Community Law I

Chapter I: History of European Integration

1. The historical-cultural context

The foundations of Europe present a predominantly Greco-Roman and Judeo-Christian matrix, from which it has
the European cultural unit was sought: during Medieval Christendom, the Catholic Church assimilated the categories of philosophy
Grega embraced the institutional and legal imaginary of the Roman Empire. This Empire lasted in Western Europe and Asia.
Minor. But Europe also sees itself in the Holy Roman Empire, in the Discoveries, in the Renaissance, in
Protestant Reformation, in the emergence of modern states, following the Peace of Westphalia, and in the secularization of sovereignty.
politics and law, including international law.
Equally relevant, in the historical and cultural journey of Europe, was the development of the ideals of religious tolerance.
freedom of conscience, democracy, and the rule of law that were the basis of the revolutionary emergence of
modern liberal constitutionalism. Equally significant was the emergence of the social issue and the development of ideals
socialists and communists.
The common historical development of Europe was marked by many bloody conflicts, which culminated in the most
violent confrontations that humanity has ever known: the world wars of 1914-18 and 1939-45.

2. The creation of the European communities

At the end of World War II, the problem of reconstruction, stabilization, and defense of Europe became especially acute.
Incidentally, the attempt to create a political, economic, social, and cultural framework for Europe prevailed from the occurrence.
of this conflict.
The USA made a significant contribution to the victory of the Nazi forces and later became involved in the reconstruction of Europe.
political stabilization of the Federal Republic of Germany, guarantee of military defense against the communist bloc, Marshall Plan of
economic reconstruction, etc.). For this purpose, it became clear that peace between Germany and France was necessary, which would come to be
confirmed in a speech by Churchill in 1946, which ultimately led to the emergence of the Council of Europe in 1949,
an international organization with a pan-European vocation, although it has also been a decisive influence in the construction of
European communities.
Furthermore, in the post-war period, there is a proliferation of European regional grassroots organizations:
Organization for European Economic Cooperation (OEEC) in 1948;
North Atlantic Treaty Organization (NATO) established in 1949;
Western European Union (WEU) in 1960;
Organization for Economic Cooperation and Development (OECD) in 1960;
Organization for Security and Co-operation in Europe (OSCE) in 1995.

2.1. The founding treaties

The founding treaties of the communities constitute multilateral conventional instruments of international law, of
point of view, both regarding its validity and the negotiation, adjustment, approval, and ratification procedure. Its
international legal validity is undisputed, as it regularly expresses the consent of the parties and
does not contravene any imperative norms of international law (ius cogens). They also have the specificity of having
an autonomous legal order has been created. In the presence of gaps, they are filled by general principles of law and not by
general principles of international law or by customary law. However, in matters not regulated by
Treaties, the relations between states continue to be governed by international law. In matters regulated by law
The jurisprudence supports and favors the theory according to which the application of international law is inadmissible - theory
of total exclusion.

2.1.1. The Treaty of Paris

The European project is based on two founding treaties: the first is the Treaty of Rome, dated April 18, 1951, in force.
since 1952, through which the European Coal and Steel Community (ECSC) was established. Contractors: France, the Federal Republic of Germany, the
Italy, Belgium, the Netherlands, and Luxembourg. It assumed a High Authority. Its aim was the stabilization of Europe.
in the post-war period, as the placing of these two raw materials, essential in a military conflict, under the control of a
an independent authority would make war more difficult and contribute to a more harmonious economic development.
Expired on July 20, 2002. From that date, the regulation of coal and steel reverts to the broader system.
of the Treaty of Rome.

2.1.2. The Treaty of Rome

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The Treaty of Rome, of March 25, 1957, established the European Economic Community (EEC): it provided for a process of
integration in phases, starting with the creation of a customs union and progressing to the establishment of a market
unique, based on the free movement of goods, people, services, and capital and the right of establishment. Followed by a
subsequent phase of economic and monetary union, where the harmonious and balanced development of activities was aimed at
economic in the community.
The same treaty led to the creation of the European Atomic Energy Community (EURATOM), based on the assumption of the generalization of
nuclear energy as the basis for economic development.
In a Convention annexed to the Treaty of Rome, the Court of Justice (CJEU) and the European Parliament (EP) were established, as
common organs to the three communities, and the Economic and Social Committee, as a common organ of the EEC and the EFTA. In 1965, it proceeded-
the merger (merger treaty) of executives, through a common council and a common Commission, and a single statute was created for
the employees and agents of the Community.
The CEE and EEA treaties were signed for an unlimited duration, with no provision for the withdrawal of the States. Regarding the
review of the Treaties, it was established that it could take place, with a favorable opinion from the Council and after consultation with
Parliament, through an Inter-Governmental Conference and subsequent ratification by the States, in a typical process of
international treaty law.

2.1.3. Subsequent reforms

The subsequent evolution is based, fundamentally, on two key aspects: institutional improvement and expansion.

Activation of a financial system based on

own resources (1970), establishment of
The European community has grown far beyond the political cooperation system (1970), the institution
Founding states of the EEC: Denmark's accession, of the Court of Accounts (1977), consecration of
Irlanda e Reino Unido (1972); Grécia (1981); Espanha direct universal suffrage for o Parliament
and Portugal (1986); Austria, Finland, and Sweden (1997). European (1979).

But the deepening of European integration went through the adoption of other international instruments.

Single European Act

The first was the Single European Act (SEA) - 1986-1987: it established an autonomous conventional foundation for the
European political cooperation. This instrument provided for a system of mutual consultations and the formation of political lines.
as a reference for all member states, allowing for the possibility of extending this system to a policy of
common security; a Court of First Instance was created to relieve the overloaded Court of Justice.

2.1.5. The Maastricht Treaty

The Maastricht Treaty on the European Union (TEU - 1992) revised the treaties. In addition to its objective of
the creation of a single market represents a decisive turning point in the process of European construction; it has come to broaden the
cooperation among member states beyond the system of the European Communities, leading all of this back to the concept
wider EU.

2.1.5.1. Single Currency

The CEE project pointed towards the creation of an Economic and Monetary Union and a single currency. This project would eventually
to be carried out in several phases:
The first phase, in 1990, ensured the free movement of capital;
The second phase involved the convergence of the economic policies of the member states;
The third phase, in 1999, involved the creation of a single currency through a centralized monetary management system.
thus creating the European System of Central Banks (ESCB), composed of the European Central Bank and the Central Banks
national
The fourth phase, in 2000, with the introduction of the Euro.
Among us, the adoption of the single currency has resulted in the need to amend the CRP in order to adapt the system.
financial to the European System of Central Banks, which were responsible for issuing currency–new art. 102.

2.1.5.2. European citizenship

In the context of the creation of the EU Treaty, the concept of European citizenship (art. 17 CE) takes on special significance: it is based on
right to free movement and residence, the right to active and passive voting in municipal elections and for the EP, the right to
diplomatic protection outside the EU by any Member State and in the right to petition and complaint before the EU bodies (PE
the Ombudsman) - these petitions and complaints can be submitted individually or collectively, by a resident or

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person based statutorily in a Member State. European citizenship establishes a status of legal equality,
absent in the principle of the prohibition of discrimination on the grounds of nationality, without prejudice to the existence of exceptions.

2.1.5.3. Consolidation of the community collection

The EU treaty has consolidated the acquired community acquis by expanding the competences of the European Union.
in the domains of education, vocational training, culture, public health, consumer protection, networks
trans-European and industrial policy.

2.1.5.4. Deepening of the three pillars

The EU treaty sought to take another step towards political union. The ultimate goal was to build the EU on three
pillars: the first, related to the communities, is served by partial unification at the institutional level, by the elevation of the Court of
Accounts to the main and common body and for the expansion of jurisdictional control (the new designation of CEE was accepted that
passed to the CE); the second referred to the so-called Common Foreign and Security Policy (CFSP), integrating the Political Committee and
the 'Mr. PESC'; the third, on cooperation in the matter of police and judicial cooperation in criminal matters was based on
K4 Committee and has the domains of cooperation:
Asylum policy;
2) The control of external borders;
3) Immigration policy;
4) The fight against drug addiction;
5) The fight against fraud;
6) Judicial cooperation in civil and criminal matters;
7) Customs cooperation;
8) Police cooperation.
The Schengen Agreement (1985) took on great importance in this regard because, although it is an extra-community agreement,
even has as its basis the formulation of a unique policy for visa allocation, the fight against illegal immigration, the creation
from a Schengen computer file, the coordination of asylum granting and customs, police, and judicial cooperation. This
the treaty was eventually incorporated into the EU framework through a protocol annexed to the Amsterdam Treaty.
There was a unique institutional framework for the three pillars, with some specific notes regarding the second and third:
The European Council defined general guidelines and common positions by unanimity or qualified majority, it also was responsible for
proceed to the definition of common positions in the fields of intergovernmental cooperation; the Committee of Representatives
Permanents also intervened in the three pillars; the PE participated in the second and third pillars through information.
consultations and recommendations.
However, with the subsequent deepening of the EU, the separation between the three pillars has substantially faded, having the
community bodies coming to take on a decisive weight in the decision-making process regarding the second and third pillars.

2.1.6. Amsterdam Treaty

The Amsterdam Treaty (TA) was approved in 1997 and came into force in 1999, having altered the EU Treaty and the
treaties of the three communities. With the TA it was intended to ensure the maintenance and development of the Union, its
conformation as a space of freedom, safety, and justice and the reinforcement of some structuring principles (rights
fundamentals, principle of equality, democratic principle, principle of the rule of law and the principle of respect for
national identities. In fact, serious and persistent violations of these principles could result, if so decided by
European Council unanimously, on suspensions of a state's voting rights.
Innovations: the community approach of some subjects of the third pillar (visas, asylum, and immigration, moved from the third to the
first pillar for its introduction in the TCE); incorporation of Schengen into the EU framework. Still, to the
parties were not recognized the right to directly challenge regulations pertaining to the third pillar, being able to, when
a lot, to make use of the mechanism of preliminary ruling. The TA also introduced important changes in the structure
institutional, such as the expansion and restructuring of the joint decision-making procedure, the expansion of
decisions of the Council by qualified majority and the absence of a definitive fixation of the members of the Commission.
The construction of the EU and the EC has shown great flexibility, with the coexistence within the general community framework of
forms and different degrees of integration, such as the EU of patents, the Schengen regime, and the Eurozone.

2.1.7. The Nice Treaty

Most recently approved was the Treaty of Nice (TN) by an Intergovernmental Conference inaugurated on 15 of
February 2000, during the Portuguese presidency of the council, and concluded on December 7, 200 in Nice, during the presidency
French. It also amends the EU treaty, the treaties that establish the communities, and some acts related to those Treaties.
it came into force on February 1, 2003

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2.1.7.1. Fundamental Objectives
The main objectives: preparing the EU for new memberships (enlargement) and institutional reform. Equally important
it was the discipline of reinforced cooperation among the various EU states: this form of cooperation cannot fall on areas of
exclusive competence of the Community, although it may affect the first and third pillars and the second pillar by means of
Article 23 of the EU; it cannot discriminate against European citizens or restrict intra-community trade; in addition, it must be
open to all states.

2.1.7.2. Institutional expansion and reform

In 2004, the enlargement of the EU to the Czech and Slovak republics, Estonia, Latvia, Lithuania, Hungary, and Poland would be completed.
Slovenia, Cyprus, and Malta. Bulgaria and Romania only joined in 2007. The prospect of this enlargement was the basis of
some of the most important institutional reforms introduced by the TN, nicknamed by some as 'mini-reform'
"institutional", which manifest a reinforcement of the weight of states with greater geographical density.
Significant changes: limitation on the number of commissioners; the collegiality of the Commission has been strengthened; reconsideration of
votes in the Council; expansion of the subjects subject to qualified majority; strengthening of the co-decision procedure between the EP
and the Council; the composition of the EP, the Court of Auditors, the Committee of the Regions, and the Council is also changed.
Economic and Social; European jurisdiction.
The TN left some responses blank, however: possible creation of the European Public Prosecutor's Office (judiciary)
autonomous); legal discipline of European political parties; reorganization and simplification of the Treaties; approval of a
Charter of Fundamental Rights endowed with legally binding value.

2.2. The constitutionalization of European integration

As the treaties followed one another in the process of European integration, the areas of action of the EU increased and
This fact has caused community law to increase its areas of tension with constitutional law.
The foundation of community law lies in international law, to the extent that the institutions that create, apply and
We award that right is based on a succession of international treaties. Therefore, the validity of it depends on these.
all community law created and applied by the institutions. However, some doctrine has been supporting the verification of
a transformation in the nature of the ultimate foundation of community law in the sense of its constitutionalization.
These developments appear controversial from a historical-institutional and legal-political point of view, since, according to
with a common usage in public law of the generality of European States, the term constitution usually arises linked to
the ultimate expression of the sovereignty of an independent political community. While some argue that the EU, by exercising
sovereignty prerogatives must necessarily have a Constitution, others doubt whether the said constitutionalization of
constituent treaties have reached a state of constituent fullness that implies the alteration of the locus of sovereignty and
creation of a new Grundnorm.
One of the areas where this issue is felt relates to the problem of treaty revision, given that the
community jurisprudence has given a negative response to the question raised about the powers of treaty revision by
Member states through declarations, agreements with third countries, must follow the rules laid down therein for the
your review. In any case, this does not mean that the international sovereignty of the member States has been deactivated,
transforming them into federated states. The truth is that the advancement of EU law has increased concerns about
many member states with their national identity.

2.2.1. Project of the European Constitutional Treaty

In 2001, the Heads of State and Government of the EU decided to convene a Convention on the Future of Europe, whose
Preparatory work took place between 2002 and 2003. It was then that the objective of creating a Constitution gained consistency.
for the EU, capable of strengthening its legitimacy, unity of action, and international credibility. The Treaty Project
The European Constitution was signed in Rome in 2004.
Even though it is an international treaty, it has assumed an ostensive constitutional relevance, since the expression
the constitution was clearly assumed, along with the aim of creating an instrument endowed with self-primacy
regulation. Also relevant in this context was the explicit adoption of the Charter of Fundamental Rights of the EU. In addition,
the regulations began to be referred to as laws and the directives as framework laws. In the institutional structure, the emphasis was on
the existence of a President of the European Council and a Ministry of Foreign Affairs. At the same time, efforts were being made
reinforce the democratic principle within the EU, in its parliamentary, direct, and participatory dimensions. The PTCE established
even though the EU would succeed the EC and the EEA, while abolishing the structure of the three pillars, grounding it in a
unique pillar.
The PTCE was abandoned after the double no in 2005, in the referendums in France and the Netherlands. However, doubts remained.
about the reasons for these decisions. The fact is that it would never come into effect.

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These events prompted a period of reflection, followed by an attempt to recover the Treaty in time for the
elections for the EP in 2009, through a new intergovernmental conference, with the responsibility of reformulating the
treaty.

2.2.2. Treaty of Lisbon

It was signed on October 13, 2007, and came into effect on December 1, 2009. This treaty refers to the PTCE, both
in its genesis as in its content.
As for its content, the TL serves as a compromise solution: on one hand, it maintains some of the
characteristics of the PCTE, indicating a clear continuity between one and the other; on the other hand, it introduces some
changes in the institutional balance that it proposed.
He made changes to the TEU and the TFEU, the latter now referred to as the Treaty on the Functioning of the Union.
European (TFEU). The TL substantially mitigates constitutional claims, marking a return to the method of integration.
traditional gradualist, however, it is not clear that these pretensions are completely set aside. The Charter of the DF,
although not formally included in the TL, it is expressly elevated to the same normative dignity as the TUE and the TFUE, this without
loss of the existence of protocol norms that substantially restrict their validity in relation to Poland and to
United Kingdom.
From an institutional point of view, the figure of the President of the European Council was embraced, but the Minister of
Foreign Affairs by a High Representative, who is also Vice-President of the Commission. The abolition of the three has been maintained.
pillars, the expansion of the EU's competences was carried out and the effort for direct parliamentary democracy was maintained,
representative, proposed by the PTCE. The PE also saw its legislative, budgetary, and control competencies strengthened.
The objective of free competition is presented in a more mitigated and less generic way, seeking to calm the fears of
excesses of economic liberalization in Europe. State authorities are given greater discretion in
provision, execution, and organization of non-economic services of general interest. The TL includes, in the revision process, the
the holding of a convention, similar to what happened with the PTCE, for these reasons, some continue to see in the TL a
disguised constitution.

