission:



the objectives, content, scope and duration of the delegation of power are explicitly defined in

the legislative act concerned,



a delegation of power can be revoked by the Council or the European Parliament at any time,



a delegated act may enter into force only if no objection has been raised by the European

Parliament or the Council within a period set by the legislative act .

Implementing acts (Article 291 TFEU)



Where uniform conditions for implementing legally binding Union acts are needed, those acts

confer implementing powers on the Commission, or, in exceptional cases, on the Council.



the European Parliament and the Council lay down in advance the rules and principles

concerning mechanisms for control by Member States of the Commission's exercise of
implementing powers.

Delegated and implementing acts distinction



subject



delegated acts – amend or supplement the legislative act;



implementing acts – execute the legislative act without any amendment or supplementation.



procedure of adoption



delegated acts – the Commission acts under supervision of the EP and the Council;



implementing acts - the Commission acts under supervision of Member States.

c. Forms of legal acts (regulations, directives, decisions etc.)

Article 288

To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions,
recommendations and opinions.

REGULATION



‘A regulation shall have general application. It shall be binding in its entirety and directly

applicable in all Member States’. (Art 288)

„act of general application”



the typical legislative instrument for addressing an indefinite number of cases which are defined

in a categorical, abstract, way;



lays down the same law throughout the Union (the same obligations and rights for individuals in

all Member states).

„binding in its entirety”



apply in full in all Member States,



Member States have no power to apply a regulation incompletely or to select only those

provisions of which it approves as a means of ensuring that an instrument which it opposed at
the time of its adoption or which runs counter to its perceived national interest is not given
effect,



Member States can not invoke provisions or practices of domestic law to preclude the mandatory

application of a regulation.

„directly applicable in all Member States”



they do not have to be transposed into national law but confer rights or impose obligations on the

Union citizens directly;



the Member States, their institutions and courts are obliged to apply regulations.

DECISION

‘a decision shall be binding in its entirety. A decision which specifies to whom it is addressed shall be
binding only on them’ (Art. 288)



decisions in institutional questions with regard to the functioning of the Union in its various

ramifications, which are not addressed to one or more specific addressees (e.g. former
comitology decision);



decisions of general application (e.g. establishing programmes and action of the EU)



decisions which are addressed to one or more specific addressees (individual and concrete acts)

Distinction between decision and regulation:



‘… a measure does not lose its character as a regulation simply because it may be possible to

ascertain with a greater or lesser degree the number or even the identity of the persons to which
it applies at any given time as long as there is no doubt that the measure is applicable as the
result of an objective situation of law or of fact which it specifies and which is in harmony with
its ultimate objective. Furthermore, the fact that a legal provision may have different practical

effects on the different persons to whom it applies in no way contradicts its nature as a
regulation provided that the situation to which it refers is objectively determined’. (Case 6 / 68
Zuckerfabrik Watenstedt,11 July 1968,).

DIRECTIVES:

‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is
addressed, but shall leave to the national authorities the choice of form and methods’.



directives can only be addressed to Member States, normally (though not necessarily) to all

Member States at the same time;



have to be implemented in national law;



instrument of harmonization of national laws.



two-stage law-making process:



the directive lays down the objective that is to be achieved at EU level by any or all Member

State(s) to which it is addressed within a specified time-frame. (the Union institutions can
actually spell out the objective in such detailed terms as to leave the Member States with no
margin of appreciation –e.g. technical standards and environmental protection;



the objective set at EU level is translated into actual legal or administrative provisions in the

Member States. Even if the Member States are in principle free to determine the form and
methods used to transpose their EU obligation into domestic law, EU criteria are used to assess
whether they have done so in accordance with EU law.

