EU Constitutional Law: An Introduction 9781509909148, 9781509909179, 9781509909162

The third edition of this acclaimed book continues the story of the EU’s constitutional journey. The EU’s constitution,

231 91 5MB

English Pages [367] Year 2018

Table of contents :
Preface to the Third Edition
Contents
List of Abbreviations
Table Of Cases
1. What Constitution? A Rose by Any Other Name
2. An Elephant That Cannot Be Defined? What the EU Is, and Is Not
I. Introduction
II. Historical Development
III. The Union Today
IV. State-like Features
V. Non-state-like Features
3. Marking the Territory: Principles Governing Union Competences
I. Introduction
II. Basic Treaty Provisions on Competence
III. Articles 114 and 352 TFEU
IV. The Principle of Subsidiarity
4. Who Is the Boss? In Search of a Master of the Treaties
I. Introduction
II. Procedures for Amending the Treaties
III. Creeping Competences?
IV. The Ties that Bind
5. Looking Past the Trees to See the Wood: Construing a Hierarchy of Norms
I. Introduction
II. Foundations of the Union Legal Order
III. Primary Law
IV. International Law
V. Secondary Law and other Acts of the Institutions
6. Into the Estuaries and up the Rivers: Union Law in the National Legal Orders of the Member States
I. Introduction
II. Primacy
III. Conformity through Interpretation
IV. Direct Applicability and Direct Effect
V. The Relevance of National Law for Union Law
7. A Lot More than Brussels Bureaucrats: The Institutional Framework
I. Introduction
II. The Union’s Institutions
III. Union Regulatory and Administrative Bodies
IV. Institutions and Bodies of the Member States
8. A Suprematist Composition? Differentiation and Flexibility
I. Introduction
II. Differentiation in Primary Law
III. Enhanced Cooperation
9. What Deficit? The EU System of Democracy
I. Introduction
II. General Considerations
III. The Political Institutions
IV. Participatory, Deliberative and Substantive Democracy
10. Civis Europeus Sum: The Evolving Concept of Union Citizenship
I. General
II. Pie in the Sky?
III. Who is a Union Citizen?
IV. The Right to Move and to Reside
V. From Movement to Citizenship and Beyond
11. Taking Rights More Seriously? The EU System of Fundamental Rights
I. General
II. Field of Application
III. Sources and Material Scope
IV. Non-discrimination
V. Direct Effect
12. Broadening Horizons? The Area of Freedom, Security and Justice
I. General
II. Border Checks, Asylum and Immigration
III. Judicial Cooperation in Civil Matters
IV. Judicial Cooperation in Criminal Matters
V. Police Cooperation
13. The Internal Market: Liberal, Social or Green?
I. Introduction
II. The Economic Free Movement Rights
III. The Social Dimension
IV. Environment
14. Building a House by Starting with the Roof ? Economic and Monetary Policy
I. Introduction
II. Monetary Policy
III. Economic and Fiscal Surveillance
IV. The Stability Mechanisms
V. Banking Union
VI. Built to Last?
15. EU External Relations: An Elephant Trumpeting Loud and Clear or a Gaggle of Geese?
I. General
II. Institutional Framework for External Action
III. Union Competences and their Use
IV. The Union and the Member States
V. Security and Defence
16. Covenants of No Strength to Secure A Man At All? Issues of Enforcement and Control
I. Introduction
II. Control of Union Institutions and Bodies
III. The Role of Member States’ Courts and Authorities
17. The Elephant in the Room? Concluding Remarks
Index

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EU Constitutional Law: An Introduction
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EU CONSTITUTIONAL LAW The third edition of this acclaimed book continues the story of the EU’s constitutional journey. The EU’s constitution, composed of myriad legal texts, case law and practice, is no less of a moving target than before and the pace of change has, if anything, increased since the publication of the second edition. In a constantly challenging geopolitical context, the EU faces unprecedented political, economic and cultural trials, all of which impact upon the evolution of its constitution. In particular, the migration crisis has given rise to the need for substantial revision of the chapter dealing with the area of freedom, security and justice, and the institutional reforms embarked upon in the quest to restore financial order have taken a more structured form following the inception of a European banking union. Fully updated to include the ramifications of Brexit, the book succeeds—where others have struggled—in making sense of the EU’s complex constitutional order, focusing on its essential features but taking into account the profound changes that have taken place over the past 20 years. The EU has become much more than an internal economic market. Recently it may even be argued that the focus of action has been in areas such as immigration and third-country nationals, security and defence policy, and penal law and procedure, and the work towards creating a European banking union underlines the continued need to monitor economic and fiscal policy. Eschewing too much detail, the authors underline the essential values, principles and objectives of the integration regime as well as its basic normative structure and hierarchy. In this context, the decentralised nature of the EU is highlighted as an integral part of its constitutional make-up. Recurring themes include European citizenship, fundamental rights and the rule of law. The book also confronts head-on the problems and c hallenges facing the Union and the gap which is often perceived between lofty ideals and harsh realities. The book will be useful to students of EU law and European integration but will also appeal to a broader audience of researchers and practitioners, including political scientists.

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EU Constitutional Law An Introduction Third Edition

Allan Rosas and Lorna Armati

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Allan Rosas and Lorna Armati, 2018 Allan Rosas and Lorna Armati have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Rosas, Allan, author. | Armati, Lorna, author. Title: EU constitutional law : an introduction / by Allan Rosas, Lorna Armati. Other titles: European Union constitutional law Description: [Third edition]. | Oxford, UK : Portland, Oregon : Hart Publishing, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017057321 (print) | LCCN 2017057592 (ebook) | ISBN 9781509909155 (Epub) | ISBN 9781509909148 (pbk. : alk. paper) Subjects: LCSH: Constitutional law—European Union countries. | Civil rights— European Union countries. | European Union countries—Economic policy. | Monetary policy—European Union countries. Classification: LCC KJE4445 (ebook) | LCC KJE4445 .R67 2018 (print) | DDC 342.24—dc23 LC record available at https://lccn.loc.gov/2017057321 ISBN: PB: 978-1-50990-914-8 ePDF: 978-1-50990-916-2 ePub: 978-1-50990-915-5 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

PREFACE TO THE THIRD EDITION

A little more than five years have elapsed since the publication of the second revised edition of this book. In taking up the challenge to do a third revised edition, we were aware of the fact that the developments in EU secondary law and case law which had occurred in the meantime would require a number of additions and updates. But we were still taken by surprise at the sheer number and importance of the changes that had to be taken into account. It was reaffirmed with full force that the Union legal order is indeed a ‘moving target’. The structure of the third edition is nevertheless the same as that of the second edition, as if to underline that the moving target has a solid base. And the few additions that have been made are precisely in relation to areas where the action of the Union needed to be strengthened: in chapter fourteen on economic and monetary policy, a section has been added relating to the Banking Union; and important additions and modifications have been made to chapter twelve section I (which now pays increased attention to the principles of mutual recognition and mutual trust) and section II (relating to border checks, asylum and immigration). For this third revised edition, we have been able to take into account developments up to September 2017. We wish to reiterate our most sincere thanks to our publisher, with whom cooperation is always pleasant. A special word of thanks is due to Sabine Kierren, principal assistant at the Court of Justice, for much appreciated help with the fine-tuning of addendums and footnotes. Thanks also continue to be due to the Stedelijk Museum in Amsterdam for permission to use a painting by Kasimir Malevich for the front cover, which we find can be seen as a colourful description of the EU, well before the Union was even dreamed of. Allan Rosas Lorna Armati Luxembourg/Brussels, October 2017

vi

CONTENTS

Preface to the Third Edition��v List of Abbreviations�� xi Table of Cases�� xiii

1. What Constitution? A Rose by Any Other Name��1 2. An Elephant That Cannot Be Defined? What the EU Is, and Is Not��7 I. Introduction��7 II. Historical Development��9 III. The Union Today��12 IV. State-like Features��14 V. Non-state-like Features��17 3. Marking the Territory: Principles Governing Union Competences��20 I. Introduction��20 II. Basic Treaty Provisions on Competence��22 III. Articles 114 and 352 TFEU��25 IV. The Principle of Subsidiarity��28 4. Who Is the Boss? In Search of a Master of the Treaties��32 I. Introduction��32 II. Procedures for Amending the Treaties��33 III. Creeping Competences?��40 IV. The Ties that Bind��48 5. Looking Past the Trees to See the Wood: Construing a Hierarchy of Norms��50 I. Introduction��50 II. Foundations of the Union Legal Order��52 III. Primary Law��53 IV. International Law��57 V. Secondary Law and other Acts of the Institutions��59 6. Into the Estuaries and up the Rivers: Union Law in the National Legal Orders of the Member States��63 I. Introduction��63 II. Primacy��64 III. Conformity through Interpretation��68 IV. Direct Applicability and Direct Effect��72 V. The Relevance of National Law for Union Law��80

viii

Contents

7. A Lot More than Brussels Bureaucrats: The Institutional Framework��84 I. Introduction��84 II. The Union’s Institutions��85 III. Union Regulatory and Administrative Bodies��96 IV. Institutions and Bodies of the Member States��102 8. A Suprematist Composition? Differentiation and Flexibility��108 I. Introduction��108 II. Differentiation in Primary Law��110 III. Enhanced Cooperation��120 9. What Deficit? The EU System of Democracy��124 I. Introduction��124 II. General Considerations��125 III. The Political Institutions��128 IV. Participatory, Deliberative and Substantive Democracy��136 10. Civis Europeus Sum: The Evolving Concept of Union Citizenship��141 I. General��141 II. Pie in the Sky?��144 III. Who is a Union Citizen?��146 IV. The Right to Move and to Reside��148 V. From Movement to Citizenship and Beyond��154 11. Taking Rights More Seriously? The EU System of Fundamental Rights��157 I. General��157 II. Field of Application��162 III. Sources and Material Scope��165 IV. Non-discrimination��171 V. Direct Effect��174 12. Broadening Horizons? The Area of Freedom, Security and Justice��177 I. General��177 II. Border Checks, Asylum and Immigration��183 III. Judicial Cooperation in Civil Matters��192 IV. Judicial Cooperation in Criminal Matters��196 V. Police Cooperation��202 13. The Internal Market: Liberal, Social or Green?��205 I. Introduction��205 II. The Economic Free Movement Rights��207 III. The Social Dimension��214 IV. Environment��220 14. Building a House by Starting with the Roof ? Economic and Monetary Policy��224 I. Introduction��224 II. Monetary Policy��226 III. Economic and Fiscal Surveillance��229 IV. The Stability Mechanisms��236

Contents

ix

V. Banking Union��240 VI. Built to Last?��242 15. EU External Relations: An Elephant Trumpeting Loud and Clear or a Gaggle of Geese?��244 I. General��244 II. Institutional Framework for External Action��246 III. Union Competences and their Use��251 IV. The Union and the Member States��259 V. Security and Defence��262 16. Covenants of No Strength to Secure A Man At All? Issues of Enforcement and Control��270 I. Introduction��270 II. Control of Union Institutions and Bodies��271 III. The Role of Member States’ Courts and Authorities��280 17. The Elephant in the Room? Concluding Remarks��288

Index��295

x

LIST OF ABBREVIATIONS

The following list is limited to abbreviations which are not explained in each chapter. The other abbreviations are explained when appearing for the first time in a chapter.

EC EEC ECJ ECR EU Euratom Foreign Affairs OJ TEC TEU TFEU UK UN US

European Community European Economic Community European Court of Justice (Court of Justice of the European Union) European Court Reports European Union European Atomic Energy Community High Representative of the Union for Foreign Affairs Representative and Security Policy Official Journal of the European Union Treaty establishing the European Community Treaty on European Union Treaty on the Functioning of the European Union United Kingdom United Nations United States of America

xii

TABLE OF CASES

European Union Courts Alphabetical 3F v Commission (Case C-319/07 P) EU:C:2009:435�� 216 3 Glocken (Case 407/85) EU:C:1988:401�� 210 A, B and C (Joined Cases C-148/13, C-149/13 and C-150/13) EU:C:2014:2406�� 186 A, B, C and D (Case C-158/14) EU:C:2017:202�� 279 Abdeli and Melki (Joined Cases C-188/10 and C-189/10) EU:C:2010:206��65, 68, 282 ABNA (Joined Cases C-453/03, C-11/04, C-12/04 and C-194/05) EU:C:2005:741�� 67 Achbita (Case C-157/15) EU:C:2017:203�� 173 Achughbabian (Case C-329/11) EU:C:2011:807�� 191 ADBHU (Case 240/83) EU:C:1985:59�� 220 Adeneler (Case C-212/04) EU:C:2006:443��69, 70, 73 Advocaten voor de Wereld (Case C-303/05) EU:C:2007:261�� 200 AETR/ERTA. See Commission v Council (Case 22/70) Affum (Case C-47/15) EU:C:2016:408�� 191 AGM-COS.MET (Case C-470/03) EU:C:2007:213�� 284 Air Baltic Corporation (Case C-429/14) EU:C:2016:88�� 80 Air Transport Association of America and Others (Case C-366/10) EU:C:2011:864�� 57–59, 78, 80 Åkerberg Fransson (Case C-617/10) EU:C:2013:105�� 163 Akrich (Case C-109/01) EU:C:2003:491�� 154 Aladzhov (Case C-434/10) EU:C:2011:750�� 150 Albany (Case C-67/96) EU:C:1999:430�� 216 Alimanovic (Case C-67/14) EU:C:2015:597�� 218 Alliance for Natural Health and Others (Joined Cases C-154/04 and C-155/04) EU:C:2005:449�� 100, 206 Alo and Osso (Cases C-443/14 and C-444/14) EU:C:2016:127�� 186 Anagnostakis v Commission (Case T-450/12) EU:T:2015:739�� 137 Anagnostakis v Commission (Case C-589/15 P) EU:C:2017:663�� 137 Angelidaki and Others (Case C-380/07) EU:C:2009:250�� 56 Angonese (Case C-281/98) EU:C:2000:296�� 75, 153 Anheuser Busch (Case C-245/02) EU:C:2004:717�� 71 Annibaldi (Case C-306/96) EU:C:1998:173�� 162 Antonissen (Case C-292/89) EU:C:1991:80�� 149 Apostolides (Case C-420/07) EU:C:2009:271�� 193 Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU) EU:C:2016:198�� 182, 200 Arcaro (Case C-168/95) EU:C:1996:363�� 77 Arcelor v Parliament and Council (Case T-16/04) EU:T:2010:54�� 70 A.S. (Case C-490/16)�� 188 Asociatia ACCEPT (Case C-81/12) EU:C:2013:275�� 173 Association de médiation sociale (Case C-176/12) EU:C:2014:2��174, 175, 215

xiv

Table of Cases

Atlanta Fruchhandelsgesellschaft (Case C-456/93) EU:C:1995:206�� 67, 278 Audiolux and Others (Case C-101/08) EU:C:2009:626�� 4, 54 Autorità per le Garanzie nelle Communicazioni (Case C-240/15) EU:C:2016:608�� 107 Azienda Agricola Monte Arcosu (Case C-403/98) EU:C:2001:6�� 73 Balázs-Árpád Izsák and Other v Commission (Case T-529/13) EU:T:2016:282�� 137 Barber (Case C-262/88) EU:C:1990:209�� 46 Bartsch (Case C-427/06) EU:C:2008:517�� 172 Bauhuis v Netherlands (Case 46/76) EU:C:1977:6�� 181 Baumbast (Case C-413/99) EU:C:2002:493�� 145 Baustahlgewebe v Commission (Case C-185/95 P) EU:C:1998:608�� 161 BECTU (Case C-173/99) EU:C:2001:356�� 168 Belgium v Spain (Case 388/95) EU:C:2000:244�� 285 Bellio F.lli (Case C-286/02) EU:C:2004:212�� 57 Berlusconi (Joined Cases C-387/02, C-391/02 and C-403/02) EU:C:2005:270�� 76 Bettatti (Case C-341/95) EU:C:1998:353�� 57 Bickel and Franz (Case C-274/96) EU:C:1998:563�� 152 Bidar (Case C-209/03) EU:C:2005:169�� 151, 152 Biret International v Council (Case C-93/02 P) EU:C:2003:517�� 79 Bogendorff von Wolffersdorff (Case C-438/14) EU:C:2016:401�� 152 Bollmann (Case 40/69) EU:C:1970:12�� 73 Bot (Case C-241/05) EU:C:2006:634�� 184 Boudljida (Case C-249/13) EU:C:2014:2431�� 191 Bougnaoui (Case C-188/15) EU:C:2017:204�� 173 Brasserie du Pêcheur and Factortame III (Joined Cases C-46/93 and C-48/93) EU:C:1996:79�� 284 Bresciani (Case 87/75) EU:C:1976:18�� 80 Bressol and Others and Chaverot and Others (Case C-73/08) EU:C:2010:181�� 152 Brey (Case C-140/12) EU:C:2013:565�� 152, 218 British American Tobacco (Case C-491/01) EU:C:2002:741�� 27, 28 Brown Boveri (Case C-79/89) EU:C:1991:153�� 71 Budejovicky Budvar (Case C-478/07) EU:C:2009:521�� 260 Bulk Oil (Case 174/84) EU:C:1986:60�� 22 Bürgerschuss für di Bürgerinitiative Minority SafePack v Commission (Case T-646/13) EU:T:2017:59�� 137 C & J Clark International and Puma (Joined Cases C-659/13 and C-34/14) EU:C:2016:74�� 58 Caixa-Bank (Case C-442/04) EU:C:2008:276�� 212 Carpenter (Case C-60/00) EU:C:2002:434��148, 155, 162, 165, 210 Cartesio (Case C-210/06) EU:C:2008:723�� 282 C.A.S. v Commission (Case C-204/07) EU:C:2008:446�� 249 Cassis de Dijon. See Rewe-Zentral (Case 120/78) Centro Europa (Case C-380/05) EU:C:2007:505�� 145, 154 ČEZ (Case C-115/08) EU:C:2009:660�� 65 Chakroun (Case C-578/08) EU:C:2010:117�� 191 Chavez-Vilchez and Others (Case C-133/15) EU:C:2017:354�� 153 CHEZ Razpredelenie Bulgaria (Case C-83/14) EU:C:2015:480�� 173 Chiquita Italia (Case C-469/93) EU:C:1995:435�� 80 Chronopost v UFEX (Joined Cases C-341/06 P and C-342/06 P) EU:C:2008:375�� 161 CIF (Case C-198/01) EU:C:2003:430�� 105 CILFIT (Case 283/81) EU:C:1982:335�� 283 Ciola (Case C-224/97) EU:C:1999:212�� 65 Cipra and Kvasnicka (Case C-439/01) EU:C:2003:31�� 260

Table of Cases

xv

CIRFS v Commission (Case C-313/90) EU:C:1993:111�� 62 C.K., H.F. and A.S (Case C-578/16) EU:C:2017:127�� 182, 187 Collins (Case C-138/02) EU:C:2004:172��149, 151, 153 Comisíon del Mercado de las Telecomunicaciones (Case C-82/07) EU:C:2008:143�� 107 Commission v Austria (Case C-147/03) EU:C:2005:427�� 152 Commission v Austria (Case C-203/03) EU:C:2005:76�� 260 Commission v Austria (Case C-320/03) EU:C:2005:684�� 221 Commission v Austria (Case C-358/03) EU:C:2004:824�� 286 Commission v Austria (Case C-28/09) EU:C:2011:854�� 221 Commission v Belgium (Case 77/69) EU:C:1970:34�� 286 Commission v Belgium (Case 149/79) EU:C:1982:195�� 56, 65 Commission v Council (European Road Transport Agreement) (AETR/ERTA) (Case 22/70) EU:C:1971:32�� 22, 254–56, 258 Commission v Council (Case 16/88) EU:C:1989:397�� 96 Commission v Council (Case C-300/89) EU:C:1991:244�� 126 Commission v Council (Case C-25/94) EU:C:1996:114�� 62, 259 Commission v Council (Case C-211/01) EU:C:2003:452�� 57 Commission v Council (Case C-257/01) EU:C:2005:25�� 61 Commission v Council (Case C-281/01) EU:C:2002:761�� 57 Commission v Council (Case C-94/03) EU:C:2006:2�� 57 Commission v Council (Case C-176/03) EU:C:2005:542��198, 199, 222 Commission v Council (Case C-27/04) EU:C:2004:436��94, 231, 285 Commission v Council (Case C-91/05) EU:C:2008:288��26, 251, 264 Commission v Council (Ship Source Pollution) (Case C-440/05) EU:C:2007:625�� 199 Commission v Council (Case C-370/07) EU:C:2009:590�� 59 Commission v Council (Case C-114/12) EU:C:2014:2151��23, 255, 256 Commission v Council (Case C-425/13) EU:C:2015:483�� 249 Commission v Cresson (Case C-432/04) EU:C:2006:455�� 52 Commission v Denmark (Case C-467/98) EU:C:2002:625�� 255 Commission v Estonia (Case C-505/09 P) EU:C:2012:179�� 223 Commission v Finland (Case C-284/05) EU:C:2009:778�� 263 Commission v France (Case C-303/90) EU:C:1991:424�� 62 Commission v France (Case C-159/94) EU:C:1997:501�� 208 Commission v France (Case C-512/08) EU:C:2010:579�� 219 Commission v Germany (Case 178/84) (‘German Beer’) EU:C:1987:126�� 210 Commission v Germany (Case 249/86) EU:C:1989:204�� 162 Commission v Germany (Case C-61/94) EU:C:1996:313�� 57 Commission v Germany (Case C-433/03) EU:C:2005:462�� 259 Commission v Germany (Case C-112/05) EU:C:2007:623�� 209 Commission v Germany (Case C-518/07) EU:C:2010:125�� 107, 126 Commission v Hellenic Republic (Case C-387/97) EU:C:2000:356�� 287 Commission v Hellenic Republic (Case C-45/07) EU:C:2009:81�� 255, 260 Commission v Hungary (Case C-288/12) EU:C:2014:237�� 107 Commission v Ireland (Case 249/81) EU:C:1982:402�� 286 Commission v Ireland (Case C-459/03) EU:C:2006:345�� 223, 262 Commission v Italy (Case 92/79) EU:C:1980:86�� 220 Commission v Italy (Case C-104/86) EU:C:1988:49�� 65 Commission v Italy (Case C-110/05) EU:C:2009:66�� 210, 212 Commission v Italy (Case C-337/05) EU:C:2008:203�� 263 Commission v Italy (Case C-518/06) EU:C:2009:270�� 212

xvi

Table of Cases

Commission v Italy (Case C-565/08) EU:C:2011:188�� 212 Commission v Italy (Case C-379/10) EU:C:2011:775�� 284 Commission v Jégo-Quéré (Case C-263/02 P) EU:C:2004:210�� 277 Commission v Luxembourg (Case C-266/03) EU:C:2005:341�� 259 Commission v Luxembourg (Case C-319/06) EU:C:2008:350�� 217 Commission v Luxembourg (Case C-490/09) EU:C:2011:34�� 219 Commission v Netherlands (Case C-157/94) EU:C:1997:499�� 208 Commission v Netherlands (Joined Cases C-282/04 and C-283/04) EU:C:2006:608�� 208 Commission v Parliament and Council (Case C-378/00) EU:C:2003:42�� 61 Commission v Parliament and Council (Case C-411/06) EU:C:2009:518�� 222 Commission v Parliament and Council (Case C-427/12) EU:C:2014:170�� 60 Commission v Parliament and Council (Case C-88/14) EU:C:2015:499�� 60 Commission v Poland (Case C-504/09 P) EU:C:2012:178�� 223 Commission v Portugal (Case C-62/98) EU:C:2000:358�� 260 Commission v Portugal (Case C-38/06) EU:C:2010:108�� 263 Commission v Portugal (Case C-212/09) EU:C:2011:717�� 209 Commission v Portugal (Case C-557/14) EU:C:2016:471�� 287 Commission v Rusal Armenal (Case C-21/14) EU:C:2015:494�� 58, 79 Commission v Spain (Case C-414/97) EU:C:1999:417�� 263 Commission v Spain (Case C-503/03) EU:C:2006:74�� 179 Commission v Spain (Case C-211/08) EU:C:2010:340�� 219 Commission v Spain (Case C-269/09) EU:C:2012:439�� 207 Commission v Sweden (Case C-246/07) EU:C:2010:203�� 223, 259 Commission v UK (Case 804/79) EU:C:1981:93�� 252 Commission v UK (Case C-308/14) EU:C:2016:436�� 152, 218 Commission and Others v Kadi (‘Kadi II’) (Joined Cases C-584/10 P, C-593/10 P and C-595/10 P) EU:C:2013:518�� 159 Commune de Mesquer (Case C-188/07) EU:C:2008:359�� 78, 260 Compassion in World Farming (Case C-1/96) EU:C:1998:113�� 58, 80 Costantini et al v Commission (Case T-44/14) EU:T:2016:223�� 27, 137 Costa v ENEL (Case 6/64) EU:C:1964:66��12, 56, 64, 65, 76 Costanzo (Case 103/88) EU:C:1989:256�� 105 Council v Access Info Europe (Case C-280/11 P) EU:C:2013:671�� 126 Council v Commission (Case C-409/13) EU:C:2015:217�� 95 Council v Commission (Case C-73/14) EU:C:2015:663�� 249 Council v Fulmen and Mahmoudian (Case C-280/12 P) EU:C:2013:775�� 159 Council, Parliament and Commission v Vereniging Milieudefensie (Joined Cases C-401/12 P and C-403/12 P) EU:C:2015:4�� 58 Courage and Crehan (Case C-453/99) EU:C:2001:465�� 75 Cowan (Case 186/87) EU:C:1989:47�� 148 CS (Case C-304/14) EU:C:2016:674�� 153 Daiichi Sankyo (Case C-414/11) EU:C:2013:520�� 253 Dano (Case C-333/13) EU:C:2014:2358�� 152, 218 Dansk Industri (Case C-441/14) EU:C:2016:278�� 173, 175 Danske Slagterier (Case C-445/06) EU:C:2009:178�� 284 Daouidi (Case C-395/15) EU:C:2016:917�� 168 Dassonville (Case 8/74) EU:C:1974:82�� 209, 212 De Cuyper (Case C-406/04) EU:C:2006:491�� 153 DEB (Case C-279/09) EU:C:2010:811��164, 280, 281 Defrenne (‘Defrenne II’) (Case 43/75) EU:C:1976:56�� 34, 53, 75, 159, 171, 175, 214, 216

Table of Cases

xvii

Defrenne (‘Defrenne III’) (Case 149/77) EU:C:1978:130�� 171 Delvigne (Case C-650/13) EU:C:2015:648�� 152, 163 Demirel (Case 127/86) EU:C:1988:366�� 80 Der Grüne Punkt—Duales System Deutschland v Commission (Case C-385/07 P) EU:C:2009:456�� 161 Dereci (Case C-256/11) EU:C:2011:734�� 154, 155 Deutsche Lufthansa (Case C-109/09) EU:C:2011:129�� 70 Deutsche Post (Joined Cases C-270/97 and C-271/97) EU:C:2000:76�� 214 DHL Express (Austria) (Case C-2/15) EU:C:2016:880�� 107 D’Hoop (Case C-224/98) EU:C:2002:432�� 151, 153 Diageo Brands v Simiramida-04 EOOD (Case C-681/13) EU:C:2015:471�� 181 Digital Rights Ireland (Joined Cases C-293/12 and C-594/12) EU:C:2014:238�� 169, 180 Dior and Others (Case C-300/98) EU:C:2000:688�� 71 DI.VI. Finanziaria di Diego della Valle (Case C-380/11) EU:C:2012:552�� 207 Dominguez (Case C-282/10) EU:C:2012:33�� 175, 214 Donckerwolcke (Case 41/76) EU:C:1976:182�� 22 Dory (Case C-186/01) EU:C:2003:146�� 263 Dynamic Medien (Case C-244/06) EU:C:2008:85��159, 166, 169 Dzodzi v Belgian State (Joined Cases C-297/88 and C-197/89) EU:C:1990:360�� 211, 212 E (Case C-193/16) EU:C:2017:542�� 150 Edwin v EUIPO (Case C-263/09) EU:C:2011:452�� 83 Eind (Case C-291/05) EU:C:2007:771�� 153, 210 El Dridi (Case C-61/11 PPU) EU:C:2011:268�� 191 Elchinov (Case C-173/09) EU:C:2010:581�� 219 Elgafaji (Case C-465/07) EU:C:2009:94��161, 186, 191 Elitaliana v Eulex Kosovo (Case C-439/13 P) EU:C:2015:753�� 251, 273 Elliniki Radiophonia Tileorassi (ERT) (Case C-260/89) EU:C:1991:254�� 162 Elrick (Case C-275/12) EU:C:2013:684�� 152 Eman and Sevinger (Case C-300/04) EU:C:2006:545�� 129, 147 E.ON Földgáz Trade (Case C-510/13) EU:C:2015:189�� 107 Eredics (Case C-205/09) EU:C:2010:623�� 197 ESMA. See UK v Parliament and Council Estonia v Parliament and Council (Case C-508/13) EU:C:2015:403�� 30 EUIPO v Szajner (Case C-598/14 P) EU:C:2016:915�� 83 Expedia (Case C-226/11) EU:C:2012:795�� 106 F (Case C-168/13) EU:C:2013:358�� 200 Faccini Dori (Case 91/92) EU:C:1994:292�� 76 Factortame (Case C-213/89) EU:C:1990:257�� 65 Farrell (Case C-413/15) judgment of 10 October 2017, nyr�� 77 Fediol v Commission (Case 70/87) EU:C:1989:254�� 79 Feryn (Case C-54/07) EU:C:2008:397�� 173 FIAMM and Others v Council and Commission (Joined Cases C-120/06 P and C-121/06 P) EU:C:2007:212�� 279, 280 Filipiak (Case C-314/08) EU:C:2009:719�� 56, 65 Fisscher (Case C-128/93) EU:C:1994:353�� 46 Florescu (Case C-258/14) EU:C:2017:448�� 163, 239 FOA (Case C-354/13) EU:C:2014:2463�� 168 Förster (Case C-158/07) EU:C:2008:630�� 151, 152 Foster (Case C-188/89) EU:C:1990:313�� 77 Foto-Frost (Case 314/86) EU:C:1988:471��67, 278, 283

xviii

Table of Cases

France v Commission (Case C-327/91) EU:C:1994:305�� 57 France v UK (Case 141/78) EU:C:1979:225�� 285 Francovich and Others (Joined Cases C-6/90 and C-9/90) EU:C:1991:428��77, 283, 284 Franzén (Case C-189/95) EU:C:1997:504�� 208 Front National v Parliament (Case C-486/01 P) EU:C:2004:394�� 130 Garcia Avello (Case C-148/02) EU:C:2003:539�� 152, 165 Gauweiler and Others (Case C-62/14) EU:C:2015:400�� 23, 236 Gaydarov (Case C-430/10) EU:C:2011:749�� 150 Gazprom (Case C-536/13) EU:C:2015:316�� 193 Germany v Council (Case C-122/95) EU:C:1998:94�� 57 Germany v Parliament and Council (Case C-376/98) EU:C:2000:544�� 27, 276 Germany v Parliament and Council (Case C-380/03) EU:C:2006:772��206, 222, 276 Gestoras pro Amnistía v Council (Case C-354/04 P) EU:C:2007:115�� 197, 274 Glatzel (Case C-356/12) EU:C:2014:350�� 168 Government of the French Community and Walloon Government (Case C-212/06) EU:C:2008:178�� 211 Green Network (Case C-66/13) EU:C:2014:2399�� 255, 256 Grimaldi (Case C-322/88) EU:C:1989:646�� 62 Grogan (Case C-159/90) EU:C:1991:378�� 162 Grunkin and Paul (Case C-353/06) EU:C:2008:559�� 152 Grzelczyk (Case C-184/99) EU:C:2001:458��16, 141, 145, 151, 152 Gueye (Joined Cases C-483/09 and C-1/10) EU:C:2011:583�� 197 Guimont (Case C-448/98) EU:C:2000:663�� 212 H v Council and Others (Case C-455/14 P) EU:C:2016:569�� 251, 273 Haegeman (Case 181/73) EU:C:1974:41�� 70 Haim (Case C-424/97) EU:C:2000:357�� 102 Hanner (Case C-438/02) EU:C:2005:332�� 208 Hartmann (Case C-212/05) EU:C:2007:437�� 210 Hedley Lomas (Case C-5/94) EU:C:1996:205�� 284 Heemskerk and Firma Schaap (Case C-455/06) EU:C:2008:650�� 282 HEKO Industrieerzeugnisse (Case C-260/08) EU:C:2009:768�� 71 Hendrix (Case C-287/05) EU:C:2007:494�� 210, 218 Hermès (Case C-53/96) EU:C:1998:292�� 71 Hervein (Joined Cases C-393/99 and C-394/99) EU:C:2002:182�� 218 HK Danmark (Joined Cases C-335/11 and C-337/11) EU:C:2013:222�� 168 Hoechst (Joined Cases 46/87 and 227/88) EU:C:1989:337�� 159 Hoesch Metals and Alloys (Case C-373/08) EU:C:2010:68�� 71 Horvath (Case C-428/07) EU:C:2009:458�� 102, 105 H.T. (Case C-373/13) EU:C:2015:413�� 186 Huber (Case C-524/06) EU:C:2008:724�� 152 Hungary v Slovakia (Case C-364/10) EU:C:2012:630�� 285 Hütter (Case C-88/08) EU:C:2009:381�� 173 I (Case C-348/09) EU:C:2012:300�� 150 i-21 Germany and Arcor (Joined Cases C-392/04 and C-422/04) EU:C:2006:586�� 282 IATA and ELFAA (Case C-344/04) EU:C:2006:10��57, 58, 80 Idryma Typou (Case C-81/09) EU:C:2010:622�� 209 Ikea Wholesale (Case C-351/04) EU:C:2007:547�� 71 Impact (Case C-268/06) EU:C:2008:223�� 69 Ingeniørforeningen i Danmark (Case C-499/08) EU:C:2010:600�� 173 Insinööritoimisto InsTiimi (Case C-615/10) EU:C:2012/324�� 264

Table of Cases

xix

Inter-Environnement Wallonie (Case C-129/96) EU:C:1997:628�� 73, 74 Interfood (Case 92/71) EU:C:1972:30�� 71 International Fruit Company (Joined Cases 21/72 to 24/72) EU:C:1972:115�� 260 International Transport Workers’ Federation (‘Viking Line’) (Case C-438/05) EU:C:2007:772��53, 75, 159, 166, 169, 171, 176, 216, 217 Internationale Handelsgesellschaft (Case 11/70) EU:C:1970:114�� 65, 157 Intertanko and Others (Case C-308/06) EU:C:2008:312��57, 58, 71, 78, 80 Inuit Tapiriit Kanatami and Others v Parliament and Council (Case C-583/11 P) EU:C:2013:625�� 278 Ioannidis (Case C-258/04) EU:C:2005:559�� 151 Jafari (Case C-646/16) EU:C:2017:585�� 188 Jégo-Quéré v Commission (Case T-177/01) EU:C:2002:352�� 277 J.N. (Case C-601/15 PPU) EU:C:2016:84�� 180, 186 Johnston (Case 222/84) EU:C:1986:206�� 280 Kadi (Case T-315/01) EU:T:2005:332�� 261 Kadi and Al Barakaat International Foundation v Council and Commission (Joined Cases C-402/05 P and C-415/05 P) EU:C:2008:461�� 4, 25, 34, 45, 50, 52, 53, 57, 158, 159, 161, 261 Kadzoev (Case C-357/09 PPU) EU:C:2009:741�� 191 Kamberaj (Case C-571/10) EU:C:2012:233�� 190 Kampelmann (Joined Cases C-253/96 to C-256/96) EU:C:1997:585�� 77 Kapferer (Case C-234/04) EU:C:2006:178�� 282 KappAhl Oy (Case C-233/97) EU:C:1998:585�� 54 Karner (Case C-71/02) EU:C:2004:181�� 159, 210 Katz (Case C-404/07) EU:C:2008:553�� 197 Kaur (Case C-192/99) EU:C:2001:106�� 146, 147 KB (Case C-117/01) EU:C:2004:7�� 163, 173 Keck and Mithouard (Joined Cases C-267/91 and C-268/91) EU:C:1993:905�� 212 Kempter (Case C-2/06) EU:C:2008:78�� 282 Kent Kirk (Case 63/83) EU:C:1984:255�� 162 Khachab (Case C-558/14) EU:C:2016:285�� 190 Köbler (Case C-224/01) EU:C:2003:513�� 284 Kolpinghuis Nijmegen (Case 80/86) EU:C:1987:431�� 77 Koninklijke KPN and Others (Case C-28/15) EU:C:2016:692�� 107 Konstantinidis (Case C-168/91) EU:C:1993:115�� 145 Köster (Case 25/70) EU:C:1970:115��60, 96, 157 Kozlowski (Case C-66/08) EU:C:2008:437�� 200 KPN (Case C-85/14) EU:C:2015:610�� 107 Kramer (Joined Cases 3/76, 4/76 and 6/76) EU:C:1976:114�� 252, 260 Kreil (Case C-285/98) EU:C:2000:2��56, 65, 263 Kremzov (Case C-299/95) EU:C:1997:254�� 162 Kücükdeveci (Case C-555/07) EU:C:2010:21�� 44, 75, 163, 173, 175, 176 Kühne & Heitz (Case C-453/00) EU:C:2004:17�� 105, 282 Kupferberg (Case 104/81) EU:C:1982:362�� 80 Kuusijärvi (Case C-275/96) EU:C:1998:279�� 47 Kyocera Mita Europe v Commission (Case C-553/14 P) EU:C:2015:805�� 277 LAISA and CPC España v Council (Joined Cases 31/86 and 35/86) EU:C:1988:211�� 52 Landtová (Case C-399/09) EU:C:2011:415�� 67 Lanigan (Case C-237/15 PPU) EU:C:2015:474�� 200

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Table of Cases

Larsy (Case C-118/00) EU:C:2001:368�� 65 Laval un Partneri (Case C-341/05) EU:C:2007:809��166, 169, 176, 216, 217 Ledra Advertising and Others (Joined Cases C-8/15 P to C-10/15 P) EU:C:2016:701�� 239 Leffler (Case C-443/03) EU:C:2005:665�� 192, 195 Léger (Case C-528/13) EU:C:2015:288�� 173 Les Verts v Parliament. See Parti écologiste ‘Les Verts’ v European Parliament (Case 294/83) Lesoochranársek zoskupenie (Case C-240/09) EU:C:2011:125�� 258 Leymann and Pustovarov (Case C-388/08 PPU) EU:C:2008:669�� 200 Limburgse Vinyl Maatschappij et al (Joined Cases C-238/99 P) EU:C:2002:582�� 167 Lindfors (Case C-365/02) EU:C:2004:449�� 153 Lounani (Case C-573/14) EU:C:2017:71�� 186 Lucchini (Case C-119/05) EU:C:2007:434�� 65 Luisi and Carbone (Joined Cases 286/82 and 26/83) EU:C:1984:35�� 148, 211 Lütticke v Commission (Case 48/65) EU:C:1966:8�� 286 Luxembourg v Parliament and Council (Case C-176/09) EU:C:2011:290�� 28 LVP (Case C-306/13) EU:C:2014:2465�� 79 M (Case C-560/14) EU:C:2017:101�� 186 M’Bodj (Case C-542/13) EU:C:2014:2452�� 186 Maizena v Council (Case 139/79) EU:C:1980:250�� 126 Mallis and Others (Joined Cases C-105/15 P to C-109/15 P) EU:C:2016:702�� 239 Mangold (Case C-144/04) EU:C:2005:709�� 43, 44, 73, 75, 163, 173, 175, 176 Marleasing (Case C-106/89) EU:C:1990:395�� 69 Marshall (Case 152/84) EU:C:1986:84�� 76, 77 Martín Martín (Case C-227/08) EU:C:2009:792�� 282 Martínez Sala (Case C-85/96) EU:C:1998:217�� 145 Maruko (Case C-267/06) EU:C:2008:179�� 173 Masdar (UK) v Commission (Case C-47/07 P) EU:C:2008:726�� 279 McCarthy (Case C-434/09) EU:C:2011:277��145, 154, 155 McCarthy (Case C-202/13) EU:C:2014:2450�� 153 Melloni (Case C-399/11) EU:C:2013:107��56, 182, 200 Meroni (Case 9/56) EU:C:1958:7�� 99–101 Mesbah (Case C-179/98) EU:C:1999:549�� 147 Metock (Case C-127/08) EU:C:2008:449�� 154 Michaniki (Case C-213/07) EU:C:2008:731�� 56, 65 Micheletti (Case C-369/90) EU:C:1992:295�� 146, 147 Milkova (Case C-406/15) EU:C:2017:198�� 168 Monsanto Agricoltura Italia (Case C-236/01) EU:C:2003:431�� 222 Monsanto Technology (Case C-428/08) EU:C:2010:402�� 71 Morgan and Bucher (Joined Cases C-11/06 and C-12/06) EU:C:2007:626�� 152 Mukarubega (Case C-166/13) EU:C:2014:2336�� 191 Mund & Fester (Case C-398/92) EU:C:1994:52�� 192 Nakajima v Council (Case C-69/89) EU:C:1991:186�� 79 National Iranian Oil Company v Council and Commission (Case C-440/14 P) EU:C:2016:128�� 61 Netherlands v Parliament and Council (Case C-377/98) EU:C:2001:523�� 27, 80 NM v European Council (Case T-257/16) EU:T:2017:130�� 188 Nold (Case 4/73) EU:C:1975:114�� 157 Norbrook Laboratories (Case C-127/95) EU:C:1998:151�� 284 Nordea Bank Danmark (Case C-48/13) EU:C:2014:2087�� 207 NS and ME et al (Joined Cases C-411/10 and C-493/10) EU:C:2011:865��164, 167, 170, 182, 187 O and B (Case C-456/12) EU:C:2014:135�� 153, 154

Table of Cases

xxi

O and Others (Case C-357/11) EU:C:2012:776�� 154 Ognyanov (Case C-614/14) EU:C:2016:514�� 282 Ombudsman v Lamberts (Case C-234/02 P) EU:C:2004:174�� 271 Ombudsman v Staelen (Case C-337/15 P) EU:C:2017:256�� 271 Omega (Case C-36/02) EU:C:2004:614�� 159, 166 Opinion 1/76 (Inland Waterways) EU:C:1977:63�� 256 Ruling 1/78 (Convention on the Physical Protection of Nuclear Materials, Facilities and Transport) EU:C:1979:224�� 259 Opinion 1/91 (Draft Treaty on the Establishment of the European Economic Area) EU:C:1991:490��4, 34, 52, 53 Opinion 2/91 (International Labour Organisation Convention) No 170 EU:C:1993:106��223, 255, 256, 259, 260 Opinion 2/92 (Third Revised Decision of the OECD on National Treatment) EU:C:1995:83�� 253 Opinion 1/94 (WTO Agreement) EU:C:1994:384��253, 256, 259 Opinion 2/94 (Accession to the European Convention on Human Rights) EU:C:1996:140��27, 42, 158, 167 Opinion 2/00 (Cartagena Protocol) EU:C:2001:664�� 222, 223 Opinion 1/03 (Conclusion of the New Lugano Convention) EU:C:2006:81��193, 195, 255, 256 Opinion 1/08 (General Agreement on Trade in Services) EU:C:2009:739�� 253 Opinion 1/09 (Draft Agreement on the European and Community Patents Court) EU:C:2011:123�� 4, 12, 43, 81, 106, 122, 284 Opinion 1/13 (Acceptance of New Contracting Parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction) EU:C:2014:2303�� 255 Opinion 2/13 (Draft Agreement on the Accession of the EU to the European Convention on Human Rights) EU:C:2014:2454�� 4, 12, 16, 158, 167, 168, 181, 251 Opinion 1/15 (Draft Agreement on the Transfer of Passenger Name Record Data from the European Union to Canada) EU:C:2017:592�� 204 Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2017:376�� 253–56 Opinion 3/15 EU:C:2017:114�� 255 Ordine degli Ingegneri di Verona e Provincia and Others (Case C-111/12) EU:C:2013:100�� 212 Ordre des barreaux francophones et germanophone and Others (Case C-305/05) EU:C:2007:383�� 198 Orfanopoulos and Oliveri (Joined Cases C-482/01 and C-493/01) EU:C:2004:262�� 150 P v S (Case C-13/94) EU:C:1996:170�� 159 P and S (Case C-579/13) EU:C:2015:369�� 190 Panicello (Case C-503/15) EU:C:2017:126�� 282 Parfums Christian Dior (Case C-337/95) EU:C:1997:517�� 284 Parliament v Commission (Case C-403/05) EU:C:2007:624�� 61 Parliament v Commission (Case C-65/13) EU:C:2014:2289�� 61 Parliament v Commission (Case C-286/14) EU:C:2016:183�� 60 Parliament v Council (Case C-540/03) EU:C:2006:429��44, 70, 161, 168, 191 Parliament v Council and Parliament v Commission (Joined Cases C-317/04 and C-318/04) EU:C:2006:346�� 57, 204 Parliament v Council (Cases C-413/04 and C-414/04) EU:C:2006:741�� 110 Parliament v Council (Case C-133/06) EU:C:2008:257�� 60 Parliament v Council (Case C-166/07) EU:C:2009:499�� 25 Parliament v Council (Case C-658/11) EU:C:2014:2025�� 89, 248 Parliament v Council (Case C-263/14) EU:C:2016:435�� 89, 248 Parti écologiste ‘Les Verts’ v European Parliament (Case 294/83) EU:C:1986:166��4, 45, 278

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Table of Cases

Patriciello (Case C-163/10) EU:C:2011:543�� 90 Petruhhin (Case C-182/15) EU:C:2016:630�� 150 Pfeiffer (Joined Cases C-397/01 to C-403/01) EU:C:2004:584��69, 74, 76, 214 Philip Morris Brands el al (Case C-547/14) EU:C:2016:325�� 25 Pillbox 38 (UK) (Case C-477/14) EU:C:2016:324�� 30 Plaumann v Commission (Case 25/62) EU:C:1963:17�� 277 Poland v Commission (Case C-273/04) EU:C:2007:622�� 110 Poland v Parliament and Council (Case C-358/14) EU:C:2016:323�� 30, 206 Polkomtel (Case C-397/14) EU:C:2016:256�� 107 Portugal v Commission (Case C-88/03) EU:C:2006:511�� 105 Portugal v Council (Case C-149/96) EU:C:1999:574�� 58 Poucet and Pistre (Joined Cases C-321/94 to C-324/94) EU:C:1997:229�� 210 Poulsen and Diva Navigation (Case C-286/90) EU:C:1992:453�� 58 Povse (Case C-211/10 PPU) EU:C:2010:400�� 193 PreussenElektra (Case C-379/98) EU:C:2001:160�� 210 Prezes Urzedu Komunikacji Elektronicznej and Others (Case C-231/15) EU:C:2016:769�� 107 Pringle (Case C-370/12) EU:C:2012:756��23, 34, 38, 238, 239 Prinz and Seeberger (Case C-585/11) EU:C:2013:524�� 152 Promusicae (Case C-275/06) EU:C:2008:54�� 70 Pupino (Case C-105/03) EU:C:2005:386�� 69, 70 Pusa (Case C-224/02) EU:C:2004:273�� 153 Puškár (Case C-73/16) EU:C:2017:725�� 280, 281 Racke (Case C-162/96) EU:C:1998:293�� 58 Regione Siciliana v Commission (Case C-417/04 P) EU:C:2006:282�� 105 Rendón Marin (Case C-165/14) EU:C:2016:675�� 153 Rewe-Zentral (‘Cassis de Dijon’) (Case 120/78) EU:C:1979:42��155, 209, 212, 213 Rewe-Zentralfinanz (Case 33/76) EU:C:1976:188�� 280 Rey Soda and Others (Case 23/75) EU:C:1975:142�� 96 Reynolds Tobacco v Commission (Case C-131/03) EU:C:2006:541�� 249 Richards (Case C-423/04) EU:C:2006:256�� 171, 173 Rinau (Case C-195/08 PPU) EU:C:2008:406�� 193 Ritter-Coulais (Case C-152/03) EU:C:2006:123�� 153, 210 Romano (Case 98/80) EU:C:1981:104�� 100 Römer (Case C-147/08) EU:C:2011:286�� 173 Roquette Frères (Case C-94/00) EU:C:2002:603�� 167 Roquette Frères v Council (Case 138/79) EU:C:1980:249�� 126 Rosengren and Others (Case C-170/04) EU:C:2007:313�� 208 Rosneft (Case C-72/15) EU:C:2017:236��251, 273, 276, 278 Rottmann (Case C-135/08) EU:C:2010:104�� 144, 147 Rüffert (Case C-346/06) EU:C:2008:189�� 217 Ruijssenaars and Others (Joined Cases C-145/15 and C-146/15) EU:C:2016:187�� 107 Ruiz Zambrano (Case C-34/09) EU:C:2011:124��145, 153, 211 Runevič-Vardyn (Case C-391/09) EU:C:2011:291�� 152 Rutili (Case 36/75) EU:C:1975:137��157, 162, 165 S and G (Case C-457/12) EU:C:2014:136�� 148 Säger (Case C-76/90) EU:C:1991:331�� 210 Salaberria Sorondo (Case C-258/15) EU:C:2016:873�� 173 Salzgitter Mannesmann (Case C-411/04) EU:C:2007:54�� 169 Samba Diouf (Case C-69/10) EU:C:2011:524�� 186 Saunders (Case 175/78) EU:C:1979:88�� 210

Table of Cases

xxiii

Sayn-Wittgenstein (Case C-208/09) EU:C:2010:806��68, 152, 166 Scheer (Case 30/70) EU:C:1970:117�� 60 Schempp (Case C-403/03) EU:C:2005:446��152, 153, 218 Schenker and Others (Case C-681/11) EU:C:2013:404�� 106 Schiebel Aircraft (Case C-474/12) EU:C:2014:2139�� 264 Schmidberger (Case C-112/00) EU:C:2003:333��53, 159, 175, 176 Schmitzer (Case C-530/13) EU:C:2014:2359�� 173 Schneider Electric v Commission (Case T-351/03) EU:T:2007:212�� 161 Schönberger v Parliament (Case C-261/13 P) EU:C:2014:2423�� 137, 271 Schrems (Case C-362/14) EU:C:2015:650�� 169 Schwarz and Gootjes-Schwarz (Case C-76/05) EU:C:2007:492�� 152, 153 SECIL (Case C-464/14) EU:C:2016:896�� 80 Segi v Council (Case C-355/04 P) EU:C:2007:116�� 197, 274 Sevince (Case C-192/89) EU:C:1990:322�� 80 Shepherd (Case C-472/13) EU:C:2015:117�� 186 Simmenthal (Case 106/77) EU:C:1978:49��53, 64, 65 Simutenko (Case C-265/03) EU:C:2005:213�� 80 Siragusa (Case C-206/13) EU:C:2014:126�� 165 Sirdar (Case C-273/97) EU:C:1999:523�� 263 Slovakia and Hungary v Council (Joined Cases C-643/15 and C-647/15) EU:C:2017:631�� 87, 188 Smanor v Commission (Case T-201/96) EU:T:1997:98�� 286 Snares (Case C-20/96) EU:C:1997:518�� 47 Société Arcelor Atlantique et Lorraine and Others (Case C-127/07) EU:C:2008:728�� 223 Solgar Vitamin’s France (Case C-446/08) EU:C:2010:233�� 222 Spain v Commission (Case C-409/00) EU:C:2003:92�� 62 Spain v Council (Case C-295/11) EU:C:2013:240�� 23 Spain v Council (Case C-147/13) EU:C:2015:299�� 122 Spain v Council (Case C-521/15) EU:C:2017:420�� 233 Spain v Parliament and Council (Case C-146/13) EU:C:2015:298��100, 105, 122 Spain v Parliament and Council (Case C-44/14) EU:C:2015:554�� 114 Spain v UK (Case C-145/04) EU:C:2006:543��129, 147, 285 Stadt Landau in der Pfalz (Case C-115/14) EU:C:2015:760�� 217 Star Fruit v Commission (Case 247/87) EU:C:1989:58�� 286 Stauder (Case 29/69) EU:C:1969:57�� 47, 157 Sweden v Commission (Case C-64/05 P) EU:C:2007:802�� 286 Sweden and Turco v Council (Joined Cases C-39/05 P and C-52/05 P) EU:C:2008:374�� 126, 132 Syfait (Case C-53/03) EU:C:2005:333�� 282 T & L Sugars and Sidul Açúcares v Commission (Case C-456/13 P) EU:C:2015:284�� 277 T-Mobile Austria (Case C-282/13) EU:C:2015:24�� 107 T-Mobile Netherlands (Case C-8/08) EU:C:2009:343�� 281 T. Port (Case C-68/95) EU:C:1996:452�� 278 Tall (Case C-239/14) EU:C:2015:824�� 186 Tas-Hagen and Tas (Case C-192/05) EU:C:2006:223�� 152, 218 Tay Za (Case C-376/10) EU:C:2012:138�� 159 TDC (Case C-556/12) EU:C:2014:2009�� 107 Tedeschi (Case 5/77) EU:C:1977:144�� 96 Tele2 Polska (Case C-375/09) EU:C:2011:270�� 106 Telefónica v Commission (Case C-274/12 P) EU:C:2013:852�� 277 Ten Holder (Case 302/84) EU:C:1986:242�� 47 Ten Oever (Case C-109/91) EU:C:1993:833�� 46

xxiv

Table of Cases

Test-Achats (Case C-236/09) EU:C:2011:100�� 169 TNT Express Nederland (Case C-533/08) EU:C:2010:243�� 195 Torralbo Marcos (Case C-265/13) EU:C:2014:187�� 165 Traghetti del Mediterraneo (Case C-173/03) EU:C:2006:391�� 284 Tralli (Case C-301/02 P) EU:C:2005:306�� 100 Trojani (Case C-456/02) EU:C:2004:488�� 151 Tsakouridis (Case C-145/09) EU:C:2010:708�� 150 TWD Deggendorf (Case C-188/92) EU:C:1994:90�� 279 UK v Council (Cases C-77/05 and C-137/05) EU:C:2007:803�� 113 UK v Council (Case C-482/08) EU:C:2010:631�� 114 UK v Council (Case C-209/13) EU:C:2014:283�� 122 UK v Parliament and Council (‘ESMA’) (Case C-217/04) EU:C:2006:279�� 99–101 UK v Parliament and Council (Case C-270/12) EU:C:2014:18�� 206 Ullens de Schooten (Case C-268/15) EU:C:2016:874�� 83, 212 Unibet (Case C-432/05) EU:C:2007:163�� 169, 280 Unión de Pequeños Agricultores v Council (Case C-50/00) EU:C:2002:462�� 277 Unión General de Trabajadores de la Rioja (Joined Cases C-428/06 to C-434/06) EU:C:2008:488�� 105 UPC DTH (Case C-475/12) EU:C:2014:285�� 107 UPC Nederland (Case C-518/11) EU:C:2013:709�� 107 UTECA (Case C-222/07) EU:C:2009:124�� 208 van der Weerd (Joined Cases C-222/08 to C-225/05) EU:C:2007:318�� 282 van Duyn (Case 41/74) EU:C:1974:133�� 76 van Gend & Loos (Case 26/62) EU:C:1963:1��12, 74, 75 Van Parys (Case C-377/02) EU:C:2005:121�� 58, 79 van Pommeren-Bourgondiën (Case C-227/03) EU:C:2005:431�� 153, 210 van Schijndel and van Veen (Joined Cases C-430/93 and C-431/93) EU:C:1995:441�� 282 Variola (Case 34/73) EU:C:1973:101�� 64, 73 Vatsouras (Joined Cases C-22/08 and C-23/08) EU:C:2009:344�� 151 VEBIC (Case C-439/08) EU:C:2010:739�� 106 Vereiniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others (Joined Cases C-383/06 to C-385/06) EU:C:2008:165�� 107 Vicoplus (Joined Cases C-307/09, C-308/09 and C-309/09) EU:C:2011:64�� 110, 218 Visnapuu (Case C-198/14) EU:C:2015:751�� 208 Vodafone (Case C-395/14) EU:C:2016:9�� 107 Vodafone and Others (Case C-58/08) EU:C:2010:321�� 28, 206 Vodafone Omnitel and Others (Joined Cases C-228/12, C-232/12 and C-254/12 to C-258/12) EU:C:2013:495�� 107 Volker and Schecke (Case C-92/09) EU:C:2010:662�� 169 Von Colson and Kamann (Case 14/83) EU:C:1984:153�� 68, 69 Vroege (Case C-57/93) EU:C:1994:352�� 46 VTB-VAB (Joined Cases C-261/07 and C-299/07) EU:C:2009:244�� 73 Wachauf (Case 5/88) EU:C:1989:321�� 162 Waddenvereniging and Vogelsbeschermingvereiniging (Case C-127/02) EU:C:2004:482�� 139, 222 Waterkeyn and Others (Joined Cases 314 to 316/81 and 83/82) EU:C:1982:430�� 210 Watts (Case C-372/04) EU:C:2006:325�� 219 Wells (Case C-201/02) EU:C:2004:12�� 77 Weltimmo (Case C-230/14) EU:C:2015:639�� 107 Werner (Case C-70/94) EU:C:1995:328�� 71 West (Case C-192/12 PPU) EU:C:2012:404�� 200

Table of Cases

xxv

West Tankers (Case C-185/07) EU:C:2009:69�� 193 Winner Wetten (Case C-409/06) EU:C:2010:503�� 65 Wolzenburg (Case C-123/08) EU:C:2009:616�� 200 X (Case C-507/10) EU:C:2011:873�� 197 X and Others (Joined Cases C-199/12 to C-201/12) EU:C:2013:720�� 173 X and X (Case C-638/16 PPU) EU:C:2017:173�� 189 Yusuf and Al Barakaat International Foundation (Case T-306/01) EU:T:2005:331�� 261 Zhu and Chen (Case C-200/02) EU:C:2004:639�� 146, 147 Zuckerfabrik (Joined Cases C-143/88 and C-92/89) EU:C:1991:65�� 67, 278 Zurita Garcia (Case C-261/08) EU:C:2009:648�� 191 Numerical European Court of Justice/Court of Justice of the European Union Judgments and Orders Case 9/56 Meroni EU:C:1958:7�� 99–101 Case 25/62 Plaumann v Commission EU:C:1963:17�� 277 Case 26/62 van Gend & Loos EU:C:1963:1��12, 74, 75 Case 6/64 Costa v ENEL EU:C:1964:66��12, 56, 64, 65, 76 Case 48/65 Lütticke v Commission EU:C:1966:8�� 286 Case 29/69 Stauder EU:C:1969:57�� 47, 157 Case 40/69 Bollmann EU:C:1970:12�� 73 Case 77/69 Commission v Belgium EU:C:1970:34�� 286 Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114�� 65, 157 Case 22/70 Commission v Council (European Road Transport Agreement) (AETR/ERTA) EU:C:1971:32�� 22, 254–56, 258 Case 25/70 Köster EU:C:1970:115��60, 96, 157 Case 30/70 Scheer EU:C:1970:117�� 60 Case 92/71 Interfood EU:C:1972:30�� 71 Joined Cases 21/72 to 24/72 International Fruit Company EU:C:1972:115�� 260 Case 4/73 Nold EU:C:1975:114�� 157 Case 34/73 Variola EU:C:1973:101�� 64, 73 Case 181/73 Haegeman EU:C:1974:41�� 70 Case 8/74 Dassonville EU:C:1974:82�� 209, 212 Case 41/74 van Duyn EU:C:1974:133�� 76 Case 23/75 Rey Soda and Others EU:C:1975:142�� 96 Case 36/75 Rutili EU:C:1975:137��157, 162, 165 Case 43/75 Defrenne (‘Defrenne II’) EU:C:1976:56�� 34, 53, 75, 159, 171, 175, 214, 216 Case 87/75 Bresciani EU:C:1976:18�� 80 Joined Cases 3/76, 4/76 and 6/76 Kramer EU:C:1976:114�� 252, 260 Case 33/76 Rewe-Zentralfinanz EU:C:1976:188�� 280 Case 41/76 Donckerwolcke EU:C:1976:182�� 22 Case 46/76 Bauhuis v Netherlands EU:C:1977:6�� 181 Case 5/77 Tedeschi EU:C:1977:144�� 96 Case 106/77 Simmenthal EU:C:1978:49��53, 64, 65 Case 149/77 Defrenne (‘Defrenne III’) EU:C:1978:130�� 171 Case 120/78 Rewe-Zentral (‘Cassis de Dijon’) EU:C:1979:42��155, 209, 212, 213 Case 141/78 France v UK EU:C:1979:225�� 285 Case 175/78 Saunders EU:C:1979:88�� 210 Case 92/79 Commission v Italy EU:C:1980:86�� 220

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Table of Cases

Case 138/79 Roquette Frères v Council EU:C:1980:249�� 126 Case 139/79 Maizena v Council EU:C:1980:250�� 126 Case 149/79 Commission v Belgium EU:C:1982:195�� 56, 65 Case 804/79 Commission v UK EU:C:1981:93�� 252 Case 98/80 Romano EU:C:1981:104�� 100 Case 104/81 Kupferberg EU:C:1982:362�� 80 Case 249/81 Commission v Ireland EU:C:1982:402�� 286 Case 283/81 CILFIT EU:C:1982:335�� 283 Joined Cases 314 to 316/81 and 83/82 Waterkeyn and Others EU:C:1982:430�� 210 Joined Cases 286/82 and 26/83 Luisi and Carbone EU:C:1984:35�� 148, 211 Case 14/83 Von Colson and Kamann EU:C:1984:153�� 68, 69 Case 63/83 Kent Kirk EU:C:1984:255�� 162 Case 240/83 ADBHU EU:C:1985:59�� 220 Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament EU:C:1986:166��4, 45, 278 Case 152/84 Marshall EU:C:1986:84�� 76, 77 Case 174/84 Bulk Oil EU:C:1986:60�� 22 Case 178/84 Commission v Germany (‘German Beer’) EU:C:1987:126�� 210 Case 222/84 Johnston EU:C:1986:206�� 280 Case 302/84 Ten Holder EU:C:1986:242�� 47 Case 407/85 3 Glocken EU:C:1988:401�� 210 Joined Cases 31/86 and 35/86 LAISA and CPC España v Council EU:C:1988:211�� 52 Case 80/86 Kolpinghuis Nijmegen EU:C:1987:431�� 77 Case 104/86 Commission v Italy EU:C:1988:49�� 65 Case 127/86 Demirel EU:C:1988:366�� 80 Case 249/86 Commission v Germany EU:C:1989:204�� 162 Case 314/86 Foto-Frost EU:C:1988:471��67, 278, 283 Joined Cases 46/87 and 227/88 Hoechst EU:C:1989:337�� 159 Case 70/87 Fediol v Commission EU:C:1989:254�� 79 Case 186/87 Cowan EU:C:1989:47�� 148 Case 247/87 Star Fruit v Commission EU:C:1989:58�� 286 Case 5/88 Wachauf EU:C:1989:321�� 162 Case 16/88 Commission v Council EU:C:1989:397�� 96 Case 103/88 Costanzo EU:C:1989:256�� 105 Joined Cases C-143/88 and C-92/89 Zuckerfabrik EU:C:1991:65�� 67, 278 Case C-262/88 Barber EU:C:1990:209�� 46 Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State EU:C:1990:360�� 211, 212 Case C-322/88 Grimaldi EU:C:1989:646�� 62 Case C-69/89 Nakajima v Council EU:C:1991:186�� 79 Case C-79/89 Brown Boveri EU:C:1991:153�� 71 Case C-106/89 Marleasing EU:C:1990:395�� 69 Case C-188/89 Foster EU:C:1990:313�� 77 Case C-192/89 Sevince EU:C:1990:322�� 80 Case C-213/89 Factortame EU:C:1990:257�� 65 Case C-260/89 Elliniki Radiophonia Tileorassi (ERT) EU:C:1991:254�� 162 Case C-292/89 Antonissen EU:C:1991:80�� 149 Case C-300/89 Commission v Council EU:C:1991:244�� 126 Joined Cases C-6/90 and C-9/90 Francovich and Others EU:C:1991:428��77, 283, 284 Case C-76/90 Säger EU:C:1991:331�� 210 Case C-159/90 Grogan EU:C:1991:378�� 162 Case C-286/90 Poulsen and Diva Navigation EU:C:1992:453�� 58

Table of Cases

xxvii

Case C-303/90 Commission v France EU:C:1991:424�� 62 Case C-313/90 CIRFS v Commission EU:C:1993:111�� 62 Case C-369/90 Micheletti EU:C:1992:295�� 146, 147 Case C-109/91 Ten Oever EU:C:1993:833�� 46 Case C-168/91 Konstantinidis EU:C:1993:115�� 145 Joined Cases C-267/91 and C-268/91 Keck and Mithouard EU:C:1993:905�� 212 Case C-327/91 France v Commission EU:C:1994:305�� 57 Case C-91/92 Faccini Dori EU:C:1994:292�� 76 Case C-188/92 TWD Deggendorf EU:C:1994:90�� 279 Case C-398/92 Mund & Fester EU:C:1994:52�� 192 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame III EU:C:1996:79�� 284 Case C-57/93 Vroege EU:C:1994:352�� 46 Case C-128/93 Fisscher EU:C:1994:353�� 46 Joined Cases C-430/93 and C-431/93 van Schijndel and van Veen EU:C:1995:441�� 282 Case C-456/93 Atlanta Fruchhandelsgesellschaft EU:C:1995:206�� 67, 278 Case C-469/93 Chiquita Italia EU:C:1995:435�� 80 Case C-5/94 Hedley Lomas EU:C:1996:205�� 284 Case C-13/94 P v S EU:C:1996:170�� 159 Case C-25/94 Commission v Council EU:C:1996:114�� 62, 259 Case C-61/94 Commission v Germany EU:C:1996:313�� 57 Case C-70/94 Werner EU:C:1995:328�� 71 Case C-157/94 Commission v Netherlands EU:C:1997:499�� 208 Case C-159/94 Commission v France EU:C:1997:501�� 208 Joined Cases C-321/94 to C-324/94 Poucet and Pistre EU:C:1997:229�� 210 Case C-68/95 T. Port EU:C:1996:452�� 278 Case C-122/95 Germany v Council EU:C:1998:94�� 57 Case C-127/95 Norbrook Laboratories EU:C:1998:151�� 284 Case C-168/95 Arcaro EU:C:1996:363�� 77 Case C-185/95 P Baustahlgewebe v Commission EU:C:1998:608�� 161 Case C-189/95 Franzén EU:C:1997:504�� 208 Case C-299/95 Kremzov EU:C:1997:254�� 162 Case C-337/95 Parfums Christian Dior EU:C:1997:517�� 284 Case C-341/95 Bettatti EU:C:1998:353�� 57 Case C-388/95 Belgium v Spain EU:C:2000:244�� 285 Case C-1/96 Compassion in World Farming EU:C:1998:113�� 58, 80 Case C-20/96 Snares EU:C:1997:518�� 47 Case C-53/96 Hermès EU:C:1998:292�� 71 Case C-67/96 Albany EU:C:1999:430�� 216 Case C-85/96 Martínez Sala EU:C:1998:217�� 145 Case C-129/96 Inter-Environnement Wallonie EU:C:1997:628�� 73, 74 Case C-149/96 Portugal v Council EU:C:1999:574�� 58 Case C-162/96 Racke EU:C:1998:293�� 58 Joined Cases C-253/96 to C-256/96 Kampelmann EU:C:1997:585�� 77 Case C-274/96 Bickel and Franz EU:C:1998:563�� 152 Case C-275/96 Kuusijärvi EU:C:1998:279�� 47 Case C-306/96 Annibaldi EU:C:1998:173�� 162 Case C-224/97 Ciola EU:C:1999:212�� 65 Case C-233/97 KappAhl Oy EU:C:1998:585�� 54 Joined Cases C-270/97 and C-271/97 Deutsche Post EU:C:2000:76�� 214 Case C-273/97 Sirdar EU:C:1999:523�� 263

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Table of Cases

Case C-387/97 Commission v Hellenic Republic EU:C:2000:356�� 287 Case C-414/97 Commission v Spain EU:C:1999:417�� 263 Case C-424/97 Haim EU:C:2000:357�� 102 Case C-62/98 Commission v Portugal EU:C:2000:358�� 260 Case C-179/98 Mesbah EU:C:1999:549�� 147 Case C-224/98 D’Hoop EU:C:2002:432�� 151, 153 Case C-281/98 Angonese EU:C:2000:296�� 75, 153 Case C-285/98 Kreil EU:C:2000:2��56, 65, 263 Case C-300/98 Dior and Others EU:C:2000:688�� 71 Case C-376/98 Germany v Parliament and Council EU:C:2000:544�� 27, 276 Case C-377/98 Netherlands v Parliament and Council EU:C:2001:523�� 27, 80 Case C-379/98 PreussenElektra EU:C:2001:160�� 210 Case C-403/98 Azienda Agricola Monte Arcosu EU:C:2001:6�� 73 Case C-448/98 Guimont EU:C:2000:663�� 212 Case C-467/98 Commission v Denmark EU:C:2002:625�� 255 Case C-173/99 BECTU EU:C:2001:356�� 168 Case C-184/99 Grzelczyk EU:C:2001:458��16, 141, 145, 151, 152 Case C-192/99 Kaur EU:C:2001:106�� 146, 147 Joined Cases C-238/99 P Limburgse Vinyl Maatschappij et al EU:C:2002:582�� 167 Joined Cases C-393/99 and C-394/99 Hervein EU:C:2002:182�� 218 Case C-413/99 Baumbast EU:C:2002:493�� 145 Case C-453/99 Courage and Crehan EU:C:2001:465�� 75 Case C-50/00 Unión de Pequeños Agricultores v Council EU:C:2002:462�� 277 Case C-60/00 Carpenter EU:C:2002:434��148, 155, 162, 165, 210 Case C-94/00 Roquette Frères EU:C:2002:603�� 167 Case C-112/00 Schmidberger EU:C:2003:333��53, 159, 175, 176 Case C-118/00 Larsy EU:C:2001:368�� 65 Case C-378/00 Commission v Parliament and Council EU:C:2003:42�� 61 Case C-409/00 Spain v Commission EU:C:2003:92�� 62 Case C-453/00 Kühne & Heitz EU:C:2004:17�� 105, 282 Case C-109/01 Akrich EU:C:2003:491�� 154 Case C-117/01 KB EU:C:2004:7�� 163, 173 Case C-186/01 Dory EU:C:2003:146�� 263 Case C-198/01 CIF EU:C:2003:430�� 105 Case C-211/01 Commission v Council EU:C:2003:452�� 57 Case C-224/01 Köbler EU:C:2003:513�� 284 Case C-236/01 Monsanto Agricoltura Italia EU:C:2003:431�� 222 Case C-257/01 Commission v Council EU:C:2005:25�� 61 Case C-281/01 Commission v Council EU:C:2002:761�� 57 Joined Cases C-397/01 to C-403/01 Pfeiffer EU:C:2004:584��69, 74, 76, 214 Case C-439/01 Cipra and Kvasnicka EU:C:2003:31�� 260 Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri EU:C:2004:262�� 150 Case C-486/01 P Front National v Parliament EU:C:2004:394�� 130 Case C-491/01 British American Tobacco EU:C:2002:741�� 27, 28 Case C-36/02 Omega EU:C:2004:614�� 159, 166 Case C-71/02 Karner EU:C:2004:181�� 159, 210 Case C-93/02 P Biret International v Council EU:C:2003:517�� 79 Case C-127/02 Waddenvereniging and Vogelsbeschermingvereiniging EU:C:2004:482�� 139, 222 Case C-138/02 Collins EU:C:2004:172��149, 151, 153

Table of Cases

xxix

Case C-148/02 Garcia Avello EU:C:2003:539�� 152, 165 Case C-200/02 Zhu and Chen EU:C:2004:639�� 146, 147 Case C-201/02 Wells EU:C:2004:12�� 77 Case C-224/02 Pusa EU:C:2004:273�� 153 Case C-234/02 P Ombudsman v Lamberts EU:C:2004:174�� 271 Case C-245/02 Anheuser Busch EU:C:2004:717�� 71 Case C-263/02 P Commission v Jégo-Quéré EU:C:2004:210�� 277 Case C-286/02 Bellio F.lli EU:C:2004:212�� 57 Case C-301/02 P Tralli EU:C:2005:306�� 100 Case C-365/02 Lindfors EU:C:2004:449�� 153 Case C-377/02 Van Parys EU:C:2005:121�� 58, 79 Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi EU:C:2005:270�� 76 Case C-438/02 Hanner EU:C:2005:332�� 208 Case C-456/02 Trojani EU:C:2004:488�� 151 Case C-53/03 Syfait EU:C:2005:333�� 282 Case C-88/03 Portugal v Commission EU:C:2006:511�� 105 Case C-94/03 Commission v Council EU:C:2006:2�� 57 Case C-105/03 Pupino EU:C:2005:386�� 69, 70 Case C-131/03 Reynolds Tobacco v Commission EU:C:2006:541�� 249 Case C-147/03 Commission v Austria EU:C:2005:427�� 152 Case C-152/03 Ritter-Coulais EU:C:2006:123�� 153, 210 Case C-173/03 Traghetti del Mediterraneo EU:C:2006:391�� 284 Case C-176/03 Commission v Council EU:C:2005:542��198, 199, 222 Case C-203/03 Commission v Austria EU:C:2005:76�� 260 Case C-209/03 Bidar EU:C:2005:169�� 151, 152 Case C-227/03 van Pommeren-Bourgondiën EU:C:2005:431�� 153, 210 Case C-265/03 Simutenko EU:C:2005:213�� 80 Case C-266/03 Commission v Luxembourg EU:C:2005:341�� 259 Case C-320/03 Commission v Austria EU:C:2005:684�� 221 Case C-358/03 Commission v Austria EU:C:2004:824�� 286 Case C-380/03 Germany v Parliament and Council EU:C:2006:772��206, 222, 276 Case C-403/03 Schempp EU:C:2005:446��152, 153, 218 Case C-433/03 Commission v Germany EU:C:2005:462�� 259 Case C-443/03 Leffler EU:C:2005:665�� 192, 195 Joined Cases C-453/03, C-11/04, C-12/04 and C-194/05 ABNA EU:C:2005:741�� 67 Case C-459/03 Commission v Ireland EU:C:2006:345�� 223, 262 Case C-470/03 AGM-COS.MET EU:C:2007:213�� 284 Case C-503/03 Commission v Spain EU:C:2006:74�� 179 Case C-540/03 Parliament v Council EU:C:2006:429��44, 70, 161, 168, 191 Case C-27/04 Commission v Council EU:C:2004:436��94, 231, 285 Case C-144/04 Mangold EU:C:2005:709�� 43, 44, 73, 75, 163, 173, 175, 176 Case C-145/04 Spain v UK EU:C:2006:543��129, 147, 285 Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others EU:C:2005:449�� 100, 206 Case C-170/04 Rosengren and Others EU:C:2007:313�� 208 Case C-212/04 Adeneler EU:C:2006:443��69, 70, 73 Case C-217/04 UK v Parliament and Council (‘ESMA’) EU:C:2006:279�� 99–101 Case C-234/04 Kapferer EU:C:2006:178�� 282 Case C-258/04 Ioannidis EU:C:2005:559�� 151 Case C-273/04 Poland v Commission EU:C:2007:622�� 110

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Table of Cases

Joined Cases C-282/04 and C-283/04 Commission v Netherlands EU:C:2006:608�� 208 Case C-300/04 Eman and Sevinger EU:C:2006:545�� 129, 147 Joined Cases C-317/04 and C-318/04 Parliament v Council and Parliament v Commission EU:C:2006:346�� 57, 204 Case C-344/04 IATA and ELFAA EU:C:2006:10��57, 58, 80 Case C-351/04 Ikea Wholesale EU:C:2007:547�� 71 Case C-354/04 P Gestoras pro Amnistía v Council EU:C:2007:115�� 197, 274 Case C-355/04 P Segi v Council () EU:C:2007:116�� 197, 274 Case C-372/04 Watts EU:C:2006:325�� 219 Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor EU:C:2006:586�� 282 Case C-406/04 De Cuyper EU:C:2006:491�� 153 Case C-411/04 Salzgitter Mannesmann EU:C:2007:54�� 169 Cases C-413/04 and C-414/04 Parliament v Council EU:C:2006:741�� 110 Case C-417/04 P Regione Siciliana v Commission EU:C:2006:282�� 105 Case C-423/04 Richards EU:C:2006:256�� 171, 173 Case C-432/04 Commission v Cresson EU:C:2006:455�� 52 Case C-442/04 Caixa-Bank EU:C:2008:276�� 212 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council EU:C:2008:374�� 126, 132 Case C-64/05 P Sweden v Commission EU:C:2007:802�� 286 Case C-76/05 Schwarz and Gootjes-Schwarz EU:C:2007:492�� 152, 153 Cases C-77/05 and C-137/05 UK v Council EU:C:2007:803�� 113 Case C-91/05 Commission v Council EU:C:2008:288��26, 251, 264 Case C-110/05 Commission v Italy EU:C:2009:66�� 210, 212 Case C-112/05 Commission v Germany EU:C:2007:623�� 209 Case C-119/05 Lucchini EU:C:2007:434�� 65 Case C-192/05 Tas-Hagen and Tas EU:C:2006:223�� 152, 218 Case C-212/05 Hartmann EU:C:2007:437�� 210 Case C-241/05 Bot EU:C:2006:634�� 184 Case C-284/05 Commission v Finland EU:C:2009:778�� 263 Case C-287/05 Hendrix EU:C:2007:494�� 210, 218 Case C-291/05 Eind EU:C:2007:771�� 153, 210 Case C-303/05 Advocaten voor de Wereld EU:C:2007:261�� 200 Case C-305/05 Ordre des barreaux francophones et germanophone and Others EU:C:2007:383�� 198 Case C-337/05 Commission v Italy EU:C:2008:203�� 263 Case C-341/05 Laval un Partneri EU:C:2007:809��166, 169, 176, 216, 217 Case C-380/05 Centro Europa EU:C:2007:505�� 145, 154 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461��4, 25, 34, 45, 50, 52, 53, 57, 158, 159, 161, 261 Case C-403/05 Parliament v Commission EU:C:2007:624�� 61 Case C-432/05 Unibet EU:C:2007:163�� 169, 280 Case C-438/05 International Transport Workers’ Federation (‘Viking Line’) EU:C:2007:772��53, 75, 159, 166, 169, 171, 176, 216, 217 Case C-440/05 Commission v Council (Ship Source Pollution) EU:C:2007:625�� 199 Case C-2/06 Kempter EU:C:2008:78�� 282 Joined Cases C-11/06 and C-12/06 Morgan and Bucher EU:C:2007:626�� 152 Case C-38/06 Commission v Portugal EU:C:2010:108�� 263 Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission EU:C:2007:212�� 279, 280

Table of Cases

xxxi

Case C-133/06 Parliament v Council EU:C:2008:257�� 60 Case C-210/06 Cartesio EU:C:2008:723�� 282 Case C-212/06 Government of the French Community and Walloon Government EU:C:2008:178�� 211 Case C-244/06 Dynamic Medien EU:C:2008:85��159, 166, 169 Case C-267/06 Maruko EU:C:2008:179�� 173 Case C-268/06 Impact EU:C:2008:223�� 69 Case C-275/06 Promusicae EU:C:2008:54�� 70 Case C-308/06 Intertanko and Others EU:C:2008:312��57, 58, 71, 78, 80 Case C-319/06 Commission v Luxembourg EU:C:2008:350�� 217 Joined Cases C-341/06 P and C-342/06 P Chronopost v UFEX EU:C:2008:375�� 161 Case C-346/06 Rüffert EU:C:2008:189�� 217 Case C-353/06 Grunkin and Paul EU:C:2008:559�� 152 Joined Cases C-383/06 to C-385/06 Vereiniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others EU:C:2008:165�� 107 Case C-409/06 Winner Wetten EU:C:2010:503�� 65 Case C-411/06 Commission v Parliament and Council EU:C:2009:518�� 222 Case C-427/06 Bartsch EU:C:2008:517�� 172 Joined Cases C-428/06 to C-434/06 Unión General de Trabajadores de la Rioja EU:C:2008:488�� 105 Case C-445/06 Danske Slagterier EU:C:2009:178�� 284 Case C-455/06 Heemskerk and Firma Schaap EU:C:2008:650�� 282 Case C-518/06 Commission v Italy EU:C:2009:270�� 212 Case C-524/06 Huber EU:C:2008:724�� 152 Case C-45/07 Commission v Hellenic Republic EU:C:2009:81�� 255, 260 Case C-47/07 P Masdar (UK) v Commission EU:C:2008:726�� 279 Case C-54/07 Feryn EU:C:2008:397�� 173 Case C-82/07 Comisíon del Mercado de las Telecomunicaciones EU:C:2008:143�� 107 Case C-127/07 Société Arcelor Atlantique et Lorraine and Others EU:C:2008:728�� 223 Case C-158/07 Förster EU:C:2008:630�� 151, 152 Case C-166/07 Parliament v Council EU:C:2009:499�� 25 Case C-185/07 West Tankers EU:C:2009:69�� 193 Case C-188/07 Commune de Mesquer EU:C:2008:359�� 78, 260 Case C-204/07 C.A.S. v Commission EU:C:2008:446�� 249 Case C-213/07 Michaniki EU:C:2008:731�� 56, 65 Case C-222/07 UTECA EU:C:2009:124�� 208 Case C-246/07 Commission v Sweden EU:C:2010:203�� 223, 259 Joined Cases C-261/07 and C-299/07 VTB-VAB EU:C:2009:244�� 73 Case C-319/07 P 3F v Commission EU:C:2009:435�� 216 Case C-370/07 Commission v Council EU:C:2009:590�� 59 Case C-380/07 Angelidaki and Others EU:C:2009:250�� 56 Case C-385/07 P Der Grüne Punkt—Duales System Deutschland v Commission EU:C:2009:456�� 161 Case C-404/07 Katz EU:C:2008:553�� 197 Case C-420/07 Apostolides EU:C:2009:271�� 193 Case C-428/07 Horvath EU:C:2009:458�� 102, 105 Case C-465/07 Elgafaji EU:C:2009:94��161, 186, 191 Case C-478/07 Budejovicky Budvar EU:C:2009:521�� 260 Case C-518/07 Commission v Germany EU:C:2010:125�� 107, 126 Case C-555/07 Kücükdeveci EU:C:2010:21�� 44, 75, 163, 173, 175, 176

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Table of Cases

Case C-8/08 T-Mobile Netherlands EU:C:2009:343�� 281 Joined Cases C-22/08 and C-23/08 Vatsouras EU:C:2009:344�� 151 Case C-58/08 Vodafone and Others EU:C:2010:321�� 28, 206 Case C-66/08 Kozlowski EU:C:2008:437�� 200 Case C-73/08 Bressol and Others and Chaverot and Others EU:C:2010:181�� 152 Case C-88/08 Hütter EU:C:2009:381�� 173 Case C-101/08 Audiolux and Others EU:C:2009:626�� 4, 54 Case C-115/08 ČEZ EU:C:2009:660�� 65 Case C-123/08 Wolzenburg EU:C:2009:616�� 200 Case C-127/08 Metock EU:C:2008:449�� 154 Case C-135/08 Rottmann EU:C:2010:104�� 144, 147 Case C-147/08 Römer EU:C:2011:286�� 173 Case C-195/08 PPU Rinau EU:C:2008:406�� 193 Case C-211/08 Commission v Spain EU:C:2010:340�� 219 Joined Cases C-222/08 to C-225/05 van der Weerd EU:C:2007:318�� 282 Case C-227/08 Martín Martín EU:C:2009:792�� 282 Case C-260/08 HEKO Industrieerzeugnisse EU:C:2009:768�� 71 Case C-261/08 Zurita Garcia EU:C:2009:648�� 191 Case C-314/08 Filipiak EU:C:2009:719�� 56, 65 Case C-373/08 Hoesch Metals and Alloys EU:C:2010:68�� 71 Case C-388/08 PPU Leymann and Pustovarov EU:C:2008:669�� 200 Case C-428/08 Monsanto Technology EU:C:2010:402�� 71 Case C-439/08 VEBIC EU:C:2010:739�� 106 Case C-446/08 Solgar Vitamin’s France EU:C:2010:233�� 222 Case C-482/08 UK v Council EU:C:2010:631�� 114 Case C-499/08 Ingeniørforeningen i Danmark EU:C:2010:600�� 173 Case C-512/08 Commission v France EU:C:2010:579�� 219 Case C-533/08 TNT Express Nederland EU:C:2010:243�� 195 Case C-565/08 Commission v Italy EU:C:2011:188�� 212 Case C-578/08 Chakroun EU:C:2010:117�� 191 Case C-28/09 Commission v Austria EU:C:2011:854�� 221 Case C-34/09 Ruiz Zambrano EU:C:2011:124��145, 153, 211 Case C-81/09 Idryma Typou EU:C:2010:622�� 209 Case C-92/09 Volker and Schecke EU:C:2010:662�� 169 Case C-109/09 Deutsche Lufthansa EU:C:2011:129�� 70 Case C-145/09 Tsakouridis EU:C:2010:708�� 150 Case C-173/09 Elchinov EU:C:2010:581�� 219 Case C-176/09 Luxembourg v Parliament and Council EU:C:2011:290�� 28 Case C-205/09 Eredics EU:C:2010:623�� 197 Case C-208/09 Sayn-Wittgenstein EU:C:2010:806��68, 152, 166 Case C-212/09 Commission v Portugal EU:C:2011:717�� 209 Case C-236/09 Test-Achats EU:C:2011:100�� 169 Case C-240/09 Lesoochranársek zoskupenie EU:C:2011:125�� 258 Case C-263/09 Edwin v EUIPO EU:C:2011:452�� 83 Case C-269/09 Commission v Spain EU:C:2012:439�� 207 Case C-279/09 DEB EU:C:2010:811��164, 280, 281 Joined Cases C-307/09, C-308/09 and C-309/09 Vicoplus EU:C:2011:64�� 110, 218 Case C-348/09 I EU:C:2012:300�� 150 Case C-357/09 PPU Kadzoev EU:C:2009:741�� 191 Case C-375/09 Tele2 Polska EU:C:2011:270�� 106

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xxxiii

Case C-391/09 Runevič-Vardyn EU:C:2011:291�� 152 Case C-399/09 Landtová EU:C:2011:415�� 67 Case C-434/09 McCarthy EU:C:2011:277��145, 154, 155 Joined Cases C-483/09 and C-1/10 Gueye EU:C:2011:583�� 197 Case C-490/09 Commission v Luxembourg EU:C:2011:34�� 219 Case C-504/09 P Commission v Poland EU:C:2012:178�� 223 Case C-505/09 P Commission v Estonia EU:C:2012:179�� 223 Case C-69/10 Samba Diouf EU:C:2011:524�� 186 Case C-163/10 Patriciello EU:C:2011:543�� 90 Joined Cases C-188/10 and C-189/10 Abdeli and Melki EU:C:2010:206��65, 68, 282 Case C-211/10 PPU Povse EU:C:2010:400�� 193 Case C-282/10 Dominguez EU:C:2012:33�� 175, 214 Case C-364/10 Hungary v Slovakia EU:C:2012:630�� 285 Case C-366/10 Air Transport Association of America and Others EU:C:2011:864�� 57–59, 78, 80 Case C-376/10 Tay Za EU:C:2012:138�� 159 Case C-379/10 Commission v Italy EU:C:2011:775�� 284 Joined Cases C-411/10 and C-493/10 NS and ME et al EU:C:2011:865��164, 167, 170, 182, 187 Case C-430/10 Gaydarov EU:C:2011:749�� 150 Case C-434/10 Aladzhov EU:C:2011:750�� 150 Case C-507/10 X EU:C:2011:873�� 197 Case C-571/10 Kamberaj EU:C:2012:233�� 190 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi (‘Kadi II’) EU:C:2013:518�� 159 Case C-615/10 Insinööritoimisto InsTiimi EU:C:2012/324�� 264 Case C-617/10 Åkerberg Fransson EU:C:2013:105�� 163 Case C-61/11 PPU El Dridi EU:C:2011:268�� 191 Case C-226/11 Expedia EU:C:2012:795�� 106 Case C-256/11 Dereci EU:C:2011:734�� 154, 155 Case C-280/11 P Council v Access Info Europe EU:C:2013:671�� 126 Case C-295/11 Spain v Council EU:C:2013:240�� 23 Case C-329/11 Achughbabian EU:C:2011:807�� 191 Joined Cases C-335/11 and C-337/11 HK Danmark EU:C:2013:222�� 168 Case C-357/11 O and Others EU:C:2012:776�� 154 Case C-380/11 DI.VI. Finanziaria di Diego della Valle EU:C:2012:552�� 207 Case C-399/11 Melloni EU:C:2013:107��56, 182, 200 Case C-414/11 Daiichi Sankyo EU:C:2013:520�� 253 Case C-518/11 UPC Nederland EU:C:2013:709�� 107 Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council EU:C:2013:625�� 278 Case C-585/11 Prinz and Seeberger EU:C:2013:524�� 152 Case C-658/11 Parliament v Council EU:C:2014:2025�� 89, 248 Case C-681/11 Schenker and Others EU:C:2013:404�� 106 Case C-81/12 Asociatia ACCEPT EU:C:2013:275�� 173 Case C-111/12 Ordine degli Ingegneri di Verona e Provincia and Others EU:C:2013:100�� 212 Case C-114/12 Commission v Council EU:C:2014:2151��23, 255, 256 Case C-140/12 Brey EU:C:2013:565�� 152, 218 Case C-176/12 Association de médiation sociale EU:C:2014:2��174, 175, 215 Case C-192/12 PPU West EU:C:2012:404�� 200 Joined Cases C-199/12 to C-201/12 X and Others EU:C:2013:720�� 173

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Table of Cases

Joined Cases C-228/12, C-232/12 and C-254/12 to C-258/12 Vodafone Omnitel and Others EU:C:2013:495�� 107 Case C-270/12 UK v Parliament and Council EU:C:2014:18�� 206 Case C-274/12 P Telefónica v Commission EU:C:2013:852�� 277 Case C-275/12 Elrick EU:C:2013:684�� 152 Case C-280/12 P Council v Fulmen and Mahmoudian EU:C:2013:775�� 159 Case C-288/12 Commission v Hungary EU:C:2014:237�� 107 Joined Cases C-293/12 and C-594/12 Digital Rights Ireland EU:C:2014:238�� 169, 180 Case C-356/12 Glatzel EU:C:2014:350�� 168 Case C-370/12 Pringle EU:C:2012:756��23, 34, 38, 238, 239 Joined Cases C-401/12 P and C-403/12 P Council, Parliament and Commission v Vereniging Milieudefensie EU:C:2015:4�� 58 Case C-427/12 Commission v Parliament and Council EU:C:2014:170�� 60 Case C-456/12 O and B EU:C:2014:135�� 153, 154 Case C-457/12 S and G EU:C:2014:136�� 148 Case C-474/12 Schiebel Aircraft EU:C:2014:2139�� 264 Case C-475/12 UPC DTH EU:C:2014:285�� 107 Case C-556/12 TDC EU:C:2014:2009�� 107 Case C-48/13 Nordea Bank Danmark EU:C:2014:2087�� 207 Case C-65/13 Parliament v Commission EU:C:2014:2289�� 61 Case C-66/13 Green Network EU:C:2014:2399�� 255, 256 Case C-146/13 Spain v Parliament and Council EU:C:2015:298��100, 105, 122 Case C-147/13 Spain v Council EU:C:2015:299�� 122 Joined Cases C-148/13, C-149/13 and C-150/13 A, B and C EU:C:2014:2406�� 186 Case C-166/13 Mukarubega EU:C:2014:2336�� 191 Case C-168/13 F EU:C:2013:358�� 200 Case C-202/13 McCarthy EU:C:2014:2450�� 153 Case C-206/13 Siragusa EU:C:2014:126�� 165 Case C-209/13 UK v Council EU:C:2014:283�� 122 Case C-249/13 Boudljida EU:C:2014:2431�� 191 Case C-261/13 P Schönberger v Parliament EU:C:2014:2423�� 137, 271 Case C-265/13 Torralbo Marcos EU:C:2014:187�� 165 Case C-282/13 T-Mobile Austria EU:C:2015:24�� 107 Case C-306/13 LVP EU:C:2014:2465�� 79 Case C-333/13 Dano EU:C:2014:2358�� 152, 218 Case C-354/13 FOA EU:C:2014:2463�� 168 Case C-373/13 H.T. EU:C:2015:413�� 186 Case C-409/13 Council v Commission EU:C:2015:217�� 95 Case C-425/13 Commission v Council EU:C:2015:483�� 249 Case C-439/13 P Elitaliana v Eulex Kosovo EU:C:2015:753�� 251, 273 Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission EU:C:2015:284�� 277 Case C-472/13 Shepherd EU:C:2015:117�� 186 Case C-508/13 Estonia v Parliament and Council EU:C:2015:403�� 30 Case C-510/13 E.ON Földgáz Trade EU:C:2015:189�� 107 Case C-528/13 Léger EU:C:2015:288�� 173 Case C-530/13 Schmitzer EU:C:2014:2359�� 173 Case C-536/13 Gazprom EU:C:2015:316�� 193 Case C-542/13 M’Bodj EU:C:2014:2452�� 186 Case C-579/13 P and S EU:C:2015:369�� 190

Table of Cases

xxxv

Case C-650/13 Delvigne EU:C:2015:648�� 152, 163 Joined Cases C-659/13 and C-34/14 C & J Clark International and Puma EU:C:2016:74�� 58 Case C-681/13 Diageo Brands v Simiramida-04 EOOD EU:C:2015:471�� 181 Case C-21/14 Commission v Rusal Armenal EU:C:2015:494�� 58, 79 Case C-44/14 Spain v Parliament and Council EU:C:2015:554�� 114 Case C-62/14 Gauweiler and Others EU:C:2015:400�� 23, 236 Case C-67/14 Alimanovic EU:C:2015:597�� 218 Case C-73/14 Council v Commission EU:C:2015:663�� 249 Case C-83/14 CHEZ Razpredelenie Bulgaria EU:C:2015:480�� 173 Case C-85/14 KPN EU:C:2015:610�� 107 Case C-88/14 Commission v Parliament and Council EU:C:2015:499�� 60 Case C-115/14 Stadt Landau in der Pfalz EU:C:2015:760�� 217 Case C-158/14 A, B, C and D EU:C:2017:202�� 279 Case C-165/14 Rendón Marin EU:C:2016:675�� 153 Case C-198/14 Visnapuu EU:C:2015:751�� 208 Case C-230/14 Weltimmo EU:C:2015:639�� 107 Case C-239/14 Tall EU:C:2015:824�� 186 Case C-258/14 Florescu EU:C:2017:448�� 163, 239 Case C-263/14 Parliament v Council EU:C:2016:435�� 89, 248 Case C-286/14 Parliament v Commission EU:C:2016:183�� 60 Case C-304/14 CS EU:C:2016:674�� 153 Case C-308/14 Commission v UK EU:C:2016:436�� 152, 218 Case C-358/14 Poland v Parliament and Council EU:C:2016:323�� 30, 206 Case C-362/14 Schrems EU:C:2015:650�� 169 Case C-395/14 Vodafone EU:C:2016:9�� 107 Case C-397/14 Polkomtel EU:C:2016:256�� 107 Case C-429/14 Air Baltic Corporation EU:C:2016:88�� 80 Case C-438/14 Bogendorff von Wolffersdorff EU:C:2016:401�� 152 Case C-440/14 P National Iranian Oil Company v Council and Commission EU:C:2016:128�� 61 Case C-441/14 Dansk Industri EU:C:2016:278�� 173, 175 Cases C-443/14 and C-444/14 Alo and Osso EU:C:2016:127�� 186 Case C-455/14 P H v Council and Others EU:C:2016:569�� 251, 273 Case C-464/14 SECIL EU:C:2016:896�� 80 Case C-477/14 Pillbox 38 (UK) EU:C:2016:324�� 30 Case C-547/14 Philip Morris Brands el al EU:C:2016:325�� 25 Case C-553/14 P Kyocera Mita Europe v Commission EU:C:2015:805�� 277 Case C-557/14 Commission v Portugal EU:C:2016:471�� 287 Case C-558/14 Khachab EU:C:2016:285�� 190 Case C-560/14 M EU:C:2017:101�� 186 Case C-573/14 Lounani EU:C:2017:71�� 186 Case C-598/14 P EUIPO v Szajner EU:C:2016:915�� 83 Case C-614/14 Ognyanov EU:C:2016:514�� 282 Case C-2/15 DHL Express (Austria) EU:C:2016:880�� 107 Joined Cases C-8/15 P to C-10/15 P Ledra Advertising and Others EU:C:2016:701�� 239 Case C-28/15 Koninklijke KPN and Others EU:C:2016:692�� 107 Case C-47/15 Affum EU:C:2016:408�� 191 Case C-72/15 Rosneft EU:C:2017:236��251, 273, 276, 278 Joined Cases C-105/15 P to C-109/15 P Mallis and Others EU:C:2016:702�� 239

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Case C-133/15 Chavez-Vilchez and Others EU:C:2017:354�� 153 Joined Cases C-145/15 and C-146/15 Ruijssenaars and Others EU:C:2016:187�� 107 Case C-157/15 Achbita EU:C:2017:203�� 173 Case C-182/15 Petruhhin EU:C:2016:630�� 150 Case C-188/15 Bougnaoui EU:C:2017:204�� 173 Case C-231/15 Prezes Urzedu Komunikacji Elektronicznej and Others EU:C:2016:769�� 107 Case C-237/15 PPU Lanigan EU:C:2015:474�� 200 Case C-240/15 Autorità per le Garanzie nelle Communicazioni EU:C:2016:608�� 107 Case C-258/15 Salaberria Sorondo EU:C:2016:873�� 173 Case C-268/15 Ullens de Schooten EU:C:2016:874�� 83, 212 Case C-337/15 P Ombudsman v Staelen EU:C:2017:256�� 271 Case C-395/15 Daouidi EU:C:2016:917�� 168 Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198�� 182, 200 Case C-406/15 Milkova EU:C:2017:198�� 168 Case C-413/15 Farrell judgment of 10 October 2017, nyr�� 77 Case C-503/15 Panicello EU:C:2017:126�� 282 Case C-521/15 Spain v Council EU:C:2017:420�� 233 Case C-589/15 P Anagnostakis v Commission EU:C:2017:663�� 137 Case C-601/15 PPU J.N. EU:C:2016:84�� 180, 186 Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631�� 87, 188 Case C-73/16 Puškár EU:C:2017:725�� 280, 281 Case C-193/16 E EU:C:2017:542�� 150 Case C-490/16 A.S. EU:C:2017:585�� 188 Case C-578/16 C.K., H.F. and A.S EU:C:2017:127�� 182, 187 Case C-638/16 PPU X and X EU:C:2017:173�� 189 Case C-646/16 Jafari EU:C:2017:585�� 188 Opinions and Rulings Opinion 1/76 (Inland Waterways) EU:C:1977:63�� 256 Ruling 1/78 (Convention on the Physical Protection of Nuclear Materials, Facilities and Transport) EU:C:1979:224�� 259 Opinion 1/91 (Draft Treaty on the Establishment of the European Economic Area) EU:C:1991:490��4, 34, 52, 53 Opinion 2/91 (International Labour Organisation Convention) No 170 EU:C:1993:106��223, 255, 256, 259, 260 Opinion 2/92 (Third Revised Decision of the OECD on National Treatment) EU:C:1995:83�� 253 Opinion 1/94 (WTO Agreement) EU:C:1994:384��253, 256, 259 Opinion 2/94 (Accession to the European Convention on Human Rights) EU:C:1996:140��27, 42, 158, 167 Opinion 2/00 (Cartagena Protocol) EU:C:2001:664�� 222, 223 Opinion 1/03 (Conclusion of the New Lugano Convention) EU:C:2006:81��193, 195, 255, 256 Opinion 1/08 (General Agreement on Trade in Services) EU:C:2009:739�� 253 Opinion 1/09 (Draft Agreement on the European and Community Patents Court) EU:C:2011:123�� 4, 12, 43, 81, 106, 122, 284 Opinion 1/13 (Acceptance of New Contracting Parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction) EU:C:2014:2303�� 255 Opinion 2/13 (Draft Agreement on the Accession of the EU to the European Convention on Human Rights) EU:C:2014:2454�� 4, 12, 16, 158, 167, 168, 181, 251

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Opinion 1/15 (Draft Agreement on the Transfer of Passenger Name Record Data from the European Union to Canada) EU:C:2017:592�� 204 Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2017:376�� 253–56 Opinion 3/15 EU:C:2017:114�� 255 Court of First Instance/General Court Case T-201/96 Smanor v Commission EU:T:1997:98�� 286 Case T-177/01 Jégo-Quéré v Commission EU:C:2002:352�� 277 Case T-306/01Yusuf and Al Barakaat International Foundation EU:T:2005:331�� 261 Case T-315/01 Kadi EU:T:2005:332�� 261 Case T-351/03 Schneider Electric v Commission EU:T:2007:212�� 161 Case T-16/04 Arcelor v Parliament and Council EU:T:2010:54�� 70 Case T-450/12 Anagnostakis v Commission EU:T:2015:739�� 137 Case T-529/13 Balázs-Árpád Izsák and Other v Commission EU:T:2016:282�� 137 Case T-646/13 Bürgerschuss für di Bürgerinitiative Minority SafePack v Commission EU:T:2017:59�� 137 Case T-44/14 Costantini et al v Commission EU:T:2016:223�� 27, 137 Case T-257/16 NM v European Council EU:T:2017:130�� 188 European Court of Human Rights Avotinš v Latvia App no 17502/07 (2017) 64 EHRR 2�� 167, 182 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland App no 45036/98 (2006) 42 EHRR 1�� 167 Goodwin v UK and I v UK App no 28957/95 (2002) 35 EHRR 18�� 163 Matthews v UK App no 24833/94 (1999) 28 EHRR 361�� 126 Michaud v France App no 12323/11�� 167 MSS v Belgium and Greece App no 30696/09 (2011) 53 EHRR 2�� 187 Povse v Austria App no 3890/11 [2014] 1 FLR 944�� 182, 193 Tarakhel v Switzerland App no 29217/12 (2015) 60 EHRR 28�� 167 International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010�� 32 International Tribunal for the Law of the Sea Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union) Press Release ITLOS/press 141, 17 December 2009�� 252 Canada Secession of Quebec, Reference re [1998] 2 SCR 217�� 17, 32 Czechoslovakia Judgment of the Constitutional Court of 26 November 2008�� 67 Judgment of the Constitutional Court of 31 January 2012, File no Pl Us 5/11 or 5/12�� 49, 67

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Table of Cases Denmark

Judgment of the Supreme Court, First Chamber of 6 December 2016, Case 15/2014��42, 44, 49, 54 Germany Judgment of the Constitutional Court of 30 June 2009, BVerfG, 2 BvE 2/08��8, 13, 32, 39–41, 67, 124, 129 Judgment of the Constitutional Court of 6 July 2010, BVerfG, 2BvR 2661/06�� 67 Judgment of the Constitutional Court of 7 September 2011, BVerfg, 2 BvR 987/10�� 238 Judgment of the Constitutional Court of 21 June 2016, 2 BvE 13/13�� 236 Judgment of the Federal Constitutional Court of 12 October 1993, BVerfGE 89�� 32 Poland Decision of the Constitutional Court of 16 November 2011, SK 45/09�� 67 United Kingdom HP Bulmer Ltd v J Bollinger SA [1974] Ch 401�� 5, 63 United States Texas v White, 74 US 700 (1868)�� 17

1 What Constitution? A Rose by Any Other Name The reference in the title of this book to ‘EU constitutional law’ needs some explanation. It is not free from controversy, as some would still prefer to view the European Union (EU) as an intergovernmental organisation governed by public international law which does not have a constitution in the proper sense of the word and which thus renders the notion of EU constitutional law less (or even in-)appropriate. The doubts and outright opposition to the idea of an EU Constitution were brought sharply into focus by the fate of the Treaty establishing a Constitution for Europe (signed on 29 October 2004, hereinafter Constitutional Treaty of 2004).1 While the Treaty was ratified by many of the Member States, including on the basis of referendums in Spain and Luxembourg, referendums in France and then the Netherlands produced negative results.2 The ratification process was halted and the idea of establishing a ‘Constitution for Europe’ was abandoned. Instead, on 13 December 2007 the Member States signed the Treaty of Lisbon.3 The ratification and eventual entry into force on 1 December 2009 of the Treaty of Lisbon also encountered problems, in particular when an Irish referendum in June 2008 produced a negative outcome. The result of this referendum led not only Ireland but also two other Member States, Poland and the Czech Republic, to postpone their decision concerning ratification. However, in a second Irish referendum held in October 2009, a clear majority voted in favour of the Treaty. The Treaty entered into force following the final ratifications by Poland and the Czech Republic.4

1 [2004] OJ C310/1. See, eg J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006); G Amato and J Ziller, The European Constitution: Cases and Materials in EU and Member States’ Law (Cheltenham, Edward Elgar, 2007). 2 A Albi and J Ziller (eds), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International, 2007); J Ziller, ‘The End of Europe: A Flavour of Déjà-Vu. Reflections on the French Referendum and Its Aftermath’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Antwerp, Intersentia, 2009) 17; P Bursens and M Meijer, ‘Beyond First Order Versus Second Order Explanations of European Referendum Outcomes: Understanding the Dutch “Neen” and the Luxembourg “Jo”’ in ibid, 33. 3 Treaty on European Union and the Treaty on the Functioning of the European Union, as they result from the amendments introduced by the Treaty of Lisbon, [2008] OJ C115/1. See also J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 15 et seq; T Blanchet, ‘The Treaty of Lisbon: A Story in History or the Making of a Treaty’ (2011) 34 Fordham International Law Journal 1217. 4 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, [2010] OJ C83/1. According to Art 6 of the Treaty of Lisbon, the Treaty was to enter into force on 1 January 2009, provided that all the instruments of ratification had been deposited, or, failing that, on the first day of the month following the deposit of the last instrument of ratification.

2

What Constitution? A Rose by Any Other Name

That the passage was not smooth was perhaps to be expected. There is no denying that, in substance, the Lisbon Treaty incorporates important parts of the abortive Constitutional Treaty of 2004. The technique used is less heraldic, providing for amendments to the existing Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). And the grandiose symbols are gone; no mention is made of the (supra)national anthem or the European flag. But does changing the title consign all talk of a ‘Constitution’ to the history books, or does a rose by any other name smell as sweet? Historically, the modern-day process of European integration may be said to have begun when the aftermath of World War II saw the establishment of the Council of Europe (1949). That body has become a general forum for intergovernmental cooperation possessing some supranational features mainly in the field of human rights. Beyond Europe, other international organisations of a predominantly intergovernmental nature proliferated: for example, the United Nations (UN) and the wider ‘UN family’ with a number of Specialized Agencies as well as what is now the World Trade Organization. The notion of ‘constitutionalisation’ has even been used to refer to institutional and normative changes in the global legal order more generally.5 However, as will be explained in greater detail in chapter two, the EU, especially as it emerges from the Treaties of Maastricht (1992), Amsterdam (1997), Nice (2001) and Lisbon (2007), differs in many respects from these more traditional international organisations; it goes much further than global or public international law in providing for not only coordination and cooperation but also integration and supranational institutions. This process of ‘deeper’ integration, involving stronger supranational features, was initiated by the establishment, in 1951, of the European Coal and Steel Community and, in 1957, of the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). While the initial form of these supranational organisations, which counted only six founding Members, more or less confined them to economic integration, a much broader integration process, including a stronger political dimension, has become apparent through the Single European Act of 1986 and the Treaties of Maastricht, Amsterdam, Nice and Lisbon referred to above. The EEC became simply the European Community (EC), and even that no longer exists since the Treaty of Lisbon brought the whole edifice under the heading of European Union, launched already as an umbrella concept by the Treaty of Maastricht. That European integration is a process (and thus constantly evolving) is beyond doubt: the founding texts have proclaimed this since the very beginning, each subsequent Treaty marking ‘a new stage in the process of creating an ever closer union among the peoples of Europe’ (Article 1 TEU). That the ‘end’ of that process is not fixed forms the ideological and teleological basis for a study of the EU and what may be referred to as its ‘constitutionalisation’.6

5 See, eg J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009). See also J Habermas, Zur Verfassung Europas. Ein Essay (Berlin, Suhrkamp Verlag, 2011). 6 See, eg J Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe (Brussels, Éditions de L’université de Bruxelles, 1997); A Peters, Elemente einer Theorie der Verfassung Europas (Berlin, Duncker & Humblot, 2001); CWA Timmermans ‘The Constitutionalization of the European Union’ (2001–02) 21 Yearbook of European Law 1; C Barnard, ‘Introduction: The Constitutional Treaty, the Constitutional Debate and the Constitutional Process’ in

What Constitution? A Rose by Any Other Name

3

This integration process has progressively covered ever more areas and implied increased recourse to supranational mechanisms. But, perhaps paradoxically, it has also come to involve an ever greater number of European states, either as Member States or as closely associated neighbouring countries. As this third edition goes to print, the Union has grown from the initial six Members to 28 Member States with several associated States aspiring to become full Members. This remarkable enlargement of the Union seemed inexorable. Until, that is, the decision of the United Kingdom (UK), based on a referendum in June 2016, to make use of the procedure provided for in Article 50 TEU: on 29 March 2017, the UK notified the EU of its intention to withdraw from the Union (commonly referred to as ‘Brexit’).7 As provided for in Article 50(2), negotiations with the UK were initiated with a view to concluding an agreement, ‘setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’. According to Article 50(2), EU law shall cease to apply to the UK from the date of the entry into force of the withdrawal agreement or, failing any agreement, two years after the notification referred to above (that is, on 29 March 2019), unless it is decided to extend this period.8 As this edition goes to print, it is too early to predict the outcome of these negotiations or even the exact timetable of the withdrawal. Indeed, the only thing that is clear is the complexity of the process. What is, on the other hand, easier to predict, is that Brexit will not halt the European integration process. It is, we suggest, not controversial to note that the UK was something of a recalcitrant Member State: indeed, it was the stated opinion of the government of the time that it was only able to campaign for a vote to remain a member of the EU in the referendum referred to above, if a ‘new settlement for the UK’ was negotiated in order to supplement existing UK opt-outs from EU rules, with a view to placating British concerns about the direction and pace of European integration.9 Often hesitant to continue down the path to deeper integration, many initiatives to develop primary or secondary EU law fell by the wayside because of British opposition. Most recently, for instance, the unprecedented euro and sovereign debt crisis affecting the EU and its Member States around 2008–201210 would have led to a far more comprehensive review of the provisions on economic governance than was in the end the case but for the deployment by the United Kingdom of its veto

C Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford, Oxford University Press, 2007) 1; LFM Besselink, ‘The Notion and Nature of the European Constitution after the Lisbon Treaty’ in Wouters, Verhey and Kiiver, n 2 above, 261; K Tuori and S Sankari, The Many Constitutions of Europe (Farnham, Ashgate, 2010). 7 In the referendum of June 2016, 51.9% voted in favour of Brexit. Brexit has already provoked an abundance of legal and political literature and commentary. We will limit ourselves to mentioning a special issue of the (2016) 41 European Law Review, No 4, August 2016, ‘Brexit: What Next?’, and M Dougan (ed), The UK after Brexit: Legal and Policy Challenges (Cambridge, Intersentia, 2017). 8 A decision to extend the two-year period requires unanimity in the European Council (consisting of the Heads of State and Government of the 27 remaining Member States) and an agreement with the UK, see Art 50(3) TEU. 9 See, eg A Duff, ‘Britain’s Special Status in Europe: A Comprehensive Assessment of the UK-EU Deal and Its Consequences’, Policy Network Paper, March 2016, www.policy-network.net (accessed on 14 September 2017). The settlement never became binding EU law, as it was conditional on the UK deciding to remain a Member of the Union. 10 See, eg J-C Piris, The Future of Europe: Towards a Two-Speed EU? (Cambridge, Cambridge University Press, 2012) 1, 41–42. See further ch 14 in particular.

4

What Constitution? A Rose by Any Other Name

concerning the proposed amendment to the TFEU.11 As this edition goes to print, there are a number of ideas and initiatives to take the integration process further, including in the areas of economic and monetary policy, asylum and immigration and military defence12 and at least as far as primary law is concerned, it is not to be excluded that such amendments will be rendered less difficult to accomplish in a post-Brexit Union. Be that as it may, and in apparent contrast to the current feeling of ambivalence towards the integration process, the dynamic nature and constitutional character of the EU legal order is increasingly emphasised by the judges in Luxembourg. We say ‘apparent contrast’ because the quite remarkable achievements that have taken place in the name of that integration process do not make the headlines in the same way as lines of migrants queueing up for access to the Union. As early as 1986, the European Court of Justice (ECJ)13 characterised the Community Treaties as a ‘constitutional charter based on the rule of law’.14 More recently, the Court has also referred to the ‘constitutional principles of the EC Treaty’ and the ‘very foundations of the Community legal order’, which is ‘internal and autonomous’15 as well as the ‘constitutional status’ of the general principles of Union law.16 In Opinion 2/13, the ECJ observed that the EU ‘has a new kind of legal order, the nature of which is peculiar to EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation’.17 We are convinced that, while keeping in mind the highly dynamic character of the EU legal order, it is today both appropriate and useful to speak of an EU constitutional order and of EU constitutional law.18 One of the basic objectives of this book is therefore to illustrate and discuss the specific features of the EU and notably those which make it different from both intergovernmental organisations and independent states in the traditional sense. This implies an emphasis on the EU as a distinct and quite exceptional legal and constitutional order.

11 See the European Council Decision of 25 March 2011 amending Article 136 TFEU with regard to a stability mechanism for Member States whose currency is the euro, [2011] OJ L91/1. In the face of UK opposition to further Treaty amendment, the decision to prepare an intergovernmental agreement on stability, coordination and governance in the economic and monetary union was taken by the Euro Area Heads of State or Government on 9 December 2011; the agreement was signed on 2 March 2012 and entered into force on 1 January 2013. See further chs 2, 8(II) and 14 below. 12 See, eg the State of the Union Address by the President of the European Commission, Jean-Claude Juncker, before the European Parliament of 13 September 2017, http://europa.eu/rapid/press-release_SPEECH-17-3165_ en.htm (accessed on 14 September 2017). 13 According to Art 19 TEU, as amended by the Treaty of Lisbon, the full name of the EU judicial institution is the ‘Court of Justice of the European Union’. This institution includes the Court of Justice (hereinafter ECJ), the General Court (the former Court of First Instance) and specialised courts. 14 Case 294/83 Les Verts v Parliament EU:C:1986:166, para 23; Opinion 1/91 (Draft Treaty on the Establishment of the European Economic Area) EU:C:1991:490, para 21; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, para 281. 15 Joined Cases C-402/05 P and C-415/05 P Kadi, n 14 above, paras 285, 304 and 317. See also Opinion 1/09 of 8 March 2011 Draft Agreement on the European and Community Patents Court EU:C:2011:123, paras 65–67. 16 Case C-101/08 Audiolux and Others EU:C:2009:626, para 63. 17 Opinion 2/13 (Draft Agreement on the Accession of the EU to the European Convention on Human Rights) EU:C:2014:2454, para 158. 18 Nor are we the first commentators to think so: to cite but three grand oeuvres: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union, 2nd edn (London, Sweet & Maxwell, 2005) (although the third edition (2011) is entitled European Union Law); A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010); R Schütze, European Constitutional Law (Cambridge, Cambridge University Press, 2012). See also the references in n 6 above.

What Constitution? A Rose by Any Other Name

5

The ambiguities and divergent opinions relating to the concept of an EU constitution stem from the hybrid nature of the EU, which is situated somewhere between nation states and intergovernmental organisations (chapter two) and which, while being based on Treaties concluded by states, has taken on some of the competences and powers of those states (chapter three) giving them a life of their own (chapter four). A discussion of the system or hierarchy of norms, an element central to all constitutions, under any definition of that term, will follow (chapter five). However, the manner in which these norms have ‘flowed into the estuaries and up the rivers’19 to permeate the domestic legal order, notably via the principles of primacy, direct application and direct effect, will serve to explain more fully the unique nature of the EU as a legal and constitutional order (chapter six). Indeed, the decentralised nature of the integration regime cannot be overemphasised. Not only is EU law implemented primarily at the level of Member States rather than that of EU institutions, but it also addresses itself to an increasing extent directly to various sub-components of the Member States, such as national parliaments, courts and administrative authorities. Chapter seven identifies these various actors. Chapter eight will address another striking feature of the EU, often described as ‘differentiation’ or ‘variable geometry’. This notion refers to different territorial ‘circles’ or regimes of integration which are to be found inside the EU (for instance, the common currency which, as this edition goes to print, applies to 17 Member States) but which may also be applied externally, in its relations with what Article 8 TEU calls ‘neighbouring countries’ with which the Union is instructed to develop ‘a special relationship’. As the present book is not an introduction to EU law but to EU constitutional law, substantive EU law (such as the economic freedoms or EU environmental law) will be considered only to the extent that this is necessary for an understanding of the constitutional structure (and therefore appears mainly in chapter thirteen). Furthermore, an attempt will be made to spare the reader from institutional and procedural ‘nitty gritty’. The focus will instead be on structural issues. Thus, in addition to the general values, principles and objectives or apparently more technical rules on competence and power-sharing dealt with in the early chapters, we will also address the issue of democracy and the perceived deficit from which the EU suffers on the one hand (chapter nine) and the role of fundamental rights, including the principle of equal treatment, or non-discrimination, on the other (chapter eleven). The creation in 1992 of the EU, and perhaps in response to the expanding powers of the organisation and the increasing allegations of democratic deficit referred to above, brought with it a new perspective on the ‘peoples of Europe’ and introduced the notion of the European Union citizen (chapter ten). That the focus of the Union is less and less ‘economic’ is demonstrated in particular by the move beyond the internal market to the broader agenda of an area of liberty, security and justice, which includes issues such as immigration and asylum policy, and cooperation in criminal law matters (chapter twelve). A separate chapter (thirteen) on the internal market will certainly address economic integration, but the broader agenda is illustrated by the social and environmental dimensions

19 This is a quote from a famous English judge, Lord Denning, in HP Bulmer Ltd v J Bollinger SA [1974] Ch 401, 418.

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What Constitution? A Rose by Any Other Name

which form an integral part of that market. And a separate chapter on economic governance as the next step to deeper integration was added already to the second edition (chapter fourteen). The chapter focuses on the institutional and procedural reforms to EU monetary and economic policy, including the banking union, some of which have been introduced lately including, as already noted above, an amendment to the TFEU and the drafting of an intergovernmental agreement in the field, these reforms being of particular interest from a constitutional point of view. Attention will then turn to EU external relations, including an emerging common defence policy (chapter fifteen), not as an exercise for its own sake but because we believe that understanding the basic tenets of EU external relations means understanding a great deal about the EU itself, and why it sits uncomfortably with the dichotomy of states/ international organisations. Indeed, the hybrid nature of the EU, referred to above, is exemplified by the parallel existence of international agreements concluded by the EU alone, so-called mixed agreements concluded by the EU and its Member States, and agreements concluded solely by the Member States but which may be of relevance for Union law. The complex legal matrices which exist as a result of these three categories tell us a great deal about what the EU is, or is not, in a more general sense. Finally, the key element of any constitution, that it is respected and how that respect is secured, will be addressed mainly through the eyes of those who must ensure that ‘in the interpretation and application of the Treaties the law is observed’:20 the judges, including national judges (chapter sixteen). This chapter will also look at some non-judicial mechanisms to enhance implementation and enforcement of Union law. The French political philosopher Jean-Jacques Rousseau (1712–78) is reported to have called for a ‘good federative association’ (‘une bonne association fédérative’) in Europe.21 The EU does present elements of a federative association, but it is another question whether it is a good association. While this book cannot give any definitive answer to this question, we hope that it will provide some insight and food for thought intended to help the reader form his or her own opinion in this regard. And as Europe enters a new chapter of what continues to be a ‘work in progress’, we will use our final chapter (seventeen) to reflect on the soundness of the European construction and whether it resembles the suprematist composition of our front cover or is built on a constitutional order which is, or at least has the potential to become, simpler and more straightforward.

20

Art 19(1) TEU. A Rosas, ‘The European Union as a Federative Association’, European Law Lecture 2003, Durham European Law Institute (University of Durham, 2004) 1–3. 21

2 An Elephant That Cannot Be Defined? What the EU Is, and Is Not I. Introduction In an old Indian tale about an elephant and six blind men, the blind men all gave quite different descriptions of the elephant as each of them touched a different part of the animal. As European integration means very different things to different people, it is no wonder that the tale has been invoked to make a point about the Union.1 In the Indian tale, the king provided a more holistic view of the elephant, pointing out that the blind men were all both right and wrong. With respect to the EU, however, even one and the same observer may, despite (or perhaps because of) excellent eyesight, perceive the Union in various ways depending on the context. Indeed, the constitutional structure of the EU displays an at times bewildering array of competences, powers and decision-making procedures which are often deliberately drafted to mean all things to all men. To complicate matters further, the EU is also a ‘moving target’, which has (at least since the late 1980s) undergone an almost constant string of amendments to the Treaties on which the Union is founded. And so, although, as this third edition goes to print, less than seven years have elapsed since the publication of the first edition (in November 2010), the sovereign debt crisis affecting the euro area in particular, and more recently, the refugee and immigration crisis, have crystallised the need to strengthen both economic governance and external border control and the handling of asylum and refugee issues in general. The decision of the UK, based on the referendum of 23 June 2016, to withdraw from the Union of course strengthens the perception of an ever changing union, rather than the ‘ever closer union’ proclaimed in Article 1(1) TEU. The multifaceted nature of the EU in a constitutional sense is reflected in the varying degree of power and influence that the Union is able to wield both on the world stage and in relation to its Member States. Thus, viewed from the outside, the analogy of an elephant can be invoked to describe the sheer bulk of the EU as one of the world’s leading trading blocks.2 Indeed, in matters of international trade, the EU is not only a single customs

1 DJ Puchala, ‘Of Blind Men, Elephants and International Integration’ (1972) 10 Journal of Common Market Studies 267. 2 A Rosas, ‘EU maailmanpolitiikassa—elefantti vai hanhilauma?’ [‘The EU in World Politics: An Elephant or a Flock of Geese?’] in O Korhonen (ed), Rooman sopimus 50 vuotta—suomalaisia näkökulmia Euroopan kehitykseen [The Treaty of Rome 50 Years: Finnish Perspectives on European Developments] (Turku, Schuman-seura, 2007) 93. See also ch 15(I), n 2.

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An Elephant That Cannot Be Defined? What the EU Is, and Is Not

union but it also, in the context of its common commercial policy, exercises an exclusive competence vis-à-vis its Member States to negotiate and conclude international trade agreements. At the other extreme, the EU has so far played only a marginal role as a distinct actor in the area of security and defence. True, there is now, in the context of the Common Foreign and Security Policy (CFSP), a Common Security and Defence Policy (CSDP), which has enabled the Union to launch a number of military and civilian operations in third countries. But the inability of the EU to take a coherent and forceful stand on some important security issues such as the military operations undertaken in Iraq (2003), Libya (2011) and Syria (on-going) may bring to mind a disorderly gaggle of geese rather than a solid and powerful elephant. We will come back to this question in chapter fifteen. Internally, too, the cohesion of the by now well-established internal market, an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured (Article 26 TFEU), contrasts sharply with questions of internal law and order, which still largely belong to the competence of the Member States (although it is true that the fight against serious crime in general and terrorism in particular has triggered a host of new EU normative measures). That the Treaty of Lisbon introduced a number of novelties in the areas of both security and defence and the fight against crime serves simply to underline the constantly changing nature of the animal we are trying to define—perhaps more reminiscent of a chameleon than an elephant. As will be explained in chapter three below, the question of EU versus Member State competence is often not an either–or situation; competences may be ‘shared’ between the EU and its Member States, or they may be exercised ‘in parallel’. In some areas the Union may have a subsidiary competence to support, coordinate or supplement the actions of the Member States. Shared competence covers a number of key areas, including the protection of the environment, consumer protection, transport, energy, and some aspects of labour and social policy and public health. Research and international development cooperation and humanitarian aid are prime examples of competence being exercised in parallel; action taken at one level does not preclude similar action taken or aid granted by the other level. Culture, tourism and education on the other hand illustrate the type of area where action by the EU can be of a subsidiary nature only. That the picture of the EU must be heterogeneous is therefore no surprise and helps to explain why the descriptions of the EU vary to such a large extent.3 Labels used to characterise the Union thus range from the somewhat irreverent ‘white elephant’ to the rather more technical ‘international organisation’, ‘association of sovereign states’, ‘federative association’, ‘Community’, ‘political and economic union of states’, ‘supranational organisation’, ‘confederation’, ‘federation’ or ‘incomplete federation’, ‘democratic polity of states and citizens’ and ‘post-modern state’. In some international conventions, rather than 3 See, eg A Rosas, ‘The European Union as a Federative Association’, European Law Lecture 2003, Durham uropean Law Institute (University of Durham, 2004); S Oeter, ‘Federalism and Democracy’ in A von Bogdandy E and AJ Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 55, 57 et seq; J McCormick, European Union Politics (Houndmills, Basingstoke, Palgrave M acmillan, 2011) 27–41; J Hoeksma and D Schoenmaker, A Polity Called EU (Oisterwijk, Wolf Legal Publishers, 2011). In the judgment of the German Federal Constitutional Court of 30 June 2009 concerning the Treaty of Lisbon (BVerfG, 2 BvE 2/08), the EU is characterised as an ‘association of sovereign national States’ (Staatenverbund), at para 229. But see section III at nn 20–23 below.

Historical Development

9

restrict access to nation states as such, the accession clause makes reference to ‘regional economic integration organisations’ (a so-called REIO clause) in order to allow the EU to adhere,4 and in one human rights convention, the word ‘economic’ has been omitted from this formula.5 The EU in its constitutive instruments refers to itself simply as the ‘Union’, and Article 1 TEU proclaims the Treaty to mark ‘a new stage in the process of creating an ever closer union among the peoples of Europe’. This prompts the question in our introduction: ‘what is in a name’? Perhaps it is more useful to look beyond the labels to what the EU actually does.

II. Historical Development The complex nature of the EU can only be explained by the gradual historical process set in motion by the establishment of the European Coal and Steel Community in 1951. Unlike the Council of Europe, which was founded in 1949 as a more intergovernmental cooperation organisation, the deeper integration process launched in 1951 included a clear supranational aspiration. On the other hand, in accordance with what has been called ‘functional’ integration, this project covered a very limited area at first (coal and steel), and was only broadened step by step, eventually becoming the much more comprehensive economic, social and political union of states of today. This bigger picture was envisaged from the outset. In the famous Schuman Plan, launched by Robert Schuman, French foreign minister, on 9 May 1951, the proposed Coal and Steel Community was not an end in itself: ‘Europe will not be made at once, nor according to a single master plan of construction. It will be built by concrete achievements, which create de facto dependence, mutual interests and the desire for common action.’6 Placing FrancoGerman production of coal and steel under one common high authority in an organisation open to the participation of other European states was to be the ‘first step for the European Federation’. Thus, a lever would be introduced to encourage the building of ‘a wider and deeper community between countries that had continually opposed each other in bloody divisions’. As was stressed by another architect of this visionary European integration project, Jean Monnet, experience had shown that intergovernmental cooperation could not guarantee peace and prosperity in Europe.7 Only common institutions and rules could prevent a repeat of the First and Second World Wars, build a lasting framework for peace, democracy and prosperity, and give Europe its rightful place on the world stage.

4 See, eg D Verwey, The European Community, the European Union and the International Law of Treaties (The Hague, TMC Asser Press, 2004) 167–71. To the extent that these clauses pre-date the Treaty of Lisbon, the legal person envisaged is arguably the EC rather than the (then) entire EU conglomerate or the (then) CFSP part of the EU. 5 Art 44 of the UN Convention on the Rights of Persons with Disabilities, adopted by the UN General Assembly on 13 December 2006 and opened for signature on 30 March 2007. It was concluded by the EU by Council Decision 2010/48/EC of 26 November 2009, [2010] OJ L23/35. 6 English version provided by the Schuman Project, www.schuman.info (accessed on 15 December 2009). 7 See J Monnet, Mémoires (Paris, Fayard, 1976).

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An Elephant That Cannot Be Defined? What the EU Is, and Is Not

In the wake of those first steps, a series of agreements between the ever-increasing number of Member States have ensued: 1957: the creation of the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). 1965: the creation of a single institutional framework for the then three Communities, consisting notably of the European Parliament, the Council, the Commission and the Court of Justice. 1976: the decision to hold direct elections for the European Parliament (the first elections were held in 1979), and a gradual but constant development of the powers of the P arliament notably in the budgetary and legislative fields. 1986: the Single European Act amended the EEC Treaty in many important respects without altering the basic objectives of the Community. These amendments brought new competences such as social policy and environment as well as a focus on the completion of the single market (notably via the introduction of qualified majority voting in the Council). 1992: the Treaty of Maastricht extended the objectives of the Community, dropped the ‘economic’ label to form the European Community (EC) and introduced the concept of the European Union (EU) via a new Treaty on European Union (TEU). Under this broader umbrella, new policies and forms of cooperation intended to supplement the existing Communities were created (the Second and Third Pillars of the EU), the concept of citizenship of the Union was introduced and the framework for a single currency was set out. 1997: the Treaty of Amsterdam extended once again the objectives of the Community, transferred a part of the Third Pillar to the more supranational First Pillar (the European Community proper) and integrated the Schengen regime (a convention on the abolishment of internal border controls) into the institutional framework of the Union. 2001: the Treaty of Nice contained numerous, though generally speaking less significant, amendments to the Treaties, consisting mainly of the institutional reform deferred from the negotiations on the Treaty of Amsterdam. 2002: the extinction of the Coal and Steel Community.8 2007: the Treaty of Lisbon, while not including all the changes envisaged in the abortive Constitutional Treaty of 2004, provides for some potentially far-reaching developments, including the amalgamation of the three Pillars into a less disparate structure modelled on the Community Pillar and introduces a number of important institutional innovations, notably the creation of a President of the European Council and a High Representative of the Union for Foreign Affairs and Security Policy (the Foreign Affairs Representative, sometimes referred to in common parlance as the ‘EU foreign minister’9).10

8 The original Treaty having been concluded for a period of 50 years, the Coal and Steel Community ceased to exist in 2002, when its assets were transferred to the European Community. 9 The Constitutional Treaty of 2004 referred explicitly to the ‘Union Minister for Foreign Affairs’ (see, eg Art I-28). 10 On the changes brought about by the Lisbon Treaty generally see, eg J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010); P Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (Oxford, Oxford University Press, 2010).

