The ABC of European Union law.
Date: 2013-06-07
Institutions: Publications Office of the European Union
Subjects: EU law, EU law - national law, EU legal system, Treaty of Lisbon, public awareness campaign, revision of the Treaty (EU)

The ABC  
of European Union law

by Professor Klaus-Dieter Borchardt

The content of this publication does not necessarily reflect the official position of 
the European Union. The information and opinions contained herein are the sole 
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Note to the reader 

The ABC of European Union law takes account of the modifications made to 
the European Treaties by the Treaty of Lisbon. Unless there is a direct citation, 
or  the  historical  context  demands,  the  articles  cited  refer  exclusively  to  the 
consolidated versions of the European Treaties (Official Journal of the European 
Union C 83 of 30 March 2010). The information given in this edition is correct 
as at March 2010.

Contents

007  FOREWORD

009  FROM PARIS TO LISBON, VIA ROME, MAASTRICHT, 

AMSTERDAM AND NICE

019  FUNDAMENTAL VALUES OF THE EUROPEAN UNION
021  The EU as guarantor of peace
021  Unity and equality as the recurring theme
022  The fundamental freedoms
022  The principle of solidarity
024  Respect of national identity
024  The need for security
024  The fundamental rights

029  THE ‘CONSTITUTION’ OF THE EUROPEAN UNION
029  The legal nature of the EU
033  The tasks of the EU
038  The powers of the EU
042  The institutions of the EU
045 

Institutions: European Parliament — European Council — Council — 
European Commission — Court of Justice of the European Union — 
European Central Bank — Court of Auditors

075  Advisory bodies: European Economic and Social Committee — 

Committee of the regions
European Investment Bank

078 

079  THE LEGAL ORDER OF THE EU
079  The EU as a creation of law and a Community based on law
080  The legal sources of Union law
081 

The EU founding Treaties as the primary source of Union law — The EU 
legal instruments as the secondary source of Union law — International 
agreements of the EU — general principles of law — Legal custom — 
Agreements between the Member States

087  The EU’s means of action
088  regulations — Directives — Decisions — recommendations and 

opinions — resolutions, declarations and action programmes

098  The legislative process in the EU
099  Ordinary legislative procedure — Approval procedure — Simplified 

procedure

103  The EU system of legal protection
103 

Treaty infringement proceedings — Actions for annulment — Complaints 
for failure to act — Actions for damages — Actions by Community staff 
— Disputes over Union patents — Appeals procedure — Provisional legal 
protection — Preliminary rulings
Liability of the Member States for infringements of Union law
110 
111  Member States’ liability for legal acts or failure to act — Liability for 

infringement of Union law by the Courts

113  THE POSITION OF UNION LAW IN RELATION TO THE LEGAL 

Interaction between Union law and national law

ORDER AS A WHOLE
113  Autonomy of the EU legal order
114 
117  Conflict between Union law and national law
117  Direct applicability of Union law to national law — Primacy of Union law 
over national law — Interpretation of national law in line with Union law

125  CONCLUSIONS

127  ANNEx

T h e A B C  O F e U R O Pe A N U N I O N L AW

Foreword

The  legal  order  created  by  the  European  Union  (EU)  has  already  become 
an established component of our political life and society. Each year, on the 
basis of the Union Treaties, thousands of decisions are taken that crucially 
affect the EU Member States and the lives of their citizens. Individuals have 
long since ceased to be merely citizens of their country, town or district; they 
are also Union citizens. For this reason alone, it is of crucial importance that 
they should be informed about the legal order that affects their daily lives. 
Yet the complexities of the Union’s structure and its legal order are not easy 
to grasp. This is partly due to the wording of the Treaties themselves, which 
is often somewhat obscure, with implications which are not easy to appreci-
ate. An additional factor is the unfamiliarity of many concepts with which 
the Treaties seek to master the situation. The following pages are an attempt 
to clarify the structure of the Union and the supporting pillars of the Euro-
pean legal order, and thus help to lessen any lack of understanding among 
the citizens of the EU.

0 07

7 May 1948, The Hague. 
Winston Churchill is warmly welcomed at the 
Congress of Europe. The former British Prime 
Minister, and leader of the opposition at the time, 
chaired the inaugural session of the Congress. On 
19 September 1946, he had called for European 
unity in his Zurich address.

T h e A B C  O F e U R O Pe A N U N I O N L AW

From Paris to Lisbon, via 
rome, Maastricht, Amsterdam 
and Nice

Until shortly after the end of the Second World War our concept of the state 
and our political life had developed almost entirely on the basis of national 
constitutions and laws. It was on this basis that the rules of conduct binding 
not only on citizens and parties in our democratic states but also on the state 
and its organs were created. It took the complete collapse of Europe and its 
political and economic decline to create the conditions for a new beginning 
and give a fresh impetus to the idea of a new European order.

In  overall  terms,  moves  towards  unification  in  Europe  since  the  Second 
World  War  have  created  a  confusing  mixture  of  numerous  and  complex 
organisations  that  are  difficult  to  keep  track  of.  For  example,  the  OECD 
(Organisation for Economic Cooperation and Development), WEU (West-
ern  European  Union),  NATO  (North  Atlantic  Treaty  Organisation),  the 
Council of Europe and the European Union coexist without any real links 
between them. The number of member countries in these various organisa-
tions ranges from 10 (WEU) to 47 (Council of Europe).

This variety of organisations only acquires a logical structure if we look at 
their specific aims. They can be divided into three main groups.

First group: the e uro-atlaNtic orgaNisatioNs 

The Euro-Atlantic organisations came into being as a result of the alliance 
between the United States of America and Europe after the Second World 
War. It was no coincidence that the first European organisation of the post-
war period, the OEEC (Organisation for European Economic Cooperation), 
founded in 1948, was created at the initiative of the United States. The US 
Secretary of State at the time, George Marshall, called on the countries of 
Europe in 1947 to join forces in rebuilding their economies and promised 

0 0 9

T h e  A B C  O F e U R O Pe A N U N I O N L AW

American help. This came in the form of the Marshall Plan, which provided 
the foundation for the rapid reconstruction of western Europe. At first, the 
main aim of the OEEC was to liberalise trade between countries. In 1960, 
when the USA and Canada became members, a further objective was added, 
namely to promote economic progress in the Third World through develop-
ment aid. The OEEC then became the OECD.

In 1949, NATO was founded as a military alliance with the United States 
and Canada. In 1954, the Western European Union (WEU) was created to 
strengthen security policy cooperation between the countries of Europe. It 
brought together the countries that had concluded the Brussels Treaty (Bel-
gium, France, Luxembourg, the Netherlands and the United Kingdom) with 
the addition of the Federal Republic of Germany and Italy. Greece, Spain 
and Portugal have also become members. The WEU marked the beginnings 
of a security and defence policy in Europe in 1954. However, its role has not 
developed further, since the majority of its powers have been transferred to 
other international institutions, notably NATO, the Council of Europe and 
the EU. The WEU has retained the responsibility for collective defence, a 
role which has yet to be transferred to the EU.

secoNd group: couNcil oF e urope aNd osce

The feature common to the second group of European organisations is that 
they are structured to enable as many countries as possible to participate. At 
the same time, there was an awareness that these organisations would not go 
beyond customary international cooperation.

These organisations include the Council of Europe, which was founded as a 
political institution on 5 May 1949. Its statute does not make any reference 
to moves towards a federation or union, nor does it provide for the transfer 
or merging of sovereign rights. Decisions on all important questions require 
unanimity, which means that every country has a power of veto; the same 
set-up  is  to  be  found  in  the  United  Nations  (UN)  Security  Council.  The 
Council of Europe is therefore designed only with international cooperation 
in  mind.  Numerous  conventions  have  been  concluded  by  the  Council  in 
the fields of economics, culture, social policy and law. The most important 
— and best-known — of these is the European Convention for the Protec-
tion of Human Rights and Fundamental Freedoms (European Convention 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

on Human Rights or ECHR) of 4 November 1950. The convention not only 
enabled a minimum standard for the safeguarding of human rights to be laid 
down for the member countries; it also established a system of legal protec-
tion which enables the bodies established in Strasbourg under it (the Euro-
pean Commission on Human Rights and the European Court of Human 
Rights) to condemn violations of human rights in the member countries.

This group of organisations also includes the Organisation for Security and 
Cooperation  in  Europe  (OSCE),  founded  in  1994  as  the  successor  to  the 
Conference on Security and Cooperation in Europe. The OSCE is bound by 
the principles and aims set out in the 1975 Helsinki Final Act and the 1990 
Charter of Paris. Alongside measures to build up trust between the countries 
of  Europe,  these  aims  also  include  the  creation  of  a  ‘safety  net’  to  enable 
conflicts to be settled by peaceful means. As events of the recent past have 
shown, Europe still has a long way to go in this respect.

third group: e uropeaN u NioN

The third group of European organisations comprises the European Union. 
The feature that is completely new in the EU and distinguishes it from the 
usual type of international association of states is that the Member States 
have ceded some of their sovereign rights to the EU and have conferred on 
the Union powers to act independently. In exercising these powers, the EU 
is able to issue sovereign acts which have the same force as laws in individual 
states.

The foundation stone of the European Union was laid by the then French 
Foreign  Minister  Robert  Schuman  in  his  declaration  of  9  May  1950,  in 
which  he  put  forward  the  plan  he  had  worked  out  with  Jean  Monnet  to 
bring Europe’s coal and steel industries together to form a European Coal 
and  Steel  Community.  This  would,  he  declared,  constitute  a  historic  ini-
tiative  for  an  ‘organised  and  vital  Europe’,  which  was  ‘indispensable  for 
civilisation’ and without which the ‘peace of the world could not be main-
tained’. The ‘Schuman Plan’ finally became a reality with the conclusion of 
the founding Treaty of the European Coal and Steel Community (ECSC) 
by the six founding States (Belgium, Germany, France, Italy, Luxembourg 
and the Netherlands) on 18 April 1951 in Paris (Treaty of Paris) and its entry 
into force on 23 July 1952. This Community was established for a period 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

of 50 years, and was ‘integrated’ into the European Community when its 
founding Treaty expired on 23 July 2002. A further development came some 
years later with the Treaties of Rome of 25 March 1957, which created the 
European Economic Community (EEC) and the European Atomic Energy 
Community (Euratom); these began their work when the Treaties entered 
into force on 1 January 1958.

The creation of the European Union by means of the Treaty of Maastricht 
marked a further step along the path to the political unification of Europe. 
Although the Treaty was signed in Maastricht on 7 February 1992, a number 
of obstacles in the ratification process (approval by the people of Denmark 
only after a second referendum; legal action in Germany to have Parliament’s 
approval of the Treaty declared unconstitutional) meant that it did not enter 
into force until 1 November 1993. The Treaty referred to itself as ‘a new stage 
in the process of creating an ever closer union among the peoples of Europe’. 
It contained the instrument establishing the European Union, although it 
did not bring this process to completion. It was a first step on the path lead-
ing ultimately to a European constitutional system.

Further development came in the form of the Treaties of Amsterdam and 
Nice, which entered into force on 1 May 1999 and 1 February 2003. The 
aim of these reforms was to preserve the EU’s capacity for effective action in 
a Union enlarged from 15 to 27 or more members. The two Treaties therefore 
focused on institutional reforms and, compared with previous reforms, the 
political will to deepen European integration in Nice was relatively weak.

The subsequent criticism from several quarters resulted in the start of a de-
bate  on  the  future  of  the  EU  and  its  institutional  set-up.  As  a  result,  on 
5 December 2001 in Laeken (Belgium), the Heads of State or Government 
adopted a Declaration on the Future of the European Union, in which the 
EU  undertook  to  become  more  democratic,  transparent  and  effective  and 
to open the road to a constitution. The first step to achieving this goal was 
taken by setting up a European convention, chaired by the former President 
of France, Valéry Giscard d’Estaing, with the remit of drafting a European 
constitution. On 18 July 2003 the Chairman, on behalf of the convention, 
officially submitted the draft of the Treaty drawn up by the convention to 
the President of the European Council. This draft was adopted, with certain 
amendments, by the Heads of State or Government on 17 and 18 July in 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

Brussels after the accession of the 10 new Member States on 1 May 2004 and 
the European Parliament elections in mid-June 2004.

The constitution was intended to turn the European Union and the Euro-
pean  Community  as  we  knew  them  into  a  new,  single  European  Union 
based on a single Constitutional Treaty. Only the European Atomic Energy 
Community would continue to exist as a separate Community — although 
it would continue to be closely associated with the European Union. 

However,  this  attempt  at  a  constitution  failed  in  the  ratification  process. 
After the initial votes were positive in 13 of the 25 Member States, the Treaty 
was rejected in referendums in France (54.68 % against, from a turnout of 
69.34 %) and the Netherlands (61.7 % against, from a turnout of 63 %).

Following a period of reflection of almost two years, a new package of re-
forms  was  launched  in  the  first  half  of  2007.  This  reform  package  repre-
sented a move away from the idea of a European constitution under which 
all existing Treaties would be revoked and replaced by a single text called the 
‘Treaty  establishing  a  Constitution  for  Europe’.  Instead,  a  Reform  Treaty 
was drawn up, which, like the Treaties of Maastricht, Amsterdam and Nice 
before it, made fundamental changes to the existing EU Treaties in order to 
strengthen the EU’s capacity to act within and outside the Union, increase 
its democratic legitimacy and enhance the efficiency of EU action overall. In 
line with tradition, this Reform Treaty was called the Treaty of Lisbon. 

The Treaty was drafted unusually quickly, chiefly due to the fact that the 
Heads of State or Government themselves set out in detail in the conclu-
sions of the meeting of the European Council of 21 and 22 June 2007 in 
Brussels how and to what extent the changes negotiated at the Intergovern-
mental Conference of 2004 were to be incorporated into the existing Trea-
ties. Their  approach  was  unusual  in  that  they  did  not  limit  themselves  to 
general directions to be implemented by an Intergovernmental Conference, 
but themselves drew up the structure and content of the changes to be made, 
and indeed often set out the exact wording of a provision. The main points of 
contention were the delimitation of competences between the Union and the 
Member States, the future of the common foreign and security policy, the 
new role of the national parliaments in the integration process, the incorp-
oration of the Charter of Fundamental Rights into Union law and possible 
progress in the area of police and judicial cooperation in criminal matters. 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

As a result, the Intergovernmental Conference convened in 2007 had little 
room for manoeuvre and was only empowered to implement the required 
changes  technically.  The  work  of  the  Intergovernmental  Conference  was 
completed by the 18 and 19 October 2007, and obtained the political ap-
proval of the European Council, which was meeting informally in Lisbon at 
the same time. Finally, the Treaty was formally signed by the Heads of State 
or Government of the 27 Member States of the EU on 13 December 2007 
in Lisbon.

However, the ratification process for this Treaty proved extremely difficult. 
Although the Lisbon Treaty, unlike the Treaty establishing a Constitution for 
Europe, was successfully ratified in France and the Netherlands, it initially 
fell at the hurdle of a first referendum in Ireland on 12 June 2008 (53.4 % 
against, in a turnout of 53.1 %). Only after a number of legal assurances on 
the (limited) scope of the new Treaty were Irish citizens called to vote in a 
second  referendum  on  the  Lisbon  Treaty  in  October  2009.  This  time  the 
Treaty received the broad support of the Irish population (67.1 % for, in a 
turnout of 59 %). The success of the referendum in Ireland also opened the 
way for ratification of the Lisbon Treaty in Poland and the Czech Republic. 
In  Poland,  President  Kaczyński  had  made  signature  of  the  instrument  of 
ratification dependent on a favourable outcome in the Irish referendum. The 
Czech  President,  Václav  Klaus,  also  initially  wanted  to  wait  for  the  Irish 
referendum, but then made his signature of the  instrument of ratification 
dependent on a guarantee that the ‘Beneš decrees’ of 1945, which disallowed 
claims to land in areas of the Czech Republic that were formerly German, 
would remain unaffected by the Lisbon Treaty, and in particular the Charter 
of Fundamental Rights incorporated into the EU Treaty. Once a solution 
had been found to this demand, the Czech President signed the instrument 
of ratification on 3 November 2009. Thus, the ratification process was com-
pleted in the last of the 27 Member States, and the Treaty of Lisbon could 
enter into force on 1 December 2009.

The Treaty of Lisbon merges the European Union and the European Com-
munity into a single European Union. The word ‘Community’ is replaced 
throughout  by  the  word  ‘Union’.  The  Union  replaces  and  succeeds  the 
European Community. However, Union law is still shaped by the following 
three Treaties.

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T h e A B C  O F e U R O Pe A N U N I O N L AW

Treaty on European Union

The Treaty on European Union (EU Treaty — ‘TEU’) has been 
completely restructured into the following six titles: Common 
provisions (I), Provisions on democratic principles (II), Provisions 
on institutions (III), Provisions on enhanced cooperation (IV), 
General provisions on the Union’s external action and specific 
provisions on the common foreign and security policy (V) and 
Final provisions (VI).

Treaty on the Functioning of the European Union 

The Treaty on the Functioning of the European Union (‘TFEU’) 
has been developed from the Treaty establishing the European 
Community. It has more or less the same structure as the EC 
Treaty. The main changes concern the external action of the EU 
and the introduction of new chapters, in particular on energy 
policy, police and judicial cooperation in criminal matters, space, 
sport and tourism. 

Treaty establishing the European Atomic Energy Community

The Treaty establishing the European Atomic Energy Community 
(EAEC Treaty — ‘Euratom Treaty’) has been amended at different 
stages. In each case, the specific amendments have been made in 
protocols annexed to the Treaty of Lisbon.

The TEU and the TFEU have the same legal standing. This explicit legal 
clarification is necessary, since the new title of the former EC Treaty (‘Treaty 
on the Functioning of the EU’) and the levels of regulation in both Treaties 
give  the  impression  that  the  TEU  is  a  sort  of  constitution  or  basic  treaty, 
whilst the TFEU is intended as an implementing treaty. However, the TEU 
and the TFEU are not constitutional in nature. The terms used in the Trea-
ties overall reflect this change of approach from the former draft constitu-
tion. The expression ‘constitution’ is no longer used; the ‘EU foreign minis-
ter’ is referred to as the ‘High Representative of the Union for Foreign Affairs 
and Security Policy’; and the definitions of ‘law’ and ‘framework law’ have 
been abandoned. The amended Treaties also contain no articles referring to 

015

 
 
T h e  A B C  O F e U R O Pe A N U N I O N L AW

the symbols of the EU, such as the flag, anthem or motto. The primacy of 
EU law is not explicitly laid down in a treaty, but is derived, as before, from 
the case-law of the Court of Justice of the European Union, and this case-law 
is referred to in an explanatory declaration. 

The Treaty of Lisbon also abandons the EU’s ‘three pillars’. The first pillar, 
consisting  essentially  of  the  single  market  and  the  EC  policies,  is  merged 
with the second pillar, consisting of the common foreign and security policy, 
and  the  third  pillar,  covering  police  and  judicial  cooperation  in  criminal 
matters.  However,  the  special  procedures  relating  to  the  common  foreign 
and security policy, including European defence, remain in force; the Inter-
governmental Conference declarations attached to the Treaty underline the 
special  nature  of  this  policy  area  and  the  particular  responsibilities  of  the 
Member States in this respect.

The EU currently has 27 Member States. These comprise first of all the six 
founder  members  of  the  EEC,  namely  Belgium,  Germany  (including  the 
territory of the former GDR following the unification of the two Germa-
nies on 3 October 1990), France, Italy, Luxembourg and the Netherlands. 
On  1   January  1973,  Denmark  (now  excluding  Greenland,  which  in  a 
referendum  in  February  1982  voted  by  a  narrow  majority  not  to  remain 
in the EC), Ireland and the United Kingdom joined the Community; Nor-
way’s planned accession was rejected in a referendum in October 1972 (with 
53.5 % against EC membership). The ‘enlargement to the south’ was begun 
with the accession of Greece on 1 January 1981 and completed on 1 January 
1986 with the accession of Spain and Portugal. The next enlargement took 
place on 1 January 1995 when Austria, Finland and Sweden joined the EU. 
In Norway, a referendum led to a repeat of the outcome 22 years before, with 
a small majority (52.4 %) against Norwegian membership of the EU. On 
1 May 2004 the Baltic States of Estonia, Latvia and Lithuania, the east and 
central European States of the Czech Republic, Hungary, Poland, Slovenia 
and Slovakia and the two Mediterranean islands of Cyprus and Malta joined 
the EU. Only a little over two years later, the enlargement to the east was 
completed for the time being with the accession of Bulgaria and Romania 
on 1 January 2007. This extended the number of Member States from 15 
to 27 and increased the EU population by around 90 million, bringing it 
to 474 million. This historic enlargement of the EU is the centrepiece of a 
long process leading to the reunification of a Europe that had been divided 
for over half a century by the Iron Curtain and the cold war. Above all, it 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

reflects the desire to bring peace, stability and economic prosperity to a uni-
fied European continent.

Further accession negotiations are under way, notably with Turkey, which 
submitted its application for membership on 14 April 1987. However, rela-
tions between the EU and Turkey go back further than this. As long ago as 
1963, Turkey and the EEC entered into an association agreement which re-
ferred to the prospect of membership. In 1995, a customs union was formed 
and, in Helsinki in December 1999, the European Council decided to grant 
Turkey officially the status of an accession candidate. This was a reflection 
of the belief that the country had the basic features of a democratic system, 
although it still displayed serious shortcomings in terms of human rights and 
the protection of minorities. In December 2004, on the basis of the Com-
mission’s recommendation, the European Council finally gave the go-ahead 
for  the  opening  of  accession  negotiations  with  Turkey;  these  negotiations 
have been ongoing since October 2005. The ultimate aim of these negotia-
tions is accession, but there is no guarantee that this aim will be achieved. 
There is also agreement within the EU that accession is not possible before 
2014. Any such accession must be thoroughly prepared to allow for smooth 
integration and to avoid endangering the achievements of over 50 years of 
European integration. Other candidates for accession are Croatia, where the 
path to the start of accession negotiations was cleared in October 2005, and 
the former Yugoslav Republic of Macedonia, which was given official candi-
date country status in December 2005 without an actual date for the start 
of negotiations being set. Iceland submitted an application for membership 
on 17 July 2009. On 24 February 2010 the European Commission recom-
mended that the Council open accession negotiations with Iceland.

The EU is now also working resolutely for new enlargements in the western 
Balkan region. It has decided to apply the same methodology to the west-
ern Balkan countries as it used previously for the new Member States. An 
extended stabilisation and association process therefore remains the overall 
framework for the progression of the countries of the western Balkans, all 
the  way  to  their  accession.  A  first  important  step  in  this  direction  is  the 
‘European partnerships’ established with Albania, Bosnia and Herzegovina 
and Serbia and Montenegro, including Kosovo (1). The role of the European 

(1) Pursuant to UN Security Council Resolution 1244 of 10 June 1999.

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

partnerships, updated as necessary, is to assist the western Balkan countries 
in preparing for membership within a coherent framework and in develop-
ing action plans with timetables of reforms and details in terms of the means 
by which they intend to address the requirements for further integration into 
the EU.

Provision  has  also  been  made  for  withdrawal  from  the  EU.  A  withdrawal 
clause has been incorporated into the EU Treaty, allowing a Member State 
to  leave.  There  are  no  conditions  for  such  a  withdrawal  from  the  Union; 
all that is required is an agreement between the EU and the Member State 
concerned on the arrangements for its withdrawal. If such agreement cannot 
be  reached,  the  withdrawal  becomes  effective  without  any  agreement  two 
years after the notification of the intention to withdraw. However, there is 
no provision for expulsion of a Member State from the EU for serious and 
persistent breaches of the Treaties.

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Fundamental values of  
the European Union

Article 2 of the TEU (values of the Union)

The Union is founded on the values of respect for human dignity, 

freedom, democracy, equality, the rule of law and respect for human 

rights, including the rights of persons belonging to minorities. These 

values are common to the Member States in a society in which pluralism, 

non-discrimination, tolerance, justice, solidarity and equality between 

women and men prevail.

Article 3 of the TEU (aims of the Union)

1. The Union’s aim is to promote peace, its values and the well-being of 

its peoples.

2. The Union shall offer its citizens an area of freedom, security and 

justice without internal frontiers, in which the free movement of persons 

is ensured in conjunction with appropriate measures with respect to 

external border controls, asylum, immigration and the prevention and 

combating of crime.

3. The Union shall establish an internal market. It shall work for the 

sustainable development of Europe based on balanced economic 

growth and price stability, a highly competitive social market economy, 

aiming at full employment and social progress, and a high level of 

protection and improvement of the quality of the environment. It shall 

promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote 

social justice and protection, equality between women and men, 

solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity 

among Member States.

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It shall respect its rich cultural and linguistic diversity, and shall ensure 

that Europe’s cultural heritage is safeguarded and enhanced.

4. The Union shall establish an economic and monetary union whose 

currency is the euro.

5. In its relations with the wider world, the Union shall uphold and 

promote its values and interests and contribute to the protection 

of its citizens. It shall contribute to peace, security, the sustainable 

development of the Earth, solidarity and mutual respect among 

peoples, free and fair trade, eradication of poverty and the protection of 

human rights, in particular the rights of the child, as well as to the strict 

observance and the development of international law, including respect 

for the principles of the United Nations Charter.

[…] 

The foundations of a united Europe were laid on fundamental ideas and 
values to which the Member States also subscribe and which are translated 
into  practical  reality  by  the  Community’s  operational  institutions.  These 
are lasting peace, unity, equality, freedom, solidarity and security. The EU’s 
avowed aims are to safeguard the principles of liberty, democracy and the 
rule of law which are shared by all the Member States, and to protect fun-
damental  and  human  rights.  These  values  are  also  those  to  be  aimed  for 
by  states  wishing  to  join  the  EU  in  the  future.  In  addition,  penalties  can 
be applied to any Member State which seriously and persistently breaches 
these values and principles. If the Heads of State or Government, acting on 
a proposal by one third of the Member States or by the Commission, and 
after obtaining the assent of the European Parliament, declare that a serious 
and persistent breach of the EU’s underlying values and principles has oc-
curred, the Council may, acting by a qualified majority, suspend certain of 
the rights deriving from the application of the EU Treaty and the Treaty on 
the Functioning of the European Union to the Member State in question, 
including voting rights in the Council. On the other hand, the obligations 
on the Member State in question under the Treaties continue to be binding. 
Particular  account  is  taken  of  the  effects  on  the  rights  and  obligations  of 
citizens and enterprises.