RECOMMENDATIONS AND OPINIONS

Recommendations and opinions shall have no binding force (Art. 288)

ECJ: Grimaldi Case C-322/88

3.Recommendations which (…) are not binding are generally adopted by the institutions of the
Community when they do not have the power under the Treaty to adopt binding measures or when they
consider that it is not appropriate to adopt more mandatory rules . Since they are measures which, even
as regards the persons to whom they are addressed, are not intended to produce binding effects, they
cannot create rights upon which individuals may rely before a national court .

However, since recommendations cannot be regarded as having no legal effect at all, the national courts
are bound to take them into consideration in order to decide disputes submitted to them, in particular
where they cast light on the interpretation of national measures adopted in order to implement them or
where they are designed to supplement binding Community provisions .

OTHER ACTS



acts of CFSP



acts ‘sui generis’,



inter-institutional agreements,



resolutions, declarations, actions,

programmes etc.

the specific characteristics of Foreign and Security Policy

Article 25 TEU:

The Union shall conduct the common foreign and security policy by

(a) defining the general guidelines;

(b) adopting decisions defining:

(i) actions to be undertaken by the Union

(ii )positions to be taken by the Union

(iii) arrangements for the implementation of the decisions referred to in points (i) and (ii);

and by

(c) strengthening systematic cooperation between Member States in the conduct of policy.

INTERNATIONAL AGREEMENTS OF EU

The EU concludes international agreements with non-member countries (‘third countries’) in many
areas of Union’s powers (trade agreements, agreements on cooperation in criminal matters,
environmental agreements etc.)



Art. 216 TFEU – competence



Art. 218 TFEU – procedure

Article 216

1. The Union may conclude an agreement with one or more third countries or international organisations
where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve,
within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is
provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member
States.

Association agreements - goes far beyond the mere regulation of trade policy and involves close
economic cooperation and wide-ranging financial assistance from the EU for the country concerned
(Article 217 TFEU)



agreements that maintain special links between Member States/EU and non-member countries;



agreements as preparation for accession to the Union or for the establishment of a customs

union;



agreement on the European Economic Area (EEA). \

Cooperation agreements - are not as far-reaching as association agreements, being aimed solely at
intensive economic cooperation.

Trade agreements - concluded with individual non-member states, with groupings of such countries or
within the national trade organisations relating to tariffs and trade policy.

Article 296

Where the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-
by-case basis, in compliance with the applicable procedures and with the principle of proportionality.

Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives,
recommendations, requests or opinions required by the Treaties.

When considering draft legislative acts, the European Parliament and the Council shall refrain from
adopting acts not provided for by the relevant legislative procedure in the area in question.

Publication – Art. 297 TFEU



Legislative acts are published in the Official Journal of the European Union. They enter into

force on the date specified in them or, in the absence thereof, on the twentieth day following that
of their publication.



Regulations and directives which are addressed to all Member States, as well as decisions which

do not specify to whom they are addressed, are published in the Official Journal of the European
Union. They enter into force on the date specified in them or, in the absence thereof, on the
twentieth day following that of their publication.



Other directives, and decisions which specify to whom they are addressed, are notified to those

to whom they are addressed and take effect upon such notification.

HIERARCHY

Article 263 TFEU

Case 294/83 Les Verts, 23 April 1986

‘the European Economic Community is a Community based on the rule of law, inasmuch as neither its
Member States nor its institutions can avoid review of the question whether the measures adopted by
them are in conformity with the basic constitutional charter, the Treaty’ .

1. PRIMARY LAW Union Treaties — Constitutional acts of C / EC – General principles of law

2. THE EU’S INTERNATIONAL AGREEMENTS

3. SECONDARY LEGISLATION Legislative acts Regulations — Directives — Decisions Acts of
CFSP

Non-legislative acts

Delegated acts — Implementing acts

Regulations — Directives — Decisions

Other acts

Recommendations and opinions, Interinstitutional agreements, Resolutions, declarations, action

programmes etc.

18.12.2013 → wykład

Division primary law/ secondary law was made by Germany.

