Eu Law 2014 Course Book Maastricht

EU Law I
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Bachelor European Studies
Course 2.A
2014/2015

EU Law I: Institutional Law of the EU

2.A

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1. GENERAL INTRODUCTION TO THE COURSE ........................................................................................................ 3
1.1 OBJECTIVES OF THE COURSE AND LEARNING GOALS ................................................................................................................... 3
1.2 TEACHING STAFF ............................................................................................................................................................................... 4
1.3 EU LEGISLATION/COURSE LITERATURE ....................................................................................................................................... 6
Legislation ......................................................................................................................................................................................... 6
Literature .......................................................................................................................................................................................... 6
1.4 FINDING LEGAL SOURCES ................................................................................................................................................................. 7
1.5 OTHER INTERESTING EU RELATED WEBSITES: ........................................................................................................................... 8
2. STRUCTURE AND CONTENT OF THE COURSE ...................................................................................................... 9
2.1 COURSE STRUCTURE: LECTURES AND TUTORIALS .................................................................................................................... 10
2.2 TUTORIALS: ASSIGNMENTS, SELF-STUDY GROUPS .................................................................................................................... 10
2.3 TUTORIALS: ATTENDANCE AND PARTICIPATION ...................................................................................................................... 10
2.4 EXAM, CALCULATION OF GRADE AND RESIT EXAM .................................................................................................................... 11
3. LEGAL ASSIGNMENTS ................................................................................................................................................ 12
3.1 DEFINITION OF LAW AND EU LAW .............................................................................................................................................. 12
3.2 USE OF LEGAL REASONING AND INTERPRETATION ................................................................................................................... 16
3.3 WRITING LEGAL ASSIGNMENTS IN THIS COURSE ....................................................................................................................... 18
3.4 CITATIONS AND REFERENCES IN WRITTEN ASSIGNMENTS ...................................................................................................... 18
LECTURE 1: INTRODUCTION TO LAW AND EU LAW FROM ROME TO LISBON ....................................... 20
TUTORIAL GROUP 1: INTRODUCTION TO LAW AND LEGAL ASSIGNMENTS ............................................. 21

LECTURE 2: EU LEGAL SYSTEM INSTITUTIONS AND THE EXERCISING OF COMPETENCE ................. 22
TUTORIAL GROUP 2: ORAL ASSIGNMENT NO.2 ON EU LEGAL SYSTEM AND SOURCES.......................... 23

LECTURE 3: EU LEGAL SYSTEM - UNION LAW-MAKING, LEGAL SOURCES AND LEGAL EFFECT .......... 24
TUTORIAL GROUP 3: FIRST WRITTEN ASSIGNMENT COMMISSION AND VODAFONE ........................ 26

LECTURE 4: EU LEGAL SYSTEM - LEGAL EFFECT II AND LEGAL PROTECTION I ........................................ 29
TUTORIAL GROUP 4: SECOND WRITTEN ASSIGNMENT BRIANAIR AND SITTING BULL .................... 31

LECTURE 5: EU LEGAL SYSTEM - LEGAL PROTECTION II .................................................................................. 34
TUTORIAL GROUP 5: THIRD WRITTEN ASSIGNMENT - SAVING TURTLES AND SEALS ......................... 35

LECTURE 6: LEGAL REVIEW III, FUNDAMENTAL RIGHTS/SUMMARY LECTURE PART I ....................... 38
TUTORIAL GROUP 6: FOURTH WRITTEN ASSIGNMENT TPR AND THE TIMBER REGULATION ...... 39

LECTURE 7: SUMMARY LECTURE- PART II ............................................................................................................. 43
TUTORIAL GROUP 7: PREPARING FOR THE WRITTEN EXAM ......................................................................... 43

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1. General introduction to the course
This course builds upon the knowledge and skills acquired in the first year of
studies. It attempts to add a legal dimension to these previous courses and expose students
to legal thinking and argumentation. The course will introduce students to the definition of
law and the legal terminology. Topics covered by the first two tutorials. The subsequent
lectures and tutorials are devoted to EU institutional law after the Lisbon Treaty. A second
law course during the Bachelor studies will cover EU substantive law, including the law of
the internal market and EU competition law.
The legal system founded by the European integration process is unique in its
supranational characteristics. The latter are based on competences attributed from the
Member States and influenced by special decision-making and legislative processes. The
system is built on a legal protection system and legal principles, in the form of direct effect,
indirect effect and state liability, governing the application of Union law. The latest changes
brought about by Lisbon, through the amendments of the Treaty on the European Union
(TEU) and the introduction of the Treaty on the Functioning of the European Union (TFEU),
try to achieve more clarity with regard to competences and policies. As these Treaties
merge the classic pillar structure in one single legal personality for the Union, there is a
need for a reassessment of the classical division between supranational and
intergovernmental structures. In addition, the case law of the European courts plays a
central role in developing this special legal order, autonomous from national and
international law. Precedent-setting cases will be highlighted throughout the course (see
especially the case law overview at the end of this course book at pp.43)

1.1 Objectives of the course and learning goals
The lectures and assignments are linked to each other. Lectures introduce topics
relevant for EU institutional law and the assignments further deepen these subjects in the
form of cases and questions to be studied.
At the end of the course, students should have acquired adequate knowledge,
practical skills and a critical understanding of the following:
the legal foundations of the European Union (EU) and their special
characteristics in relation to national and international law;
the EU institutions, their historical evolution, the horizontal relationship
between them and the vertical relationship between the EU and its Member
States (MS);
the legislative and decision-making process in the Union, the legal instruments in
the form of secondary legislation and other measures;
the question of choosing a legal basis based on different EU policies;
the legal and constitutional principles guiding the relationship among the EU
institutions and between the EU and its Member States (principles of supremacy,
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legality, subsidiarity, proportionality and loyalty);
the legal and institutional principles, in the form of direct, indirect effect and
Member States liability, guarding and guiding the implementation and
application of Union law;
the legal protection in the form of the implementation and enforcement
mechanisms of EU law (infringement proceedings against MS, enforcement
through national courts, direct actions to review EU legal acts).
In addition, by the end of the course, students should have become familiar with legal
thinking and legal reasoning, and should be able to:
find legal instruments in paper or electronic format;
keep abreast of legal developments;
read a legal document and extract relevant information from it;
construct a legal argument on the basis of EU law;
use EU law, especially EU legislation, to give an opinion on a simple problem.

1.2 Teaching staff
For appointments, please contact your tutor via email beforehand. For questions on skills
trainings and organisational matters not related to this law course, please contact the
responsible persons at European Studies. This course is offered by the law faculty on behalf
of European Studies and we are therefore not responsible for questions which go beyond
the content and structure of this course. The tutors/coordinator will not reply to emails
which are answered and addressed in the course book or have been addressed and
answered in the lectures, tutorials or on Eleum.

Nina Ferreira (tutor)
Department of International & European Law
Oud Gouvernement, Bouillonstraat 3
Email: n.ferreira@student.maastrichtuniversity.nl

Amoury Groenen (tutor)
Oud Gouvernement, Bouillonstraat 3,
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Email: Amoury.groenen@maastrichtuniversity.nl

Dr. Andrea Ott (co-ordinator and tutor)
Tel: 043 3883012
Email: a.ott@maastrichtuniversity.nl

Dr. Laura Tilindyte (tutor)
Email: laura.tilindyte@maastrichtuniversity.nl

Dr. Ida Wendt (tutor)
Email: ida.wendt@maastrichtuniversity.nl

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1.3 EU legislation/course literature
Preparation for the tutorial meetings will involve, depending on subject, the thorough
analysis of the primary sources (texts of the TFEU and TEU, legislation, court cases) and the
study of the recommended legal literature.
Three core books (legislation and literature) will be used during the course:
EU Treaties (Blackstone legislation), (obligatory)
D. Chalmers, G. Davies and G.Monti, European Union Law, 3rd edn, 2014
(obligatory)
EU charts by Tobler and Beglinger.
Legislation
N. Foster (ed.), Blackstones EU Treaties and Legislation (Blackstone Press
Limited, 2014 or older editions). Students can also work with earlier editions as
long as they include the new TEU and TFEU after Lisbon (see consolidated version of
the Lisbon Treaty; http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:FULL:EN:PDF )
This edition can be also used European Basic Treaties - Treaty on European
Union - Treaty on the Functioning of th EU - Charter of Fundamental Rights of
the EU - Treaty of Lisbon, R. van Ooik and T.A.J.A. Vandamme
Literature
D. Chalmers, G. Davies and G.Monti, European Union Law, 3rd edn, 2014 (see
also online information at
http://www.cambridge.org/nl/academic/subjects/law/european-
law/european-union-law-text-and-materials-3rd-edition?format=PB )
C. Tobler and J. Beglinger, Essential EU Law in Charts, 2014 (3
nd
edition)
(website update http://www.eur-charts.eu )3nd edition available as of 1.9.2014
but also the earlier edition from 2010 (2
nd
edition) can be used.

In addition the following reference books can be consulted for the first tutorial. Further
information , if necessary, will be provided on Eleum.
T.Honor, Introduction to Law, OUP, 1996
E. Martin and J. Law, A dictionary of law (7
th
edn, OUP 2009), see also an online
version
http://www.oxfordreference.com/views/BOOK_SEARCH.html?book=t49&authstatusc
ode=202 Oxford Dictionary of Law
Other references such as http://dictionary.law.com (based on the US system) and
also http://www.duhaime.org (done by a Canadian lawyer),#
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1.4 Finding legal sources
Other textbooks may be consulted and can be found in the law section of the library.
Please be aware that only editions from 2010 onwards include updates in light of Lisbon:
E.Berry, M.Homewood and B. Bogusz, EU Law, Text, cases and materials, Oxford
University Press 2013 (further website information at
http://global.oup.com/uk/orc/law/eu/eulaw_complete/resources/guidance/)
Craig and de Brca, EU law, 5
th
edn. 2011, Oxford University Press
Chalmers and others, EU law, 2
nd
edn 2010, Cambridge University Press,
Fairhurst, Law of the European Union (9
th
edn, Pearson, 2012)
Hartley, The Foundations of European Union Law, (OUP, 2010, 7
th
. edn)
Kapteyn and VerLoren van Themaat, Introduction to the Law of the European
Communities (Kluwer Law, 2009),
Schtze, European Constitutional Law CUP, 2012,
Wyatt and Dashwood, EU la, 6
th
edn. 2011, Hart Publishing.
Many other relevant sources are available in the university library and on internet:
The main portal to the EU institutions contains many materials:
http://europa.eu.int. It is useful to explore the links available there.
In addition, you may consult the website of the European Parliament and of the
Council at <http://www.europarl.eu.int> and <http://ue.eu.int> respectively.
Judgments of the Court of Justice and the General Court are available on the website
of the European Court at http://www.curia.eu.int or http://curia.europa.eu/jurisp/cgi-
bin/form.pl?lang=en, earlier case law is provided via eur-lex and this link http://eur-
lex.europa.eu/JURISIndex.do?ihmlang=en (sorted by date or case number). Example for
case number: Costa/ENEL judgment from 1964 which has the case number 6/64, year
1964 and case nr.6. Hard copies of older judgments can be found in the library. Changes
to the court system brought about by Lisbon:
http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-12/cp090104en.pdf
The main source for legal research is the Eur-lex portal. EUR-Lex, available at
http://eur-lex.europa.eu/homepage.html, has now been turned into a portal for all
information of a legal nature about EU law.
- It contains (amongst others):
(i) the Treaties;
(ii) the Official Journal (OJ) from 1998 to the current issue (in PDF format): the
files found there are true images of the Official Journal and will print just like
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a page of the OJ (so that page number references can be made without having
to check the paper version). New editions of the Official Journal are added
daily;
(iii) the complete Directory of Union Legislation in Force: the files found there
correspond to the contents of the documents listed in the Directory
(essentially the L series of the Official Journal);
(iv) some consolidated texts (in HTML format) of a number of EU instruments
which have often been modified; and
(v) case law, sorted by date and by number.
- EUR-Lex also links to the other main sources (including Pre-lex and Oeil, two very
useful databases to track current or past legislative procedures);