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the eu  as guaraNtor oF peace

There is no greater motivation for European unification than the desire for 
peace. In the last century, two world wars were waged in Europe between 
countries that are now Member States of the European Union. Thus, a policy 
for Europe means at the same time a policy for peace, and the establishment 
of the EU simultaneously created the centrepiece of a framework for peace 
in Europe that renders a war between the Member States impossible. Fifty 
years of peace in Europe are proof of this. The more European States that 
join the EU, the stronger this framework of peace will become. The last two 
enlargements of the EU, including 12 predominantly east and central Euro-
pean States, have made a major contribution in this respect.

uNity aNd equality as the recurriNg theme

Unity is the recurring theme. The present-day problems can be mastered only 
if European countries move forward along the path that leads them to unity. 
Many people take the view that without European integration, without the 
European Union, it would not be possible to secure peace (both in Europe 
and  worldwide),  democracy,  law  and  justice,  economic  prosperity  and  so-
cial security, and guarantee them for the future. Unemployment, inadequate 
growth and environmental pollution have long ceased to be merely national 
problems, and they cannot be solved at national level. It is only in the context 
of the EU that a stable economic order can be established and only through 
joint European efforts that we can secure an international economic policy 
that improves the performance of the European economy and contributes to 
social justice. Without internal cohesion, Europe cannot assert its political 
and economic independence from the rest of the world, win back its influence 
on the international stage and regain its role in world politics.

Unity can endure only where equality is the rule. No citizen of the Union 
may be placed at a disadvantage or discriminated against because of his or 
her  nationality.  Discriminatory  treatment  on  the  grounds  of  gender,  race, 
ethnic origin, religion or beliefs, disability, age or sexual orientation must be 
combated. The Charter of Fundamental Rights of the European Union goes 
still further. Any discrimination based on any ground such as colour, genetic 
features, language, political or any other opinion, membership of a national 
minority,  property  or  birth  is  prohibited.  In  addition,  all  Union  citizens 

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are  equal  before  the  law.  As  far  as  the  Member  States  are  concerned,  the 
principle of equality means that no State has precedence over another, and 
natural differences such as size, population and differing structures must be 
addressed only in accordance with the principle of equality.

the FuNdameNtal Freedoms

Freedom results directly from peace, unity and equality. Creating a larger 
entity by linking 27 States affords at the same time freedom of movement 
beyond  national  frontiers.  This  means,  in  particular,  freedom  of  move-
ment  for  workers,  freedom  of  establishment,  freedom  to  provide  services, 
free movement of goods and free movement of capital. These fundamental 
freedoms  guarantee  business  people  freedom  of  decision-making,  workers 
freedom  to  choose  their  place  of  work  and  consumers  freedom  of  choice 
between the greatest possible variety of products. Freedom of competition 
permits businesses to offer their goods and services to an incomparably wider 
circle of potential customers. Workers can seek employment and change job 
according to their own wishes and interests throughout the entire territory 
of the EU. Consumers can select the cheapest and best products from the far 
greater range of goods on offer that results from increased competition.

However, transitional rules still apply in some cases to citizens of the Mem-
ber States which joined the EU on 1 May 2004 and 1 January 2007. The 
Accession Treaty contained exceptions in particular with regard to the free 
movement of workers, the freedom to provide services and the freedom of 
establishment. As a result, the ‘old’ EU Member States can restrict the free 
movement of workers who are nationals of the ‘new’ Member States for a 
period of up to seven years by making access to employment subject to na-
tional or bilateral law.

the priNciple oF solidarity

Solidarity is the necessary corrective to freedom, for inconsiderate exercise 
of freedom is always at the expense of others. For this reason, if a Commu-
nity framework is to endure, it must also always recognise the solidarity of 
its members as a fundamental principle, and share both the advantages, i.e. 
prosperity, and the burdens equally and fairly among its members.

022

1 to 3 June 1955, Taormina (Italy). 
Joseph Bech, Paul-Henri Spaak and Johan Willem Beyen in the garden 
of the hotel where they were staying during the Messina Conference. 
These three Foreign Affairs Ministers drew up the Benelux Memorandum 
which was discussed by the Six during this conference.

T h e  A B C  O F e U R O Pe A N U N I O N L AW

respect oF NatioNal ideNtity

The national identities of the Member States are respected. The idea is not for 
the Member States to be ‘dissolved’ into the EU, but rather for them to con-
tribute their own particular qualities. It is precisely this variety of national 
characteristics and identities that lends the EU its moral authority, which in 
turn is used for the benefit of the EU as a whole.

the Need For security

All of these fundamental values are ultimately dependent on security. Par-
ticularly since the attack on the USA of 11 September 2001, the fight against 
terrorism and organised crime in Europe has also been in the spotlight again. 
Police and judicial cooperation continues to be consolidated, and protection 
of the EU’s external borders intensified.

However, security in the European context also means the social security of 
all citizens living in the EU, job security and secure general economic and 
business conditions. In this respect, the EU institutions are called upon to 
make it possible for citizens and businesses to work out their future by creat-
ing the conditions on which they depend.

the FuNdameNtal rights

The fundamental values and concepts at the heart of the EU also include 
the fundamental rights of individual citizens of the Union. The history of 
Europe has for more than 200 years been characterised by continuing efforts 
to enhance the protection of fundamental rights. Starting with the declara-
tions of human and civil rights in the 18th century, fundamental rights and 
civil liberties have now become firmly anchored in the constitutions of most 
civilised states. This is especially true of the EU Member States, whose legal 
systems are constructed on the basis of the rule of law and respect for the 
dignity, freedom and the right to self-development of the individual. There 
are  also  numerous  international  conventions  on  the  protection  of  human 
rights, among which the European Convention on Human Rights is of very 
great significance.

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It was not until 1969 that the Court of Justice established a body of case-
law to serve as a framework of fundamental rights. This was because in the 
early years the Court had rejected all actions relating to basic rights on the 
grounds that it need not concern itself with matters falling within the scope 
of national constitutional law. The Court had to alter its position not least 
because it was itself the embodiment of the primacy of Union law and its 
precedence  over  national  law;  this  primacy  can  only  be  firmly  established 
if Union law is sufficient in itself to guarantee the protection of basic rights 
with the same legal force as under the national constitutions.

The starting point in this case-law was the Stauder judgment, in which the 
point at issue was the fact that a recipient of welfare benefits for war victims 
regarded  the  requirement  that  he  give  his  name  when  registering  for  the 
purchase of butter at reduced prices at Christmas time as a violation of his 
human dignity and the principle of equality. Although the Court of Justice 
came  to  the  conclusion,  in  interpreting  the  Community  provision,  that  it 
was not necessary for recipients to give their name so that, in fact, considera-
tion of the question of a violation of a fundamental right was superfluous, it 
declared finally that the general fundamental principles of the Community 
legal order, which the Court of Justice had to safeguard, included respect for 
fundamental rights. This was the first time that the Court of Justice recog-
nised the existence of an EU framework of fundamental rights of its own.

Initially,  the  Court  developed  its  safeguards  for  fundamental  rights  from 
a  number  of  provisions  in  the  Treaties.  This  is  especially  the  case  for  the 
numerous bans on discrimination which, in specific circumstances, address 
particular aspects of the general principle of equality. Examples are the pro-
hibition of any discrimination on grounds of nationality (Article 18 TFEU), 
preventing people being treated differently on the grounds of gender, race, 
ethnic  origin,  religion  or  beliefs,  disability,  age  or  sexual  orientation 
(Article  10  TFEU),  the  equal  treatment  of  goods  and  persons  in  relation 
to  the  four  basic  freedoms  (freedom  of  movement  of  goods  —  Article  34 
TFEU; freedom of movement of persons — Article 45 TFEU; the right of 
establishment — Article 49 TFEU; and freedom to provide services — Ar-
ticle  57  TFEU),  freedom  of  competition  (Article  101  et  seq.  TFEU)  and 
equal pay for men and women (Article 157 TFEU). The four fundamental 
freedoms of the Community, which guarantee the basic freedoms of profes-
sional life, can also be regarded as a Community fundamental right to free-
dom of movement and freedom to choose and practise a profession. Explicit 

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guarantees are also provided for the right of association (Article 153 TFEU), 
the right to petition (Article 24 TFEU) and the protection of business and 
professional secrecy (Article 339 TFEU).

The  Court  of  Justice  has  steadily  developed  and  added  to  these  initial  at-
tempts  at  protecting  fundamental  rights  through  Community  law.  It  has 
done this by recognising and applying general legal principles, drawing on 
the concepts that are common to the constitutions of the Member States and 
on the international conventions on the protection of human rights to whose 
conclusion the Member States have been party. Prominent among the latter 
is the European Convention on Human Rights, which helped to shape the 
substance of fundamental rights in the Union and the mechanisms for their 
protection. On this basis, the Court has recognised a number of freedoms 
as basic rights secured by Community law: right of ownership, freedom to 
engage in an occupation, the inviolability of the home, freedom of opinion, 
general rights of personality, the protection of the family (e.g. family mem-
bers’ rights to join a migrant worker), economic freedom, freedom of religion 
or faith, as well as a number of fundamental procedural rights such as the 
right to due legal process, the principle of confidentiality of correspondence 
between  lawyer  and  client  (known  as  ‘privileged  communications’  in  the 
common-law countries), the ban on being punished twice for the same of-
fence, or the requirement to provide justification for an EU legal act.

One particularly important principle regularly invoked in legal disputes is the 
principle  of  equal  treatment.  Put  simply,  this  means  that  like  cases  must  be 
treated alike, unless there is some objectively justifiable ground for distinguish-
ing them. But the Court of Justice has held, contrary to international custom, 
that this principle does not preclude nationals and home-produced goods from 
being subjected to stricter requirements than citizens or products from other 
Member  States.  This  ‘reverse  discrimination’  is  the  inevitable  result  of  the 
limited scope of the Union’s powers and cannot be remedied by Community 
law. Under the Court’s judgments issued up to now, the rules requiring liberali-
sation, which flow from the fundamental freedoms, apply only to cross-border 
trade. Rules regulating the production and marketing of home-produced goods 
or the legal status of nationals in their own Member State are affected by Com-
munity law only if the Union has introduced harmonisation measures.

The jurisprudence of the Court of Justice has given the Union an extensive 
body of quasi-constitutional law. In practical terms, the principle of propor-

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tionality is foremost among these. What it means is that the objectives pur-
sued and the means deployed must be weighed up and an attempt made to 
keep them in proper balance so that the citizen is not subjected to excessive 
burdens. Among the other fundamental principles underlying Union law are 
the general principles of administrative law and the concept of due process: 
legitimate expectations must be protected, retroactive provisions imposing 
burdens or withdrawing legitimately acquired advantages are precluded and 
the right to due legal process — natural justice is the traditional term for 
this — must be secured in the administrative procedures of the Commission 
and the judicial procedures of the Court of Justice. Particular value is also at-
tached to greater transparency, which means that decisions should be taken 
as openly as possible, and as closely as possible to the citizen. An important 
aspect of this transparency is that any EU citizen or legal person registered in 
a Member State may have access to Council or Commission documents. All 
grants and subsidies from the EU budget must also be disclosed to natural or 
legal persons by means of databases accessible to every Union citizen.

With all due respect for the achievements of the Court of Justice in the devel-
opment of unwritten fundamental rights, this process of deriving ‘European 
fundamental rights’ had a serious disadvantage: the Court of Justice was con-
fined to the particular case in point. It was therefore unable to develop funda-
mental rights from the general legal principles for all areas in which this ap-
peared necessary or desirable. Nor was it able to elaborate the scope of and the 
limits to the protection of fundamental rights as generally and distinctively as 
was necessary. As a result, the EU institutions could not assess with enough 
precision whether they were in danger of violating a fundamental right or not. 
Nor could any Union citizen who was affected judge without further effort in 
every case whether one of his or her fundamental rights had been infringed.

For  a  long  time,  EU  accession  to  the  European  Convention  on  Human 
Rights  was  regarded  as  a  way  out  of  this  situation.  In  its  Opinion  2/94, 
however, the Court held that, as the law stood, the EU had no competence 
to accede to the convention. The Court stated that respect for human rights 
was  a  condition  for  the  lawfulness  of  EU  acts.  However,  accession  to  the 
convention would entail a substantial change in the present Union system 
for the protection of human rights in that it would involve the EU entering 
into a distinct international institutional system as well as integration of all 
the provisions of the convention into the Union legal order. The Court took 
the view that such a modification of the system for the protection of human 

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rights in the EU, with equally fundamental institutional implications for the 
Union and for the Member States, would be of constitutional significance 
and would therefore go beyond the scope of the dispositive powers provided 
for in Article 352 TFEU. The EU’s accession to the convention was there-
fore specifically provided for in Article 6(2) of the EU Treaty. However, the 
Treaty of Lisbon made a further, decisive step towards the creation of a com-
mon constitutional law for the EU and put the protection of fundamental 
rights in the EU on a new footing. The new article on fundamental rights 
in the EU Treaty (Article 6 TEU) refers to the European Union’s Charter 
of Fundamental Rights, declaring it to be binding for the actions of the EU 
institutions  and  the  Member  States,  insofar  as  they  apply  and  implement 
Union law. 

This Charter of Fundamental Rights is based on a draft previously drawn up 
by a convention of 16 representatives of the Heads of State or Government 
of the Member States and of the President of the European Commission, 16 
Members of the European Parliament, and 30 members of national parlia-
ments (two from each of the then Member States) under the chairmanship of 
Professor Roman Herzog, and was solemnly proclaimed to be the ‘European 
Union’s Charter of Fundamental Rights’ by the Presidents of the European 
Parliament,  the  Council  and  the  European  Commission  on  7  December 
2000. During the negotiations on a European constitution, this Charter of 
Fundamental  Rights  was  revised  and  made  an  integral  part  of  the  Treaty 
establishing a Constitution for Europe of 29 October 2004. Following the 
failure of the Treaty, the Charter of Fundamental Rights was again solemnly 
proclaimed as the ‘European Union’s Charter of Fundamental Rights’, this 
time as a separate instrument, by the Presidents of the European Parliament, 
the Council and the European Commission on 12 December 2007 in Stras-
bourg. The EU Treaty refers to this version of the charter in binding form. 
This  makes  the  Charter  of  Fundamental  Rights  legally  binding  and  also 
establishes the applicability of fundamental rights in Union law. However, 
this does not apply to Poland and the United Kingdom. These two Member 
States  were  unable,  or  did  not  wish,  to  adopt  the  system  of  fundamental 
rights of the charter, as they were concerned that they would be obliged to 
surrender  or  at  least  change  certain  national  positions  concerning,  for  ex-
ample, religious issues or the treatment of minorities. They are therefore not 
bound by the fundamental rights of the charter, but by the case-law of the 
Court of Justice, as previously.

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The ‘constitution’ of  
the European Union

Every social organisation has a constitution. A constitution is the means by 
which the structure of a political system is defined, i.e. the relationship of the 
various parts to each other and to the whole is specified, the common objec-
tives are defined and the rules for making binding decisions are laid down. 
The constitution of the EU, as an association of states to which quite specific 
tasks and functions have been allotted, must thus be able to answer the same 
questions as the constitution of a state.

In  the  Member  States  the  body  politic  is  shaped  by  two  overriding  prin-
ciples: the rule of law and democracy. All the activities of the Union, if they 
are to be true to the fundamental requirements of law and democracy, must 
therefore have both legal and democratic legitimacy: the elements on which 
it is founded, its structure, its powers, the way it operates, the position of the 
Member States and their institutions, and the position of the citizen.

Following the failure of the Treaty establishing a Constitution for Europe of 
29 October 2004, the EU ‘constitution’ is still not laid down in a compre-
hensive constitutional document, as it is in most of the constitutions of its 
Member States, but arises from the totality of rules and fundamental values 
by  which those in authority perceive themselves  to be bound. These rules 
are to be found partly in the European Treaties or in the legal instruments 
produced by the Union institutions, but they also rest partly on custom.

the legal Nature oF the eu

Any consideration of the legal nature of the EU must start by looking at its 
characteristic  features.  Although  the  EU’s  legal  nature  was  set  out  in  two 
precedent-setting judgments of the Court of Justice in 1963 and 1964 relat-
ing  to  the  then  European  Economic  Community,  the  judgments  are  still 
valid for the European Union in its current form. 

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Van Gend & Loos

In this legal dispute, the Dutch transport company Van Gend & Loos filed 
an action against the Netherlands customs authorities for imposing an im-
port duty on a chemical product from Germany which was higher than du-
ties on earlier imports. The company considered this an infringement of 
Article 12 of the EEC Treaty, which prohibits the introduction of new im-
port duties or any increase in existing customs duties between the Member 
States. The court in the Netherlands then suspended the proceedings and 
referred  the  matter  to  the  Court  of  Justice  for  clarification  as  regards  the 
scope  and  legal  implications  of  the  abovementioned  article  of  the  Treaty 
establishing the EC.

The Court of Justice used this case as an opportunity to set out a number of 
observations of a fundamental nature concerning the legal nature of the EU. 
In its judgment, the Court stated that: 

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

Costa v eneL

Just  a  year  later,  the  Costa  v  ENEL  case  gave  the  Court  of  Justice  an  op-
portunity to set out its position in more detail. The facts of this case were 
as  follows.  In  1962,  Italy  nationalised  the  production  and  distribution  of 
electricity  and  transferred  the  assets  of  the  electricity  undertakings  to  the 
national electricity board, ENEL. As a shareholder of Edison Volt, one of 
the companies that was nationalised, Mr Costa considered that he had been 
deprived of his dividend and consequently refused to pay an electricity bill 

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for ITL 1 926. In proceedings before the arbitration court in Milan, one of 
the arguments put forward by Mr Costa to justify his conduct was that the 
nationalising  act  infringed  a  number  of  provisions  of  the  EEC  Treaty.  In 
order to be able to assess Mr Costa’s submissions in his defence, the court 
requested the Court of Justice to interpret various aspects of the EEC Treaty. 
In its judgment, the Court of Justice stated the following in relation to the 
legal nature of the EEC:

‘By contrast with ordinary international treaties, the EEC Treaty has created 
its own legal system which ... became an integral part of the legal systems of 
the Member States and which their courts are bound to apply. By creating a 
Community of unlimited duration, having its own institutions, its own per-
sonality, its own legal capacity and capacity of representation on the inter-
national plane and, more particularly, real powers stemming from a limita-
tion of sovereignty or a transfer of powers from the States to the Community, 
the Member States have limited their sovereign rights ... and have thus cre-
ated a body of law which binds both their nationals and themselves.’

On the basis of its detailed observations, the Court reached the following 
conclusion:

‘It follows from all these observations that the law stemming from the Treaty, 
an independent source of law, could not, because of its special and original 
nature, be overridden by domestic legal provisions, however framed, without 
being  deprived  of  its  character  as  Community  law  and  without  the  legal 
basis of the Community itself being called into question. The transfer by the 
States from their domestic legal system to the Community legal system of the 
rights and obligations arising under the Treaty carries with it a permanent 
limitation of their sovereign rights, against which a subsequent unilateral act 
incompatible with the concept of the Community cannot prevail.’

In the light of these judgments, the elements which together typically char-
acterise the special legal nature of the EU are:

■■

the institutional set-up, which ensures that action by the EU is also char-
acterised by the overall European interest, i.e. is reflected in or influenced 
by the Union interest as laid down in the objectives;

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■■

the transfer of powers to the Union institutions to a greater degree than 
in  other  international  organisations,  and  extending  to  areas  in  which 
States normally retain their sovereign rights;

■■

the  establishment  of  its  own  legal  order  which  is  independent  of  the 
Member States’ legal orders;

■■

the direct applicability of Union law, which makes provisions of Union 
law fully and uniformly applicable in all Member States, and bestows 
rights  and  imposes  obligations  on  both  the  Member  States  and  their 
 citizens;

■■

the primacy of Union law, which ensures that Union law may not be 
revoked or amended by national law and that it takes precedence over 
national law if the two conflict.

The EU is thus an autonomous entity with its own sovereign rights and a 
legal order independent of the Member States, to which both the Member 
States  themselves  and  their  nationals  are  subject  within  the  EU’s  areas  of 
competence.

The  EU  has,  by  its  very  nature,  certain  features  in  common  with  the 
usual kind of international organisation or federal-type structure, as well as 
a number of differences.

The EU is itself not yet a ‘finished product’; it is in the process of evolving 
and the form it finally takes still cannot be predicted.

The  only  feature  that  the  EU  has  in  common  with  the  traditional  inter-
national organisations is that it too came into being as a result of an inter-
national treaty. However, the EU has already moved a long way from these 
beginnings. This is because, although the Treaties establishing the EU were 
based on international treaties, they led to the creation of an independent 
Union with its own sovereign rights and responsibilities. The Member States 
have ceded some of their sovereign powers to this Union. In addition, the 
tasks which have been allotted to the EU are very different from those of 
other international organisations. While the latter mainly have clearly de-
fined tasks of a technical nature, the EU has areas of responsibility which 
together constitute essential attributes of statehood.

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Through these differences between the EU and the traditional type of inter-
national organisation, the EU is in the process of acquiring a status similar to 
that of an individual state. In particular, the Member States’ partial surrender 
of sovereign rights was taken as a sign that the EU was already structured 
along the lines of a federal state. However, this view fails to take into account 
that the EU institutions only have powers in certain areas to pursue the ob-
jectives specified in the Treaties. This means that they are not free to choose 
their objectives in the same way as a sovereign state; nor are they in a posi-
tion to meet the challenges facing modern states today. The EU has neither 
the comprehensive jurisdiction enjoyed by sovereign states nor the powers to 
establish new areas of responsibility (‘jurisdiction over jurisdiction’).

The EU is therefore neither an international organisation in the usual sense 
nor an association of states, but rather an autonomous entity somewhere in 
between  the  two.  In  legal  circles,  the  term  ‘supranational  organisation’  is 
now used.

the tasks oF the eu

The list of tasks entrusted to the EU strongly resembles the constitutional 
order  of  a  state. These  are  not  the  narrowly  circumscribed  technical  tasks 
commonly assumed by international organisations, but fields of competence 
which, taken as a whole, form essential attributes of statehood.

The  list  of  tasks  entrusted  to  the  EU  is  very  wide-ranging,  covering  eco-
nomic, social and political action. 

The economic tasks are centred around establishing a common market that 
unites the national markets of the Member States and on which all goods 
and services can be offered and sold on the same conditions as on an internal 
market and to which all Union citizens have the same, free access.

The plan to create a common market has essentially been fulfilled through 
the programme aimed at completion of the internal market by 1992, which 
was initiated by the then President of the Commission, Jacques Delors, and 
approved  by  the  Heads  of  State  or  Government,  with  the  Union  institu-
tions succeeding in laying down a legal framework for a properly function-
ing single market. This framework has now been fleshed out very largely by 
national transposition measures, with the result that the single market has 

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already become a reality. This single market also makes itself felt in everyday 
life, especially when travelling within the EU, where identity checks at na-
tional borders have long since been discontinued.

The internal market is backed up by the economic and monetary union.

The EU’s task in economic policy is not, however, to lay down and operate 
a European economic policy, but to coordinate the national economic pol-
icies so that the policy decisions of one or more Member States do not have 
negative repercussions for the operation of the single market. To this end, a 
Stability and Growth Pact was adopted to give Member States the detailed 
criteria which their decisions on budgetary policy have to meet. If they fail to 
do this, the European Commission can issue warnings and, in cases of con-
tinuing excessive budgetary deficit, the Council can also impose penalties.

The EU’s task in monetary policy was and is to introduce a single currency in 
the EU and to control monetary issues centrally. Some success has already been 
achieved in this area. On 1 January 1999, the euro was introduced as the sin-
gle European currency in the Member States which had already met the con-
vergence criteria established for that purpose. These were Belgium, Germany, 
Ireland, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal 
and Finland. On 1 January 2002 the national currencies of these States were 
replaced with euro bank notes and coins. Since then, their day-to-day pay-
ments and financial transactions have been made in only one currency — the 
euro. Greece and Sweden had, initially, failed to meet the convergence criteria. 
Greece was included on 1 January 2001. Sweden, which could not meet the 
criteria principally due to the fact that it did not participate in the exchange 
rate mechanism of the European Monetary System (the ‘waiting room’ for the 
euro), is subject to a derogation in that the Commission and the European Cen-
tral Bank must present convergence reports for Sweden at least every two years, 
in which they can recommend Sweden’s participation to the Council. If such 
a recommendation is made and approved by the Council, Sweden will not be 
able to refuse to participate. However, there is currently little support amongst  
the Swedish population for joining the euro area. In a 2003 referendum, 55.9 % 
were  against  the  introduction  of  the  euro.  In  a  survey  in  December  2005, 
49 % were still against the euro, while 36 % were in favour. The situation is 
different with regard to Denmark and the United Kingdom. These Member 
States secured an opt-out, which allows them to decide if and when the proce-
dure for verifying compliance with the criteria for joining the single currency 

034

6 December 1977, Brussels.  
Demonstration in favour of elections based on 
universal suffrage for the European Parliament 
and of the single currency during the European 
Council meeting on 5 and 6 December 1977. 

T h e  A B C  O F e U R O Pe A N U N I O N L AW

is initiated. The new Member States are also obliged to adopt the euro as their 
national currency as soon as they meet the convergence criteria. None of the 
new Member States has an opt-out clause, and most of the new Member States 
wish to introduce the euro as soon as possible. Slovenia (1 January 2007), 
Cyprus (1  January 2008), Malta (1 January 2008) and Slovakia (1 January 
2009) have already achieved this, extending the ‘euro area’ — countries which 
have the euro as their currency — to a current total of 16 Member States.

In addition to the area of economic and monetary policy, there are many other 
economic policy areas in which the EU has responsibilities. These include in 
particular agricultural and fisheries policy, transport policy, consumer policy, 
structural and cohesion policy, research and development policy, space policy, 
environment policy, health policy, trade policy and energy policy.

In social policy the EU has the task of ensuring that the benefits of economic 
integration are not only felt by those active in the economy, but also shape the 
social dimension of the single market. One of the starting points for this has 
been the introduction of a social security system for migrant workers. Under 
this system, workers who have worked in more than one Member State, and 
therefore fallen under different social insurance schemes, will not suffer a disad-
vantage with regard to their social security (old-age pension, invalidity pension, 
health  care,  family  benefits,  unemployment  benefits).  A  further  priority  task 
of social policy, in view of the unemployment situation in the EU, which has 
been a source of concern for a number of years, has been the need to devise a 
European employment strategy. This calls on the Member States and the EU to 
develop a strategy for employment and particularly to promote a skilled, trained 
and adaptable workforce, in addition to which labour markets should also be 
made adaptable to economic change. Employment promotion is re garded as a 
matter of common concern, and requires Member States to coordinate their 
national measures within the Council. The EU will contribute to a high level of 
employment by encouraging cooperation between Member States and, if neces-
sary, complementing their action while respecting their competences.