Primary law- may be only revised by Member State, “MS are still masters of the Treaties”; ECJ has no
jurisdiction on Primary Law, constitutional courts of member states review constitutionality of treaties
(some amendments for treaty can be suggested, not to review the legality of treaties),

Treaty on the EU and Treaty on functioning of EU are equally binding.

Constitutional acts- since Lisbon Treaty. General Principles of law and EU law are unwritten source of
primary law.

Customary law: treaty cannot be changed by it but it can be supplemented by it

General principles of law are not applied in individual decisions.

Secondary law- there must be legal basis in the treaty to create these principles. Every decision of
institution must comply with the primary law (must be consistent with it)

Since Lisbon treaty: distinction of sources of secondary law; distinction between legislative acts and
non-legislative is based on which procedure is used. Legislative if it’s adopted in legislative procedure
(there is no other requirement). Non-legislative acts are delegated acts (acts of specific subject) and
implementing acts.

Delegation of power to the commission can not contain essential provisions because it would be an
infringement of treaty because the only legislative bodies are Parliament and Council. Council and
Parliament have VETO power any time (to stop delegating that power to Commission) and they don’t
have to act together (each of them posses this veto right).

Implementing acts: the power of implementing acts like that belongs to member states in principle.

Regulation: there is no individual receiver of this act, it’s generally biding. Source of rights and
obligations for individuals. There must be uniform interpretation of regulation in all member states.
Member states cannot decide about the scope of regulation. The aim of application of regulation is
unification of law. In regulation sometimes there is some description of subject which limits the
addresses.

Directives: there is a scope of leeway for member state how it wants to apply the directive and for
example sanctions for breach. Only the member state is bound by directive. Source of directive for
nationals is national law in which directive was implemented.

Decisions: the act of general application, sometimes similar to regulation because there is no addresses
for decision. They are legally binding upon specified addresses.

Recommendations and opinions: they don’t have legal effect itself but they are taken into consideration.
Used to prepare grounds for some change.

Other acts: sometimes called sui generis acts. To establish the legal binding of that kind of act we should
look at intention of act, content of an act. In case of doubts national court should ask ECJ about opinion.

Common Foreign and Security Policy are legally binding (?).

International agreements concluded by the EU: it’s not clear if its part of secondary law or just another
source with primary and secondary. Pani Skomerska said that more secondary law because of article
216. there must be competence to make agreement, they are legally binding, any other act of institution
must be consistent upon international agreement.

There is a hierarchy: primary law, EU’s international agreements, secondary legislation.

But there is no hierarchy in directives, regulations etc.

Article 296: principle of proportionality must determine the kind of the act. There is a slim regulation:
the European parliament and council shall refrain from adopting acts not provided for this case.

5. Nature and effect of EU law

a. Direct effect of EU law, b. Supremacy of EU law

Monist theory:

 international and national law are parts of a single legal system

 duly ratified treaties could be invoked directly before national courts

 international law prevails in cases of conflict

Dualist Theory:

 international and national laws are two separate legal orders

 treaties must be transposed into national law to have effect

 national law prevails in cases of conflict

… więcej na ten temat w ksero z podręcznika

[TEGO BRAKUJE!!! → 5. Nature and effect of EU law

a. Direct effect of EU law

b. Supremacy of EU law

c. Legal effect of regulations

d. Legal effect of decisions

e. Legal effect of directives

f. Indirect effect

Moot-court

6. System of judicial protection in the EU

a. National courts

b. The Court of Justice of the European Union

i. Composition and jurisdiction

ii. Main proceedings before the Court of Justice

c. Legal effect of regulations

d. Legal effect of decisions

e. Legal effect of directives

f. Indirect effect

Moot-court ]

DIRECT EFFECT AND SUPREMACY

Direct effect of EU law

PL (bezpośrednie stosowanie aktu (direct effect) charakteryzuje się tym, że nie wymaga żadnej
procedury wdrożenia do prawa krajowego (tzw. implementacji) bądź ogłoszenia w krajowym
dzienniku urzędowym. Taki akt jest ogłaszany tylko i wyłącznie w Dzienniku Urzędowym UE.
Bezpośredni skutek aktu prawnego przejawia się w tym, iż każda osoba fizyczna i prawna może
wykorzystać przepisy zawarte w takim akcie w postępowaniu przed organami w swoim kraju.)

