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EUROPEAN UNION LAW NOTES CALZOLARI, Lecture notes of European Union law

IMS Unison University European Union law

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European Union Law

The origins and development of the European integration process

and of the EU legal order

The process of European integration started from the willing to avoid further conflicts

within the European continent after the II World War. This trend didn’t interest only

Europe, but also at an international level and that’s why international organisations were

created (ex. Council of Europe deals with the protection of fundamental rights and seats

in Strasburg). All the international organisations were traditional treaties to which states

agreed to but they didn’t confer to new institutions any innovative power. !

The first time the possibility to create something new in Europe was the Hague Congress

of 1948 in which the future of Europe was discussed. 3 diﬀerent projects for the future of

Europe:!

-Confederal —> Europe should be seen as a traditional international organisation

(Churchill and De Gaulle)!

-Federalist —> no more national states and the establishment of a single federal state!

-Functionalist —> integration between the European states shall be guided by

supranational institution being progressively leading to a higher level integration. This

approach succeeded. This approach started from the idea of seeking a higher

integration with a step by step procedure.!

The Schuman Declaration was presented by French foreign minister Robert Schuman on

9 May 1950. It proposed the creation of a European Coal and Steel Community, whose

members would pool coal and steel production.!

The Schumann Declaration pursues 2 main purposes:!

1. Avoid conflicts in Europe!

2. Laying the foundations for the creation of an ever closer union of the European states

and their citizens!

Consequence —> Creation of ESCS in 1951 Paris treaty (expiration date: 23 just 2002) !

—> ESCS = first step of the European integration process. The ESCS’s main objective is

to achieve the common production and trading of coal and steel among the Member

States. There were six founding states: France, Germany, Italy, Belgium, Netherlands and

Luxembourg. The institutional framework is similar to that of the EEC (European

Economic Community): high authority (now known as the European Community) which is

a supranational institution and it is composed by people who should act for the interest of

the European Community not for the Member States; Council (composed by a

representative of each state at a ministerial level) which is closer to the intergovernmental

approach; Parliamentary Assembly (known today as the European Parliament) which was

originally composed by members of the national Parliament and it was an indirect

representation of the citizens but as it wasn’t eﬀective because the duties of those

members were more interested on their national aspect; Court of Justice which had the

role to enforce a treaty. !

Spaak Commission was established in orde to study the next steps of the integration

process. !

Treaty of Rome (1957)

The European Atomic Energy Community (EURATOM) has been created by a a treaty

executed in Rome in 1957 and entered into force in 1958.!

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European Union Law

The origins and development of the European integration process

and of the EU legal order

The process of European integration started from the willing to avoid further conflicts within the European continent after the II World War. This trend didn’t interest only Europe, but also at an international level and that’s why international organisations were created (ex. Council of Europe deals with the protection of fundamental rights and seats in Strasburg). All the international organisations were traditional treaties to which states agreed to but they didn’t confer to new institutions any innovative power. The first time the possibility to create something new in Europe was the Hague Congress of 1948 in which the future of Europe was discussed. 3 different projects for the future of Europe:

- Confederal —> Europe should be seen as a traditional international organisation

(Churchill and De Gaulle)

- Federalist —> no more national states and the establishment of a single federal state

- Functionalist —> integration between the European states shall be guided by

supranational institution being progressively leading to a higher level integration. This approach succeeded. This approach started from the idea of seeking a higher integration with a step by step procedure. The Schuman Declaration was presented by French foreign minister Robert Schuman on 9 May 1950. It proposed the creation of a European Coal and Steel Community, whose members would pool coal and steel production. The Schumann Declaration pursues 2 main purposes:

Avoid conflicts in Europe
Laying the foundations for the creation of an ever closer union of the European states and their citizens Consequence —> Creation of ESCS in 1951 Paris treaty (expiration date: 23 just 2002) —> ESCS = first step of the European integration process. The ESCS’s main objective is to achieve the common production and trading of coal and steel among the Member States. There were six founding states: France, Germany, Italy, Belgium, Netherlands and Luxembourg. The institutional framework is similar to that of the EEC (European Economic Community): high authority (now known as the European Community) which is a supranational institution and it is composed by people who should act for the interest of the European Community not for the Member States; Council (composed by a representative of each state at a ministerial level) which is closer to the intergovernmental approach; Parliamentary Assembly (known today as the European Parliament) which was originally composed by members of the national Parliament and it was an indirect representation of the citizens but as it wasn’t effective because the duties of those members were more interested on their national aspect; Court of Justice which had the role to enforce a treaty. Spaak Commission was established in orde to study the next steps of the integration process. Treaty of Rome (1957) The European Atomic Energy Community (EURATOM) has been created by a a treaty executed in Rome in 1957 and entered into force in 1958.