With regard to the actual area of politics, the EU has tasks in the areas of 
Union  citizenship,  policy  on  judicial  cooperation  in  criminal  matters  and 
common foreign and security policy. Union citizenship has further strength-
ened the rights and interests of nationals of the Member States within the 
EU.  Citizens  enjoy  the  right  to  move  freely  within  the  Union  (Article  21 
TFEU), the right to vote and stand as a candidate in local elections (Article 22 

036

T h e A B C  O F e U R O Pe A N U N I O N L AW

TFEU), entitlement to protection by the diplomatic and consular authorities 
of any Member State (Article 23 TFEU), the right to petition the European 
Parliament (Article 24 TFEU) and, in the context of the general ban on dis-
crimination, the right to be treated by all Member States in the same way as 
they treat their own nationals (Article 20(2) in conjunction with Article 18 
TFEU). With respect to common foreign and security policy, the EU has, in 
particular, the tasks of:

■■

safeguarding  the  commonly  held  values,  fundamental  interests  and 
 independence of the EU;

■■

strengthening the security of the EU and its Member States;

■■

securing world peace and increasing international security;

■■

promoting international cooperation;

■■

promoting  democracy  and  the  rule  of  law,  and  safeguarding  human 
rights and basic freedoms;

■■

establishing a common defence.

Since the EU is not an individual state, these tasks can only be carried out 
step by step. Traditionally, foreign and especially security policy are areas in 
which the Member States are particularly keen to retain their own (national) 
sovereignty. Another reason why common interests in this area are difficult 
to define is that only France and the United Kingdom have nuclear weapons. 
Another problem is that some Member States are not in NATO or the WEU. 
Most ‘common foreign and security policy’ decisions are therefore still cur-
rently taken on the basis of cooperation between states. In the meantime, 
however, a range of tools has emerged in its own right, thus giving cooper-
ation between states a firm legal framework.

In the area of judicial cooperation in criminal matters, the main role of the 
EU is to carry out tasks that are in the interests of Europe as a whole. These 
include,  in  particular,  combating  organised  crime,  preventing  trafficking  in 
human beings and prosecuting criminal offences. Since organised crime can no 
longer be effectively countered at national level, a joint response at EU level is 
needed. Two very positive steps have already been taken with the directive on 
money-laundering and the creation of a European police authority, Europol, 
which has been operational since 1998 (Article 88 TFEU). This cooperation 

037

T h e  A B C  O F e U R O Pe A N U N I O N L AW

is also concerned with facilitating and accelerating cooperation in relation to 
proceedings and the enforcement of decisions, facilitating extradition between 
Member States, establishing minimum rules relating to the constituent elem-
ents of criminal acts and to penalties in the fields of organised crime, terror-
ism, trafficking in human beings and the sexual exploitation of women and 
children, illicit drug trafficking and illicit arms trafficking, money-laundering 
and corruption (Article 83 TFEU). One of the most significant advances in 
EU judicial cooperation was the creation of Eurojust in April 2003 (Article 85 
TFEU). Based in The Hague, Eurojust is a team of magistrates and prosecutors 
from all EU countries. Its job is to help coordinate the investigation and prose-
cution of serious cross-border crimes. From Eurojust the Council may establish 
a European Public Prosecutor’s Office in order to combat crimes affecting the 
financial interests of the Union (Article 86 TFEU). Further progress has been 
made with the European arrest warrant, which has been valid throughout the 
EU since January 2004. The warrant can be issued for anyone accused of an 
offence for which the minimum penalty is more than one year in prison. The 
European arrest warrant is designed to replace lengthy extradition procedures.

the powers oF the eu

The  Treaties  establishing  the  EU  do  not  confer  on  the  Union  institutions 
any general power to take all measures necessary to achieve the objectives of 
the Treaty, but lay down in each chapter the extent of the powers to act. As 
a basic principle, the EU and its institutions do not have the power to decide 
on their legal basis and competencies; the principle of specific conferment of 
powers (Article 2 TFEU) continues to apply. This method has been chosen 
by the Member States in order to ensure that the surrender of their own 
powers can be more easily monitored and controlled.

The  range  of  matters  covered  by  the  specific  conferment  of  powers  varies 
according to the nature of the tasks allotted to the EU. Competences which 
have not been transferred to the EU remain in the exclusive power of the 
Member States. The EU Treaty explicitly states that matters of national se-
curity stay under the exclusive authority of the Member States.

This naturally begs the question of where the dividing line is between EU 
competences and those of the Member States. This dividing line is drawn on 
the basis of three categories of competence:

038

T h e A B C  O F e U R O Pe A N U N I O N L AW

■■

■■

exclusive competence of the EU (Article 3 TFEU) in areas where it can 
be assumed that a measure at EU level will be more effective than a 
measure in any Member State that is not coordinated. These areas are 
clearly set out and comprise the customs union, the establishing of the 
competition  rules  necessary  for  the  functioning  of  the  internal  mar-
ket, the monetary policy of the euro States, the common commercial 
policy and parts of the common fisheries policy. In these policy areas 
only the European Union may legislate and adopt legally binding acts, 
the Member States being able to do so themselves only if so empow-
ered by the European Union or for the implementation of Union acts 
 (Article 2(1) TFEU);

shared competence between the EU and the Member States (Article 4 
TFEU) in areas where action at European level will add value over ac-
tion by Member States. There is shared competence for internal market 
rules, economic, social and territorial cohesion, agriculture and fisher-
ies,  environment,  transport,  trans-European  networks,  energy  supply 
and the area of freedom, security and justice, and also for common safe-
ty concerns in public health matters, research and technological devel-
opment, space, development cooperation and humanitarian aid. In all 
these areas the EU can exercise competence first, but only with regard 
to matters laid down in the relevant Union instrument, and not to the 
entire policy area. The Member States exercise their competence to the 
extent that the EU has not exercised, or has decided to cease exercising, 
its competence (Article 2(2) TFEU). The latter situation arises when the 
relevant EU institutions decide to repeal a legislative act, in particular 
to respect the principles of subsidiarity and proportionality. The Coun-
cil may, on the initiative of one or more of its members, request that the 
Commission submit proposals for repealing a legislative act;

■■

competence to carry out supporting action (Article 6 TFEU). The EU’s 
competence to carry out supporting action is limited to coordinating or 
providing complementary action for the action of the Member States; 
the EU cannot harmonise national law in the areas concerned (Article 
2(5) TFEU). Responsibility for drafting legislation therefore continues 
to lie with the Member States, which thus have considerable freedom 
to act. The areas covered by this category of competence are protec-
tion  and  improvement  of  human  health,  industry,  culture,  tourism, 
education, youth, sport and vocational training, civil protection and 

039

T h e  A B C  O F e U R O Pe A N U N I O N L AW

administrative cooperation. In the areas of employment and economic 
policy, the Member States explicitly acknowledge the need to coord-
inate national measures within the EU.

It should be noted that the EU’s competences in the area of coordination of 
economic and employment policy and in the area of common foreign and se-
curity policy do not fall under any of these three categories, and therefore do 
not belong to this set of competences. However, a declaration is made stating 
that the EU’s common foreign and security policy will not affect the Mem-
ber States’ competence for their own foreign policy and national standing in 
the world. In addition to these special powers to act, the Union Treaties also 
confer on the institutions a power to act when it is essential for the operation 
of  the  single  market  or  for  ensuring  undistorted  competition  (see  Article 
352 TFEU — dispositive powers or flexibility clause). These articles do not, 
however, confer on the institutions any general power enabling them to carry 
out tasks which lie outside the objectives laid down in the Treaties, and the 
Union institutions cannot extend their powers to the detriment of those of 
the Member States. In practice, the possibilities afforded by this power were 
used  very  often  in  the  past,  since  the  EU  was  over  time  faced  repeatedly 
with new tasks that were not foreseen at the time the founding Treaties were 
concluded, and for which accordingly no appropriate powers were conferred 
in the Treaties. Examples are the protection of the environment and of con-
sumers or the establishment of the European Regional Development Fund 
as a means of closing the gap between the developed and underdeveloped 
regions of the EU. Now, however, specific jurisdiction has been given in the 
abovementioned fields. These specific provisions have meant that the prac-
tical importance of the dispositive powers has very much declined. 

The exercise of these powers requires the approval of the European Parlia-
ment. Finally, there are further powers to take such measures as are indis-
pensable  for  the  effective  and  meaningful  implementation  of  powers  that 
have already been expressly conferred (implied powers). These powers have 
acquired a special significance in the conduct of external relations. They en-
able the EU to assume obligations towards non-member countries or other 
international organisations in fields covered by the list of tasks entrusted to 
the EU. An outstanding example is provided by the Kramer case ruled on 
by the Court of Justice. This case concerned the EU’s capacity to cooperate 
with  international  organisations  in  fixing  fishing  quotas  and,  where  con-
sidered appropriate, to assume obligations on the matter under international 

0 4 0

T h e A B C  O F e U R O Pe A N U N I O N L AW

law. Since there was no specific provision laid down in the Treaty, the Court 
inferred the necessary external competence of the EU from its internal com-
petence for fisheries policy under the common agricultural policy. 

However, in the exercise of these powers, the EU is governed by the subsidi-
arity principle, taken over from Roman Catholic social doctrine, which has 
acquired virtually constitutional status through being embodied in the EU 
Treaty (Article 5(3)). There are two facets to it: the affirmative statement that 
the EU must act where the objectives to be pursued can be better attained at 
the Union level, which enhances its powers; and the negative statement that 
it must not act where objectives can be satisfactorily attained by the Mem-
ber States acting individually, which constrains them. What this means in 
practice is that all Union institutions, but especially the Commission, must 
always demonstrate that there is a real need for common rules and common 
action. To paraphrase Montesquieu, when it is not necessary for the EU to 
take action, it is necessary that it should take none. If the need for Union 
rules  is  demonstrated,  the  next  question  that  arises  concerns  the  intensity 
and  the  form  that  they  should  take.  The  answer  flows  from  the  principle 
of proportionality that has entered Union law through the decisions of the 
Court of Justice of the European Union, and is established in the EU Treaty 
in conjunction with the competence provisions (Article 5(4)). It means that 
the need for the specific legal instrument must be thoroughly assessed to see 
whether there is a less constraining means of achieving the same result. The 
main conclusion to be reached in general terms is that framework legislation, 
minimum standards and mutual recognition of the Member States’ existing 
standards should always be preferred to excessively detailed legal provisions.

National  parliaments  can  also  now  check  compliance  with  the  principles  of 
subsidiarity and proportionality. For this purpose, an early warning system has 
been  introduced,  allowing  national  parliaments  to  issue  a  reasoned  position 
within eight weeks following transmission of the legislative proposal, setting 
out why the legislative proposal in question does not meet the subsidiarity and 
proportionality requirements. If this reasoned position is supported by at least 
a third of the votes allocated to the national parliaments (where each national 
parliament  has  two  votes,  or,  in  the  case  of  chamber  systems,  one  vote  per 
chamber), the legislative proposal must be reviewed again by the institution 
that issued it (usually the Commission). Following this review, the proposal 
can be retained, amended or withdrawn. If the European Commission decides 
to retain the draft, it must issue a reasoned opinion, stating why it considers 

0 41

T h e  A B C  O F e U R O Pe A N U N I O N L AW

the draft to follow the subsidiarity principle. This reasoned opinion is sent to 
the EU legislator together with the reasoned opinions of the national parlia-
ments so that they can be taken into account in the legislative procedure. If, by 
a 55 % majority of the Members of the Council of the EU or by a majority of 
the votes cast in the European Parliament, the EU legislator is of the opinion 
that the proposal does not comply with the subsidiarity principle, the legisla-
tive proposal is not examined any further.

the iNstitutioNs oF the eu

Article 13 of the TEU (institutional framework)

1. The Union shall have an institutional framework which shall aim to 

promote its values, advance its objectives, serve its interests, those of 

its citizens and those of the Member States, and ensure the consistency, 

effectiveness and continuity of its policies and actions.

The Union’s institutions shall be:

— the European Parliament,

— the European Council,

— the Council,

—  the European Commission (hereinafter referred to as  

‘the Commission’),

— the Court of Justice of the European Union,

— the European Central Bank,

— the Court of Auditors.

2. Each institution shall act within the limits of the powers conferred on 

it in the Treaties, and in conformity with the procedures, conditions and 

objectives set out in them. The institutions shall practise mutual sincere 

cooperation.

3. The provisions relating to the European Central Bank and the Court of 

Auditors and detailed provisions on the other institutions are set out in 

the Treaty on the Functioning of the European Union.

4. The European Parliament, the Council and the Commission shall be 

assisted by an Economic and Social Committee and a Committee of the 

regions acting in an advisory capacity.

0 42

ovERvIEw of THE EU InSTITUTIonS, ACCoRdInG To THE TfEU

EURoPEAn CoUnCIL
27 Heads of State or Government, President of the European 
Council and President of the Commission

CoUnCIL 
27 Ministers  
(one per Member State)

EURoPEAn  
PARLIAMEnT
751 Members ( 2 )

EURoPEAn CoMMISSIon
27 Members (until 2014)

CoMMITTEE of  
THE REGIonS
350 Members (maximum)

EURoPEAn EConoMIC And 
SoCIAL CoMMITTEE
350 Members (maximum)

CoURT of JUSTICE of THE 
EURoPEAn UnIon

EURoPEAn 
CEnTRAL  
BAnK

CoURT of 
AUdIToRS
27 Members
(one per  
Member State)

EURoPEAn 
InvESTMEnT  
BAnK

( 2 ) When the Lisbon Treaty came into force on 1 December 2009, the number of 
Members was increased temporarily to 754. However, the maximum of 751 
must be restored by the next elections of 2014. 

T h e  A B C  O F e U R O Pe A N U N I O N L AW

MeMber State

GERMAny

fRAnCE

ITALy

UnITEd KInGdoM

SPAIn

PoLAnd

RoMAnIA

nETHERLAndS

BELGIUM

CzECH REPUBLIC

GREECE

HUnGARy

PoRTUGAL

SwEdEn

BULGARIA

AUSTRIA

dEnMARK

SLovAKIA

fInLAnd

IRELAnd

LITHUAnIA

LATvIA

SLovEnIA

ESTonIA

CyPRUS

LUxEMBoURG

MALTA

VoteS in the 
CounCil

SeatS in the  
european parliaMent

29

29

29

29

27

27

14

13

12

12

12

12

12

10

10

10

7

7

7

7

7

4

4

4

4

4

3

99

78

78

78

54

54

35

27

24

24

24

24

24

19

18

18

14

14

14

13

13

9

7

6

6

6

5

Another question arising in connection with the constitution of the Euro-
pean  Union  is  that  of  its  organisation.  What  are  the  institutions  of  the 
Union? Since the EU exercises functions normally reserved for States, does it 
have a government, a parliament, administrative authorities and courts like 
those with which we are familiar in the Member States? Action on the tasks 
assigned to the EU and the direction of the integration process was inten-
tionally not left to Member States or to international cooperation. The EU 

0 4 4

T h e A B C  O F e U R O Pe A N U N I O N L AW

has an institutional system that equips it to give new stimuli and objectives 
to the unification of Europe and to create a body of law that is uniformly 
devised and binding in all the Member States in the matters falling within 
its responsibility.

The main players in the EU institutional system are the EU institutions — 
the European Parliament, the European Council, the Council, the European 
Commission,  the  Court  of  Justice  of  the  European  Union,  the  European 
Central  Bank  and  Court  of  Auditors.  The  ancillary  bodies  in  the  institu-
tional system of the EU are the European Investment Bank, the European 
Economic and Social Committee and the Committee of the Regions.

The insTiTuTions

The european Parliament (article 14 teU)

The European Parliament represents the peoples of the EU Member States. 
It is an amalgamation of the ECSC Joint Assembly, the EEC Assembly and 
the Euratom Assembly, which were combined to form an ‘assembly’ under 
the  1957  Convention  on  Certain  Institutions  Common  to  the  European 
Communities (‘first merger Treaty’). The name was not officially changed 
to ‘European Parliament’ until the EC Treaty was amended by the Treaty 
on European Union, although this step merely reflected what was already 
common  usage  dating  back  to  the  Assembly’s  own  change  of  its  name  to 
‘European Parliament’ in 1958.

Composition and election

Since the entry into force of the Lisbon Treaty on 1 December 2009, the 
European Parliament has had 754 seats. This exceeds the maximum of 751 
Members laid down in the TEU (Article 14(2)), but must be accepted for 
the 2009–14 legislative period, as the MEPs elected in June cannot lose 
their seats. However, the maximum number of Members must be adhered 
to at the next elections in 2014. These are allocated to the Member States 
so  that  although  each  Member  from  a  highly  populated  Member  State 
represents more citizens than every Member from a State with a low popu-
lation, no State with a lower population has more seats than a State with 
a higher population. As a general rule, the minimum number of seats per 
Member State is six, and the maximum 96, but, owing to the late entry 

0 45

T h e  A B C  O F e U R O Pe A N U N I O N L AW

into force of the Lisbon Treaty, an exception has been made for Germany 
in  the  2009–14  legislative  period,  permitting  it  to  continue  to  have  99 
Members (MEPs elected in June 2009 cannot lose their seats because of 
the entry into force of the Lisbon Treaty) .

The  exact  composition  has  yet  to  be  determined  by  the  Council.  This 
should  have  been  done  in  time  for  the  direct  elections  to  the  European 
 Parliament in June 2009. However, since the Lisbon Treaty did not enter 
into force before the elections in June 2009, the new rules on the composi-
tion  of  the  European  Parliament  could  not  be  applied  to  the  2009–14 
 legislative  period.  Instead,  the  distribution  of  seats  resulting  from  the 
accession  of  Bulgaria  and  Romania  applied  for  these  elections  to  the 
European  Parliament. Upon the entry into force of the Lisbon Treaty on 
1 December 2009, the number of Members rose by 18 to 754, with the 
new Members coming from 12 different Member States.

The  composition  of  the  European  Parliament  is  shown  in  graphic  form 
below; this is the situation in the current 2009–14 legislative period. The 
changes brought about by the Lisbon Treaty are indicated.

PRESIdEnT

14 vice-Presidents

5 Quaestors (advisory)

The President, Vice-Presidents and Quaestors make up the Bureau, which is 
elected by Parliament for terms of two and a half years. Another body, the 
Conference of Presidents, also includes the chairs of the political groups. It is 
responsible for the organisation of Parliament’s work, and relations with the 
other EU institutions and with non-Union institutions.

0 4 6

T h e A B C  O F e U R O Pe A N U N I O N L AW

PARLIAMEnT PLEnARy SESSIon wITH 754 MEMBERS

MeMber State

SeatS in the european parliaMent

GERMAny

fRAnCE

ITALy

UnITEd KInGdoM

SPAIn

PoLAnd

RoMAnIA

nETHERLAndS

BELGIUM

CzECH REPUBLIC

GREECE

HUnGARy

PoRTUGAL

SwEdEn

BULGARIA

AUSTRIA

dEnMARK

SLovAKIA

fInLAnd

IRELAnd

LITHUAnIA

LATvIA

SLovEnIA

ESTonIA

CyPRUS

LUxEMBoURG

MALTA

99

72 + 2

72 + 1

72 + 1

50 + 4

50 + 1

33

25 + 1

22

22

22

22

22

18 + 2

17 + 1

17 + 2

13

13

13

12

12

8 + 1

7 + 1

6

6

6

5 + 1

Up to 1979, representatives in the European Parliament were selected from the 
membership of national parliaments and delegated by them to the European 
Parliament. The direct general election of MEPs by the peoples of the Member 
States was provided for in the Treaties themselves, but the first direct elections 
were not held until June 1979, a number of earlier initiatives having been fruit-
less. Elections are now held every five years, which corresponds to the length of 
a ‘legislative period’. Following decades of efforts, a uniform electoral procedure 
was finally introduced by the act concerning the election of representatives of 

0 47

T h e  A B C  O F e U R O Pe A N U N I O N L AW

the European Parliament by direct universal suffrage of 20 September 1976, as 
last amended by Council decision of 25 June and 23 September 2002 (known 
as the Direct Elections Act). Under this act, each Member State lays down 
its own election procedure, but must apply the same basic democratic rules: 
direct  general  election,  proportional  representation,  free  and  secret  ballots, 
minimum age (for the right to vote, this is 18 in all Member States except 
Austria,  where  the  voting  age  was  reduced  to  16),  renewable  five-year  term 
of office, incompatibilities (MEPs may not hold two offices at the same time, 
e.g. the office of judge, public prosecutor, Minister; they are also subject to the 
laws of their country, which may further limit their ability to hold more than 
one post or office), election date and equality between men and women. In 
some countries (Belgium, Greece and Luxembourg), voting is compulsory. In 
addition, a statute for Members of the European Parliament came into force 
on 14 July 2009. This new statute makes the terms and conditions of MEPs’ 
work more transparent and contains clear rules. It also introduces a uniform 
salary for all MEPs, which is paid from the EU budget.

Now that it is directly elected, Parliament enjoys democratic legitimacy and 
can truly claim to represent the citizens of the EU Member States. But the 
mere existence of a directly elected Parliament cannot satisfy the fundamental 
requirement of a democratic constitution, which is that all public autho rity 
must emanate from the people. That does not only mean that the decision-
making process must be transparent and the decision-making institutions 
representative; parliamentary control is required, and Parliament must lend 
legitimacy to the Union institutions involved in the decision-making proc-
ess. A great deal of progress has been made in this area over recent years. Not 
only have the rights of Parliament been continually extended, but the Treaty 
of Lisbon has explicitly established the obligation for EU action to adhere 
to  the  principle  of  representative  democracy.  As  a  result,  all  citizens  of 
the Union are directly represented in Parliament and entitled to participate 
actively in the EU’s democratic life. The underlying objective of this is that 
decisions at EU level are taken as openly as possible and as closely as possible 
to the citizen. The political parties at EU level are to contribute to the shap-
ing of a European identity and to articulate the will of the Union’s citizens. 
If there is any deficit to the current democratic model of the EU, it is that 
the  European  Parliament,  unlike  the  true  parliaments  in  a  parliamentary 
democracy, does not elect a government that answers to it.

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T h e A B C  O F e U R O Pe A N U N I O N L AW

Article 10 of the TEU (representative democracy)

1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State or 

government and in the Council by their governments, themselves democratically 

accountable either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union.  

Decisions shall be taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political 

awareness and to expressing the will of citizens of the Union.

However, the reason for this deficit is that, quite simply, no government in the 
normal sense exists at EU level. Instead, the functions analogous to govern-
ment provided for in the Union Treaties are performed by the Council and the 
European Commission according to a form of division of labour. Nevertheless, 
the Treaty of Lisbon gave Parliament extensive powers in respect of appoint-
ments to the Commission, ranging from election by Parliament of the Presi-
dent  of  the  Commission  on  the  recommendation  of  the  European  Council, 
to Parliament’s vote of approval of the full college of Commissioners (‘right of 
investiture’). However, Parliament has no such influence over the membership 
of the Council, which is subject to parliamentary control only insofar as each of 
its members, as a national Minister, is answerable to the national parliament.

The role of the European Parliament in the EU’s legislative process has in-
creased considerably. The raising of the co-decision procedure to the level of 
ordinary legislative procedure has, in effect, turned the European Parliament 
into a ‘co-legislator’ alongside the Council.

In the ordinary legislative procedure, Parliament can not only put forward 
amendments to legislation at various readings but also, within certain limits, 
get them accepted by the Council. Union legislation cannot be passed with-
out agreement between the Council and the European Parliament.

Traditionally, Parliament has also played a major role in the budgetary pro-
cedure. The Treaty of Lisbon further extended the budgetary powers of the 
European Parliament, stipulating that Parliament must approve the multi-

0 49

T h e  A B C  O F e U R O Pe A N U N I O N L AW

annual  financial  plan  and  giving  it  co-decision  powers  on  all  expenditure 
(compulsory and non-compulsory expenditure are no longer distinguished). 

Parliament has a right of assent to all major international agreements con-
cerning an area covered by co-decision, and to the Accession Treaties con-
cluded with new Member States laying down the conditions of admission.

The supervisory powers of the European Parliament have also grown signifi-
cantly over time. They are exercised mainly through the fact that the Commis-
sion must answer to Parliament, defend its proposals before it and present it 
with an annual report on the activities of the EU for debate. Parliament can, 
by a two-thirds majority of its members, pass a motion of censure and thereby 
compel the Commission to resign as a body (Article 234 TFEU). Several such 
motions have been put before the Parliament, but none has yet been even near 
achieving  the  required  majority.  The  resignation  of  the  Santer  Commission 
in  1999  was  triggered  by  Parliament’s  refusal  to  discharge  it  with  regard  to 
financial management; the motion of censure that had also been brought was 
unsuccessful,  although  only  by  small  margin.  Since  in  practice  the  Council 
also answers parliamentary questions, Parliament has the opportunity for dir-
ect political debate with two major institutions. These supervisory powers of 
Parliament have since been boosted. It is now also empowered to set up special 
Committees of Inquiry to look specifically at alleged cases of infringement of 
Community  law  or  maladministration.  A  committee  of  this  kind  was  used, 
for example, to look into the Commission’s responsibility for the delay in re-
sponding to ‘mad cow disease’ in the United Kingdom, which also represented 
a threat to human life and health. Also written into the Treaties is the right 
of  any  natural  or  legal  person  to  address  petitions  to  Parliament,  which  are 
then dealt with by a standing Committee on Petitions. Finally, Parliament has 
also made use of its power to appoint an Ombudsman to whom complaints 
about maladministration in the activities of Union institutions or bodies, with 
the exception of the Court of Justice, can be referred. The Ombudsman may 
conduct enquiries and must inform the institution or body concerned of such 
action, and must submit to Parliament a report on the outcome of his or her 
inquiries.

Working procedures

The basic rules governing the workings of Parliament are set out in its rules 
of procedure. 

050

T h e A B C  O F e U R O Pe A N U N I O N L AW

The MEPs form political groups. Given Parliament’s status as a Union in-
stitution, these are Union-wide party political groupings that cut across na-
tional lines.

Parliament holds its week-long plenary sessions in Strasbourg once a month, 
except in August. Additional sessions may also be held, particularly in con-
nection with the budget. Shorter sessions (lasting one or two days) are held 
in Brussels. Lastly, emergency sessions may be convened to deal with current 
major  issues,  enabling  Parliament  to  set  out  its  position  without  delay  on 
matters of importance (such as Union affairs, international affairs, violations 
of human rights). All plenary sessions are open to the public.

politiCal GroupS in the european parliaMent ( 3 ) 

non-attached Members  
31

Europe of freedom and 
democracy Group  
32

Confederal Group of the 
European United Left — 
nordic Green Left 
32

European Conservatives 
and Reformists Group 
54

Group of the Greens/
European free Alliance 
55 (+ 1)

Group of the Alliance of Liberals 
and democrats for Europe  
84 (+ 1) 

Group of the European 
People’s Party  
(Christian democrats) 
264 (+ 4)

Group of the Progressive 
Alliance of Socialists 
and democrats in the 
European Parliament 
162 (+ 5)

( 3 ) Where known, the additional 18 MEPS were allocated to political 

groups following the entry into force of the Lisbon Treaty; nominations 
for seven MEPs from France, Italy, Poland and the United Kingdom had 
not yet been made.

