Lecture 1

Law is prescriptive, law is both rules that regulate people’s behaviour as procedures to enforce these rules. Law is not always about morality and justice, you can for example carry a weapon by law, but still discuss the morality of it.

Domestic law can be divided into public law and private law.

Public law is about the relations between individuals and the state. Part of this are constitutional law (the constitutions of a country), administrative law and criminal law.

Private law is about the relations between individuals. Part of this is private international law. This is adjusted when individuals behave in a certain way that has a transboundary consequence, which lead to conflict of laws.

Public international law is law that focusses on interstate relations, this is what we focus on in the IRIO-program. It is made by states collectively. Other actors cannot make law, but their behaviour is regulated by international law, because they have rights and obligations. Public international law is based on the concept of sovereignty. Nowadays international law interferes more in states, but the question is whether states are willing to give up sovereignty.

In public international law there are several international courts. The international court of Justice (ICJ) is settled in the peace palace in The Hague. It deals with disputes over international law between states. The international Crime court is also settled in The Hague. It primarily deals with the responsibility of individuals in international affairs.

In international organisations there are two groups. IGO’s and NGO’s.

An IGO is an intergovernmental organisation, these are based on the sovereign-state-principle and therefore not supranational. The aim of IGO’s is to regulate international affairs. After the WWI the League of Nations was founded to maintain peace. After WWII the United Nations was founded. In Europe there are three important IGO’s. Firstly, the European Union that focusses on economic cooperation, the European Court of Justice established in Luxemburg is part of it. Secondly, the council of Europe, it’s a human rights organisation with the European Court of Human Rights in Strasburg. Lastly, the organization of security and Co-operation in Europe, with 57 members all over the world. NGO’s are non-governmental organisation, these are not based on the support of states.

History of international law

At first the church helped the emperor to maintain power. During the 16^th and 17^th century a system of sovereign states was introduced. Sovereignty means that there is no supreme power above states. During the peace of Westphalia in 1648 this was established. The different parties had to negotiate and cooperate, this is the start of international relations.

An important person in international law was Hugo Grotius (Hugo de Groot). He wrote ‘De jure belli ac pacis’ in 1625. Moreover he introduced the ‘just war theory’ containing two important concepts. Firstly, ‘jus ad bello’, which was about going to war. Nowadays this is can be compared to the law of peace and security. Secondly, ‘jus in bello’, how to behave when being in war, nowadays international humanitarian law. The whole point of the just war theory was to question when a war is just.

In the 19^th century L.F.L. Oppenheim stated that international law was between states, therefore they were the only actors and should be the only subjects of international law. Nowadays that has changed. Until the 19^th century the characteristics of international law were that it was between states, not supra-national and based on consent.

In the 20^th century lots of changes made the whole system more complex. Nations had to collaborate with each other in order to fight against treats. These increased cooperation is seen in treaties, which can be seen as positive agreements. Moreover the importance of international organisations grew. An international community evolved with its own interests and values.

Sources of international law

A source is a place where you can find international law. It’s is difficult to identify what the law is, sincere there’s no legislation.

Article 38 of the Statue of the international court of justice deals with the sources of international law. This is an authoritative document, because every UN-member has agreed on it. It states that there are 3 primary sources: international conventions (treaties), customary international law and general principles. Judicial decisions and teachings of highly qualified publicists are subsidiary sources.

There’s no explicit ranking, but a treaty rule prevails on customary international law, unless the customary rule is more recent or jus cogens. New treaties cannot derogate from existing customary international law.

Treaties

Treaties can be bilateral, which means between two states, or multilateral, between many states.

There are different stages in the process of treaty making.

Firstly, the negotiation. States representatives agree on the content of a treaty. This is also called drafting a treaty. Then the treaty is adopted, but it’s not yet in force. Thirdly, states should express their consent to be bound. This can be done by a signature (this has limited meaning, you cannot act against the object and purpose of the treaty), exchange of instruments, ratification (this means that after signing, you bring it to your own parliament that approves of the treaty), acceptance, approval of accession. When this is done the treaty can entry into force.

Customary international law

Customary international law (CIL) means that rules on how to behave that everyone applied become law. People follow a certain rule because they feel legally obliged to do so.

Customary law has two elements, the first is the material element. This is about state practice, it means that states have to behave in a certain way. The second one is the psychological element of opinio juris. Opinio juris means that states behave the way they do, because they feel they should act that way.

How long should a practice last for it to become a customary law?

Paragraph 74 of the NSCS-case states that a custom doesn’t have to be practiced for a long time, it can come to existence in a short period of time.

How extensively should a practice been practiced for it to become a custom?

It should be practices constantly, uniformly, extensively and virtually. Uniform use is not about the number of states involved, but about their identity. Are they involved and does it affect them.

Court case: The North Sea continental self-case. This case is an important document in CIL.

General principles

An example of a general principle is good faith. Other general principles are:

Lex posterior derogat priori: a later law goes above an earlier law, Lex specialis derogat legi generali: a more specific law prevails about a more general law and Lex posterior generalis non derogat priori speciali: a later general law doesn’t prevail above a specific previous law

Judicial decisions and teachings of the most highly qualified scholars

These are not primary sources, but still very important. Courts don’t have to follow previous decisions, though it is good for judicial consistency and they should be taken into account.