Similarities with the ESCS:

(^) EURATOM is an initiative with a sectorial and well defined scope of application
(^) EURATOM has the same six founding states. Different with the ESCS:
(^) No expiration date which meant the intention of the founding states to create a long- lasting integration. So, in 1957 we have 3 different communities + some bodies to control these 3: ex. Parliament (that was not called like this), ECtJ, commission and council (the only one who had the power to adopt political measures). Institutions work for all the 3 communities (European economic community, the steel and coat community and the atomic energy community) but they had different roles in each of these 3. this is a consequence of the level of integration that the member states wanted to achieve. Where the competences of the community are wider the MSs didn’t want to provide the controlling institution with wide power they didn’t want to delegate too much sovereignty to the new international bodies of Eu The EEC was established in 1957 with the Treaty of Rome. Its main goal is to “lay the foundations of an ever-closer union among the peoples of Europe”. It has a broad and horizontal scope with an economical approach —> the EEC “shall have as its task, by establishing a common market and progressively approximating the economic policies of member states, to promote throughout the community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated and raisin of the standard of living and closer relations between the states belonging to it” (art 2 of EEC). This is done through 4 fundamental freedoms:
(^) Free movement of goods
(^) Free movement of services
(^) Free movement of capital
(^) Free movement of people Competences conferred by the member states to the EEC:
(^) The establishment of a common, internal and single competitive market through the economic fundamental freedoms and the competition policy. —> Ancillary policies like transports, agricultural policy and commercial policy. Example: A common transport policy was important to ensure the free movement of goods. Competition law was included in the treaty in order to avoid that the economic fundamental freedom was jeopardised by economic fundamental freedoms. Example. If u produce cars u must be able to transport it in Europe without restrictions. So if u can’t have a contract in which u state that you are gonna send your cars only in France and Germany and not in the rest of Europe ‘cause that would be against competition law. Competition law achieved the internal market. In 1967 the Merger Treaty was adopted to unify the institutions of ESC, EURATOM and EEC. Until 1967 only the Court of Justice and Parliamentary Assembly were the same for the three communities but after the treaty were unified. Failure of the project for a Common European Defence (CED) After the establishment of the ESCS and before the EEC and the EURATOM the possibility to create a Common European Defence was discussed. It was a French initiative as France was worried about the potential rearmament of Germany. Clearly, the

concerning the importance of each state in the global context). Each state has the veto power.

(^) significant power to adopt legally binding acts. Intergovernmental method:
(^) prominent role fo the states and their representative,
(^) Prevailing quorum: unanimity,
(^) Limited possibility to adopt binding acts,
(^) Weak (and sometimes absent) judicial scrutiny. —> thanks to this treaty the EU citizenship is created. Another innovation brought by the Maastricht Treaty: Economic and Monetary Union. Further reinforcement of the role of the EU parliament with the co-decision procedure. The fundamental principles of subsidiarity and proximity are codified in the text of the Treaty and new competences are conferred to the EU like: consumer protection, health care…. The Maastricht Treaty formally acknowledged that the EU respects individual fundamental rights as well as the national identity of its Member States. Amsterdam Treaty (1997) After the fall of the Berlin Wall (1989) the division of the world in two blocks there was a need and several states became interested to join the EU. In the light of the envisaged enlargement, there is a clear need to revise and simplify the rules governing the functioning of the EU. Partial amendment of the pillar structure:
(^) replacement of the third pillar (of the Maastricht treaty): Justice and Home Affairs has been replaced by the Police and Judicial Cooperation which relates to cooperation in criminal matters.
(^) Communitarization of visas, immigration, asylum and other policies related to free movement of persons.
(^) Introduction of enhanced cooperation which was important to foster integration between member states. Enhanced cooperation (Article 20 of the Treaty on European Union and Title III of the Treaty on the Functioning of the EU) is a procedure where a minimum of 9 EU Member States are allowed to set up advanced integration or cooperation in a particular field within the EU, when it has become clear that the EU as a whole cannot achieve the goals of such cooperation within a reasonable period. This allows them to move at different speeds and towards different goals than those Member States who decide to stay outside the fields of enhanced cooperation. The procedure is designed to overcome stalemate where a particular proposal is blocked by one or more Member States who do not want to take part. It does not, however, allow for an extension of powers outside those permitted by the EU Treaties. Authorisation to proceed with the enhanced cooperation is granted by the Council as a last resort, on a proposal from the European Commission and after obtaining the consent of the European Parliament. Aims of the enhanced cooperation:
Allow restricted number of Member States not to be stopped by other states which don’t agree to do sth.
(^) Make other states in the future agree on something In order to respect the principles of the treaty there was included a procedure to ensure the respect of the principles by member states —> the Council, on proposal of 1/3 of the

