EU Law Articles
- Introduction to EU Law
- Theories of European Integration
- EU Institutions
- Democracy in the EU
- Infringement Action
- EU Internal Market
- Free Movement of Goods
- Free Movement of Services
- Free Movement of Persons
- EU Sports Law
Introduction to EU Law
Past and Future of EU Law
History of the EU Catalyst for Integration • World War II devastated Europe economically, morally, and physically, acting as a catalyst for integration. Europe Recast: A History of European Union, Desmond Dinan Historical Attempts at Unity • Various historical figures and regimes, such as the Holy Roman Emperors, Napoleon, and Hitler, sought
Oscar MacDonald
Theories of European Integration
How We Think of the EU: Theories Explaining the Fragility of the European Project: Intergovernmentalism
Theories of Integration 1. Intergovernmentalism ◦ European integration is driven by member states (MS), serving their interests. ◦ Unlike a unified country (e.g., Scotland or Catalonia within the UK/Spain), an EU member state can freely leave the Union. Key Thinkers and Concepts • Alan Milward, “The European Rescue of the Nation-State”
Oscar MacDonald
How We Think of the EU: Theories Explaining the Fragility of the European Project: Supranationalism
Supranationalism • Represents a united image of Europe with a decision-making forum above nation states. • Creates a new political space for whatever citizens desire. • This idea was particularly strong at the beginning of the EU’s formation. Historical Milestones • Schuman Declaration (1950) ◦ Proposed the creation of the European Coal and Steel Community
Oscar MacDonald
How We Think of the EU: Theories Explaining the Fragility of the European Project: Neo-functionalism
Functionalism • International institutions can address challenges more effectively than national institutions. • As these institutions grow, they create a spillover effect, eventually becoming normative and gaining enforcement powers. • In the short term, it is possible to separate technical competencies of international organisations from political questions. However, in the long term, this
Oscar MacDonald
How We Think of the EU: Theories Explaining the Fragility of the European Project: Postfunctionalism
Postfunctionalism • Post-functionalism highlights the tension between the demands for integration and the political pressures to resist it. • Further integration arises from political conflicts and struggles, not from technocratic consensus. • This theory acknowledges the possibility of European disintegration, with Brexit being a prime example. Key Figures and Ideas • Hooghe and Marks
Oscar MacDonald
Summary: Theories of European Integration
Intergovernmentalism * European integration is driven by the strategic choices of member states. These choices are made to protect national interests, often through inter-state bargaining. * While supranational bodies facilitate decision-making, the ultimate control remains with the member states. Functionalism • International institutions address challenges better than national ones. • Initial technical competencies lead
Oscar MacDonald
Integration through Law and Europe’s Geopolitical Awakening
Integration through Law • Core Concept: Law is a central instrument for managing interdependence between EU member states (MS). Europe’s Geopolitical Awakening (Luuk Van Middelaar, 2021) • Future of the EU: Advocates a geopolitical approach, suggesting a significant shift in strategy. • Geopolitics: Focuses on power, territory, and narrative. • Impact of the
Oscar MacDonald
Liberal Conceptions of the Law: Input, Output, and Throughput Legitimacy
Input Legitimacy • Concept: Government by the people. We follow the law because of the democratic values and processes through which it is constructed. • Political Criterion for Legitimacy: Emphasises the importance of democratic participation and values in the creation of laws. Output Legitimacy • Concept: Government for the people. We follow the
Oscar MacDonald
Scholars on European Integration
Schimmelpfennig, “A Comparison of the Eurozone and Schengen Crises,” 2018 Eurozone Crisis: Deepened Integration 1. European Financial Stability Facility (EFSF) ◦ Creation of a permanent rescue fund. ◦ A private company that issued bonds guaranteed by wealthier Euro countries to aid indebted countries. ◦ Replaced by the European Stability Mechanism (ESM), a permanent
Oscar MacDonald
EU Institutions
European Commission: Structure, Function, and Dynamics
Mandate and General Interest (Article 17 TEU) The European Commission (EC) is tasked with promoting the general interest of the Union. Despite its significant role, the EC’s members are not directly elected by EU citizens. Each Member State (MS) nominates a Commissioner, typically someone from the ruling party’s political family.
