WEEK 3

EU Competences: The Principles of Conferral and

Subsidiarity

Hello. My name is Annegret Engel and I welcome you to today's lecture.

We will start the section on fundamental principles by talking about the different principles
that determine what the EU can do.

In other words, what are the competencies that the European Union has.
The key principles here are the principle of conferred powers or the principle of conferral, the
principle of subsidiarity, and the principle of proportionality.

I will deal with the first two principles

in this lecture,
there will then be a separate lecture on the principle of
proportionality later on within this section.
So first, let's talk about the principle of
conferred powers which is set out in Article 5 TEU.
Article 5 TEU
1. The limits of Union competences are governed by the principle of conferral. The use of
Union competences is governed by the principles of subsidiarity and proportionality. 2. Under
the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States. 3.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,
the Union shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local level,
but can rather, by reason of the scale or effects of the proposed action, be better achieved at
Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in
the Protocol on the application of the principles of subsidiarity and proportionality. National
Parliaments ensure compliance with the principle of subsidiarity in accordance with the
procedure set out in that Protocol. 4. Under the principle of proportionality, the content and
form of Union action shall not exceed what is necessary to achieve the objectives of the
Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in
the Protocol on the application of the principles of subsidiarity and proportionality.

Under this principle, the EU can only act within

the limits of the powers
conferred on it by the member states.
This means that the member states originally had to limit
their sovereign rights in certain areas by
transferring some of these powers onto the union.
Without that, the EU would have
no competence to act in those areas.
These transferred powers have been incorporated
in the treaties in the form of legal basis.
A legal base usually gives us
some basic information about
who has the competence to act,
so is it the union institutions' or the member states,
when would they be competent to act.
So under which conditions and how,
meaning what are the correct procedures that would apply.
For a long time,
the different types of competencies,
so the delimitation between
the powers of the union and the member states,
had not been formally defined in the treaties.
This was left for the courts to interpret
the relevant treaty provisions on a case-by-case basis.
The Treaty of Lisbon for the first time codify
the different types of
competencies that the union can have;
exclusive, shared, or other supplementary competencies.
The union's exclusive competence includes
only some areas which can be found in Article 3 TFEU,
as for example, the customs union.
In these areas, only the EU can
legislate and adopt legally binding acts.
Member states remain largely competent in
areas where the union
has only supplementary competencies,
such as culture or tourism.
These can be found in Articles 5 and 6 of the TFEU.
Here the union cannot legislate to
harmonize the laws of the member states,
but it can act in order to support,
coordinate, or complement their actions.
But the vast majority of policy areas
which are relevant for the topics of this course,
such as the internal market, the environment,
consumer protection, and social policy fall under
the shared competences of the union and they're
listed in Article 4 of the TFEU.
Shared does not mean that the union and
the member states can both legislate at the same time,
member states can only use
their competences to legislate to
the extent that the union has not
yet exercised its own competence.
As soon as the union exercises
its competencies and legislates in a particular area,
member states no longer have competence to do so.
This is called preemption of member states' competences.
Only those competences not conferred on the union by
the treaties remain fully
within the sovereign rights of member states.

While this may seem clear cut,

we need to remember that
not all competencies refer to one specific policy area,
such as agriculture or the environment.
Some competences of the EU as set
out in very broad and general terms,
they are so-called horizontal competences.
The best example of
such a horizontal competence is Article 114 of the TFEU,
under which the union has the power to
regulate the internal market.
Article 114 TFEU 1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement
of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary
legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of
the provisions laid down by law, regulation or administrative action in Member States which have as their object the
establishment and functioning of the internal market. 2. Paragraph 1 shall not apply to fiscal provisions, to those relating to
the free movement of persons nor to those relating to the rights and interests of employed persons. 3. The Commission, in
its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will
take as a base a high level of protection, taking account in particular of any new development based on scientific facts.
Within their respective powers, the European Parliament and the Council will also seek to achieve this objective. 4. If, after
the adoption of a harmonisation measure by the European Parliament and the Council, by the Council or by the Commission,
a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 36, or
relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as
well as the grounds for maintaining them. 5. Moreover, without prejudice to paragraph 4, if, after the adoption of a
harmonisation measure by the European Parliament and the Council, by the Council or by the Commission, a Member State
deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the
environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of
the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing
them. 6. The Commission shall, within six months of the notifications as referred to in paragraphs 4 and 5, approve or reject
the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a
disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning
of the internal market. In the absence of a decision by the Commission within this period the national provisions referred to in
paragraphs 4 and 5 shall be deemed to have been approved. When justified by the complexity of the matter and in the
absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in
this paragraph may be extended for a further period of up to six months. 7. When, pursuant to paragraph 6, a Member State
is authorised to maintain or introduce national provisions derogating from a harmonisation measure, the Commission shall
immediately examine whether to propose an adaptation to that measure. 8. When a Member State raises a specific problem
on public health in a field which has been the subject of prior harmonisation measures, it shall bring it to the attention of the
Commission which shall immediately examine whether to propose appropriate measures to the Council. 9. By way of
derogation from the procedure laid down in Articles 258 and 259, the Commission and any Member State may bring the
matter directly before the Court of Justice of the European Union if it considers that another Member State is making
improper use of the powers provided for in this Article. 10. The harmonisation measures referred to above shall, in
appropriate cases, include a safeguard clause authorising the Member States to take, for one or more of the non-economic
reasons referred to in Article 36, provisional measures subject to a Union control procedure.