Chapter III: Organization of the European Union

1. Relief of the institutional structure

The study of the institutional structure of the EU is of great substantive relevance, because the political and constitutional principles
fundamentals are always inseparable from their respective institutional corollaries.
The institutional structure of the EU affects the way European law should be seen: as an expression of a balance
institutional, as a permanent dialogue between European political and jurisdictional bodies, as a conception of nature and
exercise of state sovereignty.
The EU has an autonomous institutional structure that does not have as its sole objective a greater increase in effectiveness of
decision-making process, but also has constitutional concerns related to the joint exercise of
state sovereignty, the expression of European democratic political will and solidarity among peoples and states
Europeans.

2. Integration models

The analysis of EU law refers to the consideration of two basic models of integration and is by reference to these two.
models that should be equated to the relationship between the EU and the member states.

2.1. Functionalism and intergovernmental cooperation

The first model is based on the understanding of community law from a system of functionalism/cooperation.
intergovernmental, through the creation of an IO.
This is characterized by the primacy given to technical and economic factors and intergovernmental cooperation of a type
functional/sectorial.
For defenders of the status quo of Nation-States, this would be the most suitable model of integration for communities.
European. Even the doctrine indicates that this functionalist perspective of economic integration through the market has had the
virtuality of deepening political cooperation and legal construction in areas that largely exceed the domain
economic. Nevertheless, it faces some significant difficulties:

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First of all, a large-scale technical-economic integration requires, sooner or later, a greater integration.
institutional, political and legal;
Secondly, in the face of the enormous disparities between the technical and economic possibilities of cooperation of the various
Member states soon feel the need to introduce federal-type corrective measures;
Lastly, the regulation of trade between member states will always favor the expansion of the powers of the EU.

2.2. Supranationalism and Federalism

This model points to an integration of supranational nature with a federal vocation. This is characterized by the primacy of
political over the economic, by imitating existing models (USA, FRG), by the common exercise of prerogatives of
state sovereignty, by strengthening the powers of supranational institutions, by exercising constituent power and to the
subsequent supranationalization of the competence of competencies and democratic political legitimacy.
This model has encountered strong resistance from the so-called Nation-States, claiming the non-existence of a 'people'
European" that can claim ownership of constituent power.
Nevertheless, this integration model experienced a new boost with the introduction of the euro and the convening
of a Constitutional Convention for the institutional political reform of Europe.
Nevertheless, it seems premature to think of the EU as a federal structure endowed with internal and external sovereignty:
First of all, states remain the "masters of treaties" and the ultimate holders of sovereignty prerogatives.
that were transferred to the communities;
- Secondly, although the primacy of community law over national law is asserted, it is the result of a
constitutional concession of the member states, not yet expressing the absolute primacy of a federal power over the
federal powers, as occurs in the USA or FRG.
Nonetheless, the presence of typical elements of a federal structure is already evident.
The union of autonomous political entities;
2) The enumeration of the normative powers of the EU and the residual nature of national competences;
3) The direct applicability of community rules within the territorial limits of the EU;
4) The existence of the legislative, executive, and judicial powers at the EU level;
5) The supremacy of EU acts, within their sphere of competence, over all national acts to the contrary.

3. Distribution of competencies

One of the fundamental problems that arises in a federal or supranational structure is related to the distribution
of competencies between the states and this structure, on one hand, and the distribution of competencies among the various bodies of this
structure.
In the first case, we encounter a clear example of multi-level constitutionalism, in which what is at stake is the
transfer of national competences to the EU, through the creation of a European constitutional law, derived from the
national constitutional rights. This characteristic distinguishes the EU from any other IO.
It is in this constitutional environment that the principles governing the exercise must be identified and interpreted.
prerogatives of sovereignty by the States and by the EU. The Treaties, while identifying the values and principles
that serve as the basis for the EU, define the respective assignments and competences.

3.1. Powers and competences of the States and the EU

The EU continues the objectives defined for it by the Treaties, by suitable means. It is important to clarify its
assignments and competencies. First of all, one must consider the criteria that govern the distribution of competencies
between the Member States and the EU. The delimitation of the EU's competences is subject to the principle of attribution. The exercise of
The competencies of the EU are subject to the principles of subsidiarity and proportionality (Article 5 TFEU).

3.1.1. Principles of distribution of competences

3.1.1.1. Principle of Limited Assignments

The competencies of the EU are subject to the principle of limited powers. This principle, also known as the principle of
the specialization of competencies, or principle of attribution, requires that only those competencies of the EU are considered that
result from the specification of the transfer of sovereign powers - art. 5/1 TFEU.
The competencies not expressly attributed to the EU by the Treaties remain in the ownership of the States.
members (art. 4/1 and 5/2 TEU). This means that, in principle, the EU only exercises the powers that have been conferred upon it

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through the institutional treaties, acting within the respective limits, cannot create new competences or go beyond the
limits of those assigned to you.
The violation of this principle may trigger an ultra vires control of community acts by the jurisdictions.
constitutional, especially regarding these prerogatives.

3.1.1.2. Principles of subsidiarity

The principle of subsidiarity has significant relevance for understanding the transfer of competencies from the States-
members for the EU – art. 5/1 TEU.
Its area of application relates to matters of concurrent jurisdiction, therefore it does not apply in matters of
exclusive competence of the EU or the States. Furthermore, its scope must be determined with the complementary support of
principle of proportionality.
The reason for this principle is related to the preservation of the sovereignty prerogatives of States, as well as with the
combatting centralism and preserving regional and local identities. This principle binds all EU institutions,
including the jurisdictional institutions.
The principle of subsidiarity, embodied in Article 5(3) TEU, establishes two cumulative conditions to justify the
EU intervention:
The first consists of the lack of efficiency in the actions of the member States, at the central, regional, or local level;
The second requires the added value of the EU's action, taking into account the dimension or effects of the action considered.

3.1.1.3. Principle of proportionality

In the delineation of the transfer of powers from the Member States to the EU, the principle of also applies.
proportionality (art. 5 TFEU). This is inseparable from the principle of subsidiarity, also binding all the institutions of
EU. This principle is based on an analysis of the relationship between ends and means, requiring the legitimacy of the ends and the adequacy,
necessity and proportionality in the strict sense of the means in relation to the ends.
The ends are provided by original European law and, since the transfer of powers to the EU is a means to achieve the
substantive purposes of treaties, the principle of proportionality imposes material and formal limitations on EU measures
to what is strictly necessary for the pursuit of the objectives of the treaties (art. 5/4 TFEU).
The requirement of adequacy manifests itself in the demand for the effectiveness of the EU's action in achieving the intended effect. In turn, the
The requirement of necessity demands that the adoption of the appropriate measure be less burdensome, both in financial terms and in
point of view of intervention in the sovereignty of States and, therefore, the principle of proportionality points to the adoption of
European measure as detailed as possible, in order to allow as much room for maneuver as possible to the
States.
A correct application of the principles of subsidiarity and proportionality requires the promotion of extensive consultations and
publication of texts related to them before the presentation of proposals with community initiatives, accompanied by
public disclosure of the respective texts.

3.1.1.4. Implied powers

Without prejudice to the principle of the limited allocation of community competences, the consideration of powers is not excluded.
implied powers. This is a figure that has been used in constitutional law as a mechanism of
flexibility and adaptation of political and legislative powers, allowing for the adaptation and survival of a given community
politics in contexts of change in the political, economic, social, and cultural environment, avoiding that it becomes paralyzed
due to the rigidity of constitutional forms.
In this way, it allows action in areas of activity close to the EU's responsibilities, but which are not
expressly provided in the rules of competencies, when this is deemed necessary for the pursuit of objectives
functional. These powers emerged from the flexibility clause – Article 352 TFEU.
Despite everything, the admission of these implicit powers is not without controversy. In any case, it is fully justified.
welcome of a reasonable measure of implicit skills (skills that are unwritten but logically necessary for
exercise of competencies by delegation). The doctrine gives as an example the assumption of external competencies in matters related to
that the EU was assigned internal competences. The TFEU also expressed openness to the theory of implied powers.
Some authors seek to go further by advocating for the adoption of so-called inherent powers, deduced from the
concrete needs of the organization and based on the premise that actions that are not expressly precluded by the
treaties are admitted when inherent to a supranational organization. This latter understanding is, however, quite
doubtful, as the EU does not have a functional and competent right to self-determination. But the reality is that the fact of
the objectives and the powers entrusted to it being sometimes vague and indeterminate, do not always allow for a clear distinction

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between inherent powers and powers implicitly attributed. Now, the absence of the former ultimately leads to the expansion of
implicit powers.

3.1.1.5. Loyal cooperation

The principle of loyal cooperation, or European loyalty, assumes a special function by allowing proper interaction in
relations between the Member States and the EU (art. 4 TFEU). It also applies to the relationship that the European institutions
they establish some with each other (art. 13/2 TFEU). This principle has as axiological references the principle of good faith, which
it must characterize the relations between States within the scope of international law, and the principle of federal loyalty.
In EU law, it aims to facilitate the interaction that takes place between sovereign states within a structure with some
characteristics of the federal type, implying mutual duties of respect, assistance, and cooperation. It is based on respect
for national identity and the principle of equality and reciprocity among States. This principle translates into the duty of the EU
to support all States in the fulfillment of the missions arising from the Treaties, as well as in the state duty to comply with them
missions, taking all appropriate general or specific measures.

3.1.1.6. Differentiated cooperation

The ideal of the EU is the pursuit of respective objectives by the Union as a whole, in a framework of equality of rights and
duties of the Member States that candidates for accession must also accept. However, in practice, not all States
have political, economic, or social conditions to be equally involved in the European integration process and, by
It is evident that it becomes necessary to introduce mechanisms of greater flexibility. Hence, among the principles that govern the
the allocation of powers of the States to the EU, we find the principle of differentiated cooperation.
By this principle, of residual application, European integration experiences some flexibility, allowing legal solutions.
differentiated: in some cases this translates into the search for higher and deeper levels of cooperation, according to a
more active stance (opting in); in others, exceptions to the application of EU rules are admitted, according to a stance
but passive (opting out).

3.1.1.6.1. Reinforced cooperations

The reinforced cooperations (art. 20 TFEU) are powers granted to the Member States to proceed with an in-depth exploration.
of cooperation within the normative and institutional framework of the Treaties; thus allows for the gradual evolution of the structure.
institutional and functional of the EU. For its respective activation, the material, positive, and negative limits must be respected.
formal and procedural requirements imposed by Article 20 TFEU and Articles 326 and 334 TFEU.

a) Material scope

Negative limits: duty to respect treaties, not to harm the internal market, not to jeopardize cohesion.
economic and social and to respect the rights and obligations of non-participating member states, not hindering their
exercise.

Positive limits: they should be confined to areas of non-exclusive competence of the EU, and should serve the objectives and
interests of integration.

Expressly admitted are the enhanced cooperations in the field of common foreign and security policy (art. 329º/2)
TFEU) and, within this area, the creation of a new type of reinforced cooperation is allowed, referred to as cooperation
permanent structured (art. 42º/6 TFEU) and encompasses Member States with high military capacities that have
assumed stronger commitments for the accomplishment of more demanding missions.
Even with these limits, strengthened cooperations aim to be a last resort solution, to be adopted only when
everything is not possible for the pursuit of objectives by the Union globally considered, within a reasonable time frame.

b) Authorization procedure
From a procedural point of view, a process with several phases is foreseen:
The states that wish to do so must submit a request to the Commission, specifying the scope and objectives of the
intended cooperation (in the case of enhanced cooperation in the field of common foreign and security policy, the request is
addressed to the Council which transmits it to the High Representative for their opinion - Article 329/2 TFEU);
A barrier clause is established, requiring at least 9 member states, with the aim of achieving participation from
maximum possible number (Article 328(1) TFEU);

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The commission decides whether or not to formulate a proposal for reinforced cooperation, having to present to the States the reasons for its
refusal
In observing the material parameters, the authorization decision is made by the Council, upon proposal from the committee and after
approval of the EP (Article 329(1) TFEU);
All member states may participate in the deliberation, although only those wishing to join participate in the voting.
enhanced cooperation (Article 20 TFEU).

c) Regime of enhanced cooperation

In this regime, some aspects must be highlighted:
The first is related to the openness to all Member States: at the time of authorization and at any time.
Furthermore, reinforced cooperation must be open to all Member States (Article 328 TFEU) – principle of equality
among the States; however, a State that decides, at a later moment, to participate in the enhanced cooperation must respect,
not only the respective conditions of participation but also the acts adopted in the respective area;
The second aspect concerns the adoption and the scope of the acts adopted within the framework of enhanced cooperation: everyone can
participate in the deliberation, but only the participating States have the right to vote (art. 20/3 TEU and art. 330/1 TFEU). In
In the domain of the decision-making process, some bridging clauses are also introduced, which are not applicable when issues are at stake.
military or defense – Article 333(1) TFEU and Article 20(4) TEU.
the third aspect is related to the financing of strengthened cooperation: in principle, this will be solely
cargo of the participating states, however, after consultation of the PE, the Council may decide, unanimously by all of its
Members, that the expenses of enhanced cooperation will be borne by all.
Finally, the coherence of the actions taken and the enhanced cooperation with EU policies is ensured by the commission and
by the Council (art. 3340 TFEU).

d) Adherence to a strengthened cooperation

States can join an established enhanced cooperation - Article 331 TFEU.
In the case of reinforced cooperation in general, the State must notify its intention to the Commission, which will verify the
compliance with the conditions and decide within four months from the receipt of the notification. In case of decision
positive, as participation implies the acceptance of acts already adopted, there may be a need for a transitional regime. In the event of
to decide negatively, it must identify the conditions that must be met and set a deadline for the new review
of the request. If the Commission believes that the participation conditions have not yet been met, a new request may be made.
addressed to the Council (article 331/1 TFEU).
In the case of reinforced cooperation on common foreign and security policies, the notification of the intention to participate is
addressed to the Council and the High Representative. The latter is called to express an opinion, with the final decision resting with the Council.
unanimity of the participants in the reinforced cooperation, after verifying compliance with the participation conditions.
It can also be determined here a deadline for states to meet these conditions - Article 331(2) TFEU.

3.1.1.6.2. Derogations to integration

In principle, EU membership requires acceptance of the majority of the rights and obligations provided in the Treaties.
that make up the community collection. However, beyond the strengthened cooperations, there is also the possibility of
weakening of cooperation in some areas, through derogatory clauses. These prevent the application of
certain rights and duties to the States created by EU law and are based on the principle of respect for interests
nationals in the integration process. They facilitate the expansion, allowing states to proceed to
political, legal, and economic adaptations necessary for the full exercise of the duties and rights inherent to the status of
EU member.
The derogations can be:
a) Temporary derogations: these are the ones that expressly provide for a resolutory term;
b) Permanent derogations: they do not provide for a resolutive term, but that does not mean they are eternal;
c) Voluntary derogations: these are those that can be requested by the states at the time of accession or
subsequently; we are dealing here with escape valves that allow states to avoid higher levels of
European integration; it is given the possibility for states to request the end of this derogation;
d) Mandatory derogations: are those applied objectively to states that do not meet a certain
set of requirements; in this case, a subjective act of will by the State is not enough to put an end to the derogation.

3.1.1.7. Respect for national identities

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Another very important principle relates to the protection of national identities - art. 4/4 TFEU. This principle grants
to the states a subjective right of protection in the face of the EU and other states. It points to an understanding
material of 'states rights', formed by the protection of historical and cultural identity, of constitutional identity and
internal statehood.
The respect for national identities enshrines an obligation to consider national identities in processes of
political, legislative, administrative, and judicial decision of the EU. In this sense, this principle cannot be seen as a
prohibition of EU interference in national identities.
An example of the application of this principle concerns the position adopted by the European Council regarding the relationship with Ireland.
and the Treaty of Lisbon; another example can be found in Poland's Declaration on the Charter of Fundamental Rights of
EU.