member states or of the Commission, and with the absence of the parliament can determine that there is a clear risk of a serious breach by a member state of the values referred in the treaty. The outcome of the procedure is the suspension of some rights of the member states but not the duties. Treaty of Nice (2001) There were high expectations on this treaty as the results of the treaty of Amsterdam were lower than how it was expected. here was the declaration of the Charter Of The Fundamental Rights of the EU. Even if the protection of fundamental rights was ensured also before. The charter is just something in addition to an already existing mechanism of protection of fundamental rights > before it was done thanks to the general principle of EU law, that is primary source of law. In Nice this was just written down since if you have a list to consult is easier to protect fundamental rights. BUT the charter was NOT binding even if it was adopted. A codification of the fundamental rights protected as general principles of EU law —> this codification is known as Charter of Nice (CFREU). Now fundamental rights are part of the EU law. The Charter of Nice has no binding value. The (failed) project of the Treaty establishing a European Constitution (2004) At the meeting held in Laked in 2001, the European Council convened a convention in order to discuss the future of Europe. A final text is approved in 2004 called European Constitution but it is an international treaty. This was an attempt to reinforce the political dimension of the integration process. Content:

(^) extensive use of the term of constitution/constitutional
(^) Legitimisation of the EU based on both “the will of citizens and States of Europe”
(^) Use of term law as EU secondary legislation
(^) EU anthem, hymn, flag and public holiday
(^) Inclusive of the CFREU in the text of treaty
(^) Codification of the principle of primacy of EU law over national law Anticipations of the treaty of Lisbon:
(^) abolition of the pillar structure
(^) Direct democracy
(^) Role of the national parliament in the EU legislative procedure
(^) Simplified procedures to amend treaties The Treaty of Lisbon (2009) The intergovernmental conference was convened in 2007 after the failure of the constitution project. This treaty is composed by 2 treaties which have the same legal value:

Treaty of the European Union ( TEU )
Treaty of the Functioning of the European Union ( TFEU ) The European Community ceased to exist and it is entirely replace by the EU which acquired legal personality. CFREU acquired legal force but it became an annex to the treaties. In the TL there are:

Art. 50 included in TEU on the possibility of the States to leave the EU. The possibility to leave an IO is a general principle of Int law but after the enactment of art. 50 was

enough to hold that article 12 EEC was breached. ECJ focuses on the the effect of the measure, while the modalities of increase are irrelevant.

The institutional framework

art. 13 of the TEU From art. 14 to 19 we find a description of each institution. Main principles guiding the EU institutions:

art. 13 of TEU —> all the institutions shall always promote its value, advance their objectives, and serve their interests and those of the citizens and Member states pragmatical principles, such as good administration, impartiality, legal certainty… Principle of conferral —> each institution shall act within its given competencies. The institutions shall also practice loyal cooperation. Legal basis = mandatory indication by the single institutions of where the assigned power and competence are coming from (ex: having regard to art. X of ....)
article 15 of TEU —> The European Council it is not involved with the legislative procedure; it is posed at a higher level in the EU order as the highest political forum where the heads of governments seat with the task of providing a political input, the task of promoting the development of the European Union. Only member states are represented. It is different from the ‘Council’ which is one of the legislators of the EU. The Treaty of Lisbon provides the rules for the composition of the European Council: heads of state + president of the European Council + ‘guest participants’ = president of the commission and the High Representative for the Common Foreign and Security Policy (both do not have the power to vote). The president is elected and has the task of coordinating the work of the Council. The European Council has to meet at least once every six months (but actually it happens much more frequently) the appointment of the President is made through a qualified majority (and not the usual ‘consensus’). Tasks and powers —> the main task of the EU Council is to provide the Union with the necessary (political) impetus for its development. It does not take part directly in the legislative process. The Council is before the initiative of the Commission: the EU council, which can adopt only conclusions (no secondary legislation such as directives...) that include a sort of recommendation for the other institutions. In a few words, it meets and decides that a certain topic has to be addressed by the European