051

T h e  A B C  O F e U R O Pe A N U N I O N L AW

Decision-making procedures

An absolute majority of the votes cast is usually sufficient for a decision to 
be taken. As Parliament increases in importance, however, ever stricter re-
quirements are imposed with regard to MEPs’ attendance. A whole range 
of decisions may be adopted only if supported by an absolute majority of all 
Members of Parliament. Finally, any motion of censure against the Euro-
pean Commission must not only be backed by a majority of MEPs but also 
requires two thirds of the votes cast to be in favour.

perManent CoMMitteeS oF the european parliaMent

foreign Affairs Committee (with ‘Human Rights’ and ‘Security and defence’ 
subcommittees)

development Committee 

International Trade Committee 

Budgets Committee 

Budgetary Control Committee 

Economic and Monetary Affairs Committee 

Employment and Social Affairs Committee 

Environment, Public Health and food Safety Committee 

Industry, Research and Energy Committee 

Internal Market and Consumer Protection Committee 

Transport and Tourism Committee 

Regional development Committee 

Agriculture and Rural development Committee 

fisheries Committee 

Culture and Education Committee 

Legal Affairs Committee 

Civil Liberties, Justice and Home Affairs Committee 

Constitutional Affairs Committee 

women’s Rights and Gender Equality Committee 

Petitions Committee 

seat

The  European  Council  decided  that  Parliament’s  seat  was  to  be  in  Stras-
bourg  and  thus  ended  the  provisional  status  of  an  arrangement  that  had 
been in place for 30 years. It had become established practice for plenary 

052

T h e A B C  O F e U R O Pe A N U N I O N L AW

sessions  to  be  held  in  Strasbourg  and  Brussels,  meetings  of  the  political 
groups and committees to be held in Brussels during weeks when Parlia-
ment was not sitting, and for Parliament’s Secretariat-General to be based 
in Luxembourg. The Council’s decision on the location of the seats of the 
institutions  confirmed  the  validity  of  these  arrangements,  subject  to  the 
proviso that the 12 periods of monthly plenary sessions should be held in 
Strasbourg. The unsatisfactory result of this decision is that MEPs and some 
Parliament  officials  and  employees  must  commute  between  Strasbourg, 
Brussels and Luxembourg — a very costly business.

The european Council (article 15 teU)

The European Council grew out of the summit conferences of EU Heads of 
State or Government. At the Paris Summit in December 1974 it was decided 
that meetings should be held three times a year and described as the Euro-
pean Council. Since then, the European Council has become an independ-
ent body of the European Union (Article 13 TEU).

The Heads of State or Government and the President of the European Com-
mission meet at least twice every half a year in this context. When the ques-
tions under discussion so demand, the Members of the European Council 
can decide to seek the support of a Minister and, in the case of the President 
of the Commission, of one Member of the European Commission to assist 
them in their work (Article 15(3) TEU).

The Treaty of Lisbon created the office of President of the European Coun-
cil (4). The President of the European Council, unlike the Presidency up to 
now, has a European mandate, not a national one, running for two and a 
half years on a full-time basis. The person appointed President should be an 
outstanding personality, selected by qualified-majority voting of the Mem-
bers of the European Council. Re-election is possible once. The President’s 
tasks comprise the preparation and follow-up of European Council meetings 
and representing the EU at international summits in the area of foreign and 
security policy.

(4) Herman van Rompuy, at that time the Prime Minister of Belgium, was nominated as the first President of 

the European Council and took up office on 1 December 2009.

053

T h e  A B C  O F e U R O Pe A N U N I O N L AW

The actual function of the European Council itself is to establish the gen-
eral policy guidelines for EU action. It does so by taking basic policy deci-
sions and issuing instructions and guidelines to the Council or the Euro-
pean  Commission.  The  European  Council  has  in  this  way  directed  work 
on economic and monetary union, the European Monetary System, direct 
elections to Parliament and a number of accession issues.

The Council (article 16 teU)

CoMpoSition

one representative of each Member State Government at ministerial 
level, with composition varying according to the subject discussed,  
i.e. either the ‘General Affairs and External Relations Council’ or  
the other eight ‘sectoral Councils’

Permanent Representatives 
Committee ‘Coreper I and II’

Special Committee for 
Agriculture

working parties

General Secretariat (approximately 2 200 officials)

Tasks

drawing up 
legislation

Coordination of 
macroeconomic policy

Budget

Appointments

External relations

Application of  
the EU Treaty

054

T h e A B C  O F e U R O Pe A N U N I O N L AW

Composition and Presidency

The Council is made up of representatives of the governments of the Mem-
ber States. All 27 Member States send one representative — as a rule, though 
not necessarily, the departmental or junior minister responsible for the mat-
ters under consideration. It is important that these representatives are em-
powered to act with binding effect on their governments. The very fact that 
governments may be represented in various ways obviously means that there 
are no permanent members of the Council; instead, the representatives sit-
ting in the Council meet in nine different configurations depending on the 
subjects under discussion. These are: (1) ‘General Affairs and External Rela-
tions Council’: as the ‘General Affairs Council’, this Council coordinates 
the work of the Council in its various configurations and, together with the 
President  of  the  European  Council  and  the  European  Commission,  pre-
pares the European Council meetings; as the ‘Foreign Affairs Council’, it 
handles the EU’s action abroad in accordance with the strategic guidelines 
of the European Council and ensures that the EU’s action is consistent and 
coherent. The ‘General Affairs and External Relations Council’ is made up 
of the Foreign Ministers; its general affairs meetings are chaired by the rul-
ing Presidency, and those on foreign affairs are chaired by the High Rep-
resentative of the Union for Foreign Affairs and Security Policy. There are 
eight further Council formations attended by the Ministers from the Mem-
ber States responsible for the areas concerned: (2) ‘Economic and Financial 
Affairs’ (commonly known as the Ecofin Council), (3) ‘Cooperation in the 
fields of Justice and Home Affairs’, (4) ‘Employment, Social Policy, Health 
and Consumer Affairs’, (5) ‘Competitiveness’, (6) ‘Transport, Telecommu-
nications and Energy’, (7) ‘Agriculture and Fisheries’, (8) ‘Environment’ and 
(9) ‘Education, Youth and Culture’. 

The Presidency of the Council — with the exception of the Council of For-
eign Ministers, which is chaired by the High Representative of the Union 
for  Foreign  Affairs  and  Security  Policy—  is  held  by  each  Member  State 
in turn for six months. The order in which the office of President is held 
is  decided  unanimously  by  the  Council.  The  Presidency  changes  hands 
on 1 January and 1 July each year (2008: Slovenia and France; 2009: the 
Czech Republic and Sweden; 2010: Spain and Belgium; 2011: Hungary and 
Poland;  2012:  Denmark  and  Cyprus;  2013:  Ireland  and  Lithuania,  etc.). 
Given this fairly rapid ‘turnover’, each Presidency bases its action on a work 
programme agreed with the next two Presidencies and therefore valid for a 

055

20 July 1979, Strasbourg. 
Simone Veil becomes the President of  
the first European Parliament, elected by 
universal suffrage.

T h e A B C  O F e U R O Pe A N U N I O N L AW

period of 18 months (‘team Presidency’). The Presidency is mainly respon-
sible for overall coordination of the work of the Council and the committees 
providing it with input. It is also important in political terms in that the 
Member State holding the EU Presidency enjoys an enhanced role on the 
world stage, and small Member States in particular are thus given an op-
portunity to rub shoulders with the ‘major players’ and make their mark in 
European politics.

The seat of the Council is in Brussels.

Tasks

The top priority of the Council is legislation, which it carries out together 
with Parliament in the co-decision process. The Council is also respon-
sible for ensuring coordination of the economic policies of the Member 
States. It also establishes the budget on the basis of a preliminary draft 
from  the  Commission,  although  this  must  still  be  approved  by  Parlia-
ment.  In  addition,  it  issues  a  recommendation  to  Parliament  on  giving 
discharge  to  the  Commission  in  respect  of  the  implementation  of  the 
budget, and is responsible for appointing the members of the Court of 
Auditors, the European Economic and Social Committee and the Com-
mittee of the Regions. The Council is also is responsible for concluding 
agreements between the EU and non-member countries or international 
organisations.

Working procedures

The Council’s working procedures are set out in detail in its rules of pro-
cedure. In practice, the Council’s activities are basically made up of three 
stages, as follows.

Preparation for Council meetings

Preparatory  work  for  Council  meetings  is  carried  out  by  two  permanent 
bodies  within  its  organisational  structure:  the  Permanent  Representatives 
Committee and the General Secretariat.

The Permanent Representatives Committee, which is referred to as Coreper, 
a contraction of its French title Comité des représentants permanents, prepares 
the ground for the Council’s work and performs the tasks assigned to it by 

057

T h e  A B C  O F e U R O Pe A N U N I O N L AW

the Council. To enable it to carry out all these tasks, it is divided up into 
Coreper I (comprising the Deputy Permanent Representatives and primarily 
responsible for preparatory work on more technical matters dealt with by the 
various  Councils)  and  Coreper  II  (comprising  the  Permanent  Representa-
tives themselves and basically responsible for all policy matters). Agriculture 
is the one area not subject to this division of tasks; a Special Committee on 
Agriculture (SCA, also known by its French abbreviation CSA — Comité 
spécial de l’Agriculture) was set up in 1960 and assumed Coreper’s tasks on 
agricultural matters.

Preparations for Council meetings by Coreper and the SCA are of two kinds. 
Firstly, efforts are made to reach agreement at committee level, in connection 
with which the committees can draw on the assistance of around 100 per-
manent sector-specific working parties within the Council. They may also 
call on the services of ‘ad hoc groups’, which are assigned to deal with a par-
ticular problem within a specified period. Secondly, preparatory work must 
ensure that the issues to be discussed and decided on at Council meetings 
have been worked out in advance, and that the Council members are prop-
erly briefed. These dual approaches are reflected in the agenda of meetings: 
issues on which it was possible to reach agreement are referred to as ‘A items’ 
and those questions which are undecided and need to be discussed further 
are known as ‘B items’.

The  General  Secretariat  provides  administrative  assistance  to  the  Council 
(and also to Coreper and the SCA). In particular, it handles the technical 
side of preparations for meetings of the Council, is in charge of providing 
interpretation  facilities  (the  representatives  of  the  Member  States  speak  in 
their  own  language),  ensures  that  any  required  translations  are  provided, 
provides legal advice to the Council and the committees, and administers 
the Council’s budget.

Meetings of the Council

Meetings of the Council are convened by its President (the representative of 
the Member State holding the Presidency of the Council or the High Rep-
resentative of the Union for Foreign Affairs and Security Policy) on his or 
her own initiative, at the request of one of its members or at the request of 
the European Commission. The President draws up a provisional agenda for 
each meeting, consisting of a Part A and a Part B. 

058

T h e A B C  O F e U R O Pe A N U N I O N L AW

The Council only discusses and reaches decisions on documents and drafts 
which are available in the 23 official languages (Bulgarian, Czech, Dan-
ish,  Dutch,  English,  Estonian,  Finnish,  French,  German,  Greek,  Hun-
garian,  Irish,  Italian,  Latvian,  Lithuanian,  Maltese,  Polish,  Portuguese, 
Romanian,  Slovak,  Slovenian,  Spanish  and  Swedish).  If  a  matter  is  ur-
gent, this rule may be dispensed with by unanimous agreement. This also 
applies to proposals for amendments tabled and discussed in the course 
of a meeting.

Meetings at which the Council discusses or votes on legislative proposals are 
open to the public. In practice, this means that the meetings are transmitted 
to rooms with a live audiovisual feed in the Council building.

It is in the Council that the individual interests of the Member States and 
the Union interest are balanced. Even though the Member States primarily 
defend  their  own  interests  in  the  Council,  its  members  are  at  the  same 
time obliged to take into account the objectives and needs of the Union as 
a whole. The Council is a Union institution and not an Intergovernmen-
tal  Conference.  Consequently  it  is  not  the  lowest  common  denominator 
between the Member States that is sought in the Council’s deliberations, 
but rather the right balance between the Union’s and the Member States’ 
interests.

Decision-making procedures

Under  the  EU  Treaties,  majority  voting  is  applied  in  the  Council  —  as  a 
general rule, a qualified majority is sufficient (Article 16(3) TEU). A sim-
ple majority, where each Council member has one vote, is applied only in 
individual cases and in less sensitive areas. (A simple majority is therefore 
currently achieved with 14 votes). 

The methods for calculating the qualified majority  will change in various 
stages.

Up until 1 November 2014, the weighted voting system introduced by the 
Treaty of Nice and giving large Member States more influence will be used. 
Under this system, a qualified majority is achieved when there is a majority 
of Member States with at least 255 votes out of 345, although one Member 
State can also demand that these Member States represent at least 62 % of 
the EU population. 

059

T h e  A B C  O F e U R O Pe A N U N I O N L AW

Since 1 January 2007 the number of votes each Member State can cast has 
been as follows.

WeiGhtinG oF VoteS

GERMAny

fRAnCE

ITALy

UnITEd KInGdoM

SPAIn

PoLAnd

RoMAnIA

nETHERLAndS

BELGIUM

CzECH REPUBLIC

GREECE

HUnGARy

PoRTUGAL

BULGARIA

29

29

29

29

27

27

14

13

12

12

12

12

12

10

AUSTRIA

SwEdEn

dEnMARK

IRELAnd

LITHUAnIA

SLovAKIA

fInLAnd

ESTonIA

CyPRUS

LATvIA

LUxEMBoURG

SLovEnIA

MALTA

10

10

7

7

7

7

7

4

4

4

4

4

3

On 1 November 2014 the new double majority system comes into force, un-
der which a qualified majority is achieved when at least 55 % of the Member 
States representing 65 % of the EU population vote for a legislative proposal. 
To  prevent  less  populous  Member  States  from  blocking  the  adoption  of  a 
decision, a blocking minority must consist of at least four Member States, 
and, if this number is not achieved, a qualified majority is deemed achieved 
even if the population criterion is not met. The system is complemented by a 
mechanism very similar to the ‘Ioannina compromise’: if a blocking minor-
ity is not achieved, the decision-making process can be suspended. In this 
case, the Council does not proceed with the vote, but continues negotiations 
for a reasonable period of time, if requested by Members of the Council rep-
resenting at least 75 % of the population or at least 75 % of the number of 
Member States required for a blocking minority.

From 1 April 2017 the same mechanism will apply, but the percentages for 
the establishment of a blocking minority will change to at least 55 % of the 
population or at least 55 % of the number of Member States. The Coun-
cil  can  amend  this  system  de  jure  by  a  simple  majority.  However,  one  of 
the proto cols stipulates that negotiations must first be held in the European 
Council, and that any decision made in that regard must be unanimous.

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T h e A B C  O F e U R O Pe A N U N I O N L AW

The importance of majority voting lies not so much in the fact that it pre-
vents small States from blocking important decisions, as that it makes it pos-
sible to outvote individual large Member States. However, the ‘Luxembourg 
Agreement’ remains a major political factor, at least as far as voting practice 
is concerned. It grants the right to veto a Community measure in cases where 
a Member State considers that its vital national interests are at stake, and 
was used to solve a crisis which arose in 1965 when France, afraid that its 
national interests in the financing of the common agricultural policy were 
threatened, blocked decision-making in the Council for over six months by 
a ‘policy of the empty chair’.

In the case of decisions to be taken in especially sensitive political areas, the 
Treaties require unanimity. The adoption of a decision cannot be blocked 
by means of abstentions, however. Unanimity is still required for decisions 
on such matters as taxes, the rights and obligations of employees, amend-
ments  to  citizenship  provisions  and  determining  whether  a  Member  State 
has infringed constitutional principles, and for laying down principles and 
guidelines in the areas of common foreign and security policy or police and 
judicial cooperation in criminal matters.

The high Representative of the union for Foreign Affairs and 
security Policy (Article 18 Teu)

The High Representative of the Union for Foreign Affairs and Security Poli-
cy has not become the EU foreign minister, as planned in the constitutional 
project; however, their position within the institutional set-up has been con-
siderably  strengthened  and  expanded.  Initially,  the  office  of  High  Repre-
sentative will be merged with that of Commissioner for Foreign Affairs. This 
gives the High Representative a base in both the Council, where they hold 
the presidency of the Foreign Affairs Council, and the Commission, where 
they are Vice-President in charge of foreign affairs. The High Representative 
is appointed by the European Council, acting by a qualified majority, with 
the  agreement  of  the  President  of  the  Commission.  He  or  she  is  assisted 
by a newly created foreign service, made up of officials from the European 
Commission (5) and the General Secretariat of the Council and seconded 
representatives of the diplomatic services of the Member States.

(5) Baroness Catherine Ashton, previously the Commissioner for Trade, was appointed to this post. 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

The european Commission (article 17 teU)

CoMpoSition

27 Members 
including President
first vice-President: High Representative of  
the Union for foreign Affairs and Security Policy
6 vice-Presidents

It was originally agreed that from 2014 the European Commission would 
no longer have a representative from each Member State, but would have a 
number of Members corresponding to two thirds of the number of Member 
States, i.e. for the current total of 27 Member States, the number of Mem-
bers of the Commission in 2014 would be 18. To this end, a rotation system 
would be introduced to ensure that there would be a Commissioner from 
each Member State in two out of any three consecutive Commission periods 
of office. However, the European Council was given the power to change 
this composition by unanimous vote, and it notified its intention to do so in 
the conclusions of its meeting of 18 and 19 June 2009 in Brussels. At that 
meeting, the European Council agreed to take a decision following the entry 
into force of the Lisbon Treaty and in accordance with the necessary legal 
procedures, under which the Commission will continue to have a national 
from every Member State. This met one of the basic requirements set by Ire-
land when it organised its second referendum on the Lisbon Treaty.

Composition

The  Commission  is  headed  by  a  President  who  is  assisted  by  seven  Vice-
Presidents, including the High Representative of the Union for Foreign Af-
fairs and Security Policy as the first Vice-President. Over time, the President’s 
position within the Commission has been considerably strengthened. He or 
she is no longer ‘first among equals’ but enjoys a prominent position in that 
the Commission must work ‘under the political guidance’ of its President 
(Article 17 TEU). The President thus has a ‘power to provide guidance’. The 
President decides as to the internal organisation of the Commission in order 
to ensure that it acts consistently and efficiently. He or she also allocates re-
sponsibilities among the Commissioners, and may reshuffle the allocation of 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

those responsibilities during the Commission’s term of office. The President 
appoints the Vice-Presidents, and can force a Member of the Commission to 
resign. The prominent position of the President is also reflected by his or her 
membership of the European Council.

The President and Members of the Commission are appointed for a term of 
five years using the investiture procedure: the European Council, acting by 
a qualified majority, nominates the person it intends to propose for election 
by  the  European  Parliament  as  President  of  the  Commission,  taking  into 
account the majority vote of the European Parliament. The European Parlia-
ment then elects the President by a majority of its members. If the candidate 
does not obtain the required majority in Parliament, the European Council 
proposes a new candidate to Parliament within a month. The Member States 
then draw up a list of people to be nominated as Members of the Commis-
sion. This list is adopted by the Council, acting by a qualified majority and 
by common accord with the President. Once the Commission President has 
been elected by the European Parliament, the other Members of the Com-
mission  are  subject  to  a  vote  of  approval  by  Parliament.  After  approval  by 
Parliament,  the  Members  of  the  Commission  other  than  the  President  are 
formally appointed by the Council of the EU, acting by a qualified majority.

The Members of the Commission must be chosen ‘on the grounds of their 
general competence’ and be ‘completely independent in the performance of 
their duties’ (Article 17(3) TEU). They may neither seek nor take instruc-
tions from any government.

The seat of the European Commission is in Brussels.

Tasks

Tasks

Initiating
Union legislation

Monitoring observance
and proper application of 
Union law

Administering and
implementing Union 
legislation

Representing the EU in
international
organisations

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

The  Commission  is  first  of  all  the  ‘driving  force’  behind  Union  policy.  It  is 
the starting point for every Union action, as it is the Commission that has to 
present proposals and drafts for Union legislation to the Council (this is termed 
the Commission’s right of initiative). The Commission is not free to choose its 
own activities. It is obliged to act if the Union interest so requires. The Coun-
cil  (Article  241  TFEU),  the  European  Parliament  (Article  225  TFEU)  and 
a group of EU citizens acting on behalf of a citizens’ initiative (Article 11(4) 
TEU) may also ask the Commission to draw up a proposal. Since the Treaty 
of Lisbon, in the specific cases provided for by the Treaties, legislative acts may 
be adopted on the initiative of a group of Member States or of the European 
Parliament, on a recommendation from the European Central Bank or at the 
request of the Court of Justice or the European Investment Bank.

The Commission has primary powers to initiate legislation in certain areas (such 
as the Union budget, the Structural Funds, measures to tackle tax discrimin-
ation, the provision of funding and safeguard clauses). Much more extensive, 
however, are the powers for the implementation of Union rules conferred on 
the Commission by the Council and Parliament (Article 290 TFEU).

The Commission is also the ‘guardian of Union law’. It monitors the Mem-
ber States’ application and implementation of primary and secondary Union 
legislation, institutes infringement proceedings in the event of any violation 
of Union law (Article 258 TFEU) and, if necessary, refers the matter to the 
Court of Justice. The Commission also intervenes if Union law is infringed 
by any natural or legal person, and imposes heavy penalties. Over the last 
few years, efforts to prevent abuse of Union rules have become a major part 
of the Commission’s work.

Closely connected with the role of guardian is the task of representing the 
Union’s  interests.  As  a  matter  of  principle,  the  Commission  may  serve  no 
interests  other  than  those  of  the  Union.  It  must  constantly  endeavour,  in 
what often prove to be difficult negotiations within the Council, to make 
the Union interest prevail and seek compromise solutions that take account 
of that interest. In so doing, it also plays the role of mediator between the 
Member States, a role for which, by virtue of its neutrality, it is particularly 
suited and qualified.

Lastly, the Commission is — albeit to a limited extent — an executive body. 
This is especially true in the field of competition law, where the Commission 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

acts as a normal administrative authority, checking facts, granting approval 
or issuing bans and, if necessary, imposing penalties. The Commission’s pow-
ers in relation to the Structural Funds and the EU budget are similarly wide-
ranging. As a rule, however, it is the Member States themselves that have to 
ensure that Union rules are applied in individual cases. This solution chosen 
by the Union Treaties has the advantage that citizens are brought closer to 
what is still to them the ‘foreign’ reality of the European system through the 
workings and in the familiar form of their own national system.

The Commission represents the Union in international organisations and is 
in charge of the day-to-day running of Union diplomatic missions outside 
and within the EU. On the basis of powers conferred on it by the Council, 
the Commission is responsible for negotiating agreements with international 
organisations and non-member countries, including Accession Treaties with 
new Member States. The Commission represents the Union in the courts of 
the  Member  States  and  — where  necessary  together  with  the  Council  — 
before the Court of Justice.

adMiniStratiVe  StruCture oF the european CoMMiSSion

Commission
(27 Members)
(Cabinets)
Secretariat General
Legal Service
directorate-General for Communication
Bureau of European Policy Advisers

directorate-General for Economic and financial Affairs

directorate-General for Enterprise and Industry 

directorate-General for Competition

directorate-General for Employment, Social Affairs and Equal opportunities 

directorate-General for Agriculture and Rural development 

directorate-General for Energy

directorate-General for Mobility and Transport

directorate-General for the Environment

directorate-General for Climate Action

directorate-General for Research

Joint Research Centre

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

directorate-General for the Information Society and Media

directorate-General for Maritime Affairs and fisheries 

directorate-General for the Internal Market and Services

directorate-General for Regional Policy 

directorate-General for Taxation and Customs Union 

directorate-General for Education and Culture 

directorate-General for Health and Consumers 

directorate-General for Justice, freedom and Security

directorate-General for External Relations 

directorate-General for Trade 

directorate-General for development 

directorate-General for Enlargement 

EuropeAid Co-operation office

directorate-General for Humanitarian Aid (ECHo)

Eurostat

directorate-General for Human Resources and Security 

directorate-General for Informatics

directorate-General for the Budget

Internal Audit office

European Anti-fraud office

directorate-General for Interpretation 

directorate-General for Translation 

Publications office

office for Infrastructure and Logistics in Brussels

office for Infrastructure and Logistics in Luxembourg

office for the Administration and Payment of Individual Entitlements

European Personnel Selection office

The Court of Justice of the european Union (article 19 teU)

Any system will endure only if its rules are supervised by an independent 
authority. What is more, in a union of states the common rules — if they 
are subject to control by the national courts — are interpreted and applied 
differently from one state to another. The uniform application of Union law 
in all Member States would thus be jeopardised. These considerations led to 
the establishment of a Community Court of Justice in 1952, as soon as the 

0 6 6

1 November 1992. 
This photo of a suitcase on a map of Europe illustrates the free 
movement of people, introduced by the Maastricht Treaty.

T h e  A B C  O F e U R O Pe A N U N I O N L AW

first Community (the ECSC) was created. In 1957 it also then became the 

judicial body for the other two Communities (E(E)C and Euratom). Today 

it is the judicial body of the EU.

The judicial work is now carried out on three levels by:

■■

the Court of Justice as the highest instance in the Community legal 

order (Article 253 TFEU);

■■

the General Court (Article 254 TFEU);

■■

the specialised courts, which may be appointed to the General Court 

to decide on cases in particular areas (Article 257 TFEU).

Court of Justice

CoMpoSition oF  the Court oF JuStiCe  
oF the european union

27 judges
and
8 Advocates General
appointed by the Governments of the Member States 
by common accord for a term of six years

Types of proceeding

Actions for failure to fulfil 
obligations under the Treaties: 
Commission v Member State 
(Article 258 TFeU);  
Member State v Member State 
(Article 259 TFeU)

Actions for annulment and 
actions on grounds of failure 
to act brought by a Union 
institution or a Member State  
in connection with an illegal act 
or failure to act  
(Articles 263 and 265 TFeU)

Cases referred from national 
courts for preliminary rulings 
to clarify the interpretation and 
validity of Union law  
(Article 267 TFeU)

Appeals against decisions of the 
General Court (Article 256 TFeU)

0 6 8

T h e A B C  O F e U R O Pe A N U N I O N L AW

The  Court  of  Justice  currently  consists  of  27  judges  and  eight  Advocates 
General, who are appointed ‘by common accord of the Governments of the 
Member States’ for a term of six years. Each Member State sends one judge. 
In  order  to  ensure  a  degree  of  continuity,  partial  replacement  of  half  the 
judges and Advocates General takes place every three years at the beginning 
of the judicial year on 6 October. They may be reappointed.

The Court is assisted by eight Advocates General, whose term of office cor-
responds  to  that  of  the  judges;  they  enjoy  judicial  independence.  Four  of 
the  eight  Advocates  General  are  always  from  the  ‘large’  Member  States 
(Germany, France, Italy and the United Kingdom) and the other four come 
from the remaining 23 Member States on an alternating basis. The office of 
Advocate General is based on that of the Commissaire du gouvernement in 
the Council of State (Conseil d’État) and administrative courts in France. It 
must not be confused with the position of public prosecutor or similar post 
found in many countries. Advocates General were introduced in the Court 
to counterbalance the original ‘single-tier’ nature of court proceedings, i.e. 
the absence of any appeal procedures. Their task is to submit ‘opinions’ to the 
Court in the form of (non-binding) proposals for a Court decision based on 
a fully independent and non-partisan survey of the questions of law raised in 
the case concerned. The opinions are an integral part of the oral procedure 
and are published together with the judgment in the Court Reports. Advo-
cates General can only influence the judgment through the strength of the 
arguments in their opinions; they are not involved in any deliberations or 
voting on the judgment.

