European Union constitutional law : revealing the complex constitutional system of the European...

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EUROPEAN UNION CONSTITUTIONAL LAWREVEALING THE COMPLEX CONSTITUTIONAL SYSTEMOF THE EUROPEAN UNION

JUDr. ONDREJ HAMUĽÁK, Ph.D.JUDr. VÁCLAV STEHLÍK, Ph.D., LL.M.

European Union Constitutional Law_D 1European Union Constitutional Law_D 1 6.9.2013 2:04:006.9.2013 2:04:00

Reviewers: prof. Tanel Kerikmäe, LL.M, LL.Lic, Ph.DJUDr. Monika Forejtová, Ph.D.

First Edition © JUDr. Ondrej Hamuľák, Ph.D. & JUDr. Václav Stehlík, Ph.D., LL.M., 2013© Univerzita Palackého v Olomouci, 2013 ISBN 978-80-244-3615-9

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR

Hamuľák, OndrejEuropean Union constitutional law : revealing the complex constitutional system of the European Union / Ondrej Hamuľák, Václav Stehlík. – 1st ed. – Olomouc : Palacký University Olomouc, 2013. – 204 s.ISBN 978-80-244-3615-9

342 * (4)• constitutional law – European Union countries• monographs• ústavní právo – země Evropské unie• monografi e

342 – Constitutional law and administrative law [16]342 – Ústavní právo. Správní právo [16]


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FOREWORD BY THE BOOK REVIEWER

The current research on European Union Constitutional law, written by Ondrej Hamuľák and Václav Stehlík holds a pertinent subtitle “Revealing the complex con-stitutional system of the European Union”. The European Union legal system be-comes more and more sophisticated even for experts. That is why the book would be welcomed not only by researchers and law students but also by practicing law-yers and public offi cials.

The content, structure, methods and scientifi c style of the contribution corre-spond to requirements of the independent and original research paper. This sol-id edition discusses the challenges and problems of the EU legal system from the angle of constitutionalism and opens the background of the constitutional elements.

Although there are several high-level monographs and research articles written on the developments in EU law, this book diff ers by its nature as being systematic and certainly original analysis that refl ects the most topical issues that need to be debated in developing Europe today including historical roots of the constitution-alism and its perspectives, direct and indirect eff ect of the secondary legislation, institutional framework (in the context of legislative power), the essence of prima-cy as a cornerstone principle etc. Also, the legitimacy and democratic defi cit are discussed as the authors admit that there is no classical pouvoir constituant that can be ascertained behind the constitutional law of the European Union.

This scholarly thesis envisages the legal system in a synoptic way and reveals the most relevant aspect of the constitutionalism in the EU – the relations of norm-creators and norm-addressees. It is a contribution that is free from politi-cal dogmatism and is rather based on theoretical assumptions deriving from aca-demic analysis of the EU legal space as a whole. Although based on legal theory, the book is easy to follow as suitable and systematically presented references to the legal norms and case-law are available throughout the text.

The book has scientifi c value as the content can be seen as a skilful composition of legal theory, illustrative examples and clear conclusions supporting the hypoth-esises proposed by authors.

prof. Tanel Kerikmäe, LL.M, LL.Lic, Ph.DTallinn Law School

Tallinn University of Technology, Estonia


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CONTENT

Foreword by the Book Reviewer ............................................................................... 3

Content .................................................................................................................................. 4

Introduction: Constitutional System of the European Union and its elements ................................................................................................................ 7

PART ONE – “Where a Society Exists there is a Constitution” ..................... 15Chapter I: Relation between Member States and European Union and Building of Proto-Federal Society ................................................................... 16

1.1 Membership in the European Union ............................................................... 161.1.1 To Be a Member State …

(Acquisition and Content of the Membership) ................................. 161.1.2 Creators and Masters of the Treaties .................................................... 171.1.3 Destiny Holders… ...................................................................................... 191.1.4 Multi-Speed Europe ................................................................................... 20

1.2 Vertical Division of Powers – Competences of the European Union .... 201.2.1 The Fundamental Principles Governing the Division

of Powers between Member States and Union ............................... 201.2.2 Flexible system ............................................................................................. 23

Chapter II: Civis Europeus Sum – Forming the Chain between Individual and European Union ................................................................................ 25

2.1 The Character of EU Citizenship ......................................................................... 252.2 The Content of EU Citizenship ............................................................................ 28

2.2.1 Economic and Social Dimension – Movement Rights ................... 282.2.2 Political Dimension – voting, petitions, initiatives

and protection .............................................................................................. 29Chapter III: Horizontal Division of Powers within the Union – The Internal Institutional Scheme ........................................................................ 33

3.1 Institutions in General ........................................................................................... 333.2 The European Parliament .................................................................................... 343.3 The European Council ........................................................................................... 383.4 The Council ............................................................................................................... 403.5 The European Commission ................................................................................. 443.6 The Court of Justice of the European Union ................................................. 47


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PART TWO – “Where a legal system is present there is a Constitution” .............................................................................................................. 53Chapter IV: Concept and Sources of European Union Law – An Independent Catalogue of the Legal Acts .................................................. 54

4.1 The Primary Law of the European Union and its Development ............ 564.2 The Secondary Law of the European Union – the Expression

of the Will of Supranational Legislator ............................................................ 624.2.1 The Typology of the Secondary Law Acts ........................................... 624.2.2 Process of Adoption of the Secondary Law of the European

Union ............................................................................................................... 654.2.3 Formal requirements for the secondary law sources ..................... 67

Chapter V: The European Union Law as an autonomous and self-suffi cient legal order ..................................................................................... 68

5.1 The Internal Applicability of the European Union Law within National Legal Orders ............................................................................................ 69

5.2 The Direct Eff ect of the European Union Law ............................................... 715.2.1 The Defi nition of the Direct Eff ect ........................................................ 715.2.2 Direct eff ect of the Primary Law of the European Union

and its Categories ........................................................................................ 735.2.3 The Direct Eff ect of Secondary Law Sources .................................... 775.2.4 The Direct Eff ect of other Sources of EU Law .................................... 87

Chapter VI: European Union Law as the Dominant Legal System ............ 896.1 The Cohabitation of Colliding Legal Worlds – the Principle

of Primacy of the European Union Law ........................................................... 896.2 The Indirect Eff ect of Supranational Rules = Interpretation

of National Law in Conformity with European Union Law ...................... 956.3 The Price for the Non-conformity – Principle of Member State’s

Liability for Damages Caused by an Infringement of European Union Law .................................................................................................................. 97

Additional reading: Czech Constitutional Court Dealing with the Dominance of EU Law ........................................................................................... 104

PART THREE – “Where a rule of law is respected there is a Constitution” .............................................................................................................. 107Chapter VII: Judicial Control over the Member States – the Infringement Actions .......................................................................................... 109

7.1 General Characteristics ........................................................................................ 1097.2 The Objective of the Proceedings .................................................................... 1097.3 Initiation of Proceedings ...................................................................................... 1107.4 Phases of the Proceedings .................................................................................. 111


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Chapter VIII: The Judicial control over European Institutions .................... 1178.1 Validity of Union’s Action – General Overview ............................................ 1178.2 The Action for Annulment .................................................................................. 117

8.2.1 The Scope of Review .................................................................................. 1178.2.2 Specifi cs of Validity Review in Some Areas ........................................ 1188.2.3 Grounds for Annulment ............................................................................ 1198.2.4 Locus Standi – Privileged and Semi-privileged Applicants ......... 1208.2.5 Locus Standi – Non-privileged Applicants ......................................... 1208.2.6 The Criticism on the Restricted Locus Standi of Individuals ........ 1268.2.7 The Period for Bringing an Action, Eff ects of the Annulment ..... 129

8.3 The Preliminary Ruling and the Validity Review .......................................... 1298.4 Plea of Illegality ....................................................................................................... 1318.5 Validity of Union’s Inaction – Control of Failure to Act ............................. 132

Chapter IX: Autonomous Interpretation of an Autonomous Law – Preliminary ruling procedure ................................................................................. 133

9.1 The Character of the Procedure ......................................................................... 1339.2 The Proceedings Initiation ................................................................................... 1339.3 An Individual and Reference for the Preliminary Ruling .......................... 1349.4 The Facultative and the Obligatory Preliminary Ruling Procedure ...... 1359.5 The Subject Matter of the Preliminary Ruling Procedure ......................... 1369.6 The Wording of Questions Raised by the National Court ........................ 1379.7 The Binding Nature of the Decision on the Preliminary Question ........ 138

Chapter X: The Fundamental Rights Protection within the European Union – the Core of Material Constitutionality .................................................. 139

10.1 “Cerberus” Guarding the Fundamental Rights and Advocating the Supranational Constitutionalization ..................................................... 13910.1.1 Charter of Fundamental rights of the European Union

– Internal Pillar ........................................................................................ 14010.1.2 European Convention for the Protection of Human Rights

and Fundamental Freedoms – External Pillar .............................. 14310.1.3 Unwritten General Principles – Eternal Pillar ............................... 143

10.2 The Role of Fundamental Rights ..................................................................... 145

Endnote and acknowledgements ............................................................................. 147

Bibliography ....................................................................................................................... 149

ANNEX: “Written Constitution of the European Union” ................................ 160Treaty on European Union ............................................................................................... 160Treaty on the Functioning of the European Union ................................................. 172Charter of Fundamental Rights of the European Union ....................................... 194


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INTRODUCTION:CONSTITUTIONAL SYSTEM OF THE EUROPEAN UNION

AND ITS ELEMENTS

“Constitutionalization of European integration is a story of a dark conspiracy and outrageous collusion, engineered by a coven of judges and lawyers against

unsuspecting governments“

Eric Stein1

Historical Roots of Integration The character of the European Union as it is known today is a result of long de-velopment. The process (still on-going) of the European integration has started in the 1950’s. The plan to build a new framework for cooperation of European na-tions was drawn up by the ‘Fathers’ of the European integration, Robert Schuman (French Minister for Foreign Aff airs) and Jean Monnet (secretary of the French De-partment for Foreign Aff airs).

The new project was introduced on 9 May 1950 (the so called Schuman Declara-tion). The need for cooperation and need to defi ne the new framework for coex-istence of countries in the Western Europe derived chiefl y from the political secu-rity and economic reasons which (cum grano salis) are valid till today. In that time, the main purposes of the integration eff orts were: the elimination of hostility be-tween Germany and France; a cautious approach to Germany in view of experi-ences from the consequences of termination of the First World War; reaction to the division of Europe and formation of united European superpower eligible to compete in the bi-polar world of two political blocs; the post-war renewal of de-stroyed Europe; the necessity to increase the productivity of Member States’ econ-omies; the achievement of competitiveness of European economies and renewal of social security.2

1 STEIN, Eric. The Magic of the C-Word. EUSA Review, 2005, vol. 18, no. 3, pp. 3, 4.2 See further GILLINGHAM, John. Coal, steel, and the rebirth of Europe, 1945-1955. The Germans and

French from Ruhr conflict to economic community. Cambridge: Cambridge University Press, 1991, 397 p.


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The de facto reaction to the aforementioned appeal was the formation of the fi rst integration entity focused on the economic cooperation in the fi eld of the heavy industry. Treaty establishing the European Coal and Steel Community was signed in Paris on 18 April 1951. This treaty entered into force on 23 July 1952. The founding members were Belgium, France, Italy, Luxembourg, Germany and the Netherlands. The objective of this fi rst step was to form an organisation partially independent on the will of the Member States and entitled to the autonomous decision-making. In other words, to create the body that would be able to solve eff ectively the needs of the cooperating states.

The eff ort to establish an independent organisation of that kind was rooted also in some disastrous historical experiences with organisations whose actions were dependent on the approval of the Member States. This kind of organisation was not able to face up to the international threats - e.g. the interwar League of Nations which was not able to fulfi l its fundamental objective (maintenance of peace) and prevent the break out of the Second World War.

The success of the new form of cooperation revealed lately in the process of the perpetual widening and deepening3 of the European integration. Within the framework of its development it was followed by the gradually and continual quantitative growth (enlargement of the membership base) and the qualitative growth (increasing number of tasks which belongs to the ‘administration’ of supra-national structures).

The European Union (successor of the European Community) has currently 28 Member States. Denmark, Ireland and the United Kingdom (1 January 1973); Greece (1 January 1981); Portugal a Spain (1 January 1986); Finland, Austria and Sweden (1 January 1995); the Czech Republic, Estonia, Cyprus, Lithuania, Latvia, Hungary, Malta, Poland, Slovakia and Slovenia (1 May 2004) and Bulgaria and Ro-mania (1 January 2007) and Croatia (1 July 2013) joined gradually the original founding “Six.”

Announcement of the Nobel Peace Prize for 2012for the European Union

(excerpt)

The Norwegian Nobel Committee has decided that the Nobel Peace Prize for 2012 is to be awarded to the European Union (EU). The union and its fore-runners have for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.

3 See WESSELS, Wolfgang. Widening and Deepening. Transatlantic Internationale Politik, 2001, vol. 2., no. 2 (summer), pp. 5–11.


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In the inter-war years, the Norwegian Nobel Committee made several awards to persons who were seeking reconciliation between Germany and France. Since 1945, that reconciliation has become a reality. The dreadful suf-fering in World War II demonstrated the need for a new Europe. Over a sev-enty-year period, Germany and France had fought three wars. Today war between Germany and France is unthinkable. This shows how, through well-aimed eff orts and by building up mutual confi dence, historical enemies can become close partners.

Supranationality – the Core of IntegrationThe European Union now is a supranational entity which enjoys legal personal-ity. It implements the powers conferred upon it by Member States in order to pro-mote peace, fundamental European values and well-being of its peoples. (See ar-ticles 2 and 3 TEU).

The founders of the European Communities have built the cooperation of found-ing Western European countries which formed the “Six”, on a principle of the su-pranationality. This concept and its outlines have become the main indicators of the special characteristics of the European Community, later the European Union and also a mainspring of the European integration and the EU law development.

The supranational form of cooperation is based on the principle of conferring some of original sovereign powers of the Member States upon an organisation that implements these powers as an independent legal personality.

The preference of the supranationality manifests the utilitarian and function-alist conception of the European integration which emphasizes the effi ciency to achieve defi ned objectives of cooperation.4 It seems to be more expedient to con-fer the decision-making and the regulation of specifi c functions upon an indepen-dent apparatus. This apparatus can react faster and more eff ectively on the whole range of problems and mutual needs of all participating subjects. In contrast with the repeating negotiations of the political representations, this system moves the responsibility to the hands of partially independent institutions. Thus it integrates the capacity to act in one eff ective centre.

Building the Union on a supranational basis serves as the tool by which inter-nal/mutual problems and needs of Member States shall be solved faster and bet-ter than on separate level. And additionally it serves also as a reassurance and an instrument for the fi ght against the challenges of a globalisation.

4 See further CRAIG, Paul. The Nature of the Community: Integration, Democracy and Legitimacy. In CRAIG, Paul, de BÚRCA Gráinne (eds). The Evolution of EU Law. New York: Oxford University Press, 1999, pp. 1–54.


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In the post-war Europe the decision to opt for supranational integration method represented a signifi cant retreat of a classical international law principle of sover-eign equality of states (especially the universal international cooperation within the United Nations is built on this conception. See Article 2(1) of the Charter of the United Nations: ‘The Organization is based on the principle of the sovereign equality of all its Members‘). According to the principle of sovereign equality of states these subjects of international law are equal and there is no superior power to them. No state shall be forced to obey the legal rules of international law which were enacted without its participation or without its consent.

The supranational cooperation refrains from this classical principle of the pub-lic international law in particular by introduction of binding legal force and a di-rect eff ect of the EU law acts, all in connection with a voting by qualifi ed majority within the Council. This elementary structural points of the supranationality may together give rise to a situation when a Member State is bound by acts it did not vote for or more radically by the acts to which it has manifestly expressed its op-position. Thus the supranational basis of the European integration itself brings an inevitable distinction between this movement and a classical international coop-eration of equal partners.

The European Union is a self-suffi cient entity. It governs conferred tasks and powers independently and autonomously as a certain kind of sovereign. The Euro-pean Community and later the European Union as its successor, was given a par-ticularly suffi cient autonomy and the room in order to govern conferred tasks to-tally and without interference from Member States. This is the main outcome of supranationality.

The supranational organisation with a legal personality is independent and au-tonomous from its Member States and to some extent it is ‘superior’ to the states. This ‘superiority’ becomes evident in all stages of law-making and application of the EU law. The crucial points of this ‘superior’ position are: Existence of the independent law-making institutions and their autonomous

decision-making power. Independent application of individual decisions. Ability to produce the legal eff ects on the legal status of the natural and le-

gal persons (conferral of rights or laying down the obligations directly on the basis of supranational rules).


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The Schuman Declaration9 May 1950

(excerpt)

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which fi rst create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the fi rst place concern these two countries.

It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organi-zation open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a fi rst step in the fed-eration of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.

By pooling basic production and by instituting a new High Authority, whose decisions will bind France, Germany and other member countries, this proposal will lead to the realization of the fi rst concrete foundation of a Euro-pean federation indispensable to the preservation of peace.

The task with which this common High Authority will be charged will be that of securing in the shortest possible time the modernization of produc-tion and the improvement of its quality; the supply of coal and steel on iden-tical terms to the French and German markets, as well as to the markets of other member countries; the development in common of exports to other countries; the equalization and improvement of the living conditions of work-ers in these industries.

The essential principles and undertakings defi ned above will be the sub-ject of a treaty signed between the States and submitted for the ratifi cation of their parliaments. The negotiations required to settle details of applica-tions will be undertaken with the help of an arbitrator appointed by common agreement. He will be entrusted with the task of seeing that the agreements reached conform with the principles laid down, and, in the event of a dead-lock, he will decide what solution is to be adopted.

The common High Authority entrusted with the management of the scheme will be composed of independent persons appointed by the gov-ernments, giving equal representation. A chairman will be chosen by com-mon agreement between the governments. The Authority’s decisions will be enforceable in France, Germany and other member countries. Appropriate measures will be provided for means of appeal against the decisions of the Authority.


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Complex Constitutional System of the European UnionNeil MacCormick wrote that to understand a new legal reality which results from the development of supranational entities a certain amount of imagination is needed.5 A picture which is appearing in front of our eyes is an image of European Union as a complex constitutional system. The concept of complexity in connec-tion with the supranational system refl ects both its meanings. It is a comprehen-sive, internally structured system, as well as a system exhibiting a certain degree of diffi culty that complicates its understanding. It might be determined as the “con-stitutional mosaic”6 which is made by the variety of stones and glass pieces we are going to discover in this book.

European integration is based on the establishment and existence of an entity distinct from the founding states which is authorized to manage autonomously the sum of powers which the Member States have transferred on it. Autonomy (le-gal, decision-making and fi nancial) of this body creates the preconditions for the gradual competition among the Member States and Union and between EU law and national law. The European Union is the subject of law, is now an accepted part of the international community, has an autonomous legal order, which itself determines its national eff ects and which should have priority in relation to the law of the Member States. Moreover the primary law (the Treaties) forms accord-ing to the Court the constitutional charter of the Union.

The supranational impetus is connected with the discussions about the char-acter of the European Union from the point of view of legal theory and theory of state and politics. The particularities of the supranational organisation which is (in defi ned areas) endowed with jurisdiction and power to regulate social relations (by its own legal system) within the territory of the Member States; the concept of distribution of powers between Member States (units) and the Union (as a whole); the treaty basis of the Union; its legal personality and also the autonomous insti-tutional system, this all leads to the understanding of the Union as a mixed orga-nization overlapping the classical defi nition of an international organisations. The European integration is a phenomenon which moreover changes the traditional understanding of the position and role of states and relations between them and their inhabitants.

The integration brings a new player (the Union itself ) which via its autonomous legal system aff ects the status of natural and legal persons. To a certain extent it takes (let say steals) them from the Member States. Considered this phenomenon as a fact, it seems logical to ask whether there exists also a specifi c regulatory sys-tem of such structure. The European Union has a coherent institutional, political and legal system analogous to system of the state governance and thus repre-

5 MacCORMICK, Neil. Questioning Sovereignty. Law, State, and Nation in the European Common-wealth. New York: Oxford University Press, 1999, pp. 97-121.

6 WALKER, Neil, SHAW Jo, TIERNEY Stephen (eds). Europe’s Constitutional Mosaic. Oxford and Port-land: Hart Publishing, 2011, 395 p.


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sents the constitutional framework of special kind. European Union combines fea-tures of both: a federal and a confederate system of the state organization – and therefore it may be determined as a proto-federal or quasi-federal system. All this leads us to the acceptance of the special supranational (European Union) consti-tutional law, which we are going to discover by this book.7

Certainly there is no classical pouvoir constituant behind the creation of the Eu-ropean Union. But that does not contest the fact that the integration entities dis-play characteristics of a distinct constitutional system. The evidence of existence of such system may be found in the specifi c structural elements that the Europe-an Union diff er from the traditional international organizations. They indicate that the Union may be foreseen as a legal community, an equivalent to the rule of law based state. It is a constitutional structure which acts, behaviours and is internally regulated by the set of democratic rules.

The starting point as well as the argument for the acceptance of the existence of the substantive constitution of the Union may be found in the actual internal or-ganisation of relations between European Union and its Member States, between institutions of the Union and between Union and the individuals/citizens of the Union.

Another point is connected with the ability of the Union to manifest its will by the adoption of law and making of administrative decisions. The Union has its own legal framework that lays down rules of adoption of binding provisions. These pro-visions express the Union powers in the outer world and they are internally appli-cable within the Member States practice.

This book follows three main hypothesises – claims for the existence of the Con-stitutional system of the European Union and according to them it is divided into the three structural parts. All of the following hypothesis shall argue for the exis-tence of the complex constitutional system of the supranational entity, the Euro-pean Union. 1. Our fi rst argument is based on the assertion according to which where soci-

ety exists (i.e. political and societal structure) there is a Constitution. 2. The second argument is based on the claim that where a law is present (i.e.

autonomous legal system) there is a Constitution. 3. The last argument is connected with allegation according to which where

a rule of law is respected (i.e. democratic system based on the rule of law and protection of the fundamental rights) there is a Constitution.

7 Of course we are inspired by the classics in the field of supranational constitutional scholar-ship like WEILER, Joseph Halevi Horowitz. The Constitution of Europe. „Do the New Clothes have an Emperor?“ and other Essays on European Integration. New York: Cambridge University Press, 1999, 364 p. or ROSAS, Allan, ARMATI Lorna. EU Constitutional Law. An Introduction. Oxford: Hart Publishing, 2010, 260 p.


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15

PART ONE“Where a Society Exists there is a Constitution”

European Union forms an autonomous societal and political structure. It has its own integration method (supranationality); the rules covering the membership and relations between Union as the centre and Member States as the building units (vertical division of powers). It is also connected with the impetus of build-ing the close interrelation between individual persons and supranational struc-ture (the concept of the EU citizenship) and it has an effi cient internal institutional scheme (horizontal division of powers).

The presence of the abovementioned characters leads us to the claim that there is supranational societal arrangement of a special kind. And it allows us to speak about the supranational constitution as set of rules and relations interconnected with the good functioning of that structure. Once we accept that European Union has its own special arrangement of relations between several (political and so-cial) players and that there is an internal structure which is working / functioning regularly, we must accept also the presence of constitutional rules which governs this system. These rules represent the constitution of the Union in societal/insti-tutional sense.

The fi rst part of our book is divided into the following chapters:

Chapter I:Relation between Member States and European Union and Building

of Proto-Federal Society

Chapter II:Civis Europeus Sum – Forming the Chain between Individual and European

Union

Chapter III:Horizontal Division of Powers within the Union – The Internal Institutional

Scheme


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Chapter I: Relation between Member States and European Union and Building of Proto-Federal Society

1.1 Membership in the European Union

1.1.1 To Be a Member State … (Acquisition and Content of the Membership)

The European Union has nowadays (in 2013) 28 Member States. Conditions for acquisition of the membership and the process of accession of the state are laid down in Article 49 TEU. Any European state which respects fundamental values of the European Union (Article 2 TEU) can apply for the membership. Currently, ac-cession negotiations are under way with four candidate countries which are the Former Yugoslav Republic of Macedonia, Montenegro, Iceland and Turkey. The Eu-ropean Council in Copenhagen in December 1993 laid down basic criteria which must be fulfi lled by a candidate country (so called ‘Copenhagen criteria‘). The can-didate country shall chiefl y achieve: the stability of institutions guaranteeing democracy, the rule of law, human

rights, respect for and protection of minorities; the existence of a functioning market economy as well as the competitive-

ness of the national economy; the ability to take on the obligations of membership (enforcement of the Eu-

ropean legislation application).

There is number of obligations which result from the membership in the Euro-pean Union to the Member States. Those are laid down both generally and con-cretely in provisions of the primary as well as the secondary legislation of the Eu-ropean Union.

The fundamental general obligation of Member States is to observe fundamen-tal values of the European Union defi ned in Article 2 TEU (human dignity, free-dom, democracy, equality, rule of law and the respect for human rights). In case of serious and persistent breach of these values by the Member State, the Coun-cil shall use the so called suspension clause (Article 7 TEU) and decide to suspend certain Member State rights including the right to vote in the bodies of the Euro-pean Union.8

8 For the Analysis of the use of article 7 TEU see Communication from the Commission to the Council and the European Parliament of 15 October 2003 on Article 7 of the Treaty on European Union: Respect for and promotion of values on which the Union is based [COM(2003) 606 final].


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Another general obligation resulting from the treaty is so called loyalty principle (also known as a solidarity obligation) which is governed by the Article 4 (3) TEU. It has positive aspect - the Member State shall take all appropriate measures to fulfi l its membership obligations; and on the other hand it is also negative - the Mem-ber State shall refrain from any acting which could jeopardise the attainment of the Union’s objectives.

The Member States shall further fulfi l their obligations in all areas wherein they are bound by the Treaties or acts adopted under the Treaties. These obligations could be laid down explicitly (e.g. under Article 37 TFEU states shall adjust their state monopoles as to ensure that no discrimination regarding the conditions un-der which goods are procured and marketed exists between nationals of Mem-ber States) or they can result implicitly (it could go about obligation deriving from rights whose right-holders are subjects diff erent from states e.g. Article 20 TFEU which lays down the right to the protection of the diplomatic and consular au-thorities of any in the territory of a third country in which the Member State of which they are nationals is not represented).

The enlarging process of the Union refl ects interests of both Union and Mem-ber States so that both supranational and national institutions participate on this process. A potential candidate country shall apply for a membership to the Coun-cil which informs the European Parliament and national parliaments. The Council takes a fi rst Union level decision (unanimously) about accession application after consultation with the Commission and the European Parliament (decides by ma-jority of all members of the Parliament). In case of positive decision, negotiation and adopting of the Agreement on the Accession follows. A candidate country and current Member States of the Union are the parties to the agreement. When the agreement is adopted (signed), the ratifi cation process follows under the na-tional rules of all the treaty parties. When successfully ratifi ed by all parties to the agreement, the Agreement on the Accession comes into force (ratifi cation of 28+1 countries is therefore required).

1.1.2 Creators and Masters of the Treaties The European Union even though it is a supranational organisation it does not absorb its Member States. Those are still sovereign subjects and they serve as the foundation stones of the European Union – which is still their product. The princi-ple of sincere cooperation (principle of loyalty) included in the Article 4(3), forms the groundwork of the Union’s functioning. It is because under this principle both Union and Member States help each other in fulfi lment of integrations tasks.

The crucial element in defi ning the position of the Member States is connect-ed with their functions within the Treaty revision processes. The primary EU law is with not doubt a result of an agreement between Member States. The Member States have the main responsibility for its amendment and revisions. Considering this fact they are often designated as „Masters of the Treaties“. A procedure of re-


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vision of the primary legislation is governed by the Article 48 TEU. There are two revision procedures to amend or change the text of Treaties and in both of them Member States play the crucial role.

A. The ordinary revision procedure

It is a general form of a treaty revision and it shall be used if the objective of modi-fi cation is to change signifi cantly the content of the primary law. The competences conferred upon the Union may be both extended and reduced by this procedure. This procedure may be initiated by the government of any Member State, the Eu-ropean Parliament or the Commission. The proposal is submitted to the Coun-cil which postpones the proposal to the European Council. The European Coun-cil decides about a proposal by a simple majority after the consultation with the European Parliament and the Commission. In case of the adoption of the positive decision, the President of the European Council convenes the Convention, a spe-cial body whose task is to consider the proposal and carry out the consensual text of amendment to the primary law (the Convention may not be convened in case of marginal amendments). After the Convention reaches a consensus and adopts particular recommendations, the President of the Council convenes a conference of representatives of the governments of the Member States where the text of the amending Treaty to the primary law is adopted. The amendments shall enter into force after being ratifi ed by all the Member States.

B. The simplifi ed revision procedures

These forms of the amendments of the primary law shall be used for less im-portant issues. The Treaty governs two subcategories of the simplifi ed revision procedure.

Procedure under article 48 (6) includes revisions of all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and the action of the Union. Considering the wide range of questions potentially touched by this procedure a signifi cant restriction was intro-duced. According to this restriction, the simplifi ed procedure may not lead to the extension of competences conferred upon the European Union by the Member States. Amendments should thus concern organisational and institutional issues or lead to certain clarifi cations etc. The government of any Member State, the Eu-ropean Parliament or the Council may submit amendments under this procedure. The European Council decides about these amendments unanimously after the consultation with the European Parliament and the Commission (the European Central Bank in the case of institutional changes in the monetary area). The deci-sion shall enter into force after approval by all Member States made under their internal constitutional rules.

The second category of amendments under Article 48(7) TEU contains a so called general passarell clause. In accordance with this clause the European Coun-


19

cil (by unanimous decision) may change the provisions of the TFEU which provide for the Council to act by unanimity in a given area in manner that for the future qualifi ed majority in that area shall be used (this can’t be used in connection with decisions with military implications or those in the area of defence). The same may apply to all provisions of the TFEU that require a special legislative procedure for adoption of a secondary law acts. Here the European Council shall decide that in the future an ordinary legislative procedure shall be used instead. Any initiative within this procedure shall be submitted to the national parliaments. Any of them has the right to manifests its opposition within the six months period. In case of objections this procedure of the Treaty revision shall be stopped (this right to pre-vent the adoption of the revision of Treaties by national parliaments is designated as a “red card” mechanism). In case when no opposition has been made, the Euro-pean Council may by an unanimous decision and with the consent of the Europe-an Parliament adopt proposed change of the primary law.

1.1.3 Destiny Holders…The issue of the withdrawal of the state from the European Union is closely linked to the membership issue. Until the Treaty of Lisbon came into force, the law of the European Union did not govern any possibility of voluntary state withdrawal from the integration entities (however this possibility was allowed concerning the in-ternational law foundations of the Community/Union because under the interna-tional law of treaties- Vienna Convention on the Law of Treaties from 1969 - it was possible for the state to revoke its obligation and thus terminates its Community membership). Now under the Article 50 TEU any Member State has an explicitly laid down possibility to withdraw from the European Union.

The state withdrawal shall be a consensual process in the fi rst place. A Member State which decides to withdraw shall notify the European Council its intention in this question. The Council adopts guidelines for the negotiation on Treaty conclu-sion on conditions of withdrawal. This negotiation is conducted by a nominated negotiator on behalf of the Union (Article 213(3) TFEU). On behalf of the European Union the agreement on withdrawal shall be concluded by the Council with Par-liament’s consent. The institutions of the Union have thus a possibility to infl uence the process of state’s withdrawal but not the withdrawal itself. The withdrawal re-mains a unilateral, autonomous decision of the withdrawing state. The agreement on withdrawal is not an absolute condition of the termination of the membership. If the negotiation on the agreement neither starts nor agreement is adopted, the membership is terminated within a period of two years from the time when the state notifi ed to the European Council its intention. The withdrawal of a state un-der the Article 50 TEU is the only way of the membership termination governed by the EU law. It is important to bear in mind that the law of the European Union does not govern the possibility to exclude a state! Both accession and withdrawal from the Union has to be authorised autonomously by the state. The membership


20

is certain privilege. That means that Member State shall not be excluded by a deci-sion of any institution or by the decision of other Member States.

1.1.4 Multi-Speed EuropeTaking into consideration huge number of the Member States of the European Union it is possible that only some of them will be willing or able to implement future objectives of the European integration jointly. The law of the European Un-ion enables such a deeper integration of the part of Member States by means of the principle of fl exible integration or closer cooperation. This principle was intro-duced to the primary law of the European Union by the Treaty of Amsterdam. In connection with this principle a term of so called multiple-speed Europe shall be mentioned. Under the principle of fl exible integration some of the Member States may deepen their mutual integration process beyond achieved objectives of the Union. The possibility to use the background of the European Union for a closer cooperation of participating states is a big advantage.

The so called enhanced cooperation is possible only for areas which are not cov-ered by the exclusive competences of the Union. The cooperation is conditioned by a minimum number of nine participating Member States, it shall not be incon-sistent with objectives and interests of the Union and it shall be open for the other Member States which do not participate from the beginning. The enhanced co-operation shall be authorised by the Council. The Council considers especially if the cooperation objectives are not better achievable within the Union as a whole. The legal regulation governing the enhanced cooperation is laid down in the Ar-ticle 20 TEU and Articles 326 to 334 TFEU. The fi rst enhanced cooperation under those rules from the historical point of view was started in 2010 (see Council De-cision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation 2010/405/EU) The TEU prescribes also a specifi c variation of the multi-speed Europe. Within the framework of the Com-mon Security and Defence Policy the states are enabled to establish the so called structured cooperation (Article 42(6), Article 46 TEU).

1.2 Vertical Division of Powers – Competences of the European Union

1.2.1 The Fundamental Principles Governing the Division of Powers between Member States and Union

The European Union acts as an autonomous entity or as a certain kind of sover-eign power governing conferred tasks. The content and the extent of executing competences is defi ned by the notion of transfer or more precisely notion of con-


21

ferral.9 According to this the original right-holders i.e. Member States confer some of their competences upon the supranational subject = the European Union. The Union can act only in the areas wherein the Member States have conferred com-petencies to it (see art. 4 paragraph 1 and art. 5 paragraphs 1, 2 TEU). The compe-tences of the Union are divided into following categories: Exclusive competences Shared competences Supporting, coordinating and supplementary competences

A. The exclusive competencies of the Union (Article 3 TFEU) covers these areas: customs union, the establishing of the competition rules, monetary policy for the Member States whose currency is the euro, the conservation of marine biological resources and common commercial policy.

The Union has a primary law-making power under this category of competenc-es. The Member States have a subsidiary position (see art. 2 paragraph 1 TFEU). They can act merely if the Union empowers them and play an implementing role - they can adopt acts to implement Union rules.

B. The shared competences category is the broadest one (Article 4 TFEU). With-in the framework of this category belong all areas not included in the exclusive or supporting competences (the residual area). The TFEU includes a non-exhaust-ing list of the areas that belong to the shared competences. There is no numerus clausus of shared competencies. It goes for example about the internal market, the area of freedom, security and justice, the consumer protection, the establish-ment of trans-European networks etc. Under the shared competences both Union and Member States can act. The system of the European integration is function-ing on the principle of conferring of the responsibility for the several tasks upon two types of subjects (institutions of the European Union and bodies of the Mem-ber States). The principle of pre-emption (the principle of occupied areas) governs the area of shared competences in order to prevent the creation of the competing legislation. The Member States shall exercise their competence to the extent that the Union has not exercised its competence or has decided to cease exercising its competence. (Article 2 paragraph 2 TFEU). The activity of the Union does not rule out any Member States activity but only certain areas governed by an act of the Union are regarded as “occupied”.

Concerning the shared competences it is also necessary to defi ne where, when and in what extent lays the scope of the Union’s activity (the occupation of the

9 See further BERMANN, George. Competencies of the Union. In TRIDIMAS, Takis, NEBBIA, Paolisa (eds). European Union Law for the Twenty-first Century – Essays in European Law, Portland: Hart Publishing, 2004, pp. 65–73.


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certain area) and where Member States shall (can) act primarily. The competent subject i.e. the executor of competences is determined by a criterion of the most advantageous solution. Here two principles - subsidiarity and proportionality (Ar-ticle 5 TEU) were introduced to govern the exercise of shared competences.

The principles of subsidiarity and proportionality rule the division of powers be-tween the Union and the Member States. It is true that these principles should serve in favour of Member States and reduce the activity of the Union to the nec-essary extent.10 But at the same time fulfi lment of the conditions laid down by these principles legitimize the activities of the Union.11

The necessity of acting of supranational entities is defi ned by those two prin-ciples in mutual interaction. The Union shall (except for exclusive competenc-es) exercise conferred competences under the condition, that it is not possible to achieve the contained objective satisfactorily by the activity of Member States (the subsidiarity). Moreover according to the proportionality rule neither the con-tent nor the form of the activity of the Union shall exceed beyond what is neces-sary in order to achieve the expected objectives. The basic rules of application of these principles are defi ned by the Protocol on subsidiarity and proportional-ity which is attached to the Treaties. Under aforementioned protocol the Union’s action must fulfi l the formal condition (draft of the legal act must be justifi ed in view of the principles of subsidiarity and proportionality) and substantive condi-tion (the greater effi ciency of the Union’s action in the comparison with an acting of Member States).

The conclusion that there is a need of action of the European Union in order to achieve the particular objective shall be justifi ed by the supranational character of such an activity. According to this argument the passivity of the Union would lead to the treaty breach respectively to the harm of interests of the Member States. Very important are also the material (fi nancial) benefi ts of the Union activity in the comparison with the same action undertaken by the Member State.

Each proposal of a legislative act must be notifi ed to the national Parliaments of all Member States (see article 4 of the Protocol (no 2) on the application of the principles of subsidiarity and proportionality). The national Parliaments ensure compliance with the principle of subsidiarity. They may express their position on the proposed legislative act within a period of eight weeks.

In case when one third of parliaments (each national Parliament is given two votes; in case of a bicameral parliament each chamber is given one vote) sub-mits concerns regarding the proposal the draft must be reviewed. The proposing institution is obliged to take those concerns and comments into consideration and shall decide whether to maintain, amend or withdraw the proposal (this is so called yellow card mechanism). Reasons must be given for this decision.

10 See also DASHWOOD, Alan. The Limits of European Community Powers. European Law Review. 1996, Vol. 21, No. 2, pp. 113-128.

11 For detailed analysis see SCHÜTZE, Robert. From Dual to Cooperative Federalism. The Changing Structure of European Law. New York: Oxford University Press, 2009, p- 243 etc.


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In case when (within ordinary legislative procedure) at least simple majority of national Parliaments shall be in opposition to the proposal it also has to be re-viewed and Commission may decide to maintain, amend or withdraw the pro-posal. If Commission decides to maintain the proposal, it must give reasons for its position. Position of both national parliaments and the Commission shall be submitted with the proposal to the Council and the European Parliament = the Union legislator. The legislator then must consider both alternative opinions and tackle with the submitted proposals when adopting an act (so called orange card mechanism).

C. The supporting, coordinating and supplementary competences are imple-mented in the areas of protection and improvement of the human health, indus-try, culture, tourism, education, vocational training, youth and sport, civil pro-tection and administrative cooperation (Article 6 SFEU). In this area is the Union position the weakest one. The Union competences does not substitute the Mem-ber State competences and the acts adopted under these supporting competenc-es shall not lead to the legislative harmonisation of the Member States laws.

1.2.2 Flexible systemAccording to the principle of the conferred powers the Union shall act only within the boundaries of competences given to it by the Treaties. The sum of the Union powers is based on the logic of attribution from the Member States. Every single activity (an adoption of the act or conclusion of an international treaty) shall have its legal foundation in the provisions of the Treaties. In most instances the Treaties defi ne the character, content and scope of the Union competences. However it is not possible to lay down concretely and expressly all the competences that must be realized in order to achieve objectives of the integration. The constant develop-ment of the society, economy and technological change requires ability and tools for the adaptation to incoming new needs. The primary law of the European Un-ion takes these into account and leaves room for a fl exible response by some spe-cial legal instruments.

The fi rst instrument is so called fl exibility clause stated in article 352 TFEU. Under this clause it is possible to take appropriate measures in order to attain objectives of the Union although the Union does not have necessary power to take such an action. The usage of this clause is strictly conditioned by: unanimous consent on adopting of such a measure in the Council, consent of the European Parliament, the monitoring by national Parliaments, necessity of adopted measure and non-existence of other adequate Union power.

The general harmonisation clause in Article 114 TFEU is another instrument which “extends” the powers of the Union. Under this clause the European Parlia-ment and the Council shall (by the ordinary legislative procedure) adopt measures to approximate the national legislation in the extent necessary for the formation


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and the functioning of the internal market. Unlike the article 352 TFEU this pro-vision does not enable to extend the power in the strict sense of the word. The vague formulation of this provision enables a wide range of applications.

The third category of the fl exible defi nition of the Union powers has its legal foundation in the doctrine of so called implied powers which was created by the case-law of the Court of Justice (281/85 Germany v Commission12, C-176/03 Com-mission v Council13, or Opinion of AG Mazák in C-440/05 - Commission v Council). Un-der the theory of implied powers the Union bodies shall act even in such situa-tions when there is no explicit provision of the Treaty defi ning the power of the Union. The fundamental condition for using of the implied powers principle is that Union’s activity in a question is necessary to achieve tasks and fulfi l the objectives of the integration and it shall be derived from the text, objectives, content or pur-pose of some provisions of the Treaties.

The Union shall use implied powers both for adoption of the legal regulation within the Union and also in external relations in case of concluding of interna-tional treaties. The theory of implied powers in external relations was based on the case-law of the Court of Justice (22/70 ERTA14, Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property15) and today it is acknowledged by the wording of article 3 paragraph 2 TFEU.

12 Judgment of 9 July 1987, Germany, France, Netherlands, Denmark and United Kingdom / Com-mission (281, 283, 284, 285 and 287/85, ECR 1987 p. 3203).

13 Judgment of 13 September 2005, Commission / Council (C-176/03, ECR 2005 p. I-7879).14 Judgment of 31 March 1971, Commission / Council (22/70, ECR 1971 p. 263).15 Opinion 1/94, of 15 November 1994 (ECR 1994 p. I-5267).


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Chapter II: Civis Europeus Sum – Forming the Chain between Individual and European Union

2.1 The Character of EU Citizenship The institute of EU citizenship – European citizenship – has been occurring in the European political discourse since the 70s. But it was the Treaty on European Un-ion (1992) that incorporated this institute into primary law and made it binding. The nature and content of European citizenship became the subject of further dis-cussions and at the same time of continuing development of primary and second-ary law and signifi cantly also of the case-law of the Court of Justice.16

On the one hand in the area of primary law the provisions on European citizen-ship were fi rst modifi ed by the Treaty of Amsterdam (“EU citizenship does not re-place the citizenship of the Member States”), on the other hand it led to the inser-tion of European citizenship provisions into the Charter of Fundamental Rights of the EU, which is based on the Lisbon Treaty part of the primary law (see Articles 39-46 of the Charter). In addition, formulation of other rights in the Charter which do not apply necessarily only to citizens contributed to strengthening the rights of EU citizens.

Art. 9 TEU a 20 TFEU state that: „Every person holding the nationality of a Mem-ber State shall be a citizen of the Union. Citizenship of the Union shall be addition-al to and not replace national citizenship“.