Teachings are important statements made by well establish scholars.

Other sources

Other sources of international law are decisions of international organisations and the international law commission.

Soft law

Soft law is law that is not legally binding. Example is the UN declaration on development.

Jus cogens

Jus cogens is Latin for forced law. It means that these laws go above all other laws and apply under all circumstances.

Lecture 2

Subjects of international law

Subjects of law are those who participate in international law. It are the entities that carry international personality, which means that they are capable of possessing international rights and duties under international law.

States

Article 1 of the Montevideo convention contains the criteria of a state.

Firstly, a state should have a permanent population, there is no minimum population required. Secondly, it should have a defined territory. Thirdly, there’s a government that is effective. The government should be independent and it should have legislative and administrative competences. If there’s no government for a period of time, this doesn’t mean a state is not a state, it can be a failed state then. Moreover if non-governmental forces control the area a state can still be a state. The last criterion is that the government has the capacity to enter into relations with other states. This is not a formal requirement, but more of a consequence of the other criteria. To be able to enter into relations, a state must be recognized by other states.

International organisations

International organisations are the most important subject of international law besides states, this means of course that international organisations have international personality. An important document while talking about international personality is the advisory opinion ‘reparation for injuries suffered in the service of the United Nations.’ An advisory opinion is an opinion on an issue that can only be requested by certain bodies in the UN. It’s is not legally binding, but very authoritative. You could even call them soft law.

In this case the UN general assembly requested the International court of justice for an advisory opinion after the murder of UN mediator Bernadotte. They wondered if the UN was authorized to bring an international claim. This advisory opinion has concluded several things on international personality. The outcome was that the UN is an international person, because it is capable of possessing international rights and duties, but the rights and duties are different from states. States possesses full international personality, while others have limited.

Individuals

International law is expanding, human rights is a specific branch of international law it is based on internationally agreed values, they regulate the conduct of states

Individuals have human rights (based on human rights treaties). Human rights are rights of individuals that states should guarantee. They also have limited duties, they can be held responsible under international criminal law. Therefore domestic courts use international law to deal with international criminals.

There are three different periods in which new rights were introduced, the so-called three-generations of rights. During the age of enlightenment people started thinking about civil and political rights. These are the first-generation-rights, such as the right to vote, freedom of religion and so on.

The second-generation-rights are economic, social and cultural rights. During the 19^th century the social conditions such as poverty became visible during the industrial revolution. Social rights movements evolved, for example the international labour organisation. Second-generation-rights are rights such as the right to food and housing.

The third-generation-rights are also called collective rights. The most important right is the right to self-determination. Article 1 of both the ICCPR (=international covenant on civil and political rights) and the ICESCR (international covenant on economic, social and cultural rights) deal with self-determination. This implies that people can demand statehood themselves. Historically this right was important during colonialism. Colonized people expressed their right to self-determination in order to obtain statehood. The difficulty of this article was that it raised the question whether it also was a right to secession, to become independent. Resolution 1514 of the UN general assembly stated that this is not.

In 1948 the universal declaration of human rights (UDHR) was adopted. Eleanor Roosevelt was one of the people who was active in making this. It’s a declaration and therefore not legally binding, though it is authoritative. Some rights have become into customary international law, for example article 4 in which slavery is prohibited. The UDHR contains both first and second generation rights. The International covenant on civil and political rights (ICCPR) and the international covenant on economic, social and cultural rights (ICESCR) were both set up in 1966. These two are the most important treaties on human rights. It’s not one treaty since there was a disagreement on the nature and authority of human rights, the USA for example only signed the first one. For the western world the first generation rights were important, while the second-generation right were more important to the Eastern world. These rights were in line with communist ideas in the USSR (Soviet-union).

All rights have both positive and negative obligations for states. Positive rights means that states have to do something in order to implement it, while negative rights mean that states should not do something.

Other UN human right treaties

-International convention on the elimination of all forms of racial discrimination (CERD)

-Convention against torture (CAT)

-Convention on the elimination of all forms of discrimination against women (CEDAW)

-Convention on the rights of the child (CRC), this treaty is one of the most widely ratified treaties in the world and contains both first and second-generation-rights.

Each treaty has its own UN Treaty monitoring body. These bodies are quasi-judicial and not legally binding. Their job is to monitor human rights, since there’s no international human rights court. Firstly, states have to submit a report to the body to say how it’s performing in relation to the treaty. Dealing with these reports is the most important function of a monitoring body. There are also a few optional things these bodies can do. Dealing with states complaints is one of them. This means that one state can complain about the human rights violation by another country. Another one is dealing with individual complaints. Moreover they can do an inquiry on how states implement a treaty and the last thing is that they can make a general comment. A general comment is a non-binding document that provides comment on a right.

Human rights in Europe

The council of Europe has also set up treaties on human rights. In 1953 the European convention of human rights (ECHR), in 1965 the European social charter (ESC) and in 1989 the European convention for the prevention of torture (ECPT).

The European court of human rights (ECtHR) monitors the European convention on human rights, which is a convention on the protection of human rights and fundamental freedoms.