3.1.1.8. Respect for statehood

Another delimiting principle of the EU's competencies is respect for the dimensions of statehood.
The EU is a supranational organization made up of sovereign states and, for this reason, it must protect its functions.
essentials of each state (territorial integrity, maintenance of public order, safeguarding national security, etc.) – art.
4th/2nd TUE.
It is problematic to know if the respect for statehood extends to all the functions that the states, unilaterally, decide.
define as essentially state. In any case, the highest degree of respect for statehood is manifested in the provision
expresses the right of states to withdraw from the EU - Article 50 of the TEU.

3.1.2. Types of competences

Applying the aforementioned principles, different types of competencies emerge: areas of competence
exclusive to the EU, shared competence, parallel competence, and exclusive competence of the States.

3.1.2.1. Exclusive competence of the EU

According to this competence, there are areas in which only the EU can legislate and adopt legally binding acts. This
the reservation of powers can be relative, that is, states may be enabled or authorized to intervene in these areas
by the EU, as managers of common interest, should do so in coordination with the EU bodies. When the states do not
having the authorization or license to act in these matters of exclusive competence of the EU, their violation results in a
action for breach, having only the complementary function of an executive nature (art. 2/1 TFEU).
In these matters, the states cannot take the initiative through legislative or regulatory acts, being only responsible for
secondary and subordinate interventions.
Currently, Article 3(1) TFEU explicitly grants exclusive competence in the areas of:
a) Customs union;
b) Competition rules necessary for the internal market;
c) Monetary policy for the eurozone states;
d) Conservation of biological resources under the common fisheries policy;
e) Common commercial policy.
In these areas, the states were, in principle, definitively stripped of their powers. The only exception to
this principle may apply in the case of radical unworkability on the part of the EU institutions.

3.1.2.2. Shared competencies

There are also concurrent matters, that is, matters in which both the States and the EU are
competent – Article 2(1) TFEU.
Matters of shared competence (Article 4(2) TFEU):
a) Internal market;
b) Aspects of social policy related to the TFEU;
c) Economic, social and territorial cohesion;
d) Agriculture and fisheries;
e) Environment;
f) Defense of consumers;
g) Transport:
h) Trans-European networks;
i) Energy;
j) Area of freedom, security and justice;

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k) Common security problems in public health related to TFEU.
The States exercise their respective competence to the extent that the EU has not exercised its own.
Although the action of the EU and the Member States is acknowledged, one must take into account the requirement of binding by the ends of
Treaties and the rule of preemption of national competencies by community competence, that is: the exercise of
competencies by the member states cannot undermine the provisions and objectives of the treaties, they must
to remain subordinated to the general principles of EU law, especially concerning the principle of loyal cooperation; as long as
as the EU's competence is exercised, the member states are gradually deprived of their competence, until the
they would definitely lose, becoming merely a complementary and executive role, subordinate to the EU. In this case,
There may arise a true reserve of competencies on the part of the EU, requiring explicit authorization from the States.
that they want to intervene in it.

3.1.2.3. Parallel competencies

There are areas where the competencies of the EU and the States are parallel, that is, a joint action is admitted and
agreed upon by community and national institutions, without any exclusion or preemption. This happens, for example, in
domain of research and technological development and space or cooperation and humanitarian aid – Art. 4(3)(4) TFEU.

3.1.2.4. Coordination and Complementation Skills

The deepening of the European integration process requires a coordination effort in various areas, mainly
Regarding economic policies. In these areas, the Council can establish general provisions, but concerning the States of
The eurozone is expected to define specific provisions. In addition to those, guidelines may also be established by the EU.
and initiatives aimed at coordinating employment and social policies (Article 5 TFEU).
The development of support initiatives, coordination, and complementing the actions of member states is anticipated in order to
to serve European purposes, in the areas:
a) Protection and improvement of human health;
b) Industry;
c) Culture;
d) Education, vocational training, youth and sports;
e) Civil protection;
f) Administrative cooperation.
Once the European guidelines, directives, and initiatives are adopted, the states must follow them in accordance with the principle of
good faith.

3.1.2.5. Exclusive competencies of the States

The EU is an association of sovereign states, thereby recognizing the existence of sovereignty prerogatives justifying the
existence of matters of exclusive competence of the States. Even these, however, can eventually be complemented.
by the action of the EU, with the aim of putting them to serve European purposes.
These subjects correspond to the domains of nationality, direct taxation, public order defense, national security.
However, even the exclusive competencies of member States must be exercised in compliance with EU law.
(mainly when it concerns European citizenship, freedom of movement, etc.).
The problem is the unilateral attempt by states to establish the matters they consider reserved, according to the
its own theories and ends of the state. In this sense, it should be emphasized that treaties do not fail to represent a restriction
to the competence of the competencies of the EU Member States.

3.2. Attributions and competences of the EU bodies

3.2.1. Principles of the distribution of competencies

The EU treaties fulfill an undoubtedly significant constitutional role, as they are normative instruments.
through which it is intended to clarify, organize, regulate, and limit the exercise of public authority prerogatives. The
Principles of the distribution of competencies among the institutions and bodies of the EU are principles of constitutional law of the EU.
Among them, we highlight the principle of limited organic competence and that of institutional parity.

3.2.1.1. Limited organic competence

Also regarding the EU institutions, the principle of limited attribution of competencies is applicable, which implies a
limited organic competence. According to this principle, treaties specify the competencies,
procedures and forms of the Union bodies – art. 13/2 TFEU.

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According to the principle of limited organic jurisdiction, there must always be an organic and procedural foundation.
formal for the action of the EU institutions. Thus, the principle of organic typicity is established, according to which the bodies
Community members can only act if they are authorized to do so by a competence standard. Furthermore, the procedures
and the forms of this action must observe the standards that define the corresponding rules. From this, two arise
important implications:
On one hand, the principle of the typicity of procedures is established (for example, when a qualified majority is required,
or a proposal from the Commission, etc.;
- On the other hand, EU law enshrines the principle of typicity of forms (for example, when the adoption of
a directive, or a regulation, etc.).
The violation of these principles results in the procedural and formal illegality of the act.

3.2.1.2. Institutional parity

Within the EU bodies, a distinction must be made between institutions and bodies. This distinction allows for the indication of the existence of two
EU organ categories: the first is an essential institutional framework for the promotion of its objectives
Treaties; the second relates to organs of a secondary and complementary nature.
The institutions are essentially the fundamental bodies of the EU (the European Parliament, European Council, the Council, the
Commission and the Court of Justice of the European Union, the Central Bank, and the Court of Auditors (art. 13 TFEU). In the relations that
among these the principle of institutional parity and institutional balance prevails, with its dimensions of equality
institutional dignity and institutional balance, which is also inseparable from the principles of the specificity of competencies and
of loyal cooperation between the institutions - art. 13, para. 2 TEU.
This means that: the community institutions directly execute the treaties, so none of the Union's institutions
may overlap with others or interfere with the exercise of their respective prerogatives. From this principle arises the existence of
procedural means for the jurisdictional defense of the prerogatives of EU institutions regarding intrusions from others.

4. European institutions

4.1. General considerations

4.1.1. Amplitude of functional responsibilities

European institutions play a decisive role in the EU decision-making process and in stimulating and promoting its
purposes. They carry out their functions autonomously, according to the assignments and competencies that are attributed to them.
no Treaties, and in a position of parity. In addition, their functional responsibilities cover all areas of
EU activity.
Within the scope of the internal market, the activities of the EU bodies take on a predominantly legal nature and
supranational. In the realm of foreign policy and security, as well as police and judicial cooperation, it takes on a greater
measure, a political and intergovernmental coloring.
The scope of the functional responsibilities of EU institutions is not unrelated to the goal of ensuring greater
the legitimacy of them, as well as the will to, in the long term, consolidate and integrate all EU activities in the most diverse
domains.

4.1.2. Representation and democratic participation

The objective of a democratic government on a European scale is to identify the needs and interests of individuals.
two groups, of the regions and the States and harmonize them from the perspective of promoting the common good, through processes of
representative, deliberative and compromissory decisions. When those needs translate into fundamental rights,
The objective is practical agreement and maximum effectiveness, weighing them against the goods of the EU and the States.
In the European context, democracy has been built in various ways:
1) Reinforcement of the democratic legitimacy of the EP;
2) Strengthening the normative decision-making and control powers of the EP;
3) Expansion and consolidation of European citizenship rights;
4) Strengthening the rights of popular initiative of European citizens;
Greater participation of representatives from economic and social sectors and regions;
6) Reinforcement of open debate and participation in decision-making preparation;
7) Guarantee of transparency and accountability in the operation of all institutions;
8) Increase in the powers of national parliaments.

4.1.3. Separation and interdependence of powers

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The institutional structure of the EU manifests the classical trilogy of constitutional functions: legislative, executive, and judicial.
meanwhile, it reflects a sui generis understanding of the principle of the separation of powers, both from a vertical perspective and from the
horizontal point of view. Therefore, the personal interdependence between community and national institutions is highlighted,
differently from what happens in a properly federal structure. Thus, for example, in the European Council, a political body
from the EU, the heads of state and government of the member states have access.
The legislative power is jointly vested in the Council, the Commission, and the European Parliament, in accordance with the process
ordinary legislative and the special legislative procedure – art. 293 ss. TFEU.
The executive power is exercised by the European Council, the Council, the Commission, and the Member States.
The judicial power belongs to the Court of Justice, including the Court of First Instance, and to the Court of Auditors.
In the institutional framework of the EU, the transfer of multi-level competence and functional unfolding in relationships is common.
among the various institutions and bodies and between them and the member states. More than the separation of powers in the sense
traditional, we find a structure of coordination, collaboration, and interdependence.

4.1.4. International Statute of the EU

The EU is an entity with international legal personality. It replaces and succeeds the former EC (art. 1, §3, TEU).
its legal nature has unique characteristics, given its compatibility with the different degrees of political integration and
legal entities existing within it. Currently, and since the Treaty of Lisbon, the EU has institutional and normative characteristics
supranational organizations that place it halfway between a classic IO of an intergovernmental nature and a federal state.
Member states guarantee you a status of immunities and privileges, while recognizing your capacity.
private law legal entity in the domestic legal system.
The EU has the power to negotiate, adjust, and enter into international agreements (ius tractum) with the states that recognize it.
and with other IOs, as is common today with the majority of IOs. However, the treaties concluded by the EU approach
more of the treaties concluded between states than those concluded by the IOs.
Similarly, the EU has the right of active and passive legation (ius legacionis), being able to appoint and accredit ambassadors.
The same enjoys, likewise, the right to join OI, incurring international responsibility (although this
consideration to be difficult, since it is not a State.
The EU defines itself as serving the strict observance of international law, including the principles of the Charter of the United Nations.
United (art. 3/5 TEU).

4.2. Political bodies of the Treaty

The EU today has an autonomous institutional structure, a guarantor of political coherence and efficiency of the
decision-making process. In the institutional plan, the Lisbon Treaty sought to create conditions for greater functionality and
efficiency and reinforce the democratic nature of the EU. Thus, the formal distinction between the three pillars of the European Community ceased to
exist, however, materially, it continues to exist, making it easy to observe that it is three distinct domains
subjected to different logics, although related to each other.
The institutional framework of the EU is made up of the following bodies: the European Parliament; the European Council; the Council;
European Commission; the Court of Justice of the European Union; the European Central Bank and the Court of Auditors. The same aims to
promote your values, pursue your objectives, serve your interests, those of your citizens and those of the States
Members, as well as ensuring the coherence, efficiency, and continuity of the EU's policies and actions – Article 13 of the TEU.
The institutions are distinguished from the other bodies and agencies of the EU, functioning as a kind of 'constitutional bodies.'
"of the sovereignty" of the EU. Each institution acts within the limits of the powers conferred upon it by the Treaties, in accordance with
with the procedures, conditions, and purposes that they establish.

4.2.1. European Parliament

The EP is the representative democratic body par excellence of European citizens – Article 10/1/2 and Article 13/1 TEU. The foundations of
its legal regime is defined in articles 14 TFEU and 223 et seq. TFEU. However, it is just one piece of a theory
complex of democracy developed taking into account the institutional and functional realities and needs of the EU.

4.2.1.1. History
Initially designated by treaties as Assembly, the EP began as an organ of merely indirect representation,
integrating representatives appointed by the Member States from among their national deputies, in accordance with a
procedure established by each State. This form of indirect representation was intended to be temporary, as the objective
initially it was to evolve towards the direct election of the European Parliament.

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In the gradual affirmation of the EP as a European representative democratic body, it should be emphasized the importance assumed by the
following aspects:
1) Adoption, on its own initiative, of the designation of European Parliament in 1962;
2) Introduction of direct universal suffrage, by a Council Act of 1976, in effect since 1978;
3) Recognition of the existence of European political parties as a factor of integration (Article 10 TEU and Article 224 TFEU);
4) Successive widening of the powers of the European Parliament, at the expense of the powers of other European institutions and the States.
members.
These developments have contributed to a greater institutional autonomy of the European Parliament along with the creation of a political class.
European.

4.2.1.2. Legal-Political Meaning

4.2.1.2.1. Representation function
This function corresponds to a complex reality. It has:
i. A democratic dimension, as it represents the European peoples;
ii. A demographic dimension, to the extent that this representation aims to correspond with reality.
demographics of member states;
iii. A political dimension, as it reflects the different political-ideological trends and presents
in Europe;
iv. A cultural dimension, also expressed in the multilingualism of its functioning and in the expression of
national identities.

4.2.1.2.2. Integration function

On one hand, he seeks to establish a forum for discussion and deliberation on the various problems facing the EU.
and to assume a transnational dimension.
On the other hand, he seeks to carry out this discussion and deliberation by including different points of view from
different states and peoples, of European citizens and the different groups of political, economic, and ideological interests
that make up European civil society.

4.2.1.3. Election
The PE is composed of the representatives of the EU citizens, exercising the powers granted to it by the Treaties. The
the same are elected by universal, direct, free and secret suffrage, for a mandate of 5 years - art. 14/3 TUE.
The election process is based on common principles for all Member States - art. 223 TFEU. Among us, the election of
Deputies from the PE are elected based on a single electoral circle, with electoral capacity granted to registered Portuguese citizens.
in the national territory, including residents of EU member states who do not choose to vote in the state of residence, and the
EU citizens who are not nationals and are registered in Portugal, without prejudice to ineligibilities and
incompatibilities provided for in the law.
The President of the Republic is responsible for setting the date of the elections and the lists of candidates are presented to the Constitutional Court.

4.2.1.4. Composition
The composition of the PE refers to the consideration of the deputies, individually considered, of the political groups and the
political parties.

4.2.1.4.1. Deputies
Currently, the EP is composed of a maximum of 750 Members, plus the President. The conversion of votes into mandates
it obeys a criterion of decreasing proportionality: the minimum threshold of representation is set at 6 European deputies for
member state, while the maximum is 96 deputies – art. 14/2 TFEU.
This system has been considered incompatible with a true parliamentary representation of citizens, due to
allegedly does not respect the principle of equal suffrage and its corollary of equal vote results. However, the
it does seem to fit reasonably well with democratic representation with federal characteristics. On the other hand, it is
just one of the strategies for implementing the democratic principle.
The MEPs have a special status, derived from the Rules of Procedure of the European Parliament, which guarantees them privileges and immunities.
the fact that privileges are provided in the interest of the community public justifies the power given to institutions to raise
immunity. But this does not mean that immunities and privileges are not granted directly to its employees,
other agents and members of the EP. The EP's decision to lift the immunity of one of its members can be challenged
judicially.

4.2.1.4.2. Political groups

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The deputies carry out their work by dividing themselves into different political groups, according to political criteria and
Ideological. Uninational political groups are expressly prohibited.

4.2.1.4.3. Political parties

The existence of political parties is expected at the European level, aimed at the integration of European peoples, the formation of
a European political consciousness and for the formation of the popular will of EU citizens - art. 10/4 TFEU. The statutes of
European parties are defined by the EP and the Council, through the ordinary legislative procedure - Article 224 TFEU.
The objective is to gradually transfer the formation of public opinion and political will to a European level.
meanwhile, it has not yet translated into the constitution of a party system on a European scale.