Selection of judges and Advocates General

The judges and Advocates General are chosen from persons whose independ-
ence  is  beyond  doubt  and  who  possess  the  qualifications  required  for  ap-
pointment to the highest judicial offices in their respective countries, or who 
are legal experts of recognised competence (Article 253 TFEU). This means 
that judges, public officials, politicians, lawyers or university lecturers from 
Member States may be appointed. The variety of professional backgrounds 
and experience are beneficial to the Court in that they help to provide as 
comprehensive an assessment as possible of both the theoretical and practi-
cal aspects of the facts and points of law that have to be considered. In all 
Member States, the choice of who should be proposed by the government for 
appointment as a judge or Advocate General, and the procedure by which 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

this is done, is a matter for the executive. The procedures differ greatly and 
range from the not very transparent to the totally impenetrable.

Assistance  is  provided  by  the  newly  created  consultative  panel  for  the 
nomination of judges, which has the task of giving an opinion on candi-
dates’ suitability to perform the duties of judge and Advocate General of 
the Court of Justice and the General Court before the governments of the 
Member  States  make  the  appointments  (Article  255  TFEU).  The  panel 
comprises seven persons chosen from among former members of the Court 
of Justice and the General Court, members of national supreme courts and 
lawyers of recognised competence, one of whom is proposed by the Euro-
pean Parliament.

Procedure

The Court sits in the following possible formations:

■■

the  full  Court  with  27  judges;  a  full  Court  decision  is  still  required 
only in impeachment proceedings and disciplinary proceedings against 
members of the Union bodies. Cases may also be referred to the full 
Court by the Court of Justice itself, but only where extremely import-
ant proceedings and matters of precedent are involved;

■■

the Grand Chamber with 13 judges;

■■

Chambers of five and three judges.

Tasks

The  Court  of  Justice  is  the  highest  and  at  the  same  time  the  sole  judicial 
authority in matters of Union law. In general terms, its task is to ‘ensure that 
in the interpretation of [the] Treaty the law is observed’.

This general description of responsibilities encompasses three main areas:

■■

monitoring the application of Union law, both by the EU institutions 
when implementing the Treaties, and by the Member States and indi-
viduals in relation to their obligations under Union law;

■■

interpretation of Union law;

■■

further shaping of Union law.

070

T h e A B C  O F e U R O Pe A N U N I O N L AW

In carrying out these tasks, the Court’s work involves both legal advice and 
adjudication. Legal advice is provided in the form of binding opinions on 
agreements which the EU wishes to conclude with non-member countries 
or international organisations. Its function as a body for the administration 
of justice is much more important, however. In exercising that function, it 
operates in matters that in the Member States would be assigned to different 
types of court, depending on their national systems. It acts as a constitution-
al court when disputes between Union institutions are before it or legislative 
instruments are up for review for legality; as an administrative court when 
reviewing the administrative acts of the Commission or of national authori-
ties applying Union legislation; as a labour court or industrial tribunal when 
dealing with freedom of movement, social security and equal opportunities; 
as a fiscal court when dealing with matters concerning the validity and inter-
pretation of directives in the fields of taxation and customs law; as a criminal 
court when reviewing Commission decisions imposing fines; and as a civil 
court when hearing claims for damages or interpreting the provisions on the 
enforcement of judgments in civil and commercial matters and in disputes 
over European intellectual property rights for which grounds for jurisdiction 
by the Court of Justice have been given (Article 262 TFEU).

The General Court

Like all courts, the Court of Justice is overburdened. The number of cases 
referred to it has increased steadily and will continue to grow, given the 
potential for disputes that has been created by the huge number of direc-
tives  which  have  been  adopted  in  the  context  of  the  single  market  and 
transposed into national law in the Member States. The signs are already 
there  that  the  Treaty  on  European  Union  has  raised  further  questions 
which  will  ultimately  have  to  be  settled  by  the  Court.  This  is  why,  in 
1988, a General Court was established to take the pressure off the Court 
of Justice.

071

T h e  A B C  O F e U R O Pe A N U N I O N L AW

CoMpoSition oF  the General Court

27 judges

appointed by the Governments of the Member States 
by common accord for a term of six years

Types of proceeding

Actions for 
annulment and 
complaints of failure 
to act filed by natural 
and legal persons 
on the grounds of 
illegality or absence 
of Union legal acts 
(Articles 263 and  
265 TFeU)

Actions for damages 
on the grounds of 
contractual or non-
contractual liability 
(Articles 268 and 
340(1) and (2) TFeU)

Appeals against 
decisions given by 
the judicial panels 
(Article 256(2) TFeU)

The General Court is not a new Union institution but rather a constituent 
component of the Court of Justice. Nevertheless, it is an autonomous body 
separate  from  the  Court  of  Justice  in  organisational  terms.  It  has  its  own 
registry  and  rules  of  procedure.  Cases  handled  by  the  General  Court  are 
identified by means of a ‘T’ (= Tribunal) (e.g. T-1/99), whilst those referred 
to the Court of Justice are coded with a ‘C’ (= Court) (e.g. C-1/99).

The General Court consists of 27 ‘members’ whose qualifications, appoint-
ment and legal status are subject to the same requirements and conditions 
as judges at the Court of Justice. Although their main function is to sit as 
‘judges’, they may also be appointed as ‘Advocates General’ on an ad hoc 
basis in cases before the full Court, or in cases before one of the Chambers if 
the facts of the case or its legal complexity require this. This facility has been 
used very sparingly up to now.

The  General  Court  sits  in  Chambers  of  five  or  three  judges  or,  in  certain 
cases, a single judge. It can also sit as a Grand Chamber (13 judges) or as a 
full Court (27 judges) if required by the legal complexity or significance of 
a case. Over 80 % of the cases before the Court are heard by a Chamber of 
three judges.

072

T h e A B C  O F e U R O Pe A N U N I O N L AW

Although  the  General  Court  was  originally  responsible  for  only  a  limited 
range of cases, it now has the following tasks.

■■

At first instance, i.e. subject to the legal supervision of the Court of 
Justice, the General Court has competence to rule on actions for an-
nulment  and  actions  for  failure  to  act  brought  by  natural  and  legal 
persons against a Union body, on an arbitration clause contained in a 
contract concluded by the EU or on its behalf, and on actions for dam-
ages brought against the EU.

■■

The General Court acts as an appeal court for cases of appeal against 
decisions given by the judicial panels.

■■

It is also planned to confer jurisdiction on the General Court for pre-
liminary  ruling  proceedings  concerning  certain  areas;  however,  this 
option has not yet been used. 

specialised courts

In  2004,  to  relieve  the  burden  on  the  Court  of  Justice  and  improve  legal 
protection in the EU, the Council of the EU attached a specialised court for 
civil service cases to the General Court.

This specialised court has taken over jurisdiction from the General Court for 
ruling at first instance in European civil service disputes.

It  consists  of  seven  judges,  who  enjoy  a  similar  status  to  members  of  the 
General Court and are appointed for a term of six years. They must have the 
ability required for appointment to judicial office. The specialised court usu-
ally sits as a panel of three judges, but can give a decision as a full panel or 
a panel of five judges, or as a single judge. Decisions of the specialised court 
are subject to a right of appeal to the General Court on points of law only. 
In turn, the First Advocate General (not the parties involved!) can propose a 
review of the decision of the General Court if the legal entity or the uniform-
ity of jurisprudence are jeopardised.

The european Central Bank (articles 129 and 130 tFeU)

The European Central Bank (ECB), based in Frankfurt-am-Main, is at the 
heart of economic and monetary union. Its task is to maintain the stability 

073

T h e  A B C  O F e U R O Pe A N U N I O N L AW

of the European currency, the euro, and control the amount of currency in 
circulation (Article 128 TFEU).

In  order  to  carry  out  this  task,  the  ECB’s  independence  is  guaranteed  by 
numerous  legal  provisions.  When  exercising  their  powers  or  carrying  out 
their tasks and duties, neither the ECB nor a national central bank may take 
instructions from Union institutions, governments of Member States or any 
other body. The EU institutions and the Member States’ governments will 
not seek to influence the ECB (Article 130 TFEU).

The  ECB  has  a  Governing  Council  and  an  Executive  Board.  The  Gov-
erning  Council  comprises  the  governors  of  the  central  banks  of  the  16 
Member States in the euro area and the members of the Executive Board 
of the ECB. The Executive Board, which is made up of the President, the 
Vice-President and four other members, is effectively in charge of running 
the ECB. Its President and members are appointed from among persons 
of recognised standing and experience in monetary or banking matters by 
common accord of the governments of the Member States, on a recom-
mendation from the Council after it has consulted the European Parlia-
ment. Their term of office is eight years, which, in the interests of ensur-
ing the independence of the Executive Board members, is not renewable 
(Article 283 TFEU).

The European System of Central Banks (ESCB) is composed of the ECB 
and  the  central  banks  of  the  Member  States  (Article  129  TFEU).  It  has 
the  task  of  defining  and  implementing  the  monetary  policy  of  the 
Union, and has the exclusive right to authorise the issue of banknotes and 
coins within the Union. It also manages the official currency reserves of 
the Member States and ensures the smooth operation of payments systems 
(Article 127(2) TFEU).

The Court of auditors (articles 285 and 286 tFeU)

The Court of Auditors was set up on 22 July 1975 and began work in Lux-
embourg in October 1977. It has since risen to the rank of Union institution 
(Article 13 TEU). It consists of 27 members, corresponding to the present 
number of Member States. They are appointed for six years by the Council, 
which approves, by qualified majority and following consultation with the 
European Parliament, a list of members drawn up in accordance with pro-

074

T h e A B C  O F e U R O Pe A N U N I O N L AW

posals from the Member States (Article 286(2) TFEU). The members elect 
the President of the Court of Auditors from among their number for a term 
of three years; the President may be re-elected.

The Court of Auditors’ task is to examine whether all revenue has been re-
ceived  and  all  expenditure  incurred  in  a  lawful  and  regular  manner  and 
whether financial management has been sound. Unlike the courts of audi-
tors or similar bodies in some Member States, it has no jurisdiction to en-
force its control measures or to investigate suspicions of irregularity arising 
from  its  investigations.  However,  it  is  wholly  autonomous  in  its  decisions 
regarding what it examines and how. It can, for instance, examine whether 
the use made of Union financial support by private individuals is in compli-
ance with Community law.

The chief weapon in its armoury is the fact that it can publicise its findings. 
The results of its investigations are summarised in an annual report at the 
end of each financial year, which is published in the Official Journal of the 
European Union and thus brought to public attention. It may also make spe-
cial reports at any time on specific areas of financial management, and these 
are also published in the Official Journal.

ADvisoRy boDies

european economic and social Committee  
(article 301 tFeU)

The purpose of the European Economic and Social Committee (EESC) is to 
give the various economic and social groups (especially employers and em-
ployees, farmers, carriers, business people, craft workers, the professions and 
managers  of small and medium-sized businesses)  representation in an EU 
institution. It also provides a forum for consumers, environmental groups 
and associations.

The EESC is made up of a maximum of 350 members (advisers), drawn from 
the most representative organisations in the individual Member States. They 
are  appointed  for  five  years  by  the  Council,  which,  acting  in  unanimity, 
adopts a list of members drawn up in accordance with the proposals made 
by each Member State.

075

T h e  A B C  O F e U R O Pe A N U N I O N L AW

The allocation of seats is as follows (6).

GERMAny

fRAnCE

ITALy

UnITEd KInGdoM

SPAIn

PoLAnd

RoMAnIA

BELGIUM

BULGARIA

CzECH REPUBLIC

GREECE

HUnGARy 

nETHERLAndS

AUSTRIA

PoRTUGAL

SwEdEn

dEnMARK

IRELAnd

LITHUAnIA

SLovAKIA

fInLAnd

ESTonIA

LATvIA

SLovEnIA

CyPRUS

LUxEMBoURG

MALTA

24

24

24

24

21

21

15

12

12

12

12

12

12

12

12

12

 9

 9

9

9

9

7

7

 7

 6

 6

 5

The members are divided up into three groups (employers, workers and other 
parties representative of civil society). Opinions to be adopted at plenary ses-
sions are drawn up by ‘study groups’ consisting of EESC members (in which 

(6) Source: Website of the European Economic and Social Committee; 344 members in March 2010. 

076

T h e A B C  O F e U R O Pe A N U N I O N L AW

their alternates may also participate as experts). The EESC also works closely 
with the committees of the European Parliament.

The EESC, which was established under the Treaties of Rome, must in cer-
tain circumstances be consulted by the Council acting on a proposal from 
the Commission. It also issues opinions on its own initiative. These opinions 
represent  a  synthesis  of  sometimes  very  divergent  viewpoints  and  are  ex-
tremely useful for the Commission and the Council because they show what 
changes  the  groups  directly  affected  by  a  proposal  would  like  to  see.  The 
EESC’s own-initiative opinions have on a number of occasions had consider-
able political implications, one example being that of 22 February 1989 on 
basic social rights in the EU, which provided the basis for the ‘Social Char-
ter’ proposed by the Commission (and adopted by 11 Member States).

Committee of the Regions (article 305 tFeU)

A new advisory body was set up alongside the EESC by the Treaty on Euro-
pean Union (Treaty of Maastricht): the Committee of the Regions (CoR). 
Like the EESC, it is not strictly an EU institution, as its function is purely 
advisory  and  it  has  no  power  to  produce  legally  binding  decisions  in  the 
same way as the fully fledged institutions (European Parliament, Council, 
European Commission, Court of Justice, Court of Auditors, European Cen-
tral Bank).

Like the EESC, the Committee of the Regions consists of a maximum of 
350 members (7). The members are representatives of regional and local au-
thorities  in  the  Member  States  who  must  have  a  mandate  based  on  elec-
tions from the authorities they represent, or must be politically accountable 
to them. The 350 seats are allocated to the Member States using the same 
weighting as for the EESC. The members are appointed for five years by the 
Council, which, acting in unanimity, adopts a list of members drawn up in 
accordance with the proposals made by each Member State. The members 
of the Committee elect a chairman from among their number for a term of 
two years.

There  are  a  number  of  areas  in  which  consultation  by  the  Council  of  the 
EU  or  the  European  Commission  is  required  (‘mandatory  consultation’): 

(7) Source: Website of the Committee of the Regions; 344 members in March 2010.

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

education; culture; public health; trans-European networks; transport, tele-
communications and energy infrastructure; economic and social cohesion; 
employment  policy  and  social  legislation.  The  Council  also  consults  the 
Committee regularly, and without any legal obligation, in connection with a 
wide range of draft legislation (‘non-mandatory consultation’). 

The euRoPeAn invesTmenT bAnk (ARTiCle 308 TFeu)

As financing agency for a ‘balanced and steady development’ of the EU, the 
Union has at its disposal the European Investment Bank (EIB), located in 
Luxembourg. The EIB provides loans and guarantees in all economic sec-
tors,  especially  to  promote  the  development  of  less-developed  regions,  to 
modernise or convert undertakings or create new jobs and to assist projects 
of common interest to several Member States.

The EIB has a tripartite structure: it is headed by the Board of Governors, 
made  up  of  the  Finance  Ministers  of  the  Member  States,  which  sets  the 
guidelines for credit policy and authorises EIB activities outside the EU. The 
Board of Governors is followed by the Board of Directors, which has 28 full 
members (one representative from each of the Member States and one from 
the European Commission) and 18 alternate members. Members are usually 
senior officials from the national finance or economic affairs ministries. The 
Board of Directors takes decisions in respect of granting loans and guaran-
tees and raising loans. It makes sure that the bank is run in accordance with 
the guidelines of the Board of Governors. The day-to-day activities of the 
EIB are run by the Management Committee, an executive of nine persons 
appointed for a period of six years.

078

T h e A B C  O F e U R O Pe A N U N I O N L AW

The legal order of the EU

The  constitution  of  the  EU  described  above,  and  particularly  the  funda-
mental values it embodies, can be brought to life and given substance only 
through Union law. This makes the EU a legal reality in two different senses: 
it is created by law and is a community based on law.

the eu  as a creatioN oF law aNd  
a commuNity based oN law

This is what is entirely new about the EU, and what distinguishes it from 
earlier attempts to unite Europe. It works not by means of force or subjuga-
tion  but  simply  by  means  of  law.  Law  is  intended  to  achieve  what  ‘blood 
and iron’ have for centuries failed to bring about. For only unity based on a 
freely made decision can be expected to last: unity founded on the funda-
mental values such as freedom and equality, and protected and translated 
into reality by law. That is the insight underlying the Treaties that created 
the European Union.

However, the EU is not merely a creation of law but also pursues its objec-
tives purely by means of law. It is a community based on law. The common 
economic and social life of the peoples of the Member States is governed not 
by the threat of force but by the law of the Union. This is the basis of the 
institutional system. It lays down the procedure for decision-making by the 
Union institutions and regulates their relationship to each other. It provides 
the institutions with the means — in the shape of regulations, directives and 
decisions  —  of  enacting  legal  instruments  binding  on  the  Member  States 
and their citizens. Thus the individuals themselves become a main focus of 
the Union. Its legal order directly affects their daily life to an ever-increasing 
extent. It accords them rights and imposes obligations on them, so that as 
citizens both of their State and of the Union they are governed by a hierarchy 
of legal orders — a phenomenon familiar from federal constitutions. Like any 
legal order, that of the EU provides a self-contained system of legal protec-
tion for the purpose of recourse to and the enforcement of Union law. Union 
law  also  defines  the  relationship  between  the  EU  and  the  Member  States. 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

The Member States must take all appropriate measures to ensure fulfilment of 
the obligations arising from the Treaties or resulting from action taken by the 
institutions of the Union. They must facilitate the achievement of the EU’s 
tasks and abstain from any measure that could jeopardise the attainment of 
the objectives of the Treaties. The Member States are answerable to the citi-
zens of the EU for any harm caused through violations of Union law.

the legal sources oF u NioN law

The term ‘legal source’ has two meanings: in its original meaning, it refers to 
the reason for the emergence of a legal provision, i.e. the motivation behind 
the creation of a legal construct. According to this definition, the ‘legal source’ 
of Union law is the will to preserve peace and create a better Europe through 
closer economic ties, two cornerstones of the EC. In legal parlance, on the 
other hand, ‘legal source’ refers to the origin and embodiment of the law.

SourCeS oF union laW

1. PRIMARy LEGISLATIon

Union Treaties — General principles of law

2. THE EU’S InTERnATIonAL AGREEMEnTS

3. SECondARy LEGISLATIon

Legislative acts
Regulations — Directives — Decisions
non-legislative acts
delegated acts — Implementing acts
other acts
Recommendations and opinions — Interinstitutional agreements —  
Resolutions, declarations and action programmes

4. GEnERAL PRInCIPLES of LAw

5. ConvEnTIonS BETwEEn THE MEMBER STATES

Coreper decisions — International agreements

0 8 0

T h e A B C  O F e U R O Pe A N U N I O N L AW

The eu FounDinG TReATies As The PRimARy souRCe  
oF union lAW

The first source of Union law in this sense is the EU founding Treaties, with the 
various annexes, appendices and protocols attached to them, and later additions 
and amendments. These founding Treaties and the instruments amending and 
supplementing them (chiefly the Treaties of Maastricht, Amsterdam, Nice and 
Lisbon) and the various Accession Treaties contain the basic provisions on the 
EU’s objectives, organisation and modus operandi, and parts of its economic 
law. They thus set the constitutional framework for the life of the EU, which is 
then fleshed out in the Union’s interest by legislative and administrative action 
by the Union institutions. The Treaties, being legal instruments created directly 
by the Member States, are known in legal circles as primary Union law.

The eu leGAl insTRumenTs As The seConDARy souRCe  
oF union lAW

Law made by the Union institutions through exercising the powers conferred 
on them is referred to as secondary legislation, the second important source of 
EU law.

It  consists  of  legislative  acts,  delegated  acts,  implementing  acts  and  other  le-
gal acts. ‘Legislative acts’ are legal acts adopted by ordinary or special legisla-
tive procedure (Article 289 TFEU). ‘Delegated acts’ are non-legislative acts of 
general and binding application to supplement or amend certain non-essential 
elem ents of a legislative act. They are adopted by the Commission; a legisla-
tive act must be drawn up explicitly delegating power to the Commission for 
this purpose. The objectives, content, scope and duration of the delegation of 
power are explicitly defined in the legislative act concerned. This delegation of 
power can be revoked by the Council or the European Parliament at any time. 
A delegated act may enter into force only if no objection has been raised by 
the European Parliament or the Council within a period set by the legislative 
act (Article 290 TFEU). ‘Implementing acts’ are an exception to the principle 
whereby all the measures required to implement binding EU legal acts are taken 
by the Member States in accordance with their own national provisions. Where 
uniform conditions are needed for implementing legally binding EU acts, this 
is done by means of appropriate implementing acts, which are generally adopted 
by the Commission, and, in certain exceptional cases, by the Council. Howev-
er, the European Parliament and the Council lay down in advance the rules and 

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general  principles  concerning  the  mechanisms  for  control  by  Member  States 
of the Commission’s exercise of implementing powers (Article 291 TFEU). Fi-
nally, there is a whole set of ‘other legal acts’ which the Union institutions can 
use to issue non-binding measures and statements or which regulate the inter-
nal workings of the EU or its institutions, such as agreements or arrangements 
between the institutions, or internal rules of procedure.

These legal acts can take very different forms. The most important of these are 
listed and defined in Article 288 TFEU. As binding legal acts, they include 
both general and abstract legal provisions on the one hand and specific, indi-
vidual measures on the other. They also provide for the Union institutions to 
issue non-binding statements. This list of acts is not exhaustive, however. Many 
other  legal  acts  do  not  fit  into  specific  categories.  These  include  resolutions, 
declarations, action programmes or White and Green Papers. There are consid-
erable differences between the various acts in terms of the procedure involved, 
their legal effect and those to whom they are addressed; these differences will 
be dealt with in more detail in the section on the ‘means of action’.

The creation of secondary Union legislation is a gradual process. Its emergence 
lends vitality to the primary legislation deriving from the Union Treaties, and 
progressively generates and enhances the European legal  order.

inTeRnATionAl AGReemenTs oF The eu

A third source of Union law is connected with the EU’s role at the international 
level. As one of the focal points of the world, Europe cannot confine itself to 
managing its own internal affairs; it has to concern itself with economic, so-
cial and political relations with the world outside. The EU therefore concludes 
agreements in international law with non-member countries (‘third countries’) 
and with other international organisations; these range from treaties provid-
ing for extensive cooperation in trade or in the industrial, technical and social 
fields, to agreements on trade in particular products.

Three kinds of agreement between the EU and non-member countries are par-
ticularly worth mentioning.

association agreements

Association goes far beyond the mere regulation of trade policy and involves 
close economic cooperation and wide-ranging financial assistance from the EU 

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for the country concerned (Article 217 TFEU). A distinction may be drawn 
between three different types of association agreement.

Agreements that maintain special links between certain 
member states and non-member countries

One particular reason for the creation of the association agreement was the ex-
istence of countries and territories outside Europe with which Belgium, Den-
mark, France, Italy, the Netherlands and the United Kingdom maintained par-
ticularly close economic ties as a legacy of their colonial past. The introduction 
of a common external tariff in the EU would have seriously disrupted trade 
with these territories, which meant that special arrangements were needed. The 
purpose of association is therefore to promote the economic and social develop-
ment of the countries and territories and to establish close economic relations 
between them and the Union as a whole (Article 198 TFEU). As a result, there 
are a whole range of preferential agreements enabling goods to be imported 
from these countries and territories at reduced or zero customs rates. Financial 
and technical assistance from the EU was channelled through the European 
Development Fund. Far and away the most important agreement in practice is 
the EU–ACP Partnership Agreement between the EU and 70 States in Africa, 
the Caribbean and the Pacific (‘the ACP’). This agreement was recently con-
verted into a set of economic partnership agreements, gradually giving the ACP 
countries free access to the European internal market.

Agreements as preparation for accession to the union or for the 
establishment of a customs union

Association arrangements are also used in the preparation of countries for pos-
sible membership of the Union. The arrangement serves as a preliminary stage 
towards accession during which the applicant country can work on converging 
its economy with that of the EU.

Agreement on the european economic Area (eeA)

The EEA Agreement brings the (remaining) countries in the European Free 
Trade Association (EFTA) (Iceland, Liechtenstein and Norway) into the in-
ternal market and, by requiring them to incorporate nearly two thirds of the 
EU’s legislation, lays a firm basis for subsequent accession. In the EEA, on the 
basis of the acquis communautaire (the body of primary and secondary Union 

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legislation), there is to be free movement of goods, persons, services and capital, 
uniform rules on competition and state aid, and closer cooperation on horizon-
tal and flanking policies (environment, research and development, education).

Cooperation agreements

Cooperation  agreements  are  not  as  far-reaching  as  association  agreements, 
 being aimed solely at intensive economic cooperation. The EU has such agree-
ments with the Maghreb States (Algeria, Morocco and Tunisia), the Mashreq 
States (Egypt, Jordan, Lebanon and Syria) and Israel, for  instance.

trade agreements

The  Union  also  has  a  considerable  number  of  trade  agreements  with  indi-
vidual  non-member  countries,  with  groupings  of  such  countries  or  within 
inter national trade organisations relating to tariffs and trade policy. The most 
important  international  trade  agreements  are:  the  Agreement  establishing 
the World Trade Organisation (WTO Agreement) and the multilateral trade 
agreements deriving from it, including in particular the General Agreement on 
Tariffs and Trade (GATT 1994); the Antidumping and Subsidies Code, the 
General Agreement on Trade in Services (GATS); the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS); and the Understand-
ing on Rules and Procedures Governing the Settlement of Disputes.

souRCes oF unWRiTTen lAW

The sources of Union law described so far share a common feature in that they 
all produce written law. Like all systems of law, however, the EU legal order 
cannot consist entirely of written rules: there will always be gaps which have to 
be filled by unwritten law.

General principles of law

The unwritten sources of Union law are the general principles of law. These 
are  rules  reflecting  the  elementary  concepts  of  law  and  justice  that  must  be 
respected by any legal system. Written Union law for the most part deals only 
with economic and social matters, and is only to a limited extent capable of 
laying down rules of this kind, which means that the general principles of law 
form one of the most important sources of law in the Union. They allow gaps 

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to be filled and questions of the interpretation of existing law to be settled in 
the fairest way.

These  principles  are  given  effect  when  the  law  is  applied,  particularly  in  the 
judgments  of  the  Court  of  Justice,  which  is  responsible  for  ensuring  that  ‘in 
the interpretation and application of this Treaty the law is observed’. The main 
points of reference for determining the general principles of law are the principles 
common to the legal orders of the Member States. They provide the background 
against which the EU rules needed for solving a problem can be developed.