You can go to this court as an individual, but there are 3 criteria. Firstly, you have no were to go in your own land, which means that you have already been to the highest domestic court and there’s no other option than the European court. Secondly, you have to submit your claim within six months after the violation of human rights. Lastly, you must be a victim, but this cerium is quite flexible, you can also have a close connection to the victim.

Other monitoring bodies are the European committee of Social rights (ECSR) and the European committee for the prevention of torture (CPT). The ECS monitors the European social charter. The committee has 15 independent members and they deal with cases admitted to them. They have a collective complaint mechanism, which means that you cannot go there as an individual. A group has to exercise the complaint and should be represented by an NGO with a special (participatory) status.

Multinationals

Multinational Corporation have a growing power, the question is whether they can carry responsibilities under international law. They are for example bind by human rights, even though they haven’t ratified them.

Holy See

The Holy See is also a subject of international law, it has full personality, because it has the same capabilities that states have. Since 1995 a group of Catholics oppose to this, they argue that the Holy See should not participate in international law, since it’s a religious organization.

International vs national law

International law is used in national law and national law in international law.

Effect of national law at international level

Art. 27 of VCLT states that national law can’t be an excuse to deviate from international law, in addition art. 46 states that national law cannot lead to the invalidity of a treaty. National law can also be used to decide what a general principle is, so it’s used as an interpretation of international law.

Effect of international law at national level

States need to implement the treaty at domestic level. They need to act in compliance with the treaty, so sometimes domestic laws have to be adjusted.

There are two different systems states use to deal with national and international law, monism and dualism. States can decide for themselves which system they adjust. After ratifying or signing a treaty the treaty is directly adopted in a monist system, it’s in direct use which means you can go to court with it. In a dualist system international law need to be transformed into national law.

Monism is a system in which both international and national law are part of the same system. After ratification a treaty directly becomes part of national law. International law always prevails. Dualism means that international and national law are independent of each other. International law therefor can only be applied on the national level if it’s adopted in national law, it has to become national law.

The Netherlands have monist system, Dutch courts work for example a lot with the ECHR, but on some issues, especially on social rights it’s more difficult. Courts tend to stay away from it and won’t always let international law prevails.

The UK has a dualist system, there’s a strict separation between international and national law. A treaty has to been translated into an enabling act.

To conclude, the USA has a system that is quite similar to the UK, but they also have a distinction between self-executing and non-self-executing treaty provisions.

Lecture 3

Jurisdiction

State sovereignty is an important concept in international law. The consequence of this is that states have jurisdiction. Jurisdiction comes from the words ‘juris dicere’. There is territorial jurisdiction and extraterritorial jurisdiction. Territorial jurisdiction means that states have the right to make laws, take legal decisions and enforce the law in their own territory. Everyone in that territory is subject to the jurisdiction of the state. They have to respect the sovereign rights of other states, who also have territorial jurisdiction.

There are two exceptions in which states can act beyond their borders. The first is called extra-territorial jurisdiction. The second one immunity.

Firstly, extra-territorial jurisdiction. This has manly to do with criminal jurisdiction. The territorial principle can be made extra-territorial in some cases. When someone for example stands close to the Dutch-German border and shoots from one side to the other and kills someone on the other side. The territorial principle is about the place where an acts happens, but in this case the act is done in one place and has a consequence in another place.

Two important concepts are the subjective territorial principle, which is about the question where the act is done and the objective principle, where is the act completed. In this example there would be a different subject and object, so both countries have jurisdiction.

Another example has to do with the nationality principle. You can be punished in your own country for something you’ve done somewhere else. States have the right to make laws that can be applied to all nationals, so whether they are in the state or somewhere else. If you commit a crime somewhere else, you can be punished in your country. Again, two states can has jurisdiction because of the active or nationality principle, that is about who commits the crime, and the passive or personality principle, which is about who is the victim of the crime. In case of a terrorist a state can claim to be victim of the attack by the personality principle and therefor persecute the terrorist.
 

A third example of extra-territorial jurisdiction has to do with the protective principle. This mean that states can protect essential interests of the states outside the states.

A last example involves the universality principle. This has mainly to do with international crimes which are so bad that every state in the world has the right to prosecute such an international crime. This is the case with for example torture and genocide. The universal jurisdiction under international law has an application in international law. For example in the Eichmann-Case. Eichmann was prosecuted in Israel.

Immunities

In case of extra-territorial jurisdiction states have more jurisdiction. Immunities in the contrary limits as states jurisdiction. There are different forms of immunity, state immunity and diplomatic immunity.

Firstly, state immunity is immunity for people that represent the stat. This has to do with the principle of ‘par in parem non habet imperium’. Since states are equal, one state cannot be subject to someone else’s jurisdictions. It’s important to note the following difference. In public acts of a state there is full immunity, but in commercial acts there is no immunity. For example if a state’s representative buys weapons for the army, you have to look at the nature of the contract to see whether it is an commercial act or an act for the public. A state cannot act as a commercial entity and have immunity at the same time. An important convention is the convention on jurisdictional immunities of states and their properties. It’s important to realise that this treaty was signed, but never ratified.