As one can imagine,

the internal market can be
construed broadly and therefore may touch upon
a variety of other policy areas which
makes it more difficult to keep those competences apart.
Let's have a look at an example.
The EU introduced a measure prohibiting the sale of
oral tobacco products such as Swedish snus.
A manufacturer of snus
challenged the legality of this measure on
the grounds that this concerned the field of
public health rather than the internal market,
so the union would have no competence to regulate.
At the time, there were already some countries that
had introduced national laws regulating the sale of snus,
and other member states were considering such measures.
In effect, this would lead to differences between
national tobacco markets and
such differences could potentially
create barriers in the internal market.
So to remove the risk of such barriers,
it was necessary to introduce common rules ensuring
the functioning of the internal market
for tobacco products in general.
In its judgment, the European Court of Justice
held that the objective of
this measure was not public health,
but the establishment of
the functioning of the internal market,
so the union could indeed use
Article 114 of the TFEU as a legal base.
As you can see, this measure
clearly affected the area of public health
despite being introduced under
the horizontal competence of the internal market.
In general, this type of
reasoning has been used to justify
many of the most controversial measures
adopted by the EU.
So the principle of conferral may appear to grant
the union a very clear set of competencies,
but it is in fact
a very open-ended and ambiguous principle.
This is where the principle of subsidiarity plays a role.
Here the question is not whether there is
a competence available to
take action in a particular area,
this has already been answered in the previous step,
but rather at which level such action
would be most efficient.
The principle of subsidiarity
provides that the union should not be taking
any action when the objectives
of a proposed measure would
otherwise be better achieved by
the member states or even at regional level.
So the default actors here are indeed the member states,
unless there are reasons why
the union should be stepping in.
In practice however, it seems that
the European courts have been rather reluctant
to restrict any action taken
at EU level based on the principle
of subsidiarity when there
was a competence available in the treaties.
As we've seen above with the example of Swedish snus,
there are often multiple competencies available
that could serve as a legal base for a proposed measure.
The choice of one legal basis
over another then depends on
the specific objectives defined
in the measure in question.
So if the objective is
defined as protecting public health,
then perhaps the member states or justice
will place as the Union to achieve this objective.
If on the other hand we define the objective
as facilitating the functioning of the internal market,
then this can only be done at union level,
because it entails harmonizing
the laws of all the member states.
So individuals and member states
wanting to challenge a union measure on
the grounds that it breaches the principle of
conferral or the principle of subsidiarity,
almost never succeed as the
union's powers are indeed very broad.
What is often more successful then
is challenging the choice of
legal basis for a particular measure rather
than claiming a complete lack of competencies.
From the perspective of this course,
the principles of conferral and subsidiarity,
only deal with what the union can do,
not with how it should do it.
This is where the principles
of proportionality, non-discrimination, legality,
and respect for fundamental rights come in,
and they will be the subject of the next lectures.

The Effects of EU Law

Welcome to this lecture on the effects of EU law.
In the previous lecture, Eduardo told you what competences the EU has.
Essentially looking at the question, what can the EU do?
As the title of this lecture suggests, I will focus on the effects of EU law.
That is what happens when the EU does act, when the EU does use its competences.
However, before we can take a closer look at the actual mechanisms that give
effect to EU law,

I want to make sure that we're on the same page about what EU law even is.
EU law can be viewed as something distinct from national law.
A different legal order which can interact with the national one.
Just as the national legal order contains a hierarchy of norms.
With, for example, a constitution, laws, administrative decisions, etc.
The EU legal order also contains different legal instruments.

In terms of EU law, one often speaks of Primary law and Secondary law.
Primary law has a higher normative value and consists of the treaties.
You might have heard of the TEU, the treaty on European Union.
And the TFEU, the treaty on the functioning of the European Union.
The EU charter fundamental rights, which Magnus will talk to you about
in your next lecture, also forms part of what we can call Primary law.
Primary EU law essentially comes about through agreements between sovereign
member states.

Secondary law, on the other hand, is produced by the EU institutions themselves. It's worth
mentioning here, that the main institutions in this regard are the Council, the European
parliament, and the commission.
In general terms, Secondary law thus produced, can take the form of a regulation, a directive,
or a decision.

Now that we have a better idea of what EU law is, now we can ask ourselves, what difference
does it make? What are the mechanisms that makes EU Law relevant? Relevant to you,
relevant to me, to the company you're advising? Or to the member state this company would
like to provide services in. What makes EU law matter to us?
Well, the three simple answers to this are: direct
applicability, direct effect, and primacy.

I will now do my best to briefly explain these three key concepts in turn.
And I would advise you to listen carefully, as you can be sure that
there will be a quiz question on how these concepts function and interact.
In relation to direct applicability of EU law, the first thing I would like you to
do is take a good look at article 288 TFEU.