Historical Development

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2012: a reform of economic and monetary policy via, inter alia, an amendment to Article 136 TFEU, new legislation relating to the so-called Stability and Growth Pact and an intergovernmental agreement applicable in the first place to the Member States whose currency is the euro.11 2016: the decision of the UK to withdraw from the Union. While the Treaty of Lisbon abolished the Pillar structure, with its divisive terminology, bringing all areas of action under the heading of the European Union, we propose that an overview of the structure as it existed prior to these changes is essential to an understanding of the heterogeneous nature of the EU constitutional order: TEU (before the Treaty of Lisbon) First Pillar

Second Pillar

Third Pillar

Title Common provisions

Titles II–IV: Amendments to the Community treaties

Title V: CFSP

Title VI: Police and judicial cooperation in criminal matters

Title VII: Enhanced cooperation

Title VIII: Final provisions

Arts 1–7

Arts 8–10

Arts 11–28

Arts 29–42

Arts 43–45

Arts 46–53

It is an oft-overlooked fact that the EU as a concept covered not only the Second and Third Pillars but also the original Communities (the EC and Euratom, as well as the Coal and Steel Community before its expiry in 2002) and thus the domain of supranational Community law with its acquis communautaire (the Community set of principles and rules in force at any given moment in time) as well as provisions which were common to the three Pillars. It is the differences between the various parts of the pre-Lisbon TEU which gave most cause for comment (and confusion). To take one of the most obvious differences, the First Pillar (the Community law framework) provided for the adoption of clearly legislative acts (mainly in the form of regulations and directives), normally by qualified majority voting, while under the CFSP (the Second Pillar) the Council took decisions of a non-legislative nature and then only by unanimity. Similarly, while acts adopted under the First Pillar have always been subject to judicial control by the Union Courts, CFSP decisions have been kept outside that jurisdiction. To complete the confusion, Third Pillar acts were situated somewhere between legislative acts and CFSP decisions and could, under certain circumstances, be made subject to the jurisdiction of the Court of Justice, although the matter was left to the discretion of each Member State. The Constitutional Treaty of 2004 proposed a radical overhaul of the above structure. These changes were by and large taken over in the Treaty of Lisbon. Under this Treaty, the Third Pillar, concerning police and judicial cooperation in criminal matters, disappears and its provisions are revamped to correspond more or less to the former Community law model. While retaining some special features, the Second Pillar (the CFSP) has become 11 See, eg European Council Decision of 25 March 2011 amending Article 136 TFEU with regard to a stability mechanism for Member States whose currency is the euro, [2011] OJ L91/1. See also ch 1 above at n 11 and ch 14 below.

12

An Elephant That Cannot Be Defined? What the EU Is, and Is Not

more integrated into the overall EU framework. The EC as a concept and separate legal person has disappeared and the TEC has been renamed the TFEU. Paradoxically, Euratom remains as a distinct Community after the entry into force of the Treaty of Lisbon.

III. The Union Today These developments have led to a unique organisation covering, in one form or another, almost all fields of societal activity, including such areas as criminal law, immigration and asylum policies, and security and defence policy, in other words, matters which have traditionally been seen as core ingredients of national sovereignty (the powers of the nation state). The result is a system of rules and remedies which stands up to comparison with the idea of national constitutional law, thus meriting the label ‘supranational’ and prompting a discussion as to the nature of the Union and the existence of what may be referred to as EU constitutional law. Indeed, as early as 1963, the European Court of Justice (ECJ) held that the Community constituted ‘a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals’.12 The following year, the Court went even further: 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, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.13

These considerations led the Court to conclude that the law stemming from the Treaty, ‘an independent source of law’, cannot ‘because of its special and original nature’ be overridden by domestic legal provisions, ‘however framed’, and that the transfer of powers from the Member States ‘carries with it a permanent limitation of their sovereign rights’. These early landmark judgments were, of course, just the beginning. In particular, the reservation made in both judgments concerning the scope of the transfer of powers—‘albeit within limited fields’—is no longer valid14 and the institutional developments presented above have certainly done nothing to negate the early view of the Court. It is trite to say that the EU is both complex and unique. The above discussion should have explained to some extent why, and in what respects, that is so. We hope that the ensuing chapters will provide more flesh on the bones. But while we do not wish, at this juncture, to present a single and simple definition of our elephant or tie the EU firmly and unequivocally to this or that traditional concept of public international or constitutional

12

Case 26/62 van Gend & Loos EU:C:1963:1. Case 6/64 Costa v ENEL EU:C:1964:66. 14 See Opinion 1/09 (Draft Agreement on the European and Community Patents Court) EU:C:2011:123, para 65 where the Court, instead of the earlier reference to ‘limited fields’, noted that the transfer of powers has taken place ‘in ever wider fields’. The latter formula has been repeated in later decisions, see, eg Opinion 2/13 of 18 December 2014 (Accession to the European Convention on Human Rights) EU:C:2014:2454, para 157. 13

The Union Today

13

law (confederation, real union, federation …),15 we do tend to think that, to the extent a distinction is made between ‘federation’ and ‘confederation’, the EU, while displaying the features of both, seems in its daily workings, and in certain areas in particular, to have come closer to a federation than a confederation (assuming that the term federation can be used to describe entities other than nation states).16 That said, the UK decision, based on the referendum of 23 June 2016, to withdraw from the Union highlighted the ultimate right of Member States, recognised in Article 50 TEU, to withdraw from the Union, a right often associated with confederations rather than federations. Perhaps the term ‘federative’ is the most appropriate,17 given, on the one hand, the dynamic nature of the constitutional order and, on the other, the reality that the EU is not a federal state. Moreover, we agree with those who consider the EU as a prime example not only of multilevel governance but also an integrated legal system and structure, where cooperative networks of European, national and other, including private, actors interact in a way which blurs the lines between the different levels and players.18 Whether to analyse the EU also in terms of ‘constitutional pluralism’19 is more open to debate and linked to the question of the relationship between the Union and national legal orders, which we will come back to in subsequent chapters. With this in mind, the characterisation made in some EU documents,20 or in the words of the German Constitutional Court, of the EU as an association of ‘sovereign States’21 appears somewhat inadequate. The EU can certainly be seen as an ‘association’,22 but to call the Member States ‘sovereign’ is to use the notion of sovereignty in such a broad way that it loses its original meaning of more or less absolute constitutional power.23 In fact, the usefulness of the term sovereignty to characterise even nation states which are not members of the EU may be called into question in an international system which may be moving towards a legal order of global governance.24 In any case, the basic Treaties do not

15 See, eg R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press, 2009); McCormick, n 3 above, 34–41. 16 For a forceful defence of the thesis that the EU is a federation based on cooperative federalism although not a federal state see Schütze, n 15 above. 17 Rosas, n 3 above. 18 See, eg HCH Hofmann and AH Türk (eds), EU Administrative Governance (Cheltenham, Edward Elgar, 2006); C Barnard and O Odudu, ‘Outer Limits of European Union Law: Introduction’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 1; HCH Hofmann, ‘Which Limits? Control of Powers in an Integrated Legal System’ in ibid, 45. This is not to deny that the EU and its Member States, too, are subject to a wide array of multilevel regulation at a more global level, see A Follesdael, RA Wessels and J Wouters (eds), Multilevel Regulation and the EU: The Interplay between Global, European and National Normative Processes (Leiden, Martinus Nijhoff Publishers, 2008). 19 See, eg M Avbelj and J Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Oxford, Hart Publishing, 2012). 20 See, eg European Council in Edinburgh, 11–12 December 1992, Conclusions of the Presidency, Part B (Denmark and the Treaty on European Union). 21 Judgment of 30 June 2009, n 3 above. 22 Rosas, n 3 above, uses the term ‘federative association’. 23 One can certainly speak of ‘shared’ or ‘divided’ sovereignty (see, eg Schütze, n 15 above, 5) but this seems a far cry from the original meaning of the concept. On different notions of sovereignty in relation to the EU see, eg Oeter, n 3 above, 62 et seq. In a speech of 26 September 2017, the French President Emmanuel Macron has linked the concept of sovereignty to the Union itself (‘une Europe souveraine, unie, démocratique’). 24 See, eg Follesdael, Wessels and Wouters, n 18 above; J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009); A Rosas, ‘The Death of International Law?’ (2009) 20 Finnish Yearbook of International Law (Oxford, Hart Publishing, 2011) 215.

14

An Elephant That Cannot Be Defined? What the EU Is, and Is Not

refer to the sovereignty of Member States, nor even to their independence (Article 21(2)(a) TEU refers to the independence of the Union …). Of course, if ‘sovereignty’ simply means the right to withdraw, then Member States are by definition sovereign, as recognised in Article 50 TEU and as illustrated by the UK decision to do just that, based on the referendum of 23 June 2016. It nevertheless remains true that the intensity of European integration is thin in many areas for which the Member States retain primary or sole responsibility; that the limits of Union competence are governed by the principle of conferral, in other words, that the Union can 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’ and that competences not so conferred remain with the Member States (Article 4(1) and Article 5(2) TEU); and that, particularly in the TEU as amended by the Treaty of Lisbon, the Union is ordained to respect not only the national identities of Member States and their equality before the Treaties, but also their essential state functions (Article 4(2) TEU).25 According to the sixth recital of the TEU, the authors desire ‘to deepen the solidarity between their peoples while respecting their history, their culture and their traditions’.

IV. State-like Features In order to assist the blind men in their task of defining the elephant, an attempt will be made to list those characteristics of the EU which distinguish it from intergovernmental organisations. This will be followed, in the next section, by a list of features which distinguish it from nation states. The state-like features of the EU include: (i) an autonomous legal order, which provides for a comprehensive hierarchy of norms, consisting notably, and in descending order, of primary law (the basic treaties, general principles of EU law, etc), international agreements concluded by the EU, regulations, directives and other legislative acts adopted by the European Parliament and/or the Council, delegated acts adopted by the Commission and implementing acts adopted by the Commission, or in specific cases, the Council; this legal order also spells out in some detail the principles for the attribution of competences and powers between the EU and its Member States (such as the principles of conferral, subsidiarity and proportionality, respect for national identities, primacy of EU law and loyal cooperation); (ii) rules (in primary and secondary law) addressed directly to sub-components of the Member States. In addition to the principles of direct applicability and direct effect (listed below), written Union law includes provisions relating to the powers of

25 A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 Common Market Law Review 1417 at 1425, observe that ‘the fact that the terminology refers to the respect for national identity, rather than State sovereignty, shows the depth achieved in European integration’. On the principle of respect for national identity see further E Cloots, National Identity in EU Law (Oxford, Oxford University Press, 2015) and section V at n 36 and ch 4(IV) below.

State-like Features

15

national parliaments, courts and administrative authorities, and the role of regional and local self-government. These sub-components of the Member States are dealt with as part of a federative structure in a manner going beyond the traditional dichotomy between an international organisation and its Member States; whilst Union law, on the one hand, and national law, on the other, can still be seen as distinct legal orders, they have become intertwined to such an extent that they can today be seen as parts of a common legal system; (iii) power to legislate, in most cases by majority voting. Legislative acts are often directly applicable in the Member States’ legal orders and may create legal rights and obligations for individuals (direct effect), including, in many cases, those between private parties (horizontal direct effect), which in case of conflict prevail over national law (principle of primacy of Union law); (iv) exclusive competence to legislate in certain, albeit limited, areas and an obligation on Member States to refrain from exercising their competence in a shared area if the Union has already exercised its competence (principle of pre-emption, Article 2(2) TFEU) and from taking any measure which could jeopardise the attainment of the Union’s objectives (principle of loyal cooperation, Article 4(3) TEU); (v) a system of democratic governance including basic provisions on representative democracy supplemented by participatory elements and a parliament which, according to Article 10(2) TEU, represents the citizens of the Union; the European Parliament exercises legislative and budgetary functions (jointly with the Council) as well as certain functions of political control and consultation; (vi) a comprehensive system of judicial and non-judicial controls providing for compulsory jurisdiction and various legal actions and legal remedies, including the settlement of disputes of a constitutional nature between the EU political institutions and between them and the Member States, as well as litigation involving private parties, and encompassing not only the Union Courts in Luxembourg—the ECJ, the General Court (formerly the Court of First Instance) and specialised courts26—but also the national courts of the Member States as well as Union control bodies of a non-judicial character (the European Commission, the European Ombudsman, and so on); (vii) an ‘internal’, and in this sense constitutional, set of fundamental rights (deriving from general principles of Union law as well as the Charter of Fundamental Rights of the European Union), distinct from international human rights instruments; the Treaty of Lisbon elevates the Charter to the level of primary law and, as will be elaborated upon below, contains some core principles which may even take precedence over other parts of primary law; (viii) a concept of territory and therefore external borders, as distinct from the internal market, which according to Article 26(2) TFEU shall comprise ‘an area without

26 Until recently, there has been one specialised court in existence, namely the EU Civil Service Tribunal established in 2004 (Council Decision 2004/752/EC, Euratom of 2 November 2004, [2004] OJ L333/7). In September 2016, the Tribunal was integrated into the General Court and thus disappeared as a separate judicial body (Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union annexed to the TEU and the TFEU, [2015] OJ L341/14).

16

An Elephant That Cannot Be Defined? What the EU Is, and Is Not

internal frontiers’, and an evolving immigration and asylum policy, focusing on population flows from non-EU countries (third states) and the status of third-country nationals, including asylum-seekers and refugees, once inside the EU area; (ix) a concept of citizenship which, while based on the nationality rules of the M ember States, implies some specific rights, including the right to reside and move freely within the EU and to vote in European and local elections in the country of residence rather than in the country of nationality. The ECJ has described EU citizenship as being ‘destined to be the fundamental status of nationals of the Member States’27 and has deployed the concept in a string of fairly recent judgments as an ideological principle to back up interpretations of EU primary and secondary law favourable to free movement; (x) an economic and monetary union whose currency, the euro, has replaced the national currencies of the 19 Member States that have already adopted it, and which, according to a Treaty-based programme, should gradually expand to most, if not all, Member States; in 2010–2012, the sovereign debt crisis affecting the euro area as a whole and some Member States whose currency is the euro particularly severely led to a number of new measures, including an intergovernmental agreement and new legislation relating to economic and financial governance and surveillance as well as institutional innovations such as the creation of financial stability mechanisms and an accompanying Treaty amendment as well as the gradual establishment of a banking union;28 (xi) a concept of external relations, which implies, inter alia, a diplomatic service (the European External Action Service) as well as a web of bilateral trade and cooperation agreements concluded with third states and adherence—albeit often together with some or all of the Member States (mixed agreements)—to a range of multilateral treaties, including conventions relating to international trade, environmental protection and human rights;29 (xii) references in primary law (Article 21(2) TEU) to the safeguarding of the ‘values, fundamental interests, security, independence and integrity’ of the EU and an evolving common security and defence policy (CSDP) ‘which will lead to a common defence’ when the European Council, acting unanimously, so decides (Article 42(2) TEU). Some of these features are perhaps not unique to the EU, but it is fair to say that, as a whole, they are not associated with intergovernmental organisations, or, if they are, they are to be seen as exceptions or even anomalies. For instance, intergovernmental organisations cannot normally legislate (in the strict sense of the term) for their Member States and, to the extent that they can take binding decisions, these decisions are not directly applicable in the Member States’ legal orders unless such an effect is recognised in the national legal order itself.30 Nor do intergovernmental organisations have a concept of population and

27

This characterisation was first made in Case C-184/99 Grzelczyk EU:C:2001:458. See n 11 above. 29 At the time of writing, there is only one human rights convention which has been concluded by the EU, n 5 above, but Art 6(2) TEU provides for EU accession to the European Convention on Human Rights (but see Opinion 2/13, n 14 above, which will be discussed in ch 11). 30 See, eg K Skubiszewski, ‘International Legislation’ in R Bernhard (ed), Encyclopedia of Public International Law, Instalment 5 (1983) 97; H Schermers, ‘International Organizations, Resolutions’ in ibid, 159. Both authors, 28

Non-state-like Features

17

c itizenship or possess their own currency—and if they conclude international agreements, these agreements do not normally constitute substantive, ‘law-making’ conventions but concern more directly the administrative or operational functioning of the organisation in question (headquarters agreements, operational arrangements, and the like).

V. Non-state-like Features Notwithstanding the impressive list of what we have called ‘state-like features’, there are some important characteristics of the EU which generally distinguish it from nation states, including federal states such as Germany and the US. The following points seem particularly significant: (i)

the most important parts of EU primary law, notably the basic Treaties (the TEU, the TFEU and the Euratom Treaty), are treaties concluded between the Member States; new treaties or amendments to existing ones do not, as a general rule, enter into force before they have been ratified by all Member States;31 not only can each Member State veto most proposed amendments to the Treaties but it can also, as recognised in Article 50 TEU and illustrated by the UK decision of 2016, decide to withdraw altogether (although it has to be remembered that there may also be states g enerally considered to constitute federal states whose constitution recognises the right to withdraw, or where this question is at least open to debate);32 (ii) in matters traditionally seen as core elements of national sovereignty, such as s ecurity and defence, taxation, immigration and penal law, the Member States still retain significant powers; in the area of security and defence policy, in particular, EU decisions as a rule require unanimity in the Council and the role of the European Parliament remains all but non-existent; while there is an evolving common defence policy, a common defence, although foreseen in the TEU, has not been established by the European Council; (iii) the Member States have their own national foreign policy (albeit exercised within certain common parameters) and still adhere in their own name to many important intergovernmental organisations and international treaties; in particular, they, and not the EU as such, are members of the UN and most of its Specialized Agencies, and are parties to most of the conventions drawn up under the auspices of that organisation; even the relations between the EU Member States continue to be regulated, in certain instances, by public international law rather than EU law, although it is true that the space for the former is greatly diminished; however, deal with the European Communities under the heading of international organisations (although they do mention their particularities). 31

On the exceptions introduced mainly by the Treaty of Lisbon, see ch 4(II) below. This was the case in the Union of Soviet Socialist Republics, Art 72 of the 1977 Constitution. In the US, the question was open to fierce debate especially before the Civil War, which, by the force of arms, ‘settled’ the question in favour of non-secession, as recognised by the US Supreme Court in Texas v White, 74 US 700 (1868) (the States had entered into ‘an indissoluble relation’ and the federal Constitution, ‘in all its provisions, looks to an indestructible Union, composed of indestructible States’, 725). As to Canada, the Supreme Court, in Reference re Secession of Quebec [1998] 2 SCR 217, did not categorically rule out the possibility of a right of secession for the component States. 32

18

An Elephant That Cannot Be Defined? What the EU Is, and Is Not

(iv) the Union has no power to tax in the strict sense; its main source of income continues to be contributions from its Member States and, although it does receive customs duties and a share of value added tax (VAT), there is agreement that the overall Union budget should not amount to more than 1.24 per cent of gross national income in the EU;33 the Union ‘is a rule-making machine rather than an instrument for raising revenue for spending purposes’;34 despite the common currency, the Union’s competence and powers in the field of economic and employment policies have been limited, consisting mainly of coordination rather than government—although, as was noted above, the sovereign debt crisis of 2010–2012 has triggered steps in the direction of enhanced economic and financial governance; (v) the EU concepts of territory and population (citizenship) are derived from and do not go beyond the territory and nationality of the Member States; the EU lacks competence to modify the territory of the Member States or their definition of nationality (they determine the scope of the EU territory and population and not the other way around); (vi) indeed, contrary to the idea of a nation state, the EU concept of territory is relatively fluid and pluralist in terms of the territorial reach of various competences (in other words, the degree and intensity of integration may be different for different M ember States or parts of Member States); differentiation, flexibility and opt-outs apply in areas such as the common currency (the euro) and the area of freedom, security and justice, including the Schengen regime (abolishment of internal border controls); an active neighbourhood policy, on the other hand, renders a number of EU regimes and rules directly or indirectly applicable in neighbouring non-EU states (in addition to the Schengen area, one important example is the European Economic Area, which extends the internal market rules to Iceland, Liechtenstein and Norway); at the time of writing, the future status of the UK as a non-member is still unknown); (vii) while the scope and intensity of integration have increased significantly, there is no unequivocal move towards a federal state with an all-encompassing system of supranational competences and institutions; the EU retains certain intergovernmental characteristics akin to an international organisation and, at the institutional level, the strengthening of the status of the European Council, consisting mainly of the heads of state or government of the Member States, by the Treaty of Lisbon can even be seen as a certain step back towards more ‘intergovernmentalism’. This is not an exhaustive list. One important feature, which is not listed, is the principle of conferral, which implies that the Union only enjoys the competences attributed to it (Article 5(2) TEU).35 This principle, on the other hand, is not unknown in the constitutions of certain federal states and it is therefore open to debate whether the principle of conferral amounts to a state or a non-state feature. Neither can it be asserted that the obligation of

33 The corresponding figure for the Member States, including their regional and local levels, is between 40 and 50%, which reflects the fact that the EU does not finance public services or welfare benefits. 34 S Korkman, Economic Policy in the European Union (Houndmills, Basingstoke, Palgrave Macmillan, 2005) 59. 35 According to Art 5(2) TEU, 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’.

Non-state-like Features

19

the Union, expressed in Article 4(2) TEU, to respect the national identities of the Member States as well as their essential State functions would be totally out of place in the context of a federal state.36 The same goes for the principles of subsidiarity, which instructs the Union, in areas which do not fall within its exclusive competence, to act only when the objectives of a proposed action cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level (Article 5(3) TEU), and proportionality, which provides that the content and form of Union action shall not exceed that which is necessary to achieve the objectives of the Treaties (Article 5(4) TEU). It is to these principles as well as the distinction made in the TFEU between different types of competence (exclusive, shared or other) that we shall now turn.

36

See at n 25 above.

3 Marking the Territory: Principles Governing Union Competences I. Introduction The issue of competence is a perfect example of the complex nature of the EU and its intertwining of the national and supranational levels of governance. It would perhaps be easier to categorise this aspect of the Union if the Treaties provided a short list of competences, clearly defined and within a limited area, or a clear list of particular sectors or particular functions declared to fall completely outside the remit of EU law; even a clear and exhaustive list of sectors or functions falling within the remit of the EU, as was originally the case with the coal and steel sectors, would help in this respect. No such list exists. Competence in the European Union has always been described as functional and extends to what is necessary to achieve the objectives and tasks laid down by the Treaties, including the ‘catch-all’ provision in Article 352 TFEU, which gives the Council the power to adopt legislative measures to attain one of the objectives set out in the Treaties even when the necessary powers are not explicit in other provisions of primary law. Given the breadth of these objectives, the principle of conferral has appeared to operate as an attribution of powers to the Union and a corollary residuary competence of the Member States, with few express limits placed on Union action. This has led some observers to note that the Treaties do not provide for any ‘nucleus of sovereignty that the Member States can invoke, as such, against the [Union]’.1 Whether the Union legal order has operated to bind the Member States in ways that they never intended will be considered in section III of chapter four below. What is clear is that it was this perception of uncontrolled spread of competence that led to the call for greater clarity articulated in the Laeken Declaration of 2001,2 leading up to the Constitutional Treaty of 2004 (which never entered into force) and the Treaty of Lisbon. The text of Articles 4(1) and 5(2) TEU, as amended by the Treaty of Lisbon, now contains overt reference not only to the principle of conferral itself but also to the fact that competences not conferred on the Union remain with the Member States. Article 4(1) is followed 1 K Lenaerts, ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 American Journal of Comparative Law 205 at 220; cited by R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press, 2009), 9, 151. 2 Laeken Declaration on the Future of the European Union, Annex I to the Conclusions of the Laeken European Council, 14–15 December 2001, SN 310/1/01 REV 1. See also K Lenaerts, ‘La déclaration de Laeken: premier jalon d’une Constitution européenne?’ (2002) 10 Journal des tribunaux—droit européen 29; K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 59–60.

Introduction

21

by a provision instructing the Union to respect the national identities and the essential state functions of the Member States (and specifying that ‘national security remains the sole responsibility of each Member State’). In addition, Article 5 TEU expressly links the issue of competence to the principles of subsidiarity and proportionality, which govern the use of competence in accordance with a Protocol annexed to the Treaties.3 The debate on competence has, historically, centred around two issues: the conferral of power to the Union level and the use of that power by the Union institutions. The first of these issues refers simply to the self-evident (at least to those familiar with the workings of the EU) requirement that any action by the Union have a legal basis in the Treaties. The second issue is generally framed in terms of the type of competence enjoyed by the EU in a particular area (exclusive, shared, parallel or supporting) and the appropriateness of any proposed EU action, as judged in particular by reference to the principles of subsidiarity and proportionality. These two aspects (type and appropriateness) have been inextricably linked since the principle of subsidiarity, at least, applies only in areas that do not fall within the exclusive competence of the Union. If decades of debate may be distilled to a bare minimum, the problems in relation to competence and subsidiarity were threefold: the situation was perceived to be unintelligible, unpredictable and, as far as subsidiarity was concerned, non-justiciable. Proportionality, on the other hand, does not appear to be part of the problem. Perhaps because of its long history as a key element of human rights law, and the extensive case law of the Union Courts concerning this principle, its nature and content are subject to less speculation.4 The stipulation in Article 5(4) TEU that the content and form of Union action ‘shall not exceed what is necessary to achieve the objectives of the Treaties’ may therefore be taken at face value and continues to be the guiding principle once it is established that action by the Union is, as such, appropriate. Coming back to the preparation of the Constitutional Treaty of 2004 and the Treaty of Lisbon, the task, as it was perceived by the relevant Working Group, was to address not so much the actual reach of Union competence as the way in which the division of competences is presented to the ‘outside’, notably the citizen: the remit was therefore to make the division clearer, more functional and more obviously respected.5 The result is an expanded version of what was Article 5 TEC in Article 5 TEU (concerning the principles of conferral, subsidiarity and proportionality) and the proclamation in Article 1(1) TFEU that its very purpose is to determine the areas of, delimitation of and arrangements for exercising competence. Next, if a clearer division of competence is achieved, it should become easier to predict who can act and when. This will leave the final question of how to challenge Union action in the event of a dispute. These points will be dealt with in the sections that follow.

3 Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality annexed to the TEU and the TFEU. 4 See, in particular, X Groussot, Creation, Development and Impact of the General Principles of Community Law: Towards a Jus Commune Europaeum? (Lund, Faculty of Law, Lund University, 2005) 209–49; T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006) 175–241; U Bernitz, X Groussot and F Schulyok (eds), General Principles of EU Law and European Private Law (Alphen aan den Rijn, Kluwer Law International, 2013). On proportionality as a powerful tool of ex post judicial review see also ch 16(II) below. 5 C Ladenburger, ‘Anmerkungen zu Kompetenzordnung und Subsidiarität nach dem Vertrag von Lissabon’ (2011) 14 Zeitschrift für Europarechtliche Studien 389.

22

Marking the Territory: Principles Governing Union Competences

II. Basic Treaty Provisions on Competence To the extent that the TFEU now contains not only a Title, ‘Categories and Areas of Union Competence’, but also a definition of both exclusive and shared competence (Article 2(1) and (2) TFEU, respectively), the call for greater transparency in the division of powers appears to have been heeded. And although the content of these definitions is by no means radical, amounting essentially to a statement of what was commonly understood to be the case, it is notable that this matter now forms part of the written primary law of the Union.6 Where the Treaties confer exclusive competence, in principle only the Union may legislate in that specific area. Article 3 TFEU lists the following areas of exclusive competence: the customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; and the common commercial policy. This list cannot be said to contain any surprises. However, it is again worthy of note that the matter has been put beyond doubt. What is more, the issue of competence to conclude international agreements, hitherto dealt with by way of judicial interpretation, has been expressly addressed in Article 3(2) TFEU and this in a fairly broad manner.7 According to Article 2(1) TFEU, when the Treaties confer on the Union exclusive competence in a specific area, ‘only the Union may legislate and adopt legally binding acts’. This is immediately qualified, however, by the statement that the Member States are ‘able to do so themselves’ if so empowered by the Union8 or for the implementation of Union acts. While this qualification is in turn qualified by the word ‘only’, it remains the case that this possibility for the Member States to act even in an exclusive area is sometimes applied in a rather generous manner.9 For instance, Member States adherence to international 6 For a detailed discussion of the relation between the different types of competence see, eg R van Ooik, ‘The European Court of Justice and the Division of Competence in the European Union’ in D Obradovic and N Lavranos (eds), Interface between EU Law and National Law (Groningen, Europa Law Publishing, 2007) 11; R Schütze, ‘The European Community’s Federal Order of Competences: A Retrospective Analysis’ in M Dougan and S Currie (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Oxford, Hart P ublishing, 2009) 63; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 74–78; Robert Schütze, European Constitutional Law (Cambridge, Cambridge University Press, 2012) 151 et seq. See also P Craig, ‘The ECJ and Ultra Vires Action: A Conceptual Analysis’ (2011) 48 Common Market Law Review 394 at 423–25. 7 Probably the most important part of the provision on exclusive competence concerning international agreements, ie that the conclusion of the agreement may affect common rules or alter their scope (the so-called AETR-ERTA principle), is based on a line of case law beginning as early as the 1970s: Case 22/70 Commission v Council (European Road Transport Agreement) EU:C:1971:32. See ch 15(III) below. 8 The possibility of such authorisation was previously accepted in case law, see, eg Case 41/76 Donckerwolcke EU:C:1976:182; Case 174/84 Bulk Oil EU:C:1986:60. See also Lenaerts and Van Nuffel, n 2 above, 126–27. On the Council practice of authorising Member States to conclude international agreements despite the existence of an exclusive competence see A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 34 Fordham International Law Journal 1304 at 1306–08; A Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do Such Distinctions Matter?’ in I Govaere et al (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden, Martinus Nijhoff Publishers, 2014) 17 at 32–33. 9 See, notably Schütze, n 1 above, 156 et seq, who demonstrates a trend towards a flexible interpretation and application of the concept of exclusive competence, leaving some room also for Member State action in an exclusive field.

Basic Treaty Provisions on Competence

23

agreements covering an exclusive area is sometimes tolerated without there being an express act of authorisation by a Union institution.10 The distinction between exclusive and shared competence is thus less categorical than a look at Article 2 TFEU may suggest. According to Article 4(1) TFEU, the Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6, thus making shared competence the general rule. Article 4(2) lists a number of areas as examples, including internal market, environment, consumer protection, transport, energy and the area of freedom, security and justice. That the borderline between exclusive and shared competence is not always easy to draw is demonstrated by recent case law relating to the distinctions between monetary and economic policy, competition versus internal market law and more generally, with regard to EU external relations.11 Where the competence of the Union is shared with the Member States, both may legislate in the area concerned, but the Member States, according to the principle of pre-emption, may exercise their competence only to the extent that the Union has not exercised its competence.12 In this respect, the principle of sincere cooperation plays an important role in setting limits on Member State action: that principle, expressed in Article 4(3) TEU, ordains the Member States to refrain from taking any measure which could jeopardise the attainment of the Union’s objectives. On the other hand, a Protocol annexed to the Treaties purports to limit the reach of this principle of pre-emption by stating that when the Union has taken action in a certain area, ‘the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area’.13 Moreover, Article 2(2) TFEU now also provides that the Member States shall ‘again’ exercise their competence to the extent that the Union has decided to cease exercising its competence, thus making it explicit that competence shift could be a two-way street. In other words, action can in theory be taken at either level, but not both at the same time. Article 4(3) and (4) TFEU provide for special rules applying to research, development and space, and development cooperation and humanitarian aid, respectively. In these areas, the Union has competence to carry out activities but the exercise of that competence shall not result in Member States being prevented from exercising theirs. This is often referred to as parallel competence, and the principle of pre-emption does not apply. Insofar as they are dealt with separately, economic and employment policies (Articles 2(3) and 5 TFEU) and the Common Foreign and Security Policy (CFSP) (Article 2(4) TFEU)

10 On the question of international agreements concluded by EU Member States but not the Union itself see generally, eg, Rosas, n 8 above. See also ch 15(IV). 11 Concerning monetary v economic policy, see Case C-370/12 Pringle EU:C:2012:756, paras 46–63; Case C-62/14 Gauweiler and Others EU:C:2015:400, paras 34–65; concerning competition v internal m arket Joined Cases C-274/11 and C-295/11 Spain v Council EU:C:2013:240 and with regard to external relations Case C-114/12 Commission v Council EU:C:2014:2151; Opinions 1/13, EU:C:2014: 2303; 2/15, EU:C:2017:376 and 3/15, not yet published, and the case law cited in A Rosas, ‘EU External Relations: Exclusive Competence Revisited’ 38 Fordham International Law Journal (2015) 1073. 12 On the principle of pre-emption, see Lenaerts and Van Nuffel, n 2 above, 128–130. The interesting question as to the relation between the principle of pre-emption, expressed in Art 2(2) TFEU, and the AETR-ERTA principle, expressed in Art 3(2) TFEU (see n 7 above), cannot be analysed here. 13 Protocol No 25 on the Exercise of Shared Competence annexed to the TEU and the TFEU. This Protocol, however, is only relevant in the context of shared competence as such and does not seek to limit the scope of the exclusive external competence of the Union in the cases referred to in Art 3(2) such as the AETR/ERTA principle, Case C-114/12 Commission v Council, n 11 above, para 73.

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appear not to fall into either of the two main categories. The difficulty in categorising CFSP may be explained by the origins of this field of activity as the highly intergovernmental Second Pillar in the pre-Lisbon TEU. It continues to be governed by a separate Chapter in the TEU. The case for setting apart the coordination of economic and employment policy is less clear. Competence in these fields is developed in Article 5 TFEU. Special provisions are said to apply to those Member States whose currency is the euro, yet any specificities required by economic and monetary union are surely amply catered for in the detailed provisions contained in the section defining that policy (Title VIII TFEU).14 In the same vein, the reference to coordination of employment policies is simply a foreshadowing of what comes later in Title IX TFEU on employment. To complicate matters further, Article 5(3) TFEU makes reference to the coordination of social policy. Again, this adds nothing to the objectives of Title X TFEU and, confusingly, social policy is not even an ‘uncategorised’ area; it is mentioned expressly in Article 4(2)(b) TFEU as a matter of shared competence. Finally, Article 2(5) TFEU identifies a further category of competence which is described as ‘supporting, coordinating or supplementary’, and which cannot result in harmonisation of national law or regulation. Article 6 TFEU develops the category of supporting competence. According to this provision, the Union shall have the competence to carry out actions to support, coordinate or supplement the actions of the Member States in the following areas: protection and improvement of human health, industry, culture, tourism and education, vocational training, youth and sport, civil protection and administrative cooperation. It should be noted that again there may be some confusing overlap with the list of shared competences; for instance, in addition to supporting the protection and improvement of human health, ‘common safety concerns in public health matters’ is listed as an area of shared competence. While the areas falling into the categories of exclusive and supporting competence are listed, presumably exhaustively, in Articles 3 and 6 TFEU, the category of shared competence, as noted above, is identified in Article 4(1) TFEU as comprising all areas not falling into Articles 3 or 6. From this it may be deduced that the two non-categorised areas mentioned in Article 2(3), that is economic and employment policies, and (4), that is the CFSP, must constitute a form of shared competence: it appears in any case that the intention was to indicate that the coordination prescribed in those fields is something more than the classic supporting competence.15 The overall structure of Article 5 TFEU therefore appears to be something of a mystery. However, to the extent that the other provisions in the section, together with the specific legal bases found throughout the main part of the Treaty, provide a comprehensive picture, it is submitted that, at least, no major gaps are left in the assignment of fields of activity to a particular category of competence. In terms of responding to allegations of what has been called ‘competence creep’,16 and demands for more clarity and transparency, it may be observed that Article 4 TFEU

14 See notably Ch 4 of Title VIII (Economic and Monetary Policy) TFEU, which contains provisions specific to Member States whose currency is the euro. See further chs 8(II) and 14 below. 15 J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006) 81; Piris, n 6 above, 77. 16 See ch 4(III) below.

Articles 114 and 352 TFEU

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could have been structured differently and drafted to send a clearer message that shared competence is the norm. It may nevertheless be concluded that, on balance, the question of who has competence to act in any particular field seems somewhat clearer and more accessible than was previously the case.17 Whether these developments increase the predictability of the outcome of any dispute is, however, another question. As noted above, the text constitutes an overt statement of what was already generally understood to be the case and the crux of the debate did not, it is submitted, centre on the areas of exclusive competence (at least not in the technical sense). The battle for occupying the territory of shared competence remains to be fought and it therefore continues to be difficult in many areas for the Member States to exercise their power in a manner compatible with the plethora of existing EU rules. Alas, this is one of the situations that gives the eurosceptics (and the tabloid press) a welcome target.

III. Articles 114 and 352 TFEU Even after specific consideration, as part of the preparations for the Constitutional Treaty and the Treaty of Lisbon, of their nature and scope, the two instances of ‘catch-all competence’ (ex Articles 95 and 308 TEC) are to be found, in substantially the same form as before, in Articles 114 and 352 TFEU, respectively. Article 114, which enables harmonisation measures which have as their object the establishment and functioning of the internal market, is less important in the context of a discussion on ‘competence creep’ as its scope is more circumscribed by its purpose and wording and by relevant ECJ case law. That said, the generally formulated conditions established in Article 114(1) that the measures in question should be for the ‘approximation’ of national law and should have as their object ‘the establishment and functioning of the internal market’ lend themselves to different interpretations and in the case law, this legal basis has been given a fairly broad interpretation.18 This provision will be considered later, in the contexts of the internal market and the question of judicial control.19 As for Article 352, its reach has, if anything, been broadened as compared to Article 308 TEC: whereas in the past this provision referred to action necessary to attain, in the course of the operation of the common market, one of the objectives of the TEC,20 the new text envisages action within the framework of the policies, in general, of the Treaties—that is, both the TEU and the TFEU. It is submitted that this realignment of the wording to reflect the nature of the Union as no longer restricted to a narrow common market objective is

17 See also van Ooik, n 6 above, 38–39; S Weatherill, ‘Competence and Legitimacy’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 17, 28. 18 See, eg Case C-547/14 Philip Morris Brands el al EU:C:2016:325, paras 57 et seq and case law cited. On case law concerning Art 95 TEC (now Art 114 TFEU) see also n 25 below. 19 See ch 13(I) below. 20 On Art 308 TEC see, eg A Dashwood, ‘Article 308 as the Outer Limit of Expressly Conferred Community Competence’ in Barnard and Odudu, n 17 above, 35. For examples of judgments relating to Art 308 see Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, paras 198–236; Case C-166/07 Parliament v Council EU:C:2009:499, paras 66–69. In both cases, use of Article 308 (now 352), in combination with other legal bases, was accepted by the Court. See also n 24 below.

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Marking the Territory: Principles Governing Union Competences

eminently logical; however, it will certainly do nothing to assuage fears of an open door to ‘competence creep’. The same goes for the requirement that the action be undertaken in order to ‘attain … one of the objectives set out in the Treaties’. Indeed, the objectives are no longer set out at the beginning of the TFEU (as they were in Articles 2 and 3 TEC) but are grouped instead in the TEU, notably in Article 3 TEU. As noted above, the breadth of these objectives make it difficult to imagine areas where the Union clearly has no authority to go. Two aspects of this catch-all provision are worth highlighting. First, a Declaration annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon21 purports, on the one hand, to limit the application of Article 352 TFEU to certain objectives, excluding specifically those listed in the first paragraph of Article 3 TEU (that the Union’s aim is to ‘promote peace, its values and the well-being of its peoples’) and appearing, by omission, to exclude also the establishment of economic and monetary union referred to in Article 3(4) TEU. On the other hand, the objectives the furtherance of which may be based on Article 352 (ie those in paragraphs 2, 3 and 5 of Article 3 TEU), cannot be described as limitative and, although phrased slightly differently than was the case in Article 2 TEC, contain arguably all the same aims (with the notable and much-publicised exception of a reference to ensuring competition is not distorted). What is more, the Treaties then go on to use the notions of policy and objective in a rather fluid manner. For instance, Article 21 TEU, relating to the Union’s external action, lists what are defined in Article 22 as ‘principles and objectives’. These include broad aspirations such as to ‘safeguard its values, fundamental interests, security, independence and integrity’, to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’ and to ‘preserve peace, prevent conflicts and strengthen international security’. Whether the Declaration referred to above will contribute to a strict approach to the Union’s objectives for the purposes of Article 352 TFEU, also taking into account the principle of conferral, remains to be seen. However, it is submitted that even if this proves to be the case, the scope for action based on that provision remains at least as broad as was previously the case and more so if the specific inclusion of external relations objectives is taken into account. Indeed, perhaps the main barrier to invoking this catch-all competence pre-Lisbon was the distinction between the First Pillar objectives (in relation to which the equivalent Article 308 TEC could be used) and the Second and Third Pillar objectives (which were beyond the scope of the objectives which could form a basis for invoking that provision).22 True, Article 352(4) TFEU rules out action to attain ‘objectives pertaining to the common foreign and security policy’. The ‘common foreign and security policy’ (CFSP), however, is a term of art in the context of the Treaties and does not cover the whole area of the Union’s external action (Article 21 TEU, cited above, is part of the general provisions of Title V TEU (external action) and is not limited to the CFSP). It would therefore seem that the task of drawing the line between the CFSP and other parts of external action will be even more tricky in the post-Lisbon future23—and in areas other than external action,

21 Declaration No 41 on Art 352 TFEU annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. 22 See, eg Case C-91/05 Commission v Council EU:C:2008:288, which concerned the relationship between the First and the Second Pillar. 23 See ch 15(III) below.

Articles 114 and 352 TFEU

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it continues to be difficult to imagine policies or objectives which are not mentioned in the TEU or the TFEU. Secondly, assuming a given field of action is covered by the relevant objectives of the Treaties, Article 352(3) TFEU now specifically precludes use of the provision to circumvent an express prohibition on harmonisation contained in other sections of the Treaty. While, especially in view of the principle of conferral, this must also have been the case under Article 308 TEC (that provision being devoid of any indication that it could operate in conflict with a specific legal basis), it is helpful to put the matter beyond doubt. Indeed, this inclusion would appear to amount to a specific example of the concern dealt with in a second Declaration on Article 352 TFEU, which confirms the case law of the ECJ that that provision cannot serve as a basis for widening the scope of Union power beyond the general framework created by the provisions of the Treaties and cannot be used as a basis for the adoption of measures whose effect would, in substance, be to amend the Treaties without following the specific procedure laid down for that purpose.24 Despite the controversy surrounding Articles 114 (ex Article 95 TEC) and 352 TFEU (ex Article 308 TEC), both provisions have, over the years, been used as a legal basis for action in a number of contexts that could hardly have been foreseen by the drafters of the original treaties and in relation to which there was general agreement that action by the Union was necessary. On the other hand, the ECJ has not hesitated, particularly in more recent times, to insist on the limits of the scope of these provisions in situations where the legislator had stretched the text beyond reasonable boundaries.25 In any event, the need to resort to Article 352 may in fact have diminished, given that the Treaty of Lisbon has introduced a number of legal bases the absence of which had, in the past, prompted recourse to Article 308 TEC. In addition, the appetite to invoke the catch-all clause may be suppressed by the in-built procedural hurdles: requirement of unanimity in the Council and consent of the European Parliament and the link made in Article 352(2) to the subsidiarity control exercised by national parliaments.26 It is therefore submitted that, despite a much clearer statement of competences in the treaties themselves, the actual division of power and the way it is divided has not changed; it remains a dynamic and therefore somewhat unpredictable creature able to react to the need of the moment and the constantly evolving state of EU law and integration. But is this not precisely what the heads of state and government sought in the Laeken Declaration?

24 Declaration No 42 on Article 352 TFEU annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. That Declaration appears simply to confirm the statement to that effect in Opinion 2/94 (Accession to the European Convention on Human Rights) EU:C:1996:140. For a recent judgment see Case T-44/14 Costantini et al v Commission EU:T:2016:223, paras 51–55, where the General Court accepted the Commission’s argument that Art 352 did not constitute an appropriate legal basis. On this point, see also ch 4(III) below. 25 With regard to Art 95 TEC (now Art 114 TFEU), contrast the conclusion of the ECJ in Case C-377/98 The Netherlands v Parliament and Council EU:C:2001:523 and Case C-491/01 British American Tobacco EU:C:2002:741, on the one hand (Art 95 TEC accepted as a legal basis), and Opinion 2/94, n 24 above, and Case C-376/98 Germany v Parliament and Council EU:C:2000:544, on the other (Article 95 TEC rejected). 26 Craig, n 6 above, 423. See further ch 4(III) below.

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IV. The Principle of Subsidiarity Finally, a key feature of the debate has, as noted above, been the content of the principle of subsidiarity, which is reproduced unaltered in Article 5(3) TEU: pursuant to the principle of subsidiarity, the Union shall, in areas which do not fall within its exclusive competence, act only if and insofar 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.

Despite the stated aim of the Protocol on the application of the principles of subsidiarity and proportionality,27 introduced by the Treaty of Amsterdam to enhance the monitoring of compliance with those principles, the consensus would appear to be that those guidelines proved insufficient in disciplining the institutions. In other words, subsidiarity, introduced as a check on the exercise of competence, has not served the purpose of providing clarity to the issue of delimitation of competence. On the contrary, subsidiarity served rather to foment the debate and was used to highlight the alleged shortcomings of any ex post judicial control of competence, leading to the third perceived problem: the alleged nonjusticiability of the principle.28 The preamble to the Protocol attached to the Treaty of Lisbon29 therefore reiterates that the heads of state and government are resolved to establish not only the conditions for the application of the principles of subsidiarity and proportionality but also a system for monitoring the application of those principles. Yet the new Protocol is much less detailed than its predecessor: an acknowledgment, perhaps, that the wide discretion necessarily attaching to such complex assessments renders any attempt to set out detailed guidelines all but meaningless. An assessment of this new Protocol may be measured against the three objectives set by the working group whose task it was, as part of the Convention on the Future of Europe, to review the application of the principle of subsidiarity: reinforcing the application of the principle during the drafting phase, introducing ex ante political control and broadening ex post judicial control.30 As noted above, the Treaty of Amsterdam had already introduced a protocol on the application of the principles of subsidiarity and proportionality. This text instructed the institutions to ensure respect for these principles and to state the reasons justifying compliance therewith. Despite a reference in the conclusions of the Working Group to reinforced and specific obligations to justify compliance with the principle of subsidiarity, it cannot be said

27

See n 3 above. See also Lenaerts and Van Nuffel, n 2 above, 134–35. before the Treaty of Lisbon it was certainly possible to invoke the principle of subsidiarity but in no case did the Court strike down a Union act for violation of the principle. See, eg Case C-491/01 British American Tobacco, n 25 above, paras 177–85; Case C-58/08 Vodafone and Others EU:C:2010:321, paras 72–80; Case C-176/09 Luxembourg v Parliament and Council EU:C:2011:290, paras 73–83. For a more exhaustive list of relevant ECJ and General Court decisions see Craig, n 6 above, 426–27 (fn 73); Lenaerts and Van Nuffel, n 2 above (fns 135, 139, 140). 29 Protocol No 2, n 3 above. 30 Final Report of Working Group I on the Principle of Subsidiarity, CONV 286/02. 28 Even

The Principle of Subsidiarity

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that the new Protocol adds greatly to the requirements already placed on the institutions in this respect. However, the difference lies perhaps in the introduction of a so-called ‘early warning system’ during the drafting phase of a legislative act; the central innovation of the new Protocol is undoubtedly the watchdog status conferred on national parliaments as part of the control process.31 All draft legislative acts are forwarded directly to the national parliaments and any national parliament may, within eight weeks of receiving a draft text, send a reasoned opinion back to the Union institutions stating why it considers that the proposal does not comply with the principle of subsidiarity. Thus, the reasoning of the Commission is scrutinised by actors other than the other European institutions; it is to be presumed that national (and, where appropriate, sub-national) parliaments will take a stricter view on the conditions for applying a principle the very purpose of which is to protect the prerogatives of those levels of public authority. Indeed, it is interesting in this respect that no opportunity to comment on proportionality is accorded to the national parliaments, therefore indicating that the purpose of the procedure is very much linked to the nature of subsidiarity itself. The legislator is then instructed to take account of the reasoned opinions received and, if a sufficient number of parliaments, that is as a general rule one third of all the votes allocated to national Parliaments, with each Parliament having two votes, lodge objections, review the draft act (raising a so-called ‘yellow card’).32 If under the ordinary legislative procedure the reasoned opinions represent at least a simple majority of all the votes allocated to the national parliaments, the proposal ‘must be reviewed’ and if the Commission, after this review, chooses to maintain the proposal, it must according to Article 7(3) of Protocol No 2 issue a reasoned opinion justifying compliance with the principle of subsidiarity (‘orange card’).33 In the latter case, the unusual move to kill the proposal may be carried by a majority of the votes cast in the European Parliament or the Council (55 per cent of the members of the Council, to be exact).34 The issuing of reasoned opinions has proved attractive to national parliaments as a means of exerting influence. In 2013, for instance, 88 reasoned opinions were issued, while in 2014 they fell to 21 and just 8 in 2015, only to increase again in 2016 to 65.35 On the other hand, in only three cases so far (2012, 2013 and 2016) has a yellow card been raised, and the threshold for an orange card has never been reached.36 That said, the new rules on subsidiarity do appear to have been one factor in encouraging the Commission to develop its programme planning and impact assessment mechanisms in order to subject legislative initiatives to more ex ante scrutiny, including from the point

31

See generally, eg Lenaerts and Van Nuffel, n 2 above, 136–40; Ladenburger, n 5 above, 396–403. If the draft legislative act is based on Art 76 TFEU (the area of freedom, security and justice), a quarter of all the votes is sufficient, Art 7(2) of Protocol No 2. 33 Art 7 of Protocol No 2 sets out the consequences for the legislative process in the event that one or more reasoned opinions are received. 34 See, eg Piris, n 6 above, 127–29. 35 Reports from the Commission on Subsidiarity and Proportionality covering the years 2014(COM(2015) 315 final), 2015 (COM(2016) 469 final) and 2016 (COM(2017) 600 final). 36 Ibid 3–4; on the most recent yellow card see Eurofound, ‘Posted workers proposal gets “yellow card” from Member States’ (2016) http://www.eurofound.europa.eu/observatories/eurwork/articles (accessed on 3 September 2017). 32

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of view of respect for the principle of subsidiarity. In May 2015, the Commission adopted a package of better regulation measures with new Better Regulation Guidelines, including updated guidance for assessing subsidiarity and proportionality in the context of impact assessment of initiatives.37 According to the above-mentioned Working Group on Subsidiarity, the role accorded to national parliaments is an overt recognition of the essentially political nature of the principle of subsidiarity. Somewhat ironically, this acknowledgement that the principle is better suited to ex ante scrutiny is accompanied by an express reference to the justiciability of compliance with the principle. Again, the innovation in this respect is the role for national parliaments, singled out as having a right to bring an action for infringement of the principle of subsidiarity, albeit in the rather strange form of an action brought by the Member States or ‘notified by them in accordance with their legal order on behalf of their national parliament or a chamber thereof ’.38 This is symptomatic of the innovations introduced by the Protocol; the detailed arrangements for consultation of regional parliaments, the rules regulating if and in what form to issue a reasoned opinion and the process governing if and how to bring a legal action are left, in each instance, to the national legal orders (although it is submitted that the national legal order must provide for the possibility that the parliament is able to force the government to bring an action for infringement of the principle of subsidiarity). Coming back to the original question of whether criticisms levelled at the process for monitoring respect for the principle of subsidiarity have been answered, it must be concluded that the matter is now clearly justiciable. What is more, it is to be hoped that an increased focus on setting out the justifications for compliance with the principle will facilitate an ex post judicial control.39 That said, the discretion inherent in deciding whether aims can be better achieved at this or that level will continue to inform the extent of judicial control, which is therefore likely to focus on verifying that the appropriate consultations have been carried out and the evidence balanced in an objective fashion. It is perhaps telling that also in the cases decided by the ECJ after the entry into force of the Treaty of Lisbon where the principle of subsidiarity has been invoked, the Court has rejected the pleas to this effect.40 It may in fact be difficult in practice to distinguish the question of the substantive conditions of subsidiarity from the conditions applying to a particular legal basis such as Article 114 TFEU relating to harmonisation measures with a view to the functioning of the internal market in particular. It does not seem very likely that

37 See, eg the Report from the Commission on Subsidiarity and Proportionality 2014, n 35 above, 2. See also Craig, n 6 above, 411, 427; Ladenburger, n 5 above, 400–03. 38 There is so far no case brought before the ECJ by national parliaments. In Case C-477/14 Pillbox 38 (UK) EU:C:2016:324, para 143, the referring court had mentioned that’ several national parliaments’ had argued that the draft directive in question was not consistent with the principle of subsidiarity (without these objections having led to any concerted judicial action under the Protocol). The ECJ, in holding that there had been no violation of the principle, did not in its own reasoning comment upon the concerns expressed by some national parliaments except by recalling that no request to review compliance with the procedural safeguards of the Protocol had been made to it (para 147). 39 See also CWA Timmermans, ‘La justiciabilité de la subsidiarité’ in Festschrift Claus Gulmann: Liber Amicorum (København, Thomson, 2006) 449; T von Danwitz, ‘Subsidiaritätskontrolle in der Europäischen Union’ in Festschrift für Dieter Sellner zum 75. Geburtstag (München, Verlag Beck, 2010) 38. 40 Case C-508/13 Estonia v Parliament and Council EU:C:2015:403, paras 41–55; Case C-358/14 Poland v Parliament and Council EU:C:2016:323, paras 105–126; Case C-477/14 Pillbox 38 (UK), n 38 above, paras 142–51.

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measures found to have an appropriate legal basis would nevertheless be struck down for violation of the substantive conditions of the principle of subsidiarity. In any event, as the conclusions of the Working Group on Subsidiarity underlined, the principle is better suited to control of a political nature and it is therefore to be hoped that the national parliaments will make full use of their enhanced role in this respect and the prospect of judicial control will prove its worth mainly in a preventive sense.41

41 A von Bogdandy and J Bast, ‘The Federal Order of Competences’ in A von Bogdandy and J Bast (eds), rinciples of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010), 275, P 304, state that ‘[h]opefully, with the Convention’s proposal, which the ensuing [Intergovernmental Conferences] did not call into question, a lasting compromise on subsidiarity was finally reached’.

4 Who Is the Boss? In Search of a Master of the Treaties I. Introduction The Communities, and later the Union, were created as a result of the conclusion of international treaties between the founding states. Subsequent accessions require the consent of both the existing Member States and the acceding states. The basic Treaties, notably the TEU and the TFEU, can only be amended by common consent of all the Member States. According to Article 50 TEU, as amended by the Treaty of Lisbon, a Member State may decide to withdraw from the EU. And, if the Member States are unanimous, they may even terminate the EU itself. In this classic international law sense, the Member States remain, as the German Constitutional Court in particular has insisted, ‘Herren der Verträge’ (Masters of the Treaties).1 As was illustrated in chapter two, however, while the EU is undoubtedly a beast of international law, it has always been and is still today much more than that. The question therefore is whether, in acting to bind their destinies, the treaty-makers have also bound their own hands. Several preliminary points may be made in this respect. In the first place, as the fate of the Soviet Union, Yugoslavia, Czechoslovakia and other now historical entities demonstrates, nation states themselves are not necessarily eternal. Federal constitutions, or the right to (external) self-determination under public international law, may allow sub-state regions to break away, and such events may simply take place regardless.2 History rather than law is the ultimate arbiter of the birth, continued existence and termination of states. The EU is no different in this regard and the procedure for withdrawal from the Union, laid down in Article 50(2) TEU, as amended by the Treaty of Lisbon, therefore represents a civilised aim, the ‘let’s be friends’ of the end of a relationship. The decision of the UK to use the right laid down in Article 50(2) TEU confirms that the right to withdraw is not just a theoretical possibility. It is another matter to what extent the probable end of the relationship in 2019 or later will be unproblematic or harmonious. Much will depend on the negotiations which, as this edition goes to print, cannot yet be said to have taken any specific shape. 1 Judgments of the German Federal Constitutional Court of 12 October 1993, BVerfGE 89, 155, concerning the Treaty of Maastricht and of 30 June 2009, BVerfG, 2 BvE 2/08, on the Treaty of Lisbon, notably paras 231 and 298. 2 The scope and meaning of a right to external self-determination is open to debate, see, eg the judgment of the Supreme Court of Canada in Reference re Secession of Quebec [1998] 2 SCR 217, notably paras 111 et seq. See also the advisory opinion of the International Court of Justice of 22 July 2010, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, paras 79–84.

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In the second place, the rules of the game are that the Treaties, having been approved by every member, apply in their entirety to every member; a Member State cannot unilaterally opt out of parts of the basic Treaties. This does not mean that there is not a vast array of sector-specific individual arrangements (the extent and import of this ‘differentiation’ or ‘variable geometry’ will be analysed in chapter eight below), but the key point is that such exceptions must be negotiated with the other players. The importance of this feature of the Union is illustrated well by the opposition of the British Conservative Party to the Treaty of Lisbon, signed and ratified by the thengoverning Labour Party: the only way to avoid the application of the Treaty in the UK would have been to withdraw ratification before the entry into force of the Treaty and thus prevent its entry into force in general.3 In the event, the Treaty entered into force in 2009, so that when elections brought the Conservative Party to power in a coalition government in 2010, the only options available to the new government were, on the one hand, negotiations on further Treaty amendments, and on the other, withdrawal from the Union altogether. The first option was pursued, and an agreement, which would have affected both primary and secondary law, was even reached. But in the end, the British public voted to prefer the second route: the United Kingdom has therefore notified its intention to leave the Union. The following discussion will be based on the assumption that the EU, despite the UK decision to withdraw, will continue to exist, that EU enlargement is a more probable scenario than further desertion and that Member States cannot unilaterally opt out of parts of the basic Treaties. If this is so, the unanimity requirement for amending written primary law makes it difficult, if not impossible, to ‘go back’, in other words, to scale the level and intensity of integration down rather than up, despite the fact that the possibility of such scaling down is foreseen in Articles 48(2) TEU and Article 2(2) TFEU.4 The question of the development of EU primary law into the constitutional system of today and the possible limits placed on the Masters of the Treaties in their role as constituent authority will be addressed below. First, though, we will look at the procedures for amending the basic Treaties themselves.

II. Procedures for Amending the Treaties The significance of the Treaty provisions concerning amendments to the Treaties themselves is contingent on whether they are exclusive or not. The ECJ has held that they are

3 While the Vienna Convention on the Law of Treaties of 1969 is silent on the question as to whether a State can withdraw its ratification of a multilateral treaty which has not yet entered into force (see, eg A Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2000) 95–96), it is beyond doubt that this option does not exist after the treaty has entered into force (without prejudice, of course, to the right to withdraw from the amended treaty altogether). 4 According to Art 48(2) TEU, proposals for amending the Treaties may serve ‘either to increase or to reduce the competences conferred on the Union’ and Art 2(2) TFEU provides that in areas of shared competence, Member States which have been prevented from exercising their competence (because of Union legislation in a given area) shall ‘again exercise their competence to the extent that the Union has decided to cease exercising its competence’. See also A Rosas, ‘EU Primary Law as Substantive Law’ in A Fischer-Lescano et al (eds), Frieden in Freiheit–Peace in Liberty–Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden, Nomos Verlag, 2008) 958.

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indeed exclusive, in other words that the Treaties can only be modified by means of the amendment procedures provided for in the Treaties themselves.5 True, Union law does not preclude agreements concluded between the Member States inter se, and such agreements may become relevant from a Union law perspective.6 They may even supplement the T reaties; witness the Schengen agreements on the gradual abolition of checks at common borders signed by some Member States in 1985 and 1990,7 the agreements concluded between the euro zone Member States in 2010–2011 on the establishment of stabilisation mechanisms to provide financing to Member States in serious difficulties8 and the agreement on a reinforced economic union concluded between the Member States whose currency is the euro (the ‘Fiscal Compact’).9 As the fate of the Schengen agreements shows, such agreements may subsequently be integrated into the Union law framework; but they cannot directly modify the Treaties, only the procedures provided for in the Treaties and specifically designed for this purpose (notably Article 48 TEU) can do that. It is another question whether these amendment procedures provide for a carte blanche, in other words whether they allow for the adoption of any imaginable amendment to the Treaties. As will be explained further in section III, the case law of the ECJ suggests that there may be constitutional limits to Treaty amendments imposed by the very foundations of the Union.10 Before the entry into force of the Treaty of Lisbon, Article 48 TEU stipulated that the g overnment of any Member State or the Commission could submit to the Council proposals for the amendment of the Treaties on which the Union was founded. If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivered an opinion in favour of calling an intergovernmental conference, amendments to the Treaties could be determined ‘by common accord’ of the national governments. Amendments agreed upon at the intergovernmental conference could only enter into force after having been ratified by all the Member States in accordance with their respective constitutional requirements. Experience shows that this last requirement has real significance. The entry into force of the Treaties of Maastricht (Danish negative referendum of 1992), Nice (Irish negative

5 Case 43/75 Defrenne (‘Defrenne II’) EU:C:1976:56, para 58. See also B de Witte, ‘Rules of Change in International Law: How Special is the European Union?’ (1994) 25 Netherlands Yearbook of International Law 299; R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press, 2009) 317–319. 6 B de Witte, ‘Chameleonic Member States: Differentiation by Means of Partial and Parallel International Agreements’ in B de Witte et al (eds), The Many Faces of Differentiation in EU Law (Antwerp, Intersentia, 2001) 231; A Rosas, ‘The Legal Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 34 Fordham International Law Journal 1304 at 1317–20. 7 See Protocol No 19 on the Schengen Acquis Integrated into the Framework of the European Union annexed to the TEU and the TFEU and chs 8(II) and 12(II) below. 8 The temporary European Financial Stabilisation Facility (EFSF) and the more permanent European Stability Mechanism (ESM). In Case C-370/12 Pringle EU:C:2012:756, the ECJ concluded that the Treaties did not preclude the conclusion between the Member States whose currency is the euro of the agreement establishing the ESM. See also ch 14(IV) below. 9 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, see ch 1 above, n 11, and ch 14(III) below. 10 See Opinion 1/91 (Draft Agreement Relating to the Creation of the European Economic Area) EU:C:1991:490, para 46; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat Foundation v Council and Commission EU:C:2008:461, paras 282, 304. See also ch 1 above, n 14, and ch 5(II) below.

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referendum of 2001) and Lisbon (Irish negative referendum of 2008) was delayed because of the initial opposition from one Member State.11 The entry into force of the Constitutional Treaty, signed by all Member States in October 2004, was abandoned after two negative referendums, first in France and then in the Netherlands, in 2005.12 Moreover, especially in countries with constitutional courts, questions may be raised relating to the conformity of Treaty amendments with the national constitution, thereby delaying (at best) the ratification procedure.13 The sovereign debt crisis brought into sharp focus the importance of a ‘common accord’. While, as will be explained below, an amendment to Article 136 TFEU, authorising the establishment of stability mechanisms to aid seriously indebted Member States, did pass the European Council in March 2011, at the meeting of the European Council in December 2011, by contrast, the UK vetoed an initiative to amend the TFEU and/or one of the Protocols annexed to the Treaties14 with the aim of enhancing economic and financial governance particularly in the euro zone. Instead, as noted above, the Member States whose currency is the euro (and such other Member States as wish to participate) had to content themselves with the preparation of an intergovernmental agreement on a reinforced economic union. This incident is also a stark reminder of the serious concerns which exist in some quarters, notably the so-called eurosceptic movement, that the integration process has already gone too far and that, as a matter of principle, any move to strengthen integration further should be thwarted. That said, the dominant trend of intergovernmental conferences has been the strengthening rather than the weakening of European integration. New EU competences have been added, new institutions have been created or existing ones reinforced, the use of majority voting, including participation of the European Parliament in decision making, has been increased, and so on. True, as noted above, the Treaty of Lisbon contains some provisions which can be seen as steps back, or at least as explicit, instead of implicit, curtailments of the Union’s competences and powers, including rules often associated with an ‘intergovernmental approach’ rather than the traditional mechanisms of Union law (the so-called méthode communautaire). A case in point is the rather strong emphasis placed in the Treaty of Lisbon on the European Council, composed of the heads of state or government of the Member States.15 As far as the future is concerned, Article 48 TEU, as amended by the Treaty of Lisbon, expressly stipulates that proposals for amendments may serve not only to increase but

11 Editorial Comments: ‘Protocology’ (2009) 46 Common Market Law Review 1785. See also ch 1 above at nn 1–4. 12 J Ziller, ‘The End of Europe: A Flavour of Déjà-Vu. Reflections on the French Referendum and Its Aftermath’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Antwerp, Intersentia, 2009) 17; P Bursens and M Meijer, ‘Beyond First Order Versus Second Order Explanations of European Referendum Outcomes: Understanding the Dutch “Neen” and the Luxembourg “Jo”’ in ibid, 33; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 23–24. 13 A Albi and J Ziller, The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International, 2007), notably the article of M Claes, ‘The European Constitution and the Role of National Constitutional Courts’ 235. 14 Protocol No 12 on the Excessive Deficit Procedure and/or Protocol No 14 on the Euro Group, both annexed to the TEU and the TFEU. See also ch 8(II) below and ch 14 below. 15 Art 13 TEU lists the European Council as one of the institutions of the EU. See ch 7(II) below, where it is pointed out that the European Council may at times rather function as a motor driving integration forward.

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also to reduce the competences conferred on the Union.16 It should be noted, however, that the adoption of any such proposal would, as a Treaty amendment, require the consent of all the Member States. Thus, if even one Member State prefers to leave things as they are, they may block any attempt to go back. With those preliminary remarks in mind, it is useful to take a closer look at what the Masters of the Treaties wrote about the procedures for amending Union primary law, notably in Article 48 TEU. While, in connection with the preparation of the Constitutional Treaty of 2004, ideas were put forward concerning the possibility of amending the Treaty by a majority of the Member States, the essence of Article 48 TEU, as described above, has survived; namely, participation of the EU institutions on the one hand and consent of the Member States on the other.17 However, the devil is in the detail, and Article 48 TEU, as amended by the Treaty of Lisbon, now contains a much more elaborate provision on future Treaty amendments which arguably shifts power ‘up’ from the Council to the European Council but, on the other hand, will in most cases now be preceded by the work of a Convention and the much wider grass-roots debate that that process entails. What is more, there is no longer only one amendment procedure: Article 48 TEU lays down an ordinary revision procedure and what it refers to as simplified revision procedures. According to the ordinary revision procedure, proposals for amendments may be submitted by the European Parliament as well as by the government of a Member State or the Commission. Upon receipt of such proposals, the Council shall submit them to the European Council and national parliaments shall be notified. In line with the increased role for this institution identified above, it is the European Council that now takes the procedure forward, deciding by a simple majority, after consulting the European Parliament and the Commission (and the European Central Bank if appropriate), to examine the proposed amendments and convening, to that effect, a Convention. The Convention shall be 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, and will adopt, by consensus, a recommendation to be presented to an intergovernmental conference. The procedure then reverts to a more classic formula and the intergovernmental conference, convened by the President of the Council, shall determine by common accord any amendment to be made to the Treaties. As before, amendments shall only enter into force after having been ratified by all Member States. Three points should be noted in relation to this ordinary revision procedure. First, the establishment of the Convention is now the normal route for the preparation of Treaty amendments. The use of such a quasi-constitutional Convention was first introduced in the preparation of the EU Charter of Fundamental Rights of 200018 and was later used in the preparation of the Constitutional Treaty of 2004.19 While it may be viewed as ironic

16 Indeed, as noted above, at n 4, Art 2(3) TFEU now provides explicitly for the possibility that the Union cease to exercise an existing competence, in which case the Member States are again free to exercise their competence. See ch 3(II) above. 17 See, eg LFM Besselink, ‘The Notion and Nature of the European Constitution after the Lisbon Treaty’ in Wouters, Verhey and Kiiver, n 12 above, 261, 268; Piris, n 12 above, 104 et seq. 18 The Charter was solemnly proclaimed, on 7 December 2000, by the European Parliament, the Council and the Commission and published in [2000] OJ C364/1. See ch 11 below. 19 J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006) 45–49.

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that the Treaty of Lisbon did not itself travel this route, it is true that a considerable part of this Treaty is, in fact, based on the Constitutional Treaty and the work that went into preparing that document. The Convention as an institution provides yet another example of the tendency to go beyond the traditional dichotomy EU/Member States. In fact, it consists not only of government representatives but also of representatives of the national parliaments, as well as of the European Parliament. And the government representatives of this institution are identified, in the new Article 48 TEU, as representatives of the heads of state or government, and thus of the members of a central Union institution, the European Council.20 Secondly, while the Convention is now the default procedure, the European Council may, again by simple majority, decide that the extent of the proposed amendments does not justify such a step and will, itself, set the terms of reference for the intergovernmental conference. In order to go down this route, the consent of the European Parliament must be obtained. Oddly, no mention is made of consulting the Commission. In June 2010, the European Council decided not to convene a Convention and to set the terms of reference for an intergovernmental conference to consider amending Protocol No 36 on Transitional Provisions in order to fix the number of seats of the European Parliament for the period running up to 2014.21 The Protocol amending Article 2 of Protocol No 36 was signed shortly thereafter.22 Thirdly, although the requirement of ratification by all is maintained, the Treaty of Lisbon has added the proviso that if, two years after signature, four-fifths of the Member States have ratified an amending Treaty and ‘one or more Member States have encountered difficulties in proceeding with ratification’, the matter shall be referred to the E uropean Council (Article 48(5) TEU). The delays encountered (even after the Irish had voted positively in the referendum of October 2009) in obtaining the ratification of the Treaty of Lisbon by the Czech Republic, despite the fact that the Czech Parliament had approved the Treaty in May 2009, illustrate the problems that may arise in this regard.23 This new provision may be seen as a first modest step towards a kind of majority voting, the underlying idea apparently being that ratification by four-fifths of the Member States (or 23 countries in the current Union of 28), coupled with the fact that the Treaty amendment has previously been signed by all the Member States and, as a rule, has also been prepared by a Convention, constitutes a strong political voice in favour of entry into force, and that opposition or hesitation on the part of one or two Member States at this late stage of the process could present a serious problem of common concern. While the formal requirement of ratification by all stands, this proviso will add further weight to the political pressure that will be brought to bear on the tardy Member State(s). But whether it will lead to anything other than the types of specific derogations or political declarations employed already on several occasions to induce ratification is still anyone’s guess …24 20 In the preamble of the Constitutional Treaty, the heads of state or government of the Member States expressed their gratitude ‘to the members of the European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe’. 21 Decision of the European Council of 17 June 2010, [2010] OJ L160/5. 22 For the period 2009–2014, the Protocol fixed the number of seats to 754, thus derogating slightly from Art 14(2) TEU, [2010] OJ C263/1. 23 Editorial Comments: ‘Protocology’, n 11 above, 1789–92. See also ch 1 at n 4. 24 On the decisions and declarations relating to Denmark in December 1992 and Ireland in June 2002 see Piris, n 19 above, 24–27. On similar measures taken with respect to Ireland in June 2009 and the Czech Republic

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The Treaty of Lisbon has also introduced what are termed simplified revision procedures. First of all, the European Council can, by unanimity and after having consulted the European Parliament and the Commission (and, if need be, the European Central Bank), decide to amend all or part of the provisions of Part III of the TFEU. Part III constitutes the main part of the TFEU and provides the details of all the Union’s policies and internal actions: it comprises what was commonly referred to as the First Pillar under the Maastricht Treaty (namely the internal market, including free movement of goods, persons, services and capital, provisions on an area of freedom, security and justice, transport, competition, taxation, economic and monetary policy and the wealth of other fields in which the European Union has competence to act) and it may seem radical that these matters can now be amended by an act of the Union rather than the traditional intergovernmental treaty. However, the decision to amend cannot enter into force unless and until it has been ‘approved’ by the Member States in accordance with their constitutional requirements. The requirement of unanimous consent has thus been preserved, at the level of both the European Council and the Member States. Therefore, while there is undoubtedly a certain simplification in terms of the procedure in that there is no requirement to convene either a Convention or an intergovernmental conference, the fact that there is no need for national ratifications in the formal treaty law sense may not amount to such a big change as ‘approval of the Member States’ is accompanied by the reference to their constitutional requirements. As a result, it remains to be seen to what extent this provision will herald a ‘fast track’ to Treaty amendment. Moreover, it is expressly forbidden for any such decision to lead to an increase in the competences conferred on the Union (although, interestingly, no such limitation is placed on the prospect of reducing Union competence). ‘Fast’ track or not, this simplified procedure is certainly not dead letter: it was invoked already in March 2011, with a view to amending Article 136 TFEU and enabling the establishment of a permanent stability mechanism to safeguard the stability of the euro area.25 In Pringle, the ECJ held that it had jurisdiction to verify that the procedural rules laid down in Article 48(6) TEU are followed and that the amendments are in conformity with the scope of Article 136, that is, concern only Part III TFEU. As this was considered to be the case, the validity of the European Council Decision amending Article 136 TFEU was upheld.26 Secondly, there is a genuinely simplified procedure for introducing qualified majority voting instead of unanimity, and for switching from a special legislative procedure to the so-called ordinary legislative procedure (a special legislative procedure may, for instance, provide for only the consultation of the European Parliament rather than its full participation in the decision-making process). The procedure, referred to as the ‘general p asserelle’,27

in October 2009 see Editorial Comments: ‘Protocology’, n 11 above, 1789–92; Piris, n 12 above, 51–63. See also ch 8(II) below. 25 European Council Decision 2011/199/EU amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro, [2011] OJ L91/1. As the amendment concerned the stability of the euro, the European Council consulted not only the European Parliament and the Commission but also the European Central Bank. See also J-C Piris, The Future of Europe: Towards a Two-Speed EU? (Cambridge, Cambridge University Press, 2012) 97 and ch 1 above, n 11, and ch 14 below. 26 Case C-370/12, n 8 above. 27 Piris, n 19 above, 127; Piris, n 12 above, 108.

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may be used in areas falling within the TFEU and, concerning the voting regime, also matters relating to the Union’s external action and the CFSP (except those with military implications or relating to defence). Again, the simplification consists in the adoption of an internal act rather than a treaty amendment, and again unanimity is required in the European Council. While the consent of the European Parliament must be obtained, the requirement of the approval of all the Member States has been replaced by an obligation to notify the initiative to the national parliaments. The final decision cannot be adopted if any national parliament makes known its opposition within six months of the date of the notification. Thus, the procedural simplifications are, once again, tempered by a national veto (this time vested directly in the parliaments rather than by reference to varying ‘constitutional requirements’). In addition to Article 48(7) TEU, there are some specific provisions enabling the Council to pass from unanimity to qualified majority voting or from a special legislative procedure to the ordinary legislative procedure. Such specific passerelles, or bridging clauses, are not an invention of the Treaty of Lisbon, but their number has been increased by its entry into force.28 One clause in particular is of institutional interest: Article 333 TFEU concerning so-called enhanced cooperation (which enables a group of at least nine Member States to establish more far-reaching rules among themselves29) essentially repeats the general enabling clause but applies the modified voting rules of enhanced cooperation to the procedure. This seems entirely logical, but it should be noted that, as a result, it is the Council rather than the European Council which has the authority to invoke the passerelle and change the voting or legislative rules applicable to a particular policy area. Moreover, the requirement to inform the national parliaments (and their right of veto) is not reproduced and consultation of the European Parliament is only envisaged for a change in the legislative procedure (which seems logical but does not mirror the general clause, the latter providing for consultation of the Parliament in relation to both the legislative procedure and a switch from unanimity to qualified majority). Moreover, certain provisions in the Treaties, including some of their Protocols, specifically foresee changes to their content without invoking a fully fledged amendment procedure.30 Again, the existence of these clauses is not new, and their frequency is not even particularly increased by the Treaty of Lisbon. What is interesting, in the context of the present review, is to note the variety of conditions found in these specific instances of amendment. As noted above, the general enabling clause found in Article 48(6) TEU displays all the characteristics of a true Treaty amendment procedure, but for the technicality that the act by which amendment is achieved is internal. On the other hand, the specific instances of amendment vary from this extreme (see, for example, Article 25(2) TFEU concerning the strengthening of rights attaching to the status of citizenship, which submits change to the constitutional requirements of each Member State) to the other, that is, an amendment via qualified majority and the ordinary legislative procedure. According to Articles 129(3) and 281 TFEU, respectively, parts of the Statutes of the European Central Bank and the Court

28

Piris, n 12 above, 108–09, 363–64. See ch 8(III) below. 30 Piris, n 12 above, 105–07, 361–62. For an example see Art 126(14) TFEU, according to which the Council, acting unanimously in accordance with the special legislative procedure, may adopt provisions which replace Protocol No 12 on the Excessive Deficit Procedure (on this procedure more generally, see ch 14(III) below). 29

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of Justice of the European Union, which are laid down in protocols which form an integral part of the Treaties and thus of primary law, shall be amended in accordance with the ordinary legislative procedure.31 It is obvious that these procedures, particularly the legislative ones, constitute a certain shift from a traditional international law approach to a more constitutionally coloured procedure. It is telling in this respect that the German Constitutional Court, which in its judgment of 30 June 200932 held that the EU cannot be developed to become a federal state without a complete remaking of the German Constitution through the directly declared will of the German people that it is willing to abandon its right to self-determination, expressed some concerns about the procedures for amending the TEU and the TFEU outlined above. While the Constitutional Court did, in the end, accept the conformity of the Treaty of Lisbon with the German Constitution, it insisted on the need to reinforce the powers of the German Parliament in the formation of German positions. It reached that conclusion notwithstanding the generalised use of the Convention, which should play an important role in the case of important amendments to primary law and which, as was noted above, comprises representatives of national parliaments beside representatives of national governments. Thus, while the Member States are of course central to the process, in addition to their involvement in the preparatory stages of drafting, the European Parliament, the Commission and the national parliaments are now also more involved in the later phases of the amendment process, and the European Council, which drives the procedure, is now, formally speaking, one of the institutions of the EU. In exceptional cases, the decisions are taken not by the European Council but by the Council on its own or together with the European Parliament, sometimes even by majority voting. And, at least in the case of the simplified revision procedure regulated in Article 48(7) TEU, not only must the European Parliament and the national parliaments be consulted—the European Parliament must give its consent and national parliaments can decide to use their veto power.

III. Creeping Competences? The above considerations concern express provisions for changing primary law: the limits that the Masters of the Treaties have placed on themselves and the procedures they proclaim to follow in the event that they wish to change the rules. Before turning our attention to unwritten law, including the general principles of Union law, as developed by the case law of the Union Courts (‘judge-made law’), and whether limits other than those expressly

31 Protocol No 3 on the Statute of the Court of Justice of the European Union and Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the TEU and the TFEU. For amendments of the Statute of the Court of Justice which were adopted following the ordinary legislative procedure see Regulation (EU, Euratom) no 741/2012 of the European Parliament and of the Council of 11 August 2012, [2012] OJ L228/1; Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015, [2015] OJ L341/14; Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016, [2016] OJ L200/137. See also, eg, Arts 98 and 107(2)(c) TFEU concerning the abolition of special arrangements based on German reunification. 32 See n 1 above, para 228 of the judgment.

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signed up to are thereby placed on the Masters of the Treaties, Article 352 TFEU, insofar as it is often viewed as a mechanism for removal of power from the Member States and therefore a vehicle for ‘competence creep’, deserves some comment. The original Article 235 EEC, later to become Article 308 TEC, provided that if, in the operation of the common market, action proved to be necessary to attain one of the objectives of the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, could take the appropriate measures. The possibility of supplementing the specific legal bases in the Treaties by an ad hoc decision taken by unanimity in the Council has therefore existed all along. As noted in the previous chapter, the Treaty of Lisbon seems to have broadened the substantive scope of the provision in line with the changed nature of the Union.33 However, for the purposes of the present chapter and the question of who is Master of the Treaties, it is the changes to the procedure that are of particular interest. The procedure for invoking this catch-all competence has been substantially altered by the Treaty of Lisbon. In the first place, the consent of the European Parliament is now required. However, more importantly for the present discussion, the control mechanisms described above in relation to the principle of subsidiarity have been transposed to the operation of the competence clause. Article 352(2) TFEU provides that, ‘using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) TEU, the Commission shall draw national parliaments’ attention to proposals based on this Article’. The problem is that Article 5(3) TEU does not really contain any procedure as such. It enunciates the principle of subsidiarity, instructs the institutions to respect that principle as laid down in the Protocol on its application and then stipulates that ‘national parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol’. It must therefore be concluded that the procedure referred to in Article 352(2) TFEU is in fact that contained in the Protocol relating to the principles of subsidiarity and proportionality.34 As noted in the previous chapter, that Protocol envisages that draft legislative acts are forwarded to national parliaments ‘at the same time as to the Union legislator’ (Article 4). Articles 6–8 of the Protocol govern the manner in which national parliaments use the information they receive (ie the draft legislative acts) to monitor compliance with the principle of subsidiarity.35 As an aside, it is interesting to note that the German Constitutional Court did not assess this aspect of the procedure in its judgment on the Treaty of Lisbon, particularly in view of the fact that it specifically c onsidered the need for the involvement of the German Parliament in the adoption of German positions on legal measures based on Article 352 TFEU.36 Recourse to this catch-all provision has always required unanimity in the Council, and to that extent it displays the key feature of the treaty amendment procedures described in

33

See ch 3(III) above. Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality annexed to the TEU and the TFEU. 35 See ch 3(III) and 3(IV) above. 36 In its judgment of 30 June 2009 (n 1 above), the German Constitutional Court rightly pointed out that ‘Article 352 TFEU is no longer restricted to the attainment of the objectives in the context of the Common M arket’ (para 327). For this reason, the Court insisted that Germany may not declare its approval of a proposal of the Commission under this provision unless the German Bundestag and the Bundesrat have given their consent (para 328). cf Piris, n 12 above, 121 (n 17). 34

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section II above. True, it operates via an internal act of the institutions rather than a treaty between nation states, but that is now the case also for the simplified revision procedures. Thus it certainly cannot be made the scape goat responsible for the ‘uncontrolled’ growth of the competences of the Union, and although the result of its use in the past may well have been a certain transfer of power away from the Member States, the provision has, under the control of the Court, operated more as a means to react to changing legal or political realities than a surreptitious undermining of the Member States as Masters of the Treaties.37 Can the same be said of unwritten primary law, and in particular the general principles of Union law, as applied and interpreted by the Union Courts?38 The Danish Supreme Court does not think so. In a recent judgment, it has argued that in view of the Danish Law on accession to the EU, the general principles developed or established on the basis of Article 6(3) TEU (fundamental rights as general principles of Union law) have not been made directly applicable in Denmark.39 While the different sources of Union law, including its general principles, will be considered more fully in chapter five, it should be noted here that the development of the general principles through the case law has undoubtedly contributed to the dynamic nature of Union law and its development into what we refer to as a constitutional order.40 This originally largely unwritten body of primary law evolved outside the procedures for Treaty amendment referred to above and to that extent may be considered to have developed at the hands of someone other than the Masters of the Treaties. However, we would submit that this aspect of what has proved to be an invaluable source of law is less radical than it would appear. First of all, many of these general principles are simply necessary ingredients of any legal order and may therefore be considered to exist independently of whether they are given specific expression in written law.41 Secondly, the task entrusted to the Court by the Masters of the Treaties themselves, to ensure that in the interpretation and application of those Treaties ‘the law is observed’ (Article 19(1) TEU), was and continues to be framed in such general terms that when gaps come to light it is quite proper for the Court to seek to fill them. It is therefore the task of the Union Courts, notably the ECJ but often in a dialogue with national courts, to identify the existence of a particular principle and determine the 37 See, in particular, Opinion 2/94 (Accession to the European Convention on Human Rights) EU:C:1996:140 and A Dashwood, ‘Article 308 EC as the Outer Limit of Expressly Conferred Community Competence’ in C Barnard and O Odudu, The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 35. The effects of this case law are reproduced as Declaration No 42 on Article 352 TFEU annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, see ch 3(III) above. 38 K Lenaerts and JA Gutiérrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47 Common Market Law Review 1629; S Prechal, ‘Competence Creep and General Principles of Law’ (2010) 3 Review of European Administrative Law 5. See also ch 5(II) below. 39 Judgment of 6 December 2016, Case 15/2014 (First Chamber). The Supreme Court also, departing from not only the case law of the ECJ but arguably also Article 6(1) TEU and the Charter of Fundamental Rights, claimed that the provisions of the Charter are not directly applicable in Denmark either, see section IV and ch 5(III) at n 16, ch 6(II) at n 23 and ch 11(III) below. 40 See, eg X Groussot, Creation, Development and Impact of the General Principles of Community Law: Towards a Jus Commune Europaeum? (Lund, Faculty of Law, Lund University, 2005); T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006). 41 See, in this respect, the Opinion of the Legal Service of the Council cited in Declaration No 17 concerning primacy annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon: the fact that the principle of primacy will not be included in the Treaty of Lisbon ‘shall not in any way change the existence of the principle and the existing case law of the Court of Justice’.

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conceptual and material content thereof in order to apply it to the situation at hand as well as hand down the authoritative interpretation of that or any other element of Union law. Thus, while the notion of ‘judicial activism’ is in our view problematic (it seems to offer a cheap tool to anyone who happens to be in disagreement with the outcome of a given case), there is no denying that the judges (but including in this sense the judges in the Member States42) have made an important contribution to the development of Union law and that, given the clearly constitutional nature of certain of these developments, the question of legitimacy is important. It is in this respect that the accusation of ‘judicial activism’ is a topic in itself.43 For the purposes of the present chapter, three observations will be made, the first relating to the task of the Union Courts to uphold the law, and thus also the rule of law, the second relating to the corollary development by those courts of the idea that certain fundamental values set limits to the nature of the amendments to primary law which may be envisaged and the third relating to actual amendments to written Union law and the consequent ‘codification’ of the case law of those courts. But before we begin, let us make one preliminary remark more directly related to the accusation of ‘competence creep’. The general principles, as part of Union law, can only apply when that legal order is engaged, in other words when a situation falls within the scope of Union law. Can a (too) broad understanding of what falls within the scope of Union law imply an extension of the reach of those general principles to such an extent that the limits to Union competence described in chapter three above are circumvented?44 It is in this respect that the judgment in Mangold attracted widespread criticism.45 The judgment is analysed in more detail in chapter eleven below, suffice it to note here that, in deciding that the situation fell within the scope of Union law, the ECJ did cite two relevant directives, one of which was undoubtedly applicable to the case at hand.46 In deciding that

42 On the importance of the national adjudicatory level see Opinion 1/09 (Draft Agreement on the European and Community Patents Court) EU:C:2011:123. See also A Rosas, ‘The National Judge as EU Judge: Opinion 1/09’ in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012) 105 and ch 16(III) below. 43 See, eg A Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial Activism?’ in C Baudenbacher and H Bull (eds), European Integration Through Interaction of Legal Regimes (Oslo, Universitetsforlaget, 2007) 33; K Alter, The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2010); S Sankari, ‘Could the Court of Justice Have Done Differently?’ in K Tuori and S Sankari (eds), The Many Constitutions of Europe (Farnham, Ashgate Publishing, 2010) 195; P Craig, ‘The ECJ and Ultra Vires Action: A Conceptual Analysis’ (2011) 48 Common Market Law Review 395; H-W Micklitz and B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Antwerp, Intersentia, 2012); G Beck, Legal Reasoning and the European Court of Justice (Oxford, Hart Publishing, 2012). 44 See, eg Editorial Comment, ‘The Scope of Application of the General Principles of Union Law: An Ever Expanding Union?’ (2010) 47 Common Market Law Review 1589. 45 Case C-144/04 EU:C:2005:709. See, eg Editorial Comment, n 44 above; M Beyer-Katzenberger, ‘Judicial Activism and Judicial Restraint at the Bundesverfassungsgericht: Was the Mangold Judgement of the European Court of Justice an Ultra Vires Act?’ (2011) 11 ERA Forum 517. And the judgment of the German Constitutional Court in which it was called upon to consider whether the ruling of the ECJ was ultra vires, Judgment of 6 July 2010, 2 BvR 2661/06. 46 Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, [1999] OJ L175/3. The other Directive, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2000] OJ L303/16, was also relevant rationae materiae but it was not fully applicable rationae temporis as the period allowed to implement the Directive had not expired with regard to the Member State concerned.

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discrimination on grounds of age constituted a general principle of Community law, the Court did not conjure that principle from thin air. That said, it is perhaps regrettable, in hindsight, that the Court did not choose this judgment to abandon its hitherto cautious approach and cite the Charter of Fundamental Rights (which, in its Article 21, prohibits discrimination based on, inter alia, age), despite its status at the time as ‘mere’ soft law.47 In any case, the provision which accords the status of primary law to the Charter (Article 6(1) TEU, as amended by the Treaty of Lisbon) specifically provides that the Charter ‘shall not extend in any way the competences of the Union as defined in the T reaties’. Article 51(2) of the Charter is even more explicit: the Charter ‘does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. But it is simply a product of the increasing intertwining of Union law and national law that clear dividing lines are often difficult to draw and a certain margin of interpretation is therefore unavoidable. Exercising discretion within that margin is not, of itself, judicial activism but is rather the very essence of the task of the ECJ as the repository of interpretative authority. Turning then to the three observations set out above, it seems to be rather stating the obvious to say that the Union and its actors will respect the rule of law. What is perhaps surprising is that, even in the immediate aftermath of World War II, the original Masters of the Treaties also found this to be the case; the founding Treaties mentioned neither the rule of law nor the fundamental rights the protection of which were its principal raison d’être. This is less surprising if the original, purely economic, aim of integration is recalled. The appearance of these two concepts in the Treaty of Maastricht may therefore be seen as an overt recognition of the shift towards a more political integration organisation. Respect for the rule of law is now expressly required. Indeed, Article 2 TEU, as amended by the Treaty of Lisbon, elevates the rule of law to one of the ‘values’ on which the Union is founded; arguably a stronger concept than the reference in the corresponding provision in the TEU as it existed before the entry into force of the Treaty of Lisbon to the ‘principles’ on which the Union is founded. However, it is submitted that not only would it have been impossible to suggest that this was not the case prior to the entry into force of the Treaty of Maastricht, it was indeed implicit from the outset, notably via provisions such as the original Article 4 of the EEC Treaty (now incorporated in Article 5 TEU), which bound the institutions to act within the limits of the powers conferred on them by the Treaty, and Article 164 of the EEC Treaty (now Article 19(1) TEU), according to which it fell to the Court to ensure that the law was observed in the application of the Treaties. It may therefore be concluded that the original drafters accepted the idea both that action (by any level of authority) is bound by rules that are fixed and announced beforehand and that a necessary corollary of this principle (a basic definition of the rule of law) is that sanctions exist in the event that the principle is disregarded; in other words, that respect for the rule of law necessarily implies the principles of judicial review and access to the courts 47 In his Opinion of 7 July 2009 in Case C-555/07 Kücükdeveci EU:C:2010:21, Advocate General Bot deplored the fact that the Court, in Mangold, did not cite the Charter. According to the Advocate General, the Court’s reasoning ‘would, of course, have been more convincing’ if it had been based on Article 13(1) TEC (the legal basis for adopting anti-discrimination legislation) and Article 21(1) of the Charter of Fundamental Rights (para 77 of the Opinion). In fact the ECJ did go on to cite the soft law version of the Charter, doing so for the first time in Case C-540/03 Parliament v Council EU:C:2006:429, see ch 11(III) below. cf the judgment of the Danish Supreme Court of 6 December 2016, n 39 above.

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(both of which, in contrast to the rule of law itself, were expressly dealt with from the outset in written primary law). The ruling of the Court in 1986 to the effect that the Community is based on the rule of law, inasmuch as neither its institutions nor its Member States can avoid review of the conformity of their acts with the basic constitutional charter (that is, the Treaty), was therefore based on firm ground.48 Subsequent case law develops this idea and reaffirms that the rule of law is one of the cornerstones of the Union.49 Thus the Member States are bound by the Treaties in their actions implementing Union law, but are they also bound in their role as constituent authority or can they amend the Treaty at will? Have they deferred to the higher nature of some of the fundamental values? Or could the Masters of the Treaties, if they so chose, amend a fundamental aspect of the edifice that is the European Union? This leads us to our second observation. Bearing in mind the proviso highlighted at the beginning of the chapter that only history will live to tell the tale of respect for a constitution, we propose that, as a starting point, it may be assumed that the values identified in Article 2 TEU may not be ‘amended away’: thus, in addition to the rule of law, the Masters of the Treaties are bound by respect for human dignity, freedom, democracy, equality and respect for human rights. It is significant in this respect that according to Article 7 TEU, sanctions may be directed against a Member State in response to a ‘serious and persistent breach of the values referred to in Article 2’.50 It may seem unlikely that a Treaty amendment would propose to act specifically contrary to one of these basic values. However, it is important to identify them as sources of law and inquire as to the strength with which they bind the Member States since upholding the rule of law requires not only knowing what that law is but allowing individuals to base their challenges to action by the Union on all aspects of that law. This proposition has arguably been taken to the next level in the context of a case involving alleged terrorism and respect for human rights (Kadi).51 But can the idea expressed by the Court in Kadi that nothing in the Treaty may be understood as authorising a derogation from the principles that form part of the very foundations of the Union legal order (arguably the principles of liberty, democracy, and respect for human rights and fundamental freedoms enshrined in Article 2 TEU as the closest equivalent to the former Article 6(1) TEU referred to by the Court) really be characterised as ‘judicial activism’ or is it simply inherent in the idea of any legal order worth that name?52 We shall come back to this reliance on core constitutional principles in section II of chapter five. Suffice it to note here that while the judgment in Kadi carries with it the potential to restrain the 48

Case 294/83 Les Verts v European Parliament EU:C:1986:166. See, eg Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation, n 10 above, and, for an example of a recent judgment, Case C-72/15 Rosneft EU:C:2017:236, paras 72–73. 50 See also the Commission Communication on a new EU Framework to strengthen the Rule of Law, COM(2014) 158 final of 19 March 2014, and the Commission opinions and recommendations relating to Poland, discussed elsewhere, chs 11(II) and 16(III) below. 51 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation, n 10 above. See also ch 3(III) above, n 20, and ch 5(II) below. 52 The Court cited two provisions of the TEC (Arts 297 and 307) and stated, inter alia, that ‘[t]hose provisions cannot, however, be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Art 6(1) EU as a foundation of the Union’ (ibid, para 303). 49

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ossibilities of amending even written primary law, albeit in a relatively uncontroversial p fashion, that would not prevent the Member States as ultimate Masters of the Treaties from making such changes, but we would argue that in so doing, they would be doing away with the constitutional order and thus the Union altogether. This brings us to our final observation that at least one test of the legitimacy of the Court’s ‘findings’ in terms of general principles of law is the reaction of the Masters of the Treaties at the next amendment opportunity and the conclusion that, for all the noise, the Treaty has never been amended to negate general principles of law enunciated by the judges. On the contrary, the central role of the Court in the Union constitutional structure as a whole has been consistently strengthened rather than curbed. Moreover, many of these general principles have now been specifically incorporated into written primary law; the rule of law is one basic example, but in addition to that and the development of the protection of fundamental rights more generally, principles such as those identified in chapters two and three and accepted as central to the question of what the Union is were also originally ‘judge-made’. Treaty amendments and the development of secondary law (such as regulations and directives) give the Masters of the Treaties and the Union political institutions, respectively, the occasion to review developments of Union law brought about by case law and there are indeed some instances of primary or secondary law being amended with a view to qualifying or limiting the effects of a judgment handed down by the Union Courts.53 Concerning primary law, the so-called Barber Protocol offers the most obvious example. In 1990, the ECJ held, inter alia, that benefits paid to a worker in connection with his compulsory redundancy fell within the scope of the then Article 119 (later to become Article 141) TEC (now Article 157 TFEU) and that it was contrary to Article 119 to maintain a national rule which deferred a pension payable at a retirement age when the retirement age was different for men and women.54 However, the Court limited the effects rationae temporis of its judgment holding that, as a rule, Article 119 could not be relied upon in order to claim entitlement to a pension with effect prior to that of the judgment. The Protocol, which was annexed to the TEC in the context of the Treaty of Maastricht, provided that ‘benefits under occupational social security schemes’ more generally were not, for the purposes of Article 119, to be considered as remuneration if and in so far as they were ‘attributable to periods of employment prior to 17 May 1990’ (the date of the Court’s judgment).55 While there were divergent interpretations as to the exact scope of the B arber judgment, including of the limitation rationae temporis introduced by the Court, and therefore the extent of the effect of the Protocol, it is clear that the Masters of the Treaties, by its adoption, were clearly setting parameters on further developments in the field.56

53 See also G Davies, ‘Legislative Control of the European Court of Justice’, (2014) 51 Common Market Law Review 1571. 54 Case C-262/88 Barber EU:C:1990:209. 55 Protocol No 2 concerning Article 119 of the Treaty establishing the European Community annexed to the same Treaty. 56 This was also reflected in subsequent case law, see notably Case C-109/91 Ten Oever EU:C:1993:833, paras 15–20; Case C-128/93 Fisscher EU:C:1994:353, paras 41–50. See also Case C-57/93 Vroege EU:C:1994:352, paras 33–43.

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Similarly, in the area of secondary law, there have, for instance, been a number of amendments to the 1971 regulation on the application of social security schemes to persons moving within the Union which were aimed at qualifying or limiting the effects of ECJ judgments.57 To mention but one example, an amendment introduced in 1992 enabled the exclusion of certain so-called special non-contributory benefits from the right to export benefits.58 The difference, of course, in relation to secondary law is that the Court has the jurisdiction to review the validity of any amendment as measured against superior norms such as written or unwritten primary law.59 Does this mean that the judges, in those cases where their findings were the subject of later modification, were being subversive, usurping the power that properly resides in the Member States as Masters of the Treaties? We suggest not. As noted above, it is quite proper for the judges to interpret the law in accordance with accepted methods of interpretation and to fill gaps in the legal system accordingly. It is, of course, equally proper (subject to the discussion above concerning core values) for the Masters of the Treaties to then indicate via a Treaty amendment or other legislation that they would prefer that the gap be filled in another way. In any event, much more frequent are the amendments to written primary or secondary law which incorporate rather than qualify developments in the case law. As will be explained in more detail in chapter eleven, the adoption of the Charter of Fundamental Rights, first as a ‘soft law’ instrument, and then as an act of binding primary law referred to in Article 6(1) TEU, is the foremost example. The Charter itself explains in its preambular part that it reaffirms rights as they result not only from the constitutional traditions and international obligations common to the Member States as well as three instruments specifically named but also from ‘the case-law of the Court of Justice of the European Union and of the European Court of Human Rights’. Article 6(3) TEU, which refers to fundamental rights as general principles of Union law, is also based on case law, as it has developed since 1969.60 Fairly often, Union case law is also codified or otherwise endorsed by Union legislative acts. Two examples can be mentioned here: a Directive relating to the free movement of Union citizens of 2004 in many ways builds on, and also makes explicit references, to ECJ case law.61 A more recent Directive on the application of patients’ rights in cross-border

57 Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, [1971] OJ L149/2, as amended. This Regulation has been replaced by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L166/1. 58 See Council Regulation (EEC) No 1247/92 of 30 April 1992, [1992] OJ L136/1, which added an Art 10a to the Regulation. 59 See, in particular, Case C-20/96 Snares EU:C:1997:518, paras 38–52, with references to earlier case law. See also Case C-275/96 Kuusijärvi EU:C:1998:279, which concerns an addition made in 1991 to a provision (Art 13) concerning the choice of national social law in situations when a person has ceased to work in a Member State and moved his residence to another Member State without working in the latter state. The amendment rendered obsolete an earlier line of case law (see, eg Case 302/84 Ten Holder EU:C:1986:242). 60 Case 29/69 Stauder EU:C:1969:57. For subsequent developments in fundamental rights case law, see ch 11 below. 61 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L158/77 and corrigendums, [2004] OJ L229/35, L197/34 and L204/28. Explicit links to earlier case law are made in the 9th and 16th recitals of the Directive. See also ch 10(IV) below.

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healthcare is to an even greater extent a reflection of the Court’s case law in that field.62 A recital recognises that the Directive ‘is intended to achieve a more general, and also effective, application of principles developed by the Court of Justice on a case-by-case basis’.63

IV. The Ties that Bind So who is the boss? A formal answer focusing on the development of written primary law would be that the Member States retain a crucial say in the process. And yet, the Treaty of Lisbon will imply more involvement of EU actors, including the Convention, in the adoption of amendments to the TEU or the TFEU and an increased possibility to use various simplified procedures, including bridging clauses and, exceptionally, even the ordinary legislative procedure. A more detailed look at the daily running of EU affairs would find it more difficult to pinpoint a particular boss.64 There are either many bosses or, depending on your perspective and/or the situation at hand, no boss at all. In fact, let us remind the reader of the view, which we share, that the EU constitutes a prime example of multilevel governance. This concerns above all the adoption of secondary law and other measures of a less constitutional nature, but the development of primary law, too, may be seen as a dynamic process of interaction between different players, including the Union Courts and actors at national level, as well as civil society and non-governmental forums.65 Indeed, the development of EU competences and powers more generally are, in the final analysis, dependent on acceptance of the integration process by the citizens and the institutions of the Member States. And as the UK decision to withdraw from the Union demonstrates, if the majority of the population of a Member State considers that the development of competences and powers has gone too far, it may decide to leave the European project. The question of democratic legitimacy and the role of citizens will be considered in chapters nine and ten below. As to the role of Member States’ institutions, many constitutional or supreme national courts reserve for themselves a right not only to scrutinise Treaty amendments against the backdrop of the national constitution but also to judge whether a Union act and/or a decision of the Union Courts are ultra vires, in other words go beyond the competence that the authors of the Treaties have conferred on the Union (see further section II of chapter six below). From the perspective of Union law, there are (at the least) very important limits on such national checks. And yet, it is an inescapable fact that national constitutional organs,

62

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011, [2011] OJ L88/45. The 8th recital. See also recitals 6, 10, 11, 12, 26, 27, 38, 40, 42, 43 and 44. 64 cf A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 Common Market Law Review 1452, who, in discussing the principle of respect for the national identity of Member States, expressed in Art 4(2) TEU, observe that under a pluralistic understanding, ‘the answer to the question of who has the ultimate power to decide on issues of national identity is that there is no definitive answer as there is no final arbiter in a composite system of European constitutional adjudication’. 65 Rosas, n 4 above, 967–71. 63

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and in particular constitutional courts, play a certain role in the discussion on ‘competence creep’.66 Indeed, an ECJ judgment of 2012 for the first time led a national constitutional court to conclude that the judgment constitutes an ultra vires act.67 And at the end of 2016, the Danish Supreme Court, despite an ECJ judgment to the contrary, concluded that it could not disapply a Danish rule even if it was not compatible with a general principle of Union law (prohibition of discrimination on the basis of age) recognised in ECJ case law and Article 21 of the Charter of Fundamental Rights.68 Whether the fact that these cases remain (so far) isolated incidents is due to the fact that the Union institutions have, after all, kept within the limits of their competence or whether it can also be attributed to the national courts’ acceptance of the monopoly of the ECJ to rule on the validity of Union acts69 and/or judicial restraint on the part of the national court is a question which cannot receive an unequivocal answer. But whatever the answer, the conclusion is unavoidable that the general principles of EU law, and fundamental rights in particular, appear set to become an increasingly important point of reference. True, the elevation of the Charter and the codification of many other general principles in written primary law may shift the focus away from what is sometimes referred to as judge-made law. But it cannot be denied that the very general nature of many of the principles and rules still leave much room for judicial interpretation. This fine web of checks on Member States’ power illustrates well the dynamic nature of the EU constitutional order and the ties that bind both destinies and hands.

66 See also von Bogdandy and Schill, n 64 above, 1417, who speak of a ‘composite system of European constitutional adjudication’, comprising both the ECJ and national courts. 67 Judgment of the Czech Constitutional Court of 31 January 2012, File No Pl. ÚS 5/12. The question as to whether such a view can be reconciled with the principle of primacy of Union law will be discussed in ch 6(II) below. 68 Judgment of the Danish Supreme Court of 6 December 2016, n 39 above. 69 See ch 6(II) below.

5 Looking Past the Trees to See the Wood: Construing a Hierarchy of Norms I. Introduction The four preceding chapters have already brought out the two principal levels of the EU legal order, that is, primary and secondary rules. Some refinement of these categories has already been indicated (such as the distinction between written primary rules and at least partly unwritten general principles of Union law). It is now time to carry out a somewhat more thorough inventory of EU legal norms. Although the more radical root and branch reform set out in the Constitutional Treaty of 2004 was not retained, some elements of reform to the original system have been adopted. What is more, we would suggest that the legal landscape was not the tangled undergrowth that was often implied: perhaps all that was needed was time to reflect in order to be able to look past the trees and see once again the wood. It seems useful at the outset to present a general structure which is based on the idea of a hierarchy of norms. While this concept is not and has never been mentioned in the Treaties, the case law of the ECJ has brought some order and clarity to the question of the relationship between different categories of norms.1 The Treaty of Lisbon further contributes to the idea of a hierarchy, for instance by distinguishing between legislative, delegated and implementing legal acts. When we speak of a hierarchy of norms, we mean a vertical relationship where norms of a higher order prevail over lower norms. This, as a general rule, implies that the lower norm may be declared invalid because of non-conformity with the higher norm (but a caveat has to be made for public international law norms, see section IV below). However, in the EU system of multilevel governance, that notion of hierarchy (and thus also the notion of supremacy) seems less well suited as a means to describe the relation

1 In Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, the ECJ spoke of the ‘hierarchy of norms within the Community legal order’ (para 305). For a discussion of the different types of instrument available to the Union institutions (as well as a critique of what changes would have been made by the Constitutional Treaty), see K Lenaerts and M Desomer, ‘Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures’ (2005) 11 European Law Journal 744.

Introduction

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between Union law and national law, which is better served by the notion of primacy.2 While Union law commands the non-application of national norms which are in conflict with Union norms (see section II of chapter six below), the national norm is not thereby invalidated. On the other hand, the EU decentralised system of governance demands that we sometimes include references to national law (viewing it as part of the EU legal order in the broad sense). As already noted in the previous chapters, Union law and national law have in fact become entangled, or rather intertwined, to such an extent that we can speak of a common legal system. True, national law, as a general rule, cannot be directly applied by Union institutions and other bodies. That said, national law is in many respects highly relevant for the application of Union law. This question will be further examined in section V of chapter six. But first let us consider the point of view of the Union legal order and its internal hierarchy. A distinction can be made between the following categories of norms: (i) The value foundations of the EU legal order (Article 2 TEU). (National constitutional principles.) (ii) General principles of Union law (including fundamental rights). (iii) Written primary law, such as the TEU and the TFEU with protocols. (iv) International agreements binding on the EU; general international law. (v) Secondary law in the form of legislative acts. (vi) Legal acts adopted by the Commission on the basis of delegated powers (delegated acts). (vii) Legal acts adopted by the Commission or, as the case may be, the Council, on the basis of implementing powers (implementing acts). (National law of relevance for the application or implemention of Union legal acts.) It should be emphasised that the list is not exhaustive as it does not include decisions adopted under the Common Foreign and Security Policy (CFSP), which do not constitute legislative acts, nor a number of other non-legislative special acts and instruments the legal status of which is not always clear.3 The different levels indicated in the list and the relationship between them call for some explanation. In addition, the case law of the Union Courts constitutes an important source of law, but one that we will not attempt to insert into the hierarchy since the task of the judges is to interpret the other sources of Union law. Two general points should, however, be noted. First, as was alluded to in chapters three and four, the view that they sometimes do more than that is a topic in itself, but we shall limit ourselves here to some references to case law of relevance for the relationship between the different categories of norms listed above, including the relationship between the foundations of the Union legal order and 2 I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 European Law Review 511, at 520, observes that ‘[i]n the light of “multilevel constitutionalism” the relationship between European and national law is not a hierarchical but a functional one’. See also C Franzius, Europäisches Verfassungsrechtsdenken (Tübingen, Mohr Siebeck, 2010) 38 et seq; K Lenaerts and JA Gutiérrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47 Common Market Law Review 1629 at 1662–1663; J Habermas, Zur Verfassung Europas. Ein Essay (Berlin, Suhkamp Verlag, 2011) 59. 3 See K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 817 et seq, who present a more exhaustive overview of the different forms and categories of Union norms.

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primary law. Secondly, where a judgment becomes the object of primary law (either codifying, limiting or repealing the interpretation of the judges), the source of law changes and— with a possible caveat as a result of the discussion in section II—the ECJ has no jurisdiction to rule on the validity of primary law.4

II. Foundations of the Union Legal Order The notion that there exist values that constitute the foundations of the legal order is inspired by Article 2 TEU, according to which 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’. Why have we placed this notion at a higher level, above EU primary law? First of all, the primordial status of the values in question is reflected in the TEU itself. These values are listed in Article 2 TEU, a new provision which, although partly based on what was (pre-Lisbon) Article 6(1) TEU, now forms the ideological basis for the more precise objectives set forth in Article 3 TEU and the basic principles of the constitutional order enshrined in Articles 4 and 5 TEU. Moreover, according to Article 49 TEU, respect for and commitment to promote the values referred to in Article 2 TEU are a condition for the right to apply for membership of the Union. And, by virtue of Article 7 TEU, a ‘serious and persistent breach’ by a Member State of those values may lead to the suspension of the rights which the Member State in question can otherwise derive from the application of the Treaties to it. Secondly, in Kadi,5 the ECJ confirmed and made more explicit a tendency discernible in earlier case law according to which the EU constitutional order consists of some core principles which may prevail over provisions of the Treaties and thus of written primary law.6 The Court held that Articles 297 TEC (measures taken by Member States for the maintenance of international peace and security, now Article 347 TFEU) and 307 TEC (agreements concluded by Member States before accession to the EU, now Article 351 TFEU), although permitting some deviation even from primary law could not be understood as authorising any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in the then Article 6(1) TEU and characterised by the Court as ‘principles that form part of the very foundations of the Community legal order’

4

See, eg Joined Cases 31/86 and 35/86 LAISA and CPC España v Council EU:C:1988:211. Joined Cases C-402/05 P and C-415/05 P, n 1 above. See Opinion 1/91 (Draft Agreement Relating to the Creation of the European Economic Area) EU:C:1991:490, paras 71–72; Case C-432/04 Commission v Cresson EU:C:2006:455, paras 111–13. See also M Heintzen, ‘Hierarchisierungsprozesse innerhalb des Primärrechts der Europäischen Gemeinschaft’ (1994) 28 Europarecht 35; JL da Cruz Vilaça and N Piçarra, ‘Y a-t-il des limites matérielles à la révision des Traités instituant les Communautés européennes?’ (2003) 39 Cahiers de droit européen 3; J Rideau, Droit institutionnel de l’Union et des Communautés européennes, 5th edn (Paris, LGDJ, 2006) 239; M Lindfelt, Fundamental Rights in the European Union: Towards Higher Law of the Land? (Turku, Åbo Akademi University Press, 2007) 298–300; A Rosas, ‘EU Primary Law as Substantive Law’ in A Fischer-Lescano et al (eds), Frieden in Freiheit–Peace in Liberty–Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden, Nomos Verlag, 2008) 957, 962. 5

6

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(emphasis added).7 The Court therefore confirmed that Article 307 TEC could not be invoked to challenge those principles, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights. This is not necessarily to say that the substance of all fundamental rights has become part of the ‘very foundations’ of the Union legal order which prevail over all other parts of primary law. What is clear, however, is that according to the Court the very principle of protection of fundamental rights, including the principle of judicial review and the exclusive jurisdiction of the Court, does form part of these basic unassailable tenets. Moreover, the Kadi judgment can be read as a ruling in favour of taking fundamental rights in general ‘more seriously’, thus responding to the criticism sometimes directed against the ECJ for having deferred too much to the internal market freedoms of the TEC (now the TFEU).8 This criticism sometimes overlooks the fact that the fundamental rights which have had, according to the Court, to cede to a given economic freedom (for example, freedom of assembly and of expression or the right to take collective action9) have in themselves permitted limitations and some balancing against other interests such as public order or the respect for the rights of others.10 Moreover, in light of the Court’s recent case law, including Kadi, it cannot be excluded that even those fundamental rights which are not to be considered as part of the foundations of the EU constitutional order should now be seen as having a somewhat enhanced status as compared to other parts of primary law.11 That is why they have been mentioned separately, and slightly above written primary law, in the above list; which leads us from the foundations of the legal order to primary law proper.

III. Primary Law What is primary law? Let us start with the obvious: the basic Treaties, notably the TEU and the TFEU, constitute by far the most important part of Union primary law. The procedures for amending the Treaties have already been explained in section II of chapter four above. The content of the Treaties is being considered throughout this book. It should be added that this category consists not only of the Treaties themselves (the TEU, the TFEU and the Euratom Treaty), but also of a great number of protocols and annexes which form an

7 Joined Cases C-402/05 P and C-415/05 P Kadi, n 1 above, para 304. See also, para 282, in which reference is made to the ‘very foundations of the Community’. This expression was first used by the Court in 1976 in a case concerning equal pay for men and women (Case 43/75 Defrenne EU:C:1976:56, para 29) and again in 1978 in relation to the principle of primacy (Case 106/77 Simmenthal EU:C:1978:49, para 18). See also Opinion 1/91, n 6 above, para 46. 8 There is extensive literature on this subject which cannot be listed here. For a general introduction see P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999). See further ch 11 below. 9 See, eg Case C-112/00 Schmidberger EU:C:2003:333 and Case C-438/05 International Transport Workers’ Federation (‘Viking Line’) EU:C:2007:772. 10 In Case C-112/00 Schmidberger, n 9 above, the Court observed that ‘unlike other fundamental rights enshrined in that Convention, such as the right to life or the prohibition of torture and inhuman and degrading treatment or punishment, which admit of no restriction, freedom of expression and of assembly are not absolute but must be viewed in relation to their social purpose’ (para 80). 11 See also Lindfelt, n 6 above, 298–300; Rosas, n 6 above, 962.

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integral part of the Treaties (Article 51 TEU).12 In addition, the Acts of Accession also form part of this written primary law. Indeed, they are annexed to the Treaties and are concluded between the Member States and the candidate state acting in their capacity as constituent authority; any consequential amendment of secondary legislation laid down in the Act of Accession itself will thus gain the status of primary law and as such may only be amended by the specific procedures laid down for that purpose (and discussed in section II of chapter four above). On the other hand, Declarations attached to the Treaties are just that: expressions of how the authors of particular provisions intended for them to be understood. As such, Declarations are not binding although they may, if they have been approved by all Member States, serve as an indication of how those provisions are to be interpreted;13 unilateral Declarations made by one or other Member State tend to be more political in nature and do not normally serve as an aid to interpretation since they represent only the view of the Member State making the Declaration. But in the Union legal order, the story does not end with the already highly-developed body of written primary law. As should be apparent from the foregoing discussion, it is our conviction that the structure and content of the EEC Treaty, and later the TEC, called for the determination of some general principles of Community law, including fundamental rights. This was necessary in order to provide coherence to the almost bewildering mix of general objectives and principles supplemented by a host of quite detailed but somewhat incoherently drafted rules and to give effect to the obligation, expressed in Article 220 TEC (replaced by Article 19(1) TEU), that the Union Courts ‘ensure that in the interpretation and application of this Treaty the law is observed’. We would therefore argue that the ECJ ‘found’ rather than ‘made’ a list of unwritten general principles.14 Be that as it may, it is by now a well-established fact that one of the key sources of EU law is its general principles: the Court has stated that ‘the general principles of Community law have constitutional status’.15 However, a recent judgment of the Danish Supreme Court appears to call that position into question. That court appears to have taken the view that a general principle of Union law (and the Danish judges acknowledge the principle of nondiscrimination on grounds of age as such) which has no basis in the Treaties, ie is unwritten, is ‘not, however, directly applicable in Denmark’.16 This is a quite remarkable statement and, we suggest, a blow to the very core of the EU constitutional order (see further at section III of chapter six below). The judgment does not contest the existence of the general principle but refuses to accept it as a source of law able to create obligations and take precedence over what is recognised as conflicting Danish law in a dispute between individuals.

12

37 Protocols and two Annexes complete the TEU and the TFEU, [2008] OJ C115/201. Case C-233/97 KappAhl Oy EU:C:1998:585. 14 In relation to the recognition of fundamental rights as general principles of Community law see, eg A Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial Activism?’ in CB audenbacher and H Bull (eds), European Integration Through Interaction of Legal Regimes (Oslo, Universitetsforlaget, 2007) 33. See also ch 4(III) above. 15 Case C-101/08 Audiolux and Others EU:C:2009:626, para 63. On the subject more generally, see notably X Groussot, Creation, Development and Impact of the General Principles of Community Law: Towards a Jus Commune Europaeum? (Lund, Faculty of Law, Lund University, 2005); T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006); Lenaerts and Gutiérrez-Fons, n 2 above. See also ch 4(III) above. 16 Judgment of the Supreme Court of Denmark of 6 December 2016 in case 15/2014. See ch 4(III), n 39, above. 13

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What is interesting more generally is that these principles have, for the most part, been progressively incorporated into written primary law, that is, the Treaties; their existence and, it may be concluded, importance to the proper functioning of the legal order has thus been specifically recognised by the Masters of the Treaties we referred to in chapter four. The rule of law is a basic example of this trend (it is now explicitly enshrined in Article 2 TEU). Other examples of general principles which have found their way into the text of the Treaties are the principles of subsidiarity (eg Article 5(3) TEU), proportionality (Article 5(4)) TEU) and mutual recognition (Article 67(3) and (4) TFEU). The evolution of the status accorded to the protection of human rights and fundamental freedoms more generally is a good illustration of how important these general principles are to the Union legal order and a perfect example of the trend towards a written expression of principles the (unwritten) existence of which is not contested. Indeed, it has always seemed self-evident that those principles would be respected in the Union legal order but there was an increasing recognition of the need to say so expressly. This process culminated in the specific elevation of the Charter of Fundamental Rights of the European Union to the level of binding primary law (Article 6(1) TEU), a development which will arguably increase even further the prominence of fundamental rights as the base on which other action is built.17 The Charter contains a number of provisions which had already been specifically identified as general principles of Union law. Examples include the principles of equality and non-discrimination (Articles 20, 21 and 23), the principle of good administration (Article 41) and the principle of effective judicial protection (Article 47). In this context, it should be noted that according to its Article 53, the Charter shall not be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised by Union law and international law, and by international agreements to which the Union or all of the Member States are party. Thus, the open-ended character of the sources of inspiration used to determine the scope and content of EU fundamental rights will presumably survive into the future. Indeed, in addition to the new reference to the Charter, the former Article 6(2) TEU has been preserved by the Treaty of Lisbon as Article 6(3) TEU. Fundamental rights will thus continue to constitute an (unwritten) source of primary law alongside the (written) Charter (Article 6(1) TEU).18 The new status of the Charter will have another consequence: the hitherto rather open list of guidelines or sources of inspiration taken into account when determining administrative principles applicable to the Union legal order (such as good administration, referred to in Article 41 of the Charter) will often now find expression in written primary law.19 Indeed, as noted a moment ago, the elevation of the Charter to Treaty level is the culmination of a process, dating back at least to the Treaty of Maastricht, of expressly confirming the existence of this or that general principle (often already identified by the Court as forming part of the EU legal order). This tendency lends support to the proposition, put forward in chapter four, that the judges did not conjure law out of thin air but rather gave expression to principles which were necessarily ‘waiting in the wings’, because without them the ‘new legal order’ simply could not function. 17 References to particular provisions of the Charter are to the adapted version of the Charter, approved on 12 December 2007, to which reference is made in Art 6(1) TEU, [2007] OJ C303/1. 18 See further ch 11 below. 19 Tridimas, n 15 above, passim, discusses various general principles such as proportionality and legal certainty which are not necessarily to be seen as fundamental rights in the strict sense.

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However, it also suggests that, 60 years on, primary law is becoming a more cohesive and certainly more comprehensive body of rules and the lines between written and unwritten law are increasingly blurred. Two points may be noted in this respect: first, we say blurred but not erased, since it is likely that the Court will continue in the future to draw inspiration from the whole spectrum of sources available to it when interpreting the content of any particular principle; and secondly, the specific form of Article 6(1) TEU and its reference to a separate document (the Charter) allows us to underline the heterogeneous nature of written primary law as such. That completes the overview of what may be said to constitute the primary law of the Union legal order. However, before moving down to the next level in our hierarchy, the inclusion, albeit somewhat on the side of that hierarchy, of national constitutions requires some explanation. First, we should make it clear that the principle of primacy applies to national law ‘however framed’—and thus even to the national constitution (see section II of chapter six below).20 That said, EU primary law and the case law of the ECJ both contain references to the national constitutional level in such a way as to suggest that it is deemed to contribute to the shaping of the EU constitutional order. This impression was strengthened by the Treaty of Lisbon and the important role it reserves for the institutions of the constitutional orders of the Member States, including not only the national governments but also national parliaments, local and regional entities, national judicial systems and so on.21 Indeed, Article 4(2) TEU now contains a more complete instruction to ‘respect the equality of the Member States before the Treaties as well as their national identities, inherent in their fundamental structure, political and constitutional, inclusive of regional and local self-government’ (the former Article 6(3) TEU contained only a simple reference to the national identities of the Member States).22 Yet the emphasis placed on the national legal order is not novel; the gradual building up of the supranational constitutional edifice has rendered inevitable the ‘borrowing’ of elements common to the national legal orders. The ECJ has always sought inspiration in the legal systems of the Member States when ascertaining whether a given principle may be labelled as ‘general’ and the Treaty of Maastricht inserted an express reference to the ‘constitutional traditions common to the Member States’ as important sources of inspiration in relation to the protection of fundamental rights in the EU legal order. While it is true that in the case law of the Union Courts the constitutional traditions common to the Member States are more rarely cited than the European Convention and other international instruments (undoubtedly as a result of important differences existing between the national constitutions),23 the fact remains that the EU constitutional edifice, and its Bill of Rights in particular, are historically grounded in what may be termed the common denominators in

20 Case 6/64 Costa v ENEL EU:C:1964:66. See also Case 149/79 Commission v Belgium EU:C:1982:195; Case C-285/98 Kreil EU:C:2000:2; Case C-213/07 Michaniki [2008] EU:C:2008:731; Joined Cases C-378/07 to C-380/07 Angelidaki and Others EU:C:2009:250; Case C-314/08 Filipiak [2009] EU:C:2009:719; Case C-399/11 Melloni EU:C:2013:107, paras 58–59. 21 See, in particular, ch 7(IV) below. 22 See, in particular, A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 Common Market Law Review 1417. 23 A Rosas, ‘The Legal Sources of EU Fundamental Rights: A Systemic Overview’ in N Colneric et al (eds), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias (Berlin, Berliner Wissenschafts-Verlag, 2003) 92–93. See also ch 11 below.

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the various (and, of course, initially fewer) national constitutions. Moreover, Article 52(4) of the Charter of Fundamental Rights provides that, insofar as the Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, ‘those rights shall be interpreted in harmony with those traditions’.24 The floating, but ever-present nature of the national constitutions in the hierarchy of norms is reflected first in the wording of Article 2 TEU, according to which the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, and which is completed by the statement that these values ‘are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail’, and secondly in the recognition in Kadi of a ‘super-primary’ law, both of which point to the idea of a shared view of the most elementary constitutional principles.25

IV. International Law In the table of EU normative levels at the beginning of this chapter, we placed international agreements that bind the EU as well as general international law below primary law but above secondary law (legislative acts). That this is where the ECJ situates international law in the EU hierarchy of norms is now a matter of settled case law: the Court has applied this view both to hold that international agreements have primacy over acts of secondary law26 and to annul decisions to conclude international agreements on the grounds that they violate primary law.27 In Kadi, on the other hand, the Court recently underlined that the primacy of international agreements ‘would not … extend to primary law, in particular to the general principles of which fundamental rights form part’.28

24 But the Explanations relating to the Charter (which are annexed to the adjusted version of the Charter published in December 2007, [2007] OJ C303/17) underline that, rather than following a rigid rule of ‘lowest common denominator’, the Charter rights should be interpreted in a way ‘offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions’. 25 Joined Cases C-402/05 P and C-415/05 P Kadi, n 1 above. The Court refers to ex Art 6(1) TEU, the nearest equivalent to which is Art 2 TEU, as amended by the Treaty of Lisbon. 26 Case C-61/94 Commission v Germany EU:C:1996:313, para 52; Case C-341/95 Bettatti EU:C:1998:353, para 20; Case C-286/02 Bellio F.lli EU:C:2004:212, para 33; Case C-344/04 IATA and ELFAA EU:C:2006:10, para 36; Case C-308/06 Intertanko and Others EU:C:2008:312, para 42; Case C-366/10 Air Transport Association of America and Others, EU:C:2011:864 para 50. See also A Rosas, ‘The European Court of Justice and Public International Law’ in J Wouters, A Nollkaemper and E de Wet (eds), The Europeanisation of International Law: The Status of International Law in the EU and its Member States (The Hague, TMC Asser Press, 2008) 71 at 77; E Cannizzaro, P Palchetti and RA Wessel (eds), International Law as Law of the European Union (Leiden, Martinus Nijhoff Publishers, 2012); I Govaere et al (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden, Martinus Nijhoff Publishers, 2014). 27 Case C-327/91 France v Commission EU:C:1994:305; Case C-122/95 Germany v Council EU:C:1998:94; Case C-281/01 Commission v Council EU:C:2002:761; Case C-211/01 Commission v Council EU:C:2003:452; C-94/03 Commission v Council EU:C:2006:2; Joined Cases C-317/04 and C-318/04 Parliament v Council and Parliament v Commission EU:C:2006:346. 28 Joined Cases C-402/05 P and C-415/05 P Kadi, n 1 above, paras 307–08. It should be noted that the Court spoke in conditional terms due to the fact that the agreement in question was the UN Charter, to which the EU is not a Contracting Party. The Court thus held that, within the EU legal order, EU primary law would have prevailed over the Charter if the Charter had been part of this legal order (‘the place that obligations under the Charter of the United Nations would occupy in the hierarchy of norms within the Community legal order if those obligations were to be classified in that hierarchy’ (emphasis added), para 305 of the judgment).

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In line with their relative positions in the hierarchy of norms, the validity of legislative acts may be measured against the content of international agreements. However, according to the case law of the ECJ, this control is subject to three conditions: first, the agreement must be binding on the Union within the meaning of Article 216 TFEU; secondly, the nature of the agreement must not be such as to preclude that control; and thirdly the content of any particular provision must be sufficiently precise and unconditional.29 The impact of these conditions should not be underestimated. First, the apparently simple requirement that the Union be bound may be complicated, in relation to mixed agreements (agreements to which also Member States are parties), by uncertainties relating to what parts of the agreement constitute EU law and what parts, if any, belong to national competence and are thus not part of the EU legal order, and in relation to customary international law, by uncertainties relating to the status and content of unwritten international rules and principles (see below).30 Secondly, many international agreements, including all World Trade Organization (WTO) agreements as well as some other multilateral conventions such as the UN Convention on the Law of the Sea and the Kyoto Protocol to the United Nations Framework Convention on Climate Change, have been held to fail the test set out in the case law, notably as a result of the nature of the agreement even when many of their provisions are quite precise.31 That said, these agreements were concluded by the Union and form part of the EU legal order. Thus, contrary to what is sometimes alleged in the legal literature, placing conditions on validity control does not imply a departure from the monistic approach to international agreements prevalent in the EU: the conclusion of the agreement makes it part of the EU legal order, without the need to transpose the agreement by an internal legislative act.32 This implies that even if the agreement cannot be invoked as a ground for invalidity, Union legislative and other acts should, in accordance with the principle of consistent interpretation, be interpreted, as far as possible, so as to avoid a conflict between the agreement and the internal act.33 The status of general or customary international law had been less clear until the ECJ judgment in Air Transport Association of America.34 Already long before this judgment, the Court had held that the EU is bound by customary international law.35 The more recent case concerned an action by the American Air Transport Association and some US airlines asking an English court to quash the national measures implementing an EU directive

29 See, eg Case C-149/96 Portugal v Council EU:C:1999:574; Case C-344/04 IATA and ELFAA, n 26 above; Case C-308/06 Intertanko and Others, n 26 above. 30 On mixed agreements in particular see ch 15(II) below. 31 On the WTO agreements see, eg Case C-149/96 Portugal v Council, n 29 above; Case C-377/02 Van Parys EU:C:2005:121; Case C-21/14 Commission v Rusal Armenal EU:C:2015:494, paras 38–39; Joined Cases C-659/13 and C-34/14 C & J Clark International and Puma EU:C:2016:74, paras 85–86. On the UN Convention on the Law of the Sea, see Case C-308/06 Intertanko and Others, n 26 above. On the Kyoto Protocol, see Case C-366/10 Air Transport Association of America, n 26 above, paras 73–78. On the Aarhus Convention relating to environmental information see Joined Cases C-401/12 P and C-403/12 P Council, Parliament and Commission v Vereniging Milieudefensie EU:C:2015:4, paras 55–62. See further Case C-1/96 Compassion in World Farming EU:C:1998:113, paras 30–37, concerning Council of Europe Convention No 87 for the Protection of Animals Kept for Farming Purposes. 32 Rosas, n 26 above, 76. 33 See ch 6(III) below. 34 Case C-366/10 Air Transport Association of America, n 26 above. 35 See, eg Case C-286/90 Poulsen and Diva Navigation EU:C:1992:453, paras 9–10; Case C-162/96 Racke EU:C:1998:293, paras 45–56.

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establishing a scheme for greenhouse gas emission allowance trading. The plaintiffs argued that the Directive was unlawful in the light of, inter alia, customary international law. In response to the request for a preliminary ruling, the ECJ accepted that customary international law may be relied upon by an individual for the purpose of examining the validity of a Union act in a situation where the customary international norms are capable of calling into question the competence of the EU to adopt the act in question and where this act is liable to affect rights which the individual derives from Union law or to create obligations under Union law.36 The Court did add an important reservation however: since a principle of customary international law ‘does not have the same degree of precision as a provision of an international agreement’, judicial review must necessarily be limited to the question whether the EU institutions ‘made manifest errors of assessment concerning the conditions for applying those principles’.37 As unwritten rules and principles, customary international norms are often subject to diverging interpretations; validity review necessarily presupposes that there is sufficient evidence as to the generally accepted status and content of a given customary norm.