International law and national law:

Monist theory:



international and national law are parts of a single legal system



duly ratified treaties could be invoked directly before national courts



international law prevails in cases of conflict

Dualist Theory:



international and national laws are two separate legal orders



treaties must be transposed into national law to have effect



national law prevails in cases of conflict

Judgment of the Court of 5 February 1963. - NV Algemene Transport- en Expeditie Onderneming

van Gend & Loos v Netherlands Inland

Revenue Administration

(In its judgment, the Court declares that EU law not only creates obligations for Member States, but also
the rights of the citizens. As a result, people have the right and can directly rely on the European
standards before national and Community courts. There is not even necessary, to the Member State
concerned been introducing a European standard to its internal legal order.)

Thanks to her, individuals can rely directly on Community law before the courts regardless of whether
the national law there are similar regulations.

Criteria for direct effect of the EU norm:

• provision is sufficiently clear and precise for judicial application

• it must establish an unconditional obligation - no discretion for Member States or EU

institutions

• the obligation must be complete - its application must not depend on subsequent measures by

MSs or Community institutions

Beside this, Direct effect has two aspects: vertical and horizontal

• vertical - is important for relations between individuals and the state. This means that citizens

can rely on a European standard in the state.

• Horizontal - is important for relations between individuals. Which means that an individual may

bring a standard EU in a dispute with another person.

Direct effect and primary law

Court of Justice in its judgment Van Gend & Loos put the principle of direct effect in primary law ,
which is located on top of the Community legal order. This indicated that as a condition that the
obligations must be clarified , clear , unconditional and does not refer to additional resources ,
national or Community (complete).

In its judgment Becker ( 19 January 1982 ), the Court of Justice refuses to apply the principle of direct
effect, if a State has a margin even the smallest action for the introduction of a provision (judgment of
12 December 1990, Kaefer and Procacci ).

Direct effect and secondary legislation

The principle of direct effect also applies to secondary legislation that is adopted by the institutions on
the basis of the founding treaties . However, the scope of the direct effect depends on the type of act :

 Regulation: This is an abstract and general act, addressed to all Member States and natural or

legal persons. As an act of the highest rank of the secondary legislation it binds to recipients in
full. Regulation always has a direct effect. Article 288 of the Treaty on the Functioning of the
European Union provides that regulations are directly applicable in the Member States. Court of
Justice in its judgment Politi added of 14 December 1972 , that it is a full direct effect,

 Directive: It binds the Member State to which it is addressed - can be addressed to all, some or

only one country of the EU. In contrast to the regulation is not binding in its entirely - is important
only in the result, while the form and means of reaching the expected effects are left to the
discretion of its recipients. The Directive must be transposed acquis of the country. The specific
term is defined in the text of the Directive - the effect (this is a direct result of vertical) failure to
comply with this requirement, or it was wrong is the ability to recall the provisions of the
Directive by the unit against the State. Directive is an act addressed to the Member States and
must be by not transposed into national law. However, the Court of Justice finds that, in some
cases , the principle of direct effect in order to protect the rights of individuals. The Court has held
that the Directive has direct effect , if its provisions are unconditional and sufficiently clear and
precise ( judgment of 4 December 1974 , Van Duyn ) . However, the direct effect can only be
vertical and can be used only if the Member States have not transposed the Directive within
(judgment of 5 April 1979 , Ratti )

 Decision : It is characterized by individuality - is directed to a specific recipient, and concreteness

- affects one, no-abstractive situation. Decisions can have direct effect , if addressed to the
Member States. The Court of Justice considered only the direct vertical effect (judgment of 10
November 1972 , Hans Fleisch )

 International agreements : the judgment in Demirel of September 30, 1987 , the Court of Justice

has recognized the direct effect of certain contracts in accordance with the criteria set out in the
judgment of Van Gend en Loos

 Opinions and recommendations: The opinions and recommendations are not legally binding.