Oscar MacDonald
The European Council: Structure, Functions, and Dynamics
Mandate and Composition (Article 15 TEU) The European Council comprises the Heads of State or Government of every Member State (MS), making it the EU’s most high-profile political body. It was formalised by the Lisbon Treaty and is responsible for setting the general direction and priorities of the European Union.
Oscar MacDonald
European Parliament: Structure, Functions, and Evolution
Mandate and Composition (Article 14 TEU) The European Parliament (EP) is composed of approximately 700 parliamentarians, with the total number not exceeding 750. Seats are allocated based on population size, with no Member State (MS) receiving more than 96 seats. Key Functions 1. Legislative and Budgetary Functions: ◦ No law can
Oscar MacDonald
Council of the European Union (Council of Ministers)
Mandate and Composition (Article 16 TEU) The Council of the European Union, also known as the Council of Ministers, is a crucial decision-making body within the EU. It comprises government ministers from each EU Member State (MS), who meet in different configurations depending on the policy area being discussed. Key
Oscar MacDonald
The Scope of EU Competence and Regulation
Foundational Principle: The European Union (EU) can only regulate areas where it has been expressly given power by the Member States (MS). This is known as the principle of conferral. Types of Competences: 1. Exclusive Competences (Article 3 TFEU): ◦ Only the EU can legislate and adopt legally binding acts. ◦ Examples
Oscar MacDonald
The Ordinary Legislative Procedure (OLP) and Legislative Dynamics in the EU
Articles of Interest: • Article 294 TFEU: Governs the Ordinary Legislative Procedure (OLP). • Article 114 TFEU: Relates to the co-decision procedure involving the European Parliament (EP) and the Council of the European Union (Council), aiming for institutional balance and accommodating differing interests in the legislative process. Historical Context: • Pre-Lisbon Treaty: The
Oscar MacDonald
Trilogues: An Informal but Essential Mechanism in EU Legislation?
Purpose and Process: • Informal Meetings: Trilogues involve representatives from the European Parliament (EP), the Council of the European Union (Council), and the European Commission (EC) meeting informally before the formal Ordinary Legislative Procedure (OLP). • Compromise and Efficiency: These meetings aim to find a compromise that allows legislation to pass in
Oscar MacDonald
Scholarly Perspectives on Trilogues
Roederer-Rynning and Greenwood, 2021: • Interpretive Analysis: This study examines trilogues through an interpretive lens, emphasising the need to understand the beliefs and meanings that the people involved ascribe to the process. This approach helps to comprehend the EU lawmaking process by focusing on the perspectives of those engaged in trilogues.
Oscar MacDonald
Democracy in the EU
Democracy in the EU
The EU and Representative Democracy The European Union as we know it today was significantly shaped by the Maastricht Treaty in 1992, marking a transition from a primarily economic community to a political union. This shift has raised the pressing question: How can the EU become more democratic? Article 10
Oscar MacDonald
Three Perspectives on Democracy in the EU
Understanding democracy in the European Union involves examining various conceptual frameworks. Each offers a different lens through which to view the EU’s democratic nature and functionality. 1. The EU as Exercising State Power Though the EU is not a state, it exhibits many state-like characteristics. This perspective explores the
Oscar MacDonald
EU Reforms and the Role of National Parliaments (NPs)
National Parliaments (NPs) in the EU have been given several important roles through reforms aimed at enhancing their involvement in EU governance. These roles include overseeing the application of the principle of subsidiarity, engaging substantively with EU policy-making, and holding their own governments accountable. 1. Supervising the Application of the
Oscar MacDonald
EU Reforms: Spitzenkandidaten Process
Definition: • Spitzenkandidaten: A German term meaning ‘lead candidate,’ designed to bring the head of the EU’s executive closer to citizens. Legal Framework: • Art. 17(7) TEU: Establishes that the European Council, “taking into account” the results of the European Parliament (EP) elections, proposes a candidate for President of
Oscar MacDonald
EU Reforms: Transnational Party Lists
Background: • Democratic Problem: Currently, voters choose national parties rather than European ones, leading to a focus on national rather than EU-wide issues. The aim is to strengthen EU politics by enabling voters to support European parties with a clear vision for Europe. Conference on the Future of the EU (CoFoE)
Oscar MacDonald
EU Reforms: European Citizens’ Initiative (ECI)
Overview: • Legal Basis: Article 11(4) TEU allows EU citizens to influence the European Commission’s agenda through the European Citizens’ Initiative (ECI). Citizens can propose legislative changes by gathering at least 1 million signatures across at least seven member states. Process: • Submission: Once 1 million signatures are collected, the
Oscar MacDonald
EU Reforms: Treaty Reform
Context and Background: • Post-CoFUE: Following the Conference on the Future of Europe (CoFEU), the European Commission released a communication in 2022 indicating that it would take the proposals seriously but provided no detailed commitment. Report by Franco-German Working Group (2023): • Significance: This report is influential due to the prominent role
Oscar MacDonald
Infringement Action
Article 258 TFEU: Infringement Action
Overview: • Purpose: Art. 258 TFEU allows the European Commission (Com) to take legal action against Member States (MS) that fail to fulfil their obligations under EU law. • Static Nature: This provision has seen minimal changes over the past 50 years, reflecting its relatively static role in the Treaties. Process: 1.