V. Secondary Law and other Acts of the Institutions As noted above in chapter two, one of the features of the Union which distinguishes it from classic international organisations is the ability to legislate in the true sense of the word; that is, the power to adopt acts which are often directly applicable in the legal orders of the Member States (because of the nature of the act rather than the character of the national legal order as monist or dualist) and which may create rights and obligations for individuals. These legislative acts are adopted either jointly by the European Parliament and the Council following the ordinary legislative procedure or in accordance with a ‘special procedure’ laid down in the Treaties in certain specific cases, and may take the form of regulations, directives or decisions (Article 289 TFEU). While there is no hierarchy between them, regulations normally have a greater direct impact as they are directly applicable in the domestic legal orders whereas directives prescribe a result to be achieved via the adoption of measures by the Member States and become directly applicable in the full sense of the term only if the deadline for transposition has passed without the necessary measures having been taken, in which case directives may, in addition, have a direct effect, at least in a vertical (state–private party) relationship.38 The status of decisions is less clear; decisions, like regulations, are binding in their entirety but may be addressed to a limited group of persons, in which case they are not necessarily to be regarded as legislative acts, or they may have a constitutional character and therefore do not form part of secondary law stricto sensu.39 Moreover, while it would appear that decisions

36

Case C-366/10 Air Transport Association of America, n 26 above, para 107. Ibid para 110. 38 On direct applicability and direct effect, see ch 6(IV) below. 39 On decisions amending primary law see ch 4(II) above. On the distinction between decisions envisaged in Art 249 TEC (corresponding to Art 288 TFEU), designated in German by the word ‘Entscheidung’, and sui generis decisions, designated in German by the word ‘Beschluss’, see Case C-370/07 Commission v Council EU:C:2009:590, para 41. See also Lenaerts and Van Nuffel, n 3 above, 916; Lenaerts and Desomer, n 1 above, 747, 753. 37

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are the instrument of choice in implementing the Common Foreign and Security Policy (CFSP), Article 31 TEU makes it clear that such decisions do not constitute legislative acts.40 In addition to legislative acts, the Treaties provide for the adoption of both delegated and implementing acts. Delegated acts are governed by Article 290 TFEU and are a novel form of rule-making; the creation of secondary legal bases in an act of the institutions had been held by the ECJ to contravene the Treaty, and in particular the principles of conferral of powers and institutional balance.41 This new power to delegate now allows the legislator to enable the Commission to ‘adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act’.42 In addition to defining the objectives, content, scope and duration of the delegation of powers, the Treaty envisages that the legislative act may contain two possible means of controlling the exercise of those powers; the application of either or both of these options will depend on the nature of the measures to be adopted pursuant to any particular delegation; the first option, to revoke the delegation, may be exercised by either branch of the legislator and would appear to be more suited to a situation where it becomes apparent that the delegation in general is no longer appropriate, as a result either of a change in circumstances or the manner in which it is being interpreted by the Commission; the second option, to provide for a standstill period before entry into force of the measures adopted under the delegation, affords the legislator the possibility to review each individual instance of exercise of the delegated powers but would not be useful, for example, in areas where the Commission is required, pursuant to the delegation, to adopt measures frequently and/or urgently. Contrary to the case of implementing measures, there will be no ‘comitology procedure’ (see below) for the adoption of delegated acts; however, the Commission continues to consult national experts in the preparation of delegated acts.43 Implementing measures have a long history in the Union legal order; the original text of the EEC Treaty expressly envisaged the exercise by the Commission of the power conferred on it for the implementation of rules laid down by the Council and the ECJ has been ruling on that mechanism since 1970 at least.44 Article 291 TFEU now governs the adoption of implementing acts and it is interesting to note that, in line with the decentralised organisation of the Union legal order, it is first emphasised that it is for the Member States to ‘adopt all measures of national law necessary to implement legally binding Union acts’. Nevertheless, where uniform conditions of implementation are required, it falls

40

See further, ch 15 below. C-133/06 Parliament v Council EU:C:2008:257. See in particular the Opinion of Advocate General Maduro of 27 September 2007. 42 See, eg Case C-427/12 Commission v Parliament and Council EU:C:2014:170; Case C-88/14 Commission v Parliament and Council EU:C:2015:499; Case C-286/14 Parliament v Commission EU:C:2016:183. See also J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 102–03; G Garzón Clariana, ‘Les actes délégués dans le système des sources du droit de l’Union Européenne’ (2011) 12 ERA Forum 105; Lenaerts and Van Nuffel, n 3 above, 694–95. See also the Communication of the Commission to the European Parliament and the Council on the implementation of Art 290 TFEU, COM (2009) 673 final, 9 December 2009. 43 Ibid 7. 44 See, eg Case 30/70 Scheer EU:C:1970:117; Case 25/70 Köster EU:C:1970:115. See also Lenaerts and Van Nuffel, n 3 above, 695–707 with references to case law. 41 Case

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to the legislator to confer implementing powers on the Commission (or, in certain specific cases, the Council).45 The term ‘implementation’ has been given a wide interpretation; the Court has held that, within the framework of the conferral of executive powers, the limits of which must be determined by reference amongst other things to the essential aims of the legislation in question, ‘the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to it’.46 There is no reason for this case law not to continue to apply to implementing measures adopted on the basis of Article 291 TFEU.47 On the other hand, recent case law has clarified the relationship between delegated and implementing acts and some measures which in the past would have been adopted as implementing acts should now be adopted as delegated acts.48 Moreover, the reference in the former Article 202 TEC to the general rules that the Council has laid down in advance is now specifically linked to their purpose, that is, the control by the Member States of the Commission’s exercise of the implementing powers. These rules consist of what are known as the comitology procedures, which provide for the involvement of different types of committees, with advisory or examination powers, consisting of Member States representatives and chaired by the Commission.49 In relation to delegated and implementing measures, no hierarchy is specified but the prevailing view would appear to be that, in case of conflict, delegated acts will be deemed superior to implementing acts.50 Union law will prevail over implementing measures of national law, to the extent that they exist, and such implementing measures will come within the scope of application of Union law, implying that EU fundamental rights will also be relevant.51 The relation between Union law and the national law of the Member States in general, regardless of whether the latter is intended to implement Union acts or not, will be considered below, in the contexts of the principle of primacy of Union law and of a discussion on the contribution that national law and national institutions may make to the Union legal order.52

45 On the extent of the Council’s powers to reserve the right of implementation for itself see Case C-257/01 Commission v Council EU:C:2005:25; Case C-440/14 P National Iranian Oil Company v Council and Commission EU:C:2016:128, paras 47–67. 46 Case C-403/05 Parliament v Commission EU:C:2007:624, with references to earlier case law. 47 See Case C-65/13 Parliament v Commission EU:C:2014:2289, para 44. 48 See n 47 above. 49 See Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, [2011] OJ L55/13. Previously, a distinction was made between advisory, management and regulatory powers, see Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [1999] OJ L184/23, as amended by Council Decision 2006/512 of 17 July 2006, [2006] OJ L200/11. On the obligation of the Council to state the reasons for its choice of a certain type of committee procedure see Case C-378/00 Commission v Parliament and Council EU:C:2003:42. On comitology generally, see further Piris, n 42 above, 98–103; Lenaerts and Van Nuffel, n 3 above, 696–707 and ch 7(III) below. 50 Lenaerts and Desomer, n 1 above, 765–66, note that it is hard to predict whether that would always be so but add that if the implementing act is based on a delegated act, ‘the prevalence of the latter is of course beyond doubt’ (fn 105). 51 On the conditions for the applicability of EU fundamental rights in the national legal orders, see ch 11(II) below. 52 See further, chs 6(II) and 7(IV) below.

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The foregoing discussion has focused on legislative acts and other legal acts which are binding in the manner described in Article 288 TFEU. That provision completes the list of acts which may be adopted by the institutions with reference to recommendations and opinions, neither of which have binding force.53 In practice, the institutions (or rather, their services) also employ various other instruments when carrying out their daily business of making the EU work. Two cases in particular deserve mention. First, inter-institutional agreements, concluded among the three main political institutions, have been used since the early years, but their existence has only now been sanctioned: Article 295 TFEU acknowledges the existence of such agreements and makes it clear that they may have binding force. In terms of hierarchy, these agreements seem to be situated somewhere at the level of secondary law, but their precise legal nature will depend on the context and content of each agreement. Secondly, soft law instruments such as codes of conduct, guidelines, resolutions and programmes are not binding per se but may be of relevance for the interpretation of binding acts and will sometimes bind the institution that produced the document.54 For instance, a code of conduct may be seen as a sort of commitment on the part of a political institution to adopt a certain approach and departure from that commitment may become a violation of the principle of legitimate expectations or another general principle of Union law.55 Similarly, the guidelines issued by the Commission in relation to certain types of state aid are held to be an expression of the approach which the Commission will adopt in relation to particular circumstances and bind the Commission in its assessment of instances of alleged aid.56 Soft law instruments may also be seen as a way of implementing the duty of cooperation incumbent on the institutions and Member States by virtue of Article 4(3) TEU, and in that sense may acquire a more binding force.57 Finally, the EU Charter of Fundamental Rights as it existed before the entry into force of the Treaty of Lisbon offers an interesting example of a soft law instrument which, as a result of the manner in which it was cited in the case law of the Union Courts, assumed an enhanced status as a more or less authoritative interpretation of what constituted fundamental rights as general principles of Community law and has since been enacted into written primary law.58 53 But see Case C-322/88 Grimaldi EU:C:1989:646, paras 13 and 18, in which the Court held that national courts may be bound to take recommendations into consideration when interpreting national measures adopted in order to implement them or where they are designed to supplement binding Union provisions. On the other hand, a measure which goes beyond a pure recommendation and which is intended to have legal effects of its own may be invalid if it has been adopted on the basis of Art 288(5) relating to recommendations and opinions, Case C-303/90 Commission v France EU:C:1991:424. 54 See, eg L Senden, Soft Law in European Community Law (Oxford, Hart Publishing, 2004); A Peters, ‘Typology, Utility and Legitimacy of European Soft Law’ in A Epiney, M Haag and A Heinemann (eds), Challenging Boundaries: Essays in Honor of Roland Bieber (Baden-Baden, Nomos Verlag, 2007) 405; A Rosas, ‘Soft Law and the European Court of Justice’ in J Iliopoulos-Strangas and J-F Flauss (eds), The Soft Law of European Organisations (Baden-Baden, Nomos Verlag, 2012) 307. 55 See, eg Case C-313/90 CIRFS v Commission EU:C:1993:111, paras 33–36. See also Senden, n 54 above, 331 et seq, 411 et seq; Lenaerts and Van Nuffel, n 3 above, 921–922, with further references to case law. 56 See, eg Case C-409/00 Spain v Commission EU:C:2003:92, para 95; and Lenaerts and Van Nuffel, n 3 above, 921. 57 See, eg Senden, n 54 above, 352–56, 442–46. See also Case C-25/94 Commission v Council EU:C:1996:114, which concerned an arrangement to implement the duty of cooperation between the Commission and the Member States in the area of shared external competence. 58 See further ch 11(III) below.

6 Into the Estuaries and up the Rivers: Union Law in the National Legal Orders of the Member States I. Introduction Unlike public international law, Union law is, by its own force, part of the national legal orders of the Member States;1 it is, to quote a famous English judge, ‘like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’2 This aspect of Union law can be broken down into the questions of its primacy over national law, its direct applicability and possible direct effect in the national legal orders and the obligation of national courts and authorities to interpret national law in conformity with Union law. It is no accident that these issues have all been developed primarily, if not exclusively, in the context of preliminary rulings requested by national courts: they are concerned with ensuring the effective application of Union law, something which has, from the outset, been largely entrusted to the peoples, or rather people (as individuals), of Europe. They, through the disputes they bring and the rights they claim to have enforced, are the best guardians of the Treaties and the rules for invoking EU law are therefore at the core of the constitutional order thus created. In an attempt to look at these different but related elements through that constitutional lens as many sides of the same coin (a coin which makes the Union legal order what it is), we shall deal with them in an order which deviates both from that in which they were recognised as being part of the then Community legal order and from traditional orthodoxy. Primacy, as the name suggests, comes first. Consistent interpretation, often added at the end of an analysis, almost as an apology to mitigate a lack of direct effect, will be dealt with next as a by-product of primacy. Finally, the concepts of direct applicability and direct effect will be examined, with particular emphasis on what they contribute to the constitutional order of the Union.

1 Public international law, too, is often considered to be part of the national legal order of a given state (and, indeed, also part of the Union legal order), but this result is, in our view, dependent upon whether the national legal order in question attributes such an effect to norms of public international law. On the way Union Law treats national law see section V below. 2 Lord Denning in HP Bulmer Ltd v J Bollinger SA [1974] Ch 401, 418.

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These issues relate to the status of Union law in the national legal orders. But just as a tide comes in, it also flows out and the traditional analysis will, at the end of this chapter, be complemented by a look at the relevance of national law for the Union legal order. Like a mirror image, we believe that the interaction between the two levels of legal order speaks in favour of considering them as part of a common legal system, each one only half of the story.

II. Primacy When accusations of judicial activism are levelled, the ruling of the ECJ in Costa v ENEL,3 affirming the principle of primacy of Community law over national law, is often first in the firing line as an example of the Court developing integration-friendly principles which find no expression in written primary law.4 Without commenting further on the role of the ECJ in the development of Community and Union law in general, we are convinced that the principle of primacy is a necessity which simply had to be ‘found’ by the ECJ.5 The Communities would hardly have been able to survive if Community law, instead of prevailing over national law, would have become subject to a lex posterior principle, implying that it would be overridden in any particular Member State by a subsequent and conflicting national legal norm. In this sense, primacy is closely linked to the principle of the unity of the Union legal order.6 In Costa v ENEL, the ECJ held that Community law, 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.

In Simmenthal, the Court developed this idea of an order of priority of norms and the resolution of any conflict in favour of Community law, the provisions of which are ‘an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States’ (emphasis added).7 It is necessary, in this respect, to distinguish between primacy and supremacy. Union law prevails over national law but it is not supreme in a strict hierarchical sense.8

3

Case 6/64 Costa v ENEL EU:C:1964:66. See also ch 2(III) at n 13 above. See, eg M Rasmussen, ‘From Costa v ENEL to the Treaties of Rome: A Brief History of a Legal Revolution’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 69, 70–71. Compare H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht, Martinus Nijhoff Publishers, 1986) passim, who, despite being vocal in his criticism of the activism of the Court, does not highlight the judgment in Costa v ENEL. 5 We agree with J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 80, who notes that ‘the primacy of EU law over national law is essential to the Union’s ability to function’. 6 See, eg Case 34/73 Variola EU:C:1973:101, para 10. See also S Prechal, ‘Direct Effect, Indirect Effect, S upremacy and the Evolving Constitution of the European Union’ in C Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford, Oxford University Press, 2007) 35, 39–40. 7 Case 106/77 Simmenthal EU:C:1978:49, para 17. 8 See, eg I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 European Law Review 511, 520. 4

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We demonstrated in chapter five that, within the hierarchy of Union norms, a lower norm (for instance, an implementing regulation) will be declared invalid by the Union courts if it is in conflict with a higher norm (for instance, a legislative act). However, a norm of national law which conflicts with Union law will not be declared invalid by the Union Courts. It is up to national courts or administrative authorities to set aside any provision of national law which conflicts with Union law, whether the national norm is prior or subsequent to the EU rule.9 This obligation to ‘disapply’ (an example of ‘eurospeak’ par excellence) national norms is different to the notion of supremacy, which operates between the levels of the Union hierarchy and renders the lower norm invalid and therefore non-existent, although nothing seems to prevent a national constitutional order from going further in formulating the question as one of validity.10 The Court first refers to the primacy of what was then Community law in S immenthal.11 However, case law both before and after that judgment confirms the substance of the obligation to set aside any conflicting national rule12 and makes it clear that the principle of primacy applies, to cite Costa v ENEL, to domestic legal provisions, however framed, that is, including: (i) (ii) (iii) (iv)

the national constitution;13 national legislative and other normative acts of general application;14 national case law;15 national administrative decisions of an individual nature.16

It was also argued by some that the principle applied equally to the Second and Third Pillars of the Union.17 However, the Pillar structure having been abolished by the Treaty of Lisbon, the debate has, to a large extent, become moot. An example of unwritten law par excellence, the principle of primacy was expressly incorporated in Article I-6 of the Constitutional Treaty of 2004. Interestingly, this provision

9

Case 106/77 Simmenthal, n 7 above, para 21. See also ch 5(I) at n 2 above. See, eg Prechal, n 6 above, 51–56, who, however, uses the terms ‘supremacy’ and ‘primacy’ interchangeably. 11 Case 106/77 Simmenthal, n 7 above, para 17. The English version uses the term ‘precedence’, but the French text speaks of ‘primauté’. In Case 104/86 Commission v Italy EU:C:1988:49, para 12, the English version, too, refers to primacy. 12 To cite three recent judgments: Case C-115/08 ČEZ EU:C:2009:660, para 138; Case C-314/08 Filipiak EU:C:2009:719, para 81; Joined Cases C-188/10 and C-189/10 Abdeli and Melki EU:C:2010:206, paras 43–44. See also K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 754 et seq. 13 Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114, para 3; Case 149/79 Commission v Belgium, Interim Judgment of 17 December 1980 EU:C:1982:195, paras 16, 19; Joined Cases C-378/07 to C-380/07 Angelidaki EU:C:2009:250, para 207; Case C-409/06 Winner Wetten EU:C:2010:503, paras 60–61. See also Case C-285/98 Kreil EU:C:2000:2, in which the ECJ answered a question concerning the relation between a directive and the German Constitution, and Case C-213/07 Michaniki EU:C:2008:731, paras 21–24 and 35, in which the Court answered a question concerning the relation between a directive and the Greek Constitution. See also ch 5(III) above. 14 See, eg Case 106/77 Simmenthal, n 7 above. 15 In addition to Costa v ENEL, n 3 above, see, eg Case C-213/89 Factortame EU:C:1990:257, para 20; Case C-118/00 Larsy EU:C:2001:368, paras 51–52; Case C-119/05 Lucchini EU:C:2007:434, paras 61–62. 16 Case C-224/97 Ciola EU:C:1999:212, paras 30–34. 17 See, eg K Lenaerts and T Corthaut, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’ (2006) 31 European Law Review 287, 289. 10

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does not figure in the Treaty of Lisbon. Instead, the principle of primacy is the subject of a Declaration annexed to the Lisbon Final Act.18 By this Declaration, the Conference recalls that, in accordance with the well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

Ostensibly to pre-empt speculation as to the implications of ‘abandoning’ the text of Article I-6 of the Constitutional Treaty referred to above, the Declaration also cites an Opinion of the Council Legal Service of 22 June 2007: it results from the Court’s case law that primacy is a cornerstone principle of Community law, and the fact that the principle is not included in the Treaty itself shall not in any way change the existence of the principle and the existing case law of the Court. The Declaration refers to the law of the Union and does not contain any express reservation with respect to, for example, the Common Foreign and Security Policy (CFSP). Moreover, on substance, this Declaration goes further than Article I-6 of the Constitutional Treaty. First of all, the latter contained a certain qualification concerning secondary law, namely that it be adopted by the institutions of the Union ‘in exercising competences conferred on it’. This reference to the principle of conferral could have bolstered the thesis that national courts, notably national constitutional courts, are empowered to verify that EU secondary law has not been adopted ultra vires. Secondly, the Declaration links the content of the principle to the case law of the ECJ (‘in accordance with well settled case law’) in a way which seems to amount to a confirmation, by the Member States, of this case law. It is important to note in this respect that the reserves or qualifications which may have a bearing on the impact of the principle of primacy in the national legal orders have not, generally speaking, been concerned with contradicting the existing case law but rather with reserving the right in the future to place a (national) constitutional straitjacket on its application (and thus on the application of the principle itself). It is not possible here to analyse the varied and complex picture drawn by national constitutional or supreme courts.19 Suffice it to note, first, that a right has been asserted to verify that secondary law and other EU acts, including, as the case may be, the case law of the Union Courts, do not transgress the boundaries of EU primary law as approved in the instrument of ratification and/or the core elements of the national constitution. Notably, the German Constitutional Court, by reference also to its previous case law, held in its

18 Declaration No 17 concerning Primacy annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon [2008] OJ C115/344. The principle of primacy is also confirmed in the preamble of the Agreement on a Unified Patent Court, concluded by 25 EU Member States in 2013, [2013] OJ C175/2, where reference is made to ‘the primacy of Union law, which includes the TEU, the TFEU, the Charter of Fundamental Rights, the general principles of Union law as developed by the Court of Justice of the European Union … the case law of the Court … and secondary Union law,’ and in Art 20 of the Agreement. See also Piris, n 5 above, 81–82. 19 See notably Lenaerts and Van Nuffel, n 12 above, 770–809; M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) 187–213; C Grabenwarter, ‘National Constitutional Law Relating to the European Union’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 83 and I Pernice, ‘Costa v ENEL and Simmenthal: Primacy of European Law’ in Poiares Maduro and Azoulai, n 4 above, 47, 54–57, who present overviews of the situation in the different Member States. It should be noted that constitutional courts are conspicuously absent in many northern European countries, in particular Denmark, Finland, Ireland, the Netherlands, Sweden and the UK, and in Greece.

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judgment of 30 June 2009 on the constitutionality of the Treaty of Lisbon that ‘it is no contradiction to the objective of openness towards European law … if exceptionally, and under special and narrow conditions, the Federal Constitutional Court declares European Union law inapplicable in Germany’.20 Such views are necessarily linked to the idea that the principle of primacy receives its legitimacy from the national constitution and is subject to the boundaries of the national transfer of powers to the EU. In line with such an approach, some constitutional courts have refrained from requesting preliminary rulings of the ECJ, probably considering that, from their point of view, the national constitution is supreme.21 Secondly, the Czech Constitutional Court, in quashing a judgment of the Czech Supreme Administrative Court applying an ECJ ruling in the field of the coordination of pension schemes with regard to persons moving within the Union, asserted that the judgment of the ECJ in question was ultra vires.22 In its judgment, the ECJ had held that a Constitutional Court judgment, which allowed payment of a supplement to old age benefit solely to individuals of Czech nationality residing in the territory of the Czech Republic, constituted discrimination. However, it seems important to note that the whole affair relates to the specific circumstances of the dissolution of the Czechoslovak Federation in 1993. Thirdly, reference was already made in section III of chapter five above to the recent judgment of the Danish Supreme Court, which seems to call into question the primacy of parts of Union primary law (the general principles and the Charter of Fundamental Rights.23 At any rate, the case law of the ECJ as well as the above Declaration adopted by the governments of the Member States, are clearly based on the idea that Union law prevails over national law, including the national constitution. The ECJ also insists on the principle that it alone is competent to declare invalid legal acts of Union secondary law.24 True, it has been argued that the enhanced status of the principle of respect for national identity, meaning essentially constitutional identity, which finds its expression in Article 4(2) TEU, as amended by the Treaty of Lisbon, contributes to the arguments of those advocating a new approach to ‘the absolute primacy of EU law traditionally recognised by the ECJ’.25 However, while it is true that EU primary law commands respect for the

20 BVerfG, 2 BvE 2/08, para 340 (Cf BVerfG, 2BvR 2661/06, judgment of 6 July 2010). See also the judgment of the Polish Constitutional Court of 16 November 2011, SK 45/09. On similar pronouncements by the Czech Constitutional Court in its judgment of 26 November 2008 see P Bříza, ‘The Constitutional Court on the Lisbon Treaty: Decision of 26 November 2008’ (2009) 5 European Constitutional Law Review 143; Piris, n 5 above, 61, 359–60. See more generally A Albi, ‘Supremacy of EC Law in the New Member States: Bringing Parliaments into the Equation of “Co-operative Constitutionalism”’ 3 (2007) European Constitutional Law Review 25; A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 Common Market Law Review 1417 at 1433–34. 21 So far, the Austrian, Belgian, French, German, Italian, Latvian, Lithuanian, Romanian, Slovak and Spanish constitutional courts have turned to the ECJ for preliminary rulings. 22 Judgment of 31 January 2012, File No Pl US 5/11. The ECJ judgment in question was given in Case C-399/09 Landtová EU:C:2011:415. 23 See ch 4(III) at n 39 and ch 5(III) at n 16 above. 24 Case 314/86 Foto-Frost EU:C:1988:471; Joined Cases C-143/88 and C-92/89 Zuckerfabrik EU:C:1991:65; Case C-456/93 Atlanta Fruchhandelsgesellschaft EU:C:1995:206; Joined Cases C-453/03, C-11/04, C-12/04 and C-194/05 ABNA EU:C:2005:741. 25 Von Bogdandy and Schill, n 20 above, 1452.

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national identities of the Member States26 (as it also commands respect for the principles of conferral, subsidiarity and proportionality, to mention but a few other examples), this material obligation, in our view, does not change the nature of the relationship between EU law and national law, including the principle of primacy and the right reserved for the ECJ to rule on questions of the validity of Union acts. The practical importance of the above-mentioned national reserves or qualifications seems to remain rather limited, however, as there appears to be only one clear-cut case of refusal to apply Union acts by virtue of their alleged ultra vires character. By and large, conflicts have been avoided and the ECJ has not been called upon to assess the implications of an overt refusal to accept the principle of primacy. It should also be recalled in this context that the EU constitutional order itself, including Article 4(2) TEU just cited, contains some references to national constitutions and constitutional traditions in a way which gives the ECJ the possibility to take them into account in its application and interpretation of EU law. It is precisely this ebb and flow to which we will return in the final section of this chapter.

III. Conformity through Interpretation As was noted above, we propose to complete the discussion on primacy with an analysis of the principle of consistent interpretation (interprétation conforme) based on the view that this duty is inherent in any system of norms; it applies between the levels of the hierarchy presented in chapter five (thus secondary law must be interpreted so as not to conflict with primary law) and it applies as a corollary of the principle of primacy to facilitate the application of national law in a manner consistent with Union law.27 It therefore comes into play before any question of direct effect, at the first stage of determining whether a conflict between national law and Union law even exists. But let us take a step back, to the beginning: the principle was first asserted (long after the Court had rendered its seminal judgments on direct effect and primacy) with respect to directives, which seemed natural, given that they are often devoid of direct effect and in any case of horizontal direct effect.28 This generated the somewhat misleading label of ‘indirect effect’; we suggest that this term is not useful, at least not as a definition of the principle of consistent interpretation, particularly in light of our approach to view this element of the constitutional order as related more to primacy than to direct effect.29 The Court, in referring to the obligation of result contained in what is now Article 288 TFEU (ex Article 249 TEC) and the duty of sincere cooperation now laid down in Article 4 TEU (ex Article 10 TEC), which, it was emphasised, is binding on all authorities of the Member States, including the courts, concluded that, in applying national law, and in particular the provisions specifically introduced in order to implement a directive, national

26 See also Case C-208/09 Sayn-Wittgenstein EU:C:2010:806, paras 81–83 and von Bogdandy and Schill, n 20 above, 1422–25. 27 See, eg Joined Cases C-188/10 and C-189/10 Abdeli and Melki, n 12 above. 28 Case 14/83 Von Colson and Kamann EU:C:1984:153. 29 See also Prechal, n 6 above, 38.

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courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result which that directive prescribes.30 In other words, in line with a decentralised approach to governance, judges too are enlisted as key players in providing the legal protection which individuals derive from the rules of Union law and in ensuring that those rules are fully effective. Of course, national judges do not operate in a vacuum, and a proviso was therefore appended to the obligation placed on them (ironically for the first time in a case in which the suggested Community-friendly approach to national law seemed to imply an interpretation contra legem of that law, or at least to come close to such an interpretation): a national court is bound to interpret national law so far as possible in the light of the wording and purpose of the Union law rule.31 The limits of this obligation continue to evolve, giving the national judge ever more guidance as to how to discharge his Union law duties, and the true extent of what was initially perceived to be the consolation prize when direct effect was not available is perhaps only now becoming clear. Thus, although it was always presumed that, while the principle of consistent interpretation applies with special force to national measures specifically intended to implement a directive, it is not limited to such measures but covers, in principle, national law as a whole. That said, in relation specifically to directives, the obligation of consistent interpretation applies with full force only once the period prescribed for transposition has expired; in the meantime, national courts and authorities are under an obligation to refrain as far as possible from interpreting national law, including national law which is not specifically concerned with the transposition of the directive, in a manner which might seriously compromise attainment, after the period of transposition has expired, of the objective pursued by the directive.32 In Pfeiffer the ECJ specifically enjoined the national judge to ‘consider national law as a whole’ and use all means available to him in his quest to find a conforming interpretation; particular reference was made to interpretative methods recognised by national law and the rules for conflict resolution between two provisions of domestic law.33 This instruction already hints at what Lenaerts and Corthaut link to the principle of procedural equivalence: a refusal to give binding norms of Union law the same effect as binding norms of national law would amount to a breach of that principle.34 Indeed, it is the character of the norm as binding which appears to be important: while the specific result in Pupino (that framework decisions adopted under Title VI TEU had to

30

Case 14/83 Von Colson and Kamann, n 28 above, para 26. C-106/89 Marleasing EU:C:1990:395. The Court has since made it clear that there is no EU law obligation to interpret national law contra legem: see in particular Joined Cases C-397/01 to C-403/01 Pfeiffer EU:C:2004:584, paras 113 and 117, where the Court maintained the reserve according to which the obligation of the national judge to interpret the provisions of national law in such a way that they are applied in conformity with the directive applies only ‘so far as possible’, and Cases C-105/03 Pupino EU:C:2005:386, para 47, C-212/04 Adeneler EU:C:2006:443, para 110 and C-268/06 Impact EU:C:2008:223, paras 100–3, at which the Court expressly excludes an obligation to interpret contra legem. 32 Case C-212/04 Adeneler, n 31 above, paras 121–23. See also section IV below, at nn 53–55 (concerning the applicability of directives which have entered into force but in relation to which the period prescribed for transposition has not yet expired). 33 Joined Cases C-397/01 to C-403/01 Pfeiffer, n 31 above, paras 115 and 116. For an example of a more recent judgment see Case C-109/09 Deutsche Lufthansa EU:C:2011:129, paras 52–56. 34 Lenaerts and Corthaut, n 17 above, 300. 31 Case

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be taken into account when interpreting national law) may be of mainly historical interest, the reasoning of the Court is worth noting and will ostensibly continue to inform the development of the principle of consistent interpretation.35 The principle had previously been linked to the duty of sincere cooperation (formerly stipulated in Article 10 TEC, and therefore only applicable to the Community Pillar). In Pupino the Court began its analysis by emphasising the binding character of framework decisions: ‘the binding character of framework decisions … places on national authorities, and particularly national courts, an obligation to interpret national law in conformity’.36 Why? We suggest that the answer lies as much in the notion of primacy, combined with the related principles of the full effectiveness and uniform application of Union law, as in the duty of cooperation owed to the Union described by the Court in its judgments.37 Two points illustrate this conclusion. First, while the above discussion has concerned the interpretation of national law in particular, it goes almost without saying that the principle of consistent interpretation also applies within the hierarchical order of Union law stricto sensu, notably to the relationship between primary and secondary law.38 The link between these two levels of the obligation of consistent interpretation is underlined in Promusicae: Member States must not only interpret national law consistently with directives but also ensure that the interpretation of a directive does not conflict with fundamental rights or other general principles of Union law.39 Secondly, the same parallels may be observed in relation to the use of international agreements as tools of interpretation. The starting point of any analysis of the effects of international agreements to which the Union is a Contracting Party must be Article 216(2) TFEU: international agreements concluded by the Union are binding not only upon the Union institutions but also on its Member States. Indeed, it is in this sense that the EU is said to adopt a ‘monist’ approach to international law, and international agreements concluded by the Union are included in the hierarchy of norms of the Union legal order (section IV of chapter five above). From that starting point, the conclusion that such agreements form an integral part of that legal order is evident.40 Bearing in mind that the issue may be complicated by questions of competence in relation to mixed agreements (agreements concluded by both the Union and all or some of its Member States), it is settled case law that, where an act comes within the sphere of application of Union law, it must be interpreted as far as possible in keeping with the international agreements which are part of that law. This is true whether the act is of the Union institutions, in which case the principle of consistent interpretation is simply a function of the hierarchy of norms (secondary legislation ceding to international agreements), or is a measure of national law, in which case consistent interpretation is the corollary of the

35

Case C-105/03 Pupino, n 31 above. Ibid, para 34. 37 See, eg Case C-212/04 Adeneler, n 31 above, para 116. 38 See, eg Case C-540/03 Parliament v Council EU:C:2006:429, para 105 (with references to earlier case law). See also the judgment of the General Court in Case T-16/04 Arcelor v Parliament and Council EU:T:2010:54, paras 181–83 (with additional references). 39 Case C-275/06 Promusicae EU:C:2008:54, para 68. 40 This principle is a matter of longstanding case law: Case 181/73 Haegeman EU:C:1974:41, paras 2–4. 36

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rinciple of primacy (the international agreement forming, as noted a moment ago, an p integral part of the Union legal order). The cases decided by the ECJ have predominantly concerned the first aspect, the relationship between international agreements concluded by the Union, notably agreements adopted within the framework of the World Trade Organization (WTO), and legal acts adopted by the Union institutions.41 In some of these cases, the ECJ has referred not only to the relevant international agreement but also to decisions of the WTO dispute settlement bodies as tools for the interpretation of the relevant agreement and thus for Union legal acts as well.42 The question as to whether, under the Union constitutional order, the institutions are strictly speaking bound by the decisions of such dispute settlement bodies is a difficult question which cannot be further analysed in this context.43 What is clear is that if they depart from the rulings of such bodies, the Union risks incurring responsibility under international law for violation of its international obligations. The point is that these agreements bind the Union, including the ECJ in its assessment of the interpretation to be given to acts of secondary law. Contrast the position where an agreement does not bind the Union: at best, its provisions may, in some exceptional circumstances, have a ‘softer’ influence on the interpretation of Union acts. This may be so especially if Union law refers to an international agreement which the Union has not been able to conclude in its own name.44 A prime example is the European Convention on Human Rights.45 Thus, the key to the obligation of interpretation would appear to be that binding rules are organised into a system that defines the relationship between these rules. If a norm is binding on the person being asked to apply it, then the conclusion is the same whether the relationship is hierarchical in the traditional sense or is the result of the primacy of Union law over national law: binding norms are binding on and determine the limits of interpretation of those they bind.

41 See, eg P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 323 et seq. See also, eg Case 92/71 Interfood EU:C:1972:30, para 6; Case C-79/89 Brown Boveri EU:C:1991:153, paras 15–19; Case C-70/94 Werner EU:C:1995:328, para 23; Case C-53/96 Hermès EU:C:1998:292, para 35; Case C-300/98 Dior and Others EU:C:2000:688, para 47; Case C-373/08 Hoesch Metals and Alloys EU:C:2010:68, para 40; Case C-428/08 Monsanto Technology EU:C:2010:402, paras 70–73. 42 See, in particular, Case C-245/02 Anheuser Busch EU:C:2004:717, paras 49 and 67; Case C-260/08 HEKO Industrieerzeugnisse EU:C:2009:768, para 22. 43 See, eg M Bronckers, ‘The Relationship of the EC Courts with Other International Tribunals: Non-Committal, Respectful or Submissive?’ (2007) 44 Common Market Law Review 601 and the Opinion of Advocate General Léger of 6 April 2006 in Case C-351/04 Ikea Wholesale EU:C:2007:547. It should be added that the ECJ from time to time also refers to decisions of international courts and tribunals other than the WTO dispute settlement bodies, see A Rosas, ‘With a Little Help from My Friends: International Case-Law as a Source of Reference for the EU Courts’ (2005) 5 The Global Community: Yearbook of International Law and Jurisprudence (Oxford, Oxford University Press, 2006) Vol I, 203. 44 See, eg Case C-308/06 Intertanko and Others EU:C:2008:312, para 52, where the Court held that a directive which referred to the International Convention for the Prevention of Pollution from Ships (Marpol 73/78) should be interpreted ‘taking account of ’ Marpol. See, more generally, A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 34 Fordham International Law Journal 1304 at 1324 et seq. 45 Indeed, since the Treaty of Maastricht, a provision of the TEU (now Art 6(3) TEU) has referred to the European Convention, which is said to guarantee the fundamental rights which constitute general principles of Union law. The Convention has been an important point of reference for the Union Courts, despite the fact that the EU is not a contracting party, but the lack of binding force was a constant limitation. The situation will, of course, change if and when the EU accedes to the Convention, as foreseen in Art 6(2) TEU. See ch 11(III) below.

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That said, the ‘as far as possible’ caveat that the ECJ has attached to the obligation of national judges to interpret their national law in conformity with Union law seems to leave the final say to the national judge. Consistent interpretation implies interpreting national law and this, with the caveats to be presented at the end of this chapter, is the prerogative of the national court. Union law requires that national law be interpreted in conformity with it but the final word as to the extent to this can be done lies with the national judge. Of course, an inability in the view of the national judge to interpret the national law in such a way as to ensure that it does not conflict with the relevant Union law brings us back to the beginning and the question of primacy. Union law must take precedence. Failing that, a conflict seems quite logically to result in an infringement of the obligations flowing from the Treaties. Our final, somewhat disheartening thought on the point goes to the innovative way in which the Danish Supreme Court recently side-stepped that apparent inevitability as noted in section II above, it ruled that the relevant Union norm (an (unwritten) general principle of non-discrimination on grounds of age) quite simply had not been made part of the Danish legal order and was therefore not binding on that court.

IV. Direct Applicability and Direct Effect The principle of primacy is intimately linked to the principles of direct applicability and direct effect. In fact, it is through these two principles that Union law obtains its force. Public international law, too, can be said to enjoy prevalence over national law, in the sense that a state cannot invoke its domestic law in order to escape responsibility under international law, but the significance of this proposition is greatly diminished by the fact that there is no requirement that public international law be directly applicable in domestic legal orders.46 While terminology is not always consistent, we shall use the concept of direct a pplicability to mean that a Union norm is in force and must be applied, in the broad sense of the term, not only by Union institutions but also in the Member States’ legal orders.47 Thus, primary law that has entered into force is always directly applicable, as understood in this sense. It is another question whether it can be invoked by an individual as the only source of a right that would not otherwise exist, in other words whether it has direct effect (see below). According to Article 288(2) TFEU, a regulation shall not only have general application but also ‘be binding in its entirety and directly applicable in all Member States’. National implementing measures are not required (and may even be prohibited from a Union

46 See Art 27 of the Vienna Convention on the Law of Treaties of 1969 and Art 3 of the Articles on State Responsibility adopted by the United Nations International Law Commission on 9 August 2001, J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002) 86–90. 47 One of the first scholarly contributions to make a clear distinction between direct applicability and direct effect was J Winter, ‘Direct Applicability and Direct Effect’ (1972) 9 Common Market Law Review 425. See also D Edward, ‘Direct Effect: Myth, Mess or Mystery?’ in JM Prinssen and A Schrauwen (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen, Europa Law Publishing, 2002) 3, 6–7.

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law point of view) unless the regulation itself presupposes further national measures.48 Regulations often make a distinction between entry into force (which may be almost immediate)49 and applicability (which may come even years later).50 Direct applicability does not necessarily imply that all the provisions of a regulation establish subjective rights for individuals. That depends on the wording and context of each provision, and is of relevance to how and when the regulation may be invoked and, more particularly, to the question of direct effect. In other words, direct applicability in the sense referred to here and direct effect are not the same thing and the former does not presuppose the latter.51 The definition in Article 288 TFEU of a directive makes no mention of their applicability. However, the results-based nature of the obligation imposed on Member States must mean that they become fully applicable only when the period prescribed for transposition has come to an end. Before that date, Member States cannot be faulted for not having transposed the directive into their internal legal order and the directive cannot therefore be said to be directly applicable in the sense set out above. That said, a directive is not devoid of legal effect during the transitional period. In accordance with Article 297 TFEU, directives which are legislative or are addressed to all Member States shall enter into force on the date specified in the act or, if no date is specified, on the twentieth day following publication. The fact that the act is in force and the Member States must therefore work towards achieving the result prescribed by the date indicated has been held to imply a general obligation on all authorities of the Member States, including the courts, to refrain from taking any measure liable seriously to compromise the attainment of that result.52 After the date of transposition, a private party may invoke the full force of the directive in order to obtain a conforming interpretation of national law. Indeed, after that date, the difference, in terms of applicability, between regulations and directives is substantially elided; both types of instrument are intended to be binding in their effect and thus form part of the body of rules in the light of which courts (both in Luxembourg and throughout the Member States) are to measure national law; they are in force and must be applied. Again, the question of whether a directive can be invoked in order to request a national court or authority to apply it instead of a conflicting norm of national law, or in the absence of a national norm of transposition, is a matter not of direct applicability but of direct effect.

48 See, eg Case 40/69 Bollmann EU:C:1970:12; Case 34/73 Variola, n 6 above, and J Bast, ‘Legal Instruments and Judicial Protection’ in von Bogdandy and Bast, n 19 above, 345, 351. 49 According to Art 297(1) TFEU, legislative acts shall, in the absence of an explicit provision in the act itself, enter into force on the twentieth day following that of their publication in the Official Journal (OJ). 50 For an extreme example of time-lag between entry into force and applicability, see Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L166/1, which entered into force in May 2004 but became applicable only on 1 May 2010, the date of the entry into force of an implementing regulation envisaged in the text of the main regulation as a condition for its applicability (Regulation (EC) No 987/2009, [2009] OJ L284/1). 51 See, eg Case C-403/98 Azienda Agricola Monte Arcosu EU:C:2001:6, where the Court held that certain provisions of a regulation necessitated, for their implementation, the adoption of national measures of application and that individuals could not derive rights from those provisions in the absence of such national measures. 52 See, eg Case C-129/96 Inter-Environnement Wallonie EU:C:1997:628, para 45; Case C-144/04 Mangold EU:C:2005:709, para 67; Case C-212/04 Adeneler, n 31 above, para 121; Joined Cases C-261/07 and C-299/07 VTB-VAB EU:C:2009:244, para 38. See also at nn 27–32 above on the duty to interpret national law consistently with directives.

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Moreover, if a Member State notifies full and definitive transposition of the directive ‘early’, there is a strong case for arguing that its provisions acquire the same status as if the period for transposition had come to an end, at least when it comes to the obligation to interpret national law in line with the directive.53 Whether more is possible is a tricky question: the Court would appear ready to think so, at least in a situation where it would be impossible to amend the contested provisions in time.54 Like regulations, decisions are binding in their entirety. However, unlike regulations, they are not declared to be directly applicable. One reason for this is perhaps the variety of forms a decision may take.55 For example, the notion of decision is used in the context of CFSP.56 However, it is also the form of act by which the Commission disposes of allegations of state aid or approves/prohibits a merger between undertakings. For the purposes of the present discussion on applicability, one particular category of decision is of interest, namely decisions adopted (normally) by the Council to conclude, on behalf of the Union, international agreements with third states or international organisations. While, in earlier practice, these acts were formulated as regulations, it is now standard practice to call them decisions.57 What is important in this context is that, through such a decision, the international agreement becomes an integral part of the Union legal order. In our terminology, it becomes directly applicable. It is in this sense that the EU can be said to follow a monist approach to international law: international agreements become part of the law of the Union through the act of conclusion (the decision referred to above), without any need for further acts of incorporation or transposition.58 Thus, in line with their relative positions in the hierarchy of EU norms, it can be invoked in order to obtain an interpretation of secondary law and/ or national law in conformity with the agreement.59 Again, whether the agreement in question will also have direct effect is another matter, which will depend on the structure and content of each agreement. As we can see, a discussion of the impact of the various instruments in the national legal order very quickly brings us to the question of their direct effect, and it is to this issue that we shall now turn.60 That Union law may entail ‘direct effect’ was, like its primacy over national law, recognised through the case law of the ECJ. The conclusion, first presented in the seminal judgment of van Gend & Loos, that provisions of the Treaty of Rome could have direct effect represented a departure from the traditional public international approach: the Community constituted ‘a new legal order of international law … the 53 On the basis of a presumption that the Member State had the intention of fulfilling entirely its obligations arising from Art 288 TFEU and Art 4 TEU: see, by analogy, Joined Cases C-397/01 to 403/01 Pfeiffer, n 31 above, para 112. 54 See Case C-129/96 Inter-Environnement Wallonie, n 52 above, para 48. 55 For example, on the distinction between Beschluss-type (being of general application) and Entscheidung-type (specifying those to whom it is addressed) decisions, see ch 5(V) above, at n 39. 56 See Art 25 TEU and ch 15(IV) below. 57 Eeckhout, n 41 above, 201. On international agreements more generally, see chs 5(IV) above and 15(II) below. 58 A Rosas, ‘The European Court of Justice and Public International Law’ in J Wouters, A Nollkaemper and E de Wet (eds), The Europeanisation of International Law: The Status of International Law in the EU and its Member States (The Hague, TMC Asser Press, 2008) 71, 74–75. 59 See, eg F Casolari, ‘Giving Indirect Effect to International Law within the EU Legal Order: The Doctrine of Consistent Interpretation’ in E Cannizzaro, P Palchetti and RA Wessel (eds), International Law as Law of the European Union (Leiden, Martinus Nijhoff Publishers, 2012) 395. See also ch 5(IV) above. 60 See generally eg Prinssen and Schrauwen, n 47 above, and Prechal, n 6 above.

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subjects of which comprise not only Member States but also their nationals’.61 This, in our view, comes closer to judge-made law than the principle of primacy, which, as we asserted above, must be seen quite simply as an essential element of any legal order. Yet, if one accepts that Union law is directly applicable (which is impossible to deny with respect to regulations and difficult to deny with respect to primary law), was the step taken by the judges in van Gend & Loos really so radical? If a norm is in force and is to be applied in the domestic legal order, why would the legal effects of this norm be analysed very much differently from other norms of the same domestic legal order?62 If a provision of a regulation is framed in clear and unconditional terms, resulting in rights for individuals, it would, in fact, be strange to hold that it is directly applicable but that it cannot constitute the legal basis of a decision to implement the right in an individual case. Recognising that primary law, and more precisely Treaty provisions, may also have direct effect was rather less obvious, but only because they are normally couched in general (not to say vague) terms, providing, for example, that certain restrictions (such as restrictions on the economic freedoms) ‘shall be prohibited’. This was the case in van Gend & Loos. In reaching its conclusion, the Court emphasised that Article 12 EEC contained a clear and unconditional prohibition (negative obligation) the implementation of which did not require any (positive) legislative act by the Member States: ‘the very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects’ (so-called vertical direct effect).63 Since that judgment, the ECJ has found a number of Treaty provisions capable of producing direct effect. E xamples include the economic freedoms (free movement of workers, goods, services and capital, and the right of establishment), the right of free movement of Union citizens, the principle of equal pay for equal work and competition law provisions.64 Moreover, since Defrenne II,65 the ECJ’s case law has recognised that Treaty provisions may under certain circumstances have not only vertical but also horizontal direct effect; in other words, they may be relied upon by private parties in litigation against other p rivate parties. In addition to the principle of equal pay for equal work, expressed in the then Article 119 EEC (later to become Article 141 TEC and now Article 157 TFEU) under consideration in that case, horizontal direct effect has also been attributed to the principle of non-discrimination more generally,66 the free movement of workers,67 the right of establishment68 and competition law (ex Article 81 TEC, now Article 101 TFEU).69 The outcome of Defrenne II provoked some harsh criticism, with certain legal commentators presenting the familiar accusations of judicial activism or usurpation of

61 Case 26/62 van Gend & Loos EU:C:1963:1. See also the contributions of P Pescatore, B de Witte, FC Mayer and D Halberstam in Poiares Maduro and Azoulai, n 4 above. 62 See also Edward, n 47 above, 4. 63 Case 26/62 van Gend & Loos, n 61 above. 64 See, eg J Rideau, Droit institutionnel de l’Union et des Communautés européennes, 5th edn (Paris, LGDJ, 2006) 918–21. 65 Case 43/75 Defrenne (‘Defrenne II’) EU:C:1976:56. 66 The specific cases have, to date, concerned non-discrimination with regard to age, Case C-144/04 Mangold, n 52 above, and Case C-555/07 Kücükdeveci EU:C:2010:21. 67 Case C-281/98 Angonese EU:C:2000:296. 68 Case C-438/05 International Transport Workers’ Federation (‘Viking Line’) EU:C:2007:772. 69 Case C-453/99 Courage and Crehan EU:C:2001:465.

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legislative powers.70 Without entering into this discussion here, we will simply highlight that the Treaty provisions in relation to which the ECJ has accepted the possibility of horizontal direct effect have concerned rights created by the Union’s legal order for the benefit of individuals.71 In that sense, the Court’s case law not only builds on the idea that in the Treaties, the Member States created a ‘body of law which binds both their nationals and themselves’72 but also seems to be in line with the more recent tendency to attribute a diminishing role to the state as a unique and all-embracing power base in favour of nonstate actors such as big transnational companies, trade unions and other interest groups. Such non-state actors may sometimes be in a more powerful position than the state to influence the rights and interests of individuals. The notion of direct effect was subsequently extended to directives in a judgment based overtly on considerations of the effectiveness of Community law: ‘the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into account as an element of Community law’.73 That said, the defining characteristic of directives, that they are addressed specifically to the Member States, which have discretion in the choice of form and method for achieving the prescribed result, has been held by the ECJ to mean that a directive only imposes obligations on the Member State and therefore may not be relied upon against individuals.74 In other words, directives are, as a matter of principle, incapable of producing horizontal direct effect. Despite calls to the contrary, including from some of its Advocates General, the Court has held firm and consistently reiterated this traditional stance.75 Much academic ink has been spilled describing and decrying this classic proposition. We shall confine ourselves here to a few comments on the refinement of the debate that has taken place recently (in particular in light of the confirmation by the Court of its longstanding case law) and its impact on the constitutional order of the Union.76 If the exclusion of horizontal direct effect was seen by some as clipping the wings of effective enforcement of EU law, recent analyses have, almost ironically, gone further, pruning the bush of direct effect itself (Lenaerts and Corthaut speak of ‘reducing the concept of direct effect to its true proportions’).77

70 A vivid overview of this criticism is presented by E Sharpston, ‘Case 43/75, Gabrielle Defrenne v Société Anonyme Belge de Navigation Aérienne Sabena—The Shock Troops Arrive in Force: Horizontal Direct Effect of a Treaty Provision and Temporal Limitation of Judgments Join the Armoury of EC Law’ in Poiares Maduro and Azoulai, n 4 above, 251, 255 et seq. 71 The question of the horizontal application of EU fundamental rights as such will be further considered in ch 11(V) below. 72 Case 6/64 Costa v ENEL, n 3 above. 73 Case 41/74 van Duyn EU:C:1974:133. 74 Case 152/84 Marshall EU:C:1986:84, para 48. 75 Case C-91/92 Faccini Dori EU:C:1994:292, para 20; Joined Cases C-397/01 to C-403/01 Pfeiffer, n 31 above, paras 108–109; Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi EU:C:2005:270, paras 74–77 with references. 76 See, eg Bast, n 48 above, 356–57. 77 Lenaerts and Corthaut, n 17 above, at 314. The metaphor in the text is inspired by the title to that article, although those authors use the hedge as an analogy for national law, with the gardening implements necessary to keep that hedge tidy representing primacy and direct effect.

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In the first place, the basic requirements for direct effect of any act apply equally to directives, with sufficient precision and unconditionality serving as measures of the ability of the national judge to ascertain the content of the provision in question in such a way as to be able to apply it. Secondly, and with the limitation to vertical relationships in mind, the concept of ‘the state’ is interpreted broadly to include various agents and instrumentalities of the state, including semi-public bodies.78 This corresponds to the idea of multilevel governance as a feature of the Union and is completed by the argument that an entity which forms part of the ‘authorities of a Member State’ upon whom the obligation to apply Union law weighs cannot rely on its own non-observance of that obligation as a shield against its consequences.79 Thirdly, in what is often called a triangular relationship, an individual may suffer negative consequences in apparent contradiction to the prohibition on horizontal direct effect. This may be as a result of the fact that another individual, in a vertical relationship, has relied on a provision of a directive against the state (in the sense that the action that the state is then obliged to take or tolerate may be detrimental to the former individual),80 or it may arise where another individual seeks to escape the effects of a national measure by claiming that it is incompatible with a directive and must therefore be set aside. Although the position may seem nuanced, it is not the directive which imposes an obligation on the first individual in this case but whatever national law is left to be applied once the directive has been used to ‘disapply’ the incompatible provision. We suggest that these situations are best explained in terms of primacy and consistent interpretation. Fourthly, when none of the tools mentioned above operate to satisfy the claims of an individual, Member States may be liable to pay compensation for non-fulfilment of their obligations under directives.81 The conditions of such liability will be considered in chapter sixteen. Finally, the principle of direct effect has been perceived to play an important role as regards the impact in the Member States of international agreements concluded by the Union.82 As was noted above, Union institutions are bound by agreements concluded pursuant to Article 216(2) TFEU. Such agreements become part of Union law through the act of conclusion (which is normally a Council decision, following a proposal from the Commission and after having obtained the consent or an opinion of the European Parliament)83 and rank above secondary legislation in the hierarchy of Union norms; quite logically therefore, the validity of an act of the institutions may be affected if it is found to be incompatible with the terms of an international agreement concluded by the Union.

78 See, eg Case 152/84 Marshall, n 74 above, para 49; Case C-188/89 Foster EU:C:1990:313, para 18; Joined Cases C-253/96 to C-256/96 Kampelmann EU:C:1997:585, paras 36–47. Case C-413/15 Farrell, judgment of 10 October 2017, not yet published. See also Lenaerts and Van Nuffel, n 12 above, 903–4 and Rideau, n 64 above, 924–25. 79 Case 80/86 Kolpinghuis Nijmegen EU:C:1987:431. Similarly, a body is also unable (in the absence of implementation) to invoke the directive against an individual: Case C-168/95 Arcaro EU:C:1996:363. 80 See, eg Case C-201/02 Wells EU:C:2004:12. See also Lenaerts and Van Nuffel, n 12 above, 905. 81 Joined Cases C-6/90 and C-9/90 Francovich and Others EU:C:1991:428. 82 The literature on this subject is extensive. See, for general overviews, eg Eeckhout, n 41 above, 331 et seq; Rosas, n 58 above, 75–77. 83 The procedures for concluding international agreements are considered in greater detail in ch 15(II) below.

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It is settled case law that where the invalidity of secondary legislation is pleaded before a national court (which is bound to refer the question since it cannot itself declare such an act invalid),84 the ECJ reviews the legality of that act in light of the international agreement subject to three conditions: first, that the Union is bound by the international agreement; secondly, that the nature and broad logic of that agreement do not preclude such review, and thirdly, that its provisions appear, as regards their content, to be unconditional and sufficiently precise.85 The first of these conditions seems rather to be stating the obvious: only international agreements concluded by the Union pursuant to Article 216(2) TFEU are binding on the institutions. However, the question is complicated by a line of case law relating to the General Agreement on Tariffs and Trade and the assumption by the Community of powers previously exercised by the Member States. It has recently been clarified that the Union cannot be bound by the rules set out therein simply because all the Member States are parties to a particular agreement (although in certain circumstances such agreements may be taken into account in the interpretation of Union law).86 The second and third conditions are often described in terms of the direct effect of the agreement: in Intertanko the Court phrases the question as set out above, that is in terms of the nature and logic of the agreement and the unconditionality and sufficient precision of its provisions. In that case it concludes that the nature and logic of the UN Convention on the Law of the Sea prevent the Court from being able to assess the validity of a Union measure in light of that Convention.87 Does the reference in the preceding paragraph of the judgment to ‘rules intended to apply directly and immediately on individuals and to confer on them rights or freedoms capable of being relied upon against States’ then refer to the narrow concept of direct effect or rather, more generally, to the ability of the judge to identify the content of a provision and the nature of the obligation it presumes to impose? Without presuming to take on the task of responding to this difficult and nuanced question within the confines of the present work, we will make the following comments on the effect of international agreements in the Union legal order and the circumstances in which they will be found to form part of the body of rules which a judge must apply. The case law of the Court concerning the WTO agreements in particular has attracted much criticism in parts of the legal literature.88 In some contributions, it has been held that the Court has departed from monism and adopted a dualist approach. This, in our view, is based on a confusion between direct applicability and direct effect. While it is true that the distinction between monism and dualism is problematic and in any case not clear-cut, we are not aware of any legal order, be it monist or dualist, which would grant direct effect to all international agreements concluded by the state in question, including agreements which, for instance, are clearly merely programmatic in nature.

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See n 24 above. Case C-308/06 Intertanko, n 44 above, paras 43–45. See also ch 5(IV) above. paras 49–52; Case C-188/07 Commune de Mesquer EU:C:2008:359, paras 85–89. See also Rosas, n 44 above, 1324 et seq. 87 Case C-308/06 Intertanko, n 44 above, para 65. See also Case C-366/10 Air Transport Association of America and Others EU:C:2011:864, para 53, and ch 5(IV) above. 88 Eeckhout, n 41 above, 343 (fn 68), provides a fairly extensive list of the relevant literature. 85

86 Ibid,

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So-called monist systems, including that of the EU, are based on the idea of the direct applicability of all agreements concluded and in force. On this basis, such agreements find their place in the hierarchy of Union norms. This, in turn, generates a duty to interpret all lower ranking norms consistently with these agreements. If attempts to arrive at a conforming interpretation fail, the question arises whether the international agreement may be invoked directly, either to have the lower norm set aside (again, this will be a question of hierarchy if the lower norm is an act of the institutions or of primacy if it is a national measure) or to have the terms of the agreement applied instead of a norm which has been set aside or in the absence of such a norm. Does the fact that we are dealing with an international agreement alter the logic of how and when Union law may be invoked?89 As noted above, the requirement that a provision be unconditional and sufficiently precise is merely a standard by which to assess whether a judge is able to identify the content of the rule he is being asked to apply. Yet there is an extra condition: the nature and broad logic of the agreement. The key would therefore appear to lie in this first part of the test. It may be concluded that it is primarily on this ground that the Court has consistently held that the WTO agreements are not, as a matter of principle, among the rules in the light of which the Court is to review the legality of measures adopted by the Union institutions. The responsibility and enforcement scheme built into the WTO system makes it difficult to apply any given provision of those agreements without interfering with the political options available to the Contracting Parties. Indeed, the case law on the WTO agreements seems to be based almost entirely on the particular nature of the WTO dispute settlement system, which provides for three optional forms of implementation: so-called direct implementation (which, according to the Dispute Settlement Understanding, is to be ‘preferred’);90 compensation; and tolerance of trade sanctions (suspension of concessions). Allowing Member States or private parties to invoke the substantive rules of the WTO directly before national courts would imply direct implementation on the EU side, while the Union political institutions as well as the trade partners of the EU might prefer to choose an alternative method, such as compensation.91 On the other hand, some exceptions or reservations do exist, relating, for example, to the particular nature of the relation between a Union legal act and a given provision in a WTO agreement.92 The case law is therefore not based on any hostile attitude towards direct effect but is concerned rather with recognising that international agreements are concluded outside

89 Some commentators have pointed out that actions of annulment brought, say, by Member States against Union acts alleged to be contrary to a WTO agreement could be viewed differently from the question of whether a private party can rely on the WTO agreement directly before a court. See, eg PJ Kuijper and M Bronckers, ‘WTO Law in the European Court of Justice’ (2005) 42 Common Market Law Review 1313, 1342 et seq. On the other hand, it is not easy to see how the Union Courts could accept such a discrimination to the detriment of the individual. 90 See Art 22 of the WTO Dispute Settlement Understanding (DSU). 91 A Rosas, Case Note on Case C-149/96 Portugal v Council (2000) 37 Common Market Law Review 797, 810 et seq, and Case C-377/02 Van Parys EU:C:2005:121, paras 42–48. 92 Exceptions may apply if a Union measure is specifically intended to provide for direct implementation of a WTO agreement or if the Union act contains an explicit reference to a WTO agreement so that the latter becomes, as it were, incorporated into the Union act: see Case 70/87 Fediol v Commission EU:C:1989:254, paras 19–22; Case C-69/89 Nakajima v Council EU:C:1991:186, para 31; Case C-93/02 P Biret International v Council EU:C:2003:517, para 53. Recent case law has confirmed that these exceptions are to be given a narrow interpretation and that they are very rarely applicable, Case C-306/13 LVP EU:C:2014:2465; Case C-21/14 Commission v Rusal Armenal EU:C:2015:494.

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the constraints of the Union legal order, with third states or other international organisations. They may therefore contain negotiated solutions which do not follow internal orthodoxy. International agreements are binding on the institutions and the Member States of the Union, but only to the extent of their terms, and this is why, when an international agreement is invoked before a judge, he must ask whether, by its nature and broad logic, it lends itself to being applied in the situation before him. This will often depend on whether the agreement provides for individual rights,93 but may also be influenced by other considerations, for example of reciprocity. On that basis, non-discrimination provisions in a number of bilateral association and other cooperation agreements have been successfully invoked by individuals.94 Some multilateral treaties, too, have been considered to have direct effect.95 On the other hand, in addition to the WTO agreements dealt with above, the Court has highlighted the margin of discretion written into a Council of Europe Convention96 and the Kyoto Protocol to the United Nations Framework Convention on Climate Change97 as well as the lack of intention to accord rights to individuals in the United Nations Convention on the Law of the Sea as reasons for not invoking the international agreement in question in the situations before it.98 This is in line with the conditions which, as a matter of settled case law, apply before an international agreement may affect the validity of an act of secondary law and does not in our view alter the assessment of direct effect presented above.

V. The Relevance of National Law for Union Law While the preceding sections have concerned the status of Union law in the national legal orders, this final section will look at the relationship between Union law and national law from, as it were, the opposite angle. In what ways is national law of relevance for Union law? The search for an answer to this question can be structured along the following dimensions: (1) the relevance of national law for the creation and articulation of Union law; (2) the instrumentalisation of national law for Union law purposes; and (3) the applicability of national law by Union institutions and bodies.

93

P Eeckhout, Case Note on Case C-308/06 Intertanko, (2009) 46 Common Market Law Review 2041, 2054. See, eg Case 104/81 Kupferberg EU:C:1982:362; Case 127/86 Demirel EU:C:1988:366; Case C-192/89 Sevince EU:C:1990:322; Case C-265/03 Simutenko EU:C:2005:213; Case C-464/14 SECIL EU:C:2016:896. See also Eeckhout, n 41 above, 333 et seq. 95 On the agreements concluded with the African, Caribbean and Pacific (ACP) States see Case 87/75 Bresciani EU:C:1976:18 and Case C-469/93 Chiquita Italia EU:C:1995:435; the conclusion was that the Community had concluded the agreements in question with no intention of requiring reciprocity. On rights for individuals created by the Montreal Convention for the Unification of Certain Rules for International Carriage by Air see Case C-344/04 IATA and ELFAA EU:C:2006:10; Case C-429/14 Air Baltic Corporation EU:C:2016:88, paras 22–23. See also ch 5(IV) above at n 30. 96 Council of Europe Convention No 87 for the Protection of Animals Kept for Farming Purposes, Case C-1/96 Compassion in World Farming EU:C:1998:113. See also Case C-377/98 Netherlands v Parliament and Council EU:C:2001:523, para 54, where reference is made to the possible lack of direct effect of the 1992 Convention on Biological Diversity. 97 Case C-366/10 Air Transport Association of America, n 87 above, paras 73–78. 98 Case C-308/06 Intertanko, n 44 above. 94

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The first dimension has already been given some consideration in section III of chapter five above. Suffice it to recall here that the building up of Union (at the time Community) law did not take place in a vacuum and that many principles and concepts were borrowed from, or at least inspired by, corresponding national principles and concepts. Article 2 TEU is particularly instructive in this regard, declaring as it does that the values on which the Union is founded (such as human dignity and democracy) ‘are common to the Member States’. Numerous are the provisions of the Treaties which, usually without saying so explicitly, are inspired by national law concepts (to mention but one example, see Title II TEU on ‘democratic principles’). Sometimes the link is made more explicit, such as the references to the ‘constitutional traditions common to the Member States’ in Article 6(3) TEU and in the Preamble and Article 52(4) of the Charter of Fundamental Rights, and the instruction in Article 340(2) TFEU that the Union shall have non-contractual liability and shall make good any damage ‘in accordance with the general principles common to the laws of the Member States’. These examples, in fact, come close to the question of the applicability of national law in a Union law context (the third dimension mentioned above). Given the diversity of the national constitutional and legal orders, however, the practical relevance of these examples is limited by the requirement that the ‘traditions’ and ‘principles’ at issue be ‘common to’ the Member States. As was already noted above,99 it is quite rare that the Union Courts have been able to make use of the constitutional traditions common to the Member States in their search for fundamental rights as general principles of Union law. As to the second dimension mentioned above, the instrumentalisation of national law for Union law purposes, Union law, without depriving the Member States of their competence (in accordance with the principle of conferral expressed in Article 5(2) TEU, which provides that competences not conferred upon the Union ‘shall remain with the Member States’) and without enabling Union institutions and bodies to apply national law directly, lays down a number of material, procedural and institutional requirements for the national legal orders, thus making national law an instrument of Union law. A general obligation to implement Union law is laid down in Article 291 TFEU, which in its first paragraph directs the Member States to ‘adopt all measures of national law necessary to implement legally binding Union acts’. This general obligation, which highlights the primordial importance of national law for implementation of Union law, arguably may require implementing measures of both a material and procedural nature. A more specific obligation of a procedural nature is laid down in Article 19(1) TEU, according to which ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. This provision, as far as access to a judge and the right to effective judicial protection are concerned, is supplemented by Article 47 of the Charter of Fundamental Rights on the right to an effective remedy and to a fair trial. In the light of these provisions as well as ECJ case law,100 it is clear that national r emedies 99 Ch 5(III). See also ch 11(III) below. On the relevance of the reference to the general principles common to the laws of the Member States in Art 340 TFEU see, eg P Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond (Oxford, Hart Publishing, 2011). 100 See notably Opinion 1/09 (Draft Agreement on the Creation of a Uniform Patent Litigation System) EU:C:2011:123 and A Rosas, ‘The National Judge as EU Judge: Opinion 1/09’ in P Cardonnel, A Rosas and N Wahl (eds), The Constitutionalization of the EU Judicial System: Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012).

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and national judicial bodies perform an important role as instruments of the Union legal order. Whenever Union law does not in itself contain necessary procedural rules, or when a direct action such as an action for annulment cannot be brought before the Union Courts in Luxembourg, it is up to the national legal order to provide remedies, including competent judicial or other bodies, which are sufficient to ensure effective legal protection of rights and freedoms guaranteed by Union law. As will be elaborated upon later (section III of chapter sixteen), this procedural obligation, making national law an instrument of Union law, is often misleadingly called ‘procedural autonomy’. For the implementation of Union law, the Union legal order can be said to make use of all national institutions and bodies necessary for taking appropriate implementing measures. The obligation to implement Union law is not limited to judicial bodies but covers also political and administrative bodies, as the case may be.101 While this general obligation may include an instruction as to whether a task should be performed by a political (see Article 12 TEU on the tasks of national parliaments), judicial (see notably Article 47 of the Charter of Fundamental Rights) or administrative body (numerous provisions to be found across Union legislation), it does normally not specify which particular judicial or administrative body should be involved but leaves the designation, institutional setup, competence and procedures to follow to the national legal order. However, there is an increasing tendency in Union law not to stop there but to provide at least some basic rules on the status and tasks of specific national bodies which have to be set up with a view to performing Union law functions. In the judicial field an example are the national trade mark courts which are assigned some specific tasks in the Union trade mark legislation.102 In the administrative field, there is an increasing number of Union rules on the status and tasks of national regulatory authorities in specific areas such as competition, telecommunications, energy and data protection and a growing body of ECJ case law on the conformity of national rules with such Union law requirements. These rules and the relevant case law will be considered in greater detail in section IV of chapter seven below. As to the third dimension mentioned above, the applicability of national law by Union institutions and bodies, the traditional approach is, of course, that the competence of Union institutions and bodies is limited to Union law proper. In accordance with this approach, Article 267 TFEU provides that the ECJ shall have jurisdiction to give preliminary rulings on the interpretation of primary law and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. There is consistent ECJ case law stating that the Court does not have jurisdiction to interpret national law, a task left to the national judge.103 That is why Article 94 of the Rules of Procedure of the Court104 instructs the national judge to explain ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’.

101 See, eg M Verhoeven, The Constanzo Obligation: The Obligations of National Administrative Authorities in the Case of Incompatibility between National and European Law (Antwerp, Intersentia, 2011). 102 Council Regulation (EC) No 207/2009 of 26 February 2009 on the Union trade mark (codified version), [2009] OJ L 78/1. 103 M Broberg and N Fenger, Preliminary References to the European Court of Justice, 2nd edn (Oxford, Oxford University Press, 2014) 137–39. 104 [2012] OJ L265/1.

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In the same vein, national law has been seen by the Union Courts as a question of fact rather than a question of law. Some caveats have to be made to this general assertion, however. First of all, in infringement proceedings instigated by the European Commission against a Member State (Article 258 TFEU), or exceptionally by a Member State against another Member State (Article 259 TFEU), the ECJ cannot avoid assessing the content of national law to the extent that such national law becomes relevant for determining whether the Member State is acting in conformity with Union law.105 Secondly, the ECJ takes the content of national law very much into account when interpreting Union law in preliminary rulings, even in a situation in which Union law is not applicable as such but national law enjoins the national judge to use Union law.106 True, especially in the latter situation (preliminary rulings), it is still possible to uphold the traditional idea that the ECJ is not actually applying and interpreting national law. There are some exceptional situations, however, where this limitation seems to become problematic. To mention but two examples: certain provisions of EU trade mark law and the legislation concerning the so-called Banking Union enable Union bodies to apply national law.107

105 But the Commission and the Court should, with regard to national legislative, regulatory and administrative acts, take into account the interpretation given to them in national case law, T Materne, La procedure en manquement d’Etat. Guide à la lumière de la jurisprudence de la Cour de justice de l’Union européenne (Bruxelles, ‘Éditions Larcier, 2012) 195, 207. 106 See, eg Case C-268/15 Ullens de Schooten EU:C:2016:874 and Broberg and Fenger, n 103 above, 140–51. 107 See, eg Council Regulation (EC) No 207/2009, n 102 above, relating to the Union trade mark (codified version), [2009] OJ L 78/1, which, for instance, in Art 8(4), contains references to national law in a way which may make it applicable at Union level, see, eg Case C-263/09 Edwin v EUIPO EU:C:2011:452 and the Opinion of Kokott AG in Case C-598/14 P EUIPO v Szajner EU:C:2016:915, paras 43 and following. In a legislative act relating to the so-called Banking Union (see ch 14(V) below), the European Central Bank has been granted powers to apply also national legislation transposing Union directives or national legislation exercising options granted by Union regulations, see Art 4(3) of Council Regulation (EU) No. 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, [2013] OJ L 287/63.

7 A Lot More than Brussels Bureaucrats: The Institutional Framework I. Introduction In the mind of the general public, the EU is often synonymous with straight bananas, a mountain of butter and an immense Brussels bureaucracy (an army of faceless bureaucrats, often also referred to as ‘eurocrats’). In reality, the number of civil servants employed by the Union institutions is pointedly low in comparison with the administrations of the Member States. The number of the personnel of the Commission (seen as the principal breeding ground of bureaucracy) is in the region of 33,000, comprising not only civil servants (officials) but also staff in a supporting role (including, notably, a large number of ‘linguistic staff ’, that is, interpreters and translators)1—a number comparable to the staff normally employed by a middle-sized European city. Unless, at the risk of making matters worse, we highlight that those staff in that European city are also, in their own way, eurocrats. The EU performs its task through a complex multilevel institutional structure which consists of political, semi-political, bureaucratic and judicial institutions and bodies, including, crucially, organs and civil servants of the Member States. In this structure, competences and powers are often interrelated and intertwined in a way which makes neat definitions and comparisons with traditional orthodoxy difficult. For instance, law-making is not centred around one parliamentary institution but is shared by the European Parliament and the representatives of national governments in the Council. The Commission, too, plays an important role in the legislative process by enjoying, as a rule, a monopoly of initiative. To complicate the picture further, the European Council, consisting of the heads of state or government of the Member States, may function as a motor, channeling attention to major legislative and other initiatives, while an Economic and Social Committee and a Committee of the Regions act in an advisory capacity and the national parliaments are involved both via control of their national governments and directly (albeit in a limited way) at the supranational level.

1 According to D Spence and A Stevens, ‘Staff and Personnel Policy in the Commission’ in D Spence (ed), The European Commission, 3rd edn (London, John Harper Publishing, 2006) 176, it is ‘surprisingly difficult to state with any certainty how many people really work for the European Commission’. The authors, by reference to an internal Commission review, give the staff number of some 31,000 for the year 1998. On the C ommission’s website, reference is made to a staff of 33,000, www.ec.europa.eu/civil_service/docs/hr_key_figures_en.pdf (accessed on 14 February 2017).

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We suggest that, except for the birth and increasing use of regulatory and administrative agencies, the main institutional framework of the Union today does not differ from the essence of the original structure set up in the 1950s. On the other hand, the institutions themselves have evolved considerably, as is only natural, given the evolution of the entity as a whole. This, in turn, has shifted the balance between the institutions. While the Council and the Commission still bear a close resemblance to their original form, the European Parliament has undergone a radical metamorphosis, from a consultative forum for discussion to a central legislative and political player. The European Council did not exist before the 1970s and it is only in the Treaty of Lisbon that it is elevated to the status of ‘institution’. Similarly, though for more obvious technical reasons, the European Central Bank only emerged with the creation of the euro in the 1990s and is now, post-Lisbon, listed among the ‘institutions’, a list which is completed by the Court of Justice and the Court of Auditors (section II). A separate section (III) will look beyond the Union institutions in this narrow, technical sense to examine the role of autonomous Union regulatory and administrative agencies, executive agencies set up by the Commission, committees functioning under the comitology procedure (mechanisms for control by Member States of the Commission’s exercise of implementing powers) and certain other special bodies and working groups functioning at Union level. Finally, the Treaties still distinguish between the Union’s own institutions, bodies, offices and agencies and the institutions and bodies of the Member States. Yet, as pointed out in the preceding chapter, in the same way as the national law of the Member States should be seen as part of a broader common legal system, the national institutions and bodies must be seen as part of a broader institutional framework, not only because they have a primary role in the execution of Union law but also because they are often implicit and sometimes explicit participants in the Union decision-making process (for instance, the Treaty of Lisbon expressly highlights the increasing role to be played by national parliaments). As this element of the institutional structure is often overlooked, we shall consider it in some detail in a final section (IV). If our references to multilevel governance were not clear before, the myriad of actors invoked in the following sections should leave the reader in no doubt. Regrettably, they may also lend credence to the conclusion of one commentator that the Treaty of Lisbon neither simplifies nor clarifies the fundamental character of the Union’s institutional system but will most likely ‘increase its federal complexities and ambiguities’.2

II. The Union’s Institutions The present section on the Union’s own institutions will be rather succinct, for three reasons. First of all, we do not believe that a detailed account of the institutional nitty-gritty is essential to an understanding of the basics of the constitutional order. Secondly, there is

2 P Dann, ‘The Political Institutions’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 237, 273.

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ample literature on the main Union institutions, containing levels of detail ranging from the sublime to the ridiculous, to which we refer the interested reader.3 Finally, many aspects of the institutional structure will be dealt with in other chapters, notably in chapter nine, on democratic principles and guarantees. It should be noted that Brexit will necessarily imply some changes to the institutional makeup. In particular, the composition of the European Parliament will change and it seems likely that the total number of seats will be lowered from the current 751 (which, according to Article 14(2) TEU, is the maximum). As this edition goes to print, it is too early to foresee the exact nature of these institutional changes, and the discussion which follows will be limited to the situation before the entry into force of Brexit. Article 13(1) TEU lists the Union’s institutions: the European Parliament, the E uropean Council, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors. The elevation of the European Council and the European Central Bank to the status of ‘institution’ is an innovation of the Treaty of Lisbon (although both these entities were already mentioned in the Treaties and the status of the European Central Bank was regulated in some detail in the TEC). It is telling in terms of the constitutional order that the institutions are specifically instructed not only to respect the limits of the powers conferred on them in the Treaties (a feature not unknown to national legal orders) but also to ‘practice mutual sincere cooperation’ (does any nation state feel the need to remind its parliament to cooperate with its government?). Before looking at the first four of these institutions in more detail, it is important to note that, to a greater degree than within the Member States, the institutions derive their legitimacy from a variety of sources (in terms of appointment, functions and accountability), some (notably the European Council and the Council) being more closely entwined with the Member States as such than others (notably the European Parliament); the ‘institutional balance’ between the main Union institutions is therefore of central importance to the competence and power sharing between the Union and its Member States and the perception of the legitimacy of the Union as a whole. Not being bound by politically symbolic sensitivities, we shall begin our analysis with the European Council,4 and then follow the order in which Article 13 TEU lists the other institutions we propose to analyse. This institution is not new and is no longer only ‘informal’, but its elevation to the status of ‘institution’, as that label is used in the Treaty itself, deserves some comment. It is not to be confused with the Council of Europe (a distinct international

3 We are not, of course, suggesting that any of the following works fall into the second category: K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 452 et seq; J Rideau, Droit institutionnel de l’Union et des Communautés européennes, 5th edn (Paris, LGDJ, 2006) 371–539; D Chalmers and A Tomkins, European Union Public Law (Cambridge, Cambridge University Press, 2007) 86–130; Dann, n 2 above; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 204–37; E Best, T Christiansen and P Settembri (eds), The Institutions of the Enlarged European Union: Continuity and Change (Cheltenham, Edwar Elgar, 2010); N Mousse, Access to European Union: Law, Economics, Policies, 19th edn (Rixensart, Euroconfidential, 2011) 41–67. 4 See generally, eg J Werts, The European Council (London, John Harper Publishing, 2008); F Eggermont, The Changing Role of the European Council in the Institutional Framework of the European Union: Consequences for the European Integration Process (Antwerp, Intersentia, 2012) and the works mentioned in n 3 above.

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organisation with its seat in Strasbourg) or with the Council of the Union (which will be considered below). In its newly institutionalised form, it consists of the heads of state or government of the Member States, a President, elected by the European Council itself, and the President of the Commission. In addition, the Foreign Affairs Representative shall take part in its work.5 To the extent that any meeting needs to be chaired, the presidency of the European Council is not a new invention; dissociating that role from the rotating presidency of the Council is the novelty introduced by the Treaty of Lisbon. In acknowledgement of the intergovernmental origins of this formation, it is specifically stated that decisions shall be taken by consensus; when a vote is provided for (which in some cases may be by qualified majority, including for the election of the President,6 or for procedural questions even by a simply majority) neither the President nor the President of the Commission take part (Article 235(1) TFEU), but their participation in the work of the institution in general mitigates somewhat its intergovernmental character. Ostensibly the role of the President is to chair the European Council and drive forward its work (Article 15(6)(a) TEU). Attempts to reduce this to a purely technical function appear to overlook the fact that ‘its work’ is to ‘provide the Union with the necessary impetus for its development’ and ‘define the general political directions and priorities thereof ’ (Article 15(1) TEU). In addition, a specific role is reserved for the President of the European Council in the sphere of external relations: he shall ‘at his level and in that capacity’ ensure the external representation of the Union on issues concerning its Common Foreign and Security Policy (CFSP) without prejudice to the powers of the Foreign Affairs Representative. It is perhaps in this respect that there is room for debate as to the nature of the role; this question will be further discussed in section II of chapter fifteen below. The European Council is not a legislative body, and the ECJ has recently had occasion to underline that as far as the adoption of legal acts is concerned, it would be against the institutional balance to make the Commission’s power of initiative and the decision-making powers of the Council conditional upon the European Council having defined guidelines.7 That said, neither is the European Council the ‘fireside chat’ it used to be. Set up on the fringes of the institutional framework because of a need not able to be satisfied within its confines, it has, like so many other phenomena, gradually been drawn into the circle and now appears to form the pinnacle of the framework it once eschewed. It enjoys important constitutional powers, for example as the driver of the process for revising primary law, including a decision-making role in relation to what are termed simplified revision procedures,8 and as the institution which appoints the members of the Commission, including the Foreign Affairs Representative. It may be noted at this point that the technically dubious references in previous Treaties to ‘the Council, meeting in the composition of the heads of state or government’ or variations on that theme are now consigned to the past: the instances requiring that highest level of input are now assigned to the European Council

5 According to Art 15(3) TEU, the heads of state or government may decide to be assisted by a minister or, in the case of the President of the Commission, by a member of the Commission. 6 On 6 March 2017, President Tusk was re-elected for a term of 2.5 years by 27 votes in favour and one (Poland) against. 7 Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631, paras 145–50. 8 See ch 4(II) above. For a list of legal bases which enable the European Council to take decisions see Piris, n 3 above, 379–82.

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(in addition to the nomination of the President of the Commission, see, for example, the procedure for determining a serious and persistent breach of the founding values of the Union, Article 7 TEU). From the point of view of its composition and functioning, the European Council displays a strong intergovernmental element, normally a sign of less emphasis on integration, yet it has increasingly played a role as a motor for European integration and major legislative and other initiatives, culminating in the specific conferral of this strategic prioritysetting as its main task.9 In this sense, it may also play a role as ‘final arbiter’ in legislative matters which run into trouble in the other institutions.10 Indeed, that role as political judge has now been institutionalised (see, notably, Articles 82(3) and 83(3) TFEU relating to the adoption of directives for the harmonisation of criminal law, by which the European Council is specifically tasked with searching for consensus while the ordinary legislative procedure is suspended).11 But what would the leaders of yore have made of fixed agendas, minutes and rules of procedure—not to speak of decision making by qualified majority?12 The transformation of the European Parliament13 as an institution is even more startling. It has evolved from very humble beginnings as an occasionally consulted but often ignored assembly of national parliamentarians into a directly elected co-legislator and the focal point of democratic control in the Union, consisting today of 750 members plus the President.14 The basic conundrum of why this eminently viable institution remains at the centre of the debate about a ‘democratic deficit’ will be addressed in chapter nine. The purpose of the present section will be to analyse the elements of the institution that give it its place in the constitutional order of the Union. As proof of the extent of this transformation, the first provision relating to this institution begins by stating that the European Parliament shall, jointly with the Council, exercise legislative and budgetary functions (Article 14(1) TEU). It shall, so that provision continues, exercise functions of political control and consultation as laid down in the Treaties, as well as elect the President of the Commission. It therefore acts as a legislator and as a body liable to hold the other institutions to political account.

9

Dann, n 2 above, 264–65. See also Werts, n 4 above, 197–199; Eggermont, n 4 above, 347 et seq. Dann, n 2 above, 263. 11 See further ch 12(IV) below. 12 See the Rules of Procedure of the European Council, European Council Decision 2009/882/EU of 1 December 2009, [2009] OJ L315/51. Art 236 TFEU provides that the European Council will take a decision on the configurations of the Council and on its presidency by qualified majority. See also Art 17(7) TEU. As this edition goes to print, the consequences of Brexit on what is deemed to constitute a qualified majority are not yet known. 13 See generally, eg R Corbett, F Jacobs and M Shackleton (eds), The European Parliament, 9th edn (London, John Harper Publishing, 2016) and the works mentioned in n 3 above. For a critical assessment of the role of the Parliament see J-C Piris, The Future of Europe: Towards a Two-Speed EU? (Cambridge, Cambridge University Pres, 2012) 31–35. 14 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’ (Art 14(3) TEU). Election to the Parliament still follows national lines, inter alia, through the requirement that, within the overall maximum of 750 members, there shall be a minimum of six and a maximum of 96 MEPs per Member State (Art 14(2) TEU). During a transitional period (2009–14), there were 754 members, see the Protocol amending the Protocol on Transitional Provisions annexed to the TEU, the TFEU and the Euratom Treaty, [2010] OJ C263/1. See also Decision 2013/312/EU of the European Council of 28 June 2013, [2013] OJ L181/57. As this edition goes to print, the consequences of Brexit for the composition of the Parliament are not yet known. 10

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As to the first of these functions: the legislative acts listed in Article 288 TFEU, that is regulations, directives and decisions, are adopted jointly by the European Parliament and the Council, acting on a proposal from the Commission. The detailed rules which make up this procedure (laid down in Article 294 TFEU) are beyond the scope of this work.15 That said, it is important to note that what used to be referred to as ‘co-decision’ is precisely that: a procedure which involves alternate readings in the Council and the Parliament and three chances, depending on the degree of convergence of views between the Parliament and the Council, to reach an agreed text (including, in case of the need for a third reading, the work of a Conciliation Committee consisting of representatives of the members of the Parliament and of the Council, and with the participation of the Commission in a mediating role). This is now explicitly recognised as the ‘ordinary legislative procedure’. However, while now clearly identified as exceptions, the Treaties still contain a number of provisions (for example, on measures to combat discrimination, on fiscal measures, and on certain criminal as well as social and labour matters) which refer to a special legislative procedure; this is not a single concept, but varies from case to case, although normally it provides that the legislative act is adopted by the Council (usually by unanimity) after consultation of the Parliament.16 The old assent procedure (requiring the positive consent of the Parliament) now comes into this category of ‘special procedure’ and in a few isolated cases the roles are reversed, and it is the Parliament which adopts the act with the consent of the Council. In this respect, it is worth noting that the role ascribed to the Parliament continues to reflect the willingness of the Member States to transfer power in a particular field: the CFSP is conducted almost without regard to the Parliament, security and defence being viewed as matters close to the very core of national sovereignty.17 On the other hand, the Treaty of Lisbon significantly increased the powers of the European Parliament in the field of external relations more generally, notably as regards the conclusion of international agreements (Article 218(6) TFEU). These questions will be considered further in section II of chapter fifteen. The adoption of the annual budget of the Union is now also referred to as a special legislative procedure. While, as noted above, this normally indicates a lesser role for the Parliament, the budget procedure does the opposite. Detailed rules for the adoption of the budget are laid down in Article 314 TFEU and mirror the features of the ordinary legislative procedure in terms of equal involvement of the Parliament and the Council in adopting the budget as proposed by the Commission. The extra power the Parliament has in this field is the ability to force adoption of a text even in the event that the Council fails to act on the results of the Conciliation Committee (Article 314(7)(d) TFEU), although, in view of the modest size of the Union’s budget, as compared to the budgets of the Member States,18

15 On the ordinary legislative procedure see, eg Lenaerts and Van Nuffel, n 3 above, 663–72; Corbett et al, n 13 above, 277–95. 16 See Arts 19, 83, 113, 115 and 153 TFEU. For a more complete list of legal bases where unanimity continues to apply in the Council see Piris, n 3 above, 376–78. This list largely corresponds to the legal bases of the TFEU providing for the special legislative procedure. 17 But see Case C-658/11 Parliament v Council EU:C:2014:2025; Case C-263/14 Parliament v Council EU:C:2016:435 where the Council was found not to have respected the Parliament’s right to be kept informed about the negotiations relating to international agreements concluded under the CFSP. 18 See ch 2(V) above, nn 33–34.

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the budgetary powers of the European Parliament appear less important than its legislative powers generally. More relevant, perhaps, is the power of the Parliament to give a discharge to the Commission in respect of the implementation of the budget, and to make special observations on that implementation in the discharge decision (Article 319 TFEU). Finally, if a legislative act delegates to the Commission the power to adopt non-legislative acts to supplement or amend non-essential elements of the legislative act, the act may provide for the right of the legislator (that is Parliament or the Council) to revoke the delegation, or to prevent the entry into force of the delegated act by expressing an objection to it (Article 290 TFEU). Over the decades, the European Parliament has also acquired an increasing role as the body which holds the other institutions to account. Some institutional provisions concerning, inter alia, the status of the members of the Parliament (MEPs), commissions of enquiry and the duties of the Ombudsman, contribute to this role.19 How effectively it exercises functions of political control (mainly with respect to the work of the Commission) will be discussed further in section III of chapter nine, relating to democratic principles and procedures (and it is in that context that we will comment on the election of the members of the European Parliament). For the purposes of the present discussion, one particular aspect of the control function deserves mention: the Parliament elects the President of the Commission (Article 14(1) TEU) and gives its consent to the appointment of the other members of the Commission (Article 17(7) TEU).20 Although the Parliament remains entirely dissociated from the Commission both personally and politically, there has been an alignment in terms of the relationship between the two institutions. The mandate of each Commission coincides with the parliamentary term and the European Council must now take into account the results of the elections to the European Parliament when identifying the candidate it puts forward for election by the Parliament as Commission President. That said, the hearings of the various putative Commissioners do not seem to have been conducted primarily with political orientations in mind, and the Parliament thus continues to function as a critical observer unconstrained by party loyalty. In addition to this ex ante control, one of the oldest powers of the Parliament is an ex post control exercised via a motion of censure and requiring, if successful, the Commission as a body to resign. Such a motion is only passed by the very high threshold of a two-thirds majority of votes cast representing an absolute majority of MEPs. However, this may be another case where ‘the shadow of the vote’ is almost as effective as the vote itself.21 Indeed, in practice, the Parliament can probably, through an informal vote of no-confidence, obtain the resignation of individual Commissioners.22 In the Framework Agreement signed between the Parliament and the Commission on 20 October 2010,23 a number of cooperation modalities have been fixed which, in the view

19 See Art 223(2) TFEU and Arts 7–9 of Protocol No 7 on the Privileges and Immunities of the European Union annexed to the Treaties on the statute of MEPs (and for an example of case law Case C-163/10 Patriciello EU:C:2011:543), Art 226(3) TFEU on committees of inquiry and 228(4) TFEU on the duties of the Ombudsman. 20 See, eg Dann, n 2 above, 245–57. 21 The phrase was coined with reference to qualified majority voting in the Council, JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 72. 22 See further ch 9(III) below. 23 [2010] OJ L304/47.

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of the Council (and thus the Member States’ governments) tend to modify the institutional balance, in particular by recognising for the Parliament prerogatives which are not provided for by the Treaties and limiting unduly the autonomy of the Commission.24 An essential part of the legislative, budgetary and control functions of the Parliament is exercised through its committees. Without going into the internal organisation of the European Parliament in any greater detail, this aspect of the institution seems crucial to an understanding of how it discharges its duties. This modus operandi, not unique to the E uropean Parliament, is conducive to informed and thorough discussion, thereby leading to better preparation on the part of the European Parliament as regards its participation in the legislative and other decision-making processes. As this edition goes to print, there are 22 standing parliamentary committees.25 The European Parliament has gradually become a central component of the EU institutional structure. According to some observers, its real powers, and the influence of its more active individual members, especially in the legislative procedure, exceed those found in most national parliaments.26 Yet the system cannot be characterised as a parliamentary democracy in the strict sense of the word. This is so, inter alia, because the Parliament exercises virtually no power over the Council, despite the fact that the Council is not only a co-legislator but also enjoys important executive powers, notably in the context of economic and monetary policy and the CFSP. Moreover, the main executive power, the Commission, may be politically somewhat less dependent on the majority will of the Parliament than is the case in many national parliamentary democracies—or rather, it is more difficult to discern a clear and stable majority will in the European Parliament. Thus we come back to the basic conundrum, addressed in chapter nine: that the foremost challenge facing the Parliament is the weak link which exists between it and the electorate. As one commentator puts it, ‘Institutionally, the EP has to be regarded as a strong parliament. Sociologically, however, it barely exists in the European political mindset.’27 Particularly in light of the institutionalisation of the European Council, the main task of the Council28 is now clearly legislative and has to a large extent already been covered above, in connection with the powers of the European Parliament. Simply referring to the legislative function of the Council does not, however, reveal the quintessential nature of the institution as the repository, at the supranational level, of national interest. The meetings of the Council are the visible manifestation of this inter-governmental (in the literal sense rather than the loaded meaning it has acquired post-Maastricht as an antithesis to integration) activity, but it is only the tip of the iceberg.29 So, to understand this institution, we must plunge deep into the icy waters below.

24

Declaration adopted by the Council on 21 October 2010, [2010] OJ C287/1.

25 http://www.europarl.europa.eu/committees/en/parliamentary-committees.html

(accessed on 14 F ebruary 2017). Important committees include the Foreign Affairs, Budget, Budgetary Control, Legal Affairs and Civil Liberties, Justice and Home Affairs Committees. See also Corbett et al, n 13 above, 167–204. 26 Dann, n 2 above, 255. 27 Ibid, 271. 28 See generally, eg M Westlake and D Galloway, The Council of the European Union, 3rd edn (London, John Harper Publishing, 2004); Piris, n 3 above, 209–25. On the decision-making procedures see also Piris, n 13 above, 20–25, who provides a list of matters which still require unanimity in the Council. 29 See Dann, n 2 above, 245, where he describes this complex system as a ‘pyramid of groups’.

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European legislation may be general, straightforward [sic], detailed, deliberately vague, highly technical or all of the above, but even the simplest rule must normally be implemented in all 28 Member States, via a myriad of national and sub-national administrative authorities (more on which in section IV below). It therefore seems crucial to the successful implementation of any piece of legislation that national actors familiar with the realities in which implementation will occur are involved in its formulation. Council Working Groups, composed of specialised national civil servants, are therefore the first to get their hands on a Commission proposal.30 The detailed groundwork thus complete, a text is presented to the Committee of Permanent Representatives (Coreper). This is without doubt the most important Council committee. It is composed of national diplomats (either the Permanent Representative of a Member State to the Union or one of his deputies, depending on the subject matter) and is ruthlessly efficient in its task of preparing the work of the Council (Article 16(7) TEU).31 By the time the text reaches ‘the Council’, as it is commonly conceived, that is, as a meeting of representatives of the national governments, most of the issues have been resolved. Is this shocking (adding further to the democratic deficit) or is it the reality of any working government—or any business structure, for that matter?32 Either way, it will surely limit the usefulness of the new approach to transparency according to which legislative matters shall henceforth and as a matter of primary law be public (Article 16(8) TEU).33 Next, the voting rules which apply to those Council meetings deserve mention here, not because of their intrinsic value to an understanding of how the institution fits into the constitutional order of the Union but because of the heated debate they provoke at each instance of Treaty revision and what that itself tells us about the institution. The Council sits in various configurations, depending on the matters to be dealt with (agriculture and fisheries, economic and financial affairs, environment, justice and home affairs, and so on).34 Each Member State is represented in a particular Council meeting by one minister, whose identity will depend on which configuration is meeting. That minister must be authorised to ‘commit the government of the Member State in question and cast its vote’ (Article 16(2) TEU). Until 1 November 2014, he could cast a vote weighted according to a scale ranging from three (Luxembourg) to 29 (Germany, France, Italy and the UK).35 At the end of this transitional period, the new system set up by the Treaty of Lisbon came on stream and each minister is now able to exert a voting power commensurate 30 See the list of Council preparatory bodies annexed to Council document 5183/16 of 18 January 2016, POLGEN 3. 31 Westlake and Galloway, n 28 above, 201, observe that Coreper ‘is one of the most powerful organs within the European Union’s institutional structure’. The Treaties also refer to a Political and Security Committee (Art 38 TEU), a Standing Committee to promote and strengthen, in the context of the area of freedom, security and justice, operational coordination on internal security (COSI, Art 71 TFEU), an Economic and Financial Committee (Art 134 TFEU), an Employment Committee (Art 150 TFEU), a Social Protection Committee (Art 160 TFEU) and a Trade Policy Committee (Art 207(3) TFEU). 32 On the democratic deficit see ch 9 below. 33 A move in this direction had already been made before the entry into force of the Treaty of Lisbon via an amendment of the Council’s Rules of Procedure. See Dann, n 2 above, 249. 34 There are ten such configurations, see Decision of the Council (General Affairs) of 1 December 2009 establishing the list of Council configurations in addition to those referred to in the second and third subparagraphs of Art 16(6) of the Treaty on European Union, [2009] OJ L315/46. 35 On this transitional period, see Art 238 TFEU and Protocol No 36 on Transitional Provisions annexed to the TEU and TFEU.

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with the size of the population of his country. In other words, the mental and a rithmetical gymnastics that have characterised the debate on what constitutes a qualified majority (and, just as importantly, a blocking minority) will (almost) be consigned to the history books; henceforth a qualified majority shall be defined as at least 55 per cent of the members of the Council, comprising at least 15 of them and representing Member States accounting for at least 65 per cent of the population of the Union (the so-called double majority).36 This is important since qualified majority voting is now, like the ordinary legislative procedure, expressly stated to be the rule (Article 16(3) TEU) with specific instances of unanimity remaining as exceptions.37 However, it appears to be accepted as given that the Council strives to act by consensus.38 Three remarks appear salient. First, if this is the case, can the extension of majority voting to almost all areas of competence really be heralded as a major step forward for the integration process? The answer would appear to continue to lie in Weiler’s analysis of decision making ‘in the shadow of the vote’.39 Secondly, if consensus has been achieved through the preparatory work carried out in working parties and Coreper, what is the real value of the requirement that Council meetings be public? Thirdly, the heated debate on the precise weighting of votes which are then avoided at all costs appears to say much about the symbolic value of the Council as the manifestation of the Member State and national sensitivities thus play an important role in the dynamics of this most curious of institutions. In relation to this last point, it is interesting to note that, although the Treaty of Lisbon left the tasks of the Council and the means by which it may carry out those tasks largely untouched, the institutionalisation of the European Council and notably the new role of its President will have a seismic effect on the place of the Council in the constitutional order of the Union. The presidency of the Council organised on the basis of six-monthly rotations used to be a chance for both high-level visibility for national politicians and agenda-setting as a means of publicising national political priorities. Ironically, given that the E uropean Council should be the ultimate expression of the Council, that role is fulfilled by its ‘third-party’ President. The presidency of the Council is now organised into groups of three Member States holding the presidency for a period of 18 months, with each member of the group in turn chairing the meetings for a six-month period.40 The Foreign Affairs Council will be permanently chaired by the Foreign Affairs Representative (effectively removing any control over the agenda from the presidency of the Council). In this respect, a comparison with the meetings between ministers of the Euro Group Member States, chaired by

36 See, on this new principle as well as the voting rules more generally, including a historical perspective, Piris, n 3 above, 212–25. 37 Compare Art 205(1) TEC, which provided that the Council acted by a majority of its members save as otherwise provided (although, in practice, there was very limited scope for simply majority as most situations were ‘as otherwise provided’). 38 Dann, n 2 above, 247. See also S Novak, La prise de décision au Conseil de l’Union européenne: Pratiques du vote et du consensus (Paris, Dalloz, 2011). 39 Weiler, n 21 above. 40 Declaration No 9 on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon and European Council Decision 2009/881/EU, [2009] OJ L315/50. See also Council Decision 2009/908/EU laying down measures for the implementation of this European Council Decision and on the chairmanship of preparatory bodies of the Council, [2009] OJ L322/28.

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a President elected for two and a half years (Article 137 TFEU), may be useful, although the President is chosen from amongst their number rather than being a ‘neutral’ third party and a Protocol makes it clear that these meetings shall be of an informal character only.41 Finally, the Council also exercises some important executive powers. Article 291 TFEU enables the conferral of implementing powers on the Council instead of on the Commission, although this can be done only ‘in duly justified specific cases’ or in the cases provided for in Articles 24 and 26 TEU (which concern CFSP decisions and action).42 Reference to the CFSP in this context is perhaps not surprising given the nature, more generally, of this field of activity.43 However, the Council also enjoys an enhanced role in the field of economic and monetary policy. While the Commission has not been entirely absent as an institutional actor, decisions on measures to be taken with regard to a Member State which allegedly fails to comply with, for example, the obligation to avoid excessive government deficits have been taken by the Council.44 As will be explained in chapter fourteen, however, the powers of the Commission in the monitoring of economic policy and budgetary discipline have been strengthened by recent developments mainly at the level of secondary law. These and other executive powers of the Council imply two things: first, they demonstrate that the Council is more than a ‘second legislative chamber’ and competes in some areas with the Commission for the role of chief executive. Secondly, the powers of the Council in the fields of the CFSP and—at least until recently—economic and monetary policy reflect the reticence of the Member States to relinquish control in these sensitive areas. But, and we will come back to this in chapter seventeen, the result is arguably less unity and coherence generally, and less control of respect for the common rules. As for the European Commission,45 if the supranational organisation itself is difficult to define, is it any wonder that the supranational institution par excellence is almost as tricky to pin down? Telling in this respect is the fact that the Treaty itself begins simply with the statement that ‘the Commission shall promote the general interest of the Union and take appropriate initiatives to that end’ (Article 17(1) TEU) (a policy-shaping role). It shall, subject to judicial control, ensure that Union law is applied (guardian of the Treaty). And it shall exercise coordinating, executive and management functions (an executive role). This last aspect of the job of the Commission speaks for itself: the Commission shall execute the budget and manage programmes and shall, with some exceptions (mainly concerning the CFSP), ensure the Union’s external representation. In addition, the amendments introduced by the Treaty of Lisbon make it clear that the exercise of implementing powers shall, as a rule, be entrusted to the Commission and, to the extent that certain non-essential elements of a legislative act may require to be supplemented or amended, the legislator may delegate that power to the Commission.46 The first of the functions listed above is, we would suggest, what makes the Commission what it is, and it is interesting to note in this respect that the clear enjoinder to defend the

41

Protocol No 14 on the Euro Group annexed to the TEU and the TFEU. See further ch 8(II) and ch 14(II). On implementing powers and implementing acts generally, see ch 5(V) above. 43 See ch 15 below. 44 See Art 126 TFEU and Case C-27/04 Commission v Council EU:C:2004:436. 45 See generally Spence, n 1 above. 46 See ch 5(V) above. 42

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Union interest is a novelty introduced by the Treaty of Lisbon.47 Union legislative acts may only be adopted on the basis of a Commission proposal (Article 17(2) TEU). This right of initiative, which as a result of the abolition of the pillar structure is now almost without exception, entails two consequences, both intimately related to the task of the Commission to promote the general interest. First, it implies considerable influence over the legislative agenda: the strategic priorities identified by the European Council will by definition be broadly framed (and in any event may even be influenced by the President of the Commission as a member of the European Council), the European Parliament may request but not require that a particular matter is made the subject of a legislative proposal (Article 255 TFEU), and the new ‘citizen’s initiative’ is only an invitation to act (Article 11(4) TEU). It may be assumed, then, that it will be the matters best reflecting the general interest (of the Union, that is those which will further its objectives) that will be the subject of Commission proposals. Secondly, it requires an ex ante infusion of ‘unity in diversity’, by which we mean that the proposal itself must already have taken account of the different and often conflicting national interests and thus represent a compromise acceptable to all. Indeed, it has been suggested that it is this feature that is crucial to the ‘Community method’, defined as making majority-voting acceptable to sovereign states.48 This element of the right of initiative is reinforced by the fact that the Council may only amend a Commission proposal by acting unanimously (Article 293(1) TFEU). Continuing this logic, it has been the Commission’s view that it can withdraw its proposal if amendments made to it lead either to a manifest illegality or to a serious distortion of the proposal itself. This position was not shared by the Council and the dispute came before the ECJ, which, generally speaking, ruled in favour of the Commission’s position.49 The political role of the Commission and the interplay between the Commission and the European Parliament from the perspective of the principle of democracy will be considered in section III of chapter nine below. The second main function of the Commission is often described by referring to this institution as the guardian of the Treaties. In essence, this task of overseeing compliance with Union law is carried out principally within the framework of the action for infringement (Article 258 TFEU) and will be analysed in section III of chapter sixteen, on legal control and remedies. Suffice it to note here that the nature of the Commission as representative of all Member States and therefore neutral as to the interests of any one of them may prove central to perceptions of fairness in the way the Commission carries out this task. Thus the statement that it shall be ‘completely independent’ is of the utmost importance (Article 17(3) TEU). In line with this requirement, the members ‘shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt’. The Commission is formally appointed by the European Council, acting

47 Contrast the former Art 211 TEC, which defined the main mission of the Commission as being to ensure the proper functioning and development of the common market. This objective was followed by four more specific tasks such as ensuring that the provisions of Community law were applied. 48 See J Temple Lang, ‘How Much do the Smaller Member States Need the European Commission? The Role of the Commission in a Changing Europe’ (2002) 39 Common Market Law Review 315. 49 Case C-409/13 Council v Commission EU:C:2015:217.

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by qualified majority. Its term of office is five years and it may be forced to resign only in the event of a motion of censure voted by the European Parliament.50 But is independence enough? Or is representation also key to acceptance of this most supranational of institutions? While Article 17(5) TEU expresses the rule that, as from 1 November 2014, the number of members will correspond to two-thirds of the number of Member States, the provision authorises the European Council to derogate from this rule. And, indeed, as part of the efforts to encourage the Irish people to reconsider their negative vote on the Treaty of Lisbon expressed in the first Irish referendum of June 2008,51 the European Council of December 2008 agreed that if the Lisbon Treaty entered into force, a decision would be taken to the effect that the Commission shall continue to include one national of each Member State.52

III. Union Regulatory and Administrative Bodies As we identified in the previous section, one function of the Commission is executive; indeed, it is now clear that, at the supranational level, it is the main executive organ (which is not the same as saying that it is the executive of the Union). Responsibility to implement Union acts continues to lie primarily with the Member States’ authorities, but there is also a proliferation of bodies and agencies at Union level the existence of which is specifically motivated by the Commission’s executive tasks. In many cases they comprise representatives of the Member States, who in this regard perform not only implementing but also control functions. This is particularly apparent in relation to the so-called comitology procedure, referred to in Article 291(3) TFEU as ‘mechanisms for control by Member States of the Commission’s exercise of implementing powers’.53 These mechanisms date back to the common agricultural policy of the 1960s, when the use of committees first emerged and developed albeit without a clear set of common rules. Despite initial suspicion, the legality of the mechanism was confirmed by the ECJ and comitology is generally perceived as a tool for cooperation and coordination between the Commission and Member States’ authorities and officials; even the European Parliament, for its part, has started to view it as a vehicle for claiming legislative and regulatory parity with the Council.54 The Treaty now specifically

50

See at nn 20–22 above. See ch 1 above, at n 4. 52 Brussels European Council of 11 and 12 December 2008, Presidency Conclusions, Council document 17271/1/08 REV 1, 13 February 2009, CONCL 5, para 2. See also Piris, n 3 above, 228–29. 53 See generally, eg Lenaerts and Van Nuffel, n 3 above, 692–707; E Vos, ‘Fifty Years of European Integration, Forty-Five Years of Comitology’ in A Ott and E Vos (eds), Fifty Years of European Integration: Foundations and Perspectives (The Hague, TMC Asser Press, 2009) 31; Piris, n 3 above, 98–104. 54 Case 25/70 Köster EU:C:1970:115, paras 3–12 (where it was held that the legality of the management committee procedure could not be called into question); Case 23/75 Rey Soda and Others EU:C:1975:142, paras 9–13 (also concerned the management committee procedure); Case 5/77 Tedeschi EU:C:1977:144, paras 48–57; Case 16/88 Commission v Council EU:C:1989:397 (concerned comitology decision 87/373). See also Vos, n 53 above, 34–36. 51

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requires that the rules and general principles concerning these mechanisms be laid down in advance. In fact, this has been the case since 1987.55 The Comitology Regulation of 2011 lays down the current rules and represents a significant stream-lining of a notoriously complex process.56 There are now only two types of procedure (compared to four under the previous rules): the advisory procedure remains unchanged and, as the name suggests, simply imposes an obligation on the Commission to ‘take the utmost account’ of the opinion delivered by the Committee; the examination procedure, on the other hand, imposes limits on the power of the Commission to adopt the measure in the event of a negative opinion by requiring it to amend the draft or refer the matter to the newly created appeal committee. The key change is that, in line with the logic of creating an explicit distinction between delegated and implementing measures, the legislator has no role in the process and, crucially, is no longer able to block the decisionmaking process. The automatic ‘standstill period’ is also consigned to the past, although the ‘droit de regard’ subsists via the Comitology Register and the Commission has committed to review a draft implementing act if the legislator intimates its view that the implementing powers contained in the basic act have been exceeded. The Regulation also obviates the need for cumbersome transitional provisions by designing an almost seamless alignment of the existing acquis to the new regulatory framework: advisory procedures remain just that and any reference to the management or regulatory procedure is taken to mean the new examination procedure. Only the rather curious ‘regulatory procedure with scrutiny’ is not dealt with in this way—precisely because it relates to what are now more properly identified as delegated acts and, as such, has no place in the system of comitology.57 Comitology is therefore once again a reflection of the control exercised by the Member States when their prerogative of implementing Union acts is reserved to the Commission, but it does not render the Commission powerless. The committees are always chaired by a representative of the Commission (albeit without a right to vote) and their work is always based on a draft submitted by the Commission. A recent high-profile case on the sensitive issue of the health risks posed by certain products has highlighted a weakness in the system: in the relevant committee there was no majority, either in favour of or against authorising the product in question and the rules therefore left the Commission to decide in place of the committee of Member State representatives. And yet, as noted above, the very purpose of the committee is to assist the Commission in the exercise of the implementing powers that have been conferred upon it. Dissatisfied with the operation, or rather the breakdown in the proper operation of the comitology procedure, on 14 February 2017 the Commission proposed an amendment to the rules. The objective is to reduce the risk of ‘no opinion’ outcomes at the appeal committee level and to facilitate the decision making.58

55 The rules were completely revised in 1999 as a result of mounting pressure from the European Parliament and then amended in 2006 to mitigate the non-introduction, due to the demise of the Constitutional Treaty, of the important modifications developed by the Convention Working Group on Simplification. 56 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, [2011] OJ L55/13. 57 Lenaerts and Van Nuffel, n 3 above, 694–95, 705. 58 Proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, COM(2017) 85 final of 14 February 2017.

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The practical significance of the comitology procedure can be illustrated with some figures.59 The number of comitology committees is somewhere in the region of 250. Of the 2,000–3,000 or so implementing measures adopted per year, the vast majority were adopted by the Commission without referral back to the Council. Thus, the procedure appears to be a successful compromise between the recognition that it is the Member States which are, in the first instance, responsible for implementing Union law and the fact that in a number of important sectors, and especially in light of the new approach to regulation, the need for uniform conditions of application across the Union is satisfied. In addition to comitology committees, the Commission may also appoint and consult other, less formal committees or working groups. In addition to such ad hoc bodies, a myriad of more permanent ‘agencies’ has grown up, especially during the last 30 or so years, culminating in the publication by the Commission of an ‘Operating Framework’ in 2002 and a ‘Common Approach’ in 2012.60 Without trying to be exhaustive, the following discussion will, with reference mainly to the Union agencies (formerly called Community agencies), assess the rise, despite misgivings or reserves, or calls for increased control and transparency, sometimes expressed also by the Union institutions themselves,61 of what has become, in the words of the Commission, an important part of the EU’s institutional machinery.62 Most, if not all, of these agencies may be called ‘regulatory’ agencies. According to the Commission, they ‘are required to be actively involved in the executive function by enacting instruments which help to regulate a specific sector’;63 as will be seen below, however, this does not necessarily entail real decision-making powers. Before assessing these bodies as a ‘new’ layer in the system of multilevel governance, four preliminary points should be noted. First, there are already more than 30 decentralised agencies, some of which have a long operational history. Secondly, some agencies and other entities with a special status are regulated directly in the Treaties, namely the European Defence Agency, Eurojust and its possible successor the European Public Prosecutor’s Office, and Europol.64 The European Investment Bank may also be mentioned in

59 See the Annual Reports on the working of the Comitology committees, www.ec.europa.eu/transparency/ regcomitology/ (the Report for 2015 is registered as COM(2016) 772 final), and Vos, n 53 above, 31, 50–51. 60 Commission Communication, ‘The Operating Framework for the European Regulatory Agencies’, COM(2002) 718 final; Report from the Commission, ‘Progress report on the implementation of the Common Approach on EU decentralised agencies’, COM(2015) 179 final. See generally, eg Lenaerts and Van Nuffel, n 3 above, 558–65, 707–10; T von Danwitz, Europäisches Verwaltungsrecht (Berlin, Springer-Verlag, 2008) 317–25. 61 See, eg Rideau, n 3 above, 535. See also European Commission, European Governance: Preparatory Work for the White Paper (Luxembourg, Office for Official Publications of the European Communities, 2002) 137 et seq. 62 Commission Communication, ‘European Agencies—The Way Forward’ COM(2008) 135 final, 2. See, eg D Gerardin and N Petit (eds), Regulation Through Agencies in the EU: A New Paradigm of European Governance? (London, Routledge, 2005); D Curtin, ‘Holding (Quasi-) Autonomous EU Administrative Actors to Public Account’ (2007) 13 European Law Journal 523; J Saurer, ‘The Accountability of Supranational Administration: The Case of European Union Agencies’ (2009) 24 American University International Law Review 429; S Griller and A Orator, ‘Everything under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine’ (2010) 35 European Law Review 3; M Busuioc, European Agencies: Law and Practices of Accountability (Oxford, Oxford University Press, 2013); E Mathieu, Regulatory Delegation in the European Union: Networks, Committees and Agencies (London, Palmgrave, 2016). 63 Commission Communication, ibid, 2. 64 On the European Defence Agency see Art 45 TEU; on Eurojust (the European Union’s Judicial Cooperation Unit) and Europol (European Police Office), which were originally established under the Third Pillar, see Arts 85, 86 and 88 TFEU. According to Article 86(1) TFEU, the European Public Prosecutor’s Office should be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices in, ‘offences against

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this context.65 Thirdly, not all bodies classified as Union agencies have the word ‘agency’ in their official name, which may use notions such as ‘office’, ‘centre’, ‘authority’, ‘foundation’ and ‘institute’. Fourthly, while the agencies are bodies operating at Union level, they draw heavily upon the participation of the Member States: the majority of the members of their management board are normally representatives of the Member States (the other members represent the Commission and, as the case may be, the European Parliament and/or interest organisations or groups) and their seats are spread across the EU, in most cases far away from Brussels. Apart from the entities regulated directly in the Treaties, the Treaties do not contain any specific legal basis providing expressly for the establishment of Union agencies, nor do they provide any definition of such agencies. That said, the evolving approach to agencies and their place in the Union system of governance may be discerned in the fact that, while the first agencies were established on the basis of ex Article 308 TEC (Article 352 TFEU), more recent practice has been to base the regulation setting up the agency on the relevant substantive legal basis (internal market, transport, environment, and so on), including legal bases of the CFSP and of what used to be the Third Pillar (police and judicial cooperation in criminal matters).66 Indeed, in a case concerning the validity of a regulation setting up the European Network and Information Security Agency (ENISA), the ECJ accepted that what is now Article 114 TFEU (ex Article 95 TEC) on harmonisation measures in the internal market could, under certain conditions, be used to create an agency.67 While there is thus no primary law definition of such agencies, their existence is now expressly recognised in one provision of the TEU and in several provisions of the TFEU, which refer, in addition to the Union’s ‘institutions’, to its ‘bodies, offices and agencies’. Particularly important in this regard is Article 263(1) TFEU, which provides that review by the Court of Justice extends to the legality of ‘acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties’.68 This new provision settled a theoretical debate as to the legality of delegating decision-making power to a body other than the Commission or another institution or entity regulated directly in the Treaties but does not offer an answer to the more relevant question as to the limits of those powers—limits which are hotly contested on the grounds of democratic legitimacy and institutional balance. The starting point for an assessment of this somewhat murky level of governance is the old Meroni judgment of the ECJ, which has been recently supplemented by a judgment rendered in 2014 (the so-called ESMA case). In Meroni, the Court distinguished between the permissible delegation of ‘clearly defined executive powers’ and the unlawful transfer of ‘discretionary power implying a wide margin of discretion’. This proposition seems in principle to endure as the definition of the limits

the Union’s financial interests’. After lengthy discussions, 20 Member States have in June 2017 agreed to establish the Office under enhanced cooperation (on such cooperation in general see ch 8(III) below). After the European Parliament has given its consent, the regulation is expected to be adopted during the autumn of 2017, see, eg European Commission Press Release of 8 June 2017 (‘Commission welcomes decision of 20 Member States to establish the European Public Prosecutor’s Office’). 65

See Arts 308–09 TFEU and Lenaerts and Van Nuffel, n 3 above, 712. Griller and Orator, n 62 above, 6–7. 67 Case C-217/04 UK v Parliament and Council EU:C:2006:279. 68 See also, eg Arts 15(1) TFEU relating to transparency and Arts 123 and 124 TFEU relating to economic policy. 66

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on delegation.69 That said, the judgment in ESMA offers some supplementary considerations (inter alia, by underlining that Meroni was about delegation to an entity governed by private law while ESMA concerned a public agency set up by the Union legislator)70 and seems in reality to pave the way for a somewhat more permissive approach to the creation of decentralised agencies and their powers to take decisions.71 The Court in this judgment confirmed that an agency may be entrusted with the task of adopting binding acts of general application and that Articles 290 and 291 TFEU, which provide for the powers of the Commission (and with respect to Article 291, in exceptional situations the Council) to adopt delegated acts and implementing acts, respectively, constitute no bar to entrusting an agency with certain decision-making powers in an area which requires the deployment of specific technical and professional expertise.72 In any case, the restrictions imposed by Meroni have not, as noted a moment ago, inhibited the exponential rise of agencies as a feature of the Union institutional landscape. One explanation may lie in the extremely varied nature of the tasks entrusted to agencies. These range from a simple observation/information dissemination function through the preparation of ‘expert’ opinions or reports prior to Commission decisions to a genuine decision-making role or functional responsibility for particular operational activities.73 The first type of function appears entirely uncontroversial and inconsequential from the point of view of the constitutional order of the Union. The second category may be described as tasks of a technical, scientific or managerial nature with the aim of assisting the Commission in the preparation of its decisions (for instance, by conducting risk assessments). To the extent that they appear to reflect a recognition of the need for a technical expertise not necessarily possessed by the Commission, these agencies may be compared to some of the committees set up under the comitology procedures. The main difference will lie in the increased independence of a permanent structure as opposed to a committee of national officials. At the other end of the scale, some agencies take decisions of considerable importance. Examples include: the Office for Harmonisation in the Internal Market, recently renamed the European Union Intellectual Property Office, concerning the Union trade mark and industrial designs; the Community Plant Variety Office, the European Chemicals Agency, the European Aviation Safety Agency, the Agency for the Cooperation of Energy Regulators and three financial authorities, including ESMA referred to above, relating

69 Case 9/56 Meroni EU:C:1958:7. See also Case 98/80 Romano EU:C:1981:104, para 20; Case C-301/02 P Tralli EU:C:2005:306, paras 41–52; Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others EU:C:2005:449, para 90. 70 Case 9/56 Meroni, n 69 above, para 43. 71 Case C-270/12 UK v Parliament and Council (‘ESMA’) EU:C:2014:18. ‘ESMA’ stands for the E uropean Securities and Markets Authority, an agency established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010, [2010] OJ L331/84), in the broader context of the European System of Financial Supervision. The UK contested (unsuccessfully) the legality of a provision in Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps, [2012] OJ L86/1, which gave ESMA certain decision-making powers. See also Case C-146/13 Spain v Parliament and Council EU:C:2015:298, paras 84–87. 72 Case C-270/12 UK v Parliament and Council, n 71 above, paras 77–87. 73 Commission Communication, n 60 above, 7.

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to the supervision of banks and other financial institutions.74 The Border and Coast Guard Agency, which since October 2016 is the new name for, and enhanced version of, Frontex,75 should also be mentioned in this context, for both the involvement of national border authorities in the broader framework of shared responsibility called the European Border and Coast Guard and the enhanced powers with which the Agency itself has been equipped, as compared to its predecessor.76 These agencies in particular are often partially or entirely self-financed (with powers to charge fees). Decision-making powers do not in themselves contradict the principle set out in Meroni and confirmed in ESMA, provided they do not involve the exercise of wide discretion and political choices (which belong to the political institutions).77 However, the potential soft law effect of powers to adopt guidelines written into the constitution of some of the most recent agencies signals a new phase in the role attributed to this level of governance, the limits of which remain in flux. Moreover, the borderline between wide discretion involving political choices and powers of a more technical nature has become increasingly blurred in real life.78 The Union agencies are not the only ‘bodies, offices or agencies’ recognised by the Treaty. Without trying to be exhaustive, it should be noted that the other bodies or offices are normally less independent and are situated somewhere between autonomous Union agencies and departments and services notably of the Commission. Examples include the Office for Publications of the European Union, the European Union Personnel Selection Office, the Statistical Office (Eurostat) and the European Anti-Fraud Office (OLAF).79 Moreover, there are a number of so-called executive agencies which have been established by the Commission and are more closely linked to it. A horizontal regulation provides that executive agencies are agencies ‘to which the Commission, under its control and responsibility, may entrust certain tasks relating to the management of Community programmes’.80 These agencies, too, enjoy legal personality. Finally, there are some special bodies, such as joint

74 In Case C-270/12 UK v Parliament and Council, n 71 above, para 81, the following agencies are mentioned as examples of bodies being entrusted with powers to adopt measures that are legally binding on natural or legal persons in specific areas: the European Chemicals Agency, the European Medicines Agency, the [European Union Intellectual Property Office], the Community Plant Variety Office and the European Aviation Safety Agency On the three authorities, such as ESMA, relating to the supervision of financial institutions see ch 14(IV) below. For a list of agencies and other desentralised bodies see, eg EU Agencies Working for You (Vienna, European Union Agency for Fundamental Rights, 2015). 75 European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, established in 2004. 76 Regulation (EU) No 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard, [2016] OJ L251/1. See further ch 12(II) below. 77 Case 9/56 Meroni, n 69 above. See also Lenaerts and Van Nuffel, n 3 above, 708–709; Griller and Orator, n 62 above, 9–14. 78 See notably M Chamon, ‘EU Agencies between Meroni and Romano or the Devil and the Deep Blue Sea’ (2011) 48 Common Market Law Review 1055. 79 For details and references to relevant Union legislation or decisions see Lenaerts and Van Nuffel, n 3 above, 557–58. 80 Art 1 of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes, [2003] OJ L11/1. For a list of executive agencies see the map at https://europa.eu/european-union/about-eu/agencies_en#map (accessed on 27 January 2012). See also Griller and Orator, n 62 above, 23.

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undertakings and other structures, which can be set up under Title XIX TFEU on research and technological development (Articles 187–88 TFEU).81

IV. Institutions and Bodies of the Member States As has been underlined in previous chapters, we view the EU as a decentralised system of multilevel governance. Traditionally, Union law, while requiring that it be applied and implemented by the Member States and their judicial and administrative authorities, has more or less stopped there, not regulating the division of competences within the Member States. Thus, if Union law simply confers powers or imposes obligations upon the Member States, ‘the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State’.82 Yet it is becoming a recurrent feature that Union law does not content itself with this general obligation but rather, as argued in the preceding chapter (in section V of chapter six), not only uses national law in a way which makes it part of a common legal system but also assigns tasks to specific national institutions and bodies, thereby integrating them into an overarching and all-encompassing institutional framework.83 Let us be clear, this assignment of tasks does not do away with the basic principle that, under Union law, it is the Member State as such which is responsible for the fulfilment of the obligations imposed by Union law (which implies, inter alia, that infringement actions under Article 258 TFEU are brought by the Commission against a Member State itself, not against its organs or entities, and that it is the Member State that is liable for violations of Union law under the so-called Francovich principle, irrespective of which organ of the state is ‘guilty’ of the violation).84 However, with that caveat in mind, direct interaction with various levels of governance may nevertheless be observed. Central government, including governmental administrative authorities, is the most obvious expression of national authority. However, as should be clear from sections II and III above, this level of authority is fully integrated into the institutional structure at Union level, which comprises: (i) the European Council (heads of state or government); (ii) the Council (a representative of each Member State at ministerial level), including the Coreper and Council Working Groups (national civil servants);

81 Worthy of note in this regard is the European Research Infrastructure Consortium (ERIC), which seems to combine elements of a Union agency and a joint undertaking, Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC), [2009] OJ L206/1. 82 Case C-428/07 Horvath EU:C:2009:458, para 49. 83 See, eg A Rosas, ‘The European Union as a Federative Association’ European Law Lecture 2003 (Durham European Law Institute, University of Durham, 2004) 7–15; T Takács, Participation in EU Decision Making: Implications on the National Level (The Hague, TMC Asser Press, 2009). 84 It should be added, however, that in Case C-424/97 Haim EU:C:2000:357, the Court concluded that Union law does not preclude ‘a public law body, in addition to the Member State itself,’ from being liable to make reparation for loss and damage caused to individuals. See further ch 16(III) below.

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(iii) a Convention tasked with preparing recommendations for amendments to written primary law (representatives of heads of state or government); (iv) the committees set up under the comitology procedure (national civil servants); (v) the management boards of Union agencies (the majority of members are representatives of the Member States); (vi) some advisory committees or expert groups set up by the Commission (which, apart from being representative of interest groups or experts, may sometimes include civil servants from the Member States); (vii) the European External Action Service established by the Treaty of Lisbon (which comprises not only officials from the Commission and the General Secretariat of the Council, but also staff seconded from the diplomatic services of the Member States); (viii) the European Border and Coast Guard comprises the Union Agency (Frontex) and the national authorities of Member States which are responsible for border management.85 These national politicians, civil servants or experts retain a duty of loyalty towards their respective Member States; indeed, their role as part of the institutional balance is to represent Member State interest, and a great deal of their time is spent on formulating and coordinating national policies to be advanced at EU level. At the same time, through the habit of participation, they may become more or less assimilated into the EU system of multilevel governance and administration.86 However, under the Treaty of Lisbon, there is also a marked tendency to go beyond the Member State as such, most noticeably in relation to the recognition of national parliaments as interlocutors of the supranational entity. In the context of its Title II—‘Provisions on Democratic Principles’—the Treaty contains a general provision on the role of national parliaments, which are said to ‘contribute actively to the good functioning of the Union’ (Article 12 TEU). The list of activities and powers contained in that provision range from information sharing and interparliamentary cooperation to real powers implicating the national parliaments in the functioning of the EU constitutional order as such. These powers strengthen considerably the previous rules relating to the role of national parliaments (notably a Protocol on the role of national parliaments in the EU annexed to the Treaty of Amsterdam).87 The reasons for these new provisions are often linked to attempts to address the so-called democratic deficit, and will be examined in chapter nine below. Suffice it to note here that while national parliaments have always, whether consciously or otherwise, been a key part of the integration process (implementation at national level of an act of the institutions

85

See Regulation 2016/1624 on the European Border and Coast Guard, n 76 above. Dann, n 2 above, 250 fn 93. 87 Protocol No 9 on the Role of National Parliaments in the European Union (1997), annexed to the TEU, the TEC and the Euratom Treaty. See, also Lenaerts and van Nuffel, n 3 above, 614–23; O Tans et al (eds), National Parliaments and European Democracy: A Bottom-Up Approach to European Constitutionalism (Groningen, Europa Law Publishing, 2007); P Kiiver, ‘European Treaty Reform and the National Parliaments: Towards a New Assessment of Parliament-Friendly Treaty Provisions’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Antwerp, Intersentia, 2009) 131; A Jonsson Cornell and M Goldoni (eds), National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon: The Impact of the Early Warning Mechanism (Oxford, Hart Publishing, 2017). 86

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will almost always have included a role for the national parliament), their role in the constitutional order of the Union has certainly been made more visible and, in certain respects, potentially more powerful. From this constitutional point of view, the most important powers of the national parliaments relate to the Treaty revision procedures, set out in Article 48 TEU.88 Ratification according to the constitutional requirements of a Member State will often have involved passing the agreed text through parliament. However, representatives of the national parliaments now take part in the work of the Convention, preparing the text that will be recommended for adoption. And if, in the context of the simplified revision procedures, the European Council intends to change a requirement of unanimity in the Council to a rule of qualified majority, or to move from a special to the ordinary legislative procedure, this initiative has to be notified to national parliaments. Each national parliament then has a veto right that may be exercised within six months of the date of notification.89 Whether this (negative) veto is an increase in power is open to debate, since previously any such change would have been a Treaty revision in the traditional sense and thus subject to the (positive) approval in accordance with the constitutional requirements of the Member States. What is beyond doubt is the recognition that national parliaments are not only key stakeholders in national procedures but may be enlisted as direct participants at the various levels of governance existing in the EU. For example, as regards the evaluation mechanisms for the implementation of the Union policies concerning the area of freedom, security and justice, Article 70 TFEU only lays down a right to be informed of the content and results of an evaluation carried out by the Member States, in cooperation with the Commission, but the point is that engaging directly with the national parliaments is no longer taboo in primary law and is illustrative of what we have referred to as elements of a ‘federative’ association.90 The most striking example of this recognition of the role national parliaments may play in the Union legal order is the new mechanism through which they may now monitor the proper application of the principle of subsidiarity, including the ‘yellow card’ and ‘orange card’ early warning mechanism and the possibility to bring the matter before the ECJ.91 On the other hand, the status of regional and local bodies is much less apparent in Union law. The Committee of the Regions, created by the Treaty of Maastricht, continues to constitute the main exception in this regard. This Committee, described by the Treaty as an ‘advisory body’ and consulted on a range of legislative proposals, 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’ (Article 300(3) TFEU). The Committee has the right to bring actions of annulment before the Court of Justice for the purpose of protecting its prerogatives (Article 263(3) TFEU).

88

See ch 4(II) above. See, eg Piris, n 3 above, 132. See Rosas, n 83 above. See also Arts 85 and 88 TFEU which refer to the involvement of national parliaments in monitoring the activities of Eurojust and Europol. 91 On the principle of subsidiarity and the mechanism for control by national parliaments introduced by the Treaty of Lisbon, see further, ch 3(IV) above, and Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality annexed to the TEU and the TFEU. 89

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Thus, while regional and local authorities may, as a combination of the provisions of secondary law and decisions of central governments, be designated certain tasks, for instance, in the administration of structural development funds, the Treaty does not (yet) recognise this level of governance as one with which it can relate directly. Indeed, the only reference in primary law is a specific enjoinder to the institutions to respect the national identities of the Member States ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ (Article 4 TEU). Yet that respect requires also that the Union legal order is not blind to the actual status of specific regional authorities. So, while regional and local bodies do not possess any special locus standi to bring actions of annulment before the General Court,92 the status autonomous regions enjoy under the national constitution may affect the way in which Union law will apply to them. The clearest example of such an effect concerns state aid law, where the ECJ has departed somewhat from the traditional Union/Member State dichotomy, looking beyond this distinction to the actual power of regional bodies to determine the applicable legal and economic framework for action.93 More generally, the mere fact that national implementing measures differ between the various regions taking them does not constitute discrimination (on the condition that the margin of discretion enjoyed by Member States under a given Union legislative act as to the form implementation will take is not exceeded by any of the regional authorities in question).94 Of course, implementation and, more importantly, application of Union law at the national level will not necessarily be carried out by elected authorities, and the role of national administrative authorities will therefore constitute the last level of governance assessed here as part of the enlarged institutional structure of the Union. In this respect, it should be recalled, first of all, that, in accordance with Article 191(1) TFEU, the main responsibility for the application and implementation of EU law rests with the Member States. Secondly, it should be noted that, in principle, all administrative authorities of a Member State have an obligation to apply Union law whenever applicable.95 That said, in a case concerning the validity of a Regulation adopted in the area of the creation of unitary patent protection, the ECJ has endorsed a system whereby Member States, acting in common within the framework of a committee of an organ of a non-EU organisation (the European Patent Office), adopt joint measures implementing a provision of the Regulation.96 Such a system was held to be in accordance with Article 291(1) TFEU and

92 See, eg Case C-417/04 P Regione Siciliana v Commission EU:C:2006:282. On the action for annulment and the conditions for bringing such an action see further ch 16(II) below. 93 The Court has held that economic advantages such as lower tax rates adopted by autonomous regions may, under certain conditions, escape being qualified as (selective) state aids and thus also the obligation that they be notified the Commission under Art 108 TFEU: Case C-88/03 Portugal v Commission EU:C:2006:511; Joined Cases C-428/06 to C-434/06 Unión General de Trabajadores de la Rioja EU:C:2008:488. 94 Case C-428/07 Horvath, n 82 above. 95 See, eg Case 103/88 Costanzo EU:C:1989:256, para 31; Case C-198/01 CIF EU:C:2003:430, para 49; Case C-453/00 Kühne & Heitz EU:C:2004:17, para 20. See also M Verhoeven, The Costanzo Obligation: The Obligations of National Administrative Authorities in the Case of Incompatibility between National Law and European Law (Antwerp, Intersentia, 2011). 96 Case C-146/13 Spain v Parliament and Council EU:C:2015:298. See also Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, [2011] OJ L76/53.