4.2.1.5. Operation
The European Parliament holds an annual session, which may meet on its own right on the second Tuesday of March (Article 229 TFEU)–
constitutes a demonstration of reinforcing the role of the EP. The holding of extraordinary sessions at the request of is not excluded.
majority of the Deputies, the Council or the Commission.

4.2.1.5.1. Organization
The Parliament exercises its activity in Plenary and through parliamentary committees (the meetings, in principle, are public).
The EP approves its rules by a majority – art. 232 TFEU.

4.2.1.5.2. Functions and competencies

a) Legislative function
With the successive reforms, there has been a strengthening of the participation of the EP in the procedures of normative production.
The EP exercises legislative functions, together with the Council - Art. 14(1) TEU. Nevertheless, it is not yet fully in force in the
The principle of parliamentarism characteristic of democratic constitutional systems, with the inherent existence of a
absolute reservation of exclusive legislative competence based on the so-called theory of essentiality.
In the same way, there is still no general prerogative of legislative initiative, as is typical in the generality of
parliaments. Despite everything, the EP can, by majority, request the Commission to present suitable proposals on
issues lacking an act of implementation of the treaties. If it does not present a proposal, the Commission must justify - art.
Article 225 TFEU.

Not having a general right of legislative initiative, the EP can at least provoke the Commission and force it into a public process.
of 'reason-giving' in the case of opting for inaction (the sanction here will be merely political).
In conclusion: the PE has the authority to participate in the normative production procedures, whether through the exercise of
consultative powers, whether from the shared exercise of legislative power. The decisions of the PE are adopted by a majority of
express votes, with the regulation determining the quorum - Article 231 TFEU. The TL has significantly strengthened the powers
In the PE domain of this function, equating the PE with the Council in the co-decision process, which has become the process
ordinary legislation; on the other hand, it expanded the areas of legislative competence.

b) Inquiry
The PE performs important advisory functions, notably in the non-legislative decisions of the Council, naturally.
without the right to vote. It also issues a favorable opinion on the uniformization of the electoral procedure in all
States, which may appear included in a true normative procedure - Art. 294 TFEU.

c) Appointment and election

The elective and appointed competencies are important: it is up to them to elect, among their members, their President and their
Table (art. 14º/4TUE), elect the President of the Commission and the vote of approval of the college of commissioners before their
appointment, and furthermore, after his election, it is his duty to elect the Ombudsman for a term corresponding to the legislature (art.
228º/2 TFEU.

d) Control and supervision

The control powers of the EP constitute an expression of the principles of separation and mutual control of powers, by a
side, and from the principle of legality and legality of all actions of the EU organs:

e) Duties of information
In order to enable the PE to exercise its control and oversight function, important duties are established.
information. This duty may translate into a regular duty to inform about political issues, as is the case regarding
to the High Representative in the context of the simple political evolution provides information, in the declaration of the TC on the
reliability of the accounts.

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This duty often materializes in the requirement to provide reports: it can be a specific report or
of a report with a defined periodicity (annual - article 284(3) TFEU and article 287(4) TFEU - or triennial - article 25 and 175 TFEU.
In some cases, there is an obligation to present a report on a specific matter, involving more than one.
body (art. 121/5 TFEU). The reverse can also happen.
In other cases, this duty to present reports is qualified by a special requirement (Article 151 and 159 TFEU).

f) Interpellation and hearing

This power is closely related to the duty of information. Both aim to clarify the terms of action of
different institutions and bodies, serving the goals of transparency, coherence, and effectiveness of the EU's actions.
the same have several recipients (Article 230 TFEU and 235(2) TFEU).

g) Power of inquiry
The investigative power is a relevant power in the function of control and oversight of the European Parliament. It fulfills the principle of control of
political-administrative activity by the democratic critical advertising. The EP can appoint parliamentary committees to
inquiry (Article 226 TFEU), by a quarter of its members -> principle of minority protection. These committees are
temporary, extinguishing with the presentation of the respective report. Their objective is the control of
infractions or poor management in the application of community law, always taking care not to interfere in
exercise of the judiciary when the case is pending in court.
Under the terms of Article 226, the forms of exercising the power of inquiry are defined by the PE through regulations.
adopted on their own initiative, through a special legislative process, after approval by the Council and the Commission.

h) Appreciation of petitions
The EP has the power to consider petitions. Article 20(2)(d) of the TFEU enshrines the right to petition the EP as a right of
Union citizenship. Under Article 227 TFEU, the ownership of this right belongs not only to citizens, but also to
natural and legal persons residing or established in a Member State.
The issue must relate to the domains of the Community's activity and have a direct and personal connection to the
applicant.

i) Motions of censorship
An important power is related to the approval of motions of censure regarding the activities of the Commission - Article 234 TFEU. This concerns
a mechanism of subjective or primary control, which affects the body, under the pretext of its activities. This motion is
presented by initiative of the Members of Parliament.

j) Advertising
Publicity is the rule in parliamentary activity. The principle of publicity is manifested, namely, in the obligation
of the publication of the minutes, in accordance with the Treaties and the Rules of Procedure of the EP (Article 232 TFEU), in the discussion of the annual general report.
that the Commission presents to the EP (Article 233 TFEU) and in the voting of motions of censure against the Commission (Article 234 TFEU).

k) Budget function
The PE, together with the Council, exercises the budgetary function - art. 14/1 TFEU. It is the responsibility of both to prepare and approve the
annual EU budget, deliberating in accordance with the special legislative procedure, following the parameters set for
this effect (article 314 TFEU).
In addition to this, the EP carries out a budgetary and financial control activity of the EU, through the assessment of accounts of
budget operations, the balance sheet, the report on the evaluation of the EU finances and the report of the Court of Auditors. It is also responsible for giving
settlement to the Commission on budget execution, by recommendation of the Council, and may be accompanied by
comments and observations related to budget execution that the Commission must take into account, being obliged to
report the measures taken in this area – art. 319º/3 and 318º TFEU.
The financial rules that define the modalities related to the preparation and execution of the budget and the accountability and oversight
The budgets are set by the PE and the Council, through ordinary legislative procedure, after consulting the TC (Article 322/1 TFEU).
The power to approve the budget and to control its execution gives the PE an opportunity to express its opinion.
on the political and administrative merit of the action and the EU and their respective costs.

4.2.1.5.3. Intra-organic controls

The PE has internal control mechanisms. These relate to the verification of compliance with the regulatory standards.
in areas such as quorum, the publication of minutes, etc. (art. 231 and 232 TFEU) and the rules that establish the status and the
conditions for the exercise of the activity of its members – Art. 223(2) TFEU.

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4.2.1.5.4. Inter-organic controls
Another important control mechanism concerns the active procedural legitimacy of the European Parliament to initiate legal actions.
The TN granted this legitimacy to the PE to file actions with the TJCE for the control of the legality of acts of
Council, of the European Council, the Commission and the ECB (Article 263 TFEU), in addition to defending their own prerogatives
institutional. It is an indirect control mechanism, as direct control is carried out by a
jurisdictional instance.
The same applies, likewise, to the control of the omissions of the Parliament, the Council, the European Council, or the Commission (art. 265)
TFEU). It must still refer to the competence of the EP to request the CJEU a preventive control of international treaties that
may not comply with the original law of the EU - art. 218/11 TFEU.
On the other hand, the EU jurisdiction monitors the legality of the acts of the EP intended to produce legal effects in relation to
third parties.

4.2.2. The European Council

4.2.2.1. General considerations
The European Council is today the main body of political direction of the EU – Article 13(1) TEU. It has evolved as a body of
political cooperation, of an intergovernmental nature, playing an important role in the expression and articulation of
interests of the Member States, although initially not part of the community institutions, which only happened later
for the first time with the TL. It gradually established itself, as a de facto organ of the EU.
The European Council consists of the heads of state (except in the case of France) and government of the EU member states, its
President and the President of the Commission. The High Representative of the Union for Foreign Affairs participates in their work.
Foreigners and Security Policy – Article 15, paragraph 1 TFEU.
Some saw in the reinforcement of its role the seed of European disintegration, as it allegedly tends to value
the most powerful national interests above the interests of the EU. However, a political impetus and strong legitimacy
they are essential to the survival and activity of the EU.

4.2.2.2. Assignments and competencies

The European Council is essentially a political body, whose functions are diverse.

4.2.2.2.1. Political direction function

The CE is today the body responsible for providing the necessary impulses for the development of the EU and for defining the respective
general political guidelines. It does not exercise legislative function – art. 15/1/3 TFEU. Particularly noteworthy is the identification
of the EU's strategic interests and the establishment of objectives and guidelines in the area of foreign policy and
common security – art. 26 TFEU.

4.2.2.2.2. Power of decision

The elevation of the CE to the formal institution of the EU granted it significant decision-making powers inherent to its leadership role.
politics. It now has the capacity to produce binding legal decisions (mainly in those cases where it
It foresees that certain decisions within the competence of the Council may be sent to the CE). This happens in the cases of article 31/2.
TUE and Articles 82(3) and 83(3) TFEU.

4.2.2.2.3. Naming function

The CE appoints the High Representative of the Union for Foreign Affairs and Security Policy, who may terminate their
mandate in accordance with the same procedure – Article 18(1) TEU). It also appoints the entities of Article 283 TFEU.

4.2.2.2.4. Function of amendment of the Treaties

The CE plays a key role in amending treaties in the ordinary revision process, deciding by majority.
simple analysis of the proposed changes or the non-call of a Convention, if the proposed changes do not it
we will justify - art. 48º/2/3 TUE). In the simplified review process, the Council takes on a central role, being able to adopt
amendments concerning Part III of the TFEU – Article 48(6).

4.2.2.3. Organization and functioning

The CE convenes regularly twice a semester, upon the call of its President. He is assisted by a
Own General Secretariat - article 235/4 TFEU. The members of the Council can decide to be assisted by a minister and, in the case of
President of the Commission, by a member of the Commission, whenever the agenda requires it – art. 15/3 TFEU. The CE
it is pronounced, in principle, by consensus, according to an intergovernmental logic. Abstention has a constructive effect, and
no veto, as it does not undermine unanimity. However, it is admitted that treaties provide for the

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voting possibility – Article 15(4) TFEU. If a vote takes place, the rules provided for the Council in Article 16(4) apply.
TUE, as well as those of Article 238(2) TFEU regarding the derogation of those.
In matters of procedural issues and the adoption of internal regulations, decisions are made by simple majority - Article 235(3) TFEU.
decisions of the CE are not subject to the principle of publicity, a solution that is justified in light of the political nature of its
decisions.

4.2.2.4. President of the European Council

4.2.2.4.1. General considerations
An important innovation introduced by the TL consisted of the establishment of the figure of the President of the European Council. This
The presidency is rotating and is limited to the Council. Thus, the EU sought to equip itself with a representative figure that is easily
identifiable by various international actors. Equally important is the identification of European citizens with a
external representative of the EU.
This figure of the CE generated some controversy among those who, on one hand, thought that the PCE should be a figure with
great political weight, strong and of notable charisma, capable of being recognized in any state, and among those who, for another
they thought that it should be merely a figure of organizer and dynamizer of the work of the CE, not limiting the
political space of action of the political representatives of the states. The second orientation, of a tendency, was probably welcomed.
minimalist.

4.2.2.4.2. Election, removal and mandate

The PCE is elected by the body itself, by qualified majority. Dismissal is also possible in the case of impediment or absence.
grave–art. 15º/5 TFEU. The mandate has a duration of two and a half years, renewable once, being incompatible with any
another national mandate – art. 15º/5/6 TUE.

4.2.2.4.3. Attributions and competencies

In light of the responsibilities and competencies of the PCE - article 15º/6 TFEU - it seems that one can say that the stimulating function and
the organizer of the EU works assumes a dominant nature, while the representative function assumes a nature
recessive. In fact, the competencies for presiding over and dynamizing the work of the CE are highlighted first.
guarantee of the preparation and continuity of the same. Only then is the external representative function mentioned.
President, in the context of foreign policy and common security. Lacking voting rights in the European Council, the respective
The president is, after all, a figure stripped of any effective power.

4.2.3. The Council

4.2.3.1. General considerations
The Council of Communities and the EU plays a central role in the dynamics of the European project. It is represented therein
all member states. Its essential function is to ensure the coordination of the general economic policies of the states-
members, possessing decision-making power and exercising legislative and regulatory competencies, and operates as an organ of
hinge in the articulation of the EU with the member states. In itself, the Council is not politically accountable to the EP.
even cannot be the target of motions of censure. However, it represents the governments of the member states, being these
responsible to their respective parliaments and citizens.

4.2.3.2. Attributions and competencies

The Council exercises a varied range of competencies: according to Article 16(1) TEU, it performs the legislative function and the function
budgetary, together with the PE, as well as functions of policy-making and coordination, as established
in our Treaties.

4.2.3.2.1. Legislative function

The Council performs the legislative function together with the EP. Both take on the primary role in creating secondary law.
of the EU for the execution of the treaties. The legislative function is carried out through the ordinary legislative process or a process
special legislative. The provisions of the treaties define the process that must be used in different matters.

4.2.3.2.2. Budget function

The Council performs the budgetary function together with the PE. It examines the project proposed by the Commission, and must take
reasoned position on it, for later articulation with the PE, if necessary through the intervention of the Committee of
Reconciliation – Article 314(2)(3) TFEU.

4.2.3.2.3. Coordination functions

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The Council performs important functions of policy formulation, coordination, and supplementation, namely in
economic domain or in areas of parallel competences – arts. 4/3, 5, 6 and 16/1 TFEU.

4.2.3.2.4. EU international linking function

The Council plays an important role in the celebration of international treaties between the EU and one or more countries.
third parties or international organizations as provided for in the treaties and in pursuit of their objectives - art.
Articles 216 and 218 of the TFEU. The role of the Council is particularly important – Article 218/6 TFEU.

4.2.3.2.5. Amendment function of the treaties

The Council participates in the process of amending the treaties, receiving proposals in the ordinary revision process and
referring them to the CE - Article 48(2) TFEU.

4.2.3.2.6. Initiative function

The rule remains that of the Commission's initiative - article 17(1) TEU. However, the Council may request studies and proposals from the
Commission, in view of achieving the objectives of the treaties. It is not legally bound by requests from
However, the Commission's decision not to present a proposal must be justified - Art. 241 TFEU.
the sanction for the absence of foundation will be merely political.

4.2.3.2.7. Control function

The Council performs an important control function, enjoying procedural legitimacy to initiate action.
actions to control the legality of the acts and omissions of EU institutions and bodies - art. 263 and 265 TFEU.

4.2.3.2.8. Human resources function

The Council also plays an important role in the field of personnel policy and human resources. Thus, it is with regard to
fixation of salaries, allowances, bonuses, pensions, as well as allowances and bonuses that replace remuneration (art. 243º
TFEU), also responsible for approving the Staff Regulations and the regime applicable to other EU agents - art.
Article 336 TFEU.

4.2.3.3. Organization and operation

The Council is composed of one representative from each member state, at the ministerial level, empowered to bind the
Government of the respective member state and exercise the right to vote – art. 16/2 TFEU.
The Council meets at the call of the president, at the initiative of the president, one of its members, or the Commission. The respective
The list, and its presidencies, are adopted by decision of the CE, taken by qualified majority, with the exception of the formation and
Presidency of Foreign Affairs and General Affairs - Articles 236 and 237 TFEU. The presidency of the Council formations
It is rotational, being exercised equally and successively by each Member State for six months - art. 16/9 TFEU.
The variability of the formations means that if the Council comments on financial or commercial issues, for example,
Portugal is represented, respectively, by the Ministers of Finance or of Commerce and Industry. The possibility of a... is not excluded.
participation of other members of the Government, such as State Secretaries. In fact, EU customary law has
coming to admit the participation of Secretaries of State, even when they are not considered, by constitutional law
national, members of the Government. Similarly, the presence of members of state governments is not excluded.
The meetings of the Council are public in the part where it deliberates and votes on a legislative act of the EU - art. 16/8 TEU
Article 15/2 TFEU - novelty introduced by the TL.
As a rule, the Council decides by qualified majority; however, it is acceptable to decide by simple majority.
simple, or by unanimous vote, according to the provisions of the treaties. Abstentions do not prevent decision-making by
unanimity - art. 238(4) TFEU - thus adopts a system of constructive abstention that prevents its transformation into
de facto veto.