In this respect, the EU citizenship acts complementary to the citizenship of the Member States; it is derived from it. It should be noted that in the original wording of the provisions on the European citizenship clear statement of the relationship between national and European citizenship was lacking. Therefore, immediately the EU Treaty was signed (1992) it was unclear whether the European citizenship substitutes for national citizenship. This controversy was resolved by the subse-quent revisions of primary law, the Treaty of Amsterdam (1997), when a provision was inserted into the primary law saying that the European citizenship does not replace national citizenship. Of course, later revisions of the primary legislation kept this rule.

In order to be able to benefi t from the European citizenship, the person must ob-tain citizenship, respectively it must be granted to them based on national regula-tions of the given Member State. The basic premise is that the concept of Europe-16 Deep analytical and philosophical analysis of this legal concept was given by J. Weiller in chapter

“To be a European Citizen: Eros and Civilization“, published in WEILER, Joseph Halevi Horowitz. The Constitution of Europe. „Do the New Clothes have an Emperor?“ and other Essays on European Integration. New York: Cambridge University Press, 1999, pp. 324-357.


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an citizenship does not interfere with national regulations regarding the granting of citizenship of a particular state – granting/revoking citizenship is the exclusive domain of states related to the exercise of their sovereignty; Member States must respect the existence of another Member State, also its power to revoke citizen-ship. These principles were refl ected in the individual decisions of the Court of Justice (se e.g. C-369/90 Micheletti17, C-192/99 Kaur18, C-200/02 Zhu and Chen19). Ac-cording to the case-law of the Court of Justice, in accordance with the interna-tional law defi ning the conditions of acquiring and losing citizenship is within the competence of each Member State and the Court of Justice does not intervene in this area.

However, in the recent development the Court of Justice modifi ed the absolute freedom of Member States. Case C-135/08 Rottmann20 concerned Austrian citizen who moved to Germany. After several years he applied for German citizenship, which he was subsequently granted; under Austrian law by obtaining German cit-izenship he had lost Austrian citizenship. When applying for German citizenship he held back that in Austria he is prosecuted for fraud. German authorities started proceedings for revocation of citizenship. But in case of revocation of German citi-zenship, Mr Rottmann would not automatically gain Austrian citizenship and could thus become a stateless person. As a result, he would lose also EU citizenship.

According to the Court of Justice it is legitimate for a Member State to protect the unique relationship of solidarity and loyalty, which is the basis of state citizen-ship. It is therefore justifi ed to decide about revocation of citizenship, which was obtained by fraud, even if this decision will lead to the loss of EU citizenship. But given the importance of an EU citizen status it is necessary to take into account the consequences of revocation of citizenship for the person and their family mem-bers because of the rights associated with the EU citizenship; especially if the re-vocation is justifi ed by: • the seriousness of the infringement • the time elapsed between the decision to grant citizenship and the decision

to revoke the act by which the citizenship was granted, and • the possibility of the person to obtain back their former citizenship and in

this regard give them with suffi cient time.National courts must assess the circumstances in regard with the principle of

proportionality. The Austrian court has to consider similar principles in its decision on re-granting/not granting Austrian citizenship.

17 Judgment of 7 July 1992, Micheletti and others / Delegación del Gobierno en Cantabria (C-369/90, ECR 1992 p. I-4239).

18 Judgment of 20 February 2001, Kaur (C-192/99, ECR 2001 p. I-1237).19 Judgment of 19 October 2004, Zhu and Chen (C-200/02, ECR 2004 p. I-9925).20 Judgment of 2 March 2010, Rottmann (C-135/08, ECR 2010 p. I-1449).


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C-135/08 Rottmann [2010] ECR p. I-1449

56 Having regard to the importance which primary law attaches to the sta-tus of citizen of the Union, when examining a decision withdrawing naturali-sation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the mem-bers of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, wheth-er that loss is justifi ed in relation to the gravity of the off ence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.

57 With regard, in particular, to that last aspect, a Member State whose na-tionality has been acquired by deception cannot be considered bound, pur-suant to Article 17 EC, to refrain from withdrawing naturalisation merely be-cause the person concerned has not recovered the nationality of his Member State of origin.

58 It is, nevertheless, for the national court to determine whether, before such a decision withdrawing naturalisation takes eff ect, having regard to all the relevant circumstances, observance of the principle of proportionality re-quires the person concerned to be aff orded a reasonable period of time in or-der to try to recover the nationality of his Member State of origin.

The decision in Rottmann case may be considered a turning point in understand-ing of complementarity of the EU citizenship. The decision means that the EU law, respectively the Court of Justice may control/ intervene also into the process of granting/ revocation national citizenship – that is in the area that was so far un-derstood and treated in the case-law exclusively as domaine réservé of the Mem-ber States. The question is whether the fact that revocation of the citizenship of a Member State may also lead to the loss the status of EU citizen and the rights as-sociated with it can stand as a compelling reason. This can certainly be said of any granting/revocation of citizenship (except for the existence of dual citizenship).

The EU citizenship is an independent legal status also in relation to the market freedoms of the EU and the status of economically active persons. Even though the Court of Justice in its initial decisions approached the EU citizenship more as complement to the existing freedoms relating to the freedom of movement of ec-onomically active persons (see e.g. C-193/94 Skanavi21) its opinion went through signifi cant evolution during the time. Eventually, a fundamental shift occurred in case C-184/99 Grzelczyk22 where the Court of Justice held that the citizenship is

21 Judgment of 29 February 1996, Skanavi and Chryssanthakopoulos (C-193/94, ECR 1996 p. I-929).

22 Judgment of 20 September 2001, Grzelczyk (C-184/99, ECR 2001 p. I-6193).


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the basic status of nationals of the Member States (see also section 3 of the pre-amble to the Directive 2004/38). In case C-413/99 Baumbast23 the Court of Justice has clearly declared that EU citizens can benefi t from rights related to Europe-an citizenship regardless of their economic status (of employee or self-employed person).

2.2 The Content of EU CitizenshipEU citizenship is at the fi rst place represented by the complex sum of rights which are conferred to the citizens of Member States by the provisions of Primary law of the European Union. It is this sum of right which forms the special bound between supranational entity and its individuals.24 The citizens’ rights prescribed by the Pri-mary law may be divided into the three groups according to their main objective. Citizens of the European Union hold the sum of rights which may be divided into the two groups: Rights with economic and social dimension Rights with political dimension

2.2.1 Economic and Social Dimension – Movement Rights The elementary basis of the EU citizenship (as special supranational status of indi-viduals) is formed by the general right of free movement and residence all across the Union (article 21 TFEU). The limits of the free movement of citizens are set in the secondary law provisions (directive 2004/38/EC of the European Parlia-ment 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 Mem-ber States). Article 27 of this directive allows the restrictions to the free move-ment (right of entry as well as rights of residence) on grounds of public policy, public security and public health. Directive includes also some “safety” provisions which limit the discretion of the states in connection with those restrictions. These grounds shall be proportionate, based strictly on the personal conduct of the indi-vidual and they cannot be invoked to serve any economic ends. The citizens have in addition some procedural safeguards (access to judicial and administrative re-dress procedures) in connection with the all decisions of host Member State relat-ed to their free movement rights.

The logic of the EU citizenship is to give all citizens free option to choose the place of her/his residence. The elementary condition is that citizen willing to re-side for the long-time period won’t become the burden for the social security scheme of the hosting Member State. According to the directive 2004/38/EC the

23 Judgment of 17 September 2002, Baumbast and R (C-413/99, ECR 2002 p. I-7091).24 See also KUMM, Mattias. To be a European Citizen: Constitutional Patriotism and the Treaty Es-

tablishing a Constitution for Europe. In ERIKSEN, Erik Oddvar a kol. (eds). The European Constitu-tion: the Rubicon Crossed? Oslo: Arena, 2005, pp. 7-63.


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citizens have right for a residence in three diff erent forms [description taken form the web-presentation of the European Commission]:

1. First if right to reside on the territory of any other Member State for the period up to three months. All Union citizens have the right to enter another Member State by virtue

of having an identity card or valid passport. An entry or exit visa cannot be required Under no circumstances. For stays on the territory of the hosting Member State lasting less than three months, the only requirement on Un-ion citizens is that they possess a valid identity document or passport.

2. Second form is right of residence for more than six months which remains subject to certain conditions. Applicants must: either be engaged in economic activity (on an employed or self-employed

basis); or have suffi cient resources and sickness insurance to ensure that they do

not become a burden on the social services of the host Member State during their stay;

or be following vocational training as a student and have suffi cient resources and sickness insurance to ensure that they do not become a burden on the social services of the host Member State during their stay;

or be a family member of a Union citizen who falls into one of the above cat-egories.

3. Third form is a right of permanent residence; this right is acquired by EU citi-zens and their family members who legally reside in the Member State for a con-tinuous period of fi ve years; the Directive sets the exceptions from this continuous fi ve-year stay. The Directive also regulates the administrative formalities for EU cit-izens (a document certifying permanent residence of EU citizens) and their family members (permanent residence card for family members who are not nationals of any Member State).

2.2.2 Political Dimension – voting, petitions, initiatives and protection

Special status of European citizens is not connected only with the rights of free movement and residence. The purpose of this institute is not just a Europe without frontiers where undisturbed mobility of individuals is guaranteed. There is some-thing more behind the European citizenship. In the analysis of the constitutional-ity of the European Union we must necessarily refer to the political dimension of European citizenship. It is also because present Union is built on the principle of representative democracy and the principle of broad participation of civil society (Articles 10 and 11 TEU) which have important position among the fundamental values of supranational entity.


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Citizens of the European Union are an important force to promote the idea of building an autonomous supranational society. The political dimension of citizen-ship is determined primarily by:

1. Electoral rights (Article 22 TFEU). It includes active and also passive electoral right which means that every cit-

izen has right to vote and right to stand as a candidate in a) Municipal elec-tions and b) Elections to the European parliament in that particular Member State where he or she resides and without any further conditions in compari-son to nationals of that hosting state. This set of rights serves to create a cer-tain bond and a sense of belonging to the host country.

2. Diplomatic protection (Article 23 TFEU). In the territory of third (non-member) countries every citizen has the right

for the diplomatic or consular protection provided by the authorities of all other Member States. The only condition is that his/her own state does not have the diplomatic representation there. This right serves as an instrument to support the logic of the pan-European character of the Union citizenship. Besides the obvious economic advantages (no need to have diplomatic rep-resentation in all countries of the world) that right underlined the impor-tance of solidarity and community.

3. Citizens’ initiative (Article 11 TEU and article 24 paragraph 1 TFEU). An important point to mention in connection with the establishment of

some ties between individuals and Union is the legal novelty introduced by the Treaty of Lisbon i.e. the institute of the citizen’s initiative. Under Article 11(4) TEU one million citizens who are nationals of a signifi cant number of Member States may take the initiative of inviting the European Commission to submit any appropriate proposal. Particulars are defi ned by the Regula-tion No 211/2011 of the European Parliament and of the Council of 16 Feb-ruary 2011 on the citizens’ initiative.

Upon this regulation the minimum number of signatories must come from at least one quarter of the Member States; the regulation further defi nes the minimum number of signatories per a Member State. It was decided that re-quired number will be a multiple of the number of Members of the Europe-an Parliament elected in each Member State. The multiple chosen was 750 (for example in the Czech Republic a minimum number is 16 500 signato-ries which means 22 MEPs multiplied by 750); and the question of organisa-tion of the collection of signatures and the processing of the initiative by the Commission. Although the citizens’ initiative brings a certain change in the framework of proposing of legal acts, it does not interfere with the exclusive competences given to the Commission so far that initiative is not binding for the Commission. The Commission shall only examine the proposal and give reasons for adoption or non-adoption of certain measures.


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Citizens’ initiative in practice – selected examples

Let me vote - The goal of the initiative is to develop the political dimen-sion of the European project by reinforcing citizens’ awareness that they share a common destiny. It would have the following eff ects: - To enhance the con-cept of European Citizenship; - To facilitate freedom of movement within the EU; In addition, it could contribute to remedying the loss of voting rights pres-ently experienced by a signifi cant number of EU citizens who are long-term residents of other Member States.

End Ecocide in Europe: A Citizens’ Initiative to give the Earth Rights - 1. Crim-inalise Ecocide and ensure that natural and legal persons can be held respon-sible for committing Ecocide according to the principle of superior responsi-bility. 2. Prohibit and prevent any Ecocide on European territories or maritime territories falling under EU legislation, as well as acts outside the EU commit-ted by EU registered legal persons or EU nationals. 3. Provide for a period of transition to facilitate a sustainable economy.

Single Communication Tariff Act - End roaming fees across Europe now, complete the European common market for all mobile phone customers.

“30 km/h - making the streets liveable!” - The EU has clear road safety and environmental goals but these are not yet met. A 30 km/h (20 mph) standard speed limit would help to implement them more effi ciently as it has prov-en successful in reducing injuries and fatalities, noise, air pollution and CO2 emissions, and improving the traffi c fl ow. People can travel with less fear. En-vironmentally friendlier modes become more attractive. To meet the subsid-iarity principle, the local authorities must have the fi nal decision to set other speed limits on their roads and implement equivalent alternatives to meet the goals.

European Initiative for Media Pluralism - We demand amendments to the Audiovisual Media Services Directive (or the endorsement of a new Directive) aiming at introducing harmonised rules with regard to the protection of me-dia pluralism as necessary step towards the correct functioning of the internal market. Such legislation, in accordance with the EU Charter of Fundamental Rights, will also meet the public interest objective of maintaining a pluralist democratic debate through free exchange of ideas and information in the Eu-ropean Union


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Central public online collection platform for the European Citizen Initiative - Provide an Online Europeean Initiatives Platform where you can register new initiatives and collect signatures. Show an overview of all initiatives which can be broken down by topic, country and popularity. Allow originators of an ini-tiative to get in contact with their supporters and allow all citizens to discuss and argure initatives. Show transparrently at which state each of the inita-tives are and who is in charge of the next step until a fi nal decision has been made.

High Quality European Education for All - Establish a multi-stakeholder dis-cussion/collaboration platform where parents, teachers, students, social part-ners, educators and decision-makers will propose, debate and formulate a Eu-ropean policy for a quality, pluralistic and EU 2020 - oriented educational model at primary and secondary level for all Europeans. Establish a roadmap to implement the above educational model, possibly culminating in a Euro-pean Baccalaureate, for the benefi t of future generations, as foreseen by the Lisbon Treaty

Stop vivisection

One of us - The human embryo deserves respect to its dignity and integri-ty. This is enounced by the ECJ in the Brüstle case, which defi nes the human embryo as the beginning of the development of the human being. To ensure consistency in areas of its competence where the life of the human embryo is at stake, the EU should establish a ban and end the fi nancing of activities which presuppose the destruction of human embryos, in particular in the ar-eas of research, development aid and public health.

[information about objectives of the initiatives obtained from the offi cial web-page http://ec.europa.eu/citizens-initiative/public/welcome)]

4. Right of petitions and complaints (article 24 TFEU). Citizens have a right to petition the European Parliament, right of applica-

tion to the Ombudsman, rights to address any of the institutions or bodies referred and rights to have an answer in the same language as application.


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Chapter III: Horizontal Division of Powers within the Union – The Internal Institutional Scheme

3.1 Institutions in General The European Union as a supranational entity is not a mere association of Mem-ber States. In certain fi elds it is an independent subject implementing its autono-mous will. Such an entity requires necessarily a well-developed internal institu-tional framework which shall be able to carry on legislative, executive and judicial tasks. From this point of view even within the EU we may fi nd the variations on the classical Montesquieu’s tripartite system of public powers. Of course (same as in the states in present days) the tasks conferred upon the Union are not governed by only three bodies but in fact they are achieved by the activities of many institu-tions, committees, agencies etc. which participate on the implementation of the powers.

The most important Union activities are implemented by chief institutions de-fi ned in the Article 13 TEU. Those institutions are the European Parliament, the Eu-ropean Council, the Council, the Commission, the Court of Justice of the European Union, The European Central Bank and the Court of Auditors. The most important supporting institutions are the Economic and Social Committee and the Commit-tee of the Regions.

The united institutional structure was one of the bonds of all three Commu-nities and later also between the Communities and the Union in the past days of integration. All of founding Treaties of the European Communities anticipated the creation of own system of institutions however their creation has never been complemented. It is because decision to merge the main bodies was made right in connection with the multiplication of Communities in the late fi fties. The fi rst insti-tutional interconnection was established upon Convention on certain institutions common to the European Communities (signed on 25 March 1957, came into ef-fect on 1 January 1958) when the European Economic Community and Euratom were established. The Member States agreed on establishment of the single As-sembly and a single Court of Justice common to all three Communities. The Treaty establishing a single Council and a single Commission to the European Communi-ties, the so called Merger Treaty (signed on 8 April 1965, came into eff ect on 1 July 1967) completed the process of creation of single institutional system.

Every institution fulfi ls its own special functions and represents a certain specif-ic interests within the fulfi lment of its tasks which enables to characterise any of them by a simple defi nition:


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The European Parliament is known as the protector of the interests of Euro-pean people and guarantor of the democratic legitimacy of the European Union.

The European Council is the supreme political body that determines the fu-ture development and goals of the Union.

The Council represents the governments of the Member States and acts as the guardian of national interests so as some equilibrium to the supranation-al movement.

The Commission is a typical supranational authority which is independent on the governments of the Member States. It represents the interests of the Union itself and acts as an „engine“ of integration.

The Court of Justice of the European Union is the protector of a uniform and eff ective application and interpretation of EU law.

The European Central Bank acts as the guardian of monetary and economic stability.

The Court of Auditors is a representative of control functions and acts as guardian of the budget and eff ective use of the Union funds.

European Economic and Social Committee and Committee of Regions repre-sent the contact point between EU and civic, professional and local society.

3.2 The European Parliament The European Parliament is an institution assuring the democratic legitimacy of the Union. It shall serve as the mean of closer connection between Union and its citizens. The development of the position and the relevance of European Parlia-ment in the course of time brought many essential changes. Till the Single Europe-an Act came into eff ect, the European Parliament had merely an advisory function. Its participation on the adoption of legal acts was limited to single not binding consultations given to the Council. However since the adoption of the Single Eu-ropean Act the role of the European Parliament has been strengthening and it ob-tained more and more powers till the present days. It is a consequence of the at-tempts to diminish the so called democratic defi cit of the European integration (low level of representation of people at supranational level).

Especially position of the European Parliament in the process of adoption of EC/EU law has changed radically. The Single European Act introduced the so called cooperation legislative procedure wherein the European Parliament was given a right of the so called relative / suspensive veto in certain areas. Its view was bind-ing however the Council could overrule it by a unanimous decision. The Treaty of Maastricht introduced in some areas the so called co-decision procedure. The Eu-ropean Parliament was given a right of an absolute veto which could not be over-ruled by the Council. The Treaty of Amsterdam and the Treaty of Nice extended


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this procedure further to some other areas. When the Treaty of Lisbon was adopt-ed the co-decision procedures become the standard rule and it is now denominat-ed as ordinary legislative procedure (Article 294 TFEU). The European Parliament was given an equal position with the Council in the law-making process (see fur-ther chapter on the drafting and adopting of EU secondary law).

The members of the European Parliament are elected in direct election which takes place in a fi ve-year periods. Elections are hold in all states at the same time. Each state is considered as a certain independent electoral district with a given number of mandates. Even though the elections are organised separately under provisions of the national law governing elections there are some common rules settled by the European Union (see Act concerning the election of the representa-tives of the European Parliament, Council Decision annexed to Decision 76/787/ECSC, EEC, Euratom as amended by Council Decision 2002/772/EC, Euratom). The common rules prescribe minimal standards particularly that Members of the Eu-ropean Parliament shall be elected on the basis of proportional representation and that elections shall be by direct universal suff rage and shall be free and secret. However, the Member States are still free to decide on some particularities like whether they authorise voting based on a preferential list system or whether they set a minimum threshold for the allocation of seats (threshold may not exceed 5 per cent of votes cast). They are also free to widen the scope of ability to have a right to vote and to stand for elections even to the persons who are not their na-tionals or citizens of other Member States as was stated by the Court of Justice in C-145/04 Case Spain v UK25.

Spain / United Kingdom (C-145/04, ECR 2006 p. I-7917)

77 In addition, since the number of representatives elected in each Mem-ber State is laid down by Article 190(2) EC and since, in the current state of Community law, elections to the European Parliament are held in each Mem-ber State for the representatives to be elected in that State, an extension by a Member State of the right to vote at those elections to persons other than its own nationals or other than citizens of the Union resident in its territory af-fects only the choice of the representatives elected in that Member State and has no eff ect either on the choice or on the number of representatives elect-ed in the other Member States.

25 Judgment of 12 September 2006, Spain / United Kingdom (C-145/04, ECR 2006 p. I-7917).


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78 It follows from all of those considerations that, in the current state of Community law, the defi nition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the com-petence of each Member State in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory.

According to the rule introduced to the primary law by the Lisbon treaty (art. 14/2 TEU) the Parliament shall have 751 MEPs. This rule will be applied for the fi rst time in 2014 elections. Till then (due to the late ratifi cation of the Lisbon treaty which was fi nished after last elections and due to the accession of the Croatia to the Union) the European Parliament consists temporarily of 766 MEPs. The con-crete distribution of seats in 2014 elections is highly sensible question which is the object of on-going deliberations. The decision shall be adopted by European Council by unanimity, on the initiative of the European Parliament and with its consent. The basic rule (art. 14 TEU) is that representation of citizens shall be de-gressively proportional, with a minimum threshold of 6 members and maximum number 96 seats for the Member state.

The European Parliament is represented by its President who is elected by the MEPs for a 2,5-year term. The European Parliament adopts decisions (if not diff er-ently laid-down by Treaties) by a simple majority of present members i.e. major-ity of votes cast. The activity of the European Parliament is organised by its Bureau (President and 14 Vice-Presidents). The Members of the Parliament are grouped together neither on the basis of their nationality nor from the regional point of view but according to their political alignment. The political fractions formed by Members of the Parliament from diff erent countries who are linked merely by their political affi liation and preferences forms the elementary political units in the Eu-ropean Parliament (at least 25 members of the Parliament from at least one fourth of Member States are required to form a political group). Even though they sit is some political fractions, the members of the Parliament are independent. They vote individually and in person, they are not bound by any third party instruction, they enjoy given immunity and their mandate is incompatible with exercising of some functions (e.g. in a government of a Member State, in the Commission or in some other institutions).


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Political groups – current list

Group of the European People’s Party (Christian Democrats) Group of the Progressive Alliance of Socialists and Democrats in the Euro-pean ParliamentGroup of the Alliance of Liberals and Democrats for EuropeGroup of the Greens/European Free AllianceEuropean Conservatives and Reformists GroupConfederal Group of the European United Left - Nordic Green LeftEurope of Freedom and Democracy Group

European Parliament is one of the most important institutions and therefore it carries out a complex amount of powers and task: Its primary role is the execution of the legislative power. The European Parlia-

ment contributes in the process of the secondary law-making together with the Council by participation on the ordinary or special legislative procedure and by the execution of the right of a political initiative = initiations to the Commission.

The European Parliament is given also a budgetary power. It carries on the revenue and expenditure control. Together with the Council it forms a budg-etary institution of the Union. The special legislative process of negotiation and adopting of the budget is governed by the Article 314 TFEU.

The Parliament also holds a control power. Within the execution of this func-tion it is processing the citizen’s petitions, appoints and cooperates with the European Ombudsman; appoints the commissions and committees of in-quiry; initiates proceedings before the Court of Justice.

Creative, constituent power is another competence administrated by the Eu-ropean Parliament. It participates to a large extent of constituent processes especially on the appointment of the Commission.

The European Parliament has also some power in the external relations of the European Union. Here in limited cases it approves conclusion of the ex-ternal treaties between the Union and another subject of the international law.


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The National Parliaments – The Appearing Second Chamber?

The Treaty of Lisbon introduced a signifi cantly strengthening of the posi-tion of national parliaments within the wide range of activities of the Union. Even though the national parliaments are not included in the list of institu-tions of the Union, they are given important competences to increase demo-cratic legitimacy of the Union and to assure protection of the national inter-ests of the Member States.26 Under Article 12 TEU the national parliaments contribute to the good functioning of the Union by:

1. Taking part in law-making activities of the Union. They are informed about drafts of legislative acts and they may express their views. The most important is their power to supervise whether principle of subsidiarity is respected be-cause they become a guardian of division of powers between the Union and the Member States. Thus the national parliaments may have expressed their position to drafted legislative acts.

2. The supervision whether the principle of subsidiarity is respected.3. Taking part in Union policy within the framework of the area of freedom,

security and justice. They are involved in the monitoring of Europol and the evaluation of Eurojust’s activities.

4. Taking part in the Treaties revision procedures. They have right to be in-formed about every proposal of amendment or change to the Treaties; in case of ordinary revision procedure, their representatives take part in Convention meetings; in case of simplifi ed revision procedure, any national parliament has right to manifest its opposition and prevent an adopting of proposed change concerning the law-making procedure or the form of the voting = so called ‘red card mechanism.‘

5. Taking part of the accession process of new members6. Participation in the inter-parliamentary cooperation between national

Parliaments and with the European Parliament they contribute to solve issues connected with the integration.

3.3 The European CouncilThe European Council is the EU institution with let’s say the highest political pro-fi le. It was established in 1974 in the form of an unoffi cial forum (summit) sup-posed for discussions of heads of state or government of Member States. It was given an offi cial status in 1993 (Article 4 TEU in the wording of the Treaty of Maas-tricht) however it was not listed in the set of Community institutions. Upon the

26 See further GEORGIEV, Jiří. Democracy in the EU: National Parliaments and the Quest for Legi-timacy. In ŠIŠKOVÁ, Naděžda (ed). The Process of Constitutionalisation of the EU and Related Issues. Groningen: European Law Publishing, 2008, pp. 111–199.


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Treaty of Lisbon (came into force on 1 December 2009) it became one of the main institutions of the Union.

Under Article 15(2) TEU the European Council shall consist of the Heads of State or Government of the Member States, together with its President and the Presi-dent of the Commission i.e. it has 29 members. The EU’s High Representative for Foreign Aff airs and Security Policy also takes part in the meetings of the European Council.

The Treaty of Lisbon has introduced a permanent presidency of the European Council as the new constitutional position within the system of the EU institutions. President of the European Council is elected by the European Council for two and a half years term. The historically fi rst elected President is Herman Van Rompuy. The President prepares, convenes and chairs meetings of the European Council. Meetings of the European Council shall take place at least twice in six months and they are usually held in Brussels. The European Council acts as a collective institu-tion. Political decisions are adopted by consensus unless the Treaty prescribes the other form (adoption of decision by a simple majority, unanimously or by a quali-fi ed majority). Neither the President of the European Council nor the President of the Commission takes part in the vote. In case when the European Council is adopting decision by a qualifi ed majority same rules as for the Council shall apply (Article 235(1), second Subparagraph TFEU).

The European Council provides the necessary impetus for the development of the Union and defi nes general political direction of this development. It rep-resents something like the cuisine of the European integration because this fo-rum adopts the most important decisions governing a future development of the Union and the road maps of integration are “cooked” here. Even it does not have a regular legislative power it performs other important functions: It is given a decision-making power on some important issues by Treaties.

e.g. it determines if there is serious breach of the fundamental values of the Union by a Member State - Article 7 TEU; it defi nes general and strate-gic guidelines for the common foreign and security policy - Article 216 TEU; it adopts important decisions within the process of Treaty revisions - Arti-cle 49 TEU; it participates on the process of admission of new members - Ar-ticle 49.

The European Council also has a creation power. It proposes a candidate for President of the Commission to the European Parliament and appoints the Commission as a whole - Article 17 (7) TEU; and it also appoints the High Representative of the Union for Foreign Aff airs and Security Policy and ends his/her term of offi ce.


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3.4 The Council The Council (historically also known as the Council of the European Union or the Council of Ministers) was given a very important position in the institutional struc-ture of the Communities/the Union since the very beginning of the European inte-gration. This institution represents national interests of Member States. Since the foundation of the European Communities the Council was the most signifi cant law-making institution. The fact that the rules of supranational law were adopt-ed only by representatives of national governments without any participation of elected institutions representing the People of Europe as whole was regarded as one of the main causes of the so called democratic defi cit of the European inte-gration. The monopoly over legislative initiative of the Council was eliminated by the gradual increasing of relevance of the European Parliament. The European Par-liament became an equal partner to the Council in the process of adopting of the supranational legal regulation (most signifi cantly when the Treaty of Lisbon came into eff ect) and nowadays the Council and the European Parliament form jointly a law-making tandem (it is important to mention here that also text of primary law – the Protocol (no 2) on the application of the principles of subsidiarity and proportionality – denominates this tandem as single “Union legislator”).

The Council is a representative of national interests presented at its meetings by national governments. Any Member State shall nominate one representative at ministerial level empowered to bind its government to sit on the Council’s meet-ings. The representatives come from diff erent resorts and they take part on meet-ings depending on the character of the discussed issue (10 diff erent compositions, e.g. when agriculture issue is discussed, Ministers of Agriculture meet).

Council confi gurations

1. General Aff airs 2. Foreign Aff airs 3. Economic and Financial Aff airs 4. Justice and Home Aff airs (JHA) 5. Employment, Social Policy, Health and Consumer Aff airs 6. Competitiveness (internal market, industry, research and space) 7. Transport, Telecommunications and Energy 8. Agriculture and Fisheries 9. Environment 10. Education, youth, culture and sport

The Presidency of the Council rotates (except for The Foreign Aff airs Council which is chaired by the High Representative of the Union for Foreign Aff airs and Security Policy). The presidency of the Council rotates every six months according to the order given by decision of Council (Council decision 2007/5/EC, Euratom of


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1 January 2007 determining the order in which the offi ce of President of the Coun-cil shall be held). According to the Lisbon reform, in the future the rotation order will be determined by the European Council decision adopted by qualifi ed major-ity. Within this six month the Council is chaired by the ministers coming from the presiding country.

The order of Presidency for the incoming years

Ireland January-June 2013Lithuania July-December 2013Greece January-June 2014Italy July-December 2014Latvia January-June 2015Luxembourg July-December 2015Netherlands January-June 2016Slovakia July-December 2016Malta January-June 2017United Kingdom July-December 2017Estonia January-June 2018Bulgaria July-December 2018Austria January-June 2019Romania July-December 2019Finland January-June 2020

Taking into consideration that the Council is not a permanent institution, it is necessary to arrange adequately preparation of its meetings. This is the task of the Permanent Representatives’ Committee (the so called COREPER from French Comité des représentants permanents). The reason for COREPER’s existence is es-pecially a non-permanent character of the Council which (as an institution com-posed of government representatives) meets only at particular times. On the other hand the Council is a very important decision-making institution thus its decision shall be properly discussed and interpreted. This preparation and evalu-ation proceed mostly on the ground of COREPER. The COREPER meets in two dif-ferent compositions. COREPER is composed of Deputy permanent representatives of Member States and deals largely with technical and economic issues. COREPER II is composed of permanent representatives and discusses more important politi-cal issues. The COREPER’s activity lies in preparation of the agenda to the Council’s meeting whereto it submits drafts. These drafts are divided into groups on the ba-sis of the COREPER’s meeting result. The part A lists items the COREPER agreed on and the Council decides on them without any deep debate. The part B contains items which were not approved at the COREPER’s meeting. Those items are sched-uled to debate and discussed at the Council’s meetings.


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The Council adopts decisions on the basis of vote of Member States representa-tives. Several diff erent voting methods are used: A Simple Majority - this method is used rarely (especially when procedur-

al and organisational decisions are adopted e.g. under Article 240(3) TFEU). Each representative has one vote and the decision is taken by a majority.

Unanimous decision - this voting method is used for the most important and politically sensitive issues (mostly for decisions concerning common foreign and security policy see Article 31 TEU). A unanimous decision means no neg-ative votes. If any member abstains from voting, it does not create an imped-iment to adoption of the decision.

A Qualifi ed Majority – it is the most common form of acting of the Coun-cil. As a standard voting form it is used in all cases except where the Trea-ties provide otherwise (see 16(3) TEU). It is also the most complicated vot-ing procedure. Currently a system of the so called weighted voting is used. Each Member State’s vote has a diff erent weight regarding to its geographi-cal large, number of inhabitants and political and economic importance. In order to adopt a decision drafted by the Commission, consent of at least 260 votes of Member States representing majority of members of the Coun-cil is required. In all other cases in order to adopt a decision at least 260 votes of Member States of at least two third of members of the Council are re-quired. Upon request of member of the Council a facultative demographic condition may apply which means that the qualifi ed majority has to repre-sent at least 62 % of population of the Union. The Treaty of Lisbon simplifi es the voting by a qualifi ed majority and moreover this form became the major method of voting. Since 1 November 2014 new system without a weighted voting will apply (but according to the transitional provisions till 31 March 2017 any member of the Council can require to use an old system). As from 1 November 2014 the qualifi ed majority will be reached if at least 55 % of the members of the Council, comprising at least fi fteen of them and repre-senting Member States comprising at least 65 % of the population of the Un-ion will vote for the proposal. A blocking minority shall include at least four Council members. In cases where the Council won’t act on a proposal from the Commission or from the High Representative of the Union for Foreign Aff airs and Security Policy, the qualifi ed majority shall be defi ned as at least 72 % of the members of the Council, representing Member States compris-ing at least 65 % of the population of the Union.

Special majority. Treaties may exceptionally defi ne a certain specifi c majority of votes that must be reached e.g. a majority of four fi fths under Article 7(1) TEU in case of competence of the Council to determine that there is a clear risk of a serious breach by a Member State of the values on which European union is based.


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Distribution of votes for each Member State

Germany, France, Italy, United Kingdom 29Spain, Poland 27Romania 14Netherlands 13Belgium, Czech Republic, Greece, Hungary, Portugal 12Austria, Bulgaria, Sweden 10Denmark, Ireland, Lithuania, Slovakia, Finland, Croatia 7Cyprus, Estonia, Latvia, Luxembourg, Slovenia 4Malta 3TOTAL 352

The Council was and still is one of the most important institutions within the institutional structure of the European Union. This body represents the will of Member States and therefore it is a forum which serves as guarantee of their sov-ereignty in reality of the perpetually deepening integration. The functions and competencies of the Council correspond to the signifi cance of this body. The main powers of the Council are: Participation on the law-making process and the budgetary power. The

Council exercises these powers mostly together with the European Parlia-ment.

The Council also plays very important role in the external relations of the Un-ion because it approves agreements with other subjects of the international law (Article 218 TFEU). It decides about the conclusion of agreements itself or it cooperates with the European Parliament (with its consent or after the consultation with it).

The Council is also given a control power by Treaties (it takes part on the con-trol of recognising fundamental values of the Union by Member States un-der Article 7 TEU; it guards legality of acts of the law of the European Union because it can institute a proceeding for annulment as an subject with an ac-tive legitimacy under Article 263 TFEU).

The Council has also prominent creative position in the processes of estab-lishment of other institutions and in appointment of some positions (e.g. it states down a list of persons proposed for appointment as members of the Commission under Article 17 (7) TEU; or it appoints members of the special-ised courts of the European Union under Article 257 TFEU).


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3.5 The European CommissionThe Commission is a body which is given a function to represent supranational in-terests within the framework of institutions of the Union. The Commission is inde-pendent from the Member States and therefore it serves as some counterbalance of the Council. The Schuman declaration anticipated the establishment of an au-tonomous institution representing the will of the new Community. Lately this in-stitution became the High Authority of the European Coal and Steel Community. Originally all of the three Communities have their own supranational institution. The Treaty establishing a single Council and a single Commission to the European Communities (1967) unifi ed them into one. The single Commission played a role of main representative of interests of all Communities.

The Commission is a permanent institution seated in Brussels. It is an institution with the greatest administration. The Commission is divided from the administra-tive point of view into so called Directorates-General (DG) which are responsible for their individual resorts (they can be understood as s parallel to departments or ministries in Member States).

List of Directorates-General

Agriculture and Rural Development (AGRI)Budget (BUDG)Climate Action (CLIMA)Communication (COMM)Communications Networks, Content and Technology (CNECT)Competition (COMP)Economic and Financial Aff airs (ECFIN)Education and Culture (EAC)Employment, Social Aff airs and Inclusion (EMPL)Energy (ENER)Enlargement (ELARG)Enterprise and Industry (ENTR)Environment (ENV)EuropeAid Development & Cooperation (DEVCO)Eurostat (ESTAT)Health and Consumers (SANCO)Home Aff airs (HOME)Humanitarian Aid (ECHO)Human Resources and Security (HR)Informatics (DIGIT)


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Internal Market and Services (MARKT)Interpretation (SCIC)Joint Research Centre (JRC)Justice (JUST)Maritime Aff airs and Fisheries (MARE)Mobility and Transport (MOVE)Regional Policy (REGIO)Research and Innovation (RTD)Secretariat-General (SG)Service for Foreign Policy Instruments (FPI)Taxation and Customs Union (TAXUD)Trade (TRADE)Translation (DGT)

In order to achieve its objectives the Commission employs thousands of em-ployees (32 666 in 1 January 2013!) in the governing and administrative apparatus. The composition of the Commission itself is much smaller. The number of mem-bers of the Commission has always been a politically sensitive issue and it has been modifi ed several times. Before the big enlargement of the European Union (2004) the Commission was formed by 20 members from all the Member States. Two seats were reserved for candidates from the biggest countries i.e. Germany, France, the United Kingdom, Spain and Italy. After the accession of ten new mem-bers in 2004, the number of Commission members increased to 25 and a new rule applied that any Member State is represented by only one Commissioner. This rule was preserved even after the accession of Bulgaria and Romania to the European Union (2007).

The current Commission appointed after the date of entry into force of the Trea-ty of Lisbon, shall consist of one national of each Member State, including its Pres-ident and the High Representative of the Union for Foreign Aff airs and Security Policy (who shall be one of its Vice-Presidents) = 28 members. The Treaty of Lisbon was supposed to stop the continual increasing number of members of the Com-mission. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Aff airs and Security Policy, corresponding to two thirds of the number of Member States (Article 17 (5) TEU). However especially under pressure of Ireland, the European Council (before the Treaty of Lisbon came into eff ect) had issued a political promise according to which rule “one state one commissioner” will be preserved.

The members of the Commission shall be chosen on the ground of their gener-al competence and European commitment from persons whose independence is beyond doubt. The Commissioners shall execute their functions in the general in-


46

terest of the Union not in the interest of the Member State they were proposed by. An absolute impartiality is demanded of those who become a commissioner. This fundamental requirement is the basis of the rule that the commissioners may not engage in any other occupation, whether gainful or not (Article 245 TFEU). This strict restriction is moderated in some respects. Besides its principal mission, the members of the Commission may for example teach or be engaged in art work. The term of offi ce of the Commission is 5 years (before the adoption of the Treaty of Maastricht, the term of offi ce of the Commission was 4 years. The term of offi ce of the Commission was extended in order to unify terms of offi ce of appointed in-stitutions of the European Union i.e. the European Parliament and the Commis-sion). The Commission is appointed after elections to the European Parliament. At the fi rst step the President of the Commission is elected (taking into account the result of the elections to the European Parliament). The European Council shall propose President of the Commission and the European Parliament elects him. The Council, by common accord with the President-elect, shall choose the oth-er members from the list of persons proposed for appointment by the Member States. Finally, the Commission as a whole shall be approved by the European Par-liament and formally appointed by the European Council.

The Commission, as a whole body, shall be responsible to the European Parlia-ment that may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign from their functions. The function of any commissioner ends when his 5-year mandate comes to end, by death, when he resigns (own decision, after decision of the European Parliament or on application by the President of the Commission) or is compulsory retired (decision of the Court of Justice on application by the Council or by the Commis-sion, article 247 TFEU).

The Commission acts as one common body (one political corpus) and adopts decision by majority of votes of its members.

The Commission represents supranational interests of the Union and it serves as come counterpart to the Council. This body is the main agent of the federalisation impetus within the integration. It always promulgates mantra: “We need more Eu-rope”. The powers of the Commission mirror this position. Here is the list of main competences of the Commission: Signifi cant role of the Commission within the strengthening of the suprana-

tional features in integration is displayed especially by its participation in the law-making process. The Commission plays two key-roles here. At the fi rst place it has a signifi cant monopoly over the legislative initiative (traditionally limited in the area of Common Foreign and Security Policy) because in gen-eral the Union legislative acts may only be adopted on the basis of a Com-mission’s proposal (Article 17 (2) TEU). The Commission defi nes by this way the framework of legal acts of the Union. At the second place it acts as an executive body, because it can adopt delegated acts (on the basis of delega-tion of power given by a legislative act, Article 290 TFEU).


47

The Commission is further regarded as a “guardian of founding treaties” be-cause it supervises the application of the law of the European Union by the Member States. If it fi nds out an infringement that was not successfully elim-inated by the Member State the Commission has a right to bring an action for failure to fulfi l an obligation before the Court of Justice against this state (Article 258 TFEU).

The Commission also plays a key-role in the area of external relations of the European Union (Article 17(1) TEU), it initiates conclusion of international treaties (Article 218 (3) TFEU) or it negotiates the conclusions of internation-al treaties (e.g. trade agreements according to Article 207 (3) TFEU). However it does not execute this power within area of Common Foreign and Security Policy because upon the Treaty of Lisbon the main responsibility here was conferred upon the High Representative of the Union for Foreign Aff airs and Security Policy.

3.6 The Court of Justice of the European UnionAt the very beginning of EU integration the Court of Justice (also commonly called European Court of Justice – abbreviated to “ECJ”), seated in Luxembourg, was es-tablished as a single judicial body with no internal divisions; its task was to decide cases at the EU level. However, especially during 1980’s and 1990’s the increasing number of cases resulted in an indispensable reform of the EU judicial system. The Single European Act (1986) enabled the establishment of the Court of First Instance that was ‘attached’ to the Court of Justice. But it was later the Treaty of Nice (2001) by which the Court of First Instance was recognised as an autonomous court. The Treaty of Nice also empowered the European Union to create judicial panels attached to the Court of First Instance. The fi rst (and up to now, the last) ju-dicial panel which was established under the new provisions was the Civil Service Tribunal (2005). The Treaty of Lisbon (2007) introduced further institutional chang-es within the judicial system: the general provisions on the EU judiciary were put in the revised TEU, particularly in its article 13 where the Court of Justice was listed as the Union institution under a modifi ed title ‘The Court of Justice of the European Union’; more detailed institutional regulation was also incorporated directly in the TEU, particularly in its article 19. The EU Court of Justice consists of three parts, three categories of judicial bodies

The Court of Justice (see article 251-253 TFEU) – it is the original body that ex-ists since the establishment of the European Communities in 1950’s. It is the high-est EU court at the top of the judicial hierarchy and it decides appeals against de-cisions of the General Court; further it was given an exclusive competence to rule in certain types of actions (e.g. actions for infringement of EU law brought against the Member States, actions brought by Member States or EU institutions, prelimi-nary ruling procedures). Each judge appointed to the Court of Justice is nominat-


48

ed by one Member State (still, the judges are totally independent of their Member States); therefore, it consists of 28 judges and the Court is assisted by 8 Advocates-General. Decisions of the Court of Justice are designated by a letter ‘C’ if they were delivered after 1989 when the Court of First Instance was created in order not to confuse decisions of both courts; before that date, no letter needed to be used;

The General Court (see article 254 TFEU); it works since 1989; before the Treaty of Lisbon came into eff ect its name was the Court of First Instance. The General Court takes decisions in most of cases as a court of fi rst instance and decides also appeals against decisions of specialised courts (the Civil Service Tribunal at pres-ent). It consists of at least one judge per Member State; therefore, currently it has 28 judges (increase in the number of judges is being considered due to the over-burdening of the General Court); its decisions are designated by a letter ‘T’ (from the name of the court in French - “Tribunal”);

Specialised courts (see article 257 TFEU); they replaced judicial panels intro-duced by the Treaty of Nice; so far the only specialised court is the Civil Service Tribunal; it was created in 2005. It has a jurisdiction in disputes between institu-tions of the EU and its employees. The Civil Service Tribunal consists of 7 judges; its decisions are designated by a letter ‘F’ (from the name of the tribunal in French “Le Tribunal de la fonction publique”). The establishment of other specialised courts is being considered, discussions focus especially on the Patent Court of the Eu-ropean Union. Potentially it could concern also a court dealing with the intellec-tual property protection or EU competition protection. However, no proposal has been adopted so far.