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the case was to be distinguished from the abortive patent court system envisaged in a draft agreement to which the EU itself was to adhere. The ECJ found that agreement incompatible with Union law as according to it, the national courts of the Member States would have been deprived of jurisdiction in favour of an international patent court system; the jurisdiction of national courts could not be ‘outsourced’ to an international body.97 The traditional approach was based on the dichotomy between EU institutions and bodies, on the one hand, and Member States, on the other, focusing on the obligation of the Member States as such to apply and implement Union law. Probably in line with Article 4 TEU, mentioned above, and Article 291(1) TFEU, which simply refers to ‘Member States’ as the bearer of the obligation to adopt national measures to implement Union law, this continues to be the normal rule. Yet reflecting, on the other hand, the decentralised nature of the system, there is an increasing tendency in Union law to specifically provide for different forms of more or less formal vertical and horizontal ‘networks’,98 and even to lay down tasks for specific authorities at national level,99 in the same way as some Union legislative acts lay down tasks for specially designated national courts. In this regard, it has become more and more common that a legislative act requires the designation of a national regulatory or other independent authority as responsible for the application and implementation of a particular aspect of Union law. The most far-reaching solution is to provide for a so-called ‘enforcement network’; the decentralisation of competition law carried out in 2003 is a prime example of this type of development. Member States are obliged to designate the competition authority or authorities responsible for the application of what are now Articles 101 and 102 TFEU and a cooperation network is established both between the various national authorities and with the Commission to ensure coherence of the system as a whole.100 Similar, if not identical, solutions are to be found in legislation on, inter alia, telecommunications, postal services, energy markets, airport management and data protection.101 More generally, Article 197 TFEU contains provisions on ‘administrative cooperation’, stipulating not only that effective implementation of Union law by the Member States, ‘which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest’, but also providing a legal basis for the Union to support the efforts of Member States to improve their administrative capacity to implement Union law.102 This competence is additional to more specific provisions of the Treaties p roviding

97 Opinion 1/09 (Draft agreement on the creation of a uniform patent litigation system) EU:C:2011:123. See also ch 16(III) below. 98 See, eg HCH Hofmann and A Türk, ‘Policy Implementation’ in HCH Hofmann and A Türk (eds), EU Administrative Governance (Cheltenham, Edward Edgar, 2006) 90–94. 99 Rosas, n 83 above, 9–11. 100 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L1/1. On the status of national competition authorities under Union law see, eg the Opinion of Advocate General Mengozzi of 25 March 2010 and the judgment in Case C-439/08 VEBIC EU:C:2010:739; Case C-375/09 Tele2 Polska EU:C:2011:270; Case C-226/11 Expedia EU:C:2012:795; Case C-681/11 Schenker and Others EU:C:2013:404. 101 For energy markets, there is a special Union agency to foster cooperation among national energy regulators, Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators, [2009] OJ L211/1. 102 Concerning the competence ‘to support’, see also Art 2(5) TFEU and ch 3(II) above. Such competence shall not entail harmonisation of Member States’ laws or regulations.

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for administrative cooperation among the Member States and between them and the Union.103 The status and tasks of national regulatory authorities (NRAs) may, to the extent that they are covered by Union secondary law, be subject to the scrutiny of the Union Courts. There is already today fairly extensive ECJ case law relating to the status and tasks of national regulatory authorities, in particular national authorities to oversee the EU legislation concerning electronic communications networks and services. This case law often concerns the question as to whether national law contains guarantees sufficient to ensure their competence and independence and/or the effective performance of central Union tasks within the overall national administrative system.104 In this context, it should be noted that not only the procedures to be applied but also the very competence of a national administrative authority may be based directly on an EU regulation without the need for national implementing measures, provided that the regulation is sufficiently explicit and clear on this point.105 These developments contribute to a further rapprochement of national and Union administrations, and national law and Union law. In particular, the increasing regulation of the status and tasks of national regulatory authorities mirrors the tendency, explained in the preceding section, to integrate national officials into Union structures such as the administration of the Union agencies. Thus, while Union authorities are, as it were, ‘nationalised’ through Member State participation in their governance, some national authorities become, to some extent, an extension of the institutional framework of the Union. More generally, coming back to the individual civil servant in our medium-sized European city, rather surprised to find himself labelled a ‘eurocrat’: does his daily task of administrating, whether in the area of public procurement, social law, waste management or genetically modified organisms, not very often have its roots in an act of the Union institutions, and does the decision he takes not equally frequently have legal effects beyond the national borders of the Member State to which he belongs? 103 See, eg Art 287(3) TFEU, which refers to cooperation between the Court of Auditors and national audit bodies, and Art 325(3) TFEU, which provides for close and regular cooperation between the competent authorities responsible for countering fraud affecting the financial interests of the Union. 104 See, eg Case C-82/07 Comisíon del Mercado de las Telecomunicaciones EU:C:2008:143 (electronic communications networks and services); Case C-518/07 Commission v Germany EU:C:2010:125 (data protection ombudsmen); Joined Cases C-228/12, C-232/12 and C-254/12-C-258/12 Vodafone Omnitel and Others EU:C:2013:495 (electronic networks and services); Case C-518/11 UPC Nederland EU:C:2013:709 (electronic communications networks and services); Case C-288/12 Commission v Hungary EU:C:2014:237 (data protection ombudsman); Case C-475/12 UPC DTH EU:C:2014:285 (electronic communications networks and services); Case C-556/12 TDC EU:C:2014:2009 (electronic communications networks and services); Case C-282/13 T-Mobile Austria EU:C:2015:24 (electronic communications networks and services); Case C-510/13 E.ON Földgáz Trade EU:C:2015:189 (natural gas); Case C-85/14 KPN EU:C:2015:610 (electronic communications networks and services); Case C-230/14 Weltimmo EU:C:2015:639 (data protection ombudsman); Case C-395/14 Vodafone EU:C:2016:9 (electronic communications networks and services); Joined Cases C-145/15 and C-146/15 Ruijssenaars and Others EU:C:2016:187 (compensation for air transport passangers); Case C-397/14 Polkomtel EU:C:2016:256 (electronic communications networks and services); Case C-240/15 Autorità per le Garanzie nelle Communicazioni EU:C:2016:608 (electronic communications networks and services); Case C-28/15 Koninklijke KPN and Others EU:C:2016:692 (electronic communications networks and services); Case C-231/15 Prezes Urzedu Komunikacji Elektronicznej and Others EU:C:2016:769 (electronic communications networks and services); Case C-2/15 DHL Express (Austria) EU:C:2016:880 (postal services). 105 In Joined Cases C-383/06 to C-385/06 Vereiniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others EU:C:2008:165, a Dutch court asked whether a Member State or an administrative authority of that State can derive a power directly—that is to say, without a basis in national law—from a regulation. The ECJ answered in the affirmative, limiting itself to a laconic statement according to which it is clear from the very terms of Art 249 TEC (later to become Art 288 TFEU) that regulations are directly applicable in the Member States (para 35, see also, paras 28, 31–41).

8 A Suprematist Composition? Differentiation and Flexibility I. Introduction Orthodoxy has it that the Member States progress in unison towards common goals. Yet reminiscent of the suprematist composition by Malevich depicted on the front cover of this book, the plurality of overlapping zones of integration is one of the most s triking features of the Union. Indeed, in spite of the basic principles of unity, solidarity and e quality, differentiation has played a part in the integration process since its inception, leading at times to conceptions of a ‘multispeed Europe’. But what does that mean? Differentiation has many faces,1 and the boundaries or territorial reach of Union law varies for many reasons in many fields; perhaps not all Member States are willing or able to accept all parts of primary or secondary law, or perhaps there are autonomous or other regions within a Member State which have not wanted, or not been allowed, to be exposed to the full force of Union law. An external aspect to these circles of integration may even be identified as a result of the extension of Union law beyond the Member States as such. Space does not allow us to provide an exhaustive account of all arrangements which may be described as ‘flexible’ and all forms which can be associated with what we will refer to generically as the concept of differentiation.2 Our analysis will focus on two aspects: differentiation regimes for certain individual Member States which follow directly from the Treaties (primary law) and thus have a more permanent character, on the one hand, and the potential differentiation which may follow from so-called enhanced cooperation which a group of Member States may establish for a given legislative or other project on the basis of enabling clauses in the TEU and the TFEU on the other.3 These differentiated arrangements inject further complexity into an already difficult to define system and in that sense they do nothing to detract from the overall confusion and

1

B de Witte, D Hanf and E Vos (eds), The Many Faces of Differentiation in EU Law (Antwerp, Intersentia, 2001). Stubb, ‘A Categorization of Differentiated Integration’ (1996) 34 Journal of Common Market Studies 283, provides a long list of terms used to denote differentiated integration. See also B Martenczuk, ‘Die differenzierte Integration nach dem Vertrag von Amsterdam’ (1998) Zeitschrift für europarechtliche Studien 447, 449–45. 3 This distinction between two forms of differentiation is also made by eg A Ott, ‘EU Constitutional B oundaries to Differentiation: How to Reconcile Differentiation with Integration?’ in A Ott and E Vos (eds), Fifty Years of European Integration: Foundations and Perspectives (The Hague, TMC Asser Press, 2009) 113, 121, 131, who speaks of primary and secondary differentiation. 2 A

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miscomprehension that seem to reign when it comes to the institutional aspects of the EU. But this scope for differentiation is not only far greater than might be imagined, it is one of the defining features of the EU, setting it apart from established nation states. It is crucial to a description of what the Union legal order is. Imagine a US where, say, California, Florida and Texas applied border controls vis-à-vis the rest of the country or had their own currencies (compare the situation of the United Kingdom today, before the entry into force of Brexit, which is outside both the Schengen area and the common currency), whereas the Mexican State of Chihuahua and the Canadian State of Ontario were part of an American equivalent to the Schengen regime (compare the situation of Iceland, Liechtenstein, Norway and Switzerland, which, despite not being EU members, are part of the Schengen area)! The fragmented nature of the EU4 is nowhere clearer than in relation to the derogations (opt-outs) which have been granted to the United Kingdom over the years. Once the Brexit process is complete, the Union will (perhaps ironically) appear as somewhat less fragmented, although some important opt-outs apply to other Member States and will continue to exist. That this state of affairs will continue in the foreseeable future is demonstrated by a Danish referendum held on 3 December 2015, in which the majority voted in favour of the continuation of the Danish absolute opt-out from the area of freedom, security and justice and thus against a system of opt-ins on a case by case basis.5 The Irish opt-out from this area and from Schengen, on the other hand, is related to the situation of the United Kingdom and as this edition goes to print, it is too early to say how Ireland’s position will be defined as from the entry into force of Brexit, given its status as a full EU member but with a common (and, pre-Brexit, open) land border with the United Kingdom. In its White Paper on the Future of Europe of 1 March 2017, the European Commission presents five different scenarios for Europe in the year 2025. Scenario 3 is entitled ‘Those who want more do more’ and implies that the EU would allow willing Member States to do more together in specific areas such as defence, internal security, taxation or social matters.6 Whilst the White Paper does not specify under which institutional and legal conditions such ‘cooperation of the willing’ would take place, the inclusion of this option as one of five strategies for the future suggests that differentiation not only will stay with us for the foreseeable future but may become an even more important part of the Union constitutional discourse in the years to come. On the other hand, the perspective of a ‘multispeed Europe’ is far from being universally welcomed. Only time will tell whether these developments will lead to tangible institutional outcomes going beyond the existing opt-outs and possibilities of enhanced cooperation to be discussed below.

4 See also S Peers, The Unravelling of EU Law (Oxford, Hart Publishing, 2013); T Giegerich et al (eds), Flexibility in the EU and Beyond: How Much Differentiation Can European Integration Bear? (Baden-Baden, Nomos/Hart Publishing, 2017). 5 T Ibolya, ‘A Vote of No Confidence: Explaining the Danish EU Referendum’, 17 December 2015 https://www. opendemocracy.net/can-europe-make-it/tam-s-ibolaya, accessed on 2 March 2017. 6 White Paper on the Future of Europe: Reflections and Scenarios for the EU27 by 2025, COM(2017)2025 of 1 March 2017 20–22. See also the Position Papers and Summary of Proceedings published by the Joint Conference of the College of Europe and the European University Institute on ‘Differentiation in the European Union: A New Pragmatism or the End of “Ever Closer Union?”’, 17 November 2016.

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II. Differentiation in Primary Law As noted above in chapter four, the rule is that the Treaties apply in their entirety to every member and a state cannot unilaterally opt out of this or that policy. However, the reality is that the Treaties are littered with negotiated arrangements for one or other Member State. It will not be possible to list all the derogations that Member States have obtained, especially on specific questions of limited importance. However, it is important to realise that such derogations have existed since the birth of the Communities: Protocols providing for special rules concerning specific Member States were attached to the original Treaty of Rome.7 Differentiated regimes may be viewed from various socio-political perspectives, depending on, for instance, whether they tend to favour more or less integration, and the debate has spawned a whole new vocabulary as attempts are made to describe the phenomenon.8 From a legal point of view, however, it is not easy to make clear-cut distinctions in this respect. The common currency can serve as an example: there are at least three different types of arrangement applying to the Member States which do not use the euro, but the position of a politically unwilling state is not necessarily different from that of an economically unable one, and even the treatment of the states which have agreed in principle to the objective of monetary union to some extent reflect different degrees of probability with respect to attainment of that goal, a sliding scale which moreover may be proven wrong by future economic and political realities. Whatever the semantics, the reality is more often than not a pragmatic awareness that homogeneity cannot always be assumed. Traditionally, differentiation took the form of simple delays or progressive integration during transitional periods. Indeed, the drafters of the original Treaty were well aware of the practical reality behind the worthy rhetoric and in creating the common market provided expressly for its progressive establishment during a transitional period of no less than 12 years. This principle of progressiveness has withstood the test of time and is to be found in each successive Act of Accession as the means of gradually integrating the new Member State into the common project. That said, recent rounds of enlargement have been accompanied by transition periods of 20 years or more such that the line between transition and derogation seems blurred. More importantly, they have added a further layer of complexity by providing not only for gradual progress by the acceding member, but also for gradual acceptance by existing members, most notably in relation to free movement of workers.9

7

D Hanf, ‘Flexibility Clauses in the Founding Treaties: From Rome to Nice’ in De Witte et al, n 1 above, 7. n 2 above, 284–86, distinguishes between ‘multi-speed’, ‘variable geometry’ and ‘à la carte’ differentiation. The first category implies a ‘maximalist’ integration agenda, the second is more neutral and the third category, exemplified by opt-outs for individual Member States, is of a ‘minimalist’ character. 9 See, eg K Inglis, ‘The Accession Treaty and Its Transitional Arrangements: A Twilight Zone for the New Members of the Union’ in C Hillion (ed), EU Enlargement: A Legal Approach (Oxford, Hart Publishing, 2004) 77; K Inglis, ‘Treading the Tightrope between Flexibility and Legal Certainty: The Temporary Derogations from the Acquis on the Freedom of Movement of Workers and Safeguard Measures under the Accession Treaty’ in D Hanf and R Munoz (eds), La libre circulation des personnes: État des lieux et perspectives (Brussels, Peter Lang Publishing, 2007) 99; Ott, n 3 above, 113, 117–18, 121–24. Concerning the transitional arrangements of an Accession Treaty, see also Cases C-413/04 and C-414/04 Parliament v Council EU:C:2006:741; Case C-273/04 Poland v Commission EU:C:2007:622; Joined Cases C-307/09, C-308/09 and C-309/09 Vicoplus EU:C:2011:64. 8 Stubb,

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However, it was the Treaty of Maastricht which not only introduced to a much greater extent the concept of ‘variable geometry’ but also saw a shift in how such differentiation was perceived: in the words of Emile Noël, ‘il s’agissait toutefois, jusqu’ici, de derogations “honteuses” que chacun s’employait à dissimuler et à minimiser’.10 At Maastricht, on the other hand, flexibility was crucial to the final compromise, concerned major policy fields and involved permanent opt-outs which the relevant states were proud to have obtained. It is this tension between continued integrationist ambitions and the realisation that it is no longer possible to compel a Member State to participate in all future areas of development that pulls the constitutional fabric of the Union in opposing directions. Attempts to accommodate individual positions appear therefore to be based at least in part on the assumption that it is better to assimilate differences and weave them into the Union legal order rather than see the cooperation go ahead anyway, but as a matter of pure international law. Analysis of the Schengen regime (below) is particularly illuminating in this respect and should be contrasted with the cooperation established outside the framework of the Treaties by seven Member States in 2005 covering increased cross-border c ooperation as regards combating terrorism, cross-border crime and illegal migration (the Prüm C onvention).11 What is more, Union law may not be an option: the intergovernmental agreement relating to economic stability and governance in the Economic and Monetary Union of 2012 (sometimes referred to as the ‘fiscal compact’) could in theory have taken place within the framework of the Union legal order but for the deployment by the United Kingdom of its veto in relation to the necessary Treaty amendment.12 Scope for differentiation in existing law is therefore far from insignificant and is probably greater than most observers expect. That said, we find it useful, before examining some specific examples of differentiation in greater detail, to underline the even greater basis of uniformity: the quite remarkable achievement of the past 60 years cannot be overstated. With the possible exception of specific provisions in accession treaties, we would h ighlight Union citizenship,13 the economic freedoms of the internal market,14 the common commercial policy, competition law, transport law, agricultural law and environmental law as obvious examples of areas of Union law which apply across the board. The main

10 ‘[W]e were concerned, until now, with “shameful” derogations which everyone strove to dissimulate and to minimise’, lecture by Emile Noël at the Academy of European Law in Florence (1994). 11 Council document 10900/05 CRIMORG 65, ENFOPOL 85, MIGR 30, 7 July 2005. The original Contracting Parties are Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain. On the phenomenon of international agreements concluded between the Member States see B de Witte, ‘Chameleonic Member States: Differentiation by Means of Partial and Parallel International Agreements’ in De Witte et al, n 1 above, 231; A Rosas, ‘Relations entre les États membres de l’Union européenne: Le Droit international public y a-t-il encore sa place?’ in Mélanges en l’honneur de Jean-Pierre Puissochet: L’État souverain dans le monde d’aujourd’hui (Paris, Éditions A Pedone, 2008) 255; A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 34 Fordham International Law Journal 1304 at 1317–20. 12 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, signed on 2 March 2012 by 25 Member States (excluding not only the UK but also the Czech Republic). See ch 1 above at n 11, the present ch n 36 and ch 14 below. 13 Concerning Danish concerns about the concept of citizenship, see the Decision of the Heads of State and Government, meeting within the European Council, concerning certain problems raised by Denmark on the Treaty on European Union, Edinburgh 11–12 December 1992, Conclusions of the Presidency, Part B, Annex 1, [1992] OJ C348/1 and ch 10 below. 14 But with the caveat that the free movement of persons is affected by the existence or abolishment of border controls pursuant to the Schengen rules, see below.

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areas which, on the other hand, are not applicable, at least in full, to all Member States are the Schengen regime, the area of freedom, security and justice, the common currency (the euro) as well as certain aspects of economic policy and the common defence policy.15 The following table illustrates the more or less permanent opt-outs (X) which currently exist in relation to these four areas (the UK opt-outs will, of course, disappear with the entry into force of Brexit and the impact of the withdrawal of the UK from the EU on the Irish position remains unclear): Schengen Denmark

AreaFSJ

Euro

Defence

X

X

X

Ireland

X

X

UK

X

X

X

The position of these countries is partly explained by similar concerns about a deepening of European integration.16 However, the solution in each case is different, displaying an apparently disjointed approach to differentiation. It must be underlined that neither this table nor the comments that follow do full credit to the legal and institutional particularities of each regime. However, we will aim to provide an overview of the key characteristics of the opt-outs in each of these fields with a view to analysing the extent to which they are susceptible to distort the unity of the Union legal order. The Schengen area on the abolishment of internal border controls and the Area of freedom, security and justice need to be considered consecutively, in view of the substantive overlap between the two and parallels in the content of the Danish, Irish and UK opt-outs.17 The casual observer would be forgiven for reeling at the complexity of the arrangements as they have stood since the entry into force of the Treaty of Lisbon, but a short historical overview will help put the evolution of these fields of activity in perspective. The Schengen regime was born as intergovernmental cooperation outside the framework of the Community. When justice and home affairs was included in the Treaty of Maastricht as

15 On Protocol No 30 on the Application of the Charter of Fundamental Rights to Poland and to the UK and its possible extension to the Czech Republic as well as a proposal for a new protocol incorporating Irish reserves with respect, inter alia, to the Charter, see ch 11(III) below. 16 In both Denmark and Ireland, there have been negative referendums on issues related to the EU: in Denmark in June 1992 on the Treaty of Maastricht, in September 2000 on the third stage of economic and monetary union and in December 2015 on abolishing the absolute opt-out from the Area of Freedom, Security and Justice, see, eg D Howarth, ‘The Compromise on Denmark and the Treaty on European Union: A Legal and Political Analysis’ (1994) 31 Common Market Law Review 765 and J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006) 24–25); in Ireland in June 2001 on the Treaty of Nice and in June 2008 on the Treaty of Lisbon (see, eg Piris, ibid. 26; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 51–60; G Hogan, ‘Ratification of the European Constitution: Implications for Ireland’ in A Albi and J Ziller (eds), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International, 2007) 137, 137–39 and ch 1, n 3 above. 17 See generally G Papagianni, ‘Flexibility in Justice and Home Affairs: An Old Phenomenon Taking New Forms’ in De Witte et al, n 1 above, 101; D Kostakopoulou, ‘The Area of Freedom, Security and Justice and the European Union’s Constitutional Dialogue’ in C Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford, Oxford University Press, 2007) 154, 168–70; J Monar, ‘The Area of Freedom, Security and Justice’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 551, 569–73; Piris (2010), n 16 above, 192–200.

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the Third Pillar of the European Union, it was accompanied by a formal recognition of the existence of multilateral action outside the scope of the Treaties, provided that such action ‘did not conflict with or impede’ cooperation within the framework of the EU, demonstrating a pragmatic awareness that where there is a political will, a way will be found.18 Indeed, this reality perhaps helps to explain the phenomenon of providing increasing scope for formalised differentiation within the framework of the Treaties. Not surprisingly, the next step was to bring the Schengen regime itself into that framework and provide for a general enabling clause for future cooperation, ostensibly to p re-empt the need to resort to extra-institutional solutions. The situation as it resulted from the Treaty of Amsterdam may be summarised thus: the Schengen Agreement, which bound all Member States bar the UK and Ireland, was, along with certain aspects of the Third Pillar, ‘communitarised’.19 The Treaty of Lisbon did not significantly alter this situation. The UK, and Ireland as long as the common travel area between these two countries is maintained, are not part of the Schengen regime, but may request to take part in some or all of the provisions of the Schengen acquis or other aspects of the new field of freedom, security and justice, it being understood that an authorisation for them to do so requires a unanimous decision of the Council.20 On the other hand, once a Schengen provision has been adopted by those states, no such authorisation is required for participation in proposals and initiatives to ‘build upon’ or ‘develop’ that part of the Schengen acquis.21 A short aside is appropriate at this point to demonstrate the practical effect of such complex formulations. In two cases decided in 2007, the ECJ was called upon to rule on this opt-in mechanism in relation to legislative proposals concerning the establishment of the Border Control Agency (Frontex) and a regulation on standards for security features and biometrics in passport and travel documents.22 According to the Court, those measures built upon the central part of the Schengen acquis relating to the crossing of borders. As the UK had not accepted that part of the acquis, it did not have a right to take part in the concrete measures building upon it. Similarly unsuccessful was a UK challenge to the legality of a decision to give access for consultation of the Visa Information System (VIS) to certain police authorities of Member States taking part in the common visa policy but excluding

18

Art K.7 of the Treaty on European Union concluded at Maastricht. Protocol No 19 on the Schengen Acquis annexed to the TEU and the TFEU provides (Arts 1 and 2) that this acquis shall apply to 25 Member States, ie all the then Member States with the exception of Ireland and the UK. At the time of writing, border controls have not yet been abolished with respect to Bulgaria, Croatia, Cyprus and Romania—see the website of the European Commission, https://europa.eu/european-union/topics/justice-homeaffairs_en (accessed on 3 March 2017), and ch 12(II) below. See also Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Border Code), [2016] OJ L77/1. 20 See what is now Art 4 of Protocol No 19. 21 See what is now Art 5 of Protocol No 19. 22 Cases C-77/05 and C-137/05 UK v Council EU:C:2007:803, interpreting Protocol No 2 integrating the Schengen acquis into the framework of the European Union (1997). See also Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, [2004] OJ L349/1, (later amended several times, most recently by Regulation (EU) No 2016/1624 of 14 September 2016 on the European Border and Coast Guard, [2016] OJ L251/1), and Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security measures and biometrics in passports and travel documents issued by Member States, [2004] OJ L385/1, amended by Regulation (EC) No 444/2009 of 28 May 2009, [2009] OJ L142/1. 19

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the UK (who does not take part in this policy).23 In contrast, the validity of a provision in a Regulation establishing the European Border Surveillance System (Eurosur) enabling a limited exchange of information between Ireland and the UK and neighbouring Member States was upheld by the ECJ, despite the fact that the Eurosur Regulation is a development of the Schengen acquis in the area of the crossing of the external borders, that is, an area in which Ireland and the UK are not authorised to participate.24 Denmark, although bound by the original Schengen acquis, including the abolition of border controls, opted out of building on these measures under the auspices of the EU and, if it notifies participation in an initiative to develop the acquis, it does so on the basis of international law.25 On the other hand, it has no power to ‘pick and choose’ with respect to the other aspects of freedom, security and justice, in relation to which any opt-in has to be ‘all or nothing’.26 From a constitutional point of view, this solution is quite remarkable: a Member State may agree to the substance of a particular course of action but refuse to recognise the obligations thereby created as stemming from membership of the Union. On a practical level, the complications are perhaps less dramatic since international agreements on the substance of the acquis will in any event be required in order to ensure the continued association of various non-members to the Schengen regime.27 However, the implications for the unity of Union law and its uniform application should not be underestimated: a common feature of the Union landscape, often used in order to extend a Union regime to neighbouring non-member countries, it is nevertheless striking that the device has now been deployed to regulate relations between Member States. Third Pillar matters were initially unproblematic in terms of differentiation to the extent that any action required unanimity.28 However, the Pillar structure having been abolished, all measures relating to freedom, security and justice now fall into the opt-outs and opt-ins described above (with the exception of Denmark’s participation in the regime abolishing border controls). The final layer of complexity added by the Treaty of Lisbon is to insert an option into the Danish opt-out allowing for its conversion to the ‘pick and choose’ opt-in scenario applying to the UK and Ireland, although exercising this option will entail abandoning the international law nature of obligations building on the Schengen acquis, which would revert to binding Denmark in the same way as all other Member States, that is,

23 Case C-482/08 UK v Council EU:C:2010:631. Council Decision 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS), [2004] OJ L213/5. 24 Case C-44/14 Spain v Parliament and Council EU:C:2015:554. Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), [2013] OJ L295/11. 25 Art 4 of Protocol No 22 on the Position of Denmark. 26 See Art 3 of Protocol No 19 and Art 4 of Protocol No 22. 27 Iceland, Liechtenstein, Norway and Switzerland all participate in the Schengen regime. Council Decision 1999/439/EC of 17 May 1999 on the conclusion of the Agreement with the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis, [1999] OJ L176/35; on the corresponding agreements concluded with Switzerland and L iechtenstein see Council Decision 2008/146/EC of 28 January 2008, [2008] OJ L53/1 (Switzerland) and Council Decisions 2008/261/EC and 2008/262/EC of 28 February 2008, [2008] OJ L83/3 and L83/5 (Liechtenstein). With respect to Liechtenstein, the Schengen regime entered into force on 19 December 2011, Council Decision 2011/842/EU of 13 December 2011 on the full application of the provisions of the Schengen acquis in the Principality of Liechtenstein, [2011] OJ L334/27. See further ch 12(II) below. 28 Although note that the former Art 34(2)(d) TEU provided that Conventions concluded under the Third Pillar could enter into force once ratified by half the Member States.

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according to Union law. As already noted in section I above, in a referendum organised on 15 December 2015, the proposal of the Danish government to give up the absolute o pt-out was rejected. Taking into account also the external aspect of differentiation in this field (the extension of the Schengen border control regime to Iceland, Liechtenstein, Norway and Switzerland), the diversity could hardly be greater. The abolishment of border controls applies to 22 Member States and four non-members. One of the Member States (Denmark) enjoys, at least for the time being, a more or less total exclusion from the other aspects of the area of freedom, security and justice, and the two Member States not participating in the border control regime (Ireland and, until the entry into force of Brexit, the UK) enjoy opt-in rights relating to both it and the other parts of the area. As far as the single currency (euro) and economic policy is concerned, all Member States have, in principle, signed up to Economic and Monetary Policy (Title VIII, Part III TFEU). That said, it was clear from the outset that not all Member States would progress to the third stage of economic and monetary union (the single currency) at the same time and that there would be Member States with a derogation. Indeed, two Member States, Denmark and the UK, negotiated an up-front exemption from this last stage of Economic and Monetary Union (EMU).29 The specific exemption regimes applying to these two Member States are based mainly on Protocols 15 and 16 annexed to the Treaties.30 Protocol No 16 stipulates that all provisions referring to a derogation shall apply to Denmark, therefore placing it in exactly the same position as if it was economically not ready to adopt the euro (the reality, on the other hand, being purely political) but, crucially, the procedure for abrogating the derogation (more on which below) can only be initiated at the request of Denmark, so no monitoring of convergence will take place. Protocol 15 lays down in a rather detailed manner the provisions which will or will not apply to the UK. The effect of this Protocol is greater than the other derogations: to mention one example, in contrast to Article 126(1) TFEU, which provides that Member States ‘shall avoid’ excessive government deficits, Article 5 of the Protocol simply obliges the government of the UK to endeavour to avoid an excessive deficit (emphasis added). In addition, the Bank of England is not required to consult the ECB on relevant legislative proposals (Article 127(4) TFEU) and is not caught by the prohibition on taking instructions, for example, from the government (Article 130 TFEU). However, Denmark and the UK are not alone in retaining their national currency and Title VIII is therefore just as concerned with regulating the situation of Member States ‘in respect of which the Council has not decided that they fulfil the necessary conditions for the adoption of the euro’. Thus, in addition to the negotiated status of Denmark and the UK, the (currently seven) other Member States which have not adopted the single currency, because they have not yet met the converge criteria, that is, a series of pre-defined legal and economic criteria relating, inter alia, to inflation, government deficit and government debt,

29 See, eg R Smits, The European Central Bank: Institutional Aspects (The Hague, Kluwer Law International, 1997) 137–39. On the UK see also LE Panourgias and M Andenaes, ‘The Euro and UK Law: Private Law and Institutional Aspects’ in J-V Louis and AP Komninos (eds), The Euro: Law, Politics, Economics (London, British Institute of International and Comparative Law, 2003) 400. 30 Protocol No 15 on Certain Provisions relating to the United Kingdom and Northern Ireland annexed to the TEU and the TFEU; Protocol No 16 on Certain Provisions relating to Denmark annexed to the TEU and the TFEU.

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are referred to as ‘Member States with a derogation’, and Articles 139–144 TFEU contain detailed transitional rules governing the manner in which economic and monetary policy shall be conducted pending the abrogation of the derogations.31 Differentiation therefore results not only from the political imperative in the UK and Denmark, reflected in Protocols 15 and 16 respectively, but equally from the economic appreciation that not all Member States would satisfy the rather strict convergence criteria within the timescale envisaged, and labelling all non-eurozone countries in the same manner belies the constitutional complexity of the matter. In theory, then, all Member States participate in the economic and monetary policy of the Union and work towards the ultimate goal of economic and monetary union and a single currency. To this end, the Commission and the European Central Bank (ECB) shall report on the progress of each Member State in relation to that objective, with a view to initiating the procedure for abrogating the derogation (Article 140 TFEU). In the meantime, Member States which have not yet adopted the euro do not, for instance, take part in the vote on certain matters in the Council or the informal meetings between the Ministers of the Euro Member States (the Euro Group),32 and their central banks are not members of the Eurosystem, comprising the central banks of the Member States whose currency is the euro.33 While, in the context of the so-called Stability and Growth Pact (SGP), Article 121 TFEU on surveillance of the economic policies of Member States and Article 126 TFEU relating to what is called the excessive deficit procedure apply, in principle, to all Member States, the coercive procedures laid down in Article 126(9) and (11) in relation to remedying an excessive government deficit do not apply to Member States with an exemption or a derogation.34 Article 136 TFEU provides a legal basis for enacting legislation limited to Member States whose currency is the euro. As was noted above, a UK veto thwarting amendment to Article 136 or other parts of primary law35 led the then 17 euro area members to adopt an intergovernmental agreement on stability and economic governance.36 Further differentiation inside the non-euro area group has arisen from the fact that most, if not all, of the non-euro Member States have adhered to this agreement (indeed, 25 out of 28 Member States are contracting parties, the others, apart from the UK, being Croatia and the Czech Republic). One final comment seems appropriate in relation to Sweden: it does not enjoy an openended exemption like the ones granted to Denmark and the UK and is thus a Member State with a derogation.37 However, as demonstrated by the negative outcome of a euro

31 Bulgaria, Croatia, the Czech Republic, Hungary, Poland, Romania and Sweden have not yet adopted the euro as their currency. See Protocol No 13 on the Convergence Criteria annexed to the TEU and the TFEU. See also Protocol No 12 on the Excessive Deficit Procedure and eg M Lelart, ‘The Euro Zone and the Single Currency in an Enlarging European Union’ in N Neuwahl (ed), European Union Enlargement: Law and Socio-Economic Changes (Montreal, Éditions Thémis, 2004) 133, 135. 32 Protocol No 14 on the Euro Group annexed to the TEU and the TFEU. 33 See, eg Arts 136–39 and 282–83 TFEU and J-V Louis, ‘Differentiation and the EMU’ in De Witte et al, n 1 above, 43. 34 See Art 139(2) TFEU. 35 Notably Protocol No 12 on the Excessive Deficit Procedure annexed to the TEU and the TFEU. 36 See n 12 above and ch 14 below. 37 S Mohamed, ‘Swedish Accession to the Euroland’ (2002) Europarättslig Tidskrift 191; E Clapham and A Madestam, ‘Sweden’ in Louis and Komninos, n 29 above, 355.

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referendum organised in 2003, the political reality is that Sweden does not, for the time being, wish to adopt the euro. The question therefore arises as to the commitment of that Member State to the goal of EMU and the objective nature of the convergence criteria, apparently moulded to fit political expediency. How should the institutions approach a Member State which fulfils the economic criteria but refrains, for example, from subjecting its national currency to the European Exchange Rate Mechanism (participation for at least two years constitutes one of the convergence criteria)? While the Swedish position amounts, de facto, to an opt-out, the single currency regime seems to have exerted a magnetic effect on the other Member States with a derogation. Seven of them have already joined the euro (Estonia did so in 2011, Latvia in 2014 and Lithuania in 2015) and the other 2004 members (Czech Republic, Hungary and Poland) are scheduled to join the euro in the not too distant future. The debt and euro crisis of 2011 delayed this process and the final timetable will depend on economic (and political) developments which are difficult to foresee.38 The most recent accessions (Bulgaria, Romania and Croatia) are further from the goal of adopting the euro as their currency. Denmark also has a permanent opt-out from defence policy. Dating back to arrangements made following the negative outcome of the referendum on the Treaty of Maastricht, this special status was formalised as a Protocol attached to the Treaty of Amsterdam39 and is today contained in Part II to Protocol No 22 on the Position of Denmark annexed to the TEU and the TFEU. The opt-out is far-reaching: when the Council adopts measures which have defence implications, Denmark does not participate in their development, adoption or implementation. As a result, Denmark is not obliged to contribute to the financing of operational expenditure arising from such measures, or to make military capabilities available to the Union. Consequently, the unanimity required to establish a common defence does not include the vote of the representative of Denmark in the European Council. Contrast the position of Ireland. Again, in the wake of a negative referendum result (the first Irish referendum on the Treaty of Lisbon, June 2008), the heads of state or government, meeting within the European Council in June 2009, adopted a Decision aimed at assuaging the fears of the Irish people and concerning security and defence. Yet most of the statements are clarifications on the content of the Treaty, in part emphasising the voluntary character of some of the provisions on defence matters, which apply, in principle, to all Member States.40 The most Ireland-specific assurance states that the Treaty of Lisbon ‘does not affect or prejudice Ireland’s traditional policy of military neutrality’. But the Common Security and Defence Policy (CSDP) is, in any event, conducted without prejudice to ‘the specific character of the security and defence policy of certain Member States’, which may be read as an implicit reference not only to Ireland but to non-NATO members more generally

38 On the conditions and modalities of euro enlargement see T Schäfer, ‘The Legal Framework for the nlargement of the Euro Area’, European Economy: European Commission Occasional Papers No 23 (Brussels, E European Communities, 2006). 39 Art 6 of Protocol No 5 on the Position of Denmark (1997) annexed to the TEU and the TEC. See F Naert, International Law Aspects of the EUs Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Antwerp, Intersentia, 2010), 40–41, 60. 40 The Protocol, [2013] OJ L60/131, was adopted by a conference of representatives of the governments of the Member States, without convening a Convention, see the Decision of the European Council of 11 May 2012, [2013] OJ L60/129, adopted on the basis of Article 40(3) TEU. See also ch 15(IV) below.

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(ie also Austria, Finland and Sweden).41 Thus the non-NATO members remain fully associated with discussions and retain their veto over decisions which must be made unanimously (ie most decisions in the field of CSDP), including, in particular, the decision to establish a common defence. The derogations described above apply to certain Member States as such. However, as noted in section IV of chapter seven, the Union is not blind to the differentiation which may exist within a Member State. There are therefore a number of exclusions or derogations applicable to certain autonomous or other regions or territories of a Member State. Article 355 TFEU contains a list of regions and territories to which the Treaties apply, albeit combined with the possibility that special rules be laid down by the Council (Article 349 TFEU),42 as well as a list of regions and territories to which the Treaties do not, in principle, apply, again with the option of extending some Union rules to them.43 A special regime applies to a group of ‘overseas countries and territories’ listed in Annex II, in accordance with Articles 198–204 TFEU. These are ‘non-European’ countries and territories which are nevertheless ‘associated’ with the Union under rules which to a large extent correspond to the Treaty rules.44 Finally, we are of the opinion that the external dimension of differentiation, the extension of Union rules to neighbouring countries, is a feature unique to the EU and illustrative of its hybrid nature.45 For all the ‘state-like’ elements of the Union legal order identified in section IV of chapter two, differentiation internally may be viewed as a manifestation of the Member States as such. On the other hand, the extension of the logic of circles of integration covering substantive policy areas reflects what may be described as a sort of ‘rulesbased imperialism’, by which the Union exports its rules, its standards and even its common institutions in the name of avoiding the emergence of new dividing lines. The Agreement on a European Economic Area (EEA) concluded with Iceland, Liechtenstein and Norway, and a package of agreements concluded with Switzerland, are of particular significance.46 The EEA Agreement is remarkable in that it sets up an institutional regime which mirrors the EU system, with a Surveillance Authority corresponding to the European Commission and the EFTA Court resembling the ECJ.47 The result is essentially an opt-in on the part of three non-member countries to the internal market of the EU, with all the rights and obligations that that implies. Although some Member

41 See Naert, n 39 above, 223–24. It should be noted in this context that, according to Art 42(7) TEU, the bligation of aid and assistance in the case of armed aggression against a Member State is also without prejudice o to the ‘specific character of the security and defence policy of certain Member States’. See further ch 15(IV) below. 42 Concerning Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands, special rules may be laid down by the Council, whereas with respect to the Channel Islands and the Isle of Man they are based on the Accession Treaties of 1972 and with respect to the Åland Islands they are based on a Protocol to the 1995 Act of Accession. 43 Art 355 TFEU mentions the Faeroe Islands and the UK base area in Cyprus. 44 Annex II lists 21 overseas countries and territories, including Greenland, French Polynesia, the Netherlands Antilles, the Falkland Islands and Bermuda. 45 For a full analysis, see the articles by S Blockmans, M Cremona and A Łazowski in S Blockmans and A Łazowski (eds), The European Union and Its Neighbours: A Legal Appraisal of the EU’s Policies of Stabilisation, Partnership and Integration (The Hague, TMC Asser Press, 2006) 203, 221 and 247, respectively. 46 See, eg chapters by A Łazowski in Blockmans and Łazowski, n 45 above: ‘EEA Countries (Iceland, L iechtenstein and Norway)’ at 95 and ‘Switzerland’ at 147. 47 See, eg The EFTA Court (ed), The EEA and the EFTA Court: Decentred Integration (Oxford, Hart Publishing, 2014).

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States (Austria, Finland and Sweden) were formerly linked to the EU through the EEA Agreement and Iceland had an application for membership pending (which was withdrawn in 2015), the EEA Agreement is not aimed at encouraging accession. On the other hand, a number of agreements with candidate countries or prospective candidates are designed specifically to prepare a country for future membership. The pre-accession agreements concluded with Turkey and the Balkan countries stand out in this respect as far-reaching association regimes, the effect of which is often to extend identical or substantially similar guarantees as those from which Union citizens benefit. Especially important in this respect is Decision 1/80 of the Association Council concerning the free movement of workers, based on the Association Agreement concluded between the EEC and Turkey in 1963.48 Other, less comprehensive legal regimes exist and are often explained by the geographical proximity of the countries concerned and/or the strong historical and economic ties which exist between them and some or all of the Member States. For example, the EU has a specific Neighbourhood Policy which includes a number of agreements with Mediterranean countries49 and has a long tradition of cooperation with African, Caribbean and Pacific countries with a view to reducing (and eventually eradicating) poverty in developing countries. As noted above, these legal frameworks reflect the strategic objective of establishing ‘spheres of influence’ through quasi-integrationist regimes. While it is beyond the confines of this book to analyse their specificities, their very existence provides insight into the EU’s constitutional design in general: the relativity of the borders of the Union. Forgetting for a moment the formal concept of EU membership, the geometry of differentiation is clearly visible: numerous circles of integration are discernible, ranging from the inner circle of the Euro and Schengen areas through intermediate circles of Member States, including regions and territories, with derogations, opt-outs and opt-ins, to the outer circles of countries and regions of the ‘near abroad’, such as the overseas countries and territories, the EEA countries, Switzerland, candidate countries for accession, and so on. That these different regimes and arrangements do follow certain patterns and are not composed in a completely haphazard way is demonstrated by the ties which exist between the four economic freedoms essential for the internal market: free movement of persons, goods, services and capital. When non-members (notably the EEA States and Switzerland) have desired to be part of the internal market, they have had to take the four freedoms lock, stock and barrel. In 2014, a referendum was organised in Switzerland which resulted in a decision to request restrictions on the free movement of workers, despite a bilateral agreement with the EU requiring free movement. The EU did not take this request lightly and in 2016 an agreement was reached between the two parties which essentially preserves free

48 Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey, English version, [1977] OJ L361/29. See also Decision No 1/80 of the EEC-Turkey Association Council of 19 September 1980 on the development of the Association (Free Movement of Workers), not published in the OJ. 49 K Pieters, ‘The Mediterranean Countries (Morocco, Algeria, Tunisia, Libya, Egypt, Jordan, Syria and Lebanon)’ in Blockmans and Łazowski, n 45 above, 391 and WT Douma, ‘Israel and the Palestinian Authority’ in ibid, 433.

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movement as part of the overall package.50 It seems obvious that this example will inform the Brexit negotiations which began in June 2017 and that, given the UK insistence on restrictions on free movement, full UK participation in the internal market post-Brexit is an unlikely scenario.

III. Enhanced Cooperation As we have seen, it was in fact nothing new. But flexibility was hailed as the leitmotiv of the Amsterdam intergovernmental conference; the answer to the twin challenges of deepening and widening the European Union. The rhetoric was given form in the shape of Title VII TEU, entitled ‘Closer cooperation’.51 The key innovation was to allow Member States desirous of moving forward the option of working within the framework of the Treaties (as opposed to resorting to the intransparent intergovernmentalism which initially characterised operation of the Schengen regime). Weighed down by fears of a disintegrative disaster scenario, the system introduced in the Treaty of Amsterdam was both complex and, somewhat ironically, inflexible; in the ten years following the creation of the mechanism, the procedure was never initiated.52 The Treaty of Lisbon resulted in a considerable streamlining of what had, in the meantime, been renamed ‘enhanced cooperation’. Article 20 TEU lays down the general principles: cooperation may take place within the framework of the Union’s n on-exclusive competences, must further the objectives of the Union and reinforce the integration process, and must be a ‘last resort’ when it has been established that the objectives of the proposed cooperation cannot be attained within a reasonable period by the Union as a whole. Enhanced cooperation must involve at least nine Member States and remain open to the others, who continue to participate in deliberations, although they do not vote on the adoption of the measures. The procedure is initiated at the request of the Member States wishing to establish enhanced cooperation but the proposal to the legislator must come from the Commission. In general, the Council authorisation requires a qualified majority and the consent of the European Parliament. In the specific case of Common Foreign and Security Policy (CFSP), including security and defence matters, the Member States address their request directly to the Council and authorisation requires unanimity; an opinion is nevertheless sought in relation to the consistency of the proposed cooperation with Union policies generally (from the Commission) and the common foreign and security policy in particular (from the Foreign Affairs Representative). In line with the conduct of CFSP generally, the European Parliament is simply informed of the request. 50 See, eg. the page dedicated to free movement of persons on the website of the Swiss Mission to the EU, https://www.eda.admin.ch/dea/en/home/bilaterale-abkommen/ueberblick/bilaterale-abkommen-1/ personenfreizuegigkeit.html (accessed on 3 March 2017). 51 See Arts 27–27d, 40–40b and 43–45 TEU and Arts 11 and 11a TEC (prior to the entry into force of the Treaty of Lisbon). See also Hanf, n 7 above, 21 et seq; JM de Areilza, ‘The Reform of Enhanced Cooperation Rules: Towards Less Flexibility?’ in De Witte et al, n 1 above, 27; K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 728–33. 52 Piris (2006), n 16 above, 122; Piris (2010), n 16 above, 89.

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Several points deserve comment with a view to assessing the impact of the mechanism on the constitutional order of the Union: after all, a general clause enabling action by only some Member States does seem to fly in the face of the unity of the Union legal order. First, the psychological effect of shifting the focus from the fundamentally more disintegrative practice of opting out described in section II to the infinitely more positive propulsion of some states further down the road to an ‘ever closer union’ should be assessed. The result is, of course, substantially the same, but this distinction, although fine, would appear crucial at a time when new faith must be restored in Europe and forcing deeper integration on unwilling participants would be counterproductive. Secondly, if the mechanism is only to be used in the last resort, when are the normal options exhausted and who decides where this line is drawn? The concerns in this respect are that only half-hearted attempts at compromise will be made by Member States anxious to progress in a particular field and frustrated by the reticence of others. The imperative of EU-wide consensus no longer applies; and yet, if one undermines the incentive to find collective solutions, one risks destroying the concept of the Community and the habit of cooperation.53 It is to be hoped that 60 years of the méthode communitaire are stronger than that; indeed, if an analogy may be drawn with the working practice in the Council and the continued consensus-building ‘under the shadow of the vote’, the spectre of enhanced cooperation may exert a positive influence on reticent Member States, the knowledge that the others may proceed anyway being sufficient to encourage participation unless national interests are truly vital. Thirdly, enhanced cooperation shall not undermine the internal market or economic, social and territorial cohesion, and must not constitute a barrier to or discrimination in trade between the Member States or distort competition between them. The first branch of this condition is an improvement on the original Amsterdam text to the extent that it clarifies the fact that effects on the internal market are possible (indeed, inevitable) and limits the prohibition to undermining the internal market. On the other hand, the second branch of this provision would appear to set an exceptionally high hurdle: in all other areas of Union law, these very conditions are given the widest interpretation. Indeed, by analogy with the application of Article 116 TFEU (ex Article 96 EC), the habit in Community legislative practice has been to conclude that consequences distortive of competition flow directly from diversity as between national laws.54 However, we would suggest that a mechanism whose stated purpose is to create a rule which does not apply in every Member State must be approached from a different angle and existing case law will not be easily transposed. An experienced observer has noted that, to the extent that the intention was to introduce more flexible procedures, the changes made by the Constitutional Treaty (largely taken over into the Treaty of Lisbon) represented ‘only slight improvements’.55 Yet, in July 2010, the mechanism for enhanced cooperation56 was engaged for the first time. Based on a request

53

J Monnet, Mémoires (Paris, Fayard, 1976). See S Weatherill, ‘If I’d Wanted You to Understand I Would Have Explained it Better: What is the Purpose of the Provisions on Closer Cooperation Introduced by the Treaty of Amsterdam?’ in D O’Keefe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999) 21. 55 Piris (2006), n 16 above, 122. 56 Council Decision 2010/405/EU of 12 July 2010, [2010] OJ L189/12. 54

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by 15 Member States, an ensuing Council decision to authorise enhanced cooperation and a Commission proposal on the substance of the matter, a regulation was adopted implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.57 And then, in true ‘waiting for a bus’ tradition, the mechanism was triggered for a second time (in 2011) and, on the basis of a request from 25 Member States, the Council authorised enhanced cooperation in the area of the creation of unitary patent protection.58 The regulation implementing such cooperation as well as a separate regulation relating to translation arrangements were adopted in December 2012.59 More recently, a regulation implementing enhanced cooperation has also been adopted in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and this regulation is accompanied by a similar regulation relating to the property law consequences of registered partnerships.60 Finally, as this edition goes to print, a Commission proposal, based on an authorisation of enhanced cooperation granted by the Council in 2013, for the establishment of a common system of financial transaction tax and a decision of 20 Member States to establish a European Public Prosecutor’s Office on the basis of enhanced cooperation are still pending before the Council.61 Why could these legislative projects not proceed using the normal route? The answer lies in the unanimity requirements of the relevant legal bases.62 As enhanced cooperation makes it possible, for a reduced ‘coalition of the willing’, to bypass the unanimity requirement, it is perhaps not surprising that some of the decisions in this area have been challenged before 57 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L343/10. 58 Council Decision 2011/167/EU of 10 March 2011, [2011] OJ L76/53. The two Member States declining to participate in the legislative project were Italy and Spain (Italy subsequently changed its position and is in fact bound by the relevant measure). 59 Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection [2012] OJ L361/1 and Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, [2012] OJ L361/89. The validity of these two regulations was challenged by Spain before the ECJ but the actions were dismissed, Case C-146/13 Spain v Parliament and Council EU:C:2015:298; Case C‑147/13 Spain v Council EU:C:2015:299. The two regulations form part of a larger package which also involves an Agreement on a Unified Patent Court, concluded by 25 EU Member States in 2013, [2013] OJ C175/2, after the ECJ had declared an earlier project, which would have involved third States as well, incompatible with the Treaties, Opinion 1/09 (Draft Agreement on the Creation of a Uniform Patent Litigation System) EU:C: 2011:123. 60 Council Regulation (EU) No 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, [2016] OJ L183/1; Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, [2016] OJ L183/30. 61 Council Decision of 22 January 2013 authorising enhanced cooperation in the area of financial transaction tax, [2013] L22/11; Commission proposal for a Council Directive implementing enhanced cooperation in the area of financial transaction tax, COM071 final of 14 February 2013. The UK challenged the Council authorisation but the action was dismissed, Case C-209/13 UK v Council EU:C:2014:283. On the initiative to establish a European Public Prosecutor’s Office see ch 7(III) n 64 above. 62 The requirement of unanimity, concerning the regulation relating to the law applicable to divorce, and the two regulations relating to family property regimes, follows from Art 81(3) TFEU, (family law with cross-border implications), and concerning the financial transaction tax, from Article 113 (indirect taxation). With respect to the package on a unitary patent system, Art 118(1) TFEU does provide for the ordinary legislative procedure for the creation of European intellectual property rights but according to Art 118(2), the Council shall act unanimously when establishing language arrangements for such rights.

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the ECJ by Member States who opposed the initially envisaged measure, despite the fact that, after the measure was enacted on the basis of enhanced cooperation, these Member States did not become bound by it. On the other hand, none of these challenges have been successful so far.63 While only time will tell how the mechanism of enhanced cooperation will function in the future and to what extent it will contribute to a two- or even multispeed Europe,64 recent developments tend to demonstrate that in areas where attempts at progress have been long-standing and a few Member States are perceived to be blocking that progress, the others will not hesitate to activate the option provided by the Treaties: enhanced cooperation is no longer a dead letter, the question is whether it will kill unity. We hope that this chapter has shown that unity may itself be illusory and we remain optimistic that the mechanism will draw the Member States together rather than tear them apart. Our final thought then is for what that means for the constitutional legal order: while the Masters of the Treaties retained the requirement for unanimity in those fields most linked to ideas of national sovereignty, it appears that those nation states have themselves written a way round their own reluctance to relinquish unanimity.

63 64

See nn 59 and 61 above. See J-C Piris, The Future of Europe: Towards a Two-Speed EU? (Cambridge, Cambrige University Press, 2012).

9 What Deficit? The EU System of Democracy I. Introduction One of the most common refrains when describing the EU is that it suffers from a ‘democratic deficit’. This is also expressed as a lack of ‘democratic legitimacy’ and/or ‘political accountability’.1 The reasons tendered for this malaise vary. It is often lamented that the Union is run by ‘non-elected’ officials, a ‘technocracy’, probably alluding to the fact that the members of the main executive institution, the Commission, and after the entry into force of the Treaty of Lisbon, also the President of the European Council, are nominated for appointment rather than chosen via universal suffrage. The fact that the Treaties do not require that these individuals have held an elected post in their respective Member States either may be seen to aggravate the problem. If, in riposte, it is argued that the President of the Commission is elected by the European Parliament, and that all the members of the Commission shall be subject as a body to a vote of consent and may be subject, also as a body, to a vote of censure, it is probably retorted that the European Parliament itself lacks democratic legitimacy. Indeed, in the context of its judgment of 30 June 2009 on the constitutionality of the Treaty of Lisbon, the German Constitutional Court highlighted as problematic the fact that, contrary to the principle of ‘one man, one vote’, the small Member States are assigned more seats than they would be entitled to if there were Europe-wide general elections or if the allocation of seats per country was based solely on the size of the population.2

1 It is not possible here to list the extensive legal and political science literature on the subject. Suffice it to mention, by way of examples, L Siedentorp, Democracy in Europe (New York, Columbia University Press, 2001); P Magnette, ‘European Democracy Between Two Ages’ in C Barnard (ed), The Fundamentals of EU Law R evisited: Assessing the Impact of the Constitutional Debate (Oxford, Oxford University Press, 2007) 15; K Lenaerts and N Cambien, ‘The Democratic Legitimacy of the EU after the Treaty of Lisbon’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Antwerp, Intersentia, 2009) 185; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 112–45; R Schütze, European Constitutional Law (Cambridge, Cambridge University Press, 2012) 74–77. 2 The German Constitutional Court (BVerfG, 2 Bve 2/08 of 30 June 2009) observes that the weight of the vote of a citizen from a Member State with a low number of inhabitants may be about 12 times the weight of the vote of a citizen from a Member State with a high number of inhabitants (para 284). The EU thus, according to the Court, ‘lacks … a political decision-making body which has come into being by equal election of all citizens of the Union and which is able to uniformly represent the will of the people’ (para 280). See also Piris, n 1 above, 141–45.

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Even the Council, composed of the democratically elected representatives of each Member State, is not beyond reproach. The most common criticism is of intransparent decisionmaking procedures, both legislative and executive. However, a more fundamental argument is that democracy requires a demos, a European people joined together by a sense of allegiance and common destiny. Article 1 TEU even seems to recognise this, referring as it does to an ‘ever closer’ (and thus not yet sufficiently close?) union among the ‘peoples’ (note the plural) of Europe. There is nothing to prevent a ‘European people’ from emerging alongside national peoples, a development which could be enhanced by the integration process itself.3 The question is whether the integration process itself encourages such a development; and if not, why not? Before embarking on a short and necessarily incomplete quest to address these issues, it seems important to state the obvious: the EU is not a federal state, let alone a nation state. Any discussion on its democratic legitimacy must be seen in that context.4 And any such discussion will be hampered by the fact that our conceptual tools are to a large extent based on the traditional nation state, complemented by nineteenth- and twentieth-century concepts of intergovernmental cooperation under public international law.5

II. General Considerations Taking existing conceptual tools as our starting point, even in the context of the traditional nation state, conceptions of democracy vary a great deal. Universal reference points are provided by Article 21 of the Universal Declaration of Human Rights of 19486 and Articles 1 and 25 of the International Covenant on Civil and Political Rights of 1966.7 Both instruments, as well as Article 3 of Protocol No 1 to the European Convention on Human Rights, refer to the need for free and periodic elections. However, these international instruments leave states—and thus, a fortiori, the EU— a wide margin of appreciation in constructing their political and constitutional systems.8

3

Schütze, n 1 above, 71–72. Lenaerts and Cambien, n 1 above, 185. See also Piris, n 1 above, 143. 5 See, eg J Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 324 et seq; Schütze, n 1 above, 71–79. 6 Everyone has the right to take part in the government of his country, directly or through freely chosen representatives (para 1) and the will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections (para 3), UN General Assembly Resolution 217 A (III) of 10 December 1948. See A Rosas, ‘Article 21’ in G Alfredsson and A Eide (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement (The Hague, Martinus Nijhoff Publishers, 1999) 431. 7 All peoples have the right of self-determination (Art 1) and every citizen shall have the right to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and be elected at genuine periodic elections (Art 25). While the EU is not a Contracting Party, the Covenant figures among the guidelines used by the Union Courts in the determination of fundamental rights as general principles of Union law, A Rosas, ‘The Charter and Universal Human Rights Instruments’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1685. 8 A Rosas, ‘Democracy and Human Rights’ in A Rosas and J Helgesen (eds), Human Rights in a Changing East/ West Perspective (London, Pinter Publishers, 1990) 17. 4

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There is no requirement of direct democracy in the form of referendums or plebiscites, nor of a system which ensures that the majority will always prevail. There is, quite simply, a ‘right to democracy’. However, the content of a contemporary concept of democracy may include not only representative and participatory elements, but also substantive elements, such as respect for the rule of law and human rights, including the rights of minorities. On the other hand, the European public order does contain certain minimum standards for elections, requiring that they be ‘free’ and ‘at reasonable intervals’, and that they ensure the free expression of the opinion of the people in the choice of the legislature, including, according to the European Court of Human Rights, the European Parliament.9 The constitutional order of the EU itself also contains ample reference to democracy. The ECJ observed early on that the power of the European Parliament to participate in the legislative process represents an essential factor in the institutional balance intended by the Treaty which ‘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’.10 Taking that logic further, the Court has more recently emphasised that, as preconditions for the effective exercise of the ‘democratic rights’ of citizens, openness and transparency contribute to strengthening democracy11 and that the principle of democracy itself, forming as it does part of EU law, ‘must be taken into consideration when interpreting acts of secondary law’.12 Article 2 TEU lists ‘democracy’ among the core values upon which the Union is founded. These basic tenets are distinct from the somewhat more concrete objectives to be found in Article 3 TEU (such as the establishment of the internal market). Alongside democracy, reference is made to ‘respect for human dignity’, ‘freedom’, ‘equality’, ‘the rule of law’ and ‘respect for human rights, including the rights of persons belonging to minorities’. The central nature of these common values to construing the Member States’ system of governance is highlighted from two angles (internal and external): according to Article 7 TEU, sanctions may be applied against a Member State for serious breach of the values referred to in Article 2 TEU; and membership of the EU requires that the candidate country respect these values and be committed to promoting them (Article 49 TEU). Title II TEU, introduced by the Treaty of Lisbon, expands upon what it calls ‘democratic principles’ (Articles 9–12). The first may be described as equality, and is linked to the concept of citizenship of the Union (see Part Two TFEU, and chapter ten below). Building on this, Article 10 TEU announces that the Union is founded on representative democracy, both direct (citizens are ‘directly represented at Union level in the European Parliament’) and indirect (in the European Council by their heads of state or government

9 European Court of Human Rights, Matthews v the UK [GC], no 24833/94, judgment of 18 February 1999, ECHR 1999-I. See also, eg P van Dijk et al (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia, 2006) 916 with references to case law. 10 Case 138/79 Roquette Frères v Council EU:C:1980:249. See also Case 139/79 Maizena v Council EU:C:1980:250 para 34; Case C-300/89 Commission v Council EU:C:1991:244. See also K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 737–38. 11 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council EU:C:2008:374, para 46; Case C-280/11 P Council v Access Info Europe EU:C:2013:671, paras 27 and 33. 12 Case C-518/07 Commission v Germany EU:C:2010:125, para 41. See, more generally, K Lenaerts, ‘The Principle of Democracy in the Case Law of the European Court of Justice’ (2013) 62 International and Comparative Law Quarterly 271.

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and in the Council by their governments, ‘themselves democratically accountable either to their national parliaments, or to their citizens’). This indirect representation is now expressly supplemented by the contribution of national parliaments ‘to the good functioning of the Union’ as expressed in Article 12 TEU.13 In light of the foregoing, a complex web of interlacing strands can be knitted together, with each thread presenting elements of the various concepts of democracy (representative, participatory and deliberative): (i)

the Union’s own democratic system, functioning through its institutions (direct legitimacy); (ii) the citizens (direct legitimacy);14 (iii) Member States’ democratic systems (indirect legitimacy); (iv) values, principles, objectives and results (substantive legitimacy). Democracy in the EU is in fact grounded in a variety of institutional and procedural mechanisms and substantive elements. As we pointed out in chapter seven above, the EU system of governance is in principle rather inclusive. It involves the Union political institutions as such; the participation of the citizens in that system (directly and indirectly through their national parliaments); and the participation of the Member States, via representation in those institutions, including, in addition to the Council, comitology committees and the decision-making bodies of Union agencies, and via the input of national parliaments (again directly, or through their role in the formulation of national positions). Citizens and civil society have ample mechanisms at their disposal to influence developments: engagement via the national political system is completed by participation in European elections, citizens’ initiatives and petitions, participation in consultations organised by the Commission, ‘lobbying’, access to documents, and so on. Finally, it is difficult to assert that the general values, principles and objectives expressed in Union primary law (notably Articles 2 and 3 TEU and the Charter of Fundamental Rights) do not command general acceptance. Taking all these factors into account, we believe it is somewhat misleading to speak of a ‘democratic deficit’. It is nevertheless widely held that things are not as they should be.15 It is beyond the reach of this book to explain all the reasons for the malaise, let alone to reveal a miracle cure. It seems obvious, however, that at least a part of the problem lies in the (overly?) complex and unique pattern created using the elements identified a moment ago. Despite the fact that several of these threads can be traced back to the ordinary citizen, he cannot understand or relate to the overall picture. Add to that the inevitable ‘remoteness’ of Union decision making in an EU of 28 Member States and 500 million people and the problem is magnified.

13

See also ch 7(IV) above. The expressions direct and indirect legitimacy as used here do not coincide with the notions of direct and indirect democracy. 15 See notably Y Mény, ‘Can Europe Be Democratic? Is It Feasible? Is It Necessary? Is the Present Situation Sustainable?’ (2011) 34 Fordham International Law Review 1287. The author concludes that ‘the fundamentals of democracy are still lacking’ (at 1301) and that the current way of proceeding ‘might last for some time but not forever’ (at 1303). 14

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Is anything less than the creation of a federal state likely to amount to a satisfactory solution? Is even that enough? In the following discussion, the emphasis will be on the Union’s own democratic system and, in this context, representative democracy and the political institutions through which that representation is expressed. It is to be hoped that the book as a whole, including the concluding chapter, will cast more light on the EU system of government and governance, and help the reader to form his or her own opinion.

III. The Political Institutions Coming back to the basic conundrum identified in section II of chapter seven: it has become difficult to argue that the European Parliament is merely a ‘talking shop’, bereft of any real power, though low turnout in the European elections, together with certain other factors indicating a low level of interest in and/or allegiance to the Parliament as an institution representative of the Union at large, continue to chain it to accusations of a democratic deficit. These accusations, which were alluded to above and may be separated broadly into the technical question of the composition of the institution and the political question of the engagement of citizens in the Parliament as ‘their voice’, are often based on fact. As regards the composition of the Parliament, it is true that the votes of Union citizens do not have equal weight. There are no EU-wide elections which would leave the number of seats per Member State dependent solely on the total number of votes cast. Nor is the allocation of the number of seats per country based on population size alone. More specifically, the overall maximum number of members of the European Parliament is fixed at 750, plus the President.16 Within the framework of a minimum of six and a maximum of 96, the number of seats per Member State is determined by the European Council, acting by unanimity on the initiative of the Parliament and with its consent.17 Elections take place (almost) contemporaneously across the Union, but each voter’s choice is still limited to the candidates put forward in the Member State where he exercises his right to vote (although neither voters nor candidates need to be nationals of that Member State— residence will suffice, see below and section I of chapter ten below). Article 223 TFEU does provide for adopting a uniform procedure, but this is far from being a reality, although a symbolic difference in the wording of the provisions relating to the Parliament may light the way in the future: according to Article 189 TEC, the European Parliament consisted of representatives of the peoples (again, note the plural) of the Member States, whereas Article 14 TEU now identifies this body as being composed of representatives of the Union’s citizens. And as this edition goes to print, new plans are being floated envisaging

16 See Art 14(2) TEU and European Council Decision 2013/312/EU of 28 June 2013, [2013] OJ L181/57. See also Art 2 of Protocol No 36 on Transitional Provisions; the 2009–14 European Parliament had 754 members see ch 4(II) above and ch 7(II) above. 17 European Council Decision 2013/312/EU, n 16 above. The minimum number of seats per Member State was ‘hotly debated’ at the Intergovernmental Conference adopting the Constitutional Treaty of 2004. Some bigger Member States would have preferred a minimum number of four instead of six members per country, J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006) 91.

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a limited number of seats in the Parliament being filled from a list of pan-European candidates, thus departing from the exclusive reliance on national lists.18 Thus, despite the reference in Article 10(2) TEU to the ‘direct’ representation of citizens in the European Parliament, this representation continues for now to take place through the prism of a particular Member State. Indeed, much like the role a Member State continues to play in defining nationality (as the condition for admission to citizenship of the Union; see section III of chapter ten below), the Member State retains the competence as to both the organisation of elections and the conditions for voting in those elections, albeit within the confines of common limits. The elections are organised in each state on the basis of common principles (notably proportional representation). In recognition of the basic principle of free movement of persons, the Member State in which a citizen votes or stands as a candidate is not necessarily his or her country of nationality; Article 22(2) TFEU stipulates that Union citizens may vote and stand as candidates in their Member State of residence. According to the case law of the ECJ, a Member State may also extend these electoral rights to persons who are not nationals of any Member State and thus are not citizens of the Union on the condition that there are ‘close links’ between the voter and the Member State, and with the caveat that the persons concerned do not enjoy the right of Union citizens to vote and to be elected in another Member State.19 The flip side of this margin of discretion is reflected in the possibility of depriving nationals, and thus Union citizens, of the right to vote and be elected in European elections, inter alia, if they reside in an autonomous region outside the EU (so-called overseas territories).20 Finally, assessing the composition of the Parliament through the lens of the principle of one man, one vote requires two additional factors to be taken into account: first, given the nature of the EU as a union of states rather than a federal state, it is to be expected that the allocation of seats defers somewhat to the idea of equality or fair representation between Member States as such, whether big or small, rather than the equality of citizens only. Indeed, even in the context of the clearly federal US, the allocation of seats is even more remote from the idea of one man, one vote, as each state has two seats in the Senate, irrespective of population size, which varies greatly.21 Secondly, in many Member States, or other states for the matter, it may well be that the government in power, while normally based on a majority of the members of the national parliament, cannot claim to have won the majority of the votes cast in the general election.22 Turning to the matter of popular participation in the European elections, voter turnout has been going down ever since the first election in 1979, from 62 per cent then to 42.9 per cent in the 2009 elections and 42.6 per cent in the 2014 elections.23 The irony of 18 ‘Paris

to Support Plan for Lists of Pan-European MEP Candidates’, Financial Times 5 September 2017, 2. Case C-145/04 Spain v UK EU:C:2006:543, paras 66 and 78. 20 Case C-300/04 Eman and Sevinger EU:C:2006:545. The ECJ referred, inter alia, to the case law of the European Court of Human Rights, accepting, in principle, residence as a condition for the right to vote and to stand for election (para 54). 21 To this argument the German Constitutional Court (n 2 above) answers (para 286) that the Senate is only a second chamber. With respect, we would simply note that, given the important powers of the Senate in the US constitutional system, this argument is not convincing. 22 The extreme example is the UK, where the electoral system normally allows one of the two biggest parties (the Conservatives and Labour) to obtain a majority in the House of Commons on the basis of a nation-wide support of less than 40%. 23 http://www.europarl.europa.eu/elections2014-results/en/turnout.html (accessed on 7 March 2017). 19

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ever-decreasing public interest in an institution that has been gaining steadily in power and influence is difficult to avoid. It is, however, less paradoxical than it might seem: the complexity of an institutional framework in constant flux, and not least the Parliament’s own evolution, has engendered widespread perplexity concerning the real powers of the European Parliament, particularly as regards the adoption of legislation and of the EU budget, as well as in relation to scrutinising the work of the Commission (see below). Thus, in a Union which has grown from nine Member States in 1979 to 28 in 2017 without bringing the expanding circle of voters with it, it is the increased feeling of ‘remoteness’ of ordinary citizens vis-à-vis Union institutions, including the Parliament, and ‘Brussels’ as a foreign and faceless entity more generally that has defined the downward trend in turnout. The ‘peoples of Europe’ are still to a large extent attached to national identities and national democracy, and there is considerable indifference, apathy or even hostility towards the EU institutions, including the European Parliament, among large segments of the general public.24 Such feelings were undoubtedly strong among the majority that voted in favour of Brexit in the June 2016 referendum in the UK. This situation is not helped by the as yet rather embryonic nature of political parties functioning at European level. True, such parties should contribute to forming European political awareness (Article 10(4) TEU), and their activities and funding are regulated by secondary law (Article 224 TFEU),25 but while there has been a gradual increase in the importance of Europe-wide political groupings (such as the European People’s Party, the Progressive Alliance of Socialists & Democrats, the Liberals and Democrats and the Greens),26 public awareness of this fairly recent phenomenon can, for the moment, be assumed to be low and the existence of these supranational political parties serves an exclusively supranational function (the conduct of the affairs of the Parliament being very much defined in terms of these political groupings).27 True, the 2014 elections brought an increased emphasis on the link between elections for the Parliament and the election of the President of the Commission (see below), with preferred candidates’ (‘Spitzenkandidaten’) representing the major political groupings of the Parliament aspiring to be elected Commission President. This seems to have increased somewhat the popular awareness of the Parliament and its political groupings and the importance of the political outcome of the elections. As noted above, however, voter turnout did not improve, although it did stabilise as compared to the 2009 elections. In parallel, turnout in national elections has also been going down in many countries, which seems to reflect a more general lack of either trust or interest in institutions of

24 See, eg LM McLaren, Identity, Interests and Attitudes to European Integration (Basingstoke, Palgrave Macmillan, 2006). 25 Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council of 22 October 2014 on the statute and funding of European political parties and European political foundations, [2014] OJ L317/1. Recognising that, despite the progress made in the 2014 Regulation, much work is still to be done, the Commission has proposed an amendment to that text: COM(2017) 481 final of 13 September 2017. On the conditions for establishing political groups in the European Parliament see, eg Case C-486/01 P Front National v Parliament EU:C:2004:394. 26 See www.eppgroup.eu/en, www.socialistsanddemocrats.eu, www.alde.eu/en and https://www.greens-efa.eu/ en/, respectively (accessed on 6 May 2010). 27 See also Case C-486/01 P Front National v Parliament, n 25 above.

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representative democracy.28 And, without wishing either to rationalise turnout of less than 50 per cent as desirable or slavishly compare the EU to the United States as a means of validation, voter turnout in elections to the European Parliament is still higher than, for instance, in US congressional elections, which take place between the years of presidential elections, and not much lower than the elections coinciding with US presidential elections or even in the US presidential elections themselves.29 The Council is clearly representative of the Member States (directly) and their people (indirectly), and derives its legitimacy from each national political system. However, as noted in section II of chapter 7 above, it is now the rule that this body acts by qualified majority. We suggest that, while the transparency of the decision-making processes is an important element in understanding the accusations levelled at the Council, the rules according to which those decisions are taken are at least as much to blame for negative perceptions of unpopular measures adopted by ‘Brussels’. Dealing first with allegations of intransparent decision-making in ‘closed, smoke-filled rooms’, the Treaty of Lisbon extends the requirement of meeting in public applicable to the European Parliament to the legislative functions of the Council (Article 15(2) TFEU).30 This provision had been inserted into the Constitutional Treaty in 2004 and was in fact put into practice in the intervening period via an amendment to the Council’s Rules of Procedure.31 However, as noted above in section II of chapter seven, the majority of issues are solved before the Council meeting as such and are therefore put on the agenda of those meetings as points to be passed without discussion. The extent to which perceptions of intransparent procedures are countered by this development will therefore depend on whether only the actual discussions at Council meetings are the problem, failing which the continued operation of a system heavily dependent on Working Groups and Coreper will translate into continued dissatisfaction with the democratic process of legislating. On the other hand, the public will now be able to ascertain how ‘their’ representative in the Council voted on any particular proposal and this should, at least, have a positive effect in dispelling the myth often perpetuated by national governments of decisions taken by ‘Brussels’. In parallel to these changes in primary law, the case law on access to documents has had a not insignificant impact on the democratic process:32 despite an express exception (to the principle of access) for legal advice, the ECJ has held that the legal opinions of the Council Legal Service should as a rule be disclosed if they relate to legislative proposals as,

28 On average, voter turnout in relation to voting-age population increased at a worldwide level until the 1980s, but started to decline in the 1990s, http://www.idea.int/sites/default/files/publications/voter-turnout-trendsaround-the-world.pdf (accessed on 28 September 2017). 29 Since the 1970s, voter turnout in presidential elections has been in the range of around 50–60% of the voting-age population (estimated at around 55% in the 2016 elections). In congressional elections for Representatives, turnout has been in the range of 45–50% if elections coincide with presidential elections and otherwise in the range of 30–40%. 30 See also Art 16(8) TEU, which stipulates that the Council shall meet in public when it deliberates and votes on a legislative act. Council meetings must therefore be divided into two parts. 31 See also Lenaerts and Van Nuffel, n 10 above, 492–93 and ch 7(II) above. 32 Public access to documents held by the institutions is regulated by Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, [2001] OJ L145/43.

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in the interest of openness and transparency, wider access must be granted to documents pertaining to the legislative process.33 However, knowing how your government voted on any particular proposal will not solve the problems in relation to the Council. It will force politicians to ‘come out of hiding’, but in cases where the representative of a Member State did in fact vote against a measure, how will its citizens view the decision-making process which led to it being adopted anyway? In other words, how do the citizens of the Union view the system of qualified majority voting deemed so necessary to integrative progress? We would tender the following comment. As a preliminary point, insisting on unanimity denies the nature of the EU and 60 years of integration. On the basis, then, that unanimity is not the answer and that there is nothing inherently undemocratic about a system of majority voting, the mechanisms chosen to establish a majority (or protect a minority) should be analysed for democratic flaws. First, as regards the technicalities of the system, a new definition of what constitutes a qualified majority was introduced by the Treaty of Lisbon and has been applied since 1 November 2014.34 Instead of the system of weighted votes attributed to each Member State, a qualified majority in the Council now requires a ‘double majority’, defined as at least 55 per cent of the members of the Council and representing Member States comprising at least 65 per cent of the population of the Union. In other words, both the Member States and the citizens are used to set a threshold. Via a rather opaque formulation, a minority must include a certain minimum number of Council members. Thus, in today’s Union of 28 Member States, the adoption of legislation requires that ministers from at least 16 Member States (after Brexit, 15 out of 27 Member States) comprising at least 65 per cent of the whole Union population vote in favour of a measure, but with the caveat that even if the population threshold is not met the measure will be adopted anyway if the only votes against are from three of the four biggest Member States.35 It is not immediately obvious that this new arrangement will be any more accessible to the uninitiated than the pre-Lisbon system of weighted votes. On the contrary, putting aside the arithmetical matrices necessary to calculate clusters of states which will continue to tangle the brains of those seeking to construct minorities or majorities, the previous system had the advantage of simplicity (sic) in that each Member State was attributed a number written into the Treaty. Who knows what the population of any Member State is at any given time and where is the authoritative information to be found? On the other hand, the criterion relating to population implies a certain move towards the idea of one man, one vote of equal weight deemed so important in relation to the Parliament (see discussion above).

33

Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council, n 11 above. the transitional period up to 1 November 2014 and the derogations applicable thereafter see Art 238 TFEU and Art 3 of Protocol No 36 on Transitional Provisions annexed to the TEU and the TFEU. On the historical development of the system of weighted votes, and its replacement in the Constitutional Treaty of 2004 (and the Treaty of Lisbon) by the requirement of a double majority, see Piris, n 17 above, 95–105; Piris, n 1 above, 212–25; Lenaerts and Van Nuffel, n 10 above, 494–501. 35 On a similar but not identical rule contained in the abortive Constitutional Treaty of 2004 see Piris, n 17 above, 96. 34 On

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Finally, despite the fact that, since the entry into force of the Treaty of Lisbon, the default procedure is voting by qualified majority, the requirement of unanimity has been retained in several areas of activity. In addition to the Common Foreign and Security Policy and decisions having constitutional implications (where unanimity is not unexpected), some legislative matters continue to be subject to unanimous agreement. One notable example is the field of taxation (Articles 113 and 115 TFEU). Thus, even if a unanimous European Parliament and 27 out of 28 ministers representing their Member States in the Council are in favour of tax harmonisation in a given field, a minister representing one of the smallest Member States with a population of a few hundred thousand can prevent the decision from being adopted. This is one of the manifestations of what may be referred to as ‘consensus democracy’ and is a key feature of the Union democratic system. The legislative p aralysis that unanimity may engender is now counterbalanced by the possibility that a smaller group of Member States may be authorised to use enhanced cooperation as a means of pursuing further integration in certain areas without the requirement of unanimity.36 Before turning attention from the indirect legitimacy of representatives of the Member States, a brief analysis of the European Council as the ultimate expression of Member State representation appears appropriate. Neither the European Parliament nor the citizens directly have any formal role in the election of its President. Nor does the European Council normally take decisions by qualified majority, acting in most instances by consensus. On the other hand, the European Council cannot exercise legislative functions, simply providing the Union ‘with the necessary impetus for its development’ (although it can take certain decisions of a constitutional nature).37 This institution underlines the importance of indirect legitimacy (legitimacy through the representatives of the Member States) to the EU system of governance, but if, in the mind of the general public, that was perceived to be sufficient, the functioning of the Council would not be a source of dissatisfaction either. The role of the Commission in the democratic process is even more complicated to assess. As we have seen, the legislator is composed of two bodies deriving legitimacy either directly or indirectly from the people. What, then, is the role of the body that is not only essentially apolitical in the classic sense of a national administration serving consecutive and potentially diametrically opposed governments but is specifically tasked with representing the interest of the Union in general, rather than any particular Member State or its people? The answer, of course, lies in the recognition that the Commission is not apolitical—it is simply not organised strictly along party lines. What is more, in addition to resembling the administration normally serving a government, it presents many (but not all) of the features of a national government as such, and, as the main executive body of the Union, is heavily involved in rule making. This recognition that the Commission is also engaged in the democratic process, not least as a result of its influence over the legislative agenda, has translated into an

36 On enhanced cooperation and its recent use in order to overcome the requirement of unanimity see ch 8(III) above. 37 See chs 4(II) and 7(II) above.

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bligation on the European Council to take into account the results of the elections to o the European Parliament when proposing its candidate for President to the Parliament (Article17(7) TEU). Thus, when Mr Barroso (widely acknowledged as being politically ‘right-of-centre’) was proposed in 2009 for re-election as President of the Commission, account was taken of the fact that the Parliament, as elected in June 2009, continued to have a non-socialist majority. As already noted above, the 2014 parliamentary elections were even more politicised and each political grouping identified their preferred candidate for election as President of the Commission. Following the results of the election, the ‘top candidate’ of the European People’s Party (EPP), Jean-Claude Juncker was ultimately elected President of the Commission. This happened despite misgivings on the part of the governments of some Member States, who felt sidelined by the process.38 The outcome can certainly be seen as a step towards a more parliamentary system and even as an attempt to bring the election process closer to the people, but it remains to be seen whether it will have any lasting impact. After the election of the President, the list of other members of the Commission is established by the Council together with the President-elect. This list is subject to a vote of consent by the Parliament, taken following a series of hearings during which the Parliament has the chance to investigate the background and suitability for office of the putative Commissioners. While the vote of consent is on the list as a whole, rather than on individual Commissioners, the Parliament has shown itself willing to withhold consent if changes that it would like to see to the list are not forthcoming: for example, in 2004 opposition from the Parliament led to the replacement of two candidates and a change of portfolio envisaged for one Commissioner,39 and in 2010 one candidate was replaced.40 Once it has taken up office, two main aspects of the Commission’s task are of relevance for the present discussion: the right of initiative and the influence that gives the Commission over the legislative agenda, and the very real administrative power it wields in terms of both general implementing measures and individual decisions. As a result, the Commission and the way in which it carries out these tasks are circumscribed by a number of mechanisms grounded in concepts of democracy. Legislative acts can, as a rule, only be adopted on the basis of a Commission proposal. However, it seems clear that political reality will weigh heavily in situations where the European Parliament has requested that an appropriate proposal is submitted in any particular field (and, indeed, the Commission must inform the Parliament of the reasons for refusing to act on such a request, Article 225 TFEU). And while there is no corresponding provision relating to the European Council, taking into account that its main task is to provide the Union ‘with the necessary impetus for its development’ and to define

38 See, eg M Kaeding, ‘The Juncker Commission Has Brussels in a State of Upheaval’, Österreichische esellschaft für Europapolitik (ÖGfE) Policy Brief, 6 November 2015, www.oegfe.at/wordpress/2015/11/ G the-juncker-commission-has-Brussels-in-a-state-of-upheaval (accessed on 7 March 2017). 39 D Spence, ‘The President, the College and the Cabinets’ in D Spence (ed), The European Commission (London, John Harper Publishing, 2006) 36–37. 40 The candidate originally proposed by Bulgaria was withdrawn and another put forward in her place. See the statement made by the President of the European Parliament concerning the decision to withdraw a candidate: http://www.socialistsanddemocrats.eu/newsroom/resignation-inevitable-and-predictable.

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‘the general political directions and priorities thereof ’ (Article 15(1) TFEU), it is to be expected that the Commission will heed any request made by that body. Similarly, while a citizens’ initiative is merely an invitation to the Commission to act, it will be politically difficult to ignore the stated will of one million citizens (Article 11(4) TEU).41 Finally, perhaps mirroring the ‘governmental’ elements of the institution, the Commission, as a body, ‘shall be responsible to the European Parliament’, which can, by a motion of censure carried by a two-thirds majority of the votes cast, representing an absolute majority of its members, force the entire Commission to resign (Article 234 TFEU). This possibility may lead to the resignation of the Commission even before a vote is taken, which is what happened to the Santer Commission in March 1999.42 While a vote of no confidence concerning an individual member of the Commission does not entail automatic resignation, it is difficult to imagine that in such a situation the President of the Commission would not, if need be, use his prerogative to ask the member in question to resign (Article 17(6) TEU).43 These situations are, of course, extreme. At a more every day level, the Parliament has several means by which to scrutinise the work of the Commission, including an obligation of the Commission to reply orally or in writing to questions put to it by the Parliament or by individual members (Article 230 TFEU), and to submit to the Parliament an annual general report to be discussed in open session (Article 233 TFEU). To the extent, then, that the Commission presents some features reflecting the political government in a national system of representative democracy based on majority voting, control of that body is also assured in a manner reflecting the political control national parliaments exercise over the national democratic process. Fears of unpopular rules handed down by a Brussels-based technocracy therefore do not appear to take into account that such accusations perhaps say more about the perceived effectiveness of parliamentary control than the undemocratic nature of the executive body, which brings us full circle to the basic paradox which defines the European Parliament. Do these special characteristics of the European Parliament, Council, European Council and Commission prove that the EU suffers from a democratic deficit? We do not think so, but we also suggest that the analysis should not stop here. First of all, as has been mentioned above, even national political systems associated with representative democracy vary greatly when it comes to the regulation of the specifics of elections, the decision-making procedures and the constitutional relations between the different political institutions. Secondly, the discussion should also take into account forms of participatory and deliberative democracy, as well as the perspective of substantive rather than formal legitimacy, including rule of law and human rights/fundamental rights considerations.

41 Piris, n 17 above, 119, observes that the political weight of a citizens’ initiative ‘will, in practice, force the Commission to engage in serious work following the receipt of an initiative’. 42 Spence, n 39 above, 40–41. 43 A corresponding provision already existed in the Art 217(4) TEC but with the addition that the President had to obtain the consent of the whole Commission before making such a request. During the parliamentary hearings in 1999, and thus before the Treaties of Nice and Lisbon, each candidate to become a Commissioner declared that they would resign if requested to do so by the President of the Commission, Spence, ibid, 41–42 and L Verhey, M Claes and H Broeksteeg, ‘Political Accountability in the European Union: Conceptual Analysis and Future Prospects’ in Wouters et al, n 1 above, 318–19.

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IV. Participatory, Deliberative and Substantive Democracy ‘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’ (Article 10(3) TEU). This declaration of participatory democracy, the first part of which resembles the principle expressed in Article 25(a) of the International Covenant on Civil and Political Rights,44 would constitute something of an empty vessel if it were not backed up by other more substantive requirements. Involving the citizens of the Union in its democratic process would appear to be a very tangible way of responding to complaints of democratic deficit: a sort of ‘put your money where your mouth is’ ultimatum. Most of the elements of participatory democracy that can be pointed to in the Treaties are not new, but stating expressly the object of participation serves to highlight their existence (and perhaps encourage their use). In this respect, the reference in the opening provision of the Treaties to taking decisions openly and as closely as possible to the citizens is highly symbolic (Article 1 TEU). Article 11 TEU expands upon the various ways in which citizens may participate in the democratic process:45 (i) obligation of the institutions to give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action; (ii) obligation of the institutions to maintain an open, transparent and regular dialogue with representative associations and civil society; (iii) obligation of the Commission to carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent; and (iv) the right of one million citizens to take citizens’ initiatives inviting the Commission to submit legislative proposals. It is clear, then, that this brand of democracy is in addition to the more representative democracy announced in Article 10(1) TEU. Indeed, the key novelty is the mechanism for bypassing the traditional expression of the will of the people through their representatives in Parliament: citizens’ initiatives. Article 11(4) TEU specifies that the at least one million citizens required shall be ‘nationals of a significant number of Member States’. The more detailed conditions, including the minimum number of Member States from which the citizens must come, have, in accordance with Article 24(1) TFEU, been determined by regulations adopted under the ordinary legislative procedure.46 According to the system thus established, the organisers of an initiative need first to register a proposed initiative with the Commission, which shall refuse registration, inter alia,

44 According to this provision, every citizen shall have the right and the opportunity ‘to take part in the conduct of public affairs, directly or through freely chosen representatives’. As mentioned at n 7 above, the Covenant has been used by the ECJ as a guideline in the determination of the fundamental rights which are part of the general principles of Union law. 45 See also JW Pichler, S Hinghofer-Szalkay and P Pichler, Civil Dialogue and Participatory Democracy in the Practice of the European Union Institutions (Vienna, Austrian Institute for European Law and Policy, 2016). 46 See Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative, [2011] OJ L65/1, and Commission Implementing Regulation (EU) No 1179/2011 of 17 November 2011 laying down technical specifications for online collection systems pursuant to Regulation 211/2011, [2011] OJ L301/3. See also A Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54 Common Market Law Review 177.

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if the proposed initiative falls manifestly outside the framework of the Commission’s powers to submit a proposal for a legal act (Article 4(2) of Regulation 211/2011).47 If the initiative is registered, the organisers can proceed to the collection of support. The signatories shall come from at least one quarter of Member States and in at least this quarter, signatories shall comprise at least the minimum number of citizens set out in an Annex (Article 7 of Regulation 211/2011; for the biggest Member State, Germany, the requirement is more than 70,000 signatories). When the threshold of one million citizens has been reached and the other conditions fulfilled, the initiative may be submitted to the Commission, which shall hear the organisers, including the possibility of a public hearing at the European Parliament. The mechanism of citizens’ initiatives has proved a popular means of expressing the will of the relevant citizens: more than 60 proposed initiatives have been launched so far; 20 have been refused registration by the Commission (some of which have triggered challenges before the Union Courts)48 and around 30 have been either withdrawn or not obtained the required number of signatories. The remaining initiatives have either already led to a reply of the Commission (which in two cases has signalled measures to be taken) or are pending, including an ongoing collection of signatories.49 To these provisions intended to enhance citizens’ participatory rights should be added the right of citizens to petition the European Parliament,50 to complain to the European Ombudsman51 and to write to, and have an answer from, the institutions (Article 24 TFEU). The objective of increasing participation is further underlined by the fact that the rights of petition and complaint (Articles 227 and 228 TFEU) as well as the right of access to documents (Article 15(3) TFEU and the secondary legislation laying down the modalities and limitations of that right)52 are extended beyond citizens to all natural and legal persons residing or having their registered office in a Member State. We shall come back to who should be involved in the democratic process at the end of this section. For the moment, suffice it to note that these more classic rights allow us to see how participation is

47 In Case C-589/15 P Anagnostakis v Commission EU:C:2017:663, the Court dismissed an appeal against a judgment of the General Court (Case T-450/12 Anagnostakis v Commission EU:T:2015:739), in which the latter dismissed an action for annulment against a Commission decision refusing to register a proposed initiative. On 13 September 2017, the Commission adopted a proposal to amend the regulation concerning the citizens’ initiative with the aim of improving the mechanism as a tool for democratic debate and participation, COM(2017) 482 final. 48 See n 47 above and a number of cases before the General Court; T-529/13 Balázs-Árpád Izsák and Other v Commission EU:T:2016:282; T-646/13 Bürgerschuss für di Bürgerinitiative Minority SafePack v Commission EU:T:2017:59; T-44/14 Costantini v Commission EU:T:2016:223; T-361/14 and T-754/14 pending. These actions, except in Case T-646/13, were dismissed by the General Court. 49 For statistics covering the period April 2012–March 2015 see Report from the Commission to the European Parliament and the Council, Report on the application of Regulation (EU) No 211/20111 on the citizens’ initiative, COM(2015) 145 final of 31 March 2015, 3. For more recent figures see http://ec.europa.eu/citizens-initiative/ public/welcome (accessed on 8 March 2017). 50 See also Art 227 TFEU. Petitions are considered in a special Committee on Petitions. Decisions to the effect that a petition does not meet the conditions laid down in Art 297 TFEU, or to refuse to consider a petition altogether, are amenable to judicial review. This is not the case, however, with respect to decisions on the merits, where the Parliament enjoys broad discretion of a political nature, Case C-261/13 P Schönberger v Parliament EU:C:2014:2423. 51 See ch 16(II) below. 52 Regulation (EC) No 1049/2001, n 32 above, was adopted on the basis of Art 255 TEC.

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i ntertwined with perceptions of good governance. Indeed, the various elements of o penness and transparency contained in Article 15 TFEU appear to expressly make that link. Contemporary theories of democracy also often focus on the concept of ‘deliberative democracy’, at least as a complement to representative and participatory forms of democracy. The emphasis here is on the informed discussion preceding a decision, with a view to reaching collective choices the grounds for which are widely acceptable.53 Many of the forms of interaction between stakeholders, decision makers and institutions, and the rules of openness and transparency outlined above, may be seen as enhancing such deliberation. The provisions of Article 11 TEU in particular on public debate, dialogue with representative associations and civil society, and consultations with parties concerned (‘stakeholders’) are examples of this—and the rules on openness and transparency can serve the same purpose. In practice, the idea is not revolutionary. The Commission has a long-standing history of making known its preliminary intentions through Green and White Papers, and has regularly organised consultations on legislative and other initiatives inviting interested groups and networks to submit their comments and suggestions.54 However, linking such practices to the concept of democracy allows us to explain the functioning of the EU constitutional order: the relative weight of majority voting (sometimes viewed as problematic in a union of states) diminishes in favour of deliberative democracy and an emphasis on finding generally acceptable solutions rather than counting heads.55 For some, the procedural and institutional aspects of the EU system of democracy are less important than what the EU can actually accomplish (outcome-based legitimisation). What matters is that the EU can perform, in terms of economic growth, environmental protection, free movement, the fight against criminality and so on; even the participatory mechanisms involving civil society and interest groups may be viewed through this lens not just as a procedural device but as an end in themselves. This brings us, finally, to a particular feature of the EU constitutional order: its uncommonly detailed substantive elements. Union primary law is full of principles and provisions which regulate substance rather than form.56 Three categories may be identified: (i) the general values, principles and objectives of the EU, proclaimed to a large extent in Articles 1–3 TEU; (ii) fundamental rights as general principles of Union law, reflected also in the EU Charter of Fundamental Rights (Article 6 TEU); and (iii) functional principles and rules relating above all to the internal market and the area of freedom, security and justice. While the first two categories are to be found in most national constitutions as well, the third category is peculiar to EU primary law and may be referred to as ‘substantive democracy’. This phenomenon has, in fact, been seen as a threat to democracy on the grounds that issues such as ‘free competition v state intervention’ should be settled via the democratic

53

See, eg J Elster (ed), Deliberative Democracy (Cambridge, Cambridge University Press, 1998). S Mazey and J Richardson, ‘The Commission and the Lobby’ in Spence, n 39 above, 279. See also the White Paper on European Governance (Office for Official Publications of the European Communities, 2001) and the Report on European Governance (2003) presented by the Commission. 55 See also ch 7(II) above, where reference is made to a tendency to seek consensus even when majority voting is allowed. 56 A Rosas, ‘EU Primary Law as Substantive Law’ in A Fischer-Lescano et al (eds), Frieden in Freiheit–Peace in Liberty–Paix en Liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden, Nomos Verlagsgesellschaft, 2008) 957. 54

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process not preordained by constitutional law of a more permanent character. On the other hand, such criticisms are often inextricably linked to divergent views on the substance itself. Those who blame the Union for advancing a ‘neo-liberal Europe’ and challenge its inclusion (via an emphasis on promoting competition) in primary law would like to see a ‘social Europe’, but many of them would like to see this reflected in the constitutional Bill of Rights and thus entrenched in the constitutional order itself.57 The impact of substantive democracy may be illustrated using a number of examples. The economic freedoms—the free movement of workers, the right to establishment, the free movement of goods, services and capital—are an obvious place to start. The principles were included in the Treaty as the very raison d’être of the Community when it was founded. However, their interpretation and application have evolved far beyond simply producing effects for cross-border movements. The basic acceptance of, for instance, Articles 34–36 TFEU on free movement of goods has led (logically) to not insignificant indirect effects for national legislative autonomy as regards regulating trade and commerce more generally, although it is true that the ECJ has stopped short of requiring full liberalisation of rules regulating the use or selling of goods and has recently sketched further limits to the principle of free movement, taken literally.58 The case law of the ECJ on so-called ‘golden shares’ provides another illustration of this principle. Faced with action in several Member States to retain for the state special rights or privileges in relation to (previously nationalised) commercial entities, the ECJ held that such measures would potentially discourage investors from other Member States from acquiring shares in that company and thus constituted restrictions on the right of establishment guaranteed by Article 49 TFEU and/or the free movement of capital protected by Article 63 TFEU.59 National perceptions of whether the privatisation of formerly nationalised industries should be allowed only within certain limits were overridden by the founding principles of free movement. To take an example from a ‘softer’ sector, Article 191 TFEU lays down several fundamental principles of Union environmental law. In particular, Article 191(2) provides that Union policy ‘shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union’. It shall also ‘be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluters should pay’. Thus, independently of the majority opinion in any Member State as to the extent of environmental protection that is necessary, the Union sets minimum standards which must be adhered to. This substantive primary law may even spill down, forcing consistent interpretations of secondary law.60

57 This was particulary noticeable in the French referendum campaign leading to the rejection of the Constitutional Treaty of 2004, ibid, 957 and ch 1 above, n 2. 58 A Rosas, ‘Dassonville and Cassis de Dijon: Evolution But No Revolution’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 433. See more generally M Poiares Maduro, We, the Court. The European Court of Justice and the European Economic Constitution: A Critical Reading of Article 30 of the EC Treaty (Oxford, Hart Publishing, 1998). 59 Rosas, n 56 above, 963. See also ch 13(II) below. 60 Ibid 965 and eg Case C-127/02 Waddenvereniging and Vogelsbeschermingvereiniging EU:C:2004:482.

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Are these and other similar provisions of primary law a threat to democracy? The answer is yes, if democracy means that the simple majority, expressed at any time on any decision, is always right. That is not, however, the definition adopted by any democratic contemporary constitutional order, far less the complex and evolving constitutional order that is the EU. On the contrary, substantive principles and rules with constitutional status may contribute to democratic legitimacy, provided that they are based on values which are generally accepted and are articulated in an open deliberative process in which political institutions, judges and civil society can take part. This is what we mean by substantive democracy: but it involves agreeing up-front what the Union is based on and what the integration process is for. Coming back to our original problem of whether a demos exists around which we can construct democracy, in a world, and especially in a Europe, of multilevel regimes and increasing mobility and multiple identities, the question of what population should form the basis for calculating a majority and a minority poses a problem not just to the EU. Should the over 40% of the Luxembourg population who are non-nationals be able to take part fully in the political life and decision making of that country (which is not the case today)? Should it be the majority of Scots or the majority of the whole UK population who decide on the status of Scotland, including, in the context of Brexit, whether Scotland should remain a part of the UK or whether is should accede to the EU in its own right? Should European elections, or amendments to EU primary law, be decided by a majority of the EU population taken as a whole or by a majority within each Member State (and, in the latter case, who is to be included in the population of a given Member State enjoying full political rights)? These and other challenges to traditional conceptions of democracy by simple majority rule speak in favour of a broader approach, including substantive norms enjoying general acceptability and providing direction and stability to society, but without abandoning the classic expressions of popular will through representative, participatory and deliberative democracy. However, it is only if and when the citizens themselves engage in this process that talk of a democratic deficit may be quelled.61

61

See Mény, n 15 above.

10 Civis Europeus Sum: The Evolving Concept of Union Citizenship I. General One of the features which distinguishes Union law from public international law is its focus on citizens and individuals as subjects of law endowed with a number of substantive and procedural rights and obligations. This aspect of Union law has already been considered in relation to the general nature of the EU and EU law, including the principle of direct effect, and will be further considered below, inter alia, in chapter sixteen on enforcement and remedies. In this chapter we shall discuss what Article 9 TEU and Article 20 TFEU term ‘citizenship of the Union’. This is a specific concept introduced by the Treaty of Maastricht which entails some rights, and even envisages the possibility of duties, for a certain category of persons which are additional to the rights and obligations following from the status of being a national of a Member State. All nationals of a Member State are, in principle, Union citizens; the concept is thus not dependent on the status of the individual concerned as an economically active person (such as a worker or a self-employed person). Nor is the concept in itself dependent on the exercise of free movement rights: some of the specific rights pertaining to Union citizenship, such as the right to submit citizens’ initiatives, considered in the preceding chapter (see section IV of chapter nine) have no connection whatsoever with the right to move. Putting citizens at the centre of the European construction is emblematic not only of the special nature of Union law but also of the move away from a purely economic integration organisation towards an all-encompassing ‘union of peoples’. This central role is illustrated by the characterisation in the case law of Union citizenship as the ‘fundamental status of nationals of the Member States’1 and the prominence of the concept in the Treaties, proclaimed as it is in the opening Article of Title II TEU ‘Provisions on Democratic Principles’. The remaining provisions in that title develop the idea of citizens as an integral part of the functioning of the Union (see chapter nine above), but the development of the concept of citizenship as such is to be found in Part Two of the TFEU. Article 20(2) TFEU lists the main rights attaching to the status of citizen of the Union. Most of these rights, listed already in the Treaty of Maastricht, are not new, but they are now gathered together and

1 This characterisation was first made in Case C-184/99 Grzelczyk EU:C:2001:458, para 31. See also ch 2(IV) above.

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are therefore more visible as the basis for the concept of citizenship. Further details on each of these rights are provided in Articles 21–25 TFEU. In addition, many of these rights are also expressed in Articles 39–46 of the Charter of Fundamental Rights.2 Article 21 TFEU lays down the basic right to move and reside freely in the Union. This right may be seen as the extension of the original Community right to free movement of economically active persons and, like that freedom, encompasses the right to be accompanied by family members even if the latter are third-country nationals. Article 18 TEC, the predecessor to Article 21 TFEU, was complemented by Directive 2004/38 on the right of Union citizens and their family members to move and reside.3 The Directive is also based on Articles 12, 40, 44 and 52 TEC (replaced by Articles 18, 46, 50 and 59 TFEU)—that is, the Treaty provisions relating to non-discrimination on grounds of nationality and the free movement of workers, self-employed persons and service providers. It sets out the ‘limitations and conditions’ on the right of free movement enshrined in Article 21 TFEU and forms the basis for the residence rights which Union citizens may invoke before the courts. Given the continued emphasis on free movement as embodying what the Union stands for, this right will be considered in greater detail below. Article 22 TFEU and Articles 39 and 40 of the Charter of Fundamental Rights provide for a right to vote and to stand as a candidate in municipal and European elections in the Member State in which the Union citizen resides. This right has been implemented by two Directives laying down detailed arrangements for the exercise of those electoral rights.4 As was pointed out in chapter nine, the ECJ has held that a Member State may extend the right to vote in the European elections to persons who are not citizens of the Union but on the condition that there are ‘close links’ between the voter and the Member State concerned. The Court has, on the other hand, accepted that Union citizens may be deprived of their right to vote if they reside outside the EU.5 Article 23 TFEU and Article 46 of the Charter of Fundamental Rights provide for a right to protection by diplomatic and consular authorities of any EU Member State in case the Union citizen finds himself in a third country in which his state of nationality is

2 On the rights of Union citizens see, eg M Condinanzi, A Lang and B Nascimbene, Citizenship of the Union and Freedom of Movement of Persons (Leiden, Martinus Nijhoff Publishers, 2008) ch 1; S Kadelbach, ‘Union Citizenship’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 443, 454 et seq; E Guild, S Peers and J Tomkin, The EU Citizenship Directive: A Commentary (Oxford, Oxford University Press, 2014); PJ Neuvonen, Equal Citizenship and Its Limits in EU Law: We the Burden? (Oxford, Hart Publishing, 2016). 3 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and amending a previous regulation and repealing several directives, [2004] OJ L158/77 and corrigendums, [2004] OJ L229/35, L197/34 and L204/28. 4 Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, [1994] OJ L368/38, as amended, [1996] OJ L122/14, [2006] OJ L363/409; Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, [1993] OJ L329/34, as amended, [2004] OJ L158/77. See also J Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (Cambridge, Cambridge University Press, 2007). 5 See ch 9(III) above.

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not represented. Two intergovernmental decisions of 1995 and 1996 regulated how this right functioned in practice.6 Prior to the entry into force of the Treaty of Lisbon, the implementation of this right lay within the exclusive competence of the Member States. Article 23(2) TFEU now authorises Union directives on coordination and cooperation measures, adopted by the Council acting in accordance with a special legislative procedure (voting by qualified majority after having consulted the European Parliament). A Directive to this effect was adopted in 2015, with a deadline for transposition expiring on 1 May 2018. Apart from regulating the modalities of cooperation between Member States’ diplomatic and consular authorities, there are some general rules on the role of Union delegations and the headquarters of the European External Action Service (EEAS).7 As mentioned in section IV of chapter nine with regard to democratic principles, Article 11(4) TEU introduces a new mechanism by which not less than one million citizens, comprising nationals from a significant number of Member States, may take the initiative of inviting the Commission to submit proposals on a matter where citizens consider that legislative action by the Union is required. The procedures and conditions for exercising the right to take citizens’ initiatives are governed by a regulation adopted under the ordinary legislative procedure (Article 24(1) TFEU).8 According to the Regulation, the signatories shall come from at least one quarter of Member States and shall, in each of these Member States, comprise at least a certain minimum number of citizens.9 Some citizens’ rights, such as the right to complain to the European Ombudsman and to petition the European Parliament (Articles 24, 227 and 228 TFEU) and the right of access to documents (Article 15(3) TFEU), are also open to natural or legal persons residing or having their registered office in a Member State: the (albeit minor) added value in being a Union citizen is that there is no requirement to show residence. Finally, there is one right mentioned in the Charter of Fundamental Rights (in the context of its Title V ‘Citizens’ Rights’) which does not even require residence, namely the right to good administration. According to Article 41(1) of the Charter, ‘[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’. This right includes the possibility for every person to write to the institutions in one of the languages of the Treaties and to have an answer in the same language (compare Article 24(4) TFEU, which restricts the latter right to Union citizens and omits to require the ‘reasonable’ timeframe imposed by the Charter).

6 Decision 95/553/EC of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations, [1995] OJ L314/73; Decision 96/409/CFSP of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996, on the establishment of an emergency travel document, [1996] OJ L168/4. See also the Communication from the Commission to the European Parliament and the Council on consular protection for EU citizens in third countries: State of play and way forward, COM(2011) 149 final, 23 March 2011. 7 Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC, [2915] OJ L106/1. The EEAS and Union delegations will be considered in ch 15(II) below. 8 Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative, [2011] OJ L65/1. See also M Dougan, ‘What Are We to Make of the Citizens’ Initiative?’ (2011) 48 Common Market Law Review 1807. See further ch 9(IV) above. 9 See Art 7 and Annex I, which sets out the minimum numbers required for each Member State.

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It is also worth mentioning that, in the context of the Area on Freedom, Security and J ustice, and notably with respect to judicial cooperation in civil matters, a number of legal acts have been adopted with a view to facilitating free movement of citizens by providing for mutual recognition of decisions and documents, including a recent Regulation simplifying the requirements for presenting certain public documents.10 These developments will be considered in greater detail in chapter twelve.

II. Pie in the Sky? Taking into account the controversies surrounding its introduction and the limited number of rights specifically attached to this concept, it was held by many that the concept of Union citizenship constituted only a modest step or even an empty gesture.11 The controversial nature of the new concept was reflected in a decision of the heads of state and government, adopted at the European Council of December 1992 as part of the efforts to convince the Danish people to accept the Treaty of Maastricht of 1992 in a second referendum. That decision stated that Union citizenship complements and does not replace national citizenship and that the question of whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned.12 The latter part of the decision formed the basis for a Declaration annexed to the Maastricht Final Act13 while the first part was later included in Article 17(1) TEC, according to which Union citizenship ‘shall complement and not replace national citizenship’. Yet it was difficult to view provisions spelling out specific rights and included in the EC Treaty as empty gestures or mere declarations of political will. On the contrary, the new provisions were seen as one of the many indicators of a move away from a common market for economic operators to a broader internal market of citizens. The Court therefore took these rights just as seriously as those pertaining to the free movement of workers (Article 39 EC), self-employed persons (Article 43 EC) and service providers (Article 49 EC). Space does not allow us to give a full account of the development of the Court’s case law in this respect. However, an Opinion delivered by Advocate General Jacobs in December 1992 (thus before the entry into force of the Treaty of Maastricht) does merit some mention. While his Opinion concerned a case of free movement of economically active persons

10 Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012, [2016] OJ L200/1. 11 See, eg HUJ D’Oliveira, ‘Union Citizenship: Pie in the Sky?’ in A Rosas and E Antola (eds), A Citizens’ Europe: In Search of a New Order (London, Sage Publications, 1995) 58. 12 European Council in Edinburgh, 11–12 December 1992, Conclusions of the Presidency, Part B (Denmark and the Treaty on European Union), annex 1. 13 Declaration No 2 on Nationality of a Member State, [1992] OJ C191/98. In Case C-135/08 Rottmann EU:C:2010:104, para 40, the ECJ held that the Decision of the heads of state and government and the Declaration should be taken into account in the interpretation of the Treaty.

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and was framed very much within the confines of that category of person, the following lines may be seen as somewhat prophetic of future developments:14 In my opinion, a Community national who goes to another Member State as a worker or self-employed person … is entitled not just to pursue his trade or profession and to enjoy the same living conditions as nationals of the host State; he is in addition entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say “civis europaeus sum” and to invoke that status in order to oppose any violation of his fundamental rights.

The Court did not follow the Advocate General in that case.15 Subsequent case law has however moved in the direction set out by him, although, as will be explained below, Union law still does not catch all violations of human rights committed in the host Member State. And the Treaty of Maastricht, through Article 8a TEC (later to become Article 18 TEC and then Article 21 TFEU), made it clear that the right of nationals of Member States to move and reside freely in the Union applied to everybody, not just economically active persons. It took some years before the ECJ had occasion to draw the necessary conclusions from those developments in primary law. The first important judgment, Martínez Sala, was delivered in 1998, in a case concerning the refusal of a host state to grant to a claimant lawfully residing on its territory a social benefit that was provided to its own nationals.16 This was followed, inter alia, by judgments declaring that the status of Union citizenship ‘is destined to be the fundamental status of nationals of the Member States’,17 that Article 18 TEC on free movement rights (now Article 21 TFEU) has direct effect—in other words, it can be invoked directly by the individual concerned before courts and authorities18—and that Article 20 TFEU precludes national measures which ‘deprive citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’, including in a situation where the Union citizen in question had never exercised his or her right to move outside the Member State of which he is a national.19

14 Opinion of 9 December 1992, para 46, in Case C-168/91 Konstantinidis EU:C:1993:115. See also the Opinion of Advocate General Poiares Maduro of 12 September 2007, para 16, in Case C-380/05 Centro Europa EU:C:2007:505. 15 It should be emphasised that the Advocate General was proposing a right to invoke Community law, including Community fundamental rights, in order to oppose ‘any’ violation of human rights encountered in another EU country, ie even if the violation did not fall within a situation covered by Community law. This, of course, was without prejudice to the right to invoke the European Convention on Human Rights directly in any Member State in its capacity as a Contracting Party to this Convention, independently of Community law and Community fundamental rights. 16 Case C-85/96 Martínez Sala EU:C:1998:217. The ECJ held that the individual concerned, in her capacity as a Union citizen and thus independently of the question whether she was a worker or a self employed person, could invoke what was to become Art 12 TEC (non-discrimination on grounds of nationality). See also Á Castro Liveira, ‘Workers and Other Persons: Step-By-Step from Movement to Citizenship’ (2002) 39 Common Market Law Review 77 and the contributions by C Timmermans, J Shaw, AJ Menéndez and C Closa Montero relating to the Cases of Martínez Sala and C-413/99 Baumbast (see below) in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 343 et seq. 17 Case C-184/99 Grzelczyk, n 1 above, para 31. 18 Case C-413/99 Baumbast EU:C:2002:493. 19 Case C-34/09 Ruiz Zambrano EU:C:2011:124, para 42; Case C-434/09 McCarthy EU:C:2011:277, para 47.

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The Treaty of Lisbon marks a new stage in the evolution of the concept of citizenship of the Union. The inclusion of the concept in the TEU as the opening gambit of a title headed up ‘Democratic Principles’ (Article 9) in addition to the functional provisions in the TFEU (Article 21) is symbolic, and the nuance in its definition may also be interpreted as speaking volumes: Union citizenship shall ‘be additional to’ national citizenship. The new expression appears to put less emphasis on the subsidiary character of Union citizenship (the original text read that Union citizenship ‘complemented’ national status). More importantly, the concept also appears in Article 3(2) and (5) TEU, which provide that the area of freedom, security and justice is offered by the Union to ‘its citizens’ and that the Union in its relations with the wider world shall uphold and promote its values and interests and ‘contribute to the protection of its citizens’.

III. Who is a Union Citizen? According to Articles 9 TEU and 20 TFEU, a citizen of the Union is ‘[e]very person holding the nationality of a Member State’. This, combined with the principle stated in the above Declaration of 1992 that it is up to the national law of each Member State to regulate questions of nationality (national citizenship), would appear to provide an exhaustive definition of the concept rationae personae. Yet the case law of the ECJ demonstrates that there may still be room for some question marks concerning the relationship between Union law and national law in this respect. Four points in particular are worth noting. First of all, the Court has confirmed a line of case law which predates the entry into force of the Treaty of Maastricht: that a Member State may not put into question the solutions provided by the nationality laws of another Member State. The former may thus not deny the status of, and the effects following from, Union citizenship for an individual who, according to the law of another Member State, possesses its nationality, even if it considers that the legislation of that State is too generous.20 Secondly, according to the Declaration of 1992, a Member State may, on the other hand, declare who of its nationals are to be considered as such for Union purposes. This possibility, which has been confirmed by the ECJ,21 is particularly relevant with regard to the UK in view of the different categories and concepts of citizenship which exist in this Member State as a result of its colonial past.22 It may imply that the personal scope of Union citizenship does not extend as far as that of national citizenship in a broad sense. In other words, all Union citizens are nationals of a Member State, but not all nationals of the Member States are necessarily Union citizens. It will also be recalled in this context that the ECJ has

20

Case C-369/90 Micheletti EU:C:1992:295; Case C-200/02 Zhu and Chen EU:C:2004:639. In Case C-192/99 Kaur EU:C:2001:106, the ECJ stated that the UK unilateral declaration ‘must be taken into consideration as an instrument relating to the Treaty for the purpose of its interpretation and, more particularly, for determining the scope of the Treaty rationae personae’ (para 24). 22 According to the British Nationality Act of 1981 discussed in Kaur, the UK distinguished between British Citizens, British Dependent Territories Citizens and British Overseas Citizens. Persons in the third category in particular, who have no right of abode and may be refused immigration rights, were excluded from the concept of nationality for the purposes of acquiring Union citizenship. 21

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accepted that Union citizens who are not residing in the Union may on certain conditions be deprived of their electoral rights in European elections; in this case, it is not a question of depriving anyone of the status of Union citizen but of excluding the exercise, under certain conditions, of a specific right pertaining thereto.23 Thirdly, the ECJ has on the other hand stated repeatedly, and for the first time in a judgment preceding the entry into force of the Treaty of Maastricht, that rules and decisions on nationality have to be adopted ‘having due regard to Community law’.24 This caveat may imply that there are some limits to the Member State’s discretion in either excluding people from the scope of Union citizenship or including categories of people whose link to the Member State concerned may be tenuous. Indeed, if the approach taken by the ECJ in a case concerning electoral rights in European elections, namely that there be ‘close links’ between the state and the individuals concerned, is applied by analogy as a condition for including them in the category of Union citizens, the inclusion of such broader categories of citizenship may be problematic from the point of view of Union law.25 Fourthly, it has remained an open question whether, and to what extent, the caveat concerning ‘due regard to Community law’ affects the right of a Member State to deprive someone who is its national of this status if the consequence is deprivation of the status of Union citizenship as well. Contrast the above case relating to the UK unilateral declarations on the concept of nationality for Community law purposes, in which the ECJ emphasised that such declarations do not have the effect of depriving the persons concerned of rights to which they have been entitled under Community law but, rather, have as a consequence that ‘such rights never arose in the first place’,26 with the judgment in Rottman, in which the Court ruled on a situation where the withdrawal of nationality granted by way of naturalisation (in Germany) resulted in a person, who previously had possessed by birth the nationality of another Member State (Austria) but had lost that status as a result of the said German decision on naturalisation, becoming ‘stateless’ and thus deprived of his Union citizenship.27 The Court held that the matter came under Union law by the simple fact that the person concerned had been deprived of his status as a Union citizen, to which certain specific rights pertain. While, according to the Court, it is, in principle, legitimate for a Member State to withdraw nationality granted by way of naturalisation if the acquisition of nationality was based on deception practised by the person concerned, the Court held that ‘the importance which primary law attaches to the status of citizen of the Union’ requires that, when examining a decision withdrawing naturalisation, it is necessary to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family ‘with regard to the loss of the rights enjoyed by every citizen of the Union’.28

23

Case C-300/04 Eman and Sevinger EU:C:2006:545. See also ch 9(III) above, n 20. Case C-369/90 Micheletti, n 20 above, para 10; Case C-179/98 Mesbah EU:C:1999:549, para 29; Case C-192/99 Kaur, n 21 above, para 19; Case C-200/02 Zhu and Chen, n 20 above, para 37; Case C-135/08 Rottmann, n 13 above, para 45. 25 Case 145/04 Spain v UK EU:C:2006:543, para 78. See also ch 9(III) above, n 19. 26 Case C-192/99 Kaur, n 21 above, para 25. 27 Case C-135/08 Rottmann, n 13 above. 28 Ibid, para 56. 24

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IV. The Right to Move and to Reside The right to move and reside freely within the Union is probably the right which will most often affect the daily lives of its citizens. Those who wish to move may see it as a great b enefit while those who stay put may perceive it as a threat. It is widely held that the majority that voted in favour of the UK’s exit from the Union did so out of concerns related to free movement, and this despite the concessions that the UK had managed to obtain from the EU in February 2016, including certain restrictions on free movement.29 Free movement is also (or perhaps as a result) the right which has given rise to the most extensive case law of the ECJ. Indeed, even before the introduction of Union citizenship, the Court had begun to develop a line of case law which appeared to push the original right of economically active persons to its limits: freedom to provide services under Article 49 EC was held to apply to service receivers (beneficiaries) as well.30 Perhaps in response to this case law and a growing awareness that a true internal market, defined as an area without internal frontiers in which the free movement of goods, persons and capital is ensured, extends beyond economic operators to consumers and persons in general, secondary law, notably via three Directives adopted in 1990,31 began by recognising the rights of certain categories of persons who were not or no longer economically active. The Court had already drawn the logical conclusion in applying the freedom to receive services to tourists,32 and from there it does not seem such a big step to acknowledge a more general right to freedom of movement pertaining to all Union citizens. Yet it must be noted that these directives were based on what is now Article 352 TFEU: a clear indication that free movement was progressing beyond the original economic freedoms. That said, the origins of the right remain important and, even after the introduction of Union citizenship, the right to work and to provide and receive services has continued to play a certain role in the case law of the Court as a guarantee for the right to move or reside.33 As noted above, the treaty drafters were at great pains to avoid giving the impression of an absolute right: every citizen of the Union therefore has the right to move and reside freely within the territory of the Member States, ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’ (Article 21(1) TFEU). As an aside, it is true that only the first part of this provision is reproduced in Article 45(1) of the Charter of Fundamental Rights. While this does not imply that there 29 On the debate leading up to the referendum of June 2016 see P Craig, ‘Brexit: A Drama in Six Acts’ (2016) 41 European Law Review 447. On the Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union of 19 February 2016 (which became moot with the result of the referendum), see ch 1 above. 30 Joined Cases 286/82 and 26/83 Luisi and Carbone EU:C:1984:35. 31 Council Directive 90/364/EEC of 28 June 1990 on the right of residence, [1990] OJ L180/26, Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupation activity, [1990] OJ L180/28, and Council Directive 90/366/EEC replaced by Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students, [1993] OJ L317/59. 32 Case 186/87 Cowan EU:C:1989:47. See also A Evans, ‘Union Citizenship and the Equality Principle’ in Rosas and Antola, n 11 above, 85, 95. 33 In Case C-60/00 Carpenter EU:C:2002:434, freedom to provide services was applied in a case concerning the right to reside in the UK of a third-country national married to a Union citizen who provided services in other Member States but resided in the UK. The right to work in another Member State under Article 45 TFEU was at issue eg in Case C-457/12 S and G EU:C:2014:136.

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may be no limitations or conditions, it is a clear indication that the right to move and reside is a fundamental right to be taken seriously and that the essence of the right cannot be thwarted by far-reaching limitations and conditions.34 In the interests of clarity and in an attempt to draw together the many threads teased out as a result of the evolution of the right to move and reside, a so-called ‘re-cast Directive’ was adopted in 2004. Directive 2004/38 purports to implement what is now Article 21 TFEU and codify the right to move and reside freely by laying down common rules for all Union citizens, albeit with some specific rules applying only to economically active persons. The basic rule is that all Union citizens have a right of entry, as well as a right of residence for up to three months, without any conditions or formalities other than the requirement to hold a valid identity card or passport.35 Beyond that period, it was agreed that persons exercising their right of residence should not become an unreasonable burden on the social assistance system of the host Member State. The most important limitation imposed by the Directive is therefore the requirement that economically non-active citizens who wish to stay in the host state for more than three months must ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host state during their period of residence and have comprehensive sickness insurance cover in the host Member State’ (Article 7(1)(b)). These conditions are somewhat less if the person concerned is enrolled at an establishment for the principal purpose of following a course of study, including vocational training. In line with the origins of the right to reside, there are no such conditions for workers or self-employed persons (Article 7(1)(a)). And, in line with the case law on job-seekers, the rule is that such persons may not be expelled after the three-month period if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’.36 More interestingly, the Directive recognised that a right of permanent residence would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union (Article 3(3), third paragraph TEU). Rather than a simple codification, the Directive therefore re-casts existing legislation and lays down a right of permanent residence for all Union citizens who have resided legally in the host Member State for a continuous period of five years (Article 16). What is more, the right of permanent residence, once obtained, is not subject to any conditions. While it is not possible in this context to describe in detail all the rules concerning the right to stay, which continue to vary somewhat depending on the status of the person concerned, one final point may be made in relation to extinguishing that right. In general, the threshold for expelling Union citizens or members of their family is high, especially 34 According to Art 52(2) of the Charter, rights recognised therein for which provision is also made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 35 And according to Art 5(4) of Directive 2004/38, if the Union citizen or the family member does not have the necessary documents, they should be given a reasonable opportunity to prove that they are covered by the right of free movement and residence before they are turned back. 36 Art 14(4)(b) of Directive 2004/38. The 9th recital of the Directive states that the maximum period of three months ‘is without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice’ and the 16th recital refers to ‘job-seekers as defined by the Court of Justice’. This is a reference above all to Case C-292/89 Antonissen EU:C:1991:80, para 21. See also, eg Case C-138/02 Collins EU:C:2004:172.

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if they have acquired the right of permanent residence.37 In particular, an expulsion measure shall not be the automatic consequence of recourse to the social assistance system of the host state.38 And a prohibition on leaving the Member State of nationality (as a result of a criminal conviction) is subject to strict conditions.39 In other words, a person’s status as a citizen of the Union leads to an even more vigilant application of the principle that derogations from the rules on free movement must be interpreted strictly.40 These limitations on the right of a Member State to expel a Union citizen do not apply to the surrender of suspected or convicted persons on the basis of the Framework Decision on the European arrest warrant, which provides for an obligation, under certain conditions, to surrender such persons to another Member State.41 Extradition of a Union citizen to a third country, however, is subject to limitations.42 The stated purpose of Directive 2004/38 was to simplify and strengthen the right of free movement and residence of all Union citizens by enacting a single piece of legislation covering all citizens (although, due undoubtedly to the special nature of that type of act, the Directive did not entirely replace Regulation 1612/68 on freedom of movement for workers within the Community),43 and it must surely be seen as a positive development by those persons seeking to understand the extent of their right. That said, the right to move does not exist in a vacuum, and the fact of residing in a state that is not one’s own entails all manner of practical consequences. It cannot therefore be said that Directive 2004/38 constitutes an exhaustive set of rules. Some situations continue to be governed either by primary law or by other acts of secondary law. For example, entry into the territory of a Member State of a person coming from a third country is not as such governed by the rules in the Directive. Of course, moving between the Member States is no longer an issue of ‘entry’ as such. Moreover, the so-called Schengen regime provides for the absence of border controls of persons crossing the internal borders of the Schengen area.44 However, it should be noted that that area does not include Ireland and the UK, and is not yet applicable to Bulgaria, Croatia, Cyprus or Romania. On the other hand, it does include four states which are not members of the EU (Iceland, Liechtenstein, Norway and Switzerland).45 37

Chapter VI (Arts 27–33) of Directive 2004/38. Art 14(3) of Directive 2004/38. 39 Case C-430/10 Gaydarov EU:C:2011:749 and Case C-434/10 Aladzhov EU:C:2011:750. 40 See, eg Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri EU:C:2004:262, para 65; Case C-145/09 Tsakouridis EU:C:2010:708; Case C-348/09 I EU:C:2012:300; Case C-193/16 E EU:C:2017:542. 41 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ L190/1, as amended (2009/299/JHA, [2009] OJ L81/24). See also ch 12(IV). 42 According to a recent judgment, a Member State to which a Union citizen, national of another Member State, has moved, which has received an extradition request from a third country, must inform the other Member State of the extradition request and should that Member State issue a European arrest warrant for the transfer of the person concerned, priority must be given to the arrest warrant, provided that the Member State that issued the warrant has jurisdiction, pursuant to its national law, to prosecute the person in question for offences committed outside its territory (in this case the third country). Case C-182/15 Petruhhin EU:C:2016:630. 43 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, [1968] OJ L257/2. That Regulation has now been replaced by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, [2011] OJ L141/1, which merely constitutes a codification of the earlier Regulation with amendments. See also Condinanzi, Lang and Nascimbene, n 2 above, 65 et seq. 44 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), [2006] OJ L105/1. On the Schengen regime see ch 12(II) below. 45 See further ch 8(II) above. 38

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In addition, the specific rules on free movement of workers continue to apply and an important feature of this freedom has always been the coordination of the various national social security schemes. This set of social security rules is too complex to be analysed further here, but Regulation 883/2004 will continue to constitute a key element in rendering practicable in real life the right to free movement of citizens of the Union.46 Finally, it goes without saying that primary law continues to apply and that secondary law cannot purport to alter the effect of that higher category of rules.47 The Court will continue to apply the principles inherent in the economic freedoms if it is a question of a worker, self-employed person or service provider/recipient, and there is no reason to suppose that the extensive case law built up to date will not continue to inform the judgments of the Court in the future. Union citizens lawfully residing in the territory of the host state shall therefore, as a rule, enjoy equal treatment with the nationals of that Member State in relation to matters which are within the scope of Union law. The only exceptions expressly foreseen in Directive 2004/38 itself are in line with that case law: the host state shall not be obliged to confer entitlement to social assistance during the first three months of residence (or, in the case of job-seekers, for the longer period that they are able to remain in that state), nor will the host state be obliged to grant maintenance aid for studies consisting of student grants or loans to economically non-active citizens who have not yet acquired the right of permanent residence.48 Nevertheless, issues of social security and social assistance are no longer necessarily linked to the status of worker or other economically active persons. Thus, there may, under certain circumstances, be an obligation to grant social assistance to persons remaining in the host state after the period of three months has expired on the basis of the rules on free movement contained in primary law (notably Articles 18 and 21 TFEU) coupled with the right to minimum protection as a fundamental social right.49 Job-seekers may enjoy an enhanced right to benefits intended to facilitate access to employment which are not to be regarded as constituting social assistance in the strict sense.50 And if economically non-active persons do not have sufficient resources as required by Directive 2004/38 and become dependent on the social assistance system of the host state, while expulsion is not categorically excluded, it cannot be an automatic consequence of such dependence.51 That said, the status of economically non-active persons remains precarious: the Court has recently accepted the thesis defended by many Member States that such persons,

46 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L166/1. The Regulation only became applicable on 1 May 2010 when an implementing regulation (Regulation (EC) No 987/2009, [2009] OJ L284/1) entered into force. 47 See ch 5 above. 48 Art 24 of Directive 2004/38. In Case C-158/07 Förster EU:C:2008:630, the ECJ upheld the right of a Member State to require five years of residence as a condition for a student maintenance aid, ie the same period which according to Art 16 of Directive 2004/38 (which was not formally applicable to the facts in Förster) gives rise to the right of permanent residence. See also Case C-209/03 Bidar EU:C:2005:169, para 57, where the Court stated that it is legitimate for the host state to limit maintenance aid to students who have ‘demonstrated a certain degree of integration’ into the society of that State. The right to limit access to universities is another matter, see n 56 below. 49 In Case C-456/02 Trojani EU:C:2004:488, the ECJ held that, with regard to social assistance benefits, a Union citizen could rely on Art 12 TEC (replaced by Art 18 TFEU) if he ‘has been lawfully resident in the host Member State for a certain time or possesses a resident permit’ (para 43). See also Art 34 of the Charter of Fundamental Rights. 50 Joined Cases C-22/08 and C-23/08 Vatsouras EU:C:2009:344. See also Cases C-224/98 D’Hoop EU:C:2002:432; C-138/02 Collins, n 36 above; C-258/04 Ioannidis EU:C:2005:559. 51 See, eg Case C-184/99 Grzelczyk, n 1 above, paras 42–43; Case C-456/02 Trojani, n 49 above, para 45.