Sites of the various institutions All the institutions (Council, Commission, EP, etc.)
maintain their own site
- In addition, each Commission Directorate General has its own site
- The level of useful information varies from one to the other
- Available information is not only of a legal nature
- The site of the European Parliament (EP) is particularly worth mentioning, due to
the European Parliament's focus on greater transparency. Almost every document
circulating within the EP is posted somewhere on the website. It contains a lot of
overlapping information compared to other sites (especially as concerns documents
from other institutions), but it is sometimes the only place where newer documents
(e.g. intermediate documents in the course of legislative procedures) can be found
reasonably quickly.

1.5 Other interesting EU related websites:
www.euractiv.com and www.euobserver.com, daily updated information services on
the European Union. Another link is www.eurodatum.com .
There are interesting EU law blogs which summarise EU law cases and newest
developments: see http://www.ecjblog.com, http://eulaw.typepad.com and
http://europeanlawblog.eu/
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2. Structure and content of the course

Week Dates Lectures Tutorials Assignments
1 1-5.9.2014 Introduction to
Law/EU law: From
Rome to Lisbon
Introduction
to Law and
legal
assignments
Oral assignment
no.1
2 8-12.9.2014 EU legal system
Institutions and how
competences are
exercised
EU legal
system and
sources
Oral assignment
no.2
3 15-19.9.2014 EU legal system
Union law-making,
legal sources and
legal effect

Union
institutions
and their
competences
1.written
assignment
4 22-26.9.2014 Legal effect II (case
law on direct, indirect
effect, state liability)
and legal protection I
Legal effect
and legal
protection
2.written
assignment
5 29.9.-3.10.2014 Legal protection II Legal effect
and legal
protection
3.written
assignment
6 6.-10.10.2014 Legal review III,
Fundamental rights
and principles/
summary lecture part
I
Legal effect
and
protection,
fundamental
human rights
4.written
assignment

7 13.-17.10.2014 Summary
lecture/part II
Summary
tutorial
Cases and questions
24.10.2014 Exam

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2.1 Course structure: lectures and tutorials
The course will consist of both lectures and tutorial group meetings, all of which should be
thoroughly prepared. Attendance at both the lectures and the tutorial group meetings
is strongly recommended and, in the case of tutorials, compulsory. The lectures will be
supported by detailed lecture slides which will be available via Eleum. The lectures provide
an introduction to the subjects highlighted in the above table, and are further expanded
upon by the tutorials. It is our intention to record all lectures and place these
recordings on Eleum. Please check announcements on eleum regularly as any
updates with regard to organisational matters will be posted there.

2.2 Tutorials: assignments, self-study groups
Seven tutorial meetings are planned in this course. They include oral and written
assignments which will train and test students legal presentation and writing skills. Oral
assignments need to be prepared in time but not handed in via Eleum. Written assignments
need to be handed in via Eleum in time. The first two tutorials provide an introduction to
the study of (EU) law and the use of legislation. The first written assignment is addressed in
tutorial group three and the last tutorial group is devoted to the exam preparation. This
course consists of two oral assignments and four written assignments. The first
written assignment will not be graded.
Please bring the legal texts, in the form of the EU legislation (the Blackstone), to every
tutorial meeting. This book is also the only legal material you can bring with you into the
exam at the end of the course (check at 2.4 for further information on the use of the
Blackstone legislation in the exam). In addition to lectures and tutorial meetings, self-study
is strongly encouraged. This should not only be done by reading the literature but also in
the form of a sub-tutorial study group among a few students. In this subgroup you can
discuss legal problems in preparation for the tutorial group meetings and address further
questions you come across and test the validity and/or convincingness of your arguments
on your fellow students.

2.3 Tutorials: attendance and participation
Attendance in tutorials is obligatory, to receive an assessment of his or her participation,
the student has to attend at least 5 out of 7 tutorial meetings (passing attendance). Missing
a tutorial means that a student does not attend a tutorial group meeting without a
justified reason. Whether or not a reason is justified will be determined by the Board of
Examiners, based on advice from the student advisor. Justified reasons are illness, proven
by a doctors certificate, or any other reason of which in all cases of absence the tutor has to
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be informed prior to the tutorial meeting. Please take note that during attendance rules have
been changed.
Please take note of the following information provided by ES:
Attendance rules (according to FASOS)
Professional behavior suggests that, in principle, students have a 100 % attendance in PBL
groups. Students take part in a full-time study programme so we expect them to attend all PBL
sessions. Certain circumstances, however, might prevent students from complying with this
rule, e.g. a funeral or other personal circumstances.

The following minimum requirements apply to attendance:
In an 8 weeks course:
missing 2 meetings (with a valid reason - like a funeral, severe personal
circumstances, etc) will be tolerated without any consequence

It is expected that students not only take an active part in the tutorial group
meetings but that they also be in a position to answer questions and voice their opinion in
tutorial group meetings. A very active and outstanding participation can lead to an overall
+0,5 points (under the conditions laid out in Article 4 of the Teaching and Examination
Regulations) and provided that the student has not missed more than one tutorial meeting
with justified reason.

2.4 Exam, calculation of grade and resit exam

The exam result consists of four grades, one written assignment grade and three results
from the three questions of the written exam. One of the four written assignments will be
graded. The result of the graded written assignment will count for 25% of the final grade for
this course. If a written assignment is handed in too late, not at all or insufficiently (empty
page or comparable situation) and without an acceptable justification or valid reason (such
as proven illness evaluated by the course coordinator), 0,25 points will be subtracted
from the final grade (if two assignments are missing 0,5 points). If the written assignment
is missing or handed in too late which is graded at the end of the course, the assignment will
be automatically graded with 0 points. Please inform the coordinator beforehand if, due to
exceptional circumstances such as illness, you are not able to hand in the written
assignment in time.
The written exam on 24 October 2014 consists of three questions (two cases and one
general question) which all have to be answered. The written exam will only cover subjects
which have been addressed in the lectures and tutorials. You can only take the EU
legislation(including TEU and TFEU) into the exam. Please keep the copy clean. It is
only allowed to highlight, underline words in the text and make cross-references in
the book to other articles (numbers) but no annotations or comments (words or
sentences) in the book are allowed.
The final grade in this course consists of four results: one graded written
assignment result and three exam questions (each one counts for 25%). Should the
average of all these results taken together be below 5.75, a written resit needs to be taken
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on 15 December 2014 . So it does not matter if, for example, students do not pass question 1
or the assignment, as long as the average result is 6.0 or more. Students who have to take
the written resit have the choice either to take their corrected written assignment result
into the resit exam or write a new written assignment. Should students write a new
assignment, the result of this new assignment will be considered with the resit exam. If they
do not write a new assignment, the previous assignment grade will be automatically taken
into account.

3. Legal assignments

3.1 Definition of law and EU law
Law could be defined as a system of rules laid down by a body or person with the power
and authority to make law. In law, like in any other social science, research and reflection
work deals in significant part with the work of other scientists, be it expressed in large
monographs or shorter articles in periodicals. These are sources of knowledge in the usual
sense of the term. However, one of the peculiarities of legal science is that it also works with
formal sources which have a specific value. These sources could perhaps be compared to
raw experimental data in psychology or economics, for instance. Yet they are not the result
of experimental work conducted by the researcher, but rather the production of certain
institutions whose output is attributed a certain normative value (parliament, courts,
administration, etc.). Contrary to other sciences where it might be sufficient to refer to the
work of other scientists and adopt their experimental results, in law it is preferable to work
with the formal sources of law as much as possible (except on very general points). As you
gain more experience with legal work, you will see that it is in the very nature of law that
even those authors who purport merely to restate the law in their work very often give it
a flavour of their own in so doing. The best scientific legal works can actually become
authorities of their own and rival formal sources of law (this is what lawyers often refer to
as doctrine, even though the use of that term in English for that purpose is somewhat of a
misnomer). It is therefore crucial to have a very good sense of what the formal sources of
law are and how to use them. The tool to use these legal sources is the legal reasoning.
Legal reasoning follows a number of conventions, most of which are unwritten. In
other words, jurists form an interpretive community. These conventions are used
irrespective of the purpose of the reasoning in question, i.e. present the position of a client
before a decision-maker, decide a case, advise a client, etc. In any event, the aim of legal
reasoning is always to convince the listener of a matter which can rarely, if ever, be dealt
with according to a fairly formalized epistemology such as is prevalent in the natural
sciences or in economics.
Nevertheless, it is not so difficult to join that interpretive community. Good legal
reasoning is based on an ability to read carefully and analyse texts, sound logic, an
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appreciation for meta-legal considerations (policy matters, economics, sociology, etc.) and
finally some basic psychology (or Fingerspitzengefhl). The best lawyers and legal scholars
are able to combine all of these skills to reach a high degree of persuasiveness.
For a long time, it was thought that the legal practitioner or academic need not go
beyond the text, except in cases where legal texts were unclear. It is now more widely
acknowledged that legal texts are rarely if ever unequivocal, so that a richer mode of legal
reasoning is usually required.
EU law: What is so special and unique about the European Union from a legal point of
view? The most appropriate definition is that it is supranational, neither forming national
law nor international law. European law derives from international law but differs in its
uniformity of application, direct effect and scope covering Member States and individuals.
International law is a system which has no common legislator but regulates the relationship
between sovereign states in the form of international treaties and international customary
law.
1
European law differs from national law which is characterised by a legal order with
law-making and law-enforcement, implemented by an administrative system with
individuals as legal subjects.
The Member States of the European Union have transferred certain sovereign rights to
the common supranational institutions. Supranationality derives from the ECSC Treaty
where in the French version the creation of the independent High Authority was named
supranational.
2
It is the pooling of national sovereign rights in common autonomous
institutions which makes it supranational.
3
It is further characterised by an effective legal
system of protection against infringements in which individuals are holders of rights. Pierre
Pescatore, former judge at the then European Court of Justice and scholar, defines
supranationality as recognition by a group of states of certain common interests and values
and the creation of an effective power paced at the services of these interests or values and
the autonomy of this power.
4