According to article 19 TEU and articles 253 and 254 TFEU the judges and Advo-cates-General of the Court of Justice and the judges of the General Court are ap-pointed by a common accord of the Governments of the Member States; they are appointed for the period of six years after consultation of a specialised panel. The panel issues only an advisory opinion (see article 255 TFEU). The Czech candidate for the ECJ judge is chosen according to rules laid down by a Czech Government which are based on an open competition. The judges and Advocates-General are chosen from persons whose independence is beyond doubt; they must pos-sess qualifi cations required for appointment to the highest judicial offi ces in their countries or to be jurisconsults of recognised competence (compare article 19 TEU and article 254 TFEU). In practise candidates are chosen both academics and for-mer practising lawyers, e.g. judges of higher and supreme courts of the Member States. The membership of judges and Advocates-General is partially renewed ev-ery three years under conditions laid down by the Statute of the Court of Justice (compare article 9 of the Statute). The judges elect the President of the Court from among their numbers for a term of three years. Retiring members are eligible for re-appointment. There are also registrars serving at the Court of Justice, the Gen-eral Court and the Civil Service Tribunal. The courts adopt their own rules of pro-cedure which set up details especially regarding functioning of courts, proceed-ings and remedies.


49

The function of the Advocates-General exists since the very beginning of the Court of Justice; there are currently eight Advocates-General and their number may be increased to eleven upon request of the Court of Justice. Five large states have their own Advocates-General (France, Italy, Germany, Spain and the Great Britain); the rest three rotate among other states. There is a common accord that in case of increasing the number of Advocates-General, one would be assigned to Poland; and fi ve of them would rotate.

It is the duty of Advocates-General acting with complete impartiality and inde-pendence, to make, in open court, reasoned submissions on cases which require this involvement (compare article 252). The former one-instance proceedings be-fore the Court of Justice and the necessity to have an ‘impartial’ assessment of the substance of the case – thus a sort of ‘fi rst instance’ before the Court of Justice is-sue the fi nal judgment – were the main motives for introduction of Advocates-general into EU judicial system and also the reason why Advocates-General do not appear either before the General Court or specialised courts (though in pro-ceedings before the General Court they might be appointed ad hoc if necessary). The Advocates-General submit their suggestions how to decide the case in the form of an ‘opinion’, or, under an expedited or urgent procedure, in the form of a ‘view ’. In reasoned circumstances the case may be heard without the opinion of the Advocate-General.

In general the work of Advocates-General is very positively appraised as their opinions are often innovative; they may outline further developments of the EU law or point out to its defi ciencies. Their opinions are also a precious source of in-formation regarding the EU law as they often give a broad overview of develop-ments of the Union law and case-law of the Court of Justice regarding a particular issue. Their opinions are frequently more detailed than the Court’s decisions and may be helpful in order to better understand the substance of individual cases. Fi-nally, the opinions frequently predict decisions of the Court of Justice as the Court follows AG’s opinions in around 80% of all cases.

The jurisdiction of the EU Court of Justice is laid down in general terms in ar-ticle 19 TEU. Individual procedures are set up in the TFEU (Article 258 and follow-ing of the TFEU). The division of jurisdiction in order to take decisions in particular procedures within the EU Court of Justice is governed by article 256 TFEU and its Statute. They are defi ned as follows:

Direct actions i.e. actions where the case is decided directly in the action before the EU Court of Justice: action for failure to fulfi l an obligation against a Member State (for the breach

of the EU law) – articles 258-260 TFEU; this (so called) infringement action is decided solely by the Court of Justice;

action for annulment of EU law – articles 263-264 TFEU; in relation to this ac-tion the General Court has a jurisdiction as a court of fi rst instance except cases laid down in the Statute of the Court of Justice (some actions brought by Member States);


50

action for failure to act against EU institutions – articles 265-266 TFEU; the General Court has a jurisdiction as a court of fi rst instance with the excep-tion of cases laid down in the Statute of the Court of Justice (some actions brought by Member States);

action for damages caused by the EU institutions – article 268 and article 340 TFEU; here the jurisdiction rests again with the General Court;

action brought by civil servants of the Union against the EU – article 270 TFEU; the Civil Service Tribunal has a jurisdiction as the fi rst instance court.

Indirect actions i.e. actions where the case itself is decided in other procee-dings: preliminary ruling procedure – article 267 TFEU; the General Court could de-

cide in this procedure (compare article 256 (3) TFEU); however, it has not yet been defi ned in the Statute references from which areas should be allocated with the General Court; thus, it is solely the Court of Justice that decides the preliminary ruling procedure;

the plea of illegality of EU legal acts – article 277 TFEU; it is in the jurisdiction of the court deciding the dispute in the main proceedings where the plea was raised.

Other proceedings, less common proceedings are the following: the action concerning activities of the European Investment Bank and Euro-

pean Central Bank – article 271 TFEU; the action based on arbitration clauses – article 272 TFEU; disputes between the Member States regarding the Union law (again based

on an arbitration clause) – article 273 TFEU; the action on validity of acts adopted pursuant to the article 7 TFEU (deci-

sions about a serious and persistent breach by a Member State of the EU val-ues) – article 269 TFEU;

the opinion regarding the compatibility with the EU law of an envisaged in-ternational agreement which the EU intends to conclude – article 218 (11) TFEU.

Both direct and indirect actions before the Court of Justice are initiated by an application. Member States and the EU institutions are represented by an agent appointed for each individual case. Other parties must be represented by a lawyer (practicing or an academic). The procedure before the Court of Justice has a writ-ten and oral part. The written part includes communication of applications, writ-ten submissions, defences, observations and other documents. The oral part in-cludes reading of the report presented by a judge acting as rapporteur, hearing of agents, advisers and lawyers and of submissions of the Advocate(s) General, as well as, if any, of witnesses and experts. The Court may refrain from the oral part


51

of the procedure under certain circumstances (e.g. in case of the co called urgent preliminary ruling procedure).

The Court takes decisions in chambers consisting of three and fi ve judges or in the Grand Chamber consisting of thirteen judges (upon request of the Member State or the Union institutions that are parties to the procedure); exceptionally it decides as a full Court (if a member of the Commission, the Ombudsman of the Eu-ropean Union or a member of the Court of Auditors is being removed from the of-fi ce or if the Court considers the case to be a case of an exceptional importance).

Similar rules apply to the General Court and the Civil Service Tribunal. Moreover, there is a possibility that particular cases could be decided by a single judge (e.g. an action brought by an individual to review validity of the decision or disputes between the Union and its servants if they concern issues that have been clarifi ed in the settled case-law, for more information see article 14 of the Statute of the General Court and Civil Service Tribunal). It is possible to raise an appeal against decisions of the Civil Service Tribunal and the General Court based on specifi ed grounds; the appeal is allowed only in relation to the grounds based on the mis-application of law and cannot be based only on facts of the case.


52


53

PART TWO“Where a legal system is present

there is a Constitution”

The second argument for the claim about existence of some special supranational constitutionality of the European Union is connected with its legal order. Europe-an Union has an ability to manifest its own will by the adoption of law and making of administrative decisions. The Union has its own independent legal framework that lays down rules of adoption of binding provisions. These provisions express the Union powers in the outer world and they are internally applicable within the Member States practice. Lord Denning expressed this phenomena in his famous statement according to which EU law is “like an incoming tide. It fl ows into the es-tuaries and up the rivers. It cannot be held back.”27

Supranational law is a body of legal norms that emanate from autonomous sources but have their arena of impact in the Member States. The autonomous le-gal system give rise to the argument which should sound like this: Where a law is present, i.e. autonomous legal system is working, there is a Constitution. Here we are speaking about Constitution in sense of normative rules.

The second part of our book is divided into the following chapters:

Chapter IV:Concept and Sources of European Union Law – An Independent Catalogue

of the Legal Acts

Chapter V:The European Union Law as an Autonomous and Self-suffi cient Legal Order

Chapter VI:European Union Law as the Dominant Legal System

27 HP Bulmer Ltd v. J Bollinger AS, 1974.


54

Chapter IV: Concept and Sources of European Union Law – An Independent Catalogue of the Legal Acts

The European Union law is an independent legal system governing activities and objectives of European integration structures. It is possible to distinguish two es-sential branches i.e. the so called Constitutional law of the European Union and the Substantive law of the European Union.

Constitutional law of the European Union comprises fundamental rules and principles that characterise the European Union and defi ne the content and scope of its activities. The subject matter of this law is to defi ne the charac-ter of the European Union itself, to determine its objectives and relation with the Member States, to establish an internal organisational structure, to defi ne competences of concrete institutions and to defi ne instruments and ways of their adopting and implementing in order to achieve objectives.

The substantive law of the European Union is dedicated to be the part that fulfi ls concrete objectives of the European integration. The sources of this part of the European Union law govern e.g. the functioning of the common inter-nal market, determine competition rules, defi ne a state cooperation within the establishing of the so called Area of Freedom, Security and Justice (com-mon immigration policy, judicial cooperation, police and customs coopera-tion etc.), regulate internal policies of the Union (e.g. the transport, the em-ployment, the social policy etc.).

Considering the sources, the European Union law is not a coherent system formed only by agreements between states in the form of international treaties. On the contrary, the system of sources of EU law has a complex structure formed by the elements with a diff erent character and a diff erent legal basis. The sourc-es of EU law may be divided into several groups based on diff erent views (upon the hierarchy of rules of law, their content etc.). Very common is the classifi cation based on subject who formed and adopted individual rules of EU law. The struc-ture of sources of European Union law is formed by following elements:


55

A. The main sources:

Primary law – rules of law of the highest rank formed by the Member States. Secondary law – this part involves the biggest number of legal rules of law.

The secondary law comprises general legislation of the Union – the legal acts formed by Union institutions.

B. The other sources:

General principles of law – unwritten rules of law which are acknowledged as being at the same level as primary law. They are derived mostly from the common constitutional traditions of the Member States and general prin-ciples of international law. The most common examples are fundamental rights like protection of property, rights to a fair trial, general principle of proportionality, the prohibition of discrimination on several grounds (age, sex etc.)

International treaties concluded between the Union and other subjects of the international law. Under Article 216 (2) TFEU the international agree-ments concluded by the Union are binding upon the institutions of the Union and on its Member States. Within the hierarchy of sources of the Eu-ropean Union law they have a rank between the primary and secondary leg-islation.

Acts sui generis = atypical acts. This category includes multiplicity of acts of a special character which derive from the activities of Union institutions. Some of them have the legal basis in the Treaties (for example Rules of Pro-cedure of the Court of Justice, Rules of Procedure of the European Parlia-ment etc). The others are not explicitly stated (various declarations, commu-nications, resolutions - the most known are so called green papers which are adopted in order to start public discussion about future Union activities and white papers which contain more detailed proposals for future Union ac-tions. The well-known is the White Paper of the Commission to the European Council form the June 1985 “Completing the Internal Market”).

Consistent (Settled) case-law of the Court of Justice of the European Union. One of the roles of the Court of Justice is to interpret the law of the European Union. Therefore its case-law has an additional and enriching function. How-ever the Treaties do not answer the question whether the case-law of this ju-dicial body should be regarded as a formal source of law. The unclear defi ni-tion of character of decisions delivered by the Court of Justice as a source of law is possible to regard as a consequence of diff erent legal traditions and culture represented by individual states (the continental system of civil law where the written law has a dominant position and the Anglo-American sys-tem of Common law which accepts precedents as a source of law). Despite this ambiguity the importance of the case-law of the Court of Justice for the understanding and application of the European Union law is indispensable.


56

4.1 The Primary Law of the European Union and its Development

This part of the European Union law is formed by Member States upon their mutu-al consent. The primary law consists of international treaties concluded between sovereign states. These legal documents form the backbone of the European Un-ion law because they contain the most of rules of the constitutional importance. Even the Court of Justice itself in the Judgment 294/83 Les Verts28 or in the Opin-ion 1/91 on the Agreement creating the European Economic Area had indicated that the Treaty forms a constitutional charter of integration entities29.

294/83 Les Verts / Parliament [1986] ECR p. 1339

23. It must fi rst be emphasized in this regard that the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitution-al charter, the Treaty. […]

The primary law stands at the pinnacle of the hierarchy of European Union law and all other Union legislation and the international treaties adopted by the Un-ion shall be in accordance with the primary law. Nowadays (in post-Lisbon era) the Primary law composes foremost of two main treaties i.e. Treaty on European Un-ion and Treaty on Functioning of the European Union. All the Protocols to the Trea-ties shall also be considered as the part of the primary law (Article 51 TEU). Since 1st December 2009 (date when Treaty of Lisbon entered into force) the primary law includes also the Union human rights catalogue – The Charter of Fundamen-tal Rights of the European Union. This document adopted as the political declara-tion in 2000 became legally binding thanks to the wording of article 6 TEU which states that Charter “shall have the same legal value as the Treaties”. It is suffi ce to say here that Charter forms a full part of primary law with all hierarchical conse-quences which means that international commitments and the secondary legisla-tion of the European Union has to be in conformity with this catalogue.

The fi rst (normative) step in the building of European integration entities was the adoption of Treaty establishing the European Coal and Steel Community was signed in Paris on 18 April 1951. This treaty entered into force on 23 July 1952. The

28 Judgment of 23 April 1986, Les Verts / Parliament (294/83, ECR 1986 p. 1339). See commentary on this decision LENAERTS, Koen. The Basic Constitutional Charter of a Community Based on the Rule of Law. In MADURO, Miguel Poiares, AZOULAI, Loïc (eds). The Past and Future of EU Law, The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty. Portland: Hart Publishing, 2010, pp. 295-315.

29 Opinion 1/91, of 14 December 1991 (ECR 1991 p. I-6079).


57

founding members were Belgium, France, Italy, Luxembourg, Germany and the Netherlands. The objective of this fi rst step was to form an organisation partially independent on the will of the Member States and entitled to the autonomous decision-making. In other words, to create the body that would be able to solve eff ectively the needs of the cooperating states.

The fi rst signifi cant deepening of cooperation of participating states came at 1950’s. The representatives of The Six agreed to move from the particular coop-eration on the fi eld of heavy industry to the general economic cooperation. On 25 March 1957 the Treaty establishing the European Economic Community and the Treaty establishing the European Atomic Energy Community were signed in Rome (they both entered into force on 1 January 1958). The newly defi ned objec-tive of the European Economic Community to gradually form a common market was regarded as a breakthrough point in the story of European Integration. Three European Communities based on the principle of a supranational integration have formed a framework of the cooperation of the Western European states for a long time. The connecting link (the sealant) of the Communities was the uniform mem-bership base (same Member States) and single institutional system.

In 1980’s another qualitative leap appeared. The adoption of the Single Euro-pean Act (signed on 17 and 28 February 1986 in Luxembourg, respectively in The Hague and it entered into force on 1 July 1987) was a reaction to the need of deeper integration of Member States. After decades of development it seemed to be necessary to make another steps in order to streamline the system in the fi eld of policy an economy. By the adoption of the Single European Act the new policies were introduced (e.g. social policy, economic and monetary growth) into the founding treaties, the defi nitive formation of the internal market was agreed and the European Parliament gained better position (by introducing a new legis-lative procedure - the so called Cooperation procedure), etc. The Single European Act brought a great step forward in the political integration when the so called European Political Cooperation focused on the fi eld of international aff airs was introduced.

The integration development at the close of 1980’s and the start of 1990’s point-ed out straightforward on the necessity to connect the economic cooperation with other interconnected issues. Within the forming and adoption of the text of the so called Treaty of Maastricht (signed on 7 February 1992 in Maastricht, it en-tered into force on 1 November 1993) the new calls were refl ected and the new entity was created, the so called the European Union. The creation of the Union was a reaction to a certain form of emptying of integration eff orts when all the chief objectives of the Communities (mainly the internal market and economic prosperity) were almost achieved and Europe needed new impulses. The more eff ective presentation of the unifi ed Europe in the world was one of the purpos-es. Despite their huge economic signifi cance, the European Communities did not take a suffi cient relevant part in the area of regulating the course of foreign secu-rity policy. The economically integrated Europe without internal borders needed


58

necessarily to secure its internal cooperation in non-economic areas such as the internal security, crime control, immigration policy, judicial cooperation etc. Those areas were till 1990’s regulated only by international law instruments. The need of cooperation within new areas required a permanent structure which was estab-lished by the Treaty of Maastricht.

The Treaty of Amsterdam (signed on 2 October 1997, entered into force on 1 May 1999), represents a revised form and content of the European integration. This treaty was formed in order to improve drawbacks which were revealed by the practical working of the Union and also in order to deepen the further in-tegration. This led to the institutional changes such as the strengthening of the position of the European Parliament under the fi rst pillar (by widening of co-de-cision procedure) and new changes were introduced into the functioning of the Council because a vote by qualifi ed majority became the general form of the deci-sion-making in the Community matters. The other changes of the “constitutional” importance were connected with the clarifying of the subsidiarity principle gov-erning the division of powers between the Community and the Member States, the introducing of possibilities of strengthened cooperation between Member States within so called multiple-speed Europe and of course with the reinforce-ment of the importance of human rights in the European integration process. In the connection with substantive changes within the fi rst pillar we can also point out the strengthening consumer protection or the new employment policy. The Treaty of Amsterdam changed signifi cantly the pillar structure of the European Union. The new integration objective was created in the form of the so called Area of Freedom, Security and Justice. This corresponds with the so-called “communi-tarisation” of the part of the third pillar (visa and asylum policy issues, border con-trols and judicial cooperation in civil matters were extracted and removed into the fi rst pillar of the European Union); the “communitarisation” of the Schengen acquis (the Schengen cooperation was till then a separated legal system within the inter-national law, since Amsterdam it was incorporated into the fi rst pillar of the Euro-pean Union) and the modifi cation of the functioning of the third pillar (i.e. it was enlarged with a new form of legal acts - decisions and framework decisions; the position of the Court of Justice was strengthened because it was given a power to interpret various acts of the third pillar and also the position of the Commission was strengthened because it was given a general legislative initiative). Three great amending treaties (The Single European act, the Treaty of Maastricht and drafted Treaty of Amsterdam) has a negative impact on clarity and orientation in the texts of the primary legislation of the European Union. Therefore by the introducing the Treaty of Amsterdam the texts of Treaties were renumbered.

At the turn of the millennium the main issue in the development of the Euro-pean integration was connected with the Eastern enlargements. The planned ac-cession of new members required necessarily the adaption of the functioning rules of the European Union to the new circumstances. An institutional reform was needed and this resulted into another change of the primary law of the Euro-


59

pean Union in the form of the Treaty of Nice (signed on 26 February 2001 and en-tered into force on 1 February 2003). The chief contributions of the Treaty were the changes in the area of the composition and the functioning of the leading institu-tions (the redistribution of votes in the Council, the increasing and redistribution of seats in the European Parliament, procedural modifi cations in the appointment of the Commission, the Court of Justice reform – the composition and possibility to establish specialised judicial panels). Besides this the Treaty of Nice introduced changes that led to the further democratization of the Union. The most important of them was the increasing role of the European Parliament (by the widening of the co-decision procedure.)

The current form of the European Union is laid down by the text of the primary law in the wording introduced by the Treaty of Lisbon.30 The adoption of this trea-ty was a fi nal step in the nearly decade lasting process of the restructuring of the institutions but also the powers and values of the European Union. The fi rst step in this process is connected with the (fi nally non successful) Treaty establishing a Constitution for Europe. The fi nal version of this Treaty was adopted by Mem-ber States during the Intergovernmental Conference in June 2004. The Treaty es-tablishing a Constitution for Europe was not supposed to be merely an amend-ing treaty to the existing treaty framework which forms the basis of the primary law of the European Union. It was supposed to be a recodifi cation, a revolutionary change that should have taken over the position of the treaty framework i.e. the Treaty establishing the European Community and the Treaty on European Union. The ratifi cation process of this document was unexpectedly cancelled after neg-ative results of referenda in France and in the Netherlands (2005). After the fail-ure of the constitutional project the eff orts to reform the treaty framework of the Union were postponed for another 2 years and led to the adoption of the Treaty of Lisbon.

In the comparison to the rejected draft of the Treaty establishing a Constitution for Europe the new Treaty of Lisbon (signed on 13 December 2007 and entered into force on 1 December 2009) was not supposed to replace existing Treaties. This treaty belongs to the series of amending treaties to the primary law of the Europe-an Union. As well as the Treaty of Amsterdam and the Treaty of Nice it is regarded as mere (but signifi cant) amendment to the existing treaty framework governing activities and functioning of the Union. Even after adoption of the Treaty of Lisbon the existence of the European Union and internal structure, powers and activities are governed by two separate sources of primary law - the Treaty on European Union = TEU which was amended (it goes about the text of the existing Treaty of Maastricht as amended by subsequent Treaties including the Treaty of Lisbon) and the so called Treaty on the Functioning of the European Union = TFEU (in this case it goes about the text of the Treaty of Rome as amended by subsequent Treaties including the Treaty of Lisbon).30 See further CRAIG, Paul. The Lisbon Treaty. Law, Politics and Treaty Reform. New York: Oxford Uni-

versity Press, 2010, 466 p.


60

The Treaty of Lisbon has signifi cantly modifi ed the conceptual structure of the ‘European temple’. When it entered into force, the European Union had lost its pil-lar structure and became a successor of the European (former-economic) Commu-nity (Article 1, third clause of the third subparagraph TEU) as an entity with a le-gal personality. Besides the European Union there still exists the Euratom (ECSC ceased to exist in 2002 because of the time expiration of the ESCS Treaty which was concluded for the period of fi fty years). The fi rst founding treaty signed on 24 July 1952 has since 23 July 2002 no longer legal eff ect and on the very same day the European Coal and Steel Community also ceased to exist. The tendency to increase the democratic legitimacy of the European Union is still on-going with-in the Lisbon reform. When the Treaty of Lisbon came into force, also the Charter of Fundamental Rights of the European Union became legally binding (Article 6 TEU). The Charter comprises a catalogue of human rights that must be respected by the Union as well as by the Member States. The Treaty anticipates the citizen’s right of initiative (Article 11(4)). It strengthened the position of the national par-liaments (mainly the control on the compliance of division power rules between the European Union and Member States) but also of the European Parliament (the European Parliament has become an equal partner of the Council by introducing of the so called ordinary legislative procedure of adopting the secondary legisla-tion). The review power of the Court of Justice was also extended when the rules of access of individuals to justice were simplifi ed.

The list of the treaties forming the Primary law of the European Union

Founding treaties

The Treaty of Paris = the Treaty establishing the European Coal and Steel Community (signed on 18 April 1951, came into eff ect on 23 July 1952, con-cluded for 50 years, expired on 23 July 2002).

Treaties of Rome = the Treaty establishing the European Economic Com-munities and Treaty establishing the European Atomic Energy Community (signed on 25 March 1957, came into eff ect on 1 January 1958).

Amending treaties

The Convention on certain common institutions of the EC (signed on 2 March 1957 in Rome, came into eff ect on 1 January 1958) – a common Par-liamentary Assembly and common Court of Justice for all three Communities

The Merger Treaty = The Treaty establishing a single Council and a single Commission to the European Communities (signed on 8 April 1965, came into eff ect on 1 July 1967).


61

The Single European Act (signed on 17 and 28 February1986 in Luxembourg and the Hague, came into eff ect 1 July 1987) – it was not a simple amendment to the founding treaties. Some part of the SEA (e.g. provisions on cooperation in the sphere of common foreign policy in Titles III and IV) introduced certain ‘novelties’, so that it may be considered as another founding treaty.

The Treaty of Maastricht = the Treaty on European Union (signed on 7 Feb-ruary 1992, came into eff ect on 1 November 1993) - similarly to the SEA also this Treaty was not only a pure amendment to the founding treaties but it was a hybrid treaty because it amended the text of existing framework of treaties and moreover it enriched the European integration development with new spheres. In opposition to the TEA is possible to list this treaty into founding treaties because on the bases hereof a new entity sui generis, the European Union, was established

The Treaty of Amsterdam amending the Treaty on European Union, Treaties establishing European Communities and certain related legal acts (signed on 2 October 1997, came into eff ect on 1 May 1999).

The Treaty of Nice amending the Treaty on European Union, Treaties es-tablishing European Communities and certain related legal acts (signed on 26 February 2001, came into eff ect on 1 February 2003).

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (signed on 13 December 2007, came into eff ect on 1 December 2009).

Treaties on Accession of New Members

Denmark, Ireland and the United Kingdom (signed on 22 January 1972 came into eff ect on 1 January 1973), Greece (signed on 28 May 1979, came into ef-fect on 1 January 1981), Portugal a Spain (signed on 12 June 1985, came into eff ect on 1 January 1986); Finland, Austria and Sweden (signed on 25 June 1994, came into eff ect on 1 January 1995); the Czech Republic, Estonia, Cy-prus, Lithuania, Latvia, Hungary, Malta, Poland, Slovakia a Slovenia (signed on 16 April 2003, came into eff ect on 1 May 2004), Bulgaria and Romania (signed on 25 April 2005, came into eff ect on 1 January 2007) and Croatia (signed on 9 December 2011, came into eff ect on 1 July 2013).


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4.2 The Secondary Law of the European Union – the Expression of the Will of Supranational Legislator

4.2.1 The Typology of the Secondary Law ActsThe Secondary law forms a majority part of the legal order of the European Union. It is formed by acts adopted by the institutions of the European Union in forms and procedures laid down in Treaties. The secondary legislation may be compared to the simple, general national law. The individual institutions execute their pow-er via secondary legislation and thus foster to achieve objectives of the European Integration. Within the hierarchy of legal sources of the European Union the sec-ondary legislation is ranked below than the primary law and it shall be in accord-ance with requirements laid down by the Treaties (201 and 202/85 Klensch31). It also has to be in harmony with general principles of law of the Union (C-314/89 Rauh32) and also with international treaties which are binding for the Union (21-24/72 In-ternational Fruit Company33). The confl ict between the act of secondary law and the rules of primary law (as well as with a general principles or an international treaty concluded by the Union) might cause that such act shall be annulled by the Court of Justice within the validity review (actions for annulment under arti-cle 263 TFEU).

Till the 1st December 2009 (when the Treaty of Lisbon came into eff ect) the Eu-ropean Union had a pillar structure with complex and complicated structure of the secondary legislation. The acts of the fi rst pillar were regulations, directives, decisions, recommendations and opinions. Nowadays these acts represent gener-al forms of the secondary legislation of the European Union. They will be discussed later. Within the second pillar of the Union (the Common Foreign and Security Policy) were adopted principles and general directions defi ned by the European Council, common strategies recommended by the Council and adopted by the Eu-ropean Council, decisions adopted by the Council, common actions adopted by the Council and common positions adopted by the Council. The secondary law of the former third pillar (the Police and Judicial Cooperation in Criminal Matters) in-cluded common positions, framework decisions adopted in order to approximate national legislations, decisions and measures for implementation of those deci-sions, agreements recommended to Member States for adoption and measures for implementation of these agreements, all of those adopted by the Council).

31 Judgment of 25 November 1986, Klensch / Secrétaire d‘État (201 and 202/85, ECR 1986 p. 3477).

32 Judgment of 21 March 1991, Rauh / Hauptzollamt Nürnberg-Fürth (C-314/89, ECR 1991 p. I-1647).

33 Judgment of 12 December 1972, International Fruit Company and others / Produktschap voor Groenten en Fruit (21 to 24-72, ECR 1972 p. 1219).


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The Treaty of Lisbon has introduced a signifi cant simplifi cation. The area of Co-operation in Criminal Matters (the former third pillar) was joined with the fi rst pil-lar and within the framework of this cooperation also the general secondary acts of the European Union law shall be adopted (regulations, directives etc.). Although the special characteristic of the former second pillar was generally preserved, the Treaty of Lisbon has introduced a certain simplifi cation also in this area. The deci-sions of the European Council and the Council become a general form of the act (but they do not have a character of legislative acts, see Article 24(1) second sub-paragraph TEU).

Notwithstanding the changes introduced by the Treaty of Lisbon it is true that validity, eff ects and specifi cs of acts adopted within the 2nd and 3rd pillar prior to the entry into force of the Treaty of Lisbon will be preserved (see Article 9 of the Proto-col on transitional provisions). They do not expire because their validity is not de-fi ned by any time limit but by their actual existence. The legal eff ects of the acts are to be preserved until those acts are repealed, annulled or amended. Until then they remain to be the part of the secondary legislation of the European Union law.

In order to exercise its competences, the European Union adopts regulations, directives, decisions, recommendations and opinions laid down in the Article 288 TFEU as general forms of acts (they are used in all fi elds except for the Common Foreign and Security Policy). Each individual part of the secondary legislation of the Union has a diff erent characterization and diff erent eff ects.

The regulation is a legal act which has a general application; it is binding in its entirety and directly applicable in all Member States. Usually it applies to an un-specifi ed group of persons. Its application shall be uniform in all Member States. Regarding its eff ects, the regulation may be compared with the statutes as they are known to the national legal systems. The subjects of matter of the regulation are rights and obligations of all subjects of the European Union law - the Union, the Member States, natural and legal persons. The regulation’s objective is to form legal rules which shall be applied uniformly in all Member States. The legal char-acter of the regulation predetermined this act to be used as an instrument of the unifi cation of law within the Union.

The directive is a legal act which is addressed primarily to the Member States. According to the defi nition, the directive is binding regarding the objective that should be achieved upon the Member States to whom it is addressed. It is also usu-ally designated as a goal-oriented act. The Member States shall implement the di-rective i.e. they shall transpose the intended legal rule into the domestic legal order. However, those Member States are left the choice of form and methods to achieve objectives defi ned by the directive. The directive must be implemented / trans-posed into the national law by the Member States by a deadline = implementation period (usually 2 years and more) laid down in fi nal provisions of the directive.

The decision has a character of an individual legal act in most of the cases. Ac-cording to the legal defi nition, it is binding in its entirety but where those to whom it is addressed are stipulated in its text, it is binding only on them.


64

Recommendations and opinions are not legally binding. The institutions of the European Union may off er solutions (e.g. in areas excluded from competences of the European Union) or express their opinions (e.g. opinions of advisory bodies regarding the legislative process). The non-binding character of these acts implies they may not be a source of rights and obligations for any subjects (institutions of the Union, states or individuals). However at the same time the institutions that apply the law (courts) shall take into consideration also texts of recommendations and opinions in those cases where those may serve as a certain guideline for inter-pretation of other (binding) legal acts of the Union or the national law of the Mem-ber States (C-322/88 Grimaldi34).

The pluralism of secondary legislative acts of the European Union requires the clarifi cation of question which forms shall be used to achieve a certain objective. Each act is used for diff erent objectives (regulation = uniformity, directive = ap-proximation, decision = solution of a particular situation). First of all, all institu-tions shall respect the texts of the primary law and chose a form stated explicitly in a particular article of the Treaty. In case that a certain provision of the Treaties provide the freedom for the institutions to select a form (either the Treaties off er two alternatives - regulation or directive or the Treaties do not specify any type of act), the institutions shall select it in compliance with the principle of proportion-ality (see Article 296, fi rst subparagraph TFEU).

In order to determine a type of the act its title is not essential, but the substan-tive interpretation of the content plays a crucial role here (147/83 Binderer35). For instance in case of acts formally titled as a regulation, it may be considered as di-rective if the text implies a character of a goal-oriented act which do not cause le-gal eff ects until implemented into national law or as a decision which touches the certain person individually as an concrete addressee and not as the person which is situated in some abstractly defi ned position.

“Tertiary law” – the delegated and implementing acts as the consequence of the division of powers

The legal acts adopted by the EU institutions may be divided to some cat-egories also according to the subject of legislator.

At the highest rank there are legislative acts (the parallel to statutory legal acts) adopted by the legislative procedure, i.e. procedure including participa-tion of the Council and the European Parliament as the two-headed Union legislator (see article 289 paragraph 3 TFEU).

34 Judgment of 13 December 1989, Grimaldi / Fonds des maladies professionnelles (322/88, ECR 1989 p. 4407).

35 Judgment of 29 January 1985, Binderer / Commission (147/83, ECR 1985 p. 257).


65

The specialization and need to supplement or clarify the general acts re-quires the adoption of special “under-statutory” legal acts (the parallel to the acts adopted by the representative of executive power). Here a certain inter-nal hierarchy is formed while these non-legislative acts may be designated as a tertiary law of the European Union. The non-legislative acts are divided in two sub-categories according to the level of space for the introduction of the new rules: the delegated acts, which may add some new (non-essential) rules to the general legislative acts and implementing acts which are aimed to con-cretize the general legislative acts and to exercise its goals.

The delegated acts are the acts of general application that may be adopted by the Commission if the power to adopt this act was delegated on the Com-mission (Article 290 paragraph 1 TFEU). These acts may supplement or amend non-essential elements of the legislative act but the adjective ‘delegated’ shall be inserted in the title of these acts.

The next category comprises the so called implementing acts (Article 291 TFEU, the word ‘implementing’ shall be inserted in the title of them). Where uniform conditions for implementation of legally binding Union acts are need-ed, those acts shall confer implementing powers upon the Commission and in the sphere of the Common Foreign and Security Policy upon the Council.

4.2.2 Process of Adoption of the Secondary Law of the European Union

A wide range of institutions of the European Union participate on the law-making and the adopting of the acts of the secondary legislation of the European Union. The most important role is played by the three institutions: the Commission, the Council and the European Parliament. If laid down also the European Central Bank and consultative institutions such as the Economic and Social Committee and the Committee of Regions participate within the legislative process. The national par-liaments of the Member States oversee the application of requirements given by the principle of subsidiarity within the framework of the secondary law adoption.

The Commission has a dominant position with regard to the legislative initia-tive. Under Article 17 (2) TEU the Union legislative acts shall be adopted only on the basis of a Commission’s proposal, except where the Treaties provide otherwise (e.g. establishment of the specialised courts at the request of the Court of Justice under Article 257, fi rst subparagraph TFEU; an adoption of the act governing elec-tions to the European Parliament at the request of the European Parliament under Article 223 (1) TFEU). Thanks to its - to a certain extent monopole position within the framework of the legislative initiation - the Commission is enabled to defi ne the content of the European Union law and to manage the development of the Union itself. Therefore the Commission is often designated as a ‘engine of the inte-


66

gration’. Besides proposing acts of the secondary legislation, the Commission also takes part in the law-making of the Union as a lawmaker of aforementioned del-egated acts and implementing acts.

The two lawmakers i.e. the Council and the European Parliament adopt acts of secondary legislation in most of the cases. The position of the Council and of the European Parliament is diff erent based on the legislation procedure required in order to adopt a particular act. Both institutions may have equal position or on the contrary one of them may have dominant position within the framework of the legislative process. Nowadays the majority of legislative acts is adopted in a joint procedure including the European Parliament and the Council. This process is designated as the ordinary legislative procedure (Article 294 TFEU). This proce-dure was entitled in the past as a co-decision procedure (introduced by the Treaty of Maastricht). The position of the European Parliament and the Council is equal within this procedure. The Parliament may recommend amendments to the pro-visions of the proposed act or it may oppose the act as whole. The Council cannot overrule the opinion of the European Parliament (in this connection it goes about an absolute veto of the European Parliament) and in case of diff erent positions of this two institutions, the act may be adopted only by a consensus (under this circumstances, the so called the Conciliation Committee is appointed, composed from members of the Council and the European Parliament).

In certain cases provided for by Treaties the legislative acts may be adopted by the so called special legislative procedure. Those cases include situations when acts are adopted by the European Parliament with the participation of the Coun-cil, or by the Council with the participation of the European Parliament. Two dif-ferent procedures may take place i.e. the consent procedure and the consultation procedure.

By the aforementioned consent procedure neither the European Parliament nor the Council interfere to the content of the act but they have a right to prevent adoption of an particular proposal by making known its opposition (e.g. under Ar-ticle 19 of the TFEU the Council may take appropriate action to combat discrimi-nation only after obtaining the consent of the European Parliament; on the con-trary under Article 228 (4) of the TFEU may the European Parliament lay down the conditions governing the performance of the Ombudsman’s duties only with the consent of the Council).

The consultation procedure is a part of the inheritance of the early beginnings of the European integration. The Council decides about the adoption of an act it-self and the European Parliament has only an advisory function. The Council do not have to respect the opinion of the European Parliament but if the opinion was not requested in the cases where it is laid down by Treaties, the act may be regarded as an invalid because the formal procedure was not followed (this pro-cedure is nowadays used rarely, e.g. under Article 22 TFEU the Council defi nes af-ter the consultation with the European Parliament the conditions of execution of the right to vote and to stand as a candidate in elections to the European Parlia-


67

ment for European citizens who are residing in a Member State of which he or she is not a national).

4.2.3 Formal requirements for the secondary law sources Besides following of defi ned procedures, the required form of the act and the fol-lowing formal publication, the legal acts of the European Union secondary law shall be properly reasoned (with a special focus on the legal basis and with spe-cial consideration to the principles of subsidiarity and proportionality) and they shall refer to any proposals, initiatives, recommendations, requests, opinions etc. (Article 296, second subparagraph TFEU). One of the formal requirements is also the signature. Legislative acts adopted under the ordinary legislative procedure are signed by the President of the European Parliament and by the President of the Council; legislative acts adopted under a special legislative procedure and non-legislative acts adopted in the form of regulations, directives or decisions are signed by the President of the institution which adopted them (Article 297 TFEU).

The legal eff ects of acts of the secondary legislation are connected with its pub-lication or the notifi cation to its addressees. The legislative acts came into valid-ity = gain the legal eff ects on the day stipulated in their text or on the twenti-eth day following their publication in the Offi cial Journal of the European Union. Non-legislative acts adopted in the form of regulations or directives, which are addressed to all Member States, or in the form of decisions, which do not specify to whom they are addressed, enter into force on the day stipulated in their text or on the twentieth day following their publication in the Offi cial Journal of the Eu-ropean Union.

Other directives, and decisions which specify to whom they are addressed are not published, but they shall be notifi ed to those to whom they are addressed and shall take eff ect upon such notifi cation.

The offi cial record of the European Union legislation is the Offi cial Journal of the European Union (OJ). It is published in all offi cial languages of the Union. It is di-vided into three series: Series L (legislative) wherein all legislative acts are published in the Offi cial

Journal of the European Union (Article 297 (1), third Subparagraph ); regula-tions and directives which are addressed to all Member States and decisions which do not specify to whom they are addressed (Article 297(2). second Subparagraph ) and international agreements concluded by the Union.

Series C (communications) contains all proposal of acts drafted by the Com-mission, communication between the institutions, questions of the Europe-an Parlament to the Council and the Commisson, answers, opinions, summa-ries of judgments of the Court of Justice, competition notices for recruitment by the EU institutions etc.

Series S (suplement) wherein all open calls for proposals into competetion for public contracts within the Union’s area are published.


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Chapter V: The European Union Law as an autonomous and self-sufficient legal order

The characteristic of the European Union law is necessarily interconnected with the supranational character of the European integration. In order to achieve au-tonomous objectives of the integration entities an autonomous, eff ective and uni-form legal order is required.

The Court of Justice gradually defi ned the EC/EU law as an autonomous legal or-der valid within the territory of all Member States.36 It has laid down that this law is directly applicable without the need of its reception into the national legal or-ders. Its internal eff ects are independent from principles of legal orders of Mem-ber States; far from it the supranational law itself via its own application principles defi nes its internal eff ects within the legal orders of Member States.

The fundamental characteristic of the European Union legal order is its indepen-dence. It means that this legal order exists independently from the national law of Member States and general public international law. It is a legal order diff erent from both international and national law and it has an autonomous character de-fi ned by these elementary features: Own constitutional basis laid down in founding Treaties, i.e. rules of law with

a constitutional character which concern only the European Union. ‘The Eu-ropean Economic Community is based on the rule of law, neither its Mem-ber States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty‘(294/83 Les Verts37).

The existence of the Court of Justice as its own, autonomous court of last in-stance that interprets the EU law. The Community law has the only one bind-ing interpretation and this interpretation is exclusively made by the Court of Justice who has this exclusive competence (74/69 Krohn38). The same ex-clusive competence applies considering the validity of rules of the Europe-an Union law. This competence is conferred only upon the Court of Justice (314/85 Foto-Frost39). National courts are in case of doubts about the validity of rules of the European Union law entitled to bring a preliminary question

36 For the analysis of the role of Court of Justice see STEIN, Eric. Lawyers, Judges, and the Making of a Transnational Constitution. The American Journal of International Law, 1981, vol. 75, no. 1, pp. 1-27.

37 Judgment of 23 April 1986, Les Verts / Parliament (294/83, ECR 1986 p. 1339).38 Judgment of 18 June 1970, Hauptzollamt Bremen Freihafen / Krohn (74/69, ECR 1970 p. 451).39 Judgment of 22 October 1987, Foto-Frost / Hauptzollamt Lübeck-Ost (314/85, ECR 1987

p. 4199).


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to the Court of Justice. However they cannot decide whether the rule of EU law is valid or not themselves.

The completeness and self-suffi ciency of the European Union law required to solve issues under the competences of the European Union (especially the sphere of exclusive competences) refl ects that in order to achieve eff ects presumed by the EU law no law-making activity from the national institu-tions of Member States is required.

Autonomous determination of the characteristics and the principles of ap-plication of supranational law. These principles are based on the case law of the Court of Justice which determines the conditions of their use. National legal orders do not regulate these principles specifi cally.40

The Court of Justice pointed out in its case-law that even though the Commu-nities were established by an international treaty and thus they derived from the public international law, they cannot be regarded as typical international organi-sations. Nor their legislation is a regional public international law, but a legal or-der with specifi c characteristics. “The Community constitutes a new legal order of international law for the benefi t of which the states have limited their sovereign rights, albeit within limited fi elds, and the subjects of which comprise not only Member States but also their nationals.” (26/62 van Gend en Loos41). In less than a year and a half after the Van Gend en Loos case the Court of Justice make the su-pranational law absolutely independent from the international public law and de-fi ned as a completely independent (autonomous) legal order. “The EEC treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.” (6/64 Costa vs. ENEL42).

5.1 The Internal Applicability of the European Union Law within National Legal Orders

The autonomous character of the Union law is logically followed by a certain “self-enforceability” of this law within the territory of the Member States. That means that the Member States are not anymore supposed to make their own decisions regarding the internal eff ects of the European Union law. The traditional mon-ist and dualist theory that defi nes the system of internal eff ects and applicabil-ity of the international law rules within the national legal orders, does not apply

40 See further BARENTS, René. The Autonomy of Community Law. Hague: Kluwer Law International, 2004, s. 12.

41 Judgment of 5 February 1963, Van Gend en Loos / Administratie der Belastingen (26/62, ECR 1963 p. 1).

42 Judgment of 15 July 1964, Costa / E.N.E.L. (6-64, ECR 1964 p. 585).


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here. In contrast to that traditional system European Union law defi nes its eff ects autonomously.

