European Union Law

1. Prof. Daniele GalloChair of EU LawLawDepartmentLuiss Guido CarliUniversity (Rome, Italy)VisitingProfessors: StephanieHennette (Paris Nanterre), HarmSchepel (Kent), Robert Schuetze (Durham), Antoine Vauchez (Paris Sorbonne) European Union Law

2. General and practical information • Myself and yourselves • Schedule, attendance et similia • Signatures • Written tests/exams (not on English) • Active participation • Program (parts, chapters): slides (uploaded before and re-uploaded every week) + notes + materials + book (only for clarification) • Teaching assistants: Caterina Mariotti, Eugenio Olita, Paolo Fernandes, Alexandra Logue • Renown Visiting Professors: S. Hennette, H. Schepel, R. Schuetze, A. Vauchez • Homepage/Luiss.learn • Book: to buy or not to buy and where to find it? Schuetze, EU Law, CUP, 2018 • EU institutional law (substantive law in your 5th year)

3. Interaction, questions • Should you not understand what the instructor is explaining during the class, raise your hands! Do not behave like Wallace’s fish! There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, "Morning, boys, how's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, "What the hell is water?"

4. Program • Check it out

5. Examples Political and economicrelevance of the EU • Brexit • Sanctions vs. Russia • Fines vs Google and Facebook • Roaming • Suspension of Schengen • Reform on asylum law • Hungary and Art. 7 TEU • Redditocittadinanza/minimum income and anti-discrimination/citizenship • Ban on throwaway plastic • Gilets jaunes and free movement of goods • 2019 Italy’s budget • Venezuela • Even when it seems that the EU does not have competence … ius soli, Cataluña etc.

6. Part I – The development of Europeanintegration Ch. 1 – Europe and the EU • Europe, EU and Council of Europe (countries and membership) • Different concepts and course’s content • The idea of Europe • Several purposes and roots of the term • Charlemagne and Christian humanism • Modern nation State • Social market economy, progress, civilization, culture (with atrocious moments though) • EuropeanUnion • Union/legal standpoint: system established to face contemporary problems + to realise goals that individual States felt unable to manage alone • European: European ideal and culture/heritage • The idea of EU • Proposals for a ‘united Europe’ (XVII and XIX centuries) • World War I and World War II • Peace and market (and then something more than common market ... legal and rights integration) • International or constitutional legal order? It is a supranational legal order (different from international law: broadness of areas of intervention of EU law + application of constitutional legal principles) – originality • EU Law: two dimensions – institutional and substantive • The EU, now and its crisis of legitimacy • Economic crisis: austerity vs fundamental rights and MS’s economic and social sovereignty • Immigration: solidarity (?) among MS; asylum; free movement of persons and future of Schengen area • Populism as a product of these two phenomena …where is the EU? What the EU stands for?

7. PART I – THE DEVELOPMENT OF EUROPEAN INTEGRATION CH. 2 – THEORIES ON INTEGRATION • Variety of theories • Liber(al)ism: more market more freedom • Ordo-liberalism (the most relevant): more market more prosperity with a social dimension • Neo-federalism … utopistic project? • Inter-governmentalism and supra-nationalism

8. Part I – The development of European integration Ch. 3 – the origins of integration and the ECSC • War and EU • Spinelli (VentoteneManifesto) • Federal Republic of Germany and need for sharing the European coal and steel production (Ruhr and Saar) that would be put under the control of a High Authority • Jean Monnet and Robert Schuman • Schuman Declaration – check it out • ECSC (1951, Paris Treaty for 50 years): 6 MS • 4 institutions: High Authority, Assembly, Council, Court of justice • EDC (army, budget and joint institutions) but rejection by the French national assembly