Para ejercer las competencias de la Unión, las instituciones adoptarán reglamentos, directivas,
decisiones, recomendaciones y dictámenes. El reglamento tendrá un alcance general. Será
obligatorio en todos sus elementos y directamente aplicable en cada Estado miembro.
26.10.2012 ES Diario Oficial de la Unión Europea C 326/171 La directiva obligará al Estado
miembro destinatario en cuanto al resultado que deba conseguirse, dejando, sin embargo, a
las autoridades nacionales la elección de la forma y de los medios.
La decisión será obligatoria en todos sus elementos. Cuando designe destinatarios, sólo será
obligatoria para éstos. Las recomendaciones y los dictámenes no serán vinculantes.

As you can see, all three forms of secondary law that I mentioned earlier are binding.
Even if directives are only binding as the result.
However, it is only regulations that are said to be directly applicable.
Well, what does this mean that regulations are directly applicable?

The insistence on direct applicability can be explained by the traditional view of

EU law, as being part of international law.
And hence something very different from national law.
Traditionally, the question of whether international law
becomes applicable law within the legal orders of a sovereign state.
It's a question left to the state at hand.
That is, it's up to each state to decide if and
how international law should apply in their territory.

Following this logic, it would have been up to the member state to decide
when EU law should overlap with national law.
And be applicable within the national context.
It should be noted that states have traditionally treated international law
in very different ways.
Some states embracing international law as directly applicable on their territory,
and some states requiring all international law to first be transposed
into national law, before it can be applicable.
Therefore, it was very important for the founders of the EU to set out
that some EU law would actually be directly applicable.
Hence it flows from EU Primary law that regulations need not, and
indeed should not, be transposed into national law.
They are by their very nature directly applicable in the member states.
From what was said about direct applicability,
you might now have the impression that regulations are the only form of EU law
that really matters in a national context.
Well, early on in the history of the European Union, its Court of Justice,
most commonly known as the ECJ, established that a much wider range of EU
law was destined to have direct legal effects in the member states.
In the classic judgment of Van Gend & Loos, which you can find in the resources
connected to this lecture, the ECJ introduced for the very first time,
and without any clear legal basis in the treaties, the principle of Direct Effect.
Together with Primacy, this principle has become the very foundation for
giving concrete effects to EU law in the national context.
In fact, as far as definitions go, direct effect can be defined
as the capacity of EU law to give rise to rights and
obligations directly, without the need for further implementation.
In practical terms, it means that you should be able to invoke and
enforce provisions of EU law with direct effect in your national context.
Whether it be before Spanish court, or a Swedish administrative body,
in a contract dispute, or as a defense against criminal prosecution.
This definition before you might sound like direct applicability.
But direct applicability is not in itself a prerequisite for direct effect.
A particular provision of EU law can be deemed to produce direct effect even
though the legal instruments where we find the provision is not a regulation.
Instead of connecting direct effect to direct applicability,
the ECJ chose to expound three concrete conditions that all have to be fulfilled
for a specific EU provision to have direct effect.
Firstly, the provision has to be clear and precise.
There should be no ambiguity about what the EU law in question actually requires.
Secondly, the provision has to contain an unconditional right or obligation.
1. If the first condition is concerned with the clarity of language.
2. The second condition concerns the clarity of the writer obligation itself.
3. Thirdly, and lastly, the provisions should not be dependent on implementing measures.

This last condition would seem to exclude the possibility

of provisions in directives ever producing direct effect.
Granted, directives are a bit particular when it comes to direct effect.
Since they're addressed to the member states, and
only the end, not the means, are said to be binding.
The ECJ has consistently held that directives cannot produce direct effect,
at least not between private parties.
To this effect, it is often stated that
there can be no horizontal direct effect flowing from directives.
However, when it comes to relationships between the state and
a private party, directives can produce vertical direct effect.
At least when the EU provision is invoked by the private party as against the state.
The ECJ has ruled that the member state, and thereby any public administration or
undertaking, should be precluded from benefiting from the fact
that a member state itself has neglected to implement a directive correctly.

This kind of reasoning stems from the so called Estoppel principle.

Which prescribes that no one should be able to benefit from their own misconduct.
As I stated earlier, direct effect and
primacy works together to ensure an effective EU law.
Shortly after the introduction of direct effect in Van Gend & Loos
the ECJ went on to introduce the principle of primacy of EU law.
In its Costa vs Enel judgment, which you'll also find in the resources.
This principle basically requires that EU law has a higher normative value.
And that it has to be given effect.
Even in the presence of a contrary national norm.
I would like you to think about what this means and
try to answer the following question.
So, as you see, the combination of direct effect on the one hand,
and primacy on the other can be quite a force to be reckoned with.
However, as a very last note on primacy,
I would like to add that even if the EU provision at hand, for one reason or
another, does not fulfill the criteria for having direct effect.

Primacy can still come into play.