Oscar MacDonald
Art. 260 TFEU - Infringement Procedure for Financial Sanctions
Overview: • Purpose: Art. 260 TFEU allows the European Commission (Com) to seek financial sanctions from the Court of Justice of the European Union (ECJ) against Member States (MS) that fail to comply with judgments issued under Art. 258 TFEU. • Nature: Art. 260 operates differently from Art. 258, focusing on financial
Oscar MacDonaldEvolution of Art. 258 TFEU - Infringement Procedures
Overview: • Purpose: Art. 258 TFEU allows the European Commission (Com) to initiate legal action against Member States (MS) that fail to fulfil their obligations under EU law. Traditionally seen as a weaker enforcement tool, Art. 258 has gained importance, especially in addressing rule of law crises in Hungary and Poland.
Oscar MacDonald
Analysis on Effectiveness of Art. 258 TFEU: Matteo Bonelli’s Perspective
Overview: Matteo Bonelli provides a critical assessment of Art. 258 TFEU in the context of protecting EU values, particularly regarding its use alongside Art. 19 and Art. 47 TEU. Bonelli’s analysis highlights several key issues with Art. 258’s effectiveness and explores potential future directions for enhancing the protection of
Oscar MacDonaldAnalysis of the EU Pilot Program and Its Impact on Infringement Procedures
Overview: The EU Pilot Program, initiated in 2008, represents a shift in the European Commission’s approach to managing infringement procedures. Rather than relying solely on formal infringement actions under Art. 258 TFEU, the EU Pilot aims to facilitate conciliatory dialogue between the Commission and Member States (MS) to resolve potential
Oscar MacDonaldEU Internal Market
Structure of the Internal Market
Article 26 TFEU • Article 26 TFEU establishes the foundational goal of the EU internal market: • Objective: “The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured.” • Scope: It encompasses the removal of barriers to trade and aims
Oscar MacDonald
UK Internal Market Act and Its Implications
Background: • Need for Regulation: Post-Brexit, the UK needed to manage trade between its four nations (England, Scotland, Wales, and Northern Ireland) amidst varying devolved powers and regulatory frameworks. • EU Rules Context: Prior to Brexit, EU free movement rules governed trade between these regions. With Brexit, the UK sought to establish
Oscar MacDonald
Free Movement of Goods
Free Movement of Goods
Article 34 TFEU: • Text: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.” • Purpose: To ensure the free movement of goods within the EU by prohibiting import restrictions and measures that act like import restrictions. Quantitative Restrictions on Imports: • Definition: These include tariffs,
Oscar MacDonald
Phase 1: Dassonville (Article 34 - Free Movement of Goods)
Geddo v Ente Nazionale Riso (1973): • Context: Italian regulations imposed a quantitative restriction on the import of rice. • Decision: The ECJ held that Article 34 TFEU covers not only quantitative restrictions but also any measures that create a total or partial restraint on the free movement of goods. This case
Oscar MacDonald
Phase 1: Cassis de Dijon (Article 34 - Free Movement of Goods)
Context: • A German supermarket wanted to sell French blackcurrant liquor, Cassis de Dijon. • German law required spirits to have a minimum alcohol strength of 25%, whereas Cassis de Dijon contained 15-20%. • The validity of the German law was contested under Article 34 TFEU. • Decision: The ECJ ruled that this German