Alongside the principles of autonomy, direct applicability and the primacy of 
Union law, other legal principles include the guarantee of basic rights, the prin-
ciple of proportionality, the protection of legitimate expectations, the right to a 
proper hearing and the principle that the Member States are liable for infringe-
ments of Union law.

Legal custom

Unwritten  Union  law  also  encompasses  legal  custom.  This  is  understood  to 
mean a practice which has been followed and accepted and thus become legally 
established, and which adds to or modifies primary or secondary legislation. 
The possible establishment of legal custom in Union law is acknowledged in 
principle.  There  are  considerable  limitations  on  its  becoming  established  in 
the context of Union law, however. The first hurdle is the existence of a special 
procedure for the amendment of the Treaties (Article 54 TEU). This does not 
rule out the possible emergence of legal custom, but it does make the criteria 
according to which a practice is deemed to have been followed and accepted 
for a substantial period much harder to meet. Another hurdle to the establish-
ment of legal custom in the Union institutions is the fact that any action by 
an institution may derive its validity only from the Treaties, and not from that 
institution’s actual conduct or any intention on its part to create legal relations. 
This means that, at the level of the Treaties, legal custom can under no circum-
stances  be  established  by  the  Union  institutions;  at  most,  only  the  Member 
States can do this — and then only subject to the stringent conditions men-
tioned above. Procedures and practices followed and accepted as part of the law 
by Union institutions may, however, be drawn on when interpreting the legal 
rules laid down by them, which might alter the legal implications and scope of 
the legal act concerned. However, the conditions and limitations arising from 
primary Union legislation must also be borne in mind here.

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T h e A B C  O F e U R O Pe A N U N I O N L AW

agreements between the Member states

The final source of EU law comprises agreements between the Member States. 
Agreements of this kind may be concluded for the settlement of issues close-
ly  linked  to  the  EU’s  activities,  but  no  powers  have  been  transferred  to  the 
Union institutions; there are also full-scale international agreements (treaties 
and conventions) between the Member States aimed especially at overcoming 
the drawbacks of territorially limited arrangements and creating law that ap-
plies uniformly throughout the EU. This is important primarily in the field of 
private international law. These agreements include: the Convention on Juris-
diction and the Enforcement of Judgments in Civil and Commercial Matters 
(1968), which has, however, been replaced by a Council regulation of 2001, 
except in the case of Denmark, and is therefore now part of secondary  Union 
legislation;  the  Convention  on  the  Mutual  Recognition  of  Companies  and 
 Legal Persons (1968); the Convention on the Elimination of Double Taxation 
in connection with the Adjustment of Transfers of Profits between Associated 
Enterprises (1990) and the Convention on the Law Applicable to Contractual 
Obligations (1980).

the eu’s meaNs oF actioN

The system of legislative acts had to be devised afresh when the EU was set up. 
It had to be decided first and foremost what forms Union legislation should 
take  and  what  effects  these  should  have.  The  institutions  had  to  be  able  to 
align  the  disparate  economic,  social  and  not  least  environmental  conditions 
in the various Member States, and do so effectively, i.e. without depending on 
the goodwill of the Member States, so that the best possible living conditions 
could be created for all the citizens of the Union. On the other hand, they were 
not to interfere in the domestic systems of law any more than necessary. The 
entire EU legislative system is therefore based on the principle that where the 
same arrangement, even on points of detail, must apply in all Member States, 
national arrangements must be replaced by Union legislation, but where this 
is not necessary due account must be taken of the existing legal orders in the 
Member States.

Against this background a range of instruments was developed that allowed 
the Union institutions to impact on the national legal systems to varying de-
grees. The most drastic action is the replacement of national rules by Union 

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ones. There are also Union rules by which the Union institutions act on the 
Member States’ legal systems only indirectly. Measures may also be taken that 
affect only a defined or identifiable addressee, in order to deal with a particular 
case. Lastly, provision is also made for legal acts that have no binding force, 
either on the Member States or on the citizens of the Union.

If we look at the range of EU legal instruments in terms of the persons to whom 
they are addressed and their practical effects in the Member States, they can be 
broken down as follows.

REGULATIon

dIRECTIvE

dECISIon

addreSSeeS

eFFeCtS

All Member States, 
natural and legal persons

directly applicable and 
binding in their entirety

All or specific Member 
States

not specified
All or specific Member 
States; specific natural 
or legal persons

Binding with respect 
to the intended result. 
directly applicable 
only under particular 
circumstances

directly applicable and 
binding in their entirety

RECoMMEndATIon All or specific Member 

not binding

AvIS

States, other EU bodies, 
individuals

All or specific Member 
States, other EU bodies 

not binding 

not specified

not binding

ReGulATions As union ‘lAWs’

The legal acts that enable the Union institutions to impinge furthest on the 
domestic legal systems are the regulations. Two features highly unusual in 
international law mark them out.

■■

The first is their Community nature, which means that they lay down 
the  same  law  throughout  the  Union,  regardless  of  international  bor-
ders, and apply in full in all Member States. A Member State has no 
power to apply a regulation incompletely or to select only those provi-
sions of which it approves as a means of ensuring that an instrument 

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which  it  opposed  at  the  time  of  its  adoption  or  which  runs  counter 
to its perceived national interest is not given effect. Nor can it invoke 
provisions or practices of domestic law to preclude the mandatory ap-
plication of a regulation.

■■

The second is direct applicability, which means that the legal acts do 
not have to be transposed into national law but confer rights or impose 
obligations on the Union citizen in the same way as national law. The 
Member States and their governing institutions and courts are bound 
directly by Union law and have to comply with it in the same way as 
with national law.

The similarities between these legal acts and statute law passed in individual 
Member States are unmistakable. If they are enacted with the involvement 
of  the  European  Parliament  (under  the  co-decision-making  procedure  — 
see next section), they are described as ‘legislative acts’. Parliament has no 
responsibility for regulations, which are only enacted by the Council or the 
European Commission and thus, from a procedural point of view at least, 
they lack the essential characteristics of legislation of this kind.

DiReCTives

The  directive  is  the  most  important  legislative  instrument  alongside  the 
regu lation.  Its  purpose  is  to  reconcile  the  dual  objectives  of  both  secur-
ing the necessary uniformity of Union law and respecting the diversity of 
national traditions and structures. What the directive primarily aims for, 
then, is not the unification of the law, which is the regulation’s purpose, but 
its  harmonisation.  The  idea  is  to  remove  contradictions  and  conflicts  be-
tween national laws and regulations or gradually iron out inconsistencies so 
that, as far as possible, the same material conditions exist in all the Member 
States. The directive is one of the primary means deployed in building the 
single market.

A directive is binding on the Member States as regards the objective to be 
achieved but leaves it to the national authorities to decide on how the agreed 
Community objective is to be incorporated into their domestic legal systems. 
The reasoning behind this form of legislation is that it allows intervention 
in domestic economic and legal structures to take a milder form. In par-
ticular, Member States can take account of special domestic circumstances 

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when implementing Community rules. What happens is that the directive 
does not supersede the laws of the Member States but places the Member 
States under an obligation to adapt their national law in line with Commu-
nity provisions. The result is generally a two-stage law-making process.

First, at the initial stage, the directive lays down the objective that is to be 
achieved at EU level by any or all Member State(s) to which it is addressed 
within a specified time-frame. The Union institutions can actually spell out 
the objective in such detailed terms as to leave the Member States with no 
room for manoeuvre, and this has in fact been done in directives on tech-
nical standards and environmental protection.

Second, at the national stage, the objective set at EU level is translated into 
actual legal or administrative provisions in the Member States. Even if the 
Member States are in principle free to determine the form and methods used 
to transpose their EU obligation into domestic law, EU criteria are used to 
assess whether they have done so in accordance with EU law. The general 
principle is that a legal situation must be generated in which the rights and 
obligations arising from the directive can be recognised with sufficient clar-
ity  and  certainty  to  enable  the  Union  citizen  to  invoke  or,  if  appropriate, 
challenge them in the national courts. This normally involves enacting man-
datory provisions of national law or repealing or amending existing rules. 
Administrative  custom  on  its  own  is  not  enough  since  it  can,  by  its  very 
nature, be changed at will by the authorities concerned; nor does it have a 
sufficiently high profile. 

Directives  do  not  as  a  rule  directly  confer  rights  or  impose  obligations 
on the Union citizen. They are expressly addressed to the Member States 
alone. Rights and obligations for the citizen flow only from the measures 
enacted by the authorities of the Member States to implement the direc-
tive. This point is of no importance to citizens as long as the Member States 
actually comply with their Union obligation. But there are disadvantages 
for Union citizens where a Member State does not take the requisite im-
plementing measures to achieve an objective set in a directive that would 
benefit them, or where the measures taken are inadequate. The Court of 
Justice has refused to tolerate such disadvantages, and a long line of cases 
has determined that in such circumstances Union citizens can plead that 
the directive or recommendation has direct effect in actions in the national 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

courts to secure the rights conferred on them by it. Direct effect is defined 
by the Court as follows.

■■

The  provisions  of  the  directive  must  lay  down  the  rights  of  the  EU 
citizen/undertaking with sufficient clarity and precision.

■■

The exercise of the rights is not conditional.

■■

The  national  legislative  authorities  may  not  be  given  any  room  for 
 manoeuvre regarding the content of the rules to be enacted.

■■

The time allowed for implementation of the directive has expired.

The decisions of the Court of Justice concerning direct effect are based on the 
general view that the Member State is acting equivocally and unlawfully if it 
applies its old law without adapting it to the requirements of the directive. This 
is an abuse of rights by the Member State and the recognition of direct effect 
of the directive seeks to combat it by ensuring that the Member State derives 
no benefit from its violation of Union law. Direct effect thus has the effect of 
penalising the offending Member State. In that context it is significant that the 
Court of Justice has applied the principle solely in cases between citizen and 
Member State, and then only when the directive was for the citizen’s benefit 
and not to their detriment — in other words when the citizen’s position under 
the law as amended under the directive was more favourable than under the old 
law (known as ‘vertical direct effect’). However, application of the vertical direct 
effect of directives does not prevent the fact that the direct effect of a directive to 
the benefit of an individual may be to the detriment of another individual (the 
dual-effect  directive,  which  is  often  found  in  procurement  and  environment 
law). This detriment should be considered as a negative legal reflex that stems 
inevitably from the Member States’ obligation to reconcile their legal order with 
the objectives of a directive at the end of the transposition period; there is no 
further detriment caused by recognition of the vertical effect of the directives.

The direct effect of directives in relations between citizens themselves (‘hori-
zontal  direct  effect’)  has  not  been  accepted  by  the  Court  of  Justice.  The 
Court concludes from the punitive nature of the principle that it is not ap-
plicable to relations between private individuals, since they cannot be held 
liable for the consequences of the Member State’s failure to act. What the 
citizen  needs  to  rely  on  is  certainty  in  the  law  and  the  protection  of  le-
gitimate expectations. The citizen must be able to count on the effect of a 

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dir ective being achieved by national implementing measures. However, in its 
more recent case-law, the Court of Justice has tempered its rejection of the 
direct effect of directive law in private-law issues. It is limited to situations 
in which one contracting party invokes a right stemming from the directive 
against a right of the other party stemming from national law. This opens 
the way to a horizontal application of the directly applicable provisions of 
directives in situations concerning, for example, compliance with objective 
national law (when, for example, an enterprise wishes to oblige a competitor 
to comply with a national law which infringes on the law of the directive) or 
the implementation of obligations from national law which contradict appli-
cation of the directive (such as the refusal to fulfil a contract with invocation 
of national prohibitory provisions that infringe the law of the directive). 

The direct effect of a directive does not necessarily imply that a provision 
of the directive confers rights on the individual. In fact, the provisions of a 
directive have a direct effect insofar as they have the effect of objective law. 
The same conditions apply to the recognition of this effect as for the recog-
nition of a direct effect, the only exception being that, instead of clear and 
precise law being set out for the Union citizen or enterprise, a clear and pre-
cise obligation is established for the Member States. Where this is the case, 
all institutions, i.e. the legislator, administration and courts of the Member 
States, are bound by the directive and must automatically comply with it and 
apply it as Union law with primacy. In concrete terms, they also therefore 
have an obligation to interpret national law in accordance with the directives 
or give the provision of the directive in question priority of application over 
conflicting national law. In addition, the directives have certain limiting 
effects on the Member States — even before the end of the transposition 
period. In view of the binding nature of a directive and their duty to facili-
tate the achievement of the Union’s tasks (Article 4 TEU), Member States 
must abstain, before the end of the transposition period, from any measure 
which could jeopardise the attainment of the objective of the directive.

In  its  judgments  in  Francovich  and  Bonifaci  in  1991,  the  Court  of  Justice 
held that Member States are liable to pay damages where loss is sustained 
by reason of failure to transpose a directive in whole or in part. Both cases 
were brought against Italy for failure to transpose on time Council Direc-
tive 80/987/EEC of 20 October 1980 on the protection of employees in the 
event of the employer’s insolvency, which sought to protect the employee’s 
rights to remuneration in the period preceding insolvency and dismissal on 

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grounds of insolvency. To that end, guarantee funds were to be established 
with  protection  from  creditors;  they  were  to  be  funded  by  employers,  the 
public authorities or both. The problem facing the Court was that, although 
the aim of the directive was to confer on employed workers a personal right 
to continued payment of remuneration from the guarantee funds, this right 
could not be given direct effect by the national courts, meaning that they 
could not enforce it against the national authorities, since in the absence of 
measures transposing the directive the guarantee fund had not been estab-
lished and it was not possible to ascertain who was the debtor in connection 
with the insolvency. The Court ruled that, by failing to implement the dir-
ective, Italy had deprived the employed workers in question of their rights 
and was accordingly liable for damages. Even if the duty to compensate is 
not written into Union law, the Court of Justice sees it as an integral part of 
the EU legal order, since its full effect would not be secured and the rights 
conferred by it would not be protected if Union citizens did not have the 
possibility of seeking and obtaining compensation for infringement of their 
rights by Member States acting in contravention of EU law.

DeCisions

The third category of EU legal acts is that of decisions. In some cases the  Union 
institutions  may  themselves  be  responsible  for  implementing  the  Treaties  
and regulations, and this will be possible only if they are in a position to take 
measures binding on particular individuals, undertakings or Member States. 
The situation in the Member States’ own systems is more or less the same; 
legislation will be applied by the authorities in an individual case by means 
of an administrative decision.

In the EU legal order this function is assumed by decisions, which are the 
means normally available to the Union institutions to order that a measure 
be taken in an individual case. The Union institutions can thus require a 
Member State or an individual to perform or refrain from an action, or can 
confer rights or impose obligations on them.

The basic characteristics of a decision can be summed up as follows.

■■

It  is  distinguished  from  the  regulation  by  being  of  individual  appli-
cability: the persons to whom it is addressed must be named in it and 
are the only ones bound by it. This requirement is met if, at the time 

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2 and 3 December 1985, Luxembourg. 
On the sidelines of the European Council, federalist Europeans 
demonstrate in favour of the European Union and of the 
abolition of borders, which would not be applied between 
certain countries until 10 years later.

T h e A B C  O F e U R O Pe A N U N I O N L AW

the decision is issued, the category of addressees can be identified and 
can thereafter not be extended. Reference is made to the actual con-
tent of the decision, which must be such as to have a direct, individual 
impact  on  the  citizen’s  situation.  Even  a  third  party  may  fall  within 
the definition if, by reason of personal qualities or circumstances that 
distinguish  them  from  others,  they  are  individually  affected  and  are 
identifiable as such in the same way as the addressee.

■■

It is distinguished from the directive in that it is binding in its entirety 
(whereas the directive simply sets out the objective to be attained).

■■

It is directly binding on those to whom it is addressed. A decision ad-
dressed to a Member State may in fact have the same direct effect in 
relation to the citizen as a directive.

ReCommenDATions AnD oPinions

A final category of legal measures explicitly provided for in the Treaties is rec-
ommendations and opinions. They enable the Union institutions to express a 
view to Member States, and in some cases to individual citizens, which is not 
binding and does not place any legal obligation on the addressee.

In  recommendations,  the  party  to  whom  they  are  addressed  is  called  on, 
but not placed under any legal obligation, to behave in a particular way. For 
example, in cases where the adoption or amendment of a legal or administra-
tive provision in a Member State causes a distortion of competition in the 
European  internal  market,  the  Commission  may  recommend  to  the  State 
concerned such measures as are appropriate to avoid this distortion (Article 
117(1), second sentence, TFEU).

Opinions,  on  the  other  hand,  are  issued  by  the  Union  institutions  when 
giving an assessment of a given situation or developments in the Union or 
individual Member States. In some cases, they also prepare the way for sub-
sequent, legally binding acts, or are a prerequisite for the institution of pro-
ceedings before the Court of Justice (Articles 258 and 259 TFEU).

The  real  significance  of  recommendations  and  opinions  is  political  and 
moral. In providing for legal acts of this kind, the drafters of the Trea-
ties  anticipated  that,  given  the  authority  of  the  Union  institutions  and 
their broader view and wide knowledge of conditions beyond the narrower 

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national framework, those concerned would voluntarily comply with rec-
ommendations  addressed  to  them  and  would  react  appropriately  to  the 
Union institutions’ assessment of a particular situation. However, recom-
mendations and opinions can have indirect legal effect where they are a 
preliminary  to  subsequent  mandatory  instruments  or  where  the  issuing 
institution has committed itself, thus generating legitimate expectations 
that must be met.

ResoluTions, DeClARATions AnD ACTion PRoGRAmmes

Alongside the legal acts provided for in the Treaties, the Union institutions 
also have available a variety of other forms of action for forming and shaping 
the EU legal order. The most important of these are resolutions, declarations 
and action programmes.

Resolutions: These may be issued by the European Council, the Council and 
the European Parliament. They set out jointly held views and intentions re-
garding the overall process of integration and specific tasks within and out-
side the EU. Resolutions relating to the internal working of the EU are con-
cerned, for example, with basic questions regarding political union, regional 
policy,  energy  policy  and  economic  and  monetary  union  (particularly  the 
European Monetary System). The primary significance of these resolutions 
is that they help to give the future work of the Council a political direction. 
As manifestations of a commonly held political will, resolutions make it con-
siderably easier to achieve a consensus in the Council, in addition to which 
they guarantee at least a minimum degree of correlation between decision-
making hierarchies in the Community and the Member States. Any assess-
ment of their legal significance must also take account of these functions, i.e. 
they should remain a flexible instrument and not be tied down by too many 
legal requirements and obligations.

Declarations: There are two different kinds of declaration. If a declaration 
is concerned with the further development of the Union, such as the Dec-
laration on the EU, the Declaration on Democracy and the Declaration on 
Fundamental Rights and Freedoms, it is more or less equivalent to a resolu-
tion. Declarations of this type are mainly used to reach a wide audience or 
a specific group of addressees. The other type of declaration is issued in the 
context of the Council’s decision-making process and sets out the views of all 
or individual Council members regarding the interpretation of the Council’s 

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decisions. Interpretative declarations of this kind are standard practice in the 
Council and are an essential means of achieving compromises. Their legal 
significance should be assessed under the basic principles of interpretation, 
according to which the key factor when interpreting the meaning of a legal 
provision  should  in  all  cases  be  the  underlying  intention  of  its  originator. 
This principle is only valid, however, if the declaration receives the necessary 
public attention; this is because, for example, secondary Union legislation 
granting direct rights to individuals cannot be restricted by secondary agree-
ments that have not been made public.

Action  programmes:  These  programmes  are  drawn  up  by  the  Council  and 
the Commission on their own initiative or at the instigation of the Euro-
pean Council and serve to put into practice the legislative programmes and 
general objectives laid down in the Treaties. If a programme is specifically 
provided for in the Treaties, the Union institutions are bound by those pro-
visions  when  planning  it.  In  the  Union,  these  programmes  are  published 
in the form of White Papers. On the other hand, other programmes are in 
practice merely regarded as general guidelines with no legally binding effect. 
They are, however, an indication of the Union institutions’ intended actions. 
Such programmes are published in the Union as Green Papers.

PubliCATion AnD CommuniCATion

Legislative acts in the form of regulations, directives addressed to all Mem-
ber States and decisions which do not specify to whom they are addressed 
are published in the Official Journal of the European Union (Series L = Leg-
islation). They enter into force on the date specified in them or, if no date is 
specified, on the 20th day following their publication.

Non-legislative acts adopted in the form of regulations, directives or deci-
sions, when the latter do not specify to whom they are addressed, are signed 
by the President of the institution which adopted them. They are published 
in the Official Journal (Series C = Communication).

Other directives, and decisions which specify to whom they are addressed, 
are notified to those to whom they are addressed and take effect upon such 
notification.

There is no obligation to publish and communicate non-binding instruments, 
but they are usually also published in the Official Journal (‘Notices’).

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the legislative process iN the eu

Whereas in a state the will of the people will usually be expressed in parlia-
ment, it was for a long time the representatives of the Member States’ gov-
ernments meeting in the Council who played the decisive role in expressing 
the will of the EU. This was simply because the EU does not consist of a 
‘European nation’ but owes its existence and form to the combined input 
of its Member States. These did not simply transfer part of their sovereignty 
to the EU, but pooled it on the understanding that they would retain the 
joint power to exercise it. However, as the process of Union integration has 
developed and deepened, this division of powers in the EU decision-making 
process,  originally  geared  towards  the  defence  of  national  interests  by  the 
Member States, has evolved into something much more balanced, with con-
stant enhancement of the status of the European Parliament. The original 
procedure whereby Parliament was merely consulted was first of all broad-
ened to include cooperation with the Council, and Parliament was eventu-
ally given powers of co-decision in the EU’s legislative process.

Under the Treaty of Lisbon these co-decision powers of the Parliament be-
came the ‘ordinary legislative procedure’, i.e. ‘the general rule’, thereby fur-
ther enhancing the EU’s democratic credentials. The co-decision procedure 
consists in the joint adoption by the European Parliament and the Council 
of a regulation, directive or decision on a proposal from the Commission. 
Only in a few explicit cases does the adoption of a regulation, directive or de-
cision by the European Parliament with the participation of the Council, or 
by the latter with the participation of the European Parliament, constitute a 
special legislative procedure. In addition to these legislative procedures, there 
are also the ‘approval procedure’, which gives the European Parliament the 
final decision on the entry into force of a legal instrument, and the ‘simpli-
fied procedure’, which is used when non-binding instruments are issued by 
only one Union institution.

Course of the procedure

Formulation stage

The  machinery  is,  in  principle,  set  in  motion  by  the  Commission,  which 
draws up a proposal for the Union measure to be taken (known as the ‘right 
of  initiative’).  The  proposal  is  prepared  by  the  Commission  department 

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ordinary leGiSlatiVe proCedure (artiCle 294 tFeu)

CoMMISSIon

Proposals

EURoPEAn 
PARLIAMEnT

(first reading)

EURoPEAn 
EConoMIC And 
SoCIAL CoMMITTEE

CoMMITTEE of  
THE REGIonS

Parliament position and opinion of the Committees

CoUnCIL 

(first reading)

No amendments by Parliament 
or approval of all amendments 
by the Council  
Instrument adopted

otherwise

Position of the Council 

EURoPEAn PARLIAMEnT

(second reading)

Approval of Council’s 
position

Amendments by 
majority of Members

Rejection of Council’s 
position by majority of 
Members

Adopted in the wording which 
corresponds to the position of 
the Council

End of the legislative process 
Instrument is not adopted

CoMMISSIon

Approves Parliament’s 
amendments

Rejects Parliament’s  
amendments 

CoUnCIL

(second reading)

Amendments  
rejected by Council

Approval of the 
amendments by 
qualified majority
Adoption of act

Approval of the 
amendments by 
unanimity
Adoption of act

ConCILIATIon CoMMITTEE ConvEnEd By THE CoUnCIL/ PARLIAMEnT

Agreement 
outcome confirmed at third 
reading by Council and Parliament

No agreement 
Instrument deemed rejected  
End of the legislative process

T h e  A B C  O F e U R O Pe A N U N I O N L AW

dealing with the particular field; frequently the department will also consult 
national experts at this stage. This sometimes takes the form of deliber ations 
in specially convened committees; alternatively, experts may have questions 
put to them by the relevant departments of the Commission. However, the 
Commission is not obliged to accept the advice of the national experts when 
drawing up its proposals. The draft drawn up by the Commission, setting 
out the content and form of the measure to the last detail, goes before the 
Commission as a whole, when a simple majority is sufficient to have it adopt-
ed.  It  is  now  a  ‘Commission  proposal’  and  is  sent  simultaneously  to  the 
Council and the European Parliament and, where consultation is required, 
to the European Economic and Social Committee and the Committee of the 
Regions, with detailed explanatory remarks.

First reading in Parliament and in the Council

The President of the European Parliament passes the proposal on to a Parlia-
mentary coordination committee for further consideration. The outcome of 
the committee’s deliberations is discussed at a plenary session of Parliament, 
and is set out in an opinion which may accept or reject the proposal or pro-
pose amendments. Parliament then sends its position to the Council. 

The Council can now act as follows in the first reading.

■■

If it approves Parliament’s position, the act is adopted in the form of 
that position; this marks the end of the legislative process.

■■

If the Council does not approve Parliament’s position, it adopts its posi-
tion at first reading and communicates it to the European Parliament.

The Council informs the European Parliament fully of the reasons which led 
it to adopt its position. The Commission informs the European Parliament 
fully of its position.

second reading in Parliament and in the Council

The European Parliament has three months starting from the communica-
tion of the Council’s position to do one of the following:

(1)   approve  the  Council’s  position  or  not  take  a  decision;  the  act  con-
cerned is then deemed to have been adopted in the wording which 
corresponds to the position of the Council;

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T h e A B C  O F e U R O Pe A N U N I O N L AW

(2)  reject, by a majority of its component members, the Council’s posi-
tion; the proposed act is then deemed not to have been adopted and 
the legislative process ends;

(3)  make,  by  a  majority  of  its  members,  amendments  to  the  Council’s 
 position; the text thus amended is then forwarded to the Council and 
to the Commission, which delivers an opinion on those amendments.

The Council discusses the amended position and has three months from the 
date of receiving Parliament’s amendments to do one of the following.

(1)   It can approve all of Parliament’s amendments; the act in question is 
then deemed to have been adopted. A qualified majority is sufficient if 
the Commission is also in agreement with the amendments; if not, the 
Council can approve Parliament’s amendments only by unanimity.

(2)   It can choose not to approve all Parliament’s amendments or it does not 
attain the required majority; this results in a conciliation procedure.

Conciliation procedure

The  conciliation  procedure  is  initiated  by  the  President  of  the  Council  in 
agreement  with  the  President  of  the  European  Parliament.  At  its  heart  is 
the Conciliation Committee, which is currently composed of 27 representa-
tives each from the Council and the European Parliament. The Conciliation 
Committee has the task of reaching agreement on a joint text by a qualified 
majority within six weeks of its being convened, on the basis of the positions 
of the European Parliament and the Council at second reading.