Union (ex: energy prices in times of war). Then it is for the Commission to implement the Council's conclusions and goals, hence, the Council cannot do anything in practice. During a meeting, conclusions are taken by consensus. Amend the treaties → the treaties, as a matter of principle, can only be modified by the Member states. deciding the specialized configurations of the Council and the composition of the Parliament

article 16 of TEU —> The Council. If the European Council is the newest institution, the Council is the oldest. It has always enjoyed legislative power since the Treaty of Rome The Council shares its legislative function with the European Parliament (with some exceptions). the peculiarity of the Foreign and Security Policy —> legislative: it is the main decisional body of the Union: it adopts EU secondary legislation through different procedures; budgetary function: it has the power to adopt the annual budget of the EU (together with the Parliament). [annual budget and multiannual framework]; coordination function: it coordinates the policies of Member States, especially the economic policies under article 125 TFEU; external action: it adopts decision in order to open the negotiation of international agreement, it appoints the negotiators and execute the international agreement; executive action: can exceptionally approve State aids, it oversees the budget and financial policies of Member States, it can adopt sanctions over third countries; CFSP: Council is the main player in this field. The council’s composition. The Council is a permanent institution. The council is composed of one member for each Member state at least at the ministerial level, who may commit to the government. While the institution as such is a council, the composition varies revert single meeting: it depends on the topic discussed. There’s a general configuration and ten other specialised configurations, essentially similar to the division of ministries at the national level. Member states are invited to send a representative (ex: Minster of Finance to the meeting on Budget...) difference btw ECOFIN vs EURO group, the latter is not a specialized configuration The Council organization. Presidency: role assigned to the Member states following a rotation period (18 months). The system has decided to put together 3 semesters to better coordinate the work of the Council. COREPER: Coreper I is composed of each country's deputy permanent representatives, who take care of the day-by-day activity COREPER 1 level = technical questions COREPER 2 level = political and economic questions Decision making procedure of the Counci:l majority principle need to, in one hand, ensure that a Member state as such is represented, but also taking to account the different number of EU citizens voting for each Member state (ex: Cyprus citizens vs France citizens). the solution came to be the qualified majority voting: There is a double threshold to adopt a piece of legislation:

at least 55% of the Member states shall have a positive vote
at least 65% has to vote (resident citizens, nationality does not count) further elements to balance the mechanism: Blocking minority: at least 4 MS shall express a negative vote. Reverse qualified majority: the act is adopted unless the Council decides by Qualified majority to reject the e.g with regard to economic governance. loannina compromise: an informal agreement between the MS. It has been adopted to take into account the majority voting. There’s the possibility for a certain MS to ask the council to postpone the voting of that specific piece of legislation = asking to have more time to discuss.

article 12 of TEU —> European Parliament. In the 70s, the election of the EU Parliament by direct universal vote was decided (1976). Ever since then, the role of the parliament

the Parliament has the task to appoint the president of the Commission has words in putting an end to the mandate of the Commission = a power that is there but has never been used. It can ask the whole Commission to resign from its office (ex: 1999 the Commission was suspected of corruption and resigned on its own).

article 227 of TFEU about petition —> Any citizen of the union has the right to submit petitions to the Parliament EU Parliament and the European Ombudsman body of the EU. This subject has essentially no power: it can start an investigation and submit a report. However, this is not a very effective institution...
article 17 of TFEU —> The EU Commission. The EU Commission is the engine of the integration process. It is there since 1967 but we have seen it even since 1952 and has kept basically the same characteristic: it shall promote the general interest of the union. The Commission does not act in the interests of the MS, nor does it present them it has 27 members (Commissioners). They cannot follow national instructions and they cannot take decisions that are in favor of their member states. It takes care of the day-by- day application of EU law and It is a permanent institution. Essentially, it has the power to bring member states before the ECJ if they violate EU law = infringement procedure. The position of the Commission however does not have only executive powers. One of the peculiarities of the Commission is that legislative acts cannot be adopted unless the Commission drafts the proposal: the first proposal can be drafted solely by the Commission. In a way, it is involved in the legislative process but also has specific and strong executive powers. Other ways in which it is involved in the legislative process, is the adoption of delegating and implementing acts (non-legislative acts). They can be adopted directly by the Commission, without the intervention of the Parliament or the Council. The Commission is composed of one commission for each MS, and thus today 27 members. how does the appointment procedure work? There are two phases the President it's appointed first; the remaining commissioners are appointed; all the other institutions are involved, as well as all the member states.