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if they lack sufficient resources, cannot claim benefits under Regulation 883/2004 on the coordination of social security systems if they do not have a right of residence by virtue of Directive 2004/38.52 This case law has been criticised for neglecting the core principles of Union citizenship.53 We suggest that it is rather a reflection of the limitations on the right to reside contained in Directive 2004/38, as authorised under Article 21(1) TFEU, combined with the fact that Regulation 883/2004 is not an instrument to harmonise social security systems but is simply about coordination and avoiding conflicts of law. The case law of the ECJ recognises a host of issues which may be caught by the free movement rules. The practical effect of these rules owes its breadth to the approach of the Court as regards the material scope (rationae materiae) of Union law: a situation must fall within the scope of Union law in order to be subject to its rules, and the Court has held that the mere fact of exercising the right to move satisfies this test.54 As a result, a number of issues not obviously connected to free movement have been dealt with in the Court’s case law relating to Article 21 TFEU, including: (i) social benefits, as already explained above; (ii) taxation;55 (iii) access to university education;56 (iv) education and training grants and loans;57 (v) fees paid to private schools;58 (vi) language rights in criminal proceedings;59 (vii) the right to a family name;60 (viii) data protection;61 (ix) the right to vote in elections to the European Parliament.62 It should be noted that, while most of these cases involved the Court holding that Union citizens could not be denied equal treatment with nationals (or residents) of the host state, 52 Case C-140/12 Brey EU:C:2013:565; Case C-333/13 Dano EU:C:2014:2358; Case C-308/14 Commission v United Kingdom EU:C:2016:436. 53 See, in particular, C O’Brien, ‘The ECJ Sacrifices EU Citizenship in Vain: Commission v United Kingdom’ (2017) 54 Common Market Law Review 209. 54 See, eg Case C-274/96 Bickel and Franz EU:C:1998:563, paras 15–16; Case C-184/99 Grzelczyk, n 1 above, para 33; Case C-148/02 Garcia Avello EU:C:2003:539, paras 22–23; Case C-209/03 Bidar, n 48 above, para 33; Case C-403/03 Schempp EU:C:2005:446, para 18. The quotation is from the judgment in Bidar. See also the Opinion of Advocate General Kokott of 30 March 2006, paras 25–43, in Case C-192/05 Tas-Hagen and Tas EU:C:2006:223. 55 See, eg Case C-403/03 Schempp, n 54 above; Case C-76/05 Schwarz and Gootjes-Schwarz EU:C:2007:492. 56 Limitations on access can only be accepted in exceptional circumstances and under strict conditions, see notably Case C-147/03 Commission v Austria EU:C:2005:427 and Case C-73/08 Bressol and Others and Chaverot and Others EU:C:2010:181. 57 Case C-209/03 Bidar, n 48 above; Case C-158/07 Förster, n 48 above; Joined Cases C-11/06 and C-12/06 Morgan and Bucher EU:C:2007:626; Case C-585/11 Prinz and Seeberger EU:C:2013:524; Case C-275/12 Elrick EU:C:2013:684. 58 Case C-76/05 Schwarz and Gootjes-Schwarz, n 55 above. 59 Case C-274/96 Bickel and Franz, n 54 above. 60 Case C-148/02 Garcia Avello, n 54 above; Case C-353/06 Grunkin and Paul EU:C:2008:559. Not all inconveniences resulting from the fact that a Union citizen has somewhat different family names in different Member States will be held to constitute restrictions, however, and some restrictions may be considered as justified, Case C-208/09 Sayn Wittgenstein EU:C:2010:806; Case C-391/09 Runevič-Vardyn EU:C:2011:291; Case C-438/14 Bogendorff von Wolffersdorff EU:C:2016:401. 61 Case C-524/06 Huber EU:C:2008:724. 62 Case C-650/13 Delvigne EU:C:2015:648, paras 24–34.

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the issue is not necessarily one of discrimination on grounds of nationality: Union citizens who have used the right to move are also allowed to invoke that status, for instance, when returning to their ‘home’ state if they are disadvantaged in comparison with other nationals (or residents) who did not exercise their free movement rights.63 Differences in treatment may be seen as restrictions or obstacles to the right of free movement enshrined in primary law even if the difference is not grounded in nationality. And, as the family name cases illustrate, if a Union citizen’s situation is different from that of other nationals or residents of a host state, treating the former in the same way as the others may also become an undue restriction on free movement rights (on the basis that discrimination may result not only from treating similar situations differently but also from treating persons in d ifferent s ituations in the same way). Even the right of re-entry into the territory of the state of nationality may be governed by Union law,64 and a Union citizen who travels from a third country to a Member State other than his state of nationality can rely on his Union law rights even if he has never been in his country of nationality.65 In Ruiz Zambrano, the Court even identified the right of a third country national to reside in the Member State of which his children were nationals and thus also Union citizens (who in that capacity, of course, had a right of residence) despite the fact that the children had never left the territory of that state and had thus never exercised any right to freedom of movement. The Court founded its decision not on Article 21 TFEU (right to move and to reside) and Directive 2004/38 (which is only applicable in cross-border situations)66 but on Article 20 TFEU (which defines citizenship and lists the main rights pertaining thereto).67 It considered that expelling the father would in practice force also the children to leave the territory of the Union. In those circumstances, the children ‘would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union’ (including rights other than the right to move and reside), independently of whether they had moved from one Member State to another and also in relation to their own state of nationality.68 Those same principles have been applied to a situation where one of the parents is a national of the host State but is deemed unable to take care of the child, who is dependent on the other, third-country national, parent. The best interests of the child take precedence when assessing the denial of the right of residence of that parent.69 However, it appears that the Court has declined the invitation of Advocate General Sharpston, extended in her Opinion in the Ruiz Zambrano case, to interpret Articles 20 and 63 Case C-281/98 Angonese EU:C:2000:296; Case C-224/98 D’Hoop, n 50 above; Case C-224/02 Pusa EU:C:2004:273; Case C-365/02 Lindfors EU:C:2004:449; Case C-403/03 Schempp, n 54 above; Case C-406/04 De Cuyper EU:C:2006:491; Case C-76/05 Schwarz and Gooties-Schwarz, n 55 above; Case C-202/13 McCarthy EU:C:2014:2450. Art 45 TFEU on free movement of workers can also be invoked in the home state of the worker, Case C-227/03 van Pommeren-Bourgondiën EU:C:2005:431; Case C-152/03 Ritter-Coulais EU:C:2006:123. 64 In Case C-291/05 Eind EU:C:2007:771, the Court held that a Union citizen who had gone to another Member State to work could rely not only on the national Constitution but also his Community law rights (in this case the then Art 39 TEC) in order to obtain entry into his country of nationality. These rights included the right of his child, a third-country national who had stayed with her father in the country of work, to enter and reside in the country of nationality to which he returned. 65 Case C-138/02 Collins, n 36 above. 66 Case C-202/13 McCarthy, n 63 above, para 29; Case C-456/12 O and B EU:C:2014:135, paras 42–43. 67 Case C-34/09 Ruiz Zambrano, n 19 above. 68 Case C-34/09 Ruiz Zambrano, n 19 above, paras 44–45. 69 Case C-133/15 Chavez-Vilchez and Others EU:C:2017:354. See also Cases C-165/14 Rendón Marin EU:C:2016:675 and C-304/14 CS EU:C:2016:674.

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21 TFEU as conferring a free-standing right of residence, independent of the right to move and the exercise of that right: thus it seems that in situations lacking any cross-border link, Article 20 TFEU will only come into play if the national measure causes the loss, de facto, of the ability to invoke the status of Union citizen.70 What is more, the threshold for what will constitute de facto loss of enjoyment of that status seems to have been set rather high.71 Without going further into the question of family members who are third-country nationals, it should be noted that in Metock the Court, explicitly reversing an older judgment,72 held that Union citizens who had gone to another Member State to work had a right to oppose expulsion of their spouses even if the latter had not followed them from the sending state but had married them in the country of work to which the spouses had come directly from their third country of nationality.73 And in O and B, the Court, while holding that Directive 2004/38 is not, as such, applicable to the entry of a Union citizen in the Member State of which he is a national, and is thus not intended to confer a derived right of residence on third-country nationals who are family members of such a Union citizen, nevertheless concluded that such a derived right can be based on Article 21 TFEU and on an application of Directive 2004/38 by analogy.74

V. From Movement to Citizenship and Beyond What then is the real significance of the status of Civis Europeus? It is by now obvious that the concept of Union citizenship is not ‘pie in the sky’. The case law of the ECJ, the developments of secondary law and, last but not least, the provisions of the TEU, the TFEU and the Charter of Fundamental Rights, as amended by the Treaty of Lisbon, attest to the fact that it has become one of the cornerstones of the Union constitutional order and creates tangible benefits in the here and now. That said, many question marks and reservations remain. It may be asked, first of all, whether the ECJ has gradually adopted the approach proposed by Advocate General Jacobs in 1992, namely that Union citizens who move to another Member State can invoke their Union law rights in relation to ‘any’ violation of their human rights.75 Secondly, dissociating the status of citizenship from the issue of free movement leads to the question whether Union citizens can rely fully on Article 21 TFEU in relation to their state of nationality. The answer to the first question seems to be that the Court has not gone that far.76 While it is true that moving to another Member State suffices to bring a situation within the scope of Union law, all the rules and practices of the host state do not necessarily become unlawful 70 Case C-434/09 McCarthy, n 19 above; Case C-256/11 Dereci EU:C:2011:734; Joined Cases C-356/11 and C-357/11 O and Others EU:C:2012:776. See also K Lenaerts, ‘Civis Europaeus Sum: From Cross-border Link to the Status of Citizen of the Union’ in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System (Oxford, Hart Publishing, 2012) 213. 71 Case C-256/11 Dereci, n 70 above, paras 63–68. 72 Case C-109/01 Akrich EU:C:2003:491. 73 Case C-127/08 Metock EU:C:2008:449. 74 Case C-456/12 O and B, n 66 above. 75 See at n 14 above. 76 See also the Opinion of Advocate General Poiares Maduro of 12 September 2007, para 16, in Case C-380/05 Centro Europa, n 14 above.

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restrictions caught by Union freedoms. With respect to alleged violations of human rights, in particular, they will not always affect free movement rights to such a degree that they become unlawful under Union law. Legislation and practice may vary from one M ember State to another, and Union citizens do not, as a general rule, have the right to invoke something akin to the Cassis de Dijon principle applying to free movement of goods, in other words, a right to require in the host state the application to them of exactly the same conditions that were applied in the Member State of nationality or last residence.77 On the other hand, the family name cases mentioned above demonstrate that refusal of the host state to do so may under certain circumstances constitute an unlawful restriction of that Union law right to move. As to the possibility of invoking Union citizenship against one’s own Member State, the ECJ has already recognised such a right if the individuals concerned have used their free movement rights and allege that they are ‘penalised’ as a result. The judgment in Carpenter seems to suggest that this may also apply to a service provider, independently of whether he has actually visited the Member States of the service recipients.78 The Court has not yet been called upon to rule whether a Union citizen can invoke Article 21 TFEU on the ground that he is treated unfavourably because he has not moved to another country, arguing that freedom of residence must include the right to stay in one’s own country. Such claims, although interesting, could at any rate probably be better raised under national constitutional provisions. On the other hand the Court has acknowledged that, exceptionally, a Union citizen who has never exercised his freedom of movement within the EU may rely on the TFEU if a national measure ‘deprives’ him of the ‘genuine enjoyment of the substance of the rights conferred by virtue of Union citizenship’ and the Court has stated that a Union citizen who has not made use of the right to freedom of movement ‘cannot, for that reason alone, be assimilated to a purely internal situation’.79 While these developments in written law and case law are important, especially for the right to move and reside, it is obvious, particularly from a political and sociological point of view, that Union citizenship has not acquired the same status as nationality (citizenship) of the Member States.80 Doubts persist as to the existence of a European demos, a European political space or a shared sense of belonging to what we call ‘Europe’.81 This is evident, inter alia, from the limitations to the right of movement contained in secondary law, as interpreted by the ECJ, in particular concerning the status of economically non-active EU citizens.82 The political sensitivities surrounding free movement have been brought into sharp relief by the Brexit debate as well as nationalistic tendencies in some other Member

77 See ch 13(II) below and A Rosas, ‘Life after Dassonville and Cassis: Evolution But No Revolution’ in Poiares Maduro and Azoulai, n 16 above, 431, 438. 78 Case C-60/00 Carpenter, n 33 above. 79 Case C-434/09 McCarthy, n 19 above, para 46; Case C-256/11 Dereci, n 70 above, para 61. 80 S Currie, ‘The Transformation of Union Citizenship’ in M Dougan and S Currie (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Oxford, Hart Publishing, 2009) 365, observes that ‘Union citizenship has been proven to be one of the dynamic facets of Community law in recent years’. 81 See, eg K Tuori, ‘The Many Senses of European Citizenship’ in K Nuotio (ed), Europe in Search of ‘Meaning and Purpose’ (Helsinki, Publications of the Faculty of Law of the University of Helsinki, 2004) 51; M Goodwin, ‘Learning Lessons from Romani National Claims: Taking European Citizenship from an Imaginary Community to an Imagined One?’ in A Ott and E Vos (eds), Fifty Years of European Integration: Foundations and Perspectives (The Hague, TMC Asser Press, 2009), 309; Kadelbach, n 2 above, 469 et seq. 82 See, at nn 52–53 above.

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States. Free movement of people and the consequnces it implies was in fact considered as one of the main reasons for the outcome of the United Kingdom Brexit referendum and the outcome is cited as an example to follow by anti-EU political forces in some other Member States.83 That withdrawal from the Union in general is a price worth paying to escape those consequences is perhaps testament to the breadth of the rights granted and protected by Union law. Paradoxically, as has been demonstrated above, the list of rights specifically flowing from Union citizenship in fact remains limited. For example, it is telling in this respect that the right to vote and to stand as a candidate in the Member State of residence rather than the state of nationality applies only to European and local elections, and not to national and regional elections.84 These political sensibilities are also apparent from the slow progress in implementing the right to protection, in third countries, by the diplomatic and consular authorities of Member States other than the state of nationality of the person concerned and the tendency to limit this right to consular rather than diplomatic protection.85 The existence of this right, as probably many of the other rights of Union citizens, is not widely known to the public.86 At the same time, the concept of Union citizenship is dynamic and room for manoeuvre was therefore written into the Treaty at Lisbon (Article 25 TFEU). The Commission must report regularly on the application of the provisions relating to citizenship, taking ‘account of the development of the Union’, and, if the time proves right, the Council is authorised to adopt provisions ‘to strengthen or to add to’ the rights listed in the Treaty (in other words, without engaging a full Treaty revision process). That said, the requirements of unanimity in the Council and separate national approval of such measures render any radical developments somewhat unlikely. Yet one cannot exclude that legal and empirical developments, including cross-border movements and marriages, together with a shift from a unifocal vision centred on the omnipotence of the nation state to a varifocal outlook more consonant with the multilevel system that is the EU, could contribute to a stronger identification with the Union and the notion of Union citizenship. Much will depend on the future of the Union constitutional and democratic order more generally. If there is progress rather than stagnation in this respect, there will be a slowly but steadily growing number of people who take up the banner raised by Advocate General Jacobs: Civis Europeus Sum!

83

See at n 29 and ch 1 above. A Rosas, ‘Union Citizenhip and National Elections’ in Rosas and Antola, n 11 above, 135. 85 The Decision of the Member States of 1995, n 6 above, is clearly limited to ‘consular’ protection while the documents produced by the Commission in 2007, n 6 above, oscillate between the notion of ‘diplomatic and consular’ protection and that of ‘consular’ protection. The title of Council Directive (EU) 2015/637, n 7 above, refers to consular protection only. 86 In its Green Paper on diplomatic and consular protection of Union citizens in third countries, [2007] OJ C30/8, of 2007, para 1.6, the Commission reports that according to Eurobarometer surveys, 23% of those living in the EU who planned to travel to a third country claimed to be familiar with the right of protection. 84

11 Taking Rights More Seriously? The EU System of Fundamental Rights I. General The predominantly economic and technical nature of the original Community integration agenda did not stop the ECJ from declaring, in Stauder (1969), that the general principles of Community law include fundamental rights the respect of which it is incumbent upon the Court to ensure.1 The Court arguably considered that the effects of Community law, especially in view of the principles of primacy and direct effect that the Court had recognised a few years earlier, made it impossible for the Communities to continue to isolate themselves from human and fundamental rights considerations.2 There was an apparent risk that the Member States, including their constitutional and other courts, would not accept the primacy over the national constitution, and notably its Bill of Rights, of a Community legal order which did not itself guarantee respect for fundamental rights.3 In order to defend primacy, the ECJ made fundamental rights part of the Community legal order, and, in so doing, added one more constitutional ingredient to this evolving legal order. Stauder was followed by a series of judgments which developed and refined its rather laconic statement on respect for fundamental rights.4 This ‘judicial activism’ was ultimately mirrored by action on the part of the political institutions, notably the Joint Declaration made by the European Parliament, the Council and the Commission in 1977, which, by reference to the case law of the ECJ, affirmed their commitment to respect for fundamental rights.5 However, the increasing focus on fundamental rights did not impress all observers of the Court, or of the Community more generally. It was held by many that the Court paid

1

Case 29/69 Stauder EU:C:1969:57, para 7. See also Case 25/70 Köster EU:C:1970:115, para 22. See ch 2(III) above and ch 6(II) and (IV) above. 3 See, in particular, the article by the then judge at the ECJ, P Pescatore, ‘Les droits de l’homme de l’intégration européenne’ (1968) 4 Cahiers de droit européen 629. See also J Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 107–08; A Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial Activism?’ in C Baudenbacher and H Bull (eds), European Integration Through Interaction of Legal Regimes (Oslo, Universitetsforlaget, 2007) 33, 36–40. 4 Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114; Case 4/73 Nold EU:C:1975:114; Case 36/75 Rutili EU:C:1975:137. 5 [1977] OJ C103/1. See also ch 4 above. 2

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only lip service to fundamental rights or, famously borrowing from the title of a book in fact not related to EU law, did not take fundamental rights seriously.6 Since the 1970s, much water has passed under that bridge so, without trying to provide an exhaustive list of relevant legal and political developments, we will simply highlight a number of points of particular relevance to our constitutional discussion. First, the basic principle of respect for fundamental rights found its way into written primary law at Maastricht via what became Article 6 TEU and is now, under the Treaty of Lisbon, enshrined in Articles 2 and 6 TEU. The importance of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, proclaimed in Article 2 TEU as the foundations of the Union, was reflected in the Kadi judgment (2008), in which the ECJ recognised that certain core principles of the EU constitutional order may even prevail over other parts of primary law.7 Article 6 TEU, as amended by the Treaty of Lisbon, identifies a three-pronged approach to the EU system of fundamental rights: (i) the Charter of Fundamental Rights, elevated to the same status as the Treaties;8 (ii) EU accession to the European Convention on Human Rights (ECHR); and (iii) reaffirmation of the general principles of Union law as a source of fundamental rights in the EU, taking into account the ECHR (and, as will be explained below, other international human rights instruments) and the constitutional traditions common to the Member States. Article 7 TEU adds a mechanism which envisages the possibility to take sanctions against a Member State in case of a ‘serious and persistent breach’ of the values referred to in Article 2 TEU. Secondly, the case law has developed since those first judgments, handed down in the period 1969–75. The EU has not yet adhered to the ECHR in its own right: the ECJ held in 1996 that the Communities lacked the competence to do so9 and in 2014, following the conferral of competence in the Treaty of Lisbon, that a draft accession agreement negotiated between the Commission and the Member States of the Council of Europe was not in conformity with the EU legal order.10 However, there has been a clear rapprochement between the EU judicial system and the system set up under the Convention, including the European Court of Human Rights.11 Since the 1980s, the ECJ has recognised that the ECHR enjoys ‘special relevance’, and, since the mid-1990s, the Union Courts cite regularly not only

6 J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 Common Market Law Review 669. The title refers to R Dworkin, Taking Rights Seriously (Cambridge, Massachusetts, Harvard University Press, 1977). See also B de Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999) 859, 878. 7 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461. See also ch 5(II) above. 8 The Charter was first proclaimed by the European Parliament, the Council and the Commission as an instrument of soft law, [2000] OJ C364/1. Art 6(1) TEU refers to the (slightly modified) version of December 2007, reprinted in [2010] OJ C83/389. See generally, eg G Di Federico (ed), The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (Dordrecht, Springer, 2011). 9 Opinion 2/94 (Accession to the European Convention on Human Rights) EU:C:1996:140. 10 Opinion 2/13 (Draft Agreement on Accession to the European Convention on Human Rights) EU:C:2014:2454. 11 A Rosas, ‘Fundamental Rights in the Luxembourg and Strasbourg Courts’ in C Baudenbacher, P Tresselt and T Orlygsson (eds), The EFTA Court: Ten Years On (Oxford, Hart Publishing, 2005) 163. See also A Rosas, ‘The European Union and Fundamental Rights/Human Rights’ in C Krause and M Scheinin (eds), International Protection of Human Rights: A Textbook (Turku/Åbo, Åbo Akademi University Institute for Human Rights, 2009) 443, 457–59.

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Convention provisions but also individual judgments of the European Court of Human Rights.12 Incidentally, they also started to cite the EU Charter of Fundamental Rights well before the Treaty of Lisbon made it part of binding primary law.13 More importantly, the case law is full of examples where fundamental rights considerations have determined, or at least affected, the outcome of the case. Suffice it to mention here the most obvious examples, where such considerations have been deemed to justify restrictions on the otherwise fundamental economic freedoms enshrined in the Treaty, such as the free movement of goods or services or the right of establishment,14 and a series of judgments annulling sanctions instigated against individuals for want of respect for fundamental rights.15 As an aside, contrary to what is sometimes asserted, the ECJ has not favoured the economic freedoms at the expense of fundamental rights; the cases in which the Court has accepted that a balance has to be struck between the two have concerned fundamental rights such as property rights or freedom of assembly and expression, which are not in themselves absolute.16 Thirdly, the relevance of fundamental rights has been enhanced through the development of secondary law. The traditional focus on gender discrimination, manifested not only in primary law but also in a series of directives adopted since the 1970s, was later broadened to include action to combat discrimination in general.17 In particular, two nondiscrimination directives adopted in 2000 relate, on the one hand, to discrimination on grounds of race or ethnic origin (Directive 2000/43) and, on the other, to discrimination relating to employment and occupation on some of the other grounds listed in its legal basis (Article 13 TEC, now Article 19 TFEU), namely religion or belief, disability, age and sexual orientation (Directive 2000/78).18 In addition, fundamental rights considerations

12 See Joined Cases 46/87 and 227/88 Hoechst EU:C:1989:337, para 13. See also Case C-13/94 P v S EU:C:1996:170, para 16, and the earlier cases mentioned in Rosas (2005), n 11 above, 169 fn 28. 13 See below, section III. 14 For earlier case law see, eg Case C-112/00 Schmidberger EU:C:2003:333; C-36/02 Omega EU:C:2004:614; Case C-71/02 Karner EU:C:2004:181; Case C-244/06 Dynamic Medien EU:C:2008:85; Case C-438/05 International Transport Workers’ Federation (‘Viking Line’) EU:C:2007:772. 15 See, eg Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation, n 7 above (violation of the right of defence and of the principle of effective judicial protection as well as of the right of property). See also; Case C-376/10 Tay Za EU:C:2012:138; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi (‘Kadi II’) EU:C:2013:518; Case C-280/12 P Council v Fulmen and Mahmoudian EU:C:2013:775. See also A Rosas, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’ in AM Salinas de Frías et al (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 83. 16 See Case C-112/00 Schmidberger, n 14 above, paras 79–81, where the Court observed that restrictions may apply to freedom of expression and freedom of assembly, ‘unlike other fundamental rights … such as the right to life or the prohibition of torture and inhuman or degrading treatment or punishment’ (para 80). See more generally M Lindfelt, Fundamental Rights in the European Union: Towards Higher Law of the Land? (Turku/Åbo, Åbo Akademi University Press, 2007) 212–21, who (wrongly it is believed) claims that the fundamental economic freedoms ‘still operate as the main rule and fundamental rights as the exception’. 17 See further section IV below. See notably Art 157 TFEU (ex Art 141 TEC), which in Case 43/75 Defrenne (‘Defrenne II’) EU:C:1976:56 was recognised as having horizontal direct effect. See in that respect ch 6(IV) above and section V below. 18 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L199/86; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2001] OJ L2/42. See further section IV below.

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often inform the development of secondary law more generally (to cite an obvious example, in enacting legislation relating to the area of freedom, security and justice). Indeed, since 2007, a specific Union agency has been tasked with providing the institutions with information, assistance and expertise in order to ensure that, in the exercise of their various competences, these bodies ensure full respect for fundamental rights.19 Fourthly, in the context of its external relations policies, the EU has, since the 1990s, paid considerable attention to the promotion of human rights in its relations with third countries. This has been done using both Union law instruments and mechanisms of the Common Foreign and Security Policy (CFSP).20 In particular, human rights clauses are included in trade and cooperation agreements concluded with third countries and acts of secondary law providing for financial and technical assistance to third countries, including their civil society. CFSP action covers various forms of coordination of Member States’ human rights policies, including in the context of the United Nations. Both Union law and CFSP measures will normally include the option to instigate sanctions as a result of alleged human rights violations committed by third countries.21 In promoting human rights externally, the EU also relies on the Universal Declaration of Human Rights of 1948 as a basis for human rights cooperation globally.22 With these developments, a conceptual distinction has emerged: fundamental rights is a constitutional concept based on case law, Article 6 TEU and the Charter of Fundamental Rights, while the notion of human rights is used primarily in the context of EU external relations. The question of adherence to international instruments such as the ECHR covers both elements, as adhering to such instruments would make them part of the Union legal order while also constituting a commitment vis-à-vis third states and thus an instrument of external human rights policy. While EU fundamental rights have thus become an important ingredient of both primary law and secondary law, as well as Union and national case law, recent developments in some Member States, and Hungary and Poland in particular, have brought into sharp relief the question as to what mechanisms are available if there are serious concerns about the protection of fundamental rights and the rule of law in a Member State in general and

19 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, [2007] OJ L53/1. On the background of this Agency, see P Alston and O de Schutter (eds), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Oxford, Hart Publishing, 2005). See also J Kühling, ‘Fundamental Rights’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 479, 485. 20 D Napoli, ‘The European Union’s Foreign Policy and Human Rights’ in N Neuwahl and A Rosas (eds), The European Union and Human Rights (The Hague, Martinus Nijhoff Publishers, 1995) 297; B Brandtner and A Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’ (1998) 9 European Journal of International Law 468; A Rosas, ‘Is the EU a Human Rights Organisation?’ CLEER Working Papers 2011/1 (The Hague, Centre for the Law of EU External Relations, 2011). 21 See, eg M Bulterman, Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality? (Antwerp, Intersentia/Oxford, Hart Publishing, 2001); E Paasivirta and A Rosas, ‘Sanctions, Countermeasures and Related Actions in the External Relations of the EU: A Search for Legal Frameworks’ in E Cannizzaro (ed), The European Union as an Actor in International Relations (The Hague, Kluwer Law International, 2002) 207; Rosas (2009), n 11 above, 466–74. 22 A Rosas, ‘The European Union: In Search of Legitimacy’ in V Jaichand and M Suksi (eds), 60 Years of the Universal Declaration of Human Rights in Europe (Antwerp, Intersentia, 2009) 415.

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not solely with regard to specific problems of the application and interpretation of Union law, fundamental rights included, which could be addressed, inter alia, in infringement procedures brought by the Commission under Article 258 TFEU.23 Article 7 TEU referred to above, which is often referred to as the ‘nuclear option’, has never been used in practice. As this edition goes to print, its application seems more likely than has previously been assumed, however it should be recalled that the determination of a ‘serious and persistent breach’ of the values referred to in Article 2 TEU requires unanimity in the European Council (thus, although the representative of the Member State in question cannot participate in the vote, one ally will suffice to block the procedure).24 Perhaps in recognition of that reality, a supplementary mechanism was devised by the Commission in 2014 the purpose of which was to help prevent the emergence of a systemic threat to the rule of law and thereby avoid a formal triggering of Article 7 TEU (the initiative referred to in Article 7(1) may be taken by one third of Member States, the European Parliament or the Commission).25 Applying this new EU Framework to strengthen the rule of law, the Commission issued two Recommendations in 2016 concerning the rule of law in Poland.26 At the time of writing, the discussions between the Commission and the Polish Government do not seem to have produced any tangible results and the question of possible recourse to Article 7 remains an open question. The following discussion will focus on the role of fundamental rights in the Union legal order, highlighting questions of scope and status rather than analysing the substance of the various rights recognised in, say, the Charter of Fundamental Rights. As a preliminary point, it is important to note that fundamental rights have to be respected at all levels of EU governance, including by the various bodies of the Member States. Respect for fundamental rights by the Union as such raises questions concerning: (i) the validity (legality) of Union secondary law;27 (ii) the interpretation of Union secondary law;28 or (iii) the legality of individual measures such as Commission or judicial decisions.29 Compliance at the national level requires consideration of one additional, preliminary issue; Union fundamental rights will only be applicable in situations which fall within the scope of Union law. It is to this aspect that we shall now turn.

23 See, eg W Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation (Oxford, Hart Publishing, 2016). On the infringement procedure see ch 16(III) below. 24 See Article 7(2) TEU and Article 354(1) TFEU. 25 A new EU Framework to strengthen the Rule of Law, Communication from the Commission to the European Parliament and to the Council, COM(2014) 158 final/2 of 19 March 2014. 26 Commission Recommendation of 27 July 2016 regarding the rule of law in Poland, C(2016) 5703 final and Commission Recommendation of 21 December 2016 regarding the rule of law in Poland, C(2016) 8950 final. 27 Case C-540/03 Parliament v Council EU:C:2006:429; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation, n 7 above. 28 See, eg Case C-465/07 Elgafaji EU:C:2009:94. 29 On Commission decisions see, eg Case T-351/03 Schneider Electric v Commission EU:T:2007:212, paras 181–89. In Case C-185/95 P Baustahlgewebe v Commission EU:C:1998:608, paras 119–49 and Case C-385/07 P Der Grüne Punkt—Duales System Deutschland v Commission EU:C:2009:456, paras 176–95, the ECJ found that the Court of First Instance had infringed the requirement of access to justice within a reasonable time derived from Art 6 of the ECHR. See also Joined Cases C-341/06 P and C-342/06 P Chronopost v UFEX EU:C:2008:375, paras 44–61, on the question as to whether the proceedings before the Court of First Instance guaranteed access to an independent and impartial tribunal.

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II. Field of Application As an important component of Union primary law, fundamental rights are, in principle, always applicable when Union institutions and other bodies act. The question of the field of application of Union fundamental rights at Member State level is more complex. When should national courts and authorities apply Union fundamental rights rather than, or in addition to, fundamental rights recognised in the national constitution and in international human rights instruments binding on the Member State in question? It is submitted that the basic criterion is much more obvious than is sometimes assumed. In our view, it should go almost without saying that Union fundamental rights have to be respected at the national level whenever Union law is at stake. This is simply a function of the fact that fundamental rights are part of Union primary law and must, like any norm of Union law, be respected when this body of law, or national measures to implement that law, are applied by courts or authorities of the Member States. It should not have come as a surprise to anyone when the ECJ, in Wachauf, confirmed that Union fundamental rights ‘are also binding on the Member States when they implement Community rules’.30 In ERT and subsequently, the test was formulated as a requirement that the national measures ‘fall within the scope of Community law’.31 Contrary to what some of the discussions at the Convention which prepared the Charter of Fundamental Rights appeared to assume, the Court did not launch any radical new principle in these judgments but simply stated the obvious. That said, it is not always easy to draw the line separating those national rules which fall within the scope of Union law from those falling outside that scope. In some cases, the ECJ has concluded that the link between the national measures and Union law was not sufficiently direct or strong and that the national measure thus fell outside the scope of Union law (perhaps the most well-known case concerned a prisoner who attempted to invoke his Union law right to move and reside freely as a basis for contesting his prison sentence).32 A number of examples best illustrate the issues that can arise. In Carpenter, a Union citizen who provided services to recipients in other Member States as ‘a significant proportion of his business’ could, under Union law, rely on his right to family life in order to oppose the expulsion of his spouse, a third-country national, from his Member State of origin, despite the fact that the spouse had not travelled with her husband to the other Member States concerned and so had not herself exercised free movement rights.33 In KB, the Court held that the refusal to grant a widower’s pension to a couple on the basis that they were not married came in principle within the purview of Union law. The couple in question were not married as a result of the refusal under national law to recognise that gender reassignment could result in the classification of a couple as heterosexual

30 Case 5/88 Wachauf EU:C:1989:321, para 19. See also Case 36/75 Rutili, n 4 above; Case 63/83 Kent Kirk EU:C:1984:255; Case 249/86 Commission v Germany EU:C:1989:204. 31 Case C-260/89 Elliniki Radiophonia Tileorassi (ERT) EU:C:1991:254. 32 Case C-299/95 Kremzov EU:C:1997:254. See also Case C-159/90 Grogan EU:C:1991:378; Case C-306/96 Annibaldi EU:C:1998:173. 33 Case C-60/00 Carpenter EU:C:2002:434, paras 37–40.

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(a condition for marriage). While the right to marry was a question for national law, the case at hand concerned inequality of treatment as regards a necessary precondition for the grant of a pension, a matter of Union law. As this inequality of treatment resulted from a breach of the right to marry under Article 12 of the ECHR, the national legislation at issue was to be regarded as being, in principle, incompatible with the requirements of Article 141 EC (Article 157 TFEU) on equal pay.34 In Mangold and Kücükdeveci, the Court, taking inspiration inter alia from Directive 2000/78 (mentioned above), concluded that non-discrimination on grounds of age had become a general principle of Union law.35 However, in Mangold the deadline for the implementation of the Directive had not yet expired, and the Directive could not therefore be invoked to bring the matter within the scope of Union law. The Court relied instead on the fact that the national legislation at issue also constituted a measure implementing another directive.36 In Åkerberg Fransson, the Court held that a general obligation in the Directive on value added tax37 to ensure the collection of such tax and to prevent evasion, and in Article 325 TFEU to counter fraud affecting the financial interests of the Union (revenues from value added tax being included in the Union’s so-called own resources), were sufficient to render tax penalties and criminal proceedings for tax evasion a question of implementing Union law, which in turn made the Charter of Fundamental Rights applicable.38 And in Florescu, the Court has recently held that some general conditions for EU financial assistance imposing budgetary discipline on a Member State and in this context budgetary savings, including in the context of pensions, were enough to trigger the application of the Charter to certain specific measures affecting the right of judges to combine pensions and a salary for non-judicial work.39 While these and other cases suggest a fairly wide conception of what measures fall within the scope of Union law, it should be emphasised that the Union Courts are not human rights courts with general jurisdiction over the interpretation of the ECHR or other international human rights instruments. They apply and interpret fundamental rights in the context of their normal day-to-day activities in all areas of Union law. There are no special fundamental rights remedies, and fundamental rights issues can be raised in all types of judicial procedure, including actions for annulment (Article 263 TFEU) and preliminary ruling procedures (Article 267 TFEU).

34 Case C-117/01 KB EU:C:2004:7, paras 30–34. In the case of Goodwin v UK and I v UK, judgment of 11 July 2002, the European Court of Human Rights had held that the fact that it was impossible for a transsexual to marry a person of the sex to which he or she had belonged prior to gender reassignment was a breach of the right to marry. 35 Case C-144/04 Mangold EU:C:2005:709; Case C-555/07 Kücükdeveci EU:C:2010:21. In Kücükdeveci, the problem did not arise in the same way as the deadline for the implementation of Directive 2000/78 had expired. The question of the horizontal application of Union fundamental rights, which was at issue in both Mangold and Kücükdeveci, will be considered in section V below. 36 Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, [1999] OJ L175/43. See Case C-144/04 Mangold, n 35 above, para 75. 37 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, [2006] OJ L347/1. 38 Case C-617/10 Åkerberg Fransson EU:C:2013:105. See also Case C-650/13 Delvigne EU:C:2015:648, paras 24–34. 39 Case C-258/14 Florescu EU:C:2017:448.

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The Lisbon Treaty did not alter this state of affairs. According to Article 6(1) TEU, the provisions of the Charter of Fundamental Rights ‘shall not extend in any way the competences of the Union as defined in the Treaties’. Article 51(2) of the Charter is even more explicit, providing that it ‘does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Moreover, Article 51(1) states that the Charter provisions are addressed to the M ember States ‘only when they are implementing Union law’. In the Convention which drafted the Charter, discussions on the application of fundamental rights at national level were not without difficulties.40 The UK, in particular, resisted the application of the Charter at national level and, having failed in this objective, instead obtained inclusion of a separate Protocol relating to the application of the Charter in the UK (see below). As Article 51(1) of the Charter refers to a situation of ‘implementing’ Union law, it may be asked whether this is more restrictive than the ‘scope’ or ‘field of application’ of Union law. In the Explanations relating to the Charter, reference is made both to the case law of the ECJ stating that the requirement to respect fundamental rights is binding on the Member States ‘when they act in the scope of Union law’ and to cases using the notion of ‘implementation’.41 In any event, the reference to implementation was not meant to exclude situations where Member States apply Union legal norms directly, including situations where they invoke derogations from such norms.42 That said, invoking a Charter provision will not suffice to convert a situation otherwise regulated by national law to one covered by Union law. The Charter is only applicable if the case concerns the validity, interpretation or application of another norm of Union law. Moreover, and despite a significant broadening of the field of application of Union law as a result of the evolving nature of Union citizenship (see chapter ten above), the fact that a situation may, if it implies restrictions on the right to move and to reside, come under Article 21 TFEU, does not mean that all violations of the fundamental rights of persons who have moved to another Member State become violations of Union fundamental rights.43 Control by the ECJ thus continues to depend on a fundamental right (such as freedom

40 See, eg G de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2001) 26 European Law Review 126, 136; P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 Common Market Law Review 945, 954. 41 These Explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter and were later updated under the responsibility of the Praesidium of the European Convention which drafted the Constitutional Treaty of 2004, [2007] OJ C303/17. According to Art 6(1) TEU, the Charter shall be interpreted ‘with due regard to the explanations referred to in the Charter, that set out the sources of those provisions’. See, eg Case C-279/09 DEB EU:C:2010:811, para 32. See also J Ziller, ‘Le fabuleux destin des Explications relatives à la Charte des droits fondamentaux de l’Union européenne’ in Chemins d’Europe: Mélanges en l’honneur de Jean Paul Jacqué (Paris, Dalloz, 2010) 765. 42 See, in particular, Joined Cases C-411/10 and C-493/10 NS and ME et al EU:C:2011:865, paras 64–69, which concerned the application of a provision of a regulation at national level. See also Eeckhout, n 40 above, 977–79; C Ladenburger, ‘L’application pratique de la Charte des droits fondamentaux par la Commission européenne’ (2002) 14 Revue européenne de droit public 817, 828; Kühling, n 19 above, 496–99; A Rosas, ‘The Applicability of the EU Charter of Fundamental Rights at National Level’ (2013) 13 European Yearbook on Human Rights 97. 43 The ECJ has not adopted in full the approach suggested by one of its Advocates General back in 1992, see ch 10(II) above.

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of residence,44 the right to family life45 or the right to a name46) being read in combination with a national measure which affects a free movement right, rather than assessing the fundamental right standing alone.47 Finally, it is interesting to note that the mechanism in Article 7 TEU for sanctioning a Member State if the European Council has determined the existence of ‘a serious and persistent breach’ of the values referred to in Article 2 TEU is not limited to the field of application of Union law but may be applied in situations of serious and persistent breaches of human rights in general. As already noted above, Article 7 has never been applied in practice48 but the Commission has established a procedure for consultations with a Member State if the state of the rule of law in that Member State gives rise to concerns but the situation is not deemed ripe for triggering the ‘nuclear option’.49

III. Sources and Material Scope The traditional approach has been to see fundamental rights as part of the general principles of Community (now Union) law.50 This approach is reaffirmed in Article 6(3) TEU, which repeats, with some minor modifications, Article 6(2) as it existed prior to the Treaty of Lisbon. But where are these principles to be found, given that most of them are not listed in the Treaties? The Charter of Fundamental Rights, identified in Article 6(1) TEU as having the same legal value as the Treaties, clarifies matters to a great extent. Yet, in view of the retention in Article 6(3) TEU of the general principles of Union law as a source for fundamental rights, account should continue to be taken of the various instruments which have been used by the Union Courts to date as ‘guidelines’ or ‘sources of inspiration’ for the determination of which fundamental rights are recognised as general principles of Union law. Article 6(3) TEU mentions the ECHR as well as the constitutional traditions common to the Member States. In view of the differences which exist between the national constitutions, particularly in a Union of 28 Member States, it is not surprising that the ECHR and, as explained above, the case law of the European Court of Human Rights have proved more

44

Case 36/75 Rutili, n 4 above. Case C-60/00 Carpenter, n 33 above. 46 Case C-148/02 Garcia Avello EU:C:2003:539. In this case, the matter was not explicitly approached as a question of a fundamental right (to a name). Such questions may, however, become human rights questions, covered by the right to private and family life recognised in Art 8 of the ECHR, see P van Dijk et al (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia, 2006) 685. 47 There is an abundance of ECJ judgments and orders holding that the Court is not competent to apply the Charter in a situation not otherwise covered by Union law. See, eg Case C-370/12 Pringle EU:C:2012:756; Case C-206/13 Siragusa EU:C:2014:126; Case C-265/13 Torralbo Marcos EU:C:2014:187. 48 Sanctions taken by the other Member States against the Austrian government in 2000 were of a purely political nature and were not based on Art 7 TEU, Rosas (2009), n 11 above, 450. 49 See at nn 24–26 above. 50 On the general principles of Union law, including fundamental rights, as part of primary law, see ch 5(III) above. 45

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useful as guidelines than the constitutional traditions common to the Member States.51 Rather, the reference to the constitutional traditions of the Member States should be seen in the more general context of the relevance of the national constitutional orders to the Union constitutional order as a whole.52 In any event, it does not imply that a particular Charter right must correspond to a given provision in each of the 28 national Constitutions. In addition to the ECHR, the ECJ has referred to instruments such as the European Social Charter of 1961, revised in 1996,53 the International Covenant on Civil and Political Rights of 1966, the Convention on the Rights of the Child of 1989 and a number of Conventions adopted by the International Labour Organisation.54 In a few cases, the Court has even referred to international ‘soft law’ instruments, such as the Universal Declaration of Human Rights of 1948.55 The Charter of Fundamental Rights, in its preamble, states that it reaffirms rights as they result, inter alia, from the constitutional traditions and international obligations common to the Member States, the ECHR and the Social Charters adopted by the Union and the Council of Europe.56 And, according to Article 53 of the Charter, nothing therein shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, inter alia, ‘by international law and by international agreements to which the Union or all the Member States are party’. These references in the Charter to international instruments seem to confirm their continued relevance for EU fundamental rights as general principles of Union law. Perhaps in recognition of the rapprochement referred to above, the Charter also contains a provision (Article 52(3)) which provides that the meaning and scope of the Charter rights which correspond to rights guaranteed by the ECHR ‘shall be the same as those laid down by the said Convention’. Moreover, the ECJ has acknowledged that it should, in appropriate cases, reconsider a position stated in earlier case law in the light of subsequent

51 See also De Witte, n 6 above, 878; A Rosas, ‘The Legal Sources of EU Fundamental Rights: A Systemic Overview’ in N Colneric et al (eds), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias (Berlin, Berliner Wissenschafts-Verlag, 2003) 87, 92. However, the Court did cite the constitutional traditions rather than the ECHR or other international instruments in eg Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others EU:C:2005:270, para 68. In Case C-36/02 Omega, n 14 above, the ECJ accepted the principle of human dignity, as expressed in the German Constitution, as a justification of a restriction on an economic freedom and in Case C-208/09 Sayn-Wittgenstein EU:C:2010:806, paras 87–92, the principle of equality, as expressed in the Austrian constitutional order, was accepted as a justification of a restriction on free movement. 52 See, eg Art 4 TEU, which instructs the Union to respect, inter alia, the national identities of the Member States, inherent in their political and constitutional structures. According to Art 52(4) of the Charter of Fundamental Rights, fundamental rights resulting from the constitutional traditions common to the Member States ‘shall be interpreted in harmony with those traditions’. See also ch 5(III) above. 53 The European Social Charter is mentioned in Art 151 TFEU. See also the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (1995). See further O De Schutter, ‘Le statut de la Charte sociale européenne dans le droit de l’Union européenne’ in Chemins d’Europe, n 41 above, 217. 54 A Rosas, ‘The Charter and Universal Human Rights Instruments’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1685. For examples see Case C-438/05 International Transport Workers’ Federation, n 14 above, para 79 and Case C-341/05 Laval un Partneri EU:C:2007:809, para 105, where reference is made to the European Social Charter and ILO Convention No 87 concerning Freedom of Association and Protection of the Right to Organise of 1948; Case C-244/06 Dynamic Medien, n 14 above (citing the International Covenant of 1966 and the Convention on the Rights of the Child). 55 Rosas, n 22 above, at 420. 56 See, in addition to the European Social Charter mentioned above, the 1989 Community Charter on the Fundamental Rights of Workers, which is also mentioned in Art 151 TFEU.

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evelopments before the European Court of Human Rights.57 While tensions and even d conflict between Luxembourg and Strasbourg case law cannot be ruled out, the two systems have so far managed to develop in parallel without major conflicts.58 The same observation applies to the relation between the ECJ and national constitutional courts.59 For its part, the European Court of Human Rights has recognised these developments and held that, since the Union system for the protection of fundamental rights has become ‘equivalent’ to that of the Convention, there is therefore a presumption that an EU Member State does not depart from the requirements of the Convention when it implements legal obligations following from its membership of the Union.60 That said, there are some Strasbourg decisions which suggest a certain tension (as regards their reasoning and outcome) with Luxembourg case law relating, inter alia, to the application of Article 267 TFEU on preliminary rulings and of the EU law principle of mutual recognition.61 These developments have taken place despite the fact that the EU is not a Contracting Party to the ECHR. Article 6(2) TEU now specifically accords the competence (denied by the ECJ in 1996) to accede to that Convention.62 The provision even seems to lay down a constitutional obligation to seek accession (‘[t]he Union shall accede’). That said, Protocol No 8 annexed to the TEU and the TFEU63 requires that an accession agreement make provisions for ‘preserving the specific characteristics of the Union and Union law’. Moreover, accession would require the consent of all the current parties to the Convention, including the non-EU Members of the Council of Europe; Protocol 14 to the ECHR, which entered into force in June 2010, ensured the amendments to the Convention necessary to enable EU accession but the modalities of accession will have to be established in a separate agreement.64 As mentioned above, the conformity with the Union legal order of a draft accession agreement which had been negotiated between the Commission and the Member States of the Council of Europe and Contracting Parties to the ECHR was submitted to the ECJ and in Opinion 2/13 the Court concluded in the negative.65 Without going into this Opinion, 57 Joined Cases C-238/99 P Limburgse Vinyl Maatschappij et al EU:C:2002:582, para 274; Case C-94/00 Roquette Frères EU:C:2002:603, para 29. 58 See, eg Joined Cases C-411/10 and C-493/10 NS and ME et al, n 42 above, where the ECJ followed an approach very similar to one adopted by the European Court of Human Rights in its recent case law concerning the right of states to return asylum seekers to another state. See also Rosas (2005), n 11 above, 170; H Senden, Interpretation of Fundamental Rights in a Multilevel Legal System: An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Cambridge, Intersentia, 2011). 59 On the relation between the Union Courts and national courts see, eg P Popelier, C Van de Heyning and P Van Nuffel (eds), Human Rights Protection in the European Legal Order: The Interaction between the European and the National Courts (Cambridge, Intersentia, 2011). On the reserves expressed by some national constitutional courts as to the primacy of Union law over the national constitution see ch 6(II) above. 60 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland [GC] (Application no 45036/98), § 165, ECHR 2005 VI (30 June 2005) and subsequent case law, as cited in Avotinš v Latvia, judgment of 23 May 2016, (Application no 17502/07). 61 See, eg Case of Michaud v France, judgment of 6 December 2012 (Application no 12323/11) and Case of Tarakhel v Switzerland, judgment of 4 November 2014 (Application no 29217/12). These tensions will be discussed in chs 12(I) and 16(III) below. 62 Opinion 2/94 (Accession to the European Convention on Human Rights), n 9 above. 63 Protocol No 8 relating to Article 6(2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. 64 According to Art 59 of the Convention, as amended by Art 17 of the Protocol amending the control system of the Convention (2004), the EU ‘may accede’ to the Convention. 65 Opinion 2/13 (Draft Agreement on Accession to the European Convention on Human Rights), n 10 above.

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which triggered a lively discussion,66 in any greater detail, it should be noted that most of the problems the Court saw with the draft agreement related to the fact that, contrary to what has been the case with regard to all other accessions to the Convention, the acceding party would not be a State and this party (the EU) would accede alongside its Member States, which would continue to be bound by the Convention in their own right. This consideration applies, in particular, to the lack of any provision in the draft agreement requiring respect for the EU law principle of mutual recognition and preventing the European Court of Human Rights from interfering with the application of this principle in cases of requests from one Member State to transfer a person to another Member State.67 As this edition goes to print, it is too early to predict if and when accession will take place; discussions between the Commission and Member States on the possible ways to solve the problems identified in Opinion 2/13 have been held but no conclusions have been drawn so far. If and when accession takes place, it will not be the first human rights convention to be concluded by the Union; in November 2009 the Union concluded the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol of 2007.68 Human rights conventions are no different to other international agreements and becoming a Contracting Party implies that the convention constitutes an integral part of the Union legal order; as regards the ECHR in particular, this could also entail direct effect.69 While the EU Charter of Fundamental Rights only now constitutes a binding part of Union primary law, it was already ‘solemnly proclaimed’ by the European Parliament, the Council and the Commission on 7 December 2000 following its preparation by a Convention comprising representatives of both the European Parliament and national parliaments as well as national governments.70 This ‘soft law’ version of the Charter quickly became a source of reference for the Advocates General of the ECJ and for the Court of First Instance.71 The ECJ first cited the Charter only in June 2006, in a case in which the directive in question itself proclaimed to respect the rights set forth in the Charter.72 66 See, eg D Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ Public Law and Legal Theory Research Paper Series, Paper No 432, February 2015 (Michigan Law, University of Michigan); B de Witte and S Imamovic, ‘Opinion 2/13 on Accession to the ECHR: Defending the EU Legal Order against a Foreign Human Rights Court’ (2015) 40 European Law Review 683; J Polakiewicz, ‘Accession to the European Convention on Human Rights (ECHR): An Insider’s View Addressing One by One the CJEU’s Objections in Opinion 2/13’ (2016) 36 Human Rights Journal 10. 67 See Opinion 2/13 (Draft Agreement on Accession to the European Convention on Human Rights), n 10 above, paras 191–95. 68 Council Decision 2010/48/EC of 26 November 2009, [2010] OJ L23/35. The UN Convention is used by the ECJ as a tool of interpretation for Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2000] OJ L303/16, see, eg Joined Cases C-335/11 and C-337/11 HK Danmark EU:C:2013:222; Case C-356/12 Glatzel EU:C:2014:350; Case C-354/13 FOA EU:C:2014:2463; Case C-395/15 Daouidi EU:C:2016:917; Case C-406/15 Milkova EU:C:2017:198. 69 On the status of international agreements see ch 5(IV) above and on their direct effect, see ch 6(IV) above. On the status of the ECHR in the domestic legal orders of the Contracting Parties, see R Blackburn and J Polakiewitcz (eds), Fundamental Rights in Europe: The ECHR and Its Member States, 1950–2000 (Oxford, Oxford University Press, 2001). 70 See n 8 above. 71 See notably the Opinion of Advocate General Tizzano of 8 February 2001, para 28, in Case C-173/99 BECTU EU:C:2001:356. For further details see, eg Rosas (2009), n 11 above, 459–60; A Rosas and H Kaila, ‘L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: Un premier bilan’ (2011) XVI Il Diritto dell’Unione Europea 1 at 5–7. 72 Case C-540/03 Parliament v Council, n 27 above, para 38. The directive in question was Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, [2003] OJ L251/12.

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Since then, the ECJ has referred to several provisions of the Charter, although primarily to back up a statement on the scope and substance of a general principle of Community law.73 Any reticence on the part of the ECJ of course fell away with the elevation of the Charter to the rank of primary law. The entry into force of the Treaty of Lisbon clearly enhanced the importance of the Charter, in its new adapted version of December 2007, as the Union’s Bill of Rights. In the case law of the ECJ, the Charter quickly became the central source of reference.74 While a comprehensive survey of this already rich case law is neither possible nor desirable within the confines of the present work, one central observation indicates the heightened importance of the Charter as compared to the situation before 1 December 2009: the ECJ had never concluded that a Union legislative act was invalid because it violated EU fundamental rights, but this has happened several times during the period since the entry into force of the Treaty of Lisbon.75 The Charter has a broad material scope, including, to use an old but not always accurate or relevant distinction, both civil and political rights and economic, social and cultural rights.76 Some rights constitute fairly modern developments, not always found in older human rights instruments such as the ECHR: for example, an absolute and unconditional prohibition of the death penalty (Article 2(1)), a prohibition of human cloning (Article 3(2)), a prohibition of discrimination on grounds of, inter alia, disability, age or sexual orientation (Article 21(1)), rights of the elderly (Article 25), a right to take collective action (Article 28) and a right to a judicial remedy (Article 47).77 It should be recalled, on the other hand, that these rights are to be applied at the national level only in situations which fall within the scope of Union law. Thus, for instance, the prohibition of the death penalty as a Union fundamental right would probably only apply to situations where the nature and level of criminal punishments have been harmonised at Union level.78 Moreover, it is a separate question whether, and to what extent, rights recognised in the Charter can be directly invoked by individuals (see section V below). Finally, reference should be made to Protocol No 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the UK, annexed to the T reaties. According to Article 1(1) of this Protocol, the Charter ‘does not extend the ability’ of the Union Courts, or any court or tribunal of Poland or of the UK, to find that

73 See, eg Case C-411/04 Salzgitter Mannesmann EU:C:2007:54, para 50; Case C-432/05 Unibet EU:C:2007:163, para 37; Case C-438/05 International Transport Workers’ Federation, n 14 above, paras 43–44; Case C-341/05 Laval un Partneri, n 54 above, paras 89–90; Case C-244/06 Dynamic Medien, n 14 above, para 41. 74 See, eg Peers et al, n 54 above. 75 See, eg Case C-92/09 Volker and Schecke EU:C:2010:662 (Art 7 of the Charter on respect for private and family life and Art 8 on the protection of personal data); Case C-236/09 Test-Achats EU:C:2011:100 (Art 23 on equality between men and women); Joined Cases C-293/12 and C-594/12 Digital Rights Ireland EU:C:2014:238; Case C-362/14 Schrems EU:C:2015:650 (also Arts 7 and 8 of the Charter). 76 Many rights (eg property rights, trade union rights and minority rights) are difficult to categorise according to this dichotomy, see, eg A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd rev edn (Dordrecht, Martinus Nijhoff Publishers, 2001). 77 The right to a judicial remedy also exists in the ECHR (Art 6) and some other international human rights instruments, but in the Convention it is limited to ‘civil’ rights and obligations and criminal charges. On the wide interpretation of this expression by the European Court of Human Rights see, eg van Dijk, n 46 above, 511 et seq. 78 As, for example, in Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, which provides for minimum penalties for terrorist offences, [2002] OJ L/164/3 (see also amendments in Council Framework Decision 2008/919/JHA of 28 November 2008, [2008] OJ L330/21).

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laws, regulations or administrative provisions, practices or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. While the Protocol is often referred to as an ‘opt-out’ from the Charter, the preamble of the Protocol states that Article 6 TEU requires the Charter ‘to be applied and interpreted by the courts of Poland and of the UK’ strictly in accordance with the Explanations referred to in that Article.79 This suggests that the Charter is not outside the jurisdiction of the national courts concerned.80 That said, a legal assessment of the precise meaning and scope of the Protocol remains somewhat elusive.81 For instance, Article 1(2) of the Protocol provides that ‘[i]n particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the UK except insofar as Poland or the UK has provided for such rights in its national law’. If the idea behind the second paragraph is to specify what is said in the first paragraph (‘[i]n particular, and for the avoidance of doubt’), the first paragraph may only, or essentially, be about the issue of the justiciability (or direct effect) of certain rights and principles of a mainly social character (Title IV of the Charter, entitled ‘Solidarity’ contains mainly labour rights and principles, some social and health rights and principles).82 A Polish unilateral Declaration concerning the Protocol provides a further question mark, stating as it does that Poland, having regard to the contribution of the Polish ‘Solidarity’ movement to the struggle for social and labour rights, ‘fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights’.83 The political problems and legal uncertainties surrounding the adoption of the Charter and Article 6(1) TEU were further underlined by the decision of the heads of state or government, expressed at the European Council of 29–30 October 2009, to agree to attach a new Protocol to the TEU and the TFEU when the next Accession Treaty was to be concluded. This new Protocol was duly included in the Act of Accession of Croatia and would have extended Protocol No 30 to the Czech Republic as well.84 However, in February 2014, the Czech Republic withdrew its request to be covered by Protocol No 30.85

79

On these Explanations, see at n 41 above. Something the ECJ has recently confirmed: see Joined Cases C-411/10 and C-493/10 NS and ME et al, n 42 above, paras 116–22. 81 See, eg M Wyrzykowski, ‘Introduction: Limits of Power and Limits of Interpretation’ in J Barcz (ed), Fundamental Rights Protection in the European Union (Warsaw, CH Beck, 2009) 25 and other contributions in Part I of the same volume; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 161 (‘One thing is obvious: the legal effects of the Protocol are not easy to determine’). 82 K Lenaerts, ‘La solidarité ou le chapitre IV de la Charte des droits fondamentaux de l’Union européenne’ (2010) 21 Revue trimestrielle des droits de l’homme 217. 83 Declaration No 62 by the Republic of Poland concerning the Protocol on the Application of the Charter of Fundamental Rights of the European Union in relation to Poland and the UK, [2008] OJ C115/358. 84 Brussels European Council of 29–30 October 2009, Presidency Conclusions, Council of the European Union, Brussels, 1 December 2009, 15265/1/09 Rev 1, para 2. The text of a Protocol on the Application of the Charter of Fundamental Rights of the European Union to the Czech Republic is contained in Annex 1. See also ch 8(II) above. 85 See, eg B Fox, ‘Czech Government to Give Up EU Charter Opt-out’, EU Observer 20 February 2014, https:// euobserver.com/news/123211. 80

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IV. Non-discrimination The Treaty establishing the European Economic Community (the Treaty of Rome of 1957) did not contain any general non-discrimination principle. As the objective was the gradual establishment of a common market, it was natural to focus on preventing discrimination on grounds of nationality. According to what is now Article 18 TFEU (ex Article 12 TEC), ‘any discrimination on grounds of nationality shall be prohibited’ and specific examples of that prohibition are to be found in the provisions regulating each of the economic freedoms.86 The provisions concerning citizenship of the European Union, notably the right of Union citizens to move and reside freely within the territory of the Member States, may be seen as the first step beyond that economic focus.87 The inclusion in the original Treaty of Rome of ‘the principle of equal pay for male and female workers for equal work or work of equal value’ (originally Article 119, later to become Article 141 TEC and now Article 157(1) TFEU) was therefore born of internal market rather than fundamental rights considerations. Interestingly, it was this prohibition of wage discrimination on grounds of gender that provided the ECJ with the opportunity (in 1976) to hold for the first time that a provision of the Treaty could produce horizontal direct effect—in other words, it could be invoked directly by private parties in litigation against other private parties.88 That judgment has paved the way for the idea of the horizontal application and direct effect of fundamental freedoms and fundamental rights more generally.89 The original principle of equal pay has evolved towards a concept of equality between men and women in general and the ECJ has held that the principle of equal treatment of men and women is one of the fundamental principles of Union law and one of the fundamental rights the observance of which the Court has a duty to ensure.90 Article 2 TEU, when describing the values on which the Union is founded, envisages a society where ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail’. In order to build such a society, Article 8 TFEU provides that in all its activities the Union shall aim to eliminate inequalities, and promote equality, between men

86 The free movement of goods, workers, services and capital. There are five freedoms if the right of e stablishment is seen as a distinct freedom. See Arts 34 (goods), 45 (workers), 49 (establishment), 56 (services) and 63 (capital) TFEU and ch 13(II) below. 87 See ch 10(IV) above. 88 Case 43/75 Defrenne (‘Defrenne II’), n 17 above. See also ch 6(IV) above. 89 For an example relating to the right of establishment, see Case C-438/05 International Transport Workers Federation, n 14 above. In this judgment, the Court also recognised the right of workers to take collective action as a fundamental right and held that trade unions could, in principle, invoke it as a possible defence against legal action by employers based on the right of establishment. See further section V below. 90 Case 149/77 Defrenne (‘Defrenne III’) EU:C:1978:130, paras 26–27; Case C-423/04 Richards EU:C:2006:256, paras 22–23. See also C Barnard, EC Employment Law, 3rd edn (Oxford, Oxford University Press, 2006) 298 et seq. It is not possible here to examine the detailed secondary legislation concerning equality between the sexes; for examples see Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), [2006] OJ L204/23; Directive 2010/41/EU of the European Parliament of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, [2010] OJ L180/1.

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and women, and Article 10 TFEU takes equality beyond gender, stipulating that, in defining and implementing its policies and activities, the Union shall aim to combat discrimination based not only on sex, but also racial or ethnic origin, religion or belief, disability, age or sexual orientation. However, this provision is formulated as a general objective and not as a subjective right.91 It was in the Treaty of Amsterdam that this new phase in EU non-discrimination law was first heralded with the introduction of a general legal basis for taking legislative action to combat discrimination based on a number of different grounds (Article 13 TEC, now Article 19(2) TFEU). As a general rule, such action had to be taken by the Council, acting unanimously.92 While this provision was, and remains, devoid of direct effect, it was inevitable that the grounds of discrimination listed in Article 13 TEC would start to influence not only legal thinking but also concrete developments.93 In that respect, it is perhaps only to be regretted that those developments do not display any consistency in approach which would lead to a cohesive body of law on discrimination in the EU; Directive 2000/78 applies to all persons but is limited to employment and occupation, sex is not mentioned in view of the extensive Union legislation relating to gender non-discrimination, and racial and ethnic origin are the focus of another Directive (2000/43), which on the other hand is not limited to matters of employment and occupation.94 Article 21(1) of the Charter of Fundamental Rights represents the culmination of this evolution and is remarkably broad, prohibiting as it does ‘[a]ny discrimination based on any ground’. There follows a long list of examples (‘such as’): sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age and sexual orientation. The relationship between Article 19 TFEU and Article 21 of the Charter therefore becomes an interesting question. Without analysing this matter in any greater detail, we will simply note that the nature of the two provisions is fundamentally different.95 Article 19 TFEU lays down a legal basis for Union legislation, which is therefore limited to the grounds mentioned in that provision (or other specific legal bases in the TFEU). In other words, Article 19 TFEU provides the legal basis for legislation (for example the two Directives of 2000). Article 21 of the Charter, on the other hand, may have a broader reach in terms of the conduct it prohibits but it can only apply in situations which fall within the scope of application of the Treaties and cannot, of itself, determine or alter that scope. Turning finally to the different grounds of discrimination, some ground-breaking concepts illustrate the dynamic nature of the EU system of fundamental rights: disability discrimination is covered not only by Directive 2000/78 and Article 21(1) of the

91

See also Art 23 of the Charter of Fundamental Rights. the Council, by application of Art 13(2) TEC, adopted incentive measures, not implying the harmonisation of the laws of the Member States, it could act in accordance with the co-decision procedure (full participation of the European Parliament and qualified majority decision-making in the Council). 93 Case C-427/06 Bartsch EU:C:2008:517, paras 18–25. See also the Opinion in that case of Advocate General Sharpston of 22 May 2008, para 73. The Treaty of Lisbon did not amend Art 13 TEC in any significant respect, other than to subject harmonisation measures under Art 19(1) TFEU to the consent instead of mere consultation of the European Parliament. 94 See n 18 above. But see the Commission proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM(2008) 426 final, 2 July 2009, which is not limited to employment and occupation. 95 See also the Explanation on Art 21 annexed to the Charter (n 41 above). 92 When

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Charter of Fundamental Rights, but also by the UN Convention on the Rights of Persons with Disabilities of 2007, to which the Union has adhered.96 There is already a fairly extensive case law relating to discrimination on the ground of disability.97 Sexual orientation is now mentioned in Union primary and secondary law alongside gender and has also given rise to ECJ case law.98 This is also true, albeit to a lesser extent, of discrimination on grounds of race99 and religion.100 Also, age discrimination features among the ‘new generation’ of grounds of discrimination. The distinction between objective differences in treatment (legitimate) and discrimination (prohibited) is particularly difficult to make in the case of age. Directive 2000/78 allows for more far-reaching justifications based on age than is the case for the other grounds. ECJ case law, which has become quite extensive, nevertheless concludes that the exclusion of young or old people from certain rights or advantages may constitute age discrimination.101 After Mangold, the Court was criticised especially in some German constitutional circles for having acted ultra vires in recognising the prohibition of discrimination on grounds of age as a general principle of Union law.102 While in Mangold, the Court did not refer to Article 21 of the Charter (the judgment was given four years before the entry into force of the Lisbon Treaty), the question seems less controversial today, with the Charter as a part of binding primary law. Finally, while the prohibition of discrimination on the grounds of race and ethnic origin is well established, the introduction of the concept of minority is a novelty which deserves mention.103 Directive 2000/43 relating to discrimination on the grounds of racial or ethnic origin is of obvious relevance for the protection of minorities but, significantly, the concept of minority is absent from its wording. Reference to ‘membership of a national minority’ is now to be found in Article 21(1) of the Charter of Fundamental Rights and, more importantly, in Article 2 TEU, which includes respect for ‘human rights, including the rights of persons belonging to minorities’ among the basic values upon which the Union is founded. Not so long ago, the word minority could not even be mentioned in Union law; the protection of the rights of persons belonging to minorities now figures among the Union’s core constitutional principles.104

96

See n 68 above. On disability discrimination generally, see Barnard, n 90 above, 391–93. For ECJ case law (which often refers to the UN Convention as a tool for interpreting Directive 200/78) see n 68 above. 98 See Case C-117/01 K.B., n 34 above; Case C-423/04 Richards, n 90 above; Case C-267/06 Maruko EU:C:2008:179; Case C-147/08 Römer EU:C:2011:286; Case C-81/12 Asociatia ACCEPT EU:C:2013:275; Joined Cases C-199/12 to C-201/12 X and Others EU:C:2013:720; Case C-528/13 Léger EU:C:2015:288. See also Barnard, n 90 above, 389. 99 Case C-54/07 Feryn EU:C:2008:397; Case C-83/14 CHEZ Razpredelenie Bulgaria EU:C:2015:480. 100 See notably Cases C-157/15 Achbita EU:C:2017:203 and C-188/15 Bougnaoui EU:C:2017:204, which concerned the right to use a headscarf in the private sector. 101 It is not possible here to give an exhaustive list of the relevant case law. For examples of older judgments see Case C-144/04 Mangold, n 35 above; Case C-88/08 Hütter EU:C:2009:381; Case C-555/07 Kücükdeveci, n 35 above; Case C-499/08 Ingeniørforeningen i Danmark EU:C:2010:600. For examples of more recent case law see Case C-530/13 Schmitzer EU:C:2014:2359; Case C-441/14 Dansk Industri EU:C:2016:278; Case C-258/15 S alaberria Sorondo EU:C:2016:873. 102 See ch 4(III) above. See also A Rosas, ‘How Old Are You? Age Discrimination and EU Law’ in A Eide, J Møller and I Ziemele (eds), Making Peoples Heard: Essays on Human Rights in Honour of Gudmundur Alfredsson (Leiden, Martinus Nijhoff Publishers, 2011) 341. 103 See, eg K Topidi, EU Law, Minorities and Enlargement (Antwerp, Intersentia, 2010), notably 59–63; T Ahmed, The Impact of EU Law on Minority Rights (Oxford, Hart Publishing, 2011). 104 On these principles, see ch 5(II) above. 97

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V. Direct Effect There can be no doubt that at least some provisions of the Charter of Fundamental Rights are intended not only to be directly applicable but also to have direct effect. However, let us start with the opposite scenario: certain provisions specifically do not give rise to direct claims the object of which is to achieve action by the Union or its Member States. Article 52(5) of the Charter expresses it thus: the provisions of the Charter which contain ‘principles’ may be implemented by legislative and executive acts taken by Union bodies and by acts of Member States when they are implementing Union law but ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. In other words, the Charter, which sets out various rights, freedoms and principles, appears to make a distinction between rights (including freedoms) on the one hand and principles on the other, with the latter being significant for the Courts only when the acts implementing those principles are being interpreted. A contrario, the former category may be judicially cognisable in a broader range of situations, including when they are invoked directly by individuals.105 Beyond the examples given in the Explanations relating to the Charter106—that Articles 25 (dignity for the elderly), 26 (recognition for persons with disabilities) and 37 (a high level of environmental protection) set out principles while Articles 23 (equality between women and men), 33 (family and professional life) and 34 (social security and social assistance) contain elements of both a right and a principle—the distinction, which seems to relate to the distinction sometimes made in legal theory between ‘rules’ and ‘principles’, may be difficult if not impossible to uphold, especially at an abstract level.107 In any event, the distinction does not correspond to the distinction between general principles of Union law and other norms of primary or secondary Union law.108 The general principles of Union law are of general applicability, but that does not exclude that they may in a concrete situation function as ‘rules’ requiring, authorising or prohibiting a certain conduct. The provisions containing principles seem to have in common that they are formulated as obligations of the Union rather than as rights enjoyed by individual subjects, and that the substance of the obligation is expressed in rather general terms.109 Referring back to our discussion in section III above, it is also interesting to note that, of the three provisions cited in the Explanations as examples of principles, only one (Article 37) is to be found in Title IV of the Charter, the part of the Charter specifically identified in Protocol No 30 on the application of the Charter to the UK and Poland as not creating justiciable rights in

105 On Art 52 see, eg T von Danwitz in PJ Tettinger and K Stern (eds), Kölner Gemeinschaftskommentar zur Europäischen Grundrechte-Charte (München, Verlag CH Beck, 2007) 775; S Peers and S Prechal, Commentary to Article 52 in Peers et al, n 54 above, 1455 at 1508–11. 106 [2007] OJ C303/35. See also Kühling, n 19 above, 492. 107 On the distinction between rules and principles see, eg Dworkin, n 6 above, 22, 72; on the practical application of that distinction see, eg F Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based DecisionMaking in Law and in Life (Oxford, Oxford University Press, 1991) 13. 108 On the concept of general principles of Union law, see ch 5(III) above. 109 See, eg Case C-176/12 Association de médiation sociale EU:C:2014:2, paras 43–51, holding that Article 27 of the Charter (workers’ right to information and consultation within the undertaking) cannot be invoked directly.

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these two countries (except insofar as they have provided for such rights in their national laws). In other words, the Protocol’s reference to non-justiciable rights does not coincide with the examples of ‘principles’ given in the Explanations. On the ‘a contrario’ assumption that the rights (and freedoms) laid down in the Charter may on the other hand produce direct effect, the key question is whether they may also have horizontal direct effect, in other words whether they may be relied upon by individuals against other individuals.110 The debate thus takes on all the qualities of the general discussion as to the manner in which primary law (the rank of Union law to which the Charter now belongs) may be invoked (see chapter six above). Recent case law suggests that some ‘horizontal’ effect cannot be excluded, although the precise contours of this notion still need to be developed and clarified. On the basis of the case law to date, it seems pertinent to distinguish between the following three situations, which have all come before the ECJ in the context of a preliminary ruling procedure. First, in the case of litigation between a private party (A) and a state authority (S) concerning a public measure which is addressed to another private party (B), a triangular situation arises, but it is not a question of horizontal effect in the proper sense. For example, in Schmidberger, a commercial enterprise (A), in litigation between it and the state (and thus in a vertical relationship), found the freedom of expression and freedom of assembly enjoyed by (B) invoked against his claims under Article 28 TEC to free movement of goods. In the case at hand, the state successfully established that, in authorising a demonstration organised by (B) which closed a transport route between Italy and Austria for a few days to go ahead, a fair balance had been struck between the competing interests.111 Secondly, if the litigation concerns a dispute between two private parties (A v B) and one of the parties relies on the alleged non-conformity of a national state measure (S) with Union law, the situation again has a triangular element but the relation between A and B is of a horizontal nature. In Mangold and Kücükdeveci, a private party (A), in a dispute with his private sector employer (B), relied on the alleged non-conformity of German legislation (S) with the prohibition of age discrimination in Union law to obtain the setting aside of the national provision. The ECJ recognised the status of the principle of non-discrimination on grounds of age as a general principle of Union law, thus leading to the conclusion that the national judge must, if need be, set aside any national rule not in conformity with that principle.112 The third situation implies direct litigation between two private parties (A v B) which does not concern any state or other public measures. It is thus a bilateral rather than triangular relationship. The seminal judgment in Defrenne II was already referred to above.113

110 De Witte, n 6 above, 874 assumes that ‘Community fundamental rights do not directly bind private parties’. See also Kühling, n 19 above, 493–94. 111 Case C-112/00 Schmidberger, n 14 above. 112 Case C-144/04 and Case C-555/07, n 35 above. The directive at issue was Directive 2000/78, n 18 above. See also Case C-176/12 Association de médiation sociale, n 109 above, para 47; Case C-441/14 Dansk Industri, n 101 above, para 36 and the Opinion of the Advocate General of 8 September 2011, paras 69–88 in Case C-282/10 Dominguez EU:C:2012:33. 113 See at n 17 above.

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International Transport Workers’ Federation (the ‘Viking Line’ case) and, to a lesser degree, Laval un Partneri are further cases in point.114 In the former, a Finnish shipping company (A) relied on the right of establishment as an economic freedom recognised by primary law in order to prevent a Finnish trade union and its international federation (B) from impairing the exercise of this economic freedom by threatened boycott actions. The latter, on the other hand, could invoke in its defence the right of collective action as a fundamental right. The case thus confirmed the potential for horizontal effect of both an economic freedom and a fundamental right. The ECJ, concluding that the right of collective action had become a general principle of Community law, accepted that both rights could be invoked and that, like in Schmidberger, the two rights had to be balanced against each other. These cases illustrate situations in which fundamental rights have been held to be capable of producing direct effect, sometimes even in horizontal situations. However, it does not follow that all fundamental rights lend themselves to horizontal application, nor that such application will necessarily produce the same effects as situations of vertical direct effect.115 For instance, horizontal direct effect in the Mangold and Kücükdeveci situation was limited to an obligation to set aside a national rule held to be incompatible with a general principle of Union law and within the field of application of a directive.116 It is another matter whether a decision may be based solely on that general principle by importing its content into the national legal order.117 Finally, the proviso with which we opened this chapter should always be borne in mind: Union fundamental rights are only applicable at the Member State level in situations which fall within the scope of Union law.118

114 Case C-438/05 International Transport Workers’ Federation, n 14 above; Case C-341/05 Laval un Partneri, n 54 above. The latter case also concerned the interpretation of a Directive and, at least indirectly, alleged nonaction on the part of the Swedish State. 115 See also the discussion of Advocate General Poiares Maduro in his Opinion of 23 May 2007 in the Viking Line case, n 14 above. 116 J Kokott and C Sobota, ‘The Charter of Fundamental Rights of the European Union after Lisbon’ EUI Working Paper AEL 2010/6 (Florence, European University Institute, 2010) 14–15. 117 C Timmermans, ‘The Court of Justice of the EU, a Human Rights Courts?’, annual lecture, Kings College, London, 6 May 2010, 9 observes that the principle prohibiting age discrimination cannot directly impose obligations on a private employer. 118 Thus, for instance, in the Viking Line case, n 14 above, the trade union could rely on the right of collective action vis-à-vis the shipping company in the context of the right of the latter to invoke an economic freedom recognised in the Treaties.

12 Broadening Horizons? The Area of Freedom, Security and Justice I. General One of the most striking illustrations of just how far beyond purely economic integration the EU has developed is the creation of what since the Treaty of Amsterdam has been termed an ‘area of freedom, security and justice’.1 The first steps in fields related to the concept of justice and home affairs were taken in the form of intergovernmental cooperation, partly outside the EU institutional framework (for example, in the context of the Council of Europe and the Hague Conference on Private International Law, which continue to sponsor international conventions of relevance for the EU area of freedom, security and justice).2 Action was limited in scope (with perhaps the exception of the Brussels Convention on the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters, and the Schengen Agreement to abolish internal border controls) and was clearly subsidiary to internal market integration and the economic freedoms. Justice and Home Affairs was first brought into the Treaty framework as the Third Pillar of the EU at Maastricht and the Treaty of Amsterdam heralded a more supranational approach to some of the matters covered by this area of activity, namely as regards immigration and asylum questions and judicial cooperation in civil matters having crossborder implications, including the jurisdiction of courts and recognition and enforcement of judgments. However, some limitations, partly of a transitional character, remained, and the intergovernmental Third Pillar continued to exist, albeit with its scope reduced to the field of police and judicial cooperation in criminal matters.

1 On the early evolution of justice and home affairs (the original label for this policy area) see, eg N Walker (ed), Europe’s Area of Freedom, Security and Justice (Oxford, Oxford University Press, 2004); J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006) 164–67; D Kostakopoulou, ‘The Area of Freedom, Security and Justice and the European Union’s Constitutional Dialogue’ in C Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford, Oxford University Press, 2009) 153, 156–64. 2 The EU cooperates extensively with the Council of Europe, see, eg Council Decision of 28 February 2008 relating to the conclusion of an Agreement between the European Community and the Council of Europe on cooperation between the European Union Agency for Fundamental Rights and the Council of Europe, [2008] L186/6 (on the EU Agency, see ch 11(I) above, at n 19). On the Hague Conference see Council Decision 2006/719/ EC of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law, [2006] OJ L297/1.

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All in all, cooperation predating the entry into force of the Treaty of Lisbon ‘has eveloped in various stages, evolved at variable speeds and has blended intergovernmental d and integrationist elements in a unique way’.3 However, there has been a step change in the approach to this area of activity, and the title on the area of freedom, security and justice is now seen as one of the most important for the future of the Union.4 The new layout of the treaties and how they set about defining what the Union is highlight the central role now occupied by this policy area: Article 3 TEU establishes the basic aims or objectives of the Union by referring first of all to the promotion of peace, the values of the Union (as enumerated in Article 2 TEU) and the well-being of its peoples (paragraph 1). This is immediately reinforced by the following provision: 2. The Union shall offer its citizens an area of freedom, security and justice without internal borders, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

In other words, this provision precedes the objectives of an internal market and an economic and monetary union set out in paragraphs 3 and 4 respectively. That said, it is true that the TFEU then deals with the specific policies in the same order as before, setting out the rules governing the internal market, including agriculture and fisheries (Titles I–IV of Part Three TFEU), before moving on to regulate the area of freedom, security and justice (Title V of Part Three TFEU). What is important to note is not only the mainstreaming of the policy area, with the Treaty of Lisbon abolishing most of the previous restrictions on Union legislative and judicial powers, but also the shift in its focus; the area is now, according to Article 3(2) TEU, offered to ‘its citizens’.5 This is a reminder of the importance of Union citizenship, discussed in chapter ten above, as the fundamental status of nationals of the Member States and of the fact that the area of freedom, security and justice is above all about ‘us’, its citizens, and our interests and needs rather than about relations with third countries or their nationals. However, the area of freedom, security and justice is more than that; it is, borrowing from what has defined the internal market for decades, an area ‘without internal f rontiers’.6 The common policy is therefore very much about external border control and about regulating—and limiting—immigration from third countries, not for its own sake but because, once inside the Union’s area of freedom, security and justice, and the Schengen area in particular, in which border controls have been abolished, free movement becomes

3

Kostakopoulou, n 1 above, 153. Piris, n 1 above, 164. See also K Lenaerts, ‘The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice’ (2010) 59 International and Comparative Law Quarterly 255. 5 Compare the text of the former Art 2 TEU (which headed up the description of the Community’s objectives with the establishment of the common market and economic and monetary union) and Art 3(d) TEC on the entry and movement of persons (paras (a)–(c) having set out the basic economic aims). See also the Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens, adopted by the European Council on 10–11 December 2009 as a multi-annual programme for the years 2010–14, Conclusions of the European Council, EUCO 6/69 Brussels, 11 December 2009, paras 25–33, and the Communication from the Commission, Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan implementing the Stockholm Programme, COM(2010) 171 final, 20 April 2010. 6 See Art 26 TFEU (formerly Art 14 TEC). 4

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the rule (albeit with some exceptions, notably for third-country nationals who are not accompanying a Union citizen).7 This explains why the provisions concerning specifically Union citizenship, including the basic right to move and reside freely within the territories of the Member States (Article 21 TFEU), do not appear in Title V of Part Three TFEU but in its Part Two on nondiscrimination and citizenship.8 The two notions are separate, and Union citizens are not the only ones to benefit from the creation of the area of freedom, security and justice. The ECJ has on the other hand had occasion to underline the fact that, while separate, the two notions are nevertheless linked and the free movement rights of family members of Union citizens must be respected even when applying specific Schengen zone restrictions on entry to that area.9 Again, paralleling the evolution of the internal market, while the common legal space relating to the area of freedom, security and justice is concerned primarily with situations having cross-border implications (including the borders between the Member States), the application of common rules does not necessarily presuppose that a citizen, or a third-country national, has actually moved or attempts to move from one Member State to another.10 To take an example, if the approximation of national laws concerning the definition of criminal offences and applicable sanctions is deemed essential to ensure the effective implementation of a Union policy which has been subject to harmonisation measures (for instance, environmental policy), Union directives may establish minimum rules to that effect (Article 83(2) TFEU). Clearly such rules are not dependent on the existence of cross-border movement and will apply to all persons in all situations. Similarly, Union legislation on the status of third-country nationals, including refugees, contains a number of provisions regulating the presence and residence of such persons in a given Member State, irrespective of previous (the person may even have been born in the Member State concerned) or subsequent movements across borders. Indeed, while the absence of internal border controls and a number of flanking measures designed to facilitate free movement, including judicial cooperation in civil and criminal matters, is perhaps the most well-known manifestation of ‘the area’, the emphasis on security and justice is just as important, and may even involve repressive measures and the movement of citizens against their will (for instance, by application of the European arrest warrant). The ‘right to security’, especially of law-abiding persons (both citizens and thirdcountry nationals), is a fundamental right and can result in restrictions on the liberty of

7 See discussion at section II below in relation to the status of third-country nationals, a fair policy on asylum and immigration and, in the context of free movement, the absence of a corresponding right to reside or work in a Member State other than the one to which access was first gained. 8 J Monar, ‘The Area of Freedom, Security and Justice’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 551, 580 criticises the fact that the only link between citizenship and the area of freedom, security and justice is made in Art 3 TEU. 9 Case C-503/03 Commission v Spain EU:C:2006:74. 10 A wealth of internal market secondary legislation applies to goods (eg regulating trade in harmful products), services (eg liberalising former monopolistic markets such as telecommunications) or situations (eg regulating the work-place), irrespective of cross-border movement. But see the discussion in ch 13(II) below, nn 27–33, as regards ‘purely internal situations’ falling outside the scope of application of the Treaties.

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persons who pose a threat to security.11 Such threats are perceived to have been aggravated or augmented by the abolishment of internal border controls, the increased threat posed by terrorism, the Europeanisation and internationalisation of organised crime, and the influx of immigrants and asylum-seekers, including illegal immigrants, into the Member States of the Union, and Article 67(3) TFEU thus sets the objective of promoting a ‘high level of security’.12 The efficient and swift implementation of rules aimed at guaranteeing the free movement of judicial decisions in criminal matters in particular is key to enhancing security. With respect to judicial cooperation in civil matters, it is in the direct interest of the citizens that judicial decisions in one Member State will be efficiently and swiftly implemented in another Member State. This brings us to the principle of mutual recognition of judicial decisions, which is referred to in Articles 67(3) and (4), 81(1) and 82(1) TFEU. Especially in certain non-harmonised areas (such as a large part of criminal law), it is essential that a judicial decision rendered in one Member State be recognised in another, despite the differences which may exist between applicable national rules. The area of freedom, security and justice has been divided into four parts:13 (i) (ii) (iii) (iv)

policies on border checks, asylum and immigration (Chapter 2 of Title V); judicial cooperation in civil matters (Chapter 3); judicial cooperation in criminal matters (Chapter 4); police cooperation (Chapter 5).

Before the Treaty of Lisbon, judicial cooperation in criminal matters and police cooperation were treated together under Title VI TEU. As each of these areas has been developed independently in the Treaty of Lisbon, they will be given separate consideration in the following discussion as well. However, the principle of mutual recognition is of cross-cutting importance. Mutual recognition is based on the principle of mutual trust and has become especially relevant in the following three contexts: the European arrest warrant under the relevant Framework Decision,14 the return of unlawfully abducted children under the so-called Brussels IIa Regulation15 and the return of asylum-seekers to the Member State competent

11 See, eg Art 6 of the Charter of Fundamental Rights (right to liberty and security) and Joined Cases C-293/12 Digital Rights Ireland EU:C:2014:238, pars 42 and 44 and C-601/15 PPU J.N. EU:C:2016:84, para 53. It is submitted that some of the criticism levelled against the area of freedom, security and justice for privileging security at the expense of freedom and justice (see, eg Monar, n 8 above, 559, 580–85) does not pay sufficient attention to the fact that this right to security is a fundamental right. 12 Kostakopoulou, n 1 above, 172; Monar, n 8 above, 558–62 underlines the strong security component of the area, particularly in comparison with the concept of freedom. See also the previous footnote. 13 Monar, n 8 above, 556–57 notes that the area of freedom, security and justice ‘lacks a natural substantive coherence, but this is compensated for by the historical coherence provided by the development of the JHA domain … the political will of EU policy-makers to merge … these fields into a single domain and the coherence provided by the common legal and institutional framework’. 14 Council Framework Decision 2992/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ L190/1, as amended by Council Framework Decision 2009/299/ JHA of 26 February 2009, [2009] OJ L81/24. 15 Council Regulation (EC) No 2201/2003 (Brussels II a) of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, [2003] OJ L338/1.

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to deal with an asylum request under the consecutive Dublin Regulations.16 These three topics will be explored in more detail in the relevant sections below. However, before turning to the constituent parts of the area of freedom, security and justice, identified above, and in order to underline the importance of the principle, without which the concrete developments detailed below would not be possible, we will make a number of preliminary observations on the notion of mutual recognition as such. According to the ECJ, the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained.17 Indeed, it would appear that it should be seen as a constitutional principle.18 And like so many of the constitutional principles that serve to make the EU legal order what it is, no definition of the principle can be found in the Treaties. Indeed, it is immediately after listing those specific characteristics of EU law such as primacy and direct effect that the ECJ, in Opinion 2/13, gives the following definition: This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.

Several elements of that statement deserve comment. First it is precisely the set of common values which allows respect for a degree of difference. Secondly, and as was in fact already recognised by the Court in 1977, by virtue of their membership of the EU, one Member State can and must place its trust in the fact that another Member State can and will uphold the law.19 Indeed, that trust even ‘permits the inference that, in the event of the misapplication of national or EU law, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals’ that order will be restored.20 And thirdly, the principle of mutual trust and the mutual recognition that it allows is not new and is certainly not limited to the area of freedom, security and justice.21 What does however seem to be true is that it has gained a particular prominence in relation to that field of Union law and more specifically as a result of the tension that necessarily exists between rules the purpose of which is often to deprive people of their freedom and the protection of human rights and fundamental freedoms as enshrined in particular in the Charter. This leads us to our fourth observation, that the principle is not absolute. Indeed, while its precise contours are still in a state of flux, it can at least be stated that the principle of mutual trust implies two negative obligations: Member States may not demand a higher level of protection than that provided

16 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II), [2003] OJ L50/1, repealed by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (recast) (Dublin III), [2013] OJ L180/31. 17 Opinion 2/13 (Draft Agreement on Accession to the European Convention on Human Rights), EU:C:2014:2454, para 191. 18 K Lenaerts, ‘La vie après l’avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 Common Market Law Review 805 at 813. 19 Case 46/76 Bauhuis v the Netherlands EU:C:1977:6, para 22. 20 Case C‑681/13 Diageo Brands v Simiramida-04 EOOD EU:C:2015:471, para 63. 21 S Prechal, ‘Mutual trust before the Court of Justice of the European Union’, (2017) 2 European Papers 75.

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by EU law, and they may not check whether another Member State has actually, in a specific case, observed the fundamental rights guaranteed by EU law.22 That second obligation is however accompanied by the caveat ‘save in exceptional circumstances’. And that is our fifth and final observation, ‘mutual trust does not mean blind trust’.23 Thus, in exceptional circumstances a Member State may or indeed must overturn the presumption by which it is otherwise bound that all Member States are ensuring appropriate respect for EU law, including fundamental rights.24 It is important to emphasise, therefore, that while the ECJ has, on the one hand, insisted on the swift and efficient application of the rules establishing an obligation on a Member State to transfer a person present on its territory to another Member State, it has, on the other, recognised that in exceptional situations, there may be not only a right but also an obligation not to transfer such a person if there are very serious concerns about ensuring respect for the person’s right not to be treated inhumanely or degradingly in the other Member State.25 It is this specific acknowledgement of the limits to the principle of mutual trust that have calmed initial fears of a conflict between the Luxembourg and Strasbourg courts: the latter seemed to involve a stricter control by the State obliged to recognise the decision of another Contracting Party, including by requiring an assessment of the individual circumstances of a particular case.26 However, we suggest that more recent case law from the European Court of Human Rights shows a greater understanding for the need, in relations between parties that are both members of the EU, to acknowledge the importance of the principle of mutual trust, including of course the limits placed on that principle.27 Finally, although the Treaty of Lisbon extends the ordinary legislative procedure to the whole policy area and consigns the former restrictions on the competence of national courts and the jurisdiction of the Union Courts to the past, action in this field continues to touch on subjects often closely associated with national sovereignty (for example, immigration policy and penal law). The area is therefore one of shared competence (Article 4(2)(j) TFEU), and the sensitivity of the issues involved has resulted in certain qualifications to the Union’s usual competences and powers, especially in the area of criminal and police matters, which continues to display elements of cooperation rather than integration in the narrow sense.28

22

For an example see Case C-399/11 Melloni EU:C:2013:107. Bay Larsen, ‘Some Reflections on Mutual Recognition in the Area of Freedom, Security and Justice’ in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012) 139 at 148–49; Lenaerts, note 18 above. 24 Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198, para 78. For a consideration of the questions raised in relation to what might count as exceptional circumstances, see Prechal, n 21 above, at p. 88. 25 Such a balancing between implementation and enforcement, on the one hand, and respect for fundamental rights, has been particularly acute with regard to the European arrest warrant, see the leading case of Aranyosi and Căldăraru, ibid. With respect to the possible non-return of asylum seekers see Joined Cases C-411/10 and 493/10 N.S. EU:C:2011:865 and Case C-578/16 C.K. EU:C:2017:127. 26 Bay Larsen, n 23 above, 151–52. 27 See, in particular, Povse v Austria (Application No 3890/11), decision of 18 June 2013; Avotinš v Latvia (Application No 17502/07), judgment of 23 May 2015. 28 See Monar, n 8 above, 568, 578. 23 L

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The Commission’s right of initiative (so important to the institutional framework in general)29 is not exclusive in the field of police and judicial cooperation in criminal matters; a proposal can enter the legislative process on the initiative of a quarter of the Member States (Article 76 TFEU).30 Article 69 TFEU also contains a reminder of the importance of the principle of subsidiarity in the context of the area of freedom, security and justice, and there are several examples of the direct interaction with national parliaments discussed in chapter seven above as indicative of the multilevel governance which characterises the EU.31 Finally, the provisions on judicial cooperation in criminal matters enable a Member State to invoke the ‘fundamental aspects of its criminal justice system’ and, exceptionally, opt out of a particular legislative proposal (Articles 82(3) and 83(3) TFEU). This mechanism is reminiscent of the more general flexibility and differentiation so prominent in the area of freedom, security and justice (see chapter eight above). The pattern of ‘opt-outs’ (Denmark, Ireland and the UK)32 and ‘opt-ins’ (Iceland, Liechtenstein, Norway and Switzerland)33 has coloured the development of this policy area and continues to constitute a dominant feature of the Union constitutional order in this context.

II. Border Checks, Asylum and Immigration Asylum and immigration policy has become one of the most dynamic but also one of the most contentious and complex areas of Union law. Extensive Union legislation on asylum and immigration as well as the regulation of internal and external border checks has existed for quite some time.34 But, the massive influx, especially in 2015, of immigrants and asylumseekers from the Middle East, fuelled in particular by the armed conflicts in Afghanistan, Iraq and Syria, and from Africa, fuelled to a large extent also by economic considerations, led not only to a critical situation on the ground and a debate of an economic, political and security nature, but also to changes and initiatives of a legislative nature, in particular concerning the control of external borders.35 Since the field is the subject of detailed analysis by experts, we shall limit ourselves to some observations of a general nature mainly related

29

See ch 7(II) above, at nn 48 et seq. For an example, see Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order, [2011] OJ L338/2. 31 See Art 7(2) of Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality, ch 7(IV) above, and Arts 70 and 71 TFEU. 32 On the opt-outs and opt-ins of the Lisbon Treaty, see Monar, n 8 above, 569–73; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 192–200 and ch 8(II) above. 33 See ch 8(II) above, n 27. 34 See, eg P Boeles et al, European Migration Law, 2nd edn (Cambridge, Intersentia, 2014); S Peers et al (eds), EU Immigration and Asylum Law: Text and Commentary, 2nd rev edn (Leiden, Brill-Nijhoff, 2015); AJ Menéndez, ‘The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration’ (2016) 22 European Law Journal 388. 35 See, eg European Parliament, The Implementation of the Common European Asylum System, study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs (2016), available at www.europarl.europa.eu/supporting-analyses. 30

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to the questions of competence and powers and the constitutional significance of the main reforms that have taken place in recent years. Chapter 2 of Title V TFEU contains three legal bases, one on border controls (Article 77), one on asylum and related matters (Article 78) and one on immigration policy (Article 79), all providing for the ordinary legislative procedure.36 These provisions are neither based on the idea of unfettered access of third-country nationals nor deprive the Member States of all scope for action, especially concerning long-term residence. These three separate but related aspects of the area of freedom, security and justice will be considered in turn. First, concerning border checks, the basic objective of abolishing internal border controls will obviously and necessarily benefit all persons travelling within that area, whatever their nationality, and Article 77(2)(e) TFEU authorises the adoption of measures to that effect. However, a legal basis is also provided for establishing the conditions under which third-country nationals may enjoy freedom to travel within the Union ‘for a short period’ (Article 77(2)(c) TFEU). The same provision refers to a common policy on visas and other ‘short-stay’ residence permits (Article 77(2)(a) TFEU). In other words, the absence of checks at the internal borders does not affect the substance of the right of either free movement or residence, including any limits placed on those rights. And the right of a third-country national to take up residence in a Member State other than the one to which they have gained access is far from free. Unless they are family members of Union citizens, they do not benefit from the full force of the principle of free movement laid down in Article 21 TFEU for Union citizens.37 Indeed, the Schengen Border Code specifically regulates the matter and accords freedom to travel for a maximum period of three months in any six-month period.38 What is more, the possibility exists for a Member State to temporarily re-introduce internal border controls. What had hitherto been an essentially technical matter invoked in relation to the security considerations engendered by major sporting events or high profile political meetings became the focus of recent attention as a result of the massive increase in the number of immigrants and asylum seekers generated by the situation in Africa and the Middle East and the identification of systemic problems in the control of external borders (in Croatia, Greece and Italy in particular) as well as of a string of terrorist attacks notably in Belgium and France. Indeed, the importance of the second aspect of the area (security) is not to be overlooked. More specifically, the Schengen Border Code enables the reintroduction, in exceptional circumstances, of internal border controls where there is a ‘serious threat to public policy or internal security’.39 Internal border controls should as a rule be in force for a very limited

36 An exception is contained in Art 77(3) TFEU, which, to the extent that other Treaty provisions do not provide the necessary powers, envisages measures to facilitate the right of free movement of Union citizens and their families by common provisions on passports, identity cards, residence permits and the like. In order to adopt such measures, the Council must act unanimously (after consulting the European Parliament). 37 On the right of free movement of Union citizens and their family members, see ch 10(IV) above. 38 See Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Border Code), [2006] OJ L101/1, replaced by Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016, [2016] OJ L77/1. Concerning the application of the three-month rule to third-country nationals who wish to return repeatedly to the Schengen area, see Case C-241/05 Bot EU:C:2006:634. 39 See ch II (Arts 25–35) of Regulation 2016/399.

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period (the Schengen Code mentions as a starting point a period of up to 30 days) but they can on certain conditions be set for somewhat longer periods as well as prolonged, it being understood that the total period may extend to a maximum of two years. The exceptional nature of the reintroduction of border controls by a Member State is reflected in the institutional oversight and the fairly detailed rules on the role of the European Parliament, the Council and the Commission in monitoring the situation, including the possibility of Council or Commission recommendations where the overall functioning of the area without internal border control is at risk.40 In the context of the geopolitical events referred to above, some Member States have re-established internal border controls for extended periods, albeit in most cases for only a limited part of their border.41 Of course, the normal rule of ‘unchecked’ movement within the Schengen area implies having gained access in the first place, ie at an external border point, and, as noted above, strengthening coordination in this field was seen as the necessary corollary to abolishing checks once ‘inside’. Article 77(2) TFEU therefore also provides for a specific power to adopt measures necessary for the gradual establishment of an integrated management system for border controls. An Agency for operational cooperation in this field (Frontex) was created in 2004, with its seat in Warsaw and the strengthening of the freedom and security of citizens of the EU as its mission.42 The scale of attempted entry provoked by geopolitical events in 2015 triggered an important reform of the system including the creation of a European Border and Coast Guard.43 The new Regulation states that the Border and Coast Guard comprises not only the revamped Frontex Agency but also the national authorities of the Member States which are responsible for border management, and so the general trend, referred to earlier,44 of a greater involvement of national authorities in the application and enforcement of Union law is evident once again in the shared responsibility of national and supranational players. Member States retain primary responsibility for the management of their sections of the external border of the Union but the Agency now takes a more active part than before by reinforcing, assessing and coordinating the actions of Member States. And the common interest in the integrity of the external border is evident in the organisation of joint operations and rapid border interventions, and the deployment of Border and Coast Guard teams at so-called ‘hotspots’.45 If control of the external border is rendered ineffective to

40 See, eg Council implementing decision (EU) 2017/818 of 11 May 2017 setting out a Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk, [2017] OJ L122/73. 41 At the time of writing, France (in principle, all, Germany (land border with Austria), Austria (land border with Hungary and Slovenia), Denmark (land border with Germany), Sweden (Swedish harbours near the Øresund bridge) and Norway (ports with ferry connections to Denmark, Germany and Sweden), Temporary Reintroduction of Border Control, www.ec.europea.eu/home-affairs/what-we-do/policies, consulted on 11 June 2017. 42 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), [2004] OJ L349/1, as amended. 43 Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard, [2016] OJ L251/1. 44 See ch 7(IV) above. 45 A rapid reaction pool has even been created, consisting of staff made available by the Member States to the Agency (the total number of such staff shall amount to a minimum of 1500 border guards or other relevant staff).

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such an extent that it risks jeopardising the functioning of the Schengen area, the Council, on the basis of a proposal from the Commission, may adopt a decision identifying measures to be taken by the Agency and requiring the Member State concerned to cooperate with the Agency.46 That the Agency has also been authorised to acquire, itself or in co-ownership with a Member State, or lease technical equipment including open sea and coastal patrol vessels or vehicles is a further indication of the intention to generate real results in this respect. And, in deference to the increased spotlight on action in this area, it is specifically instructed to fulfil its tasks in full compliance with fundamental rights.47 Secondly, we will consider what Article 78 TFEU describes as a common policy on asylum. The right to asylum is a fundamental right guaranteed by Article 18 of the Charter of Fundamental Rights, and the Union’s policy in this field must respect the rules of the Geneva Convention of 1951 and the Protocol of 1967 relating to the status of refugees. Again, the policy is not new, and three of the most important acts existing in this field are recent ‘recasts’ of older directives (laying down standards for the qualification and status of third-country nationals as a refugee or other person in need of international protection,48 on common procedures for granting and withdrawing international protection49 and on standards for the reception of applicants for international protection).50 The legal bases now contained in Article 78 TFEU maintain the focus on uniform rules, thereby attempting to eliminate the potential for ‘forum shopping’ by asylum-seekers and highlighting once again the common interest in external border control as a corollary to abolishing internal border checks. That said, Article 80 TFEU provides that asylum policy and its implementation are to be governed by the principle of solidarity and fair sharing of responsibility. The so-called Dublin Regulations, at the time of writing ‘Dublin III’ of 2013,51 establish criteria for determining the Member State responsible for examining an

In 2015, the Commission initiated the so-called ‘hotspot’ approach in order to provide operational support to Greece and Italy to ensure that arriving migrants and asylum seekers are identified, registered and fingerprinted, and channelled into the relevant follow-up procedures. The national personnel in the hotspot areas established in the two countries (four in Italy and five on the Greek islands) has been assisted by experts from the European Border and Coast Guard and the European Asylum Support Office in particular. See, eg the Special Report of the European Court of Auditors, EU Response to the Refugee Crisis: The ‘Hotspot’ Approach (Luxembourg 2017). 46

See in particular Arts 5 and 14–26 of Regulation 2016/1624. See Arts 34 and 38 of Regulation 2016/1624. 48 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, [2011] OJ L337/9. There is already an extensive case law relating to this Directive, see, eg Case C-465/07 Elgafaji EU:C:2009:94; Case C-542/13 M’Bodj EU:C:2014:2452; Joined Cases C-148/13, C-149/13 and C-150/13 A, B and C EU:C:2014:2406; Case C-472/13 Shepherd EU:C:2015:117; Case C-373/13 H.T. EU:C:2015:413; Joined Cases C-443/14 and C-444/14 Alo and Osso EU:C:2016:127; Case C-560/14 M EU:C:2017:101. Case C-573/14 Lounani EU:C:2017:71. 49 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), [2013] OJ L180/60. On this Directive, see eg Case C-69/10 Samba Diouf EU:C:2011:524; Case C-239/14 Tall EU:C:2015:824. 50 Directive 2013/33/EU if the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), [2013] OJ L180/96. See, eg Case C-601/15 PPU J.N., n 11 above. 51 Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a 47

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asylum application by a third-country national. There is a complex list of criteria to be applied in this regard but the most important—and controversial—one establishes that in the case of a person who has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum. This principle, by the simple fact of geographical location, places a particularly heavy burden on certain Member States, such as Croatia, Greece and Italy. What is more, experience shows that a massive influx of third-country nationals to a particular Member State may either risk the breakdown of the system (as the Member State struggles to cope with the sheer number of persons arriving on its territory) or cause the Member State concerned to allow the flow of asylum-seekers to pass through its territory and on to another Member State. With respect to the first scenario, the ECJ has held that Member States may be prevented from sending an asylum seeker back to the responsible Member State where the person concerned is faced with an obvious risk of being subjected to inhumane or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights, either because of systemic deficiencies in the asylum procedure and in the reception conditions in the Member State in question or because of reasons related to the individual situation of the asylum seeker.52 As noted above, in such situations the need, in accordance with the principle of mutual trust, to respect the criteria of the Dublin Regulation is qualified by the need to respect basic fundamental rights. This idea is now also expressed in the Dublin Regulation itself. On the other hand, and given that considerable numbers of asylum seekers have in fact managed to reach other Member States than the state of first entry, in particular Germany and Sweden, it must be noted that the recipient countries have in many cases used their right not to return.53 That said, it is also true that they have, in many instances, been unable to return54 the asylum seekers to the country of first entry. As to the approach of some Member States faced with a massive influx of asylum seekers and other third-country nationals to let the mass of people continue their journey to another Member State, the situation was recently analysed by the ECJ. The Court decided that even in such exceptional circumstances, the first entry is to be characterised as

third-country national or a stateless person (Dublin III recast), [2013] OJ L180/1. If the application is lodged by a Union citizen, it should, as a general rule, be rejected, see Protocol No 24 on Asylum for Nationals of Member States of the European Union annexed to the TEU and the TFEU. 52 See, in particular, Joined Cases C-411/10 and C-493/10 NS and ME et al EU:C:2011:865, (The judgment cites (para 88) a corresponding judgment of the European Court of Human Rights, Case of MSS v Belgium and Greece, Application No 30696/09, judgment of 21 January 2011); Case C-578/16 PPU C.K., H.F. and A.S. EU:C:2017:127. See also ch 11(III) above, n 58. 53 According to Article 17(1) of Regulation 604/13, by way of derogation from the criteria for determining the Member State responsible, each Member State ‘may’ decide to examine an application for international protection lodged with it, even if such examination is not its responsibility under the criteria laid down by the Regulation. In exceptional circumstances, the ‘may’ may become a ‘shall’ (in other words, an obligation not to return), see n 52 above. 54 It has, for instance, been reported that from the beginning of 2016 until March 2017, Germany had requested other Member States to take back some 72,000 asylum seekers but that only somewhat more than 5,000 had been accepted, C Kroet, ‘EU Countries Refusing to Take Back Refugees from Germany: Report’, Politico 12 June 2017, www.politico.eu/article/eu-countries-refusing-to-take-refugees, accessed on 13 June 2017.

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‘ irregular’, which implies that the Member State of first entry is responsible for the handling of asylum requests.55 The legislator is not blind to the problem: Article 78(3) TFEU refers to ‘one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries’ and forms the basis for two decisions to relocate first 40,000 and then 120,000 applicants for international protection from Greece and Italy to the other Member States.56 These measures are guided by the idea of solidarity and burden-sharing between the Member States, as specifically envisaged in Article 80 TFEU. But they are controversial. Indeed, two Member States brought an action for annulment of the second of the two Council decisions (which was dismissed by the Court),57 and only about 28,000 asylum seekers have so far been actually relocated.58 The significance of the apparent stand-off for the constitutional order of the Union should not be underestimated. The central role now occupied by the area of freedom, security and justice as well as the fact that the persons to be relocated are asylum seekers and therefore beyond any s pecific policy on migration as such seems to set these actions apart from other challenges by Member States to legislative acts in relation to which they have not formed part of the qualified majority. And as if to underline this fact, in June 2017, the Commission decided to open infringement cases against the Czech Republic, Hungary and Poland in view of their alleged failure to implement the relocation decisions (on the infringement procedure in general see section III of chapter sixteen). The urgency of the situation is reflected in the short deadlines given to the Member States, with a reasoned opinion addressed to all three Member States just six weeks after the letter of formal notice was sent. As this edition goes to print, the deadline for responding to the reasoned opinion has expired and the next step may be to bring the Member States before the ECJ. Of course, while Union law is focussed on controlling the point of entry, it seems rather obvious that those knocking on the door have come from somewhere. It was to this aspect of the problem that the European Council turned its mind in March 2016. Indeed, an action plan agreed with Turkey in order to control the influx of arrivals from Turkey to the Greek islands has been de facto instrumental in mitigating the situation in Greece, resulting in a considerable drop in numbers. As formulated in the statement by the Heads of State or Government of the European Union of 18 March 2016, the plan provides, inter alia, for the return to Turkey of migrants not applying for asylum or whose application has been declared unfounded or inadmissible.59

55 Cases C-490/16 A.S. and C-646/16 Jafari EU:C:2017:585. Compare the Opinion of Sharpston AG of 8 June 2017 EU:C:2017:443, where it is proposed that in such exceptional circumstances, the entry is not ‘irregular’. 56 Council Decision (EU) 2015/1523 of 14 December 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece, [2015] OJ L239/146 and the corresponding Council Decision (EU) 2015/1601 of 22 September 2015. In fact, a directive relating to temporary protection in the event of a mass influx of displaced persons had already been adopted in 2001 (Council Directive 2001/55/EC of 20 July 2001, [2001] OJ L 212/12), but had remained dead letter. 57 Cases C-643/15 Slovakia v Council and C-647/15 Hungary v Council EU:C:2017:631. 58 Fifteenth Report on relocation and resettlement, COM(2017) 465 final. 59 An action for the annulment of the Statement of 18 March 2016 was dismissed by the General Court on the ground that the Court lacked jurisdiction, as the Court found that the Statement could not be regarded as a measure adopted by the European Council but was a measure adopted by the EU Member States, Order of 28 February 2017 in Case T-257/16 NM v European Council EU:T:2017:130, The case is pending on appeal before the ECJ, Case C-210/17 P.

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The desirability of discouraging attempts to travel in the first place as a means of c ontrolling the influx of people attempting to gain entry to the Union had already been acknowledged in the form of the EU Naval Force—Mediterranean Operation Sophia (EUNAVFOR MED), deployed since 2015 to disrupt human smuggling and trafficking networks in the Southern Central Mediterranean. That mission also contributes to preventing the loss of life at sea, to the implementation of a UN arms embargo against Libya and to the training of Libya’s Coast Guard.60 However, as migrants found at sea are taken to Italy rather than back to Libya, the effect on the influx of arrivals to the EU has so far remained limited. What is more and in any event, the possibility, under international law, of returning such persons to the sending third state remains controversial. A related question is whether a person may initiate an asylum procedure on the territory of a third state. The ECJ has recently held that an application for a short-term visa on humanitarian grounds submitted at the embassy of a Member State with a view to applying for asylum immediately upon arrival in that State is not covered by the EU Visa Code and falls solely within the scope of national law.61 The Court also noted that applications for international protection made on the territory of a third State are not covered by Directive 2013/32 on common procedures for granting and withdrawing international protection and the Dublin Regulation. The significant efforts to limit the influx of arrivals have contributed to an overall decline in the number of asylum seekers and thus to a more orderly handling of applications and the treatment of the persons concerned.62 That said, the system continues to be far from problem-free63 and some legislative and other proposals to further improve the system are pending,64 such as a Commission proposal to revise the Dublin III Regulation (‘Dublin IV’) and one to bolster the European Asylum Support Office by converting it into an Agency for Asylum.65 What cannot be denied, however, is that the reforms already in place contain important innovations of an institutional and even constitutional nature. It is remarkable

60 See EUNAVFOR MED activity update to 5 April 2017, https://eeas.europa.eu/csdp-missions-operations/ eunavfor-med_en/3790/EUNAVFOR%20MED%20operation%20SOPHIA, accessed on 13 June 2017. The operation has at its disposal only five surface vessels and seven air assets. 61 Case C-638/16 PPU X and X EU:C:2017:173. The full title of the Visa Code is Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code for Visas, [2009] OJ L243/1, as amended by Regulation (EU) No 610/2013, [2013] OJ L182/1. 62 For instance, in January 2017, some 60,000 applications for international protection were registered, which was 38 per cent lower than in January 2016, European Asylum Support Office (EASO), ‘Latest Asylum Trends— January 2017, www.easo.europa.eu/sites/default/files/Latest Asylum Trends January_2017_final.pdf. 63 Some of the criticism seems exaggerated, or in any case fails to acknowledge the immense challenges of a constitutional, political and practical nature with which the Union legislator and the Union bodies and national authorities are grappling. See, eg V Chetail, ‘Looking Beyond the Rhetoric of the Refugee Crisis: The Failed Reform of the Common European Asylum System’ (2016) European Journal of Human Rights 584. 64 See Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe, Communication from the Commission to the European Parliament and the Council, COM(2016) 197 final, 6 April 2016. 65 Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one Member State by a third-country national or a stateless person (recast), COM(2016) 270 final of 4 May 2016. Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 [of the European Parliament and of the Council of 19 May 2010 establishing a European Union Asylum Support Office], COM (2016) 271 final of 4 May 2016.

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that the more direct involvement of the Union institutions and bodies, and the increasing integration of national authorities into a broader EU framework, in the control of external borders and of the entry of asylum seekers and immigrants included in recent and planned legislative reforms takes place in an area which has hitherto been considered extremely sensitive from the point of view of national sovereignty. This development seems once again to reinforce the idea of the EU as a ‘federative’ construction, based on cooperative federalism. Finally, Article 79 TFEU regulates the more concrete management of migration flows as such, providing for a common immigration policy which treats third-country nationals legally residing in Member States fairly. Four areas of legislative action are identified: the conditions of entry and residence and standards on the issue by Member States of longterm visas and residence permits; the definition of the rights of third-country nationals residing legally in a Member State; illegal immigration and unauthorised residence; and combating trafficking in persons. In parallel with the increased focus on asylum and refugees, the EU is developing a broader policy on migration in general, addressing questions of both entry and residence.66 Again, the common interest in external border control is evident in the legal basis for common conditions of entry and residence, as well as in uniform rules governing freedom to move and to reside in other Member States (Article 79(2)(a) and (b) TFEU). In this respect, it is interesting to note that, while Article 63(3)(a) TEC authorised the adoption of ‘standards on procedures’ for the issue of long-term visas and residence permits, Article 79(2)(a) TFEU refers simply to ‘standards’, such that substantive standards are now expressly envisaged. In addition to the Schengen Borders Code and the Visa Code referred to above, existing legislation focuses, inter alia, on family reunification,67 on the status of long-term residents (legal residence of at least five years), including their right to move from one Member State to another,68 on the status of third-country nationals for the purposes of highly qualified employment (‘EU Blue Card’), on a single permit system for legal migrant workers and the conditions of entry and residence for the purposes of research, studies and training,69 and on the return of illegally staying third-country

66 See, eg A European Agenda on Migration, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2015) 240 final of 13 May 2015. See, more generally, Boeles et al, n 34 above; Peers et al, n 34 above. 67 Council Directive 2003/86/EC of 22 September 2003 on the right of family reunification, [2003] OJ L251/12. For a recent example from case law, see Case C-558/14 Khachab EU:C:2016:285. See also at n 72 below. 68 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, [2004] OJ L16/44 and Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Directive 2003/109/EC to extend its scope to beneficiaries of international protection, [2011] OJ L132/1. For examples from case law, see Case C-571/10 Kamberaj EU:C:2012:233; Case C-579/13 P and S EU:C:2015:369. 69 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, [2009] OJ L155/17; Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, [2011] OJ L343/1; Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast), [2016] OJ L132/21.

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nationals.70 There is a pending Commission proposal for the establishment of a European Travel Information and Authorisation System (ETIAS), corresponding to the US Electronic System for Travel Authorization (ESTA), with a view to creating an automated system to identify risks associated with a visa-exempt visitor travelling to the Schengen area.71 Interestingly Article 79 TFEU also envisages measures designed to promote more generally the integration of third-country nationals residing in the Union and, while this legal basis is cautiously limited to providing ‘incentives and support’ for the action of Member States and may not be invoked to adopt measures of harmonisation, the inclusion of such a provision at all allows us some insight into just how far we have come from the original economic aims of a Community for trading in coal and steel. That said, indicators as to the sensitivity of this area of activity subsist, and Article 79(5) TFEU explicitly states that the common immigration policy ‘shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work’ as employed or self-employed persons. On the other hand, this area is also intimately linked to human rights and the limits thereby placed on expulsion and other forms of return of third-country nationals. Regard must be had, for example, to Article 19 of the Charter of Fundamental Rights, which prohibits collective expulsions as well as removal, expulsion or extradition to a state where there is a serious risk that the person concerned would be subject to the death penalty, torture or other inhuman or degrading treatment or punishment (so-called non-refoulement). This link between asylum and immigration policy and fundamental rights was brought to the fore when the European Parliament challenged the legality of the family reunification directive for alleged violations of fundamental rights. While the ECJ dismissed the action, the need to apply and interpret the directive in conformity with fundamental rights was stressed throughout the judgment.72 The Court has also had the opportunity to confirm, in relation to a provision on what is called ‘subsidiary protection’, that Union law is not limited to the (minimum) requirements laid down in international instruments such as the European Convention on Human Rights and may therefore go further in its protection of persons which it recognises as being ‘in need’73 and, as mentioned above, that the right of a Member State to send an asylum-seeker back to the Member State responsible under the Dublin Regulation is not unlimited.

70 Directive 2008/115/EC of 16 December 2008 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals, [2008] OJ L348/98. See also Commission Recommendation (EU) 2017/432 of 7 March 2017 on making return more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council, [2007] L66/15. There is an extensive case law on this Directive which cannot be listed here, see, eg Case C-357/09 PPU Kadzoev EU:C:2009:741; Case C-61/11 PPU El Dridi EU:C:2011:268; Case C-329/11 Achughbabian EU:C:2011:807; Case C-166/13 Mukarubega EU:C:2014:2336; Case C-249/13 Boudljida EU:C:2014:2431; Case C-47/15 Affum EU:C:2016:408. Case C-261/08 Zurita Garcia EU:C:2009:648, concerned expulsion in the context of the Schengen Border Code. 71 Proposal for a Regulation of the European Parliament and of the Council establishing a European Travel Information and Authorisation System (ETIAS), COM(2016) 731 final, 11 November 2016. 72 Case C‑540/03 Parliament v Council EU:C:2006:429. The Directive is cited in n 67 above. This was the first case in which the ECJ cited a provision of the Charter of Fundamental Rights, despite the fact that in 2006 it still lacked legally binding force, see ch 11(III) at n 71 above. See also Case C‑578/08 Chakroun EU:C:2010:117. 73 Case C-465/07 Elgafaji, n 48 above.

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III. Judicial Cooperation in Civil Matters This policy area, which was ‘communitarised’ alongside asylum and immigration policy by the Treaty of Amsterdam, applies, according to Article 81(1) TFEU, to civil matters ‘having cross-border implications’. The objective is to facilitate access to justice and enhance legal security and predictability in litigation which, in some form or another, has links to at least two Member States (for instance, the parties have different nationalities or places of residence). Some of the examples of more specific objectives listed in Article 81(2) TFEU do not expressly refer to cross-border situations (for instance, sub-paragraph (e) simply mentions ‘effective access to justice’), but it is submitted that they should be read in the light of the first paragraph and its reference to cross-border implications. As already noted in section I above, Article 81(1) TFEU prescribes that the Union activities shall be based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. This necessarily implies a cooperation between courts and authorities that is founded on the principles of mutual recognition and mutual trust: certain acts of secondary law as well as the case law of the ECJ make this explicit. As with the other parts of what is now the area of freedom, security and justice, judicial cooperation in civil matters started off outside the Treaty framework in the form of conventions concluded between some or all of the Member States. One interesting example of early action is the so-called Brussels Convention.74 The original EEC Treaty enjoined the Member States to enter into negotiations with one another with a view to simplifying the formalities governing the reciprocal recognition and enforcement of judgments. It was on the basis of that provision (Article 220 of the EEC Treaty) that the Member States negotiated the Brussels Convention. Consequently, it was considered to be linked to the scope of the Treaty, its purpose being to facilitate the working of the common market, and therefore gave rise to an extensive body of case law from the ECJ.75 However, that example aside, it became generally recognised that intergovernmental forms of cooperation were too slow and too fragmented to guarantee satisfactory results. Using the legal bases which had, in the meantime, been inserted into the Amsterdam and Nice Treaties, the Community legislator (in most cases, the Council acting after consulting the European Parliament) started to adopt regulations, in other words legislation directly applicable in the Member States (contrast the position under the common asylum and immigration policy in relation to which most legal instruments are directives).76 It is to be noted that EU law in this area, while being focused on judicial cooperation in cross-border

74 The Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the ‘Brussels Convention’), [1972] OJ L299/32, as subsequently amended. 75 See, eg Case C‑398/92 Mund & Fester EU:C:1994:52, para 11. See also P-E Partsch, Le droit international privé européen: De Rome à Nice (Brussels, Larcier, 2003). 76 This choice of instrument did not escape the notice of the ECJ: see Case C‑443/03 Leffler EU:C:2005:665, para 46. On the development of this policy area generally see, eg E Strorskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (Oxford, Oxford University Pres, 2008); E Storskrubb, ‘Civil Justice: A Newcomer and an Unstoppable Wave?’ in P Craig and G De Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) 299; G Van Calster, European Private Law (Oxford, Hart Publishing, 2013).

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situations—and thus what is traditionally referred to as ‘private international law’—rather than an harmonisation of national civil law or national civil procedural law, in fact deals with civil law concepts and affects national civil law, including family law, and national civil procedural law in particular,77 in many respects. Union legislation in this area is already quite extensive and one can roughly distinguish between rules relating to: (i) jurisdiction of courts and recognition and enforcement of judgments; (ii) conflict of law rules determining the applicable (national) law; (iii) facilitating access to justice in other ways. First, as to the question of jurisdiction and enforcement, the original Brussels Convention has been reincarnated in the form of regulations (though old habits die hard and they are referred to as the Brussels I Regulations).78 What is more, an equivalent regulation in the field of family law (the Brussels IIa Regulation) has brought jurisdictional and mutual recognition issues in such matters as divorce proceedings and the custody of children within the realm of Union law and the jurisdiction of the ECJ.79 The importance of the principles of mutual recognition and mutual trust has become particularly acute with regard to the wrongful removal of children from one Member State to another. The Court has underlined the need for a strict application of the rules of the Brussels IIa Regulation and the swift enforcement of an order for the return of a child issued by a court of the Member State where the child had its residence. Fundamental rights, and the best interest of the child in particular, should as a rule be taken into consideration by the court issuing the order and, in accordance with the principles of mutual recognition and mutual trust, the court being asked to enforce the judgment is not normally entitled to question the decision of the issuing court.80 Secondly, with regard to the question of applicable law, a path similar to the one followed in the case of the Brussels rules relating to jurisdiction and enforcement was followed in that the Rome Conventions on the determination of applicable law in matters

77

A Nylund and B Krans (eds), The European Union and National Civil Procedure (Cambridge, Intersentia, 2016). Regulation (EC) No 44/2001 of December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L1/1, replaced by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012, [2012] OJ L351/1. The case law is extensive: for examples of important judgments relating to the Regulation’s scope of application see Case C-185/07 West Tankers EU:C:2009:69; Case C-420/07 Apostolides EU:C:2009:271; Case C-536/13 Gazprom EU:C:2015:316. In relation to extending that cooperation to Denmark (in view of its permanent opt-out from Title IV TEC, see n 32 above), Iceland, Norway and Switzerland, see Opinion 1/03 (Conclusion of the New Lugano Convention) EU:C:2006:81, in which the ECJ held that, because of Regulation No 44/2001, the Community had exclusive competence to conclude the new Convention, and Council Decision 2009/430/EC of 27 November 2008 concerning the conclusion of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2009] OJ L149/1. 79 Council Regulation (EC) No 2201/2003 of 10 February 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L338/1. 80 The case law on this question is already extensive. For two examples, see Case C-195/08 PPU Rinau EU:C:2008:406; Case C-211/10 PPU Povse EU:C:2010:400. This approach was largely accepted by the European Court of Human Rights in the Case of Povse v Austria, decision of 18 June 2013 (Application No 3890/11). 78 Council

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of contractual and non-contractual obligations were later transformed into regulations: the Rome I and II Regulations were adopted in 2007 and 2008, respectively.81 More recently, a ‘Rome III’ Regulation has been adopted concerning the applicable law in divorce proceedings.82 As was noted earlier,83 this Regulation was adopted using the procedure for enhanced cooperation and does not bind all Member States (even among those that do not have a special status in relation to the area of freedom, security and justice). Enhanced cooperation was also used to adopt two Regulations relating to matrimonial property.84 They differ from the Brussels and Rome Regulations, however, in that they cover both jurisdiction and enforcement and questions of applicable law. This formula has, in fact, become fairly common and has been used with respect to Regulations relating to insolvency,85 maintenance obligations86 and succession.87 The latter also establishes a European Certificate of Succession, which has been characterised as an ‘autonomous European instrument with substantive legal effects’ and a ‘milestone’ in the development of European private law.88 Even in relation to the third more general category of rules identified above (facilitating access to justice), there has been considerable progress on a number of tangible, practical matters, indicating the importance of the role now occupied by this policy area and the genuine desire to deliver on the promise of an area of justice made to the citizens of the Union. Thus, a series of regulations have been adopted providing for simplified procedures for uncontested claims,89 small claims90 and account preservation (freezing of bank

81 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L199/40; Regulation No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L177/6. 82 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L343/10. 83 See ch 8(III) above. 84 Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, [2016] OJ L183/1; Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, [2016] OJ L183/30. 85 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, replaced by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, [2015] OJ L141/19. 86 Council Regulation (EC) No 4/2009 of 28 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2008] OJ L7/1. 87 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and the creation of the European Certificate of Succession, [2012] OJ L201/107. 88 E Goossens, ‘A Model for the Use of the European Certificate of Succession for Property Registration’ (2017) 3 European Review of Private Law 523 at 524. 89 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, [2004] L143/15; Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating an European order for payment procedure, [2006] OJ L399/1. 90 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, [2007] OJ L199/1, as amended by Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015, [2015] OJ L341/1.

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accounts of a debtor),91 as well as regulations relating to the serving of documents, taking of evidence and provision of legal aid.92 That said, that this area is still considered sensitive is demonstrated by the fact that, while most of the measures in this area are adopted in accordance with the ordinary legislative procedure, measures concerning family law with cross-border implications are adopted by the Council acting unanimously after consulting the European Parliament (Article 81(3) TFEU)—or, more accurately, are not adopted (as a result of the requirement of u nanimity); as can be seen from the preceding paragraphs, recent legislative development has been prolific in relation to matters dealt with according to the ordinary legislative procedure but has been possible in the other more sensitive areas only as a result of the mechanism of enhanced cooperation. It has been suggested that, despite the proliferation of Union law instruments aimed at facilitating judicial cooperation in civil matters, the level of cross-border litigation remains rather low.93 While efforts are being made to increase knowledge and know-how, and support programmes have been initiated (notably the European Judicial Network in Civil and Commercial Matters,94 the European Judicial Training Network and the e-Justice portal launched on the internet by the Commission in 2009), the fact remains that as is so often the case in the Union constitutional legal order, concrete progress is in fact in the hands of the individuals who dare to cross borders and seek to have their rights enforced there.95 Finally, two points should be noted concerning Union activity in this field: first, the extensive legislative programme which has led to the adoption of the above-mentioned and other regulations has not rendered the older intergovernmental conventions completely irrelevant. On the contrary, they may be of some assistance in the application and interpretation of the regulations (although the ECJ has in some cases stressed the difference between an international convention concluded by the Member States and a Union regulation).96 What is more, many of the new regulations allow, under certain conditions, the continued application of older conventions entered into by the Member States97 91 Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, [2014] OJ L283/1. 92 Regulation (EU) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents on civil or commercial matters and repealing Council Regulation (EC) No 1348/2000, [2007] OJ L324/79); Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, [2001] OJ L174/1; Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in crossborder disputes by establishing minimum common rules relating to legal aid for such disputes, [2003] OJ L26/41. 93 See ‘Justice in the EU: From the Citizen’s Perspective’, Report on a Conference in Stockholm 22–23 July 2009 (Stockholm, Swedish Presidency of the European Union, 2009) 45–53. 94 Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters, [2001] OJ L168/35. 95 See generally the Report mentioned in n 93 above. On legal remedies available to the individual see ch 16 below. 96 See notably Case C-443/03 Leffler, n 76 above, which concerned the interpretation of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters. 97 See Opinion 1/03 (Conclusion of the New Lugano Convention), n 78 above, paras 147, 166–67 and Case C-533/08 TNT Express Nederland EU:C:2010:243.

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or enable the Commission to authorise Member States to amend existing agreements or conclude new agreements with third countries.98 The relation between the Union regulations and such agreements raise complex legal questions which cannot be further analysed here but which illustrate the continuing role for the Member States as such and the hybrid nature of the Union.99 Secondly, while the policy area considered above largely corresponds to what is traditionally referred to as private international law, there has also been a move towards addressing civil law rules in a material sense. However, the developments in this area have been both incremental and gradual, focusing on objectives linked to the functioning of the internal market such as consumer protection,100 rather than being part of a grand design to create a ‘European civil code’. And yet, once again, that is so often the way in which significant progress is made towards that elusive goal of an ever closer union: interest in some form of harmonisation of contract law had been increasing and in October 2011 the Commission presented a proposal for a common European sales law.101 This proposal was withdrawn in 2015: the time was not ripe. But instead, and in smaller steps, the Commission has proposed two directives concerning, more specifically, contracts for the sale of digital goods and contracts for the online and other distance sale of goods.102 As we have noted already, Europe is patiently constructed.

IV. Judicial Cooperation in Criminal Matters Following the ‘communitarisation’ exercise carried out by the Treaty of Amsterdam, what remained in the Third Pillar (or Title VI of the TEU in the version in force prior to the Treaty of Lisbon) was renamed police and judicial cooperation in criminal matters. Despite perceived difficulties concerning unanimity, activity in this area was not insignificant and a number of Third Pillar decisions harmonising certain aspects of criminal procedure or even the definition of, and sanctions applicable to, certain serious crimes were in fact

98 See two regulations concerning the procedures to follow if a Member State wishes to use this possibility, one relating to applicable law in civil and commercial matters (a matter covered by the Rome I and II Regulations, mentioned at n 81 above): Regulation (EC) No 662/2009 of the European Parliament and of the Council of 13 July 2009, [2009] OJ L200/25, and the other to family law matters (covered by Regulation 2201/2003, mentioned at n 79 above): Council Regulation (EC) No 664/2009 of 7 July 2009, [2009] OJ L200/46. See also A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 34 Fordham International Law Journal 1304 at 1307–08. 99 On the status of international agreements concluded by the Member States in Union law generally, see ch 4(II) above at nn 7–11 and ch 6(IV) above at n 86, and ch 15(II) and (III) below. See also Rosas, n 98 above. 100 See, eg Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending or repealing some older directives, [2011] OJ L304/64. 101 Proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law, COM(2011) 635 final, 11 October 2011. Since 1999, the Council has had a working party on civil law matters, see, eg Council doc 17920/11 of 6 December 2011. See, more generally, eg R Brownsword et al (eds), The Foundations of European Private Law (Oxford, Hart Publishing, 2011). 102 Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, COM(2015) 634 final of 9 December 2015; Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods, COM(2015) 634 final of 9 December 2015.