The main eff ect is that European Union law prescribes the duty of national au-thorities that apply the law to use its provision directly without any need to adopt some implementing national acts = the principle of the direct applicability.43 The European Union law is an independent legal order but in a meantime it “is an inte-gral part of the legal order applicable in the territory of each of the Member States” (106/77 Simmenthal44).

According to the Court of Justice the direct (immediate) applicability means that the provisions of the European Union law shall be applied uniformly and fully from the date of their entry into force for so long as they will be set aside. The Court of Justice makes in this connection no diff erences between the Union law and the national law regarding their application by the national courts and public authori-ties. On the contrary, it recognises the provisions of the European Union law as an inseparable part of the legal orders of the Member States “The direct applicability of Community law means that its rules must be fully and uniformly applied in all the member states from the date of their entry into force and for so long as they continue in force. The directly applicable provisions are a direct source of rights and duties for all those aff ected thereby, whether member states or individuals; this consequence also concerns any national court whose task it is as an organ of a member to protect the rights conferred upon individuals by community law.” (106/1977 Simmenthal45).

The courts and the public authorities (103/88 Constanzo46) of the Member States are obliged to recognise the European Union law as a part of their national legal order. The supranational law has become a part of the routine legal practise of the national authorities (especially the courts). The courts of the Member States were given a new power. The conferral of liability of application and enforcement of the rules of supranational law upon national courts makes them a part of the “general judicial system of the Union”.

Direct (immediate) application of European Union law is a crucial element of its autonomy. In essence it includes the command to national courts to acknowledge the supranational law as the law of their “own land” and apply it in the forms in which it was originally adopted by the supranational power, i.e. without the need to transpose it into intrastate sources.

43 The concept of „duty to apply“ is accented also in PRECHAL, Sacha. Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union. In BARNARD, Catherine (ed). The Fundamentals of EU Law Revisited. Assesing the Impact of the Constitutional Debate. Oxford: Oxford University Press, 2007, p. 38.

44 Judgment of 9 March 1978, Amministrazione delle finanze dello Stato / Simmenthal (106/77, ECR 1978 p. 629).

45 Ibid.46 Judgment of 22 June 1989, Fratelli Costanzo / Comune di Milano (103/88, ECR 1989 p. 1839).


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The Court of Justice has developed the whole puzzle of conditions for the direct application of the European Union law within the national legal orders which will be unveiled in the following chapters.

5.2 The Direct Eff ect of the European Union Law

5.2.1 The Defi nition of the Direct Eff ectThe direct eff ect of the EU law is an essential quality of this legal system. It is a nec-essary requirement of its application and one of the conditions required for the ef-fective functioning of the European integration.

The direct eff ect means that upon provision of the European Union law rights and obligations may arise to the subjects of the national law i.e. natural and legal persons and the national authorities applying law i.e. courts and public authori-ties may decide about those rights directly on the basis of the European legal rules that do not have to be transposed into the national legal order. Thanks to the di-rect eff ect the sources of the European Union law become the direct source of rights and obligations to the subject of law at the national level and the norms which contain these rights and duties are applicable in the proceedings before the courts and public authorities.

The doctrine of direct eff ect of the European Union law has its basis in the case-law of the Court of Justice. The key-decision is the judgment 26/62 Van Gend en Loos47. The Court of Justice tackled the issue of the legal character of the than Community legal order (nowadays the European Union law). It solved especially the dilemma whether it is a regional public international law or the law of the new international organisation or whether it goes about diff erent law, a completely new legal system. The Court of Justice tended to the “pro-European” interpreta-tion and recognised the autonomous character of the supranational law.

Another issue that the Court had to resolve was the recognition and the eff ects of the supranational law within the territory of the Member States. The Court of Justice did not leave on the national lawmakers to take their decision about the eff ects of the law of the supranational entities so it rejected the classical national concepts of monism and dualism determining the eff ects of the international law in the national legal order). It supposed the autonomous character of the than Community law and stated that this law is directly (immediately) applicable in all proceedings before the national authorities that have an obligation to apply it.

At the same time the Court of Justice confi rmed that also the individuals are considered to be the addressees of the rules of Community (now EU) law and upon those rules the subjective rights may be conferred upon them and become



72

thus a part of their legal status. It disapproved the opinion of both doctrine and governments of the Member States that considered the Community (now EU) law to be only another form of the public international law and the subject of this law are only the parties to the Treaty = Member States.

26/1962 NV Algemene Transporten Expeditie Orderneming van Gend en Loos vs. Nederlandse Administratie der Belastingen [1963] ECR 1

The objective of the EEC treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the commu-nity, implies that this treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confi rmed by the preamble to the treaty which refers not only to governments but to peo-ples. It is also confi rmed more specifi cally by the establishment of institutions endowed with sovereign rights, the exercise of which aff ects Member States and also their citizens. Furthermore, it must be noted that the nationals of the states brought together in the community are called upon to cooperate in the functioning of this community through the intermediary of the European par-liament and the Economic and social committee.

... the community constitutes a new legal order of international law for the benefi t of which the states have limited their sovereign rights, albeit within limited fi elds, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, com-munity law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heri-tage. These rights arise not only where they are expressly granted by the trea-ty, but also by reason of obligations which the treaty imposes in a clearly de-fi ned way upon individuals as well as upon the Member States and upon the institutions of the community.

The recognition of the direct eff ect of the rules of Community (now EU) law was a signifi cant justifi cation of the principle of the eff ective application of the supra-national norms and resulted in the strengthening of the position of individuals within this legal system. The case-law of the Court of Justice concerning the di-rect eff ect (especially the rules of secondary law) was based on the need of effi -ciency and utility of the rules (“l’eff et utille“). These rules would have a signifi cantly weaker position in case when states would not perform the duties conferred upon them by the law of supranational entities.

The eff ective functioning of the Union legal system requires the States as hold-ers of particular obligations to be under continuous supervisions. The Commis-sion performs this control primarily and it is given a power to bring an action for


73

infringement of obligation before the Court of Justice against the state that failed to fulfi l its obligation (Article 258 TFEU).

Thanks to the direct eff ect of the rules of EU law the individuals serve as an-other “guardians.” Because the European Union law grants them certain rights against the state they shall seek these rights in proceedings before the national courts and consequently force the Member States to follow their duties. In this respect we are speaking about so called dual vigilance48 or double control of the Member States. Let’s state an example. According to article 28(1) TFEU all customs duties and charges having equal eff ect are prohibited. In case that any Member State would introduce a certain hidden customs duty (for instance designated as a statistic charge on import of agricultural products) the Commission may initiate a proceeding on breach of the Treaty against it that may lead to the imposition of some penalty payment on it (see Articles 258 and 260 TFEU). The individual im-porters concerned by the introducing of the charge, are neither subjects of the mentioned proceeding nor may they initiate it. However by the formation of the doctrine of direct eff ect those persons got right to seek their entitlements de-riving from the European Union law, this time before national courts. Because of the threat of the action for failure to fulfi l an obligation and the threat of an action brought before national courts, the Member States are thus under double control and double pressure to fulfi l their membership obligations.

Even though the direct eff ect is essential feature of the European Union law, it does not imply that any rule of supranational law is directly and immediately ap-plicable. The direct eff ect is a special EU law term which in fact means that norms of EU legal system have the internal binding nature, the ability to govern the be-haviour of subjects of law by recognising their rights and imposing obligations. Only the perfect rules of law that clearly defi ne its subjects, circumstances and be-haviour required from its addressees shall have such legal eff ects. To the criteria for the acknowledgment of the direct eff ect see further notes about so-called Van Gend and Loos test.

5.2.2 Direct eff ect of the Primary Law of the European Union and its Categories

Let’s remind that the direct eff ect as a specifi c characteristic of the Community law appeared for the very fi rst time in the Courts judgment in the connection with the provisions of the primary law (the decision 26/62 Van Gend en Loos49). The Court of Justice confi rmed that the provisions of the founding treaties may have legal ef-fect both when they explicitly confer rights upon individuals and when they clear-ly and unambiguously impose certain obligations on states. This eff ect is not con-

48 See WEILER, Joseph Halevi Horowitz. The Transformation of Europe. The Yale Law Journal, 1991, vol. 100, no. 8, p 2414.



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nected only with the negative obligation of the states to refrain from a certain action (Van Gend en Loos) but it arises also from a positive obligation of the state to an active conduct prescribed by the Treaty (as Court stated in 57/65 Lutticke50 in connection with the provision of the Treaty establishing the positive duty of Mem-ber States to remove all discriminatory taxes).

The direct eff ect of the provisions of the founding treaties depends on fulfi l-ment of the requirement of so called Van Gend en Loos test. Under this test the direct eff ect should be conferred only upon those provisions of the primary law that are suffi ciently clear, precise, unconditional, which are not connected with any Member State’s reservation and which do not require any implementing measures.

26/1962 NV Algemene Transporten Expeditie Orderneming van Gend en Loos vs. Nederlandse Administratie der Belastingen [1963] ECR 1

The wording of article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualifi ed by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted un-der national law. The very nature of this prohibition makes it ideally adapted to produce direct eff ects in the legal relationship between Member States and their subjects.

The implementation of article 12 does not require any legislative interven-tion on the part of the states. The fact that under this article it is the Member States who are made the subject of the negative obligation does not imply that their nationals cannot benefi t from this obligation.

It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the treaty, article 12 must be inter-preted as producing direct eff ects and creating individual rights which na-tional courts must protect.

Later on the Court of Justice has extended and modifi ed the understanding of the direct eff ect by the revision of the strict criteria of the Van Gend en Loos test. The Court of Justice admitted the direct eff ect also in cases where the adoption of certain implementation measures was explicitly demanded (2/74 Reyners) and also in the cases of the provisions containing only a general principle. This means that the strict requirement on the clarity of the rules of law was somehow mitigat-ed (43/75 Defrenne51).

Nowadays the direct eff ect of the primary law provisions is bound in essence by these criteria:

50 Judgment of 16 June 1966, Lütticke / Hauptzollamt Saarlouis (57/65, ECR 1966 p. 205).51 Judgment of 8 April 1976, Defrenne / SABENA (43/75, ECR 1976 p. 455).


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the provision shall be suffi ciently clear and precise (a certain rule of behav-iour is engendered);

it should be unconditional (obligation deriving from it is unambiguous, it is independent from the certain conditions and preconditions, it does not re-quire any implementing measure and it does not leave to the national au-thorities wide discretion).

Court of Justice extended the understanding of the direct eff ect also in anoth-er way. It is interconnected with the wide understanding of the position of indi-viduals within the European Union law. The Court of Justice admitted that some Treaty provisions have an absolutely mandatory nature and the addressees of ob-ligations contained in the Treaties may be both Member States and individual nat-ural and legal persons (36/74 Walrave52). Thus the European Union law may be re-garded as a complete legal system because both States and individuals (holders of rights and obligations) are considered to be the full subjects within this legal system. Three diff erent categories of the direct eff ect that refl ects three diff erent situations were distinguished within the framework of the application of the Eu-ropean Union law. According to the mutual relationship between the holders of rights and obligations there are:

A. The classical vertical direct eff ect – it is a typical situation where the holder of the subjective right is an individual who seeks his right against the state who stands as a holder of the obligation.

Example

Under the Article 30 of the TFEU all customs duties and charging having equal eff ects are prohibited. The importers (individuals) have thus a right to import goods unburdened by fi nancial charges connected with the goods crossing the borders. States are the holders of the obligation to refrain from imposing of such charges on import of goods. In case that any Member State introduces customs duties on certain goods, the importer do not have to pay it and in the proceeding (e.g. in the customs proceeding/execution claiming the payment of the ‘customs debt‘) before the national authority he may set up his claim on the mentioned provisions that the authority shall apply.

B. The reverse (downward) vertical direct eff ect - in this case the individual is the holder of the obligation and the state is entitled to seek this obligation on it

52 Judgment of 12 December 1974, Walrave and Koch / Association Union Cycliste Internationale and others (36/74, ECR 1974 p. 1405).


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Example

Under the Article 101 of the TFEU the cartel agreements that may restrict or distort the competition within the internal market are prohibited. The control on fulfi lment of the competition rules are conferred by the TFEU and the sec-ondary legislation upon the Commission and national authorities that protect the competition. The individual (competitor) shall refrain from the forbidden action upon those provisions. The state (via its bodies) is entitled to investi-gate the suspicion of infringement of mentioned rules and to impose eventu-ally sanction for the founded infringements. In case that certain competitors adopt a forbidden agreement dividing the market the European Union law may be applied in the proceedings before the national authority and a sanc-tion may be imposed upon these individuals.

Both variations of the vertical direct eff ect describe cases when the rules of the EU law govern relationship between the subjects with an unequal position i.e. re-lationships between individuals and a state (public authorities). According to the content of a particular legal relation it is possible to diff er the so called classic (up-wards) vertical direct eff ect that refl ects the possibility of an individual to seek rights contained in the norm of EU law against a state (subject with a ‘higher rank‘) and the reverse (downwards) vertical eff ect that enables the individual to be the holder of the obligation and thus also to be a ‚defendant’ and the State (a public authority) seeks on the contrary the application of the supranational rule against this individual.

C. The horizontal direct eff ect – it is the situation when the European Union law confers rights upon the individual which he can seek against other individuals who are thus the holders of the obligation. The horizontal direct eff ect covers situ-ation wherein the rule of the EU law is applied on the relationship between parties that have an equal position (individuals). Horizontal direct eff ect creates the possi-bility of an individual to seek provisions of the European Union law in proceedings before the national authorities in the cases where the other party is also subject of private law with an equal legal position.


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Example

The Article 45 (1,2) secures the freedom of movement for workers and abol-ishes the limitation of the freedom of movement engendering on any discrim-ination based on the nationality. It is a general provision and the abolition of limitations does not involve only states. Both the rules laid down by a state (e.g. requirement of work permit for foreigners) and the rules laid down by a non-state actor (e.g. rules for sportsmen transfer laid down by sports feder-ations which may place limitation on the freedom of movement of workers) are forbidden.

Thanks to the aforementioned broad understanding of the direct eff ect the Eu-ropean Union law became a coherent legal system that regards both states and individuals as its full subjects (holders of rights and obligations). The effi ciency to achieve objectives of the rules of EU law and the need of uniform application of this legal system serve as the chief causes for this absolute extent of supranational legal regulation.

Recently the preconditions of the direct eff ect of the European Union law were completed indirectly with some other criterion connected with the problem of the diff erent language versions/translations of the EU law sources. The new condi-tion is connected with the requirement of the proper publication of the sources of the European Union law in the offi cial language of the Member State where this supranational law are supposed to be applied53. However this precondition is not general because it concerns only the reverse vertical eff ect and the horizontal ef-fect. The Court of Justice stated an impossibility to seek upon individuals the obli-gations contained in the legal acts of the Union that were not published in the Of-fi cial journal in the language of the Member State (C-161/06 Skoma Lux54).

5.2.3 The Direct Eff ect of Secondary Law SourcesThe doctrine of the direct eff ect of the European Union law has evolved gradu-ally. Afterwards the Court of Justice recognised this principle in connection with the primary law provisions that meet the Van Gend en Loos requirements, it had to resolve an issue, whether the norms of law contained in the acts of secondary legislation may be considered as a direct source of individuals’ rights and obliga-tions too.

53 On the problem of absence of proper translation see BOBEK, Michal. The Binding Force of Babel. The Enforcement of EC Law Unpublished in the Languages of the New Member States. EUI Work-ing Papers – Law, 2007/06.

54 Judgment of 11 December 2007, Skoma-Lux (C-161/06, ECR 2007 p. I-10841).


78

A. Regulations

In case of the regulations the answer is quite clear. The legal defi nition of this act contained in Treaty lay down that it is a generally binding and directly applicable source of law. The direct eff ect of provisions of the regulation is therefore included in the legal defi nition of this source of secondary law. The Court of Justice recog-nised the direct eff ect of regulations in its entirety, i.e. in both vertical (upward and downward) and horizontal situations (43/71 Politi55). The Van Gend en Loos formu-la is to apply also in case of regulations and the provisions contained in those acts may be only eff ective on the condition that they are clear and unconditional and do not require an adoption of any other measures (those provisions of the regula-tion requiring the implementation may not be directly eff ective, C-403/98 Monte Arcosu56).

Court of Justice supported the claim of the existence of direct eff ect of regula-tions also by general prohibition of adoption of any national implementing mea-sures in order to transpose regulations (the only exception to this prohibition is situation where the necessity of adoption of some measures at the national level is required by the regulation itself or derived implicitly from its text). The Court of Justice opposes the possibility to adopt the measures implementing regulations in order not to interfere to the uniformity and effi ciency of these acts. Of course there might be a need to adopt some supplementing measures to accommodate the internal legal order to the needs and objectives of the regulations. But Mem-ber States cannot obstruct the direct applicability of the regulations by these na-tional measures (34/73 Variola57).

B. Decisions

The key-role regarding the direct eff ect of the decisions was played again by the Court of Justice. In the judgment 9/70 Grad58 it resolved an issue whether those not generally binding acts may have an internal eff ect and be a source of rights and obligations of individuals that shall be thus respected and applied by the na-tional courts. The Court of Justice acknowledged that besides provisions of the primary legislation and regulation also the other sources of the Secondary law may be directly applicable. According to the Court of Justice the mere fact that the primary law recognises explicitly only the direct eff ect of the regulation shall not to lead to an exclusion of those or similar eff ects in association with another secondary law acts. The Court of Justice used a teleological argumentation and fo-cused on the concept of the l’eff et utile that comprises both purpose and effi ciency of the supranational law as a method of an achievement of the integration objec-

55 Judgment of 14 December 1971, Politi / Ministero delle finanze (43/71, ECR 1971 p. 1039).56 Judgment of 11 January 2001, Monte Arcosu (C-403/98, ECR 2001 p. I-103).57 Judgment of 10 October 1973, Fratelli Variola Spa / Amministrazione delle finanze dello Stato

(34/73, ECR 1973 p. 981).58 Judgment of 6 October 1970, Grad / Finanzamt Traunstein (9/70, ECR 1970 p. 825).


79

tives. Another argument of the Court of Justice was the binding character of the decisions in general that would be restricted and impaired if these acts could not have a direct (internal) eff ect.

9/70 Franz Grad vs. Finanzamt Traunstein [1970] ECR 825

5 However, although it is true that by virtue of article 189, regulations are di-rectly applicable and therefore by virtue of their nature capable of producing direct eff ects, it does not follow from this that other categories of legal mea-sures mentioned in that article can never produce similar eff ects. In particu-lar, the provision according to which decisions are binding in their entirety on those to whom they are addressed enables the question to be put whether the obligation created by the decision can only be invoked by the commu-nity institutions against the addressee or whether such a right may possibly be exercised by all those who have an interest in the fulfi lment of this obliga-tion. It would be incompatible with the binding eff ect attributed to decisions by article 189 to exclude in principle the possibility that persons aff ected may invoke the obligation imposed by a decision. Particularly in cases where, for example, the community authorities by means of a decision have imposed an obligation on a Member State or all the Member States to act in a certain way, the eff ectivenes (“l’ eff et utile“) of such a measure would be weakened if the nationals of that state could not invoke it in the courts and the nation-al courts could not take it into consideration as part of community law. Al-though the eff ects of a decision may not be identical with those of a provi-sion contained in a regulation, this diff erence does not exclude the possibility that the end result, namely the right of the individual to invoke the measure before the courts, may be the same as that of a directly applicable provision of a regulation.

6 Article 177, whereby the national courts are empowered to refer to the court all questions regarding the validity and interpretation of all acts of the institutions without distinction, also implies that individuals may invoke such acts before the national courts. Therefore, in each particular case, it must be ascertained whether the nature, background and wording of the provision in question are capable of producing direct eff ects in the legal relationships be-tween the addressee of the act and third parties.

For the determination and extent of direct eff ect of the decisions it is essential to identify the addressees of this source of EU law. In case when decisions are ad-dressed to the natural and legal persons, those persons are bound by the text of the decisions and courts shall apply such decision in all situations. These decisions have a direct eff ect in both vertical and horizontal situations. Another interpreta-tion would be inconsistent with the binding character of this act.


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The situation diff ers if only States are addressees to the decision. The individuals may not be bound by a decision that was not addressed to them. In this situation the Court of Justice thus ruled out both downwards (reverse) and horizontal direct eff ect of the decision (C-80/06 Carp59). Only the Member States shall be obliged by such decisions so only classical (upwards) vertical direct eff ect is allowed here. Furthermore it must be added that the decisions may bound the Member States only when they impose a precise, clear and unconditional obligation and when they do not leave to a state a wide space for their own discretion (C-156/91 Hansa Fleisch60; C-18/08 Foselev61).

C. Directives

The directives as goal-oriented acts explicitly require their implementation i.e. an adoption of national measures in order to achieve the objective of this Union act. The very nature of the directives may give rise to a conclusion that it cannot be understand as a source of law which has a direct eff ect. However the case-law of the Court of Justice changed this classical understanding of directives. The Court of Justice admitted that under specifi c circumstances and meeting of special crite-ria also the directives may have a direct eff ect (41/74 Van Duyn62). The issue of the direct eff ect of directives is one of the most complicated issues of the EU law and it needs to be discussed more deeply.

The directives were originally considered as acts that were not supposed to have legal eff ects within the national legal systems of the Member States. In gen-eral terms they are understood as mere samples and incentives for the legislative activity of the Member States. The States are free to choose a form and a meth-od to achieve the objective prescribed by the directive. The eff ects of the direc-tives are therefore conditioned by the willingness of states to adopt their imple-menting measures. Afterwards it is this national law that may become a source of subjective rights and obligations of the concrete addressees of the legal order. In case of proper implementation of directives by the Member States it would not be even necessary to consider the direct eff ect because the assumed legal eff ects (the goal and objective of the directive) would be caused by the implementing national legislation.

59 Judgment of 7 June 2007, Carp (C-80/06, ECR 2007 p. I-4473).60 Judgment of 10 November 1992, Hansa Fleisch / Landrat des Kreises Schleswig-Flensburg

(C-156/91, ECR 1992 p. I-5567).61 Judgment of 20 November 2008, Foselev Sud-Ouest (C-18/08, ECR 2008 p. I-8745).62 Judgment of 4 December 1974, Van Duyn / Home Office (41/74, ECR 1974 p. 1337).


81

Example

The directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees lays down in the Article 3 (2) that the consumer shall be entitled in case of any defect to goods, to have the goods brought into conformity with the contract free of charge by repair or replacement, or to have an appropriate reduction made in the price or fi nally withdraw the contract in regard to those goods. The aforementioned rights of an individu-al are prescribed by the directive but they become legally relevant only after the adoption of the national legislation which introduces those into the legal order of the concrete Member State. Thus the national legislation which im-plemented the directive is the source of rights on which individuals may base their claims in cases when some dispute arises.

But the reality shows us another picture. There is a wide gap between theoreti-cal assumptions and reality. The low quality and low effi ciency of the implementa-tion of directives is somewhat regular problem of the Member States. The Mem-ber States often do not fulfi l their obligation to implement directives properly or at time. Under those circumstances there is a threat of an undesirable situation where the legal status (a set of rights and obligations) of individuals may diff er from state to state.

The Court of Justice has formulated a doctrine of direct eff ect of directives as a reaction to this particular problem. The logic was to avoid aforementioned neg-ative consequence of non-implementation The Court of Justice stated the possi-bility of a direct eff ect of this type of the act for the very fi rst time in the judgment 9/70 Grad but the very fundamentals of the doctrine of direct eff ect of directives were formulated later on in the case 41/74 Van Duyn.


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41/74 Van Duyn vs. Home Offi ce [1974] ECR 1337

12... It would be incompatible with the binding eff ect attributed to a direc-tive by article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the community authorities have, by directive, imposed on Member States the ob-ligation to pursue a particular course of conduct, the useful eff ect of such an act would be weakened if individuals were prevented from relying on it be-fore their national courts and if the latter were prevented from taking it into consideration as an element of community law. Article 177, which empowers national courts to refer to the court questions concerning the validity and in-terpretation of all acts of the community institutions, without distinction, im-plies furthermore that these acts may be invoked by individuals in the nation-al courts. It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct eff ects on the relations between Member States and individuals.

13 By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, ar-ticle 3 (1) of directive no 64/221 is intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals. First, the provision lays down an ob-ligation which is not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part either of the institutions of the community or of Member States. Secondly, because Member States are thereby obliged, in implementing a clause which dero-gates from one of the fundamental principles of the treaty in favour of indi-viduals, not to take account of factors extraneous to personal conduct, legal certainty for the persons concerned requires that they should be able to rely on this obligation even though it has been laid down in a legislative act which has no automatic direct eff ect in its entirety.

The direct eff ect of directives was introduced as a certain subsidiary attribute of these acts. It occurs in case when they were not implemented into legal orders of Member States properly. The States have some prescribed time to accomplish their duty to implement the directive. This implementation period is set as the time limit given to states for proper accommodation of their legal system to the demands of the directive. Therefore the direct eff ect of directive provisions can-not be considered before the expiration of given time. The Court of Justice ruled out the possibility that the directive provisions shall have a direct eff ect before the period expires and it based its argumentation on the character of the direc-tive as a “goal-oriented act” that gives states a freedom of choice concerning the form and method of the implementation. It stated that the directive may become


83

directly eff ective at the end of the prescribed implementation period without any exception. Even in the case when faulty or insuffi cient implementation was car-ried out before the expiration of the implementation period the provision of the directive cannot have direct eff ect because Member State still have time to repair the defi ciencies (148/78 Ratti63).

148/78 Pubblico Ministero vs. Tullio Ratti [1979] ECR 1629

23 It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompat-ible with the directive not incorporated into the internal legal order of a de-faulting Member State, must uphold that request if the obligation in question is unconditional and suffi ciently precise.

24 Therefore the answer to the fi rst question must be that after the expira-tion of the period fi xed for the implementation of a directive a Member State may not apply its internal law - even if it is provided with penal sanctions - which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive.

The Court of Justice introduces the direct eff ect of directives as a certain kind of sanction against Member States in cases when they failed to fulfi l their obliga-tions laid down by the Treaty - when they failed to implement the directive prop-erly and at time. In connection to this the Court of Justice recognises the direct eff ect of the directives only in its classical “vertical” form, i.e. in legal relationships between individuals as holders of rights and a Member State as an addressee of the obligation. All other categories of direct eff ect are forbidden concerning the directives.

The rejection of the reverse (downwards) vertical eff ect of directives is based on the so-called “estoppel” principle according to which no Member State may ben-efi t from its own infringement of provisions of the European Union law. The Court of Justice confi rmed this rule in its judgment 148/78 Ratti wherein it stated that:

148/78 Pubblico Ministero vs. Tullio Ratti [1979] ECR 1629

20 It would be incompatible with the binding eff ect which article 189 as-cribes to directives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned.

63 Judgment of 5 April 1979, Ratti (148/78, ECR 1979 p. 1629).


84

21 Particularly in cases in which the community authorities have, by means of directive, placed Member States under a duty to adopt a certain course of action, the eff ectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevent-ed from taking it into consideration as an element of community law.

22 … a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.

Regarding the horizontal direct eff ect of directives, i.e. their application in the legal relationships between equal subjects, it is necessary to add that the Article 288, third Subparagraph TFEU does not mention the individuals and an extensive interpretation of this provision is not desirable either. Even the Court of Justice it-self refused in its case-law (152/84 Marshall64) the possibility of the imposing of some obligation to individuals straight by the non-implemented directive.

152/84 Marshall vs. Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723

46 …, according to a long line of decisions of the court […] wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and suffi ciently precise, those provisions may be relied upon by an individual against the state where that state fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly.

47 That view is based on the consideration that it would be incompatible with the binding nature which article 189 confers on the directive to hold as a matter of principle that the obligation imposed thereby cannot be relied on by those concerned. From that the court deduced that a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.

64 Judgment of 26 February 1986, Marshall / Southampton and South-West Hampshire Area Health Authority (152/84, ECR 1986 p. 723).


85

48 With regard to the argument that a directive may not be relied upon against an individual, it must be emphasized that according to article 189 of the EEC treaty the binding nature of a directive, which constitutes the ba-sis for the possibility of relying on the directive before a national court, ex-ists only in relation to‚ each Member State to which it is addressed. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a per-son. It must therefore be examined whether, in this case, the respondent must be regarded as having acted as an individual.

49 In that respect it must be pointed out that where a person involved in le-gal proceedings is able to rely on a directive as against the state he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with community law.

The possibility of a direct application of non-implemented directive against the individuals would be contrary to the meaning of existence of diff erent acts of the secondary law. The Union has a possibility to govern the legal status of individuals directly via regulations. The recognition of the direct eff ect of the directive with-in relationships among individuals would be an unfounded extension of Union’s competences (C-91/92 Faccini-Dori65).

Later on the Court of Justice went further and excluded any option of the appli-cation of the directive in cases before national courts which should lead to the ag-gravation of the legal status of the individual (C-397/01 and 403/01 Pfeiff er66).

It is thus obvious from the case-law of the Court of Justice that the direct eff ect of directives is bound by a wide range of preconditions: Generally the require-ments of the so called Van Gend en Loos formula must be present also in the case of directives (provisions of the directive must be clear, precise and unconditional). Moreover some other specifi c preconditions must be met here namely: the non-implementation of the directives into a legal order of the Member

States (it covers both the situations on none implementation and the situa-tion of defi cient implementation);

the expiration of the implementation period prescribed by the directive; and fi nally the condition that application of the directive will not aggravate

the legal status of individual.

It must to be stated that abovementioned inhibition of horizontal direct ef-fect of directives caused certain negative consequence. The exclusion of the di-rect application of directives in proceedings between individuals formed a state

65 Judgment of 14 July 1994, Faccini Dori / Recreb (C-91/92, ECR 1994 p. I-3325).66 Judgment of 5 October 2004, Pfeiffer and others (C-397/01 to C-403/01, ECR 2004 p. I-8835).


86

of a specifi c unfounded diff erentiation. The possibility of the individual to seek his rights established by the directive was dependent on fact whether it claims them against a State or against another individual. Where it stands in relation with other individual it cannot request its rights before the court.

Example

Article 2 (7), second Subparagraph of the Directive 706/207 EEC on the im-plementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation lays down that: ‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefi t from any im-provement in working conditions to which she would be entitled during her absence.’ In case when this directive was not implemented into a legal order of Member State and the implementation period expired, the right of women would derive directly from the directive. In case a woman was an employee of a public authority that after her return from the maternity leave did not get her en equivalent work position, she would be entitled to bring an action based on the case-law of the Court of Justice (41/74 Van Duyn, 148/78 Ratti) against her employer (the State) and seek the aforementioned right in the proceeding before national courts. In case when the same situation appeared in connection with an employee of a private company, she would not be en-titled to seek any right according to the case-law of Court of Justice which forbids the horizontal direct eff ect of the directive (152/84 Marshall, C-91/92 Faccini-Dori).

The Court of Justice is aware of the negative consequences of this strict rule. Therefore it tries to moderate them by the introduction of the doctrine of broad understanding of the concept of state. It has extended in its case-law (188/89 Fos-ter67) the understanding of the concept of state also to the subjects upon whose the state has conferred the execution of some state powers and which execute this powers under the control of state (e.g. gas companies, energy companies etc.). Essentially the Court of Justice “turned” the horizontal relationship (e.g. the relationship between an employee and employer – a trading company whereup-on the state conferred certain tasks and controls it) to the vertical situation and established a possibility for a direct application of the directive even in this kind of relationship.

67 Judgment of 12 July 1990, Foster and others / British Gas (C-188/89, ECR 1990 p. I-3313).


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C-188/89 Foster and others / British Gas [1990 ]ECR p. I-3313

20 It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that pur-pose special powers beyond those which result from the normal rules appli-cable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct ef-fect may be relied upon.

The most powerful and the most promoted instrument of the moderation of abovementioned negative consequences of the ban on horizontal direct eff ect of directives is the doctrine of the so called indirect eff ect of the European Union law. It will be closely discussed in the next chapter. The indirect eff ect of directives, i.e. the obligation to interpret the national law in conformity with the EU law require-ments may be used also in relations between individuals. It is because the direc-tive does not serve as source of rights and duties here but only as a mere interpre-tative guideline and the legal position of an individual is regulated by the norms of national law.

5.2.4 The Direct Eff ect of other Sources of EU LawThe direct eff ect of the general principles of law is one of the newest contributions of the case-law of Court of Justice. It is still developing and it has not clearly de-fi ned outlines. The most important judgments here are C-144/04 Mangold68 (where the Court of Justice admitted for the very fi rst time that the general principles of law may be directly eff ective); C-427/06 Bartsch (where more light was given as to the conditions of the direct eff ect of principles) and C-555/07 Kücükdeveci69 (which to certain extent confi rmed the Mangold ruling and demonstrated that new doc-trine was established). As to the conditions it has to be mentioned that unwritten general principles of law may only be applied within the sphere of established EU competence. Therefor national court has to apply this principle directly (and po-tentially give priority to the unwritten EU rules over confl icting national rules) only when alleged breach of principle has a clear link with Union law. The doctrine of the direct eff ect of the general principles of law is far cry from any consistency or completeness. This refl ects also the fact that all cases wherein the Court of Justice acknowledged this eff ect concerned only a single particular principle, the princi-ple of non-discrimination based on age. There is no other principle whose direct eff ect has been acknowledged yet. Notwithstanding these shortages it must be stressed that most important element of the new doctrine is that Court admitted

68 Judgment of 22 November 2005, Mangold (C-144/04, ECR 2005 p. I-9981).69 Judgment of 19 January 2010, Kücükdeveci (C-555/07, ECR 2010 p. I-365).


88

that in connection with the application of general principles an obligation may be imposed also upon an individual so it admitted that general principles shall be applied also in horizontal situations (which - in comparison to directives – is quite revolutionary step).70

Finally it is necessary to mention also the direct eff ect of the provisions of so called external agreements. The primary objective of these international agree-ments is to cover relationships between the Union and other subject of the in-ternational law. But also in this case the Court of Justice admitted their nation-al eff ectiveness and the possibility of the individual to seek provisions of these agreements internally. The direct application of external agreements is possible if particular provisions contain an adequately precise clear an unconditional right or obligation and does not require an adoption of any implementing measures (12/86 Demirel71). In addition it is necessary to bear in mind here that the external agreements are handled as a documents that primarily lay down mutual rights and obligation of the Union and its external partners who express their autono-mous will by the conclusion of such an agreement. Therefore for the acknowledg-ment of the direct eff ect of provisions of these agreements it is necessary to fi nd out that parties of the treaty calculated (at least implicitly) with this option (104/81 Kupferberg72).

70 See further FONTANELLI, Filippo. General Principles of the EU and a Glimpse of Solidarity in the Aftermath of Mangold and Kücükdeveci. European Public Law, 2011, Vol. 17, No. 2, pp. 225-240.

71 Judgment of 30 September 1987, Demirel / Stadt Schwäbisch Gmünd (12/86, ECR 1987 p. 3719).

72 Judgment of 26 October 1982, Hauptzollamt Mainz / Kupferberg & Cie. (104/81, ECR 1982 p. 3641).


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Chapter VI: European Union Law as the Dominant Legal System

6.1 The Cohabitation of Colliding Legal Worlds – the Principle of Primacy of the European Union Law

The European Communities (and now European Union) has international law foundations - Treaties. The existence of the international law basis served as the reason why the Community law was originally regarded as the part of the pub-lic international law. The authors of the Treaties had no need neither endeavour to solve issues of the application and eff ects of the Community (and later EU) law within the national legal orders; nor issues of the relation between supranational law and national law of the Member States. Still, there are no specifi c guidelines in the Treaties governing the application of the EU law and its relation with the na-tional law (the only exception is an explicit defi nition of the direct applicability of regulations as a source of the secondary legislation). The Court of Justice which is a driving force in the process of emancipation of the Community (later EU) law had thus an irreplaceable position here.

In case of collision with the text or meaning of national legal rules, the Europe-an Union law is the prevailing legal order which results in the non-application of a colliding rule of national law or in the preference of interpretation of national law in conformity with the objectives of the supranational rules.

The primacy of the European Union law is its fundamental characteristics and an element that defi nes the relationship between this law and the national law of the Member States.73 This principle causes that the national judge (or any other authority applying law) is (in cases decided by him) subject to an obligation not to apply the national legal rule inconsistent with the European legislation. European Union law thus enjoys the ability to have precedence over national legal norms in the sphere of the judicial or administrative practice. It had to be pointed here, that primacy does not mean absolute normative superiority. Introduction of this principle into the practice of application of law was not followed by the building of hierarchy pyramid between the European Union law and national law of Mem-ber States.

The TEU defi nes only the fundamental obligation of states not to jeopardise the attainment of the Union’s objective = the principle of loyalty (Article 4 para-graph 3 TEU). This generally defi ned obligation does not in principle impinge on

73 See ALTER, Karen. Establishing the Supremacy of European Law. New York: Oxford University Press, 2001, 258 p.


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the autonomy of the will of the national legislator. The formal preservation of the autonomous position of the national lawmaker may fi nd it’s echo in the existence of the national legislation inconsistent with the EU law. The principle of primacy was established in order to solve the collision between the supranational law and the national law. In case of this collision the national judge shall use the rule of EU law and not apply the national provisions.

While it is true that the principle of the primacy of European Union law may in-fl uence in some way the decisions of the national legislature, the immediate in-validation of the national law does not follow from this principle. The question of validity or invalidity does not arise here as the two legal systems - EU law and the national law - are separate and autonomous legal orders.

There is no hierarchy between these systems in terms of the validity of norms, but there is some kind of structural relationship in terms of the applicability of concrete legal rules to the facts in particular case. National lawmakers may adopt legislation confl icting with the supranational rules. Then the potentiality of con-fl ict of norms will appear. And the consequences of a confl ict must be solved by the bodies applying the law (mainly the courts). They have to decide the case ac-cording to requirements of European Union law in all cases.

The principle of primacy does not emanate directly from any text of primary or secondary law source. Its basis, extent and eff ects emanate from the case-law of the Court of Justice of the European Union. The key-decision was the judgment of the Court of Justice in case 6/64 Costa74. The Court of Justice laid down in this deci-sion the basis of the doctrine of the primacy of the Community (now EU) law over the national law. It defi ned the independence of the supranational law, solved the issue of the relationship between the national law of the Member States and the Community law and the division of powers between the Union and the Member States. The Court of Justice considered the conferral of powers upon the Commu-nity/Union as permanent and defi nitive and recognised thus the independence of the supranational entity.

6/64 Flaminio Costa vs. ENEL [1964] ECR 585, 593

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

74 Judgment of 15 July 1964, Costa / E.N.E.L. (6-64, ECR 1964 p. 585).


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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 com-munity, the Member States have limited their sovereign rights, albeit within limited fi elds, and have thus created a body of law which binds both their na-tionals and themselves. The integration into the laws of each Member State of provisions which derive from the community, and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to an unilateral and subsequent measure over a legal sys-tem accepted by them on a basis of reciprocity. Such a measure cannot there-fore be inconsistent with that legal system.

... the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic le-gal 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.

The primacy of the European Union law is a logical supplement to the principle of the direct applicability. The uniform application of the supranational law re-quires necessarily applying this law despite the collision with national provisions.

The principle of primacy of the EU law covers all sources of the European Union law including the secondary legislation (C-285/98 Kreil75). According to the case-law of the Court of Justice the supranational law has both retroactive eff ects (the application of the already existing national legislation is ruled out) and future ef-fects (the application of the new national law is ruled out in the extent they will be inconsistent with the European norms 106/77 Simmenthal76). This eff ect of the pri-macy principle derives from the requirement of en eff ective and uniform applica-tion of the European Union law.

It is necessary to repeat that an application of the principle of primacy does not cause any (nor immediate nor future) invalidity or nullity of the national law. The issue of validity and invalidity in relation between EU law and national law of the Member States is out of the question. Those are two separate legal systems and there is no hierarchy between them. Their relationship is defi ned by the matrix of principles governing the application of concrete rules on the certain matter of fact.

75 Judgment of 11 January 2000, Kreil (C-285/98, ECR 2000 p. I-69).76 Judgment of 9 March 1978, Amministrazione delle finanze dello Stato / Simmenthal (106/77,

ECR 1978 p. 629).


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The “legalization” of the Primacy

The obligation of preferred application of supranational rules is not explic-itly covered nor by the text of the primary law nor in any act of secondary legislation of the European Union. The fi rst attempt to incorporate this princi-ple into the text of the binding legal source appeared in connection with the adoption of the text of the Treaty Establishing a Constitution for Europe. That text in Article I-6 contained a fi rst setting out of legal defi nition of the primacy principle. But the failure of the formal constitutional process within the Union meant the postponement of binding defi nition of primacy principle within the written sources of Union law.

Space for resolving this issue was re-opened in relation with the works on the text of the Lisbon Treaty. Even though this reform is based on the text of the Constitutional Treaty, the truth is that this document lacks formal consti-tutional ambitions. Therefore in its text there are no provisions bearing some “constitutional” symbolic or underlying “constitutional” implications. The le-gal defi nition of the primacy principle was understood as such “constitution-al” provision and therefore it was not included in the text of Lisbon Treaty

The creators of the Lisbon treaty covered the principle of primacy in mere declaration annexed to the Final Act of the Intergovernmental Conference. Specifi cally Statement No. 17 contains a reminder that we can understand the principle of primacy as a fi xed principle of EU law and that omission of its le-gally binding defi nition does not alter the major importance which it plays in ensuring the eff ective functioning of the European legal regulation.

In general, the supremacy of the European Union law gives rise to the obliga-tion of the national authorities to follow the European norms immediately, i.e. not to apply the contradictory national legislation in the concrete proceeding. Nation-al court before which the particular proceeding is heard cannot initiate any ex-amination of the validity or propose the repealing or take any other measure to eliminate the national legal rule that is in contrary to the European legislation. The Court of Justice explicitly states that in case Simmenthal. The only exception where setting aside (invalidation) of confl icting national rules is necessary is in the situation when even the mere existence of the national legal rule may endanger the application of the Union competences. Under those circumstances in order to strengthen the legal certainty and the position of individuals enjoying the subjec-tive rights laid down by the EU law, the Member States may be obliged to elimi-nate the contradicting national legislation (167/73 Commission v. France77).

77 Judgment of 4 April 1974, Commission / France (167/73, ECR 1974 p. 359).


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106/1977 Amministrazione delle Finanze dello Stato vs. Simmenthal SpA [1978] ECR 629

14 Direct applicability in such circumstances means that rules of communi-ty law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force.

17 Furthermore, in accordance with the principle of the precedence of com-munity law, the relationship between provisions of the treaty and directly ap-plicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any con-fl icting provision of current national law but - in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States - also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions.

21 It follows from the foregoing that every national court must, in a case within its jurisdiction, apply community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may confl ict with it, whether prior or subse-quent to the community rule.

22 Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the eff ectiveness of community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its ap-plication to set aside national legislative provisions which might prevent com-munity rules from having full force and eff ect are incompatible with those re-quirements which are the very essence of community law.

24 The fi rst question should therefore be answered to the eff ect that a na-tional court which is called upon, within the limits of its jurisdiction, to apply provisions of community law is under a duty to give full eff ect to those provi-sions, if necessary refusing of its own motion to apply any confl icting provi-sion of national legislation, even if adopted subsequently, and it is not neces-sary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.

26. …national courts must protect rights conferred by provisions of the community legal order and that it is not necessary for such courts to request or await the actual setting aside by the national authorities empowered so to act of any national measures which might impede the direct and immediate application of community rules.