Oscar MacDonald
Phase 2: Keck and Mithouard (Article 34 - Free Movement of Goods)
Context: • Growing litigation related to non-discriminatory measures affecting the sale of goods, even if these measures applied equally to domestic and foreign operators and had only minor trade impacts. • The courts began to push back against these claims to limit the scope of Article 34. White and Mortelmans (1989): • Proposal:
Oscar MacDonald
Phase 3: Italian Trailers (Article 34 - Free Movement of Goods)
Background: • After Keck and Mithouard, there was debate about whether measures affecting the use of products (user arrangements) should fall under Article 34. Scholars and practitioners debated the extent to which such measures impacted market access and whether they fit within the existing framework. Key Cases: 1. Commission v Portugal
Oscar MacDonald
Scholarly Perspectives on Article 34 TFEU
Snell, “The Notion of Market Access” (2010): • Critique of Market Access: ◦ Normative Justification: Snell argues that the normative basis for distinguishing between market access and other forms of economic freedom is unclear. The theoretical justification for separating direct and indirect effects, or market access from the exercise of economic freedoms,
Oscar MacDonald
Case Analysis: Scotch Whiskey Association and Minimum Alcohol Pricing
Background: • Legislation at Issue: Scottish legislation introduced a minimum price for alcohol as a public health measure. • Challenge: Scottish Whiskey producers contested this legislation, arguing it violated Article 34 TFEU and the Single Common Market Organisation Regulation (1308/2012), which governs the internal market for agricultural products. • Keck Implications: Post-Keck,
Oscar MacDonald
UK Internal Market Act and Its Implications
Background: • Need for Regulation: Post-Brexit, the UK needed to manage trade between its four nations (England, Scotland, Wales, and Northern Ireland) amidst varying devolved powers and regulatory frameworks. • EU Rules Context: Prior to Brexit, EU free movement rules governed trade between these regions. With Brexit, the UK sought to establish
Oscar MacDonaldFree Movement of Services
The Free Movement of Services
Economic Relevance: • Significance: Services constitute about 70% of the EU’s GDP and are a foundational pillar of the modern economy. Legal Framework: 1. Article 56 TFEU: ◦ Prohibition of Restrictions: “Restrictions on freedom to provide services within the Union shall be prohibited.” ◦ Applicability: Applies to cases where the service provider
Oscar MacDonald
Services Directive 2006/123
Objective: • Purpose: The directive aims to liberalise the EU market for services, aligning with the Lisbon Strategy from the 2000 Lisbon European Council summit. This strategy emphasised a shift towards a services-based economy in the EU. Background: • Original Proposal (Bolkestein Proposal): Proposed introducing the principle of mutual recognition, allowing service
Oscar MacDonald
Services in Action: Art. 56 Free Movement of Services
Transposing Economic Rationale to Non-Economic Questions: The economic rationale underpinning the Free Movement (FM) of services is often centred on market efficiency and competition. However, when applying this rationale to non-economic questions, such as the regulation of wages and working conditions for posted workers, the implications become more complex. 1.