Therefore, do not have direct effect.

EU law is directly effective if it grants rights to individuals and those rights must be upheld by the
national courts

Supremacy of EU law before European Court of Justice

The supremacy (sometimes referred to as primacy) of EU law is a principle by which the laws of
Member States that conflict with laws of the European Union must be ignored by national courts so that
the European Union law can take effect. The legal doctrine emerged from the ECJ through a number of
decisions.

The principle of the primacy of EU law - the principle that there is no express provision in the treaties,
but it is one of the basic principles of existing EU law. Mainly due to the case law of the ECJ. It says
that :

• EU law takes precedence over national law of the Member State

• States are required to ensure the effectiveness of EU law ,

• member states are not allowed to introduce national provisions which are contrary to EU law

• in the event of a conflict of EU law and national law, the provisions of EU law ,

• subsequent national law deviates from earlier EU law

Personal scope of this principle was expressed in the judgments of

Rewe -Zentral AG and Erich Ciola

,

where the Court stated that the principle of primacy binds all State organs (organs , constitutional
government and local administrations )

The scope of the rules has been defined in the

Van Gend & Loos and Fratelli Constanzo vs Commune di

Milano

. That rule applies to all kinds of normative acts in the internal legal order.

ECJ rulings say that this principle is based on:

• unique nature of EU law,

• delegating competence of Member States to the EU,

• objectives which it is to serve

Key in this respect is the ruling on

Flaminio Costa vs . ENEL ( C-6/64 ) 1964

. The Court stated that the

general provisions and the spirit of the Treaty ( TEWG ) prevent Member States give priority to a
unilateral and subsequent act of national law at the expense of the legal system accepted by them on the
basis of reciprocity.

Judgment of the Court of 15 July 1964.

Flaminio Costa v E.N.E.L.

Reference for a preliminary ruling: Guidance conciliatore di Milano - Italy.

Case 6/64.

The precedence of community law is confirmed by article 189, whereby a regulation ' shall be binding '
and ' directly applicable in all member states '. This provision, which is subject to no reservation, would
be quite meaningless if a state could unilaterally nullify its effects by means of a legislative measure
which could prevail over community law .

It follows from all these observations that the law stemming from the treaty, an independent source of
law, could not, because of its special and original nature, be overridden by domestic legal provisions,
however framed, without being deprived of its character as community law and without the legal basis
of the community itself being called into question

Questions:

How the ECJ describes nature of Community law?

How conflict between national and community law should be resolved?

Judgment of the Court of 17 December 1970.

Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel.

Reference for a preliminary ruling: Verwaltungsgericht Frankfurt am Main - Germany.

Case 11-70.

Can the validity of community law be assessed by reference to national law (constitution)?

Judgment of the Court of 9 March 1978.

Amministrazione delle Finanze dello Stato v Simmenthal SpA.

Reference for a preliminary ruling: Pretura di Susa - Italy.

Discarding by the national court of a law contrary to Community law.

Questions:

Which norms of national law are covered by supremacy principle?

What are consequences of the supremacy principle for national courts?

Judgment of the Court (Second Chamber) of 29 April 1999.

Erich Ciola v Land Vorarlberg.

Reference for a preliminary ruling: Verwaltungsgerichtshof - Austria.

Free movement of services - Restriction - Moorings - Restriction for boat-owners resident in another
Member State.

Which organs of the member states are obliged to apply the supremacy principle?

Is the supremacy principle applicable to individual administrative acts?