The Court of Justice has been exceptionally influential in explaining the characteristics
of the European Community, particularly in its early decisions van Gend en Loos from 1963
and Costa & ENEL from 1964. These decisions clearly position the European Community
independently between national law and international law, creating a supreme and
autonomous source of law, with direct effect for its citizens but without further defining

1
P. Malanczuk, Akehursts Modern Introduction to International Law, 7th revised edn, Routledge 1997, p. 3.
2
See K. Lenaerts and P. van Nuffel, Constitutional Law of the European Union, (Sweet and Maxwell, 1999) p.17 .
3
Since the creation of the EC national lawyers have disputed whether sovereignty is divided: see for instance the
German Constitutional Judge Leipholz in the 1969s: Leipholz, Zum Problem der Souvernitt, Staatssouvernitt und
internationale Wirtschaftsverfassung, Mlanges Guggenheim, 1986, pp.820.
4
Pescatore, p.50. Hans Peter Ipsen defines it as Member States acceptance of Community interests, the
establishment of an effective Community power and the autonomy and efficiency of Community law. H. P. Ipsen, ber
Supranationalitt, pp.97 (at p.109) in: Ipsen, op.cit.
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supranationality. They are seen as the design from an international legal to a constitutional
system of its own right.
5

The objective of the Treaty, which is to establish a Common Market, the functioning of
which is of direct concern to interested parties in the Community, implies that this Treaty is
more than an agreement which merely creates mutual obligations between the contracting
States. This view is confirmed by the preamble to the Treaty which refers not only to
governments but also to people. It is also confirmed more specifically by the establishment
of institutions endowed with sovereign rights, the exercise of which affects Member States
and also their citizens. The conclusion to be draw from this is that the Community
constitutes a new legal order of international law for the benefit of which the States have
limited their sovereign rights, albeit within limited fields, and the subjects of which
comprise not only Member States but also their nationals.
6

By contrast with ordinary international treaties, the 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. By creating a
Community of unlimited duration, having its own institutions, its own personality, its own
legal capacity and capacity of representation on the international plane and, more
particularly, real powers stemming from a limitation of sovereignty or a transfer of powers
from the States to the Community, the Member States have limited their sovereign rights,
albeit within limited fields, and have thus created a body of law which binds both their
nationals and themselves.
7

In addition, in the ERTA case,
8
the Court of Justice went beyond the simple attribution of
competences, which was not even written explicitly into the original Rome Treaty, and
beyond a simple application of the implied-powers-doctrine known in international law.
9

Instead the Court approached the competence question in favour of the Community and
took a functional stance for the sake of unity and efficiency:
10
each time the Community,
with a view to implementing a common policy envisaged in the Treaty, adopts provisions
laying down common rules, whatever form these may take, the Member States no longer
have the right, acting individually or even collectively, to undertake obligations with third
countries which affect those rules.
11

5
On this: E. Stein, Lawyers, Judges and the making of a Transnational Constitution, American Journal of
International Law 1981, pp.1.
6
CJEU, Case 26/62 van Gend en Loos v. Netherlands [1963] ECR 1.
7
CJEU, Case 6/64 Costa v. ENEL [1964] ECR 585.
8
CJEU, Case 22/70 ERTA [1971] ECR 263.
9
On this the International Courts advisory opinion in Reparation for Injuries, ICJ Report [1949] p.174: Under
international law, the Organisation must be deemed to have those powers which, though not expressly provided in the
Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.
10
For instance: J. Klabbers, An Introduction to International Institutional Law (CUP, 2002) p.72.
11
CJEU, Case 22/70 ERTA [1971] ECR 263.
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It is generally striking that the constitutional legal order is determined by these few
decisions, summarised in the EEA opinion from 1992
12
and the Opel Austria case from 1997:
The European Community is based on the rule of law, the EC Treaty constitutes a
constitutional charter and creates a new legal order, which established a complete system
of legal remedies and procedures to permit the Court of Justice to review the legality of acts
of the institutions.
13
It is even more striking and fascinating for legal observers that the
Courts view has been accepted in its strictness and straightforwardness by national courts
and national governments without their disputing its legitimacy. The late resistance by
national court such as the German, French, Italian, Spanish or Danish constitutional courts
only underlines this phenomenon, as their respective problems derived not so much from
the very existence of a new supranational player but from some inconsistencies of the
piecemeal approach in legislation and Treaties. In general, the CJ has been very careful in
establishing the fundamental principles of EU law, such as its supranationality, its efficiency
and autonomy, without relying on principal doctrinal discussions on its nature. Instead the
court uses the definition of a special legal system based on the rule of law and the principles
of primacy of Community law and the latters direct effect to form the basis for a new
constitutional legal order.
14
In consequence, the fascinating aspect of European law is the
central role of the Court of Justice, the judicialisation of a legal order
15
which creates a
constitutional text by elaborating on the existing rights and, consequently, establishing a set
of fundamental, constitutional and administrative rights such as direct effect, supremacy,
the efficient and uniform application of Community law and the protection of human rights
in about forty years of its jurisdiction.
16
But matters have been complicated through the
initiation of the European Union with the Maastricht Treaty of 1992. The European
Community responsible for the economic community and the internal market keeps its
supranational features but a European Union is created in addition, with two new pillars,
the Common Foreign and Security Policy and Justice and Home Affairs, which are
intergovernmental in nature and are not characterised by the same effectiveness or
autonomy as those of the policies covered by the first pillar of the EC. This construction is
labelled the Europe of bits and pieces,
17
which can be differentiated by its legal effect and
impact and becomes therefore a multilayered system of interlinked structures. The aim of
the Lisbon reform was to merge the pillars and create one European Union. However,
despite the successful introduction of the area of freedom, security and justice into the
supranational policies fields previously organised under the EC Treaty, the CFSP keeps its
intergovernmental features. This is symbolised by Articles 24 and 40 of the TEU.

12
EEA Opinion.
13
GC, Case T-115/94 Open Austria GmbH v. Council [1997] ECR II-39.
14
This was already taken up by Eric Stein in his famous piece of 1981: Tucked away in the fairyland Duchy of
Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of
Justice has fashioned a constitutional framework for a federal-type structure in Europe, Lawyers, Judges and the
making of a Transnational Constitution, AJIL 1981, 1.
15
On this: J. Ferejohn, Judicializing politics, politicizing law, 65 Law & Contemp. Prbs. 41(Summer 2002), pp.41.
16
On the development of these principles: J. Weiler, The Transformation of Europe, pp.19, in The Constitution of
Europe (CUP, 1999).
17
D. Curtin, The Constitutional Structure of the European Union: A Europe of Bits and Pieces CML Rev. 1993,
pp.17-70
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3.2 Use of legal reasoning and interpretation
In law, there are different styles of argumentation, namely opinion and decision styles.
While an opinion is a non-exhaustive argumentation leading to a conclusion, the decision
style will start with the result, the conclusion, which is then justified by giving reasons (this
is used in decisions by judges). A source explaining legal reasoning can be found at
http://groups.csail.mit.edu/dig/TAMI/inprogress/LegalReasoning.html.
A legal case is characterised by facts and law. The abstract law in the form of general
norms needs to be compared with the facts of a given case (subsumption). The logical
reasoning process is called syllogism.
The correct approach solving a legal case depends on the form of the assignment. Either
you are confronted with a general question, such as to give legal advice to person X, or you
are given concrete questions on different legal problems. When you are confronted with a
more general question on legal advice, you will start with highlighting case facts/problems
relevant for the solution. When you are confronted with concrete questions, you should
concentrate only on relevant case facts and keep it, also due to page limits, as brief as
possible. This will be followed by a quotation of the law (legislation in the form of Treaty
articles, secondary legislation, relevant case law and their conclusions) which you applied.
To find out which law applies you have to use the legal interpretation. This is called
subsumption and means that the facts of the case match the law you want to apply or that
the law gives abstract information on your case questions. Consequently you have to
compare the case facts with the rule contained in the law. The comparison presupposes an
interpretation in light of case law and scholarly writing and finally leads to a conclusion.
1. Facts (which are necessary in analysing the problem)
2. Law (EU Law and Interpretation by CJEU)
3. Subsumption (interpretation and application) or Assessment
4. Conclusion
Example:
Facts: Socrates is a man and philosopher.
Natural law: All human beings are mortal.
Subsumption (interpretation and application):
Men fall under the category of human beings, human beings are mortal, therefore, as
Socrates is a human being, he is mortal.

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The interpretation of (legal) texts traditionally follows specific methods, which
necessarily start with the wording of a text (what does the text or provision mean?), then
consider the system, context and objectives (here you consider the background, how does
the provision relate to other provisions in a chapter/section of the legislation) and take into
account the intention of its author, namely the legislator (why was it drafted like this?) as
far as this information is accessible.
Methods of interpretation relate to:
1. The wording of a text, its grammatical and semantic structure (textual-grammatical
interpretation)
2. The logic, system and objective of a text (systematic-teleological interpretation). This
method may consider a norm, a legal provision, in the context of a whole legal act, a
particular field of law or a whole legal order and aim at establishing the objectives and
aim of a legal act/provision.
3. The intention - if accessible and subsequently evidenced in an act/provision - of an
author, normally the legislator (historical interpretation)
The approach of the European Court of Justice can be described as dynamic and EU law
friendly. The ECJ shows less judicial self-restraint than would generally be expected from a
national constitutional court or an international court. This restraint is explained by the
division of powers in a democratic legal order in which the legislator (Parliament) makes
the laws and the judges or judiciary interpret the law. This judicial activism by the ECJ is
proven by a series of far-reaching landmark decisions which will be discussed during the
course. For example:
Van Gend en Loos, Costa/ENEL, Dassonville, Francovich
The Court is mainly committed to the method of a systematic-teleological interpretation,
ultimately concentrating on the spirit, objective and functioning of the EC Treaty, giving EU
law the most effective interpretation in favour of EU law (effet utile). This is illustrated by
consistent case law of the Court which has established the following:
EU law is an autonomous legal order.
EU law enjoys primacy over national law.
EU law is capable of having direct effect.
National law implementing secondary Community law is to be interpreted in
consistence with EU law.

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3.3 Writing legal assignments in this course
The assignments will consist of cases with questions. All assignments must be prepared
in writing before the meeting. All written assignments (maximum 8 pages, single line-
spaced and justified, Times New Roman 12, you do not have to follow the style sheet
of European Studies) also have to be submitted electronically, on Eleum, at the latest by
8.30 am on the respective Thursday of the first tutorial group meeting. If written
assignments are not handed in in time or incomplete, the rules under 2.4 apply.
Most of the assignments have different questions, all of which need to be answered.
When answering the questions please write full sentences, providing arguments with
references to the law (primary, case law of European courts and if necessary secondary law
and further interpretations in the literature). Please do not quote primary law or case law
through literature. Refer instead to the primary sources of the law and the case law.
Secondary sources are literature sources which might further explain the law and provide
sufficient explanation which cannot be found in the primary sources. Please do not refer to
lecture slides in written assignments. The solutions to cases should be written in a
structured and logical manner (introduction, main part and conclusion) which answers the
question exhaustingly. You will only be confronted with concrete questions in assignments
and in the written exam. Questions require answers which should be well-argued and
include necessary references to primary law, secondary law, case law and literature.
The written assignments should be submitted via Safe Assignment (which is accessible
to all students enrolled in the course).
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All of the assignments should be well prepared and
should be written independently. Substantial plagiarism by the involved parties is
considered as not handing in an assignment and, in extreme situations, can be reported to
the examination office of European Studies.