The head of state, head of government and minister of foreign affairs have full immunity, because the must be at all times able to represent their county.

High-ranking state officials have an immunity that is derived from state immunity. They can have a functional/official immunity and a personal/private immunity. This means that if someone is in function, he has full immunity and he can’t be sued. But when he’s not in function he can be hold responsible for his actions.

An important case while thinking of immunity is the Pinochet case. Pinochet was president of Chile and during his time people were tortured. The interesting thing is whether he could be prosecuted for this now he’s retired, because it’s difficult to determine whether it was a private or functional act.

A different form of immunity is diplomatic immunity. This enables diplomats to do their work safely. Diplomatic immunity means that diplomats are immune from the jurisdiction of the state they work in as diplomats, but not in other states. Diplomatic immunity is based on an agreement between states, while state immunity is based on sovereignty. The Vienna convention on Diplomatic relations is an important document while thinking of diplomatic immunity.

State responsibility

States should be held accountable for violating international law. This is not about criminal law, but about states stopping the violating of international law and repairing the harm they caused. An important article is the draft articles on responsibility of states for internationally wrongful acts. Art. 1 states ‘Every internationally wrongful act of a state entails the international responsibility of that state.’ An internationally wrongful act is a violating of international law. In the case of state responsibility there must have been a breach of international law and it also must be attributable to the state.

Attribution is an important concept. It means that a state is responsible because it did something wrong, but it can also be that a state omitted something. An example is the Iran regime. In 1970 the former regime in Iran was taken over by a new regime. The UK and USA always supported the old regime and therefor they were seen as enemies of the new regime. Students who sympathized with the new regime therefor attacked the embassies. The US embassy was occupied and a diplomatic agent was taken in hostage. The question was whether the new regime was responsible for the attacks or not. They were, because they omitted to prevent the students from attacking the embassies. It is sometimes difficult to prove the link between the state and the persons who actually committed the act.

In the draft articles you can find a list of provisions in state responsibility. Important articles are art. 4/ art. 5/ art. 7/ art. 8 /art. 10/ art. 11.

Lecture 4

Speaker: Dr. Lorenzo Squintani

Development of the European Union

The EU was established shortly after the Second World War with the original purpose of “peace and well-being”, a goal that is reflected in Article 3(1) of the Treaty of the European Union (TEU). It accomplishes this purpose though a gradual integration of socio-economic development within Europe, described as the “process of creation of an ever closer union” in Article 1 TEU. This process has both a widening and a deepening component.

Widening

The widening factor can be defined as the geographical expansion of EU influence, expressed in practice by the joining of more member states. The European Economic Community (EEC), as it was originally called, first consisted of 6 members. Over the years, it has grown in size until today there are 28 members of the EU as of 2013.

Deepening

The deepening factor deals with the gradual ‘spilling over’ of integration into new sectors, leading to an expansion of the areas under EU influence (see Lecture 5 on Competences). This is referred to as neo-liberalism. The EEC started off as an integration of coal and steel production in 1952, as these were vital resources necessary for war. By creating an integrated market for these materials, it makes it very difficult for one member state to engage in war with another, thus fulfilling the purpose of the EU in ensuring peace. Gradually, new sectors were added to this internal market, including nuclear energy production in 1957. Eventually, the union was expanded to socio-political aspects and fundamental human rights. Recent expansions include the monetary union in the form of the Euro, as well as a growing role of the EU as a political actor. The speed of this gradual expansion was varied through time, for example during the ‘eurosclerosis’ from 1966 to the mid-1980s when France blocked many expansion policies in the voting process, thus slowing integration down significantly. The 2008 economic crisis had a similar effect.

Approaches

The EU has three different approaches to implement change, and this reflects its unique nature as an international organization.

Intergovernmental

Firstly, it operates on an intergovernmental level, meaning it serves only as a way for the European states to interact with one another and make collective decisions, without having any power of its own. Initially the EU was a primarily intergovernmental organization, however this has changed over time.

Supranational

Secondly, the EU has supranational characteristics, that is, it has certain powers that go beyond the nations that make it up. It can act independently of its member states, but is still under influence from them. As agreements like the Maastricht Treaty (1992) deepened the EU’s power, the union shifted more towards a supranational set-up in many regards, with the Treaty of Amsterdam (1997) greatly increasing the use of a Qualified Majority Vote, reducing the need for unanimous state agreement on decisions. The implementation of the co-decision procedure (see Horizontal) also reduced the direct control of the member states over EU legislation. The Lisbon treaty (2007) further expanded on this and gave us the TEU and the Treaty on the Functioning of the EU (TFEU) that we apply today.

Federalism

The third approach goes a step further and suggests the establishment of a federation, a completely independent government that is supreme over the member states. This last step is little more than an ideal as of now, but the EU may take on such a role in the future. The Charter of Fundamental Rights established in the Lisbon Treaty can be said to be a step in the direction of a future constitution, a key component of any federation.

Nature of EU Law

EU law is different from common public international law in two significant regards. It is both autonomous and supreme.

Autonomy

EU law is autonomous in the sense that it exists independently of national law and is directly applicable. This means the concepts of monism and dualism discussed in earlier lectures don’t apply in regard to EU law. This autonomy was clearly established in the Van Gend en Loos case before the European Court of Justice.