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The formation of the primacy doctrine in the judgment 6/64 Costa represented the fundamental basis within the framework of relationship between the Com-munity (nowadays Union) legal order and the national law of the Member States. In abovementioned case the Court of Justice did not express any limits of the pri-macy. Therefore some open questions remained.

The most important and the most sensitive question was whether this doctrine should apply also in connection with the cases of collision between EU law and the highest rules of the national law = the Constitution and the Constitutional law. The Court issued its opinion on this question in the judgment 11/70 Internationale Handelsgesellschaft78. There it defi ned the absolute weight of the doctrine of pri-macy of the Union law. In case where the supranational law and the national con-stitutional provisions regulate certain issues diff erently, the European Union law shall prevail. National constitutional rules can’t have the precedence over the Eu-ropean Union law. Otherwise the autonomous character of the Union and its legal order would be interfered as well as the eff ectiveness of achieving the objectives of integration would be impinged.

11/70 Internationale Handelsgesellschaft mbH vs. Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125

3. Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the community would have an adverse eff ect on the uniformity and effi cacy of community law. The validity of such measures can only be judged in the light of community law. In fact, the law stemming from the treaty, an independent source of law, can-not because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and with-out the legal basis of the community itself being called in question. There-fore the validity of a community measure or its eff ect within a Member State cannot be aff ected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a na-tional constitutional structure.

78 Judgment of 17 December 1970, Internationale Handelsgesellschaft mbH / Einfuhr- und Vor-ratsstelle für Getreide und Futtermittel (11/70, ECR 1970 p. 1125).


95

6.2 The Indirect Eff ect of Supranational Rules = Interpretation of National Law in Conformity with European Union Law

The foundations of the principle of the indirect eff ect of the European Union law i.e. the obligation to interpret the national law in conformity with the EU law re-quirements were settled in the judgment 14/83 Von Colson79. It represents another pillar of the application of the European Union law in proceedings before national authorities and basically it means that the national judge (or another authority) is obligated to interpret the national law in the light of objectives and content of rules of EU law.

14/83 Von Colson and Kamann vs. Land Nordrhein-Westfalen [1984] ECR 1891

26 However ‘the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfi lment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifi cally introduced in order to implement directive no 76/207, national 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 referred to in the third paragraph of article 189.

28 […] It is for the national court to interpret and apply the legislation ad-opted for the implementation of the directive in conformity with the require-ments of community law, in so far as it is given discretion to do so under na-tional law.

The Court of Justice resolved in the Von Colson case an issue whether the direc-tive may have some legal eff ects even though its provisions do not meet require-ments laid down by Van Gend en Loos formula and thus they cannot be directly applicable. It replied this question in the affi rmative because it stated an obliga-tion of national courts to interpret their law in line with the meaning of the direc-tive. The arguments for the imposition of such a new duty on national authorities were based on the binding nature of directives and the principle of loyalty (ar-ticle 4, paragraph 2, third subparagraph 3 TEU) which impose to Member State the duty to take any measures to fulfi l the obligations conferred upon them by Treaties.

79 Judgment of 10 April 1984, Von Colson and Kamann / Land Nordrhein-Westfalen (14/83, ECR 1984 p. 1891).


96

The principle of the indirect eff ect has evolved within the case-law of the Court of Justice both qualitatively and quantitatively. At the very start it covered only the interpretation of the national law adopted in order to implement directives in the light of this particular directive. Also the issue of a possible application of this principle within horizontal relationships was unclear. Furthermore the defi nitions of precise limits of the duty to interpret national law in conformity with EU law re-quirements were missing. However the Court of Justice resolved many of those problematical issues.

The judgment of the Court of Justice in the case C-106/89 Marleaisng80 brought a clarifi cation of some problematic aspects of principle of indirect eff ect. It extend-ed the scope of national law that has to be interpreted in the light of rules of Com-munity (now EU) law. One of the most problematic issues of the doctrine of indi-rect eff ect was whether the obligation of the Euro-friendly interpretation covers only that part of the national law that implemented a certain directive into the na-tional legal system of the Member State or whether it covers also all other national laws whose adoption was not related with the implementation. The Court of Jus-tice stated that duty of euro-conform interpretation has to be understood widely and acknowledged that indirect eff ect covers all the national law even that which was not adopted in the connection with the implementation of the directive and no matter whether it was adopted before or after the adoption of the directive. Ba-sically the principle of indirect eff ect aff ects the national legal order as a whole.

Further the Court of Justice acknowledged the impact of the indirect eff ect also in the horizontal relationships. National courts are according to this wide view ob-ligated to interpret the national law in a euro-conform way even in cases between individual parties.

C-106/89 Marleasing SA vs. La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135

8 […] Member States’ obligation arising from a directive to achieve the re-sult envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the ful-fi lment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted be-fore or after the directive, the national court called upon to interpret it is re-quired to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter […].

80 Judgment of 13 November 1990, Marleasing / Comercial Internacional de Alimentación (C-106/89, ECR 1990 p. I-4135).


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To summarize, following rules are applied regarding the scope and consequenc-es of the principle of indirect eff ect:

A. Nowadays all provisions of the European Union law may serve as guidelines for the euro-conform interpretation regardless their position within the system of European Union law.

B. The object of the interpretation is not only the national law that was adopted by a national legislator in order to implement the EU law but all national law that might concern subjective rights of individuals based upon the EU law (C-106/89 Marleasing). The indirect eff ect applies also on the horizontal legal relationships, thus it may cause the aggravation of the position of an individual (case C-106/89 Marleasing).

C. The Court of the Justice has formulated following rules in the connection with the limits of obligation of national judges to interpret the national law in the light of the European Union law: The interpretation of the national law in the light of European Union law pro-

visions is limited by the scope of discretionary competences of the national authority applying law and interpretation methods governed by the nation-al law (14/83 Von Colson and Kamann).

The euro-conform interpretation of the national law may not lead into con-clusions denying the essence of the national legislation, i.e. to decisions con-tra legem (the case C-106/89 Marleasing).

The position of an individual may not be aggravated in the meaning of the establishment or the extension of the criminal responsibility (80/86 Kolping-huis81).

In case of indirect eff ect of a directive the obligation of the euro-conform in-terpretation may be established only after the expiration of the period pre-scribed for the implementation of a directive (C-212/04 Adeneler82).

6.3 The Price for the Non-conformity – Principle of Member State’s Liability for Damages Caused by an Infringement of European Union Law

This principle completes the aforementioned characteristics of the European Un-ion law as a complex and autonomous legal order. The liability for damages is cer-tain subsidiary consequence which serves as a tool to protect individuals in case when State breaches its obligations deriving from its membership commitments. It is a case of non-contractual liability for damages.

81 Judgment of 8 October 1987, Kolpinghuis Nijmegen (80/86, ECR 1987 p. 3969).82 Judgment of 4 July 2006, Adeneler and others (C-212/04, ECR 2006 p. I-6057).


98

This principle was stated for the very fi rst time in the case C-6 and 9/90 Fran-covich83 and its form and conditions were consequently governed by the other case-law of the Court of Justice. It represents another kind of sanction for States that do not fulfi l their membership obligations. Even though the liability for dam-ages is derived from the European Union law, the proceedings to seek the loss for damages caused to an individual is governed by the national law and national courts decide about the action for damages in the compliance with respective na-tional procedural codes.

C-6&9/90 Francovich and Bonifaci vs. Italy [1991] ECR I-5357

11 As the Court has consistently held, a Member State which has not adopt-ed the implementing measures required by a directive within the prescribed period may not, against individuals, plead its own failure to perform the ob-ligations which the directive entails. Thus wherever the provisions of a direc-tive appear, as far as their subject-matter is concerned, to be unconditional and suffi ciently precise, those provisions may, in the absence of implement-ing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions of the directive defi ne rights which individuals are able to as-sert against the State […].

(a) The existence of State liability as a matter of principle 31 It should be borne in mind at the outset that the EEC Treaty has created

its own legal system, which is integrated into the legal systems of the Member States and which their courts are bound to apply. The subjects of that legal system are not only the Member States but also their nationals. Just as it im-poses burdens on individuals, Community law is also intended to give rise to rights which become part of their legal patrimony. Those rights arise not only where they are expressly granted by the Treaty but also by virtue of obliga-tions which the Treaty imposes in a clearly defi ned manner both on individu-als and on the Member States and the Community institutions […].

32 Furthermore, it has been consistently held that the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full eff ect and must protect the rights which they confer on individuals […].

33 The full eff ectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.

83 Judgment of 19 November 1991, Francovich and Bonifaci / Italy (C-6/90 and C-9/90, ECR 1991 p. I-5357).


99

35 […] the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty.

(b) The conditions for State liability […]40 The fi rst of those conditions is that the result prescribed by the direc-

tive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, the third condition is the existence of a causal link between the breach of the State’s obligation and the loss and damage suff ered by the injured parties.

41 Those conditions are suffi cient to give rise to a right on the part of indi-viduals to obtain reparation, a right founded directly on Community law.

42 Subject to that reservation, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused. In the absence of Community legislation, it is for the internal legal order of each Member State to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Community law […].

43 Further, the substantive and procedural conditions for reparation of loss and damage laid down by the national law of the Member States must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively diffi cult to ob-tain […].

As mentioned before, the pilot decision within the framework of this doctrine was the judgment Francovich. The ground of the judgment was formed by the failure of the Italian state to implement the so called directive on insolvency. As a consequence the individuals were not entitled to get compensation of debts of wages in case of the insolvency of their employer. The Court of Justice defi ned in this case new principle in the favour of protection of subjective rights of individ-uals, the principle of liability of State for damages. Even though provisions of re-spective directive did not meet requirements for the direct eff ect and according to these provisions the State should not have been considered as a liable guarantee in case of insolvency of the employers, the Court of Justice stated that under ful-fi lment of certain conditions the State should be liable for damages caused by its negligence in fulfi lling its obligation to implement a directive.

The Court of Justice grounded the liability of the Member States for damages as one of the principles the Community and the Treaty were built on. It referred in its argumentation to former judgments and it based its decision on the inde-pendent and autonomous character of the Community (now EU) law. Further it


100

based its decision on the loyalty commitment of the Member States. And fi nally it grounded the principle of the State liability on the need of the eff ectiveness of the Community (now EU) law. It must be stated right in the beginning that the li-ability is considered to be objective so there is no need to prove the fault or intent of the State.

According to Court of Justice it is completely left to the national law to prescribe the procedural rules for the damage claims. It is left up to national courts which serve as the forum for the damage cases to decide about the existence of liability and about the extent and form of compensation. The Court of Justice only pointed out that claiming the compensation in those (European) cases shall not be more diffi cult than in any similar national cases of liability for damages.

The Court of Justice laid down conditions under which the Member State should be liable for damages: 1. the result prescribed by the directive should entail the rights of individuals; 2. it should be possible to identify the content of those rights on the basis of

the provisions of the directive which must be suffi ciently precise and clear; 3. the causal link between the breach of the State’s obligation and damage suf-

fered by an individual should be proved

The part of the judgment which includes the conditions was the weakest and problematic because the Court of Justice settled for the minimal defi nition of con-ditions. The other disadvantages of Francovich case was that Court of Justice has laid down this principle merely regarding the breach of duty to implement a di-rective and it did not deal with the issue of breach of other obligations conferred upon Member States by the rules of supranational law.

The decision of the Court of Justice in joined cases C-46/93 & C-48/93 Brasserie du Pêcheur & Factortame III84 gave a signifi cant development and a clarifi cation re-garding problematic issues.

First of all it was the issue whether the Member States are liable for damages also in cases where they occur as a consequence of the breach of directly eff ective rules of supranational law. The government of Member States argued against the rise of liability in this situation and reasoned their position by the plea that the di-rect eff ect is an adequate instrument to protect rights of individuals, that there are suffi cient national instruments for claiming the reparation and thus it is not nec-essary to hold the state responsible for the infringement also under the suprana-tional law. The Court of Justice refused this argument and stated that the direct ef-fect is not a satisfactory instrument to protect subjective rights of individuals. This principle entitles individuals to seek the EU law directly in the proceedings before the national court but it does not guarantee the reparation for damages and loss

84 Judgment of 5 March 1996, Brasserie du pêcheur / Bundesrepublik Deutschland and The Queen / Secretary of State for Transport, ex parte Factortame and others (C-46/93 and C-48/93, ECR 1996 p. I-1029).


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caused by the breach of State’s obligations. The principle of the State’s liability for damages complements the principle of the direct eff ect but it is an individual fea-ture of the European Union law.

The judgment also contributed signifi cantly to the defi nition of conditions of the State’s liability for damages. It did not formulate the precise defi nition of the liability but it laid down that the liability is conditional on many circumstances (such as a precise defi nition of discretionary competences of the state’s authority, clarity or non-clarity of the infringed rights etc.). According to this decision the li-ability conditions are as follows: the infringed rules of EU law shall prescribe certain subjective rights to indi-

viduals; there must be a direct causal link between the breach of obligation and the

loss or damage caused. the breach caused by the State authorities must be suffi ciently serious. The

defi nition of the seriousness of the breach depends on the clarity of the Un-ion rule infringed and further on the margin of a discretion left by the EU law to the national authority.

(1) In case of a narrow margin of discretion or no discretion, any infringement of the Member State obligation is suffi cient to be described as the “serious breach.”

(2) In case of a broad margin of a discretion of national authority it is further necessary to prove the seriousness by subsidiary arguments, for instance a fault, a conduct contrary to the settled case-law, a contributory fault of an individual, a certain margin of Union co-liability deriving from the un-clear defi nition of the state obligations etc. (regarding these conditions see C-46/93 & C-48/93 Brasserie du Pêcheur & Factortame III);

C-46/93 & C-48/93 Brasserie du Pêcheur SA vs. Germany, & R. vs. Secretary of State for Transport, ex parte Factortame Ltd. and others [1996] ECR I-1029

20 The Court has consistently held that the right of individuals to rely on the directly eff ective provisions of the Treaty before national courts is only a mini-mum guarantee and is not suffi cient in itself to ensure the full and complete implementation of the Treaty [...]. The purpose of that right is to ensure that provisions of Community law prevail over national provisions. It cannot, in ev-ery case, secure for individuals the benefi t of the rights conferred on them by Community law and, in particular, avoid their sustaining damage as a result of a breach of Community law attributable to a Member State. As appears from paragraph 33 of the judgment in Francovich and Others, the full eff ectiveness of Community law would be impaired if individuals were unable to obtain re-dress when their rights were infringed by a breach of Community law.


102

21. This will be so where an individual who is a victim of the non-transpo-sition of a directive and is precluded from relying on certain of its provisions directly before the national court because they are insuffi ciently precise and unconditional, brings an action for damages against the defaulting Member State [...]

22. It is all the more so in the event of infringement of a right directly con-ferred by a Community provision upon which individuals are entitled to rely before the national courts. In that event, the right to reparation is the neces-sary corollary of the direct eff ect of the Community provision whose breach caused the damage sustained.

27. Since the Treaty contains no provision expressly and specifi cally govern-ing the consequences of breaches of Community law by Member States, it is for the Court, in pursuance of the task conferred on it by Article 164 of the Treaty of ensuring that in the interpretation and application of the Treaty the law is observed, to rule on such a question in accordance with generally ac-cepted methods of interpretation, in particular by reference to the fundamen-tal principles of the Community legal system and, where necessary, general principles common to the legal systems of the Member States.

43. The system of rules which the Court has worked out with regard to Arti-cle 215 of the Treaty, particularly in relation to liability for legislative measures, takes into account, inter alia, the complexity of the situations to be regulated, diffi culties in the application or interpretation of the texts and, more particu-larly, the margin of discretion available to the author of the act in question.

46. That said, the national legislature – like the Community institutions – does not systematically have a wide discretion when it acts in a fi eld gov-erned by Community law. Community law may impose upon it obligations to achieve a particular result or obligations to act or refrain from acting which reduce its margin of discretion, sometimes to a considerable degree. This is so, for instance, where, as in the circumstances to which the judgment in Fran-covich and Others relates, Article 189 of the Treaty places the Member State under an obligation to take, within a given period, all the measures needed in order to achieve the result required by a directive. In such a case, the fact that it is for the national legislature to take the necessary measures has no bearing on the Member State’s liability for failing to transpose the directive.

47. In contrast, where a Member State acts in a fi eld where it has a wide dis-cretion, comparable to that of the Community institutions in implementing Community policies, the conditions under which it may incur liability must, in principle, be the same as those under which the Community institutions incur liability in a comparable situation.


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78. So, certain objective and subjective factors connected with the concept of fault under a national legal system may well be relevant for the purpose of determining whether or not a given breach of Community law is serious [...].

In C-46/93 & C-48/93 Brasserie du Pêcheur & Factortame III the Court of Justice also clarifi ed the question for the conduct (or omission) of which national authorities the Member States should be responsible. Here it stated that the States are liable regardless whether the breach of EU law was caused by an authority representing legislative or executive power. Further the Court of Justice broadened the base of authorities for whose acting the state may be held responsible also to the local authorities (C-302/97 Konle85; C-427/97 Haim86) and also to the national judiciary87 (C-224/01 Köbler88; C-173/03 Traghetti del Mediterraneo89). The liability of the State for the acting of the authorities representing the judicial power is one of the most sensitive issues of the European Union law (because of the judicial independence, the wide discretion etc.) and it is the subject to some additional conditions. Ac-cording to the Court of Justice the Member State should be held responsible for the damage and loss caused by the breach of the European Union law only un-der the circumstances that this damage was caused by the decision of national court of the last instance and that infringement of the EU law rule by the national court was suffi ciently manifest (arbitrary). Hoverer Member States cannot pose any special limitations or conditions for the claims of individuals for compensation of damages caused by such manifest breach of EU law. For example restriction of the liability of Member State for the activity of the judiciary only to the cases in-volving intentional fault or gross negligence of justices is incompatible with the general principle of the liability of Member States for a breach of EU law (C-379/10 Commission v Italy90).

85 Judgment of 1 June 1999, Konle (C-302/97, ECR 1999 p. I-3099).86 Judgment of 11 May 1999, Albers (C-425/97, C-426/97 and C-427/97, ECR 1999 p. I-2947).87 See further BREUER, Marten. State Liability for Judicial Wrongs and Community Law: the Case of

Gerhard Köbler v. Austria, European Law Review, 2004, Vol. 29, pp. 243-254.88 Judgment of 30 September 2003, Köbler (C-224/01, ECR 2003 p. I-10239).89 Judgment of 13 June 2006, Traghetti del Mediterraneo (C-173/03, ECR 2006 p. I-5177).90 Judgment of 24 November 2011, Commission / Italy (C-379/10).


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ADDITIONAL READING:

CZECH CONSTITUTIONAL COURT DEALING WITH THE DOMINANCE OF EU LAW91

Although the Constitutional Court respects the law of the European Union as an autonomous legal system which through article 10a of the Constitution gains a space to produce its eff ects within the Czech legal order, it added that these eff ects cannot be considered as unlimited. In the very beginning of its “European” doctrine (Sugar Quotas Case, Pl. ÚS 50/04) it presented its inten-tion to operate as the ultimate guardian of the inviolable values of Czech con-stitutionality which cannot be aff ected in any case so even not by the impacts of autonomous supranational legal order. Material core of the Constitution protected by the eternity clause acts as a general corrigendum to all excesses of public authorities, both national and supranational. The fact that the (im-plicit) openness to European integration is a constitutional principle does not exclude the necessity of material focus and this ultima ratio protection.

CCC explicitly referred to the fact that the doctrine of the primacy of Com-munity (now EU) law was not and is not a trouble-free concept. It stated that “Without the Constitutional Court being obliged to give it view on this ECJ doctrine, it cannot overlook the following circumstances. There are addition-al circumstances and reasons which must be considered when assessing this issue. First and foremost, the Constitutional Court cannot disregard the fact that several high courts of older Member States, including founding mem-bers […] have never entirely acquiesced in the doctrine of the absolute pre-cedence of Community law over the entirety of constitutional law; fi rst and foremost, they retained a certain reserve to interpret principles such as the democratic law-based state and the protection of fundamental rights.”

In response to that opinion, CCC adds that also in the Czech Republic it does not intend to accept the doctrine of absolute priority, according to which su-pranational law takes precedence also over national constitutional law. We have seen above that the basis for establishing the position of CCC with re-spect to the European legal issues lies within the interpretation of article 10a of Czech constitution. The doctrine of CCC is based on the concept of delega-tion of powers from the Czech Republic to the European Union. The Consti-tutional Court does not consider this delegation to be permanent and un-limited. Conversely, it states that: “[T]he delegation of a part of the powers of national organs may persist only so long as these powers are exercised in a manner that is compatible with the preservation of the foundations of state sovereignty of the Czech Republic, and in a manner which does not threaten

91 See further HAMUĽÁK, Ondrej. New Fighter in the Ring: The Relationship between European Union Law and Constitutional Law of Member States from the Perspective of the Czech Consti-tutional Court. Journal of Eurasian Law, 2011, vol. 3, no. 2, pp. 279-303.


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the very essence of the substantive law-based state. Should one of these con-ditions for the transfer of powers cease to be fulfi lled, that is, should develop-ments in the EC, or the EU, threaten the very essence of state sovereignty of the Czech Republic or the essential attributes of a democratic state governed by the rule of law, it will be necessary to insist that these powers be once again taken up by the Czech Republic’s state bodies.”

CCC repeatedly stressed its „as long as“ attitude also in its Lisbon fi ndings (Lisbon I, Pl. ÚS 19/08 and Lisbon II Pl. ÚS 29/09). It pointed out that openness and positive attitude towards the autonomy of EU law does not relieve its role of fi nal arbiter which leaves the open door for the monitoring of the activi-ties of the Union institutions in the future. It said that it will „[...] function as an ultima ratio and may review whether any act of Union bodies exceeded the powers that the Czech Republic transferred to the European Union under Art. 10a of the Constitution. However, the Constitutional Court assumes that such a situation can occur only in quite exceptional cases; these could be, in par-ticular, abandoning the identity of values and, as already cited, exceeding the scope of conferred competences.“

CCC thus for the future leaves free space for re-delegation of powers back to the Czech sovereign and for some sort of preclusion of eff ects and the en-forcement of EU law in a case in which it is in confl ict with the inviolable basis of Czech constitutionality. CCC sees itself as the fi nal arbiter called upon to re-view the European legislation (which is the result of the exercise of delegated powers) that is empowered to identify and select which of European norms will apply as long as they do not endanger the fundamental values of Czech constitutionality. In the event that the EU will take and exercise powers which were not (and, as defi ned in article 9 paragraph 2 of the Constitution, never could be) bestowed to it by the Czech sovereign, the result of these activi-ties will not have the characteristics which the Court of Justice granted to EU law. It may be concluded that CCC by its “as long as” approach raises a warn-ing fi nger towards the legislative power of the EU and notes that it intends to respect the eff ects and character of the EU law only as long as this law is compatible with the basic values of Czech constitutionalism. CCC builds the relation between EU law and the Czech constitutional law on the principle of review/scrutiny reservation. This reservation forms a basis for the review of “seceding” acts of the European Union. All acts of the European Union that could be considered as such “defl ections” must pass a test of conformity with the elementary requirements of Czech constitutional law as contained in ar-ticle 1, paragraph 1 of the constitution (protection of sovereignty and demo-cratic, rule of law based state) and in article 9, paragraph 2 of the constitution (Substantive Heart of Constitutionality).


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At the beginning of 2012 the Constitutional Court gave an important and surprising decision (Slovak Pensions case PL. ÚS 5/12). This decision in which the Constitutional Court directly opposed to the Court of Justice and used the „raised fi nger“ was classifi ed as uprising of the constitutional court vis-à-vis the EU law.

The core of the confl ict between the Constitutional Court and the Court of Justice lays in their diff erent view on the issue of pensions of Czech citizens that before the demise of Czechoslovakia worked for an employer based in Slovak part of the federation.

In Czech legal system there is a rule (promoted mainly by the CCC itself ) ac-cording to which citizens of the Czech Republic who were in the period un-til 31 December 1992 employed by an employer based in the Slovak part of common state, are entitled to a supplementary payment up to the amount of the expected (theoretical) pension that would have been granted if all the insurance periods from the time of the joint state were considered to be Czech periods. In contrast to that, the Court of Justice expressed the opinion (in the judgment C-399/09 Landtová) according to which payment of a sup-plement to old age which benefi ts solely the individuals of Czech nationality residing in the territory of the Czech Republic constitutes discrimination on the grounds of nationality which is prohibited under EU law. According to the Court of Justice EU law has to take priority over national rule on the supple-mentary payment notwithstanding that this rule was defi ned and upheld by the Constitutional Court.

The critical opinion of the Court of Justice became the central-point of a de-rogative decision of the Constitutional Court. It opposed the view of the Court of Justice and explicitly accused that in Landtová decision it went beyond the powers delegated by the Czech Republic to the European Union. Therefore for the fi rst time in history it used the reservation formulated in its previous „European“ cases. By the words of the CCC “there were excesses on the part of a European Union body that a situation occurred in which an act by a Eu-ropean body exceeded the powers that the Czech Republic transferred to the European Union under Art. 10a of the Constitution; this exceeded the scope of the transferred powers, and was ultra vires.”


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PART THREE“Where a rule of law is respected

there is a Constitution”

The last argument is connected with allegation according to which where a rule of law is respected (i.e. democratic system based on the rule of law and protection of the fundamental rights) there is a Constitution. In this last part of our journey of uncovering the complex constitutionality of European Union we will deal with the question of protection of rule of law and acceptation and protection of funda-mental rights at the supranational level.

Each system of governance which is able to regulate lives of human beings ne-cessitates internal system of brakes and restrictions, which serve as the basic guar-antee of the high level of justice and the protection of dignity, privacy and happy life of the individuals. Only then it can be considered legitimate, democratic and entitled to permanent existence.92 Only such a system can be described as consti-tutional one. When the ambition of the European Union is to bear signs of the con-stitutional order it is necessary to accept and actively create a supranational sys-tem of protection of rule of law fundamental rights of the individual.

We try to reassert our claim by in following three chapters focused on the role of the Court of Justice of the European Union as the guarantor of internal coherence of the Union’s legal order and one chapter focused on the place and role of the fundamental rights within the legal system of the European Union.

92 On this problem see LENAERTS, Koen, CAMBIEN, Nathan. The Democratic Legitimacy of the EU after the Treaty of Lisbon. In WOUTERS, Jan a kol. (eds). European Constitutionalism beyond Lis-bon. Antverps: Intersentia, 2009, pp. 185-207.


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The third part of our book is divided into the following chapters:

Chapter VII:Judicial Control over the Member States - the Infringement Actions

Chapter VIII: The Judicial control over European Institutions 109

Chapter IX:Autonomous Interpretation of an Autonomous Law – Preliminary ruling

procedure

Chapter X:The Fundamental Rights Protection within the European Union – the Core

of Material Constitutionality


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Chapter VII: Judicial Control over the Member States – the Infringement Actions

7.1 General CharacteristicsIn the sphere of international law it is not common that sovereign states may be directly and eff ectively sued for failure to fulfi l their obligations conferred upon them by their international commitments. However, according to the article 4 TFEU “the Member States shall take any appropriate measure, general or particu-lar, to ensure fulfi lment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”

The obligation of States is controlled and enforced, apart from other means, by a special action where the state, that allegedly failed to fulfi l obligations con-ferred upon it by the EU law, may be sued before the Court of Justice. This action is called an action for failure to fulfi l an obligation against the Member State or the infringement action.

The action for failure to fulfi l an obligation is a direct action whose objective is to defi ne on a declaratory basis whether the state fulfi lled the obligation conferred upon it by the Union law or not. The Court of Justice may also impose a fi ne on the Member State in order to urge that state to apply the EU law properly and to com-ply with the judgment. These proceedings represent one of the most frequent di-rect actions brought to the Court of Justice. The sole jurisdiction to decide the in-fringement actions rests with the Court of Justice (not the General Court).

7.2 The Objective of the ProceedingsThe aim of the proceedings is to clarify whether the Member State concerned failed to fulfi l an obligation conferred upon it by the EU law irrespective whether it is an obligation laid down in the primary or in the secondary EU legislation. Thus, it may concern the failure to fulfi l an obligation laid down by: • the founding Treaties (f.e. a prohibited obstacle to the free movement of

goods or persons); • general principles of EU law (f.e. the breach of EU human rights standards); • regulations; • directives (for instance a very common action is for a failure to implement

them in national legal orders properly and in time);


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• decisions (including disrespect to decisions of the Court that offi cially inter-pret EU law).

The State may commit the error by actions (or passivity – comp. non-imple-mentation of EU law) of any national body, whether of its legislative authorities, governmental bodies, administration authorities, activities of the regions or oth-er subjects with statutory duties. Under certain circumstances the State may also be found liable for the harmful activities of individuals that create obstacles to freedoms of the internal market if the State did not take appropriate measures to prevent harmful activities (see f.e. cases C-265/95 Commission v France93 and C-112/00 Schmidberger94; both cases concerned the free movement of goods).

7.3 Initiation of ProceedingsThe proceedings are initiated either by the Commission (see article 258 TFEU), or by another Member State (see article 259 TFEU). However, the overwhelming ma-jority of proceedings are initiated by the Commission as an institution with the supranational character and, thus, independent of the Member States. Thereby the Commission fulfi ls its role laid down by the article 17 of the TEU according to which it: “… shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union.”

This role of the Commission becomes signifi cantly evident particularly in the in-fringement actions. Still, the Commission is not obliged to investigate all alleged infringements – that would be impossible in practice, especially due to its limited staff capacity. It has a broad discretionary power in order to choose cases for in-vestigations and also in relation to actions that it decides to bring to the Court of Justice.

The initiation of infringement proceedings by one Member State against an-other Member State is very exceptional as it may cause tensions in diplomatic re-lations between the states. In case that the proceedings are initiated by a state, it has to bring the matter fi rst to the Commission before it brings the matter to the Court of Justice. The Commission (a kind of “mediator”) enables the states con-cerned to submit their observations to the other party’s arguments both orally and in writing and then the Commission delivers a reasoned opinion (within three months). Afterwards, the state may refer the matter to the Court of Justice.

Individuals, i.e. natural and legal persons do not have a capacity to initiate these proceedings; yet, they may supply the Commission with information and incen-tives regarding the breach of the Union law by the Member States. Those initia-tives have a signifi cant impact on the total number of investigations. Though indi-

93 Judgment of 9 December 1997, Commission / France (C-265/95, ECR 1997 p. I-6959).94 Judgment of 12 June 2003, Schmidberger (C-112/00, ECR 2003 p. I-5659).


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viduals themselves may not initiate this action, they may have recourse to courts of the Member States and sue for damages caused due to the breach of the EU law by the Member States (for instance by the non-implementation of directives). Conditions for the State’s liability are governed by the case-law of the Court of Justice and not all damages caused by the breach have to be made fully for good (especially if the Member States have a wide discretion how to implement EU law; see case C-6 a 9/90 Francovich95 and especially joined cases C-46/93 & C-48/93 Bras-serie du Pêcheur & Factortame III96).

7.4 Phases of the Proceedings The fi rst phase of the proceedings is an administrative (pre-litigation) phase; this phase may cover both the endeavour to clearly identify the breach of EU law (es-pecially if the Commission acts on the basis of an external initiative) and to make the Member State to refrain from the infringement in ‚a diplomatic way’. The prob-lem is communicated to the State in the form of an informal notifi cation. In case the question under investigation was based on the initiative of a third person (an individual), the Commission may try to help to settle the dispute. In order to solve the case as fast as possible the EU launched so called Pilot Project few years ago. Within this project the Commission informs the competent national authority (in the Czech Republic it is the government agent representing the Czech Republic before the Court of Justice) about the initiative of an individual concerning the in-fringement of the EU law and the national authority tries to solve the issue in co-operation with institutions responsible for the disputed issue before any formal proceeding against the Member State should be initiated.

If the case was not settled informally, the proceedings are initiated by a letter of formal notice (notifi cation) which is sent to the Member State. The state is given a right to issue its observations regarding the dispute (usually within 2 months). The purpose of the administrative phase is to enable the Member State to con-form with the requirements of the Treaty voluntarily. If this initiative is not suc-cessful or if the State does not explain in a satisfactory way to the Commission that its legislation/acting is in compliance with the EU law, the Commission deliv-ers a reasoned opinion wherein it delimits the subject of the allegedly infringed Union law as laid down in the letter of formal notice. The State is given a suffi cient period of time in order to remove the non-compliance based on the characteris-tics of the subject matter (usually 2 months); it may be given recommendations. The reasoned opinion must include a detail statement of grounds on which the

95 Judgment of 19 November 1991, Francovich and Bonifaci / Italy (C-6/90 and C-9/90, ECR 1991 p. I-5357).

96 Judgment of 5 March 1996, Brasserie du pêcheur / Bundesrepublik Deutschland and The Queen / Secretary of State for Transport, ex parte Factortame and others (C-46/93 and C-48/93, ECR 1996 p. I-1029).


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Commission bases its conclusions about the breach of the EU law. The opinion is not publicly available. The reasoned opinion is of great importance as it defi nes the subject matter of the potential action brought to the Court of Justice; only the infringement of the EU law stated and reasoned in the opinion may become a subject matter of the action. By the delivery of the reasoned opinion the admin-istrative phase is closed.

The Commission has an exclusive discretionary power regarding the initiation of the judicial (pre-litigation) phase, i.e. the action brought before the Court of Justice. Thus even though the Commission found out in its reasoned opinion that there was a breach of the EU law, it is not obliged to commence the litigation pro-cedure. In fact, the administrative phase is of great importance and only a small percentage of cases regarding the failure are subsequently brought to the Court of Justice. The Commission as the applicant and dominus litis may also discontinue the proceedings (f.e. because the Member State fulfi ls the obligation). In principle, it is the Commission that has to prove the failure of the Member State. The result of the proceedings is a declaratory decision of the Court of Justice regarding the existence of the infringement of the EU law. The Commission is successful in ma-jority of cases that reach the phase of the fi nal decision of the Court.

If the State fails to fulfi l the obligations authoritatively defi ned in the judgment, the Commission may again bring the matter to the Court of Justice and request an imposition of a fi ne (the possibility to impose a fi ne was introduced by the Maas-tricht Treaty). The Member State concerned has the right to submit its observa-tions. Before the changes by Lisbon Treaty the Commission had to undertake the full formal procedure again and deliver a reasoned opinion regarding this issue. After the Lisbon Treaty this is not required and a notifi cation to the Member State concerned is suffi cient; that state has a right to submit its observations. The Com-mission also suggests the amount of a lump sum or of a penalty payment to the Court of Justice. The criteria whether to impose a lump sum or penalty payment (or both) was clarifi ed especially in case C-304/02 Commission v France97.

C-304/02 Commission v France Commission v Greece

By its application, the Commission of the European Communities requests the Court to:

– declare that, by failing to take the necessary measures to comply with the judgment of 11 June 1991 in case C-64/88 Commission v France [1991] ECR I-2727, the French Republic has failed to fulfi l its obligations under ar-ticle 228 EC;

97 Judgment of 12 July 2005, Commission / France (C-304/02, ECR 2005 p. I-6263)


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– order the French Republic to pay to the Commission, into the account ‘Euro-pean Community own resources’, a penalty payment in the sum of EUR 316 500 for each day of delay in implementing the measures necessary to comply with the judgment in Case C-64/88 Commission v France, cited above, from delivery of the present judgment until the judgment in Case C-64/88 Com-mission v France has been complied with;

– order the French Republic to pay the costs.…80. The procedure laid down in article 228(2) EC has the objective of in-

ducing a defaulting Member State to comply with a judgment establishing a breach of obligations and thereby of ensuring that Community law is in fact applied. The measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective.

81. Application of each of those measures depends on their respective abil-ity to meet the objective pursued according to the circumstances of the case. While the imposition of a penalty payment seems particularly suited to induc-ing a Member State to put an end as soon as possible to a breach of obliga-tions which, in the absence of such a measure, would tend to persist, the im-position of a lump sum is based more on assessment of the eff ects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long pe-riod since the judgment which initially established it.

82. That being so, recourse to both types of penalty provided for in article 228(2) EC is not precluded, in particular where the breach of obligations both has continued for a long period and is inclined to persist.

91. The argument that, in departing from or going beyond the Commis-sion’s suggestions, the Court infringes a general principle of procedural law which prohibits courts from going beyond the parties’ claims is not well founded either. The procedure provided for in article 228(2) EC is a special ju-dicial procedure, peculiar to Community law, which cannot be equated with a civil procedure. The order imposing a penalty payment and/or a lump sum is not intended to compensate for damage caused by the Member State con-cerned, but to place it under economic pressure which induces it to put an end to the breach established. The fi nancial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct.


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103. As to those submissions, while it is clear that a penalty payment is like-ly to encourage the defaulting Member State to put an end as soon as pos-sible to the breach that has been established (Case C-278/01 Commission v Spain, paragraph 42), it should be remembered that the Commission’s sug-gestions cannot bind the Court and are only a useful point of reference (Case C-387/97 Commission v Greece, paragraph 89). In exercising its discretion, it is for the Court to set the penalty payment so that it is appropriate to the cir-cumstances and proportionate both to the breach that has been established and to the ability to pay of the Member State concerned (see, to this eff ect, Case C-387/97 Commission v Greece, paragraph 90, and Case C-278/01 Com-mission v Spain, paragraph 41).

104. In that light, and as the Commission has suggested in its communica-tion of 28 February 1997, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and eff ectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the eff ects of failure to comply on private and public interests and to the urgency of get-ting the Member State concerned to fulfi l its obligations (Case C-387/97 Com-mission v Greece, paragraph 92).

113. In light of all of the foregoing, the French Republic should be ordered to pay to the Commission, into the account ‘European Community own re-sources’, a penalty payment of 182.5 x EUR 316 500, that is to say of EUR 57 761 250, for each period of six months from delivery of the present judgment at the end of which the judgment in Case C-64/88 Commission v France has not yet been fully complied with.

Imposition of a lump sum114. In a situation such as that which is the subject of the present judgment,

in light of the fact that the breach of obligations has persisted for a long pe-riod since the judgment which initially established it and of the public and private interests at issue, it is essential to order payment of a lump sum (see paragraph 81 of the present judgment).

115. The specifi c circumstances of the case are fairly assessed by setting the amount of the lump sum which the French Republic will have to pay at EUR 20 000 000.

The criteria for setting up the amount of the penalty payment were also clarifi ed by the Court of Justice in case C-387/97 Commission v Greece98.

98 Judgment of 4 July 2000, Commission / Greece (C-387/97, ECR 2000 p. I-5047).


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C-387/97 Commission v Greece, ECR 2000 I-05047

By application lodged at the Court Registry on 14 November 1997, the Com-mission of the European Communities brought an action under article 171 of the EC Treaty (now article 228 EC) for a declaration that, by failing to take the neces-sary measures to comply with the judgment of the Court of 7 April 1992 in Case C-45/91 Commission v Greece [1992] ECR I-2509 and, in particular, by still not having drawn up or implemented the plans necessary for the disposal of waste and toxic and dangerous waste from the area concerned without endangering human health and without harming the environment, the Hellenic Republic has failed to fulfi l its obligations under article 171 of the EC Treaty (now article 228 EC), and for an order requiring the Hellenic Republic to pay to the Commission, into the account ‘EC own resources’, a daily penalty payment of ECU 24 600 for each day of delay in implementing the measures necessary to comply with the judgment in Case C-45/91, from notifi cation of the present judgment.

…90. First, since the principal aim of penalty payments is that the Member

State should remedy the breach of obligations as soon as possible, a penalty payment must be set that will be appropriate to the circumstances and pro-portionate both to the breach which has been found and to the ability to pay of the Member State concerned.

91. Second, the degree of urgency that the Member State concerned should fulfi l its obligations may vary in accordance with the breach.

92. In that light, and as the Commission has suggested, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and eff ectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the eff ects of failure to comply on private and public interests and to the urgency of getting the Member State concerned to fulfi l its obligations.

93. In the present case, having regard to the nature of the breaches of obli-gations, which continue to this day, a penalty payment is the means best suit-ed to the circumstances.

94. As regards the seriousness of the infringements and in particular the ef-fects of failure to comply on private and public interests, the obligation to dis-pose of waste without endangering human health and without harming the environment forms part of the very objectives of Community environmental policy as set out in article 130r of the EC Treaty (now, after amendment, arti-cle 174 EC). The failure to comply with the obligation resulting from article 4 of Directive 75/442 could, by the very nature of that obligation, endanger hu-man health directly and harm the environment and must, in the light of the other obligations, be regarded as particularly serious.


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Therefore, when defi ning the proportionality of the sanction, the Commission has to take into consideration the seriousness of the breach of the law, how long it lasted and the need of the deterring eff ect of the sanction in order to prevent recurrence of the breach. The sanction has to be for the Member States foresee-able, proportionate and, thus, adequate in regard to the circumstances and failure and non-discriminatory in the relation to similar failure of other Member States. It is also necessary to take into consideration the solvency of the particular Mem-ber State. The Commission has formed a system how to calculate sanctions where various economic aspects are taken into account. The fi rst fi ne was imposed on Greece in the above-mentioned case C-387/97 Commission v Greece.

The Lisbon Treaty exerted the increasing pressure on the proper implementa-tion of the Union law and in its article 260 subpar. 3 TFEU it enabled the Com-mission to specify the amount of the lump sum or the penalty payment directly when it initiates the litigation procedure before the Court of Justice concerning the breach. This may be used only in case the State failed to notify legislation transposing an EU directive. The Commission has a discretionary power to join the proceedings on infringement and sanctions. However, the Commission itself stated that it considers in principle appropriate to apply this instrument in all cas-es regarding the failure of the State to notify transposition measures. If the Com-mission exploits this possibility, the Court of Justice makes the decision about the amount of the lump sum or the penalty payment jointly with the declaration of the infringement; the lump sum or the penalty payment may not exceed amount specifi ed by the Commission.


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Chapter VIII: The Judicial control over European Institutions

8.1 Validity of Union’s Action – General OverviewThe validity of the EU law may be scrutinised in several types of proceedings. It is via: • a direct action for review of validity (article 263 TFEU); • indirect actions, namely: o the preliminary ruling procedure (article 267 TFEU) wherein the review

procedure is initiated by courts of Member States in case of any doubts re-garding the validity of the EU law which they should apply in the dispute,

o plea of illegality (article 277 TFEU) which is raised in the course of direct procedures before the Court of Justice; therefore, this review is “adjacent“ to other (main) proceedings.

In principle those types of proceedings do not overlap due to the diff erent cir-cle of subjects entitled to lodge the action, the phases when the proceedings may take place and diff erent consequences of the declaration of invalidity. More or less, they complement each other and form a coherent system of the validity re-view. The action for annulment is discussed in this chapter; the invalidity proceed-ings within the preliminary ruling and the plea for invalidity are clarifi ed in the next chapter.

8.2 The Action for Annulment99

8.2.1 The Scope of ReviewAccording to article 263 TFEU the General Court (exceptionally the Court of Justice if acting as a court of fi rst instance) shall review the legality of: • legislative acts; according to article 289 subpar. 3 TFEU legal acts adopted in

the legislative procedure shall constitute legislative acts (the ordinary and special legislative procedure); typically this action may lead to review of reg-ulations and directives;

• acts of the Council, of the Commission and of the European Central Bank other than recommendations and opinions; i.e. it concerns acts of these in-stitutions that were not adopted in the legislative procedure (for instance

99 For detailed Analysis of this Action see CRAIG, Paul. Legality, Standing and Substantial Review in Community Law. Oxford Journal of Legal Studies, 1994, Vol. 14, pp. 507-537.