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adopted (‘eurocrimes’).103 The most important development in this field and a very concrete example of mutual recognition at work was perhaps the introduction of the European arrest warrant, which replaced the traditional extradition mechanisms applying between the Member States and provides for direct cooperation between national judicial and other authorities.104 The requirement of unanimity of course influenced the types of issue that could be addressed and the focus is clearly on matters where a common perception of ‘right’ and ‘wrong’ can be discerned: the protection of victims of crime is an important example of Third Pillar action of a procedural nature,105 and concerning substantive criminal law, framework decisions were adopted on, inter alia, trafficking in human beings, exploitation of children and child pornography, and terrorism.106 Interestingly, and illustrative of the somewhat artificial division of competence engendered by the Treaty of Maastricht, some of the sanctions taken against individuals or groups of individuals for alleged acts of terrorism were based on the Third Pillar rather than the Second (Common Foreign and Security Policy).107 In that context, perhaps the most significant development brought about by the Treaty of Lisbon was the abolition of that pillar structure (although the CFSP continues to represent somewhat of an anomaly in this respect). As a result, the defining features of the Third Pillar acts do not attach to acts adopted pursuant to the new Chapter 4 of Title V of Part Three TFEU; the Commission is able to monitor implementation of acts in this field and initiate infringement actions as appropriate, and the ECJ, in addition to those direct actions, has seen its jurisdiction extended since all courts and tribunals in all Member States are empowered to refer to it for preliminary rulings on the interpretation of the law of the Union in the field.108 By contrast, for Third Pillar acts still in force, a Protocol on Transitional Provisions, annexed to the TEU and the TFEU, provides that their legal effects are preserved until those acts are repealed or amended.109 It must be assumed that the ‘legal effects’ referred to in the Protocol include the absence of direct effect (former Article 34(2) TEU).110 103 See, eg A Klip, European Criminal Law: An Integrative Approach, 3rd edn (Antwerp, Intersentia, 2016) 231–38. 104 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ L190/1. 105 Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, [2001] OJ L82/1. See also Case C-404/07 Katz EU:C:2008:553; Case C-205/09 Eredics EU:C:2010:623; Joined Cases C-483/09 and C-1/10 Gueye, EU:C:2011:583; Case C-507/10 X EU:C:2011:873. 106 Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, [2002] OJ L203/1; Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography, [2004] OJ L13/44; Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, [2002] OJ L164/3, amended by Council Framework Decision 2008/919/ JHA of 28 November 2008, [2008] OJ L330/21. These Framework Decisions have now been replaced by Directives, see below. 107 See, eg Case C-354/04 P Gestoras pro Amnistía v Council EU:C:2007:115 and Case C-355/04 P Segi v Council EU:C:2007:116, in which the ECJ, while accepting that the Third Pillar did not provide for liability actions against the Union, observed nevertheless that the rule of law required that the validity of Third Pillar decisions affecting the rights of individuals could always be subject to requests for preliminary rulings. 108 According to Art 35 TEU, in the version in force prior to the Treaty of Lisbon, the acceptance of the ECJ’s jurisdiction was voluntary and the Member State making the declaration could limit to courts of last instance the competence to request preliminary rulings. 109 Protocol No 36 on Transitional Provisions annexed to the TEU and the TFEU. 110 On the concept of direct effect, see ch 6(IV) above. During a five-year transitional period, the powers of the Commission and the ECJ remained the same as they were under the Third Pillar (the Commission could not bring

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On the basis that it is not quite consigned to the history books a comment on the specific situation of the UK appears appropriate. That Member State had a right to opt out from the Third Pillar acts en masse and, somewhat bizarrely, a right to ‘opt-back-in’ to individual acts.111 The UK made use of both rights and after having opted out of all Third Pillar acts, opted back in to 35 of them.112 As to Third Pillar acts converted after 1 December 2009 into directives or regulations, the UK, as noted above in chapter eight, is not a part of the area of freedom, security and justice, but has retained its general right to opt in to individual acts. This saga, which has added to the complexity of the transitional provisions in general, prompts at least the following observations: this very special regime underlines the exceptional status of the UK already before Brexit, while demonstrating a readiness on the part of the other Member States to accept a derogatory regime of great complexity in order to accommodate that exceptionalism. On the other hand, the fact that the UK ‘optedback-in’ to so many Third Pillar acts shows the practical value, recognised also by the UK, of common measures such as the European arrest warrant. Ironically, that special regime, like many of the other derogations granted to the UK, did not play any appreciable role in the debate leading up to the Brexit referendum of June 2016. As this book goes to print, it is too early to say whether, and to what extent, the UK will request, and be granted, a right as a non-Member State to adhere to some of the EU acts relating to judicial cooperation in criminal matters. However, the central role played by the principle of mutual trust as the basis for such cooperation and the question whether trust of that kind can be placed in a non-member will surely inform the debate. Of course, Protocol No 36 on transitional provisions does not apply to legislative acts adopted under the TEC (the First Pillar), and a number of ‘Community’ acts concerned matters closely related to the field of activity covered by the Third Pillar (for example, the directive aimed at prohibiting money laundering and terrorist financing)113 and again the abolition of the pillar structure is a significant improvement in that it has allowed a more coherent approach to the issues to be addressed, with the focus on the substance rather than the institutional and constitutional consequences of the choice of legal basis. The grey zone between these pillars and the general assumption that sanctions prescribed by Community acts could only be of an administrative and not a criminal nature had been challenged by a judgment handed down by the ECJ in 2005.114 The TEC contained no provision expressly authorising legislation in the field of criminal law, yet nor did it include any general prohibition in this respect. The opinion that legislation in these and other fields could prescribe administrative but not criminal infringement actions against Member States under Article 258 TFEU and the Court’s jurisdiction was curtailed, inter alia, with respect to the preliminary ruling procedure). On the infringement procedure under Art 258 TFEU and the jurisdiction of the ECJ, see ch 16(III) below. These transitional limitations ceased to apply 5 years after the entry into force of the Treaty of Lisbon, in other words on 1 December 2014. 111

See Art 10, paras 4 and 5, of Protocol No 36. Council Decision 2014/857/EU, [2014] OJ L345/1; Commission Decision 2014/858/EU, [2014] OJ L345/6. See also M Fletcher, ‘EU Criminal Law Flexibility: What Lessons From the UK Protocol No. 36 Saga? in V Mitsilegas, M Bergström and T Konstadidines (eds), Research Handbook on EU Criminal Law (Cheltenham, Edward Elgar, 2016) 78. 113 Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, [2005] OJ L309/15. See also Case C-305/05 Ordre des barreaux francophones et germanophone and Others EU:C:2007:383. 114 Case C-176/03 Commission v Council EU:C:2005:542. 112 See

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enalties was based on the idea that criminal law was somehow ‘different’, closer to national p sovereignty.115 However, the borderline between criminal and administrative sanctions is increasingly blurred, and the effects of some administrative sanctions, including sanctions expressly authorised under Community law, come very close to what is traditionally regarded as ‘penal’.116 The ECJ held that the European Community was competent to enact rules obliging Member States to provide for penal sanctions in certain areas of common policy (for example, environmental protection and transport), although these measures could not imply the harmonisation of penalties as such.117 The issue is now moot; as noted above, the Treaty of Lisbon fused these two entities such that no distinction need be made between Community and Union competence and no conflict between these two can occur. Articles 82 and 83 TFEU authorise Union legislation of a procedural nature, based on the principle of mutual recognition, as well as the approximation of national legislation with regard to the definition of criminal offences and sanctions. Article 82(1) enables the adoption of regulations concerning, inter alia, jurisdiction and the recognition of judgments, whereas other rules of a procedural nature adopted on the basis of Article 82(2), and rules relating to the definition of criminal offences and sanctions, must be adopted by means of directives and in the form of minimum rules.118 What is more, these legislative acts are to be adopted in accordance with the ordinary legislative procedure. However, in recognition of the perceived proximity of this area of activity to the core of national sovereignty, a mechanism not unlike the infamous Luxembourg Compromise has been inserted into the relevant chapter of the Treaty;119 if a Member State considers that a draft proposal ‘would affect fundamental aspects of its criminal justice system’, it may request the suspension of the legislative procedure and the referral of the draft to the European Council. If discussions do not result in consensus, the proposal is put on a ‘fast-track’ to enhanced cooperation (Articles 82(3) and 83(3) TFEU; see section III of chapter eight above), short-circuiting some of the preliminary steps to authorising the use of the flexibility mechanism and proceeding directly to the substance of the cooperation. The new competence under Articles 82 and 83 has already been exercised extensively and EU law in this area is developing at almost breath-taking speed. One can roughly distinguish between the following four types of rules: (i)

115

the mutual recognition of judicial decisions, notably to prevent criminals from exploiting free movement of persons;

See, eg Monar, n 8 above, 561, 566. the sanctions applicable in the field of competition law see, eg W Wils, ‘The Increased Level of EU Antitrust Fines, Judicial Review and the ECHR’ (2010) 33 World Competition 5. 117 Case C-176/03 Commission v Council (serious environmental crime), n 114 above; Case C-440/05 Commission v Council (ship source pollution) EU:C:2007:625. Following these judgments, two Directives were adopted: Directive 2008/99/EC on the protection of the environment through criminal law, [2008] OJ L328/28 and Directive 2009/123/EC amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, [2009] OJ L280/52. 118 See, eg R Sicurella, ‘EU Competence in Criminal Matters’ in Mitsilegas, Bergström and Konstadidines, n 112 above. 119 The ‘Luxembourg Compromise’ referred to a political understanding in 1966 that voting in the Council would be avoided if an act to be adopted by qualified majority involved ‘very important interests’ of a Member State, K Lenaerts and P Van Nuffel, Constitutional Law of the European Union, 2nd edn (London, Sweet & Maxwell, 2005) 420. On the ‘brake–accelerator’ mechanism of the Lisbon Treaty see Piris, n 32 above, 184–85. 116 On

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(ii) common minimum rules relating to criminal procedure, notably the rights of victims of crime and the rights of suspects and accused persons; (iii) the definition of criminal offences and sanctions in relation to particularly serious crimes with a cross-border dimension, or in specific areas which have been subject to harmonisation and where an approximation of criminal law is deemed essential to ensure an effective implementation of the relevant Union policy; (iv) institutional measures relating to the status and activities of Europol (which is referred to in Article 88 TFEU relating to police cooperation, see section V below), Eurojust and the European Public Prosecutor’s Office. First, concerning mutual recognition, the most important instrument is without doubt the Framework Decision relating to the European arrest warrant, which has already given rise to extensive case law.120 As with mutual recognition generally, the ECJ has generally insisted on the strict respect of the obligation to transfer (referred to as ‘surrender’) a person to another Member State, for example for the purposes of prosecution, but has in Aranyosi and Căldăraru121 made an important exception to that rule; that is, where the executing judicial authority is confronted with ‘objective, reliable, specific and properly updated’ evidence that there are ‘substantial grounds’ to believe that the individual concerned would thereby be exposed ‘to the real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter [of Fundamental Rights]’. However, even in such a case, the executing authority cannot automatically refuse the request for surrender of the person concerned but must request the cooperation of the issuing judicial authority. The Framework Decision on the arrest warrant is complemented by various other acts relating, inter alia, to the enforcement of prison and other similar sentences and the gathering of evidence in another Member State, all of which are rooted in the principle of mutual recognition.122 Secondly, it is perhaps surprising that in the area of minimum rules relating to criminal procedure, which unlike the mutual recognition measures is not limited to cross-border situations, the transition from Third Pillar acts to directives has been quicker. Most Directives adopted so far concern either the protection of the victims of crime or the rights of suspects and accused persons.123

120 See, eg Case C-303/05 Advocaten voor de Wereld EU:C:2007:261; Case C-66/08 Kozlowski EU:C:2008:437; Case C-388/08 PPU Leymann and Pustovarov EU:C:2008:669; Case C-123/08 Wolzenburg EU:C:2009:616; Case C-192/12 PPU West EU:C:2012:404; Case C-399/11 Melloni EU:C:2013:107; Case C-168/13 F EU:C:2013:358; Case C-237/15 PPU Lanigan EU:C:2015:474; Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, n 24 above. 121 Joined Cases C-404/15 and C-659/15 Aranyosi and Căldăraru, n 24 above. 122 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, [2008] OJ L327/27. See also Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, [2009] OJ L294/20. On the gathering of evidence, see Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, [2014] OJ L130/1. See also Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, [2014] OJ L127/39. 123 The basic act relating to victims of crime is Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims

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Thirdly, as to the definition of crimes and sanctions, most framework decisions relating to serious ‘eurocrimes’ such as trafficking in human beings, sexual abuse of children, cybercrime, counterfeiting and terrorism, have been converted into directives (as noted above, money laundering was regulated by a directive already before the Lisbon Treaty124).125 Finally, Article 85 TFEU lays down the main objectives and tasks of Eurojust, whose mission it shall be to ‘support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases’. Again, in line with the general trend to involve national authorities directly in a Union institutional framework,126 Eurojust is composed of national members seconded by each Member State and acts either through one or more of its national members or as a College.127 What is significant is the dual role played by the national members, acting as a national competent authority and also on behalf of Eurojust. The link between judicial cooperation and the police work that precedes it is retained by aligning the general competence of the Agency to the types of crimes and offences in respect of which the European Police Office (Europol) is competent to act. Taking that link further, the Lisbon Treaty saw the insertion into Union primary law of a legal basis for creating a European Public Prosecutor’s Office (EPPO) from Eurojust (Article 86 TFEU). Its primary task will, in the first instance, be to combat crimes affecting the financial interests of the Union. However, the European Council may, after having obtained the consent of the European Parliament, unanimously decide to extend the powers of the Office to include serious crime having a cross-border dimension. A Commission proposal for a regulation establishing EPPO was submitted to the legislator in 2013128 but discussions in the Council were difficult and the focus is now on pursuing the draft

of crime, and replacing Council Framework Decisions 2001/220/JHA, [2012] OJ L315/57. There are several Directives relative to the rights of suspects and accused. Among the most recent ones may be mentioned Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, [2016] OJ L65/1 and Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, [2016] OJ L280/1. 124

See n 113 above. 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, [2011] OJ L101/1; Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, [2011] OJ L335/1; Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA, [2013] OJ L218/8; Directive 2014/62/EU of the European Parliament and of the Council of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA; Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decisions 2002/475/ JHA and amending Council Decision 2005/671/JHA, See also Part IV of Mitsilegas, Bergström and Konstadidines, n 112 above [2017] OJ L88/6. 126 See ch 7(IV) above. 127 See the consolidated version of Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime, [2002] OJ L138/14, as amended, Council doc 5347/09 REV 3 of 15 July 2009. 128 Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM(2013) 534 final of 17 July 2013. 125 Directive

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r egulation within the framework of enhanced cooperation.129 According to the latest version of the draft regulation, the Office shall be responsible for ‘investigating, prosecuting and bringing to judgment’ the perpetrators of criminal offences ‘affecting the financial interests of the Union’. Again, in line with the trend towards an intertwining of Union and national bodies, the EPPO shall exercise its functions in the competent courts of the Member States and work in close cooperation with the competent national authorities. What is more, the Office shall consist of not only a College, permanent chambers, the European Chief Prosecutor and European Prosecutors but also ‘European Delegated Prosecutors’ who shall be located in the Member States. The EPPO would thus constitute a real prosecutor’s office, albeit at this stage limited to offences affecting the financial interests of the Union, rather than a body with an assisting and coordinating role, which is the main task of Eurojust.

V. Police Cooperation The principle of mutual recognition is less visible in relation to the final aspect of the area of freedom, security and justice. But the internationalisation of criminality and the abolition of border controls within the Schengen area have meant that even in this very loaded context of national security, the EU has much to do. First, there was increased cooperation between police and other law enforcement authorities of the Member States and the establishment of the European Police Office (Europol) in 1995.130 Next steps included the establishment of the European Police College (CEPOL) in 2000,131 the regulation of specific, time-limited, joint investigating teams in 2002132 and the conclusion, albeit outside the institutional framework of the Union, of the Prüm Convention on cross-border police cooperation in 2005.133 In 2009, the Council adopted a new Third Pillar decision establishing Europol as a Union agency.134

129 Council of the European Union, ‘20 member states agree on details on creating the European Public Prosecutor’s office (EPPO)’ Press Release of 8 June 2017, http://www.consilium.europa.eu/en/press/pressreleases/2017/06/08-eppo/ (accessed on 9 June 2017). The vote in the European Parliament is scheduled for October 2017. On enhanced cooperation see ch 8(III) above. 130 Convention based on Art K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) [1995] OJ C316/2. See more generally K Lachmayer, ‘European Police Cooperation and Its Limits: From Intelligence-led to Coercive Measures?’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 89. 131 Council Decision 2000/820/JHA of 22 December 2000 establishing a European Police College (CEPOL), [2000] OJ L336/1, replaced by Council Decision 2005/681/JHA of 20 September 2005 establishing the European Police College, [2005] OJ L256/63, replaced by Regulation (EU) 2015/2219 of the European Parliament and of the Council of 25 November 2015 on the European Union Agency for Law Enforcement Training (CEPOL), [2015] OJ L 319/1. The original seat of the College was in Bramshill, UK but has now been transferred to Budapest. 132 Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigating teams, [2002] OJ L162/1. Such teams can include representatives of Europol, the Commission (OLAF) and/or third states. 133 See ch 8(II) above, n 11. See also S Douglas-Scott, ‘The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy?’ (2008–09) 11 The Cambridge Yearbook of European Legal Studies 53, 58. 134 Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), [2009] OJ L121/37. The main part of the Decision became applicable only on 1 January 2010, in other words after the entry into force of the Lisbon Treaty.

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Articles 87–89 TFEU now govern Union competence in this field. As with judicial cooperation in criminal matters, the key changes brought about by the Treaty of Lisbon are due to the abolition of the pillar structure. Only operational cooperation and the operation of the police authorities of a Member State in the territory of another Member State continue to be regulated in accordance with a special legislative procedure, which requires unanimity in the Council (Article 87(3) and 89 TFEU). All other activities are subject to the ordinary legislative procedure. According to Article 88(2) TFEU, Europol’s structure, operation, field of action and tasks shall be determined by way of regulations. Although it took some time, this has now been accomplished through a Regulation adopted in 2016, renaming the agency as European Union Agency for Law Enforcement Cooperation.135 The main objective of Europol is to ‘support and strengthen’ action by the competent authorities of the Member States and their mutual cooperation in preventing and combating ‘serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy’, as specified in an annex. The tasks of the Agency include, apart from information gathering and exchange, an enjoinder to ‘coordinate, organise and implement investigative and operation actions’, but only with a view to supporting and strengthening Member States’ action in the context of joint operations or as part of joint investigation teams. It can, however, ‘request’ the competent national authorities to conduct a criminal investigation. Close cooperation between Europol and the national level is also furthered by Europol national units and national liaison officers attached to Europol. An important limitation is that Europol ‘shall not apply coercive measures in carrying out its tasks’.136 As can be expected, Europol is called upon to be in close cooperation with Eurojust, OLAF and other relevant Union bodies as well as authorities of third countries, international organisations and private parties. The fact that Europol has not been granted full police powers in the form of coercive measures may be seen against the background of Article 4(2) TEU, which recalls that the Union must respect the essential state functions of the Member States, including maintaining law and order and safeguarding national security. The Treaty of Lisbon added that ‘[i]n particular, national security remains the sole responsibility of each Member State’. These limitations on the competence of the Union are reflected in Article 276 TFEU, which provides that, in exercising its powers under Chapters 4 (judicial cooperation in criminal matters) and 5 (police cooperation) of Title V of Part Three, the Union Courts: shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

This reserve on the jurisdiction of the courts will be considered further in chapter sixteen below. However, and perhaps reflecting once again the ability of the constitutional order to adapt to changing realities, these Treaty provisions have not prevented the Union, from

135 Regulation (EU) 2016/794 of the European Parliament and of the Council of 15 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol), [2016] OJ L135/53. 136 See notably Arts 3–6 of Regulation 2016/794.

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furthering police cooperation in many ways, as set out, inter alia, in the European Agenda on Security, presented by the Commission in April 2015.137 The Agenda sets out three priorities, namely the fight against terrorism, serious and organised cross-border crime and cybercrime. What is more, like the priorities it aims to address, EU police cooperation also has an external element: thus, provision is made for the cooperation of Europol and Frontex with similar agencies or police missions in third countries, and the EU has concluded, for example, agreements with Australia, Canada and the US on the processing and transfer of PNR (passenger name records) data by air carriers with a view to preventing and combating terrorism and related crimes.138 Originally, earlier versions of such agreements were successfully challenged before the Court, highlighting the need to remain, even in these so-called intergovernmental areas of cooperation, within the parameters set by Union law.139 In Opinion 1/15, the ECJ, called upon to assess the legality of an agreement concluded with Canada, held once again that certain aspects of the agreement were incompatible with Article 7, 8 and 21 together with Article 52(1) of the Charter.140 And so the quest to square the circle and reconcile the different aspects of the area, freedom, security and justice, continues.

137 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2015)2015 185 final of 28 April 2015. 138 See the Council Decisions 2012/381/EU, [2012] OJ L186/3, and 2012/472//EU, [2012] OJ L215/4, on the conclusion of the Agreements with Australia and the US, respectively. On the Agreement with Canada, see the following note. 139 Joined Cases C-317/04 and C-318/04 Parliament v Council and Parliament v Commission EU:C:2006:346. 140 Opinion 1/15 (Draft Agreement on the Transfer of Passenger Name Record Data from the European Union to Canada) EU:C:2017:592.

13 The Internal Market: Liberal, Social or Green? I. Introduction If we are to believe Article 3(3) TEU,1 the answer to the title question is ‘all of the above’. This provision, as amended by the Treaty of Lisbon, reads as follows: 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.

This, of course, is only a declaration of objectives and principles. What is unusual about the TEU as a constitutional document is that these aspirations are then given concrete form in a great number of Treaty provisions, especially in the TFEU, on the economic freedoms, competition, social policy, environmental policy, and so on. For a constitutional order, these and other provisions in the Treaties and in the Charter of Fundamental Rights constitute a remarkable set of substantive provisions, defining in some detail not only the contours but the main content of the internal market.2 This internal market is not of a purely economic nature but combines elements of a socio-economic system or, as expressed in Article 3(3) TEU, a ‘highly competitive social market economy’, including elements of social justice, environmental protection and respect for fundamental

1

Art 3(3) TEU, as amended by the Treaty of Lisbon, draws mainly upon Art 2 TEC. On this feature of EU primary law, see A Rosas, ‘EU Primary Law as Substantive Law’ in A Fischer-Lescano et al (eds), Frieden in Freiheit–Peace in Liberty–Paix en Liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden, Nomos Verlagsgesellschaft, 2008) 957. For an approach viewing European intellectual property law and competition law as part of European ‘economic constitutional law’ see, eg T Mylly, Intellectual Property and European Economic Constitutional Law: The Trouble with Private Informational Power (Helsinki, IPR University Center, 2009). 2

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rights. But how can a constitutional order regulate content in such detail? Does the constitutional text not have to be more general, possessing enough flexibility for changing social and political mores to be reflected in legislation without amending the constitution? This is the other side of the debate on the finalité of Europe. Is the organisation on the road to becoming a federal structure, or at least a bonne association federative, and, along that road, are liberal economic ‘free market’ goals pursued at the expense of the European social model? A high-profile example will help to illustrate the stakes. Since the entry into force of the Treaty of Lisbon, neither the TEU nor the opening provisions of the TFEU repeat the reference previously contained in Article 4(1) TEC to the ‘principle of an open market economy with free competition’. The notion of undistorted competition, mentioned in Article 3(1)(g) TEC, is gone. This is no accident or drafting oversight. Rather, it is a deliberate amendment explained by (primarily) French resistance to maintaining a reference to free or undistorted competition in Article 3 TEU.3 True, the social market economy now prescribed in that provision should be ‘highly competitive’, but the intention appears to have been a basic shift in the focus of the objectives of the Union. Or is the social model held in such high regard by the French still a mirage? After all, the expression ‘open market economy with free competition’ has been retained as the principle according to which the economic and monetary policy of the Union is formulated (see Articles 119(1), 120 and 127(1) TFEU). Even more importantly, perhaps, a new Protocol on the Internal Market and Competition was annexed to the Treaties; the internal market envisaged in Article 3 TEU ‘includes a system ensuring that competition is not distorted’ and, to this end, action may, if necessary, be taken pursuant to Article 352 TFEU.4 And the substantive rules on competition contained in the TEC, notably its Articles 81, 82 and 87, have survived substantially unmodified, finding their place in Articles 101–109 TFEU. Indeed, the continuity between pre- and post-Lisbon primary law more generally is striking: notwithstanding the broad scope attributed to it in the case law, the main legal basis for adopting internal market legislation, Article 95 TEC, is to be found unaltered in Article 114 TFEU,5 with Article 115 TFEU (ex Article 94 TEC) continuing to provide for an alternative legal basis which, although requiring unanimity, has spawned a burgeoning body of secondary legislation in matters such as direct taxation.6 While the competence to

3 A Hatje, ‘The Economic Constitution within the Internal Market’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 589, 601. 4 Protocol No 27 annexed to the TEU and the TFEU. Significantly, action under Art 352 TFEU must pursue one of the objectives set out in the Treaties, see chs 3(III) and 4(III) above. 5 Case law attributes a fairly wide scope to Art 95 TEC/114 TFEU, see, eg Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others EU:C:2005:449; Case C-380/03 Germany v Parliament and Council EU:C:2006:772; Case C-58/08 Vodafone EU:C:2010:321; Case C-270/12 UK v Parliament and Council EU:C:2014:18; Case C-358/14 Poland v Parliament and Council EU:C:2016:323. 6 Council Directive (EU) 2017/952 of 29 May 2017 amending Directive (EU) 2016/1164 as regards hybrid mismatches with third countries, [2017] OJ L144/1; Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation, [2014] OJ L359/1; Council Directive 2014/48/EU of 24 March 2014 amending Directive 2003/48/EC on taxation of savings income in the form of interest payments, [2014] OJ L111/50; Council Directive 2011/96/EU of 30 November 2011 (cross-border relations between parent companies and subsidiaries), [2011] OJ L345/8; Council Directive 2009/133/EC of 19 October 2009 (cross-border mergers), [2009] OJ L310/34, and Council Directive 2003/49/EC

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regulate direct taxation can be inferred from Article 115, in comparison with Article 114(2) TFEU (which specifically excludes fiscal provisions from that legal basis), the fact that the provision survived intact must be taken as an acknowledgement by the Member States of that competence. It was probably this constellation, coupled with the explicit legal basis for harmonising indirect taxation (such as value added tax, VAT) in what was Article 93 TEC (now Article 113 TFEU), that prompted the ECJ, in its extensive case law relating to the relation between direct taxation and the four freedoms,7 to state repeatedly that direct taxation as such was a competence of the Member States (thereby seeming to suggest that there would have been no Union competence at all). In apparent recognition of the fact that such a statement did not reflect legal reality, it has been dropped in more recent case law.8 To sum up, one is left with the distinct impression that under the Treaty of Lisbon, nothing has changed; the broader social, environmental and other ramifications of the internal market as a complement to the principle of an open market economy with free competition have simply been made more visible. Or does that mean that everything has changed? It goes without saying that these grand aspirations do not necessarily correspond to legal and societal realities. Especially concerning the relationship between liberal economics and the social dimension (l’Europe sociale), opinions vary to a considerable degree as to whether Union and Member States’ policies strike the right balance. We shall revert repeatedly to this question as we develop the arguments in this chapter, which will focus on discernible trends and perspectives related to the application of primary law; for the rest, the reader is referred to the extensive existing literature and rapidly expanding body of secondary law on the internal market and its many and varied flanking policies.9

II. The Economic Free Movement Rights For decades, the Treaties have defined the basic objective of establishing an internal market as the creation of ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’ (Article 14(2) TEC, now Article 26 TFEU). Traditionally referred to as the ‘four freedoms’ (although to the extent that establishment is a separate branch of the free movement of persons, there are in fact five basic provisions),

of 3 June 2003 (cross-border interest and royalty payments between associated companies), [2003] OJ L157/49. See also the Commission Proposal for a Council Directive laying down rules against tax avoidance practices that directly affect the functioning of the internal market, COM(2016) 26 final of 28 January 2016; Commission Proposal for a Council Directive on a Common Consolidated Corporate Tax Base (CCCTB), COM(2011) 121 final of 3 October 2011. 7

See section II below. examples of judgments which do not any longer use the old formula see Case C-380/11 DI.VI. Finanziaria di Diego della Valle EU:C:2012:552; Case C-48/13 Nordea Bank Danmark EU:C:2014:2087. Compare Case C-269/09 Commission v Spain EU:C:2012:439, para 47, where it is still stated that direct taxation belongs to the competence of the Member States (albeit with the usual caveat that it should be exercised in respect of Union law). 9 Apart from the general textbooks on Union law see, in particular C Barnard, The Substantive Law of the EU: The Four Freedoms, 3rd edn (Oxford, Oxford University Press, 2010); See also M Fallon, Droit matériel général de l’Union européenne, 2nd edn (Louvain-la-Neuve, Bruylant, 2002); SA de Vries, Tensions within the Internal Market: The Functioning of the Internal Market and the Development of Horizontal and Flanking Policies (Groningen, Europa Law Publishing, 2006). 8 For

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or even the ‘fundamental freedoms’, we prefer to refer to the policies contained in Titles II–IV of Part Three TFEU as the ‘economic freedoms’.10 The fact remains, however, that these provisions are about free movement, not about a liberal economy as such.11 Of course, the objective previously set forth in Article 3(1)(g) TEC of ensuring that competition is not distorted comes closer to an economic policy choice and the basis of free competition must be free movement. However, as noted above, that goal did not find its way into what is now Article 3 TEU, yet the free movement provisions survive unaltered. It appears obvious to us that these core provisions, the quintessence of what European integration was about, were given the broadest possible construction to ensure that the goal of creating the single market was achieved. That the effect of these provisions, coupled with the flanking policies included in the Treaties as a necessary accessory to the free movement rules, was clearly to hinder or restrain state intervention in the market was, in a sense, coincidental. In other words, although limits were set on public action either directly in the Treaty, for example in relation to the prohibition on the granting of state aid (Article 107 TFEU), or as a result of judicial application of the basic free movement provisions, for example in the so-called Golden Shares cases, the rationale was free movement, rather than political ideology. Without prejudice to the foregoing and despite a shift away from a primarily economic approach to integration, the Treaties nevertheless continue to be based on the assumption of a more or less liberal economic system. It is true that the Treaties are neutral as regards the rules of the Member States governing property ownership (Article 345 TFEU), that state monopolies are simply regulated rather than outlawed12 and that services of general economic interest are recognised as constituting one of the shared values of the Union,13 but the basic rules on free movement still apply, and state monopolies or other state undertakings must, in principle, comply with the Treaties, in particular the prohibition on discrimination against imported goods or services.14 If they perform an economic activity, they must also comply with the competition and state aid rules.15 The Golden Shares case law stemmed from a number of situations in a number of Member States which, although privatising a particular state-owned company, reserved certain special rights (‘golden shares’) to itself (granting, for example, a veto right concerning important decisions). The decision on where to draw the line between the private and the

10 See, eg T Kingreen, ‘Fundamental Freedoms’ in von Bogdandy and Bast, n 3 above, 515. The expression ‘fundamental freedoms’ is used in the keywords of some judgments: eg, Case C-222/07 UTECA EU:C:2009:124 and Joined Cases C‑282/04 and C‑283/04 Commission v the Netherlands EU:C:2006:608. However, in light of the increasing visibility of human rights and fundamental freedoms especially since the adoption of the Charter of Fundamental Rights, a move away from this expression as referring to free movement is, we suggest, to be encouraged. 11 Concerning the free movement of goods in particular, see M Poiares Maduro, We, the Court. The European Court of Justice and the European Economic Constitution: A Critical Reading of Article 30 of the EC Treaty (Oxford, Hart Publishing, 1998) 58–60, 78. 12 See Arts 37 and 106 TFEU. See, eg Case C-157/94 Commission v Netherlands EU:C:1997:499; Case C-159/94 Commission v France EU:C:1997:501. 13 See Art 14 TFEU and Protocol No 26 on Services of General Interest annexed to the TEU and the TFEU. See also J-L Dewost, Les services d’intérêt économique général et le marché intérieur: régimes nationaux et cadre juridique européen (Paris, Société de législation comparée, 2012). 14 See, eg Case C-189/95 Franzén EU:C:1997:504; Case C-438/02 Hanner EU:C:2005:332; Case C-170/04 Rosengren and Others EU:C:2007:313; Case C-198/14 Visnapuu EU:C:2015:751. 15 But see, eg Art 106(2) TFEU which allows some exceptions, albeit under strict conditions.

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public sectors forms the essence of industrial policy and is ostensibly based on considerations far removed from national preference or protectionism. However, on the basis that these ‘golden shares’ may discourage investors from other Member States from investing in those undertakings, the ECJ found that they violated the right of establishment (Article 49 TFEU) and/or restricted the free movement of capital (Article 63 TFEU).16 Similarly, although taxation is one of those areas often associated with the prerogatives of the state and the economic and political choices it makes (although, as pointed out in section I above, Article 115 TFEU provides a legal basis for Union measures as well), the power to tax must be exercised in conformity with Union law. As a result, differences in treatment based not only on nationality but also, for instance, on place of earnings or residence have been held to be incompatible with one or more of the economic freedoms.17 This case law is based on the economic freedoms recognised in primary law and is not as such dependent on the steps taken in recent years towards a certain harmonisation of direct taxation. This broad approach to what constitutes an obstacle or a restriction to free movement implies that a range of national legislation which wholly, or to a large extent, belongs to the competence of Member States may fall foul of the economic freedoms (for example, national legislation on direct taxation, social security, health or family law related m atters). Indeed, the basic proposition as formulated by the Court in relation to free movement of goods is that Article 34 TFEU (which prohibits quantitative restrictions on imports or measures having equivalent effect) will catch ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intraCommunity trade’.18 A brief analysis of the evolution of the case law since that judgment provides an interesting constitutional insight. Dassonville, decided in 1974, laid the foundations which continue to inform the free movement of goods to this day; in addition to direct (obviously) and indirect (equally uncontroversial) discrimination, even indistinctly applicable rules could be found to violate the Treaty. The formula was developed in Cassis de Dijon, since when all goods lawfully marketed in one Member State should in principle have access to the markets of the other Member States.19 And so the Court sowed the seeds of the principle of mutual recognition, now so important to the development of the area of freedom, security and justice a longside

16 See, eg Case C-112/05 Commission v Germany EU:C:2007:623 (concerning a special law relating to the olkswagen company); Case C-212/09 Commission v Portugal EU:C:2011:717 (concerning golden shares in an V energy company). See also Case C-81/09 Idryma Typou EU:C:2010:622, which concerned the incompatibility with the TFEU of a national rule which, without creating ‘golden shares’ in favour of the state, provided that the mere fact of holding more than 2.5% of the shares of a television company could expose investors (and thus also foreign investors) to a fine. 17 On Union primary law and direct taxation, see, eg S Kingston, ‘The Boundaries of Sovereignty: The ECJ’s Controversial Role Applying Internal Market Law to Direct Tax Measures’ (2006–07) 9 Cambridge Yearbook of European Legal Studies 287; C Brokelind (ed), Towards a Homogeneous EC Direct Tax Law: an Assessment of the Member States’ Responses to the ECJ’s Case Law (Amsterdam, IBFD, 2007); J Kokott and H Ost, ‘Europäische Grundfreiheiten und nationales Steuerrecht’ (2011) 22 Europäische Zeitschrift für Wirtschaftsrecht 496. See also at n 6 above. 18 Case 8/74 Dassonville EU:C:1974:82. 19 Case 120/78 Rewe-Zentral (‘Cassis de Dijon’) EU:C:1979:42. See A Rosas, ‘Life after Dassonville and C assis: Evolution but No Revolution’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 433.

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the internal market as an area without internal borders (see chapter twelve above). This basic proposition then spread to the other free movement rights, in particular the free movement of services and capital, although this latter presents some specific characteristics since Article 63 TFEU also prohibits restrictions on capital movements ‘between Member States and third countries’.20 The Community (and later the Union) therefore found itself in a situation whereby all national rules liable to have restrictive effects on trade, even those displaying no connection whatsoever with imports, were open to review by the ECJ. The result was ‘excessive recourse’ to what is now Article 34 TFEU.21 One palliative to this problem presented itself in the form of the scope of application of the Treaties themselves; ‘purely internal’ situations fall beyond the reach of the free movement provisions of the TFEU.22 This rule was initially applied in a mechanical fashion to the facts before the Court.23 However, in addition to the instances of so-called ‘reverse discrimination’ inherent in the very existence of the rule, this approach, dissociating the assessment of a case from economic reality, sometimes excluded situations which might, on closer inspection, have been found to exert a detrimental effect on free movement.24 In response to these issues, the ECJ refined its approach to concentrate on measures actually having a negative impact on inter-state trade, even if the facts actually before the Court concerned the application of domestic legislation to domestic products.25 In parallel to this evolution in relation to the free movement of goods, the introduction of citizenship of the Union formed the basis for a similar development as regards free movement of persons and the ECJ started to apply the right of free movement of workers to nationals who work in their home state but reside in another Member State, or who return to their state of nationality after having worked in another Member State.26 In other words, they have been able to invoke a free movement right against their own state, challenging a difference in treatment between them and those nationals who ‘stayed at home’. As to services, the ECJ, in a case which has caused much debate, found that a national of the home state who provided services in other Member States could invoke his freedom to provide services and through that prism also his right to family life in the home state.27

20

See, eg Case C-76/90 Säger EU:C:1991:331, para 12. See also Barnard, n 9 above, 324–29, 350–51, 469–72. The expression was used by Advocate General Bot in his Opinion of 8 July 2008 in Case C‑110/05 Commission v Italy EU:C:2009:66, para 57 of the Opinion. 22 The rule was first established in a case concerning free movement of workers (Case 175/78 Saunders EU:C:1979:88) and then extended to the other economic freedoms (on the free movement of goods see, eg Joined Cases 314 to 316/81 and 83/82 Waterkeyn and Others EU:C:1982:430). 23 A Tryfonidou, ‘The Outer Limits of Article 28 EC: Purely Internal Situations and the Development of the Court’s Approach through the Years’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing 2009) 197, 199 et seq. 24 On reverse discrimination (or the less favourable treatment of nationals compared to foreigners) see, eg Case 178/84 Commission v Germany (‘German Beer’) EU:C:1987:126; Case 407/85 3 Glocken EU:C:1988:401. See also A Tryfonidou, Reverse Discrimination in EC Law (Austin, Kluwer Law International, 2009). 25 Joined Cases C-321/94 to C-324/94 Poucet and Pistre EU:C:1997:229, para 44; Case C-379/98 PreussenElektra EU:C:2001:160, paras 37, 52; Case C-71/02 Karner EU:C:2004:181, paras 18–22. See also Tryfonidou, n 24 above, 207–12, who (at 210–11) notes a similar tendency in competition law case law. 26 Case C-227/03 van Pommeren-Bourgoundiën EU:C:2005:431, paras 19, 44–45; Case C-152/03 RitterCoulais EU:C:2006:123, paras 31–32; Case C-212/05 Hartmann EU:C:2007:437, para 17; Case C-287/05 Hendrix EU:C:2007:494, para 46; Case C-291/05 Eind EU:C:2007:771, para 32. See also ch 10(IV) above. 27 Case C-60/00 Carpenter EU:C:2002:434. See also ch 11(II) above, at n 33. 21

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It is not clear, however, whether this ruling would apply to all service providers, or indeed to recipients of trans-border services (which, given contemporary communications and information technologies, can potentially include all persons).28 It is important to note that this approach is still based on the original premise that the free movement rights do not apply to purely internal situations; it is simply the tools for determining the existence or not of such a situation which have evolved. Despite perceptions that the distinction between Union law and Member States’ internal matters has been gradually blurred and the scope for the exclusion of internal matters from the reach of the economic freedoms reduced, coupled with extensive secondary legislation which by definition may apply to certain products, services or situations regardless of whether there is actual cross-border movement, this limit on the application of the free movement rights has been confirmed. Declining to act upon compelling arguments to the contrary presented by Advocate General Sharpston, in a case concerning a social insurance scheme which excluded from the scheme persons working in one region of a state (the Flemish Region or the Region of Brussels—Capital of Belgium) but residing in another region of the same state, the ECJ reiterated its long-established case law according to which the free movement rights do not apply to purely internal situations.29 Thus, Belgians working in those territories but residing in other parts of Belgium could not invoke their free movement rights (in this case the free movement of workers and the right of establishment) if they had never exercised their freedom to move from one EU Member State to another. Paradoxically (according to the Advocate General), nationals of other Member States who worked in the regions in question and resided in other parts of Belgium, as well as Belgian nationals who had previously made use of their right to freedom of movement (eg by residing in France), were protected under the Treaties.30 This result is what is often referred to as reverse discrimination and, although technically a matter for the Member State in question, its effects have been tempered somewhat by the so-called Dzodzi case law of the ECJ, which takes into account the interest of the national judge in obtaining an interpretation of Union law with a view to implementing a national law enjoinder to avoid less favourable treatment (reverse discrimination) of nationals.31 Whereas it is true that with regard to the free movement of services, establishment and the free movement of capital, the ECJ has sometimes provided an answer to a national judge even if the latter has not referred to any cross-border element in the national litigation at

28 Service recipients are, in principle, covered by Art 56 TFEU on freedom to provide services. See Joined Cases 286/82 and 26/83 Luisi and Carbone EU:C:1984:35; Case 186/87 Cowan EU:C:1989:47. 29 Case C-212/06 Government of the French Community and Walloon Government EU:C:2008:178, paras 37–39. See in particular the Opinion of Advocate General Sharpston of 28 June 2007, advocating a reversal of earlier case law. The Advocate General came back to the issue, this time in the more specific context of citizenship of the Union, in her Opinion in Case 34/09 Ruiz Zambrano EU:C:2011:124. As noted above (see ch 10(II) above, at n 19, and ch 10(IV), at nn 67–68), in Ruiz Zambrano and some subsequent judgments, the Court, while not following the Opinion fully, has indeed applied Article 20 TFEU to Union citizens even in cases where there has been no previous exercise of the right to free movement. This case law is explained by the special status that the Court has associated with Union citizenship (which goes beyond the four economic freedoms). 30 Ibid, paras 41–60. 31 Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State EU:C:1990:360. For further reference to case law see, eg Tryfonidou, n 24 above, 197, 213–14, although we propose that the author goes too far in suggesting that the ECJ should play an active role in avoiding cases of reverse discrimination.

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issue, the Court has recently become more strict in this respect and has now underlined that, save the Dzodzi case law referred to above and the case of an obligation in national law to apply Union law also in an internal situation, a case which, in a purely internal situation,32 related to a claim for damages from the State for having violated the freedom to provide services, establishment or the free movement of capital, fell solely within national law rather than Union law.33 In parallel to these developments, the Court found another way to rein in the attempts by traders to challenge rules regulating trade, and embarked on one of its rare revirements, expressly departing from its own previous case law. In the line of case law beginning in 1993 with Keck, the Court limited the reach of its Dassonville and Cassis de Dijon case law by excluding national selling arrangements (rules restricting Sunday trading, rules on minimum prices, and so on) from the scope of what is now Article 34 TFEU.34 The Court was of the view that, while product-related characteristics (eg the name, form, weight and dimensions of the product, as well as its composition, presentation, labelling and packaging) are caught by the prohibition on measures having an effect equivalent to a quantitative restriction on imports in accordance with the longstanding precedent laid down in Cassis de Dijon, selling arrangements concern the exercise of commercial activity as such; provided they apply generally and affect, in law and in fact, all products in the same manner, they are not liable to directly affect access to the market. This ruling was not uncontroversial; had the Court gone too far in the other direction, exempting selling arrangements (for instance, on the advertising of goods) which could well constitute obstacles to the access of imported goods to a particular market? And why would the Keck limitation not apply equally to, for example, national rules regulating the use of goods? A judgment in early 2009 allowed the ECJ to clarify these issues. The Dassonville and Cassis de Dijon case law applies fully only to product-related requirements and to rules which treat imported goods less favourably than domestic goods, whereas, in respect of other measures (such as selling arrangements or rules on the use of goods which do not make any distinction between domestic and imported goods), the question is whether the rules in question hinder the access of goods originating in other Member States to the market of the state in question.35 The market access test, although certainly ripe for further clarification and refinement, had already been applied by the ECJ in the context of freedom to provide services.36 This test is a reminder of what we stated at the outset, that the economic freedoms are about unrestricted movement rather than any value judgment (liberal,

32 Concerning such renvois in national law to Union law see, eg Case C-448/98 Guimont EU:C:2000:663; Case C-111/12 Ordine degli Ingegneri di Verona e Provincia and Others EU:C:2013:100. 33 Case C-268/15 Ullens de Schooten EU:C:2016:874. The Court referred to a situation ‘which is confined in all respects within a single Member State’ and the fact that there was ‘no link’ between the subject of circumstances of the dispute and the economic freedoms at issue. 34 Joined Cases C-267/91 and C-268/91 Keck and Mithouard EU:C:1993:905. See also the seminal article of E White, ‘In Search of the Limits to Article 30 of the EEC Treaty’ (1989) 26 Common Market Law Review 235, and, concerning the free movement of goods in general, Poiares Maduro, n 11 above. 35 Case C‑110/05 Commission v Italy EU:C:2009:66. 36 Case C-442/04 Caixa-Bank EU:C:2008:276, para 12; Case C-518/06 Commission v Italy EU:C:2009:270, para 64; Case C-565/08 Commission v Italy EU:C:2011:188. For a critical approach to the market access test see J Snell, ‘The Notion of Market Access: A Concept or a Slogan?’ (2010) 47 Common Market Law Review 437. See also Barnard, n 9 above, 19–25.

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social or otherwise) championing or condemning specific commercial or other practices or behaviour. And so the evolution of the nature and extent of the free movement rights continues, inexorably. What does this tell us about the constitutional order and how it manages its unusual substantive element? We hope that the examples discussed serve at least to dispel the fears that setting substantive provisions in a constitutional context will result in static law unable to adapt to changing circumstances. The same basic provisions have served a wealth of aims and objectives and, it is suggested, certainly show no obvious signs of championing economic liberalism at the expense of all else, far less l’Europe sociale. What is more, the economic freedoms are not absolute and restrictions may, subject to respect for the principle of proportionality as well as other general principles of Union law, notably fundamental rights and legal security, be justified on the basis of explicit Treaty provisions, ECJ case law concerning so-called imperative or mandatory requirements, or secondary law. It is this middle category which again allows Union law to ‘change with the times’. The explicit grounds for derogation and justification were drawn up in the 1950s and offer rather limited and partly disparate lists for each of the freedoms. Beginning with the mandatory requirements identified in Cassis de Dijon,37 the Court has recognised a great number of other grounds for justification, including the protection of workers, consumers, the environment and culture, as well as fundamental rights.38 The proliferation of the number of justifications is a response to both the changing nature of society and societal preferences as compared to the 1950s and 1960s (placing greater emphasis on values such as the protection of the environment, consumers and fundamental rights), and to the increased likelihood that national legislation in various fields may be held to constitute a restriction to the economic free movement provisions of the TFEU. What is perhaps to be regretted, given the (very general) trend in the case law towards a more uniform approach to the different economic freedoms, notably concerning the concept of restriction itself and the justifications which might, under specific conditions, be invoked, is that the Treaty of Lisbon did not take the opportunity to align and codify the case law to date.39

37 See at n 19 above. It was the so-called mutual recognition rule of Cassis—that goods lawfully marketed in one Member State in principle have access to the market of another Member State even if they do not conform to the latter’s legislative requirements—that prompted the Court to grant the ‘importing’ state an additional ground for justifying its national rules on the grounds that they represent a mandatory requirement such as consumer protection. 38 See, eg C Barnard, ‘Derogations, Justifications and the Four Freedoms: Is State Interest Really Protected?’ in Barnard and Odudu, n 23 above, 273, 276–80. Concerning goods in particular, see P Oliver et al, Oliver on Free Movement of Goods in the European Union, 5th edn (Oxford, Hart Publishing, 2010) 215 et seq. 39 See, eg Barnard, n 9 above, 25; J Snell, Goods and Services in EC Law: A Study of the Relationship between the Freedoms (Oxford, Oxford University Press, 2002). Of course, there are not insignificant limits to a uniform approach stemming from the distinct nature of each freedom, differences in the text of the primary norms themselves and the fact that secondary legislation is normally concerned with one economic freedom and often introduces specific rules thereby creating distinctions (recent examples include the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, [2006] OJ L376/36, and Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, [2011] OJ L88/45).

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III. The Social Dimension When the EEC and the economic freedoms were established, the social aspect of this new Community did not go completely unnoticed: what more proof is needed than the specific expression of the principle of equal pay for male and female workers for equal work or work of equal value, nowadays found in Article 157(1) TFEU. Although this principle may have an economic impact (ensuring that competition is not distorted), it is fair to say that its aim is primarily social and its inclusion in the original Treaty (when the focus of integration was decidedly economic) is significant in that respect.40 On the other hand, with regard to social policy as such, the principle of equality was very much a tool of economic integration aimed at precluding ‘market distorting’ social dumping. More generally, however, the EEC Treaty did not appear to place much emphasis on what has come to be referred to as the social dimension of European integration, the European Social Model or ‘Social Europe’ (l’Europe sociale).41 Things have changed since then, but the development has been neither smooth nor radical. As alluded to in the introduction to this chapter, this is perhaps explained by the fact that the views on what role the social dimension has, and should have, in European integration and Union law vary considerably.42 Contrast the French referendum campaign on the Constitutional Treaty of 2004 in which the ‘No’ campaigners argued that the Treaty was defunct, inter alia, because it was ‘ultra-liberal’ or ‘ultra-capitalist’ at the expense of l’Europe sociale, with the election manifesto of the UK Conservative Party in Spring 2010, which pledged to ‘claw back’ some of the EU legislation on social policy.43 Any assessment of whether Union legislation (for instance, the Working Time Directive)44 goes too far in regulating employment and constitutes an impediment to a flexible labour market will necessarily be influenced to a great extent by perspective and ideological preference. It is, of course, difficult to determine the relative weight of, say, the economic free movement rights or competition law as compared to Union social law (in the broad sense of the term),

40 Case C-43/75 Defrenne II EU:C:1976:56, but see Joined Cases C-270/97 and C-271/97 Deutsche Post EU:C:2000:76, para 57. See C Barnard, ‘Social Policy Revisited in the Light of the Constitutional Debate’ in CB arnard (ed), The Fundamentals of EU Law Revisited (Oxford, Oxford University Press, 2007) 109, 111–112. 41 C Barnard, EC Employment Law, 3rd edn (Oxford, Oxford University Press, 2006) 3 et seq; F Rödl, ‘The Labour Constitution’ in von Bogdandy and Bast, n 3 above, 626, 629–33. 42 See generally, eg E Palola and A Savio (eds), Refining the Social Dimension in an Enlarged EU (Helsinki, National Research Centre for Welfare and Health—Ministry of Social Affairs and Health, 2005); ATJM Jacobs, ‘The Social Janus Head of the European Union: The Social Market Economy versus Ultraliberal Policies’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism Beyond Lisbon (Antwerp, Intersentia, 2009) 111; Barnard, n 41 above; Hatje, n 3 above; Rödl, n 41 above. 43 See, eg J-C Piris, The Constitution for Europe: A Legal Analysis (Cambridge, Cambridge University Press, 2006) 188; Rosas, n 2 above, 957. For the Conservative Party manifesto for the elections in 2010, see https://www. conservatives.com/~/media/Files/Manifesto2010 at p 113 (accessed on 25 August 2010). Reservations in the UK as regards social policy do not necessarily depend on party politics; the Labour Government negotiated Protocol No 32 on the Application of the Charter of Fundamental Rights to Poland and to the UK (annexed to the TEU and the TFEU), which appears to be motivated at least in part by the ‘social rights’ contained in Title IV of the Charter. See further ch 11(III) above. 44 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, [2003] OJ L299/9. Relevant case law includes Joined Cases C-397/01 Pfeiffer EU:C:2004:584; Case C-282/10 Dominguez EU:C:2012:33.

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particularly given that many elements of the latter (such as the level of social security) are governed essentially by national law. The following discussion is limited to a few aspects of constitutional relevance, bearing in mind that fundamental rights in general and equality and non-discrimination more specifically have already been considered in chapter eleven. Given the economic origins of integration, that the social dimension does not enjoy the same status as the economic strand of internal market law, especially the free movement rights and competition law, would appear to be a safe starting point. The economic freedoms and the main principles of competition law are enshrined in primary law (the TFEU) and have direct effect, whereas the provisions contained in Title X of Part Three TFEU, or in other Titles of a social character,45 are more prone to expressing general values, principles and objectives or rules of competence, power and procedure than to making affirmative statements of social policy. Indeed, the Charter of Fundamental Rights itself displays a certain bias in favour of rights normally considered as civil or political rights, most of the social rights tending to be framed, to use the terminology of the Charter, as ‘principles’ rather than ‘rights’ or ‘freedoms’.46 In fact, many of the social provisions of the TFEU (notably those on employment, protection and improvement of human health, culture and education, vocational training, youth and sport) establish only a competence to support, coordinate or supplement the p olicies of the Member States, excluding any harmonisation of national laws and regulations of the Member States, the idea being to exchange best practices and experiences, applying what has been called the open method of coordination.47 And in areas where setting common minimum standards is possible (Article 153(1) and (2)(b) TFEU contains a list), action is subordinated to ‘the need to maintain the competitiveness of the Union economy’ (Article 151 TFEU) and cannot ‘affect the right of Member States to define the fundamental principles of their social security systems’ or ‘significantly affect the financial equilibrium thereof ’ (Article 153(4) TFEU). What is more, the application of a special legislative procedure (requiring unanimity in the Council) is not uncommon in this policy area.48 That said, the first impression left by a reading of the TEU is now distinctly ‘social’; Article 3(3) TEU, in describing the main values and objectives of the internal market, refers not only to the concept of a social market economy but also, inter alia, to combating social exclusion and promoting social justice, economic, social and territorial cohesion, and solidarity among the Member States. In addition, Article 9 TFEU now requires that, 45 See notably Title IX on Employment, Title XI on the European Social Fund, Title XII on Education, Vocational Training and Sport, Title XIII on Culture and Title XIV on Public Health. 46 See ch 11(V) above. For an example where the ECJ denied the direct effect (and hence also the direct horizontal effect) of a Charter social right (in this case Article 27 on workers’ right to information and consultation) see Case C-176/12 Association de mediation sociale EU:C:2014:2 (‘that article by itself does not suffice to confer on individuals a right which they may invoke as such’, para 49). See also K Lenaerts, ‘La solidarité ou le chapitre IV de la Charte des droits fondamentaux de l’Union européenne’ (2010) 21 Revue trimestrielle des droits de l’homme 217. 47 See Arts 149, 166(4), 167(5) and 168(5) TFEU. See also Arts 2(5), 5 and 6 TFEU, which define in general terms the different categories and areas of Union competence, including the general rule expressed in Art 2(5) that the competence to carry out actions to support, coordinate and supplement actions of Member States does not include the power to adopt legally binding acts which entail harmonisation of national law. See ch 3(II) above. 48 These minimum standards directives may be adopted in only nine of the eleven fields listed in Art 153(1) TFEU. A special legislative procedure applies in four of those nine areas. In the two other fields, which concern the combating of social exclusion and the modernisation of social protection systems, the Union can only adopt measures designed to encourage cooperation between Member States, excluding any harmonisation of national laws and regulations (Art 153(2)(a) TFEU).

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in the definition and implementation of all policies and activities, account shall be taken of ‘requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’, and Article 151 TFEU adds the fundamental social rights set out in the European Social Charter and in the Community Charter of the Fundamental Social Rights of Workers to the list.49 While these provisions do not in themselves establish any rights for individuals, they are, at the very least, indicative of a base upon which the Union legislator may build the far from negligible existing secondary law, especially in the field of labour law.50 The extent to which this potential is realised will, of course, depend on any proposals from the Commission finding the necessary support in the Council (either qualified majority or, in areas considered to be of particular sensitivity, unanimity). But is this not how things should be: if Europe really is ‘social’, then surely the Treaties will be too? Finally, independently of whether such a result is desirable or not, we suggest that it certainly cannot be asserted that the Union is blind to the social dimension of integration. Existing legislation corroborates this conclusion, but even a cursory review of the case law of the ECJ puts the matter beyond doubt.51 In addition to the rather broad reach of social regulation in secondary law, primary law is also an increasing source of individual rights of a social nature. The principle of equal pay and the other non-discrimination rights discussed in chapter eleven above are obvious examples, and the Charter of Fundamental Rights only adds to the list; in addition to equality and non-discrimination, some of the freedoms guaranteed in Title II, including the freedom to choose an occupation and the right to engage in work (Article 15) and the freedom to conduct a business (Article 16), and the solidarity rights in Title IV (especially those relating to labour rights) may lend themselves to direct application. As for the case law, in the by now (in)famous Viking Line and Laval judgments of 2007, the Court was very clear: the Community has not only an economic but also a social purpose, and the rights engendered by the economic freedoms must be balanced against the objectives pursued by social policy.52 In fact, the Court was not breaking new ground here; the social objectives of the Community were already on the Court’s radar in 1976.53 Yet it

49 On the European Social Charter, which is a binding convention concluded under the auspices of the Council of Europe, see ch 11(III) above, n 53. The Community Charter, which is not a legally binding instrument in itself, was adopted by 11 of the 12 heads of state or government meeting in Strasbourg on 9 December 1989. 50 See generally, eg Barnard, n 41 above, passim. As an aside, legal bases in this field very often refer to and include in the process the ‘social partners’ (management and labour), illustrating once again the many levels at which EU governance operates. 51 See, eg K Lenaerts and T Heremans, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’ (2006) 2 European Constitutional Law Review 101; K Lenaerts, ‘Le développement de l’Union sociale européenne dans la jurisprudence de la Cour de justice’ (2008) 9 ERA Forum (Academy of European Law, Trier) 6; F Biltgen, ‘The Interpretation of the Court of Justice of the European Union of Fundamental Labor Rights’ in Ensuring Coherence in Fundamental Labor Rights Case Law: Challenges and Opportunities, First Global Conference for International Labor Law Judges and Other Adjudicators, Leiden 22 April 2016 (The Hague, Social Justice Expertise Center, 2016) 73. 52 Cases C-438/05 International Transport Workers Federation (‘Viking Line’) EU:C:2007:772, para 79 and C-341/05 Laval un Partneri EU:C:2007:809, para 105. 53 Case 43/75 Defrenne II, n 40 above, para 10. See also Case C-67/96 Albany EU:C:1999:430, para 54 and Case C-319/07 P 3F v Commission EU:C:2009:435, para 58.

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is precisely the Viking Line and Laval judgments which provoked accusations of ‘dumping socialism’.54 The Posted Workers Directive,55 which was at issue in Laval,56 has become particularly contentious, as its insistence on applying at least the local minimum wage to workers of one Member States posted temporarily to another Member State in the context of freedom to provide services is not considered sufficient by many. This has led the Commission to propose some modifications to the Directive with a view to restricting what is perceived as ‘social dumping’ and ‘unfair competition’.57 The debate on this proposal has revealed a divide between Central and Eastern European Member States on the one hand (which are normally the sending country) and Western European Member States on the other (normally the host countries).58 Bringing the discussion back to our basic question concerning the ‘freezing’ of substantive law in a constitutional context, we suggest that in Laval, the Court has struck the appropriate balance; in recognition of the social dimension of European integration, the Court expressly acknowledged that so-called ‘social dumping’ may, in principle, justify a restriction of the economic freedoms. In other words, the protection of workers is one of the overriding reasons in the general interest recognised by the Court. The fact that, in a particular case, the balance weighs in favour of the economic freedom (in Laval, the right to provide services in the form of posted workers) does not signal the end of l’Europe sociale. In fact, in that judgment the Court took into account not only the interests of the Latvian company posting workers in Sweden but also the interests of these workers themselves (who were prevented by the Swedish measures from participating in the provision of a service in the host country). Perceptions of how well the Court weighed the various factors in any given case will again be coloured by political preference, but from a constitutional point of view the important point is that the balancing exercise takes place.59 What is more, if, instead of focusing on individual cases, the case law is taken as a whole, it becomes apparent that the economic freedoms are often the very weapon with which the social objectives are defended. The rationale behind this case law would appear to rest

54

C Barnard, ‘Social Dumping or Dumping Socialism?’ (2008) 67 The Cambridge Law Journal 264. 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L18/1. See also Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC, [2014] OJ L159/11. 56 Case C-341/05, n 52 above. 57 Proposal for a Directive of the European Parliament and of the Council amending Directive 96/71/EC, COM(2016) 128 final of 8 March 2016. 58 Parliaments from 11 Member States from Central and Eastern Europe issued a so-called yellow card with respect to the Commission proposal, which decided to proceed with the initiative, however (see on this procedure ch 3(IV) above). See, eg A Eriksson, ‘EU Parliament Delays a Posted Workers Vote’ https://euobserver.com/ social/138073, 1 June 2017, accessed on 21 June 2017. 59 For a detailed defence of the position of the Court in Laval un Partneri, which concerned the status of posted Latvian workers in Sweden, see A Rosas, ‘Finis Europae Socialis?’ in Chemins d’Europe: Mélanges en l’honneur de Jean Paul Jacqué (Paris, Dalloz, 2010) 591; A Rosas, ‘Les travailleurs detaches dans l’espace social européen: La jurisprudence récente’ in De Rome à Lisbonne: Les juridictions de l’Union européenne à la croisée des chemins : Mélanges en l’honneur de Paolo Mengozzi (Bruxelles, Bruylant, 2013) 387. This judgment has been followed by a string of similar but not identical cases, see, eg Case C-346/06 Rüffert EU:C:2008:189; Case C-319/06 Commission v Luxembourg EU:C:2008:350; Joined Cases C-307/09 to C-309/09 Vicoplus EU:C:2011:64; Case C-115/14 Stadt Landau in der Pfalz EU:C:2015:760. 55 Directive

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on the (quite proper) assumption that free movement rights will only be effective if they also address disadvantages that exercise of those rights (as opposed to staying put) would entail. In the field of social security, for example, this trend is particularly visible; despite a deliberate legislative focus on coordination rather than harmonisation, the free movement rights are being used to squeeze national competence, highlighting its limits.60 Equal treatment in relation to taxation and social benefits has always been an integral component of the free movement of workers.61 Until the 1990s, this free movement was limited to economically active persons, whether workers including job-seekers, self-employed persons, or service providers or seekers. The advent of Union citizenship (and, perhaps, the increasing emphasis on the social dimension of integration more generally) has altered the perspective of the Court in this respect, with the result that free movement is perceived to be for the benefit of all persons, not just the economically active, and inroads into the territoriality of the welfare state may appear to be treated as collateral damage.62 That said, the Court has recently demonstrated an understanding for the right of a host Member State to deny certain social benefits to nationals of another Member State who have no intention of seeking a job, and in certain circumstances, even those who are jobseekers.63 In assessing this case law, it is important to qualify from the outset that a Union citizen cannot challenge tax or social security rules simply because they are less favourable to him than the rules of his home state or former residence; there is no ‘rule of origin’ in relation to the free movement of persons and, if they choose to exercise their right to move, they cannot choose which benefits to take with them when they go.64 Indeed, the very purpose of secondary legislation in this field is to coordinate the disparate national systems and identify which rules will apply and when.65 However, the complex coordination regime described in Regulation 883/2004 is increasingly supplemented or replaced by an analysis grounded in the principles of equal treatment and free movement.66 More generally, while the Court has held, for example, that a system requiring prior authorisation before seeking hospital treatment abroad is in itself

60 See, eg M Dougan, ‘Expanding the Frontiers of European Union Citizenship by Dismantling the Territorial Boundaries of the National Welfare States’ in Barnard and Odudu, n 23 above, 119. 61 See Art 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on free movement of workers within the Community, now replaced by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, [2011] OJ L141/1. See also ch 10(IV) above. 62 See A Rosas, ‘The Role of the European Court of Justice in the Application and Interpretation of Social Values and Rights’ in Palola and Savio, n 42 above, 195. See also ch 10(IV) above. 63 This case law raises complex questions as to the relationship between Regulation 883/2004 (see n 65 below) on the coordination of social security systems, and Directive 2004/38 on free movement of Union citizens, [2004] OJ L158/77. See, in particular, Case C-140/12 Brey EU:C:2013:565; Case C-333/13 Dano EU:C:2014:2358; Case C-67/14 Alimanovic EU:C:2015:597; Case C-308/14 Commission v United Kingdom EU:C:2016:436. For a stinging criticism of the last-mentioned judgment in particular see C O’Brien, Case Note on Case C-308/14, 54 (2017) Common Market Law Review 209. 64 In relation to social security see, eg Joined Cases C-393/99 and C-394/99 Hervein EU:C:2002:182, para 58, and in relation to taxation, eg Case C‑403/03 Schempp EU:C:2005:446, para 45. 65 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L166/1 (replacing the longstanding Regulation (EEC) No 1408/71 on the same matter). 66 See, eg Case C-192/05 Tas-Hagen and Tas EU:C:2006:676; Case C-287/05 Hendrix, n 26 above.

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justifiable, it will not hesitate to assess whether a given regime in a particular case is, in fact, justified.67 Here, the approach taken by the Court is more easily questioned; situations deliberately excluded from the coordination regime are nevertheless held, apparently against legislative intention, to come within the scope of application of the Treaties. A referral back to chapter five and the hierarchy of EU norms may help situate the discussion in its proper context. Secondary law cannot derogate from or limit primary law, and the former can only be held to exhaustively elaborate on the meaning and extent of the latter in cases of full harmonisation—most definitely not the legislator’s intention in the field of social security. The so-called economic freedoms thus continue to form the backbone of the Treaties, yet they appear to serve the burgeoning social dimension of free movement just as faithfully as the original economic agenda. The fact remains that these fields raise important issues of public expenditure and social solidarity, and the intervention of the judiciary at all in such areas may be called into question. Yet the Court professes itself to be not insensitive to these issues; the health care cases are at pains to emphasise the legitimacy of state planning in this particular sector and it is significant that the amendments introduced by the Treaty of Lisbon do nothing more than reassert what the Court has already acknowledged: that Member States remain free to make the political choice as to the level of social protection on offer and action by the Union must not significantly upset the financial equilibrium of the social security system chosen by a Member State. These factors involve the Court in a delicate balancing exercise, but that is not novel and is certainly not beyond the remit of the judiciary in this or other fields. And in an example of the codification of case law developments by the Union legislator, discussed in section III of chapter four above, a directive relating to cross-border health services was adopted in March 2011.68 Finally, our examples and the wider debate on the social dimension of integration seem to focus disproportionately on the rights of workers, ignoring those of self-employed persons and entrepreneurs (who in some cases may be in a more precarious situation than workers).69 Without commenting further on these other economic migrants, we would simply suggest that not only is the distinction between economic and non-economic migration being effaced, the lines between workers and self-employed persons are also becoming increasingly blurred (through increased use of ‘freelancers’, outsourcing and so on). This trend is reflected in some Union policies and programmes relating to innovation, mobility, training and competitiveness.70 The Charter of Fundamental Rights also seems to take this tendency into account, including as it does the freedom to choose an occupation and the right to engage in work (both expressed in Article 15), and the freedom to conduct a business (Article 16)—although it is true that these freedoms and rights are to be found in

67 See, eg Case C‑372/04 Watts EU:C:2006:325; Case C-173/09 Elchinov EU:C:2010:581; C-211/08 Commission v Spain EU:C:2010:340; Case C-512/08 Commission v France EU:C:2010:579; Case C-490/09 Commission v Luxembourg EU:C:2011:34. 68 Directive 2011/24 on the application of patients’ rights in cross-border healthcare, n 39 above. 69 See also A Rosas, ‘Book Review of D Barak-Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice’ (2009) 42 Israel Law Review 206, 211. 70 See, eg the objectives of the European Social Fund to be found in Art 162 TFEU.

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Title II (‘Freedoms’), not in Title IV (‘Solidarity’). Further, Union primary law accords a prominent place to the need to combat social exclusion and poverty; an issue which transcends the distinction between workers and self-employed people (most socially excluded persons will probably belong to neither category), and is at the same time increasingly seen as one of the core areas of social rights and social policy. The recent debate relating to the aftermaths of the euro and debt crisis (to be discussed in the following chapter) including the ‘austerity’ which is perceived to have been imposed on Member States facing budget deficits, as well as the increasing conviction that globalisation has brought in its wake not only benefits but also unemployment, social exclusion and other socio-economic problems, has triggered a renewed interest in social rights and a ‘Social Europe’. In spring 2017, the Commission recommended the establishment of a ‘European Pillar of Social Rights’, consisting of 20 specific social rights structured under three headings (equal opportunities and access to the labour market, fair working conditions and social protection and inclusion). At the same time, the Commission proposed that this text be ‘solemnly proclaimed’ as an Interinstitutional Proclamation by the European Parliament, the Council and the Commission.71 There is thus a striking parallel between the adoption of this text, as envisaged by the Commission, and the proclamation, in December 2000, of the EU Charter of Fundamental Rights as a legally non-binding document.72 It remains to be seen whether, and to what extent, this parallel will be maintained in the context of the ensuing discussion on the adoption, implementation, and follow up to the proposed Pillar.

IV. Environment As was the case with social policy and social rights, EU environmental policy was built up only gradually and developed in the main through secondary law. The Single European Act of 1987 introduced an express legal basis for environmental measures, but the first directives relating to the protection of the environment date from the 1970s and 1980s, and were based on the catch-all competence provisions related to the functioning of the common market, including what was originally Article 235 EEC (later to become Article 308 TEC, now Article 352 TFEU)—that is, the legal basis for taking action necessary to attain an objective of the Community but for which the power to adopt the required measures was not provided. Interestingly, this practice was sanctioned by the ECJ, despite the fact that protection of the environment did not feature among the objectives of the Community listed in the Treaty.73

71 Commission Recommendation of 26 April 2017 on the European Pillar of Social Rights; Proposal for an Interinstitutional Proclamation on the European Pillar of Social Rights, COM(2017) 251 final of 26 April 2017. 72 See ch 11(III) above. 73 Concerning Art 100 EEC in Case 92/79 Commission v Italy EU:C:1980:86 and concerning Art 235 EEC in Case 240/83 ADBHU EU:C:1985:59, in which the Court identified environmental protection as being one of the Community’s ‘essential objectives’ (para 13). Art 235 presupposed that action proved necessary ‘to attain, in the course of the operation of the common market, one of the objectives of the Community’. See, eg JH Jans and HHB Vedder, European Environmental Law, 3rd edn (Groningen, Europa Law Publishing, 2008) 3–6; N De Sadeler, EU Environmental Law and the Internal Market (Oxford, Oxford University Press, 2014), Part I. As noted in ch 3(III) above, that requirement is not included in Art 352 TFEU.

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Subsequent developments have gone further than the competences and powers existing under the social chapter, indicative, perhaps, of the fundamentally more ‘constitutional’ nature of this particular objective. It is possible, and perhaps even universally acceptable, to aspire in general to a ‘greener’ world and, contrary to social objectives determined by political ideology and necessarily linked to tangible rights for individuals, that aim may be given form without pre-determining what precisely it entails and for whom. Article 11 TFEU provides that environmental protection requirements ‘must be integrated’ into the definition and implementation of other Union policies and activities, in particular with a view to promoting sustainable development; contrast that with the enjoinder in Article 9 TFEU to ‘take into account’ the social objectives of the Treaties. Article 191 TFEU paints the scope of Union action with a broad brush, citing the objectives of preserving, protecting and improving the quality of the environment, protecting human health, utilising natural resources prudently and rationally, and promoting measures at the international level to deal with regional and worldwide problems, in particular combating climate change (the reference to climate change having been added by the Treaty of Lisbon). Other legal bases also have their role in promoting the Union’s environmental policy; Article 114 TFEU relating to measures which have as their object the establishment and functioning of the internal market specifically envisages that legislative proposals based on it may concern health, safety, environmental protection or consumer protection.74 On the other hand, when that aim has crystallised in the national mindset, environmental policy is very much on the political agenda and therefore has a second incarnation, not as a basis for common action, but as a sort of lifeline for national measures that would otherwise be prohibited. While it still does not figure among the explicit grounds for justification in primary law (if account is not taken of a reference to the protection of health and life of humans, animals or plants in Article 36 TFEU), the case law of the ECJ recognises environmental protection as a legitimate objective able to form the basis of a justification for national measures restrictive of free movement.75 That said, convincing the ECJ that restrictive national environmental measures are justified, for the purposes of free movement law, may not be an easy task: measures that were part of a national plan to render emissions compatible with the limit values prescribed by two Union air quality directives were nevertheless held to violate the principle of free movement of goods.76 Environmental considerations also feature in a number of areas of regulatory action, such as competition law, the prohibition on state aid and the rules on public procurement.77 Again in contrast to social policy and, for that matter, the economic freedoms, the breadth of the title on the environment is reflected in the variety of legal bases and other provisions which may be relevant for environmental protection purposes; the whole spectrum of competence options is covered, from supporting the protection and improvement of human health, through a vast middle ground of shared competence to exclusive Union 74 See also Art 114(4) and (5) TFEU, which refer to national measures which a Member State wishes to maintain relating to the protection of the environment or the working environment. Other legal bases in the TFEU which may be relevant include Art 43 on the common agriculture and fisheries policy, Arts 91 and 100 on the common transport policy and Art 207 on the common commercial policy. 75 See section II above, at nn 37–38. 76 Case C-320/03 Commission v Austria EU:C:2005:684; Case C-28/09 Commission v Austria EU:C:2011:854. 77 L Krämer, EC Environmental Law, 6th edn (London, Sweet & Maxwell, 2006) 122–23; Jans and Vedder, n 73 above, 267–302; De Sadeler, n 73 above, 387 et seq.

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competence as regards the conservation of marine biological resources under the common fisheries policy.78 The choice of the appropriate legal base may therefore have important implications for the division of competences and powers between the Union and the Member States. In addition to the normal consequences flowing from the different categories of competence, the scope for environmental action by the Member States is specifically regulated in Article 193 TFEU; Member States may adopt or maintain more stringent protective measures, provided that they are compatible with the Treaties and are notified to the Commission. Without venturing into the intricacies of the choice of legal basis, the difference between an internal market approach (and approximation of laws under Article 114 TFEU), a ‘pure’ environmental approach (Article 192 TFEU) and basing the measures on the common commercial policy (and exclusive Union competence pursuant to Article 207 TFEU) is therefore particularly important. The right for the Member States to maintain or introduce more stringent national measures is progressively restricted, and in relation to the exclusive competence of the Union under Article 207 TFEU is non-existent.79 Since the entry into force of the Treaty of Lisbon, the choice of legal basis, while still important for the division of competences between the Union and the Member States, is of almost no consequence as regards the procedural requirements for common action. The ordinary legislative procedure applies almost without exception (unanimity is required only for certain environmental measures under Article 192 TFEU, for certain trade agreements in the fields of services and intellectual property rights pursuant to Article 207 TFEU, and for the adoption of fiscal provisions, which are not covered by the approximation of laws under Article 114 TFEU). Coming back to the extent to which primary law instructs the legislator on substantive issues, the general objective of Union environmental policy is supplemented by a list of more specific environmental principles: the precautionary principle, the principle of prevention, and the principle that environmental damage should as a priority be rectified at source and that the polluter should pay.80 It goes without saying that the Union legislator enjoys a wide margin of discretion in the application and interpretation of these objectives and principles, yet they cannot be ignored, and they undoubtedly play a role in the judicial review of legislative measures, notably as factors to be taken up in their interpretation.81 Finally, as is perhaps inevitable, given the disregard environmental damage has for national borders, international agreements constitute an important source of secondary environmental law. Article 191(4) TFEU provides for an explicit competence to cooperate

78

On the different categories of Union competence, see ch 3(II) above. Jans and Vedder, n 73 above, 67. See, eg Case C-380/03 Germany v Parliament and Council, n 5 above, which, however, did not concern Art 192 TFEU but the relation between Arts 114 and 168 (public health). In this case the ECJ accepted Art 114 TFEU as the single legal basis for Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, [2003] OJ L152/16. At least in Opinion 2/00 (Cartagena Protocol) EU:C:2001:664 and in Case C-411/06 (Commission v Parliament and Council) EU:C:2009:518, the ECJ accepted Art 192 TFEU as the single legal basis rejecting the use of Art 207 TFEU on the common commercial policy, even if the Union act had a clear international trade component. 80 See Rosas, n 2 above, 965. 81 See, eg Case C-236/01 Monsanto Agricoltura Italia EU:C:2003:431, para 128; Case C-127/02 Waddenvereniging and Vogelsbeschermingvereiniging EU:C:2004:482, para 44; Case C-176/03 Commission v Council EU:C:2005:542, paras 41–43; Case C-446/08 Solgar Vitamin’s France EU:C:2010:233, paras 67–73. 79

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with third countries and international organisations and to conclude international agreements on ‘arrangements for such cooperation’, but the case law of the ECJ suggests that any of the legal bases for internal action in the environmental field will entail a corresponding external competence.82 Unlike the situation prevailing in the social and labour field,83 the Union is, in fact, a Contracting Party to most of the important multilateral environmental conventions, including the 1985 Vienna Convention for the Protection of the Ozone Layer with the 1987 Montreal Protocol, the 1992 UN Framework Convention on Climate Change with the 1997 Kyoto Protocol and the 2015 Paris Agreement adopted under the UN Framework Convention, the United Nations Convention on the Law of the Sea (UNCLOS)84 as well as a number of regional environmental conventions.85 However, since Article 191(4) TFEU specifically stipulates that the reference in the same provision to Union cooperation and agreements with third countries shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements, environmental agreements are as a rule concluded as mixed agreements and Member States continue to pursue their own agendas, albeit in the broader context of Union coordination and an obligation to respect Union law, including the principle of loyal cooperation.86 This obligation becomes all the more important if the Union legislator, as is the case with respect to measures aimed at combating climate change, has adopted internal legislation to implement and complement the international commitments of the Union.87

82 Opinion 2/00, n 79 above, paras 43–47; Case C-459/03 Commission v Ireland EU:C:2006:345, paras 90–95. See also P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 141. 83 For example, the conventions adopted by the International Labour Organisation are only open to States and the EU is thus barred from adhering to them in its own right, see Opinion 2/91 (International Labour Organisation Convention) No 170 EU:C:1993:106. 84 Council Decision 88/540/EEC of 14 October 1988, [1988] OJ L297/8 (Ozone Layer); Council Decision 94/69/ EC of 15 December 1993, [1994] OJ L33/11 (Climate Change); Council Decision 2002/358/EC of 25 April 2002, [2002] OJ L130/1 (Kyoto), Council Decision (EU) 2016/1841 of 5 October 2016 (Paris Agreement) and Council Decision 98/392/EC of 23 March 1998, [1998] OJ L179/1 (UNCLOS). 85 For instance, Council Decision 94/157/EC of 21 February 1994 on the conclusion, on behalf of the Community, of the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention as revised 1992), [1994] OJ L73/19. 86 Case C-246/07 Commission v Sweden EU:C:2010:203. See also ch 15(III) below. 87 The complex legislation relating to greenhouse gas emissions trading has been considered eg in Case C-127/07 Société Arcelor Atlantique et Lorraine and Others EU:C:2008:728; Case C-504/09 P Commission v Poland EU:C:2012:178 and Case C-505/09 P Commission v Estonia EU:C:2012:179.

14 Building a House by Starting with the Roof ? Economic and Monetary Policy I. Introduction Today, the instruction in the Treaty is simple: the Union shall establish an economic and monetary union whose currency is the euro (Article 3 TEU).1 The common currency was first introduced in 1999 (although without euro notes and coins) among 11 of the then 15 Member States. By the time euro notes and coins were put into circulation on 1 January 2002, the euro area had been enlarged to encompass Greece (2001), leaving only the two Member States that had negotiated an opt-out (Denmark and the United Kingdom) and Sweden (whose people had rejected the idea of adopting the euro by referendum) outside the monetary union.2 Since then seven of the 10 Member States which joined the EU in 2004 (Slovenia in 2007, Cyprus and Malta in 2008, Slovakia in 2009, Estonia in 2011, Latvia in 2014 and Lithuania in 2015) have adopted the common currency.3 Not only the introduction of the common currency but also its enlargement was a success, technically speaking: ‘the changeover from a national currency to the euro was smooth both from a national and EMU perspective’.4 What is more, the primary objective of price stability has largely been achieved and inflation has generally speaking been low in the euro area; indeed, in recent years inflation has been considered too low and the target established by the European Central Bank (ECB) of a year-on-year increase in the Harmonised Index of Consumer Prices below two per cent was reached only recently.5 And the magnetic attraction of the euro has spread beyond the border of the Union with some non-EU states using the euro on a de facto basis.6 All in all, the assessment made in 2008 by the

1 On the historical background and the introduction of the three stages of EMU 1990–99 see, eg K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 379–85. See also ch 8(II) above, at nn 29–38. 2 Denmark has however pegged its currency to the euro within the framework of the exchange rate mechanism (ERM II), observing a central rate of 746.038 crowns to the euro with narrow fluctuation margins of +- 2.25% (http://ec.europa.eu/economy_finance/euro/countries/denmark_en.htm, accessed on 2 September 2011). 3 See, eg M Buti et al, ‘The Euro: The First Decade and Beyond’ in M Buti et al (eds), The Euro: The First Decade (Cambridge, Cambridge University Press, 2011) 1 at 25. 4 Buti et al, n 3 above, 25. 5 P Geraats, ‘ECB Credibility and Transparency’ in Buti et al, n 3 above, 193–94. 6 Lenaerts and Van Nuffel, n 1 above, 393–94.

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member of the European Commission responsible for economic and monetary union that ‘the Economic and Monetary Union and the euro are a major success’ did not seem misplaced at the time.7 Indeed, the creation of a whole new currency and the forsaking by the Member States of their national currencies is a quite astonishing achievement, one which, in the words of the Treaty itself, is ‘irrevocable’.8 And yet, the years 2009–2011 saw an unprecedented crisis making it impossible or excessively difficult for some Member States with large deficits (notably Greece, Ireland, Portugal and Spain) to finance their debt through sovereign bond issues at reasonable interest rates and causing some observers to predict the downfall of the common currency9 and even an unravelling of the European integration project itself.10 What happened? The answer appears to lie in the idea that in the 1990s, a house was built starting with the roof (monetary policy and the common currency) but without a sufficiently solid foundation and walls (economic policy and, more specifically, budgetary discipline).11 That is not to say that the Masters of the Treaties were unaware of the link between the two: the provisions on budgetary discipline and those dealing with monetary policy may be found in separate chapters of the TFEU12 but the need to monitor the development of the budgetary situation and the stock of government debt in the Member States was written into the provisions at the outset (in the Treaty of Maastricht) in order to guarantee both the viability of the euro and sound economic policies more generally.13 The main mechanism in this regard consists of the so-called Stability and Growth Pact (SGP), now regulated in Articles 121 and 126 TFEU, a separate Protocol14 and secondary legislation.15

7 Foreword by Commissioner Almunia in EMU@10: Successes and Challenges after 10 Years of Economic and Monetary Union, European Economy 2/1998 (Brussels, European Commission, 2008) iii. 8 The introduction of the euro for a particular Member State implies the irrevocable fixing of a conversion rate between the common currency and the (abolished) national currency of the Member State concerned (see, eg Art 140(3) TFEU). The first decision in this respect was Council Regulation (EC) No 2866/98 of 31 December 1998 on the conversion rates between the euro and the currencies of the Member States adopting the euro, [1998] OJ L359/1. See also Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro, [1997] OJ L162/1, and Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro, [1998] OJ L139/1. 9 See, eg ‘Italy and the Euro: On the Edge’, The Economist, 14 July 2011: ‘By engulfing Italy, the euro crisis has entered a perilous new phase—with the single currency itself now at risk’. 10 See, eg M Leonard, ‘Breaking Europe’s Cycle of Enfeeblement’, Financial Times, 18 August 2011, 7: ‘markets are not just betting against the euro but testing the European project itself ’. 11 See, eg the article by the German Finance Minister W Schäuble, ‘Why Europe’s Monetary Union Faces Its Biggest Crisis’, Financial Times, 12 March 2010, 9. See also L Summers, ‘The World Must Demand That Europe Act to Rescue Its Currency’, Financial Times, 19 September 2011, 11. 12 Indeed, economic policy even comes first, in ch 1 of Title VIII TFEU (Arts 120–26) with monetary policy following in ch 2 (Arts 127–33). 13 See, eg MJ Herdegen, ‘Price Stability and Budgetary Restraints in the Economic and Monetary Union: The Law as Guardian of Economic Wisdom’ (1998) 35 Common Market Law Review 9 at 25 (citing a German memorandum on the Maastricht Treaty). According to J Von Hagen and C Wyplosz, ‘EMU‘s Decentralized System of Fiscal Policy’ in Buti et al, n 3 above, 415 at 417, ‘the fundamental argument in favour of the [Stability and Growth Pact] is that fiscal indiscipline can become the source of inflation’. 14 Protocol No 12 on the Excessive Deficit Procedure annexed to the TEU and the TFEU. 15 For early analyses of the SGP, see, eg Herdegen, n 13 above; HH Hahn, ‘The Stability Pact for European Monetary Union: Compliance with Deficit Limit as a Constant Legal Duty’ (1998) 35 Common Market Law Review 77. For an in-depth analysis see K Hentschelmann, Der Stabilitäts- und Wachtumspakt, unter b esonderer Berücksichtigung der norminterpretatorischen Leitfuntionen der Paktbestimmung für das Vertragsrecht (Baden-Baden, Nomos Verlagsgesellschaft, 2009).

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While the rules written in Maastricht were left largely unaltered by the Treaty of Lisbon, the crisis demonstrated that they are not fit for purpose16 and since spring 2010, a number of modifications have been adopted or proposed. More specifically, the monitoring and enforcement mechanisms of the SGP have been strengthened and temporary mechanisms were created in an attempt to preserve (or restore) stability through the grant of financial assistance to euro area Member States in peril, the quid pro quo being a system of enhanced surveillance. There has also been an increased focus on the risk that banks can present for the viability of the financial system and significant steps have been taken to build a European Banking Union. The reforms even include an amendment to the TFEU authorising the establishment of a permanent stability mechanism (Article 136)17 and a new Treaty (formally outside the framework of the EU) on stability, coordination and governance, signed on 2 March 2012.18 As this edition goes to print, the worst crisis seems to have passed and the special surveillance and financing scheme called the Excessive Deficit Procedure has been closed for each of the four Member States in relation to which that procedure had been put in place (Greece only in September 2017): those countries are once again part of the normal surveillance applicable to Member States whose currency is the euro (with the caveat that Greece is still subject to the conditionality imposed by the stability mechanism described in section IV below). In providing an account of both the euro regime as such, including the role of the European System of Central Banks (ESCB) and the ECB, as well as the mechanisms for ensuring observation of the SGP and preserving financial stability, the aim of the present chapter is not to describe exhaustively this highly technical area of law and economics but rather to present the main features of a system the complexity of which sometimes eclipses the constitutional significance of those individual elements. And at the risk of making the same mistake of starting with the roof, we will begin with a look at the Union’s monetary policy.

II. Monetary Policy Symbolically, practically and legally, the creation of a monetary union with a single common currency is an important ingredient in the EU constitutional order. The consequences are many and varied and three in particular will be highlighted below, but they all stem

16 See, eg the Commission Communications on reinforcing economic policy coordination, COM(2010) 250 final of 12 May 2010, and on enhancing economic policy coordination for stability, growth and jobs: Tools for stronger EU economic governance, COM(2010) 367 final of 30 June 2010. 17 Decision 2011/199/EU of the European Council of 25 March 2011 amending Art 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro, [2011] OJ L91/1. See also ch 1 at n 8 and ch 4(II) at n 25 above. 18 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, often referred to as the ‘fiscal compact’, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:1403_3. In a meeting of the European Council of 8–9 December 2011, an attempt to adopt the changes within the framework of the EU by amending the Treaties and/or certain of the Protocols attached thereto was blocked by the UK. See the Statement by the Euro Area Heads of State or Government on 9 December 2011 and ch 1 above at n 8 and ch 8(II) above at n 12.

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from the same starting point: monetary policy, for the Member States whose currency is the euro, is a matter of exclusive Union competence (Article 3 TFEU).19 The proviso is necessary because, as noted in chapter eight above, while all Member States are in principle, part of what in Title VIII of Part Three of the TFEU is called ‘economic and monetary policy’, the common currency has not been adopted by all Member States and the rules relating to this policy area must therefore distinguish between ‘Member States whose currency is the euro’ and other Member States. This latter group consists of two sub-groups: the two Member States (Denmark and the United Kingdom) which, by an act of primary law, are granted an explicit exemption from the obligation to adopt the euro (although Denmark has, on a voluntary basis, pegged its national currency to the value of the euro);20 and those Member States which do not yet fulfil the conditions for entering what is referred to as the third stage of EMU and adopting the euro as their currency. First, the basic feature of a monetary union having a common currency is, of course, the exclusivity of that currency in combination with a monopoly to issue banknotes and coins. That monopoly is vested in the ECB. Euro banknotes and coins may be issued not only by the ECB but also by the national central banks of the Member States making up the euro zone, but this is done in the case of banknotes issued by national central banks only on the authorisation of the ECB and in the case of coins issued by these banks subject to the approval of the ECB on the volume of the issue. The banknotes issued by the ECB and the national central banks shall be the only such notes to have the status of legal tender within the Union (Article 128 TFEU). Secondly, it should be noted that the unity of the currency also implies a single exchange rate against the currencies of countries outside the euro zone, whether they are other Member States or third countries. And thirdly, the competence to ‘define and implement the monetary policy of the Union’ has been entrusted to an independent entity, the ESCB (Article 127 TFEU).21 As noted above, the primary objective of the ESCB is to maintain price stability, in other words, to keep inflation under control. One of the most important tools in this regard consists of setting the key interest rates for the euro area. This task belongs to the Governing Council of the ECB. An aside on this body, elevated to the status of ‘institution’ of the Union by the Treaty of Lisbon, appears appropriate at this point.22 The first and most important feature of this body from a constitutional point of view is its independence: the Member States whose currency is the euro have relinquished control of this key policy area (Article 282(3) TFEU). Six persons appointed by the European Council make up the Executive Board of the ECB and the Governing Council comprises those persons together with the governors of the

19

On exclusive, shared and supporting competences see ch 3(II) above. Protocols Nos 15 and 16 annexed to the TEU and the TFEU. See, eg. R Smits, The European Central Bank: Institutional Aspects (The Hague, Kluwer Law International, 1997) 137–39; Lenaerts and Van Nuffel, n 1 above, 396–98. On Denmark’s practice of pegging the national currency to the euro see n 2 above. 21 While the ESCB is composed of the ECB and the central banks of the Member States, the independence of the body is written into primary law (Article 130 TFEU), but see Protocol No 15 in relation to the position as regards the United Kingdom. 22 In addition to the provisions in the TFEU, see Protocol No 4 on the Statute of the European System of Central Banks and the European Central Bank, annexed to the TEU and the TFEU. 20

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central banks of the Member States whose currency is the euro (Article 283 TFEU). The President (currently Mario Draghi), Vice-President and other members of the Executive Board shall be appointed by the European Council, acting by qualified majority, for a non-renewable term of eight years. In order to carry out the tasks entrusted to the ESCB, the ECB may adopt regulations, take decisions, make recommendations and deliver opinions, and it may impose fines or penalty payments on undertakings for failure to comply with the rules thereby established (Article 132 TFEU and Article 34 of the Statute). There is a complex system of allocation of voting rights, weighted voting and for some important decisions, a qualified majority (Article 10 of the Statute). A new body, the European Systemic Risk Board (ESRB) chaired by the President of the ECB is entrusted with macroprudential supervision.23 The ESRB also draws upon the participation of the governors of the national central banks, a member of the Commission and the chairpersons of three new micro-prudential Union agencies set up in 2011 to supervise banks, investment funds and insurance companies.24 But the euro and debt crisis thrust another aspect of this institution into the limelight. In order to satisfy in particular German insistence on the responsibility of each Member State for its own budgetary discipline and sound public finances, Article 125 TFEU came to contain a ‘no-bail-out’ clause pursuant to which the Union and the Member States ‘shall not be liable for or assume the commitments of ’ other Member States and the ECB is prohibited from providing credit and purchasing debt instruments from national governments and other public bodies (Article 123 TFEU and Article 21 of the Statute). That said, and when the crisis hit, this important limitation did not prevent the Central Bank from purchasing government bonds on the so-called secondary market (from private investors), thus influencing indirectly the interest rates governments have to pay for their bond issuances, or from providing an almost unlimited line of credit at favourable rates to banks and other financial institutions, thus restoring much-needed liquidity to financial markets.25 To the extent that legislative measures for the use of the euro are necessary, and the measures cannot be adopted by the ECB, they shall be laid down by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after having consulted the ECB (Article 133 TFEU). As far as the Council is concerned, it is normally the Council for Economic and Financial Affairs (ECOFIN) which is involved,

23 Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board, [2010] OJ L331/1. See also BPM Joosen, ‘The Limitations of Regulating Macro-Prudential Supervision in Europe’ (2010) 25 Journal of International Banking Law and Regulation 493; E Ferran, ‘Can Soft Law Bodies Be Effective? The Special Case of the European Systemic Risk Board’ (2010) 35 European Law Review 751. 24 Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/ EC and repealing Commission Decision 2009/78/EC, [2010] OJ L331/2; Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupation Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC, [2010] OJ L331/48; Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/ EC, [2010] OJ L331/84. On the status of Union agencies in general see ch 7(III) above. 25 See Arts 18 and 19 of the Statute of the European System of Central Banks and of the European Central Bank.

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although comprising only the Member States whose currency is the euro.26 In addition, these Member States conduct an enhanced dialogue in the context of the so-called Euro Group, normally comprising their ministers of finance. The meetings of the Euro Group are in principle informal, but they have recently acquired a more structured role in the context of financial assistance to secure the stability of the euro area.27 The new intergovernmental treaty signed on 2 March 2012 provides for informal Euro Summit meetings, comprising the Heads of State or Government of the contracting parties whose currency is the euro, together with the President of the European Commission, and with the participation of the President of the ECB.28 It follows from the above that adopting the common currency implies that a M ember State can no longer fix the quantity of money in circulation (‘print more money’) or influence the exchange rates of their currency (in order to ‘devalue’ and thereby regain competitiveness) nor can they set interest rates. In other words, those Member States have voluntarily deprived themselves of the tools traditionally used by governments to address problems of fiscal and/or trade imbalances. Of course, it is not that the tools no longer exist, they are simply wielded at the supranational level (although with the limitations referred to above). And this in turn is only a problem if the macro-economic realities in each of the members of the euro zone diverge too much such that, for example, the single interest rate set by the ECB is no longer adapted to the economy of this or that Member State. The consequence, in times of crisis when the confidence of markets in the ability of that state to manage its budget deficit or keep control of total public debt erodes, is interest rates on the government bonds issued to finance that debt soaring to unsustainable levels (witness the travails of Greece, Ireland, Italy, Portugal and Spain in particular). And so we come to the importance of sound walls to hold up the euro roof and the mechanisms for the surveillance of fiscal and economic policy, notably the SGP.

III. Economic and Fiscal Surveillance While monetary union was included in the objectives of the Treaty only at Maastricht, the reference to economic policies featured already in the original Article 2 of the EEC Treaty. That initial aim of ‘progressive approximation’ has evolved into an instruction to the Member States to ‘coordinate’ their economic policies (Articles 2(3) and 5(1) TFEU). That is not to say that the Union plays no role in the shaping of economic policy: in the title on economic and monetary policy (Title VIII of Part Three of the TFEU) references are made to the ‘activities of the Member States and the Union’ and to the ‘economic policies of the Member States and of the Union’ (emphasis added)29 and Article 5(1) specifies that

26 See Art 139(2)(f) TFEU, which lists Art 133 among the provisions which do not apply to Member States with a derogation. 27 See Protocol No 14 on the Euro Group annexed to the TEU and the TFEU. 28 See n 18 above. Art 12 of the Treaty stipulates that Euro Summit meetings shall take place, ‘when necessary, and at least twice a year’. The Heads of State or Government of the contracting parties who retain their national currencies have a more limited right of participation. 29 See, eg Arts 119 and 121 TFEU.

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this special category of shared competence30 may consist of ‘measures’ to be adopted by the Council and, as spelled out in Article 121 and 136 TFEU, including broad guidelines for economic policies and specific rules for those Member States whose currency is the euro. And this is where we will draw a line: the general coordination of economic policies as a function of an integrated market (and the reason economic policies were mentioned well before economic and monetary union was an objective of the Union) is one thing; specific rules applying in the euro area as a necessary basis for successful monetary union are quite another, and it is the latter that will form the focus of the present section. Two provisions in particular apply only to those Member States whose currency is the euro: Article 121(2) TFEU on the adoption of broad guidelines, to the extent that such guidelines concern the euro area, and Article 126(9) and (11) TFEU on coercive means of remedying excessive budget deficits. Moreover, Article 136 TFEU, added by the Treaty of Lisbon, introduces a legal basis for the Council to adopt measures specific to those Member States whose currency is the euro with a view to: (a) strengthening the coordination and surveillance of budgetary discipline, and (b) setting out economic policy guidelines for those countries.31 It is the excessive deficit procedure laid down in Article 126 TFEU, a Protocol (the SGP) annexed to the TEU and TFEU and secondary law that has, to date, formed the cornerstone of EU economic and fiscal policy.32 According to Article 126(1), Member States shall avoid excessive government deficits. Article 126(2) instructs the Commission to monitor the development of the budgetary situation and of the stock of government debt in the Member States. Budgetary discipline is to be measured on the basis of two criteria: the ratio of government budgetary deficit to gross domestic product and that of government debt to gross domestic product. The reference values that must not be exceeded are specified in the Protocol on the excessive deficit procedure as three per cent in relation to the planned or actual government deficit and 60 per cent for government debt (although a certain flexibility is written into the system, especially if the deficit and debt ratios are diminishing and approaching the reference value at a satisfactory pace).33 Had these reference values, even as mitigated by the caveats just mentioned, been respected by Member States there would have been no sovereign debt crisis. Instead the margin by which the deficit and/or debt imbalances in certain Member States exceeded the levels indicated in the SGP rendered almost farcical any talk of ‘reference’ values.34 And while the deterioration of the situation may, in part, be ascribed to costly rescue packages

30

Lenaerts and Van Nuffel, n 1 above, 128. See also ch 3(II) above at nn 11–13. The measures referred to in Art 136 TFEU, in addition to being presumably more detailed to those referred to in Art 121(2) TFEU are adopted by the Council in accordance with the ordinary legislative procedure as opposed to being discussed by the European Council and then reflected in a Council recommendation. 32 Protocol No 12 on the Excessive Government Deficit Procedure. See also Council Regulation (EC) No 479/2009 of 25 May 2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community (Codified version), [2009] OJ L145/1, amended by Council Regulation (EU) No 679/2010 of 26 July 2010 amending Regulation (EC) No 479/2009 as regards the quality of statistical data in the context of the excessive deficit procedure, [2010] OJ L198/1. 33 See further Art 2 of Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure, [1997] OJ L209/6, amended by Council Regulation (EU) No 1177/2011 of 8 November 2011, [2011] OJ L306/33. 34 In 2010, none of the Member States whose currency was the euro complied with the reference values (indeed, only Sweden and Estonia, not even members of the euro zone, respected the limits laid down in the Treaty). 31

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necessitated by the global financial crisis in 2008–2009, the question must be asked why the EU system of enforcement and control did not work as it should? The answer is simple and so, in a way, are the reasons. What is more, they are less linked to complex economic theories than to institutional and constitutional realities. Budgetary policies, including taxation, have been seen as one of the most sensitive areas of national sovereignty and so while the Treaty of Maastricht introduced the SGP and the rules outlined above, the enforcement and control system was constructed around the Council and thus more at the mercy of political expediency than is usually the case.35 And in a striking limitation of the powers of the Commission and of the Court, Article 126(10) TFEU precludes the bringing of an infringement action against a Member State in relation to the excessive deficit procedure.36 And so when, in 2003, France and Germany were faced with the possibility of sanctions being adopted against them for their failure to respect the deficit limit, they persuaded the Council to decide to hold the excessive deficit procedure for these two Member States ‘in abeyance for the time being’.37 The Commission challenged that decision before the Court and was vindicated in a judgment holding that ‘suspending’ the application of the rules in that way was indeed in violation of the SGP, and thus of Union primary law.38 The outcome confirmed that, while the responsibility for ensuring compliance with the SGP lies essentially with the Council, the procedures laid down in Article 126 TFEU are not at its discretion. With the euro and debt crisis of 2008–2009, it became obvious that the system was seriously flawed. This awareness triggered a host of legislative and other measures, the latter partly of an intergovernmental nature.39 In particular, recent changes to secondary law (notably the so-called ‘six-pack’ legislation introduced in 201140 and the ‘two-pack’ of At the beginning of 2012, 23 out of 27 Member States did not comply with the reference values and were thus subject to ongoing excessive deficit procedures. See http://ec.europa.eu/economy_finance/articles/sgp/2012-0530-edp_en.htm (accessed on 28 February 2012). The preamble to the Council Decision of 7 July 2011 addressed to Greece giving notice to that Member State to take measures for the deficit reduction judged necessary to r emedy the situation of excessive deficit (Council doc 12352/11) indicated that in 2009, the government deficit was 15,4 % of GDP (instead of the 3 % envisaged under the SGP) while gross government debt stood at 127,1 % of GDP (instead of the 60 % written into the SGP). Gross government debt has continued to rise and now seems to stand at more than 170 %. As noted above in section I, the situation has since then improved remarkably and the Excessive Deficit Procedure has now been closed for all Member States, most recently for Greece, in September 2017 (European Council, Council of the European Union, ‘Greece’s finances stabilised, the excessive deficit procedure is closed’, Press Release of 25 September 2017, www.consilium.europa.eu/en/press/pressreleases/2017-09-25-greece-finances-stabilised/, accessed on 26 September 2017). 35 The ECJ observed in Case C-27/04 Commission v Council EU:C:2004:436, para 76, that ‘responsibility for making the Member States observe budgetary discipline lies essentially with the Council’. 36 On the infringement proceedings which can be instigated either by the Commission or by another Member State see ch 16(III) below. 37 The Council conclusions are reproduced in the judgment of the ECJ in Case C-27/04 Commission v Council, n 35 above. See also M Heipertz and A Verdun, Ruling Europe: The Politics of the Stability and Growth Pact (Cambridge, Cambridge University Press, 2010) 1–3. 38 Case C-27/04 Commission v Council, n 35 above, paras 83–89. 39 See, eg K Tuori and K Tuori, The Eurozone Crisis: A Constitutional Analysis (Cambridge, Cambridge University Press, 2014) 105–16; A Hinarejos, The Euro Area Crisis in Constitutional Perpective (Oxford, Oxford University Press, 2015), 29–40. 40 In September 2010 the Commission put forward a package of proposals consisting of five draft regulations and one draft directive (the so-called ‘six-pack’, intended presumably to inspire confidence as to their fitness for purpose). These legislative measures were adopted by the European Parliament and the Council (or, in the case of the directive, the Council alone) in November 2011 and entered into force the following month.

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complementary legislation adopted in 2013)41 as well as the new intergovernmental treaty signed on 2 March 2012, in combination with the stability mechanisms providing financing to Member States experiencing serious difficulties and the more recent moves to create a Banking Union, both to be considered in the following sections, purport to remedy the evident shortcomings of the existing rules. The SGP can be said to consist roughly of two parts, a preventive element and a corrective element. In addition, a host of new measures and initiatives, often of a political character and thus not, strictly speaking, part of the SGP, were prepared or reflected in the work of a Task Force set up by the European Council in March 2010 and led by the President of the European Council.42 As of 1 January 2011, a framework calendar for reinforcing policy coordination and strengthening surveillance of budgetary discipline in the whole EU area, termed the ‘European Semester’, was introduced. Implementation of both the preventive and the corrective part of the SGP takes place within the framework of this annual cycle. But let us begin at the end, with the corrective part of the SGP. The principal rules are laid down in Article 126 TFEU and Regulation 1467/97 relating to the excessive deficit procedure, as amended in 2005 and 2011,43 supplemented by those parts of Regulation 473/2013 (one element of the ‘two pack’) which relate to the correction of excessive deficits. Together they provide for a rather complex set of procedural steps to be taken in the event of non-compliance with the reference values referred to in Article 126 and Protocol No 12. In line with the institutional (im)balance alluded to above, although the procedure is initiated by a report of the Commission, the decision on the existence of an excessive deficit and the content of any recommendations to be addressed to the Member State shall be taken by the Council.44 It is worth noting that, as the name itself indicates, the main focus of this monitoring mechanism has been the deficit rather than the debt criterion.45 If a Member State whose currency is the euro persists in failing to put into practice the recommendations of the Council, a second stage of the procedure is engaged, culminating

41 Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial situation, [2013] OJ L140/1; Regulation (EU) No 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, [2013] OJ L140/11. 42 Strengthening Economic Governance in the EU: Report of the Task Force to the European Council, Brussels 21 October 2010. The Task Force was composed of representatives from the European Commission, the ECB, the Euro Group and the governments of the Member States. 43 Regulation 1467/97 as amended by Regulation 1177/2011, n 33 above. 44 Article 126(6) TFEU. According to Art 3 of Regulation 1467/97, as amended in 2011 (n 43 above), the Council shall decide on the existence of an excessive deficit and if the Council has decided that an excessive deficit exists, it shall at the same time make recommendations in accordance with Art 126(7) TFEU. According to Art 3(4) of Regulation 1467/97, the Council Recommendation shall establish a maximum deadline of 6 months (or of 3 months, if warranted by the seriousness of the situation) for effective action to be taken by the Member State concerned as well as a deadline for the correction of the excessive deficit. 45 The Explanatory Memorandum accompanying the Commission legislative proposals to reinforce economic governance including the SGP of September 2010 observes that in practice the threshold of 3% of GDP has been ‘the almost exclusive focus of the [excessive deficit procedure]’, see, eg COM(2010) 523 final, 4.

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in sanctions if there is a failure to take the measures judged necessary to ensure the required deficit reduction (Article 126(9) and (11) TFEU).46 Writing in 1998, one observer held that, taking into account the political commitments undertaken by the European Council, the Council and the Commission in 1997 as well as Regulation 1467/97, ‘the imposition of sanctions definitely enters the realm of probability, and indeed certainty’.47 The same observer, however, also remarked that certain political developments and statements cast doubt on the willingness of Member States to enforce the three per cent deficit reference value and that the situation reminded the public ‘how unclear the road to the start of European monetary union may become if … political leanings one way or the other rather than the legal and economic content of the relevant texts come to dominate the debate’.48 The experience in 2003 (and indeed since) confirms that the latter assessment proved to be more foresighted than the former. Political and institutional realities rendered the imposition of sanctions rather unlikely, and the first Council decision based on Article 126(9) TFEU and giving notice to the Member State concerned to take action to reduce its deficit came somewhat late in the process at just two months before the Member State in question was accorded 110 billion euros in emergency financial assistance (more on which in s ection IV below).49 The amendments to Regulation 1467/97 attempt to limit the discretionary powers of the Council in this respect and, in fact, a decision was taken by the Council to impose sanctions on Spain for the manipulation of government deficit data. Thus it would appear that sanctions may no longer be such an empty threat, although it must be noted that those imposed on Spain belong to the preventive rather than the corrective arm of the SGP.50 As regards the corrective arm of the SGP, a more effective toll than sanctions seems to consist in the conditionality attached to any assistance and the enhanced economic and budgetary surveillance imposed on Member States which are experiencing or find themselves threatened by ‘serious difficulties’ with respect to their financial stability.51 This mechanism also covers Member States that request or receive financial assistance, including the ESM funding described in section IV below. For those Member States, a special ‘macroeconomic adjustment programme’ will apply, monitored by the Commission, in

46 See Arts 5–11 of the Regulation, as amended. The sanctions listed in Article 126(11) TFEU include requiring a Member State to make a non-interest-bearing deposit with the Union and imposing fines on the Member State concerned. 47 Hahn, n 15 above, 96. See also Herdegen, n 13 above, 30. 48 Hahn, n 15 above, 100. 49 Council Decision 2010/182/EU of 16 February 2010, [2010] OJ L83/13. See also Council Decision 2010/320/ EU of 10 May 2010, [2010] OJ L145/6 and Council Decisions 2011/57/EU of 20 December 2010, [2011] OJ L26/15, and 2011/257/EU of 7 March 2011, [2011] OJ L110/26. 50 Council Decision (EU) 2015/1289 of 13 July 2015, [2015] OJ L198/19. The Decision is based on Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area, [2011] OJ L306/1, which forms part of the ‘six-pack’ The fine was very small (EUR 18,93 million), which was partly due to the fact that the alleged manipulation took place in one region only and that the Spanish Government cooperated with the Commission in the course of the investigation. In Case C-521/15 Spain v Council EU:C:2017:420, Advocate General Kokott in her opinion of 1 June 2017, proposes to transfer the case to the General Court for lack of jurisdiction, or in the alternative, to dismiss the action by Spain. 51 See Regulation 472/2013, n 41 above.

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liaison with the ECB and, where appropriate, the International Monetary Fund. These and other measures can be said to reduce considerably the room for manoeuvre of the Member State concerned: the sanction for failure to comply could imply a halt to lending, which in turn would probably result in the default of the Member State. What is more, rules extend to ‘post-programme surveillance’, ensuring that Member States which have received financial assistance but which, despite having exited the special regime, have paid back less than 75 per cent of the loans received, continue to be monitored. However, it is true that prevention is better than cure and never more so than when sanctions in any event risk coming too late in the process to be of any real deterrent effect, the financial situation of the Member State in question being already so deteriorated that a fine may even be counter-productive. The preventive part of the SGP is therefore of crucial importance. It is developed in Article 121 TFEU, Regulation 1466/97, as amended in 2005 and more importantly, in 2011,52 and supplemented by those parts of the ‘two-pack’ Regulation 472/2013 that apply to prevention53 and certain flanking measures of a more political nature. It consists of a system of ‘multilateral surveillance’ of economic policies. Euro area members shall submit annual stability programmes and non-euro Member States convergence programmes, which provide a basis for price stability and strong sustainable growth. As noted above, the preventive arm of the SGP also envisages sanctions. Having been caught in the eye of a sovereign debt storm, it seems trite to note that the aim of prevention was not achieved. The response has been to redress the institutional balance in a quite unprecedented fashion: sanctions have been included, but as noted above, that in itself does not say much; what is quite remarkable from a constitutional point of view, especially in this hitherto most sensitive of areas, is that some of the non-compliance and sanctions decisions now provided for shall be deemed to be adopted unless the Council decides by qualified (or sometimes simple) majority to reject the recommendation of the Commission to that effect (so-called reverse or inverted majority voting).54 In practice, this means that it will be almost impossible to avoid that a Commission recommendation is adopted. Only time will tell whether this radical re-balancing of the system will stand up to the test of political pressure brought to bear by a Member State anxious to avoid a decision against it. What can at least be concluded already is that, in theory, the Member States have acknowledged the true significance of the instruction in Articles 2(3) and 5(1) TFEU to coordinate their economic policies. The new intergovernmental Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, often referred to as the ‘Fiscal Compact’, is an attempt to

52 Council Regulation (EC) No 1466/97 of 7 July 1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies, [1997] OJ L209/1, amended by Council Regulation (EC) No 1055/2005 of 27 June 2005, [2005] OJ L174/1, and by Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011, [2011] OJ L306/12. 53 See n 41 above. 54 See Arts 4(2), 5(2) and 6(2) of Regulation 1173/2011, n 50 above; Art 3(3) of Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area, [2011] OJ L306/8; Arts 6(2) and 10(2) of Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Regulation 1466/97, n 52 above, [2011] OJ L306/12, n 49 above, and Art 10(4) of Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011, [2011] OJ L306/25.

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further galvanise the system of surveillance of budgetary discipline.55 This Treaty, which, interestingly, entered into force as from the depositing by just 12 Member States whose currency is the euro of their instruments of ratification (Article 14), for the most part repeats or specifies obligations which follow from Articles 121 and 126 TFEU, Protocol No 12 annexed to the TEU and the TFEU and both the ‘six-pack’ and the ‘two-pack’ legislation referred to above. The Treaty entered into force in 2012 and is today binding in its entirety on 22 Member States (the 19 Member States whose currency is the euro, plus Bulgaria, Denmark and Romania). In addition, three Member States (Hungary, Poland and Sweden) have ratified with the exception of Title III (the ‘Fiscal Compact’ strictly speaking) of the Treaty. Concerning the content of the Treaty, two points are worth noting. First, it contains an interesting incursion into what would normally be considered a matter for each Member State in the form of an obligation to include rules on budgetary discipline in national provisions ‘of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary process’ (Article 3, emphasis added). A recent Commission report relating to the implementation of the Treaty concludes that the national provisions in the 22 Member States concerned are, with some reservations, compliant with Article 3(2) of the Treaty (without prejudice to any assessment of the real impact the national provisions have or may not have had in each national setting).56 Secondly, the Treaty contains a general obligation for the contracting parties whose currency is the euro to ‘support’ the proposals or recommendations of the Commission where it considers that a Member State is in breach of the deficit criterion in the framework of an excessive deficit procedure (that is, the procedure laid down in Article 126 TFEU), unless it is established that there is a qualified majority which is opposed to the decision proposed or recommended (Article 7). The idea is to achieve, for decisions taken under Article 126 TFEU and through a commitment concerning voting behaviour, the ‘reverse’ majority rule introduced, as was noted above, in relation to some of the decisions taken under the ‘six-pack’ legislation. Finally, although the nature of the agreement as an intergovernmental treaty concluded outside the framework of the Union means that the unavailability of the infringement procedure conducted by the Commission has not been remedied, the ECJ is, in application of Article 273 TFEU,57 given jurisdiction over the question whether the obligation laid down in Article 3(2) has been complied with. While it is difficult to assess the specific impact of each of the different measures undertaken since 2010 to restore stability and reinforce the need for budgetary discipline in the euro area, it cannot be denied that the situation with regard to fiscal imbalances has improved and by September 2017, the Excessive Deficit Procedure had been closed for all

55 See n 18 above. See also Editorial Comment, ‘Some Thoughts concerning the Draft Treaty on a Reinforced Economic Union’ (2012) 49 Common Market Law Review 1. 56 COM(2017) 1201 final of 29 February 2017. 57 According to this Article, the Court shall have jurisdiction in any dispute between Member States which relates to the subject matter of the Treaties if the dispute is submitted to it under a special agreement between the parties. Note that infringement procedures brought by the Commission are not possible under Art 273 TFEU.

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euro M ember States.58 Four of the five Member States which were placed under a special regime with ESM or equivalent funding (Cyprus, Ireland, Portugal and Spain) have already exited these programmes (most recently Cyprus, in 2016) and they are now not only able to finance their debts by issuing government securities at reasonable rates but are also experiencing almost unprecedented economic growth. That said, the improved economic and fiscal situation in these and other euro Member States must probably also be attributed to the stimulus programme run by the ECB and consisting of purchasing private and public bonds and other securities and thus injecting liquidity into the financial system (‘quantitative easing’ or ‘QE’). In Gauweiler, the ECJ was faced with the question, put by the German Constitutional Court, of the legality of that programme (albeit in an earlier version which was never as such applied).59 The Court, in a widely discussed judgment, upheld the legality of the programme, inter alia, as it interpreted Article 123(1) TFEU, which prohibits the ESCB from financing public authorities of Member States and from purchasing ‘directly’ from them debt instruments, as allowing the ESCB to purchase from private creditors (and thus on the ‘secondary market’) bonds issued by the State. The Court did add, however, that such purchases on the secondary market could not be used to circumvent the objective of Article 123. While these reservations did not entirely convince the referring court, it nevertheless concluded that if the conditions formulated by the ECJ were respected, the contested programme did not ‘manifestly’ exceed the competences attributed to the ECB under the Treaties.60 Despite the general improvement in the economic and fiscal situation in the euro area, and the myriad of legislative and other reforms undertaken since 2010 with a view to reinforcing the functioning of the euro system, the perception still seems to be that more needs to be done. The sustainability of the system in the long run and its ability to withstand new shocks, similar to the one experienced in 2008–2009, must be ensured. A number of proposals and initiatives have been presented to this end, including the ‘Five Presidents’ Report’ submitted in 2015 and a package of measures decided by the Commission and implementing some of the measures proposed by the Five Presidents.61 Some of the more radical measures will be considered in the concluding section VI below.

IV. The Stability Mechanisms Article 125 TFEU provides that the Union or its Member States ‘shall not be liable for or assume the commitments of ’ central governments or other public entities of other Member States (the ‘no-bail-out’ clause). However, as the sovereign debt crisis took hold in the Member States whose macroeconomic policies had left them vulnerable and the risk

58

See n 34 above. Case C-62/14 Gauweiler and Others EU:C:2015:400. 2 BvE 13/13, judgment of 21 June 2016. See also ch 6(II) above. 61 ‘Completing Europe’s Economic and Monetary Union, Report by Jean-Claude Juncker, in close cooperation with Donald Tusk, Jeroen Dijsselbloem, Mario Draghi and Martin Schulz’ (European Commission, 2015), ‘Completing Europe’s Economic and Monetary Union: Commission takes concrete steps to strengthen EMU’, Press Release, 21 October 2015, http://europa.eu/rapid/press-release_IP-15-5874_en_htm. 59 60

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of contagion to other members of the euro area became real, the need to take coordinated action was pressing. Reform of the SGP was underway but neither time nor the financial markets would stand still for the institutional niceties of the EU legislative process and a temporary solution was therefore devised in the form of a vehicle for financial assistance to Member States which were not in a position to finance their deficits and/or re-finance their debt by issuing government bonds or credit default swaps at sustainable interest rates. That first assistance package (May 2010), as a result of which some 110 billion euros were provided to the Greek state, was construed as a series of bilateral loans provided by euro area Member States and the International Monetary Fund (IMF).62 It became almost immediately apparent that that was not the end of the story and as the markets continued to test the Member States left exposed by their non-compliance with the SGP, two mechanisms were set up with the aim of restoring order. The European Financial Stabilisation Mechanism (EFSM) was established by a Union legislative act in May 2010 and is managed by the Commission.63 The European Financial Stability Facility (EFSF) is of an intergovernmental character and was founded in June 2010 as a company under Luxembourg law, with the then 16 euro area Member States as shareholders.64 The intention of the Member States that these exceptional measures be temporary was written in to the system from the outset and the facility was given a lifespan of three years. These mechanisms were triggered for Ireland in November 2010, Portugal in May 2011 and Greece (second package) in July 2011 (although implementation had to be postponed until spring 2012).65 To fund the loans that make up those financial assistance packages, both the EFSF and the Commission issue bonds for purchase by public and private investors worldwide. As the crisis continued unabated, the scope of activity of the EFSF was extended to allow it to finance the recapitalisation of banks and other financial institutions through loans to governments and to intervene in the secondary markets of government bonds.66

62 The initial total amount of loans by EU Member States was 80 billion euros, while 30 billion euros was provided by the IMF. See, eg J-V Louis, ‘Guest Editorial: The Non-Bailout Clause and Rescue Packages’ (2010) 47 C ommon Market Law Review 971 at 972; K Featherstone, ‘The Greek Sovereign Debt Crisis and EMU: A Failing State in a Skewed Regime’ (2011) 49 Journal of Common Market Studies 193; ‘The Greek Loan Facility’, http://ec.europa.eu/economy_finance/eu_borrower/greek_loan_facility/ index_en.htm (accessed on 10 September 2011). 63 Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism, [2010] OJ L118/1. 64 EFSF Framework Agreement between the then 16 euro area Member States and the EFSF of 7 June 2010 and the Articles of the EFSF formed as a public limited liability company (‘société anonyme’) governed by Luxembourg company law, http://www.efsf.europa.eu/about/legal-documents/index.htm (accessed on 5 October 2011). See also Louis, n 62 above, 973–74. 65 The programme for Ireland amounted to a total of 85 billion euros, consisting of 22.5 billion from the EFSM, 22.5 billion from the EFSF and the rest coming from the IMF, non euro area Member States and Ireland itself, EFSF Newsletter, January 2011, www.efsf.europa.eu. The programme for Portugal amounted to 78 billion euros, consisting of 26 billion each from the EFSM, the EFSF and the IMF, EFSF Newsletter No2, July 2011, www.efsf.europa. eu. The second package of loans to Greece amounted to a total of around 130 billion euros and was supplemented by a significant ‘haircut’ (a reduction in the amount of debt to be repaid) agreed with private creditors, https:// ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/eu-financial-assistance/ which-eu-countries-have-received-assistance/financial-assistance-greece_en#secondeconomicadjustmentprogra mmeforgreece (accessed on 26 February 2012). 66 See Amendment to the EFSF Framework Agreement between the euro area Member States and the EFSF of 2011, http://www.efsf.europa.eu/about/legal-documents/index.htm (accessed on 5 October 2011).

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In a judgment of 7 September 2011, the German Constitutional Court held that, providing certain conditions were fulfilled, German legislation authorising a bilateral loan to Greece and guarantees provided by Germany to the EFSF was not in violation of the German Basic Law.67 Indeed, any grant of assistance was subject to strict conditionality and the countries receiving loans from the EFSF were closely monitored by a ‘Troika’, consisting of representatives of the Commission, the ECB and the IMF. As already noted in section III above, this heightened surveillance further reduces the freedom of a Member State receiving assistance to dictate its economic and budgetary policies.68 Rather more quickly than is usually the case in the EU, the temporary became permanent and the exceptional transfers of competence and/or sovereignty became a settled feature of the institutional and constitutional landscape; acting on the conclusions of the European Council of March 2011, the European Stability Mechanism (ESM) was created by a Treaty which entered into force in 2012. While the Irish, the Portuguese, and the first Greek programmes had been handled by the EFSF and EFSM, the financial assistance granted to Spain (2012) and Cyprus (2013) was from the outset handled by the ESM, with loans aimed at helping to restructure the banking sector.69 The ESM is established by a treaty among the Member States whose currency is the euro ‘as an intergovernmental organisation under public international law’, with its seat and principal office in Luxembourg. The ESM will have a total subscribed capital of 700 billion euros, consisting of 80 billion as paid-in capital provided by the euro area Member States and the rest in guarantees from these Member States. In addition, any financial sanctions received as a result of the operation of the SGP referred to in section III above will be transferred to the ESM. The effective lending capacity of the ESM amounts to 500 billion euro. The ESM has a Board of Governors composed of the finance ministers of the participating states, with a member of the European Commission and the president of the ECB as observers. In application of Article 273 TFEU, decisions of the Board of Directors on disputes arising between an ESM member and the ESM, or between ESM members, in connection with the interpretation and application of the Treaty establishing the ESM, can be submitted to the ECJ. The Court may also become involved through the preliminary rulings procedure, as happened in the Pringle case.70 The Irish Supreme Court asked the ECJ to rule on the conformity of the ESM Treaty with a number of provisions of the TEU and TFEU, including Articles 122 (concerning exceptional financial assistance granted by the Union) and 125 TFEU (the ‘no-bail-out’ clause). The Court concluded that the Treaties did not preclude the conclusion of the ESM Treaty as an intergovernmental agreement outside the remit of EU law proper, inter alia, because it did not encroach upon any exclusive competence of the Union. Going beyond the economic governance at issue in that case, it may be

67 BVerfG, 2 BvR 987/10 vom 7.9.2011, Absatz-Nr (1–142), http://www.bverfg.de/entscheidungen/rs20110907_ 2bvr098710.html. 68 See, eg Statement by the Commission, ECB and IMF on the Third Review Mission to Portugal, 28 February 2012, www.europa.eu/rapid/pressReleasesAction.do?reference=MEMO/12/142 (accessed on 29 February 2012). 69 Conclusions of the European Council of 24/25 March 2011, EUCO 10/1/11, Rev 1, of 20 April 2011, notably Annex II. An amended Treaty was signed on 2 February 2012 and the scheduled entry into force was brought forward to July 2012: Treaty establishing the European Stability Mechanism (ESM), as amended, http://www.efsf. europa.eu (accessed on 29 February 2012). 70 Case C-370/12 Pringle EU:C:2012:756.

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noted in passing that the Court thus confirmed that, under certain conditions, intergovernmental solutions may be used to supplement the Treaties.71 As noted above, these developments have been accompanied by an amendment to Article 136 TFEU. The decision to amend this provision was adopted by the European Council in accordance with the simplified revision procedure provided for in Article 48(6) TEU.72 According to a text added to Article 136 TFEU, the Member States whose currency is the euro may establish a stability mechanism to be activated (in other words provide financial assistance to such a Member State) if ‘indispensable to safeguard the stability of the euro area as a whole’. The granting of assistance ‘will be made subject to strict conditionality’. In Pringle, the ECJ recognised the link which exists between this requirement of conditionality and the ‘six-pack’ legislation referred to in section III above.73 The Court also considered that Article 136 merely confirmed the existence of a power possessed by the Member States to conclude the ESM Treaty and that conclusion of the latter was not contingent upon entry into force of the amended form of Article 136.74 As to the legality of the provision as such, the Court confirmed the validity of the European Council Decision amending Article 136, thus considering that it had jurisdiction to examine the validity of a decision adopted under the simplified Treaty amendment procedure provided for in Article 48(6) TEU.75 And it seems that the Court will increasingly be called upon to adjudicate in matters that are not only economic and highly technical (nothing new for the judges in Luxembourg) but are intimately linked to the political choices made by Member States. Indeed, the ECJ has already also been confronted with challenges to the legality of austerity measures implemented in Member States subject to a special surveillance regime (as explained in section III above) and financial assistance coupled with conditionality (as explained in this section). In some cases the Court held that the specific national measures in question were not imposed by EU law to a sufficient degree to raise issues of the interpretation of EU law. In a case concerning the stability support programme for Cyprus, however, the Court, in setting aside orders of the General Court, held that while a Memorandum of Understanding between the ESM and Cyprus relating, inter alia, to the restructuring and resolution of two Cypriot banks did not constitute an act imputable to the Commission and the ECB but committed the ESM alone (despite the fact that the Memorandum had been negotiated by the two Union institutions), that state of affairs did not preclude an action for damages against the Commission and the ECB, as they (and the Commission in particular) had an obligation to see to it that the Memorandum was consistent with EU law.76 In other words, the Court may be called upon to assess whether

71

See also ch 4(II) above. the simplified revision procedures and other procedures to amend the TEU and the TFEU see ch 4(II) above. On the decision of the European Council see n 17 above. See also B de Witte, ‘The European Treaty Amendment for the Creation of a Financial Stability Mechanism’ European Policy Analysis 2011:6 (SIEPS, Swedish Institute for European Policy Studies) 1. 73 Case C-370/12, n 70 above, para 58. 74 Case C-370/12, n 70 above, paras 183–85, read in the light of paras 68, 72 and 109. 75 See ch 4(II) above. 76 Joined Cases C-8/15 P to C-10/15 P Ledra Advertising and Others EU:C:2016:701. The actions were dismissed on substance, however. Cf Joined Cases C-105/15 P to C-109/15 P Mallis and Others EU:C:2016:702. See also Case C-258/14 Florescu and Others EU:C:2017:448, in which the Court held that a Memorandum of Understanding between the European Union and Romania (not yet a euro country) of 2009 was an act of an EU institution (but the Court did not find that national Romanian austerity measures had been required by the Memorandum). 72 On

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specific national austerity measures constitute an implementation of more general measures in which Union institutions are involved. Thus, the institutional framework of the Union legal order exerts a magnetic effect and is once again put at the service of intergovernmental mechanisms such as the ESM.

V. Banking Union To enhance the sustainability of the common currency, it was considered important not only to improve the coordination and surveillance of economic and fiscal policy and enable financial assistance in the forms of loans to Member States, but also to increase the role of the EU in the surveillance and resolution of financial institutions encountering serious financial difficulties. As the euro and debt crisis became a banking crisis (notably in Cyprus, Ireland and Spain), thus triggering financial assistance described in the preceding section, it was felt that national systems of control did not offer sufficient guarantees for the stability of the European banking system. The response to these worries has been what is called the European Banking Union.77 It consists of two ‘layers’,78 a regulatory framework establishing prudential supervision (eg via capital requirements) of banks and other financial institutions in the EU as a whole, and an institutional framework involving Union institutions and bodies in the supervision of financial institutions and the resolution of failing banks, applicable primarily in the euro area. Indeed, it has been said that the Banking Union ‘constitutes one of the most fundamental constructions at EU level in recent times’, entailing ‘a centralization of powers in the Union institutions without precedent in many years’.79 We do not consider it necessary to provide a detailed description of the new system, which is (once again) both complex and technical. What is interesting is that, here again, and in relation to both layers of the Banking Union, national authorities have been conscripted and put directly at the service of Union secondary legislation. With regard to the first ‘layer’ (prudential rules for banks and other financial institutions), suffice it to note that it consists, inter alia, of both substantive and procedural rules80 and an institutional element in the form of three Union agencies termed European Supervisory Authorities (ESAs).81 These authorities are charged with what is called ‘micro-prudential’ supervision

77 See, eg G Bandi et al (eds), European Banking Union, FIDE XXVII Congress 2016, Congress Proceedings Vol 1 (Budapest, Wolters Kluwer, 2016), including General Report by T Tridimas, 67, and Institutional Report by A de Gregorio Merino, 151. 78 Gregorio Merino in European Banking Union, n 77 above, at 152. 79 Ibid, 151. 80 Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, [2013] OJ L176/1; Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, [2013] OJ L176/338. 81 The European Banking Authority (EBA) in London (to be transferred to another Member State as a result of Brexit), the European Insurance and Occupational Pensions Authority (EIOPA) in Frankfurt and the European Securities and Markets Authority (ESMA) in Paris, with a joint Board of Appeal.

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and the European Systemic Risk Board (ESRB), chaired by the President of the ECB, is charged with ‘macro-prudential’ oversight in order to prevent or mitigate ‘systemic risks’.82 The integration of national authorities into the Union institutional framework is made manifest in the creation of the European System of Financial Supervision (ESFS), which is composed of the three Union agencies, the ESRB and the national authorities together.83 Despite being referred to as ‘supervisory’ authorities, the ESA’s main functions relate to standard-setting and the issuance of guidelines and recommendations, rather than supervision of individual financial institutions.84 The second, and arguably more centralised, layer of the Banking Union, on the other hand, implies real supervisory and decisionmaking powers. This layer consists so far of two pillars, the Single Supervisory Mechanism (SSM)85 and the Single Resolution Mechanism (SRM), handled by the Single Resolution Board managing a Single Resolution Fund.86 Concerning the SSM, and as noted above, there is once again a division of labour between the Union institutions proper (the ECB) and the competent national authorities: the ECB is entrusted primarily with the supervision of ‘significant’ credit institutions (in 2017, 125 banks out of some 6,000 euro area banks), while the national authorities are responsible for the others. What is more, the ECB may intervene directly even in relation to those other banks if it considers that national authorities are not able to guarantee sufficiently high standards. Decision-making powers of the ECB include the granting and withdrawing of licences and the setting of higher capital requirements. Under the SRM, and mirroring the division of labour noted above, the Single Resolution Board is primarily responsible for all banks under ECB/SSM supervision. In other words, an independent Union agency is entrusted with the task of resolution/restructuring of ‘significant’ financial institutions in the euro area, albeit under the watchful eye of the Commission and the Council.87 What is more, the traditional approach of ‘bailing out’ banks using the State budget or other public funds (‘taxpayers’ money’) has been replaced by a system of ‘bailing in’, implying that it is the creditors (such as shareholders, holders of bonds and depositors of more than EUR 100,000)88 that will suffer the losses.89 And it is only if more is needed that the Single Resolution Fund will be called upon (for example, to support the resolution of failed banks by making loans to the institution under resolution or paying compensation to shareholders or creditors who have incurred greater losses that under normal insolvency procedures).

82

Suffice it to cite here Regulation 1092/2010, n 23 above. See ch 7(IV) above. de Gregorio Merino, n 77 above, 186. 85 Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, [2013] OJ L287/63. 86 Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010, [2014] OJ L225/1. 87 The involvement of the Commission and the Council is explained by concerns about granting such definitive decision-making powers to an agency, see ch 7(III) above. 88 On protected (‘covered’) deposits which do not exceed 100,000 euros see, eg Art 2(1) of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms, [2014] OJ L13/190. 89 K-P Wojcik, ‘Bail-in in the Banking Union’ (2016) 53 Common Market Law Review 91. 83 84

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But just when it all seemed too integrationist to be true, an intergovernmental agreement was needed in order to regulate the contributions raised by the 19 Member States whose currency is the euro, and a failure to agree on the immediate mutualisation of the funds has resulted in a transitional period (2016–2023) during which the contributions will remain within national ring-fencing.90 The intergovernmental elements of the resolution mechanism and the transitional period provided for point to the political difficulties in establishing this second pillar of the Banking Union. The third pillar envisaged by the Commission in its 2015 Communication on the completion of the Banking Union was a common depositary insurance scheme.91 But that proposal, essentially to de-couple the safety of citizens’ bank deposits from the ability to pay of the deposit guarantee scheme of the Member State in which the deposits are made, has run into even greater political difficulties.92 While only the future knows what will be the ultimate fate of this proposal, it would come as no surprise to us if, after some additional wrangling, also this third pillar of the Banking Union is raised up to support the roof of EMU.