Supremacy

EU law is supreme in the sense that it takes precedence over national law in the case of a conflict between the two. This is different from the concepts of international law as discussed in previous lectures, where a later law supersedes an older one and a specific law takes priority over a more general one. As shown in the Costa & ENEL case, EU law always takes precedent over national law in order to establish a homogenous legal system (see Lecture 5 on Harmonization).

Three Dimensions of the EU

All EU activities can be assessed in three different dimensions, namely the Substantive, Vertical and Horizontal dimensions. All three are important to understanding the actions and roles of the EU.

Substantive

The substantive dimension deals with the tangible significance of EU actions to a certain area or sector of European society. For example, the value of an action can be assessed in terms of its benefits to the internal market or its environmental implications.

Vertical

The vertical dimension deals with the interests of the various players represented in the EU. Article 13(1) TEU states that the EU serves “it’s [EU] interests, those of its citizens and those of the Member States”, showing the multiple parties represented in every action the EU takes. The EU’s own interests are reflected in it’s the goal of “creating an ever closer union”, as seen in Article 1 TEU. The Member States include the governments of the 28 states party to the EU Treaties, and citizens include legal persons of the member states. As we will see in the next dimension, each of these players is represented within the EU institutions.

Horizontal

The horizontal dimension makes up the institutions of the EU, as laid out in Article 13(1) TEU. These include the legislative institutions (European Commission, European Parliament, Council of Ministers), a judicial institution (European Court of Justice) and several specialized institutions (Council of Auditors, European Central Bank). We will be focusing only on the legislative institutions for now.

European Parliament

The European Parliament (EP) represents the citizen’s interests and is composed of directly elected independent representatives according to Article 14(2) TEU. The EP, in collaboration with the Council, is tasked primarily with legislation and budget management, as well as some international agreements, as outlined in Article 14(1) TEU. For the sake of this course, we will focus on the EP’s role in deciding on secondary EU law, that is, additional legislation based on the primary law outlined in the TEU and TFEU. The common process for this is outlined in Article 298 TFEU, and includes the Commission proposing legislation and the EP co-deciding with the Council on what to pass.

Council

The Council of Ministers, commonly referred to simply as the Council, serves the member state’s interests and is composed of ministerial representatives from the respective states according to Article 16(2). In addition to sharing many of the responsibilities of the EP, the Council plays a larger role in the EU’s foreign policy, as well as delegating non-legislative powers to the Commission. Once again, the focus is primarily on secondary legislation, where the Council makes up the second half of the co-decision procedure outlined in Article 298 TFEU. The Council works primarily on a Qualified Majority Voting system in order to avoid the member states holding a form of veto power and thereby protects EU interests.

Commission

The European Commission, referred to simply as the Commission, represents the EU’s own interests, consisting of 28 independent members as outlined in Article 17 TEU. The Commission has a number of responsibilities, most notably it’s initiation of the common legislative procedure as seen in Article 298 TFEU as well as its scrutiny of Member States’ compliance with existing EU law (Article 258 TFEU).

Lecture 5

Speaker: Dr. Lorenzo Squintani

Harmonization

We now move from the EU institutions to the decision making process itself. The recurring theme of EU activities is the concept of harmonization, which is the attempt to create a uniform set of laws upon which all member states rely, as opposed to each state operating by its own legal system. In practice, this means the removal or reduction of disparities, that is, outliers from the norm, in the member states’ national laws, thereby ‘harmonizing’ certain areas of European societies.

Exhaustive vs. Partial

There are two different extents to which harmonization takes place in a certain sector of EU society. Exhaustive harmonization is the complete regulation of a sector by the EU, with no areas left for the member states to decide upon. In contrast, partial harmonization takes place when only certain aspects are regulated by the EU, while the rest is left to the individual states to decide upon.

Total vs. Minimum

The nature of the harmonization laws themselves can also be divided into two categories. Some law is totally harmonizing, meaning there is no flexibility for the member states to work with. This would for example be the case with an EU-wide ban of certain drugs. Other laws only serve as a minimum harmonization, where a certain minimum or maximum limit is set, but the member states are free to go beyond the minimum to whatever extent they feel appropriate. For example, the EU might set a certain minimum wage for workers, but the member states are free to raise the minimum wage in their national law even higher.

Negative vs. Positive

Finally, harmonization is either negative or positive. This has nothing to do with morality or right and wrong, but rather whether the harmonization is passive (negative) or active (positive). Negative, passive harmonization is based on the base treaty law and makes up the broad, ‘default’ laws of the EU. This includes the internal market and the European Charter for Fundamental Rights. Positive, active harmonization deals with the specific regulations and changes established through secondary EU law. This includes specific market standards and provisions for certain details not specified in the base treaty law.

Institutional Principles in Decision Making

This positive harmonization, the so-called ‘playing rules’ of the EU, is established by the legislative institutions dealt with in Lecture 4. There are three questions that need to be asked for any harmonization action to take place: When, whether and how? These questions are expressed in the forms of the principles of conferral, subsidiarity and proportionality respectively.