The primacy of EU law gives rise to an obligation of EU conform interpretation,
which was most known to be laid down in the ECJ Marleasing judgment.
This obligation implies that all national rules
must be interpreted in light of EU law.
And should as far as possible be given an interpretation
which is in conformity with EU law.
And here I mean all EU law, not just the one which has direct effect.
I'll let those be my final words for this session.
I hope it has been helpful, and thank you for your time.
The Principle of Fundamental Rights

I will talk about the protection of fundamental rights in the European Union.
In order to follow this lecture, I suggest that you have access to Article 6 and
19 of the Treaty of the European Union.
And the charter of fundamental rights.
Article 6 TEU 1. The Union recognises the rights, freedoms and principles set out in the
Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at
Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The
provisions of the Charter shall not extend in any way the competences of the Union as defined
in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in
accordance with the general provisions in Title VII of the Charter governing its interpretation
and application and with due regard to the explanations referred to in the Charter, that set out
the sources of those provisions. 2. The Union shall accede to the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the
Union's competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms and as
they result from the constitutional traditions common to the Member States, shall constitute
general principles of the Union's law.
Article 19 TEU 1. The Court of Justice of the European Union shall include the Court of Justice,
the General Court and specialised courts. It shall ensure that in the interpretation and
application of the Treaties the law is observed. Member States shall provide remedies
sufficient to ensure effective legal protection in the fields covered by Union law. 2. The Court of
Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-
General. The General Court shall include at least one judge per Member State. The Judges
and the Advocates-General of the Court of Justice and the Judges of the General Court shall
be chosen from persons whose independence is beyond doubt and who satisfy the conditions
set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union. They
shall be appointed by common accord of the governments of the Member States for six years.
Retiring Judges and Advocates-General may be reappointed. 3. The Court of Justice of the
European Union shall, in accordance with the Treaties: (a) rule on actions brought by a
Member State, an institution or a natural or legal person; (b) give preliminary rulings, at the
request of courts or tribunals of the Member States, on the interpretation of Union law or the
validity of acts adopted by the institutions; (c) rule in other cases provided for in the Treaties.

Article 52 the Charter - Scope and interpretation of rights and principles 1. Any limitation on the
exercise of the rights and freedoms recognised by this Charter must be provided for by law and
respect the essence of those rights and freedoms. Subject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet objectives of general
interest recognised by the Union or the need to protect the rights and freedoms of others. 2.
Rights recognised by this Charter for which provision is made in the Treaties shall be exercised
under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter
contains rights which correspond to rights guaranteed by the Convention for the Protection of
Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be
the same as those laid down by the said Convention. This provision shall not prevent Union
law providing more extensive protection. 4. In so far as this Charter recognises fundamental
rights as they result from the constitutional traditions common to the Member States, those
rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter
which contain principles may be implemented by legislative and executive acts taken by
institutions, bodies, offices and agencies of the Union, and by acts of Member States when
they are implementing Union law, in the exercise of their respective powers. They shall be
judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6.
Full account shall be taken of national laws and practices as specified in this Charter. 7. The
explanations drawn up as a way of providing guidance in the interpretation of this Charter shall
be given due regard by the courts of the Union and of the Member States.

Article 53 the Charter Level of protection Nothing in this Charter shall be interpreted as
restricting or adversely affecting human rights and fundamental freedoms as recognised, in
their respective fields of application, by Union law and international law and by international
agreements to which the Union or all the Member States are party, including the European
Convention for the Protection of Human Rights and Fundamental Freedoms, and by the
Member States' constitutions

Originally conceived as a general principle of EU law in the 1970s,

the protection of fundamental rights has
become a keystone in the creation of the internal market.
The first German commissioner to the EU, Walter Hallstein, noted already in
the 1950's that the then European economic community was a Rechtsgemeinschaft, or
a community of the law.
I will focus on two provisions of the treaty of the European Union.
Article 19 TEU is considered to establish the rule of law in the European Union.
According to this provision, the Court of Justice of the European Union shall ensure
that in the interpretation and application of the treaties, the law is observed.
Member states shall provide remedies sufficient
to ensure effective legal protection in the fields covered by union law.
The framework for
the protection of fundamental rights in the EU is laid down in Article 6 TEU.
There are four levels of protection.
First, according to Article 61 TEU, there is the charter of fundamental rights.
The charter contains the fundamental rights catalog, and
has the same value as the treaties.
Second, according to Article 62 TEU,
there is the future accession of the EU to the convention of human rights.
Third, according to Article 6.3 TEU, there is
also the protection of fundamental rights through general principles of EU law.
Finally, under the same provision, there is the application of fundamental rights
by national courts through national constitutions.
There is plenty of case law from the court of justice of the European Union.
You will find some judgments in the reading material for this lecture.
We will now take a closer look at the four levels of protection.
The charter of fundamental rights was proclaimed in Nice on
the 7th of December 2000.
However, it became legally binding only in the December 2009,
when the Lisbon treaty entered into force.
According to Article 51 of the charter, it applies only when EU law is applicable and
when the EU member states apply EU law.
However, when the charter applies, it is binding on the EU Institutions
as well as the national institutions and the national administrations.
Thus, the charter is binding for the European Court of Justice and the national
courts, the Commission and the National Competition authorities and so on.
The charter is a peculiar document,
since it contains both what is commonly called hard rights as well as soft rights.
Hard rights, are rights which concern the physical integrity of individuals.
And the protection from arbitrary interventions by the state, and
the freedom of individuals.
Such rights include the right to dignity,
to life, the ban of torture, and the ban of capital sentences.
Soft rights, on the other hand, are rights which are more closely related to
the organization of society and social aspects of life.
These include rights such as the right to a paid holiday,
the right to fair working conditions, and the right of workers to be consulted.