4.2.3.3.1. Qualified majority and blocking minorities

The voting by qualified majority in the Council constitutes the rule regime. This way, a significant step was taken towards
supranationality of the EU, with a substantial limitation on the sovereignty of states. Furthermore, it constitutes a progress in
the sense of the realization of the democratic principle, insofar as it prevents the will of the majority of the States from being
blocked only by a State, which would have veto power.
No CE, on the contrary, the rule is unanimity, as important decisions are generally at stake.
the domain of high politics and national interests. Nevertheless, there may be room for a qualified majority vote. However,
significant precautions were taken in this area, such as the provision for a transitional regime, the guarantee of a
adequate democratic representation and the possibility of appropriate blocking minorities according to the circumstances.

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By virtue of the Protocol on transitional provisions, which determined the entry into force of Article 16/4 and 238/3 TFEU on 1 of
November 2014, these issues should be considered at three different times.

a) Weighting of votes in the European Council and the Council

Article 3 of the protocol regarding the application of Article 16/47 presents the weighting of votes concerning the decisions of the CE.
and of the Council that require a qualified majority. (see article.)

b) Before November 2014

Until October 31, 2014, a transitional regime provided for in Article 3 of the protocol is in effect: it is thus established that in
votes in which it is mandatory to deliberate on the proposal from the Commission, the majority requires 255 votes that express a position
favorable by the majority of members. When the proposal is not applicable, the 255 votes must express a favorable vote of at least
less, 2/3 of the members. It is allowed that the states may request verification that the vote corresponds to at least 62
% of the total population of the EU. The mentioned proportions remain in cases where not all States participate in the
voting, referring to these States and their respective populations.

c) Starting from November 1, 2014

As of November 1, 2014, the qualified majority corresponds, cumulatively to:
i. At least 55% of the Council members;
ii. At least 15 members;
iii. Representing 65% of the EU population.
It presents itself, in this way, as a qualified double majority. The blocking minority must consist of, by,
less, four members of the Council.
When not all participate in the vote, the requirement of a minimum of 15 members lapses and a representation of 65% is required.
two states participating in the vote. In this case, the blocking minority is 35% of the population of the participating states,
another (Article 238(3)(a) TFEU). This is the case, in any of the scenarios, when the Council decides on a proposal from the Commission or from
High Representative.
If this proposal does not exist, then, under the terms of Article 238(2) TFEU, the majority must be 72% of the members of the Council,
representative of 65% of the EU population, or, if not all vote, of the states participating in the voting (art. 238º/2/b)
TFUE).

d) Between November 2014 and April 2017

From November 1, 2014, to March 31, 2017, when a decision should be made by qualified majority,
Any member state may request that it be taken by the qualified majority provided for in Article 3 of the protocol and not
by the qualified double majority introduced as of November 1, 2014.

4.2.3.3.2. Simple majority

In some situations, it is accepted that the Council decides by simple majority, in which case it resolves by the majority of the members who
they are composed - art. 238/1 TFEU. This happens in matters of the organization of the General Secretariat, resolution of issues
procedural, etc.

4.2.4. The European Commission

4.2.4.1. General considerations
The European Commission, referred to as the Commission, is the institution of the EU–art. 13/1 TEU–rightly considered the guardian of the order of
Union. It protects and promotes the general interest of the EU, taking the appropriate initiatives to that effect – art. 17/1 TEU.
She seeks to identify and promote the common good of the EU, in a way that is completely independent of the interests of the States.
17º3 TUE- and the interests of the private sector.
In a broad sense, the term Commission means either the College of Commissioners itself or the Commission institution.
with all its General Directions. The Commission's mandate is for 5 years–art. 17/3 TFEU.

4.2.4.2. Assignments and Competencies

The Commission ensures the functioning and development of the common market, in a position of institutional independence.
before the member states and taking into account solely the general interest of the Union. In addition, the Commission is responsible
for the external representation of communities, being responsible for negotiating and adjusting international conventions and approving by
Advice.

4.2.4.2.1. Initiative function

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Through its formal powers of initiative, the Commission acts as a 'motor' of European integration. The Commission has
important initiative powers in various domains: annual and multiannual programming of the EU (art. 17/1), Union policies,
internal market, asylum and emigration, etc.
Your initiative takes on special significance in the exercise of legislative powers, where it is the rule. It is only mitigated by
possibility given to the Council and the citizens to invite the Commission to make a proposal.
The general principle of the exclusive legislative initiative of the Commission is understandable, as it aims for the initiatives
legislative actions within the EU should be motivated by an assessment of the Union's global interests and not just by an evaluation
national interests. In this way, the primacy of the general European interest and the autonomy and independence of
Commission regarding the member states. It also aims to strengthen the protection of minorities against the risk of a
qualified majority in the Council.
Deviations from the Commission's proposal generally require the unanimity of the members of the Council. Nonetheless, this is a
principle and not a rule. Legislative initiative may belong to the states, in the realm of police and judicial cooperation, and to
High Representative, in the field of foreign policy and security.
Naturally, the Commission's power of initiative is exercised in coordination with the states and other institutions and bodies of
The EU is also receptive to suggestions from states, EU bodies, and even individuals.
Furthermore, the initiative powers of the Commission are subject to the principles of the delegation of competences, of
subsidiarity, proportionality, and financing.
The initiative function is inseparable from the role of the Commission in ensuring coherence between the internal and external actions of the EU (art. 21/3,
22º/2 and 27º/3 TUE.

4.2.4.2.2. Normative function

In principle, EU legislative acts can only be adopted on the proposal of the Commission, unless the treaties explicitly state otherwise.
dispose differently (Article 17(2) TEU).
In the regulatory framework, the Commission has significant decision-making and shaping power regarding the timing and content.
manner, form, and density of the normative measures that will be adopted by the Council and the EP.
Still, in addition, the commission exercises its own normative powers and delegated normative powers: in the first case, it concerns
of powers that are directly assigned to it by the Treaties. This occurs in matters of regulations on residence
in the territory of a worker beyond the duration of the contract (art. 55º/3/d) TFEU); in the second case, the existence is admitted
of legislative acts delegating normative powers to the Commission (Article 290 TFEU). These general acts
they can complete or alter non-essential elements of legislative acts, which should set the objectives, the content, the
scope of application and the duration of the delegation and powers.
It is added that the delegation can never deal with the essential elements of a legal regime. Thus, the reserved elements are...
essential aspects to the PE and to the Council, allowing the Commission to discipline non-essential aspects of a legal regime. The
the possibility of delegation is usually justified by the excessive slowness of the primary legislator and the
the need to respond appropriately to imperatives of efficiency, necessity, and urgency.
The role of omission in the legislative process has been mitigated by the strengthening of the EP and its interaction with the Council.

4.2.4.2.3. Budget function

The Commission is responsible for gathering the forecasts of revenues and expenses for the next budgetary exercise, presented by the
several institutions, and bring them together in a budget project, which will be presented, as a proposal, to the Parliament and the Council, the
who is responsible for preparing and approving the budget.
In the search for agreement between these institutions, the Commission participates in the work of the Conciliation Committee provided for in the
effect - Article 314 TFEU.

4.2.4.2.4. Executive function

The Commission oversees the implementation of the Treaties and the measures adopted by the community institutions by virtue of this article.
17º/1 TUE. It is up to you to ensure the execution of original and derived European law. In addition to controlling that same
execution, the Commission performs an important executive function of coordination and management, according to the established conditions
our treaties.
It has specific competence for the issuance of individual and concrete acts of execution, for example, in
competition law in which it is up to the Commission to ensure the application of the respective principles – Article 105 TFEU.
The executive function may involve some normative powers. Indeed, the possibility is foreseen for states, in the exercise
of their obligation to execute the legally binding acts of the EU, delegate normative powers to the Commission when
uniform conditions of execution are necessary (Article 291 TFEU).

4.2.4.2.5. International linking function

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The Commission participates in the EU's international binding process, being able to make recommendations to the Council on the
negotiations (art. 218/3 TFEU). This capacity is inseparable from its external representation function, which obliges it to
establish contacts with all States and OIs.

4.2.4.2.6. External representation function

The Commission performs important external representation functions of the EU, with the exception of foreign and security policy.
common, which has its own High Representative, and the other cases provided for in the treaties (art. 17/1 TEU). According to
with this role, she has the opportunity to establish a wide international network of contacts, thus achieving
a considerable capacity for influence.

4.2.4.2.7. Representation function in the Member States

The Treaties intend for the EU to enjoy broad legal capacity, as well as to be recognized by legal entities.
and by the legal orders of the Member States. This is essential, in fact, for the realization of their respective missions. For this reason, they are
foreseen privileges and immunities, at the same time, that it can have active and passive procedural legitimacy before the
national courts.
In principle, it is up to the Commission to represent the EU, however, Article 335 TFEU states that the EU is represented by each of the
its institutions, under the respective administrative autonomy, on matters related to their functioning.

4.2.4.2.8. Control function

EU law must be applied not only by the respective bodies and institutions but also by the states and by the
particulars.
The commission has important control powers in this domain, under the supervision of the CJEU - art. 17/1 TEU.
For the performance of the functions entrusted to it, the Commission has powers of information gathering and verifications.
necessary - Article 337 TFEU. Furthermore, it may cooperate with the Member States in the objective and impartial assessment of the implementation of
Union policies regarding the area of freedom, security, and justice – art. 70 TFEU. It can also monitor the
offenses against them - Article 108 TFEU - and the rules on state aid (Article 108 TFEU) or the disparities between states
false competitors – Article 116 and 117 TFEU.
Furthermore, it has the duty to investigate the complaints presented to it by individuals. Of special relevance is the
your power to initiate infringement actions against the member states under EU law (Article 258 and 260 TFEU).
In addition to exercising control functions, it assists the control by other EU bodies, and for this purpose, it is
thank you for publishing an annual report on the activities of the EU - art. 249/2 TFEU:

4.2.4.3. Organization and functioning

The organization and functioning of the Commission, in a broad sense, express the institutional and functional complexity of this.
institution.

4.2.4.3.1. Chairman of the commission

He is a member of the unassigned Commission, with important responsibilities in the scope of the political guidance of the omission and the
presidency of the board of commissioners, in whose appointment it actively participates. It has an important function of
"Agenda Setting", being responsible for defining the political priorities of the EU and representing it externally, may be assisted in these matters.
functions.

a) Election and substitution

Your election begins with the presentation, by the CE, of a candidate proposal to the PE, taking into account the results from the
elections for this body. The candidate proposal is approved by a qualified majority.
Then, the PE elects the candidate by a majority of its members. If this majority is not achieved, there is a place for
repetition of the process with a new candidate, who must be proposed within a month – art. 17/7 TFEU. In the case of
In case of death or dismissal, the President shall be replaced for the remainder of their term in accordance with the procedure of
Article 17/7 TUE.

b) Functions and competencies

According to Article 17(6) TFEU, it is up to you:
Define the guidelines within which the Commission carries out its functions;
Determine the internal organization of the Commission, ensuring its coherence, effectiveness, and collegiality of action;
Appoint vice-presidents from among the members of the Commission (High Representative).

4.2.4.3.2. The High Representative

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a) General considerations
The TL came to create the figure of the High Representative of the Union for Foreign Affairs and Security Policy, which we designate
by the High Representative. This is a less ambitious version of the EU Foreign Minister.
The exercise of your functions involves coordination with the European Council, the Council, the Commission, and their respective presidents.
Ministers of Foreign Affairs.

b) Appointment and term

The AIR is a member of the committee, serving as vice-president – art. 17/4 and 18/4 TFEU.
The AR is appointed by the CE, by qualified majority, with the agreement of the President of the Commission - art. 18/1 TUE. It is also subject to
the approval vote of the PE - article 17/7.
The dismissal of the AR is determined by the CE – article 18/1 TFEU.
In the event of the commission being dismissed by a motion of censure, the AR must resign from its functions – art. 17º/8.
The nature of your functions justifies a special regime for your participation in the Commission–art. 17/4 TUE.

c) Attributions and competencies

The AR drives the EU's common foreign and security policy, ensures the external coherence of the EU, and is responsible for
respective duties in external relations. In addition, he presides over the Council of Foreign Affairs, composed of
Ministers of Foreign Affairs of the Member States may convene an extraordinary meeting of the Council in
situations requiring quick decision - Article 30, paragraph 2 TFEU.

d) Support services
For the exercise of its functions, the AR relies on a European service for external action, which works in coordination with the
diplomatic services of the member states. It includes staff from the General Secretariat of the Council and personnel
highlighted national diplomatic services. The respective organization and functioning is proposed by the AR and decided by
Council – Article 27(2) TFEU.

4.2.4.3.3. College of Commissioners

a) Composition
In the strict sense, the Commission refers to the college of commissioners. Currently, the Commission is composed of 27 members, as many
how many member states, one for each State. However, starting from November 1, 2014, the number of members will be
correspond to 2/3 of the number of members, unless the Board of Directors, by unanimous decision, establishes otherwise. When the number of
commissioners do not correspond to those of the States, their selection should be made based on a system unanimously defined
by the CE, with a strictly egalitarian rotation, from the point of view of the sequence and the time spent in the position, reflecting
the geographical and demographic position of the Member States as a whole - art. 17/4 TEU and 244 TFEU.

b) Appointment, dismissal and replacement

The Council adopts a list of personalities it intends to appoint, based on the suggestions put forward by the States.
These personalities are chosen exclusively from among the nationals of the member states, based on the criteria of
general competence, of European commitment and independence - art. 17/3/7 TUE. The President, the AR and the members of
The commission is subject to a vote of approval by the EP. Subsequently, the CE appoints the Commission, deciding by majority.
qualified – Article 17(7) TFEU.
Once in office, the members of the committee are accountable politically and personally to the President of the Committee, to whom
they resign whenever he requests it (art. 17/6 TFEU). The functions can also cease by resignation
voluntary - Article 246 TFEU.
The replacement, in case of dismissal or death, is made by a member of the same nationality, by the remaining of the
mandate. For this, the EP is consulted and the Council decides in common agreement with the President of the Commission–art. 246 TFEU.

c) Independence
The members of the Commission may not seek or accept any instruction from any Government, institution, body or
organization. They must maintain a position of total independence. For their part, the states must respect this
position and refrain from trying to influence them in the exercise of their duties - art. 245 TFEU. Furthermore, they must
refrain from any activity that is incompatible with your duties or with the nature and exercise of your functions
Article 17, paragraph 3 of the Treaty on European Union.

The independence of the commissioners does not mean that they are not expected to have a deep knowledge of their own country and that
this knowledge is not positively valued as an asset of the Commission.