Conferral (When)

The principle of conferral deals with what competences the member states have conferred, or passed over, to the EU sphere of influence, as outlined in Article 5(1+2) TEU. A full list of these competences can be found in Articles 3-6 TFEU, while the full legal basis and details can be found in the TFEU via the table of contents. It is important to consult these whenever the question of correct legal basis comes up, as any action by the EU institutions must be backed up by a legal basis, which dictates the actors involved, the correct procedure to follow and the objective by which the new law must abide, corresponding with the three dimensions of the EU introduced in Lecture 4.

Vertical (Actors)

The question raised in regard to this dimension is when does the EU have the capacity to take a certain action, and when is it left to the member states to act? Competences fall into three categories.

Firstly, exclusive competences are areas that are placed entirely under EU legislation, with no member state legal interference, according to Article 2(1) TFEU.

Secondly, there are shared competences in which the EU and the member states share legislative power, according to Article 2(2) TFEU. However, EU law in these areas is still supreme and cannot be superseded by national laws.

Finally, the EU has certain support, coordination or supplement competences as laid out in Article 2(5) TFEU, which remain in the member states control and where the EU merely offers assistance to member state actions.

Once again, the list of which competences fall into which category can be found in Articles 3-6 TFEU. These are the explicit competences. Additionally, Article 352 TFEU can be used as a legal basis for ‘residual competences’, the more implicit kind that does is not expressly stated elsewhere.

Horizontal (Procedure)

Once it has been established that the EU has competence, the next question related to which institutions play a role in the procedure. As outlined in Lecture 4, the three legislative institutions each represent a different groups’ interests. Thus, there is a certain rivalry between them.

When it comes to legislative activity, some legal bases allow for one institution to retain all of the decision-making power, while others require the full co-decision procedure with all three institutions involved. This creates a situation in which the institutions will attempt to adopt a legal basis that benefits them, and disputing decisions made by the other institutions before the Court of Justice of the European Union (CJEU) if there is a disagreement (see Lecture 6 on Court Procedures). Examples of this include the EP vs. Council case on the protection of forests, as well as the Commission vs. Council case on small arms regulations.

Since often more than one legal base can be applied, the CJEU will then undergo a ‘center of gravity’ test to see whether the chosen one is indeed the most appropriate one. This takes into account how well the aims of the law correspond with the various competences and legal bases.

Substantive (Objective)

This leads us to the final dimension, the one dealing with the objective of the piece of legislation. An important rule is that the legal basis applies both to the aim and the content of the act. This means that the content must clearly be appropriate in fulfilling the aim if the legal base is to be correctly applied.

All three dimensions need to be considered when choosing the appropriate legal base.

Subsidiarity (Whether)

When it comes to non-exclusive competences, the principle of subsidiary asks the question of whether it would be most optimal for the EU to act, or whether it would be simpler to leave it to the member states. It is briefly outlined in Article 5 (1+3) TEU.

Tests

Two tests that can be used to answer this question. Firstly, the transboundary nature of the area in question can be discussed. Does the issue have a significance to the entirety of the EU, or is it merely a national issue that doesn’t have to be applied beyond a member state’s boundaries? Secondly, the concept of economies of scale can be applied, asking the question of what would be the most efficient course of action. Is it easier for all the individual member states to act on their own accord, or for one larger act by the EU to unify regulations? Protocol Nr. 2, which can be found in the Blackstone reader, elaborates on the specific procedures related to the subsidiarity principle.

Proportionality (How)

Finally, the principle of proportionality, outlined in Article 5(1+4) TEU, deals with the form and content of the act itself.

Considerations

Three considerations that need to be made to decide whether an act is proportional are as follows. Firstly, is the act suitable for achieving the aim? Does it actually fulfill the purpose? Secondly, is it necessary in order to achieve the aim, or are there simpler or more effective alternatives? And finally, is the act not excessively burdensome to other areas of society. Essentially, do the overall benefits of the act outweigh the costs, for example to the environment? Once again, Protocol Nr. 2 gives details on the procedures involved.

Marginal Review

One final point that needs to be made is that the CJEU generally only performs a ‘marginal review’ when it comes to proportionality, meaning it leaves the question of suitability, necessity and burden at the partial discretion of the institutions involved in making the legislation, so as to not impose judicial power over legislative responsibilities. This was seen and explained in the Fedesa case, where the question of proportionality was addressed.

Lecture 6

Speaker: Dr. Lorenzo Squintani

Court of Justice

The Court of Justice of the European Union (CJEU) makes up the judiciary component of the EU, and deals with the implementation stage of the secondary law laid down by the legislative institutions.

Structure

According to Article 19 TEU, the CJEU consists of a number of different courts.

Firstly, the European Court of Justice (ECJ), not to be confused with the institution as a whole, takes the role of ‘supreme court’ and is where the most significant cases are addressed. It consist of one judge from each member state (28 total) who are selected from among senior national judges and legal experts with particular focus given to their independence. Unlike many other courts, the ECJ only submits a single opinion in its judgement, meaning the individual judges are not identified and therefore no bias can be deduced.

Additionally, the General Court acts as a ‘court of first instance’, meaning it is the court where most cases are first brought up initially, some of which are then referred to the ECJ where necessary. It operates in much the same way as the ECJ and was established with the initial goal of reducing the ECJ’s work load.