VI. Built to Last? In chapter two we listed the economic and monetary union as one of the elements allowing us to compare the Union to traditional nation states. However, in the next breath, we identified limited competence as regards economic and employment policies as a key ‘non-state-like feature’. Can we really have it both ways? It would appear, from the foregoing considerations, that the answer is now clearly ‘no’. The successful introduction of the common currency had eclipsed somewhat the failings in relation to the first part of the instruction in Article 3(4) TEU. Recent events have thrown the consequences of that failure into sharp relief, reminding the key players that a house without foundations or walls is not a durable solution. And thus, just before the building came crashing down around our ears, the sovereign debt and banking crises triggered a host of institutional, legal and financial novelties which would have been unthinkable in ‘normal’ times. Some of these developments are clearly of considerable constitutional interest. The intrusive nature of the mechanisms, first, to monitor and control the economic and budgetary policies especially of the euro area Member States, and then to supervise and if need be, intervene in the running of banks and other financial institutions, which have been introduced since 2010, combined with the new stability mechanisms and the financial surveillance agencies, all adds up to a transformation from economic policy coordination towards a common economic, and in particular budgetary and banking policy. What is more, the new mechanisms have paved

90 Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund, see Council doc 8457/14 of 14 May 2014. 91 See Communication from the Commission ‘Towards the completion of the Banking Union’, COM(2015) 587 final of 24 November 2015. 92 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 806/2014 in order to establish a European Deposit Insurance Scheme, COM(2015) 586 final of 24 November 2015.

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the way for a clear improvement of financial stability (including the recent closing of the Excessive Deficit Procedure for all euro Member States, including Greece), which in turn seems to have contributed to a return to economic growth in almost all Member States. These developments also underline the trend towards a multi-speed Europe, discussed in chapter eight. Not only has the differentiation between euro area and other Member States been highlighted but adherence to the new intergovernmental agreement on stability, coordination and governance, which was signed by 25 Member States, including Denmark, but excluding not only the UK but also the Czech Republic, suggests a differentiation even between two Member States with an exemption, that is, Denmark and the UK (as this edition goes to print, the UK is, of course, marching towards exit from the EU altogether). A striking feature of recent events is the combination of intergovernmental meetings, procedures and mechanisms (Euro Summits, the intergovernmental ‘fiscal compact’ agreement, the EFSF and the ESM, the Agreement on transfer of contributions to the Single Resolution Fund, and so on) with more supranational solutions, in particular a strengthened role for the Commission, the ECB, the Union financial surveillance agencies and the Single Resolution Board. Equally striking as one more example of the general trend identified in previous chapters, has been the integration of national regulatory authorities into a common EU regulatory and supervisory system. As far as economic and budgetary surveillance is concerned, the move towards more flexible voting rules, in particular the inverted majority rule included in the six-pack legislation and a clause to the same effect in the intergovernmental ‘fiscal compact’ agreement, also tends to strengthen the role of the Commission as a guardian of economic policy and fiscal discipline and to increase the likelihood of sanctions in cases of non-compliance. If anything, these developments further underline the challenges that must be addressed concerning perceptions as to the legitimacy of supranational institutions such as the Commission and the ECB, as they are acquiring a more important say over policies that have traditionally been associated with the powers of national parliaments and governments. And the perceived need for a further strengthening of common institutions and mechanisms has triggered a number of even more radical proposals, such as the idea to integrate the ESM (considered in section IV above) into the Union law framework, and even developing it into something similar to the International Monetary Fund, and to set up an euro area treasury (EU ‘finance minister’). While in 2017, partly because of the outcome of the French presidential and parliamentary elections of May–June 2017, such proposals have received new momentum,93 it is, as this edition goes to print, too early to predict the precise outcome of these discussions, although the very existence of the discussions in itself speaks volumes. We shall come back to the implications of these changes in the final chapter.

93

See also ch 1 above.

15 EU External Relations: An Elephant Trumpeting Loud and Clear or a Gaggle of Geese? I. General One of the favourite refrains of EU parlance is that the Union should ‘speak with one voice’ in its relations with third countries and international organisations. Many, however, claim that this is wishful thinking and that there are at least some foreign policy areas for which no common Union policy or stance exists at all, far less one which could be articulated and defended in a convincing manner. Henry Kissinger is reported to have mocked the Community by asking where he could find ‘Europe’s phone number’, and while Commission policy to increase openness has led to the publication of a staff directory, we s uspect that this is not what was meant.1 Back on this side of the Atlantic, a constitutional analysis of EU external relations is further complicated by the fact that the Union not only has many phone numbers but also presents many different faces and institutional solutions: hence the less than flattering reference in the chapter title to a noisy gaggle of geese.2 The Treaty of Lisbon brought about a number of changes and novelties in this respect. Indeed, the stated aim of the creation of the new post of High Representative of the Union for Foreign Affairs and Security Policy (or Foreign Affairs Representative) was precisely to respond to the type of criticism often levelled at the Union—yet we find it difficult to conclude that the overall picture has become less complex (rather the opposite!). Despite the abolition of the pillar structure which had defined the Union since the Treaty of Maastricht and the creation, in the Treaty of Lisbon, of a single legal framework

1 According to G Rachman, Kissinger never made precisely this remark and, at any rate, was not seeking a single phone number as he preferred to divide and rule in Europe, ‘Kissinger Never Wanted to Dial Europe’, https://www. ft.com/content/c4c1e0cd-f34a-3b49-985f-e708b247eb55. 2 The expression is owed to a Finnish journalist concerned that the EU might be seen to behave in this way in some concrete disputes and discussions with the Russian Federation, A Rosas, ‘EU maailmanpolitiikassa: elefantti vai hanhilauma?’ [‘The EU in World Politics: An Elephant or a Flock of Geese?’] in O Korhonen (ed), Rooman sopimus 50 vuotta: suomalaisia näkökulmia Euroopan kehitykseen (Turku, Schuman-seura, 2007) 93. See also E Cannizzaro, ‘Unity and Pluralism in the EU’s Foreign Relations Power’ in C Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford, Oxford University Press, 2007) 193, 232, who asks whether we will continue to be faced with a ‘multifarious gaggle of distinct powers and competences’ on the external plane; O de France and N Witney, ‘Europe’s Strategic Cacophony’, Policy Brief, European Council of Foreign Relations (London, ECFR, 2013).

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for Union action, the Common Foreign and Security Policy (CFSP) continues to constitute, at least to a certain extent, a case apart. Indeed, Article 24(1) TEU expressly confirms this. The external relations of the Union therefore continue to span two treaties and a range of institutional and procedural mechanisms, throwing up stark contrasts in how the various aspects of this policy area (if it may at all be referred to in the singular) are dealt with. As a matter of fact and political reality, the Member States (and by virtue of that same reality, some more than others) retain an independent voice on the international scene. One institutionalised example of that reality is the permanent seats held by France and the UK on the UN Security Council, while the EU only enjoys observer status at the UN. On the one hand, in matters of international trade it can safely be said that the Union as a rule speaks with one voice and, as one of the world’s leading trading blocs, plays an important role, alongside the US and to an increasing degree countries such as Brazil, India and China, in trade negotiations and the settlement of trade disputes in the context of the World Trade Organization (WTO).3 What is more, recent ECJ case law has confirmed that trade policy should be given a broad scope, reaching well beyond the traditional area of trade in goods. We will come back to Article 207 TFEU, which develops and clarifies the scope of what was Article 133 TEC and the common commercial policy, in the context of the discussion on competence (section III below). Security and defence policy was mentioned in chapter two as the opposite extreme: there has been constant development in this area, from no competence at all or ad hoc cooperation under international law, through the pillar structure of the TEU to the new framework introduced by the Treaty of Lisbon and a Common Security and Defence Policy (CSDP).4 However, as will be expanded upon later in this chapter, there is still a clear difference between the common commercial policy and the CFSP in terms of the competence, procedures and political weight of the Union. That said, recent developments, including in the area of military defence, point to a stronger emphasis on security and defence policy as part of EU external relations and a possible bridging of the gap between CFSP, on the one hand, and matters such as trade policy, on the other. Most aspects of EU external relations are situated somewhere between these two extremes; handled in accordance with the normal supranational system, they belong as a general rule to the domain of either shared or parallel rather than exclusive competence. Member States thus continue to play a role as distinct actors. Development cooperation and humanitarian aid are particularly good examples of what is referred to as parallel competence: both the Union and the Member States act independently, albeit with the objective of coordinated policies.5 In addition to these policies, which are, by their very nature, ‘external’, a number of internal policies have a global reach and are therefore prime candidates for speaking

3 There is a wealth of literature on the EU and the world trade system, see, eg N Emiliou and D O’Keeffe (eds), The European Union and World Trade Law: After the Uruguay Round (Chichester, John Wiley & Sons, 1996); JHH Weiler (ed), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade (Oxford, Oxford University Press, 2000). On the EU’s status and role in the World Trade Organization dispute settlement system in particular, see, eg A Rosas, ‘Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective’ (2001) 4 Journal of International Economic Law 131. 4 See notably F Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Antwerp, Intersentia, 2010). 5 See Arts 210 and 214(6) TFEU.

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with ‘one voice’. The extent to which that potential is realised depends on the area in question; transport policy, energy policy and environmental policy belong to the category of shared competence, but external transport policy has become more of a Union affair with less room for separate Member State action (and energy policy may be moving in this direction too), while environmental policies, as pointed out in section IV of chapter thirteen above, are to a large extent handled by the Union and the Member States in common, sometimes with the latter in a leading role. The Treaty of Lisbon attempts to draw the various aspects of the external action of the Union together. Thus the TEU contains general provisions on the Union’s external action as well as the specific provisions on the CFSP. As a result, the guiding principles and general objectives laid out in Article 21 TEU inform all areas of the Union’s external action (ie both the CFSP and the new Part Five of the TFEU, which groups together the other areas of external relations, as well as the external aspects of its other policies). However, as will be apparent from the discussion below, this is an area in which the Member States retain a key role and the hybrid nature of the Union (and the complicated solutions thereby engendered) is thrown into sharp relief.

II. Institutional Framework for External Action On the basis of the principles and objectives laid down in Article 21 TEU, the European Council identifies the strategic interests and objectives of the Union (Article 22 TEU). This was already the case for CFSP matters, but that body will now also guide action in the other areas of external relations. Decisions on those strategic interests and objectives will be taken unanimously on a recommendation from the Council, which, in turn, will act on the basis of a proposal from either the Foreign Affairs Representative (for CFSP matters) or the Commission (for other areas). Beyond the high-level ‘agenda-setting’, primary responsibility for the day-to-day conduct of non-CFSP matters will continue to fall to the Commission. As regards the operation of the CFSP, however, its role remains more modest and the Council continues to be the main institutional actor. Both these institutions are charged with ensuring the overall consistency of the external action of the Union. The fact that the Vice-President of the Commission in charge of external relations and the Foreign Affairs Representative are one and the same person, and that she6 presides over the Foreign Affairs Council (consisting of the ministers for foreign affairs of the Member States), including the meetings of defence and development ministers, is intended to enhance the overall coherence of external policies. Coming back to Kissinger’s question, the Commission continues to have as its task to ensure the external representation of the Union (Article 17(1) TEU). The fact that the 6 The first Foreign Affairs Representative was Baroness Ashton from the UK, who in February 2010 was also confirmed as a member (and Vice-President) of the European Commission. The current High Representative and Vice-President of the Commission is Frederica Mogherini, former Minister for Foreign Affairs of Italy. On the establishment of the office see, eg J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 243–49. For a comparison with the office as it existed before the Treaty of Lisbon see G Müller-Brandeck-Bocquet and C Rüger (eds), The High Representative for the EU Foreign and Security Policy: Review and Prospects (Baden-Baden, Nomos Verlagsgesellschaft, 2011).

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oreign Affairs Representative represents the Union for matters relating to the CFSP F (Article 27(2) TEU) is not necessarily inconsistent with this since, as noted above, she is a member of the Commission (Article 17(5) TEU). However, overall responsibility for the external representation of the Union is entrusted to the President of the European C ouncil (Article 15(6) TEU). This is perhaps less of a problem for consistency than it might appear since the Foreign Affairs Representative (and Vice-President of the Commission) may once again act as a bridge, taking part as she does in the work of the European Council (Article 15(2) TEU). To the extent that the President of the European Council replaces representation through the rotating national presidencies of the Council, this is certainly a step towards a more easily identifiable face for Europe. As should be apparent from the discussion above, the key innovation in terms of actors on the international scene is the Foreign Affairs Representative and the links which this post has to both the Commission and the Council. The dual nature of the post is perhaps best illustrated by the fact that the Foreign Affairs Representative chairs the Council in its foreign affairs composition (although it remains surprising that Member States accepted that their foreign ministers and other ministers dealing with external affairs are presided over by a Union representative and Vice-President of the Commission).7 The Foreign Affairs Representative is assisted by a European External Action Service (or EEAS, Article 27(3) TEU). This Service works in cooperation with the diplomatic services of the Member States and comprises officials from the General Secretariat of the Council and from the Commission, as well as staff seconded from the national diplomatic services. While the EEAS is referred to in Chapter 2 of Title V TEU, in other words in the part relating specifically to the CFSP, it is clear from the decision to set up the Service that it has a somewhat broader mandate and will play a role in the implementation of non-CFSP external policies as well, including development policy but excluding international trade policy.8 The Service is not part of either the Commission or the Council secretariat but constitutes a ‘functionally autonomous body’ of the Union with its own administration. This compromise solution, explained by the long-standing institutional rivalry between the Commission and the Council General Secretariat as to which institution takes the lead in the implementation of foreign policy, obviously entails the risk of adding one more phone number to the existing list. Prior to the entry into force of the Treaty of Lisbon, the EU was represented in third countries and at some international organisations by around 130 permanent delegations of

7 That said, when the Council deals with international trade matters (common commercial policy), it is normally chaired not by the Foreign Affairs Representative but by the rotating presidency, see a footnote to Article 2(5) of the Council’s Rules of Procedure, Council Decision 2009/937/EU of 1 December 2009, [2009] OJ L325/35, and Council of the European Union, Comments on the Council’s Rules of Procedure, European Council’s and Council’s Rules of Procedure (Luxembourg, Publications Office of the European Union, 2016) 16. 8 Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service, [2010] OJ L201/30. See also Piris, n 6 above, 249–56; B van Vooren, ‘A Legal-Institutional Perspective on the European External Action Service’ (2011) 48 Common Market Law Review 475; L Erkelens and S Blockmans, ‘Setting up the European External Action Service: An Institutional Act of Balance’, CLEER Working Papers 2012/1 (The Hague, Centre for the Law of EU External Action, 2012); S Blockmans and C Hillion (eds), EEAS 2.0: A Legal Commentary on Council Decision 2010/427/EU establishing the Organisation and Functioning of the European External Action Service (Stockholm, Swedish Institute for European Policy Studies (SIEPS) et al, 2013).

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the Commission and by a few delegations of the Council General Secretariat.9 Articles 32 and 35 TEU and Article 221 TFEU now refer to these delegations as ‘Union delegations’ and Article 221(2) provides that they be placed under the authority of the Foreign Affairs Representative. While this reform should enhance consistency, simplicity would appear to have been sacrificed as regards the solution that Union delegations in third countries comprise both EEAS staff and, as appropriate, a separate category of Commission staff, and that, when the Commission exercises the powers conferred on it by the Treaties, for instance with regard to international trade policy (common commercial policy), the Commission as an institution (rather than the Foreign Affairs Representative) may also issue instructions to delegations.10 And as if to further underline the separation of trade policy from the other parts of EU external relations, an EU Mission to the WTO operates in addition to the Union delegation to the UN and other international organisations in Geneva. The institutional framework for action thus continues to depend somewhat on the area in question, although it is to be hoped that, at least from an outsider’s perspective, the Foreign Affairs Representative, the EEAS and the EU delegations will constitute an element of continuity and coherence. The current incumbent at least seems ready to realise the potential of the role in terms of taking initiatives and providing analyses (see, eg, the EU Global Strategy for the CFSP, presented by the Foreign Affairs Representative in June 2016).11 Before moving on, one final aspect of external relations, closely linked to the somewhat altered institutional balance in this field, deserves comment; the external manifestation of the internal power to legislate. In this respect, the Treaty of Lisbon has streamlined the procedures and there is now a single provision (Article 218 TFEU) governing the conclusion of international agreements (ex-Article 24 TEU used to contain a special procedure for CFSP matters).12 As a general rule, and to simplify matters, the Commission negotiates, the Council concludes and the Parliament is either consulted or required to give its consent.13 Article 218 TFEU now governs the procedure for concluding all international agreements: the Commission recommends to the Council the opening of negotiations and the Council, if it agrees, nominates a Union negotiator. The Council may also adopt negotiating 9 See, eg European Commission, Taking Europe to the World: 50 Years of the European Commission’s External Service (Luxembourg, Office for Official Publications of the European Communities, 2004). See also B Martenczuk, ‘The External Representation of the European Union: From Fragmentation to a Single European Voice?’ in A Fischer-Lescano et al (eds), Frieden in Freihet—Peace in Liberty—Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden, Nomos Verlag, 2008) 941, 947. 10 Art 5(2) and (3) of the Decision setting up the EEAS, n 8 above. In 2016, there were 139 EU delegations and offices, with an overall staff of around 5,500, YES Yearbook: EUISS Yearbook of European Security (EU Institute for Security Studies, 2017) 39. See also P Kerres and RA Wessel, ‘Apples and Oranges? Comparing the European Union Delegations to National Embassies’ CLEER Papers 2015/2 (The Hague, Centre for the Law of EU External Relations, 2015). 11 Shared Vision, Common Action: A Stronger Europe, A Global Strategy for the European Union’s Foreign and Security Policy, www.europa.eu/globalstrategy/en (accessed on 6 June 2017). See also The EU Global Strategy: Year 1, www.europa.eu/globalstrategy/en/vision-action (accessed on 6 June 2017). 12 See Cases C-658/11 Parliament v Council EU:C:2014:2025 and C-263/14 Parliament v Council EU:C:2016:435, which confirm the applicability of Article 218 TFEU as a whole to CFSP agreements. 13 On the procedures for concluding agreements see, eg P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 193 et seq; A Rosas, ‘Recent Case Law of the European Court of Justice relating to Article 218 TFEU’ in J Czuczai and F Naert (eds), The EU as a Global Actor: Bridging Legal Practice and Theory at the Turn of the 21st Century. Liber Amicorum Ricardo Gosalbo Bono (Leiden, Brill/Nijhoff, 2017) 365.

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directives and appoint a special committee to be consulted in the course of negotiations. According to Article 17(1) TEU, one of the tasks of the Commission is to ensure the Union’s external representation. While that task is not without exception or at least adaptation (eg in relation to CFSP), it may be expected that, except in special cases, the negotiator designated by the Council will normally be the Commission—and in matters concerning the CFSP, specifically its Vice-President (the Foreign Affairs Representative).14 Recent ECJ case law has confirmed the autonomous role of the Commission as negotiator, as opposed to being simply a secretariat of the Council,15 as well as the right of the Commission to represent the EU internationally (with a caveat for CFSP matters), including in the context of international dispute settlement.16 The decision to conclude an agreement and, if separate signature or provisional application are envisaged, to authorise signature and/or provisional application will be taken by the Council, acting, as a rule, by qualified majority. Unanimity is required, inter alia, if the agreement covers a field for which unanimity is required internally or is a so-called association agreement (Article 217 TFEU) or a cooperation agreement (Article 212 TFEU) with a candidate country.17 Despite the use of a drafting technique which gives the opposite impression (ie a closed list, see Article 218(6)(a) TFEU), the conclusion of an agreement will, in most cases, require the consent of the European Parliament.18 For matters not included in the list, the Parliament must at least be consulted. With the exception of agreements concluded under the CFSP (see below), issues relating to international agreements concluded by the Union may come up in judicial proceedings before the Union Courts, notably infringement actions brought by the Commission against a Member State (Article 258 TFEU), actions for annulment concerning the legality of the decision to conclude an agreement (Article 263 TFEU) and questions concerning the interpretation or validity of an agreement arising in preliminary ruling procedures (Article 267 TFEU).19 In addition to the rule of law generally, the Treaties envisaged a mechanism designed specifically to reduce the probability of an agreement being challenged after its conclusion: a Member State, the European Parliament, the Council or the Commission may request the opinion of the ECJ ‘as to whether an agreement envisaged is compatible with the Treaties’ (Article 218(11) TFEU). The procedure has allowed a number of important issues

14 Sometimes the Treaty itself is specific as to who will negotiate for the Union: Art 207(3) TFEU concerning the common commercial policy stipulates that the Commission is the negotiator in this policy area. 15 Case C-425/13 Commission v Council EU:C:2015:483. 16 Case C-204/07 P C.A.S. v Commission EU:C:2008:446, para 95; Case C-73/14 Council v Commission EU:C:2015:663. On national judicial proceedings in third countries see Case C-131/03 Reynolds Tobacco v Commission EU:C:2006:541, para 94. See also A Rosas, ‘The EU and International Dispute Settlement’ (2017) 1 Europe and the World. A Law Review 7 at 26–31. 17 See Art 218(8) TFEU. Association agreements have been concluded mainly with EU candidate countries and some other third countries with which the Union maintains close relations (such as Mediterranean countries and the ACP (Asia, Caribbean and the Pacific) countries), see, eg S Blockmans and A Łazowski (eds), The European Union and Its Neighbours: A Legal Appraisal of the EU’s Policies of Stabilisation, Partnership and Integration (The Hague, TMC Asser Press, 2006) eg 12–15. See also Art 8(2) TEU, which refers to agreements to be concluded with ‘neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation’. 18 This follows especially from Art 218(6)(a)(v) TFEU, according to which consent is required for agreements which cover fields to which the ordinary legislative procedures applies. Art 218(6)(a) TFEU also mentions, inter alia, agreements having important budgetary implications for the Union. 19 On these and other judicial procedures, see ch 16(II) below.

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to be put before the Court before commitments are made vis-à-vis third states, and the Opinions rendered to date have addressed not only an agreement’s material compatibility with primary law but also the question of Union competence to conclude the agreement as such.20 Finally, a word about the ‘special case’ of CFSP, where the rule continues to be decisionmaking by unanimity (Article 31(1) TEU), an absence of legislative competence and the exclusion of the jurisdiction of the Union Courts. In relation to the first point, it is true (except in relation to decisions having defence implications) that the Treaty of Lisbon has somewhat broadened the scope of qualified majority decision-making in the Council and increased the potential for its further expansion in the future (Article 31(2) and (3) TEU). However, in general, it would appear that the responsibility for ensuring proper implementation of this policy area lies primarily with the Council and that, therefore, the obligations of conduct imposed on the Union institutions as well as the Member States (for example, pursuant to Article 24(3) TEU, to ‘support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and … comply with the Union’s action in this area’) will continue to belong more to the realm of political rhetoric than legal reality. As to the question of judicial control in CFSP matters, the exclusion of the jurisdiction of the Union Courts is tempered in two respects: the courts have jurisdiction to monitor that the implementation of the CFSP does not impinge on other Union competences (and vice versa, see below) and they are competent to review the legality of CFSP decisions providing for restrictive measures against natural or legal persons (Article 275 TFEU). The question whether the Treaties, as amended by the Treaty of Lisbon, admit that the ECJ may render an opinion on the legality of agreements to be concluded under the CFSP remains open.21 The institutional and procedural differences between CFSP and non-CFSP matters highlight the importance of the borderline between the two. These ‘border disputes’ existed long before the Treaty of Lisbon, but the latter has hardly contributed to a clarification of the issues involved.22 The scope of the CFSP is in a sense general; Article 24(1) TEU provides that the Union’s competence in CFSP matters ‘shall cover all areas of foreign policy and all questions relating to the Union’s security’. This competence is not unlimited, however, first of all because the reference to ‘foreign policy’ is probably not meant to cover all economic and technical aspects of external relations such as trade and financial and technical cooperation. Secondly, Article 40 TEU stipulates that the implementation of the CFSP shall not affect the application of the procedures and the extent of the powers laid down for the exercise of the Union competences referred to in Articles 3–6 TFEU

20 See S Adam, La procédure d’avis devant la Cour de justice de l’Union européenne (Bruxelles, Bruylant, 2011). The author analyses 17 opinions given by the ECJ. 21 For a thorough discussion, see Adam, n 20 above, 462–517. 22 On the CFSP, particularly as it existed before the Treaty of Lisbon, see, eg RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (The Hague, Kluwer Law International, 1999); V Kronenberger (ed), The European Union and the International Legal Order: Discord or Harmony? (The Hague, TMC Asser Press, 2001) especially Part Three, with contributions by S Marquardt, V Kronenberger, J Wouters, RA Wessel, P Koutrakos and R Desgagné; M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) especially Part Two, with contributions by C Herrmann, A Dashwood and C Hillion and RA Wessel. On the CFSP after the entry into force of the Treaty of Lisbon, see, in particular Eeckhout, n 13 above, 467–500.

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(which list more or less all the non-CFSP areas and divide them into different categories of exclusive, shared, parallel and supporting competence). Article 40 TEU corresponds to Article 47 TEU, as it existed before the Treaty of Lisbon, which stipulated that nothing in the then TEU was to affect the Community Treaties— in other words, the TEC and the other parts of the First Pillar. The ECJ recognised a preference for the First Pillar in holding that the mere existence of a Community competence prevented the Council from acting under the CFSP, regardless of whether the CFSP measure concretely prevented or limited the exercise of that competence.23 But to what extent does this finding continue to be relevant in the context of the new Article 40 TEU? The question arises because this provision contains not only the rule expressed above but also the reciprocal rule that the policies mentioned in Articles 3–6 TFEU shall not affect the application of CFSP procedures and powers. As to the jurisdiction of the ECJ in such border areas between CFSP and other matters, recent ECJ case law does suggest a restrictive approach to the scope of the provision excluding the jurisdiction of the Court with respect to CFSP matters. The Court has held that it has jurisdiction with respect to the procedural aspects of international agreements (regulated, as noted above, by Article 218 TFEU) concluded under the CFSP.24 In a case concerning public procurement (a tender for the lease of helicopters) and in another concerning a personnel matter, the Court has confirmed its jurisdiction, despite the fact that both actions arose in the context of CFSP missions.25 In yet another case, the Court held that a rule granting it explicitly (and exceptionally) jurisdiction with respect to actions for annulment (Article 263 TFEU) against restrictive measures (sanctions) taken under the CFSP, also applies to requests for preliminary rulings (Article 267 TFEU) concerning the validity of such measures.26 While this case law has reduced the scope of the CFSP jurisdictional exclusion clause, it would seem that these judgments have not rendered obsolete the observation the Court made in Opinion 2/13 relating to the draft agreement for the accession of the EU to the ECHR, according to which there are still ‘certain acts adopted in the context of the CFSP’ which fall outside of the ambit of judicial review by the ECJ (this finding, it will be recalled, constituted one of the reasons why the Court found the draft agreement incompatible with the Union legal order).27

III. Union Competences and their Use The general categories of Union competence discussed in chapter three above apply to external relations, although, as highlighted in that context, Article 2(4) TFEU appears 23 Case C-91/05 Commission v Council EU:C:2008:288, paras 56–60. See also G Vandersanden, ‘Le traité de Lisbonne et le contentieux de la politique étrangère et de sécurité commune’ in Chemins d’Europe: Mélanges en l’honneur de Jean Paul Jacqué (Paris, Dalloz, 2010) 671 at 675–78. 24 See n 12 above. 25 Case C-439/13 P Elitaliana v Eulex Kosovo EU:C:2015:753; Case C-455/14 P H v Council and Others EU:C:2016:569. 26 Case C-72/15 Rosneft EU:C:2017:236. 27 Opinion 2/13 (draft accession agreement on the accession of the EU to the ECHR) EU:C:2014:2454, para 252. See also ch 11(III) above.

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to create a special CFSP category of competence.28 At least for non-CFSP matters, one should thus distinguish between exclusive, shared, parallel and supporting competence. In the context of external relations, the type of competence will, in principle, determine whether it is the Union alone, the Union together with its Member States (in the context of shared competence) or in parallel with them (parallel competence), or the Member States alone which take part in international discussions and negotiations, conclude international agreements, are members of international organisations, and so on. As Kissinger’s question highlights, knowing your counterpart is an important feature of international relations. While each of the areas of exclusive competence listed in Article 3(1) TFEU may be relevant for external relations, points (d) ‘conservation of marine biological resources’ and (e) ‘common commercial policy’ are particularly important. Taking these points in turn, as far as the conservation of marine biological resources is concerned, it is normally the Union alone that concludes bilateral and multilateral fishing agreements. This equates with the description of exclusive competence given in Article 2(1) TFEU. In the declaration of competence made when the EU concluded the UN Convention on the Law of the Sea of 1982, the conservation of maritime fishing resources is listed as an area belonging as a general rule to the domain of exclusive competence.29 However, partly for historical reasons and partly because some Member States may represent overseas territories which are not part of the Union territory, a number of the nine regional fisheries organisations of which the EU is a member also count some EU Member States as members in their own right.30 As was noted above, listing the common commercial policy as an area of exclusive Union competence was not, in itself, controversial. The ECJ had long since held international trade in goods to be a matter of exclusive competence.31 However, Article 207 TFEU significantly broadens the scope of the common commercial policy to include trade in services, the commercial aspects of intellectual property and foreign direct investment. It is true that the scope of the policy had already been expanded by the Treaty of Nice; however, in the 28 See Art 2(4) TFEU and Piris, n 6 above, 77, who notes that ‘[w]ith regard to CFSP … it was considered that the specificity of the EU competence in this area, where both the EU and the Member States are competent, made it difficult to include this area in one of the three general categories of competences’. See also ch 3(II) above. On the different categories of competence in the context of external relations see A Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do such Distinctions Matter? in I Govaere et al (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden, Martinus Nijhoff Publishers, 2014) 17. 29 Council Decision 98/392/EC of 23 March 1998, [1998] OJ L179/129. The EU and not the Member States was a party to a dispute with Chile concerning fishing resources off the Chilean coast which was pending before the International Tribunal for the Law of the Sea. The case (Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union)) was settled in 2008–09 and removed from the Tribunal’s list in December 2009, Press Release ITLOS/press 141, 17 December 2009. See, eg A Rosas, ‘International Dispute Settlement: EU Practices and Procedures’ (2003) 46 German Yearbook of International Law 301. 30 https://ec.europa.eu/fisheries/cfp/international/rfmo_en (accessed on 1 March 2010). See, eg C ouncil Decision 2005/75/EC of 26 April 2004 on the accession of the Community to the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, [2005] OJ L32/1. See also R Frid, The Relations Between the EC and International Organizations: Legal Theory and Practice (The Hague, Kluwer Law International, 1995) 319 et seq. At the time of Joined Cases 3/76, 4/76 and 6/76 Kramer EU:C:1976:114, the Community competence for high sea fisheries had not yet become exclusive. Compare Case 804/79 Commission v UK EU:C:1981:93. 31 See, eg M Kaniel, The Exclusive Treaty-Making Power of the European Community up to the Period of the Single European Act (The Hague, Kluwer Law International, 1996) 68–79; Eeckhout, n 13 above, 11–69, 439–66.

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absence of rules defining competence, the ECJ held, in an Opinion rendered one day before the Lisbon Treaty entered into force, that most aspects of trade in services regulated by Article 133 TEC even as amended by the Treaty of Nice were not matters of exclusive Community competence.32 The manner in which Article 207 TFEU and the provisions on competence are drafted as a result of the Treaty of Lisbon now leaves no doubt that, with the exception of transport services, not only trade-related intellectual property rights and foreign direct investment but also trade in services belong to the category of exclusive competence. The Lisbon version of Article 207 TFEU has not prevented certain Member States from advocating a restrictive interpretation of in particular the scope of the notion of ‘trade-related intellectual property rights’ and of the room for ‘flanking measures’ (such as requirements of an environmental or social nature) which can be deemed to be sufficiently linked to trade in order to fall under the common commercial policy and Article 207. In Daiichi Sankyo, the ECJ ruled that at least the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) falls in its entirety under the common c ommercial policy.33 In Opinion 2/15, the Court not only confirmed this approach with respect to a draft bilateral trade agreement with Singapore but also took a fairly broad view of the possibility to include, on the basis of Article 207, flanking measures promoting sustainable development, including requirements of an environmental and social nature.34 The Court recognised the need, in the context of a ‘new generation’ of free trade agreements, to include, in addition to classical trade elements, ‘other aspects that are relevant, or even essential, to such trade’.35 It should be recalled that Article 207, in addition to trade in goods and trade-related intellectual property rights, includes trade in services as well as ‘foreign direct investment’. In Opinion 2/15, the ECJ confirmed that direct investment does not cover so-called portfolio investment (investing without the aim of exercising an influence on the running of an undertaking) and also held that the so-called investor-to-state dispute settlement (that is, litigation between a private investor and a State), at least in the form it had taken in the Singapore agreement, does not belong to the area of exclusive competence. For these matters, there is shared competence, implying the potential for a mixed agreement, that is an agreement with Member State participation as well.36 The impact of the changes brought about by the Treaty of Lisbon and the recent developments in case law should not be exaggerated, however.37 On the one hand, it is true that, in the wake of case law holding that trade in services and trade-related intellectual property rights belonged to the field of shared competence, both the EU and the Member States joined the WTO.38 On the other hand, even before the Treaty of Lisbon, the Commission

32

Opinion 1/08 (General Agreement on Trade in Services) EU:C:2009:739. C-414/11 Daiichi Sankyo EU:C:2013:520. See also A Rosas, ‘EU External Relations: Exclusive Competence Revisited’ (2015) 38 Fordham International Law Journal 1073 at 1079–82. 34 Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2017:376, paras 111–130 (intellectual property rights), paras 139–67. 35 Ibid, para 139. 36 Ibid, paras 78–110, 285–93. 37 Rosas, n 28 above. 38 Opinion 1/94 (WTO Agreement) EU:C:1994:384. On foreign investment, see Opinion 2/92 (Third Revised Decision of the OECD on national treatment) EU:C:1995:83. 33 Case

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functioned in practice as the spokesman for the Union and the Member States in all matters before this organisation (including as regards services and intellectual property rights).39 In the same vein, since the 1990s economic sanctions against third countries and individuals have in practice been instigated at Union level, irrespective of whether they have been considered to fall under exclusive or shared competence such that it is possible to speak of a veritable EU sanctions policy, targeting not only third states (violations of human rights, non-proliferation commitments, and so on) but also alleged terrorists and individuals associated with illegitimate regimes.40 On the other hand, even in the case of exclusive competence, the Union sometimes sees fit to authorise Member States to act in the common interest.41 That said, especially in the light of Opinion 2/15, it is likely that many bilateral trade agreements, which in the past would have been concluded as mixed, will be concluded as Union-only agreements (notably if they do not, in the light of what was said above, include portfolio investment and/or investor-to-state dispute settlement mechanisms). This would enable the Union to increase the use of Union only agreements, without signature and conclusion of the agreement being held hostage to a usually long and difficult process of separate ratification by all Member States (and, as happened recently with respect to the Comprehensive Economic and Trade Agreement (CETA) signed in 2016 with Canada, even the Belgian regions).42 The areas listed in Article 3(1) TFEU do not exhaust the question of exclusive competence. Article 3(2) TFEU stipulates that the Union shall have exclusive competence for the conclusion of an international agreement ‘insofar as its conclusion may affect common rules or alter their scope’. This wording appears to be an express codification in the Treaty of the ECJ’s case law, notably as it developed following the landmark judgment in the so-called AETR/ERTA case, decided in 1971. The ECJ held that, even in the absence of an express conferral of power to conclude an international agreement, the internal and external aspects of a Community policy could not be separated one from the other; the Member States no longer had the right, acting individually or collectively, to undertake obligations with third countries which affected common rules laid down by the Community—only the Community itself could do so.43 This conclusion has its parallel in the principle of preemption, which, as far as shared competence is concerned, precludes Member States from exercising their competence to the extent that the Union has exercised its competence.44 39 See, eg Eeckhout, n 13 above, 459. The Commission is, however, assisted by a special committee appointed by the Council (Art 207(3) TFEU). On the role of the EU in the settlement of trade disputes see, eg Rosas, n 3 above. 40 Art 215 TFEU provides the legal basis but these sanction measures have to be preceded by a CFSP decision. See generally E Paasivirta and A Rosas, ‘Sanctions, Countermeasures and Related Actions in the External Relations of the EU: A Search for Legal Frameworks’ in E Cannizzaro (ed), The European Union as an Actor in International Relations (The Hague, Kluwer Law International, 2002) 207; Eeckhout, n 13 above, 501–48; A Rosas, ‘CounterTerrorism and the Rule of Law: Issues of Judicial Control’ in AM Salinas De Frías, KLH Samuel and ND White (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 83. 41 A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ 34 Fordham International Law Journal (2011) 1304 at 1331–35; Rosas, n 28 above, 32–33. See further at n 71 below. 42 See Rosas, n 16 above, at 24–26. 43 Case 22/70 Commission v Council EU:C:1971:32. The commonly used name of AETR/ERTA stems from the acronym for the European Road Transport Agreement, the subject of the dispute. See also Eeckhout, n 13 above, 70 et seq. 44 The principle of pre-emption is expressed in Art 2(2) TFEU, see ch 3(II) above. See also K Lenaerts and P Van Nuffel, European Union Law, 3nd edn (London, Sweet & Maxwell, 2011) 128–30.

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This explains why the relevance of the AETR/ERTA principle is doubtful, to say the least, in areas such as development cooperation and humanitarian aid, which are examples of parallel competence. The question as to when an international agreement would ‘affect’ Union rules to such a degree that Union competence becomes exclusive has caused much uncertainty and controversy. It may be noted that this debate has not been settled by the inclusion of the principle in written law: Article 3(2) TFEU confines itself to stating the principle largely as it emerges from the case law,45 without bringing any further clarity to the finer point of when it may be invoked. It was therefore to be expected that the courts would continue to provide the forum for developments in this respect. Indeed, the ECJ has already had cause to interpret Article 3(2) TFEU on a number of occasions. In five cases decided since 2014, the Court concluded that the agreements in question risked affecting Union common rules and that the competence had become exclusive.46 Without going into these judgments and opinions in any greater detail, the importance of Opinion 2/15 relating to a trade agreement with Singapore, referred to above in the context of the common commercial policy, should be highlighted, as the ECJ held that the entire part of the draft agreement dealing with various transport services (which according to Article 207(5) TFEU are excluded from the common commercial policy) belongs to the area of exclusive competence by virtue of Article 3(2) TFEU.47 In the light of that case law, it must be concluded that, while it had been opined that no exclusive competence exists if the EU internal legal acts provide for minimum rules only,48 the Court has now clarified the position: exclusive competence is excluded only in situations where both the agreement and applicable internal EU law provide for minimum rules only.49 The Court has also confirmed that it is not necessary, for the principle to apply, that the areas covered by the international agreement and Union legislation coincide fully. In comparing the areas covered by the agreement and Union legislation, the Court has avoided a ‘piecemeal approach’ and held that the area to be compared, and which should be ‘largely covered’ by EU rules in order for exclusivity to come into play, may be a fairly broad area or ‘regime’, even an area such as the protection of waters from pollution or 45 See the ‘Open Skies’ judgments relating to air transport agreements concluded by Member States with the US, eg Case 467/98 Commission v Denmark EU:C:2002:625; Opinion 1/03 (Conclusion of the New Lugano Convention) EU:C:2006:81, where the Court opined that the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters should be concluded by the then Community alone; Case C-45/07 Commission v Hellenic Republic EU:C:2009:81, where the Court held the Member State in question to account for submitting a unilateral proposal not agreed at Union level to the International Maritime Organization on a matter covered by the Union legislative act. 46 Case C-114/12 Commission v Council EU:C:2014:2151 (negotiations for a Council of Europe draft convention for the protection of the neighbouring rights of broadcasting organisations); Opinion 1/13 (acceptance of new Contracting Parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction) EU:C:2014:2303; Case C-66/13 Green Network EU:C:2014:2399 (the conformity with EU law of a bilateral agreement concluded by a Member State with a third State on the importation of green electricity); Opinion 3/15 EU:C:2017:114 (the Court, after having first rejected the Commission’s primary argument according to which the Marrakesh Treaty on access to public works for persons who are blind, visually impaired or otherwise print disabled fell under the common commercial policy, concluded that there was exclusive competence under Art 3(2) TFEU). 47 Opinion 2/15 (Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore), n 34 above, paras 168–224. 48 Opinion 2/91 (International Labour Organisation Convention No 170) EU:C:1993:106, para 18. 49 Case C-114/12 Commission v Council, n 46 above, paras 90–92.

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the protection of broadcasting organisations’ neighbouring rights, where the relevant EU rules are to be found in different legal instruments.50 Moreover, not only existing but also future foreseeable Union legislation may have to be taken into account in analysing the effects of an international agreement on Union law.51 And the AETR/ERTA principle applies even in cases where Treaty provisions refer explicitly to the right of Member States to conclude international agreements (for example, Article 191(4) TFEU on environmental policy).52 Finally, Article 3(2) TFEU also provides for exclusive competence if the conclusion of an agreement ‘is provided for in a legislative act of the Union’ or is ‘necessary to enable the Union to exercise its internal competence’. These two criteria are also based on the case law of the ECJ.53 The second criterion in particular is not easy to apply and has, on the basis of the Court’s case law, been held by some to express potential or implicit rather than exclusive competence.54 The TFEU, however, makes it clear that, if in a concrete (but probably rare) situation it would not make any sense to exercise an internal Union competence without the participation of third countries, not only will the potential for external competence exist, it will, in addition, be exclusive. What is not clear is whether Article 3(2) TFEU applies to the CFSP. As noted above, Article 2(4) TFEU would appear to create a special category of competence, not dealt with in Articles 3–6 TFEU, and Article 40 TEU on the relation between CFSP and non-CFSP matters seems to be based on the premise that Article 3(2) TFEU is not as such applicable in the CFSP field. If this is true (and many will argue that it is not), the next question is whether the competence, under Article 37 TEU, to conclude a CFSP agreement may be or may become exclusive.55 As was noted above, the absence of a real legal control system may render such ruminations somewhat academic; yet it remains something of a paradox that, in the less supranational CFSP field, agreements (which often concern military and civilian missions in third countries) are in practice concluded by the Union alone while, as will be explained below, many non-CFSP agreements are concluded by the EU and the Member States together (mixed agreements). Once it has been established that an agreement falls within an area of exclusive competence, the rule is simple and, apart from the situation where Member States are authorised 50 Case C-114/12 Commission v Council, n 46 above, paras 78–84. In Opinion 2/15 (Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore), n 34 above, paras 168–224, the Court analysed separately the areas of ‘maritime transport’, ‘rail transport’, ‘road transport’ and ‘public procurement in the field of transport’ and concluded that these areas were to a ‘large extent’ covered by common rules. While that situation may have been somewhat different for ‘internal waterways transport’, that part of the agreement contained, ‘at most, … commitments of extremely limited scope’ (para 216) and thus did not affect the conclusion that the whole chapter of the Singapore agreement relating to transport fell under an exclusive competence. See also Rosas, n 33 above, 1087–89. 51 Opinion 2/91 (International Labour Organisation Convention No 170), n 48 above, paras 25–26; Opinion 1/03 (Conclusion of the New Lugano Convention), n 45 above, para 126; Case C-66/13 Green Network, n 46 above, paras 61–64. See also Rosas, n 33 above, 1093–94. 52 See Declaration No 10 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Maastricht. 53 The reference to internal legislative acts which provide for the conclusion of an international agreement stems from Opinion 1/94 (WTO Agreement), n 38 above, para 95. The necessity test is to be found eg in Opinion 1/76 (Inland Waterways) EU:C:1977:63; Opinion 1/03 (Conclusion of the New Lugano Convention), n 45 above, para 115. 54 See, eg Eeckhout, n 13 above, 112–13. Compare R Holdgaard, External Relations Law of the European Community: Legal Reasoning and Legal Discourses (Alphen aan den Rijn, Kluwer Law International, 2008) 116–19. 55 See Arts 24 and 37 TEU and 2, 3 and 216 TFEU; see also C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in Cremona and De Witte, n 22 above, 79, 102–08. On CFSP agreements concluded before the entry into force of the Treaty of Lisbon, see, eg Naert, n 4 above, 324, 334–46.

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by the Council to act in the Union’s interest,56 is usually adhered to: the Union will be the counterpart in the negotiation and conclusion of an agreement. The problem has always been, and in the post-Lisbon future continues to be, pinning down the precise extent of that exclusive competence. The outer limits of exclusive competence are important because, as the labels suggest, exclusive competence is just that while the alternative (shared competence) is quite the opposite. Coming back, for a moment, to the question of potential or implicit competence, the matter now appears to have been regulated. Article 216 TFEU enumerates four situations in which an international agreement may be concluded by the Union: (1) the Treaties so provide, or where the conclusion of an agreement is (2) necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, (3) provided for in a legally binding Union act, or (4) likely to affect common rules or alter their scope. The scope of this provision is important since competence cannot be shared if the Union is not even potentially competent in the first place. The third and fourth criteria set out in Article 216 TFEU are almost identical to the situations described in Article 3(2) TFEU. In other words, in those cases, the Union is not only competent but is exclusively so. The first criterion is rather self-explanatory. Explicit primary law provisions on the conclusion of international agreements include Article 37 TEU (CFSP) and the following provisions of the TFEU: Article 79(3) (readmission agreements), Article 191(4) (environment), Article 207 (common commercial policy), Article 209(2) (development cooperation), Article 212(3) (economic, financial and technical cooperation) and Article 219 (monetary and foreign exchange regime matters). Whether the Union will conclude agreements in these fields alone or together with the Member States will depend on the field in question. Finally, the second criterion (that conclusion of the agreement is necessary to achieve one of the Union’s objectives) is formulated in much broader terms than the similar test set out in Article 3(2) TFEU, and again the question of whether Union competence is exclusive or to be exercised together with the Member States will depend on the specific case and the content of the proposed agreement. In fact, the formulation in Article 216 TFEU is almost identical to the condition expressed in Article 352(1) TFEU for Union action in situations, including internal situations, where the Treaties have not provided the necessary powers.57 Unlike that provision, however, Article 216 TFEU does not require unanimity in the Council; the voting rules will depend on the internal legal basis and on the exceptions to qualified majority which are to be found in Articles 218(8) and 219(1) TFEU. Under the Treaty of Lisbon, the competence to conclude international agreements is thus extremely broad and extends practically speaking to all areas of internal competence. Assuming that this competence has not become exclusive, Members States may continue to exercise their competence to conclude international agreements and be members of international organisations. Such shared competence often exists in the areas of, say, environmental policy, the area of freedom, security and justice and, arguably, the CFSP. In some areas, such as transport and environment, the scope for separate Member State

56 57

See at nn 41 above and 71 below. See ch 4(III) above.

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action is significantly reduced by the development of Union secondary law in combination with the AETR/ERTA principle and/or the principle of loyal cooperation as outlined below, although, as noted above, the specific nature of environmental policy and the scope for Member States to set the level of protection aspired to means that they retain an important role in relation to this field of activity. In practice, many agreements, including many of the association and other bilateral cooperation agreements concluded with third countries, have been concluded as mixed agreements, with the participation of both the Union and its Member States. Of the more than 1,000 agreements concluded by the Union, at least 200–250 or so are mixed.58 These include conventions setting up international organisations, such as the WTO, the Food and Agriculture Organization (FAO), the Codex Alimentarius Commission (established by the FAO and the World Health Organization), and certain regional or global environmental organisations and conventions.59 It will be noted that many mixed agreements could (and some of them should) legally speaking have been concluded as pure Community/Union agreements but, as Union competence was not considered—or for political reasons, accepted—to be exclusive at the time of conclusion, the Member States became Contracting Parties alongside the Union. The phenomenon of mixed agreements presents a host of legal and practical problems from negotiation and conclusion through day-to-day representation and management to responsibility and dispute settlement.60 Without accounting for all these problems here, their importance for third states and international organisations should be emphasised. How are they to know who is responsible for what? EU declarations of competence, if they exist, could be of some help, but they are often so general and vague that it is difficult, if not impossible, on this basis to have a clear view of the division of competence between the Union and the Member States; indeed, very often it is precisely the lack of such a clear view that leads to the agreement being ‘mixed’ in the first place.61 The principle of loyal cooperation, expressed in Article 4(3) TEU and, specifically for the CFSP, Articles 24(3) and 32 TEU, acts as a palliative to some of the legal and practical problems associated with mixed agreements by requiring that, in areas of shared competence, the Union institutions and the Member States cooperate closely. The ECJ has held, inter alia, that the principle results from the ‘requirement of unity in the international

58 J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Member States (The Hague, Kluwer Law International, 2001) 249 lists 154 mixed agreements concluded during the period 1958–2000. 59 See generally Heliskoski, n 58 above, passim. On the EU as a member of international organisations see, eg Frid, n 30 above; I Govaere, J Capiau and A Vermeersch, ‘In-between Seats: The Participation of the European Union in International Organizations’ (2004) 9 European Foreign Affairs Review 155; F Hoffmeister and PJ Kuijper, ‘The Status of the European Union at the United Nations: Institutional Ambiguities and Political Realities’ in J Wouters, F Hoffmeister and T Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (The Hague, TMC Asser Press, 2006) 9, 22–27. 60 See, eg A Rosas, ‘The European Union and Mixed Agreements’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 200; Heliskoski, n 58 above, passim; C Hillion and P Koutrakos (eds), Mixed Agreements Revisited: The EU and its Member States in the World (Oxford, Hart Publishing, 2010) passim. 61 See Case C-240/09 Lesoochranársek zoskupenie, EU:C:2011:125, where a declaration of competence was not given conclusive relevance for the question of determining which parts of the agreement belonged to the sphere of Union law.

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representation of the Community’.62 Member States may thus be prevented from acting unilaterally even in situations which do not belong to an area of exclusive competence.63 As indicated above, this is, from a legal point of view, even more so in the CFSP arena, where many strongly worded TEU provisions instruct Member States to respect Union decisions and coordinate activities in a spirit of loyal cooperation. What space, then, is left for Member State action in external relations?

IV. The Union and the Member States While the Member States continue to pursue external relations of their own (membership of the UN and other international organisations, treaty and diplomatic relations with third states, and so on), the preceding discussion has shown that the scope for independent action is in many respects curtailed or at least significantly affected by their obligations as members of the EU. Moreover, the decentralised structure of the EU, implying that the implementation of Union policies and decisions is often a matter for the Member States, means that it is not always easy to distinguish between Union and national action. In the external relations arena, this is accentuated by the fact that the Union may be internally competent, perhaps even to the exclusion of action by the Member States, but externally hampered by clauses in international treaties, including those establishing international organisations, which limit the right to participate or to be a full member to states. The purpose of this subchapter is to present such situations as a complement to the discussion in the preceding section, and to discuss the legal problems to which they may give rise, including some aspects of the question of the status in Union law of international agreements, including those setting up international organisations, concluded by Member States without direct Union participation.64 In section III of chapter six above, it was explained that agreements entered into by Member States are, as a rule, part of their national law only and hence subject to the principle of primacy of Union law but that, on the other hand, such agreements may sometimes be of legal relevance in the application and interpretation of Union law—for instance, if Union primary or secondary law contains explicit references to the agreements in question. Let us take as a starting point the fact that most international organisations, including the UN and its Specialized Agencies (save for the FAO), are not currently open to full EU membership.65 This will often imply that international conventions adopted or sponsored 62 On the duty of cooperation see Ruling 1/78 (Convention on the Physical Protection of Nuclear Materials, Facilities and Transport) EU:C:1979:224, paras 33–36: Opinion 2/91 (International Labour Organisation Convention No 170), n 48 above, paras 36–38; Opinion 1/94 (WTO Agreement), n 38 above, paras 106–09; Case C-25/94 Commission v Council EU:C:1996:114; Case C-266/03 Commission v Luxembourg EU:C:2005:341; Case C-433/03 Commission v Germany EU:C:2005:462. See also Heliskoski, n 58 above, 46–69; Eeckhout, n 13 above, 255. 63 In addition to the cases cited ibid, see Case C-246/07 Commission v Sweden EU:C:2010:203. 64 On this last point see also ch 6(III) above. On the subject of agreements concluded by the Member States in general see R Schütze, ‘EC Law and International Agreements of the Member States: An Ambivalent Relationship?’ (2006–07) 9 The Cambridge Yearbook of European Legal Studies 387; J Klabbers, Treaty Conflict and the European Union (Cambridge, Cambridge University Press, 2009); Rosas, n 41 above. 65 On EU membership of the FAO, see Frid, n 30 above, 229 et seq. See also Case C-25/94 Commission v Council, n 62 above.

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by these organisations will also be closed to the EU, although there is a recent trend to include in some of these conventions a so-called RIO (regional integration organisation) clause enabling the EU to become a Contracting Party.66 In fact, one judgment of the ECJ even alludes to a legal obligation for Member States to work towards the inclusion in such conventions of an RIO clause.67 If, at least for the time being, it remains impossible for the Union to accede to a particular convention, four possible scenarios deserve comment. First, if a Member State joined an organisation or concluded an agreement before EU membership, Article 351(1) TFEU authorises the Member State to invoke their international commitments in case of a conflict between them and Union law. That said, the second paragraph of that provision obliges the Member States to ‘take all appropriate steps to eliminate the incompatibilities established’, which may include an obligation to withdraw from the agreement in question.68 In any case, Article 351(1) TFEU does not constitute a defence for the Member State in case of agreements concluded between the Member States inter partes, or as regards the relations between the Member States under treaties with outside participation.69 Secondly, Member State participation may in any case continue on a pragmatic basis and, even in an area of exclusive competence, the Commission may choose not to start an infringement case. However, if a Member State continues to be a member of an international organisation or party to another agreement which covers an area of exclusive Union competence, proposals or other initiatives made unilaterally by the Member State concerning those areas may trigger a separate infringement action.70 Thirdly, the Member States may be authorised by the Council to conclude an agreement in the interest of the Union. There seems to be a growing tendency to use this device in the case of multilateral conventions that do not contain an RIO clause, such as maritime conventions concluded under the auspices of the IMO.71 In at least one case, the ECJ has held that an agreement concluded by the Member States ‘in the interest and on behalf of the Community’ and to which reference was made in Union legislation had become part of Union law.72 Fourthly, the Union may exceptionally, as a kind of succession, become directly bound by the obligations flowing from an international agreement concluded by the Member States. The only clear example of this in the case law seems to be the General Agreement on Tariffs and Trade before EU membership of the World Trade Organization.73 Interesting in

66 See, eg the UN Convention on the Rights of Persons with Disabilities, Art 44. See also ch 2(I) above, n 5 and ch 11(III), n 68 above. 67 Joined Cases 3, 4 and 6/76 Kramer, n 30 above, para 45. 68 See, eg Case C-62/98 Commission v Portugal EU:C:2000:358, para 50; Case C-203/03 Commission v Austria EU:C:2005:76, para 61. 69 See, eg Case C-478/07 Budejovicky Budvar EU:C:2009:521, paras 98–99 with references. 70 Case C-45/07 Commission v Hellenic Republic, n 45 above. 71 This possibility was recognised in Opinion 2/91, n 48 above, para 5. See, eg Council Decision 2004/246/EC authorising the Member States to sign, ratify or accede to, in the interest of the Community, the 2003 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, [2004] OJ L78/22, mentioned in Case C-188/07 Commune de Mesquer EU:C:2008:359, paras 20 and 86. See also H Ringbom, The EU Maritime Safety Policy and International Law (Leiden, Martinus Nijhoff Publishers, 2008) 93–95, 136–38; Rosas, n 41 above, 1306–08, 1331–35; Rosas, n 28 above, 32–33. 72 Case C-439/01 Cipra and Kvasnicka EU:C:2003:31, paras 23–24. 73 Joined Cases 21/72 to 24/72 International Fruit Company EU:C:1972:115.

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this context is the judgment in Kadi, in which the ECJ held that, in the implementation of United Nations sanctions, the Union ‘is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation’, despite the fact that the EU is not a member of the UN.74 But this is perhaps simply an indication that the UN is a special case; the organisation deals with a broad range of subjects, some of which may belong to the fields of exclusive or shared competence while others probably fall into the special CFSP category of competence, and the CFSP chapter of the TEU expressly recognises the membership of some Member States in the Security Council (France and the UK are permanent members).75 As to the UN, in particular, an effort to address the anomaly that formal membership is of the Member States only while the competence for a number of matters may belong to the Union (Union exclusive or shared competence) has been made via an arrangement upgrading the status of the EU in the General Assembly.76 The enhanced status implies, inter alia, the right to be inscribed on the list of speakers among representatives of the major groups, the right to circulate communications as official documents of the Assembly and the right to present proposals and amendments agreed by the EU Member States but excluding the right to vote and to put forward candidates. While the Union may also give statements to the Security Council, in conformity with Article 34(2) TEU (according to which the Member States which sit on the Council may request that the Foreign Affairs Representative be invited to present a Union position), a unique and permanent EU membership of the Security Council, replacing the permanent seat of France, seems a rather remote possibility.77 As far as other international organisations of which the EU is not a member are concerned, the status of the EU varies depending on historical traditions, the mandate of the organisation in question and the intensity of EU competence and powers. A general arrangement agreed in 2011 with regard to the delivery of EU statements in multilateral organisations does not add much clarity to this question.78 In areas where the activities of a given organisation affect significantly areas of Union competence the Commission may endeavour to obtain special arrangements between the EU and the organisation in question. One example is the Memorandum of Cooperation between the EU and the

74 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, paras 293 and 296. The Court of First Instance had gone even further in holding that the EU was directly bound by the United Nations Charter (Cases T-306/01 Yusuf and Al Barakaat International Foundation EU:T:2005:331; T-315/01 Kadi EU:T:2005:332). 75 Art 34(2) TEU. On EU participation in the work of the UN more generally, see Hoffmeister and Kuijper, n 59 above; J Wouters, J Odermatt and T Ramopoulus, ‘The Status of the European Union at the United Nations General Assembly’ in Govare et al, n 28 above, 211. For an example of EU coordination of the policies and participation of the Member States (in this case relating to human rights policies) see T Rathgeber, ‘Much Talk but Little Vitality: The European Union in the Human Rights Council in 2010’ (2011) 3 European Yearbook on Human Rights 201. 76 UN General Assembly, sixty-fifth session, Resolution 65/276 of 3 May 2011 ‘Participation of the European Union in the work of the United Nations’. 77 On the participation of the EU in the work of the Security Council see N Pirozzi with H Juergenliemk and Y Spies, ‘The European Union and the Reform of the United Nations: Towards a More Effective Security Council?’ Mercury E-paper No 13 (Multilateralism and the EU in the Contemporary Global Order, 2011), www.mercuryfp7.net. 78 EU statements in multilateral organisations: General arrangements, Council doc 15901/11 of 24 October 2011.

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International Civil Aviation Organisation which was signed in April 2011 and has been applied provisionally as from the date of signature.79 That even such fairly modest arrangements can still be politically sensitive is demonstrated by the fact that the UK, while recognising the benefits of the Memorandum of Cooperation, announced that it will abstain on the Council Decision concluding the Memorandum as it ‘attaches great importance to the principle of Member State sovereignty in international organisations’ and ‘is cautious about any measures and processes which could eventually lead to a change of the distribution of competences between the EU and Member States’.80 As a final note on mixed agreements, the legal relations between the Member States may become a matter for the Union rather than public international law. This is so especially in the situation most often occurring in practice where there is no precise delimitation of Union competence and Union law as opposed to Member State competence and national law. Ireland initiated an arbitration procedure against the UK under the Convention on the Law of the Sea and was brought before the ECJ for violation of its obligations under Article 292 TEC (now Article 344 TFEU), according to which ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein’.81 In areas for which the Union has no competence at all, the Member States are in principle free to act on their own. That said, it is difficult, if not impossible, to find a clear example of such an area. Indeed, it is interesting to note that, even with the more express division of competences introduced by the Treaty of Lisbon, there is still no ‘negative list’ by which competence is explicitly reserved to the Member States. The closest the treaties come to a ‘reserved area’ is the statement in Article 4 TEU that ‘national security remains the sole responsibility of each Member State’. By choosing not to deal with this matter in the articles specifically dedicated to delimiting the division of competence, the Member States appear to have left the question open. Indeed, while defence matters, with some exceptions, used to be an example of an area in which the Union had no explicit competence to act, the Treaties of Amsterdam, Nice and above all Lisbon, with its subchapter on the CSDP, imply a fundamental change in this regard.

V. Security and Defence Security and defence are concepts traditionally viewed as inseparable from or at least inherent to the idea of national sovereignty. While there have been, over the decades, numerous examples of cooperation in fact and attempts at defining cooperation in theory (some of which have even been successful: the Treaty of Maastricht included express reference to the Western European Union),82 it remains fair to say that, in terms of policies of the 79 Council Decision of 8 March 2012 on the conclusion of a Memorandum of Cooperation between the European Union and the International Civil Aviation Organization providing a framework for enhanced cooperation, [2012] OJ L121/16. 80 See the Annex to Council document 5560/12 of 22 February 2012. 81 Case C-459/03 Commission v Ireland EU:C:2006:345. 82 The Western European Union (WEU) was created by the Treaty on Economic, Social and Cultural Collaboration and Collective Self-Defence signed by Belgium, France, Luxembourg, the Netherlands and the UK at

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Union, security and defence are relative newcomers. Before presenting the provisions on the CSDP (Title V, Chapter 2, section 2 TEU), however, we will refer briefly to some other provisions of the Treaties which may be of relevance in the context of security and defence.83 In the first place, it should be noted that the treaties do not and have never contained any provision explicitly excluding security and defence matters from their scope of application. On the contrary, Article 346 TFEU (ex Article 296 TEC) provides for certain derogations and reservations in case the essential security interests of a Member State are affected, and Article 347 TFEU (ex Article 297 TEC) regulates the situation where national measures taken in the event of serious internal disturbances, war, a threat of war or implementation of obligations concerning the maintenance of peace and international security affect the functioning of the internal market. If the Commission or another Member State considers that there has been improper use of the powers envisaged in those provisions, they may bring the matter directly before the ECJ by virtue of Article 348 TFEU. These provisions would make no sense if security and defence matters were quite simply excluded from the scope of application of the Treaty altogether. Thus, the ECJ has pointed out that, even if the Member States may adopt appropriate measures to ensure their internal and external security, only a limited number of articles in the TEC envisaged derogations applicable in situations which may affect public security, and a general exception covering all measures taken for reasons of public security could not be inferred from those provisions.84 These derogations, like all derogations to the general rules laid down in the Treaties, must be interpreted strictly. This has prompted the Court to apply the ordinary rules of primary or secondary law in a number of cases where the context was military; for example, the question of access of women to the armed forces was approached from a classic equal treatment perspective, the exemption of exported or imported military goods from value added tax or customs duties was found to have no basis in the VAT or customs rules, and the award of public contracts for the supply of helicopters to military corps mainly for the purpose of civilian use was assessed for compliance with the applicable procurement procedures.85 The Court has even applied this approach across the pillars, annulling a CFSP decision to offer a financial contribution and technical assistance in order to combat the proliferation of small

Brussels on 17 March 1948 (the Brussels Treaty), as amended by the Protocol signed at Paris on 23 October 1954. The practical relevance of the WEU was limited but it was still mentioned in the TEU (Art 17(4) as it existed before the Treaty of Lisbon). A Statement by the Presidency of the Permanent Council of the WEU on 31 March 2010 announced that the Contracting Parties had decided to terminate the Modified Brussels Treaty, thereby dissolving the organisation, www.weu.int (accessed on 24 April 2010). 83 See M Trybus, ‘The Limits of European Community Competence for Defence’ (2004) 9 European Foreign Affairs Review 189. 84 See, eg Case C-284/05 Commission v Finland EU:C:2009:778, para 45, and a number of other judgments delivered the same day by which Member States were condemned for having exempted imports of material intended for military purposes from customs duties. The provisions in question are derogations to each of the economic freedoms (Arts 36, 45, 52 and 65 TFEU), including the free movement of persons in the context of the area of freedom, security and justice (Art 72 TFEU), as well as Arts 346 and 347 TFEU referred to above. 85 On access of women to the armed forces, see Case C-273/97 Sirdar EU:C:1999:523, Case C-285/98 Kreil EU:C:2000:2 and Case C-186/01 Dory EU:C:2003:146. On value added tax, see Case C-414/97 Commission v Spain EU:C:1999:417, para 21. On customs duties see Case C-284/05 Commission v Finland, n 84 above. On other similar judgments handed down on the same day see Case C-38/06 Commission v Portugal EU:C:2010:108. On the procurement of helicopters see Case C-337/05 Commission v Italy EU:C:2008:203.

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arms in Africa, holding that this decision should have been taken not on the basis of the Second Pillar but in accordance with the Community legal basis concerning development cooperation.86 This does not mean that Articles 346 and 347 TFEU in particular have become obsolete. On the contrary, Member States have to a large extent exempted, notably on the basis of Article 346, questions related to defence industries and military procurement from the normal rules of primary and secondary law.87 However, in parallel with the development of the CSDP, efforts have been made to bring these questions gradually into line with the normal regime and to at least limit the effects of Article 346 TFEU. Thus, in addition to some voluntary commitments concerning a defence equipment market made by most Member States and coordinated by the European Defence Agency (see below), two directives were adopted in 2009 on public procurement in the fields of defence and security and on the transfer of defence-related products within the Union.88 As far as the CFSP and, more specifically, the CSDP are concerned, the TEU as it existed prior to the Treaty of Lisbon already contained certain provisions relating to security and defence. These have been developed and strengthened by the Treaty of Lisbon.89 Article 42 TEU now contains all the elements of the new common security and defence policy, the remaining provisions in the section dealing individually with each of the features announced in that opening article. According to the text, Article 42 TEU is based on what was Article 17 TEU prior to the entry into force of the Treaty of Lisbon, but its provisions go further, at least in what they aspire to. The section begins by reinforcing the idea that the ‘common security and defence policy shall be an integral part of the common foreign and security policy’. Indeed, it is important to note that the provisions on defence cannot be read in isolation from the rest of the chapter on foreign policy and the external relations of the Union generally. The stated purpose of this new defence policy is to ‘provide the Union with an operational capacity drawing on civilian and military assets’. However, two points should be noted: first, that the crisis management operations for which this capacity is to be used already formed part of the CFSP as it existed prior to the entry into force of the Treaty of Lisbon; and secondly, that the reference to an operational capacity is immediately followed by an important qualification. It is specified that the Union may use the civilian and military assets on missions outside the Union for peacekeeping, conflict

86

Case C-91/05 Commission v Council, n 23 above. n 4 above, 90–93. But see Case C-615/10 Insinööritoimisto InsTiimi EU:C:2012/324; Case C-474/12 Schiebel Aircraft EU:C:2014:2139. 88 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, [2009] OJ L216/76; Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community, [2009] OJ L146/1. See also the Reports from the Commission on the implementation of the two Directives, indicating problems in their actual implementation, COM(2016) 760 final and COM(2016) 762 final, both of 30 November 2016 and M Trybus and L Butler, ‘The Internal Market and National Security: Transposition, Impact and Reform of the EU Directive on Intra-Community Transfers of Defence Products’ (2017) 54 Common Market Law Review 403. 89 For a survey of the relevant provisions introduced by the Treaties of Maastricht, Amsterdam and Nice, see Naert, n 4 above, 23–53. See also RA Wessel, ‘The State of Affairs in EU Security and Defence Policy: The Breakthrough in the Treaty of Nice’ (2003) 8 Journal of Conflict and Security Law 265. 87 Naert,

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prevention and strengthening international security in accordance with the principles of the United Nations Charter, and that the performance of these tasks shall be undertaken using capabilities provided by the Member States. The second paragraph of Article 42 TEU makes it clear that the common defence policy is still in its infancy and that any move to a common defence as such will only take place via a unanimous decision of the European Council, which will only be adopted in accordance with the constitutional requirements of the Member States. Again, two points should be noted: first, Denmark does not participate in decisions or actions which have defence implications and unanimity must be read as the other 27 Member States;90 and secondly, this option requires the separate consent of all the Member States but without engaging a treaty revision procedure.91 Moreover, the clause referring to the specific character of the security and defence policy of certain Member States and the obligations imposed on a Member State as a result of membership of the North Atlantic Treaty Organization (NATO) has been retained. Thus, for the time being at least, for those states which are members of that alliance, NATO remains the foundation of their collective defence and the forum for its implementation (Article 42(7) TEU). That said, and remembering the teachings of Jean Monnet, it is the establishment of common institutions and bodies that may sow the seed of further integration. Such a development indeed seems inevitable in the field of military policy and military defence. Apart from the Council and EEAS bodies in charge of military and civilian operations to be discussed below, Article 42(3) TEU, in the context of an instruction to Member States to make civilian and military capabilities available to the Union, refers to a European Defence Agency, that is an agency ‘in the field of defence capabilities development, research, acquisition and armaments’. This Agency, established already in 2004, is headed by the Foreign Affairs Representative.92 The picture is completed by some specialised bodies, namely the EU Satellite Centre (Torrejón), founded in 1992 and made an EU agency in 2002, the EU Institute for Security Studies (Paris), set up in 2002, the EU Security and Defence College (Brussels), established in 2005, and the European Tactical Airlift Centre (Zaragoza), set up in June 2017 and integrating an earlier air transport fleet training programme.93 The creation of these bodies, still rather modest in size, represent the beginning of a habit of cooperation and may have considerable impact over time. The rest of Article 42 TEU builds mainly on the missions referred to in the first paragraph. These missions shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peacekeeping tasks, as well as tasks of combat forces in crisis management. It is thus clear that the

90 Art 5 of Protocol No 22 on the Position of Denmark annexed to the TEU and the TFEU. See also ch 8(II) above. 91 See ch 4(II) above. 92 The tasks of the Agency are further specified in Article 45 TEU and in Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency (recast), [2015] OJ L1266/55. See also Naert, n 4 above, 90–93; Piris, n 6 above, 278. 93 For an account of these agencies and bodies which supplement the Defence Agency (apart from the Tactical Airlift Centre), see, eg EU Institute for Security Studies (EUISS), YES 2017: EUISS Yearbook of European Security (Paris, EUISS, 2017) 76–78; on the Tactical Airlift Centre, see European Defence Agency, Latest News: European Tactical Airlift Centre Opens in Zaragoza, 8 June 2017, www.eda.europa.eu/info-hub/press-centre/ latest-news/2017 (accessed on 17 July 2017).

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issions are not limited to peacekeeping in the narrow sense but may also present elements m of peace enforcement. The decisions to initiate a mission are taken by the Council acting unanimously (not counting Denmark) on a proposal from the Foreign Affairs Representative or a Member State. It has also become normal that third states participate in these EU missions.94 The political control and strategic direction of crisis management operations are exercised by the Political and Security Committee, under the responsibility of the Council and the Foreign Affairs Representative (Article 38 TEU), assisted by a Politico-Military Group. The Council has also established a Military Committee, a Committee for Civilian Aspects of Crisis Management, a Crisis Management and Planning Directorate, a Military Staff, subsequently transferred to the EEAS, and an EU Operations Centre. This last could be called upon to run a military operation as an alternative to using a national operational headquarters or NATO mechanisms. In June 2017, the Council decided to set up a M ilitary Planning and Conduct Capability (MPCC), to assume command of EU so-called nonexecutive (mainly training) missions.95 Despite the requirement of unanimity (applicable, in general, to the CFSP), it has been possible to initiate and run a number of missions and operations since 2003, of which more than half have been of a civilian character.96 Operations which are ongoing at the time of writing include a military operation in Bosnia and Herzegovina (in relation to which the EU initially deployed some 7,000 troops, although the strength has subsequently been limited to roughly 600), using NATO assets as an operational headquarter, two naval operations, one of which aims to combat piracy off the coast of Somalia and which involves both ships and maritime patrol aircraft using a national operational headquarters (EU NAVFOR Atalanta), and the other having as its objective countering the smuggling and trafficking of migrants in southern Mediterranean, training of the Libyan Coast Guard and Navy and contributing to the implementation of a UN arms embargo, also using a national operational headquarters (EU NAVFOR MED Sophia). There are also military missions which contribute to the training and assisting of Somali, Niger, Mali and Central African Republic security forces.97 As an aside, it is interesting to note that many of these operations have been authorised by the United Nations Security Council. These missions are performed using the capabilities made available by the Member States (Article 42(3) TEU). More generally, the

94 For an example see Council Decision 2010/199/CFSP of 22 March 2010 on the signing and conclusion of an agreement with Montenegro on the participation of Montenegro in the Atalanta naval operation off the Somali coast (see below), [2010] OJ L88/1. 95 For an overview of relevant bodies see, eg CSDP Structure, Instruments and Agencies, 8 July 2016, https:// eeas.europa.eu/topics/common-security-and-defence-policy-csdp/5392/csdp-structure-instruments-andagencies_en (accessed on 17 July 2017). On developments foreseen see the Concept Note on Operational Planning and Conduct Capabilities for CSDP Missions and Operations, approved by the Council on 6 March 2017, Council doc 6881/17 of 6 March 2017. 96 A detailed account of the early operations is provided by Naert, n 4 above, 97 et seq. See also Piris, n 6 above, 268–73. Concerning the financing of military operations see Council Decision (CFSP) 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP, [2015] OJ L84/39. 97 An account of each military and civilian operation is given in Common Security and Defence Policy of the European Union: Missions and Operations, Annual Report 2016 (Brussels, European Union External Action Service, 2017).

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latter have undertaken to progressively improve their military capabilities. The European Defence Agency, headed by the Foreign Affairs Representative, plays a guiding role in this respect, identifying operational requirements, contributing to the identification of measures needed to strengthen the industrial and technological base of the defence sector, and participating in the definition of a European capabilities and armaments policy. The military operations have not, however, involved the use of battle groups, which are rapid response instruments consisting of a multinational force made available on a rotation basis by Member States but which have never been deployed in actual practice.98 While the operations referred to above have been of a predominantly peacekeeping and crisis management character, the capacities and willingness of the EU to engage in military missions of an enforcement character seems to be much more limited. This was demonstrated by the air and naval operations undertaken to protect the civilian population in Libya and (although this was not the stated aim) to oust the Kaddafi regime. These operations were first undertaken by some Member States (France and the UK in particular) and then handed over to NATO, not the EU.99 Perhaps with the specific character of the security and defence policy of certain M ember States in mind, the possibility of entrusting tasks to a smaller group of Member States has been foreseen (Article 42(5) TEU). The difference between this option, at the instigation of the Council, and the mechanism for so-called ‘permanent structured cooperation’ (Article 42(6) TEU), which is initiated by those Member States whose military capabilities fulfil stricter criteria and which have made more binding commitments to one another in the area of defence, remains to be seen. It is interesting to note that the procedure for such cooperation appears to have been de-coupled from the general mechanism of enhanced cooperation (which applied specifically to the CFSP, although not to matters with defence implications, prior to the entry into force of the Treaty of Lisbon).100 The Commission is thus excluded from the procedure, although the Foreign Affairs Representative is consulted before a decision establishing permanent structured cooperation is taken. In June 2017, the European Council decided ‘to launch an inclusive and ambitious Permanent Structured Cooperation (PESCO)’, envisaging a common list of criteria and binding commitments to be drawn up by Member States within three months.101 Further elements of the new common defence policy are evident in two solidarity obligations introduced by the Treaty of Lisbon. First, according to Article 42(7) TEU, if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance ‘by all the means in their power’. This clause resembles the defence commitment described as the principal purpose of the NATO Alliance, but the wording seems to go somewhat further in that it omits the reserve expressed in Article 5 of the North Atlantic Treaty according to which each of the allies will take ‘such action as it deems necessary’. On the other hand, Article 42(7) itself contains

98 See, eg European Commission, Questions and Answers: The Future of European Defence, 7 June 2017, www.europa.eu/rapid/press-release_MEMO-17-1517_en.htm (accessed on 17 July 2017). 99 Operation Unified Protector, which involved more than 250 aircraft and over 20 naval vessels began in March and ended in October 2011, www.nato.int/cps/en/natolive/71679.htm. 100 On enhanced cooperation, see ch 8(III) above. 101 European Council conclusions on security and defence of 22 June 2017, https://www.consilium.europa.eu/ en/press/press-releases/2017/06/23/euco-conclusions/, accessed on 9 September 2017.

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a without prejudice clause relating to the ‘specific character of the security and defence policy of certain Member States’ (which seems to be based on the specific concerns of those Member States which traditionally follow a policy of neutrality)102 and also provides that the solidarity clause shall be consistent with NATO commitments. Moreover, a decision by the heads of state or government of June 2009 relating to Irish concerns about the defence implications of the Treaty of Lisbon, and an Irish declaration associated with Ireland’s ratification of the Treaty, cast some doubts not only on what precise obligations Ireland has undertaken but also on the meaning of the military solidarity clause as such.103 The legal situation is complicated by the existence of the second, separate solidarity clause in the TFEU concerning terrorist attacks and natural or man-made disasters. According to Article 222(2) TFEU, should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States ‘shall assist it at the request of its political authorities’. According to Article 222(1), the Union shall in such a situation ‘mobilise all the instruments at its disposal, including the military resources made available by the Member States’. Decisions on arrangements for implementing the solidarity clause shall be taken by the Council acting on a joint proposal by the Commission and the Foreign Affairs Representative and, where a decision has defence implications, the decision shall be taken in accordance with Article 31(1) TEU (which, as part of the CFSP, provides for unanimity and excludes the adoption of legislative acts). The European Parliament shall, apparently in all cases, be informed. It nevertheless remains remarkable that these provisions appear in the TFEU (corresponding to the supranational TEC and part of the former First Pillar) and not in the TEU. That said, and despite the clearly terrorist nature of the triggering event, it was the TEU solidarity clause that was invoked in 2015, following the attacks in Paris on 13 November of that year. Several Member States provided aid and assistance to France, partly to enable France to redeploy its forces stationed in conflict and crisis areas elsewhere.104 In conclusion, it is not easy to see the precise content of the notions of common defence policy, common defence, mutual defence (the military solidarity clause) and terrorist attack (the TFEU solidarity clause), or the relationship between these concepts. What is clear is that what the Treaty terms a ‘common defence’ is not yet in place. What is more, the lack of judicial review in this field, with the possible exception of the TFEU solidarity clause,105 makes it likely that any development towards a common defence in the form of a mutual defence alliance will only to a limited extent be determined by the wording of the TEU provisions in question. That said, as this edition goes to print, there is an enhanced focus on a common European defence policy, with a number of decisions and initiatives relating to the permanent structured cooperation referred to in Article 42(6) TEU, enhancing capabilities

102

Piris, n 6 above, 275; Naert, n 4 above, 227–28. Piris, n 6 above, 275 states categorically that the military solidarity clause is of symbolic and political importance but ‘does not amount to a mutual defence clause’. See also Naert, n 4 above, 228–30. On Ireland, see also ch 8(II) above. 104 See, eg European Council Briefing provided by the European Parliament, Activation of Article 42(7) TEU: France’s request for assistance and Member States’ responses (European Parliamentary Research Service, April 2016). 105 Art 275 TFEU excludes most acts adopted on the basis of the CFSP from judicial review but acts adopted on the basis of Art 222 TFEU are not CFSP decisions, save perhaps those having defence implications (for which, as was noted above, there is a reference to Art 31(1) TEU, which is a CFSP provision). 103

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and coordination of armaments production, establishment of a European Defence Fund to support research and development and acquisition, activation of the largely dormant battle groups and, as one option, moving towards a common European defence closer to a military alliance.106 Thus, as is often the case with the integration process, general political and security developments, including the common perception of external threats in the face of a Russian military build-up and Russian armed attacks against Ukraine, but also the need to achieve efficiency gains in terms of military spending and capabilities, have triggered movement in the direction of a European policy for security and defence and, just possibly, a true common defence.

106 See the European Defence Action Plan presented by the Commission in November 2016, COM(2016) 950 final of 30 November 2016; Reflection Paper on the Future of European Defence presented by the Commission on 7 June 2017 (Brussels, European Commission, 2017).

16 Covenants of No Strength to Secure A Man At All? Issues of Enforcement and Control I. Introduction In his Leviathan, Thomas Hobbes argued that ‘[c]ovenants, without the sword, are but words, and of no strength to secure a man at all’.1 The EU has been able not only to eliminate the use of the ‘sword’ in relations between the Member States but also to establish in its place a framework for control that ensures by and large the fulfilment of the ‘covenants’ adopted. As was underlined in chapter two in particular, the legal control of both Union and national decision making is one of the main factors distinguishing the EU from intergovernmental organisations. The jurisdiction and powers of the EU courts, including national courts, and the legal remedies available are quite without parallel in any intergovernmental organisation in Europe or beyond.2 We have insisted throughout this work on the fact that the EU is characterised by multilevel governance in a highly decentralised system where the main responsibility for applying and implementing legal acts rests with the Member States, including their courts and authorities. In fact, the EU and the national legal orders, including their judicial systems, can be seen to have become so intertwined that one can speak of a single legal system. Yet the discussion in this next to final chapter retains a strong sense of the more traditional EU/Member State dichotomy. When it comes to enforcement, all levels of action are scrutinised, but it is the Member States as such which, in the final instance, hold or are held to account.

1 T Hobbes, Leviathan, or the Matter, Forme & Power of a Common-Wealth Ecclesiasticall and Civill, edited by CB Macpherson (London, Penguin Classics, 1985; first published in 1651) 223. 2 Some elements of the EU system exist albeit in a more limited form in some of the regional or sub-regional integration organisations in Latin America and Africa. On judicial bodies within such organisations, see R M ackenzie et al, The Manual on International Courts and Tribunals, 2nd edn (Oxford, Oxford University Press, 2010) 278 et seq. On regional integration processes in general see A Ott and E Vos (eds), Fifty Years of European Integration: Foundations and Perspectives (The Hague, TMV Asser Press, 2009) 333 et seq (articles by E Best, S Rojas Arroyo and AS Roth, F Peña, AP Van Der Mei and A Petchsiri).

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II. Control of Union Institutions and Bodies Before examining the judicial system set up under the Treaties, two aspects of the broader framework for control deserve mention: the political control exercised by the European Parliament and, in particular, the function of the European Ombudsman, and the financial control exercised by the Court of Auditors. The discussion in chapter seven above tracked the rise of the European Parliament as an institution and the increasing relevance of the political control thereby exercised, in particular over the Commission. The right to petition the European Parliament, enjoyed by Union citizens and all other persons residing in the Union, is one element of this control.3 In cases of maladministration or illegality, the individual may also have recourse to the European Ombudsman. Needless to say, private persons, non-governmental organisations and interest groups may also turn to the Parliament, including its political parties and individual members, through more informal channels.4 While the European Parliament is a predominantly political institution, the Ombudsman, elected by the Parliament, is a special body of administrative control mirroring the appearance of national ombudsmen in the period following World War II.5 The competence of the European Ombudsman is limited to actors at the Union level, but he cooperates closely with national ombudsmen in the context of the European Network of Ombudsmen and annual joint seminars.6 According to Article 228 TFEU, the task of the European Ombudsman is to investigate alleged instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Union courts acting in their judicial role. In addition to acting on complaints submitted by Union citizens or any other person residing in the Union, the Ombudsman may also take up issues on his own initiative (ex officio).7 While opinions expressed by the Ombudsman in reports submitted to the actor under investigation and to the European Parliament are not without effect (there are numerous examples of the Commission or other institutions changing their practice or reconsidering 3 On the right of petition see Arts 24 and 227 TFEU and Art 44 of the Charter of Fundamental Rights and, eg Case C-261/13 P Schönberger v Parliament EU:C:2014:2423, already referred to in ch 9(IV), at n 50, where the ECJ held that the right of petition ‘is a fundamental right’ (para 14) and an ‘instrument of citizen participation in the democratic life of the European Union’ (para 17) and that a decision of the Parliament not to consider a petition may be amenable to judicial review whereas the reverse is true with respect to a decision as to how the petition which has been accepted for consideration should be dealt with (paras 22–24). 4 Such contacts, including what is often called lobbying, have become more and more frequent, see, eg R Corbett, F Jacobs and M Shackleton (eds), The European Parliament, 9th edn (London, John Harper Publishing, 2016) chs 15–16. 5 Although the first Ombudsman institutions in the modern sense were established in Sweden in 1809 and in Finland in 1919, see, eg A Rosas, Förvaltningsklagan [Citizens Complaints] (Turku/Åbo, Abo Akademi, 1980) passim. On the office of the European Ombudsman in general, see, eg The European Ombudsman: Origins, Establishment, Evolution (Luxembourg, Office for Official Publications of the European Communities, 2005). See also European Ombudsman, Annual Report 2016 (Strasbourg, 2017), www.ombudsman.europa.eu. 6 See, eg Annual Report 2016, n 5 above, 26. 7 The ECJ has held that the way in which a complaint has been handled by the Ombudsman may, in principle, lead to non-contractual liability, Case C-234/02 P Ombudsman v Lamberts EU:C:2004:174, para 49. In a recent judgment, the Court ordered the Ombudsman to pay a claimant compensation for non-material damage (EUR 7,000), Case C-337/15 P Ombudsman v Staelen EU:C:2017:256.

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a decision in accordance with the recommendations of the Ombudsman), it is submitted that the lack of more robust powers such as the right to initiate disciplinary or judicial proceedings hampers somewhat the impact of his decisions.8 That said, the accessibility of the procedure, which entails no cost for the complainant, is certainly not to be underestimated.9 As to budgetary and financial control, the Commission submits the annual accounts, a financial statement on the assets and liabilities of the Union, and an evaluation report to the European Parliament and to the Council (Articles 318–19 TFEU). The Parliament, acting upon a recommendation from the Council, gives a discharge to the Commission in respect of the implementation of the budget. Whether in connection with the discharge or otherwise, the Parliament may make observations, and the Commission has an obligation to report on the measures taken in the light of such observations and any comments adopted by the Council. This control system is further served by the Court of Auditors, whose members are completely independent (Articles 285–87 TFEU). The Court of Auditors examines, on the basis of records and, where appropriate, spot audits, the accounts of all revenue and expenditure of the Union, including, as a general rule, all bodies, offices and agencies set up by the Union, in order to verify that all revenue has been received and all expenditure incurred ‘in a lawful and regular manner’, and that the financial management of the Union budget has been sound (Article 287(2) TFEU). The statement of assurance it issues to the Parliament and the Council as to the reliability of the accounts and the legality and regularity of the underlying transactions is also published in the OJ. Turning now to the system of judicial control, the first and most important point to note is how much more streamlined the account will be since the entry into force of the Treaty of Lisbon.10 The structural simplification, abolishing the pillars and creating one single legal entity, is a wholly welcome development from a constitutional point of view. The task of the Court continues to be ensuring that ‘in the interpretation and application of the Treaties the law is observed’ (Article 19(1) TEU),11 and the rule is now that the jurisdiction of the Court extends to the entire body of Union law and action by all the various actors in this multilevel system.

8 In the Member States, the most far-reaching powers belong to the Finnish and Swedish Ombudsmen, whose powers include the right to instigate criminal procedures against civil servants (see, eg Section 110 of the Constitution of Finland of 2000). 9 In 2016 the Ombudsman handled 1,880 registered complaints and registered that 15,797 citizens had been helped in one way or another. In most cases, the Ombudsman was able to provide some help to the complainant without opening a formal inquiry, including transferring the complaint to a national or regional ombudsman in one of the Member States. See Annual Report 2016, n 5 above, 30. 10 On the judicial system prior to the entry into force of the Treaty of Lisbon, see, eg K Lenaerts, ‘La systémique des voies de recours dans l’ordre juridique de l’Union européenne’ in Mélanges en homage à Georges Vandersanden: Promenades au sein du droit européen (Brussels, Bruylant, 2008) 257. On the changes brought about by the Treaty of Lisbon see, eg R Barents, ‘The Court of Justice in the Renewed European Treaties’ in Ott and Vos, n 2 above, 57; P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012). 11 An early draft of the Constitutional Treaty of 2004 had reformulated thus: the Court ‘shall ensure respect for the law in the interpretation and application of the Constitution’ (Art 28), Draft Treaty establishing a Constitution for Europe, adopted by the European Convention and submitted to the President of the European Council, 18 July 2003 (Office for Official Publications of the European Communities, 2003) 28. Such an amendment could (inadvertently or otherwise) have restricted the ability of the Courts to uphold the rule of law.

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The restrictions in the former Articles 35 and 68 TEU no longer find a place in the constitutional order of the Union and the increased ability to ensure both the protection of the rights of individuals and the uniform application of the rules pertaining to the area of freedom, security and justice adds significantly to the coherence of the legal protection offered by the Union. Since the expiry of the exception to this rule which related to the transitional period of a maximum of five years applicable to the former Third Pillar (police cooperation and judicial cooperation in criminal matters),12 the only exception relates to operations carried out by the national law enforcement services, and the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (Article 276 TFEU) but this exclusion of the jurisdiction of the Court seems to remain largely symbolic. In a field so closely linked to fundamental rights, the responsibility now lies with the Court to effectively manage the increased workload this extended jurisdiction entails, in particular in light of the enjoinder in Article 267(4) TFEU to act ‘without delay’ when a question referred to the ECJ from a national court concerns a person in custody.13 In this new single institutional structure, the Common Foreign and Security Policy (CFSP) now more than ever constitutes an ‘intergovernmental’ anomaly. According to Article 24(1) TEU and Article 275 TFEU, the Union Courts shall have no jurisdiction with respect to the Treaty provisions relating to the CFSP, nor with respect to acts adopted on the basis of those provisions. As noted in section II of chapter fifteen, there are some important qualifications to this exception. First, the Court will have jurisdiction to monitor that the use of CFSP powers does not impinge upon the application of the normal Union procedures and powers, and vice versa (Article 40 TEU); the competence to prevent inappropriate recourse to the more intergovernmental legal bases is not new, but this control of the division of competences will now work both ways.14 Secondly, in proceedings brought by private parties, whether under Article 263(4) TFEU or in situations where the national judge has doubts concerning the validity of a legal act and refers the question to the ECJ via the procedure provided for in Article 267 TFEU, the Court will review the legality of CFSP decisions ‘providing for restrictive measures against natural or legal persons’.15 Third, in view of recent ECJ case law, the CFSP exclusion of the Court’s jurisdiction should in general be given a restrictive interpretation.16 This is in line with a tendency in the case law of the ECJ preceding the entry into force of the Treaty to Lisbon to insist on the importance 12

Art 10 of Protocol No 36 on Transitional Provisions annexed to the TEU and the TFEU. See also ch 12(I). 2016, the highest number of new cases (76 out of 680) concerned the area of freedom, security and justice, see Court of Justice of the European Union, Annual Report 2016: Judicial Activity (Luxembourg, 2017) 89. On the urgent procedure regulated in Arts 107–114 of the Rules of Procedure of the Court, [2012] OJ L265, see A Rosas, ‘Justice in Haste, Justice Denied? The European Court of Justice and the Area of Freedom, Security and Justice’ (2008–09) 11 The Cambridge Yearbook of European Legal Studies 1; A Tizzano and B Gencarelli, ‘La procédure préjudicielle d’urgence devant la Cour de justice de l’Union européenne’ in Chemins d’Europe: Mélanges en l’honneur de Jean Paul Jacqué (Paris, Dalloz, 2010) 639. 14 See A Rosas, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’ in AM Salinas de Frías, KLH Samuel and ND White (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 83 at 92–93. See also ch 15(II) and (III) above. 15 In the case of actions for annulment under Article 263 TFEU, the Court’s jurisdiction follows directly from Article 275(2) TFEU. In Case C-72/15 Rosneft EU:C:2017:236, the ECJ held that validity control of restrictive measures is possible also in the context of preliminary ruling procedures under Art 267 TFEU. 16 Apart from Case C-72/15 Rosneft, n 15 above, see notably Case C-439/13 P Elitaliana v Eulex Kosovo EU:C:2015:753; Case C-455/14 P H v Council EU:C:2016:569. See further ch 15(II) at nn 25–26. 13 In

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of judicial review in relation to restrictive measures taken against individuals in respect of whom allegations of terrorism have been made.17 The question of whom the Court may control is just as important as what falls under its jurisdiction, and again the Treaty of Lisbon has heralded a new order in this respect. Significantly, the European Council, which now has the power to adopt decisions, is thereby brought under the watchful eye of the Court, and the situation as regards the multifarious ‘other’ bodies, offices and agencies of the Union (see section III of chapter seven above) has also been aligned. These actors are expressly referred to in Articles 263 and 265 TFEU (actions for annulment and failure to act) and Article 267 TFEU (preliminary ruling procedure). Before examining the actions by which these actors are put under the judicial control of the Court, a brief comment on the ‘controller’ appears salient, particularly if we are setting this institution up as the constitutional guardian of the Union legal order.18 As noted above, the task of the Court is to ensure that the law is observed; fulfilling that role presupposes, in a somewhat circular fashion, that the other stakeholders perceive this to be the case. Key to the credibility of a judicial instance is therefore its independence; all parties must believe that their arguments may prevail. In contrast to the system in most Member States, judicial tenure is not for life. The mandate of six years is in fact relatively short. Reappointment is possible, but it cannot be taken for granted and has to a large extent depended on the will of the national government.19 However, the secrecy of deliberations and the requirement to render a single judgment which all sitting members sign mitigates to some extent the brevity of tenure and the risk that the uncertainty as to reappointment may incite a member to take the particular interests of ‘his’ government into account, it being assumed that, since no judge need fear recrimination for not dissenting, he will be at liberty to come to the conclusion which he feels is right rather than be subject to external pressure (overt or otherwise).20 17 See notably Case C-354/04 P Gestoras Pro Amnistía and Others v Council EU:C:2007:115, para 53 and Case C-355/04 P Segi and Others v Council EU:C:2007:116, para 54, where the ECJ held that a Third Pillar decision which was in principle not capable of being the subject of a reference under the preliminary ruling procedure could give rise to a request for a preliminary ruling if it was ‘intended to produce legal effects in relation to third parties’. 18 On the Court as a judicial institution, see, eg O Wiklund (ed), The European Court of Justice and the Use of Judicial Discretion (The Hague, Kluwer Law International, 2003); A Arnull, The European Union and its Court of Justice (Oxford, Oxford University Press, 2006); Cardonnel, Rosas and Wahl, n 10 above; A Rosas, E Levits and Y Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law (The Hague, Asser Press, 2013). 19 According to Art 253(1) TFEU, the Judges and the Advocates General shall be appointed by common accord of the governments of the Member States. According to Art 19(2) TEU, the ECJ shall consist of one judge from each Member State. The General Court may consist of more than one judge for each Member state; when this edition goes to print, the General Court consists of 46 judges (the number will probably increase to 54 in 2019). 20 See Arts 35 and 36 of the Statute of the Court, n 24 below, and Arts 32 and 87 of the Rules of Procedure of the ECJ, n 13 above, which refer, respectively, to the secrecy of the deliberations of the Court and the information which a judgment should contain. Moreover, the Statute (Art 18(4)) and Rules of Procedure of the ECJ (Arts 27–31) exclude the taking into account of the nationality of a judge in determining the formations of the Court for a given case. For an analysis of the issue of ‘national’ judges see, eg C Tomuschat, ‘National Representation of Judges and Legitimacy of International Jurisdictions: Lessons from the ICJ to ECJ?’ in I Pernice, J Kokott and C Saunders (eds), The Future of the European Judicial System in a Comparative Perspective (Baden-Baden, Nomos Verlag, 2006) 183, 186–87. On the independence of the Court, see also A Rosas, ‘Separation of Powers in the European Union’ (2007) 41 The International Lawyer 1033, 1043–46; J Malenovsky, ‘Les éléments constitutifs du mandat des juges de la Cour de justice à l’épreuve du temps: l’iceberg commence à fondre’ (2011) XVI Il Diritto dell’Unione Europea 801.

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Of course, this has a noticeable effect on the style of the judgments handed down by the Court, which necessarily tread a fine line in expressing neither too much nor too little. In this respect, the Opinions of the Advocates General provide a noteworthy contrast; an individual writing under his own name often presents a fuller account of the considerations lying behind a case. Interestingly, despite the fact that criticism of the independence of the Court is rare (to the contrary, some of the accusations of ‘judicial activism’ seem rather to reflect a view that the Court is too independent),21 the Treaty of Lisbon nevertheless introduced a mechanism to strengthen the institution in this respect, perhaps further underlining the constitutional nature of the ECJ (Article 255 TFEU). Henceforth, the persons nominated for appointment will be subject to an opinion on their suitability to perform the office of judge or Advocate General rendered by a panel comprising former members of the ECJ, members of national supreme courts or lawyers of recognised competence.22 Against this background, we will now turn our attention back to actions brought directly before the Union Courts (Articles 263 and 265 TFEU). A distinction must be made between actions brought by Union institutions or Member States and those brought by individuals, whether natural or legal persons. This distinction is the first example of the more traditional approach referred to above. The Union’s principal interlocutors, when it comes to matters of enforcement, are the institutions themselves and the Member States as such. The possibility for natural and legal persons to challenge acts of the Union directly before the General Court continues to be tightly controlled. However, a constitutional order without a system of judicial protection for individuals would not be worthy of that name, and the options open to this category of persons will be considered below. But let us first look at the case of so-called ‘privileged applicants’. Union institutions and Member States enjoy a general right to bring actions for annulment against legislative acts, other acts of the Council, of the Commission and of the European Central Bank, as well as acts of the European Parliament, of the European Council and of other bodies, offices or agencies intended to produce legal effects vis-à-vis third parties (Article 263(1) TFEU). We say Union institutions, but in fact this unqualified right belongs only to the European Parliament, the Council and the Commission (Article 263(2) TFEU). In addition, the Court of Auditors, the European Central Bank or the Committee of the Regions may bring an action for the purposes of protecting its prerogatives (Article 263(3) TFEU). To the extent that an action for failure to act must be in relation to an act that, if it had been taken, could have been challenged pursuant to Article 263 TFEU, the scope of these two provisions is, notwithstanding their substantially different wording, in fact analogous.23

21

Rosas, n 20 above, 1045. the Council Decision of 25 February 2010 relating to the operating rules of the panel provided for in Art 255 of the Treaty on the Functioning of the European Union, [2010] OJ L50/18. The first panel appointed in 2010 consists of four national judges, one former judge of the ECJ and the General Court, respectively, and one member designated by the European Parliament. The current panel consist of five national judges, one former judge of the ECJ and one member designated by the Parliament. 23 On actions against failure to act see, eg HG Schermers and DF Waelbroeck, Judicial Protection in the European Union, 6th edn (The Hague, Kluwer Law International, 2001) 463 et seq. 22 See

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Actions for annulment and actions for failure to act are as a general rule brought before the General Court (previously the Court of First Instance). The Statute of the Court of Justice reserves certain cases for the jurisdiction of the ECJ; most actions brought by Member States against legislative or other acts of the European Parliament and/or the Council and most inter-institutional cases are brought directly before the ECJ.24 These direct actions are the most obvious expression of the constitutional character of the Union legal order and the nature of the ECJ as a constitutional court.25 Moreover, given the sometimes intangible nature of the division of competences in the Union, the possibility for a Member State or a Union institution to challenge the legality of a legislative or other act is not devoid of practical relevance. There is in fact a number of cases where the Court has annulled an act of the institutions.26 These acts were annulled for want of a legal basis or use of the wrong legal basis. Despite the more express division of competence in the Treaty of Lisbon, it is unlikely that the incidence of this type of action will be substantially reduced in the future. And, while all of the examples given relate to actions brought by a Union institution and not by a Member State, it is not appropriate to conclude that actions brought by the latter are either non-existent or never successful. One of the best-known cases leading to the annulment of a legislative act was brought by Germany and resulted in the annulment of a directive relating to the advertising and sponsorship of tobacco products.27 Turning back to the circumstances in which natural or legal persons may bring an action directly before the General Court (for this is, in all such cases, where any action will be heard),28 in addition to their rather limited ability (as non-privileged applicants) to bring actions for annulment or failure to act, individuals may initiate an action against the Union for compensation in damages. The legal protection on offer to private parties is however completed by the system of preliminary rulings under which, in a case before a national court of a Member State, the ECJ may be called upon to rule on the interpretation or validity of an act of Union law (Article 267 TFEU).29 As will be explained below, the ECJ has repeatedly stressed the complementary nature of Article 263 and Article 267 proceedings; only an overall assessment can reveal whether the right to effective judicial protection, as guaranteed by Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, is being sufficiently guaranteed.30 24 Art 256(1) TFEU and Art 51 of the Statute of the Court of Justice of the European Union (Protocol No 3 annexed to the TEU and the TFEU). 25 On the role of the ECJ as a constitutional court see, eg Pernice, Kokott and Saunders, n 20, passim; M Claes, The National Court’s Mandate in the European Constitution (Oxford, Hart Publishing, 2006) 399 et seq. 26 Acts annulled include a series of Council Decisions in the field of police and judicial cooperation concerning the automated data exchange (C-14/15, EU:C:2016:715), a Council Decision on the signature and conclusion of the Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates (C-263/14, EU:C:2016:435), two Regulations concerning the common organisation of the markets in agricultural products (C-113/14, EU:C:2016:635), a Commission Decision relating to the Memorandum of Understanding on a Swiss financial contribution (C-660/13, EU:C:2016:616), and a Commission Delegated Regulation concerning the Regulation establishing the Connecting Europe Facility (C-286/14, EU:C:2016:183). 27 Case C-376/98 Germany v Parliament and Council EU:C:2000:544. But see Case C-380/03 Germany v Parliament and Council EU:C:2006:772, where the action against a new tobacco directive was dismissed. 28 Not counting staff cases, which were first brought before the Civil Service Tribunal as long as it existed. 29 See, eg K Lenaerts, ‘Le Traité de Lisbonne et la protection juridictionnelle des particuliers en droit de l’Union’ (2009) Cahiers de droit européen 711. 30 For a recent example see Case C-72/15 Rosneft EU:C:2017:236, paras 64–81, with references to earlier case law.

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Proceedings for the annulment of an act of the Union institutions, bodies, offices or agencies (and therefore any action for failure by the same to act) may be brought by any natural or legal person if the act is addressed to that person or is of direct and individual concern to him. Interpreting this provision in 1963, the ECJ set an extremely high t hreshold, in particular as regards what would qualify as ‘individual concern’ (the measure in question must affect specific natural or legal persons by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of the measure).31 The requirement that an act has to be of ‘direct and individual concern’ to the natural or legal person if it is not addressed to him has therefore proved to be a significant limitation on the right to instigate proceedings against acts of a general nature, in particular acts of a legislative nature. In a landmark judgment in 2002, and contrary to calls from many sides to reconsider the so-called Plaumann test, the ECJ refused to engage in what it considered would have been an amendment of the Treaties and thus beyond its competence, and maintained its long-standing (strict) interpretation.32 This approach has been criticised in legal literature.33 We will limit ourselves to noting simply that some of the criticism does not seem to have taken into account that in certain Member States, especially those which do not have constitutional courts, it would be almost unthinkable to allow direct actions by individuals seeking the annulment of legislative and other similar acts of general application.34 The matter was therefore debated at length by the Convention charged with preparing the Constitutional Treaty and the solution proposed for that text survives in the Treaty of Lisbon. A tentative broadening of the wording of ex Article 230(4) TEC is the result; the traditional formula is maintained, but what is now Article 263(4) TFEU has been complemented by the provision that an action for annulment may also be brought by a natural or legal person against ‘a regulatory act’ which does not entail implementing measures and which is of direct (but not any longer also individual) concern to him. To take the final element first, if implementing measures are required, proceedings should be instigated against them rather than against the original act. However, that apparently simple test has proved tricky in practice and a number of examples from the case law illustrate that it is not always easy to assess whether a regulatory act entails implementing measures.35 31

Case 25/62 Plaumann v Commission EU:C:1963:17, para 36. C-50/00 Unión de Pequeños Agricultores v Council EU:C:2002:462. For an argument in favour of relaxing the criteria see the Opinion of 21 March 2002 of Advocate General Jacobs in that case and, in part inspired by that Opinion, the judgment of the then Court of First Instance in Case T-177/01 Jégo-Quéré v Commission EU:C:2002:352 (in line with the ruling in Case C-50/00 Unión de Pequeños Agricultores, this judgment was s ubsequently quashed by the ECJ, Case C-263/02 P Commission v Jégo-Quéré EU:C:2004:210). 33 For a discussion see, eg A Ward, Judicial Review and the Rights of Private Parties in EC Law (Oxford, Oxford University Press, 2000) 213–35; Schermers and Waelbroeck, n 23 above, 428–59; A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2010) 366–67, 370–73. 34 Anathema to British legal tradition, challenges to Acts of Parliament are not self-evident in a number of other jurisdictions. To take the example of Finland, according to Art 106 of the Constitution of Finland of 2000, a court of law shall give primacy to the Constitution if, in a matter being tried by it, the application of an Act of Parliament ‘would be in evident conflict with the Constitution’. This ad hoc control does not entail the annulment of the Act, though. Similar systems exist in eg Denmark, the Netherlands and Sweden. 35 See, eg Case C-274/12 P Telefónica v Commission EU:C:2013:852, paras 30–31; Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission EU:C:2015:284, paras 32–42; Case C-553/14 P Kyocera Mita Europe v Commission EU:C:2015:805, paras 44–56. 32 Case

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On the continued reference to direct (without individual) concern, the matter is even more complicated. While the interpretation of the criterion of direct concern can probably rely on extensive existing case law, the notion of regulatory acts has required fresh interpretation by the General Court and in the last instance the ECJ. It should be noted that the provisions of the TFEU dealing with the adoption of legal acts do not use this terminology but make a distinction between legislative acts (Article 289 TFEU), delegated acts (Article 290 TFEU) and implementing acts (Article 291 TFEU).36 The Court has confirmed that while the regulatory acts referred to in Article 263(4) TFEU are of general application, they are not legislative acts.37 Given the limitations on bringing a matter directly before the General Court, an important ingredient of judicial protection is the right to bring actions before the national courts of the Member States. Indeed, the existence of this route in part founded the rejection by the ECJ of the suggestion that the right of access to justice was imperilled by the restrictive interpretation of the condition in Article 263(4) TFEU. The combination of direct actions before the Union Courts and the right to turn to the national judiciary, who may engage in interpretative dialogue with the ECJ via Article 267 TFEU, constitutes ‘a complete system’ of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions.38 The decentralised nature of judicial protection and the role of the national judiciary in this respect is emphasised in Article 19(1) TEU, as amended by the Treaty of Lisbon. According to this provision, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.39 We will come back to this right to effective legal protection, which is also expressed in Article 47 of the Charter of Fundamental Rights as the right to an effective remedy and to a fair trial, in section III below. Suffice it to note here that the right to contest the validity of Union legal acts before a national court does not imply that the national court may itself decide that the act is invalid. Article 277 TFEU governs this plea of illegality and places the matter squarely within the competence of the ECJ. Thus, if the national court has doubts as to the legality of an act of the Union, a ruling on its (in)validity must be sought from the ECJ in order to be able to set the act aside.40 This monopoly on declarations of invalidity, again indicative of the constitutional attributes of the ECJ and central to the uniform application of Union law, is without prejudice to the right of the national court to suspend, as a matter of interim relief, the application of the contested act until the ECJ has given a ruling.41

36

See ch 5(V) above. eg Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council EU:C:2013:625, paras 45–62. 38 Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament EU:C:1986:166, para 23. For a recent example, see Case C-72/15 Rosneft, n 30 above, paras 64–81. 39 Compare Art 220 TEC, which contained a single paragraph tasking the Court with ensuring that, in the interpretation and application of the Treaty, the law was observed. On the role of national courts generally see Claes, n 25 above, passim, and section III below. 40 Case 314/86 Foto-Frost EU:C:1988:471. See also Schermers and Waelbroeck, n 23 above, 493–97. 41 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest EU:C:1991:65, paras 16–21. See also Case C-456/93 Atlanta Fruchthandelsgesellschaft EU:C:1995:206, para 22; Case C-68/95 T. Port EU:C:1996:452, para 49. 37 See,

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The link between these various legal courses of action and how, together, they form a whole is demonstrated by the fact that one may exclude the other: if the individual had the possibility to challenge the legality of the act in a direct action before the General Court (because he fulfils the criteria for standing in Article 263(4) TFEU discussed above) and did not pursue this avenue, he may (if it is evident that he fulfilled those criteria) be timebarred from raising the question before the national judge.42 And if, in the context of a preliminary ruling, the ECJ finds that a Union act is invalid, the competent Union institutions are required to take the necessary measures to remedy that illegality, mirroring the obligations arising as a result of a successful action for annulment.43 The protection offered to private parties with regard to action by the Union is completed by the possibility of making a claim for damages under Articles 268 and 340 TFEU. Contractual liability is governed by the law applicable to the contract in question and will not normally come before the ECJ. Non-contractual liability for ‘damage caused by its institutions or by its servants in the performance of their duties’ (Article 340(2) TFEU), on the other hand, is a matter for the General Court. In an example of one of the many bridges from national law to the Union constitutional order, the rules governing non-contractual liability are based on ‘general principles common to the laws of the Member States’.44 The Union courts have established rather strict substantive conditions for noncontractual liability; in all cases the unlawfulness of the conduct, the fact of damage and the existence of a causal link between that conduct and the damage complained of must be established and, in the case of legislative measures which are the result of choices of economic policy, a sufficiently serious breach of a superior rule of law for the protection of individuals must also be proved.45 It would appear, moreover, that the ECJ has ruled out the existence of a parallel system of liability on account of lawful activities (no-fault liability), at least as far as legislative activity is concerned.46 This situation should be distinguished from the possibility of restitution if the Union has been unjustly enriched, even if no unlawful conduct can be attributed to a Union institution.47 Again, if a measure is found to be unlawful as a result of an action for damages, the Union institutions must, independently of

42 Case C-188/92 TWD Deggendorf EU:C:1994:90, para 23. See also Ward, n 33 above, 236–37. The time-bar does not apply if there are doubts as to whether the private party could have availed himself of Art 263(4) TFEU. For a restrictive approach to the ‘Deggendorf ’ bar to the possibility of using the preliminary ruling route see Case C-158/14 A, B, C and D EU:C:2017:202, paras 67, 69 and 70, where the Court conditions the application of the bar on a situation where an action of annulment would ‘unquestionably’ have been admissible. 43 This, according to the ECJ, constitutes an application by analogy of the rule expressed in Art 266 TFEU, which obliges an institution whose act has been declared void in an action for annulment or whose failure to act has been declared contrary to the Treaties to take the necessary measures to comply with the judgment. See, eg Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission EU:C:2007:212, para 123. 44 On the interrelation between Union law and national constitutional law, see above ch 5(III) and ch 6(II). 45 Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission, n 43 above, paras 164 and 172. For criticism of the test applied by the Court see in particular Ward, n 33 above, 309–22. 46 Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission, n 43 above, paras 161–79. The cases concerned the particular context of the World Trade Organization dispute settlement system (on the lack of direct effect of WTO rules see ch 5(IV) above, at n 31). However, the conclusion of the Court at para 179 is framed in general terms: ‘in affirming in the judgments under appeal the existence of a regime providing for non-contractual liability of the Community on account of the lawful pursuit of its activities falling within the legislative sphere, the Court of First Instance erred in law’. 47 Case C-47/07 P Masdar (UK) v Commission EU:C:2008:726, paras 44–50.

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whether the actual claim for damages is successful, take the necessary measures to remedy the illegality.48

III. The Role of Member States’ Courts and Authorities In view of the central role played by the Member States, including their courts and administrative authorities, in the application, implementation and enforcement of Union law, the legal control of their activities, including inactivity, is an important component of the EU system of enforcement. Of course, mirroring what was said in section II above regarding cases of maladministration, the national ombudsmen fulfil a similar function to their supranational counterpart in monitoring the respect by national actors of their obligations under Union law. However, it is the judicial control of the activities of the Member States with which we are concerned here. Effective judicial protection has, at least since 1986, been recognised as a general principle of Community, and then Union law.49 What is more, it is for the Member States to ensure that protection.50 Not only is this right now reaffirmed in Article 47 of the Charter of Fundamental Rights, the fact that responsibility for its respect falls to the Member States is expressly codified in Article 19(1), second paragraph, TEU. However, it continues to be the case that, in the absence of common rules, the procedural rules governing the actions which may be brought for the purposes of safeguarding the rights which an individual derives under Union law are laid down by the national legal system. In other words, the Member States must establish a system of procedures and remedies which ensures respect for the right, under Union law, to effective judicial protection.51 This issue was often referred to as the ‘procedural autonomy’ of the Member States. This expression, which is not to be found in Union primary law, may lend itself to misunderstandings as it is not a question of autonomy in the real sense of the word.52 First of all, Union law today is full of procedural rules which have to be applied at the national level and which may contain instructions on legal remedies and judicial protection (for instance, procedural rules to be found in secondary law on asylum and refugees,53 public procurement,54 48 Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission, n 43 above, para 124. 49 For an early reference to the obligation of national courts, see Case 33/76 Rewe-Zentralfinanz EU:C:1976:188, para 5. The first judgment to declare the right of access to court and judicial review a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Arts 6 and 13 of the European Convention on Human Rights was Case 222/84 Johnston EU:C:1986:206, para 18. See also Case 432/05 Unibet EU:C:2007:163; Case C-279/09 DEB EU:C:2010:811. See also Ward, n 33 above, 70. 50 See, eg Case C-432/05 Unibet, n 49 above, para 38; Case C-279/09 DEB, n 49 above. 51 Case C-432/05 Unibet, n 49 above, paras 39 and 42. For a recent example, see, eg Case C-73/16 Puškár EU:C:2017:725, paras 54–76, 87–98, with references to case law. 52 M Bobek, ‘Why There Is No Principle of “Procedural Autonomy” of the Member States’ in H-W Micklitz and B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Antwerp, Intersentia, 2012) 305. 53 See, eg Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, [2013] OJ L180/60. 54 See, eg Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, [2004] OJ L134/114, corrected by Directive 2005/75/EC, [2005] OJ L323/55.

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environmental protection55 and competition).56 These and other branches of Union law may, of course, leave a number of matters to be regulated by national law, but if Union law contains a rule of a procedural nature, it must be applied in the same manner as any other Union rule, by virtue of the principles of primacy, direct applicability and direct effect.57 Secondly, as to situations where Union law does not contain the necessary procedural rules, it is up to the national legal order to fill in the gaps. In the same way as there is an obligation to enact national rules necessary to implement legally binding Union acts of a substantive nature (see Article 291(1) TFEU), it is in fact a question of an obligation to exercise a (national) competence, in order to achieve the result, required by Union law, of effective judicial protection. In this regard, the Court traditionally requires that the national rules be no less favourable than those governing similar domestic actions (principle of equivalence) and do not render practically impossible or excessively difficult the exercise of rights deriving from Union law (principle of effectiveness). More recently, the emphasis has increasingly been on the right to effective judicial protection as guaranteed under Article 47 of the Charter of Fundamental Rights58 and those concepts of equivalence and effectiveness rather than the notion of ‘autonomy’.59 Moreover, entrusting the protection of an individual’s rights under Union law to the Member States is not simply a matter of the procedures for bringing actions and the remedies available if that action is successful. Just as important in ensuring the effectiveness of the protection enjoyed under Union law is the role of the courts and other authorities in identifying the relevant law and applying it to the situations before them. In this respect, an important question is raised in the (alas still frequent) cases where the parties do not invoke Union law despite its (sometimes manifest) relevance in a given case. Is there an obligation on the national court to raise questions of Union law on its own initiative (ex officio)? The question is not easy due to the lack of common rules on the matter and the disparity of national legal systems in this regard. In general, the guiding principles remain those of equivalence and effectiveness. Thus, if the national judge, by virtue of the principle iura novit curia, would in a comparable case under national law be obliged to raise the m atter, the principle of equivalence requires him to do the same when Union law is involved. Equivalence works both ways, so the opposite is also true: if national procedural

55 See, eg Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, [2005] OJ L124/1 and [2005] OJ L164/17. 56 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Arts 81 and 82 of the Treaty, [2003] OJ L1/1. 57 See, eg Case C-8/08 T-Mobile Netherlands EU:C:2009:343, paras 44–53. It had been argued before the Court that a question relating to the presumption of a causal connection in the context of competition law should as a procedural rule be left to national law, or that it could be applied as a substantive rule of Union law derived from the then Art 81 TEC. The Court, without ruling on whether the rule was of a substantive or procedural nature, simply held that the rule stemmed from Art 81 TEC, as interpreted by the Court, and thus formed an integral part of applicable law. See also the Opinion of Advocate General Kokott of 19 February 2009 in that case, paras 79–94. 58 See, notably Case C-279/09 DEB, n 49 above. See also S Prechal and R Widdershoven, ‘Effectiveness or Effective Judicial Protection: A Poorly Articulated Relationship’ in T Baumé et al (eds), Today’s Multi-layered Legal Order: Current Issues and Perspectives. Liber Amicorum in Honour of Arjen WH Meij (Zutphen, Uitgeverij Paris, 2011) 283. 59 See, eg Case C-73/16 Puškár, n 51 above.

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law forbids the national judge from raising points of law not invoked by the parties, he would normally also be barred from raising points of Union law.60 The situation may change if the norm under Union law is of a peremptory nature, particularly if the national court, as a matter of national procedural law, would have a right, if not an obligation, to raise a point of law on its own initiative.61 In areas such as consumer protection or competition law the ECJ has leaned towards considering that there may be an obligation to raise the point ex officio.62 Without going further into the detail of the various cases decided to date, we would suggest not only that the answer to these problems may vary depending on the area of law in question (civil, criminal or administrative), but also that they are best approached from the point of view of general principles of law, such as ultra petita (prohibition on going beyond the claims of the parties), reformatio in peius (which may constitute a bar on aggravating the situation of a private applicant)63 and res judicata (prohibition on calling into question decisions that have become definitive),64 rather than seen through the lens of a dichotomy between Union and national law. Of course, if the national court is called upon to decide on an issue of Union law, whether on its own motion or at the initiative of the parties, the system of preliminary rulings provided for in Article 267 TFEU is crucial to assisting the judge in the discharge of his duties. In this context, a distinction must be made between the application of a norm of Union law, on the one hand, and the question of its interpretation or validity, on the other. The former falls, in principle, to the national judge; Article 267 TFEU will only come into play in the latter situation. Again, a distinction must be made. If the question is one of interpretation, all national courts and tribunals according to Article 267 TFEU have the right to request that the ECJ give a preliminary ruling ‘if it considers that a decision on the question is necessary to enable it to give judgment’. Without going into what constitutes a court or tribunal here,65 it should be emphasised that the right to request a preliminary ruling constitutes a right conferred on the national court by Article 267 TFEU itself (ie this is not a matter for national procedural autonomy) such that, as long as the case is pending before it, it is this court alone, and not an appeal court, which can revoke or amend the request.66 What is more, this right is converted into an obligation if the court before which the case is pending is

60 See, eg Joined Cases C-430/93 and C-431/93 van Schijndel and van Veen EU:C:1995:441; Joined Cases C-222/08 to C-225/05 van der Weerd EU:C:2007:318. 61 Case C-2/06 Kempter EU:C:2008:78, para 45. 62 See the Opinion of Advocate General Trstenjak of 7 May 2009, para 61 with references, in Case C-227/08 Martín Martín EU:C:2009:792. 63 Case C-455/06 Heemskerk and Firma Schaap EU:C:2008:650. 64 While an analysis of the res judicata principle would go beyond the confines of this book reference is made to the following judgments of the ECJ: Case C-453/00 Kühne & Heitz EU:C:2004:17; Case C-234/04 Kapferer EU:C:2006:178; Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor EU:C:2006:586; Case C-2/06 Kempter, n 61 above. See also B Hofstötter, Non-Compliance of National Courts: Remedies in European Community Law and Beyond (The Hague, TMC Asser Press, 2005) 179; A Tizzano and B Gencarelli, ‘Union Law and Final Decisions of National Courts in the Recent Case Law of the Court of Justice’ in A Arnull et al (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 267. 65 See, eg Case C-53/03 Syfait EU:C:2005:333; Case C-210/06 Cartesio EU:C:2008:723. For a recent example, see Case C-503/15 Panicello EU:C:2017:126. See, in particular, C Naomé, Le renvoi prejudicial en droit européen: Guide pratique, 2nd edn (Bruxelles, Éditions Larcier, 2010) 94 et seq. 66 Case C-210/06 Cartesio, n 65 above, paras 88–98; Joined Cases C-188/10 and C-189/10 Abdeli and Melki EU:C:2010:363, paras 40–45; Case C-614/14 Ognyanov EU:C:2016:514, paras 14–26.

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one against whose decision there is no judicial remedy under national law (Article 267(3) TFEU). There are a limited number of circumstances defined in the case law of the ECJ in which this obligation will not crystallise; if the interpretation of Union law is clear from previous case law or if the answer is ‘so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’, then a reference is not necessary.67 If, on the other hand, the national judge has doubts about the validity of an act of secondary law, he is, in accordance with the Foto-Frost case law mentioned in section II above, barred from deciding unilaterally to set aside the act and is obliged, in order to reach this result, to request a preliminary ruling. Indeed, it may be argued that if he has serious doubts as to the validity of an act, the national judge, even if he is not sitting as a court of last instance, will be obliged to refer the case to the ECJ.68 This brings us to the question of what happens if the national judicial system does not function as it should, and more generally, what can be done if a Member State fails to fulfil its obligations under Union law, including in cases which are not brought before national courts but are definitively decided by political or administrative bodies or authorities. We shall limit ourselves to commenting on two mechanisms devised to ensure compliance with Union law, the so-called Francovich principle relating to the liability of Member States in relation to breaches of Union law and the possibility of an infringement action brought by the Commission before the ECJ. Of the basic principles of Union law deriving directly from the case law of the Court, the principle of state liability is perhaps the one which departs most radically from traditional international law approaches to the relations between a state and its nationals. Like so many of the other ‘fundamentals’ of Union law, the principle is based on a concern for ensuring the effectiveness of that legal order. In Francovich, a number of individuals brought an action in damages against their government (Italy) as a result of its failure to implement a directive on the protection of employees in the event of the insolvency of their employer.69 The Court held that an entitlement to compensation ‘is inherent in the system of the Treaty’ and is ‘founded directly on Community law’.70 In other words, in the specific instance before the Court, the question of what is an effective remedy was no longer a matter for the national legal order. The Court has found the existence of a right to reparation when three conditions are met: the rule of Union law infringed must be intended to confer rights on individuals; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the

67 Case 283/81 CILFIT EU:C:1982:335, para 10. Indeed, according to Art 99 of the Rules of Procedure of the ECJ, n 13 above, the Court may give its decision by reasoned order instead of judgment (i) where a question referred ‘is identical to a question on which the Court has already ruled’; (ii) where the answer ‘may be clearly deduced from existing case-law’; or (iii) where the answer ‘admits of no reasonable doubt’. 68 H Kanninen, ‘La marge de manoeuvre de la juridiction suprême nationale pour procéder à un renvoi préjudiciel à la Cour de justice des Communautés européennes’ in N Colneric et al (eds), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias (Berlin, Berliner Wissenschafts-Verlag, 2003) 611, 613. 69 Joined Cases C-6/90 and C-9/90 Francovich and Others EU:C:1991:428. See, eg the articles by C Timmermans, J Shaw, AJ Menéndez and C Closa Montero in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 403 et seq; P Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond (Oxford, Hart Publishing, 2011). 70 Ibid, paras 35 and 41.

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breach and the loss or damage sustained by the individuals in question.71 Beyond these three conditions, which to this day are cited in their original form, the substantial and procedural requirements for a successful action continue to be governed by national law. What has been clarified by subsequent case law is that the fact that Francovich concerned a directive which lacked direct effect was not a determining factor; the principle of state liability applies to all violations of Union law.72 Indeed, the Court has even confirmed that the principle applies to violations of Union law which follow from a national court ruling, including of a supreme court, although the threshold for determining that liability is incurred is arguably higher in such a case.73 The decentralised nature of the EU and the principle of sincere cooperation (Article 4(3) TEU) which is so often employed to empower national courts in the quest to ensure effective enforcement of Union law also operate against those same courts where their actions imperil that goal. Indeed, it is the very centrality of national courts to the system of remedies set out under Union law that also explains why they cannot escape liability for incorrect application of that law.74 The extent to which the role of national courts is central to the EU judicial system is illustrated well by the Opinion handed down by the ECJ in relation to the creation of a unified patent litigation system, in which the Court held that the function of a national EU court, notably in the context of the preliminary rulings procedure under Article 267 TFEU, cannot be ‘outsourced’ to judicial bodies established under international agreements to which states other than EU Member States are contracting parties.75 This does not prevent recourse to national courts established by a group of Member States in common.76 In contrast to the judicial control by national courts, so-called ‘infringement proceedings’ are governed by and operate exclusively at the level of the Union (Article 258 TFEU).77 These proceedings are managed by the Commission and in fact only make it before the 71

Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame III EU:C:1996:79. cases include Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame III, ibid; Case C-5/94 Hedley Lomas EU:C:1996:205; Case C-127/95 Norbrook Laboratories EU:C:1998:151; Case C-470/03 AGM-COS.MET EU:C:2007:213; Case C-445/06 Danske Slagterier EU:C:2009:178. See also, eg Ward, n 33 above, 81–126; Claes, n 25 above, 279 et seq; Aalto, n 69 above. 73 Case C-224/01 Köbler EU:C:2003:513. Concerning national courts adjudicating at last instance, the ECJ held that liability can only be incurred ‘in the exceptional case where the court has manifestly infringed the applicable law’ (para 53). See also Case C-173/03 Traghetti del Mediterraneo EU:C:2006:391; Case C-379/10 Commission v Italy EU:C:2011:775 and Hofstötter, n 64 above, 123–51. 74 See, eg Case C-173/03 Traghetti del Mediterraneo, n 73 above, para 31. 75 Opinion 1/09 (Draft Agreement on the European and Community Patents Court) EU:C:2011:123. See also A Rosas, ‘The National Judge as EU Judge: Opinion 1/09’ in Cardonnel, Rosas and Wahl, n 10 above; A Rosas, ‘The National Judge as EU Judge: Some Constitutional Observations’ (2014) 67 SMU Law Review 717. 76 Concerning the Benelux Court, common to Belgium, Luxembourg and the Netherlands, see Case C-337/95 Parfums Christian Dior EU:C:1997:517, paras 21–23. In Opinion 1/09 (Draft Agreement on the European and Community Patents Court), n 75 above, para 82, the Court observed that the Benelux Court differed from the Patents Court envisaged as it is ‘a court common to a number of Member States, situated, consequently, within the judicial system of the European Union’. 77 See generally Schermers and Waelbroeck, n 23 above, 589–641; L Prete and B Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 Common Market Law Review 9. In addition to the general procedure in Art 258 TFEU, there are some special (and in most cases expeditious) infringement procedures contained in other provisions of the TFEU (eg Art 108(2) TFEU concerning state aid, Art 114(9) concerning national measures derogating from internal market harmonisation measures and Art 348(2) concerning national derogatory measures deemed necessary in the interest of security; see also Art 271(a) and (d) TFEU, according to which the Board of Directors of the European Investment Bank may bring infringement proceedings against Member States and the Governing Council of the European Central Bank may bring similar proceedings against national central banks). 72 Seminal

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ECJ in cases where an extensive pre-contentious procedure has failed to bring about the resolution of the matter.78 In such instances the action brought by the Commission seeks a declaration that the Member State is in breach of its obligations as they result from the Treaties. Member States, too, may bring infringement actions against other Member States (Article 259 TFEU), but such inter-state proceedings are extremely rare in practice and, in any event, must traverse the same pre-contentious phase under the supervision of the Commission.79 The predominant role of the Commission in this context is illustrative of the constitutional as opposed to public international law nature of the Union legal order. From our perspective of the system of legal remedies established by the constitutional order of the Union, we will limit ourselves to two comments relating to the discretion of the Commission in bringing such actions and the reintroduction of the ‘sword’ which Hobbes considered essential to enforcement. First, the abolition of the pillar structure operated by the Treaty of Lisbon calls for a preliminary remark on the extent of Commission competence in this matter. Proceedings under Article 226 TEC were limited, quite obviously, to the Community Pillar.80 The CFSP continues to fall beyond the reach of Commission enforcement powers (Article 24(1) TEU). However, under the TFEU, infringement actions now cover what used to belong to the Third Pillar.81 As noted above, Article 276 TFEU contains certain permanent limitations on the jurisdiction of the Union Courts with respect to operations carried out by the national law enforcement services and the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. This exclusion of jurisdiction entails a corresponding limitation of the powers of the Commission under Article 258 TFEU. A further exclusion applies in the context of economic and monetary policy: Article 226 TFEU on excessive government deficits provides that the right to bring infringement actions under Articles 258 and 259 TFEU may not be exercised with regard to the obligations incumbent upon Member States under that Article.82 The significance of this exclusion has become apparent in the context of the difficulties encountered in the implementation of the Stability and Growth Pact and the ensuing debt crisis with which the EU was confronted.83

78 The number of cases brought by the Commission before the ECJ has been on the decrease. In 2010 the Commission brought 128 such actions: Court of Justice of the European Communities, Annual Report 2010 (Luxembourg, 2011). In 2016, the corresponding number was only 31, Annual Report 2016 (Luxembourg, 2017) 91. 79 Only the following cases have led to a judgment of the ECJ: Case 141/78 France v UK EU:C:1979:225; Case C-388/95 Belgium v Spain EU:C:2000:244; Case C-145/04 Spain v UK EU:C:2006:543; Case C-364/10 Hungary v Slovakia EU:C:2012:630. 80 However, according to Art 35(7) TEU, the ECJ shall have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Art 34(2)(d). In a dispute between Member States, the Court’s jurisdiction covers other acts adopted under Art 34(2) as well. 81 It should be recalled that, during a transitional period, the powers of the Commission under Article 258 TFEU did not apply to acts in the field of police cooperation and judicial cooperation in criminal matters which were adopted before the entry into force of the Treaty of Lisbon, see Art 10 of Protocol No 36 on Transitional Measures. See also at n 12 above. 82 This does not exclude proceedings between the Union institutions: see Case C-27/04 Commission v Council EU:C:2004:436. 83 The basic obligation to avoid excessive government deficits is laid down in Art 126 TFEU. See further ch 14(III) above.