3.4 Citations and references in written assignments
Please be aware that in law, in contrast to social sciences, the quote follows as a footnote on
the same page. So no quotations/references in brackets or at the end of the text are
necessary. For correct citation in law, please be aware that when you refer to sources of
primary law such as TEU and TFEU you do not have to quote the source in a footnote (for
instance, in case you quote Article 25 of the Treaty on the Functioning of the European
Union, you only need to write Article25 TFEU in main text). Footnote references are
necessary for secondary law such as legislation, case law and literature. Secondary law

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1. To submit a document, a student should log-in to the Blackboard system and go to the corresponding
course page. Then click the "Assignments" link on the left navigation menu to see all assignments available for
submission.
2. To submit a document to a particular Safe Assignment, click the "Complete" link below the corresponding
assignment. You will see the Safe Assignment Upload Form, which is almost identical to a standard Blackboard
assignment upload form.

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references should be given in the form of a footnote on the same page, with reference to the
Official Journal (abbreviation OJ) such as OJ 1994 L 148(edition)/8(page number). For
citation of court decisions, the European Court Report, (ECR) should be quoted, stating
whether it is ECJ (now CJ) or CFI (now GC); case number C-149/77; case name, such
Commission v. Council or Francovich [1979] ECR 4 (the last one is the page number where
the decision starts). Literature is quoted with the name of the author, title of article and title
of book or journal and page number (the first quote should be complete, as you do not have
to put a bibliography at the end of your text, but subsequent references to the same article
or book may be shortened, consisting of the author, title of the book or journal, page
number). An example for a written assignment will be provided on Eleum.
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Lecture 1: Introduction to law and EU law From Rome to Lisbon
This lecture gives an introduction to law, to EU law and its most decisive characteristics,
the latter which will be addressed in more detail in subsequent lectures. This lecture will
also briefly deal with the constant evolution of the treaties of the European Communities
and the European Union, including the latest changes introduced by the Lisbon Treaty.

Literature
Chalmers, 3rd edn, pp.1-56,
Tobler/Beglinger, pp.21-66

Important case law
CJEU, Case 26/62 ECJ, Van Gend & Loos v. Nederlandse Administratie der Belastingen,
[1963] ECR 1. (EC as a new legal order of international law)
CJEU, Case 6/64, Costa v. ENEL, [1964] ECR 585. (Member States limited their sovereign
rights to create a body of law which binds both their nationals and themselves)
CJEU, Case 294/83 Les Verts v. European Parliament [1986] ECR 1957 (on EC Treaty as
constitutional charter with complete system of legal remedies)

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Tutorial Group 1: Introduction to Law and Legal Assignments - Oral Assignment no. 1
This tutorial group meeting introduces students to the main characteristics of law, legal
rules and legal reasoning, with emphasis on the special characteristics of EU law.
Literature:
Tobler and Beglinger, pp.21-34,
Oxford Dictionary of Law or http://dictionary.law.com (based on the US system)
and also http://www.duhaime.org
Constitutions can be downloaded at http://confinder.richmond.edu .
http://www.concourts.net/tab/maps.html, and
http://www.venice.coe.int/site/dynamics/N_court_links_ef.asp?L=E (on
constitutional courts and supreme courts)
1. Please explain briefly the following terms: law; legal rights and legal obligations;
legal sources; hierarchy of norms.
2. What is the difference between public law and private law? To which category do the
following belong: Administrative law, tax law, contract law, criminal (penal) law?
3. What is procedural law and what is substantive law?
4. How is common law defined and what is its opposite term? What is case law? What is
precedent case law?
5. What is a constitution? Find the constitution of your home country and explain briefly
its system and structure (such as headings, what do the main provisions regulate?).
6. What is international law and how does it relate to/differ from national law and
European law? What are the special characteristics of EU law?
7. What is the difference between legal rules and principles?
8. How would you describe legal reasoning? What are the special characteristics of EU law
legal reasoning?
9. The IGC on the Lisbon Treaty decided to include the following declaration: The
Conference recalls that, in accordance with well settled case law of the Court of Justice of
the European Union, the Treaties and the law adopted by the Union on the basis of the
Treaties have primacy over the law of Member States, under the conditions laid down
by the said case law. This declaration substitutes the previous Article I-6 of the
Constitutional Treaty which read as follows: The constitution and law adopted by the
institutions of the Union in exercising competences conferred on it shall have primacy
over the law of the Member States Try to interpret Article I-6 in line with the legal
reasoning explained under 3.2 in this course book.

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Lecture 2: EU legal system Institutions and the exercising of competence
This lecture surveys the EU institutions after Lisbon by highlighting their functions and
tasks. EU law is based on the principle of attributed powers, which implies, simply put, that
the Union and its institutions can only act when EU law permits them to do so. This
principle not only determines whether or when Union institutions may act but also how
they must act. Therefore this lecture will also highlight the manner in which a legal basis is
chosen and whether multiple legal bases can be used to initiate legislation.

Literature
Chalmers, pp.57-105 and106-111.
Tobler and Beglinger, Chapter 3, pp.67-89 (choice of legal basis only discussed by Tobler
on p.89)

Important case law
CJEU, Recovery of Indirect Taxes (Commission v. Council) Case C-338/01 [2004] ECR I-
4829;
CJEU, Titanium Dioxide (Commission v. Council) Case 300/89 [1991] ECR I-2867;
CJEU, Case C-376/98 Tobacco Advertising (Germany v. Parliament and Council ) [2000]
ECR I-8419 and Vodafone, Case C-58/08 (criteria for choice of legal basis)

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Tutorial Group 2: Oral Assignment no.2 on EU legal system and sources

In this tutorial meeting we will go through the TFEU and TEU and highlight the Treaties
structure and content. In addition, we will pre-discuss the first written assignment and
answer questions on style, format and the way you have to write such a legal assignment.

Literature

1. The TFEU substitutes the former EC Treaty while the EU Treaty is substituted by the TEU.
Go through the headings of TEU and TFEU to see what subjects are covered by both
Treaties. What is the relationship between the two Treaties? How do they differ?
2. Where do you find the essential provisions with regard to:
provisions on the Union institutions?
provisions on the European Council?
legal proceedings/protection/review?
fundamental and institutional principles such as the principle of sincere cooperation?
decision-making and legislation-making?
legal instruments such as regulations and directives?
provisions on legal bases; are Articles 3 and 5 TEU legal bases?
how to amend the TFEU?
the principles of subsidiarity and proportionality?
3. In the previous tutorial, you have analysed your home country constitution. Now
compare it with the TEU and TFEU. How do they differ? Are there similarities?
4. What are the legal sources in EU law? Please compare the EU legal sources with the legal
sources that exist in public international law and in national law.
5. What is meant by the hierarchy of norms in the EU system? Please compare it with the
hierarchy of norms in national law?
6. What is the difference between hard law and soft law? Give examples from the EU legal
order and refer to a provision in the TFEU which refers to EU legal sources.

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Lecture 3: EU legal system - Union law-making, legal sources and legal effect
This lecture will address the legislation-making process, the institutional principles
influencing this process, the different legal sources and their legal effect.
The European Union is not a state and therefore is not equipped with its own
administration in charge of implementing EU law. In this respect, the EU depends on the
cooperation of Member States. This cooperation can be controlled by legal review and
remedied by principles which have to be observed by Member States. The principles of
supremacy, direct effect and state liability play a central role in ensuring the effectiveness of
EU law in the national legal order. These principles have been decisively developed through
the case law of the European courts and will be further analysed in this lecture and the next
lectures.

Literature
Chalmers, pp.111-135, 199-245, 291-335

Important case law
On institutional principles
Article 10 EC [now Article 4.3 TEU]: CJEU, Hurt v. Jones Case 44/84 [1986] ECR 29, see
also Francovich judgment
Principle of subsidiarity (Article 5 EC, [now Article 5 TEU]) CJEU, Germany v. Council
and Parliament Case C-233/94 [1997] ECR I-2405
Institutional balance (Article 5 EC [now Article 13.2 TEU)) CJEU, Chernobyl,
Parliament v. Council [1990] ECR I-2041; Meroni & Co Case 9/56 [1958] ECR 1

On direct effect and supremacy
CJEU, Costa v. ENEL, Case 6/64 [1964] ECR 37
CJEU, Van Gend en Loos, Case 26/62 [1963] ECR 1

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Direct effect of non-implemented directives:
CJEU, Van Duyn, Case 41/74 [1974] ECR 1337
CJEU, Becker, Case 8/81 [1982] ECR 53
Indirect effect or duty of consistent interpretation
CJEU, Von Colson, Case 14/83 [1984] ECR 1891
CJEU, Marleasing, C-106/89 [1990] ECR I-4135
On state liability:
Legislative breach: CJEU, Francovich and Danila Bonifaci, Cases C-6 and 9/90 [1991] ECR
I-5537
Executive breach: CJEU, Brasserie du Pcheur SA v Bundesrepublik
Deutschland/Factortame III, Joined cases C-24 and 48/93 [1996] ECR I-1029
Judicial breach: CJEU, Kbler Case C-224/01 [2003] ECR I-10239