Finally, there are also certain specialized courts that deal with particular types of common cases.

ECJ Competences

According to Article 19(1) TEU, the ECJ has the responsibility and authority to deal with the upholding EU law. There are two direct actions that can be taken via the court, namely: Infringement procedures, as outlined in Articles 258-260 TFEU, can be used to deal with a violation or refusal to abide by EU law by a member state or individual. Actions of annulment of EU law can be requested according to Article 263 TFEU if a certain law can be shown to be illegitimate (see Lecture 5 on legal bases) or in violation of certain fundamental laws such as laid out in the base treaties. Finally, the ECJ can also provide preliminary rulings to national courts on the interpretation and validity of EU law relating to specific situations, as expressed in Article 267 TFEU.

The court has general jurisdiction in regards to EU law, however has no competence in regards to the direct validity of national law, as seen in Article 19 TEU, as this falls within the realm of national courts. Additionally, Articles 275 and 276 TFEU exclude the Common Foreign and Security Policy (CFSP) and police operations under Freedom, Security and Justice (FSJ) respectively from the court’s competences.

Interpretation of EU Law

When interpreting EU Law, the ECJ uses a primarily teleological approach, which involves analyzing the goals and objectives of secondary law as well as the base treaties to determine their implied meaning. The effectiveness or validity of an action can then be assessed in accordance with these. Additionally, the court may make use of a systematic approach, where the context of the law are taken into account to discover its purpose. Finally, all interpretation of EU law must remain within the letter of the law, that is, it must be coherent with the literal content, that is, the actual words used. The Van Gend & Loos case is an example of a use of these approaches to the interpretation of law.

Effects on Dimensions

In practice, the court addressed each of the three dimensions (as discussed in earlier lectures) in a particular way.

Substantive

In regards to the substantive dimension, precedence is given to the values expressed in the legal basis of any act, meaning those values are focused on more than other, unrelated values. For example, an internal market act may be considered more in regard to economic effects than social or environmental ones.

Vertical

In regards to the vertical dimension, the ECJ will generally have a preference for EU interests, as it is one of the EU institutions and therefore “aims to promote its [EU] values” according to Article 13 TEU. This means decisions will generally reflect the ideal of the EU in creating ‘an ever closer union’.

Horizontal

In regards to the horizontal dimension, the ECJ has a general preference for the co-decision procedure, meaning legal bases that require both the EP and the Council to be involved in the process are preferred. This once again reflects the court’s values as an EU institution.

Procedural Aspects of a Case

These are the steps to follow when considering the correct procedure for a particular case. The first two revolve around the question of jurisdiction of courts, while the last one deals with the claim itself.

1. Who has done something against you?

Depending on who the ‘culprit’ is, different procedures apply for which court should be initially appealed to.

If the culprit is an EU institution, an appeal can be made to the CJEU according to Article 263 TFEU. If the culprit is a national authority, an appeal should be made to the national court according to Article 267 TFEU. The only exception to this is if the Commission is making a claim against a national authority, in which case the matter is put before the ECJ according to Article 260 TFEU. If the culprit is an individual, the appeal should also be made to a national court, according to Article 267 TFEU.

2. Which judge?

The next question is which judge or specific court is relevant. In the case of an appeal before the CJEU, most cases go first to the General Court, except cases of particular significance such as the Commission making a claim against a member state.

3. Admissibility

This deals with the question of formalities, and whether the claim or appeal made is legitimate, taking into consideration the legal nature of the disputed piece of legislation, the standing of the claimant, and the time limit for raising a concern with the act.

Legal nature

In order for a piece of legislation to be disputed before the court, it much be both active and legally binding. This can be checked via Article 288 TFEU.

Standing

Depending on the identity of the claimant, certain standing restrictions must be observed according to Article 263 TFEU. Member states and the legislative institutions (EP, Council, Commission) have unlimited standing before the court and can bring any matter before it (with regards to the other procedural aspects). Other EU institutions and organs such as the Court of Auditors or the European Central Bank have only functional standing before the CJEU, meaning they can only bring up matters relevant to their own spheres of influence. Finally, individuals have limited standing before the court and can bring only acts that are ‘addressed to that person’ or ‘of direct and individual concern to them’. This is elaborated on in the Plaumann case. Since it is extremely difficult for an individual to make a claim directly to an EU court, an alternative (but risky) route would be an appeal to a national court to request a preliminary ruling from the CJEU.

Time Limit

The general time limit for any claim to be made regarding a particular act is within two months of its publication, according to Article 263 TFEU. However, in practice the deadline is closer to two and a half months due to procedural details.

4. Grounds for Review

Finally, the question of what is actually wrong must be asked. It should be noted that this part is NOT required in a question concerning simply the procedural aspects. These grounds depend on which judicial action is being discussed.

Annulment of EU Law

An annulment of EU law can occur on a number of grounds, with Article 263 TFEU serving as a basis for such an appeal. These include:

A ‘lack of competence’, that is, the EU does not have the right to take action in a certain area of society.

An ‘infringement of an essential procedural requirement’, for example if the wrong procedure is used in the legislation. An example of this is the EP vs. Council case, where the council had attempted to bypass a co-decision procedure by applying a specific legal basis.