Oscar MacDonald
Laval Quartet: Impact and Implications
Overview: The “Laval Quartet” refers to a series of four significant cases decided by the Court of Justice of the European Union (CJEU) within a short period, reshaping the understanding and application of the Posted Workers Directive. These cases highlight the tensions between the free movement of services and the
Oscar MacDonald
Art. 56 TFEU and Free Movement of Services in Healthcare
Overview: The free movement of services under Article 56 TFEU involves allowing service providers and recipients to operate across EU Member States. This principle applies to healthcare services as well, raising significant challenges regarding organisation, financing, and access to care. Key Cases and Developments: 1. Kohll and Decker (1998) ◦ Decker
Oscar MacDonald
Art. 56 TFEU and Free Movement of Services: Gambling
Overview: Gambling services present a unique intersection of EU law and national regulatory frameworks, reflecting significant moral, religious, and cultural differences among Member States (MS). These differences extend to the management of tax revenue, concerns about gambling addiction, and organised crime. Art. 56 TFEU ensures the free movement of services,
Oscar MacDonald
Scholarly Perspectives on Art. 56 TFEU and Free Movement of Services
Constitutional Quality of Free Movement Provisions (De Witte): 1. Depoliticisation of Labour Law: ◦ Structural Impact: De Witte critiques how the free movement provisions have depoliticised labour law. By emphasising economic freedoms, the Court’s rulings often sideline labor’s structural and normative dimensions. This depoliticisation reduces the ability of Member States (MS)
Oscar MacDonald
Free Movement of Persons
Free Movement of Persons
Art. 3(2) TEU: • Freedom, Security, and Justice: The Treaty on European Union (TEU) envisions the EU as an area of freedom, security, and justice, ensuring the free movement of persons within its internal borders. This commitment aims to create a seamless space where citizens can move without restrictions, reflecting
Oscar MacDonald
Art. 45 TFEU: Rights as a Worker
1. Equal Treatment of Workers Art. 7 Regulation 492/2011 (Workers Regulation): • Abolition of Nationality-Based Discrimination: ◦ Equal Social and Tax Advantages: Art. 7 of Regulation 492/2011 ensures that workers from other Member States (MS) are treated equally to national workers regarding social and tax advantages. This regulation prohibits any
Oscar MacDonald
Scholarly Criticism from the Left on Art. 45 TFEU: Free Movement of Persons
1. Commodification • Workers as Instruments of Market Integration: ◦ Commodification Critique: Critics argue that Art. 45 TFEU, while facilitating free movement, treats workers as mere instruments for achieving market integration rather than as individuals with intrinsic rights. This perspective views workers as objects to be used for economic purposes, reducing their
Oscar MacDonald
Scholarly Criticism from the Right on Art. 45 TFEU: Free Movement of Persons
1. Too Much Immigration • National Concerns: ◦ Czech Republic and Italy’s Concerns: Some EU member states, including the Czech Republic and Italy, have voiced concerns over high levels of immigration facilitated by Art. 45 TFEU. They argue that the free movement of persons leads to an excessive influx of immigrants, which
Oscar MacDonald
Article 45 Free Movement of Persons: Impact of Brexit
1. Standstill Clause • Protection for Existing Workers: ◦ Pre-Brexit Rights: Under the Withdrawal Agreement, workers who were already residing and working in the UK before Brexit (January 31, 2020) are granted continued protection. Their rights are preserved in the same way as when the UK was an EU member state. This
Oscar MacDonald
Article 45 Free Movement of Persons: Impact of COVID-19
1. Early 2020: COVID-19 Outbreak and National Restrictions • COVID-19 Pandemic: The outbreak of COVID-19 in early 2020 led to significant disruptions across the European Union, including the re-imposition of border controls between Member States (MS). These restrictions were initially introduced to curb the spread of the virus but had substantial
Oscar MacDonald
EU Sports Law
The Autonomy of Sports
Context: • Social Importance: ◦ Identification: Sports play a significant role in the emotional lives of many people. The attachment to sports teams can be profound, sometimes leading to heightened emotional responses. For instance, incidents such as domestic violence have been reported to increase when a favoured sports team experiences a loss.
Oscar MacDonald
EU as a Global Sports Regulator
Reluctance to Regulate Sports at National Level: 1. Risk of Punishment by Federations: ◦ Example of Spain: National governments may face sanctions from international sports federations if they interfere in the governance of sports. For instance, if Spain attempts to remove corrupt decision-makers from its sports system, the international federation might
Oscar MacDonald
EU Sports Competence and the European Sports Model
European Commission’s Involvement: 1. Competition Proceedings: ◦ FIFA World Cups: The European Commission has initiated competition proceedings related to the FIFA World Cup, addressing issues such as exclusivity agreements and anti-competitive practices in sports events. ◦ 1990 Package Tour Operators and 1998 Tickets: The Commission challenged practices regarding the sale of package
Oscar MacDonald
Scholarly Debate on EU Sports Law
The Idea of Europe in Football: • De Witte and Zglinski: Europeanisation of Football ◦ Media Consumption Explosion: There has been a significant increase in the consumption of football media across Europe, which has broadened fans’ frame of reference and identification with European football. ◦ Trans-European Club Competitions: The rise of trans-European club
Oscar MacDonald