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The CJEU, at the request of the council or the commission, carries out the monitoring of compliance with these duties - arts. 245 and 247.
TFEU.

d) Operation
The Commission operates according to a collegiate logic, having a right to self-organization: it approves its own
internal regulations, ensuring its publication, defines its objectives, a political strategy, and a program of
work and the draft budget for the following year.
Each of the commissioners is assigned responsibility for specific subjects, and it is up to them to prepare the
Commission's work and execute its decisions. Permanent or ad hoc working groups may be established - art. 3rd
RIC.
The committee meets once a week, without prejudice to the scheduling of extraordinary meetings, following an agenda of
works adopted by the President - art. 6, 7 and 8 RIC.

e) Decision-making process
In order to allow the effective functioning of the Commission, four decision-making processes of the Commission are provided for, which
it is important to understand in its essential lines - art. 4 RIC.

i. Oral process
The oral process takes place in the meetings of the Commission, in which, in principle, all members must be present. In
Meanwhile, the justification for the absence is accepted, with the majority quorum functioning.
The meetings are not subject to the principle of publicity, with the deliberations remaining confidential. All members are
personally and jointly responsible for the decisions of the Commission – Article 250 TFEU and Articles 5 to 10 RIC.

ii. Written process

The decisions of the Commission can be made through a written process - art. 12 RIC. The members of the Commission have their
own office, which serves as your official office. Offices serve as interfaces between the various
Commissioners and between them and the General Directorates, contributing to the preparation of the Commission's decisions and to the formulation
the policies of the portfolio of each Commissioner. The text of the project will circulate among the various offices, which will formulate reservations or
changes, within a specified time frame. Any member can request a debate or the suspension of the project, but
If this is not done within the deadline, the project is considered approved.

iii. Qualification process

Through this means, the Commission, safeguarding the principle of collegiality, enables one or more of its members to make decisions.
about administrative or management matters, within the established limits and conditions. Similarly, it can also
authorize one or more members to establish a definitive text of an act to be submitted to other institutions, respecting the
essential content previously established by the Commission through oral process.

iv. Delegation process

It is also accepted that the Commission, respecting the principle of collective responsibility, may delegate powers of
decision in administrative and management matters by the General Directors and heads of service, under the conditions and limits established
–art. 14 RIC. Sub-delegation is allowed within certain limits–art. 15 RIC.

f) Political responsibility
The College of Commissioners cannot be fully equated to a cabinet government: first of all, because the powers
Ministerial duties are exercised by the Council and not by him; furthermore, the President of the Commission does not have political legitimacy.
analogous to that of a Prime Minister; the Commission is not directly elected by European citizens, nor is it appointed solely
by the PE based on exclusively political criteria; and the President of the Commission does not have the power to propose the appointment of
commissioners of your personal and political trust, although you agree to the list approved by the Council of personalities
proposals by the States to be appointed as commissioners by the EP and the Council.
However, the commissioners become more subject to the President of the Commission, who has a function of
political orientation, in order to strengthen collegiality, effectiveness, and unity of action in the functioning of this body, since this
it avoids the individual accountability of each of them before the Council and the PE, facilitating cohesion and unity of action of
Commission.
The Commission thus responds politically, collectively and jointly, before the EP, which can dismiss it by means of the
approval of a motion of censure by a majority of 2/3 of the votes cast provided it equals the majority of the members who
integrate the PE, as this vote must be public. The resignation of the Commission implies the resignation of the functions that the AR has there.

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exercise. The members of the Commission remain in office until their replacement, which will last only until the end of
respective mandate – Art. 234 TFEU.
However, the wide majority required for the dismissal of the Commission reveals that there is an intention to prevent it from ceasing its
functions only for reasons of normal policy. In addition, the existence of a 3-day reflection period, the fact that the
commissioners will continue in their roles until their replacement, which largely depends on the CE and the Council – art. 17
TUE - it constitutes a substantial reduction in the effectiveness of this control mechanism.

4.2.4.3.4. General directions

The Directorates-General (DGs) constitute the central administration of the Commission, which are essential for the implementation of policies.
EU, preparing and executing the actions of the Commission - Article 21 of RIC. Through them, the direct administration of the EU is manifested.
given that indirect administration is carried out by the administrations of the Member States, which are also bound
the EU law – thus, there is talk of a functional unfolding of national administrations.
The DGs are organized into directions and units, being responsible for areas such as: agriculture and development.
rural; environment; competition; social issues and equality of opportunities; etc.
In the DG's, most of the Commission's employees work. One of the biggest challenges for this, essential to the effectiveness of its action, is
to achieve full cooperation and coordination of the different DGs - art. 23 RIC.

4.2.4.3.5. European Central Bank

a) General considerations
The European Central Bank (ECB) is another institution of the EU - Article 13 of the TEU.
Your powers are conferred directly by treaties and not by delegation from other institutions; thus,
also the modification of its powers depends on the modification of the treaties - factors that confer it a
constitutional dignity. The BCE Statute is part of the Protocol Annexed to the Treaties.
The ECB is a cornerstone of the European economic integration project, established when the Treaty of
Maastricht established the creation of an Economic and Monetary Union as one of the main objectives of the EU. Thus,
therefore, the ECB promotes price stability in the EU and conducts monetary policy in the Eurozone; in the international arena, the ECB
gives the EU a single voice in the international financial system.
It is an institution with innovative characteristics compared to other seemingly analogous ones: it has personality.
legal, being independent in the exercise of its powers and in the management of its finances. Therefore, the EU institutions and the
Member States are obliged to respect this independence – Art. 130 and 282/2/3 TFEU. They must not only refrain from
try to influence the ECB, how they should come out publicly in their defense against attempts to undermine their authority and
independence. In fact, it has active procedural legitimacy to file legal actions to defend its
prerogatives – art. 263(3) TFEU.
The constitutional statute of independence of the ECB aims to affirm its role as the central bank of the EU, integrating the
set of European institutions serving the interests of the EU. However, this is a status that does not exempt the ECB from
The application of general EU rules does not isolate it from other institutions, nor does it eliminate cooperation with them.
Without prejudice to this statute, he must send an annual report to the EP, the Council, the Commission, and the CE regarding the policy.
monetary year of the previous year and the current year, which will be presented to the Council and the PE, possibly giving rise to a
general debate–art. 284º/3 TFEU; this solution expresses the subordination of the ECB to a democratic duty of accountability.

b) Organization
Since not all EU member states have adopted the Euro, the European financial system has a complex structure.
Within the ECB, it is important to highlight the existence of the ECB Council and the Executive Committee.

i. ECB Council
The ECB Council is composed of:
Members of the Executive Board of the ECB;
Governors of the national central banks of member states whose currency is the euro - art. 283/1 TFEU.
This Council meets at least 10 times a year and its members participate in the body in a position of total
independence in relation to their respective States. The content of the resolutions is confidential. The exercise of the right to vote is
regulated according to the number of governors, which increases as the States join the Euro - art. 10 PESEBC.
Although the ECB is required to carry out its activities with full independence, there is concern about ensuring the
minimum monetary policy coordination with other European policies, which implies some relationship between the ECB and the
other institutions. Hence the participation, in the meetings of the ECB Council, without voting rights, of the President of the Council and of a
member of the Commission, allowing that to submit motions for deliberation by the ECB Council – Art. 284/1 TFEU. In turn, the

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The President of the ECB is invited to participate in the Council meetings whenever matters relating to are discussed.
objectives and responsibilities of the SEBC - art. 284º/2 TFEU.

ii. Executive Committee

The executive committee of the ECB is tasked with implementing monetary policy in accordance with the guidelines and decisions.
established by the ECB Council, which may delegate some powers to it - Art. 12 PESEBC.
It consists of a President, a vice-president, and four members - art. 283/2 TFEU; art. 11 PESR. These are appointed by the CE,
by qualified majority, upon recommendation of the Council, after consultation with the EP and the ECB Council; it adds that they must be
people with recognized competence and professional experience in the monetary or banking fields, must be
national of the member states.
Your term is eight years, non-renewable (Article 283 TFEU), a fact that constitutes a structural guarantee of
independence of the ECB, as it removed the risk of the members of the Executive Committee guiding their actions with the objective
to see their mandate renewed. Furthermore, the members of the Commission E. carry out their mandate full-time, being
prevented from engaging in any other activity, paid or unpaid.
Your dismissal, for failure to meet the requirements or for serious misconduct, is determined by the CJEU, at the request of the Council of
BCE or of the Executive Commission - art. 11 PESEBC.

c) Functions
i. Coordination function of monetary policy
The ECB conducts the monetary policy of the EU, having exclusive authority to decide on the issuance of Euro banknotes.
this will be carried out by the BCN's (art. 128º/1 and 282º/3 TFEU); moreover, it is required to promote the stability of
prices (Article 127 TFEU); can also proceed with the compilation of the necessary statistical information, in coordination with the NCBs,
the national authorities and the competent IOs (art. 5 PESBC).
The ECB supports the implementation of the EU's general policy guidelines; for this purpose, the ECB may approve regulations, take
decide and formulate recommendations and opinions. In the same way, it can apply fines and monetary sanctions.
mandatory.

ii. Advisory function

The ECB has advisory powers and can be consulted and present opinions within the scope of its responsibilities to
institutions and bodies of the EU and to the States, on draft acts of the EU and draft regulations at the national level–art.
127º/4 and 282º/5 TFEU.
The consultative procedure is established by the Council, through two possible means:
Through a proposal from the Commission, after consultation with the Parliament and the ECB;
Recommendation of the ECB, after consultation with the EP and the Commission – Article 129(4) TFEU.
A good part of the advisory function is oriented towards budgetary and financial discipline. However, the ECB can also
be consulted and provide opinions on the applicability of European legislation to prudential supervision of
credit institutions and the stability of the financial system - art. 25 PESBCE. Advisory functions are performed by
ECB Council – Article 12(4) PESEBC.

d) European System of Central Banks

The SEBC is provided for in Article 282 TFEU.
Your fundamental objective is to ensure price stability and support the overall economic policies of the EU.
Article 127(1) TFEU; Article 2 PESECB. It brings together in a federal-type structure the ECB and the NCBs of the Member States, being
led by the ECB Council and the ECB Executive Board – Article 129 TFEU.
The SEBC Statute is included as an Annex Protocol to the Treaties.
Your main responsibilities are:
The definition and execution of the EU monetary policy;
The execution of foreign exchange operations;
The detention and management of official foreign exchange reserves of the Member States;
The promotion of the proper functioning of payment systems – Article 127(2) TFEU.

It expresses a relevant centralizing principle insofar as the NCBs are an integral part of the ESCB, being
subordinate to the guidance and instructions of the ECB, and to the extent that the ESCB coordinates monetary policies at the EU level,
distributing the tasks between the ECB and the NCBs, in a way that turns the latter into EU bodies.
This reflects the multi-level distribution of competences often observed within the institutional framework of the EU. In
In reality, the BCN's rarely act in their purely national capacity, and must remain independent, whether from
institutions and bodies of the EU, as well as those of the respective States - Article 130 TFEU - an idea that aims to strengthen the independence of the ECB

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and of the SEBC (art. 28 ESEBC). The BCN’s take on an increasing importance as guarantors of the application of financial law.
European, operating a functional unfolding, and that European functions coexist with national regulatory functions and
supervision. However, national functions cannot interfere with the objectives and responsibilities of the ESCB, assuming the NCBs
all the risks and responsibilities that they may involve.

Eurosystem
The creation of the Euro in 1999 and its introduction into circulation in 2001 constituted one of the most significant developments in
world financial system since the establishment of the Bretton Woods system, which led to the creation of the International Monetary Fund
International Monetary Fund (IMF) and the World Bank. It came to facilitate economic integration, reducing the need to exchange currencies.
nationally and disciplining the normally more undisciplined states.
However, not all EU states have adopted the euro, although for different reasons. For this reason, it is necessary to consider,
within the European financial and monetary system, the existence of the Eurosystem – which includes the ECB and the national central banks (NCBs) of
States that adopted the Euro (art. 282/1 TFEU; art. 1 PESBC).
The Eurosystem is responsible for formulating monetary policy, in federal terms, in the Eurozone. It operates in
coordination with the Eurogroup, composed of the Finance Ministers of the Eurozone countries.

4.2.4.3.6. Court of Auditors

a) General considerations
The Court of Auditors of the EU (ECA) is an institution of the EU - art. 13 TUE; this institution is responsible for oversight of
EU accounts, independent of the Member States.
The TCUE has characteristics that place it halfway between an independent administrative agency and a court. It
allows for the realization of the principles of accountability, transparency, and democratic critical publicity. A
complementation of direct and indirect administration (through the states) via independent administration, came
significantly increase the demands for political, jurisdictional, and financial control.
He performs his role in the context of a relationship of trust and cooperation with the financial oversight authorities of the
Member States – Article 287(3) TFEU.

b) Attributions and competences

The ECA has the function of auditing the accounts of the EU, including, in principle, the accounts of all revenues and expenditures of
organisms created by it. Moreover, it assists the PE and the Council in its function of budget execution - art. 285º and
Article 287 of the Treaty on the Functioning of the European Union. The Court of Justice exercises relevant control powers: in addition to reviewing all relevant documents, it

can be done within the premises of EU institutions, bodies, and agencies and in the Member States, including in
installations of legal entities that have benefited from EU payments; it may also request the documents and the
information you need to carry out your duties – Article 287(3) TFEU.
All detected irregularities must be marked - art. 287º/1/2 TFEU. Furthermore, the TFEU presents to the others
institutions an annual exercise report, which will be made public along with the responses that the institutions
oversight give them. The TCUE can also present special reports on specific issues.
In exercising its powers and responsibilities, the TCUE must act with complete independence concerning the others.
European institutions and the Member States, being unable to receive any instructions from any government or entity.
Article 286(3) TFEU.

c) Composition, organization and functioning

The TCUE is composed of one national from each member state, who carry out their duties with total independence and in
interest of the Union, being selected from individuals who have served in institutions in the States
external oversight or those who have a special qualification for this function. The states propose names with this profile, the
which, after consultation with the EP, are included in a list to be approved by the Council.
The members of the TCUE commit to respecting the duties inherent to the position (honesty and discretion), even beyond
at the end of the term, which has a duration of 6 years and is renewable. The President of the Court is elected by his peers by
a period of 3 years, with the possibility of reelection. During the term, members may not engage in any incompatible acts.
with the nature of their functions, nor undertake any other profession, paid or not.
The members of the TCUE are subject to the rules of the Protocol on Privileges and Immunities of the EU applicable to the members of
TFEU - Article 285 and 286.

4.2.4.3.7. Advisory bodies

In addition to the EU institutions, there are other bodies. The EP, the Council, and the Commission are assisted by some Committees of
consultative nature, reflecting the well-known 'comitology' that characterizes a significant part of institutional activity

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of the EU. It aims for the resolution of problems to result from a process, not just from consultation and interaction.
bureaucratic, but of democratic deliberation with space for broad reflection, dialogic rationality, and participatory decision-making.

Economic and Social Committee

The CES is provided for in Article 13(4) TEU and 301 ss TFEU. It comprises a maximum of 350 members, with its composition
determined by unanimous decision of the Council, which also sets the allowances of the respective members. Until the entry into force
from this decision, article 7 of the Protocol Relating to transitional decisions is in effect.
The members of the CES have a term of five years, which may be renewed, being elected from names proposed by
States, by consulting the Commission and a unanimous decision of the Council.
The CES appoints a President and the Board for two and a half years. It is up to them to convene meetings, at the request of the PE, of the Council.
and by the Commission, or on its own initiative; it also performs a mandatory advisory function whenever provided for in the treaties,
or optional, from the initiative of EU institutions. However, in some cases the opinion is binding, whether it is mandatory or
optional. These opinions are presented, along with the report of the deliberations, to the EP, to the Council, and to the Commission.
The CES must be heard, namely, when it concerns: measures for the free movement of workers (art. 46)
TFEU), freedom of establishment (art. 50 TFEU), international transport (art. 91 TFEU), etc. He also has the right to
obtain information on issues within your competency areas (for example, he receives the annual report on the
application of the rules on European citizenship.

b) Committee of the Regions

The CR is provided for in Article 13(4) TEU and Article 305 TFEU. It is composed of a maximum of 350 members, by means of nomination.
of the States, proposal from the Commission and unanimous decision of the Council. Until the entry into force of this decision, Article 8 applies.
of that Protocol.
The term of office for members of the CR is 5 years, and they may be renewed. The exercise of functions in this committee is
incompatible with the mandate of deputy to the PE. The CR designates the respective President and the Board for two and a half years.
As with what happens with the CES, the meetings take place at the invitation of the President, at the request of the PE,
Commission or Council, or on its own initiative. The exercise of the advisory function may be mandatory in the cases provided for.
our treaties, or optional, as such is deemed appropriate by an institution.
The same is heard, particularly regarding employment policy (Article 148 TFEU), education, youth, and sport (Article.
165º/4 TFEU), culture (art. 167 TFEU), primarily, in the area of cross-border cooperation, etc.
The CR can issue opinions on its own initiative.

c) The Political and Security Committee

The CPS is provided for in Article 38 TFEU. Its role is to monitor the international situation in matters related to
common foreign and security policy; has an advisory role, alongside the Council, assisting in the formulation of policies
in these domains; it is also up to him to monitor the implementation of policies, as well as participate in the coordination of military missions
no exterior - articles 42 and 43 TFEU.
However, the CPS does not have exclusively consultative powers; under the responsibility of the Council, the CPS also performs a
important role of political control and in the strategic direction of management and crisis operations. In these cases, the CPS operates
in close coordination with the EU Military Committee.
Their opinions can be requested by the Council, by the AR, or issued on their own initiative.