Naturally, the wide scope of these rights

means that they all carry a different meaning and different effects.
The charter distinguishes between rights and
principles in Article 52 paragraph five.
It is still not clear how this distinction should be made.

Also, the charter contains many rights which have been inspired by other
documents.

One such important source of inspiration

is the European convention of human rights.
You heard it right, the convention of human rights is applicable
also in this setting and not only in Article 60 EU.
One reason was to ensure coherence in the application of fundamental rights in
the EU.
Anyway, other rights and now we are talking about many of the soft
social rights, can also be found in directives,
which have been adopted by the European legislator.
Such rights include the right to a paid holiday and the right for
workers to be consulted.
Some of these directives are only framework directives, and
they are not specific enough to have direct effect.
In such a situation, the corresponding right in the charter is also weaker.
Another distinction follows indirectly from what I just said.
Those rights which correspond to rights in the convention of human rights,
must be interpreted in the light of that convention.
The EU may choose to provide a higher level of protection however.
This follows from Article 52.3 of the charter.
All this together shows that the convention of human rights has a specific
place in EU law.
The EU is supposed to exceed to the convention of human rights.
The convention of human rights has been applied by the European court of
justice as the human rights standard for quite some time now.
Remember, I just mentioned how the convention
forms an sort of minimum level according to Article 52.3 of the charter.
But apparently, this was not considered to be enough.
Instead, it was decided that the EU should become a member of the Council of Europe
and exceed to the convention.
There are many aspects to this question, but one which is very important
is the design of a judicial structure of the relationship
between the Court of Justice of the EU in Luxembourg on the one hand and
the Court of Human Rights in Strasbourg on the other.
The negotiations for the accession are well under way.
On the 5th of May 2014, the Court of Justice had its
hearing on on what will be opinion too, for 2013.
If the Court of Justice agrees to the draft accession treaty,
the EU may exceed to the convention very soon indeed.
There is the question of general principles of EU law.
Let me be brief on this point.
It does not change any level of rights protection.
For all practical purpose,
the provision in Article 6.3 TEU is of little importance in this regard.
However, the fourth question,
the role of national constitutions, is potentially important.
According to Article 4.2 TEU, the EU must respect national identity.
According to Article 6.3 TEU, and the Articles 52.4 and
53 of the charter, national constitutions
play an important role in the fundamental rights protection in the EU.
But if it would ever threaten the primacy, unity, and effectiveness
of EU law in the face of harmonizing measures based on mutual recognition
National constitutions must give way to the effectiveness of EU law.
This outlines the framework for the fundamental rights protection in EU law.
It's impossible to cover it all in one single lecture, but
at least now we have had a brief overview.
Thank you for tuning in and see you soon again.

The Principle of Proportionality

Article 5 TEU 1. The limits of Union competences are governed by the principle of conferral. The
use of Union competences is governed by the principles of subsidiarity and proportionality. 2.
Under the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States. 3.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the
Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently
achieved by the Member States, either at central level or at regional and local level, but can
rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol
on the application of the principles of subsidiarity and proportionality. National Parliaments
ensure compliance with the principle of subsidiarity in accordance with the procedure set out in
that Protocol. 4. Under the principle of proportionality, the content and form of Union action shall
not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the
Union shall apply the principle of proportionality as laid down in the Protocol on the application of
the principles of subsidiarity and proportionality.

I have based this lecture on this excellent book, the third edition of
European Union Law written by Koen Lenaerts and Pete Van Nuffel.
It was published by Sweet & Maxwell in 2011.

In life we are all called upon to make choices.

They range from what should I have for
dinner to where do I want to send my kids to school.

The law is no different.