9. Part I – The development of European integration Ch. 4 – EEC and EURATOM Treaties • Messina Conference (1955) • The Spaak Committee • EURATOM and EEC (no temporary limit): treaties signed in Rome in 1957 • Economic aims/common market • But through the market greater peace • International law? A different legal order … why? (a) Wide scope of EU law (for example, customs union + freedoms of movement) and (b) application of constitutional principles such as direct effect and supremacy (CJEU: ‘independent source of law that could not, because of its special and original nature, be overridden by domestic legal provisions’ and can be invoked directly by individuals) – individuals at the heart of EEC, not only States • See Van Genden Loos and Costa • Parliamentary Assembly and Court in common with ECSC + Council of Ministers and Commission (until 1965; afterwards same institutions for the 3 communities) • Location: Strasburg, Luxembourg, Bruxelles • Be aware: articles’ numbering varies over the years and the treaties amendments • Institutions • Commission: initiative, control, negotiation • Council: legislative power + weighted power of vote • Parliament: supervision and consultation (but its role will change to a great extent in the future) • Court: judicial powers • Institutional and substantive parts • Supranationalism vs. Intergovernmentalism • Countervailing trends: own resources, European Council (1974), Parliament with direct elections (1979), ECJ

10. Part I – The development of European integration Ch. 5 – Early enlargements • EEC 1973 • UK, Ireland, Denmark • EEC 1981 • Greece • EEC 1986 • Spain, Portugal

11. Part I – The development of European integration Ch. 6 – Single European Act • Adonnino Committee (European identity) and Dooge Committee (political reform) • European Council (Milan, 1985) • White paper (Delors) • Treaty (1986/1987) • Institutional changes • Parliament • European Council • CFI • Comitology • Substantive changes • Art. 26 TFEU • Art. 114 TFEU

12. Part I – The development of European integration Ch. 7 – Maastricht Treaty • Delors Committee • IGC/European Council • 1992 Treaty (1993 in force) • New form of political project • Art. A • Institutional architecture: 3 pillars (EC, not anymore EEC,+ 2 pillars: within the EU) • Differences: Commission/Parliament/ECJ in the 1st vs European Council and Council in the 2nd and 3rd + external legal personality • Institutional changes • Parliament and democracy: Art. 251 TEC (codecision) + appointment of the Commission • European System of Central Banks and ECB • Parliamentary Ombudsman • Committee of the Regions • Substantive changes • Principle of subsidiarity • European citizenship • Economic and Monetary Union Art. 98-124 EC • New areas of competence (culture, public health, consumer protection, environment)

13. Part I – The development of European integration Ch. 8 – Further Enlargements • 1995 • Finland • Austria • Sweden

14. Part I – The development of European integration Ch. 9 – Amsterdam Treaty • IGC and consolidation of Community powers • 1997 Amsterdam Treaty (1999 in force): deletion of obsolete provisions + adaptation of other provisions  • AFSJ • 1st Pillar • Substantive changes: communitarization  • 2nd Pillar • No big changes with the exception of the institution of the High Representative  • 3rd Pillar • Police and judicial cooperation in criminal matters

15. Part I – The development of European integration Ch. 10 – Nice Treaty, EURO and further enlargements • Nice Treaty 2000 (2003 in force)   • 1st Pillar:codecision enhanced • 2nd and 3rd pillars:no changes • Nice Charter: check it out • 1st January 2002: EURO • Not all Member States have adopted the EURO (UK, Bulgaria, Croatia, Czech Republic, Hungary, Denmark, Poland, Romania, Sweden) • Enlargement • 2004: 10 States (Czech Rep., Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, Slovakia)

16. Part I – The development of European integration Ch. 11 – Constitutional Treaty • Laeken European Council • Convention: representatives from national governments, national parliaments, the Parliament, the Commission + accession countries +Giscard d’Estaing Chair and Amato and Dehaene vice-chairmen • Praesidium: chairman, 2 vice-chairmen, 3 representatives of national governments, 2 from the Parliament, 2 from the Commission and 2 from national parliaments • Constitutional Treaty: Part I (basic objectives, fundamental rights, institutional division of power); Part II (Charter); Part III (policies and functions); Part IV (final provisions) • Referenda in France and Holland (unanimity needed)