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decisions of the Commission concerning infringement of EU competition rules);

• acts of the European Parliament and of the European Council intended to produce legal eff ects vis-à-vis third parties; whereas the possibility to con-test the validity of acts of the European Parliament was already introduced earlier by the Treaty on the EU based on the foregoing case-law of the Court of Justice, see especially case 294/83 Les Verts100 the European Council be-came formally the institution of the EU as late as the Treaty of Lisbon and the same Treaty could formally introduce the possibility to review its acts. This way how to raise a defence against acts adopted by the highest representa-tives of the Member States defi nitely enforces the principle of rule of law in the EU;

• the legality of acts of other institutions, EU bodies and agencies intended to produce legal eff ects vis-à-vis third parties; the possibility to seek the invalid-ity of these acts was indisputably laid down by the Lisbon Treaty especially in relation to numerous EU agencies that often adopt important decisions which may interfere with the rights/duties of other subjects.

In its earlier case-law the Court of Justice has already defi ned the subject mat-ter of this action broadly and it admitted the review of validity of acts not explic-itly listed in the former article 230 TEC unless those had no legal eff ects (see es-pecially the case 22/70 ERTA101). From this point of view the Lisbon Treaty is also a consolidation of the earlier case-law. However, the actions against acts with no legal eff ects vis-à-vis third parties remain inadmissible (various declarations, inter-nal instructions and confi dential documents – f.e. the letter of formal notice of the Commission addressed to the Member States adopted in the framework of the in-fringement proceedings).

8.2.2 Specifi cs of Validity Review in Some AreasEven after the adoption of the Lisbon Treaty the jurisdiction of the Court of Justice remained in some areas limited; this concerned especially the Common Foreign and Security Policy (the former second EU pillar). There the Court only secures that in the process of the implementation of this policy there is no intrusion into other competences of the Union (comp. article 24 TEU read together with the article 40 TEU). Further, in relation to this policy the Court reviews the legality of decisions imposing restrictive measures against natural or legal persons (see for instance C402/05 P and C415/05 P Kadi102 that concerned the annulment of the decision on freezing funds of persons linked to the Usama bin Laden, the Al-Qaeda network and the Taliban).

100 Judgment of 23 April 1986, Les Verts / Parliament (294/83, ECR 1986 p. 1339).101 Judgment of 31 March 1971, Commission / Council (22/70, ECR 1971 p. 263).102 Judgment of 3 September 2008, Kadi and Al Barakaat International Foundation / Council and

Commission (C-402/05 P and C-415/05 P, ECR 2008 p. I-6351).


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Another exception applies to the sphere of the Police and Judicial Co-operation in Criminal Matters (the former third EU pillar). The validity review of acts adopted in this area is generally possible except the review of validity or proportionality of operations carried out by the police or other law-enforcement services of Mem-ber States 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 (comp. article 276 TFEU).

The Court of Justice may also not review the validity of EU primary law. EU pri-mary law is of constitutional character and it may be amended only through pro-cedures set up in the founding Treaties (comp. by analogy e.g. the position of the Czech Constitutional Court that also has no competence to review the validity of the Czech constitutional rules).

Lastly, the Court of Justice may not review the validity of the national law. The compatibility of the national and EU law is scrutinised by the Court of Justice in the action for failure to fulfi l an obligation by Member States (Article 258 TFEU). Even in this procedure the Court of Justice may not rule on the validity of the na-tional law; it is the subject matter of national review mechanisms (e.g. the repeal of regulations by national parliaments or by constitutional courts). National law also does not become automatically invalid in case of its non-compliance with the Union law.

8.2.3 Grounds for AnnulmentAll three means for review of validity share common grounds for invalidity; those are the following: • the lack of competence of the institution that issued the act; this ground ap-

plies e.g. to disputes between EU institutions and the Member States regard-ing the legal basis for the adoption of the contested legislative act or the choice of proper legislative procedure (as the position of institutions varies in diff erent forms of legislative process) or the excess in relation to extent of powers conferred to the EU institutions;

• infringement of essential procedural requirements that are linked to the pro-cedure for adopting a particular act; it may concern both the lack of reason-ing/grounds of the disputed decision or the omission of obligatory consulta-tion or obligatory hearing of persons;

• infringement of the Treaties or any rule of law relating to their application; it includes a wide range of diverse cases wherein the ‘superior’ law was in-fringed when issuing an act (e.g. the infringement of EU primary law when issuing the secondary legislation or the infringement of the secondary legis-lation when issuing the implementing acts), including the general principles of law (e.g. the human rights protection) or principles of proportionality and anti-discrimination;

• misuse of powers.


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8.2.4 Locus Standi – Privileged and Semi-privileged Applicants

The privileged applicants, i.e. the Member States, European Parliament, Council and Commission are the applicants with unlimited legal standing. They may bring the action before the Court of Justice without any need to prove the substantial interest in the matter. Unlike all other privileged applicants, the European Parlia-ment was given this exclusive position as late as the Treaty of Nice.

The Court of Auditors, the European Central Bank and the Committee of the Regions are ranged among semi-privileged applicants. The Committee of Region was listed in this group by the Lisbon Treaty and the European Parliament by the Maastricht Treaty. In relation to the European Parliament it was a consolidation of the preceding recognition of its right to bring the action in the case-law of the Court of Justice (see esp. case 70/88 European Parliament v Council103). The Euro-pean Parliament was listed into this group until the Treaty of Nice by which it was moved into the group of privileged applicants (as stated above). Generally, the semi-privileged applicants may bring the action in order to protect their rights (prerogatives); this concerns f.e. cases when a particular act was adopted using a wrong legal basis; consequently, the institution concerned had a weaker posi-tion in the legislative process and its competences within process of the adoption of this act were ignored.

8.2.5 Locus Standi – Non-privileged ApplicantsFinally, the third group comprises the most complicated group: the non-privileged applicants, i.e. natural and legal persons. Those may bring an action: a) against acts addressed to them b) against acts of i) direct and ii) individual concern to them

c) and against a regulatory act which is of direct concern to them and does not entail implementing measures. This last category was newly introduced by the Treaty of Lisbon.

Under the original wording of the founding Treaties individuals could question merely a decision or a decision in the form of a regulation (that is in fact a hidden decision). However, subsequently the Court of Justice has interpreted the disput-able acts extensively and did not strictly follow the formal classifi cation of EU legal acts. The Lisbon Treaty refl ected this case-law and expressis verbis admitted the ac-tions against all acts.

103 Judgment of 22 May 1990, Parliament / Council (70/88, ECR 1990 p. I-2041).


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ad a) action against acts directly addressed to the applicantFirst of all, individuals may question any act directly addressed to them. A typi-

cal example is a decision of the Commission on the infringement of EU compe-tition rules imposing a fi ne. The locus standi in case of this category is not con-troversial and it is regarded as an expression of the right to the eff ective judicial protection.

ad b) action against acts addressed to another subject other than the applicantIn case of acts addressed to another subject, the applicant is entitled to lodge

the action only if it can prove that the act concerns him directly. Such a situation may occur if the act concerned infl uences his legal position and it does not leave any discretionary power to the addressees of the particular act upon whom the obligation to implement this act is conferred.

The second condition is to prove that the person concerned is individually concerned by the act. It was the interpretation of this second condition that be-came the subject of various disputes. The Court of Justice has interpreted it rath-er restrictively; in that regard a precedential decision was delivered quite early in case 25/62 Plaumann104.

Case 25/62 Plaumann & Co. v CommissionThe case 25/62 Plaumann was the fi rst decision defi ning the criteria for “indi-

vidual concern”. The company Plaumann & Co., importer of clementines into Ger-many, questioned the validity of the Commission decision addressed to Germany that refused to authorise Germany to partially suspend customs duties applicable to mandarins and clementines imported from third (e.g. non-EU) countries. This decision was addressed to Germany, not directly to the Plaumann company. The Plaumann company acted as a non-privileged applicant and claimed to be as an importer directly and individually concerned by the contested decision. In relation to the defi nition of “individual concern” the Court of Justice stated that: ”Persons other than those to whom a decision is addressed may only claim to be individu-ally concerned if that decision aff ects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are diff erentiated from all other persons and by virtue of these factors distinguishes them individu-ally just as in the case of the person addressed … the applicant is aff ected by the disputed decision as in importer of clementines, that is to say, by reason of a com-mercial activity which may at any time be practised by any person and is not there-fore such as to distinguish the applicant in relation to the contested decision as in the case of the addressee.” This is the reason why the Court of Justice declared the action as inadmissible.

104 Judgment of 15 July 1963, Plaumann / Commission of the EEC (25/62, ECR 1963 p. 95).


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Case 106-107/63 Toepfer and Getreide-Import Gesellschaft v Commission105

Decision in case Toepfer and Getreide-Import Gesellschaft v Commission concerns a typical example of a situation when it is possible to question the decision ad-dressed to another person. The grain dealers applied for import licences by na-tional authorities on October 1, 1963 when no import charge applied. It was obvi-ous to these authorities that the dealers may get a signifi cantly benefi t and they rejected their applications. The Commission has subsequently issued a decision regarding the introduction of the charge since October 2, and it acknowledged the rejection of the application since October 1, inclusive. Even though this deci-sion was not addressed directly to the importers, according to the Court of Justice it aff ected exclusively those who applied for licences on October 1. As the import-ers formed a closed and clearly distinguished group, they were entitled to bring the action.

Case 41-44/70 International Fruit Company106

In this case the Court of Justice admitted actions against regulations linked to cases concerning the closed set of past events. This case concerned importers of apples to the Community from third (non-member) states. They submitted appli-cations for import licences; their applications were forwarded to the Commission that issued a regulation linked to those licences; the applications were rejected. The Court of Justice pointed out that in the moment when the regulation con-cerned was adopted the number of applicants who might be concerned was al-ready closed, and no new application could be submitted. Thus, the regulation was not of a general character and it had to be regarded as a set of individual deci-sions taken by the Commission. The action against the regulation was admissible but it was not successful in merits.

Case 789-790/79 Calpak SpA a Societa Emiliana Lavorazione Fruttona v Com-mis sion107

Regarding regulations and the necessity to prove the individuals concern, it is possible to mention especially the case 789-790/79 Calpak. Applicants brought the action for annulment against a regulation of the Commission that granted the production aid for pear growers. According to the previous regulation the produc-tion support calculation was based on the production quantity for the last three years, according to the new regulation this support was based on the produc-tion quantity in the previous year; actually the production of that year was below the average. The Court of Justice concluded that the act concerned was by na-ture a regulation of general application applicable to objectively determined situ-

105 Judgment of 1 July 1965, Toepfer / Commission of the EEC (106 and 107-63, ECR 1965 p. 405).106 Judgment of 13 May 1971, International Fruit Company and others / Commission (41 to 44-70,

ECR 1971 p. 411).107 Judgment of 17 June 1980, Calpak / Commission (789 and 790/79, ECR 1980 p. 1949).


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ations and it produces legal eff ects with regard to categories of persons described in a generalised and abstract manner. Thus, the individuals concerned could not bring the action against the regulation.

Case C-309/89 Codorniu108

The regulation of a general nature was a subject matter also of the judgment in case C-309/89 Codorniu. The subject matter of the action was a regulation that re-served the use of the term crémant to quality sparkling wines coming from France and Luxembourg. The traditional Spanish producer of quality sparkling wines was a holder of the trade mark ‘Gran Cremant de Codorniu’ since 1924 and called for annulment of this regulation. The Court of Justice concluded that this regulation was of a legislative nature and, thus, concerned generally all traders. However, at the same time it admitted that the company Codorniu may be individually con-cerned as it has a diff erent position to other producers. As its specifi c rights were infringed, the conditions of the Plaumann formula were met, the action was ad-missible and later also successful.

Finally, it is easier for individuals to prove the locus standi in case of actions against regulations in some specifi c areas, such as the anti-dumping, the EU com-petition law or EU rules on state aids.

ad c) The action against regulatory acts of general applicationThe third category introduced by the Lisbon Treaty enables the non-privileged

applicants to initiate validity review of regulatory acts that concern them directly if they do not require the adoption of implementing measures. Thus, the non-priv-ileged applicants do not have to prove that they are individually concerned by this act. However, the Treaty does not give any defi nition of the term ‘regulatory act’. It was disputable whether it would cover legislative acts or only non-legislative acts. If it would enable to review legislative acts, it would help to eliminate the prob-lematic locus standi against regulations, because the regulations are regarded to be acts that usually do not require any other implementation at the national level. If it would cover only non-legislative acts, the scope of application of this new pro-vision would be signifi cantly narrowed. The Court of Justice, respectively the Gen-eral Court, had a chance to rule on this issue in few recent (post-Lisbon) cases. One of them is case T-18/10 Inuit Tapiriit Kanatami109.

108 Judgment of 18 May 1994, Codorniu / Council (C-309/89, ECR 1994 p. I-1853).109 Order of 30 April 2010, Inuit Tapiriit Kanatami and others / Parliament and Council (T-18/10 R,

ECR 2010 p. II-75).


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Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council

The case concerned a validity review of Regulation (EC) No 1007/2009 on trade in seal products, the purpose of which is to establish harmonised rules concern-ing the placing on the market of seal products. The action was initiated by hunt-ing associations and private persons. The General Court had a chance to decide whether the contested regulation can be regarded as a regulatory act and conse-quently, the plaintiff s would have locus standi to bring the action.

42. The fourth paragraph of article 263 TFEU … permits the institution of proceedings against individual acts, against acts of general application which are of direct and individual concern to a natural or legal person and against a regulatory act which is of direct concern to them and does not entail im-plementing measures. It is apparent from the ordinary meaning of the word ‘regulatory’ that the acts covered by that third possibility are also of general application.

43. Against that background, it is clear that that possibility does not relate to all acts of general application, but to a more restricted category, namely regulatory acts.

44. The fi rst paragraph of article 263 TFEU sets out a number of categories of acts of the European Union which may be subject to a review of legali-ty, namely, fi rst, legislative acts and, secondly, other binding acts intended to produce legal eff ects vis-à-vis third parties, which may be individual acts or acts of general application.

45. It must be concluded that the fourth paragraph of article 263 TFEU, read in conjunction with its fi rst paragraph, permits a natural or legal person to institute proceedings against an act addressed to that person and also (i) against a legislative or regulatory act of general application which is of direct and individual concern to them and (ii) against certain acts of general applica-tion, namely regulatory acts which are of direct concern to them and do not entail implementing measures.

46. Furthermore, such an interpretation of the word ‘regulatory’, and of the equivalent word in the diff erent language versions of the FEU Treaty, as op-posed to the word ‘legislative’, is also apparent from a number of other provi-sions of the FEU Treaty, in particular article 114 TFEU, concerning the approxi-mation of the ‘provisions laid down by law, regulation or administrative action in Member States’.

47. In that regard, it is necessary to reject the applicants’ argument that the distinction between legislative and regulatory acts, as proposed by the Par-liament and the Council and upheld in paragraphs 42 to 45 above, consists of adding the qualifi er ‘legislative’ to the word ‘act’ with reference to the fi rst


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two possibilities covered by the fourth paragraph of article 263 TFEU. As is ap-parent from the conclusion drawn in paragraph 45 above, the word ‘act’ with reference to those fi rst two possibilities covers not only an act addressed to the natural or legal person, but also any act, legislative or regulatory, which is of direct and individual concern to them. In particular, legislative acts and regulatory acts entailing implementing measures are covered by that latter possibility.

48. Furthermore, it must be stated that, contrary to the applicants’ claim, it is apparent from the wording of the fi nal part of the fourth paragraph of article 263 TFEU that the objective of the Member States was not to limit the scope of that provision solely to delegated acts within the meaning of article 290 TFEU, but more generally, to regulatory acts.

49. In the second place, the interpretation of the fourth paragraph of arti-cle 263 TFEU upheld in paragraphs 42 to 45 above is borne out by the history of the process which led to the adoption of that provision, which had initial-ly been proposed as the fourth paragraph of article III-365 of the draft Treaty establishing a Constitution for Europe. It is apparent, inter alia from the cover note of the Praesidium of the Convention (Secretariat of the European Con-vention, CONV 734/03) of 12 May 2003, that, in spite of the proposal for an amendment to the fourth paragraph of article 230 EC mentioning ‘an act of general application’, the Praesidium adopted another option, that mention-ing ‘a regulatory act’. As is apparent from the cover note referred to above, that wording enabled ‘a distinction to be made between legislative acts and regulatory acts, maintaining a restrictive approach in relation to actions by in-dividuals against legislative acts (for which the “of direct and individual con-cern” condition remains applicable)’.

50. In the third place, on account of the choice of such wording in the fourth paragraph of article 263 TFEU, it must be observed that the purpose of that provision is to allow a natural or legal person to institute proceedings against an act of general application which is not a legislative act, which is of direct concern to them and does not entail implementing measures, thereby avoid-ing the situation in which such a person would have to infringe the law to have access to the court (see cover note of the Praesidium of the Convention, referred to above). As is apparent from the analysis in the preceding para-graphs, the wording of the fourth paragraph of article 263 TFEU does not al-low proceedings to be instituted against all acts which satisfy the criteria of direct concern and which are not implementing measures or against all acts of general application which satisfy those criteria, but only against a specifi c category of acts of general application, namely regulatory acts. Consequent-ly, the conditions of admissibility of an action for annulment of a legislative act are still more restrictive than in the case of proceedings instituted against a regulatory act.


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…56. In view of the foregoing, it must be held that the meaning of ‘regulatory

act’ for the purposes of the fourth paragraph of article 263 TFEU must be un-derstood as covering all acts of general application apart from legislative acts. Consequently, a legislative act may form the subject-matter of an action for annulment brought by a natural or legal person only if it is of direct and indi-vidual concern to them.

8.2.6 The Criticism on the Restricted Locus Standi of Individuals

The strict application of locus standi of individuals and the necessity to prove the individual concern as defi ned by the Plaumann case has often been criticised both by academic literature and judicial practice.110 The most discussed conclusions in this connection were well summarised in the opinion of Advocate General Jacobs in the case C-50/00P Unión de Pequeños Agricultores (UPA)111. The UPA was a trade association representing the interests of small Spanish agricultural businesses. The case questioned the validity of a Council regulation that had reformed the previous system of the common organisation of the market in olive oil. The new regulation cancelled the consumption aid as well as the special aid for the small producers. The Spanish oil producers were signifi cantly concerned; however, they could not question this EU regulation before national (Spanish) courts; so they brought an action for annulment. The General Court (the Court of First Instance at that time) dismissed the action by order as clearly unfounded as the applicants lacked standing to bring proceedings; it was a real regulation that was generally binding, it was of normative nature and, thus, could not be regarded as a hidden decision. In the appeal proceedings, the Advocate-General Jacobs in his opinion suggested to modify the interpretation of the individual’s concern.

Case C-50/00P Unión de Pequeños Agricultores v Council of the European Union – opinion of Advocate-General Jacobs

102. It may be helpful to summarise the reasons for that view, as follows:(1) The Court’s fundamental assumption that the possibility for an indi-

vidual applicant to trigger a reference for a preliminary ruling provides full and eff ective judicial protection against general measures is open to serious objections:

110 See for example ALBORS-LLORENS, Albertina. The Standing of Private Parties to Challenge Com-munity Measures: Has the European Court Missed the Boat? Cambridge Law Journal, 2003, Vol. 62, No. 1 pp. 72 et al.

111 Judgment of 25 July 2002, Unión de Pequeños Agricultores / Council (C-50/00 P, ECR 2002 p. I-6677).


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– under the preliminary ruling procedure the applicant has no right to de-cide whether a reference is made, which measures are referred for review or what grounds of invalidity are raised and thus no right of access to the Court of Justice; on the other hand, the national court cannot itself grant the desired remedy to declare the general measure in issue invalid;

– there may be a denial of justice in cases where it is diffi cult or impossi-ble for an applicant to challenge a general measure indirectly (e.g. where there are no challengeable implementing measures or where the appli-cant would have to break the law in order to be able to challenge ensuing sanctions);

– legal certainty pleads in favour of allowing a general measure to be re-viewed as soon as possible and not only after implementing measures have been adopted;

– indirect challenges to general measures through references on validity under article 234 EC present a number of procedural disadvantages in comparison to direct challenges under article 230 EC before the Court of First Instance as regards for example the participation of the institution(s) which adopted the measure, the delays and costs involved, the award of interim measures or the possibility of third party intervention.

(2) Those objections cannot be overcome by granting standing by way of exception in those cases where an applicant has under national law no way of triggering a reference for a preliminary ruling on the validity of the contested measure. Such an approach

– has no basis in the wording of the Treaty; – would inevitably oblige the Community Courts to interpret and apply

rules of national law, a task for which they are neither well prepared nor even competent;

– would lead to inequality between operators from diff erent Member States and to a further loss of legal certainty.

(3) Nor can those objections be overcome by postulating an obligation for the legal orders of the Member States to ensure that references on the valid-ity of general Community measures are available in their legal systems. Such an approach would

– leave unresolved most of the problems of the current situation such as the absence of remedy as a matter of right, unnecessary delays and costs for the applicant or the award of interim measures;

– be diffi cult to monitor and enforce; and – require far-reaching interference with national procedural autonomy.


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(4) The only satisfactory solution is therefore to recognise that an applicant is individually concerned by a Community measure where the measure has, or is liable to have, a substantial adverse eff ect on his interests. That solution has the following advantages:

– it resolves all the problems set out above: applicants are granted a true right of direct access to a court which can grant a remedy, cases of pos-sible denial of justice are avoided, and judicial protection is improved in various ways;

– it also removes the anomaly under the current case-law that the greater the number of persons aff ected the less likely it is that eff ective judicial re-view is available;

– the increasingly complex and unpredictable rules on standing are re-placed by a much simpler test which would shift the emphasis in cases before the Community Courts from purely formal questions of admissibil-ity to questions of substance;

– such a re-interpretation is in line with the general tendency of the case-law to extend the scope of judicial protection in response to the growth of powers of the Community institutions (ERTA, Les Verts, Chernobyl);

(5) The objections to enlarging standing are unconvincing. In particular: – the wording of article 230 EC does not preclude it; – to insulate potentially unlawful measures from judicial scrutiny cannot be

justifi ed on grounds of administrative or legislative effi ciency: protection of the legislative process must be achieved through appropriate substan-tive standards of review;

– the fears of over-loading the Court of First Instance seem exaggerated since the time-limit in article 230(5) EC and the requirement of direct con-cern will prevent an insuperable increase of the case-load; there are pro-cedural means to deal with a more limited increase of cases.

(6) The chief objection may be that the case-law has stood for many years. There are however a number of reasons why the time is now ripe for change. In particular:

– the case-law in many borderline cases is not stable, and has been in any event relaxed in recent years, with the result that decisions on admissibil-ity have become increasingly complex and unpredictable;

– the case-law is increasingly out of line with more liberal developments in the laws of the Member States;

– the establishment of the Court of First Instance, and the progressive trans-fer to that Court of all actions brought by individuals, make it increasingly appropriate to enlarge the standing of individuals to challenge general measures;


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– the Court’s case-law on the principle of eff ective judicial protection in the national courts makes it increasingly diffi cult to justify narrow restrictions on standing before the Community Courts.

103. For all of those reasons I conclude that an individual should be regard-ed as individually concerned within the meaning of the fourth paragraph of article 230 EC by a Community measure where, by reason of his particular cir-cumstances, the measure has, or is liable to have, a substantial adverse eff ect on his interests.

Therefore, according to Jacobs the Court of Justice should admit the action for annulment if the act has substantial adverse eff ect on the position of the individual concerned. However, the Court did not follow his opinion and applied the tradi-tional Plaumann test.

To summarize, as was shown above, the reforms by the Lisbon Treaty were only of a partial help. The Tribunal did not use the new wording of the Treaty to broad-en the locus standi of individuals and to open the litigation for individuals to real regulations of legislative nature.

8.2.7 The Period for Bringing an Action, Eff ects of the Annulment

There is a strictly defi ned two months period for bringing the action pursuant to circumstances of the publication of the measure, or of its notifi cation to the plain-tiff , or, in the absence thereof, of the day on which it came to the knowledge of the plaintiff . This period signifi cantly restricts the possibility for bringing the action. After the period expires, it is possible to call into question the validity of the act only by indirect means.

The declaration of invalidity within the framework of the action for annulment has eff ects erga omnes and ex tunc (that is since coming into force of the act con-cerned). According to article 264 TFEU the Court of Justice may decide that some eff ects of the act declared void shall be considered as defi nitive and may not be challenged before courts. The requirement to preserve the legal certainty of acts based on the void acts may be one of the possible reasons for this statement of the Court. It may also decide that this act is regarded as valid until its amendment.

8.3 The Preliminary Ruling and the Validity ReviewAs outlined in the foregoing chapter, another way how to review the validity of EU legislation is through the preliminary ruling procedure. More detailed information regarding these proceedings can be found in the following chapter; nevertheless,


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in the context of validity review it is useful to present some specifi cs of the validity review in the framework of these proceedings.

Every national court may or (if deciding as a court of last instance) must refer a matter to the Court of Justice by means of the reference for a preliminary ruling in cases of doubt regarding the validity of the Union law. National court is obliged to apply the EU law provisions fully and give them precedence until this provision has been cancelled (by the law-maker of the Union or the Court of Justice). How-ever, it was not clear whether national courts themselves may in cases of doubt consider the act of the EU law invalid. The Court of Justice has formulated its au-thoritative apprehension of this question in case 314/85 Foto-Frost112; it puts it in the following words:

Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost

14. Those courts may consider the validity of a Community act and, if they consider that the grounds put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the mea-sure is completely valid…

15. On the other hand, those courts do not have the power to declare acts of the Community institutions invalid … the main purpose of the powers ac-corded to the court by article 177 is to ensure that Community law is applied uniformly by national courts. That requirement of uniformity is particularly imperative when the validity of a Community act is in question. Divergences between courts on the Member States as to the validity of Community acts would be liable to place in jeopardy the very unity of the Community legal or-der and detract from the fundamental requirement of legal certainty.

The grounds of invalidity are the same as in the direct action for annulment (see article 263 subpar. 2 TFEU). The decision of the Court of Justice in the preliminary ruling procedure has erga omnes and ex tunc legal eff ects. In its decision it may re-strict the eff ects of its decision in time the same way as in case of the action for an-nulment (compare article 264 TFEU). As was already mentioned the proceedings may be initiated exclusively by the national court and individuals in dispute before national court have no capacity to do it. However, if the conditions for obligatory preliminary ruling procedure are fulfi lled, the national court is obliged to initiate it. Otherwise the court infringes the EU law and Member State concerned may be found liable for damages caused thereby. The obligatory ruling procedure is also supported by the right to a lawful judge guaranteed by the Czech Charter of Fun-damental Rights (see case II. ÚS 1009/08 Pfi zer of the Czech Constitutional Court).

112 Judgment of 22 October 1987, Foto-Frost / Hauptzollamt Lübeck-Ost (314/85, ECR 1987 p. 4199).


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Contrary to the direct action for annulment, there is no time limit for initiation of the preliminary ruling procedure and the act concerned may be declared void even after a number of years after its adoption. This is due to the fact that the pre-liminary ruling procedure is initiated by national courts that are deciding a dis-pute which may raise long after the adoption of the contested EU law act.

8.4 Plea of IllegalityThe plea of illegality set up in article 177 TFEU is another instrument for validity review. It is an indirect action, i.e. that plea may be raised only in context of other proceedings where the adjacent review of validity may aff ect the outcome of the case. The typical situation involves the applicant who seeks for review of validity of a decision that was issued on the basis of a regulation (e.g. an act of general ap-plication) whose validity it may not directly challenge due to the restricted locus standi in the action for annulment.

According to the article 277 TFEU any party of the proceedings may submit the plea of illegality. Even though this plea is very import for non-privileged applicants (due to their limited possibility of the direct review), also privileged applicants - Member States as well as the institutions of the European Union - may submit this plea. In principle it is not possible to submit the plea in case that those who would like to have recourse to it have not used their right to challenge the particular act directly. This condition concerns especially privileged applicants (C-135/93 Spain v Commission113), as well as the semi-privileged applicants (C-11/00 Commission v European Central Bank114) and non-privileged applicants (see T-244 and 248/93 TWD Textiwerke Deggendorf115).

The plea may concern an act of general application. Before the Lisbon Treaty came into eff ect, only regulations were explicitly listed as reviewable acts. Never-theless, the case-law of the Court of Justice extended the availability of this plea also to other acts of general application (see f.e. 92/78 Simmenthal SpA v Commis-sion116). The Treaty of Lisbon consolidated the case-law in this respect.

The action is decided by the EU Court of Justice (by the court which takes deci-sion in the main proceedings). The validity review of the act in question is based on the same grounds as in case of the action for annulment pursuant to the ar-ticle 263 TFEU. However, the essential diff erence with the action for annulment are the legal eff ects of the decision; the decision on validity is binding only inter partes, i.e. it is applicable to the decision in the case where the plea was raised.

113 Judgment of 29 June 1995, Spain / Commission (C-135/93, ECR 1995 p. I-1651).114 Judgment of 10 July 2003, Commission / ECB (C-11/00, ECR 2003 p. I-7147).115 Judgment of 13 September 1995, TWD / Commission (T-244/93 and T-486/93, ECR 1995

p. II-2265).116 Judgment of 6 March 1979, Simmenthal / Commission (92/78, ECR 1979 p. 777).


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8.5 Validity of Union’s Inaction – Control of Failure to Act

Whereas the purpose of the action for annulment is to review the validity of EU law, respectively, the elimination of the act unlawfully adopted by the EU institu-tions, the action for failure to act may be initiated in situations when the institu-tion concerned was obliged to act (e.g. to issue an act) but it did not. Still, both ac-tions may be regarded as complementary: the fi rst action sanctions illegal activity, the other one sanctions illegal inactivity (failure to act).

Both the Member States and all EU institutions have the locus standi and are re-garded as privileged applicants; that means that they may bring the action with-out any further conditions. The non-privileged applicants may also initiate the ac-tion; this category comprises natural and legal persons who may bring the action against any EU institution, body, offi ce or agency that has failed to address to that person any act other than a recommendation or an opinion.

The proceedings may be brought against all EU institutions: both the main in-stitutions such as the European Parliament, the European Council, the Council, the Commission or the European Central Bank and also against all other bodies, offi c-es and agencies. The obligation to act may be laid down both in the primary law and also secondary legislation; nevertheless, it must concern the obligation to act which is set up directly in the EU law. It is not possible to apply the action if the in-stitutions have a discretionary power whether to adopt the act or not.

The institution or body concerned has to be fi rst called upon to act before the action may be brought to the Court of Justice and it has to be given a suffi cient time span in order to remedy its failure. If it is not done, the Court of Justice will ex-amine whether the EU law was infringed by the failure to act. It delivers a declara-tory decision that does not replace the lack of activity of the institution concerned. In case that the declaratory judgment would fi nd the inactivity illegal, the institu-tion is obliged to redress its failure and issue the act concerned.


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Chapter IX: Autonomous Interpretation of an Autonomous Law – Preliminary ruling procedure

9.1 The Character of the ProcedureThe preliminary ruling procedure is one of the most important procedures that are brought before the Court of Justice. It was the main means for the Court of Justice through which it formulated the fundamental principles of the EU law. It is the most common type of procedure in comparison to other actions decided by the Court of Justice. The procedure is based on the mutual cooperation between national courts and the Court of Justice. This cooperation is based on the princi-ple that both national courts and the Court of Justice take authoritative decisions within their own jurisdiction. The Court of Justice provides a binding interpreta-tion of the Union law or it decides on its validity and its fi ndings must be respect-ed by the national judge. Consequently, it is the task for the national judge to give the fi nal ruling in the dispute which is based on the conclusions of the Court of Justice.

9.2 The Proceedings Initiation The preliminary ruling procedure may be initiated exclusively by the courts of the Member States. For the purposes of article 267 TFEU the referring “court or tribu-nal” has to meet criteria defi ned by the Court of Justice: • the body has to be established by the law • it has to be a permanent body; consequently various ad hoc or quasi-judicial

and arbitrary bodies are excluded; • the body has to have a compulsory jurisdiction, parties to the dispute may

not have any possibility to refer the matter to another body; this is one of the reasons why f.e. arbitration bodies with the facultative jurisdiction set up by an agreement of the parties (the arbitration clause) are excluded from pre-liminary ruling procedure;

• the body has to decide a dispute; therefore, the court may not initiate the preliminary ruling procedure in proceedings of undisputed nature (e.g. the registration of companies into the company registry or the registration into the land registry);

• the body has to apply law in its decision; thus, institutions that take decisions based e.g. on the equity (ex aequo et bono) are excluded;


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• the body has to be independent, it has to decide a dispute as an impartial subject; consequently, administrative authorities may not be endowed with right to initiate the preliminary ruling procedure.

All courts that suit the above criteria may submit a reference for the prelimi-nary ruling irrespective whether they are part of the civil, criminal or administra-tive justice. This applies only to situations when they use the EU law in the dispute and they are not sure about its interpretation or validity. The constitutional courts are also not principally excluded from submitting a reference. Some constitution-al courts of Member State have already initiated these proceedings (e.g. the Aus-trian or the Italian Constitutional Court). The Czech Constitutional Court has not endorsed a defi nite conclusion in that regard so far. The reference for a prelimi-nary ruling may be a sensitive issue for constitutional courts as they are regarded to be the supreme guardians of the constitutionality and values of the particular state and a reference to the Court of Justice might be felt as subordination to that court.

9.3 An Individual and Reference for the Preliminary Ruling

The position of individuals regarding the preliminary ruling may be defi ned by the following characteristics: • individuals are not entitled to submit the reference for the preliminary ruling

and, therefore, may not refer the question to the Court of Justice, this action would be dismissed;

• if the court does not initiate the compulsory preliminary ruling even though conditions laid down in article 267 (and the CILFIT judgment - see further be-low) are fulfi lled, it would be an infringement of the EU law by that court and individuals may seek the compensation for damages under conditions laid down by the Court of Justice (in that regard see especially case C-224/01 Ger-hard Köbler v Austria117);

• in the Czech legal order the individual may lodge a complaint to the Con-stitutional Court since the arbitrary and ungrounded omission to make the obligatory reference is regarded as an infringement of the right to a lawful judge (comp. case II. ÚS 1009/08 Pfi zer). According to the ruling of the Czech Constitutional Court, the judge has to properly reason why it did not submit the reference for the preliminary ruling and did not substantially (not only formally) ground it on the criteria defi ned in the CILFIT judgment;

• individuals may make a notice to the Commission which could initiate pro-ceedings for the infringement of the EU law by the Member State concerned;

117 Judgment of 30 September 2003, Köbler (C-224/01, ECR 2003 p. I-10239).


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still individuals do not have any more formalised position and the Commis-sion does not have any obligation to initiate the infringement proceedings.

9.4 The Facultative and the Obligatory Preliminary Ruling Procedure

The art. 267 TFEU recognises two forms types of procedure: • facultative preliminary ruling procedure: national court or tribunal - if it con-

siders that a decision on the issue of EU law is necessary to enable it to give judgment - may request the Court to give a ruling on that issue if it is not a court of last instance, that is if a judicial remedy against the decision of the national court of tribunal is still available. An appeal whose admissibility is dependent on the decision of the superior court is considered to be a judi-cial remedy which is available to the party of the dispute is considered;

• obligatory preliminary ruling procedure: this concerns the court or tribunal against whose decision there is no judicial remedy under national law; this court of last instance must initiate the ruling if the application of EU law in the case concerned is unclear.

In case 283/81 CILFIT118 the Court of Justice formulated criteria under which even the national court or tribunal of last instance does not have the obligation to initi-ate the preliminary ruling.

Case 283/81 Srl CILFIT and Lanifi cio di Gavardo SpA v Ministry of Health

16. Finally, the correct application of community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfi ed, may the national court or tribu-nal refrain from submitting the question to the court of justice and take upon itself the responsibility for resolving it.

17. However, the existence of such a possibility must be assessed on the ba-sis of the characteristic features of Community law and the particular diffi cul-ties to which its interpretation gives rise.

18. To begin with, it must be borne in mind that community legislation is drafted in several languages and that the diff erent language versions are all equally authentic. An interpretation of a provision of Community law thus in-volves a comparison of the diff erent language versions.

118 Judgment of 6 October 1982, CILFIT / Ministero della Sanità (283/81, ECR 1982 p. 3415).


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19. It must also be borne in mind, even where the diff erent language ver-sions are entirely in accord with one another, that community law uses termi-nology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in community law and in the law of the various Member States.

20. Finally, every provision of community law must be placed in its context and interpreted in the light of the provisions of community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.

Therefore, the Court of Justice concluded that the national court of last instance does not have to initiate the procedure if the particular provision of the EU law may be regarded as clear (‘acte clair theory‘); similarly the national court is not obliged to do so if the particular provision has already been clarifi ed by the case-law (‘acte éclairé theory‘). It might seem to be a concession to national courts that ignored the obligation to submit the reference even if they served as courts of last instance. However, in the judgment the Court of Justice has linked the possibil-ity to avoid the obligation with strict conditions. It was argued in academic litera-ture that the Court of Justice aimed to show that it itself is in the best position to consider questions of the EU law on its own. The CILFIT criteria have also become a part of the decision-making of (supreme) national courts (see e.g. the aforemen-tioned decision of the Constitutional Court in case Pfi zer).

9.5 The Subject Matter of the Preliminary Ruling Procedure

The subject matter of the preliminary ruling is twofold: • the interpretation of the EU law, i.e. founding Treaties and other acts of

the primary law (e.g. protocols, accession agreements of the new Member States);

• the validity and interpretation of acts adopted by the EU bodies, institutions or other offi ces and agencies; i.e. the secondary legislation and other acts.

Note: There used to be also a third ground for the preliminary ruling procedure – that was the interpretation of statutes establishing special EU bodies that were created by an act of the Council; however, this provision was not used in practice and was omitted by the Lisbon Treaty. If needed, after the Lisbon Treaty reforms this ground can be covered by the second point mentioned above, that is the re-view of validity concerning acts delivered by EU bodies.


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The Court of Justice does not interpret or assess the validity of national law; this is an exclusive competence of national courts. If the formulation of the preliminary questions required the Court of Justice to review or interpret the national law, it would recast the question so that it would concern only the EU law matters. Oth-erwise, the Court would be obliged to refuse the reference. It is also inadmissible to initiate the preliminary ruling under the following circumstances: • there is no existing dispute before the national court; • proceedings before the national court have already been closed by a deci-

sion of the court; • questions are merely of hypothetical character and they have no real rela-

tion to the subject matter of the dispute; • the legal and factual framework of the case is not suffi ciently specifi ed in the

reference of the national court.

9.6 The Wording of Questions Raised by the National Court

The Court of Justice gave instructions for national courts how to formulate the questions; in particular, the order for reference must: • include a brief account of the subject-matter of the dispute and the relevant

fi ndings of fact, or, at least, set out the factual situation on which the ques-tion referred is based;

• set out the basic outline of any applicable national provision and identify, where necessary, the relevant national case-law, giving in each case precise references (for example, a page of an offi cial journal or specifi c law report, with any internet reference);

• identify the EU law provisions relevant to the case as accurately as possible; • explain the reasons which prompted the national court to raise the question

of the interpretation or validity of the EU law provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings;

• include, if need be, a summary of the main relevant arguments of the parties to the main proceedings.

(for more see Information note on references from national courts for a preliminary ruling, 2011/C 160/01-05).

When the questions are referred to the Court of Justice, the national proceed-ings are suspended. In case of serious and reasonable doubts regarding the valid-ity of the contested EU law act the national court may decide to suspend provi-sionally its application or adopt any other precautionary measure. However, at the same time it has to submit the reference for the preliminary ruling regarding the validity of that act (C-465/93 Atlanta).


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9.7 The Binding Nature of the Decision on the Preliminary Question

The decision of the Court delivered within the framework of the preliminary ruling has in principle erga omnes eff ects. Thus, it is binding not only in relation to the court that referred the subject matter to the Court of Justice, but also in all other cases decided by courts in other Member States. The decision of the Court of Jus-tice has ex tunc eff ect; i.e. since the particular act has been adopted. The tempo-ral eff ects of the decision may be restricted by the Court of Justice that may limit them for instance only to cases initiated prior to the decision and new cases initi-ated after the delivery of the judgment.

The national court deciding the case is allowed to submit a new preliminary ruling procedure, it may raise a question regarding for instance a broader expla-nation of the issue or some complementary questions connected to the case. By new questions the national court may also invite the Court of Justice to change its case-law. It is not excluded that the case-law may be changed; the Court of Justice has done it both implicitly (more common) or explicitly (very exceptionally).


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Chapter X: The Fundamental Rights Protection within the European Union – the Core of Material Constitutionality

10.1 “Cerberus” Guarding the Fundamental Rights and Advocating the Supranational Constitutionalization

Nowadays the key provisions which defi ne the Union as a constitutional commu-nity based on respect for human rights are included in the Treaty on European Un-ion. The most important are articles 2 TEU (which defi nes the values of European Union and presents the human rights as the fundamental core of the integration), article 6 TEU (which defi nes or summarizes the sources and several instruments of the human rights protection within the European Union) and article 7 (which in-troduces the mechanism of control and sanctioning of the Member States in the cases of grave violation of the fundamental rights by them).

The central provision is the second aforementioned article (art. 6 TEU) which de-fi nes the three cornerstones of the protection of fundamental rights at the supra-national level. These three totems seem to provide Union within the most com-plex system of the promotion of fundamental rights which shall work as the one body of tools with three diff erent heads – like the Cerberus guarding the mythic underworld.

Moreover this strong impetus on the role of fundamental rights within the supranational legal order serves as an indirect tool of defence of supranational (Court’s) view on the nature of the legal system of the Community / Union.119 The recognition of fundamental rights as immanent part of supranational law and es-tablishment of the complex system of their protection rendered to the suprana-tional legal system the nature of the constitutional order. Therefore it was suit-able to be accepted by the national courts in their practice as the law applicable in their judicial decision-making. The big lesson here was learned in connection with the famous Solange saga of German Federal Constitutional Court.120 German court primarily rejected the possibility of unlimited application of Community law within the national legal practice by the argument that supranational law showed

119 See also CRAIG, Paul. The Lisbon Treaty. Law, Politics and Treaty Reform. New York: Oxford Univer-sity Press, 2010, pp. 194-197.

120 See further KIRCHHOF, Paul. The Balance of Powers Between National and European Institutions. European Law Journal, 1999, vol. 5, no. 3, pp. 225–242.


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serious defi ciencies in the fi eld of protection of individuals. It stated that as long as Community system will show the defi ciencies (in comparison with German level) it will not accept its general internal eff ects (case Solange I, 1974). Once the Commu-nity system improved and the doctrine of fundamental rights was introduced the Federal Constitutional Court changed its opinion and accepted the application of Community rules (case Solange II, 1986) but once more with the objection that it will serve as the ultima ratio guardian of the structural quality of this reached lev-el. In case when serious structural discrepancies will appear within the suprana-tional system the German court reserves itself the right not to accept the internal applicability of the certain rules of EU law within German system. This raised fi n-ger is still valid (see its repetitions in the cases Maastricht, 1993 and Lisbon, 2009) and transmitted also to the approach of other Member States courts (the Czech Constitutional Court may serve as one of the most infl uenced examples, see cas-es Sugar Quotas, 2006; European Arrest Warrant, 2006, Lisbon I, 2008 and Lisbon II, 2009). And within this atmosphere of permanent control from the national level the supranational approach to the protection of fundamental rights has to devel-op perpetually in nowadays and also in the future. Therefore Union is abound by the sources and mechanisms and therefore it is still willing to go further – mainly by the accession to the European Convention.