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Having established the material scope of infringement actions (almost everything), it becomes clear that the Commission will need to exercise some considerable judgment in terms of which cases to pursue if it is to manage the workload thereby generated. We are not suggesting that the Commission is drowning in a sea of Member State violations of EU law, but, for example, in 2016, the Commission launched 986 new procedures by sending a letter of formal notice and issued 292 reasoned opinions. At the end of 2016, 1,657 infringement procedures remained open. The number of new complaints in 2016 is the highest since 2011 and at the end of 2016 the Commission was handling some 3,400 complaints.84 A step back is called for here. Several circumstances may lead to the opening of an infringement case: routine monitoring of the implementation of directives via the obligation on Member States to notify the national measures adopted to that effect (non-implementation cases), complaints filed with the Commission about any measure or practice by a Member State which the complainant considers incompatible with Union law, or cases investigating instances of suspected incorrect application of Union law commenced ‘at the initiative of the Commission’ (ie without having first received a complaint about the matter). In all of these situations, the action taken is against the Member State as such (irrespective of the identity of the actual author of the alleged infringement) and the decision whether to bring a matter before the ECJ is entirely within the discretion of the Commission, including, as a general rule, the timing of the action and its scope and subsequent fate (the Commission may withdraw its application at any point during the course of the proceedings). This illustrates well the retention in this field of the traditional dichotomy between the EU and the Member States. In the first place, the Member State cannot dissociate itself from the author of the contested measure or plead in its defence the independence of that authority.85 And secondly, it underlines that the infringement proceedings are a matter for the Commission and the Member State concerned. Complaints are very often at the origin of investigations leading to infringement actions, but according to settled case law a complainant may not challenge the decision of the Commission to bring (or not) an action before the Union Courts.86 While private complainants thus have no standing before the Union Courts in the context of infringement proceedings, they can and do complain to the European Ombudsman about non-compliance with the administrative procedural rules for the handling of complaints which the Commission has undertaken to follow. Complainants will of course have access to documents held by the Commission, including under certain conditions documents originating from a Member State, in accordance with relevant Union legislation.87 Finally, coming back to Hobbes’ sword, originally no specific remedy existed for the eventuality that a Member State did not comply with an ECJ judgment finding that a Member

84

34th Annual Report on the monitoring of the application of EU law, COM(2017) 370 final. See, eg Case 77/69 Commission v Belgium EU:C:1970:34; Case 249/81 Commission v Ireland EU:C:1982:402; Case C-358/03 Commission v Austria EU:C:2004:824. See also Prete and Smulders, n 77 above, 25. 86 See, eg Case 48/65 Lütticke v Commission EU:C:1966:8; Case 247/87 Star Fruit v Commission EU:C:1989:58; Case T-201/96 Smanor v Commission EU:T:1997:98, paras 22–26. See also Schermers and Waelbroeck, n 23 above, 632–33. 87 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, [2001] OJ L 145/43. See, eg Case C-64/05 P Sweden v Commission EU:C:2007:802. 85

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State had failed to fulfil an obligation incumbent upon it under Community law. The Treaty of Maastricht introduced the possibility for the Commission, if it considers that a Member State has failed to take the necessary measures to comply with an ECJ judgment, to bring the case back before the Court and request that a lump sum and/or a penalty payment be paid by the Member State concerned (Article 228 TEC, now Article 260 TFEU). It took almost ten years before the ECJ handed down a judgment pursuant to that provision. And in the ten years or so that have passed since, not more than one or two judgments per year have been rendered under what was Article 228 TEC.88 But in appropriate cases, the Commission has not hesitated to use the full range of options at its disposal. Article 260 TFEU sharpens this sword somewhat by streamlining the procedure and arguably rendering it more effective. According to Article 260(2), the Commission may bring the case before the Court after giving the state concerned the opportunity to submit its observations, which in practice means the letter of formal notice. A separate reasoned opinion will no longer be required. Article 260(3) dispenses with the two-step procedure altogether in cases of failure to notify to the Commission measures transposing a directive adopted under a legislative procedure (non-implementation cases). The Commission may, ‘when it deems appropriate’, specify the amount of a lump sum or penalty payment directly in the initial action brought before the ECJ pursuant to Article 258 TFEU. The system as described above has generally functioned fairly well and there are few if any examples where a Member State has openly defied ECJ rulings, or at least the second judgment based on Article 260 TFEU (lump sums and penalty payments). As this edition goes to print, however, there are growing concerns about the situation in two Member States (Hungary and Poland) concerning respect for the rule of law in general. The possible use of Article 7 TEU (which enables sanctions in the case of violations of the values enshrined in Article 2 TEU) has been discussed but no decision to trigger this mechanism has been taken. As was already mentioned in section I of chapter eleven above, the Commission devised a supplementary mechanism concerning Article 7 and used it in 2016 to adopt two Recommendations concerning the rule of law in Poland.89 Irrespective of the eventual outcome, these developments are profoundly worrying: the whole integration project hinges on a common commitment to respect the values and principles expressed in Article 2 TEU and developed elsewhere in the Treaties, including the independence of the judiciary and respect for judicial decisions.90 If this basic understanding starts to seriously crumble, it is difficult to see how the project can survive in the long run. Some thoughts on the future of European integration will be offered in the last chapter, to which we shall now turn.

88 The first case was Case C-387/97 Commission v Hellenic Republic EU:C:2000:356. For an example of a more recent case see Case C-557/14 Commission v Portugal EU:C:2016:471. 89 See ch 11(I), nn 25–26. 90 See, eg W Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation (Oxford, Hart Publishing, 2016).

17 The Elephant in the Room? Concluding Remarks As noted in the opening chapter of this book, Jean-Jacques Rousseau seems to have envisaged ‘une bonne association fédérative’ (a good federative association) as the r emedy for Europe’s constant problems of war and despotism. He sympathised with Abbé St-Pierre’s (1658–1743) ideas of a confederation of European States to preserve peace internally and avert aggression externally, but did not really believe that such a project could be achieved in the foreseeable future. Why would any sovereign relinquish power to such a confederation and thus restrain their ability to expand their authority through external conquest and internal domination? We may assume that Rousseau, preceding Immanuel Kant (1724–1804),1 thought that the good federative association—and thus peace—could only be achieved when societies became sufficiently democratised.2 Rousseau remarked that the idea of perpetual peace could not be achieved in his lifetime but that the European sovereigns would have to accept it ‘one day’.3 Well, it did indeed take some time, but that day probably came with the Schuman initiative of 9 May 1951 and the establishment of the European Coal and Steel Community that same year, followed by the two other Communities in 1957. In the intervening half century or more, the original mission of European integration, to prevent forever a repetition of the two World Wars, has been accomplished, at least in the relations between the EU Member States. Since the 1950s, perceptions about the weight of this objective have changed, however. The prospect of war has receded, partly as a result of the success of the European integration project and the fading of the collective memory of World War II but also because the most developed liberal democracies worldwide also seem to have abandoned war as a meaningful instrument of national policy in their mutual relations.4 It is true that the immediate neighbourhood of the EU has still seen a number of armed conflicts (brought into sharp relief by the Russian annexation of the Crimean peninsula and armed attacks against Eastern Ukraine, in particular) but these conflicts have underlined the difference between the EU and what lies beyond its border, rather than indicated a derailing of the EU peace project.

1

I Kant, Zum ewigen Frieden. Ein philosophischer Entwurf (Königsberg, Friedrich Nicolovius, 1795). J-J Rousseau, ‘Extrait du projet de paix perpétuelle de Monsieur Abbé de Saint Pierre’ and ‘Jugement sur le project de paix perpétuelle’ in J-J Rousseau, Oeuvres complètes III—Du contrat social—Écrits politiques (La Plaéaide, Éditions Gallimard, 1964) 563 and 591. See also A Rosas, ‘J.-J. Rousseau and the Law of Armed Conflict’ in O Engdahl and P Wrange (eds), Law at War: The Law as it Was and the Law as it Should Be: Liber Amicorum Ove Bring (Leiden, Martinus Nijhoff Publishers, 2008) 219, 226–28. 3 S Stelling-Michaud, ‘Introduction sur Écrits sur l’abbé de Saint-Pierre’ in Rousseau, n 2 above, CXXV, CXXXIX. 4 NP Gleditsch, ‘The Liberal Moment Fifteen Years On’ (2008) 52 International Studies Quarterly 691. 2

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The focus in Europe has therefore shifted towards more immediate issues, such as the economy, public services, social cohesion, the environment, immigration and the functioning of the democratic system of government and governance. However, the role to be played by the EU in the development of these policy areas is less obvious, more difficult to understand for the general public than the single-minded determination to banish the horrors of war. A variety of reasons lie behind this state of affairs, not least the reason for the title in chapter five and the danger that the view of the wood has been progressively obscured by the proliferation of trees. As explained throughout this book, while it is today difficult to identify an area of activity which is entirely beyond the reach of the Union, the intensity of Union competence, powers and influence varies enormously from one sector to another; entangled in the detail, one can quite easily lose sight of the whole. Beyond the formal distinction between different types of competence (exclusive, shared, parallel, Common Foreign and Security Policy (CFSP) and so on) and the degree to which the Union has exercised that competence, the real impact of its action on everyday life is neither consistent nor properly grasped (indeed, it is sometimes deliberately misrepresented). Moreover, to the extent that the Union can and does act, it is not easy for a broader public to understand which Union institution, body, office or agency is responsible for that action and what is the division of labour between the Union and its Member States. The Treaty of Lisbon has attempted to strengthen the link to the citizen by engaging more directly with national parliaments, notably via their role in the control of the principle of subsidiarity and the new simplified revision procedures.5 But this perhaps only adds to the complexity (exemplified by the interrelation between, and interspersion and overlap of Union actors and their national counterparts), and is augmented by the fact that not all Member States or regions are bound by the same rules (differentiation and flexibility).6 Yet perhaps it is this very inclusiveness which explains why it has been politically p ossible to make significant advances on so many fronts of the integration process, the institutional system itself presenting a microcosmic example of what the ‘ever closer union’ can achieve. Today, Union activities not only occupy a broad field but are also organised as an autonomous constitutional and legal system, encompassing both the Union and its Member States, including an internal hierarchy of norms, the principles of primacy, consistent interpretation, direct applicability and direct effect, and relatively far-reaching legal controls and remedies, which, in the field of fundamental rights, has been recognised as providing equivalent protection to the system under the European Convention on Human Rights itself.7 And as explained in chapter fourteen in particular, the euro and sovereign debt crisis led during a relatively short period of time to a number of institutional and normative developments which bolster significantly the idea of the EU as not only a monetary but also an economic union. These developments, however, have in turn borne the seeds of well-documented concerns about legitimacy and the so-called ‘democratic deficit’. The complexity of the system and the fact that it does not amount to a parliamentary democracy in which the

5 6 7

See, in particular, ch 7 above. See ch 8 above. See especially chs 2–5 and 11 above.

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ommission and the Council reflect the political will of the majority of the European C Parliament almost certainly contribute to the low interest in the elections to the Parliament and, by extension, its work. This, in turn, generates a weak understanding of the nature of the integration process and results in the impression that integration has largely proceeded ‘by stealth’, advancing like Lord Denning’s incoming tide upon an unsuspecting general public.8 That there is, in many quarters, hesitation or outright opposition to further integration is illustrated by the numerous national referendums concerning accession to the EU, amendments to the Treaties or introduction of the euro which have had a negative outcome, and a rise in the popularity of political parties that are openly hostile to the project.9 The stance taken by some national constitutional or supreme courts, reserving a right to declare ECJ rulings ultra vires and thus to refuse to apply them,10 may also prove to be significant, at least in a symbolic sense. Similarly, the impact the recent concerns regarding the rule of law in Poland may have on the constitutional fabric of the Union should not be underestimated. And, of course, Brexit may be seen as the ultimate act of defiance, an effort to ‘take back control’ (to cite one of the slogans of the Brexit referendum campaign) by leaving the club altogether. On one view, these events have, cumulatively, had the positive side effect that discussing where the European journey is going is no longer taboo. On the contrary, there is now open engagement with that elephant in the room. Less positively, however, it continues to defy description and to provoke negative reactions (particularly as regards its reincarnation as a Constitution for Europe but also, more recently, as the austerity measures imposed on euro area Member States, and those receiving extraordinary financial assistance in particular, or the relocation programme to spread the influx of asylum-seekers to the Union more evenly across the Member States). Technical convergence with national models of democracy would therefore be in vain if not accompanied by an increased allegiance to the European Parliament and is, in any event, at odds with the widely held belief that the integration process should not go much further and with the continued preference for the traditional concepts of nation state and national sovereignty. Indeed, any development in a federal direction could even, according to some, make matters worse: the position of the German Constitutional Court for one is that any move to better reflect the democratic credentials of a nation state could in fact be unconstitutional (the German State, as it currently exists, and a putative European State being, in its view, mutually exclusive).11 This somewhat ironic conclusion serves at least to highlight that the nature of the beast is still very much under discussion. 8

See chs 2(VI) and 5(I) above. has been rejected twice in Norwegian referendums (1972 and 1994). Treaty changes have been rejected once in Denmark (1992, Treaty of Maastricht), once in France (2005, the Constitutional Treaty), twice in Ireland (2001 and 2008, Treaties of Nice and Lisbon, respectively) and once in the Netherlands (2005, Constitutional Treaty). The Treaties of Maastricht, Nice and Lisbon eventually entered into force after new referendums in Denmark (1993) and Ireland (2009) produced positive results. The euro was rejected in Denmark (2000) and Sweden (2003) and the initiative to replace the complete Danish opt-out from the area of freedom, security and justice with a case-by-case opt-in was rejected in Denmark in 2015. See also ch 1 above, nn 2–4 and ch 8(II) above. 10 See ch 6(II) above. 11 D Thym, ‘In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court’ (2009) 46 Common Market Law Review 1795, 1813 notes that the judgment ‘establishes a constitutional Catch-22 for the Union’s legitimacy’. Judgment of 30 June 2009, BVerfG, 2 Bve 2/08. See also J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 143 and ch 6(II) above. 9 Accession

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291

In contrast to the internal tension between stopping or even reversing the integration process and enhancing the role played by the Union in the daily life of its citizens, there has been a growing awareness of the external perspective and the realities of a global stage dominated by big players, notably the US and the Bric countries (Brazil, Russia, India and China).12 In this context, it is increasingly felt that only the Union as a whole (and not its Member States acting individually) can match these actors in economic and political influence. The organisation and handling of the Union’s external relations, including security and defence issues, thus become of crucial importance, and the image of a ‘gaggle of geese’, not attractive at the best of times, is brought into stark relief by assessments that the role and influence of the EU in world politics are on their way down rather than up.13 While it is too early to pass definitive judgment on the institutional changes brought about by the Treaty of Lisbon in relation to the handling of Union external relations (notably the Foreign Affairs Representative and the External Action Service), it is difficult to avoid the impression that, at least initially, they added to the institutional quagmire rather than calling forth an elephant trumpeting loud and clear.14 That said, recent developments, such as in the areas of trade policy and security and defence policy, could be interpreted as indicating that all that was needed was some time to settle, and that the Foreign Affairs Representative and the External Action Service she heads up will in fact be able to rise to the occasion and herald more unified Union action. As the second edition of this book went to print, the challenges facing the EU had adopted a form not previously foreseen by most people: the economic crisis which shook Europe and the world and the debt situation thereby created in certain Member States was rocking the Union to its core. Initial disagreement among the Member States as to how the debt crisis should be handled (loans or guarantees offered by individual Member States, the creation of a Union mechanism or Greek reliance on the assistance of the International Monetary Fund) did nothing to alleviate grave financial market concerns.15 The ‘internal’ discussion, played out in the world’s media, appeared to aggravate matters for the value of the euro and the interest rates which many Member States had to apply in order to obtain financing for their debts: the general disarray brought the image of a gaggle of geese once again to mind.16 The rapid succession of summit meetings, each one hailed as ‘decisive’ for the resolution of the crisis, only to be snubbed by markets as ‘too little, too late’ and promptly overtaken by the next ‘definitive’ set of conclusions only amplified the lack of trust not only in the common currency but in the ability of EU decision-making mechanisms to tackle the matter effectively. 12 The Bric countries held their first summit on 16 June 2009, T Halpin, ‘Brazil, Russia, India and China Form Bloc to Challenge US Dominance’, The Times 17 June 2009. 13 R Haass, ‘A Waning Europe Matters Less to America’, Financial Times, 13 May 2010, 9, concludes that ‘[e]ven before it began, Europe’s moment as a major world power in the 21st century looks to be over’; T B arber, ‘Old World Disorder: What Can Europe’s Leaders Do To Arrest Its Seemingly Inevitable Decline?’ Financial Times. 18 February 2012, Life & Arts 14 (reviewing W Laqueur, The End of the European Dream and the Decline of a Continent, J-C Piris, The Future of Europe: Towards a Two-Speed Europe? and HM Enzensberger, Brussels, the Gentle Monster: Or the Disenfranchisement of Europe). 14 See ch 15 in particular. 15 See, eg W Schäuble, ‘Why Europe’s Monetary Union Faces Its Biggest Crisis’, Financial Times, 12 March 2010, 9. 16 See, eg W Münchau, ‘Gaps Widen in the Eurozone “Football League”’, Financial Times, 22 March 2010, 9.

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While a temporary solution was eventually found in May 2010, the crisis brought into sharp focus the limited nature of the Union’s involvement in economic policy. Although providing for a single currency, the EU economic and monetary system lacked a supranational mechanism (the ‘Community method’) for economic and fiscal governance. It was widely held that the introduction of the euro without real supranational competence and powers in the field of economic and fiscal policy had been like building a house by starting with the roof. The flaw was structural. The bricks on which the rest of the legal order sits were missing, including the ability of the Commission to bring infringement proceedings against a Member State under Article 258 TFEU for failure to respect the obligation to avoid excessive government deficits (Article 126(10) TFEU). In the intervening period, it is the influx of persons arriving at the external borders of the Union in search of a better future that has proved the greatest challenge to the EU. It is perhaps ironic that it is the very attractiveness, viewed from the outside, of the European way of life that is in danger of severely weakening the European project that is at the root of that way of life. The Treaty takes as a given, in a number of provisions, the principle of mutual recognition, but as we saw in chapter twelve, mutual recognition is based on mutual trust and that can only exist within the framework of a set of common values and a shared destiny. That trust must be earned, and then guarded as precious, has become painfully obvious as the strains of the realities thrust upon certain Member States have tested both trust and solidarity to their limits. But the importance, not least because of its links to questions of fundamental rights, of an area of justice, and the simple survival instinct embodied in an area of security mean that, if it is indeed to survive, the Union will need to find a way to tread that fine line carefully. The difficulty lies in the fact that it is no accident that the Union has generally been perceived to be at its weakest when it is called upon to act in areas that continue to be intimately linked to notions of sovereignty. As noted in chapter four, the Member States are masters of their own destiny; the system has been patiently constructed brick by brick and the result is not chance but design. While it may always be questioned whether the lack of effective Union competence and powers is due to the lack of political will to provide for the ‘Community method’ in these areas, or vice versa, it is an empirical reality that, for as long as stronger elements of supranationalism are not introduced, it is difficult to achieve a pooling of the political will necessary to subordinate national interest to that of the Union and create effective common policies in areas such as economic policy and external relations. The history of European integration, and of international cooperation more generally for that matter, amply demonstrates that nation states are not very efficient self-regulators in the absence of institutional arrangements to secure compliance. What is worrying about certain recent developments is the disregard for those institutions, for if respect for the supranational order fails, the house is indeed on shaky ground. But we continue to have faith that Monnet was quite correct when he presumed that only common institutions and rules would give Europe its rightful place on the world stage.17 In the field of economic and monetary policy at least, this, in the end, seems also to have been the conclusion of the Member States whose currency is the euro. The technical nature of the policy area and the focus in the press on the (principally German) refusal to

17

J Monnet, Mémoires (Paris, Fayard, 1976).

The Elephant in the Room? Concluding Remarks

293

contemplate the creation of so-called ‘Eurobonds’ may sometimes obscure the constitutional significance of some of the changes which have in fact taken place. As explained in chapter fourteen, the debt crisis has triggered reforms unthinkable only a few years ago. These mechanisms have been more or less successful in stemming the crisis and there is no denying that they are important steps towards building a European monetary fund. Primary law has been amended (Article 136 TFEU) and, perhaps more significantly, the secondary legislation, the intergovernmental Treaty on Stability, Coordination and Governance in the Economic and Monetary Union of 2012, and the elements of the banking union which are already in place, have radically increased the powers of Union institutions to monitor the economic, including budgetary, policies of the Member States and respect for the Stability and Growth Pact (SGP), giving these supranational actors the competence to intervene in matters hitherto regarded as central to the powers of national parliaments and governments. So, almost before it entered into force, events have overtaken the assertion that the Treaty of Lisbon would put an end to the almost constant constitutional reform of the past two decades and, at least for some years to come, satisfy the need for institutional changes, thus enabling the EU to focus on substantive issues, such as economic growth, research and innovation, and climate change. Many of the subjects we have dealt with in the chapters above already contain new question marks and, particularly in the area of economic and financial policy, new powers have been developed, further transfers of sovereignty have been required and additional institutions have been created in the effort to stabilise the Union internally and restore confidence externally. And as this third edition goes to print, new ideas and initiatives are already filling the air with the sounds of times to come: a Union ‘finance minister’ equipped with a more robust Union budget, a stronger focus on the coordination of direct taxation, and the development of the European Stability Mechanism into a European Monetary Fund will be music to the ears of those still seeking an ‘ever closer union’. To those who have followed the European integration process over the years, this should come as no surprise. It is very difficult to divide societal affairs into isolated compartments, as the EU has tried to do. Integration in one area will often trigger the awareness that similar measures are needed in neighbouring areas (spillover). Thus the strengthening of the internal market led to calls for Union policies in the social and environmental fields, while the introduction of the euro has exerted a similar centripetal effect on economic and fiscal policy, pulling the various players into that ‘ever closer union’. The elephant thus seems to keep marching on, sure-footed and curiously nimble. And it seems natural to us that as its next steps, in addition to the consolidation of economic policy and the banking union which still seems to be required, the focus turns to tax policy (which to a large extent still belongs to the national domain)18 and to a strengthening of Union foreign, including defence, policy. Can this step-by-step approach towards an ‘ever closer union’ be sustained without fundamental changes to the Union democratic system of governance and/or a further differentiation between the Member States in the form of a two-speed, or, as we would prefer to say,

18

See ch 2(V) above and ch 13(II) above, at n 17.

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a multi-speed Europe?19 Might it even happen that the Union disintegrates with Member States being forced to exit the common currency or choosing to join the UK in leaving the Union altogether? The inclusive nature of the decision-making mechanisms, with strong participation by Member States’ political and bureaucratic elites, an increasing role for the European Parliament and the development more generally of a multilevel system of governance, have largely sufficed thus far. Further developments may even be possible if they are accompanied by concrete results and tangible progress (output legitimacy). It is also striking that many neighbouring countries are either negotiating EU accession or aspiring to become candidate countries. And yet it is the perception (whether rightly or wrongly) of a ‘democratic deficit’ and a lack of transparency which, in our view, are hampering progress. The constitutional order of the Union is very much a reality and, in its Darwinian struggle, it seems, after all, rather well equipped for survival. But the ordinary citizen cannot relate to this unfamiliar beast; even 60 years of cohabitation have not revealed its true nature; indeed, it is to be doubted whether the elephant can ever be defined. To say, then, that the Union is une bonne association is perhaps to stretch the imagination too far. In our humble opinion, though, it is a necessary association. So, judge our book by its cover; but whether in Malevich’s work you see a crumbling pillar structure and/or the multilevel composition that will allow the patient construction of what we call the Union to continue, one thing is certain: the story is (not least for constitutional lawyers) not over yet.

19 To cite but two contributions, see Y Mény, ‘Can Europe Be Democratic? Is It Feasible? Is It Necessary? Is the Present Situation Sustainable?’ (2011) 34 Fordham International Law Journal 1287; J-C Piris, The Future of Europe: Towards a Two-Speed Europe (Cambridge, Cambridge University Press, 2012).

INDEX

Note: Alphabetical arrangement is word-by-word, where a group of letters followed by a space is filed before the same group of letters followed by a letter, eg ‘direct legitimacy’ will appear before ‘directives’. In determining alphabetical arrangement, initial articles and prepositions are ignored. Page numbers followed by the letter ‘n’ refer to footnotes on the quoted pages. acceding Member States, gradual progress by, 110 Accession Treaties, see Acts of Accession account preservation, 194–95 accused persons, rights, 200 ACER (Agency for the Cooperation of Energy Regulators), 100 Acts of Accession: Croatia, 170 Czech Republic, 170 primary law, 54 progressiveness principle, 110 administrative authorities: national, see national administrative authorities administrative bodies, 96–102 Member States, cases decided by, 283 administrative cooperation: Member States’ obligations, 106–107 supporting competences, 24 administrative law: Member States, 282 administrative power: European Commission, 134 administrative sanctions, 199 advisory procedure: European Commission, 97 Advocates General Opinions, 275 AETR/ERTA case, 254–55, 256, 258 African countries: EU cooperation with, 119 AFSJ, see area of freedom, security and justice age discrimination, 44, 159, 172 agencies, 98 without “agency” in name, 99 decentralised, 98–99, 100 decision-making, 98, 99, 100 delegation to, 99–101 European Commission, 98–101 evolving approach to, 99 executive, 101 expert opinions preparation, 100 financing, 101 functional responsibilities, 100 information dissemination functions, 100 legality, 99

managerial tasks, 100 Member States’ participation, 99 observation dissemination functions, 100 powers to adopt guidelines, soft law effects, 101 regulations setting up, 99 regulatory, 98 reports preparation, 100 scientific tasks, 100 self-financed, 101 technical tasks, 100 Treaties, regulated directly in, 98 Agency for Asylum, 189 Agency for the Cooperation of Energy Regulators (ACER), 100 agenda-setting: Commission, 246 agreements: between Member States, 34 international, see international agreements agricultural law, 111 Air Transport Association of America case, 58 airport management: Member States’ obligations, 106 Åkerberg Fransson case, 163 ambiguities: EU constitution concept, relating to, 5 ambivalence towards integration, 4 Amsterdam Treaty, 2, 10 closer cooperation, 120 judicial cooperation in civil matters, 192 Justice and Home Affairs, 177 non-discrimination, 172 proportionality principle, 28 subsidiarity principle, 28 annexes: primary law, 53–54 annulment of legislative acts: actions for, 276, 279 applicability: national law by EU institutions and bodies, 80, 81, 82–83 applicable law determination: civil matters, 193–94 application monitoring, 28

296

Index

Aranyosi case, 200 area of freedom, security and justice (AFSJ), 5, 18 asylum, 180, 183–84, 186–90 border checks, 180, 183–86 civil matters, judicial cooperation, 180, 192–96 criminal matters, judicial cooperation, 180, 182, 183, 196–202 Denmark opt-out from, 109, 112, 114–15 functional principles and rules, 138 immigration, 180, 183–84, 190–91 Ireland opt-out from, 109, 112 legal acts, 144 opt-ins, 183 opt-outs, 109, 112, 114–15, 183 police cooperation, 180, 182, 183, 202–204 shared competence, 23, 257 subsidiarity, 183 armed conflicts, 288 arrest warrant, European, see European arrest warrant association agreements, 249, 258 association of sovereign states, 8, 13 asylum, 7, 12, 16, 177, 180, 183–84, 186–90 common policy, 186 Dublin Regulation, 181, 186–87, 189, 191 fair sharing of responsibility, 186, 188 fundamental rights, 187, 191 policy, 5 seekers, 180 Member States, 187–88, 290 return to Member States, 180–81 solidarity principle, 186, 188 austerity measures: Member States, 239 Australia: passenger name records (PNR) data agreements, 204 Austria: non-NATO member, 118 authority level: Member States, 102–103 autonomous legal order, 14 autonomous regions of Member States, 105, 118 bank accounts of debtors, freezing, 194–95 Bank of England, 115 banking crisis, 240, 242 banking union, 6, 16, 83, 232, 240–42, 293 banknotes: European Central Bank monopoly to issue, 227 national central banks issue of, 227 banks: recapitalisation, 237 supervision, 101, 228 Barber Protocol, 46 basic Treaty provisions on competences, 22–25 battle groups, 267, 269 belief discrimination, see religion or belief discrimination Better Regulation Guidelines, 30 bilateral association agreements, 80 bilateral cooperation agreements, 16, 258

bilateral trade agreements, 16, 254 Bill of Rights, EU: Charter of Fundamental Rights as, 169 binding norms, 69, 71 biological resources, see marine biological resources conservation: birth discrimination, 172 blocking majority voting: Council of the European Union, 93 Blue Card, EU, 190 border control, 7, 178, 180, 183 geopolitical events causing attempted entry, 185 internal: abolition, 10 temporary reintroduction, 184–85 Border Control Agency (Frontex), 113, 185–86, 204 border management authorities: Member States, 185 borders, external, 15–16 Bosnia and Herzegovina: military operation in, 266 Brexit, see United Kingdom bridging clauses: Treaties amendments, 39 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 177, 192 budgetary deficit: coordination and surveillance: Council, 230, 231–34 Member States, 230 budgetary discipline, 225 Member States, 228, 230, 232, 235 budgetary functions: Commission, 88, 89, 94 Council, 88, 89 Parliament, 88, 89–90 budgetary policies: Member States, 231 budgetary situation: Commission monitoring, 230 budgetary surveillance: Member States, 233, 235, 243 Bulgaria: single currency, still to join, 117 bureaucracy, 84 bureaucratic institutions and bodies, 84 business, freedom to conduct, 216, 219 Căldăraru case, 200 Canada: Comprehensive Economic and Trade Agreement (CETA), 254 passenger name records (PNR) data agreements, 204 candidates: standing as, rights in Member States of residence, 156 capabilities and armaments policy, 267 capital, free movement, 75, 139, 207, 210, 211

Index Caribbean countries: EU cooperation with, 119 Carpenter case, 155, 162 case law: codification, 43, 47–48 competence, 253 on conformity of national rules with EU law, 82 criminal proceedings, language rights in, 152 data protection, 152 disability discrimination, 173 economic freedoms, 209 education grants and loans, 152 environmental protection, 221, 223 European Convention on Human Rights, 167 European Parliament elections, voting in, 152 family names, rights to, 152, 155 freedom of movement, 148–49, 151, 152–53 fundamental rights, see fundamental rights general principles developed through, 42 golden shares, 139 horizontal direct effect, 175 international trade, 245 national law interpretation, lack of jurisdiction, 82 national regulatory authorities’ status and tasks, 107 norms categories, clarifying, 50 primacy, 67 private schools fees, 152 race discrimination, 173 religious discrimination, 173 sexual orientation discrimination, 173 social benefits, 152 social dimension, 216–18 source of law, 51 taxation, 152 training grants and loans, 152 Union citizens, 146–47 Union citizenship, 144–45 university education, access to, 152 WTO agreements, 78–80 Cassis de Dijon case, 155, 209, 212 catch-all competences, 25–27, 41–42 Categories and Areas of Union Competence, TFEU, 22 Central African Republic: military mission training and assisting security forces, 266 central government: Member States, 102 CEPOL (European Police College), 202 CETA (Comprehensive Economic and Trade Agreement), 254 CFSP, see Common Foreign and Security Policy Charter of Fundamental Rights, 15, 138, 158 applicability, 164 business, freedom to conduct, 216, 219 Charter rights, 166 citizenship, 142 civil and political rights in scope, 169 collective action rights, 169 constitutional traditions, rights resulting from, 166 death penalty prohibition, 169 direct applicability, 174

297

direct effect, 174–76 discrimination prohibitions, 169, 172–73 economic, social and cultural rights in scope, 169 effective remedies, right to, 81, 278 elderly persons’ rights, 169 elections, standing in, 142 as EU Bill of Rights, 169 EU law and, 164 European Convention on Human Rights, rights resulting from, 166 European Court of Justice citing, 159 expulsions, 191 fair trial, right to, 81, 278 freedom of movement, 148 good administration, right to, 143 international obligations, rights resulting from, 166 judicial protection, 276, 280–81 judicial remedy rights, 169 labour rights, 216 Member States and, 164 occupation, freedom to choose, 216, 219 Poland, application to, 169–70, 174–75 as primary law, 44, 47, 55–57, 62, 169 protection by diplomatic and consular authorities, 142–43 scope, 169 Social Charters, rights resulting from, 166 social rights, 215, 216 as soft law, 44, 47, 62 solidarity rights, 216 UK, application in, 164, 169–70, 174–75 voting, 142 work, freedom to engage in, 216, 219 children: custody, 193 exploitation, 197 pornography, 197 sexual abuse, 201 unlawfully abducted, return of, 180 wrongful removal between Member States, 193 circles of integration, 119 citizens: democracy, 127 free movement, direct effect, 75 initiatives, 95, 135, 136–37, 143 involvement, 136 participation, 136 petitioning Parliament, 137 representatives of, European Parliament, 128 roles, 48 Union, 5 case law, 146–47 documents, right of access to, 143 economically non-active, 155 European Ombudsman, right to complain to, 143 expulsion, 149–50 extradition, 150 family members, 142, 149–50, 154, 184 freedom of movement, 148–49 internal market of, 144 meaning, 146–47

298

Index

Member State nationals considered to be, 146–47 not residing in Union, 147 Parliament, right to petition, 143 rights to move and reside, 142 status, loss of ability to invoke, 154 votes, European Parliament, 128 see also citizenship citizenship, 16, 18, 141 Charter of Fundamental Rights, 142 national, 144, 146 uniformity in, 111 Union: additional to national citizenship, 146 case law, 144–45 Commission reports on, 156 complementing national citizenship, 144 controversial nature, 144 Council strengthening rights, 156 deprival of status, 147 empty gesture, 144 fundamental status of nationals of Members States, 141 invoking against own Member State, 155 modest step, 144 nationals of Members States, 141 naturalisation and, 147 permanent residence, right of, 149 right to move and to reside, 148–54 rights flowing from, 156 status, 147, 154–56 see also citizens civil law: Member States, 282 civil matters: access to justice, 194–95 applicable law determination, 193–94 conflict of law rules, 193 cross-border implications, 192 enforcement of judgments, 193 judicial cooperation, 177, 179, 180, 192–96 jurisdiction of courts, 193 ordinary legislative procedure, 195 civil obligations: Council, 265 civil protection: supporting competences, 24 civil rights: in Charter of Fundamental Rights scope, 169 civil servants, 84, 92, 107 Civilian Aspects of Crisis Management Committee, 266 Civis Europeus, see citizens; citizenship CJEU, see Court of Justice of the European Union claims: for damages, 279–80 small, 194 uncontested, 194 climate change, 221 Framework Convention on (UNFCCC), 58, 80 closer cooperation, see enhanced cooperation co-decision process, 89

codes of conduct, soft law, 62 codification, case law, 43, 47–48 coins, issue of, 227 collective action rights: Charter of Fundamental Rights, 169 colour discrimination, 172 comitology, 60, 61, 96–98 Comitology Register, 97 Comitology Regulation of 2011, 97 commercial policy: see common commercial policy Commission, see European Commission Committee of Permanent Representatives (Coreper), 92, 102, 131 Committee of the Regions (CoR), 84, 104, 275 committees: Commission, 96–98 Parliament, 91 common accord, 35 Common Approach: European Commission, 98 common asylum policy, 186 common commercial policy, 245 environment, 222 environmental requirements, 253 exclusive competence, 252–53, 255 flanking measures, 253 international agreements, 257 social requirements, 253 uniformity in, 111 common currency, see single currency common defence, 265, 268–69 common defence policy, 265, 267, 268–69 common depositary insurance scheme, 242 common fisheries policy, 22, 222 Common Foreign and Security Policy (CFSP): 8, 11, 289 competence, 23–24, 252, 256–57, 259 Council and, 94, 246, 250 crisis management, 264 decision-making by unanimity, 250–51 decisions adopted under, 51, 60 decisions use, 74 ECJ jurisdiction, 251 enhanced cooperation, 120 European Parliament and, 89 exclusive competence, 256–57 human rights promotion, 160 judicial control, 250–51, 273–74 objectives pertaining to, 26 outside Commission enforcement powers, 285 President of the European Council role, 87 shared competence, 257 unanimity, 133 see also Foreign Affairs Representative common immigration policy, 190–91 common legal system, 15, 51, 63 common market: move away to internal market of citizens, 144 Common Security and Defence Policy (CSDP), 8, 16, 117–18, 264 community as EU label, 8

Index Community Charter of the Fundamental Social Rights of Workers, 216 Community Plant Variety Office (CPVO), 100 Community Treaties: as ‘constitutional charter based on rule of law’ (CJEU), 4 compensation: in damages, actions for, 276 Member States for directives, 77 competence, 289 appropriateness of EU action, 21 basic Treaty provisions on, 22–25 case law, 253 catch-all, 25–27, 41–42 Common Foreign and Security Policy, 23–24, 252, 256–57, 259 coordinating, 24 creep, 24–26, 40–48, 49 debate on, 21 declarations of, 258 delimitation, 28 development of, 48 economic policy, 23 employment policy, 23–24 EU conferred by Member States, 14 limits of, 14 versus Member States, 8 ex-post judicial control, 28 exclusive, 21, 245, 289 common commercial policy, 252–53 Common Foreign and Security Policy, 256–57 external relations, 252–58 fishing agreements, 252 foreign direct investment, 252–53 goods, international trade in, 252–53 intellectual property, commercial aspects, 252–53 internal market competition rules, 22 international agreements, 254, 255, 256 legally binding acts, 22 to legislate, 15 marine biological resources conservation, 252 Member States acting in common interest, 254 Members States’ membership of international organisations, 260 services, trade in, 252–53 shared competence and, distinction between, 23 transport services, 255 Treaties conferring, 22, 24–25 external relations, 245–46, 252–59 implicit, 256, 257 increases, Lisbon Treaty, 35–36 internal, 256 judicial control, 28 lacking for EU, Member States free to act, 262 Lisbon Treaty, 20, 21, 25–27 Member States, see Member States mixed agreements, questions, 70 parallel, 8, 21, 23, 245, 289 external relations, 252 Member States, 245

299

potential, 256, 257 reductions, Lisbon Treaty, 35–36 shared, 8, 21, 289 area of freedom, security and justice, 257 Common Foreign and Security Policy, 257 economic polies of EU and Member States, 230 environmental policy, 257 exclusive competence and, distinction between, 23 external relations, 245–46, 252, 253, 257 internal market, 23 Member States, 257 mixed agreements, 253 preemption principle, 254 services, trade in, 253 social policy, 24 trade-related intellectual property rights, 253 Treaties conferring, 24–25 shift, 23 subsidiarity principle, 28–31 subsidiary, 8 supplementary, 24 supporting, 21, 24, 252 TFEU Articles 114 and 352, 25–27 types of, 21 uncontrolled growth, 42 uncontrolled spread, 20 competent national authorities: Member States, 241 competition: authority designation, Member States, 106 direct effect, 215 free, 206 internal market rules, 22 law, 214–15 decentralisation, 106 direct effect, 75 environment, 221 uniformity in, 111 national regulatory authorities, 82 primary law, 215 rules, 208 undistorted, 206 unfair, 217 competitiveness, 215, 219 complete independence, European Commission, 95 complexity, democracy, 127 compliance, subsidiarity principle, 28 composition, Parliament, 128 Comprehensive Economic and Trade Agreement (CETA), 254 Conciliation Committee members, 89 conditionality, 233, 238, 239 confederation: as EU label, 8 of European states, 288 federation and, distinction between, 13 conferral principle, 14, 18, 20, 21, 27 conflict of law rules, civil matters, 193 conflicting national law, disapplying, 65 conflicts, prevention, 264–5

300

Index

conformity: EU law in national legal orders through interpretation, 68–72 consensus: building, 121 Council of the European Union, 93 decision-making, European Council, 87 democracy, 133 European Council, 133 see also unanimity consistent interpretation: directives, 68–69, 70 EU law, 63, 68–72 hierarchical order of EU law, application within, 70 national law, 68, 69 as primacy principle corollary, 68 primary and secondary law relationship, application to, 70 principle, 289 secondary and primary law relationship, application to, 70 Constitution for Europe, 290 ‘constitutional charter based on rule of law’: Community Treaties as (CJEU), 4 constitutional concept: fundamental rights as, based on case law, 160 constitutional courts, 49 European Court of Justice as, 276 constitutional guardian of EU law and order, CJEU, 274 constitutional law, 12–13 constitutional limits to Treaties amendments, 34 constitutional order, 42, 205–206, 285, 294 deliberative democracy, 138 democracy, 126 freedom of movement, 213 national constitutions references in, 68 substantive democracy, 138–40 constitutional pluralism, 13 ‘constitutional principles of the EC Treaty’, (CJEU), 4 constitutional roles: European Council, 87 ‘constitutional status of general principles of Union law’ (CJEU), 4 constitutional traditions, 81, 166 Constitutional Treaty of 2004, 1–2, 10, 11 competences, 20, 21, 25 Council meeting in public, 131 entry into force abandoned by negative referendums, 35 French referendum campaign, 214 preparation, 36 primacy incorporation in, 65–66 reforms not retained, 50 constitutionalisation, 2 consular authorities: protection by, 142–43, 156 consultation: of national parliaments, 30 Parliament functions, 88

consumer protection: shared competences, 8, 23 contractual liabilities, 279 control: enforcement and, see enforcement and control judicial, see judicial control legal, 289 Member States, exercised by, 97 non-judicial, 15 political, see political control Convention on the Future of Europe, 28 Convention on the Law of the Sea, see UN Convention on the Law of the Sea Convention on the Rights of Persons with Disabilities (CRPD), 168, 173 Convention on the Rights of the Child (CRC), 166 Conventions: Council, 37 Treaties amendments, 36–38, 40 cooperation: administrative, see administrative cooperation agreements, 249 bilateral cooperation, 16, 258 direct effect, 80 human rights clauses, 160 closer, see enhanced cooperation development, 245, 255 enhanced, see enhanced cooperation intergovernmental, 177 judicial, see judicial cooperation loyal, 14, 15, 258–59 modalities: European Commission with European Parliament, 90–91 permanent structured, 267 sincere, see sincere cooperation cooperative federalism, 190 coordinating competences, 24 coordination, open method, 215 CoR (Committee of the Regions), 84, 104, 275 core constitutional principles, 45 Coreper (Committee of Permanent Representatives), 92, 102, 131 corrective element: Stability and Growth Pact, 232–34 Corthaut, T, 69, 76 Costa v ENEL, 64–65 Council, see Council of the European Union Council for Economic and Financial Affairs (ECOFIN): euro legislative measures, 228–29 Council of Europe, 2, 9, 86 Convention, 80 justice and home affairs, 177 Social Charters, 166 Council of the European Union, 86 acts, annulment applications, 275 amendment proposals, submitting to European Council, 36 blocking majority voting, 93

Index budgetary discipline coordination and surveillance, 230, 231–34 budgetary functions, 88, 89 civil servants, 92 Civilian Aspects of Crisis Management Committee, 266 Committee of Permanent Representatives (Coreper), 92, 102, 131 Common Foreign and Security Policy and, 94, 246, 250 Conciliation Committee members, 89 configurations, 92 consensus, 93 coordination and cooperation, 143 Crisis Management and Planning Directorate, 266 decision-making, 131–33 delegations, 248 democracy, 131–33 direct legitimacy, 131 double majority voting, 93, 132 Economic and Financial Affairs (ECOFIN), see Council for Economic and Financial Affairs economic and monetary policy role, 94 economic policy guidelines, 230 enhanced cooperation authorisation, 120 Euro Group, 93–94 executive powers, 94 Foreign Affairs Council, 93 fundamental rights: commitment joint declaration, 157 serious and persistent breach determination, 161 implementing powers, 94 indirect legitimacy, 131 inter-governmental activity, 91 international agreements, concluding, 248, 249 intransparent decision-making, 124, 131 law-making, 84 legislative functions, 88, 89, 91 legitimacy, 131 meeting in public, 131 Member States: central government, 102 representation in meetings, 92 military and civil obligations, 265 national interest repository, 91 ordinary legislative procedure, 89 Permanent Structured Cooperation (PESCO), 267 Political and Security Committee, 266 President, 93–94 qualified majority voting, 39, 93, 131, 132–33 representative of Member States, 131 shadow of the vote, 93 sincere cooperation, 86 special legislative procedure, 89 strategic interests and objectives recommendations, 246 Treaty amendments: involvement, 40 power shift to European Council from, 36

301

unanimity, 39, 93, 132–33, 161 Union citizenship, strengthening rights, 156 voting, 92–93 Working Groups, 92, 102, 131 counterfeiting, 201 Court of Auditors, see European Court of Auditors Court of Justice of the European Union (CJEU), 85, 86 actions brought directly before Union courts, 275 Advocates General Opinions, 275 annulment of legislative acts, actions for, 275–76 Commission acts, annulment applications, 275 Committee of the Regions, actions brought by, 275 Community Treaties as ‘constitutional charter based on rule of law’, 4 compensation in damages, actions for, 276 as constitutional guardian of EU law and order, 274 ‘constitutional principles of the EC Treaty’, 4 ‘constitutional status of general principles of Union law’, 4 Council acts, annulment applications, 275 Court of Auditors, actions brought by, 275 EU institutions, actions brought by, 275 European Central Bank, actions brought by, 275 European Central Bank acts, annulment applications, 275 failure to act, actions for, 275–76 ‘foundations of Community legal order’, 4 independence, 274 individuals, actions brought by, 275 judges, 274–75 judgments, 275 legal persons, actions brought by, 275 Member States, actions brought by, 275 natural persons, actions brought by, 275 Parliament acts, annulment applications, 275 privileged applicants, 275–76 sincere cooperation, 86 Statutes amendment by ordinary legislative procedure, 39–40 see also European Court of Justice; General Court Courts: judicial control, 274–80 see also Court of Justice of the European Union; European Court of Justice; General Court; national courts CPVO (Community Plant Variety Office), 100 CRC (Convention on the Rights of the Child), 166 credit institutions: supervision, 241 creep, competence, 24–26, 40–48, 49 crime: cross-border cooperation, 111 definition, 201 eurocrimes, 197, 201 organised, 180 criminal law, 12, 200 cooperation, 5

302 harmonisation: European Council, 88 Member States, 282 criminal matters: crimes, definition, 201 eurocrimes, 197, 201 Eurojust, 200, 201 Europol, 200, 201 financial interests of EU, crimes affecting, 201–202 judgments, recognition of, 199 judicial and police cooperation in, 11 judicial cooperation, 177, 179, 180, 182, 183, 196–202 judicial decisions, 180 mutual recognition, 199, 200 jurisdiction, 199 offences, 199, 200 ordinary legislative procedure, 199 police cooperation in, 177 preliminary rulings, 197 procedure, common minimum rules, 200 sanctions, 199, 200, 201 substantive criminal law, 197 UK situation, 198 criminal offences, 179 criminal proceedings: language rights in, 152 crisis management, 264, 265, 266 Crisis Management and Planning Directorate, 266 Croatia: Act of Accession, 170 Charter of Fundamental Rights adoption, 170 single currency, still to join, 117 cross-border crime, 204 cross-border health services, 219 cross-border implications: civil matters, 192 CRPD (Convention on the Rights of Persons with Disabilities), 168, 173 CSDP, see Common Security and Defence Policy cultural rights: in Charter of Fundamental Rights scope, 169 culture: subsidiary competence, 8 supporting competences, 24 customary international law, 58–59 customs duties, 18 customs union: exclusive competence, 22 cybercrime, 201, 204 Cyprus: banking crisis, 240 ESM and, Memorandum of Understanding between, 239 euro adoption, 224 stability mechanisms, 238 Czech Republic: Act of Accession, 170 asylum infringement cases by Commission, 188

Index Charter of Fundamental Rights adoption, 170 Constitutional Court, 67 Lisbon Treaty ratification, 37 single currency joining, 117 Daiichi Sankyo case, 253 damages: actions for compensation, 276 claims for, 279–80 Dassonville case, 209 data protection: case law, 152 Member States’ obligations, 106 national regulatory authorities, 82 death penalty prohibition: Charter of Fundamental Rights, 169 decentralised agencies, 98–99, 100 decentralised governance, 51 decentralised nature: EU, 284 integration regime, 5 judicial control, 278 decision-making: agencies, 98, 99, 100 Council, 131–33 European Central Bank, 241 European Council role, 87 mechanisms, 294 remoteness, 127 by unanimity: Common Foreign and Security Policy, 250–51 decisions: adoption, 89 CFSP use, 74 Commission, 134, 161 direct applicability not declared, 74 European Central Bank, 228 international agreements, adopted to conclude, 74 judicial, see judicial decisions making, see decision-making secondary law, 59–60 declarations: of competence, 258 unilateral, Member States, 54 deepening integration, concerns about, 112 defence, 8, 12 common, 265, 268–69 common policy, 265, 267, 268–69 Denmark opt-out, 112, 117 external relations, 262–69 mutual, 268 national sovereignty, 17 policy, 264 primary law, 263–64 public procurement, 264 secondary law, 263–64 solidarity, 267–68 see also Common Security and Defence Policy defence of EU interest: European Commission, 94–95 defence-related products, 264

Index Defrenne II case, 75–76, 175 delegated acts, 14, 51, 278 in hierarchy of norms, 59–62 implementing acts and, relationship between, 61 Lisbon Treaty, 50 revocation, European Parliament, 90 secondary law, 60 delegation to agencies, 99–101 delegations: Commission, 247–48 Council, 248 deliberative democracy, 127, 138 delimitation, competences, 28 democracy, 5 citizens, 127 Commission, 133–35 complexity, 127 conceptions of, 125–28 consensus, 133 constitutional order, 126 Council of the European Union, 131–33 deliberative, 127, 138 elections, free and periodic, need for, 125 equality, 126 EU system, 127 European Council, 133 legitimacy, 124–25 direct, 127 indirect, 127 Member States’ systems, 127 national, 130 national models of, 290 Parliament, 128–31 participatory, 126, 127, 136–38 political institutions, 128–35 primary law, 158 principles, 126 representative, 15, 126–27 respect for, 45, 52 right to, 126 substantive, 126, 127, 138–40 democratic deficit, 88, 92, 103, 124, 127, 128, 135, 136, 140, 289, 294 democratic governance, 15 democratic legitimacy, 48, 99 democratic polity of states and citizens as EU label, 8 Democratic Principles: Lisbon Treaty Provisions on, 103 democratic system of government, 289 democratisation, 288 demos, 125, 140 European, 155 Denmark: defence non-participation, 265 economic policy exemption, 115 euro opt-out, 224, 227 general principles of EU law not applicable in, 42, 54, 67, 72 law on accession to EU, 42 Maastricht Treaty negative referendum, 34

303

opt-out from defence, 112, 117 opt-out from freedom, security and justice, 109, 112, 114–15 single currency exemption, 115 Denning, Lord, 290 depositary insurance scheme, common, 242 derogations: single currency, 110, 112, 115–17 United Kingdom, 109 development: cooperation, 245, 255 international agreements, 257 international, 8 sustainable, 221, 253 differentiation, 5, 18, 108, 289 autonomous regions of Member States, 118 delays, 110 in existing law, 111–15 external aspects, 115, 118 within Member States, 118 potential, following from enhanced cooperation, 108 progressive integration, 110 in primary law, 108 regions of Member States, 118 scope for, 109 territories of Member States, 118 dignity, respect for, 45, 52, 57, 126 diplomatic authorities: protection by, 142–43, 156 diplomatic services, 16 Member States, 247 direct applicability, 289 Charter of Fundamental Rights, 174 decisions, not declared, 74 directives, not mentioned in definition, 73 EU law, 63, 72–80 international agreements, 74 monist systems, 79 primacy links, 72 primary law, 72 regulations, 72–73, 75 direct effect, 289 basic requirements, 77 bilateral association agreements, 80 Charter of Fundamental Rights, 174–76 competition, 215 cooperation agreements, 80 directives, 73–74, 76, 77 economic freedoms, 215 EU law, 63, 72–80 European Convention on Human Rights, 168 fundamental rights and, 157 horizontal, 75–76, 77, 175, 176 international agreements, 77–78 multilateral treaties, 80 primacy links, 72 primary law, 75 regulations, 73, 75 Treaties, 75 vertical, 75, 77

304

Index

direct legitimacy, 127, 131 direct participants: national parliaments, 104 direct representative democracy, 126–27 direct taxation, 206–207 directives, 14 adoption, 89 compensation by Member States, 77 consistent interpretation, 68–69, 70 direct applicability not mentioned in definition, 73 direct effect, 73–74, 76, 77 indirect effect, 68 secondary law, 59 directly-elected co-legislator: European Parliament, 88 disability discrimination, 159, 172–73 disarmament operations, joint, 265 disasters, 268 discrimination: age, 44, 159, 172 birth, 172 colour, 172 combating, 159, 172 consistency in approach lacking, 172 disability, 159, 172–73 employment, 159 equal pay, 171 equal treatment of men and women, 171–72 ethnic origin, 159, 172, 173 gender, 159, 171, 173 genetic features, 172 horizontal direct effect, 171 language, 172 minorities, 172, 173 nationality grounds, 153, 171 opinions, 172 political opinions, 172 prohibitions, Charter of Fundamental Rights, 169, 172–73 property, 172 race, 172, 173 racial origin, 172 religion or belief, 159, 172, 173 reverse, 210, 211 sex, 172 sexual orientation, 159, 172, 173 social origin, 172 see also non-discrimination disintegration, 294 divergent opinions: EU constitution concept, relating to, 5 division of powers, transparency in, 22 divorce, 122, 193, 194 documents: serving of, 195 Union citizens’ right of access to, 143 double majority voting: Council of the European Union, 93, 132 draft legislative acts: forwarded to national parliaments, 29 national parliaments, forwarded to, 41

Draghi, Mario, 228 dualism: monism and, distinction between, 78 Dublin Regulation, 181, 186–87, 189, 191 dumping socialism, 217 Dzodzi case law, 211–12 early warning system, 29 EASA (European Aviation Safety Agency), 100 EASO (European Asylum Support Office), 189 EBA (European Banking Authority), 228n, 240n EC, see European Community ECA, see European Court of Auditors ECB, see European Central Bank ECHA (European Chemicals Agency), 100 ECHR, see European Convention on Human Rights ECJ, see European Court of Justice ECOFIN, see Council for Economic and Financial Affairs economic and fiscal policy, 293 economic and monetary policy, 224–26, 292 Banking Union, 240–42 Council of the European Union role, 94 economic and fiscal surveillance, 229–36 institutional and procedural reforms, 6 reforms, 6, 11 stability mechanisms, 236–40 economic and monetary union, 16, 230, 289 Member States’ progress to, European Commission reporting on, 116 ultimate goal of, 116 economic cohesion, 215 economic cooperation: international agreements, 257 economic crisis, 291–92 economic freedoms: case law, 209 direct effect, 75, 215 fundamental rights and, 213 horizontal effect, 176 internal market, 207–13 legal security and, 213 in primary law, 209, 215 proportionality principle, 213 restrictions, 213, 217 social dimension, 219 social objectives defended by, 217 social policy objective and, 216 substantive democracy, 139 unrestricted movement, 212–13 economic governance, 6, 7, 238, 292 economic liberalism, 213 economic origins, integration, 215 economic policy, 18, 225 competences, 23 coordination, Member States, 229, 234 Council guidelines, 230 Denmark exemption, 115 European Commission monitoring, 94 guardian, Commission as, 243 limited nature of EU involvement in, 292

Index Member States’ surveillance of, 116 multilateral surveillance, 234 UK exemption, 115 economic rights: in Charter of Fundamental Rights scope, 169 economic surveillance, 229–36, 243 economically active persons: freedom of movement, 149 economically non-active persons: freedom of movement, 148, 151–52 Union citizens, 155 economy, 289 ECtHR (European Court of Human Rights), 47, 158, 167 EDA (European Defence Agency), 98, 264, 265, 267 EDP, see Excessive Deficit Procedure education: grants and loans, case law, 152 high level of, 216 subsidiary competence, 8 supporting competences, 24 EEA (European Economic Area), 18, 118–19 EEAS, see European External Action Service EEC (European Economic Community), 2, 10 EESC (European Economic and Social Committee), 84 effective remedies: right to, Charter of Fundamental Rights, 81, 278 effectiveness principle, 281 EFSF (European Financial Stabilisation Facility), 237–38, 243 EFSM (European Financial Stabilisation Mechanism), 237, 238 EFTA Court, EEA, 118 EIB (European Investment Bank), 98–99 EIOPA (European Insurance and Occupational Pensions Authority), 228n, 240n EJTN (European Judicial Training Network), 195 elderly persons’ rights: Charter of Fundamental Rights, 169 elections: free and periodic, need for, 125 Member States, for European Parliament, 129 Parliament, see European Parliament public order standards for, 126 standing in, Charter of Fundamental Rights, 142 electronic communications: networks and services, 107 employment: discrimination, 159 high levels, promotion of, 216 highly qualified, 190 regulating, 214 employment policy, 18 competences, 23–24 energy: markets, Member States’ obligations, 106 national regulatory authorities, 82 policy, 246 shared competences, 8, 23

305

Energy Regulators, Agency for the Cooperation of (ACER), 100 enforcement and control, 270 European Ombudsman, 271–72 financial control by Court of Auditors, 271, 272 judicial, see judicial control Members States’ courts and authorities, 280–87 political control by European Parliament, 271 Union institutions and bodies, 271–80 enforcement network, 106 enforcement of law, 6 enhanced cooperation, 120–23 Member States, 133 Rome Regulations, 194 Treaties amendments, 39 enhanced surveillance, 226 ENISA (European Network and Information Security Agency), 99 enlargement of EU, 3 ENO (European Network of Ombudsmen), 271 entrepreneurs, rights, 219 environment, 289 international agreements, 257 policy, 220 primary law, 222 secondary law, 222–23 shared competences, 23 environmental damage, 222 environmental law: international agreements, 222–23 polluter pays, 139 precautionary principle, 139 uniformity in, 111 environmental policy, 10, 246, 293 shared competence, 257 environmental protection, 205 case law, 221, 223 shared competence, 8 environmental requirements: common commercial policy, 253 EPPO (European Public Prosecutor’s Office), 98, 200, 201–202 EPSO (European Union Personnel Selection Office), 101 equal pay, 75, 171, 214 equal treatment, 5, 171–72, 218 equality: between men and women, 171–72 democratic principle, 126 general principles of law, 55 Member States before Treaties, EU respect for, 14 respect for, 45, 52, 57, 126 equivalence principle, 281 ERT case, 162 ESA (European Supervisory Authorities), 240–41 ESCB (European System of Central Banks), 226, 227 ESDC (European Security and Defence College), 265 ESFS (European System of Financial Supervision), 241, 243 ESM, see European Stability Mechanism ESMA case, 99–101

306 ESMA (European Securities and Markets Authority), 100, 228n, 240n ESRB (European Systemic Risk Board), 228, 241 essential functions: Member States, EU respect for, 14, 19, 21 ESTA (US Electronic System for Travel Authorization), 191 establishment, right of, 75, 139, 159, 207 Estonia: euro adoption, 224 single currency, joined, 117 ETAC (European Tactical Airlift Centre), 265 ethnic origin discrimination, 159, 172, 173 ETIAS (European Travel Information and Authorisation System), 191 EU Blue Card, 190 EU constitution, 5 EU Naval Force—Mediterranean Operation Sophia (EU NAVFOR MED), 189, 266 EU OPCEN (European Union Operations Centre), 266 EUIPO (European Union Intellectual Property Office), 100 EUISS (European Union Institute for Security Studies), 265 EUMC (European Union Military Committee), 266 EUMS (European Union Military Staff), 266 Euratom (European Atomic Energy Community), 2, 12 euro: crisis, 225, 228, 231–32, 289 interest rates, 227 legislative measures, 228 single exchange rate, 227 see also single currency Euro Group, 93–94, 116, 229 Euro Summits, 229, 243 euro zone, see Member States Eurobonds, 293 eurocrats, 84, 107 eurocrimes, 197, 201 Eurojust, 98, 200, 201, 203 l’Europe sociale, 207, 214 European Agenda on Security, 204 European Anti-Fraud Office (OLAF), 101, 203 European arrest warrant, 150, 179, 180, 197, 200 European Asylum Support Office (EASO), 189 European Atomic Energy Community (Euratom), 2, 12 European Aviation Safety Agency (EASA), 100 European Banking Authority (EBA), 228n, 240n European Border and Coast Guard Agency, 101, 103, 185 European Border Surveillance System (Eusosur), 114 European Central Bank (ECB), 115, 224 actions brought by, 275 acts, annulment applications, 275 decision-making, 241 credit institutions supervision, 241 evolution, 85 Executive Board, 227

Index Governing Council, 227–28 interest rates setting, 227, 229 legitimacy, 243 Member States’ progress to economic and monetary union, reporting on, 116 monopoly to issue banknotes and coins, 227 sincere cooperation, 86 stability loans, monitoring, 238 Statutes amendment by ordinary legislative procedure, 39–40 European Certificate of Succession, 194 European Chemicals Agency (ECHA), 100 European Chief Prosecutor, 202 European Coal and Steel Community, 2, 9, 288 European Commission, 10, 86 acts, annulment applications, 275, 276 administrative power, 134 advisory procedure, 97 agencies, 98–101 agenda-setting, 246 annual general report to Parliament, 135 Better Regulation Guidelines, 30 budgetary functions, 88, 89, 94 budgetary situation monitoring, 230 censure by Parliament, 90 citizens’ initiatives, 135 Commissioners’ resignation requirement by Parliament, 90 committees, 96–98 Common Approach, 98 Common Foreign and Security Policy outside enforcement powers, 285 complete independence, 95 control by Parliament, 135 cooperation modalities with Parliament, 90–91 decisions, 134 legality, 161 defence of EU interest, 94–95 delegated acts, 60 delegations, 247–48 democracy, 133–35 as economic policy guardian, 243 economic policy monitoring, 94 enhanced cooperation proposals, 120 European Agenda on Security, 204 European Council appointing members, 87, 95 evolution, 85 ex ante scrutiny of programme planning and impact assessment mechanisms, 29 examination procedure, 97 executive role, 94, 96 external representation, 246 Framework Agreement with Parliament, 90–91 fundamental rights commitment joint declaration, 157 Future of Europe White Paper, 109 general interest promotion, 95 government debt monitoring, 230 Green Papers, 138 guardian of the Treaties, 94, 95 guidelines, 62

Index implementing measures, 134 implementing powers, 61, 94, 97 independence, 95 infringement action for, 95 infringement proceedings against Member States, 83, 283, 284–87 initiative, right of, 84, 95, 134, 183 international representation of EU, 249 law-making, 84 legislative acts adoption, 134 legislative agenda, influence over, 95 legitimacy, 243 Member States’ progress to economic and monetary union, reporting on, 116 members, 95, 96, 124, 134 non-legislative acts, 60 Operating Framework, 98 ordinary legislative procedure, 89 Parliament control of, 90, 96 personnel, 84 policy-shaping role, 94 political role, 95 President, 124 election by European Parliament, 88, 89, 130, 134 legislative agenda influence, 95 programme management, 94 proposals by Council, 134–35 proposals by Parliament, 134 reasoned opinions from national parliaments, 29 regulatory procedure with scrutiny, 97 representation, 96 resignation requirement by Parliament, 90, 96, 135 sincere cooperation, 86 stability loans, monitoring, 238 Treaty amendments involvement, 40 Union citizenship reports, 156 unity in diversity, 95 White Papers, 138 working groups, 98 European Community (EC), 2, 10 disappearance, 12 European Convention on Human Rights (ECHR), 71, 125, 289 case law, 167 Charter of Fundamental Rights rights resulting from, 166 direct effect, 168 EU accession, 158 EU competence to accede to, 167–68 fundamental rights guidelines, 165–6 European Council, 10, 18, 86–87 acts, annulment applications, 275, 276 appointing European Commission members, 87, 95 Commission members appointing, 87, 95 consensus, 87, 133 constitutional role, 87 Conventions, 37 criminal law harmonisation, 88 decision-making role, 87 democracy, 133

307

evolution, 85 final arbiter in legislative matters, 88 heads of state of Member States, 87 indirect legitimacy, 133 institutionalisation, 93 intergovernmental element, 88 judicial control, 274 law-making, 84 Lisbon Treaty emphasis on, 35 Member State representation, 133 Member States’ central government, 102 President, 87, 93, 124 Common Foreign and Security Policy role, 87 external representation overall responsibility, 247 proposals to European Commission, 134–35 qualified majority decision-making, 87, 88 simple majority decision-making, 87 sincere cooperation, 86 strategic interests and objectives of EU, identifying, 246 Treaty amendments: involvement, 40 simplified revision procedure, 38, 239 unanimity in, 27, 39 European Court of Auditors (ECA), 85, 86, 275 European Court of Human Rights (ECtHR), 47, 158, 167 European Court of Justice (ECJ): access to, 44–45 actions brought by, 275 Charter of Fundamental Rights, citing, 159 Commission acts, annulment applications, 276 as constitutional court, 276 Council acts, annulment applications, 276 European Convention on Human Rights, citing, 168–69 findings, test of legitimacy of, 46 formation, 10 fundamental rights, 157–58, 164–65 general principles of law, findings, 46 independent source of law, 12 inter-institutional cases, 276 jurisdiction, 251, 276 legislative acts invalidity, 169 Member States, actions brought by, 276 Member States, infringement, action by Commission before, 283, 284–87 national constitutional courts and, 167 Parliament acts, annulment applications, 276 preliminary rulings, 83, 167, 276 criminal matters, 197 national courts, 282–83 stability mechanisms, 238 role in constitutional structure, 46 rule of law role, 46 rulings, national courts, 278 stability mechanisms rulings, 238, 239–40 task to uphold law, 43 ultra vires judgments, 49, 67 validity of EU acts, ruling on, 68 see also Court of Justice of the European Union

308

Index

European Defence Agency (EDA), 98, 264, 265, 267 European Defence Fund, 269 European Delegated Prosecutors, 202 European Economic and Social Committee (EESC), 84 European Economic Area (EEA), 18, 118–19 European Economic Community (EEC), 2, 10 European External Action Service (EEAS), 16, 103, 143, 247, 266, 291 European Financial Stabilisation Facility (EFSF), 237–38, 243 European Financial Stabilisation Mechanism (EFSM), 237, 238 European Insurance and Occupational Pensions Authority (EIOPA), 228n, 240n European Investment Bank (EIB), 98–99 European Judicial Network in Civil and Commercial Matters, 195 European Judicial Training Network (EJTN), 195 European monetary fund, 293 European Network and Information Security Agency (ENISA), 99 European Network of Ombudsmen (ENO), 271 European Ombudsman, 137, 143, 271–72, 286 European Parliament, 10, 86 acts, annulment applications, 275, 276 budgetary functions, 88, 89–90 citizens petitioning, 137 citizens’ votes, 128 Commission annual general report to, 135 Commission, control of, 90, 96, 135 Commission members consent, 134 Commission President election, 124, 134 Commission resignation requirement by, 135 committees, 91 Common Foreign and Security Policy and, 89 composition, 128 Conciliation Committee members, 89 consent of, 27 consultation functions, 88 cooperation modalities with Commission, 90–91 delegated acts revocation, 90 democracy, 128–31 democratic deficit, 128 direct elections, 10 directly-elected co-legislator, 88 elections, 128, 290 free movement of persons, 129 popular participation in, 129–30 proportional representation, 129 voter turnout, 131 voting conditions, 129 voting in, case law, 152 enhanced cooperation consent, 120 euro legislative measures, 228 European Commission censure by, 90 evolution, 85 external relations, 89 Framework Agreement with Commission, 90–91 fundamental rights commitment joint declaration, 157

holding other institutions to account, 90 international agreements, 89, 249 law-making, 84 legislative functions, 88, 89 members, 128 ordinary legislative procedure, 89 pan-European candidates, 129 political control functions, 88, 90 President of Commission election, 88, 90 proposals to European Commission, 134 real powers, 91, 130 representatives of citizens, 128 seats per Member State, 128 shadow of the vote, 90 sincere cooperation, 86 special legislative procedure, 89 Treaty amendments: consent, 39 consultation, 38, 39 involvement, 40 Union citizens’ right to petition, 143 European Pillar of Social Rights, 220 European Police College (CEPOL), 202 European Police Office, see Europol European political space, 155 European Prosecutors, 202 European Public Prosecutor’s Office (EPPO), 98, 122, 200, 201–202 European Securities and Markets Authority (ESMA), 100, 228n, 240n European Security and Defence College (ESDC), 265 European Semester, 232 European Social Charter of 1961, 166, 216 European Social Model, 214 European Stability Mechanism (ESM), 233–34, 238, 239, 243 European Supervisory Authorities (ESA), 240–41 European System of Central Banks (ESCB), 226, 227 European System of Financial Supervision (ESFS), 241, 243 European Systemic Risk Board (ESRB), 228, 241 European Tactical Airlift Centre (ETAC), 265 European Travel Information and Authorisation System (ETIAS), 191 European Union Agency for Fundamental Rights (FRA), 160 European Union Agency for Law Enforcement Cooperation, see Europol European Union Institute for Security Studies (EUISS), 265 European Union Intellectual Property Office (EUIPO), 100 European Union Military Committee (EUMC), 266 European Union Military Staff (EUMS), 266 European Union Operations Centre (EU OPCEN), 266 European Union Personnel Selection Office (EPSO), 101 European Union Satellite Centre (SatCen), 265 Europeanisation of organised crime, 180 Europol, 98, 200, 201, 202–203, 204

Index eurosceptic movement, 35 Eurostat, 101 Eurosur (European Border Surveillance System), 114 evidence, taking of, 195 ex ante political control: subsidiarity principle, 28 ex ante scrutiny of programme planning and impact assessment mechanisms, 29 ex post judicial control: subsidiarity principle, 28–31 examination procedure: European Commission, 97 Excessive Deficit Procedure (EDP), 116, 226, 230–31, 232–36, 243 see also Stability and Growth Pact exchange rate, single, 227 exclusive competence, see competence executive agencies, 101 executive powers: Council, 94 executive role of Commission, 94, 96 expenditure, public, 219 expert opinions: agencies for preparation, 100 expulsion: Charter of Fundamental Rights, 191 Union citizens, 149–50 external aspects of differentiation, 115, 118 external borders, 15–16 external manifestation of internal power to legislate, 248 external relations, 6, 16, 244–46, 291, 292 competences, 252–59 European Parliament, 89 exclusive competence, 252–58 external manifestation of internal power to legislate, 248 human rights promotion in, 160 institutional framework for external action, 246–51 Member States, 245–46 Member States and EU, 259–62 policies, 160 security and defence, 262–69 shared competence, 245–46, 252, 253, 257 external representation: Commission, 246 external transport policy, 246 extradition: Union citizens, 150 extrajudicial cases: mutual recognition of judgments and of decisions in, 192 fact, national law as question of, 83 failure to act: actions for, 275–76 fair sharing of responsibility: asylum, 186, 188 fair trial, right to, 81, 278

309

families: law, 193, 195 life, right to, 165 members, Union citizens, 142, 149–50, 154, 184 names, rights to, case law, 152, 155 reunification, 190 FDI, see foreign direct investment federal constitutions, 32 federalism, cooperative, 190 federation: confederation and, distinction between, 13 as EU label, 8 ‘federative’, 13 federative associations, 6, 8, 104, 206 federative construction, EU as, 190 financial assistance to third countries: human rights, 160 financial authorities, 100–101 financial control: by Court of Auditors, 271, 272 financial cooperation: international agreements, 257 financial institutions: recapitalisation, 237 supervision, 101 surveillance and resolution, 240 financial interests of EU: crimes affecting, 201–202 financial sanctions: transferred to European Stability Mechanism, 238 financial surveillance agencies, 243 financial transaction tax: enhanced cooperation, 122 financing, agencies, 101 Finland: non-NATO member, 118 Fiscal Compact, see Treaty on Stability, Coordination and Governance in the Economic and Monetary Union fiscal governance, 292 fiscal surveillance, 229–36 fisheries organisations: Member States’ membership, 252 fisheries policy, common, 22, 222 fishing agreements: exclusive competence, 252 flanking measures: common commercial policy, 253 flexibility, 18, 108, 289 enhanced cooperation, 120 Maastricht Treaty, 111 flexible labour market, 214–15 Florescu case, 163 Foreign Affairs Council, 93, 246, 247 Foreign Affairs Representative, 10, 93, 246–49, 267, 291 foreign direct investment (FDI): exclusive competence, 252–53 foreign exchange regime: international agreements, 257

310

Index

foreign policies: Member States, 17 forum shopping, 186 Foto-Frost case, 283 ‘foundations of Community legal order’ (CJEU), 4 FRA (European Union Agency for Fundamental Rights), 160 Framework Agreement: Parliament and Commission, 90–91 Framework Convention on Climate Change (UNFCCC), 58, 80, 223 framework decisions: binding character, 70 France: Constitutional Treaty negative referendum, 35 sanctions possibility, 231 UN Security Council permanent seat, 245, 261 Francovich principle, 102, 283–84 free competition, 206 freedom, 5 respect for, 45, 52, 57, 126 see also area of freedom, security and justice; economic freedoms; fundamental freedoms freedom of movement: capital, see capital, free movement case law, 148–49, 151, 152–53 economically active persons, 149 economically non-active persons, 148, 151–52 effectiveness, 218 extent, evolution of, 213 goods, see goods job-seekers, 149, 151 nature, evolution of, 213 persons, see persons, free movement principles, 218 self-employed persons, 149 services, see services social assistance and, 149–51 social law and, 214 social security and, 151–52 students, 151 Union citizens, 148–49 workers, see workers see also establishment, right of freedom to travel: third-country nationals for short periods, 184 freelancers, 219 Frontex, see Border Control Agency functional integration, 9 functional principles and rules, 138 functional responsibilities, agencies, 100 fundamental freedoms, 208 general principles of law, 55 see also area of freedom, security and justice fundamental rights, 5, 15, 51, 53, 54, 138, 215, 289 application at Member State level, 162–65 asylum, 187, 191 case law, 157–60, 162–63 as guidelines, 165–66 reconsideration in light of ECHR developments, 166–67

as constitutional concept based on case law, 160 ECJ, 157–58, 164–65 economic freedoms and, 213 equal treatment of men and women, 171–72 EU law as source, 158 European Convention on Human Rights guidelines, 165–6 general principles of law, as part of, 165 horizontal effect, 176 human rights and, conceptual distinction between, 160 immigration, 191 legal order, 161 material scope, 165–70 Member States, see Member States non-discrimination, 171–73 primary law, 158, 160, 162 protection, 160–1 relevance, 159 respect for, 158 at all levels of governance, 161 respect for, 205–206 scope, 165–70 secondary law, 159, 160 sources, 165–70 see also Charter of Fundamental Rights Fundamental Rights Agency (FRA), 160 Fundamental Rights, Charter of, see Charter of Fundamental Rights Future of Europe, Convention on the, 28 GATT (General Agreement on Tariffs and Trade), 78 Gauweiler case, 236 GDP, see gross domestic product gender discrimination, 159, 171, 173 General Agreement on Tariffs and Trade (GATT), 78 General Court: annulment of legislative acts, actions for, 276, 279 damages, claims for, 279–80 failure to act, actions for, 276 legal persons, actions brought by, 276 direct and individual concern, 277 direct concern, 277–78 individual concern, 277 against regulatory acts, 277–78 natural persons, actions brought by, 276 direct and individual concern, 277 direct concern, 277–78 individual concern, 277 against regulatory acts, 277–78 non-privileged applicants, 275 general enabling clause: Treaties amendments, 39 general interest promotion: Commission, 95 general international law, 51, 58–59 general passerelle: Treaties amendments, 38–39 general principles developed through case law, 42

Index general principles of law, 51 case law, developed through, 42 constitutional status, 4 effective judicial protection, 55 equality, 55 findings of ECJ, 46 fundamental freedoms, 55 fundamental rights as part of, 165 good administration, 55 human rights protection, 55 judges, enunciated by, 46 key source of law, 54 mutual recognition, 55 non-discrimination, 55 proportionality principle, 55 rule of law, 55 subsidiarity principle, 55 genetic features discrimination, 172 Geneva Convention of 1951, 186 Germany: Constitution, 40 Constitutional Court, 66–67, 124, 290 sanctions possibility, 231 global governance, 13 global stage dominated by big players, 291 globalisation, 220 Golden Shares case law, 139, 208–209 good administration: Charter of Fundamental Rights, 143 general principles of law, 55 good federative associations, 6, 288 good governance: participation and, 137–38 goods: free movement, 159, 207 direct effect, 75 substantive democracy, 139 international trade in: exclusive competence, 252–53 governance, 289 decentralised, 51 democratic, 15 economic, 6, 7, 238, 292 fiscal, 292 fundamental rights, respect for at all levels of, 161 global, 13 good, see good governance multilateral, 13 multilevel, see multilevel governance national levels, 20 supranational levels, 20 government debt: Member States, 230 grants: education and training, case law, 152 Greece: assistance, bilateral loans for, 237 conditionality imposed by stability mechanism, 226 euro adoption, 224 euro crisis, 225, 226 stability mechanisms, 237, 238

311

Green Papers, European Commission, 138 gross domestic product (GDP): Member States, 230 guardian of the Treaties: European Commission, 94, 95 guidelines, soft law, 62 Hague Conference on Private International Law (HCCH), 177 harmonisation: internal market measures, 25 HCCH (Hague Conference on Private International Law), 177 health: human, 24 protection, 216, 221 public, 8 services, cross border, 219 hierarchical order of EU law: consistent interpretation application within, 70 hierarchy of norms: EU constitution concept, relating to, 5 foundations of EU legal order, 52–53 internal, 51, 289 international law, 57–59 meaning, 50 national constitutions, 56–57 notion of in multilevel governance, 50–51 primary law, 53–57 secondary law and other acts of the institutions, 59–62 high level security, promoting, 180 High Representative of the Union for Foreign Affairs and Security Policy, 10, 244 see also Foreign Affairs Representative highly qualified employment: status for third-country nationals, 190 historical development of EU, 9–12 Hobbes, Thomas, 270, 285, 286 horizontal direct effect, 75–76, 77, 171, 175, 176 horizontal effect, 176 horizontal networks, 106 human beings, trafficking in, 197, 201 human health: protection and improvement, 24 human rights: fundamental rights and, conceptual distinction between, 160 immigration, 191 promotion in external relations, 160 protection, general principles of law, 55 respect for, 45, 52, 57, 126, 158 violations, 155 humanitarian aid, 8, 245, 255 humanitarian tasks, 265 Hungary: asylum infringement cases by Commission, 188 fundamental rights protection, 160 rule of law, respect for, 287 single currency joining, 117 hybrid nature of EU, 5

312

Index

ICAO, see International Civil Aviation Organization ICCPR (International Covenant on Civil and Political Rights), 125, 136, 166 Iceland: EEA member, 18, 118 in Schengen regime, 109, 115 illegal immigrants, 180, 190 illegal migration, cross-border cooperation, 111 illegally-staying third-country nationals, 190–91 ILO, see International Labour Organisation IMF (International Monetary Fund), 234, 237 immigration, 12, 177, 289 border checks, 183–84 common policy, 190–91 crisis, 7 fundamental rights and, link between, 191 human rights, 191 illegal immigrants, 180, 190 influx of immigrants, 180 legal workers, 190 national sovereignty, 17 policy, 5, 16 regulating, 178 impact assessment mechanisms: ex ante scrutiny of, 29 implementation of law, 6 implementing acts, 14, 51, 278 delegated acts and, relationship between, 61 in hierarchy of norms, 59–62 Lisbon Treaty, 50 secondary law, 60–61 implementing measures: European Commission, 134 implementing powers: Council of the European Union, 94 European Commission exercise of, 94, 97 implicit competence, 256, 257 incomplete federation as EU label, 8 independence: CJEU, 274 complete, European Commission, 95 independent source of law, 12 indirect effect: directives, 68 indirect legitimacy, 127 Council of the European Union, 131 European Council, 133 indirect representative democracy, 126–27 indirect taxation, 18, 207 individuals, actions brought by, 275 industrial designs, 100 industry, supporting competences, 24 inequalities elimination, 171 inflation, 224 influence, 289 spheres of, 119 information dissemination: agencies’ functions, 100 infringement: European Commission action for, 95

Member States, action by Commission before ECJ, 283, 284–87 Member States’ proceedings against other Member States, 285 initiative: citizens, 136–37 European Commission right of, 84, 95, 134, 183 innovation, 219 insolvency, 194 institutional balance, 86, 91, 99 institutional framework, 84–107 for external action, 246–51 institutional system, 289 institutionalisation: European Council, 93 institutions: EU, actions brought by, 275 Member States, 62, 102–107 instrumentalisation: national law for EU law purposes, 80, 81–82 instruments, soft law, 62 insurance companies, supervision, 228 integrated legal system and structure, EU, 13 integration, 2, 289 acceptance by citizens and institutions of Member States, 48 ambivalence towards, 4 circles of, 119 decentralised nature of regime, 5 deepening, concerns about, 112 economic origins, 215 functional, 9 hesitation about, 290 intergovernmental conferences strengthening, 35 opposition to, 290 process, 3 progressive, 110 reversing, 291 social dimension, 216 spillover, 293 stopping, 291 third-country nationals, 191 Treaties, scaling down levels, 33 UK concerns, 3 integrationist ambitions, 111 intellectual property: commercial aspects: exclusive competence, 252–53 trade-related rights: shared competence, 253 inter-institutional agreements, 62 inter-institutional cases, ECJ, 276 interest rates: European Central Bank setting, 227, 229 intergovernmental activity: Council of the European Union, 91 intergovernmental agreements: economic stability and governance in Economic and Monetary Union of 2012, 111, 116 European Stability Mechanism, 238–39

Index intergovernmental approach: Lisbon Treaty, 35 intergovernmental characteristics, 18 intergovernmental conferences: integration strengthening, 35 Treaties amendments, 34–35, 36 intergovernmental cooperation, 177 intergovernmental element: European Council, 88 intergovernmental mechanisms, 243 intergovernmental meetings, 243 intergovernmental procedures, 243 intergovernmentalism, 18 internal border controls: abolition, 10, 18 temporary reintroduction, 184–85 internal competence, 256 internal hierarchy of norms, 289 internal law and order, 8 internal market, 5–6, 205–207, 293 cohesion, 8 competition rules, exclusive competence, 22 economic freedoms, 207–13 uniformity in, 111 EEA member states opt-in, 118–19 environment, 220–23 external borders distinct from, 15–16 functional principles and rules, 138 harmonisation measures, 25 shared competences, 23 social dimension, 214–20 UK participation post-Brexit, 120 of Union citizens, 144 internal power to legislate: external manifestation of, 248 internal security: Member States safeguarding, 273, 285 international agreements, 14, 248 binding on EU, 51 challenge after conclusion, mechanism to reduce, 249–50 common commercial policy, 257 concluding: competence, 22 by Council, 248, 249 consent by, or consultation of Parliament, 248 Council concluding, 248, 249 decisions adopted to conclude, 74 development cooperation, 257 direct applicability, 74 direct effect, 77–78 ECJ jurisdiction, 251 economic cooperation, 257 effects on EU legal order, 78–80 environment, 257 environmental law, 222–23 EU alone, 6 by EU, binding on Member States, 70–71 exclusive competence, 254, 255, 256 financial cooperation, 257 foreign exchange regime, 257

313

as integral part of EU legal order, 70 international law, 57–59 as interpretation tools, 70 judicial proceedings, 249 Member States, 6, 22–23, 256, 257 mixed, 6, 254, 256, 258, 262 monetary regime, 257 negotiation by Commission, 248, 249 Parliament, 89, 249 primary law on conclusion of, 257 readmission agreements, 257 technical cooperation, 257 International Civil Aviation Organization (ICAO): EU and, Memorandum of Cooperation, 261–62 International Covenant on Civil and Political Rights (ICCPR), 125, 136, 166 international development cooperation, 8 International Labour Organisation (ILO): Conventions adopted by, 166 international law: customary, 58–59 general, 51, 58–59 in hierarchy of norms, 57–59 international agreements, 57–59 judicial reviews, 59 legislative acts, 58 mixed agreements, 58 monist approach to, 70, 74 private, see private international law public, see public international law International Monetary Fund (IMF), 234, 237 international obligations: Charter of Fundamental Rights rights resulting from, 166 Member States, rights resulting from, 166 international organisation as EU label, 8 international organisations: full EU membership and, 259–62 Member States’ membership of, see Member States international protection: third-country nationals needing, 186 international relations, see external relations international representation, Commission, 249 international soft law instruments, 166 international trade, 7–8, 245 International Transport Workers’ Federation case, 176 internationalisation of organised crime, 180 interpretation: conformity of EU law in national legal orders through, 68–72 international agreements as tools for, 70 national courts, 282 secondary law, 161 interprétation conforme, see consistent interpretation Intertanko case, 78 intransparent decision-making: Council of the European Union, 124, 131 inverted majority voting, 234 investigative actions, Europol, 203 investment funds, supervision, 228 investor-to-state dispute settlement, 253–54

314

Index

involvement, citizens, 136 Iraq: military operations in, 8 Ireland: banking crisis, 240 euro crisis, 225 Lisbon Treaty negative referendum, 35 military neutrality, 117 neutrality, 268 Nice Treaty negative referendum, 34–35 opt-out from freedom, security and justice, 109, 112, 117 opt-out from Schengen regime, 109, 112, 113, 115 stability mechanisms, 237, 238 iura novit curia, 281 Jacobs, FG, Advocate General, 144–45, 154, 156 job-seekers: freedom of movement, 149, 151 joint disarmament operations, 265 joint investigating teams, 202 joint undertakings, 101–102 judge-made law, 40, 46, 75 judges: CJEU, 274–75 contributions to development of EU law, 43 general principles of law enunciated by, 46 interpretation of sources of law, 51 law, contributions to development of, 43 rule of law, contributions to development of, 43 judgments: CJEU, 275 enforcement, civil matters, 193 recognition of, criminal matters, 199 judicial activism, 43, 45, 64, 75–76, 157, 275 judicial and police cooperation in criminal matters, 11 judicial control, 15, 272 Common Foreign and Security Policy, 250–51, 273–74 competences, 28 Courts, 274–80 decentralised nature, 278 European Council, 274 national law enforcement, 273 subsidiarity principle, 28–31 judicial cooperation: civil matters, 177, 179, 180, 192–96 criminal matters, 177, 179, 180, 182, 183, 196–202 judicial decisions: criminal matters, 180 legality, 161 mutual recognition of, 180–81 criminal matters, 199, 200 judicial institutions and bodies, 84 judicial proceedings: international agreements, 249 judicial protection: Charter of Fundamental Rights, 276, 280–81 general principles of law, 55 judicial remedy rights: Charter of Fundamental Rights, 169

judicial reviews, 44–45, 59 judicial systems: Member States, not functioning, 283 Juncker, Jean-Claude, 134 jurisdiction: courts, civil matters, 193 criminal matters, 199 European Court of Justice, 276 justice, 5, 57 access to, civil matters, 194–95 equal treatment of men and women, 171–72 social, 205, 215 see also area of freedom, security and justice justice and home affairs, 177 Kadi case, 45–46, 52–53, 57, 158, 261 Kant, Immanuel, 288 KB case, 162–63 Keck case, 212 Kissinger, Henry, 244, 246, 252 Kücükdeveci case, 163, 175, 176 labour market, flexible, 214–15 labour policy, shared competence, 8 labour rights, 216 Laeken Declaration (2001): 20, 27 language: discrimination, 172 rights in criminal proceedings, 152 Latvia: euro adoption, 224 single currency, joined, 117 Laval case, 216–17 law: constitutional, 12–13 EU: application and administration, Member States, 105 Charter of Fundamental Rights and, 164 consistent interpretation, 63, 68–72 Court’s task to uphold, 43 criminal, 12 direct applicability, 63, 72–80 direct effect, 63, 72–80 enforcement, 6 fundamental rights source, 158 general principles, Court’s findings, 46 implementation, 6, 105, 106–107 independent source of, 12 interpretation of national law in conformity with, 63 judges’ contributions to development of, 43 making, 84 material scope, 152 Member States implementation, general obligation, 81 Member States legal protection in field covered by, remedies, 81 Member States, obligations under, failure to fulfil, 283 mutual recognition principle, 167

Index national checks, 48 national courts’ incorrect application, liability for, 284 national level application, 105 nationality of Member States due regard to EU law, 147 norms, 282 primacy of EU law, 14, 63, 64–68 procedural rules, 280–81 questions raised on own initiative by national courts (ex officio), 281–82 stemming from Treaty, 12 written, amendments to, 43 see also primary law; secondary law internal law and order, 8 judge-made, 40, 46, 75 penal, 17 Treaties application, observed in, 44 see also general principles of law; national law; private international law; public international law; rule of law; soft law law and order maintenance: Member States responsibilities, 273, 285 law-making, 84 Law of the Sea Convention, see UN Convention on the Law of the Sea legal acts, 278 adopted by EU institutions, 71 legal aid, 195 legal and constitutional order, EU as, 4, 5 legal controls, 289 legal norms, 50 legal order: EU, as integral part of, 70 EU, international agreements effects on, 78–80 foundations, primary law and, relationship between, 51–52 fundamental rights, 157, 161 hierarchy of norms foundations of, 52–53 internal hierarchy, 51 unity of, 64 value foundations, 51 legal persons: General Court actions brought by, 275, 276 direct and individual concern, 277 direct concern, 277–78 individual concern, 277 against regulatory acts, 277–78 legal protection: Member States, in fields covered by EU law, 278 legal relations between Member States, 262 legal security: economic freedoms and, 213 legal separation: enhanced cooperation, 122 legal system: common, 15 integrated, 13 legal workers, immigration, 190 legality: agencies, 99

315

judicial decisions, 161 secondary law, 161 legally binding acts: exclusive competences, 22 legislation: exclusive competence to legislate, 15 power to legislate, 15 legislative acts, 51 annulment of, actions for, 275–76, 279 European Commission adoption, 134 in hierarchy of norms, 59–62 internal competence, 256 international law, 58 invalidity, ECJ, 169 Lisbon Treaty, 50 national courts, tasks for, 106 secondary law, 51, 59–60, 62 legislative agenda: European Commission influence over, 95 legislative functions: Council of the European Union, 88, 89, 91 European Parliament, 88, 89 legislative matters: European Council final arbiter in, 88 legitimacy, 124–25 Council of the European Union, 131 democratic, 48, 99 direct, 127 indirect, 127 legitimisation, outcome-based, 138 Lenaerts, K, 69, 76 liberal democracies, 288 liberal economics, 207, 208 liberty, 5 Libya, 189 military operations in, 8, 267 Liechtenstein: EEA member, 18, 118 in Schengen regime, 109, 115 linguistic staff, 84 Lisbon Treaty, 1–2 British Conservative Party opposition to, 33 Common Foreign and Security Policy (CFSP), 245 Common Security and Defence Policy (CSDP), 245 competence, 20, 21, 25–27, 35–36, 253 Declaration attached to Lisbon Final Act: primacy, 66, 67 defence, 8 delegated acts, 50 Democratic Principles, 146 enhanced cooperation, 120 entry into force delayed by single member state referendum, 34–35 European Council, emphasis on, 35 European Public Prosecutor’s Office, 201 external action of EU, 246 external affairs, 291 fundamental rights, 164 High Representative of the Union for Foreign Affairs and Security Policy, 244 implementing acts, 50

316

Index

intergovernmental approach, 35 internal market, 205–207 international agreements, 248, 257 judicial control, 272, 274–79 legislative acts, 50 national constitutions, 56 national parliaments’ role, 103–104 Protocol on subsidiarity and proportionality, 28–31 Provisions on Democratic Principles, 103 security, 8 simplified revision procedures, 38, 289 subsidiarity, 289 Lithuania: euro adoption, 224 single currency, joined, 117 loans: education, case law, 152 stability, 238 training, case law, 152 local bodies: Member States, 104–105 local self-government roles, 15 long-term residents, 190 long-term visas, 190 loyal cooperation, 14, 15, 258–59 Maastricht Treaty, 2, 10 citizenship of the Union, 141 common currency, 225–26 entry into force delayed by single member state referendum, 34–35 flexibility, 111 fundamental rights, 44, 158 Justice and Home Affairs, 177 national constitutions, 56 opt-outs, 111 rule of law, 44 terrorism, 197 variable geometry, 111 see also Treaty on European Union macro-economic realities, euro zone, 229 macro-prudential supervision, 228, 240 maintenance obligations, 194 majority voting, 138 Treaties amendments, 37 Mali: military mission training and assisting security forces, 266 Malta: euro adoption, 224 man-made disasters, 268 managerial tasks: agencies, 100 Mangold case, 43–44, 163, 173, 175, 176 marine biological resources conservation, 222 exclusive competence, 22, 252 market access test, 212–13 market, internal, see internal market Martínez Sala case, 145 Masters of the Treaties, 32–33 creeping competences, 40–48

general principles of law, 55 procedures for amending Treaties, 33–40 ties that bind, 48–49 matrimonial property, 122, 194 Mediterranean countries: EU agreements with, 119 meeting in public: Council of the European Union, 131 Member States: acceding, gradual progress by, 110 acting in common interest: exclusive competence, 254 actions brought by, 275 Acts of Accession, 54 administrative bodies, cases decided by, 283 administrative law, 282 agencies participation, 99 agreements between, 34 asylum seekers, 180–81, 187–88 austerity measures, 239 authority level, 102–103 autonomous regions, 105, 118 border management authorities, 185 budgetary deficit, 230 budgetary discipline, 228, 230, 232, 235 budgetary policies, 231 budgetary surveillance, 233, 235, 243 candidates, standing as, rights in States of residence, 156 central government, 102 Charter of Fundamental Rights and, 164 citizens, integration acceptance by, 48 civil law, 282 civil servants, 84 competence: external relations, 245–46, 257 legally binding acts if empowered by EU, 22 obligation to exercise, 281 parallel, 245 shared, 257 competent national authorities, 241 competition authority designation, 106 conditionality attached to assistance, 233, 239 constitutional traditions common to, 81 control by courts and authorities, 280–87 control exercised by, 97 Council of the European Union and, 92, 102 credit institutions, supervision, 241 criminal law, 282 democratic systems, 127 differentiation within, 118 diplomatic services, 247 directives compensation by, 77 ECJ actions brought by, 276 economic policies: coordination, 229, 234 surveillance of, 116 economic surveillance, 243 elections for European Parliament, 129 enforcement by courts and authorities, 280–87 enhanced cooperation, 133

Index environmental action, 222, 223 equality before Treaties, EU respect for, 14 essential functions, EU respect for, 14, 19, 21 EU and external relations, 259–62 EU competences and, 8, 14 by EU international agreements binding on, 70–71 EU law: application and administration, 105 implementation, national measures, 106–107 EU rules addressed directly to sub-components of, 14 Euro Group, see Euro Group euro zone, 227 agreements between, 34 austerity measures, 290 extraordinary financial assistance, 290 macro-economic realities, 229 European Commission infringement proceedings against, 83 European Council representation, 133 European Parliament seats per, 128 external relations, 245, 259–62 competence, 245–46 fisheries organisations membership, 252 foreign policies, 17 fundamental rights: application at level of, 162–65 application of EU rights, 162 constitutional traditions, rights resulting from, 166 international obligations, rights resulting from, 166 national measures, 165 protection, 160–1 respect by bodies of, 161 sanctions, 165 serious and persistent breach, 165 government debt, 230 gross domestic product, 230 heads of state of, European Council, 87 human rights: serious and persistent breach, 165 implementation of EU law, general obligation, 81 infringement action by Commission before ECJ, 283, 284–87 infringement proceedings against other Member States, 285 institutions, 102–107 and, cooperation between, 62 integration acceptance by, 48 internal security safeguarding, 273, 285 international agreements, 6, 22–23, 256, 257 international organisations, membership of concluded before EU membership, 260 Council authorising conclusion of agreements in EU interest, 260 EU becoming directly bound by succession, 260–61 participation continuing on pragmatic basis, 260

317 judicial system not functioning, 283 law and order maintenance responsibilities, 273, 285 legal protection in fields covered by EU law, 81, 278 legal relations between, 262 local bodies, 104–105 military missions using capabilities of, 266 multilateral surveillance of economic policies, 234 national citizenship, 146 national courts, see national courts national identities, EU respect for, 14, 19, 21 national legal order, 281 national measures, fundamental rights, 165 national regulatory authorities, 243 national security responsibilities, 203 national sovereignty, 231 nationalistic tendencies, 155–56 nationality, 18, 129, 144 due regard to EU law, 147 law of other Member States, 146 Union citizenship and, 155 nationals: considered to be Union citizens, 146–47 deprival of status, 147 Union citizenship fundamental status of, 141 non-compliance complaints to European Ombudsman, 286 non-euro, 116, 227, 234 non-NATO members, 117–18 obligations under EU law, failure to fulfil, 283 organs, 84 own, invoking Union citizenship against, 155 political bodies, cases decided by, 283 post-programme surveillance, 234 procedural autonomy, 280 progress to economic and monetary union, European Commission reporting on, 116 property ownership, 208 public finances, 228 public international law, 17 regional bodies, 104–105 regions, differentiation, 118 relations between, 17 sanctions, 233 single state referendum: Lisbon Treaty entry into force delayed by, 34–35 social assistance, 149–50 social security system, 219 sovereign rights limitation, 12 sovereignty, 13–14, 262 state liability principle, 283–84 taxation, 231 territories, 18, 118 third country nationals, 153–54 residing legally in, 190 Treaties between, 17 Treaty amendments involvement, 40 UN membership, 17 unilateral declarations, 54

318

Index

voting: in European Parliament elections, 129 rights in States of residence, 156 WTO membership, 253 see also entries beginning with national members: European Parliament, 128 European Commission, 95, 96, 124, 134 men and women: equal treatment, 171–72 Meroni case, 99–101 méthode communautaire, 35, 121 Metock case, 154 micro-prudential supervision, 240 military advice and assistance tasks, 265 military alliance, 269 military missions: Member States’ capabilities, using, 266 military obligations: Council of the European Union, 265 Military Planning and Conduct Capability (MPCC), 266 minorities: discrimination, 172, 173 respect for, 52 rights of, respect for, 126 mixed agreements, 254, 256, 258, 262 competence questions, 70, 253 EU and Member States, 6 international law, 58 shared competence, 253 mobility, 219 monetary and economic policy, see economic and monetary policy; economic policy; monetary policy monetary policy, 22, 225, 226–29 monetary regime: international agreements, 257 monetary union, see economic and monetary union money laundering, 198 monism: dualism and, distinction between, 78 monist approach to international law, 70, 74 monist systems, 79 Monnet, Jean, 9, 265, 292 monopolies, state, 208 Montreal Protocol, 223 movement, freedom of, see freedom of movement moving and residing: right to, Union citizenship, 142, 148–54 moving target, EU as, 7 MPCC (Military Planning and Conduct Capability), 266 multilateral environmental conventions, 223 multilateral governance, 13 multilateral surveillance of economic policies: Member States, 234 multilateral treaties: direct effect, 80 multilevel governance, 48, 77, 50–51, 85, 98, 102, 294 multispeed Europe, 109, 243, 294 mutual defence, 268

mutual recognition, 292 fundamental rights, 167 general principles of law, 55 internal market, 209–10 judicial cooperation in civil matters, 192, 193 judicial cooperation in criminal matters, 197, 199 judicial decisions, 180–81 mutual trust, 180–82, 187, 192, 193, 198, 292 names, right to, 165 nation states, cessation, 32 national administrative authorities, 5 obligation to implement EU law, 82 powers, 15 role, 105 national administrative decisions: primacy application to, 65 national case law: primacy application to, 65 national central banks: issue of banknotes and coins, 227 national checks, law, 48 national citizenship, 144, 146 national civil law, 193 national civil procedural law, 193 national constitutional courts: ECJ and, 167 primacy and, 66 national constitutional organs, 48–49 national constitutions, 51 in hierarchy of norms, 56–57 primacy and, 65, 66 references to in EU constitutional order, 68 national courts, 5, 15 actions before, rights to bring, 278–80 damages, claims for, 279–80 incorrect application of EU law, liability for, 284 interpretation, 282 ECJ rulings, 278 EU law questions raised on own initiative (ex officio), 281–82 Member States, 15 powers, 15 preliminary rulings, 282–83 roles, 278 national democracy, 130 national governments: Treaties amendments by common accord of, 34 national identities, 130 Member States, EU respect for, 14, 19, 21, 67–68 national interest repository: Council of the European Union, 91 national interests: subordination to EU, 292 national judicial bodies: obligation to implement EU law, 82 national law: applicability by EU institutions and bodies, 80, 81, 82–83 approximation of, 25 conflicting, disapplying, 65

Index consistent interpretation, 68, 69 enforcement, 273 EU bodies applying, 83 EU law and, relation between, 50–51 EU law creation and articulation, relevance of, 80–81 instrumentalisation for EU law purposes, 80, 81–82 interpretation: in conformity with EU law, 63 ECJ lack of jurisdiction, 82 norms conflicting with EU law, 65 primacy of EU law over, 56, 63, 64–68 public international law prevalence over, 72 as question of fact, 83 references to, 51 relevance: for application of EU law, 51 EU law in national legal orders, 80–83 national legal orders, 30, 281 EU law in, 63–64 conformity through interpretation, 68–72 direct applicability, 72–80 direct effect, 72–80 national law relevance, 80–83 primacy, 64–68 national legislative acts: primacy application to, 65 national levels governance, 20 national normative acts: primacy application to, 65 national norms, 51 national ombudsmen, 280 national operational headquarters, 266 national parliaments, 5 consultation of, 30 direct participants, 104 draft legislative acts forwarded to, 29, 41 notifications to: Treaties amendments, 39 powers, 15, 104 reasoned opinions, 29, 30 role, 103–104 subsidiarity: application monitoring, 104 compliance, 41 control exercised by, 17 Treaty amendments involvement, 40 Treaty revision procedures, 104 watchdog status, 29 national political bodies: obligation to implement EU law, 82 national referendums, 290 national regulatory authorities (NRA), 106, 107, 243 national rules: case law on conformity of with EU law, 82 national security, 21 Member States’ responsibilities, 203 national selling arrangements, 212 national sovereignty, 17, 231, 262 national supreme courts: primacy and, 66

319

national trade mark courts, 82 nationalised industries: privatisation, 139 nationalistic tendencies: in Member States, 155–56 nationality: discrimination on grounds of, 153, 171 Member States, see Member States non-discrimination grounds, 142 nationals: Member States, see Member States third country, see third country nationals NATO (North Atlantic Treaty Organization), 265 natural disasters, 268 natural persons: General Court actions brought by, 275, 276 direct and individual concern, 277 direct concern, 277–78 individual concern, 277 against regulatory acts, 277–78 natural resources, 221 naturalisation: Union citizenship and, 147 nature of EU, 7–9 historical development, 9–12 non-state-like features, 17–19 present time, 12–14 state-like features, 14–17 Neighbourhood Policy, 18, 119 neighbouring countries: EU rules extension to, 118–20 Netherlands: Constitutional Treaty negative referendum, 35 networks, 106, 107 neutrality, 268 Nice Treaty, 2, 10 common commercial policy, 252 entry into force delayed by single member state referendum, 34–35 Niger: military mission training and assisting security forces, 266 no-fault liabilities, 279 Noël, Emile, 111 non-compliance: Member States complaints to European Ombudsman, 286 non-contractual liabilities, 279 non-discrimination, 5, 57, 80 equal treatment of men and women, 171–72 fundamental rights, 171–73 general principles of law, 55 nationality grounds, 142 rights, 216 self-employed persons, free movement, 142 service providers, free movement, 142 workers, free movement, 142 see also discrimination; equal treatment non-euro Member States, 116, 227, 234 non-judicial control, 15

320

Index

non-justiciability: subsidiarity principle, alleged, 28 non-NATO members: Member States that are, 117–18 non-privileged applicants, General Court, 275 non-refoulement, 191 non-state actors, 76 non-state-like features of EU, 17–19 norms: binding, 69, 71 categories, 50, 51 EU law, 282 legal, 50 national, 51 EU constitution concept, relating to, 5 hierarchy, see hierarchy of norms national law conflicting with EU law, 65 North Atlantic Treaty Organization (NATO), 265 Norway: EEA member, 18, 118 in Schengen regime, 109, 115 NRA (national regulatory authorities), 106, 107, 243 nuclear option, 161, 165

opt-outs, 18 area of freedom, security and justice, 109, 112, 114–15, 183 Maastricht Treaty, 111 Schengen regime, 112–15 United Kingdom, 109 orange cards, 29, 104 ordinary legislative procedure, 89 asylum, 184 border controls, 184 civil matters, 195 Council of the European Union, 89 criminal matters, 199 environment, 222 European Commission, 89 European Parliament, 89 immigration policy, 184 police cooperation, 203 Treaties amendments, 38, 39–40 ordinary revision procedure: Treaties amendments, 36 organised crime, 180 outcome-based legitimisation, 138 output legitimacy, 294 outsourcing, 219

O and B case, 154 objectives: democracy, 127 of EU, 26–27, 138 pertaining to Common Foreign and Security Policy, 26 obligation of result, 68 observation dissemination: agencies’ functions, 100 occupation, freedom to choose, 216, 219 offences: criminal matters, 199, 200 Office for Harmonisation in the Internal Market (OHIM), 100 Office for Publications of the European Union (OP), 101 OHIM (Office for Harmonisation in the Internal Market), 100 OLAF (European Anti-Fraud Office), 101, 203 Ombudsman, European, 137, 143, 271–72, 286 ombudsmen, national, 280 OP (Office for Publications of the European Union), 101 open market economy, 206 open method of coordination, 215 openness, 126, 138 Operating Framework: European Commission, 98 operation actions, Europol, 203 opinions: discrimination, 172 divergent, 5 European Central Bank, 228 opt-ins: area of freedom, security and justice, 183

Pacific countries: EU cooperation with, 119 pan-European candidates for European Parliament, 129 parallel competence, see competence parliaments see European Parliament; national parliaments participation: citizens, 136 good governance and, 137–38 participatory democracy, 126, 127, 136–38 passenger name records (PNR) data agreements, 204 patent protection, 105–106 peace enforcement, 266 peacekeeping, 264, 265–66 penal law, national sovereignty, 17 penal sanctions, 199 peoples of Europe, 130 permanent residence: right of, Union citizenship, 149 permanent stability mechanism, 226 Permanent Structured Cooperation (PESCO), 267 perpetual peace, 288 personnel, European Commission, 84 persons, free movement, 207, 210 European Parliament elections, 129 see also workers PESCO (Permanent Structured Cooperation), 267 Pfeiffer case, 69 Pillars of the EU, 10–12 Plaumann test, 277 plebiscites, 126 pluralism, 57 constitutional, 13 equal treatment of men and women, 171–72

Index PNR (passenger name records) data agreements, 204 Poland: asylum infringement cases by Commission, 188 Charter of Fundamental Rights application to, 169–70, 174–75 fundamental rights protection, 160 rule of law, 161, 287, 290 single currency joining, 117 police cooperation, 11, 177, 180, 182, 183, 202–204 policy-shaping roles, European Commission, 94 political and economic union of states as EU label, 8 Political and Security Committee, 266 political bodies: Member States, cases decided by, 283 political control: European Parliament functions, 88, 90, 271 subsidiarity principle, 28 political groupings, Europe-wide, 130 political institutions, 84 democracy, 128–35 political nature of subsidiarity principle, 30 political opinions, discrimination, 172 political parties at European level, 130 political rights: in Charter of Fundamental Rights scope, 169 political roles, European Commission, 95 political space, European, 155 Politico-Military Group, 266 polluter pays principle, 139, 222 population, 18 portfolio investment, 253–54 Portugal: euro crisis, 225 stability mechanisms, 237, 238 post-modern state as EU label, 8 post-programme surveillance: Member States, 234 postal services: Member States’ obligations, 106 Posted Workers Directive, 217 potential competence, 256, 257 potential differentiation: following from enhanced cooperation, 108 poverty, combating, 220 power shifts: to European Council from Council of the European Union, 36 powers, 289 administrative, 134 agencies to adopt guidelines, soft law effects, 101 development of, 48 division of, transparency in, 22 European Parliament, 91 implementing, see implementing powers to legislate, 15 national parliaments, 104 pre-emption principle, 23, 254 precautionary principle, 139, 222 preliminary rulings, see European Court of Justice present time, EU, 12–14

321

President of the Council of the European Union, 93–94 President of the European Commission, see European Commission President of the European Council, see European Council prevention principle, 222 preventive element: Stability and Growth Pact, 232, 233, 234 price stability, 224 primacy, 289 consistent interpretation as principle corollary, 68 Constitutional Treaty of 2004, incorporation in, 65–66 Declaration attached to Lisbon Final Act, 66, 67 direct applicability links, 72 direct effect links, 72 of EU law, 14 EU law in national legal orders, 64–68 fundamental rights and, 157 national administrative decisions, application to, 65 national case law, application to, 65 national constitutional courts and, 66 national constitutions and, 65, 66 national law, 56 national legislative and normative acts, application to, 65 national rules, 67 national supreme courts and, 66 notion of, 51 supremacy and, distinguished, 64–65 primary law, 14 acceptance, 127 Acts of Accession, 54 amended, 293 amendments to, 43, 46 recommendations, Convention for, 103, 104 annexes, 53–54 Barber Protocol, 46 Charter of Fundamental Rights as, 44, 47, 55–57, 62, 169 competition, 215 on conclusion of international agreements, 257 Convention for amendment recommendations, 103, 104 development, 48 differentiation in, 108 direct applicability, 72 direct effect, 75 economic freedoms, 209, 215 environment, 222 foundations, legal order and, relationship between, 51–52 fundamental rights, 158, 160, 162 gender discrimination, 173 general principles of law, see general principles of law in hierarchy of norms, 53–57 human rights, respect for, 158

322 interpretation not conflicting with secondary law, 68 invocation, 175 protocols, 53–54 rule of law, respect for, 158 secondary law relationship and, consistent interpretation application to, 70 security and defence, 263–64 sexual orientation discrimination, 173 social dimension, 216 Treaties, 53 amendments, 36 Union citizenship, 150, 151 written, 51 principles: democracy, 127 of EU, 138 rights and, distinction between, 174 rules and, distinction between, 174 Pringle case, 238, 239 prison sentences, enforcement, 200 private international law, 193–96 Hague Conference, 177 private schools fees, case law, 152 privatisation, 139 privileged applicants, CJEU, 275–76 procedural autonomy, 82 Member States, 280 procedural equivalence principle, 69 procedural hurdles, 27 procedural rules: EU law, 280–81 programmes: management, Commission, 94 planning, ex ante scrutiny of, 29 soft law, 62 progressive integration, 110 progressiveness principle, 110 Promusicae case, 70 property: discrimination, 172 matrimonial, 122, 194 ownership, Member States, 208 proportional representation: European Parliament elections, 129 proportionality principle, 14, 19 Amsterdam Treaty, 28 application monitoring, 28 economic freedoms, 213 general principles of law, 55 TEU, 21 protection: fundamental rights, 160–1 judicial, see judicial protection rule of law, 160–1 subsidiary, 191 Protocol on subsidiarity and proportionality, 28–31 protocols: primary law, 53–54 Prüm Convention, 111, 202

Index public expenditure, 219 public finances: Member States, 228 public health, 8 public international law, 12 Member States, 17 prevalence over national law, 72 public order: elections, standards for, 126 public procurement, 221, 264 public services, 289 Publications Office of the European Union (OP), see Office for Publications of the European Union Pupino case, 69–70 QE (quantitative easing), 236 qualified majority voting: Council of the European Union, 39, 93, 131, 132–33 European Council, 87, 88 Treaties amendments, 38–40 quantitative easing (QE), 236 quasi-integrationist regimes, 119 race discrimination, 172, 173 racial origin discrimination, 172 ratification, Treaties amendments, 34–35, 37 rationae materiae, 152 rationae personae concept, 146 readmission agreements, 257 real powers: Parliament, 91, 130 reasoned opinions: national parliaments, 29, 30 reciprocity, 80 recommendations: European Central Bank, 228 reference vales, 230 referendums, 126, 290 reformatio in res judicata, 282 refugees, 7, 16, 179, 186 regional bodies: Member States, 104–105 regional economic integration organisations (REIO), 9 regional environmental problems, 221 regional integration organisations (RIO), 260 regional self-government roles, 15 Regions, Committee of (CoR), 84, 104, 275 regions of Member States: differentiation, 118 registered partnerships: property law consequences, enhanced cooperation, 122 regulations, 14 adoption, 89 agencies, setting up, 99 direct applicability, 72–73, 75 direct effect, 73, 75 European Central Bank, 228 secondary law, 59

Index regulatory agencies, 98 regulatory bodies, 96–102 regulatory procedure with scrutiny: European Commission, 97 REIO (regional economic integration organisations), 9 relations between Member States, 17 religion or belief discrimination, 159, 172, 173 relocation programme for asylum-seekers, 290 reports: agencies for preparation, 100 representation: European Commission, 96 representative democracy, 15, 126–27 representative of Member States: Council of the European Union, 131 Republic of Ireland, see Ireland rescue tasks, 265 research: cooperation, parallel competence, 8 residence for purposes of, 190 research and technological development, 102 residence: freedom of, 165 permits, 184, 190 research purposes, 190 study purposes, 190 training purposes, 190 unauthorised, 190 residing and moving: see moving and residing resolutions, soft law, 62 responsibility, fair sharing of, see fair sharing of responsibility results: democracy, 127 obligation of, 68 reverse discrimination, 210, 211 reverse majority voting, 234, 235 rights: flowing from Union citizenship, 156 fundamental, see fundamental rights principles and, distinction between, 174 to security, 179–80 RIO (regional integration organisations), 260 Romania: single currency, still to join, 117 Rome Conventions on the determination of applicable law in matters of contractual and non-contractual obligations, 193–94 Rome Regulations, 194 Rottman case, 147 Rousseau, Jean-Jacques, 6, 288 Ruiz Zambrano case, 153 rule of law: Community Treaties as ‘constitutional charter based on’ (CJEU), 4 Court role, 46 general principles of law, 55 judges’ contributions to development of, 43 protection, 160–1

323

respect for, 44–45, 52, 57, 126 primary law, 158 systemic threats prevention, 161 as a value on which EU is founded, 44 rule-making machine, EU as, 18 rules: addressed directly to sub-components of Member States, 14 neighbouring countries, extension to, 118–20 principles and, distinction between, 174 sales law, 196 sanctions: criminal matters, 199, 200, 201 Member States, 233 policy, 254 SatCen (European Union Satellite Centre), 265 Schengen regime, 10, 18, 34 Border Code, 184, 190 Bulgaria not yet applicable, 150 Croatia not yet applicable, 150 Cyprus not yet applicable, 150 Iceland in, 109, 115, 150 Ireland opt-out from, 109, 112, 113, 115, 150 Liechtenstein in, 109, 115, 150 Norway in, 109, 115, 150 opt-outs, 112–15 right to move or reside, 150 Romania not yet applicable, 150 Switzerland in, 109, 115, 150 UK outside, 109, 112, 113, 115, 150 zone restrictions, 179 Schmidberger case, 175, 176 Schuman Plan, 9 Schuman, Robert, 9, 290 scientific tasks: agencies, 100 Scotland, 140 secondary law: adoption, 48 amendments to, 47, 293 decisions, 59–60 delegated acts, 60 development of, 46 directives, 59 environment, 222–23 freedom of movement, 148 fundamental rights, 159, 160 gender discrimination, 173 in hierarchy of norms, 59–62 implementing acts, 60–61 interpretation, 161 democracy and, 126 not conflicting with primary law, 68 legality, 161 legislative acts, 51, 59–60, 62 national regulatory authorities covered by, 107 primary law relationship and, consistent interpretation application to, 70 regulations, 59 security and defence, 263–64

324

Index

sexual orientation discrimination, 173 social dimension, 216 Union citizenship, 150 validity, 161 sector-specific individual arrangements, 33 security, 5, 8, 12 external relations, 262–69 high level, promoting, 180 legal, 213 national sovereignty, 17 primary law, 263–64 public procurement, 264 rights to, 179–80 secondary law, 263–64 threat to, 180 see also area of freedom, security and justice; Common Foreign and Security Policy; Common Security and Defence Policy; national security security and defence policy, 245, 291 self-employed persons: freedom of movement, 149 non-discrimination, 142 Union citizenship and, 144, 151 rights, 219 self-financed agencies, 101 semi-political institutions and bodies, 84 sentences, enforcement, 200 service providers, free movement: non-discrimination, 142 Union citizenship and, 144, 151 services: free movement, 207, 210–11, 212–13 direct effect, 75 substantive democracy, 139 trade in: exclusive competence, 252–53 shared competence, 253 serving of documents, 195 sex discrimination, 172 sexual orientation discrimination, 159, 172, 173 SGP, see Stability and Growth Pact shadow of the vote: consensus building, 121 Council of the European Union, 93 European Parliament, 90 shared competence, see competence Sharpston, EVE, Advocate General, 211 shift, competences, 23 short-stay residence permits, 184 Simmenthal case, 64 simple majority decision-making: European Council, 87 simplified revision procedures, 87, 289 Lisbon Treaty, 38 Treaties amendments, 36, 38–39, 40, 42, 239 sincere cooperation, 23, 68, 70, 86, 284 Singapore: bilateral trade agreement with, 253, 255 single currency, 10, 16, 18, 224–26 coverage criteria not met, 115–16 Bulgaria still to join, 117

Croatia still to join, 117 Czech Republic joining, 117 Denmark exemption, 115 derogations, 110, 112, 115–17 Estonia joined, 117 Hungary joining, 117 Latvia joined, 117 Lithuania joined, 117 Poland joining, 117 Romania still to join, 117 sustainability, 240 Sweden derogation, 116–17 UK exemption, 109, 115 Single European Act, 2, 10, 220 single exchange rate, 227 single institutional framework, 10 single market, 10 Single Resolution Board (SRB), 241, 243 Single Resolution Fund (SRF), 241 Single Resolution Mechanism (SRM), 241 Single Supervisory Mechanism (SSM), 241 ‘six-pack’ legislation, 231–39 Slovakia: euro adoption, 224 Slovenia: euro adoption, 224 small claims, 194 social assistance: freedom of movement and, 149–51 social benefits: case law, 152 equal treatment, 218 Social Charters: Charter of Fundamental Rights rights resulting from, 166 social cohesion, 149, 215, 289 social dimension, 207 case law, 216–18 internal market, 214–20 social dumping, 214, 217 Social Europe, 207, 214 social exclusion: cohesion, 216 combating, 215, 220 social justice, 205, 215 social law, 214–15 social market economy, 206, 215 social objectives: defended by economic freedoms, 217 social origin discrimination, 172 social policy, 10, 293 objective, economic freedoms and, 216 shared competence, 8, 24 social protection cohesion, 216 social requirements: common commercial policy, 253 social rights, 215, 216 in Charter of Fundamental Rights scope, 169 social security, 215, 218, 219 freedom of movement and, 151–52

Index Member States systems, 219 schemes, 47 social solidarity, 219 socio-economic problems, 220 socio-economic system, 205 soft law: agencies’ powers to adopt guidelines, effects, 101 Charter of Fundamental Rights, see Charter of Fundamental Rights codes of conduct, 62 guidelines, 62 instruments, 62 international instruments, 166 programmes, 62 resolutions, 62 solidarity, 57, 215 asylum, 186, 188 defence, 267–68 equal treatment of men and women, 171–72 rights, 216 social, 219 Somalia, 266 source of law: case law, 51 sovereign debt crisis, 7, 16, 35, 230, 231–32, 234, 236, 241, 285, 289, 291–92, 293 sovereign rights: Member States, limitation, 12 sovereign states: association of, EU as, 8, 13 sovereignty: Member States, 13–14, 262 national, 17, 231, 262 notions of, 292 Spain: banking crisis, 240 euro crisis, 225 sanctions for manipulation of government deficit data, 233 stability mechanisms, 238 special acts and instruments, 51 special bodies, 101–102 special legislative procedure: Council of the European Union, 89 European Parliament, 89 police cooperation, 203 social provisions, 215 Treaties amendments, 38 Specialized Agencies, UN, 2, 17 specific passerelles: Treaties amendments 39 spheres of influence, 119 sport: supporting competences, 24 SRB (Single Resolution Board), 241, 243 SRF (Single Resolution Fund), 241 SRM (Single Resolution Mechanism), 241 SSM (Single Supervisory Mechanism), 241 St-Pierre, Abbé, 288 Stability and Growth Pact (SGP), 116, 225–26, 230–34, 293

325

corrective element, 232–34 financial sanctions transferred to European Stability Mechanism, 238 implementation difficulties, 285 preventive element, 232, 233, 234 reform, 237 stability loans: Commission monitoring, 238 European Central Bank monitoring, 238 stability mechanisms, 236–40 standstill periods, 97 state aid, 105, 208, 221 state intervention, 208 state liability principle, 283–84 state-like features of EU, 14–17 state monopolies, 208 Statistical Office (Eurostat), 101 Stauder case, 157 strategic interests and objectives: Council recommendations, 246 structural issues, 5 students: freedom of movement, 151 study purposes, residence for, 190 subsidiarity principle, 14, 19, 289 Amsterdam Treaty, 28 application monitoring, 28 area of freedom, security and justice, 183 competences, 28–31, 41 compliance with, 28 control exercised by national parliaments, 17 ex ante political control, 28 ex post judicial control, 28–31 general principles of law, 55 judicial control, 28–31 national parliaments: application monitoring, 104 compliance, 41 non-justiciability, alleged, 28 political control, 28 political nature, 30 TEU, 21 Working Group on, 28–31 subsidiary competences, 8 subsidiary protection, 191 substantive criminal law, 197 substantive democracy, 126, 127, 138–40 substantive EU law, 5 substantive provisions, 213 succession, 194 supplementary competences, 24 supporting competence, 21, 24, 252 supranational institutions legitimacy, 243 supranational levels governance, 20 supranational organisations, 2, 8 supranationalism, 292 supremacy: notion of, 50 primacy and, distinguished, 64–65 surrender of persons to another Member State for prosecution, 200

326 Surveillance Authority, EEA, 118 surveillance, enhanced, 226 suspects, rights, 200 sustainable development, 221, 253 Sweden: euro rejection by referendum, 224 non-NATO member, 118 single currency derogation, 116–17 Switzerland: EU agreements with, 118 in Schengen regime, 109, 115 workers’ free movement, 119–20 Syria: military operations in, 8 systemic risks, 241 systemic threats to primary law, prevention, 161 taxation, 133, 209 case law, 152 direct, 206–207 equal treatment, 218 indirect, 207 Member States, 231 national sovereignty, 17, 18 value added tax (VAT), 18 TEC (Treaty establishing the European Community), 2, 12 technical assistance to third countries: human rights, 160 technical convergence, 290 technical cooperation: international agreements, 257 technical tasks, agencies, 100 technocracy, 124 telecommunications: Member States’ obligations, 106 national regulatory authorities, 82 territorial cohesion, 215 territory: concept of, 15 Member States, 18, 118 terrorism, 111, 180, 197, 201, 204 terrorist attacks, 268 terrorist financing, 198 TEU, see Treaty on European Union third-country nationals, 179 freedom to travel for short periods, 184 highly qualified employment, status for, 190 illegally-staying, return of, 190–91 integration, 191 international protection, persons needing, 186 in Member States, 153–54 refugees, 186 residing legally in Member States, 190 tolerance, 57, 171–72 tourism: subsidiary competence, 8 supporting competences, 24 trade: agreements:

Index bilateral, 16, 254 human rights clauses, 160 international, 7–8, 245 policy, 291 trade marks, 100 courts, national, 82 law, 83 Trade-Related Aspects of Intellectual Property Rights, WTO Agreement on (TRIPS), 253 trafficking in human beings, 197, 201 training: grants and loans, case law, 152 high level of, 216 policies and programmes, 219 residence for purposes of, 190 vocational, 24 transparency, 22, 126, 138 lack, 294 transport: law, uniformity in, 111 policy, 246 services, 253 exclusive competence, 255 shared competence, 8, 23 Treaties: agencies regulated directly in, 98 amendments: bridging clauses, 39 changes without invoking amendment procedures, 39 Commission involvement, 40 by common accord of national governments, 34 constitutional limits to, 34 Conventions, 36–38, 40 Council involvement, 40 enhanced cooperation, 39 European Council involvement, 40 general enabling clause, 39 general passerelle, 38–39 intergovernmental conferences, 34–35, 36 majority voting, 37 Member States’ involvement, 40 national parliaments involvement, 39, 40 ordinary legislative procedure, 38, 39–40 ordinary revision procedure, 36 Parliament consent, 39 Parliament consultation, 38, 39 Parliament involvement, 40 primary law, 36 procedures, 33–40 proposals, 34 qualified majority voting, 38–40 ratification, 34–35, 37 simplified revision procedures, 36, 38–39, 40, 42 special legislative procedure, 38 specific passerelles, 39 unanimity requirements, 33, 38 application: in entirety to Member States, 110 law observed in, 44

Index area of freedom, security and justice, 178 asylum, 184 border controls, 184 Declarations attached to, 54 derogations, 110 direct effect, 75 general principles of law, 54 guardian of, European Commission, 94, 95 immigration policy, 184, 191 internal market, 207 judicial control, 272 national constitutions, 56 parts, opting out not permitted, 33 primary law, 53 Protocol on Internal Market and Competition, 206 Protocol on Transitional Provisions, 197 revision procedures, 104 scaling down integration levels, 33 scope of application, 210 sector-specific individual arrangements, 33 security and defence, 263 see also entries beginning with Treaty Treaty establishing a Constitution for Europe, see Constitutional Treaty of 2004 Treaty establishing the European Community (TEC), 2, 12 see also Treaty on the Functioning of the European Union Treaty establishing the European Stability Mechanism, 238, 239 Treaty of Amsterdam, see Amsterdam Treaty Treaty of Lisbon, see Lisbon Treaty Treaty of Maastricht, see Maastricht Treaty; Treaty on European Union Treaty of Nice, see Nice Treaty Treaty on European Union (TEU), 2, 10 Common Foreign and Security Policy (CFSP), 246 competences, basic provisions on, 22–25 conferral principle, 20, 21 external action, 246 before Lisbon Treaty, 11 proportionality principle, 21 Provisions on Democratic Principles, 141 social market economy, 215 subsidiarity principle, 21 see also Maastricht Treaty Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (Fiscal Compact), 34, 111, 226, 229, 234–35, 243, 293 Treaty on the Functioning of the European Union (TFEU), 2, 12 Categories and Areas of Union Competence, 22 competences, basic provisions on, 22–25 social provisions, 215 see also Treaty establishing the European Community trial, fair, right to, 81 TRIPS (Trade-Related Aspects of Intellectual Property Rights, WTO Agreement on), 253 trust, mutual, see mutual trust

327

TSCG, see Treaty on Stability, Coordination and Governance in the Economic and Monetary Union Turkey: asylum-seekers, action plan for, 188–89 pre-accession agreement, 119 workers’ free movement, 119 ‘two-pack’ legislation, 231, 234, 235 UDHR (Universal Declaration of Human Rights), 125, 160, 166 ultra petita, 282 ultra vires judgments of ECJ, 49, 67 UN Convention on the Law of the Sea (UNCLOS), 58, 78, 80, 223, 252 UN Convention on the Rights of Persons with Disabilities (CRPD), 168, 173 UN, see United Nations unanimity: Council of the European Union, 39, 93, 132–33 European Council, 27 Treaties amendments, 33, 38 see also consensus unauthorised residence, 190 UNCLOS see UN Convention on the Law of the Sea uncontested claims, 194 uncontrolled spread, competences, 20 undistorted competition, 206 unemployment, 220 unfair competition, 217 UNFCCC (Framework Convention on Climate Change), 58, 80 uniformity, 111 unilateral declarations: Member States, 54 Union citizenship: nationality of Member States and, 155 union of peoples, 141 unitary patent protection: enhanced cooperation, 122 United Kingdom: area of freedom, security and justice opt-out, 198 Brexit, 3–4, 11, 13–14, 32–33, 48, 86, 120, 155–56, 290 Charter of Fundamental Rights application in, 164, 169–70, 174–75 citizenship, different categories of, 146–47 common currency, outside, 109 criminal matters situation, 198 derogations granted to, 109 economic policy exemption, 115 euro opt-out, 224, 227 integration concerns, 3 Lisbon Treaty, Conservative Party opposition to, 33 nationality: declarations on concept for EU law purposes, 147 opt-outs, 109 outside Schengen regime, 109, 112, 113, 115 Schengen area, outside, 109 single currency exemption, 115 UN Security Council permanent seat, 245, 261

328

Index

withdrawal from EU, see Brexit above workers’ free movement, post-Brexit, 120 United Nations, 2 Charter, 265 EU Member States’ membership, 17 General Assembly: EU enhanced status, 261 Security Council, 266 France permanent seat, 245, 261 United Kingdom permanent seat, 245, 261 United Nations Convention on the Law of the Sea, See UN Convention on the Law of the Sea United States: Electronic System for Travel Authorization (ESTA), 191 passenger name records (PNR) data agreements, 204 voting, 129 unity in diversity, European Commission, 95 unity of EU legal order, 64 Universal Declaration of Human Rights (UDHR), 125, 160, 166 university education: access to, case law, 152 unjust enrichment, 279 unrestricted movement: economic freedoms, 212–13 USA, see United States validity, secondary law, 161 value added tax (VAT), 18 value foundations: legal order, 51 values: democracy, 127 of EU, 138 van Gend & Loos case, 74–76 variable geometry, 5, 111 VAT (value added tax), 18 vertical direct effect, 75, 77 vertical networks, 106 victims of crime, rights, 200 Vienna Convention for the Protection of the Ozone Layer with the 1987 Montreal Protocol, 223 Viking Line case, 176, 216–17 Visa Information System (VIS), 113 visas, 184, 190 vocational training: supporting competences, 24 voting: Charter of Fundamental Rights, 142

Council, 92–93 inverted majority, 234 Member States European Parliament elections, 129 qualified majority, see qualified majority voting reverse majority, 234, 235 rights, in States of residence, 156 Wachauf case, 162 watchdog status: national parliaments, 29 Weiler, JHH, 93 White Papers, European Commission, 138 withdrawal from EU, 32 UK, see United Kingdom: Brexit women and men: equal treatment, 171–72 work, freedom to engage in, 216, 219 workers: free movement, 149, 210 acceding members, 110 direct effect, 75 equal treatment, 218 non-discrimination, 142 substantive democracy, 139 Switzerland, 119–20 Turkey, 119 UK post-Brexit, 120 Union citizenship and, 144, 151 legal, immigration, 190 rights, 219 Working Group on Subsidiarity, 28–31 working groups: Commission, 98 Council, 92, 102, 131 World Trade Organization (WTO), 2, 58, 71, 78–80, 245 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 253 agreements, 78–80 EU Member States, membership, 253 EU membership, 263 EU mission to, 248 worldwide environmental problems, 221 written law: amendments to, 43 primary law, 51 WTO, see World Trade Organization yellow cards, 29, 104 youth, supporting competences, 24