17. Part I – The development of European integration Ch. 12 – Lisbon Treaty and further enlargements • ICG and reform Treaty • Lisbon Treaty (December 2007, 2009 in force) • Ireland’s first and then second referendum and reluctance of the Czech President then overstepped (unanimity)  • 7 Articles: 1 amends TEU and contains core principles governing the EU and CFSP; 2 amends the EC Treaty renamed TFEU • 2 treaties with the same legal value • Legal personality of the EU: The EU replaces and succeeds the EC + elimination of pillars • Legal status of the Charter • Renumbering • Enlargements • 2007: Bulgaria and Romania • 2013: Croatia

18. Part I – The development of European integration Ch. 13 – Asymmetries in the membership: the case of UK • EURO/Economic crisis • Migration and Schengen • UK special status in the EU • European Council of 19 February 2016: legally binding and irreversible decision for a new settlement on UK • June referendum (2016) • January UK Supreme Court’s ruling and invokation of Article 50 TUE on withdrawal (2017) • UK is thus due to leave the EU on 29 March 2019 • Brexit before the CJEU? • Paradox: EU is today much more similar to UK’s aspirations than it was before • What will it happen next? • Consequences for UK and EU individuals • A new FTA? EEA? Switzerland? TTIP or CETA?

19. Part II – EU institutions Ch. 1 – General remarks and overview • Art. 13 TEU + Committee of the Regions, Economic and Social Committee, European investment bank, agencies, EU High Representative • No strict separation of powers

20. Part II – EU institutions Ch. 2 – Commission • Art. 17 • Role of the Commission: motor of integration • Duration and commissioners’ competence and independence (17.3) • Size (17.4 and 5) • President (17.6) • Appointment (17.7) • Individual removal (Art. 247 TFEU and 17.6 TEU) + collective removal (17.8 and Art. 234 TFUE) • Commission bureaucracy (Commissioner’s portfolio + DG + Heads of Division/Unit + civil servants) • Decision-making (draft legislation from the lower level up to the College of the commissioners: weekly meetings and discussion by heads of cabinets in the oral procedure + written procedure + delegated decision-making) • Generally by consensus or, if requested by a member, by majority • Powers (17.1 and 17.2 + others) • Legislative power (initiative + overall legislative plan + autonomous legislative power) • Administrative power (management and implementation of policies) • Executive power (budget and external relations) • (Quasi) Judicial power (infringement proceedings + investigator and initial judge in competition/state aid)

21. Part II – EU institutions Ch. 3 – Council • Art. 16 TEU • Composition, nature of MS’s representatives (not only at national level) and functioning of the Council (Art. 16.2, 6 and 8) • When and where meetings are held • 2 capacities: legislative or non-legislative • Council meeting, subject matters and formations • Presidency of the Council (Art. 16.9) • Foreign affairs • All other formations (18 months) – 3 successive presidencies: trio • Committee of permanent representatives (7) • Functions • Composition, (senior officials) configurations (II and I) and vote (consensus or majority) • Council Secretariat (preparatory work + smoothing conflicts) • Powers (Art. 16.1) • Legislative: qualified majority (Art. 16.3 and 4) or unanimity and simple majority (if so stated by the treaties) • EU’s budget • Art. 241 TFEU • Delegated power • International agreements • CFSP and AFSJ • European Council • Resorting to the CJEU • Role of the Council (representation of national interests but transferred into a EU framework + policy-making and coordinating functions)

22. Part II – EU institutions Ch. 4 – European Council • Art. 15 TEU • Evolution (SEA: formal recognition) • Composition and meetings (Art. 15.2 and 3) • Role of the General Affairs Council  • Powers and functions as top-level institution (Art. 15.1) • Establishment of the IGC amending the treaties • Economic affairs • Resolution of conflicts • External relations as well as crucial policies both foreign (terrorism, Ukraine) and internal (migration, UK) • Enlargements and accessions  • Consensus general rule with exceptions (Art. 15.4) • No legislative functions • Presidency of the European Council (Art. 15.5 and 6) • Rationale 