Economic and Financial Committee

The CEF assists the Commission and the Council in the area of coordinating the policies of the Member States, with a view to
functioning of the internal market. He formulates opinions and monitors the economic and financial situation of the States. He
regularly reports its activities to the Council and the Commission.
The CEF assists in the preparation of the Council's work when issues such as capital movements are at stake (art. 66)
TFUE), financing of terrorism (art. 75 TFUE), economic policy (art. 121 TFUE), etc.
The CEF examines the circulation of capital and the freedom of payments, reporting to the Council and the Commission - art. 134º/2/2
TFUE.

e) Social Protection Committee

The CPS is provided for in Article 160 TFEU. It is created by the Council, after consulting the EP, with a view to promoting the
cooperation in matters of social protection among the member states can develop initiatives and establish
contacts with social partners, preparing reports and opinions.

f) Employment Committee

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The establishment of the CE is planned, to be created by a simple majority of the Council, after consulting the PE - Article 150 TFEU. Each State will appoint
Two members for the CE. Its objective is to promote the coordination of employment and labor market policies.
in the member states. It also assists in the preparation of decisions regarding employment policies, along with the CES.
and the CR–Article 148 and 149 of the TFEU.

4.2.4.3.8. Independent administrative agencies

a) General considerations
An important development in the exercise of the administrative function within the EU is related to the creation of agencies.
independent administrative bodies, arising outside the Treaties. Their legal basis has been sought in the clause of
implicit powers (art. 352 TFEU) and in the legislative, regulatory and administrative harmonization clause (art. 115 TFEU).
These came to introduce a principle of indirect administration in an administration that was traditionally exercised by
directly by the Commission, and indirectly by the States.
European administration is now more fragmented, polycentric, and institutionally heterogeneous.

b) Typology of European agencies

There are many independent administrative entities in the EU today:
i. Administrative entities linked to the functioning of the internal market (European Railway Agency (ERA), the
European Medicines Agency (EMA);
ii. Administrative entities linked to police and judicial cooperation (European Police Academy (CEPOL), the
European Police Service (EUROPOL)
iii. Administrative entities related to foreign policy and common security (European Defence Agency (EDA), Center
of European Union Satellites (EUSC);
iv. The so-called executive agencies - established by the Commission and operating under its auspices, within the framework of management
of community programs; examples: Trans-European Transport Network Executive Agency (TEN-TEA),
Health and Consumers Execution Agency (EAHC).

c) Reason for being

Your existence has been justified by the need to ensure, for public activity, higher levels of
technical competence, continuity, credibility, and visibility. Thanks to them, the Commission can focus on a function of
policy-making
These independent administrative entities rely on the participation of all EU Member States.
on the same principles of cooperation, accountability, transparency, and representativeness that serve as its foundation.

4.2.4.3.9. The role of national parliaments

Not having an exclusive role here, national parliaments have always played a decisive function in what concerns their
participation in the ratification process of successive treaties, as well as in the execution of European law.

a) European representative democracy

The progressive transfer of competence from national parliaments to community bodies of an executive nature, without
sufficient compensation in the strengthening of the powers of the European Parliament has led a good part of the doctrine and opinion
public European speaking about the democratic deficit of the EU. Hence, it is particularly important to ensure the possibility of
participation, information and criticism of national parliaments in the European integration process, opposing the trends
undesirable erosion of the essential content of democratic-parliamentary primacy.
The functioning of the EU is based on the principle of parliamentary democracy, which is realized in the strengthening of the powers of the EP and of the
National parliaments. At the same time, inter-parliamentary cooperation is structured, giving rise to a true network.
democratic-representative European, characterized by the complementarity between European institutions and institutions
nationals.

b) National parliaments as EU bodies

Article 12 of the TFEU refers to the role of National Parliaments: these bodies have competencies defined for them by the TFEU, and not
through national constitutions; they must actively contribute to the proper functioning of the EU, in accordance with the Protocol
Regarding the Role of National Parliaments in the Union; they must ensure respect for the principles of subsidiarity and of
proportionality, according to the respective Protocol; they are also responsible for participating in the evaluation of the adopted policies
in the context of the area of freedom, security, and justice, in the political control of Europol (art. 77 TFEU) and in the evaluation of Eurojust
(art. 85 and 88 TFEU); they also participate in the treaty revision process (art. 48 TEU) and are informed of requests for
accession (art. 49 TFEU).

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Under the terms of the mentioned Protocol, the Commission must send its consultation documents to the national parliaments, well
like all documents related to legislative programming or political strategy; the draft legislative acts
sent to the PE and the Council are also sent to the national parliaments; the agendas and the minutes of the meetings of
Councils must be brought to the attention of national parliaments, which also receive the report from the Court.
of Accounts.

c) The role of the Assembly of the Republic

Under the terms of the CRP, the AR monitors and evaluates Portugal's participation in the process of building the EU, having been created
for this purpose, the Commission for European Affairs, specialized and permanent, is expected to have a regular process of exchange.
of information and consultation between it and the Government, structured in a way to allow for ongoing monitoring of
Portugal's participation in the process of building the EU.
The theory of essentiality and respect for the reservation of competencies lead to the Government having to present, in
useful time, for the consideration of parliament the matters and positions to be debated in European institutions, when at stake
matter of absolute or relatively reserved competence - art. 164 and 165 of the Constitution. It is also within the exclusive competence of
AR, absolutely reserved, to legislate on the designation regime of the members of EU bodies, with the exception of the Commission.

Chapter IV: Normative Structures

EU Law

The EU law, applicable in a set of 27 States, is an imposing construction. Although the community legal order
The response to the union of the wills of the member states has early gained normative autonomy.
The integrative power of law is explicitly recognized in the process of European unification. The principle of loyal cooperation.
when applying the obligation on the part of the Member States to adopt all appropriate measures to comply with
community obligations dominate the relations between community law and national law, ensuring legal integration
the social of the EU and the peoples that make it up.
EU law is a complex reality. It comprises written and unwritten law, presenting itself hierarchically.
structured as primary, secondary, and tertiary law.

2. Characteristics of the European legal system

Community law is:

a) An atypical legal order, in the sense that it constitutes an intermediate legal order between international law and the
federal law;
b) An autonomous legal order, thus defined by the autonomy of the sources of law, of the instances of
application of law and legal norms;
c) A uniform legal order, valid to the same extent for all member states;
d) A legal order integrated into that of the member states.
This means that the EU has created a new legal framework that constrains both state sovereignty and autonomy.
individual, transforming national bodies into enforcers and individuals into subjects of European law -> unity of
community order.

3. Normative structures of EU Law

Similar to what happens in national legal systems, the community legal order is presented
hierarchically structured.

3.1. Primary Law

Primary, or original, law assumes a position of supremacy in the hierarchy of EU law norms; it integrates the
called European Union constitutional law.
It encompasses a diverse set of instruments and principles endowed with the same nature and placed in the same
plan in the normative hierarchy, fulfilling a parametric function in relation to all secondary and tertiary law created
based on these instruments and principles.
It integrates the founding treaties of the communities, the additional protocols, the complementary acts, the acts of
adherence and the general principles of community law, thus forming a unified whole.

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3.1.1. Founding and Revision Treaties
The EU was based on the ECSC, EEC, and EAEC treaties. Since then, they have been successively amended, having changed the
CECA treaty expired due to the expiration of the 50-year validity period. Subsequently, the Merger Treaty followed, the
Single European Act, the Maastricht Treaty, the Amsterdam Treaty, the Nice Treaty, and the Lisbon Treaty.
Currently, the consolidated versions of the TUE and TFUE are in force, which, together with the Charter of Fundamental Rights,
They integrate the Treaties that govern the EU. These are the foundation of the primary law of the EU.
These instruments contain the norms regarding values, principles, objectives, and rules that govern the process.
of European integration, where are also regulated the bodies, the procedures and the ways through which
which develops the activity of the EU.
Treaties bind all member states; however, the CJEU has interpreted that these normative instruments aim to,
not only regulate the relations between the member states, but also affect the legal order of each of them. The
Community jurisprudence thus came to consider a very significant number of treaty norms (that have a
clear, precise, unconditional and non-discretionary content) as self-executing directly applicable and justifiable, even
in the relationships between individuals, having made progress in specifying criteria capable of assisting administrative bodies and the
national courts in the implementation of treaties.
The direct applicability or direct effect of certain treaty provisions is a functionally appropriate condition for
achievement of the objectives defined by them, of integration, effectiveness, and uniform application, in light of the plurality of States
sovereigns.

3.1.2. Additional protocols, declarations, and acts of supplementation

Alongside the treaties of primary law, multiple Protocols, Declarations, and other annexes have been adopted.
the same concern issues as diverse as the role of National Parliaments, the application of the principles of
subsidiarity and proportionality, among many others.
Equally noteworthy is the broad set of Statements regarding provisions of the Treaties or Protocols attached to
Treaties. They do not necessarily have binding force, although they are relevant for the interpretation and application of
treaties and for the proper understanding of some protocols. However, that does not mean they are not legal entities;
indeed, the Vienna Convention on the Law of Treaties between States stipulates in article 31/2 that for the purposes of
interpretation of a treaty, the context includes, in addition to the text, the preamble and included annexes, any agreement related to
treaty.

3.1.3. Admission conditions and acts of membership

The primary law of the EU also includes the conditions for the accession of third States and the acts of accession of new States.
members. The rules of the accession treaties have the same legal value as other primary law instruments, but
they take on greater significance as they assign to the States rights and duties distinct from those enshrined in the Treaties, which
repeal the rules of the treaties that have a transitional nature.

3.1.4. General principles of EU law

The primary community law also includes the general principles of European law, which play a significant role.
relief in the interpretation of existing norms and in filling gaps in a legal system, even today,
quite incomplete. These principles have great practical importance as they govern in a legally binding manner the
activity of the institutions and bodies of the EU and the States, including their respective courts.
The principles designate the legal propositions that express structuring normative decisions, through which the ...
values and the essential aspirations of a legal order.
Tendentially, these principles can be grouped based on the greater generalities and abstraction of their
formulations. We can thus find general principles of law, general principles of international law, general principles
of constitutional law and specific principles of EU law.
Some of these principles can be said to play a shaping and structuring role in the legal system of
EU. Furthermore, the EU today sees itself as a community of values (human dignity, freedom, democracy,
etc.). This community of values is the foundation of a community of law based on the rule of law. The law
Community is supported by a very diverse set of fundamental principles that constitute its law.
common
a) General principles of international law - sovereign equality of states, reciprocity, territoriality, respect
through the DF's, etc.
b) Axiomatic principles of a democratic rule of law – equality, democracy, legality, etc.
c) Fundamental principles especially related to the legal order of the EU – principles of unity and autonomy of
EU law, primacy and direct effect, community loyalty or loyal cooperation, etc.

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An approach to the specific principles of EU law may also include a reference to customary law.
specifically European, characterized as a constant and uniform practice regarding which a conviction is verified
its normative relevance, as an obligation, prohibition, or permission.
Finally, we concluded that the general principles of international law, customary law, and international treaties of a nature
fundamental, even when the EU is not a party, are part of EU law as primary law.

3.2. Secondary and tertiary law

The secondary law of the EU is made up of the rules created by the bodies established by primary community law.
agreement with the respective material and formal parameters (whose validity will depend on compliance with these).
The main sources of secondary law of the EU are regulations, directives, decisions, recommendations, and
opinions (Art. 288 TFEU). The first three have a characteristic legal force, being able to be legislative acts or non-legislative acts.
legislative. It is still possible to find delegated acts and implementing acts in regulations, directives, and decisions.
they are part of secondary law that some refer to as tertiary law.
In another domain, we find acts that are not legally binding, which are recommendations and opinions.

3.2.1. The procedures for normative production

Currently, the existence of an ordinary legislative procedure (Article 294 TFEU) and special legislative procedures is foreseen.

3.2.1.1. General considerations

Legislative acts: they are legal acts approved through legislative processes – art. 289/3 TFEU.
Legislative processes can be ordinary or special, through which directives, regulations, and decisions are approved.
–article 289/1/2 TFEU.
That is to say, from a formal point of view, regulations, directives, and decisions are legislative acts.
From a material point of view, legislative acts should be those that contain standards of conduct and criteria for decision-making.
general and abstract. It is up to the treaties to define the cases in which the ordinary legislative procedure is used, alternatively, or the
special.
Generally, the analysis of the EU legislative processes took into account some unavoidable data: on one hand, the same
do not correspond to the principle of the separation of powers in its most classic configuration; on the other hand, and according to Barbosa
de Melo, any of the main political institutions of the EU regarding, in the current stage of evolution, considerable deficiencies
for an exercise of the legislative function in agreement with the postulate of political legitimacy assumed in the idea of State
Democratic Law; and, lastly, according to M. Gorjão-Henriques, the decision-making process, being quite diversified, reaches
even if it is opaque, given the intrinsic complexity of some procedures.

3.2.1.2. Ordinary legislative process

The ordinary legislative process consists of the adoption of a regulation, a directive, or a decision by the EP and the
Council, normally on the initiative of the Commission – Art. 294 TFEU.
In a very brief description of this process, it can be said that from an initiative of the Commission, one can reach,
alternatively, to an act with a corresponding content:
a) To the position of the EP;
b) The position of the Council;
c) To the amendments proposed by the EP;
d) To the project of the Conciliation Committee.

3.2.1.2.1. Commission Initiative

This process usually begins with a proposal from the Commission to the EP and the Council (art. 294/2 TFEU) -> principle of
exclusivity of the formal legislative initiative of the Commission: this principle, despite everything, is mitigated by the possibility for the
Council to request proposals from the Commission, at the initiative of European citizens to invite the Commission to present
proposals and by the political drive of the CE, which makes it materially responsible for many of the main initiatives within the
EU. In any case, this principle remains a fundamental element of safeguarding and promoting the general interest.
european.
In some cases, the initiative to subject a legislative act may belong to the member states or result from a
recommendation from the ECB or a request from the CJEU; in these cases, the intervention powers of the Commission in the process are something
reduced although not eliminated - art. 294º/15 TFEU.

3.2.1.2.2. First reading

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Once the Commission's proposal is presented to the EP and the Council, the legislative process takes on a structure
predominantly binary, centered on the interaction between the EP and the Council.
The first reading aims to obtain a position from the PE and the Council's agreement with that position. And there are two possibilities:
If an agreement exists, the act is approved with the formulation corresponding to the position of the EP;
In the absence of an agreement, the Parliament must be informed of the reasons for the disagreement of the Council and be aware of the position of the Commission.
the absence of agreement and its grounds – art. 294/3 to 6 TFEU.

3.2.1.2.3. Second reading

The second reading aims to give the EP the opportunity to consider the reasons for the Council's disagreement in the first reading, in a
a three-month deadline extendable by one month, allowing for a change in position:
If you change your position, the act will be approved, but now with the wording corresponding to the position of the Council;
If the EP rejects the position of the Council by a majority of deputies, the act will not be approved;
In a less extreme position, the EP, instead of rejecting, may decide to propose amendments to the position of the Council,
resending the text to this and to the Commission, which must give its opinion on the amendments;
If the Council accepts the amendments, there is an agreement and the act is approved with the wording corresponding to the amendments.
proposed by the PE;
However, if the Commission has given a negative opinion on the amendments, the Council must decide unanimously;
If the Council rejects the amendments, there is no agreement, and therefore a reconciliation must be attempted - art. 298/7/8/9
TFUE.