JUDGMENT OF THE COURT (Third Chamber)

19 November 2009 (

*

)

In Case C-314/08,

REFERENCE for a preliminary ruling under Article 234 EC by the Wojewódzki Sąd Administracyjny
w Poznaniu (Poland), made by decision of 30 May 2008, received at the Court on 14 July 2008, in the
proceedings

Krzysztof Filipiak vs.Dyrektor Izby Skarbowej w Poznaniu,

1.Articles 43 EC and 49 EC preclude national legislation under which the possibility for a resident
taxpayer to obtain, first, a deduction from the basis of assessment in the amount of social security
contributions paid in the tax year and, second, a reduction of the income tax which he is liable to pay by
the amount of health insurance contributions paid in that period, exists solely when those contributions
are paid in the Member State of taxation, while such advantages are refused in the case where those
contributions are paid in another Member State, even though those contributions were not deducted in
that other Member State.

2.In those circumstances, the primacy of Community law obliges the national court to apply Community
law and to refuse to apply conflicting provisions of national law, irrespective of the judgment of the
national constitutional court which has deferred the date on which those provisions, held to be
unconstitutional, are to lose their binding force.

Indirect effect of EU law

Case 14/87

Sabine von Colson i Elisabeth Kamann vs. Land Nordrhein Westfalen,

We talk about it, only when we have diective!!! Now as a general interpretative directive - courts
and authorities adm. have the obligation to interpret national law in accordance with Community
law;

The doctrine of ‘indirect effect’ requires national courts, as organs of the Member State responsible for
fulfillment of EU obligations, to interpret domestic law consistently with directives. This doctrine
achieves indirectly, through the technique of judicial interpretation of domestic law, the result obtainable
through the doctrine of direct effect of directives.

Indirect effect can thus be seen both as an addition to and as the corollary of the doctrine of direct effect.
In the case of provisions of directives having direct effect, national courts must disregard domestic law
where there is a conflict between the directive and domestic law. In the case of a directive lacking direct
effect, the national courts must make every effort to interpret domestic law consistently with the
directive.

The doctrine of indirect effect is of vital importance to the enforcement of EU rights against private
persons (horizontal direct effect). As directives only have vertical direct effect in claims based on
directives against private persons, domestic law may be the only legal basis for a claim. The domestic
court is obliged to exert itself to ensure that domestic law is interpreted consistently with the EU
directive. However, this result is obtainable as far as the national law is not wholly inconsistent with EU
law.

Cases:

• 14/83, von Colson and Kamann - The ECJ held that although the Directive is not directly

effective national court must interpret the law as to the interpretation of the result was as close as
possible to the purpose of the Directive;

• Extension of the interpretative well as other acts of law in:

→ Case 157/86, Mary Murphy and others v. An Bord Telecom Eireann - ETS stated that the national
court is to ensure, where possible, construed in accordance with the requirements of an applicable law in
and to the extent possible, the treatment of domestic law as not contained use;

→ Case 322/88, Salvatore Grimaldi v. Fonds des maladies professionnelles → ECJ held that although
the recommendations are not binding, but national courts should take into account the provisions of
recommendations.

3. Limits of the principle of indirect effect - is not absolute, and the obligation arising from it
applies as much to so allow discretion of national courts (as in Case 14/83 von Colson and Kamann);

→ from the case C-106/89, Marleasing SA - ECJ stressed that this principle can not be in contradiction
with the general principles of law, in particular the principle of legal certainty and non-retroactivity;

→ with regard to the criminal proceedings ECJ emphasized that the pro-European interpretation of the
law can not lead to ensure that the directives were the basis for an independent criminal responsibility

The principle responsibility of Member States for infringements of Community law ???