23. Part II – EU institutions Ch. 5 – Parliament • Art. 14 TEU • History and location • Composition, duration, seats and votes • 751 • Population (96/74/73/54/51/6) and over-representation of small countries (Art. 14.2, 3 and 4) • No uniform procedure but Article 223 TFEU • European citizenship Art. 22 TFEU • Political groups (8/European People’s Party and Socialists and Democrats), not nationality • Bureau, quaestors, conference of the presidents, 20 standing committees and secretariat  • Powers (Art. 14.1) • Generally majority of the votes cast (but 1/3 of the components) with exceptions (majority of component members) • Legislative (ordinary procedure ex Art. 294 TFEU and other procedures) • Over the Commission: censure with 2/3 of votes and 376 of members (power of deterrence as happened with the Santer Commission/never passed) + appointment/election of the Commission + committees on appointed commissioners + asking of questions and committees of inquiry • Debate and reports from the Commission, the European Council and the ECB • Ombudsman: Art. 228 TFEU • Power of inquiry and committee of petitions – Article 227 TFEU • Over the finances of the EU

24. Part II – EU institutions Ch. 6 – European Central Bank • Current times: monetary policy and price stability (no euro zone: Sweden, UK, Denmark, Poland, Czech Rep., Hungary, Croatia, Romania, Bulgaria) • Stage 1: SEA • Stage 2: Maastricht • Stage 3: 1999/2002 (euro) • EMU:  Art. 119 TFEU • ECB, Eurosystem and ESCB • Articles 282-284 TFEU • President of the ECB • Executive Board and Governing Council • Duration • Independence • Locus standi before the CJEU • Trojka

25. Part II – EU institutions Ch. 7 – CJEU • Art. 19 TEU • CJEU  (Art. 19.1 and 2 and Articles 251-257 TFEU): collective institution, not separate opinions • ECJ (Art. 251-253 TFEU) • Composition and appointment • Qualifications • Duration • Advocates General • Different formations • Interpretation, annulment, compensation, failure to act, enforcement + advisory functions • GC (Art. 254 TFEU): to relieve the burden of the ECJ • Composition and appointment (Art. 255 TFEU) • Qualifications • Duration • Advocates General? • Art. 256 TFEU • Procedure and system of (atypical) appeals • Specialized courts: Art. 257 TFEU (Civil service tribunal, not in force anymore) • Procedure: judgerapporteur, written stage and theneventuallyoral stage (public hearing) • Role of the CJEU (Art. 19.3) and judicial activism

26. Part II – EU institutions Ch. 8 – Court of auditors • Origin (Maastricht) • Art. 285-287 TFEU • Composition and appointment • Power of control • Annual report • Observations and special reports • Locus standi before the CJEU

27. Part II – EU institutions Ch. 9 – High representative • Art. 18 TEU • Institution? • Appointment • Position within the Commission • Functions • CFSP (in many but not all matters: see Articles 222 TFEU vs 42.7 TEU) • European Council • Foreign affairs council

28. Part II – EU institutions Ch. 10 – Advisory bodies • Not Art. 13 TEU • Art. 300 TFEU: economic and social committee + committee of the regions • ESC • Specific interests • Composition: employers, workers and other interest groups • Appointment • Consultation • CR • Composition • Appointment • Consultation

29. Part II – EU institutions Ch. 11 – European Investment Bank • Art. 308-309 TFEU • Origin • Composition • Board of Governors + Board of directors + Management committee + Audit committee

30. Part II – EU institutions Ch. 12 – Agencies • 36 + 6 more executive (more administrative management of the programme) • Examples: air safety, medicines, food safety, maritime safety, fundamental rights, research • Set of different functions • Information and coordination • Individual decisions • Quasi regulatory powers – not legislative functions • Not strong discretionary powers • Frontex • External border control • Mare nostrum (October 2013-November 2014: € 9 millions per month and no support from EU) – Triton (European + border control and no rescuing + € 2.9 millions per month) – back to the old rules (and financing) with Sophia from April 2015 but what next?