The proposals of the president are made by the European Council taking into account the outcome of the EU Parliament = relation of trust. The president shall be elected by the Parliament applying the majority rule of the member of the Parliament.
the Council together with the subject elected as the future president of the Commission shall make a list of the other commissioners. The single MS can propose a list of names. the commission is organized through DGs that resemble national ministries (ex: DG Internal Market, DG Internal Affair, etc). However, after the list has been drawn by the Council and President, the single candidate shall go to a public hearing before the EU Parliament, and it may happen that after that, some candidates are replaced. The whole list passes then to the vote of the EU Council. Who can be appointed as a commissioner? With all the limitations, this is a choice that rests within the MS (it is likely different in regard to the President). High Representative for foreign affairs and security policy body created by the treaty of Lisbon task: taking care of the Common Foreign and Security Policy it is broadly speaking has the same power as the Commission in that specific sphere. It is appointed in the same way as the formation of the Commission. Appointment procedure: is appointed by the European Council with the agreement of the President o the C and the approval of the EU Parliament. Principle of Conferral (art 5 TEU)

The principle of conferral is a consequence of the fact that the EU is a IO and has no original conpetencies but has those competencies that the MS decide to confer to it. Hence, the Eu shall act within the limits of the competencies. In addition to the fact that the EU can only regulate those fields which are mentioned by the treaty as competence of the EU (ex: environmental market), there are other constraints: the EU can adopt EU secondatt legislation in a field of these competencies only to achieve one of the goals set by the treaties under the fundamental principles (subsidiary and proportionality. Everything not expressly conferred to the EU is still competence of the MS: Only states can regulate certain matters. the principle of conferral is a clear example of the voluntaristic nature of the integration process: the eu does not take the competences from the MS, but the latter agree that EU can do something that otherwise they would have done by themselves. the EU is still therefore characterized by the free will of States. the transfer of sovereignty is based on the so-called ‘volutnaristic principle’ This system is quite rigid → there are nonetheless a few exceptions to the Principle of Conferral, solutions that try to make the system work reducing the rigidity → Areas in which the EU alone is able to legislate and adopt binding acts. Member States are able to do so themselves only if given the powers by the EU to implement these acts. The EU has exclusive competence in the following areas: customs union (A customs union is created when a group of countries join together to apply the same rates or import duties on goods from the rest of the world)

(^) Market
(^) monetary policy for euro-area countries
(^) conservation of marine biological resources under the common fisheries policy common commercial policy. What does it mean that a competence has been conferred to the eu on an exclusive basis? It means that, in fields mentioned, only and solely he Union may intervene, ie only and solely he EU can adopt legal measures in the relevant fields, hence, the MS national state cannot adopt legislations on those specific fields. Member states may intervene in the fields falling within the scope of application of art 3 TEU only and solely if they are authorised by the Union in advance Shared competences An non-exhaustive list is provided by art. 4 = thee competences are described very genereally. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and

Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; 13/10/

III. Principle of subsidiarity (applies only in matters which are not exclusively attributed to the Union, article 5(3) TFEU) By limiting the expansion of shared competences according to the principle of pre- emption, the principle of subsidiarity binds the Union institutions involved in the legislative procedure and in particular the Commission. The beneficiaries of the principle of subsidiarity are the member states who see their sphere of sovereignty protected against the adoption of acts without “EU added value”. Also non-compliance with the principle of subsidiarity may be invoked before the Court of Justice to seek the annulment or declaration of invalidity. Protocol 2 to the Lisbon Treaty Is based on the application of the principles of subsidiarity and proportionality. Allows for an ex ant political control on the respect of the principle. Applies only in respect of legislative act so acts adopted by legislative procedures. The Commission is obliged to undertake extensive and consultations. The burden to “sate reasons” imposed on the Commission by article 296 TFEU includes the obligation to justify every legislature proposal also with regard to compliance with the principle of subsidiarity. Each legislative proposal must be sent by the commission to the national parliaments which have 8 weeks to use a reasons opinion (2 votes for each parliament). The fact that the controls s exercised by national parliaments is consistent with the purpose of the principle of subsidiarity which protects the member states.