Often choices have to be made based on evidence.
In criminal law, for
instance, we need to see whether the accused committed the alleged act.
In EU law we have that, too, but because of the very special nature of EU law,
which is based on the parallel application of EU law and national law, we
sometimes must make an assessment, whether EU law and national law are compatible.
We call this a compatibility assessment.
This assessment often leads to balancing of different interests and
different results.
On one hand we have the primacy, unity and effectiveness of EU law.
And on the other hand, we have the principles of subsidiarity and conferral.
As Lenaerts and Nuffel have explained it,
the principle of proportionality serves to assess the legality
of an exercise of power where an admittedly legitimate aim is pursued.
But at the same time, other objectives deserving of protection are damaged.
The balancing of these interests follows a certain model.
The model has been adopted from German constitutional law and
it is applied in all fields of EU law.
Proportionality assessments are also different depending on the field of law.
Is applied in relation to fundamental rights, the four freedoms, labor law and
many other fields where national measures must be assessed in the light of EU law.
So remember in this lecture we will look at how the principle of proportionality
is applied when national measures are assessed in the light of EU law.
In order to make the assessment transparent,
the proportionality test follows three distinct steps.
These steps ensure not only transparency, but also function as
a way of self control, because they force judges to reason their decision.
I will now present the three steps one by one and
give you some examples from the case law of the ECJ.
As always, you'll find the relevant cases in the reading materials for this lecture.
The first step in the proportionality assessment
is the question whether the measuring question is appropriate.
This step requires a causal relationship between the measure and
the objective pursued.
It controls whether the measure was taken arbitrarily.
The Court of Justice leaves a marginal discretion to the national authority
concerned, and only considers whether there has been a manifest error.
One example of an appropriate measure can be found in the case Dirextra.
Apparently, Italian legislation provided certain funds to
higher education on master level on the condition that the demanding school had at
least ten years experience to provide higher education.
The question arose,
whether the Italian measure restricted the freedom of establishment in the EU
by limiting the number of schools which could receive the funds.
In its analysis, the Court of Justice found that the aim of the Italian measure
to ensure a high quality of the education on the Master level which makes it easier
for those who visit the school to find a job once they're done was appropriate.
So now, it was time to go to step two.
The second step in the proportionality assessment
is the question whether the measure was necessary.
This test is the dominant feature in the proportionality test.
The question is, does the measure go further than is necessary
to achieve the legitimate aim pursued?
In practice, the question arises whether other less restrictive means,
capable of realizing the same end exist.
Less restrictive means that it would be less detrimental to another aim or
interest protected by EU law.
As you see, this is the part where the actual balancing takes place.
If we continue with the example from step one, the court,
after finding that the measure was appropriate, found that since
the restriction was only applicable to Master level education and
did not restrict the possibility of students to seek out any other education,
it could not be considered disproportionate to provide the funds
only to a limited number of schools which met the requirements.
As a result, the measure was compatible with EU law.
Finally, there is also the weighing of interests in general.
This third step of the proportionality test
is sometimes overlapping with the second step.
The advantage of this third step, however, is that it allows for
a sort of rule of reason, if an outcome would be manifestly inappropriate.
Remember, the principle of proportionality applies in all fields of EU law.
It is used for fundamental rights as well as the review of EU legislation.
As a matter of fact, Article 5 TEU stipulates an obligation for the EU to
respect the principle of proportionality when it exercises its competence.
I have included two cases which cover this test in the reading materials.
This, dear watchers, outlines the principle of proportionality.
You will meet this principle again and
again in the different lectures which follow.
I hope that you have enjoyed the lecture.
Thank you for tuning in, and see you soon again.
[MUSIC]
The Principle of Non-discrimination
Article 18 TFEU Within the scope of application of the Treaties, and without prejudice to any
special provisions contained therein, any discrimination on grounds of nationality shall be
prohibited. The European Parliament and the Council, acting in accordance with the ordinary
legislative procedure, may adopt rules designed to prohibit such discrimination.

Article 157 TFEU 1. Each Member State shall ensure that the principle of equal pay for male and
female workers for equal work or work of equal value is applied. 2. For the purpose of this Article,
‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether
in cash or in kind, which the worker receives directly or indirectly, in respect of his employment,
from his employer. Equal pay without discrimination based on sex means: (a) that pay for the
same work at piece rates shall be calculated on the basis of the same unit of measurement; (b)
that pay for work at time rates shall be the same for the same job. 3. The European Parliament
and the Council, acting in accordance with the ordinary legislative procedure, and after consulting
the Economic and Social Committee, shall adopt measures to ensure the application of the
principle of equal opportunities and equal treatment of men and women in matters of
employment and occupation, including the principle of equal pay for equal work or work of equal
value. 4. With a view to ensuring full equality in practice between men and women in working life,
the principle of equal treatment shall not prevent any Member State from maintaining or adopting
measures providing for specific advantages in order to make it easier for the underrepresented sex
to pursue a vocational activity or to prevent or compensate for disadvantages in professional
careers.

1.2 Excerpts from the Charter Article 21 the Charter Non-discrimination 1. Any discrimination
based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language,
religion or belief, political or any other opinion, membership of a national minority, property,
birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of
the Treaties and without prejudice to any of their specific provisions, any discrimination on
grounds of nationality shall be prohibited.

In this section, I will talk about the principle of non-discrimination.