The  Commission  takes  part  in  the  Conciliation  Committee’s  proceedings 
and takes all the necessary initiatives with a view to reconciling the positions 
of the European Parliament and the Council.

If, within six weeks of its being convened, the Conciliation Committee does 
not  approve  the  joint  text,  the  proposed  act  is  deemed  not  to  have  been 
adopted.

Third reading in Parliament and in the Council

If, within the six-week period, the Conciliation Committee approves a joint 
text, the European Parliament, acting by a majority of the votes cast, and the 

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Council, acting by a qualified majority, each have a period of six weeks from 
that approval in which to adopt the act in question in accordance with the 
joint text. If they fail to do so, the proposed act is deemed not to have been 
adopted and the legislative process is ended.

Publication

The final text (in the 23 current official languages of the Union: Bulgarian, 
Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, 
Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, 
Romanian, Slovak, Slovenian, Spanish and Swedish) is signed by the Presi-
dents of the European Parliament and the Council, and then published in 
the Official Journal of the European Union or, if it is addressed to a specific 
group, notified to those to whom it is addressed.

The co-decision procedure represents both a challenge and an opportunity 
for  Parliament.  If  the  procedure  is  to  operate  successfully,  there  must  be 
an agreement in the Conciliation Committee. However, the procedure also 
radically changes the relationship between Parliament and the Council. The 
two institutions are now placed on an equal footing in the legislative proc-
ess, and it is up to Parliament and the Council to demonstrate their capacity 
for compromise and to direct their energies in the Conciliation Committee 
towards coming to an agreement.

APPRovAl PRoCeDuRe

Another principal form of Parliamentary involvement in the legislative pro cess 
is  the  approval  procedure,  whereby  a  legal  instrument  can  only  be  adopt ed 
with  the  prior  approval  of  Parliament.  This  procedure  does  not,  however, 
give  Parliament  any  scope  for  directly  influencing  the  nature  of  the  legal 
provisions. For example, it cannot propose any amendments or secure their 
acceptance during the approval procedure; its role is restricted to accepting 
or rejecting the legal instrument submitted to it.

Provision is made for this procedure in connection with the accession of new 
Member States, the conclusion of association agreements, agreements with 
important  budgetary  implications  for  the  EU  and  agreements  with  non-
member countries in policy areas to which the ordinary legislative procedure 
applies (Article 218(6) TFEU).

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T h e A B C  O F e U R O Pe A N U N I O N L AW

simPliFieD PRoCeDuRe

Under the simplified procedure, no Commission proposal is needed to initi-
ate the legislative process.

This  procedure  applies  to  measures  within  the  Commission’s  own  powers 
(such as approval of state aid).

The simplified procedure is also used for the adoption of non-binding instru-
ments,  especially  recommendations  and  opinions  issued  by  the  Commis-
sion or the Council. The Commission is not restricted to what is expressly 
provided for in the Treaties, but can also formulate recommendations and 
deliver opinions where it considers it necessary.

In the simplified procedure, legal acts are adopted by simple majority.

the eu  system oF legal protectioN

A Union which aspires to be a community governed by law must provide its 
citizens with a complete and effective system of legal protection. The Euro-
pean Union’s system of legal protection meets this requirement. It recognises 
the right of the individual to effective judicial protection of the rights derived 
from EU law. This protection is one of the fundamental legal principles re-
sulting  from  the  constitutional  traditions  common  to  the  Member  States 
and the European Convention on Human Rights (Articles 6 and 13) and 
guaranteed by the EU’s legal system (Court of Justice, General Court and 
the specialised courts). For this purpose a series of procedures is available, as 
described below. 

TReATy inFRinGemenT PRoCeeDinGs (ARTiCle 258 TFeu)

This is a procedure for establishing whether a Member State has failed to 
fulfil an obligation imposed on it by Union law. It is conducted exclusively 
before the Court of Justice of the European Union. Given the seriousness 
of the accusation, the referral to the Court of Justice must be preceded by a 
preliminary procedure in which the Member State is given the opportunity 
to submit its observations. If the dispute is not settled at that stage, either 
the Commission (Article 258 TFEU) or another Member State (Article 259 
TFEU)  may  institute  an  action  in  the  Court.  In  practice  the  initiative  is 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

usually taken by the Commission. The Court investigates the complaint and 
decides whether a Treaty has been infringed. If so, the offending Member 
State is then required to take the measures needed to conform. If a Member 
State fails to comply with a judgment given against it, the Commission has 
the possibility of a second court ruling ordering that State to pay a lump-sum 
fine or a penalty (Article 260 TFEU). There are therefore serious financial 
implications for a Member State which continues to disregard a Court judg-
ment against it for Treaty infringement.

ACTions FoR AnnulmenT (ARTiCle 263 TFeu)

Actions for annulment are a means to objective judicial control of the action 
of the Union institutions and bodies (abstract judicial review) and provide 
the citizen with access to EU justice, although with some restrictions (guar-
antee of individual legal protection).

They can be lodged against all measures of the Union institutions and bodies 
which produce binding legal effects likely to affect the interests of the ap-
plicant by seriously altering their legal position. In addition to the Member 
States, the European Parliament, the Council, the Commission, the Court 
of Auditors, the European Central Bank and the Committee of the Regions 
may also lodge actions for annulment provided that they invoke violation of 
the rights conferred on them.

Citizens  and  undertakings,  on  the  other  hand,  can  only  proceed  against 
decisions  that  are  personally  addressed  to  them  or,  though  addressed  to 
others, have a direct individual effect on them. This is deemed by the Court 
of Justice to be the case if a person is affected in so specific a way that a clear 
distinction  exists  between  him  or  her  and  other  individuals  or  undertak-
ings. This criterion of ‘immediacy’ is intended to ensure that a matter is only 
referred to the Court of Justice or the General Court if the fact of the plain-
tiff’s legal position being adversely affected is clearly established along with 
the nature of those adverse effects. The ‘individual concern’ requirement is 
also intended to prevent ‘relator suits’ from being filed.

If the action succeeds, the Court of Justice or General Court may declare 
the instrument void with retroactive effect. In certain circumstances, it may 
declare it void solely from the date of the judgment. However, in order to 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

safeguard the rights and interests of those bringing legal actions, the decla r-
ation of nullity may be exempted from any such restriction.

ComPlAinTs FoR FAiluRe To ACT (ARTiCle 265 TFeu)

This  form  of  action  supplements  the  legal  protection  available  against  the 
European Parliament, the European Council, the Council, the Commission 
and the European Central Bank. There is a preliminary procedure whereby 
the complainant must first put the institution on notice to fulfil its duty. The 
order sought in an action by the institutions is a declaration that the body 
concerned has infringed the Treaty by neglecting to take a decision required 
of it. Where the action is brought by a citizen or an undertaking, it is for 
a declaration that the institution has infringed the Treaty by neglecting to 
address an individual decision to them. The judgment simply finds that the 
neglect was unlawful. The Court of Justice/General Court has no jurisdic-
tion  to  order  that  a  decision  be  taken:  the  party  against  whom  judgment 
is given is merely required to take measures to comply with the judgment 
(Article 266 TFEU).

ACTions FoR DAmAGes (ARTiCles 268 AnD 340(2) TFeu)

Citizens  and  undertakings  —  and  also  Member  States  —  that  sustain 
damage by reason of a fault committed by EU staff have the possibility 
to file actions for damages with the Court of Justice. The basis for EU li-
ability is not fully set out by the Treaties and is otherwise governed by the 
general principles common to the laws of the Member States. The Court 
has fleshed this out, holding that the following conditions must be satis-
fied before an award of damages can be made: (1) there must be an unlaw-
ful act by a Union institution or by a member of its staff in the exercise of 
his or her functions. An unlawful act takes place when there is a serious 
infringement of a rule of Union law which confers rights on an individual, 
undertaking or Member State or has been passed to protect them. Laws 
recognised to have a protective nature are in particular the fundamental 
rights and freedoms of the internal market or the fundamental principles 
of the protection of legitimate expectations and proportionality. The in-
fringement is sufficiently serious if the institution concerned has exceeded 
the limits of its discretionary power to a considerable degree. The Court 
tends to gear its findings to the narrowness of the category of persons af-
fected by the offending measure and the scale of the damage sustained, 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

which  must  be  in  excess  of  the  commercial  risk  that  can  be  reasonably 
expected in the business sector concerned; (2) actual harm must have been 
suffered; (3) there must be a causal link between the act of the Union 
institution and the damage sustained; (4) intent or negligence do not have 
to be proved.

ACTions by CommuniTy sTAFF (ARTiCle 270 TFeu)

Disputes  between  the  EU  and  its  staff  members  or  their  surviving  family 
members arising from the employment relationship can also be brought be-
fore the Court of Justice. Jurisdiction for these actions lies with the special-
ised court for the civil service attached to the General Court.

DisPuTes oveR union PATenTs (ARTiCles 257 AnD 262 TFeu)

The legal basis for the establishment of a Union Patent Court was intro-
duced by the Treaty of Nice. The Union Patent Court, which is yet to be 
created and will be located at the Court of Justice, would have jurisdiction 
concerning disputes over the future Union patent system. In particular, it 
would deal with proceedings relating to the infringement and validity of 
Union patents. The creation of the Union patent system itself aims to make 
it cheaper and easier to protect new inventions in all EU Member States, by 
means of a single procedure. It will thus remove competitive disadvantages 
suffered by Europe’s innovators and stimulate investment in research and 
development.

APPeAls PRoCeDuRe (ARTiCle 256(2) TFeu)

The relationship between the Court of Justice and the General Court is de-
signed in such a way that judgments of the General Court are subject to a right 
of appeal to the Court of Justice on points of law only. The appeal may lie on 
the grounds of lack of competence of the General Court, a breach of proced-
ure which adversely affects the interests of the appellant or the infringement 
of Union law by the General Court. If the appeal is justified and procedurally 
admissible, the judgment of the General Court is rescinded by the Court of 
Justice. If the matter is ripe for a court ruling, the Court of Justice may issue 
its  own  judgment;  otherwise,  it  must  refer  the  matter  back  to  the  General 
Court, which is bound by the Court of Justice’s legal assessment.

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T h e A B C  O F e U R O Pe A N U N I O N L AW

A similar system now exists between between the specialised courts and the 
General Court, with the General Court examining the decisions of the spe-
cialised courts as a sort of court of appeal. The (appellate) decision of the 
General  Court  can,  in  turn,  be  re-examined  by  the  Court  of  Justice,  al-
though only under special circumstances.

PRovisionAl leGAl PRoTeCTion (ARTiCles 278 AnD 279 TFeu)

Actions  filed  with  the  Court  of  Justice  or  the  General  Court,  or  appeals 
lodged against their judgments, do not have suspensive effect. It is, however, 
possible to apply to the Court of Justice or the General Court for an order 
to suspend the application of the contested act (Article 278 TFEU) or for an 
interim court order (Article 279 TFEU).

The  merits  of  any  application  for  interim  measures  are  assessed  by  the 
courts on the basis of the following three criteria: (1) prospect of success 
on the main issue (fumus boni juris): this is assessed by the court in a prelimi-
nary summary examination of the arguments submitted by the appellant; 
(2) urgency of the order: this is assessed on the basis of whether the order 
applied  for  by  the  appellant  is  necessary  in  order  to  ward  off  serious  and 
irreparable harm; the criteria used for making this assessment include the 
nature and seriousness of the infringement, and its specific and irreversibly 
adverse effects on the appellant’s property and other objects of legal protec-
tion; financial loss is deemed to be of a serious and irreparable nature only 
if  it  cannot  be  made  good  even  if  the  appellant  is  successful  in  the  main 
proceedings; (3) weighing of interests: the adverse effects likely to be suffered 
by the appellant if the application for an interim order is refused are weighed 
against the EU’s interest in immediate implementation of the measure, and 
against the detrimental effects on third parties if the interim order were to 
be issued.

PReliminARy RulinGs (ARTiCle 267 TFeu)

This  is  the  procedure  whereby  the  national  courts  can  seek  guidance  on 
Union law from the Court of Justice. Where a national court is required to 
apply provisions of Union law in a case before it, it may stay the proceedings 
and ask the Court of Justice for clarification as to the validity of the Union 
instrument at issue and/or the interpretation of the instrument and of the 
Treaties.  The  Court  of  Justice  responds  in  the  form  of  a  judgment  rather 

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than an advisory opinion; this emphasises the binding nature of its ruling. 
The preliminary ruling procedure, unlike the other procedures under con-
sideration here, is not a contentious procedure but simply one stage in the 
proceedings that begin and end in the national courts.

The object is to secure a uniform interpretation of Union law and hence the 
unity of the EU legal order. Alongside the latter function, the procedure is also 
of  importance  in  protecting  individual  rights.  The  national  courts  can  only 
assess the compatibility of national and Union law and, in the event of any in-
compatibility, enforce Union law — which takes precedence and is directly ap-
plicable — if the content and scope of Union provisions are clearly set out. This 
clarity can normally only be brought about by a preliminary ruling from the 
Court of Justice, which means that proceedings for such a ruling offer Union 
citizens an opportunity to challenge actions of their own Member State which 
are in contravention of EU law and ensure enforcement of Union law before the 
national courts. This dual function of preliminary ruling proceedings compen-
sates to a certain extent for the restrictions on individuals directly filing actions 
before the Court of Justice and is thus crucial for the legal protection of the 
individual. However, success in these proceedings depends ultimately on how 
‘keen’ national judges and courts are to refer cases to a higher authority.

Subject matter: The Court of Justice rules on the interpretation of instruments 
of Union law and examines the validity of the Union institutions’ acts of legal 
significance. Provisions of national law may not be the subject of a preliminary 
ruling. In proceedings for a preliminary ruling, the Court of Justice is not em-
powered to interpret national law or assess its compatibility with Union law. 
This fact is often overlooked in the questions referred to the Court of Justice, 
which is called on to look at many questions specifically concerned with the 
compatibility of provisions of national and Union law, or to decide on the ap-
plicability of a specific provision of Union law in proceedings pending before a 
national court. Although these questions are in fact procedurally inadmissible, 
the Court of Justice does not simply refer them back to the national court; 
instead, it reinterprets the question referred to it as a request by the referring 
court for basic or essential criteria for interpreting the Union legal provisions 
concerned, thus enabling the national court to then give its own assessment of 
compatibility between national and Union law. The procedure adopted by the 
Court of Justice is to extract from the documentation submitted — particu-
larly the grounds for referral — those elements of Union law which need to be 
interpreted for the purpose of the underlying legal dispute.

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T h e A B C  O F e U R O Pe A N U N I O N L AW

Capacity to proceed: The procedure is available to all ‘courts of the Member 
States’. This expression should be understood within the meaning of Union 
law and focuses not on the name but rather on the function and position 
occupied  by  a  judicial  body  within  the  systems  of  legal  protection  in  the 
Member States. On this basis, ‘courts’ are understood to mean all independ-
ent institutions (i.e. not subject to instructions) empowered to settle disputes 
in a constitutional state under due process of law. According to this defin-
ition,  the  constitutional  courts  in  the  Member  States  and  dispute-settling 
authorities  outside  the  state  judicial  system  —  but  not  private  arbitration 
tribunals  —  are  also  entitled  to  refer  cases.  The  national  court’s  decision 
whether or not to make a reference will depend on the relevance of the point 
of Community law in issue for the settlement of the dispute before it, which 
is  a  matter  for  the  national  court  to  assess.  The  parties  can  only  request, 
not require, it to refer a case. The Court of Justice considers the relevance 
of the point solely in terms of whether the question concerned is amenable 
to referral (i.e. whether it actually concerns the interpretation of the Union 
Treaties or the legal validity of an act by a Union institution) or whether a 
genuine legal dispute is involved (i.e. whether the questions on which the 
Court of Justice is to give its legal opinion in a preliminary ruling are merely 
hypothetical or relate to a point of law that has already been settled). It is 
exceptional for the Court to decline to consider a matter for these reasons be-
cause, given the special importance of cooperation between judicial author-
ities, the Court exercises restraint when applying these criteria. Nevertheless, 
recent judgments of the Court show that it has become more stringent as 
regards eligibility for referral in that it is very particular about the already 
established requirement that the order for referral contain a sufficiently clear 
and detailed explanation of the factual and legal background to the original 
proceedings, and that if this information is not provided it declares itself un-
able to give a proper interpretation of Union law and rejects the application 
for a preliminary ruling as inadmissible.

Obligation to refer: A national court or tribunal against whose decision there 
is no judicial remedy in national law is obliged to refer. The concept of right 
of  appeal  encompasses  all  forms  of  legal  redress  by  which  a  court  ruling 
may be reviewed in fact and in law (appeal) or only in law (appeal on points 
of law). The concept does not, however, encompass ordinary legal remedies 
with limited and specific effects (e.g. new proceedings, constitutional com-
plaint). A court obliged to refer a case may only avoid such referral if the 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

question is of no material importance for the outcome of the case before it 
or has already been answered by the Court of Justice or the interpretation 
of Union law is not open to reasonable doubt. However, the obligation to 
refer is unconditional where the validity of a Union instrument is at issue. 
The Court of Justice made it quite clear in this respect that it alone has the 
power  to  reject  illegal  provisions  of  Union  law.  The  national  courts  must 
therefore apply and comply with Union law until it is declared invalid by 
the Court of Justice. A special arrangement applies to courts in proceedings 
for the granting of provisional legal protection. According to recent judg-
ments of the Court of Justice, these courts are empowered, subject to certain 
conditions, to suspend enforcement of a national administrative act deriving 
from a Union regulation, or to issue interim orders in order to provisionally 
determine the arrangements of legal relations while disregarding an existing 
provision of Union law.

Failure to discharge the obligation to refer constitutes an infringement of the 
Union Treaties, which may make the Member State concerned liable to in-
fringement proceedings. In practice, however, the effects of such a course of 
action are very limited, given that the government of the Member State con-
cerned cannot comply with any order issued by the Court of Justice because 
the independence of its judiciary and the principle of separation of powers 
mean that it is unable to give instructions to national courts. Now that the 
principle of Member States’ liability under Union law for failure to comply 
with it has been recognised (see next heading), the possibility of individuals 
filing for damages which may have arisen from the Member State concerned 
failing to meet its obligation to refer offers better prospects of success.

Effect: The preliminary ruling, issued in the form of a court order, is directly 
binding on the referring court and all other courts hearing the same case. In 
practice it also has a very high status as a precedent for subsequent cases of 
a like nature.

liability oF the m ember states  
For iNFriNgemeNts oF u NioN law

The liability of a Member State for harm suffered by individuals as a result 
of an infringement of Union law attributable to that State was established in 
principle by the Court of Justice in its judgment of 5 March 1996 in Joined 

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Cases C-46/93 Brasserie du pêcheur and C-48/93 Factortame. This was a prec-
edent-setting judgment on a par with earlier Court judgments on the primacy 
of Union law, the direct applicability of provisions of Union law and recogni-
tion of the Union’s own set of fundamental rights. The judgment is even re-
ferred to by the Court itself it as ‘the necessary corollary of the direct effect of 
the Community provisions whose breach caused the damage sustained’, and 
considerably enhances the possibilities for an individual to force State bodies 
of all three centres of power (i.e. legislative, executive and judiciary) to comply 
with and implement Union law. The judgment is a further development of the 
Court’s rulings in Francovich and Bonifaci. Whilst the earlier judgments re-
stricted the liability of the Member States to instances where individuals suf-
fered harm as a result of failure to transpose in good time a directive granting 
them personal rights but not directly addressed to them, the latest judgment 
established the principle of general liability encompassing any infringement 
of Union law attributable to a Member State.

membeR sTATes’ liAbiliTy FoR leGAl ACTs oR FAiluRe To ACT

This form of liability is defined by three criteria which are largely the same as 
those applying to the Union in a similar situation.

(1)   The aim of the Union provision which has been infringed must be to 

grant rights to the individual.

(2)   The infringement must be sufficiently serious, i.e. a Member State must 
clearly have exceeded the limits of its discretionary powers to a consider-
able degree. This must be decided on by the national courts, which have 
sole responsibility for ascertaining the facts and assessing the seriousness 
of the infringements of Union law. The Court of Justice’s judgment never-
theless offers the national courts a number of basic guidelines: 

 ‘The factors which the competent court may take into consideration 
include the clarity and precision of the rule breached, the measure of 
discretion left by that rule to the national or Community authorities, 
whether the infringement and the damage caused was intentional or 
involuntary, whether any error of law was excusable or inexcusable, 
the fact that the position taken by a Community institution may 
have contributed towards the omission, and the adoption of retention 
of national measures or practices contrary to Community law. On 

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any view, a breach of Community law will clearly be sufficiently 
serious if it has persisted despite a judgment finding the infringement 
in question to be established, or a preliminary ruling or settled 
case-law of the Court on the matter from which it is clear that the 
conduct in question constituted an infringement.’

(3)  A direct causal link must exist between the infringement of the ob-
ligation on the Member State and the harm suffered by the injured 
party. It is not necessary to demonstrate fault (intent or negligence) 
in addition to establishing that a sufficiently serious infringement of 
Union law has occurred.

liAbiliTy FoR inFRinGemenT oF union lAW by The CouRTs

The Court of Justice makes it quite clear that the principles established by 
it for determining liability also apply to the last of the three central powers, 
namely the judiciary. Its judgments are now not only subject to review at the 
successive stages of appeal; if they were delivered in disregard or infringe-
ment of Union law, they may also be the subject of an action for damages 
before the competent courts in the Member States. When ascertaining the 
facts surrounding a judgment’s infringement of Union law, proceedings of 
this kind must also reconsider the questions relating to the substance of 
Union  law,  in  the  process  of  which  the  court  concerned  may  not  merely 
invoke the binding effects of the judgment of the specialised court to which 
the case is referred. The court to which the competent national courts would 
have to refer questions of interpretation and/or the validity of Union provi-
sions,  and  also  the  compatibility  of  national  liability  regimes  with  Union 
law, is again the Court of Justice, to which questions may be referred under 
the preliminary ruling procedure (Article 267 TFEU).

However, liability for infringement through a judgment will remain the ex-
ception. In view of the strict conditions attached, liability can be considered 
only if a court deliberately disregards Union law or, as in the Köbler case, a 
court of last instance, in violation of Union law, gives legal force to a deci-
sion to the detriment of the individual without having previously asked the 
Court of Justice to clarify the situation with regard to Union law which is 
relevant to the decision. In this latter case, it is essential for the protection of 
the rights of Union citizens who invoke Union law that the damage caused 
to them by a court of last instance be made good.

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The position of Union law  
in relation to the legal order  
as a whole

After all that we have learnt about the structure of the EU and its legal set-
up, it is not easy to assign Union law its rightful place in the legal order as 
a whole and define the boundaries between it and other legal orders. Two 
possible approaches to classifying it must be rejected from the outset. Union 
law must not be conceived of as a mere collection of international agree-
ments, nor can it be viewed as a part of, or an appendage to, national legal 
systems.

autoNomy oF the eu  legal order

By establishing the Union, the Member States have limited their legislative 
sovereignty and in so doing have created a self-sufficient body of law that is 
binding on them, their citizens and their courts.

One of the best-known cases heard in the Court of Justice was Costa v ENEL 
in 1964, in which Mr Costa filed an action against the nationalisation of 
electricity  generation  and  distribution,  and  the  consequent  vesting  of  the 
business of the former electricity companies in ENEL, the new public cor-
poration.

The  autonomy  of  the  EU  legal  order  is  of  fundamental  significance  for 
the nature of the EU, for it is the only guarantee that Union law will not 
be watered down by interaction with national law, and that it will apply 
uniformly throughout the Union. This is why the concepts of Union law 
are interpreted in the light of the aims of the EU legal order and of the 
Union in general. This Union-specific interpretation is indispensable, since 
particular rights are secured by Union law and without it they would be 
endangered, for each Member State could then, by interpreting provisions 
in  different  ways,  decide  individually  on  the  substance  of  the  freedoms 

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that  Union  law  is  supposed  to  guarantee.  An  example  is  the  concept  of 
a ‘worker’, on which the scope of the concept of freedom of movement is 
based. The specific Union concept of the worker is quite capable of deviat-
ing from the concepts that are known and applied in the legal orders of 
the Member States. Furthermore, the only standard by which Union legal 
instruments are measured is Union law itself, and not national legislation 
or constitutional law.

Against the backdrop of this concept of the autonomy of the EU legal order, 
what is the relationship between Union law and national law?

Even if Union law constitutes a legal order that is self-sufficient in relation to 
the legal orders of the Member States, this situation must not be regarded as 
one in which the EU legal order and the legal systems of the Member States 
are superimposed on one another like layers of bedrock. The fact that they 
are applicable to the same people, who thus simultaneously become citizens 
of a national State and of the EU, negates such a rigid demarcation of these 
legal orders. Secondly, such an approach disregards the fact that Union law 
can become operational only if it forms part of the legal orders of the Mem-
ber States. The truth is that the EU legal order and the national legal orders 
are interlocked and interdependent.

iNteractioN betweeN uNioN law aNd NatioNal law

This aspect of the relationship between Union law and national law covers 
those areas where the two systems complement each other. Article 4(3) of the 
TEU is clear enough:

‘Pursuant to the principle of sincere cooperation, the Union 
and the Member States shall, in full mutual respect, assist 
each other in carrying out tasks which flow from the Treaties. 
The Member States shall take any appropriate measure, 
general or particular, to ensure fulfilment of the obligations 
arising out of the Treaties or resulting from the acts of the 
institutions of the Union. The Member States shall facilitate 
the achievement of the Union’s tasks and refrain from any 
measure which could jeopardise the attainment of the 
Union’s objectives.’

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This general principle of sincere cooperation was inspired by an awareness 
that the EU legal order on its own is not able to fully achieve the objectives 
pursued by the establishment of the EU. Unlike a national legal order, the 
EU legal order is not a self-contained system but relies on the support of the 
national systems for its operation. All three branches of government — legis-
lature,  executive  and  judiciary  —  therefore  need  to  acknowledge  that  the 
EU legal order is not a ‘foreign’ system and that the Member States and the 
Union  institutions  have  established  indissoluble  links  between  themselves 
so as to achieve their common objectives. The EU is not just a community 
of interests; it is a community based on solidarity. It follows that national 
authorities are required not only to observe the Union Treaties and second-
ary legislation; they must also implement them and bring them to life. The 
interaction between the two systems is so multifaceted that a few examples 
are called for.