(^) Yellow card: 1/3 negative votes (1/4 votes if Area of Freedom, Security and Justice), Commission must reconsider the proposal, Commission may maintain, amend or withdraw the proposal
(^) Orange card: majority negative votes, Commission must reconsider, Commission can keep the proposal but if members of parliament or 55% of the council are against the proposal, the proposal is abandoned.

Sources of EU Law

Primary law, composed by TEU, TFEU, CFREU and General principles
International law, composed by general international law, international agreements executed by the EU
Secondary law, composed by binding sources (regulations, directive and decisions) and not binding sources (recommendations and opinion)
Other sources, composed by soft law (communications and guidelines) Primary law Treaties Treaties provide the basic legal regime to regulate the relations between the different subject of the EU lega order. Treaties are the highest legal source of the EU legal order. Treaties can confer rights (or impose obligations) not only to the member states but also upon individuals (ex. Van Gend en Loos case). Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions. 37 protocols, 2 annexes and 65 declarations are attached to treaties, together with 2 tables equivalence and the CFREU.

TEU and TFEU have the very small Lela value. However the definition of “constitutional charter” has a meaning only from the political point of view since treaties don’t have the structure of real constitutional charters. The practical consequence is a systematic and teleological interpretation which often prevails over literal interpretation of treaties. TEU’s structure

Preamble
Common provisions
Provisions on democratic principles
Provisions on the institutions
General provisions on the Union’s external action and specific provisions on the common foreign and security policy (CFSP is the only policy regulated in the TEU, al the others are disciplined by the third part of TFEU, because of the special nature of CFSP which is not subject to the community method). Concerning common foreign and security policy the roles of the Parliament and the Court of Justice are basically absent.
Final provisions (legal personality, revision of the treaty, accession and withdrawal). Article 50 8its scope is to provide the procedural framework in which the withdrawal may occur)which allows the withdrawal of member states from the European Union. This article could sound incoherent with the idea of a close relationship between the member states. The Vienna Convention provides all the rules of international agreement and also article which states that the if the article has no expiration date, all the members che withdraw from the treaty. TFEU’s structure
Preamble
Part I = principles
Part II = non discrimination and citizenship of the union
Part III = union policies and internal actions
Part IV = association of the overseas countries and territories
Part V = union external actions
Part VI = institutional and financial provisions
Part VII = General and final provisions Protocols Protocols complement the discipline of the treaties as the enjoy the same primary legal value (art. 51 TEU). They allow to avoid making the text of the treaties too complex, regulating specific matters. They provide for transitions and temporary discipline and they introduce differential discipline for certain member states. Declarations Declarations can be made by one or more member states as well s by the intergovernmental conference during the adoption of the treaty. Vienna Convention established that declaration have no binding force but they show the context in which treat was formed. Many declaration actually somehow restate concept that are already included in the treaty. Revision There are different procedures for the revision of treaties:

(^) Parameters for legitimacy of secondary legislation Categories:
(^) general principles typical of EU Law. Example:
- (^) non discrimination,
- (^) subsidiarity,
- (^) mutual recognition,
- (^) effet utile —> any disposition of EU Law shall be interpreted and applied in the way that better allows the achievement of the goal set forth in it. If a provision of Union Law is susceptible to have several interpretations of which only one is appropriate to safeguard the rule’s useful effect, priority shall be given to that interpretation. The full effectiveness of EU rules would be jeopardised if individuals had no possibility of obtaining redress if their rights were affected by an infringement of EU Law.
- (^) Loyal cooperation —> obligation fro the member states to take any measures of. General or particulate nature appropriate to ensure the execution of obligations arising from the treaties or resulting from the acts of the institutions. Obligation for the member states to facilitate the union with regard to the fulfilment of its tasks by refraining from any measure that could jeopardise the achievement of EU objectives. Four dimensions: vertical (btw member states and EU), horizontal (btw institutions and btw member states) and both two-way.
- (^) Legal certainty —> safeguard of individuals legitimate expectation for example with regard to: sudden change in legal disciple; revocation/ annulment of individual acts.
(^) General principles common to national legal system. Example: legality, democracy, legitimate expectations, proportionality. The silence of the Treaty of Rome No disposition of the Treaty of Rome dealt with the protection of fundamental rights. At the beginning the main purposes of the EEC were to set the foundation and develop a kind of European integration which has primarily an economic nature. The fundamental freedoms (not rights) affirmed in the EEC Treaty were instrumental to this purpose. The protection of fundamental rights seemed alien to the Community project, as initially outlined and also because they were protected at a national level by national institutions. However, even economic provisions can end up affecting fundamental rights (ex: property rights). In the early 1900s, the Court of Justice affirmed the irrelevance at the community level of fundamental right and their protection. “The High Authority is only required to apply community law. It is not competent to apply the national law of Member States. The court is only required to ensure that in the interpretation and application of the treaty, and of the rules laid down for the implementation, the law is observed. Consequently, the High Authority id not empowered to examine a ground of complaint which maintains that, when it adopted its decision, it infringed principles of German constitutional law” (Stork, causa 1/58, sentenza 4 febbraio 1959). Shortly after, the ECJ affirmed principles such as those of direct effect and of the primacy of union law over national law. ECJ wants EU Law to enjoy primacy over national level but at the same time the Court affirmed that the EU institutions are not bound by the fundamental rights. Primacy of EU Law + the irrelevance of the respect of fundamental rights led the constitutional courts of some member states (especially Italy and Germany) to claim their

possibility to scrutinise the compatibility of community acts with national constitutions in cases where community insitutiitions had violated the fundamental principles of the national constitutional orders or the inalienable right of the individuals (counter-limit doctrine). The possibility for national courts to have the last word would have substantially undermined the development of the EU legal systems and the role of the Court of Justice as the interpreter of EU Law applied divergently at the national level. The Court of Justice found itself in a difficult position due to its own case law. Change of perspective —> to cope with the position taken by the constitutional courts, the Court of Justice changed its position. In the late 19060s the Court of Justice recognised that fundamental were part of the general legal principles of EU Law and that, as a consequence, the Court was going to ensure that the EU institutions complied with them. The balance between EU Law and fundamental right is no longer a matter of relationship between national norms and norms of EU Law, but between EU norms. In this way there is the full preservation of the principle of primacy of EU Law. Consequences —> Fundamental rights became interpretative criteria for the interpretation of EU Law rules. Most importantly, fundamental rights became yardstick for the assessment of the legitimacy of the activity of the EU institutions and of the vanity if EU secondary Law. Since they are part of the EU primary Law, fundamental rights shall also be complied with by member states when they are implementing Union Law. Fundamental rights can also be used by member states to attempt to justify restrictive measures with respect to other EU Law norms (example: Omega case). The sources of inspiration used by the Court of Justice:

(^) Constitutional traditions common to member states
(^) International treaties relating to the protection of human rights to which member Staes have cooperated or acceded
(^) European Convention on Human Rights (ECHR)
(^) Other international agreement Gradual codification of the Court’s approach 1975 Joint Declaration by the European Parliament, the Council and the Commission on Respect for Fundamental Rights (document without binding force). The declaration was followed by the preamble to the Single Act. After the adoption of the Maastricht Treaty:
(^) faithfully codified the Court’s case law on the subject
(^) Expressly qualified fundamental rights as “general principles of Community law” Article 6 of TEU: the Union accedes to the ECHR; the charter has the same legal value as the treaties; the Union continues to have to respect fundamental rights as guaranteed by the ECHR and constitutional traditions common to member states. Article 7 of TEU gives the council the power to find clear risks of a serious breach by a member states of the values set forth in the article 2 of TEU, among which are respect from human right. CFREU: overview The use of an open and unwritten list of rights has been one of the greatest successes of the Court of Justice. However, there was a growing need for a codification in order to have a written and clear list of fundamental rights. (Rivedi)