10.1.1 Charter of Fundamental rights of the European Union – Internal Pillar

According to the fi rst paragraph of article 6 TEU the eff ect of the Lisbon Treaty (1st December 2009), the Union catalogue of human rights - the Charter of Fun-damental Rights of the European Union has become a legally binding document and regular part of European Union law. Thanks to this legal cornerstone the Un-ion obtained an internal instrument of identifi cation and protection of human rights, which is the fi rst pillar of the whole system. The role of Charter is crucial. On one side it confi rmed the attitude of the Court of Justice towards the fundamen-tal rights from the previous decades. And from another point of view it fulfi lled the requirement of legal certainty of the holder of fundamental rights by making them visible and manifested. The great deal made by the Court of Justice by intro-duction of the fundamental rights as General Principles (see further) was always connected with the risk of uncertainty and unpredictability. As AG Mazák rightly stressed (AG Opinion in C-411/05 Palacios) “in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by un-certainty.” Charter is the tool of minimalizing of that uncertainty and this seems to be its crucial added value.

Charter was adopted in the December 2000 as the mere political declaration without legally binding nature. First attempt to make it legally binding came in connection with the Treaty establishing Constitution for Europe. Here the Charter


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was included directly to the text of European Constitution.121 But because this re-form document was rejected by the French and Dutch people in referendums in 2005 the question of the binding force of the Charter was not resolved yet. Sec-ond (successful) attempt was made in connection with the Treaty of Lisbon. This document changed the wording of article 6 TEU and introduced the “legalisation” clause according to which Charter got the same legal value as the Treaties. Start-ing by 1st December 2009 (when Treaty of Lisbon entered into the force) the Char-ter of fundamental rights of the European Union became legally binding.

Charter is very complex and quite ambitious document. It includes the tens of human rights from all generations (classical division of human rights to the three generations of rights: civil and political; economic, social and cultural; the mod-ern = solidarity rights). It has its own special structure which does not follow the classical division of human rights to types or generations. The “body of Charter” in-cludes 50 material and 4 horizontal provisions (+ explanations which are attached to the catalogue). It is internally structured into the 7 titles. • First title called “dignity” (articles 1-5) is inspired by „Kantian“ ideal concepts,

i.e. human dignity at the fi rst place. It includes the hard core rights as rights to life, protection of personal integrity, prohibition of torture etc.

• Second title entitled “freedoms” (articles 6-19) deals with the various ex-amples of personal liberties like personal freedom, protection of private spheres, freedom of thought and expression, freedom of association and as-sembly etc.).

• Third title called “equality” (articles 20-26) stresses the fact that anti-discrim-ination policy is one of the most important fi elds of activity of the Union. There is big variety of equality clauses which ensure for example equality be-fore law, general antidiscrimination clause, equality between men and wom-en, special protection of vulnerable groups – children, elderly and people with disabilities etc.

• Fourth title marked “solidarity” (articles 27-38) includes mainly the economic and social rights, e.g. collective bargaining and action, fair and just working conditions, access to health care etc.

• Fifth title called “Citizen’s rights” (articles 39-46) is inspired by the Treaty provisions on Union’s citizenship. It repeats the classical group of rights of Union’s citizens (electorate rights, free movement, political rights and dip-lomatic protection) and adds quite detail provision on the righto good ad-ministration.

• Sixth title is identifi ed as “Justice” (articles 47-50) and includes the procedural safeguards as right to fair trial, presumption of innocence, legality and pro-portionality of criminal justice, ne bis in idem principle.

121 See further DOUGLAS-SCOTT, Sionaidh. The Charter of Fundamental Rights as a Constitutional Document. European Human Rights Law Review, 2004, No. 1, pp. 35-50.


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• Seventh title includes so called horizontal provision which determines the general rules of application and interpretation of Charter and presents the sources of inspiration for the adoption of this document (articles 51-54).

Very important provision which has to be mentioned is art. 51 paragraph 1. It defi nes the addresses of obligation to respect the rights included in the Charter. There are two categories of addresses which have obligation to respect of the Charter: • Institutions, bodies, offi ces and agencies of the Union – here the Charter

serves as the tool of fortifi cation of rule of law and democratic legitimacy of the supranational governance. It is the goal of long path on which Commu-nities and Union were fi nding the ideal tool for the protection of fundamen-tal rights.

• Member States – here we need to point out limited scope on the applica-tion of Charter because member States are obliged to respect this docu-ment only “when they are implementing Union law.” It means that Member States have to follow Charter in circumstances where they are acting as “Un-ion agents” (neither they hold a direct obligation under EU law norms – see 222/84 Johnston122, 43/75 Defrenne123; or they hold implicit obligation in con-nection with implementation of EU law norms – see 5/88 Wachauf124, C-84/95 Bosphorus125). Additionally according to the case law of the Court of Justice Member States have to respect fundamental rights which form the part of general principles of EU law also in cases where they are derogating the rights fl owing from EU law (C-260/89 ERT126, C-368/95 Familiapress127).128

122 Judgment of 15 May 1986, Johnston / Chief Constable of the Royal Ulster Constabulary (222/84, ECR 1986 p. 1651).

123 Judgment of 8 April 1976, Defrenne / SABENA (43/75, ECR 1976 p. 455).124 Judgment of 13 July 1989, Wachauf / Bundesamt für Ernährung und Forstwirtschaft (5/88, ECR

1989 p. 2609).125 Judgment of 30 July 1996, Bosphorus / Minister for Transport, Energy and Communications and

others (C-84/95, ECR 1996 p. I-3953).126 Judgment of 18 June 1991, ERT / DEP (C-260/89, ECR 1991 p. I-2925).127 Judgment of 26 June 1997, Vereinigte Familiapress Zeitungsverlags - und vertriebs GmbH /

Bauer Verlag (C-368/95, ECR 1997 p. I-3689).128 To the aforementioned obligation of the Member States see further AZOULAI, Loïc. The Case

of Fundamental Rights: A State of Ambivalence. In MICKLITZ, Hans, DE WITTE, Bruno (eds). The European Court of Justice and the Autonomy of the Member States. Cambridge: Intersentia, 2012, pp. 207-217.


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10.1.2 European Convention for the Protection of Human Rights and Fundamental Freedoms – External Pillar

In the second paragraph we may fi nd the commitment of the Union to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This provision is a refl ection of established practice, when the Court in its case law commonly refers to the Convention as the source of its inspiration.129 Intensive accession negotiations have been on-going since the beginning of 2010 and 19 June 2011 the fi rst complete version of the draft Agreement on the Acces-sion of the European Union to the Convention was published on the website of the Council of Europe.130 Currently still on-going negotiations between the rep-resentatives of the Member States of the Council of Europe and European Union institutions primarily on procedural details of the adoption of this document. But it seems that deliberations are being fi nalised and the fi nal agreement is close. The importance of the accession is to some extent a symbolic act, when the Un-ion shows the will and readiness to be subject to the same control mechanism as its Member (and other European) countries.131 But it will have also practical conse-quences because new mechanism of protection will appear then. It is clear even from the statement of the Committee preparing the accession which says that “As a result of the accession, the acts, measures and omissions of the EU, like every other High Contracting Party, will be subject to the external control exercised by the Court in the light of the rights guaranteed under the Convention. This is all the more important since the EU member States have transferred substantial powers to the EU” (see Paragraph 5 of the DRAFT Explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Hu-man Rights and Fundamental Freedoms).

10.1.3 Unwritten General Principles – Eternal PillarThe third paragraph then identifi es the last (but historically oldest) pillar of hu-man rights protection on supranational level – the unwritten rules contained in the general principles of law. Even Union has it written catalogue (Charter) now, the importance of general principles is still high. First of all even when the Fathers of the treaty decided to state down explicitly the list of protected rights there is always a risk of defi ciencies and incompleteness. There is also the phenomenon which may be determined by the phrase “society overtake the law” which means

129 See DOUGLAS-SCOTT, Sionaidh. A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis. Common Market Law Review, 2006, vol. 43, no. 3, pp. 629-665.

130 See commentary in KRÁLOVÁ, Jana. Comments on the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms. Czech Yearbook of Public & Private International Law, 2011, vol. 2, pp. 127-142.

131 See also JACQUE, Jean-Paul. The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms. Common Market Law Review, 2011, Vol. 48, No. 4, pp. 995-1023.


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that legal regulation is always somehow behind the evolutional features in tech-nology and society which bring the new unknown problems. And the open cat-egory - as the principles are - is the best instrument for the fl exible reaction and protection of individuals’ rights in these circumstances. The development of the doctrine of fundamental rights as part of the general principles of law played a crucial role in building of the constitutionality of supranational entities.

Contours of material constitutionality of the European Union (remember that our third claim is “where a rule of law is secured there is a constitution”) are de-fi ned primarily by the system of protection of fundamental rights. The question of the role and place of fundamental rights within the European Communities and the European Union has undergone major developments during the history of integration.

The original text of founding documents did not pay any attention to this issue. Also the Court of Justice was originally very strict and by using of precise formal approach rejected the possibility of protection of fundamental rights within the Community legal system. The Court believed that then sources of Community law contained no (nor explicit nor implicit) basis for the protection of fundamental rights (1/58 Stork132, 36/59 Geitling133). The most quoted reasons for this initial re-sistance where: the dominant focus on the economic integration, the existence of the Council of Europe (another European organisation which

was established primarily for the protection and promotion of democracy, rule of law and fundamental freedoms),

fundamental rights as a traditional domain of national constitutional law, absence of legal competence of the Community in the fi eld of fundamental

rights.

The silence of the Treaties and reluctance of the Court of Justice to possibility of fundamental rights protection had a negative impact in several aspects. It led to the reduction in quality of protection of individuals, tension between Commu-nity law and national law and decrease of legitimacy and democratic nature of Eu-ropean Communities. Therefore this undesirable situation (with its negative con-sequences) was not sustainable for the long time. And it was the Court of Justice who brought the revolution and caused the end of “dark era” in the approach to the fundamental rights.

In the seminal decision 29/69 Stauder134 Court of Justice turned its approach from strictly formal and positive to the material and stated that fundamental rights form the part of general principles of law on which the Community is based and prescribed itself the assignment to be their guardian. Court’s doctrine of fun-

132 Judgment of 4 February 1959, Stork & Cie. / ECSC High Authority (1/58, ECR 1959 p. 17).133 Judgment of 15 July 1960, Präsident Ruhrkohlen-Verkaufsgesellschaft and others / ECSC High

Authority (36-58, 37-58, 38-59 and 40-59, ECR 1960 p. 423).134 Judgment of 12 November 1969, Stauder / Stadt Ulm (29/69, ECR 1969 p. 419).


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damental rights as part of the general principles of law laid the foundations of in-ner (supranational) prism to human rights protection.135

The importance of Stauder ruling is that Court of Justice found the way how to safeguard the rule of law in cases of alleged violation of fundamental rights by actions of Community authorities. The court denied its own initial assertion that Community law does not contain any (no explicit nor implicit) rules providing for protection of fundamental rights.

In the next period of the evolution of this doctrine, the Court of Justice primarily pointed out particular sources of inspiration which fi lled and precise the unspeci-fi ed category of general principles of law. These sources of inspirations were: constitutional traditions common to the Member States (11/70 Internation-

ale Handelsgesellshaft136, 4/73 Nold137) and international treaties on human rights on which the Member States partici-

pate or are their signatories. The particular importance was given to the Eu-ropean Convention for the Protection of Human Rights and Fundamental Freedoms (36/75 Rutili138, 44/79 Hauer139).

Fundamental rights encoded in the unwritten general principles of law become the only source of protection for long decades of existence of supranational enti-ties. Recognition of human rights was important not only in terms of individuals and their protection. As I mentioned above the doctrine of fundamental rights as a general principles served also as certain self-reference, the autonomous claim for the constitutionality of European integration entities which supported their accountability and legitimacy of their actions.

10.2 The Role of Fundamental RightsEstablishment of the complex structure of tools serving to protection and promo-tion of fundamental rights at the supranational level had (still has) several reasons. From the political point of view the most important reason for the open approach is need to legitimize the supranational governance. Union uses its powers and in-terferes to the increasing range of fi elds of human activities and therefore touches directly the individuals in the Member States. The new public power appears that has to be fettered by bonds of fundamental rights. From the legal point of view

135 To the doctrine of Fundamental Rights as General principles see further CRAIG, Paul, DE BÚRCA, Gráinne. EU LAW. Text, cases and materials. Fifth edition. Oxford: Oxford University Press, 2011, pp. 364-371.

136 Judgment of 17 December 1970, Internationale Handelsgesellschaft mbH / Einfuhr - und Vor-ratsstelle für Getreide und Futtermittel (11/70, ECR 1970 p. 1125).

137 Judgment of 14 May 1974, Nold KG / Commission (4/73, ECR 1974 p. 491).138 Judgment of 28 October 1975, Rutili / Ministre de l‘intérieur (36/75, ECR 1975 p. 1219).139 Judgment of 13 December 1979, Hauer / Land Rheinland-Pfalz (44/79, ECR 1979 p. 3727).


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without system of protection of fundamental rights there is a serious risk of the denegatio iustitiae problem because fundamental rights encoded in national con-stitutional norms are not applicable in connection with the supranational legisla-tive and administrative rules.

The lacuna which appeared because of non-applicability of national standards towards the EU rules needed the necessary reaction within the supranational le-gal order itself. The petrifi cation of the character of Community/Union law as an independent and self-suffi cient legal system was another important motivation. At the end of 60’s the autonomy of Community legal system was developing in a rapid way. The principles of direct applicability, direct eff ect and primacy were already introduced by the Court of Justice. The lack of fundamental rights protec-tion at the Community level could impair the growing independence of whole Community legal system because it could lead to the reluctance of national courts (which were the main addresses of the principles of application of Community law). Therefore fundamental rights protection played also the crucial role as the autopoietic argument and feature accompanying the evolution of independent supranational legal order and its constitutionality.140

140 See further TORRES PÉREZ, Aida. Conflict of Rights in the European Union. A Theory of Suprana-tional Adjudication. New York: Oxford University Press, 2009. 208 p.


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ENDNOTE AND ACKNOWLEDGEMENTS

“Un jour viendra vous toutes, nations du continent, sans perdre vos qualités dis-tinctes et votre glorieuse individualité, vous vous fondrez étroitement dans une unité

supérieure, et vous constituerez la fraternité européenne.

Un jour viendra où il n‘y aura plus d‘autres champs de bataille que les marchés s‘ouvrant au commerce et les esprits s‘ouvrant aux idées…”

Victor Hugo21 august1849

Speech on the International Peace Congress in Paris

A special, unique character of the European Union gives rise to the questions about the quasi-state nature of this body and the federalization movement which accom-panies the European integration. The central point of this debate is the question whether the European Union is on the track to be a state-like organization?141

We are not going to claim that European Union is a “superstate” which replaced or is replacing the Member States. But on the other side one have to accept that European Union is an autonomous entity, the original political structure which has its own effi cient construction of the internal organization and distinctive goals and instruments leading to them. The existence of the Constitutional system of the European Union is a hardly contestable phenomenon. Of course it goes about the constitutionality in the substantive sense of the word, the constitutionality based on principles, a separation of powers and the human rights protection sys-tem i.e. a respected constitutionality and not one which was formally enacted.

In this book entitled “The European Union Constitutional law” we have focused primarily on the analysis of the concept of material constitutionalization of the Eu-ropean Union. The so-called documentary constitutionalization is not at the pro-gramme of the day here. Notwithstanding this claim it is clear that “Constitution-ality”, “Constitutional law”, “Constitutional System” have to be discussed even in connection with supranational entity - all these terms currently exceeds beyond

141 See WALKER, Neil. Late Sovereignty in the European Union. In WALKER, Neil (ed). Sovereignty in Transition. Portland: Hart Publishing, 2003, pp. 9, 10. See also JAKAB, András. Neutralizing the Sovereignty Question; Compromise Strategies in Constitutional Argumentations before Euro-pean Integration and since. European Constitutional Law Review, 2006, vol. 2, no. 3, pp. 375-397.


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the borders of national states and thus cannot be regarded as sole objectives of the national law and jurisprudence.142

At this place we want to thank the people who helped us with the preparation and creation of this book.

First of all we want to thank to our families for their support.

We also want to thank to Miss Zuzana Hanelová (master student of the Faculty of Law, Palacký University in Olomouc) for her help with the translations and lan-guage corrections and to Mr. David Kopal (master student of the Faculty of Law, Palacký University in Olomouc) for his help with the selection of the bibliography and sources.

142 See also KLABBERS, Jan, PETERS, Anne, ULFSTEIN, Geir. The Constitutionalisation of International Law. New York, Oxford University Press, 2011, 437 p.


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ANNEX: “WRITTEN CONSTITUTION OF THE EUROPEAN UNION”

(Selected provisions of the primary law of the European Union)

Treaty on European Union

Article 1By this Treaty, the HIGH CONTRACT-

ING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called „the Union“, on which the Member States confer competences to attain objectives they have in common.

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

The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (here-inafter referred to as „the Treaties“). Those two Treaties shall have the same legal val-ue. The Union shall replace and succeed the European Community.

Article 2The Union is founded on the values of

respect for human dignity, freedom, de-mocracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Mem-ber States in a society in which pluralism, non-discrimination, tolerance, justice, sol-

idarity and equality between women and men prevail.

Article 31. The Union’s aim is to promote peace,

its values and the well-being of its peo-ples.

2. The Union shall off er its citizens an area of freedom, security and justice with-out internal frontiers, in which the free movement of persons is ensured in con-junction with appropriate measures with respect to external border controls, asy-lum, immigration and the prevention and combating of crime.

3. The Union shall establish an inter-nal market. It shall work for the sustain-able development of Europe based on balanced economic growth and price sta-bility, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protec-tion and improvement of the quality of the environment. It shall promote scien-tifi c and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between gen-


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erations 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 lin-guistic diversity, and shall ensure that Eu-rope’s cultural heritage is safeguarded and enhanced.

4. The Union shall establish an econom-ic and monetary union whose currency is the euro.

5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contrib-ute to peace, security, the sustainable de-velopment of the Earth, solidarity and mu-tual respect among peoples, free and fair trade, eradication of poverty and the pro-tection of human rights, in particular the rights of the child, as well as to the strict observance and the development of in-ternational law, including respect for the principles of the United Nations Charter.

6. The Union shall pursue its objec-tives by appropriate means commensu-rate with the competences which are con-ferred upon it in the Treaties.

Article 41. In accordance with Article 5, com-

petences not conferred upon the Union in the Treaties remain with the Member States.

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

lar, national security remains the sole re-sponsibility of each Member State.

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

The Member States shall take any ap-propriate measure, general or particular, to ensure fulfi lment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and re-frain from any measure which could jeop-ardise the attainment of the Union’s ob-jectives.

Article 51. The limits of Union competences

are governed by the principle of confer-ral. The use of Union competences is gov-erned by the principles of subsidiarity and proportionality.

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

3. Under the principle of subsidiarity, in areas which do not fall within its ex-clusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be suffi cient-ly achieved by the Member States, either at central level or at regional and local lev-el, but can rather, by reason of the scale or eff ects of the proposed action, be better achieved at Union level.

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


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principles of subsidiarity and proportion-ality. National Parliaments ensure compli-ance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4. Under the principle of proportion-ality, the content and form of Union ac-tion shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall ap-ply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and pro-portionality.

Article 61. The Union recognises the rights,

freedoms and principles set out in the Charter of Fundamental Rights of the Eu-ropean Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal val-ue as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defi ned in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accord-ance with the general provisions in Title VII of the Charter governing its interpre-tation and application and with due re-gard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the Euro-pean Convention for the Protection of Hu-man Rights and Fundamental Freedoms. Such accession shall not aff ect the Union’s competences as defi ned in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Pro-tection of Human Rights and Fundamen-tal Freedoms and as they result from the constitutional traditions common to the

Member States, shall constitute general principles of the Union’s law.

Article 71. On a reasoned proposal by one third

of the Member States, by the European Parliament or by the European Commis-sion, the Council, acting by a majority of four fi fths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Coun-cil shall hear the Member State in ques-tion and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determina-tion was made continue to apply.

2. The European Council, acting by una-nimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the Euro-pean Parliament, may determine the ex-istence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observa-tions.

3. Where a determination under para-graph 2 has been made, the Council, act-ing by a qualifi ed majority, may decide to suspend certain of the rights deriv-ing from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible con-sequences of such a suspension on the rights and obligations of natural and le-gal persons.


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The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualifi ed ma-jority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the Eu-ropean Union.

Article 9In all its activities, the Union shall ob-

serve the principle of the equality of its citizens, who shall receive equal atten-tion from its institutions, bodies, offi ces and agencies. Every national of a Member State shall be a citizen of the Union. Cit-izenship of the Union shall be additional to and not replace national citizenship.

Article 101. The functioning of the Union shall be

founded on representative democracy.2. Citizens are directly represented at

Union level in the European Parliament.Member States are represented in the

European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parlia-ments, or to their citizens.

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

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

Article 111. The institutions shall, by appropri-

ate means, give citizens and representa-tive associations the opportunity to make known and publicly exchange their views in all areas of Union action.

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

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

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

The procedures and conditions re-quired for such a citizens’ initiative shall be determined in accordance with the fi rst paragraph of Article 24 of the Treaty on the Functioning of the European Un-ion.

Article 12National Parliaments contribute active-

ly to the good functioning of the Union: (a) through being informed by the insti-

tutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Proto-col on the role of national Parliaments in the European Union;

(b) by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and propor-tionality;


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(c) by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area, in accordance with Article 70 of the Treaty on the Functioning of the European Union, and through being involved in the po-litical monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Articles 88 and 85 of that Treaty;

(d) by taking part in the revision proce-dures of the Treaties, in accordance with Article 48 of this Treaty;

(e) by being notifi ed of applications for accession to the Union, in accordance with Article 49 of this Treaty;

(f ) by taking part in the inter-parliamenta-ry cooperation between national Par-liaments and with the European Parlia-ment, in accordance with the Protocol on the role of national Parliaments in the European Union.

Article 131. The Union shall have an institutional

framework which shall aim to promote its values, advance its objectives, serve its in-terests, those of its citizens and those of the Member States, and ensure the con-sistency, eff ectiveness and continuity of its policies and actions.

The Union’s institutions shall be: – the European Parliament, – the European Council, – the Council, – the European Commission (hereinafter

referred to as “the Commission”), – the Court of Justice of the European

Union, – the European Central Bank, – the Court of Auditors.

2. Each institution shall act within the limits of the powers conferred on it in the

Treaties, and in conformity with the pro-cedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.

3. The provisions relating to the Euro-pean Central Bank and the Court of Audi-tors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.

4. The European Parliament, the Coun-cil and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.

Article 141. The European Parliament shall, joint-

ly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consul-tation as laid down in the Treaties. It shall elect the President of the Commission.

2. The European Parliament shall be composed of representatives of the Un-ion’s citizens. They shall not exceed sev-en hundred and fi fty in number, plus the President. Representation of citizens shall be degressively proportional, with a mini-mum threshold of six members per Mem-ber State. No Member State shall be allo-cated more than ninety-six seats.

The European Council shall adopt by unanimity, on the initiative of the Europe-an Parliament and with its consent, a de-cision establishing the composition of the European Parliament, respecting the principles referred to in the fi rst subpara-graph.

3. The members of the European Par-liament shall be elected for a term of fi ve years by direct universal suff rage in a free and secret ballot.

4. The European Parliament shall elect its President and its offi cers from among its members.


165

Article 151. The European Council shall provide

the Union with the necessary impetus for its development and shall defi ne the general political directions and priorities thereof. It shall not exercise legislative functions.

2. The European Council shall consist of the Heads of State or Government of the Member States, together with its Presi-dent and the President of the Commis-sion. The High Representative of the Un-ion for Foreign Aff airs and Security Policy shall take part in its work.

3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a min-ister and, in the case of the President of the Commission, by a member of the Commission. When the situation so re-quires, the President shall convene a spe-cial meeting of the European Council.

4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.

5. The European Council shall elect its President, by a qualifi ed majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Coun-cil can end the President’s term of offi ce in accordance with the same procedure.

6. The President of the European Coun-cil: (a) shall chair it and drive forward its

work; (b) shall ensure the preparation and con-

tinuity of the work of the European Council in cooperation with the Pres-ident of the Commission, and on the basis of the work of the General Aff airs Council;

(c) shall endeavour to facilitate cohesion and consensus within the European Council;

(d) shall present a report to the European Parliament after each of the meetings of the European Council.

The President of the European Coun-cil shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without preju-dice to the powers of the High Represent-ative of the Union for Foreign Aff airs and Security Policy.

The President of the European Council shall not hold a national offi ce.

Article 161. The Council shall, jointly with the Eu-

ropean Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating func-tions as laid down in the Treaties.

2. The Council shall consist of a repre-sentative of each Member State at min-isterial level, who may commit the gov-ernment of the Member State in question and cast its vote.

3. The Council shall act by a qualifi ed majority except where the Treaties pro-vide otherwise.

4. As from 1 November 2014, a qualifi ed majority shall be defi ned as at least 55 % of the members of the Council, compris-ing at least fi fteen of them and represent-ing Member States comprising at least 65 % of the population of the Union.

A blocking minority must include at least four Council members, failing which the qualifi ed majority shall be deemed at-tained.

The other arrangements governing the qualifi ed majority are laid down in Arti-


166

cle 238(2) of the Treaty on the Function-ing of the European Union.

5. The transitional provisions relating to the defi nition of the qualifi ed majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transi-tional provisions.

6. The Council shall meet in diff erent confi gurations, the list of which shall be adopted in accordance with Article 236 of the Treaty on the Functioning of the Euro-pean Union.

The General Aff airs Council shall ensure consistency in the work of the diff erent Council confi gurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.

The Foreign Aff airs Council shall elab-orate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent.

7. A Committee of Permanent Rep-resentatives of the Governments of the Member States shall be responsible for preparing the work of the Council.

8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legisla-tive activities.

9. The Presidency of Council confi gura-tions, other than that of Foreign Aff airs, shall be held by Member State represent-atives in the Council on the basis of equal rotation, in accordance with the condi-tions established in accordance with Arti-cle 236 of the Treaty on the Functioning of the European Union.

Article 171. The Commission shall promote the

general interest of the Union and take ap-propriate initiatives to that end. It shall en-sure the application of the Treaties, and of measures adopted by the institutions pur-suant to them. It shall oversee the applica-tion of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinat-ing, executive and management func-tions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Un-ion’s external representation. It shall ini-tiate the Union’s annual and multiannual programming with a view to achieving in-terinstitutional agreements.

2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties pro-vide otherwise. Other acts shall be adopt-ed on the basis of a Commission proposal where the Treaties so provide.

3. The Commission’s term of offi ce shall be fi ve years.

The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is be-yond doubt.

In carrying out its responsibilities, the Commission shall be completely inde-pendent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, offi ce or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.

4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist


167

of one national of each Member State, in-cluding its President and the High Repre-sentative of the Union for Foreign Aff airs and Security Policy who shall be one of its Vice-Presidents.

5. As from 1 November 2014, the Com-mission shall consist of a number of mem-bers, including its President and the High Representative of the Union for Foreign Aff airs and Security Policy, correspond-ing to two thirds of the number of Mem-ber States, unless the European Council, acting unanimously, decides to alter this number.

The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a sys-tem of strictly equal rotation between the Member States, refl ecting the demo-graphic and geographical range of all the Member States. This system shall be es-tablished unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the Euro-pean Union.

6. The President of the Commission shall: (a) lay down guidelines within which the

Commission is to work; (b) decide on the internal organisation of

the Commission, ensuring that it acts consistently, effi ciently and as a colle-giate body;

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

A member of the Commission shall re-sign if the President so requests. The High Representative of the Union for Foreign Aff airs and Security Policy shall resign, in accordance with the procedure set out in Article 18(1), if the President so requests.

7. Taking into account the elections to the European Parliament and after hav-ing held the appropriate consultations, the European Council, acting by a quali-fi ed majority, shall propose to the Euro-pean Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a quali-fi ed majority, shall within one month pro-pose a new candidate who shall be elect-ed by the European Parliament following the same procedure.

The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Com-mission. They shall be selected, on the ba-sis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.

The President, the High Representative of the Union for Foreign Aff airs and Secu-rity Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Par-liament. On the basis of this consent the Commission shall be appointed by the Eu-ropean Council, acting by a qualifi ed ma-jority.

8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 234 of the Trea-ty on the Functioning of the European Un-ion, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Un-ion for Foreign Aff airs and Security Policy


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shall resign from the duties that he carries out in the Commission.

Article 181. The European Council, acting by

a qualifi ed majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Aff airs and Security Pol-icy. The European Council may end his term of offi ce by the same procedure.

2. The High Representative shall con-duct the Union’s common foreign and se-curity policy. He shall contribute by his proposals to the development of that pol-icy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.

3. The High Representative shall pre-side over the Foreign Aff airs Council.

4. The High Representative shall be one of the Vice-Presidents of the Com-mission. He shall ensure the consistency of the Union’s external action. He shall be responsible within the Commission for re-sponsibilities incumbent on it in external relations and for coordinating other as-pects of the Union’s external action. In ex-ercising these responsibilities within the Commission, and only for these respon-sibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with para-graphs 2 and 3.

Article 191. The Court of Justice of the European

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

Member States shall provide remedies suffi cient to ensure eff ective legal protec-tion in the fi elds covered by Union law.

2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.

The General Court shall include at least one judge per Member State.

The Judges and the Advocates-Gener-al of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Un-ion. They shall be appointed by common accord of the governments of the Mem-ber States for six years. Retiring Judg-es and Advocates-General may be reap-pointed.

3. The Court of Justice of the European Union shall, in accordance with the Trea-ties: (a) rule on actions brought by a Member

State, an institution or a natural or le-gal person;

(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;

(c) rule in other cases provided for in the Treaties.

Article 47The Union shall have legal personality.

Article 481. The Treaties may be amended in ac-

cordance with an ordinary revision pro-cedure. They may also be amended in accordance with simplifi ed revision pro-cedures.

Ordinary revision procedure2. The Government of any Member

State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Trea-


169

ties. These proposals may, inter alia, serve either to increase or to reduce the com-petences conferred on the Union in the Treaties. These proposals shall be submit-ted to the European Council by the Coun-cil and the national Parliaments shall be notifi ed.

3. If the European Council, after con-sulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the pro-posed amendments, the President of the European Council shall convene a Con-vention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Cen-tral Bank shall also be consulted in the case of institutional changes in the mon-etary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justifi ed by the extent of the proposed amendments. In the latter case, the Eu-ropean Council shall defi ne the terms of reference for a conference of representa-tives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratifi ed by all the Member

States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fi fths of the Member States have ratifi ed it and one or more Member States have encoun-tered diffi culties in proceeding with ratifi -cation, the matter shall be referred to the European Council.

Simplifi ed revision procedures6. The Government of any Member

State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Un-ion relating to the internal policies and ac-tion of the Union.

The European Council may adopt a de-cision amending all or part of the provi-sions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That deci-sion shall not enter into force until it is ap-proved by the Member States in accord-ance with their respective constitutional requirements.

The decision referred to in the second subparagraph shall not increase the com-petences conferred on the Union in the Treaties.

7. Where the Treaty on the Function-ing of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the Eu-ropean Council may adopt a decision au-thorising the Council to act by a qualifi ed majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.


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Where the Treaty on the Functioning of the European Union provides for legisla-tive acts to be adopted by the Council in accordance with a special legislative pro-cedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the fi rst or the sec-ond subparagraph shall be notifi ed to the national Parliaments. If a national Parlia-ment makes known its opposition with-in six months of the date of such notifi -cation, the decision referred to in the fi rst or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the de-cision.

For the adoption of the decisions re-ferred to in the fi rst and second subpar-agraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

Article 49Any European State which respects the

values referred to in Article 2 and is com-mitted to promoting them may apply to become a member of the Union. The Eu-ropean Parliament and national Parlia-ments shall be notifi ed of this applica-tion. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Com-mission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agree-ment between the Member States and the applicant State. This agreement shall be submitted for ratifi cation by all the contracting States in accordance with their respective constitutional require-ments.

Article 501. Any Member State may decide to

withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Coun-cil of its intention. In the light of the guide-lines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, tak-ing account of the framework for its fu-ture relationship with the Union. That agreement shall be negotiated in accord-ance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualifi ed ma-jority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of en-try into force of the withdrawal agreement or, failing that, two years after the notifi ca-tion referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdraw-ing Member State shall not participate in


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the discussions of the European Council or Council or in decisions concerning it.

A qualifi ed majority shall be defi ned in accordance with Article 238(3)(b) of the Treaty on the Functioning of the Europe-an Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.


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Treaty on the Functioning of the European Union

Article 21. When the Treaties confer on the Un-

ion exclusive competence in a specifi c area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Un-ion a competence shared with the Mem-ber States in a specifi c area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Un-ion has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its com-petence.

3. The Member States shall coordinate their economic and employment poli-cies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to defi ne and implement a common foreign and securi-ty policy, including the progressive fram-ing of a common defence policy.

5. In certain areas and under the con-ditions laid down in the Treaties, the Un-ion shall have competence to carry out actions to support, coordinate or supple-ment the actions of the Member States, without thereby superseding their com-petence in these areas.

Legally binding acts of the Union adopt-ed on the basis of the provisions of the Treaties relating to these areas shall not

entail harmonisation of Member States’ laws or regulations.

6. The scope of and arrangements for exercising the Union’s competences shall be determined by the provisions of the Treaties relating to each area.

Article 31. The Union shall have exclusive com-

petence in the following areas: (a) customs union; (b) the establishing of the competition

rules necessary for the functioning of the internal market;

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

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

(e) common commercial policy.2. The Union shall also have exclusive

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

Article 41. The Union shall share competence

with the Member States where the Trea-ties confer on it a competence which does not relate to the areas referred to in Arti-cles 3 and 6.

2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market;


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(b) social policy, for the aspects defi ned in this Treaty;

(c) economic, social and territorial cohe-sion;

(d) agriculture and fi sheries, excluding the conservation of marine biological re-sources;

(e) environment; (f ) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public

health matters, for the aspects defi ned in this Treaty.

3. In the areas of research, technologi-cal development and space, the Union shall have competence to carry out activi-ties, in particular to defi ne and implement programmes; however, the exercise of that competence shall not result in Mem-ber States being prevented from exercis-ing theirs.

4. In the areas of development coopera-tion and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

Article 6The Union shall have competence to

carry out actions to support, coordinate or supplement the actions of the Mem-ber States. The areas of such action shall, at European level, be: (a) protection and improvement of hu-

man health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth

and sport;

(f ) civil protection; (g) administrative cooperation.

Article 18Within the scope of application of the

Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

The European Parliament and the Coun-cil, acting in accordance with the ordinary legislative procedure, may adopt rules de-signed to prohibit such discrimination.

Article 191. Without prejudice to the other pro-

visions of the Treaties and within the lim-its of the powers conferred by them upon the Union, the Council, acting unani-mously in accordance with a special leg-islative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat dis-crimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. By way of derogation from para-graph 1, the European Parliament and the Council, acting in accordance with the or-dinary legislative procedure, may adopt the basic principles of Union incentive measures, excluding any harmonisation of the laws and regulations of the Mem-ber States, to support action taken by the Member States in order to contribute to the achievement of the objectives re-ferred to in paragraph 1.

Article 201. Citizenship of the Union is hereby es-

tablished. Every person holding the na-tionality of a Member State shall be a citi-zen of the Union. Citizenship of the Union


174

shall be additional to and not replace na-tional citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provid-ed for in the Treaties. They shall have, in-ter alia: (a) the right to move and reside free-

ly within the territory of the Member States;

(b) the right to vote and to stand as candi-dates in elections to the European Par-liament and in municipal elections in their Member State of residence, un-der the same conditions as nationals of that State;

(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the dip-lomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

(d) the right to petition the European Par-liament, to apply to the European Om-budsman, and to address the institu-tions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accord-ance with the conditions and limits de-fi ned by the Treaties and by the measures adopted thereunder.

THE EUROPEAN PARLIAMENT

Article 2231. The European Parliament shall draw

up a proposal to lay down the provisions necessary for the election of its Members by direct universal suff rage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council, acting unanimously in ac-cordance with a special legislative proce-

dure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.

2. The European Parliament, acting by means of regulations on its own initia-tive in accordance with a special legisla-tive procedure after seeking an opinion from the Commission and with the con-sent of the Council, shall lay down the regulations and general conditions gov-erning the performance of the duties of its Members. All rules or conditions relat-ing to the taxation of Members or former Members shall require unanimity within the Council.

Article 224The European Parliament and the Coun-

cil, acting in accordance with the ordinary legislative procedure, by means of regula-tions, shall lay down the regulations gov-erning political parties at European level referred to in Article 10(4) of the Treaty on European Union and in particular the rules regarding their funding.

Article 225The European Parliament may, acting

by a majority of its component Members, request the Commission to submit any ap-propriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a pro-posal, it shall inform the European Parlia-ment of the reasons.

Article 226In the course of its duties, the European

Parliament may, at the request of a quar-


175

ter of its component Members, set up a temporary Committee of Inquiry to in-vestigate, without prejudice to the pow-ers conferred by the Treaties on other institutions or bodies, alleged contraven-tions or maladministration in the imple-mentation of Union law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.

The temporary Committee of Inquiry shall cease to exist on the submission of its report.

The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special leg-islative procedure, after obtaining the consent of the Council and the Commis-sion.

Article 227Any citizen of the Union, and any nat-

ural or legal person residing or having its registered offi ce in a Member State, shall have the right to address, individually or in association with other citizens or per-sons, a petition to the European Parlia-ment on a matter which comes within the Union’s fi elds of activity and which aff ects him, her or it directly.

Article 2281. A European Ombudsman, elected

by the European Parliament, shall be em-powered to receive complaints from any citizen of the Union or any natural or le-gal person residing or having its regis-tered offi ce in a Member State concern-ing instances of maladministration in the activities of the Union institutions, bodies, offi ces or agencies, with the exception of the Court of Justice of the European Un-ion acting in its judicial role. He or she

shall examine such complaints and report on them.

In accordance with his duties, the Om-budsman shall conduct inquiries for which he fi nds grounds, either on his own initia-tive or on the basis of complaints submit-ted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the mat-ter to the institution, body, offi ce or agen-cy concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then for-ward a report to the European Parliament and the institution, body, offi ce or agency concerned. The person lodging the com-plaint shall be informed of the outcome of such inquiries.

The Ombudsman shall submit an annu-al report to the European Parliament on the outcome of his inquiries.

2. The Ombudsman shall be elected af-ter each election of the European Parlia-ment for the duration of its term of offi ce. The Ombudsman shall be eligible for re-appointment.

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfi ls the conditions required for the perform-ance of his duties or if he is guilty of seri-ous misconduct.

3. The Ombudsman shall be complete-ly independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any Government, institution, body, offi ce or entity. The Ombudsman may not, during his term of offi ce, engage in any other occupation, whether gainful or not.

4. The European Parliament acting by means of regulations on its own initiative


176

in accordance with a special legislative procedure shall, after seeking an opinion from the Commission and with the con-sent of the Council, lay down the regula-tions and general conditions governing the performance of the Ombudsman’s duties.

Article 229The European Parliament shall hold an

annual session. It shall meet, without re-quiring to be convened, on the second Tuesday in March.

The European Parliament may meet in extraordinary part-session at the request of a majority of its component Members or at the request of the Council or of the Commission.

Article 230The Commission may attend all the

meetings and shall, at its request, be heard.

The Commission shall reply orally or in writing to questions put to it by the Euro-pean Parliament or by its Members.

The European Council and the Coun-cil shall be heard by the European Parlia-ment in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.

Article 231Save as otherwise provided in the Trea-

ties, the European Parliament shall act by a majority of the votes cast.

The Rules of Procedure shall determine the quorum.

Article 232The European Parliament shall adopt its

Rules of Procedure, acting by a majority of its Members.

The proceedings of the European Par-liament shall be published in the manner laid down in the Treaties and in its Rules of Procedure.

Article 233The European Parliament shall discuss

in open session the annual general report submitted to it by the Commission.

Article 234If a motion of censure on the activities

of the Commission is tabled before it, the European Parliament shall not vote ther-eon until at least three days after the mo-tion has been tabled and only by open vote.

If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component Members of the European Parliament, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Aff airs and Se-curity Policy shall resign from duties that he or she carries out in the Commission. They shall remain in offi ce and continue to deal with current business until they are replaced in accordance with Article 17 of the Treaty on European Union. In this case, the term of offi ce of the members of the Commission appointed to replace them shall expire on the date on which the term of offi ce of the members of the Commission obliged to resign as a body would have expired.

THE EUROPEAN COUNCIL

Article 2351. Where a vote is taken, any member of

the European Council may also act on be-half of not more than one other member.

Article 16(4) of the Treaty on Europe-an Union and Article 238(2) of this Treaty


177

shall apply to the European Council when it is acting by a qualifi ed majority. Where the European Council decides by vote, its President and the President of the Com-mission shall not take part in the vote.

Abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity.

2. The President of the European Parlia-ment may be invited to be heard by the European Council.

3. The European Council shall act by a simple majority for procedural ques-tions and for the adoption of its Rules of Procedure.

4. The European Council shall be as-sisted by the General Secretariat of the Council.

Article 236The European Council shall adopt by

a qualifi ed majority: (a) a decision establishing the list of Coun-

cil confi gurations, other than those of the General Aff airs Council and of the Foreign Aff airs Council, in accordance with Article 16(6) of the Treaty on Eu-ropean Union;

(b) a decision on the Presidency of Coun-cil confi gurations, other than that of Foreign Aff airs, in accordance with Ar-ticle 16(9) of the Treaty on European Union.

THE COUNCIL

Article 237The Council shall meet when convened

by its President on his own initiative or at the request of one of its Members or of the Commission.

Article 2381. Where it is required to act by a simple

majority, the Council shall act by a major-ity of its component members.

2. By way of derogation from Article 16(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, where the Council does not act on a proposal from the Com-mission or from the High Representative of the Union for Foreign Aff airs and Secu-rity Policy, the qualifi ed majority shall be defi ned as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the popula-tion of the Union.

3. As from 1 November 2014 and sub-ject to the provisions laid down in the Protocol on transitional provisions, in cas-es where, under the Treaties, not all the members of the Council participate in voting, a qualifi ed majority shall be de-fi ned as follows: (a) A qualifi ed majority shall be defi ned

as at least 55 % of the members of the Council representing the partici-pating Member States, comprising at least 65 % of the population of these States.

A blocking minority must include at least the minimum number of Coun-cil members representing more than 35 % of the population of the partici-pating Member States, plus one mem-ber, failing which the qualifi ed major-ity shall be deemed attained;

(b) By way of derogation from point (a), where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Aff airs and Security Policy, the qualifi ed majority shall be defi ned as at least 72 % of the mem-bers of the Council representing the


178

participating Member States, compris-ing at least 65 % of the population of these States.

4. Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.

Article 239Where a vote is taken, any Member of

the Council may also act on behalf of not more than one other member.

Article 2401. A committee consisting of the Perma-

nent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter. The Committee may adopt pro-cedural decisions in cases provided for in the Council’s Rules of Procedure.