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Tutorial Group 3: First written assignment Appointment of the Commission and
Vodafone
Please answer the questions below, referring to Treaty provisions, literature and,
if necessary, case law.
CASE 1: THE APPOINTMENT OF THE NEW COMMISSION
Please analyse all the questions on the basis of Treaty provisions.
Case law: Commission v. Edith Cresson, C-432/04
In May 2014, the elections to the European Parliament were held. The political
campaign leading up to the elections was spearheaded by the two candidates Jean-
Claude Juncker and Martin Schulz, representing the biggest political parties in the
European Parliament. The two politicians were announced as the candidates for the
Commission President position to the public and participated in public debates in
different EU Member States. The elections were won by the European Peoples Party.
After the election, the political groups came together to decide that the nominee of the
European Peoples Party (Jean-Claude Juncker) should be nominated by the European
Council to be president.
1.1 Please explain how the European Council appoints the Commission
President. Does it have to follow the advice of the European Parliament? (1p)
1.3 Only Hungary and the United Kingdom oppose the candidate of the
European Peoples Party. They consider him a representative of old Europe in
the spirit of Jacques Delors. Can these two countries prevent in June 2014 the
appointment of Juncker as Commission President by the European Council? (1p)
After the successful election of the new Commission President, a list of candidates is
drawn up by the 28 EU Member States in agreement with the new president of the
Commission. A majority of deputies in the European Parliament is not happy about
some of the names on the list. One of them, the Polish Commissioner candidate for the
Directorate-General Justice, Freedom and Security, Pawel Kaczynski, is a well-known
opponent to homosexuals. In an official hearing with the European Parliament, he
confirms his views and is so upset in the meeting that he accuses the President of the
European Parliament to look like a Gestapo officer. The members of the European
Parliament decide not to approve his nomination due to doubts about his expertise in
the field of his possible portfolio and his general behaviour.
1.4 The EP approaches its legal service and wants to know whether the EP is able
to prevent the nomination of Pawel Kaczynski. Please check when answering this
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question relevant Treaty norms and rule 118 of the Rules of Procedure of the
European Parliament. What is the relationship of these Rules of Procedure with
primary Treaty law? (1p)
The new Commission is appointed a few months later and the Commissioner
responsible for Development and Humanitarian Aid, the Austrian Hugo Wallenstein,
regularly consults an astrologist. This influences his performance as he plans his trips
and meetings around the predictions made by the astrologist. The Commission
President, Jean-Claude Juncker, is upset about this and wants to take action against the
Commissioner. In addition, after months in office, the Commission President finds out
that the High Representative of the Union for Foreign Affairs and Security, Manuela
Barrosa, is a part-time adviser for a think tank on EU external relations.
1.5 Is the Commission President able to take actions against Wallenstein and
Barrosa? (1p)

1.6 What options does the European Parliament have to take actions against the
Commission and/or individual members of the Commission? (leave litigation
actions aside) (1p)

CASE 2: VODAFONE - ROAMING LEGISLATION
Case law: C-58/08 Vodafone
The European Commission is concerned by high costs for consumers with respect to
communication via mobiles when phoning from abroad (known as roaming). Roaming
refers to the use of ones home country mobile phone operator in another country, in
which case the network is provided by the host operator which has a deal with the
respective home operator. This tariff will be included in the consumers overall mobile
phone bill and not only results in a lack of transparency for the consumer, but also
differs from one provider to the other within the EU Member States. This leads to
drastically overpriced services, exceeding usually more than 100% per minute of the
tariffs paid for calls within the country. The high level of prices payable by users of
mobile telephone networks, such as students, business travellers and tourists, when
using their mobile telephones while abroad within the Community is a matter of
concern for national regulatory authorities, as well as for consumers and the
Community institutions. The European Commission also stresses the need to address
this having regard to the aim of a European social, educational and cultural area which
is based on the mobility of individuals in the internal market and which should,
therefore, facilitate communication between people in order to build a real "Europe for
Citizens".
The Commission intends to regulate the following rights:
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- prices paid for international roaming when travelling within the EU will be capped
by a Eurotariff unless the customer opts for a special package offered by an operator.
- The prices of the Eurotariff cannot exceed 49 cents for making calls and 24 cents
for receiving calls for the next year (excluding VAT).
- Consumers will benefit from these lower prices for making calls in the visited
country, back home or to another EU Member State.
- Consumers will also make considerable savings when receiving calls.
- Prices that operators charge each other (wholesale charges) are also being capped
over the next three years. This ensures that all operators are in a position to offer lower
retail tariffs.
- Transparency of roaming charges for consumers will be enhanced. Customers will
be able to receive an SMS when they are roaming, informing them of the price they are
expected to pay for making and receiving calls. Customers can opt out from the service if
they wish. Customers are able to request more detailed information by means of a voice
call or SMS.
2.1 On which legal basis or bases should the Commission base its proposal for
legislation and why? (2 p)
2.2 Please advise the Commission as to which legal instrument it should
suggest to implement these aims. What are the general advantages and
disadvantages of a regulation or a directive? (2p)
2.3 The EU has adopted a directive but this directive is not published in the
Official Journal of the European Union. Is this measure correctly adopted and
legally binding? (1p)
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Lecture 4: EU legal system - legal effect II and legal protection I
As discussed in the previous lecture, the special legal order of the EU is built on the
supremacy and direct effect of its laws. The Court has further specified these principles by
establishing the direct effect of primary law, direct effect of secondary law, indirect effect of
EU law and the state liability of Member States for breaches of EU law. These principles will
be explained in the context of the case law which formulated these principles. Secondly, the
effectiveness of EU law depends on a complete and efficient legal protection system. The
second half of this lecture is devoted to a legal procedure which is central to the uniform
application of Union law: the preliminary ruling procedure (Article267 TFEU).

Literature
Chalmers, see readings for lecture 3 (pp.291-335), 156-197
Tobler/Beglinger, see references lecture 3 and pp.293-296, 311-317
Case law on EU law principles and remedies
Direct effect and supremacy: Costa v. ENEL, Case 6/64 [1964] ECR 37
Direct effect of EU law: Van Duyn, Case 41/74 [1974] ECR 1337
Direct effect, vertical and horizontal of primary law: Defrenne v. Sabena, Case 43/75
[1976] ECR 455
Direct effect of non-implemented Directive: Becker, Case 8/81 [1982] ECR 53
Lack of horizontal effect of non-implemented Directive: Faccini Dori, Case C-91/92
[1994] ECR I-3325 but extension of the definition of state in Foster, Case C-188/89
[1990] ECR I-3313
Consequence of direct effect and supremacy for national law: Simmenthal II, Case
106/77 [1979] ECR 629
Indirect effect of EU law: Von Colson and Kamann, Case 14/83 [1984] ECR 1891,
Marleasing, Case C-106/89 [1990] ECR I-4135, Adeneler, Case C-212/04, [2006] ECR I-
6057,
State liability for infringement of secondary law Dillenkofer and infringement of primary
law, Brasserie du Pecheur.
Case C-224/01 Kbler (state liability for non-reference of judges and wrong decisions)

Case law on preliminary rulings
Case 283/81,CILFIT, [1982] ECR 3415 (acte clair doctrine),
Case 314/85 Fotofrost Case 314/85 [1987] ECR 4199 (aim of preliminary ruling)
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Division of jurisdiction between European Court of Justice and General Court (former Court
of First Instance)

Disputes reserved to the CJEU
All interinstitutional disputes in the form of direct actions, Articles 263/265 TFEU
and infringement procedures, Articles 258-260 TFEU
Second instance/appeals for all disputes from GC
Until now, until further changes: Preliminary rulings, Article 267 TFEU (cases
brought by national courts)

Attention, current practice: Article 256 (3) TFEU clarifies that preliminary rulings
only are to be heard by the GC in the specific areas laid down by the Statute of the Court of
Justice.
However, there are no specific areas transferred yet. This means that for preliminary
rulings the CJEU is still the first court of reference as in practice no concrete areas have
been transferred yet (see also Court of Justice Statute).

Disputes before the GC:
All direct actions from natural and legal persons, Articles 263, 265 TFEU
Actions for reparation of non-contractual damage, Article 340 TFEU
Staff cases

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Tutorial Group 4: Second written assignment Brianair and Sitting Bull goes North
CASE 1 BRIANAIR - ALWAYS LOOK ON THE BRIGHT SIDE OF LIFE
The EU adopts in 2011 a new EU consumer directive (Directive 2011/83/EU) which
aims for a high level of consumer protection in the internal market. The Directive will apply
to any contract concluded between a trader and a consumer (Article3 of the Directive).
Article28 of the Directive states that Member States shall adopt and publish by 13
December 2013 the laws, regulations and administrative provisions necessary to comply
with the Directive 2011/83/EU.
Craig de Brca, an Irish citizen, who lives in the Netherlands decides to visit with his
family in Ireland for Christmas and New Year and books online in total 10 flights with
Brianair from Eindhoven to Dublin on 20 December 2013. Brianair is a low-cost and
privately owned airline which falls under Irish law and has its seat in Limerick.
Craig is very happy that these flights only cost him 19,99 Euros per flight but he is upset
when he sees that he is charged 50 Euros for using his credit card for the online payment.
For other forms of payment this charge is not imposed. He calls up Brianair again to cancel
two of the flights. Brianair informs him during the call that another 60 Euros will be
charged for using the 24 hours phone line for 3 minutes. Both charges the credit card and
the telephone charge are justified by Brianair for extra costs arising from the time spent
by the staff of Brianair on handling the payment and providing information. Craig is upset
that for a flight of a low-cost airline for 199,90 Euros he is charged another 110 Euros
administrative costs. He finds both administrative charges excessive and not justified
having the only aim of discouraging consumers to make use of their credit cards and the
24h information line of Brianair. He objects to this practice by sending an email to Brianair.
In addition he contacts in January 2014 his friend Chris Tobler, a EU lawyer, and asks
him whether he can do anything against this practice and get his 110 Euros back. Chris
Tobler informs him that Ireland has not implemented the directive yet. Chris finds out that
Irish consumer law does not prohibit such charges and also does not require an express
consent to any extra charges as foreseen according to Article22 of the Directive.
Article 19 of Directive 2011/83/EU - Fees for the use of means of payment
Member States shall prohibit traders from charging consumers, in respect of the use of a
given means of payment, fees that exceed the cost borne by the trader for the use of such
means.
Article 21 of Directive 2011/83/EU - Communication by telephone
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Member States shall ensure that where the trader operates a telephone line for the
purpose of contacting him by telephone in relation to the contract concluded, the consumer,
when contacting the trader is not bound to pay more than the basic rate.
Article 22 of Directive 2011/83/EU - Additional payments
The consumer is not bound by any extra payment without express consent in addition to
the remuneration agreed upon for the traders main contractual obligation. If the trader has
not obtained the consumers express consent the consumer shall be entitled to reimbursement
of this payment.
1.1 What will Chris Tobler further advise him to do? Please specify the rights Craig
possibly has and in which court he will make his claim(s). (4p)
1.2 Would the legal situation discussed under Question 1.1 change if Brianair is a
public undertaking? (1p)