In violation of the law, which may be the basis resp. can be:
* The lack of implementation of the Directive (Cases C-6/90 and C-9/90, Francovich & Bonifaci);
* Faulty or incomplete implementation (Cases C-179/94, C-188/94, C-189/94 and C-190/94 Erich
Dillenkofer, Christian Erdmann, Hans-Jurgen Schulte, Anke Heuer, Werner, Ursula and Trosten Knor v.
Bundesrepublik Deutschland);
* Violation of the norms of Community law by the local authorities (Case C-302/97, Klaus Horses v.
Republik Österreich);
* Violation of the Treaty rules resulting from the activities of law-making bodies
national (Cases C-46/93 and C-48/93, Brasserie du Pecheur v. Bundesrepublik Deutschland and
The Queen v. Secretary of State for Transport, ex parte: Factorame Ltd and others);
* Violation arising from the activities of the judicial authorities (Case C-224/01, Gerhard Kobler v.
Republik Österreich);

6. System of judicial protection in the EU

• National courts (please, WHAT!?!)

• The Court of Justice of the European Union

• Composition and jurisdiction

The Court of Justice of the European Union shall include three bodies:

1: the Court of Justice,

2: the General Court

3: specialized courts. (Currently, the only existing specialized court is the Court of the Civil Service
Tribunal, which adjudicates on disputes between the Union and its servants.)

It shall ensure that in the interpretation and application of the Treaties the law is observed.

Competence
The Court of Justice of the European Union:
1. the legality of acts of the European Union.
2. ensure respect for the Member States' obligations under the treaties.
3. make binding interpretation of European Union law by responding to the questions asked by the
national courts.

There are 27 judges, one each of MS. For the sake of efficiency, however, the Court rarely sits as the full
court. It usually sits as a ‘Grand Chamber’ of just 13 judges or in chambers of five or

three judges.

The Court is assisted by eleven ‘advocates-general’. Their role is to present reasoned opinions on the
cases brought before the Court. They must do so publicly and impartially.

The Court gives rulings on cases brought before it. The five most common types of case are:

references for a preliminary ruling;

• actions for failure to fulfil an obligation;

• actions for annulment;

• actions for failure to act;

• actions for damages.

It performs functions:
1. International court - examines disputes between Member States arising from the application of EU
law, as well as disputes arising from the implementation of the Treaty.
2. Constitutional court - rules compliance with the Treaty acts of the Council and the European
Commission, acts issued jointly by the EP and the Council, Parliament and the legislative acts of the
ECB, which have legal effects in relation to third parties.
3. Supreme Court - consider appeals against the judgments of the Court of Appeals and has powers in
relation to a particular category of decisions by the Commission (eg in the field of competition, in the
case of monetary fines).

Main proceedings before the Court of Justice

1. Preliminary ruling procedure

The national courts in each EU country are responsible for ensuring that EU law is properly applied in
that country. But there is a risk that courts in different countries might interpret EU law in different
ways.

To prevent this happening, there is a ‘preliminary ruling procedure’. If a national court is in doubt about
the interpretation or validity of an EU law, it may – and sometimes must – ask the Court of Justice for
advice. This advice is called a ‘preliminary ruling’.

2. Proceedings for failure to fulfill an obligation

The Commission can start these proceedings if it believes that a member country is failing to fulfil its
obligations under EU law. These proceedings may also be started by another EU country.

In either case, the Court investigates the allegations and gives its judgment. If the country is found to be
at fault, it must put things right at once. If the Court finds that the country has not followed its ruling, it
can issue a fine.

3. Actions for annulment

If any EU country, the Council, the Commission or (under certain conditions) Parliament believes that a
particular EU law is illegal, it may ask the Court to annul it.

‘Actions for annulment’ can also be used by private individuals who want the Court to cancel a
particular law because it directly and adversely affects them as individuals.

If the Court finds the law in question was not correctly adopted or is not correctly based on the Treaties,
it may declare the law null and void.

4. Actions for failure to act

The Treaty requires Parliament, the Council and the Commission to make certain decisions under certain
circumstances. If they fail to do so, member countries, other Community institutions and (under certain
conditions) individuals or companies can lodge a complaint with the Court so as to have this failure to
act officially recorded.

5. Direct actions

Any person or company who has suffered damage as a result of the action or inaction of the Community
or its staff can bring an action seeking compensation before the General Court.