As already mentioned, EU accession to the ECHR is explicitly foreseen in Art. 6 TEU “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”. However, the accession of the EU to the ECHR was rejected a first time by the Court already years ago in Opinion 2/94. There was a long course of negotiations leading to a draft accession treaty. In Opinion 2/13 of December 2014, the ECJ again rejected the accession process and ruled that the accession agreement that had been negotiated for the Union's accession to the ECHR was incompatible with EU law because of the risks posed to the autonomy of EU law and the role of the Court of Justice itself. Although Article 52(3) CFREU requires that the rights covered by the CFREU, corresponding to rights covered also by the ECHR, shall be interpreted in such a way as to have the same meaning and scope as those conferred on them by the ECHR, even after the entry into force of the Lisbon Treaty, the ECHR does not constitute a legal act formally integrated into the legal order of the Union (Court of Justice Feb. 26, 2013, Case C-617/10 Åkerberg Fransson, EU:C:2013:105). Omega Case (Rivedi) 14th October 2004 Parties: Omega (German company); Bonn Police Authority, Pulsar (British Company which provided equipment and services to Omega). Omega wanted to operate in Bonn but citizens were against that. Article 56 of TFEU which provides restrictions on freedom to provide services within the Union and article 52 of TFEU which provides exceptions to article 56 on grounds of public policy, public security and public health.

Compatibility with the limitations to provide services
(^) Question whether this reason to limit to provide services was common to all member states Reasoning of the court—> restrictions apply equally, but restrictions require strict interpretation and control by the EU Court. —> fundamental rights are part of primary legislation in EU. Human dignity is a fundamental right which must be protected by EU and member states. Level of protection: principle of proportionality must be protected. The court stated that the measure of the bonn authority was right and (rivedi). Omega Case Case C-36/02 Omega [2004] ECR I- Facts:The Omega case concerned the commercialization of a lasergun ,which allowed“playing at killing” games. Omega was a German company operating a laser installation known as a “laserdrome”, inspired by the movie Star Wars. In other EU countries these games are acceptable but in Germany where human dignity is a constitutional principle. The police authority of the city of Bonn (Germany) issued an order prohibiting the operation of games involving firing at human targets. The argument was that this game constituted an affront to human dignity as guaranteed in Article 1 (1) of the German Constitution As the equipment was lawfully made in the UK the company sought to argue that the order breached its rights under the EU principle of freedom to provide services. The German Supreme Administrative Court found that the game was an affront to human

dignity as protected under the German Constitution. The European Court of Justice decided that the German authorities were justified in restricting freedom to provide services on the grounds of fundamental rights. The Question Referred to The ECJ: “Is it compatible with the provisions on freedom to provide services and the free movement of goods contained in the Treaty establishing the European Community for a particular commercial activity – in this case the operation of a so called “laserdrome” involving simulated killing action – to be prohibited under national law because it offends the values enshrined in the constitution?” Issues: German’s sensitivity has increased in recent years with respect to the ECJ’s grasp on fundamental rights in community law situations. Zoning up to the community level, applied by the ECJ was the centre concern. These concerns ran high ahead of the omega decision. Two reasons:

The ECJ was obviously well aware of the situation and had earlier recognized human dignity as a general principle of community law and
The manner in which the ECJ chose to resolve the potential conflict had been previously tested in the schmidberger decision. Which was a case illustrating the interaction between EU law and human rights. The main emphasis in both this case and omega was the interpretation of internal market instead of human rights. Ruling of the German Court: The German Supreme Administrative Court found that the game degraded human dignity as protected under the German Constitution and referred to the European Court of Justice under Article 234 (now Art 267) on the lawfulness of the prohibition under Community Law.

ECJ accepted the government's reasons, allowing the measures seeking to ensure respect for human dignity to be justified. Ruling of the ECJ: 1. Whilst measures which restrict the freedom to provide services may be justified on public policy grounds only if: They are necessary for the protection of the interests which they are intended to guarantee; Only in so far as those objectives cannot be attained by less restrictive measures;

The game simulated acts of violence against people resembled to the level of protected of human dignity which the national constitution sought to guarantee within Germany.
The game’s objective was to fire at human targets which meant that the contested order did not go beyond what was necessary in order to attain the objective pursued. 4. Community law does not prevent an economic activity simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity.
Member states are free to determine the scope of public policy on their territory which may be different for each member state. Putting the case into context: The Omega ruling followed that of the Schmidberger case. In the Schmidberger case the Austrian government granted permission for a motorway to be closed for a period of time to allow a demonstration against pollution to take place. A German trader argued that the road closure restricted his right regarding the free movement of goods, outlined in Art 34 of the TFEU. Austria justified restricting the free movement of goods by stating that it needed to protect the fundamental rights of freedom of expression and assembly, Art 10 & 11 of the ECHR. The European Court of Justice found that Austria were justified in restricting the free movement of goods for this purpose, and this reasoning is reflected in the Omega case. Political Considerations: Important to consider the wider social and political reasoning and implications.