CASE 2 SITTING BULL GOES NORTH
The British soft drink producer A-Company produces a non-alcoholic drink called Sitting
Bull. This lemonade with the jelly-bear flavour has been popular among skiing tourists in
the Alps. Tired are getting awake, unhappy get happy, the wondrous effects result from the
high level of caffeine in the drink. One litre of Sitting Bull contains 320 mg caffeine per litre,
which is about twice as much as in a normal coke.
A-Company decides to export Sitting Bull to Sweden in 2013, after it has been sold
successfully on the British, Austrian and French market. The responsible authorities in
Sweden prohibit the import. According to a Swedish law on health protection, the maximum
amount of caffeine per litre is 250 mg. Consequently, thousands of Sitting Bull cans are kept
sealed by the Swedish customs authorities in a storage room at Stockholm airport on the
costs of A-Company.
A-Company is consulting an independent expert who confirms that an overdose of
caffeine can cause health problems such as heart racing, especially for children and
pregnant women. However, two cups of coffee with a lot of sugar would have the same
effect comparable to one can of Sitting Bull and for coffee such health law limits do not
apply in Sweden. The company is also informed about the famous judgment of the
European Court of Justice (CJEU) in the Standing Cow case from 2009, in which the Court
had held that a comparable Dutch law on health protection, which prescribed that the
maximum amount of caffeine per litre was 270 mg, is considered an infringement of Article
34 TFEU. In addition, there is already standard case law on the application of Article 34
TFEU in light of contravening national measures.
A-Company decides to start proceedings in Sweden against the administrative decision
of banning the import of Sitting Bull and the storage at the costs of A-Company. The costs of
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storage have amounted to about 20.000 in total and the impossibility to sell Sitting Bull
has caused an additional damage of 5.000 at the start of the proceedings. Before the
competent Swedish Administrative Court, A-Company refers to the Standing cow case and
suggests that the Swedish Administrative Court should stay proceedings and ask the CJEU
whether the Swedish law on health protection is also prohibited by Article 34 TFEU. To the
surprise of A-Company, the Swedish Administrative Court decides in favour of the Swedish
administration, reasoning Article 34 TFEU cannot be relied upon by individuals in Swedish
courts. A-Company is shocked because it is settled case law of the CJEU that Article 34 TFEU
has direct effect. It decides to appeal the judgment before the highest court, the Swedish
Supreme Court. That Court, however, also decides in favour of the Swedish administration.
It admits that the lower Administrative Court erred in holding that Article 34 TFEU lacks
direct effect, but it refused to admit A-Companys repeated request to refer the case to the
CJEU for preliminary ruling on the ground that the Standing Cow judgment made it
sufficiently clear that the Swedish rule concerning the 250 mg of caffeine could be justified.
2.1 Was the Swedish Administrative Court obliged to refer the case to the CJEU for
preliminary ruling?(0,5 point)
2.2 Was Swedish Supreme Court obliged to refer the case to the CJEU for a
preliminary ruling? (1,5 points)
2.3 Further concrete costs have occurred for A-Company since the case entered
the court system. Can Sweden be held liable for the decision of the Administrative
Court and/or the Supreme Court? Is another Swedish institution also liable under EU
law? (3 points)

Extra question for the tutorial (NOT to be answered in the written assignment)
CASE 3 HEALTHY FOOD
The advertising and labelling of food has become a battleground in the campaign against
obesity since September 2012. The European Commission wants to create EU-wide rules
for nutritional and health claims made for food. The Commission argues that different rules
on health and food labelling create discrepancies in the internal market. In addition, the
legal measure shall prevent that consumers are misled by incorrect labelling and shall
guarantee a high level of consumer and public health protection. Furthermore, the
Commission wants to make it impossible for products with a high level of sugar, fat or salt
to carry certain other health claims such as being rich in fibre and vitamins (such as for
example Kelloggs cornflakes). The Commission intends to provide the consumer with
nutrient profiles based on scientific knowledge about diet and nutrition.
Please explain which legal basis or bases is/are the most appropriate to justify
legal actions on behalf of the European Union. Please motivate your answer by
referring to relevant case law.
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Lecture 5: EU legal system - Legal protection II
This lecture concentrates on the infringement procedure and annulment procedure.
These legal procedures, next to the preliminary ruling, can be differentiated on the basis of
the measures which can be attacked and who has legal standing. The preliminary ruling
and the infringement procedure are linked in such a way that both concern infringements
by Member States through national law, while the annulment procedure, failure to act and
Union liability procedures are about wrongdoings of the Union by infringing higher-ranking
norms of EU law.
Literature
Chalmers, pp.337-377 and 423-465,
Tobler/Beglinger, pp.297-310.
Important Cases
Infringement or enforcement procedure
CJEU, Star Fruit, Case 247/87 [1989] ECR 291
CJEU; Commission v. Netherlands, Case C-350/02 [2004] ECR I-6213
Direct actions/annulment procedure
CJEU, Plaumann, Case 25/62 [1963] ECR 95 (Plaumann doctrine)
Follow-up case law:
GC, Jgo-Qur, Case T-177/01 [2002] ECR II-2365 and Case 263/02 P [2004] ECR I-
3425
CJEU, Codornu, Case C-309/89 [1994] ECR I-1853
CJEU, UPA (Union de Pequenos Agricultores), Case C-50/00 P [2002] ECR I-6677
Post-Lisbon case law:
GC, Inuit Case T-18/10 (see on this judgment http://europeanlawblog.eu/?p=19)
GC, Microban T-262/10
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Tutorial Group 5: Third written assignment - Saving turtles and seals
CASE 1: CARETTA, CARETTA
The EU has issued a Council Directive on the conservation of natural habitats and of wild
fauna and flora. This directive had to be implemented by all Member States at the latest by 1
July 2007. Article 2 (2) of this Directives states that measures taken pursuant to the
Directive are to be designed to maintain natural habitats and species of wild fauna and flora
of Community interest. According to Article 12 (1) of this Directive, Member States shall
take the requisite measures to establish a system of strict protection for the animal species,
listed in Annex 1, in their natural range, prohibiting all forms of deliberate capture or killing
of specimens of these species in the wild, deliberate disturbance of these species,
particularly during the period of breeding, rearing, hibernation and migration and
deterioration or destruction of breeding sites or resting places.
The sea turtle Caretta Caretta (or loggerhead) is one of the species listed in Annex 1 of this
Directive and is also on the IUCN Red List of threatened species. The Caretta Caretta is a
large, ancient reptile originating from dinosaurs. It has lived in the sea for over a hundred
years. At the age of four, it comes to the coast of the island of Zakynthos in Greece, one of
the main breeding areas in Europe for Caretta Caretta, to lay its eggs in the sand of the
islands beaches. Due to the deterioration in the conservation conditions for the sea turtle
on the Greek island of Zakynthos, the Commission requested the Greek authorities, on 3
July, 2011, to take measures for the protection of these species on the island. On 16 to 17
July, 2011, Commission officials visited the island to verify whether measures had been
taken to protect the sea turtles. However, they found the measures to be inadequate in that
there was no supervision or notices on the beaches, pedalos and boats were used in the
breeding area and illegal buildings such as beach bars - were set up on turtle beaches. The
Commission therefore sees Greece in breach of its obligations arising out of Article12 of this
Directive.
In response to the Commissions letter dated 3 July, 2011, the Greek government replied
that measures were taken which were sufficient for the protection. The Commission
disagreed and sent a letter on 2 December, 2011, to the Greek government with a formal
notice to submit its observations. The Greek government replies to this letter stating that
- Greece was unable to comply with the Article 12 of this Directive in due time as the
Parliament was blocked due to political demonstrations in front of the building,
- France also has also failed to implement the Directive within the time limit and no
investigations have started against France,
- Greece argues that the local government in Zakynthos has failed to implement the
necessary measures despite the inquiries and activities of the Ministry in Athens.
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1.1 Advise the Commission as to the validity of the arguments given by the Greek
government. (1,5 p)
1.2 Advise the Commission as to what it should do next. The Commission stresses
especially that Greece has not notified measures transposing this directive which was
adopted in the legislative procedure. (1,5p)
1.3 Assume that the Commission decides on 10 December 2011 not to proceed with the
case against Greece. The Commission informs the public about this with a press
release. Can the non-governmental organization SaveTurtle take legal actions forcing
the Commission to act? (2p)

CASE 2 THE SAVING SEALS REGULATION
The European Union is concerned about the animal welfare aspects of the seal hunt with
one third of the world trade in seal products either passing through or ending up in the EU
market. National differences exist governing the trade, import, production and marketing of
seal products and the Union is convinced that disturbances on the internal market are
prevented by harmonized rules. The Council adopts correctly in the ordinary legislative
procedure according to Article114 TFEU a Regulation for the purpose to establish
harmonized rules concerning the placing on the market of seal products (Saving Seals
Regulation). The Regulation results in a ban on import and sale of seal products. The
Regulation requires in an exception that seal products can only be allowed on the market
where the seal products result from hunts traditionally conducted by Inuit and other
indigenous communities and contribute to their subsistence.
NuTan Furs is a company which has its seat in Denmark and markets seal products from
Inuit, but also from other hunters on the EU market. The company wants to take action
against this Regulation with the argument that this limits their ability to market seal
products to Inuit hunted seals in the EU.
2.1 Under which legal procedure, in which court and under which procedural
conditions will the company NuTan Furs be able to challenge this Regulation? Please
make references to case law and assess the companys chances of success. (1,5 p)
2.2 Germany want to challenge the Regulation on the basis that the Saving Seals
Regulation has been adopted under the wrong legal basis and that environment
would have been a better suited legal basis (please also consider whether a double
legal base could have been considered). Specify what the exact legal base under
environment policy could be and under which procedure Germany will challenge this
regulation. Please also explain whether Germany will be successful with its claim.
(2p)

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The European Commission adopts on a basis of this Council Regulation a Commission
Regulation which specifies the details of implementation of this Council Regulation
including the use of attesting documents when placing the seal product from Inuit hunt on
the EU market. The attesting document has to be handed out by a Member State body and
this document verifies whether the requirements are met to place the seal product
exceptionally on the EU market.
2.3 The company has not yet applied for the attesting documents. Can the company
challenge the Commission Regulation? (1,5 p)

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Lecture 6: Legal review III, fundamental rights and principles in EU law/Summary
lecture part I
This lecture addresses the last procedure to be covered under legal review and
highlights the constitutional principles which guide the relationship between the different
institutions involved on EU and national level. Some of them have already been addressed
in previous lectures (especially lecture 3) but they will now be structured according to who
is addressed by these principles. In this legal system of constitutional rights and principles
EU fundamental rights fulfil a central function in protecting rights of the individual. In the
first time in its history, the European Union is finally equipped, as a result of Lisbon, with a
binding and written catalogue of human rights, the Charter of Fundamental Rights of the
European Union. In the second part of the lecture the summary of the previous lectures will
be started.

Literature:
Chalmers, pp. 247-290393-405;
Tobler/Beglinger, p.31, pp.319-328;
Charter of Fundamental Rights of the European Union, Foster Blackstone

Important case law:
EU liability for damages
CJEU, Schppenstedt, Case C-5/71 [1971] ECR 975
CJEU, Bergaderm, Case C-352/98 P [2000] ECR I-5291
On human rights protection:
CJEU, Stork Case 1/58 [1959] ECR 17; Stauder Case 29/69 [1969] ECR 329;
Internationale Handelsgesellschaft (Solange I) Case 11/70 [1970] ECR 1125; Nold Case 4/73
[1974] ECR 491.