2. The Council shall be assisted by a General Secretariat, under the responsi-bility of a Secretary-General appointed by the Council.

The Council shall decide on the organi-sation of the General Secretariat by a sim-ple majority.

3. The Council shall act by a simple ma-jority regarding procedural matters and for the adoption of its Rules of Procedure.

Article 241The Council, acting by a simple majori-

ty, may request the Commission to under-take any studies the Council considers de-sirable for the attainment of the common objectives, and to submit to it any appro-priate proposals. If the Commission does not submit a proposal, it shall inform the Council of the reasons.

Article 242The Council, acting by a simple major-

ity shall, after consulting the Commission, determine the rules governing the com-mittees provided for in the Treaties.

Article 243The Council shall determine the sal-

aries, allowances and pensions of the President of the European Council, the President of the Commission, the High Representative of the Union for Foreign Aff airs and Security Policy, the Members of the Commission, the Presidents, Mem-bers and Registrars of the Court of Justice of the European Union, and the Secretary-General of the Council. It shall also deter-mine any payment to be made instead of remuneration.

COMMISSION

Article 244In accordance with Article 17(5) of the

Treaty on European Union, the Members of the Commission shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the following princi-ples: (a) Member States shall be treated on

a strictly equal footing as regards de-termination of the sequence of, and the time spent by, their nationals as members of the Commission; conse-quently, the diff erence between the total number of terms of offi ce held by nationals of any given pair of Member States may never be more than one;

(b) subject to point (a), each successive Commission shall be so composed as to refl ect satisfactorily the demo-graphic and geographical range of all the Member States.


179

Article 245The Members of the Commission shall

refrain from any action incompatible with their duties. Member States shall respect their independence and shall not seek to infl uence them in the performance of their tasks.

The Members of the Commission may not, during their term of offi ce, engage in any other occupation, whether gainful or not. When entering upon their duties they shall give a solemn undertaking that, both during and after their term of offi ce, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold offi ce, of certain appoint-ments or benefi ts. In the event of any breach of these obligations, the Court of Justice may, on application by the Council acting by a simple majority or the Com-mission, rule that the Member concerned be, according to the circumstances, ei-ther compulsorily retired in accordance with Article 247 or deprived of his right to a pension or other benefi ts in its stead.

Article 246Apart from normal replacement, or

death, the duties of a Member of the Commission shall end when he resigns or is compulsorily retired.

A vacancy caused by resignation, com-pulsory retirement or death shall be fi lled for the remainder of the Member’s term of offi ce by a new Member of the same nationality appointed by the Council, by common accord with the President of the Commission, after consulting the Euro-pean Parliament and in accordance with the criteria set out in the second subpara-graph of Article 17(3) of the Treaty on Eu-ropean Union.

The Council may, acting unanimously on a proposal from the President of the Commission, decide that such a vacancy need not be fi lled, in particular when the remainder of the Member’s term of offi ce is short.

In the event of resignation, compulsory retirement or death, the President shall be replaced for the remainder of his term of offi ce. The procedure laid down in the fi rst subparagraph of Article 17(7) of the Trea-ty on European Union shall be applicable for the replacement of the President.

In the event of resignation, compulsory retirement or death, the High Represent-ative of the Union for Foreign Aff airs and Security Policy shall be replaced, for the remainder of his or her term of offi ce, in accordance with Article 18(1) of the Treaty on European Union.

In the case of the resignation of all the Members of the Commission, they shall remain in offi ce and continue to deal with current business until they have been re-placed, for the remainder of their term of offi ce, in accordance with Article 17 of the Treaty on European Union.

Article 247If any Member of the Commission no

longer fulfi ls the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.

Article 248Without prejudice to Article 18(4) of the

Treaty on European Union, the responsi-bilities incumbent upon the Commission shall be structured and allocated among its members by its President, in accord-ance with Article 17(6) of that Treaty. The


180

President may reshuffl e the allocation of those responsibilities during the Commis-sion’s term of offi ce. The Members of the Commission shall carry out the duties de-volved upon them by the President under his authority.

Article 2491. The Commission shall adopt its Rules

of Procedure so as to ensure that both it and its departments operate. It shall en-sure that these Rules are published.

2. The Commission shall publish annu-ally, not later than one month before the opening of the session of the European Parliament, a general report on the activi-ties of the Union.

Article 250The Commission shall act by a majority

of its Members.Its Rules of Procedure shall determine

the quorum.

THE COURT OF JUSTICE OF THE EUROPEAN UNION

Article 251The Court of Justice shall sit in cham-

bers or in a Grand Chamber, in accord-ance with the rules laid down for that pur-pose in the Statute of the Court of Justice of the European Union.

When provided for in the Statute, the Court of Justice may also sit as a full Court.

Article 252The Court of Justice shall be assisted

by eight Advocates-General. Should the Court of Justice so request, the Council, acting unanimously, may increase the number of Advocates-General.

It shall be the duty of the Advocate-General, acting with complete impartial-

ity and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Un-ion, require his involvement.

Article 253The Judges and Advocates- General

of the Court of Justice shall be chosen from persons whose independence is be-yond doubt and who possess the qualifi -cations required for appointment to the highest judicial offi ces in their respective countries or who are jurisconsults of rec-ognised competence; they shall be ap-pointed by common accord of the gov-ernments of the Member States for a term of six years, after consultation of the panel provided for in Article 255.

Every three years there shall be a par-tial replacement of the Judges and Ad-vocates-General, in accordance with the conditions laid down in the Statute of the Court of Justice of the European Union.

The Judges shall elect the President of the Court of Justice from among their number for a term of three years. He may be re-elected.

Retiring Judges and Advocates-General may be reappointed.

The Court of Justice shall appoint its Registrar and lay down the rules govern-ing his service.

The Court of Justice shall establish its Rules of Procedure. Those Rules shall re-quire the approval of the Council.

Article 254The number of Judges of the Gener-

al Court shall be determined by the Stat-ute of the Court of Justice of the Euro-pean Union. The Statute may provide for the General Court to be assisted by Advo-cates-General.


181

The members of the General Court shall be chosen from persons whose in-dependence is beyond doubt and who possess the ability required for appoint-ment to high judicial offi ce. They shall be appointed by common accord of the gov-ernments of the Member States for a term of six years, after consultation of the pan-el provided for in Article 255. The mem-bership shall be partially renewed every three years. Retiring members shall be eli-gible for reappointment.

The Judges shall elect the President of the General Court from among their number for a term of three years. He may be re-elected.

The General Court shall appoint its Reg-istrar and lay down the rules governing his service.

The General Court shall establish its Rules of Procedure in agreement with the Court of Justice. Those Rules shall require the approval of the Council.

Unless the Statute of the Court of Jus-tice of the European Union provides oth-erwise, the provisions of the Treaties relat-ing to the Court of Justice shall apply to the General Court.

Article 255A panel shall be set up in order to give

an opinion on candidates’ suitability to perform the duties of Judge and Advo-cate-General of the Court of Justice and the General Court before the govern-ments of the Member States make the ap-pointments referred to in Articles 253 and 254.

The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the Euro-pean Parliament. The Council shall adopt

a decision establishing the panel’s oper-ating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.

Article 2561. The General Court shall have juris-

diction to hear and determine at fi rst in-stance actions or proceedings referred to in Articles 263, 265, 268, 270 and 272, with the exception of those assigned to a spe-cialised court set up under Article 257 and those reserved in the Statute for the Court of Justice. The Statute may provide for the General Court to have jurisdiction for oth-er classes of action or proceeding.

Decisions given by the General Court under this paragraph may be subject to a right of appeal to the Court of Justice on points of law only, under the condi-tions and within the limits laid down by the Statute.

2. The General Court shall have jurisdic-tion to hear and determine actions or pro-ceedings brought against decisions of the specialised courts.

Decisions given by the General Court under this paragraph may exceptionally be subject to review by the Court of Jus-tice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or con-sistency of Union law being aff ected.

3. The General Court shall have jurisdic-tion to hear and determine questions re-ferred for a preliminary ruling under Arti-cle 267, in specifi c areas laid down by the Statute.

Where the General Court considers that the case requires a decision of princi-ple likely to aff ect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling.

Decisions given by the General Court on questions referred for a preliminary


182

ruling may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being aff ected.

Article 257The European Parliament and the

Council, acting in accordance with the ordinary legislative procedure, may es-tablish specialised courts attached to the General Court to hear and determine at fi rst instance certain classes of action or proceeding brought in specifi c areas. The European Parliament and the Coun-cil shall act by means of regulations either on a proposal from the Commission after consultation of the Court of Justice or at the request of the Court of Justice after consultation of the Commission.

The regulation establishing a special-ised court shall lay down the rules on the organisation of the court and the extent of the jurisdiction conferred upon it.

Decisions given by specialised courts may be subject to a right of appeal on points of law only or, when provided for in the regulation establishing the special-ised court, a right of appeal also on mat-ters of fact, before the General Court.

The members of the specialised courts shall be chosen from persons whose inde-pendence is beyond doubt and who pos-sess the ability required for appointment to judicial offi ce. They shall be appointed by the Council, acting unanimously.

The specialised courts shall establish their Rules of Procedure in agreement with the Court of Justice. Those Rules shall require the approval of the Council.

Unless the regulation establishing the specialised court provides otherwise, the provisions of the Treaties relating to the Court of Justice of the European Union

and the provisions of the Statute of the Court of Justice of the European Union shall apply to the specialised courts. Ti-tle I of the Statute and Article 64 thereof shall in any case apply to the specialised courts.

Article 258If the Commission considers that

a Member State has failed to fulfi l an ob-ligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportu-nity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Jus-tice of the European Union.

Article 259A Member State which considers that

another Member State has failed to ful-fi l an obligation under the Treaties may bring the matter before the Court of Jus-tice of the European Union.

Before a Member State brings an action against another Member State for an al-leged infringement of an obligation un-der the Treaties, it shall bring the matter before the Commission.

The Commission shall deliver a rea-soned opinion after each of the States concerned has been given the opportuni-ty to submit its own case and its observa-tions on the other party’s case both orally and in writing.

If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court.


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Article 2601. If the Court of Justice of the European

Union fi nds that a Member State has failed to fulfi l an obligation under the Treaties, the State shall be required to take the nec-essary measures to comply with the judg-ment of the Court.

2. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its obser-vations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstanc-es.

If the Court fi nds that the Member State concerned has not complied with its judg-ment it may impose a lump sum or penal-ty payment on it.

This procedure shall be without preju-dice to Article 259.

3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfi l its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

If the Court fi nds that there is an in-fringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specifi ed by the Commission. The pay-ment obligation shall take eff ect on the date set by the Court in its judgment.

Article 261Regulations adopted jointly by the Eu-

ropean Parliament and the Council, and by the Council, pursuant to the provisions of the Treaties, may give the Court of Jus-tice of the European Union unlimited ju-risdiction with regard to the penalties provided for in such regulations.

Article 262Without prejudice to the other provi-

sions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, may adopt pro-visions to confer jurisdiction, to the extent that it shall determine, on the Court of Justice of the European Union in disputes relating to the application of acts adopt-ed on the basis of the Treaties which cre-ate European intellectual property rights. These provisions shall enter into force af-ter their approval by the Member States in accordance with their respective constitu-tional requirements.

Article 263The Court of Justice of the European

Union shall review the legality of legis-lative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Par-liament and of the European Council in-tended to produce legal eff ects vis-à-vis third parties. It shall also review the legal-ity of acts of bodies, offi ces or agencies of the Union intended to produce legal ef-fects vis-à-vis third parties.

It shall for this purpose have jurisdic-tion in actions brought by a Member State, the European Parliament, the Coun-cil or the Commission on grounds of lack of competence, infringement of an essen-tial procedural requirement, infringement


184

of the Treaties or of any rule of law relating to their application, or misuse of powers.

The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the Europe-an Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.

Any natural or legal person may, under the conditions laid down in the fi rst and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual con-cern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

Acts setting up bodies, offi ces and agencies of the Union may lay down spe-cifi c conditions and arrangements con-cerning actions brought by natural or le-gal persons against acts of these bodies, offi ces or agencies intended to produce legal eff ects in relation to them.

The proceedings provided for in this Ar-ticle shall be instituted within two months of the publication of the measure, or of its notifi cation to the plaintiff , or, in the ab-sence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

Article 264If the action is well founded, the Court

of Justice of the European Union shall de-clare the act concerned to be void.

However, the Court shall, if it considers this necessary, state which of the eff ects of the act which it has declared void shall be considered as defi nitive.

Article 265Should the European Parliament, the

European Council, the Council, the Com-mission or the European Central Bank, in infringement of the Treaties, fail to act, the

Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Un-ion to have the infringement established. This Article shall apply, under the same conditions, to bodies, offi ces and agen-cies of the Union which fail to act.

The action shall be admissible only if the institution, body, offi ce or agen-cy concerned has fi rst been called upon to act. If, within two months of being so called upon, the institution, body, offi ce or agency concerned has not defi ned its position, the action may be brought with-in a further period of two months.

Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, offi ce or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.

Article 266The institution whose act has been de-

clared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Un-ion.

This obligation shall not aff ect any ob-ligation which may result from the appli-cation of the second paragraph of Article 340.


Union shall have jurisdiction to give pre-liminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts

of the institutions, bodies, offi ces or agencies of the Union;


185

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is neces-sary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribu-nal of a Member State against whose de-cisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the Eu-ropean Union shall act with the minimum of delay.


Union shall have jurisdiction in disputes relating to compensation for damage provided for in the second and third para-graphs of Article 340.

Article 269The Court of Justice shall have juris-

diction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the re-quest of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such deter-mination. The Court shall rule within one month from the date of the request.


Union shall have jurisdiction in any dis-

pute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Of-fi cials and the Conditions of Employment of other servants of the Union.


Union shall, within the limits hereinafter laid down, have jurisdiction in disputes concerning: (a) the fulfi lment by Member States of ob-

ligations under the Statute of the Euro-pean Investment Bank. In this connec-tion, the Board of Directors of the Bank shall enjoy the powers conferred upon the Commission by Article 258;

(b) measures adopted by the Board of Governors of the European Investment Bank. In this connection, any Member State, the Commission or the Board of Directors of the Bank may institute proceedings under the conditions laid down in Article 263;

(c) measures adopted by the Board of Di-rectors of the European Investment Bank. Proceedings against such meas-ures may be instituted only by Mem-ber States or by the Commission, under the conditions laid down in Ar-ticle 263, and solely on the grounds of non-compliance with the procedure provided for in Article 19(2), (5), (6) and (7) of the Statute of the Bank;

(d) the fulfi lment by national central banks of obligations under the Trea-ties and the Statute of the ESCB and of the ECB. In this connection the pow-ers of the Governing Council of the Eu-ropean Central Bank in respect of na-tional central banks shall be the same as those conferred upon the Commis-sion in respect of Member States by Article 258. If the Court fi nds that a na-tional central bank has failed to fulfi l


186

an obligation under the Treaties, that bank shall be required to take the nec-essary measures to comply with the judgment of the Court.


Union shall have jurisdiction to give judg-ment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that con-tract be governed by public or private law.

Article 273The Court of Justice shall have juris-

diction 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.

Article 274Save where jurisdiction is conferred on

the Court of Justice of the European Un-ion by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States.


Union shall not have jurisdiction with re-spect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.

However, the Court shall have juris-diction to monitor compliance with Ar-ticle 40 of the Treaty on European Union and to rule on proceedings, brought in ac-cordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against

natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

Article 276In exercising its powers regarding the

provisions of Chapters 4 and 5 of Title V of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no ju-risdiction to review the validity or propor-tionality 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 in-ternal security.

Article 277Notwithstanding the expiry of the pe-

riod laid down in Article 263, sixth para-graph, any party may, in proceedings in which an act of general application adopted by an institution, body, offi ce or agency of the Union is at issue, plead the grounds specifi ed in Article 263, second paragraph, in order to invoke before the Court of Justice of the European Union the inapplicability of that act.

Article 278Actions brought before the Court of

Justice of the European Union shall not have suspensory eff ect. The Court may, however, if it considers that circumstanc-es so require, order that application of the contested act be suspended.


Union may in any cases before it prescribe any necessary interim measures.


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Article 280The judgments of the Court of Justice

of the European Union shall be enforcea-ble under the conditions laid down in Ar-ticle 299.

Article 281The Statute of the Court of Justice of

the European Union shall be laid down in a separate Protocol.

The European Parliament and the Council, acting in accordance with the or-dinary legislative procedure, may amend the provisions of the Statute, with the ex-ception of Title I and Article 64. The Euro-pean Parliament and the Council shall act either at the request of the Court of Jus-tice and after consultation of the Commis-sion, or on a proposal from the Commis-sion and after consultation of the Court of Justice.

THE LEGAL ACTS OF THE UNION

Article 288To exercise the Union’s competences,

the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

A regulation shall have general applica-tion. It shall be binding in its entirety and directly applicable in all Member States.

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

A decision shall be binding in its en-tirety. A decision which specifi es those to whom it is addressed shall be binding only on them.

Recommendations and opinions shall have no binding force.

Article 2891. The ordinary legislative procedure

shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defi ned in Article 294.

2. In the specifi c cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the partici-pation of the European Parliament, shall constitute a special legislative procedure.

3. Legal acts adopted by legislative pro-cedure shall constitute legislative acts.

4. In the specifi c cases provided for by the Treaties, legislative acts may be adopt-ed on the initiative of a group of Member States or of the European Parliament, on a recommendation from the Europe-an Central Bank or at the request of the Court of Justice or the European Invest-ment Bank.

Article 2901. A legislative act may delegate to the

Commission the power to adopt non-leg-islative acts of general application to sup-plement or amend certain non-essential elements of the legislative act.

The objectives, content, scope and du-ration of the delegation of power shall be explicitly defi ned in the legislative acts. The essential elements of an area shall be reserved for the legislative act and ac-cordingly shall not be the subject of a del-egation of power.

2. Legislative acts shall explicitly lay down the conditions to which the delega-tion is subject; these conditions may be as follows: (a) the European Parliament or the Coun-

cil may decide to revoke the delega-tion;


188

(b) the delegated act may enter into force only if no objection has been ex-pressed by the European Parliament or the Council within a period set by the legislative act.

For the purposes of (a) and (b), the Euro-pean Parliament shall act by a majority of its component members, and the Council by a qualifi ed majority.

3. The adjective „delegated“ shall be in-serted in the title of delegated acts.

Article 2911. Member States shall adopt all meas-

ures of national law necessary to imple-ment legally binding Union acts.

2. Where uniform conditions for imple-menting legally binding Union acts are needed, those acts shall confer imple-menting powers on the Commission, or, in duly justifi ed specifi c cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.

3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accord-ance with the ordinary legislative proce-dure, shall lay down in advance the rules and general principles concerning mech-anisms for control by Member States of the Commission’s exercise of implement-ing powers.

4. The word „implementing“ shall be in-serted in the title of implementing acts.

Article 292The Council shall adopt recommenda-

tions. It shall act on a proposal from the Commission in all cases where the Trea-ties provide that it shall adopt acts on a proposal from the Commission. It shall act unanimously in those areas in which unanimity is required for the adoption of

a Union act. The Commission, and the Eu-ropean Central Bank in the specifi c cases provided for in the Treaties, shall adopt recommendations.

PROCEDURES FOR THE ADOPTION OF ACTS AND OTHER PROVISIONS

Article 2931. Where, pursuant to the Treaties, the

Council acts on a proposal from the Com-mission, it may amend that proposal only by acting unanimously, except in the cas-es referred to in paragraphs 10 and 13 of Article 294, in Articles 310, 312 and 314 and in the second paragraph of Article 315.

2. As long as the Council has not acted, the Commission may alter its proposal at any time during the procedures leading to the adoption of a Union act.

Article 2941. Where reference is made in the Trea-

ties to the ordinary legislative procedure for the adoption of an act, the following procedure shall apply.

2. The Commission shall submit a pro-posal to the European Parliament and the Council.

First reading3. The European Parliament shall adopt

its position at fi rst reading and communi-cate it to the Council.

4. If the Council approves the European Parliament’s position, the act concerned shall be adopted in the wording which corresponds to the position of the Euro-pean Parliament.

5. If the Council does not approve the European Parliament’s position, it shall adopt its position at fi rst reading and communicate it to the European Parlia-ment.


189

6. The Council shall inform the Europe-an Parliament fully of the reasons which led it to adopt its position at fi rst reading. The Commission shall inform the Europe-an Parliament fully of its position.

Second reading7. If, within three months of such com-

munication, the European Parliament: (a) approves the Council’s position at fi rst

reading or has not taken a decision, the act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council;

(b) rejects, by a majority of its component members, the Council’s position at fi rst reading, the proposed act shall be deemed not to have been adopted;

(c) proposes, by a majority of its compo-nent members, amendments to the Council’s position at fi rst reading, the text thus amended shall be forward-ed to the Council and to the Commis-sion, which shall deliver an opinion on those amendments.

8. If, within three months of receiving the European Parliament’s amendments, the Council, acting by a qualifi ed major-ity: (a) approves all those amendments, the

act in question shall be deemed to have been adopted;

(b) does not approve all the amendments, the President of the Council, in agree-ment with the President of the Euro-pean Parliament, shall within six weeks convene a meeting of the Conciliation Committee.

9. The Council shall act unanimously on the amendments on which the Commis-sion has delivered a negative opinion.

Conciliation10. The Conciliation Committee, which

shall be composed of the members of the Council or their representatives and an

equal number of members representing the European Parliament, shall have the task of reaching agreement on a joint text, by a qualifi ed majority of the members of the Council or their representatives and by a majority of the members represent-ing the European Parliament within six weeks of its being convened, on the ba-sis of the positions of the European Parlia-ment and the Council at second reading.

11. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all necessary initiatives with a view to reconciling the positions of the European Parliament and the Council.

12. If, within six weeks of its being con-vened, the Conciliation Committee does not approve the joint text, the proposed act shall be deemed not to have been adopted.

Third reading13. If, within that period, the Concilia-

tion Committee approves a joint text, the European Parliament, acting by a majori-ty of the votes cast, and the Council, act-ing by a qualifi ed majority, shall each have a period of six weeks from that approval in which to adopt the act in question in ac-cordance with the joint text. If they fail to do so, the proposed act shall be deemed not to have been adopted.

14. The periods of three months and six weeks referred to in this Article shall be extended by a maximum of one month and two weeks respectively at the initia-tive of the European Parliament or the Council.

Special provisions15. Where, in the cases provided for in

the Treaties, a legislative act is submitted to the ordinary legislative procedure on the initiative of a group of Member States, on a recommendation by the Europe-an Central Bank, or at the request of the Court of Justice, paragraph 2, the second


190

sentence of paragraph 6, and paragraph 9 shall not apply.

In such cases, the European Parliament and the Council shall communicate the proposed act to the Commission with their positions at fi rst and second readings. The European Parliament or the Council may request the opinion of the Commission throughout the procedure, which the Commission may also deliver on its own initiative. It may also, if it deems it neces-sary, take part in the Conciliation Commit-tee in accordance with paragraph 11.

Article 295The European Parliament, the Council

and the Commission shall consult each other and by common agreement make arrangements for their cooperation. To that end, they may, in compliance with the Treaties, conclude interinstitutional agreements which may be of a binding nature.

Article 296Where the Treaties do not specify the

type of act to be adopted, the institutions shall select it on a case-by-case basis, in compliance with the applicable proce-dures and with the principle of propor-tionality.

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

When considering draft legislative acts, the European Parliament and the Council shall refrain from adopting acts not pro-vided for by the relevant legislative proce-dure in the area in question.

Article 2971. Legislative acts adopted under the

ordinary legislative procedure shall be signed by the President of the European Parliament and by the President of the Council.

Legislative acts adopted under a spe-cial legislative procedure shall be signed by the President of the institution which adopted them.

Legislative acts shall be published in the Offi cial Journal of the European Un-ion. They shall enter into force on the date specifi ed in them or, in the absence there-of, on the twentieth day following that of their publication.

2. Non-legislative acts adopted in the form of regulations, directives or deci-sions, when the latter do not specify to whom they are addressed, shall be signed by the President of the institution which adopted them.

Regulations and directives which are addressed to all Member States, as well as decisions which do not specify to whom they are addressed, shall be published in the Offi cial Journal of the European Un-ion. They shall enter into force on the date specifi ed in them or, in the absence there-of, on the twentieth day following that of their publication.

Other directives, and decisions which specify to whom they are addressed, shall be notifi ed to those to whom they are ad-dressed and shall take eff ect upon such notifi cation.

ENHANCED COOPERATION

Article 326Any enhanced cooperation shall com-

ply with the Treaties and Union law.Such cooperation shall not undermine

the internal market or economic, social and territorial cohesion. It shall not consti-


191

tute a barrier to or discrimination in trade between Member States, nor shall it dis-tort competition between them.

Article 327Any enhanced cooperation shall re-

spect the competences, rights and obli-gations of those Member States which do not participate in it. Those Member States shall not impede its implementation by the participating Member States.

Article 3281. When enhanced cooperation is being

established, it shall be open to all Mem-ber States, subject to compliance with any conditions of participation laid down by the authorising decision. It shall also be open to them at any other time, sub-ject to compliance with the acts already adopted within that framework, in addi-tion to those conditions.

The Commission and the Member States participating in enhanced cooper-ation shall ensure that they promote par-ticipation by as many Member States as possible.

2. The Commission and, where appro-priate, the High Representative of the Un-ion for Foreign Aff airs and Security Policy shall keep the European Parliament and the Council regularly informed regarding developments in enhanced cooperation.

Article 3291. Member States which wish to es-

tablish enhanced cooperation between themselves in one of the areas covered by the Treaties, with the exception of fi elds of exclusive competence and the common foreign and security policy, shall address a request to the Commission, specifying the scope and objectives of the enhanced cooperation proposed. The Commission may submit a proposal to the Council to

that eff ect. In the event of the Commis-sion not submitting a proposal, it shall in-form the Member States concerned of the reasons for not doing so.

Authorisation to proceed with the en-hanced cooperation referred to in the fi rst subparagraph shall be granted by the Council, on a proposal from the Commis-sion and after obtaining the consent of the European Parliament.

2. The request of the Member States which wish to establish enhanced coop-eration between themselves within the framework of the common foreign and security policy shall be addressed to the Council. It shall be forwarded to the High Representative of the Union for Foreign Aff airs and Security Policy, who shall give an opinion on whether the enhanced co-operation proposed is consistent with the Union’s common foreign and security pol-icy, and to the Commission, which shall give its opinion in particular on wheth-er the enhanced cooperation proposed is consistent with other Union policies. It shall also be forwarded to the European Parliament for information.

Authorisation to proceed with en-hanced cooperation shall be granted by a decision of the Council acting unani-mously.

Article 330All members of the Council may partic-

ipate in its deliberations, but only mem-bers of the Council representing the Member States participating in enhanced cooperation shall take part in the vote.

Unanimity shall be constituted by the votes of the representatives of the partici-pating Member States only.

A qualifi ed majority shall be defi ned in accordance with Article 238(3).


192

Article 3311. Any Member State which wishes to

participate in enhanced cooperation in progress in one of the areas referred to in Article 329(1) shall notify its intention to the Council and the Commission.

The Commission shall, within four months of the date of receipt of the no-tifi cation, confi rm the participation of the Member State concerned. It shall note where necessary that the conditions of participation have been fulfi lled and shall adopt any transitional measures neces-sary with regard to the application of the acts already adopted within the frame-work of enhanced cooperation.

However, if the Commission considers that the conditions of participation have not been fulfi lled, it shall indicate the ar-rangements to be adopted to fulfi l those conditions and shall set a deadline for re-examining the request. On the expiry of that deadline, it shall re-examine the re-quest, in accordance with the procedure set out in the second subparagraph. If the Commission considers that the conditions of participation have still not been met, the Member State concerned may refer the matter to the Council, which shall de-cide on the request. The Council shall act in accordance with Article 330. It may also adopt the transitional measures referred to in the second subparagraph on a pro-posal from the Commission.

2. Any Member State which wishes to participate in enhanced cooperation in progress in the framework of the com-mon foreign and security policy shall no-tify its intention to the Council, the High Representative of the Union for Foreign Aff airs and Security Policy and the Com-mission.

The Council shall confi rm the participa-tion of the Member State concerned, af-ter consulting the High Representative of

the Union for Foreign Aff airs and Security Policy and after noting, where necessary, that the conditions of participation have been fulfi lled. The Council, on a proposal from the High Representative, may also adopt any transitional measures neces-sary with regard to the application of the acts already adopted within the frame-work of enhanced cooperation. Howev-er, if the Council considers that the con-ditions of participation have not been fulfi lled, it shall indicate the arrangements to be adopted to fulfi l those conditions and shall set a deadline for re-examining the request for participation.

For the purposes of this paragraph, the Council shall act unanimously and in ac-cordance with Article 330.

Article 332Expenditure resulting from implemen-

tation of enhanced cooperation, other than administrative costs entailed for the institutions, shall be borne by the partic-ipating Member States, unless all mem-bers of the Council, acting unanimously after consulting the European Parliament, decide otherwise.

Article 3331. Where a provision of the Treaties

which may be applied in the context of enhanced cooperation stipulates that the Council shall act unanimously, the Coun-cil, acting unanimously in accordance with the arrangements laid down in Arti-cle 330, may adopt a decision stipulating that it will act by a qualifi ed majority.

2. Where a provision of the Treaties which may be applied in the context of enhanced cooperation stipulates that the Council shall adopt acts under a special legislative procedure, the Council, acting unanimously in accordance with the ar-rangements laid down in Article 330, may


193

adopt a decision stipulating that it will act under the ordinary legislative procedure. The Council shall act after consulting the European Parliament.

3. Paragraphs 1 and 2 shall not apply to decisions having military or defence im-plications.

Article 334The Council and the Commission shall

ensure the consistency of activities un-dertaken in the context of enhanced co-operation and the consistency of such ac-tivities with the policies of the Union, and shall cooperate to that end.

Article 3521. If action by the Union should prove

necessary, within the framework of the policies defi ned in the Treaties, to attain one of the objectives set out in the Trea-ties, and the Treaties have not provided the necessary powers, the Council, act-ing unanimously on a proposal from the Commission and after obtaining the con-

sent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a spe-cial legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the con-sent of the European Parliament.

2. Using the procedure for monitoring the subsidiarity principle referred to in Ar-ticle 5(3) of the Treaty on European Union, the Commission shall draw national Par-liaments’ attention to proposals based on this Article.

3. Measures based on this Article shall not entail harmonisation of Member States’ laws or regulations in cases where the Treaties exclude such harmonisation.

4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Arti-cle shall respect the limits set out in Arti-cle 40, second paragraph, of the Treaty on European Union.


194

Charter of Fundamental Rights of the European Union

Preamble

The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.

Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, uni-versal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by es-tablishing the citizenship of the Union and by creating an area of freedom, security and jus-tice.

The Union contributes to the preservation and to the development of these common val-ues while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public au-thorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment.

To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientifi c and technological developments by making those rights more visible in a Charter.

This Charter reaffi rms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional tradi-tions and international obligations common to the Member States, the European Conven-tion for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context the Char-ter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention.

Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.

The Union therefore recognises the rights, freedoms and principles set out hereafter.

TITLE IDIGNITY

Article 1Human dignity

Human dignity is inviolable. It must be respected and protected.

Article 2Right to life

1. Everyone has the right to life.2. No one shall be condemned to the

death penalty, or executed.


195

Article 3Right to the integrity of the person1. Everyone has the right to respect for

his or her physical and mental integrity.2. In the fi elds of medicine and biology,

the following must be respected in par-ticular: (a) the free and informed consent of the

person concerned, according to the procedures laid down by law;

(b) the prohibition of eugenic practices, in particular those aiming at the selec-tion of persons;

(c) the prohibition on making the human body and its parts as such a source of fi nancial gain;

(d) the prohibition of the reproductive cloning of human beings.

Article 4Prohibition of torture and inhuman or degrading treatment or punishmentNo one shall be subjected to torture or

to inhuman or degrading treatment or punishment.

Article 5Prohibition of slavery and forced

labour1. No one shall be held in slavery or ser-

vitude.2. No one shall be required to perform

forced or compulsory labour.3. Traffi cking in human beings is pro-

hibited.

TITLE IIFREEDOMS

Article 6Right to liberty and security

Everyone has the right to liberty and security of person.

Article 7Respect for private and family lifeEveryone has the right to respect for his

or her private and family life, home and communications.

Article 8 Protection of personal data

1. Everyone has the right to the protec-tion of personal data concerning him or her.

2. Such data must be processed fairly for specifi ed purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concern-ing him or her, and the right to have it rec-tifi ed.

3. Compliance with these rules shall be subject to control by an independent au-thority.

Article 9 Right to marry and right to found

a familyThe right to marry and the right to

found a family shall be guaranteed in ac-cordance with the national laws govern-ing the exercise of these rights.

Article 10 Freedom of thought, conscience and

religion1. Everyone has the right to freedom

of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observ-ance.

2. The right to conscientious objection is recognised, in accordance with the na-


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tional laws governing the exercise of this right.

Article 11 Freedom of expression

and information1. Everyone has the right to freedom of

expression. This right shall include free-dom to hold opinions and to receive and impart information and ideas without in-terference by public authority and regard-less of frontiers.

2. The freedom and pluralism of the media shall be respected.

Article 12 Freedom of assembly

and of association1. Everyone has the right to freedom of

peaceful assembly and to freedom of as-sociation at all levels, in particular in polit-ical, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

2. Political parties at Union level con-tribute to expressing the political will of the citizens of the Union.

Article 13 Freedom of the arts and sciences

The arts and scientifi c research shall be free of constraint. Academic freedom shall be respected.

Article 14Right to education

1. Everyone has the right to education and to have access to vocational and con-tinuing training.

2. This right includes the possibility to receive free compulsory education.

3. The freedom to found educational establishments with due respect for dem-

ocratic principles and the right of parents to ensure the education and teaching of their children in conformity with their re-ligious, philosophical and pedagogical convictions shall be respected, in accord-ance with the national laws governing the exercise of such freedom and right.

Article 15Freedom to choose an occupation

and right to engage in work1. Everyone has the right to engage in

work and to pursue a freely chosen or ac-cepted occupation.

2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.

3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Article 16Freedom to conduct a business

The freedom to conduct a business in accordance with Union law and national laws and practices is recognised.

Article 17Right to property

1. Everyone has the right to own, use, dispose of and bequeath his or her law-fully acquired possessions. No one may be deprived of his or her possessions, ex-cept in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

2. Intellectual property shall be pro-tected.


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Article 18Right to asylum

The right to asylum shall be guaranteed with due respect for the rules of the Ge-neva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the Eu-ropean Union (hereinafter referred to as „the Treaties“).

Article 19Protection in the event of removal,

expulsion or extradition1. Collective expulsions are prohibited.2. No one may be removed, expelled or

extradited to a State where there is a seri-ous risk that he or she would be subject-ed to the death penalty, torture or other inhuman or degrading treatment or pun-ishment.

TITLE IIIEQUALITY

Article 20Equality before the law

Everyone is equal before the law.

Article 21Non-discrimination

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minor-ity, property, birth, disability, age or sexu-al orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to any of their specifi c provisions, any discrimi-nation on grounds of nationality shall be prohibited.

Article 22Cultural, religious and linguistic

diversityThe Union shall respect cultural, reli-

gious and linguistic diversity.

Article 23Equality between women and menEquality between women and men

must be ensured in all areas, including employment, work and pay.

The principle of equality shall not pre-vent the maintenance or adoption of measures providing for specifi c advantag-es in favour of the under-represented sex.

Article 24The rights of the child

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which con-cern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best inter-ests must be a primary consideration.

3. Every child shall have the right to maintain on a regular basis a personal re-lationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

Article 25The rights of the elderly

The Union recognises and respects the rights of the elderly to lead a life of dig-nity and independence and to participate in social and cultural life.


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Article 26 Integration of persons with disabilities

The Union recognises and respects the right of persons with disabilities to ben-efi t from measures designed to ensure their independence, social and occupa-tional integration and participation in the life of the community.

TITLE IVSOLIDARITY

Article 27Workers’ right to information and

consultation within the undertakingWorkers or their representatives must,

at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the condi-tions provided for by Union law and na-tional laws and practices.

Article 28Right of collective bargaining

and actionWorkers and employers, or their respec-

tive organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and con-clude collective agreements at the appro-priate levels and, in cases of confl icts of in-terest, to take collective action to defend their interests, including strike action.

Article 29Right of access to placement services

Everyone has the right of access to a free placement service.

Article 30Protection in the event of unjustifi ed dismissal

Every worker has the right to protec-tion against unjustifi ed dismissal, in ac-

cordance with Union law and national laws and practices.

Article 31Fair and just working conditions

1. Every worker has the right to work-ing conditions which respect his or her health, safety and dignity.

2. Every worker has the right to limita-tion of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

Article 32Prohibition of child labour

and protection of young people at work

The employment of children is prohib-ited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more fa-vourable to young people and except for limited derogations.

Young people admitted to work must have working conditions appropriate to their age and be protected against eco-nomic exploitation and any work likely to harm their safety, health or physical, men-tal, moral or social development or to in-terfere with their education.

Article 33Family and professional life

1. The family shall enjoy legal, econom-ic and social protection.

2. To reconcile family and professional life, everyone shall have the right to pro-tection from dismissal for a reason con-nected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.


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Article 34Social security and social assistance1. The Union recognises and respects

the entitlement to social security benefi ts and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accord-ance with the rules laid down by Union law and national laws and practices.

2. Everyone residing and moving legal-ly within the European Union is entitled to social security benefi ts and social advan-tages in accordance with Union law and national laws and practices.

3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent exist-ence for all those who lack suffi cient re-sources, in accordance with the rules laid down by Union law and national laws and practices.

Article 35Health care

Everyone has the right of access to pre-ventive health care and the right to bene-fi t from medical treatment under the con-ditions established by national laws and practices. A high level of human health protection shall be ensured in the defi ni-tion and implementation of all the Union’s policies and activities.

Article 36Access to services of general economic

interestThe Union recognises and respects ac-

cess to services of general economic in-terest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territo-rial cohesion of the Union.

Article 37Environmental protection

A high level of environmental protec-tion and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sus-tainable development.

Article 38Consumer protection

Union policies shall ensure a high level of consumer protection.

TITLE VCITIZENS’ RIGHTS

Article 39Right to vote and to stand as a candidate at elections

to the European Parliament1. Every citizen of the Union has the

right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she re-sides, under the same conditions as na-tionals of that State.

2. Members of the European Parliament shall be elected by direct universal suf-frage in a free and secret ballot.

Article 40Right to vote and to stand as

a candidate at municipal electionsEvery citizen of the Union has the right

to vote and to stand as a candidate at mu-nicipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.

Article 41Right to good administration

1. Every person has the right to have his or her aff airs handled impartially, fair-ly and within a reasonable time by the in-


200

stitutions, bodies, offi ces and agencies of the Union.

2. This right includes: (a) the right of every person to be heard,

before any individual measure which would aff ect him or her adversely is taken;

(b) the right of every person to have ac-cess to his or her fi le, while respecting the legitimate interests of confi denti-ality and of professional and business secrecy;

(c) the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accord-ance with the general principles common to the laws of the Member States.

4. Every person may write to the institu-tions of the Union in one of the languages of the Treaties and must have an answer in the same language.

Article 42Right of access to documents

Any citizen of the Union, and any nat-ural or legal person residing or having its registered offi ce in a Member State, has a right of access to documents of the in-stitutions, bodies, offi ces and agencies of the Union, whatever their medium.

Article 43European Ombudsman

Any citizen of the Union and any natural or legal person residing or having its reg-istered offi ce in a Member State has the right to refer to the European Ombuds-man cases of maladministration in the ac-tivities of the institutions, bodies, offi ces or agencies of the Union, with the excep-tion of the Court of Justice of the Europe-an Union acting in its judicial role.

Article 44Right to petition

Any citizen of the Union and any natu-ral or legal person residing or having its registered offi ce in a Member State has the right to petition the European Parlia-ment.

Article 45Freedom of movement

and of residence1. Every citizen of the Union has the

right to move and reside freely within the territory of the Member States.

2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries le-gally resident in the territory of a Member State.

Article 46Diplomatic and consular

protectionEvery citizen of the Union shall, in the

territory of a third country in which the Member State of which he or she is a na-tional is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.

TITLE VIJUSTICE

Article 47Right to an eff ective remedy

and to a fair trialEveryone whose rights and freedoms

guaranteed by the law of the Union are violated has the right to an eff ective rem-edy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and pub-lic hearing within a reasonable time by an


201

independent and impartial tribunal previ-ously established by law. Everyone shall have the possibility of being advised, de-fended and represented.

Legal aid shall be made available to those who lack suffi cient resources in so far as such aid is necessary to ensure ef-fective access to justice.

Article 48Presumption of innocence

and right of defence1. Everyone who has been charged

shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.

Article 49Principles of legality

and proportionality of criminal off ences and penalties

1. No one shall be held guilty of any criminal off ence on account of any act or omission which did not constitute a crimi-nal off ence under national law or interna-tional law at the time when it was com-mitted. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal off ence was com-mitted. If, subsequent to the commission of a criminal off ence, the law provides for a lighter penalty, that penalty shall be ap-plicable.

2. This Article shall not prejudice the tri-al and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.

3. The severity of penalties must not be disproportionate to the criminal off ence.

Article 50Right not to be tried or punished twice

in criminal proceedings for the same criminal off ence

No one shall be liable to be tried or pun-ished again in criminal proceedings for an off ence for which he or she has already been fi nally acquitted or convicted within the Union in accordance with the law.

TITLE VIIGENERAL PROVISIONS GOVERNING

THE INTERPRETATION AND APPLICATION OF THE CHARTER

Article 51Field of application

1. The provisions of this Charter are ad-dressed to the institutions, bodies, offi ces and agencies of the Union with due re-gard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respec-tive powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the fi eld 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 defi ned in the Trea-ties.

Article 52Scope and interpretation of rights

and principles1. Any limitation on the exercise of the

rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of pro-


202

portionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recog-nised by the Union or the need to protect the rights and freedoms of others.

2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defi ned by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Hu-man Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

4. In so far as this 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 tradi-tions.

5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offi ces and agen-cies of the Union, and by acts of Member States when they are implementing Un-ion law, in the exercise of their respective powers. They shall be judicially cognisa-ble only in the interpretation of such acts and in the ruling on their legality.

6. Full account shall be taken of nation-al laws and practices as specifi ed in this Charter.

7. The explanations drawn up as a way of providing guidance in the interpreta-tion of this Charter shall be given due re-gard by the courts of the Union and of the Member States.

Article 53Level of protection

Nothing in this Charter shall be inter-preted as restricting or adversely aff ecting human rights and fundamental freedoms as recognised, in their respective fi elds of application, by Union law and internation-al law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

Article 54Prohibition of abuse of rights

Nothing in this Charter shall be inter-preted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.


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JUDr. Ondrej Hamuľák, Ph.D.JUDr. Václav Stehlík, Ph.D., LL.M. EUROPEAN UNION CONSTITUTIONAL LAW Revealing the Complex Constitutional System of the European Union Executive Editor Doc. PhDr. Vlastimil Fiala, CSc.Responsible Editor Mgr. Jana KreiselováLayout & Cover Design Pavel Kroupa Published and printed by Palacký University, OlomoucKřížkovského 8, 771 47 Olomoucwww.upol.cz/vupe-mail: [email protected]

Olomouc 2013First Edition

ISBN 78-80-244-3615-9

Not for resale


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