An ‘infringement of the Treaties or any rule of law relating to their application’, that is, if a piece of secondary law isn’t in line with the base law outlined in the TFEU, TEU, and any other foundational document. In the Fedesa case, it was argued that the actions were not in line with the principle of proportionality (see Lecture 5) and thus violated the EU Treaties.

The General Court, the ECJ and some specialized courts all have jurisdiction over annulment procedures, so Article 256 TFEU can be used to establish which court is applicable.

Infringement of EU Law by a Member State

As discussed in Lecture 4, the Commission has the power to monitor the Member States’ fulfillment of EU Law. If a member state fails to comply with established EU policies, there is a three step process, as outlined in Article 258 TFEU, to be taken.

First, the Commission shall give the Member State ‘an opportunity to submit its observations’, essentially allowing to it explain itself. If this is not done satisfactorily, the Commission will then submit ‘a reasoned opinion’, outlining the extent of the violation and potential changes the Member State can make to rectify it.

If there is still no change, then the Commission has the option to bring the matter directly before the ECJ. It is important to note that this final step is optional, and the Commission may decide to simply drop the accusation or find an alternate means of settling the matter.

Additionally, other Member states can also initiate infringement procedures against another Member State after consulting the Commission, according to Article 259 TFEU. This is rarely done however, as political factors come into play.

Article 260 TFEU puts the Member State under the obligation to comply with the court’s decision. If it finds the Member State guilty of an infringement and not abiding by its jurisdiction, it can threaten a ‘lump sum’, that is, an appropriate payment by the Member State as punishment.

Preliminary Ruling

The CJEU has jurisdiction in regard to the interpretation of the meaning and validity of EU law as requested by any national court or tribunal, as expressed in Article 267 TFEU.

Significance

This is significant in regard to the three dimensions of the EU.

Vertically, this protects EU interests, as it means that the interpretation of EU Law is not left at the discretion of the individual member states but is uniformly applied and promotes the ideal of ‘an ever closer union’. It also protects the rights of the individuals, as it gives them a means to appeal to a higher authority when they disagree with the national jurisdiction or application of EU law.

Horizontally, it expresses the relationship between the judiciary and the legislative branches of the EU. As the CJEU interprets secondary law, this gives it a certain power over the application of legislation.

Substantively, these preliminary rules help shape the balance between the primary and secondary laws and values of the EU and how clarify how the system works.

Jurisdiction of CJEU and national courts

The preliminary ruling procedure requires a clarification of certain characteristics about the jurisdiction of the various courts in relation to each other.

Firstly, it shows that while the CJEU cannot directly declare national law invalid, it can assume the supremacy of EU Law, as seen in the Costa & ENEL case.

Secondly, national courts cannot declare EU Law invalid, as this falls exclusively in the jurisdiction of the CJEU according to Article 263 TFEU. Indeed, national courts have a legal obligation to request preliminary rulings on any matters of potential invalidity of EU law, as outlined in Article 267 TFEU and expressed in the Foto-Frost case.

Finally, as suggested in Article 4(3) TEU, national courts are under a certain loyalty to the EU and have an obligation to ensure the effective application of its law. Both the Van Gend & Loos case and the Costa & ENEL case are examples of this submission to EU authority.

Conditions

Finally, there are 3 conditions to be aware of for a preliminary ruling.

1. Jurisdiction of the CJEU

As already discussed, the CJEU has jurisdiction over all matters relating to EU Law unless stated otherwise, for example in matters of foreign and security policy as elaborated on in Article 24 TEU. Additionally, the CJEU refrains from giving rulings on questions of a purely hypothetical nature or that are irrelevant to the national court ruling on a matter, since in both of these cases there is no valid reason to interpret EU law.

2. Admissibility

As mentioned earlier, only national courts and tribunals can make a request for a preliminary ruling, and only on matters that are truly necessary for the national court to give a proper judgement, as outlined in Article 267(2) TFEU. Generally however, there is a ‘presumption of relevance’, meaning the EUCJ may simply assume its relevance without spending too much time ensuring this is truly the case.

3. Grounds

There are two kinds of grounds for a preliminary ruling that can be invoked. That is, the question of interpretation and the question of validity, as stated in Article 263 TFEU.

According to Article 267 TFEU, when it comes to questions of invalidity, all courts have an obligation to bring the matter to the CJEU, as it is the only court with the jurisdiction to declare EU law invalid. Any court may however hold EU Law as being valid, since this is the default assumption. This was expressed in the Foto-Frost case. The only exception to this rule is matters where an ‘acte clair’ can be utilized, that is, a previous CJEU ruling or verdict makes it abundantly clear what the extent of the validity is. This was outlined in the CILFIT case.

Procedures concerning questions of interpretation are more lax, primarily to reduce the work-load of the CJEU. According to Article 267 TFEU, lower national courts have the discretion in making these judgements by themselves, however the highest courts of a nation are under obligation to make a reference to the CJEU, unless an ‘acte clair’ can be applied.

Preliminary rulings are binding and are interpreted in light of the EU objectives set out in the TEU. This makes them a very important piece of primary law.