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Tutorial Group 6: Fourth written assignment Tobacco Products Directive and the
Timber Regulation

CASE 1 A NOVEL TOBACCO PRODUCTS DIRECTIVE
The Commission proposes a new Tobacco Products Directive (TPD) which harmonises
Member States laws, regulations and administrative provisions concerning the
manufacture, presentation and sale of tobacco and related products. The overall aim of the
directive is to prevent a fragmentation of internal market for tobacco products according to
Article 114 TFEU and implement a coherent approach Union-wide to meet obligations
following from the WHO (World Health Organisation) Framework Convention on Tobacco
Control.
In this context, the TPD seeks to regulate tobacco products in a way that reflects their
specific characteristics (nicotine has addictive properties) and the negative consequences
of their consumption (mouth, throat and lung cancer, cardiovascular problems including
heart attacks, strokes, clogged arteries, increased risk of blindness, impotence, lower
fertility, impact on the unborn child etc). The TPD requires that 75% of every cigarette
packet to be covered - front and back - with health warnings in text and pictures of
smoking-related diseases.
On 1 February 2011 the TPD is adopted by European Parliament and Council. According to
the directive Member States get 18 months to implement this Directive into national law.
Denmark implements the directive on 1 February 2012 into national law. However, in its
implementing national law, stricter conditions for the maximum content of tar (5 mg),
nicotine (0,5 mg) and carbon monoxide (5 mg) per cigarette apply than stipulated in Article
3 of the TPD.
Article 3 TPD: Maximum tar, nicotine, carbon monoxide per cigarette
1. The content of cigarettes placed on the market or manufactured in the Member States
shall not be greater than:
(a) 10 mg per cigarette for tar,
(b) 1 mg per cigarette for nicotine,
(c) 10 mg per cigarette for carbon monoxide.

1.1 In October 2013, the Danish company Danish Match (DM) wants to rely on Article
3 TPD. DM argues that consumers decide to buy their cigarettes from companies
seated in other EU Member States in which less strict conditions as in Denmark are
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applicable. The lower content of especially nicotine in DMs cigarettes makes its
products less appealing to Danish smokers. The company also questions whether it
can ask for the reimbursement of the actual costs involving a lawyer in the legal
dispute and of loss of sales in the period since the stricter national law applies. (2
points)

1.2 Please consider whether and how the legal situation would change for DM if the
Directive would include in Article 3 TPD that the content of the cigarettes shall not be
lower or greater than: (3 points)
(a) 10 mg per cigarette for tar,
(b) 1 mg per cigarette for nicotine,
(c) 10 mg per cigarette for carbon monoxide.

CASE 2 THE EU TIMBER REGULATION AND TIMBERLAND
Since July 2013 the EU Timber Regulation No 995/2013 is applicable. The EU Regulation
adopted in the legislative process counters illegal harvesting and trade in timber and timber
products. Illegal logging poses a threat to forests, contributes to the deforestation which
threatens biodiversity and endangers the climate system. The Timber Regulation bans
illegal timber in the EU. It requires those companies that place wood or wood products on
the EU market for the first time to assess the risk that those products may have come from
an illegal source and companies have to reduce any identified risks. This is known as due
diligence which is carried out in form of risk assessment and compliance control. The
regulation is applicable to operators who import the timber into the EU and traders who
sell the imported timber throughout the EU.
2.1 The Commission proposed to base the EU Timber Regulation on Article 192 (1)
TFEU. During the legislative process the European Parliament (EP) wants to know
from its legal service whether the EU Timber Regulation could be based instead on
Article 114 TFEU or on both provisions together. Please analyse and advise the EP.
(1,5 points)

The Commission has adopted an implementing regulation on 15 August 2013 (published on
the same day in the Official Journal) to specify the conditions for recognition of a
monitoring organisation. Monitoring organisations maintain and update the due diligence
system applied on operators who import timber into the EU. According to the Timber
regulation (basic regulation) and the implementing Commission Regulation the monitoring
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organisation, which can be a company, has to demonstrate appropriate expertise and
capacity.
Justin Timberland is a UK company which imports timber from Indonesia and has extensive
experiences in Southeast Asia. Timberland successfully applies end of August 2013 for
recognition as a monitoring organisation with the European Commission. However, after a
review report which establishes that Justin Timberland is involved in illegal logging, the
Commission decides correctly to withdraw this recognition and notifies Justin Timberland
on 15 September 2013 of this decision.

Article 4 of implementing Commission Regulation
Recognition decision
Where the Commission has adopted a recognition decision pursuant to Article 8(3) of
Regulation (EU) No 995/2013, it shall notify the applicant concerned within 10 working
days of the date of adoption of that decision.

Article 11 of implementing Commission Regulation
Decision to withdraw recognition
1. The Commission shall decide whether to withdraw recognition of a monitoring
organisation on a temporary and/or conditional basis, or permanently, taking into account
the review report.
2. A decision to withdraw recognition of a monitoring organisation shall be notified to the
monitoring organisation concerned within 10 working days of its adoption.
2.2 Justin Timberland approaches you on 1 October 2013 and wants to know whether
he can attack this Commission Decision addressed to him and which withdraws his
recognition. He also wants to know whether he can challenge the implementing
Commission Regulation because his recognition was withdrawn. In front of which
court will he do this? (2,5 points)
2.3 Justin also has printed on 10 September 2013 new visiting cards with the
information Justin Timberland - EU approved monitoring organisation. He wants to
know whether he can get reimbursed for these costs of 300 Euros by the European
Commission as he now has to exchange these cards with new ones. (1 points)

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Extra question for tutorial (NOT to be answered in the written assignment).
3. GENERAL QUESTION
3.1 The EU is currently negotiating an accession to the ECHR but is not yet a signatory
party to the ECHR. Please explain how and why the EU is already bound for many
years by these ECHR human right standards?
3.2 Since Lisbon a shortened judicial procedural phase is introduced in the
infringement procedure system. Please explain in which provision this shortened
procedure is found, under which conditions it can be used and how it differs from the
longer judicial procedure.
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Lecture 7: Summary Lecture- Part II
This lecture summarises what has been addressed in the previous six lectures.

Tutorial Group 7: Preparing for the written exam

This tutorial meeting will be devoted to a repetition of the most essential features of
European law and it will run through the topics of the lectures and tutorial meetings.
Questions prepared by the students will be discussed alongside a selection of cases and
questions found below.
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RELEVANT CASE LAW IN THE COURSE EU LAW I

CASE LAW ON THE LEGAL ORDER OF THE UNION
European law as a new legal order of international law (autonomous legal order,
direct effect and supremacy)
1. Case 26/62 ECJ, Van Gend & Loos [1963] (on direct effect of primary law)
2 . Case 6/64, Costa v. ENEL, [1964]

Supremacy principle ( EU primary and secondary law takes precedence over colliding
national law )
1.Costa v. ENEL, [1964] (autonomous legal order)
2.Internationale Handelsgesellschaft, 1970 (EU law takes primacy over national
constitutional law)
3.Simmenthal, 1978 (over prior and subsequent national law)

EC Treaty (EU Treaty) as constitutional charter with complete system of legal
remedies
Case 294/83 Les Verts v. European Parliament [1986]

Choice of the legal basis
1. Tobacco Advertising (Germany v. Parliament and Council ) [2000] limits of
Article114 TFEU C-210/03
2. Recovery of Indirect Taxes ( Commission v. Council) Case C-338/01 [2004]- the legal
basis should be chosen based on objective factors amenable to judicial review
3. Titanium Dioxide (Commission v. Council) Case 300/89 [1991] - dual basis is not
possible where the procedures provided for each legal basis are incompatible; legal basis
should be chosen based on objective factors amenable to judicial review

INSTITUTIONAL PRINCIPLES AND FUNDAMENTAL PRINCIPLES (HUMAN RIGHTS PROTECTION)

1. Sincere Cooperation (Article4.3 TEU)- Hurd v. Jones Case 44/84 [1986] ,

2. Principle of subsidiarity (Article5 TEU) - Germany v. Council and Parliament Case
C-
233/94 [1997]
3. Institutional balance (Article13.2 TFEU) - Chernobyl, Parliament v. Council [1990];
Meroni Case 9/56 [1958]

Human rights as fundamental principles of Union law: Stauder (1969), Nold (1974),
Rutili (1975) importance of case law diminished because of Article6 TEU and binding EU
Charter of Fundamental Rights

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DIRECT, INDIRECT EFFECT AND STATE LIABILITY
Direct effect of Union law - individuals can rely on Community law in their advantage in
courts; Conditions of direct effect depending on legal source:
1. Van Gend and Loos - primary law: clear, precise and unconditional
2. Leonesio - Regulations Article249 EC: clear, precise and unconditional
3. Becker, Case 8/81 [1982]- Directives not implemented in time - clear, precise and
unconditional + vertical relationship; also Van Duyn, Case 41/74 [1974];
-Ratti Case 148/78: estoppel principle argument for vertical direct effect, but not for
horizontal direct effect of non-implemented or wrongly implemented directives (see Faccini
Dori);
- Foster- public service under the control of the State also emanation of the State, hence
vertical direct effect
4. Grad - Decisions - clear, precise and unconditional, addressee

Direct effect, vertical and horizontal of primary law
Defrenne v. Sabena, Case 43/75[1976]- Art 157 TFEU , Bosman on Article45 TFEU

Lack of horizontal effect of non-implemented Directive
Marshall Case 152/84, Faccini Dori, Case C-91/92 [1994] ECR
Extension of the definition of state - Foster, Case C-188/89 [1990]

Indirect effect or duty of consistent interpretation
Von Colson, Case 14/83 [1984]
Marleasing, C-106/89 [1990]
When does the duty of consistent interpretation start?
Adeneler C-212/04 transposition period of the Directive expired

State liability
Legislative breach - Francovich and Danila Bonifaci, Cases C-6 and 9/90 [1991]
Executive breach and infringement of primary law: Brasserie du Pcheur, Joined
cases C-24 and 48/93 [1996] - requirements for State liability were established by the ECJ
in this case
Judicial breach - Kbler Case C-224/01 [2003]
Infringement of secondary law (Directive)- Dillenkofer

LEGAL PROTECTION
Preliminary rulings
1.Case 283/81,CILFIT, [1982] - acte clair and acte clair doctrine
2.Case 314/85 Fotofrost Case 314/85 [1987] - aim of preliminary ruling; national
court cannot declare Union law invalid!
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3.Case C-224/01 Kbler - remedies for non-reference judges and wrong decisions last
instance

Infringement procedure
Star Fruit, Case 247/87 [1989], Ltticke Case 57/65 [1966] - Commission has no
obligation to act, but discretion to act
Commission v. Italy, Case 7/69 & Commission v. Netherlands, Case C-350/02 [2004]-
coherence between letter of formal notice and reasoned opinion
Case C-1/00 Commission v. France - reasonable time limits for compliance

Direct actions
Plaumann, Case 25/62 [1963] ECR 95 (Plaumann doctrine on individual concern, non-
privileged applicant)
Jgo-Qur, Case T-177/01 [2002] and Case 263/02 P [2004]
Codornu, Case C-309/89 [1994]
UPA Case C-50/00 P [2002]
Inuit case Case T-18/10 Inuit Tapiriit Kanatami e.a. v European Parliament and Council
Microban Case T-262/10