31. Part III – Competences • See Harm Schepel’s power point presentation

32. Part IV – The EU legal order: overview and legislative acts Ch. 1 – General remarks and Art. 288 TFEU • Five main issues • Secondary legislative acts • International agreements • Secondary non legislative acts • General principles of EU law • Hierarchy of norms • Art. 288 TFEU • 3 legislative acts + 2 non legislative (non binding) acts • Interaction amongst acts • Express indication of the required act or Art. 296.1 TFEU

33. Part IV – The EU legal order: overview and legislative acts Ch. 2 – Legislative acts • Art. 289.3 TFEU • Legislative acts: legal acts adopted following a legislative procedure • Crucial role attributed to the procedure • Ordinary (legislative) procedure + special (legislative) procedures • Formal (ratherthansubstantial) requirements to distinguish legislative acts from non-legislative acts

34. Part IV – The EU legal order: overview and legislative acts Ch. 3 – The ordinary legislative procedure • Art. 294 TFEU • Commission proposal • First reading (exchange of readings and positions between Parliament and Council) • Second reading (same) • Conciliation Committee • Third reading of the Committee’s proposal

35. Part IV – The EU legal order: overview and legislative acts Ch. 4 – Regulations • Art. 288 TFEU • Into force: on a date which they lay down or on the 20th day following their publication in the Official Journal • Binding in their entirety, with general application and directly applicable in all MS • General application: what does it mean? • Addressed to open-ended categories of persons, not to identified persons • Directly applicable: what does it mean? • From the date that they enter into force, regulations automatically form part of MS domestic legal orders: direct source of rights and duties • MS must comply with regulations, even change their laws • Direct effect (clear, precise and unconditional) • Example: Art. 3 of Regulation (EU) No 604/2013

36. Part IV – The EU legal order: overview and legislative acts Ch. 5 – Directives • Art. 288 TFEU • Binding (yes but…) upon Member States • Results vs form/methods • In force and deadline for implementation (after publication) • Three differences from regulations: not general application (never addressed to individuals) + not always addressed to all MS + not directly applicable (being not binding in their entirety) • Harmonization • Individuals – any direct effect? • Only vertical direct effect, not horizontal: individuals are not the primary addressees. Usual conditions: sufficiently clear and precise + transposed incorrectly or deadline expired (not transposed) • Alternatively: State liability and compensation for damages • Detailed directives • Example: Art. 32 of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data • In Italy: legge 31 dicembre 1996 n. 675, Tuteladellepersone e di altrisoggettirispetto al trattamentodeidatipersonali + decretolegislativo 30 giugno 2003, n. 196 Codice in materia di protezionedeidatipersonali

37. Part IV – The EU legal order: overview and legislative acts Ch. 6 – Decisions • Art. 288 TFEU • Legislative? • Binding in their entirety and directly applicable • Addressees: MS (all or some of them) or private parties or general/generic • Generally applicable? It depends • Direct effect? • Horizontal direct effect?Itdepends • Decision addressed at private parties • Decision addressed at MS • General/generic • Example: Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest • Example: so-called ‘Google’ Decision of 2017

38. Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 1 – Delegated acts and implementing acts • Two binding acts below legislative acts post Lisbon Treaty • Delegated acts (new): Art. 290 TFEU • Legislative in nature (not procedurally, which means formally not legislative) because of their general application • Content, scope and duration in the legislative act • Amending or supplementing non essential elements of legislative acts • Subject to a set of conditions • Implementing acts (new implementing power to the Commission, besides the Council): Art. 291 TFEU • Pursuant to legislative or delegated acts • Setting out uniform application for implementing EU legislative acts (executing them) without amending or supplementing them

39. Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 2 – International agreements • Only EU or mixed agreements • Legally binding effects within EU as well as within MS + rights and obligations for EU and MS • Legal status • Direct effect? • Interpretation of the agreement

40. Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 3 – Inter-institutional agreements • Not legislation stricto sensu but legally binding • Guiding principles + foundations for more concrete legislative action • Art. 295 TFEU

41. Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 4 – Soft law • No binding • No direct effect but object of interpretation • Recommendations and opinions + other several forms of soft law • Commitment about • the conduct of institutions • respecting certain values • programming legislation

42. Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 5 – General principles of EU law • General principles • From external or internal sources of law • Interpretation of the treaties + possible invalidation of legislative acts • Fundamental rights: from unwritten to written source of law • 50s and 60s: refusal by the CJEU to treat fundamental rights as part of the Community’s legal order but the problemwasthatconstitutional courts wouldreserve the power to invalidate or ignore EU law • Change: Fundamental rights may be protected as general principles of EU law: the CJEU willtake care of safeguardingthem as a matter of EU law (Stauder) + HRs derived from MS’ constitutional traditions (Internationale Handelsgesellschaft) • Challenges against the EU as well as against MS implementing EU law • Art. 6 TEU, Charter of Fundamental Rights, ECHR • Accession to the ECHR? Opinion 2/13 by the CJEU Impossible to authorise accession as the draft accession agreement did not safeguard the autonomy and specificity of the EU legal system Problem: the Strasbourg Court would carry out, evenonlysuperficially, a review of the attribution of competencesbetween MS and Union

43. Part V – The EU legal order (II): non legislative acts and the hierarchy of norms Ch. 6 – Hierarchy of norms • Is there a hierarchy of norms in the EU legal system? • Yes but not amongst legislative acts  • Treaties, protocols and Charter • General principles    • International agreements • Legislative acts • Inter-institutional agreements • Delegated and implementing acts • Soft law

44. Part VI – The External Action of the EU • See Robert Schuetze’s power point presentation

45. Part VII – The impact of EU law on national laws: direct effect (I) Ch. 1 – General overview • How EU law isapplied in practice, withineach MS • National authorities (includingjudges) serve as EU authorities for the domesticapplication and enforcement of EU law • Certainprinciples operate to governconflictsbetween EU and national law • Subjective dimension and objective dimension: direct effect and direct applicability • What does “direct effect” mean? Justiciability (before national or EU authorities and courts), conferring rights and private enforcement • Originality of EU law • No formal recognition in EU primary law • Which provisions may have direct effect? • Clear, precise and unconditional obligations (last word on the nature of a EU provision: EU courts) • Meaning of ‘unconditional’ and the interplay between direct effect and direct applicability • Vertical vs. horizontal direct effect

46. Part VII – The impact of EU law on national laws: direct effect (I) Ch. 2 – Van Genden Loos and the direct effect of European treaties’ provisions • Facts and reasoning of Van Genden Loos • Horizontaldirecteffect • Defrenne and Viking

47. Part VII – The impact of EU law on national laws: direct effect (I) Ch. 3 – The direct effect of secondary law • Regulations and decisions • Directives • When do directives have direct effect? Deadline passed or incorrect implementation + unconditional obligations • Why can directives have direct effect? Binding (more effectively enforced if individuals can rely on them + estoppel argument) • Vertical/horizontal distinction • Why not horizontal? Not addressed to individuals + difference with regulations and lack of direct applicability • How did the Court solve the issue of non horizontality? • Expansive notion of State (see Marshall case) • Indirect effect: consistent interpretation

48. Part VII – The impact of EU law on national laws: primacy (II) Ch. 4 – Scope and content • Costa • Primacy and direct effect • Priority of all EU law over all domestic law • Disapplication • Automatic effect and invocability • Guarantee of effectiveness and consistent application across all MS • Always disapplication? • Simmenthal and Granital • Counterlimits and the Italian case: Frontiniand Taricco • Fundamental rights and the Italian case: Ruling n. 269/2017

49. Part VIII – The Legalization of Europe: Issues, Dynamics and Cases • See Antoine Vauchez’s power point presentation

50. Part IX – A specific form of national remedy Ch. 1 – General overview • Effectiveness of EU law as a general legal principle • The role of national courts to give adequate effects to EU Law • Art. 19TEU • Art. 47 Nice Charter • The previous and settled case-law • The remedies before national courts • Principle of State liability for breach of EU Law • Procedural requirements and national judicial autonomy