The first illustration of how the EU and national legal orders mesh with 
and  complement  each  other  is  the  directive,  already  considered  in  the 
chapter on legislation. All the directive itself fixes in binding terms is the 
result to be achieved by the Member State; it is for national authorities, 
via  domestic  law,  to  decide  how  and  by  what  means  the  result  is  actu-
ally  brought  about.  In  the  judicial  field,  the  two  systems  mesh  through 
the preliminary ruling procedure referred to in Article 267 of the TFEU, 
whereby national courts may, or sometimes must, refer questions on the 
interpretation  and  validity  of  Union  law  to  the  Court  of  Justice,  whose 
ruling may well be decisive in settling the dispute before them. Two things 
are clear: firstly, the courts in the Member States are required to observe 
and apply Union law; and secondly, the interpretation of Union law and 
declarations as to its validity are the sole preserve of the Court of Justice. 
The interdependence of EU and national law is further illustrated by what 
happens when gaps in EU law need to be filled: Union law refers back to 
existing  rules  of  national  law  to  complete  the  rules  it  itself  determines. 
This  principle  applies  to  the  full  range  of  obligations  under  Union  law 
unless the latter has laid down rules for its own enforcement. In any such 
case, national authorities enforce Union law by the provisions of their own 
legal systems. But the principle is subject to one proviso: the uniform ap-
plication of Union law must be preserved, for it would be wholly unaccept-
able for citizens and undertakings to be judged by different criteria — and 
therefore be treated unjustly.

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1 March 2004. 
Woman drawing a chalk map of Europe as it would look at 1 January 2007.

T h e A B C  O F e U R O Pe A N U N I O N L AW

coNFlict betweeN u NioN law aNd NatioNal law

However, the relationship between Union law and national law is also char-
acterised by an occasional ‘clash’ or conflict between the Union legal order 
and the national legal orders. Such a situation always arises when a provision 
of  Union  law  confers  rights  and  imposes  obligations  directly  upon  Union 
citizens  while  its  content  conflicts  with  a  rule  of  national  law.  Concealed 
behind this apparently simple problem area are two fundamental questions 
underlying the construction of the EU, the answers to which were destined 
to become the acid test for the existence of the EU legal order, namely the 
direct applicability of Union law and the primacy of Union law over conflict-
ing national law.

DiReCT APPliCAbiliTy oF union lAW To nATionAl lAW

Firstly, the direct applicability principle simply means that Union law con-
fers rights and imposes obligations directly not only on the Union institu-
tions and the Member States but also on the Union’s citizens.

One of the outstanding achievements of the Court of Justice is that it has 
enforced the direct applicability of Union law despite the initial resistance 
of certain Member States, and has thus guaranteed the existence of the EU 
legal order. Its case-law on this point started with a case already mentioned, 
namely that of the Dutch transport firm Van Gend & Loos. The firm brought 
an  action  in  a  Dutch  court  against  the  Dutch  customs  authorities,  which 
had charged increased customs duties on a chemical product imported from 
the Federal Republic of Germany. In the final analysis, the outcome of these 
proceedings depended on the question of whether individuals too may in-
voke Article 12 of the EEC Treaty, which specifically prohibits the introduc-
tion by the Member States of new customs duties and the increase of existing 
duties in the common market. Despite the advice of numerous governments 
and its Advocate General, the Court ruled that, in view of the nature and 
objective of the Union, the provisions of Union law were in all cases directly 
applicable. In the grounds for its judgment, the Court stated that:

‘... the Community constitutes a new legal order ... the subjects 
of which comprise not only the Member States but also their 
nationals. Independently of the legislation of Member States, 
Community law not only imposes obligations on individuals but 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

is also intended to confer upon them rights. These rights arise not 
only where they are expressly granted by the Treaty, but also by 
reason of obligations which the Treaty imposes in a clearly defined 
way upon individuals as well as upon the Member States and upon 
the institutions of the Community.’

That bald statement does not, however, get us very far, since the question re-
mains as to which provisions of Union law are directly applicable. The Court 
first of all looked at this question in relation to primary Union legislation 
and declared that individuals may be directly subject to all the provisions of 
the Union Treaties which (i) set out absolute conditions, (ii) are complete in 
themselves and self-contained in legal terms and therefore (iii) do not require 
any further action on the part of the Member States or the Union institu-
tions in order to be complied with or acquire legal effect.

The Court ruled that the former Article 12 EEC met these criteria, and that 
the firm Van Gend & Loos could therefore also derive rights from it which 
the court in the Netherlands was obliged to safeguard, as a consequence of 
which the Dutch court invalidated the customs duties levied in contraven-
tion of the Treaty. Subsequently, the Court continued to apply this reason-
ing in regard to other provisions of the EEC Treaty that are of far greater 
importance to citizens of the Union than Article 12. The judgments that are 
especially noteworthy here concern the direct applicability of provisions 
on freedom of movement (Article 45 TFEU), freedom of establishment 
(Article 49 TFEU) and freedom to provide services (Article 56 TFEU).

With regard to the guarantees concerning freedom of movement, the Court 
of Justice delivered a judgment declaring them directly applicable in the Van 
Duyn case. The facts of this case were as follows: Miss van Duyn, a Dutch 
national, was in May 1973 refused permission to enter the United Kingdom 
in order to take up employment as a secretary with the Church of Scientol-
ogy, an organisation considered by the Home Office to be ‘socially harmful’. 
Invoking  the  Union  rules  on  freedom  of  movement  for  workers,  Miss  van 
Duyn brought an action before the High Court, seeking a ruling that she was 
entitled to stay in the United Kingdom for the purpose of employment and be 
given leave to enter the United Kingdom. In answer to a question referred by 
the High Court, the Court of Justice held that Article 48 of the EEC Treaty 
(Article 45 TFEU) was directly applicable and hence conferred on individu-
als rights that are enforceable before the courts of a Member State.

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The Court of Justice was asked by the Belgian Conseil d’État to give a ruling 
on the direct applicability of provisions guaranteeing freedom of establish-
ment. The Conseil d’État had to decide on an action brought by a Dutch 
lawyer, J. Reyners, who wished to assert his rights arising out of Article 52 
of the EEC Treaty (Article 49 TFEU). Mr Reyners felt obliged to bring the 
action after he had been denied admission to the legal profession in Bel-
gium because of his foreign nationality, despite the fact that he had passed 
the necessary Belgian examinations. In its judgment of 21 July 1974, the 
Court held that unequal treatment of nationals and foreigners as regards 
establishment  could  no  longer  be  maintained,  as  Article  52  of  the  EEC 
Treaty had been directly applicable since the end of the transitional period 
and hence entitled Union citizens to take up and pursue gainful employ-
ment in another Member State in the same way as a national of that State. 
As a result of this judgment Mr Reyners had to be admitted to the legal 
profession in Belgium.

The Court of Justice was given an opportunity in the Van Binsbergen case to 
specifically establish the direct applicability of provisions relating to the free-
dom to provide services. These proceedings involved, among other things, 
the question of whether a Dutch legal provision to the effect that only per-
sons habitually resident in the Netherlands could act as legal representatives 
before an appeal court was compatible with the Union rules on freedom to 
provide services. The Court ruled that it was not compatible on the grounds 
that all restrictions to which Union citizens might be subject by reason of 
their nationality or place of residence infringe Article 59 of the EEC Treaty 
(Article 56 TFEU) and are therefore void.

Also of considerable importance in practical terms is the recognition of the 
direct applicability of provisions on the free movement of goods (Article 41 
TFEU), the principle of equal pay for men and women (Article 157 TFEU), 
the general prohibition of discrimination (Article 25 TFEU) and freedom 
of  competition  (Article  101  TFEU).  As  regards  secondary  legislation,  the 
question of direct applicability only arises in relation to directives and deci-
sions addressed to the Member States, given that regulations and decisions 
addressed  to  individuals  already  derive  their  direct  applicability  from  the 
Union Treaties (Article 288(2) and (4) TFEU). Since 1970 the Court has 
extended its principles concerning direct applicability to provisions in direc-
tives and in decisions addressed to the Member States.

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

The practical importance of the direct effect of Union law in the form in 
which it has been developed and brought to fruition by the Court of Justice 
can scarcely be overemphasised. It improves the position of the individual 
by turning the freedoms of the common market into rights that may be en-
forced in a national court of law. The direct effect of Union law is therefore 
one of the pillars, as it were, of the EU legal order.

PRimACy oF union lAW oveR nATionAl lAW

The direct applicability of a provision of Union law leads to a second, equally 
fundamental question: what happens if a provision of Union law gives rise to 
direct rights and obligations for the Union citizen and thereby conflicts with 
a rule of national law?

Such a conflict between Union law and national law can be settled only if 
one gives way to the other. Union legislation contains no express provision 
on the question. None of the Union Treaties contains a provision stating, for 
example, that Union law overrides or is subordinate to national law. Never-
theless, the only way of settling conflicts between Union law and national 
law is to grant Union law primacy and allow it to supersede all national pro-
visions that diverge from a Union rule and take their place in the national 
legal orders. After all, precious little would remain of the EU legal order if 
it were to be subordinated to national law. Union rules could be set aside by 
any national law. There would no longer be any question of the uniform and 
equal application of Union law in all Member States. Nor would the EU be 
able to perform the tasks entrusted to it by the Member States. The Union’s 
ability to function would be jeopardised, and the construction of a united 
Europe on which so many hopes rest would never be achieved.

No  such  problem  exists  as  regards  the  relationship  between  international 
law  and  national  law.  Given  that  international  law  does  not  become  part 
of  a  country’s  own  legal  order  until  it  is  absorbed  by  means  of  an  act  of 
incorporation or transposition, the issue of primacy is decided on the basis 
of  national  law  alone.  Depending  on  the  order  of  precedence  ascribed  to 
international  law  by  a  national  legal  system,  it  may  take  precedence  over 
constitutional law, be ranked between constitutional law and ordinary statu-
tory law, or merely have the same status as statutory law. The relationship 
between  incorporated  or  transposed  international  law  and  national  law  is 
determined by applying the rule under which the most recently enacted legal 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

provisions prevail against those previously in place (lex posterior derogat legi 
priori). These national rules on conflict of laws do not, however, apply to the 
relationship between Union law and national law, because Union law does 
not form part of any national legal order. Any conflict between Union law 
and national law may only be settled on the basis of the EU legal order.

Once  again  it  fell  to  the  Court  of  Justice,  in  view  of  these  implications,  to 
establish — despite opposition from several Member States — the principle of 
the primacy of Union law that is essential to the existence of the EU legal order. 
In so doing, it erected the second pillar of the EU legal order alongside direct 
applicability, which was to turn that legal order into a solid edifice at last.

In Costa v ENEL, the Court made two important observations regarding the 
relationship between Union law and national law.

■■

The  Member  States  have  definitively  transferred  sovereign  rights  to 
a  Community  created  by  them  and  subsequent  unilateral  measures 
would be inconsistent with the concept of EU law.

■■

It is a principle of the Treaty that no Member State may call into ques-
tion the status of Union law as a system uniformly and generally ap-
plicable throughout the EU.

It follows from this that Union law, which was enacted in accordance with 
the powers laid down in the Treaties, has primacy over any conflicting law 
of the Member States. Not only is it stronger than earlier national law, but it 
also has a limiting effect on laws adopted subsequently.

Ultimately, the Court did not in its judgment call into question the national-
isation of the Italian electricity industry, but it quite emphatically established 
the primacy of Union law over national law.

The legal consequence of this rule of precedence is that, in the event of a 
conflict of laws, national law which is in contravention of Union law ceases 
to apply and no new national legislation may be introduced unless it is com-
patible with Union law.

The Court has since consistently upheld this finding and has, in fact, devel-
oped it further in one respect. Whereas the Costa judgment was concerned 
only with the question of the primacy of Union law over ordinary national 
laws, the Court confirmed the principle of primacy also with regard to the 

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T h e  A B C  O F e U R O Pe A N U N I O N L AW

relationship between Union law and national constitutional law. After ini-
tial hesitation, national courts in principle accepted the interpretation of the 
Court of Justice. In the Netherlands, no difficulties could arise anyway, be-
cause the primacy of Treaty law over national statute law is expressly laid 
down in the constitution (Articles 65 to 67). In the other Member States, 
the principle of the primacy of Union law over national law has likewise been 
recognised  by  national  courts.  However,  the  constitutional  courts  of  Ger-
many and Italy initially refused to accept the primacy of Union law over na-
tional constitutional law, in particular regarding the guaranteed protection 
of fundamental rights. They withdrew their objections only after the protec-
tion of fundamental rights in the EU legal order had reached a standard that 
corresponded  in  essence  to  that  of  their  national  constitutions.  However, 
Germany’s Federal Constitutional Court continues to entertain misgivings 
about further integration, as it has made quite clear in its judgments on the 
Treaty of Maastricht and, more recently, the Treaty of Lisbon.

inTeRPReTATion oF nATionAl lAW in line WiTh union lAW

To prevent conflict between Union law and national law arising from the 
application of the rule of precedence, all State bodies that specifically imple-
ment or rule on the law can draw on the interpretation of national law in 
line with Union law.

It took a fairly long time for the concept of interpretation in line with EU law 
to be recognised by the Court of Justice and incorporated into the Union legal 
order.  After  the  Court  of  Justice  had  initially  considered  it  to  be  appropri-
ate to ensure that national laws were in harmony with a directive only when 
requested to do so by national courts, it established an obligation to interpret 
national law in accordance with the directives for the first time in 1984 in the 
case  Von  Colson  and  Kamann.  This  case  ruled  on  the  amount  of  compensa-
tion to be awarded for discrimination against women with regard to access to 
employment. Whereas the relevant German legal provisions provided only for 
compensation for ‘Vertrauensschaden’ (futile reliance on a legitimate expecta-
tion), Directive 76/207/EEC states that national law must provide for effective 
penalties to ensure that equal opportunities are provided with regard to access 
to employment. Since, however, the relevant penalties were not set out in more 
detail, the directive could not be considered directly applicable on this point, 
and there was a risk that the Court of Justice would have to rule that, although 
the national law failed to comply with Union law, there was no basis for the 

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T h e A B C  O F e U R O Pe A N U N I O N L AW

national courts to not take the national law into account. The Court of Justice 
therefore ruled that the national courts were obliged to interpret and apply na-
tional legislation in civil matters in such a way that there were effective penal-
ties for discrimination on the basis of gender. A purely symbolic compensation 
would not meet the requirement of an effective application of the directive.

The Court of Justice attributes the legal basis for the interpretation of na-
tional  law  in  line  with  Union  law  to  the  general  principle  of  sincere  co-
operation (Article 4(3) TEU). Under this article, Member States must take 
all appropriate measures, whether general or particular, to ensure fulfilment 
of the obligations arising out of the EU Treaty or resulting from action taken 
by the Union institutions. The national authorities are therefore also obliged 
to bring the interpretation and application of national law, which is second-
ary  to  Union  law,  into  line  with  the  wording  and  purpose  of  Union  law 
(duty of cooperation). For the national courts, this is reflected in their role 
as European courts in the sense that they ensure the correct application and 
observance of Community law.

One  particular  form  of  interpretation  of  national  law  in  accordance  with 
Union law is that of interpretation in accordance with the directives, under 
which Member States are obliged to implement directives. Legal practition-
ers and courts must help their Member States to meet this obligation in full 
by applying the principle of interpretation in accordance with the directives. 
Interpretation of national law in accordance with the directives ensures that 
there is conformity with the directives at the level at which law is applied, 
and thus ensures that national implementing law is interpreted and applied 
uniformly in all Member States. This prevents matters from being differen-
tiated at national level which have just been harmonised at Union level by 
means of the directive.

The  limits  of  interpretation  of  national  law  in  line  with  Community  law 
are  in  the  unambiguous  wording  of  a  national  law  which  is  not  open  to 
interpretation;  even  though  there  is  an  obligation  under  Community  law 
to interpret national law in line with Union law, national law may not be 
interpreted ‘contra legem’. This also applies in cases where the national legis-
lator explicitly refuses to transpose a directive into national law. A resulting 
conflict between Union law and national law can be resolved only by means 
of proceedings against the Member State concerned for failure to fulfil obli-
gations under the Treaty (Articles 258 and 259 TFEU).

123

27 September 1964, Brussels. 
Car displaying a European registration plate parked in front of the 
‘Joyeuse entrée’, building, the future headquarters of the European 
Commission, which was under construction. 

T h e A B C  O F e U R O Pe A N U N I O N L AW

Conclusions

What overall picture emerges of the EU’s legal order?

The EU’s legal order is the true foundation of the Union, giving it a com-
mon system of law under which to operate. Only by creating new law and 
upholding it can the Union’s underlying objectives be achieved. The EU legal 
order has already accomplished a great deal in this respect. It is thanks not 
least  to  this  new  legal  order  that  the  largely  open  borders,  the  substantial 
trade in goods and services, the migration of workers and the large number 
of transnational links between companies have already made the common 
market part of everyday life for some 500 million people. Another, histo r-
ically important, feature of the Union legal order is its peacemaking role. 
With  its  objective  of  maintaining  peace  and  liberty,  it  replaces  force  as  a 
means of settling conflicts by rules of law that bind both individuals and the 
Member States into a single Community. As a result the Union legal order is 
an important instrument for the preservation and creation of peace.

The community of law of the EU and its underlying legal order can survive 
only if compliance with and safeguarding of that legal order are guaranteed 
by the two cornerstones: the direct applicability of Union law and the pri-
macy of Union law over national law. These two principles, the existence and 
maintenance of which are resolutely upheld by the Court of Justice, guaran-
tee the uniform and priority application of Union law in all Member States.

For  all  its  imperfections,  the  EU  legal  order  makes  an  invaluable  contri-
bution towards solving the political,  economic  and social problems of the 
Member States of the Union.

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Annex

JurisprudeNce

nature and primacy of  
union law

Case 26/62 Van Gend & Loos [1963]  
ECr 1 (nature of Union law;  
rights and obligations of individuals).

Case 6/64 Costa v ENEL [1964]  
ECr 1251 (nature of Union law;  
direct applicability,  
primacy of Union law).

Case 14/83 Von Colson and Kamann 
[1984] ECr 1891 (interpretation of 
national law in line with Union law).

Case C-213/89 Factortame [1990]  
ECr I-2433 (direct applicability and 
primacy of Union law).

Joined Cases C-6/90 and C-9/90 
Francovich and others [1991] ECr 
I-5357 (effect of Union law; liability of 
Member States for failure to discharge 
Union obligations: non-transposal of a 
directive).

Joined Cases C-46/93 and C-48/93 
Brasserie du pêcheur and Factortame 
[1996] ECr I-1029 (effect of Union law; 
general liability of Member States for 
failure to discharge Union obligations).

Joined Cases C-10/97 to C-22/97  
IN.CO.GE ‘90 [1998] ECr I-6307  
(primacy of Union law).

Case C-416/00 Morellato [2003]  
ECr I-9343 (primacy of Union law).

Joined Cases C-397/01 to C-403/01 
Pfeiffer and others [2004] ECr I-8835 
(interpretation of national law in line 
with Union law).

Powers of the eu

Case 8/55 Fédération charbonnière de 
Belgique [1954–1956] ECr 292 (implied 
powers; official fixing of prices).

Case 22/70 AETR [1971] ECr 263 (legal 
personality and treaty-making powers 
of the EU).

Case 6/76 Kramer [1976] ECr 1279 
(external relations; international 
commitments; authority of the EU).

Opinion 1/91 [1993] ECr I-6079 (EEA 
Agreement I; distribution of powers).

Opinion 2/91 [1993] ECr I-1061 
(distribution of powers between the 
EU and the Member States).

Opinion 1/94 [1994] ECr I-5267 (WTO 
Agreement; distribution of powers).

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Opinion 2/94 [1996] ECr I-1759 
(accession by the EC to the ECHr; 
absence of powers).

Case C-91/92 Faccini Dori [1994]  
ECr I-3325 (directives; horizontal direct 
effect).

effects of legal acts

Case 2/74 Reyners [1974] ECr 631 
(direct applicability; freedom of 
establishment).

Case 33/74 van Binsbergen [1974]  
ECr 1299 (direct applicability; provision 
of services).

Case 41/74 Van Duyn [1974] ECr 1337 
(direct applicability; freedom of 
movement).

Case 11/77 Patrick [1977]  
ECr 1199 (direct applicability; right of 
establishment).

Case 70/83 Kloppenburg [1984]  
ECr 1075 (directives; direct 
applicability).

Case 152/84 Marshall [1986] ECr 723 
(directives; direct applicability).

Case 103/88 Costanzo [1989] ECr 
1861 (directives; direct applicability; 
conditions; consequences).

Case 322/88 Grimaldi [1989] ECr 4407 
(recommendations; direct applicability 
or its absence; observance by national 
courts).

Case C-188/89 Forster [1990] ECr I-3343 
(directives; horizontal direct effect).

Case C-292/89 Antonissen [1991]  
ECr I-773 (statements in Council 
minutes; status for interpretation 
purposes).

Case C-431/92 Commission v Germany 
(grosskotzenburg) [1995] ECr I-2189 
(directive; effect of objective law).

Case C-465/93 Atlanta 
Fruchthandelsgesellschaft [1995]  
ECr I-3761 (examination of validity of a 
regulation; preliminary ruling; ordering 
of interim measures; conditions).

Case C-469/93 Chiquita Italia [1995]  
ECr I-4533 (direct effect of provisions 
of the gATT and the Lomé 
Convention).

Case C-368/96 Generics [1998]  
ECr I-7967 (statements in minutes; 
status for interpretation purposes).

Case C-144/01 Mangold [2005]  
ECr I-9981 (directive; horizontal direct 
effect).

Fundamental rights

Case 29/69 Stauder [1969] ECr 419 
(fundamental rights; general principles 
of law).

Case 11/70 Internationale 
Handelsgesellschaft [1970] ECr 1125 
(fundamental rights; general principles 
of law).

Cases 146/73 and 166/73 Rheinmühlen 
I, II [1974] ECr 33 and 139 (extent to 
which national courts are bound by 
rulings of higher courts).

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Case 4/73 Nold [1974] ECr 491 
(fundamental rights; general principles 
of law; common constitutional 
traditions).

Case 175/73 Amalgamated European 
Public Service Union [1974] ECr 917 
(freedom to form associations).

Case 130/75 Prais [1976] ECr 1589 
(freedom of religion and belief).

Case 149/77 Defrenne [1978] ECr 1381 
(fundamental rights; general principles 
of law).

Case 44/79 Hauer [1979] ECr 3727 
(fundamental rights; right of property).

Case 85/79 Hoffmann-La Roche [1979] 
ECr 461 (fundamental rights; principle 
of the right to be heard).

Case 293/83 Gravier [1985] ECr 593 
(equal treatment; students’ fees).

Case 234/85 Keller [1986] ECr 2897 
(freedom to pursue a trade or 
profession).

Joined Cases 46/87 and 227/88 Hoechst 
[1989] ECr 2919 (fundamental rights; 
principle of the right to be heard; 
administrative procedure; inviolability 
of the home; reference to the ECHr).

Case 265/87 Schräder [1989] ECr 2263 
(right of ownership; freedom to pursue 
a trade or profession; restrictions).

Case 5/88 Wachauf [1989] ECr 2633 
(restrictions on fundamental rights).

Case C-219/91 Ter Voort [1992]  
ECr I-5485 (freedom of expression).

Case C-97/91 Borelli [1992] ECr I-6313 
(fundamental rights; right to take 
action in the courts).

Case C-357/89 Raulin [1992]  
ECr I-1027 (equal treatment; 
prohibition of discrimination on 
grounds of nationality).

Case C-132/91 Katsikas [1992]  
ECr I-6577 (fundamental rights; 
freedom to pursue a trade or 
profession).

Case C-2/92 Bostock [1994]  
ECr I-955 (fundamental rights; right 
of ownership; freedom to pursue a 
trade or profession; observance when 
implementing EU law).

Case C-280/93 Germany v Council 
[1994] ECr I-5065 (right of ownership; 
freedom to pursue a trade or 
profession; restrictions in the public 
interest).

Case C-415/93 Bosman and others 
[1995] ECr I-4921 (fundamental 
rights; freedom to pursue a trade or 
profession).

Case C-55/94 Gebhard [1995]  
ECr I-4165 (fundamental rights; right 
of establishment; freedom to pursue a 
trade or profession).

Opinion 2/94 [1996] ECr I-1759 
(fundamental rights; accession by the 
EU to the ECHr).

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Case C-377/98 Netherlands v Parliament 
and Council [2001] ECr I-7079 (human 
dignity; right to physical integrity).

Case C-274/99 P, Connolly [2001]  
ECr I-1611 (freedom of opinion).

Case C-60/00 Carpenter [2002]  
ECr I-6279 (protection of the family).

Case C-112/00 Schmidberger [2003] 
ECr I-5659 (bounds of Community 
fundamental rights; freedom of 
assembly and freedom of opinion).

Case C-276/01 Steffensen [2003] 
ECr I-3735 (right to effective legal 
protection).

Case C-25/02 Rinke [2003] ECr I-8349 
(general principle of equality).

Case C-36/02 Omega [2004] ECr I-9609 
(bounds of fundamental rights).

geNeral priNciples oF law 
(selectioN)

legal certainty

Joined Cases 18/65 and 35/65 Gutmann 
[1967] ECr 61.

Case 98/78 Racke [1979] ECr 69.

Case 96/78 Decker [1979] ECr 101.

Case 70/83 Kloppenburg [1984]  
ECr 1075.

Joined Cases T-551/93 and T-231/94 to 
T-234/94 Industrias Pesqueras Campos 
and Others [1996] ECr II-247.

Joined Cases T-116/01 and T-118/01 
P & O European Ferries (Vizcaya) v 
Commission [2003] ECr II-2957.

Proportionality

Case 116/76 Granaria [1977] ECr 1247.

Case 265/87 Schräder [1989] ECr 2237.

Case C-161/96 Südzucker [1998] ECr 
I-281.

Case C-171/03 Toeters [2004]  
ECr I-10945.

Protection of legitimate 
expectations

Case 74/74 CNTA [1975] ECr 533.

Case 120/86 Mulder [1988] ECr 2321.

Case 170/86 Von Deetzen [1988]  
ECr 2355.

Case C-368/89 Crispoltoni I [1991]  
ECr I-3695.

Case T-119/95 Hauer [1998] ECr II-2713.

Case 61/79 Denkavit [1980] ECr 1205.

subsidiarity principle

Cases 66/79, 127/79 and 128/79 Salumi 
[1980] ECr 1237.

Case T-29/92 SPO [1995] ECr II-289.

Case C-84/94 United Kingdom v Council 
[1996] ECr I-5755.

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Joined Cases C-36/97 and C-37/97 
Kellinhusen and Ketelsen [1998] ECr 
I-6337.

Case C-491/01 British American Tobacco 
(Investments) and Imperial Tobacco 
[2002] ECr I-11453.

union citizenship

Case C-85/96 Martínez Sala [1998]  
ECr I-2691.

Case C-184/99 Grzelczyk [2001]  
ECr I-6193.

Case C-224/98 d’Hoop [2002] ECr I-6191.

Case C-413/99 Baumbast [2002]  
ECr I-7091.

Case C-403/03 Schempp [2005]  
ECr I-6421.

131

european Commission
The ABC of European Union law
by Professor Klaus-Dieter Borchardt

Luxembourg: Publications Office of the european Union, 2010

2010 — 131 pp. — 163 × 250 mm

ISBN 978-92-78-40525-0 

doi:10.2830/13717