Union liability
Bergaderm, Case C-352/98 P [2000] - Streamlining of requirements between state liability of
MS and 288 EC: manifest breach of superior rule of law intending to produce effect for
individuals + causal link
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CASES AND GENERAL QUESTIONS
CASE 1: CARRESIX AND DELHOMME (EXAM CASE 2008)
Achieving energy efficiency is a vital component of energy security and thereby reduces
the Unions dependency on third country energy providers. It lowers costs for the internal
market and cuts increasingly dangerous carbon-dioxide emissions which threaten the
environment. In view of this, the European Union has already undertaken measures
through Regulations and Directives. These include i.a., a Directive on Eco-Design, the
Energy Star Regulation or a Directive on energy performance of buildings. These legal
measures aim to improve the environmental performance of products, initiate energy
saving measures in the building sector and inform customers about energy saving products.
Large supermarket chains throughout Europe are heavy users of energy through their
lightning system, air conditioning and refrigerator cooling. The Commission plans to adopt
a legal measure by September 2008 to set compulsory technical standards for energy
consumption. The Commission wants to regulate maximum standards for the energy
consumption of supermarket equipment but shops are given several years to phase out
their old equipment. Once the final stage is reached and supermarkets fail to meet these
maximum standards, administrative measures are envisaged, which are to be taken by
Member States and which can include fines imposed by Member States and to be paid by
operating supermarkets. Not all the Member States are convinced about the effectiveness
and necessity of such a proposal. The Commission decides to propose a Regulation to
implement these energy saving objectives.
1. On which legal basis or bases should the Commission base its proposal for a
Regulation and why? (2 p)
2. The Regulation is discussed in the Council and is based on a legal basis which requires
qualified majority voting in the Council and co-decision (ordinary legislative procedure) by
the European Parliament. The French supermarket chain Carresix, one of the largest in
Europe, has already implemented voluntary energy saving measures and therefore lobbies
certain Member States to implement immediate and strict measures which give it an
advantage over other companies which cannot immediately achieve the targeted energy-
saving objectives. Carresix invites the national representatives of the Member States to
expensive holidays and sends special bags full of exclusive products to the representations
on a daily basis. Carresix also does not fail to lobby members of the European Parliament
with special shopping vouchers. This results in the adoption of an amended Regulation, in
October 2008, which requires stricter measures than originally foreseen in the Commission
proposal.
2.1 The smaller Belgian competitor Delhomme finds out about these practices and
approaches the Commission to take legal measures against the adopted Regulation.
Delhomme especially stresses that immediate measures are not proportional as smaller
supermarket chains are not given ample time to implement necessary energy saving
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measures required by the Regulation and originally foreseen in the Commission proposal. It
also stresses that a Directive would have been a better legal measure to implement these
objectives. What can the Commission do now against this Regulation? (4p).
2.2 Delhomme also asks whether it can start legal action against the adopted
Regulation and whether Delhomme has a possibility to act if fines are imposed on the
company. Delhomme also stresses that extra investments have to be made, and have
already been made, which results in an infringement of its fundamental right to
property. The Council legal service replies to this argument that this Regulation does not
take away the property of supermarkets or supermarkets equipment but just regulates the
energy saving choices which have to be made by supermarkets. (4p)

CASE 2: CREDIT CRUNCH (EU RESCUE SAVINGS FUND DIRECTIVE) (EXAM CASE 2008)
After the turmoil on the financial markets in Europe since 2008, the Commission
decides to tighten financial supervision of European banks on the internal market. As such,
it suggests a college of supervisioners which would police cross-border banking and set
limits on the sums which banks can lend to individual counterparties. Additionally, the
Directive sets up a rescue savings fund to guarantee all private savings when private banks
become insolvent. This rescue savings fund will be financed by all Member States and the
payment into the fund is determined according to the economic strength of Member States
economies. Member States had to transpose the Directive by 31. January, 2010, at the latest
but some of the EU Member States have not implemented it in time, among them Spain,
Sweden and the Czech Republic. In March 2010 the private Spanish bank Salamander
becomes insolvent, according to the Spanish banking laws private savings are not secured
to an unlimited extent, as foreseen in the EU rescue savings fund Directive, but only
guaranteed to a maximum sum of 20.000 Euros per account holder.
The Portuguese citizen Fernando Pessoa holds an account at Salamander in Madrid
(Spain) and has savings which amount to 50.000 Euros in total.
1. Please argue on which legal basis the Commission should base this directive.
(2p)
2. Furthermore, the Commission wants to give the European Central Bank
additional tasks in the supervision of credit institutions. Could this be included in a
directive and with the same legal base as you advocate under point 1? (3p)
3. In May 2010 Fernando Pessoa approaches you and asks for your advice on
whether he has the right to receive the full amount of his savings back. In which court
would he raise his claim? (2p)
4. Would Pessoas legal situation and claim change if such a rescue fund for
private savings is also set up by the directive but the latter does not determine
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whether this rescue savings fund is financed by Member States directly or private
banking companies themselves? (3 p)
5. How about Pessoas rights were the EU to adopt a regulation? (1p)
6. Pessoa also has an account in the Turkish bank, Turksave, in Turkey with
30.000 Euros. Does he have the same rights as discussed under 3? (1p)

CASE 3 FRANCESCA SINGS IN WARSAW (EXAM CASE 2011)
Francesca is an Italian national who is currently studying for her Erasmus semester at
the Law Faculty in Warsaw, Poland. As she is a talented musician, she sets up a band with
other exchange students in order to play the great Italian successes from the 80s. However,
when she and her band try to look for places where they could play their music, they hear
that the Polish parliament, in an attempt to stop the Americanisation of Poland, has passed
legislation according to which only Polish traditional music, played by Polish nationals, is
allowed in public spaces. When Francesca and her band try to perform in a square, they
receive a fine from the Polish police.
Francesca feels unhappy about this outcome and, as a European Law School student,
considers that the Polish legislation might contravene European law, and in particular
Article 18 of the TFEU.
2.1 Before which court should she bring a claim? Please motivate your answer.
(1p)
2.2 In front of that court, what will she argue? Please motivate your answer with
reference to relevant case law and assess the chances of success of the claim. (3 p)
Francescas troubles in Poland are not finished. When she arrived, she rented a room
from Student Private Housing, a real estate company, which told her that the room was
equipped by modern heating facilities to withstand the cold Polish winter. The contract was
signed on 1 September 2010. However, after a couple of days, she finds out that the heating
system is very old and does not heat the room properly. Outraged, on 1 October 2010, she
tries to cancel the contract with Student Private Housing. However, the General Manager of
the company tells her that the time limit of two weeks to ask for the cancellation has
expired.
Unhappy about this outcome, again her knowledge of European law comes to rescue her
when she remembers that there is a Directive (Dir. 23/2005/EC) which, in Article 3, gives
the chance to students to cancel rental contracts within a period of 3 months. With the help
of a Polish friend, she checks and notices that, although the deadline for implementation
expired on 1 June 2009, Poland has not implemented the above mentioned Directive.
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2.3 What could Francesca do in order to demand the cancellation of her rental
contract? Please motivate your answer with reference to relevant case law and assess
the chances of success of the claim. (3p)
2.4 In the light of your answer to the previous question, what remedy is at
Francescas disposal to recover the costs of the rent? Please motivate your answer
with reference to relevant case law and assess the chances of success of the claim.
(3p)

CASE 4: ALCOHOL (RESIT EXAM CASE 2008)
The European Commission wants to propose legislation on the distribution of alcohol.
According to statistics, Europeans drink the most in the world and alcohol causes nearly 1
in 10 of all illnesses and premature deaths in Europe. The sale of alcohol differs in the
Member States of the European Union. While most of the EU Members States have no
restrictions except for an age limit, the Nordic European countries keep up a more
restrictive policy. In the Nordic countries, except for Denmark, there is a government
monopoly on the selling of hard alcohol in stores. In Sweden, beers with a lower alcohol
content, called folkl (less than 3.5% alcohol), can be sold in regular stores to anyone older
than 18, but drinks with a high content of alcohol can only be sold in the official
government-run vendors to people older than 20, or in licenced facilities such as
restaurants and bars, where the age limit is 18. A similar situation exists in Finland with a
monopoly for retail sale of alcoholic beverages.
The European Commission has the following measures in mind:
To harmonise the rules on the sale of alcohol throughout the European Union,
To have clear warnings on beverages about the negative effects of alcohol.
You are legal advisor to the European Commission and are asked to propose legal
measures which are suitable to achieve these goals.
1. Which legal basis would you advise for what form of legal instrument; could you
combine these aims in one legal measure? (4 points)
2.A legal instrument has been adopted in the form of a regulation. After its
adoption, Finland is not happy with the result and wants to challenge this legislation.
Under which legal procedure, in which court and under which procedural
circumstances can Finland challenge this regulation? (3 points)
3.The European Parliament does not agree with the Commissions proposal. Can
its amendments be ignored? (1 point)
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4.The private company Heinikken, a Finnish beer producer, wants to take
measures against this regulation. Under what legal procedure could they take
actions, what are its legal pre-conditions and are they satisfied? (2 points)

GENERAL QUESTIONS
(EXAMQUESTION 2008)
Human rights are protected by the European Union but not explicitly mentioned anywhere
in the EC Treaty.
1.1 Please explain how and why human rights have been incorporated into the EC
legal order in practice. (8p)
1.2 Is the EU Fundamental Rights Charter legally binding in the European Union?
What will happen with this EU Fundamental Rights Charter once the Reform Treaty is
ratified? (2p)

(EXAM QUESTION 2009)
2. Please name and explain two constitutional/institutional principles of EU law
(two for each category) which are relevant to the relations between the
2.1 EC and its Member States,
2.2 the EC institutions and
2.3 the EC and EU citizens.
Please refer in your explanation of these principles as far as necessary to relevant case
law and to different principles for each category. (for each subpoint 3 p and for two
correctly explained principles 1.5 p each)
2.4 What happens to the supranational and intergovernmental pillars under the EC and
EU Treaties once the Lisbon Treaty is ratified? Please motivate your answer briefly. (1p)
(RESIT EXAM QUESTION 2011)
3.Please explain the structure of the infringement procedure (procedural steps to
follow and which court judges on this procedure)and explain under which
circumstances a Member State can rely on pleas in their defence (10p).

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(EXAM QUESTION 2011)
4.1 What are the underlining principles guiding the legislation making process
within the EU? Please briefly explain 3 of these principles by referring to the relevant
Treaty provisions. (3 points)
4.2 The legislation-making institutions of the European Union have to justify the adoption
of legal measures in a certain field by indicating the appropriate legal base.
a. Explain how an appropriate legal base is identified in the Treaty. (3 points)
b. Briefly explain how a legal base for adopting a legislative act is chosen and reflect
on the possibilities for using multiple legal bases. In answering this question you must
refer to the relevant case law. (4 points)
(Exam Question 2012)
3. General question:
3.1 Please explain briefly with reference to Treaty norms three institutional
principles which guide the relationship between EU and Member States (do not
discuss direct effect and supremacy). (6p)
3.2 Once the EU accedes to the ECHR, the EU is bound by the ECHR directly. Name
and briefly describe which human rights protection standards exist currently in the
EU. How do they differ? (4p)

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