This has been described as being the DNA of EU law and
the cornerstone on which European integration is built.
It permeates every aspect of EU law.
It binds both the EU and all its institutions.
It binds the member states and
it can even bind private parties within the member states.
Discrimination consists of both treating like cases
differently and also treating different cases the same.
The test is whether the difference in treatment
is on the basis of substantial objective differences between the cases.
Let's give some example and try to clarify this.
In most countries in Europe, motorcyclists are allowed to travel on motorways, but
people on mopeds are not.
This is a clear difference in treatment.
But it is not discrimination because there are substantial
objective differences between motorcycles and mopeds in terms of speed.
Which means that mopeds are not comparable to motorcycles
when it comes to traveling on a motorway.
On the other hand, a rule prohibiting mopeds from parking on
motorbike parking places may well discriminate.
When they need to park their bikes,
moped riders are in a comparable situation to motorcycle riders.
And to complete this example, imagine this car park
charged motorcycles the same amount to park there as a large lorry.
Here, there might be discrimination because the two cases are not comparable
when it comes to occupying parking spaces, yet they are treated the same.
There are numerous measures in the treaty which give expression
to the principle of non-discrimination in a variety of contexts.
The treaty expressly prohibits discrimination on grounds of nationality
in Article 18 TFEU.
And prohibits discrimination on grounds of sex in matters of employment
In Art 157 TFEU.
In addition, the Charter of Fundamental Rights of the European Union contains
a prohibition on any discrimination based on any grounds such as sex,
race, color, political opinion, age, sexual orientation, and so on.
But it can be argued that all these explicit prohibitions on discrimination
in EU primary law are merely different expressions
of the general principle of equality or non-discrimination.
Which is a general principle of EU law.

And the case law of the Court of Justice shows that this general principle
extends not just to differences of treatment on grounds such as sex, race,
nationality, political opinion.
Which are quite familiar to discrimination lawyers in national law.
Or in the law of the European Convention on Human Rights, for example.
But also extends to difference of treatments on any other grounds.
So for instance, treating steel producers less favorably than aluminum producers,
or importers of liquors less favorably than those of table wine, or
traders in lamb meat less favorably than traders in beef might be discriminatory.
This has important implications for
a business because it widens the range of arguments that they can use
to challenge measures that might put that business at a disadvantage.
Having said that, it must be recognized that measures that differentiate on
grounds such as sex or nationality are much more likely to be considered
discrimination than treating different industry sectors differently.
In particular any difference of treatment on the grounds of
nationality is likely to be very problematic from an EU law perspective.
As will be discussed in the section on the internal market,
prohibiting rules which disadvantage products or persons or
services from other member states in a particular national market
has been a key factor in building the internal market and European integration.
There are two main categories of discrimination.
Direct discrimination occurs when a person is treated
less favorably because of their status.
A good example of direct discrimination was a Greek law which stated that
only Greek nationals could hold a post of captain or first mate.
Non-Greek nationals were at a disadvantage in their
employment opportunities because of their nationality.
So the Court of Justice held that the Greek law
was directly discriminatory on grounds of nationality.
Or another example, an Irish campaign backed by the Irish government
that was designed to encourage people to buy Irish, and so
put non-Irish products at a disadvantage because of their nationality.
But more common and more subtle is indirect discrimination.
Indirect discrimination occurs when a requirement is imposed on the person
which appears, on the face of it, to treat everyone the same way, but
in reality it puts persons in a particular group at a disadvantage.
A good example of this are residency requirements.
In one such case, an Austrian law required that all undertakings
trading in Austria to apply, only appoint managers who were resident in Austria.
The court found that this measure was indirectly discriminatory,
because whilst it might not make a mention of nationalities,
it in fact put nationals of other member states at a disadvantages,
as non-residents are in the majority of cases, foreigners.
Another example, this time in the context of sex discrimination,
is a policy by a department store to exclude part-time
workers from its occupational pension scheme.
As women were much less likely than men to work full time,
such a policy placed women at a disadvantage.
The reason for the less favorable treatment was not the sex
of the workers, but the result of the policy was nonetheless
that women were less favorably treated than men.
But it's important to remember that differences in treatment,
even if they might be prima facie discriminatory, can be justified.
And the treaties provide member states with specific exemptions
that allow them to justify the differences in treatment.
So rules that require imported use cars to be subject to a road-worthiness test,
that domestic use cars are not required to take,
can be justified on grounds of protecting public health.
And decisions to deport non-national EU citizens, which of course cannot apply to
national EU citizens, can be justified on the grounds of protecting public order.
In addition to these express requirements that are stipulated in the treaty,
member states may be able to justify
indirectly discriminatory measures by reference to other objective requirements.
Such as protecting the environment, protecting consumers.
This issue of how differences of treatment can be justified
will be dealt with in much greater detail in the internal market part of the course.
It's also important to remember that any such justification must respect
the principles of proportionality and respect for
fundamental rights which are covered in Magnus's lectures.
The principle of non-discrimination in the EU law is particularly complex because
this principle can be seen as performing a number of different roles within the EU
legal system.
It can have a market unifying role by removing differences of
treatment which can create barriers in the internal market.
It can have a market regulatory role, which ensures that all actors are treated
the same to ensure fair competition and prevent distortions in the market
causing by treating certain market actors more favorably than others.
But just as the European Union has moved beyond being a merely economic union,
so the principle of nondiscrimination has grown beyond being a mere
market principle and is now evolving into a principle that protects the rights of
all EU citizens regardless of whether they are market actors.
To be treated fairly and equally.
And in that role, as a constitutional principle of non-discrimination,
it comes into the scope of the principle of respect for fundamental rights.
And that is the subject of the next lecture.

The Principle of Legal Certainty

Hello again. This session with me will be

dedicated to The Principle of Legal Certainty.
As it is expressed in EU law.
To start us off,
I think we have to ask ourselves what is implied by this term legal certainty.
Well, in the EU context, the principle of legal certainty requires,
in particular, that rules should be clear and precise so
that individuals may ascertain an equivocally what the rights and
obligations and also may take steps accordingly.
In other words, legal certainty requires a sufficient degree of foreseeability and
also guarantees against arbitrariness within the legal system.
A problem one can see from a legal certainty perspective is that
EU rights and obligations very often are dependent on a national system and
that this national system might not be in line with the provisions of EU law.
For example, a new piece of EU legislation may provide a right
which can be interpreted in different ways a member stake might then, in good faith,
have opted for too restrictive interpretation of this right and
adapted the national law accordingly.
Such a situation can quite obviously create uncertainty
on the part of the individual about what his or her legal rights actually are.
From what we discussed in my last session, we know that the primacy of EU law
is certainly one tool that can be used when faced with dissonance between
on the one hand, the EU provision and on the other hand, national provisions.
The principle primacy will then dictate that national provisions
are interpreted as far as possible to comply with the EU provision.
And, also, if there is a specific national legal rule standing in the way for
a correct enforcement of EU right, primacy might even dictate that
this national measure should be disapplied, so thrown out the window.
In this sense, legal certainty is promoted as we then know that EU Law and
principle should prevail.
We don't have to second guess if it's national or EU Law.
So it will prevail when there is contradiction between EU law and
national law.
But then the question is would primacy be the only tool in the EU toolbox to deal
with the situation of legal uncertainty due to these differences between EU and
national law?
Just like the principal of equality and nondiscrimination,
which you heard about from Eduardo in your last session,
the principal of legal certainty is a general principal of EU law.
Legal certainty is even called a fundamental principle of union law.
Reflecting the fact that EU claims to be a legal order built on the rule of law and
that no such legal order with self respect could survive without adhering to
the principle of legal certainty.
Having the status of a general principle of the EU Law.
This essentially means that the legal certainty can be used in two different
ways, both as a tool for interpretation and as a standard of judicial review.
This means that EU law as a whole should be interpreted in a way
that is compatible with the principal of legal certainty.
That is, in a way that is foreseeable to the individuals and
also to the member states concerned.
As for the role of the principle of legal certainty in judicial review, on the other
hand it can be used as a benchmark, both when assessing the validity
EU law itself, and when assessing the compatibility of national law with EU law.
So, for example, if an EU provision
would introduce a rule with a retroactive penalty, that is, a penalty for
an act that was not in anyway subject to a penalty when the act was committed.
This retroactive penalty would be deemed contrary to the principle of legal
certainty and the EU provision would be held to be invalid on this ground.
In a similar manner, national law that would fall within the scope of EU law
that is, the law that in some way overlaps with the EU
legal sphere could be deemed to be incompatible with EU
law if it does not respect the principle of legal certainty.
As an example of how the principle of legal certainty can come
into plain practice, I would like to introduce you to the ECJ's
classic judgement from the 1976, in the Defrenne case.
You'll find the full judgment in your material but
the basic gist of the case is that the that has been in force since
the foundation of the European community contained a provision which obliged
the member state to ensure that men and women got equal pay for equal work.
Miss Defrenne, an air hostess working for
the Belgium aviation company Sabena, she brought an action against her employer
on the grounds that her male colleagues got higher wages than her.
The national court decided to send a question to the ECJ,
asking whether the treaty provision on equal pay, which was directed to
the member states, could also bind a private company such as Sebena.
The ECJ gave a positive response, Sabena
was in fact obliged to give the male and female workers equal pay for equal work.
The court thereby established that the principle of equal pay between men and
women had horizontal direct effect.
So as between private parties.
As you can see on this timeline, the Treaty provision on equal pay had been in
force for about 18 years when the ECJ's judgement in Defrenne was handed down.
As a general rule, the ECJ's interpretation of EU law is ex tunc,
which means that the provision on equal pay
should have been understood as having horizontal direct effect all along.
However, this was a huge shock for the private employers around Europe
who thought that the treaty provision at hand, only bound the states.
As the outcome reached by the court was so
unexpected, and that the decision could potentially have disastrous
economic effects on companies across Europe, the ECJ decided,
in the name of legal certainty, to limit the retroactive effects of its judgement.
Miss Defrenne and everyone who had already initiated proceedings at the time of the
judgement,
they could get compensation for loss of wages prior to this date.
However, no one who would initiate proceedings after the 8th of April
in 1976 could get compensation for discrimination.
That have taken place prior to the ECJ's Defrenne judgment.
Before we finish of this session on legal certainty, I would like you to think about
and also try to answer this following quiz question.
The answer to this question brings us back to how legal certainty is often
ensured in the EU context by focusing on the uniform application of EU law.
Since it would create great legal uncertainty if EU law was disapplied or
declared invalid in some member states, but not in others.
Even national courts at the lowest levels are bound to send a question for
preliminary ruling,
if they have doubts on the validity of EU law,
on any grounds. So, as you see, there are actually
many tools in the EU toolbox to ensure legal certainty and foreseeability.
Thank you for listening and enjoy the rest of the course.