3.2.1.2.4. Reconciliation
The attempt to reconcile the positions of the EP and the Council will be carried out by a Conciliation Committee (comprises
members of the Council, and an equal number of members of the PE, with the participation of the Commission) convened by the
President of the CE.
The objective is to reach an agreement acceptable to the qualified majority of the Council and the qualified majority of the EP, within a period of 6.
weeks, extendable for 2 weeks.
If there is no agreement, the act is not approved - art. 294/10 to 12/14 TFEU.

3.2.1.2.5. Third reading

The third reading takes place when the Conciliation Committee adopts a common draft.
In this case, the EP, by majority, and the Council, by qualified majority, will have a period of 6 weeks to adopt an act.
with a formulation corresponding to the conciliation project. If they do not do so, the act will not be approved – art. 294º/13/14
TFEU.

3.2.1.2.6. Signature, publication, and entry into force

The legislative acts adopted by the ordinary procedure are signed by the presidents of the European Parliament and the Council.
Legislative acts (L I) and non-legislative acts (L II) are published in the Official Journal of the European Union and come into force on the date of
they are fixed or, in the absence of this, on the twentieth day after its publication.

3.2.1.2.7. Deviations from the basic standard

Occasionally, some deviations from the basic pattern described can be observed:
When the initiative does not come from the Commission, but from the Member States, upon recommendation of the ECB, of the CJEU;
When the ordinary legislative process is aware of complementary requirements, such as the cases of duties of
consultation with the Economic and Social Committee, etc.;
When the treaties impose certain material parameters that the norms to be adopted cannot fail to observe,
as happens, for example, with the Common European Asylum System (Article 78(2) TFEU), etc.;
When there are 'emergency brake' clauses that allow for the suspension of the ordinary legislative process and
the submission of the draft legislative act to the Council (Article 48, 82/3 and 83/3 TFEU);
When alternative routes are established for the ordinary legislative process.

3.2.1.3. Special legislative processes

In its essential features, special legislative processes have their center of gravity in a single body, which can be the EP.
or the Council. That is to say, they do not have a binary structure like that of the ordinary legislative process.
The basic structure of the special legislative process is based on the initiative of the Commission, on the consultative intervention of the EP and on
decision of the Council; this happens in most cases - Article 21(3) and Article 22 TFEU.
Approval: it can be done by the EP with the participation of the Council, or by the Council with the participation of the EP – Article 289 TFEU.

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Decision: when nothing is said, the Council decides by qualified majority; in a very significant number of cases, the
The decision of the Council requires unanimity, in order to protect the essential interests of the states - Article 21/3 TFEU.
In these cases, the resolution may depend on a prior approval from the PE or simply a consultation with the PE.
It may also be required to consult bodies such as the Economic and Social Committee, etc. There is also the possibility
from the Council, unanimously, to apply the ordinary legislative procedure to some matters subject to legislative process
special–art. 154º/2 TFEU. However, there are also situations where the decision is solely the responsibility of the EP–art. 226º and 228º/4
TFUE.
Signature, publication and entry into force: those adopted by this process are signed by the President of the institution that
adopted (Article 297(1) TFEU) and its publication and entry into force are governed by the rules applicable to legislative acts.

Chapter V: European Citizenship and Fundamental Rights and Freedoms

1. Introduction

Thanks to the case law of the CJEU and the successive treaties, culminating in the TL and the resulting versions of the TFEU, the TEU and the
CDFUE, the issue of European citizenship, of the fundamental rights and market freedoms has experienced a material convergence.
even though they did not develop at the same time.
So it is, insofar as those treaties jointly structure the entire EU law in its economic dimensions.
and non-economic. They refer, preambularly and textually, to fundamental principles, which are the strings whose
vibration gives harmony and coherence to all community law.
This guidance will reinforce its relevance with the EU's accession to the ECHR, which should occur without compromising its nature.
of the EU and its scheme of allocation of competences (art. 6/2 TEU).

European citizenship

2.1. Introduction

The idea of citizenship dates back to antiquity, highlighting its importance in the Greek polis: there, the citizen had a status
socially elevated, distinguishing themselves from foreigners, slaves, and women, being an active participant in the life of
City-State. Citizenship simultaneously conferred a social distinction, a set of rights and duties, and a feeling.
of identity and belonging.
In the following centuries, citizenship experienced more or less expansive understandings, from the granting of the status of
"citizens" to all residents of the Roman Empire, until their binding to states of the vestafalian type.
In the French Revolution, the status of citizen is opposed to that of subject, being inseparable from rights of freedom, equality and
democratic participation.
World War II and the Holocaust showed the need to transcend nationalisms and privilege the elements
unifiers of the States and their respective citizens.
European citizenship is, thus, a late concept in the process of European integration: it is absent from the Treaties of
Paris and Rome, being introduced, solely, by the Maastricht Treaty of 1992. It then became clear that all nationals of
Member states are citizens of the EU. For its part, the Amsterdam Treaty emphasized the complementary nature of
European citizenship in relation to national citizenship (art. 18 ss TFEU). The complementary and overlapping nature of
European citizenship means that it remains dependent on the laws of nationality of the member states, and that does not that
It aims to replace. There is, therefore, no "law of nationality" of European scope, defining the criteria autonomously.
acquisition, original or derived, of the loss and reacquisition of nationality.
Generally, citizenship is inseparable from nationality. In this context, it can be said that European citizenship represents
an important asset for those who possess it. It encompasses any national of a member state, being
complementary to nationality. It results in the ability to enjoy and exercise rights, as well as the obligation to fulfill duties, as established
our treaties. It defines the status of nationals of the member states.
The CJEU predicted that European citizenship is destined to be the fundamental status of nationals of the Member States
(threat to national sovereignty?)

2.2. European citizenship rights

European citizenship and its respective rights are enshrined in Articles 18 to 25 of the TFEU (Part II) and Articles 39 and 46 of the
CDFUE (autonomous part).

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Some rights are exclusive to European citizens (right to vote), others are rights of all residents.
or based in the EU (right of access to documents) and others are still rights of all people who for any reason
contact the EU services (right to good administration).
In our treaties, European citizenship is strongly linked to the prohibition of discrimination based on nationality and
any other criterion.
In accordance with Article 20(2) TFEU, the rights of European citizenship are exercised under the conditions and within the limits defined by
treaties and the measures adopted for their implementation.

2.2.1. Prohibition of discrimination

In the context of the application of treaties, and without prejudice to their special provisions (exceptions), all discrimination is prohibited.
by virtue of nationality – Article 18(1) TFEU.
Discrimination consists of treating comparable situations differently, or treating different situations equally.
the principle encompasses not only overt discriminations but also the more subtle ones, even if based on other criteria,
that lead to the same result. However, it does not exclude the possibility of proportional differentiation between nationals and
citizens of other member states.
Article 18(2) TFEU establishes that the Parliament and the Council, through the ordinary legislative procedure, can adopt rules.
aimed at prohibiting this discrimination. But the prohibition of discrimination today goes much further than the prohibition of
nationality. According to Article 19 TFEU, the objective of this principle is to combat all discrimination based on
any factor, anticipating the possibility of measures being approved in that area, by unanimous decision of the Council
deliberating according to the special legislative process. However, in practice, they are not always easy to apply and
interpret and, perhaps because of this difficulty, unanimity is required in this matter.

2.2.2. Free movement and residence

A fundamental right of European citizenship consists of the free movement and residence in the territory of the member states.
Articles 20(2)(a), 21 TFEU and 45 CFR. This includes the freedom of movement and residence throughout the EU, including the
right to apply for a job, encompassing public service, except for sensitive positions.
National legislation that disadvantages certain community nationals simply for having exercised the
your freedom to move and stay in another member state constitutes a restriction on the freedoms recognized by art.
Article 20(2)(a) TFEU to any EU citizen. Nonetheless, Article 21 TFEU enshrines a kind of flexibility clause, or of
implicit powers: he acknowledges that measures to promote this right may be adopted by the EP and the Council even
without express foundation in treaties, through ordinary legislative process or even through legislative process
especially, unanimously, when social security and social protection measures are at stake.

2.2.2.1. Free movement

The directive on freedom of movement regulates the entry and exit from the territory of EU countries, embracing the principle of
freedom of movement and residence for European citizens and their family members. It proceeds to clarify and
simplification of the formalities of free movement and residence. In this sense, it enshrines a solution of freedom of
circulation and residence for up to 3 months without any formalities, sufficient with holding an identity document or
valid passport.
Freedom of movement is exercised in accordance with the Schengen system (established through the Amsterdam Treaty), which
it has implications in various areas: for example, regarding the recognition of vehicle driving licenses
automobiles - the principle of mutual recognition of driving licenses has been established.

Temporary residence
According to the same directive, residence for more than 3 months is subject to formalities, among other things, to prevent the
overload of the social security system. Thus, the need for registration for residence for more than 3
months, as well as, the ownership of a residence card for non-national family members of the member states for
residence for more than 3 months. Those who are enrolled in a public or private educational institution and intend
to remain from three months to 5 years, must have extensive health insurance coverage in the host country and
sufficient financial resources in order to prevent becoming a burden on the social security system of the mentioned country.
The directive also aims to increase the protection of non-national family members in the event of the death of the European citizen.
divorce, annulment of marriage or termination of partnership.
The directive enshrines the principle of financial solidarity of social security in situations of need, taking into account the
degree of integration of the European citizen and their family members. The protection of workers is also taken into account.
salaried and non-salaried and unemployed people looking for jobs.

2.2.2.3. Permanent residence

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According to the directive, European citizens who reside for more than 5 years in a member state acquire a legal right to
permanent residency, unconditional.

2.2.2.4. Citizens of third countries and the freedom of movement

2.2.2.4.1. Entry and stay in the territory of the EU
The rules on the freedom of movement within the EU for citizens of third states largely depend on the policies.
developed in areas of border control, asylum, and emigration (Articles 77 to 80 TFEU).
Entry, stay, and movement within the territory of the EU is subject to the Schengen system: this includes common rules for
temporary stay (Schengen Visa), common rules for external border control (Frontex) and regulates the freedom of
circulation for holders of temporary residence permit.

2.2.2.4.2. Citizens of third countries who are family members of EU citizens

Of great practical interest is the protection of citizens from third countries who are relatives of EU citizens.
The right of residence set out in Article 7(1) of that directive covers the family members of a citizen of the Union
nationals of a third state when they accompany or are reunited with the EU citizen in the host member state.
The rules applicable to European citizens and their family members apply to them, particularly regarding the exercise of a
activity or enrollment in an educational institution.
The directive protects family members, regardless of their nationality, in the event of the departure of the EU citizen family member.
hosting member state, death or divorce.

2.2.3. Right to vote

Inherent to European citizenship are the rights of active and passive suffrage in municipal elections and for the European Parliament. These rights
they materialize the democratic principle that positively shapes the EU and the member states (art. 20/2/b) and 22 TFEU; art. 39
and 40º CDFUE)

2.2.3.1. Elections for the EP

From the statute of European citizen arises the right to vote and to be a candidate in the elections for the EP in the member state of
residence that is not of your nationality, under the same conditions as that of the national of that state – art. 39 CDFUE -> principle
democratic and the principle of non-discrimination of European citizens.
Regarding the elections for the EP, it is expected that it will establish a project establishing a uniform process of
common principles for election by direct universal suffrage (Article 223 TFEU). Currently, the directive is in force.
39/109/EC.
Naturally, the exercise of the right to vote for the EP always implies a prohibition of multiple candidacies and voting.
multiple, according to the principle of elective democracy (art. 4 of the Directive). In this sense, articles 14-A and 14-B of the Law of
Elections for the PE foresee criminal sanctions and even ineligibility for those who run simultaneously for the elections for the
EP in Portugal and in another member state and for those who vote simultaneously in the elections for the EP in Portugal and another
member state.
This right is provided for, albeit incorrectly, in Article 15 of the Constitution of the Republic. The fact is that the right to European citizenship is
established and regulated by the primary and secondary law of the EU, therefore, its recognition is not an option for
national legislator, but rather an obligation. Furthermore, this right, for the same reasons, cannot be placed under reservation
of reciprocity. Thus, if a state does not grant this right to Portuguese citizens, legal action may be initiated.
non-compliance with the terms of Article 258 TFEU.

2.2.3.2. Municipal elections

The European citizen statute entails the right to vote and to be a candidate in the municipal elections of the member state of
residence, under the same conditions as the nationals of that state (art. 40º CDFUE). Directive 94/80/EC aims to implement the
principle of national treatment, continuing with the regulation of the exercise of active and passive voting rights
equalizing the eligibility conditions of residents to those of nationals and, for some purposes, the territory of the EU to the territory of
member state of residence.
The national legislator is authorized to establish ineligibilities and restrictions on the right to passive suffrage and to establish
fundamental rules that govern the exercise of the right to active suffrage and eligibility. Finally, some are established
derogations to this right in cases where the number of non-national residents in the member state of residence, with
electoral capacity should exceed 20% of the national population.
This right of citizenship is provided for in Article 15 of the CRP, but also in an unwanted way: the term 'foreigner'
used only improperly can refer to a EU citizen without Portuguese nationality. Furthermore, regarding a
EU citizenship rights are governed by primary and secondary EU law, binding all states, under penalty of
non-compliance. For the same reasons, this right cannot be subject to a reservation of reciprocity.

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If a member state does not grant this right to Portuguese citizens, the response is not a reciprocal retaliation, but rather
an action for failure to comply under Article 258 TFEU.

2.2.4. Diplomatic and consular protection

From European citizenship arises a fundamental right to diplomatic protection outside the EU by any member state, which
acquires special relevance in the case of urgent and humanitarian protection - Article 20(2)(c) and Article 23 TFEU. This right imposes on the
EU member states have the duty to take the necessary internal and international measures for its implementation. It is accepted that this
It involves the adoption of directives that establish the necessary coordination and cooperation measures to guarantee this right.

2.2.5. Citizens' Initiative

The TL established the possibility of a legislative initiative by EU citizens (art. 11/4 TUE). It is required that at least
1 million nationals from a considerable number of member states may invite the Commission to formulate a
appropriate proposal in matters, of their attributions, regarding which these citizens consider a legal act necessary
EU in the application of treaties. This right of initiative aims to strengthen the democratic participation of EU citizens in their
component of semi-direct democracy, correcting the traditional democratic deficit.
However, it is only about making an invitation for a proposal to be made. It is not about a referendum and much less about a
binding referendum. It is not even a matter of a right to popular initiative per se, as it is up to the
The Commission will decide whether to draft a proposal or not. In other words, the Commission continues to hold an exclusive right to
legislative initiative.

2.2.6. Right to good administration

Another right of European citizenship is the right to good administration (art. 41 CDFUE). It aims to create a
well-directed administration, with capacity for provision, functionally organized and appropriate, structured based on the DF
and on the structuring principles of EU law, such as democracy and the rule of law.
It is a right of all individuals, both natural and legal persons, who for any reason enter into a relationship with the services.
EU officials. The same aims to materialize, in the relationship between the EU administration and individuals, the principles of
equality, justice, efficiency, and procedural fairness.
This right refers to a broad set of substantive and procedural administrative guarantees recognized, whether by the
constitutional jurisprudence of the member states, whether by the jurisprudence of the ECHR.

2.2.7. Right to access documents

The principle of transparency guides the EU's actions in all areas and with multiple implications (art. 11 TFEU and 15)
TFEU.
Article 298 TFEU establishes the principles of open administration, effectiveness, and transparency as guiding principles for the actions of
institutions, bodies and organisms of the EU.
In this context, covered by the right of European citizenship is the right to access the documents of the institutions, bodies and
EU bodies (Art. 42 TFEU). This is a right not only of citizens but also of any individual.
or a collective resident or based in the EU.
The restrictions on this right are based on the protection of public or private interest and are defined by the EP and the Council.
regulation, through ordinary legislative process.

2.2.8. Right to petition and complaint

European citizenship includes the right to petition before the institutions and bodies of the EU, with particular emphasis on the Ombudsman.
European Justice (PJE) and the PE–art. 20º/2/d) TFEU. Strictly speaking, this is a right that transcends citizenship.
Petitions can be submitted by any citizen or individual or legal entity residing or established statutorily.
in a member state.
Petitions to the PJE must respect cases of mismanagement in the actions of EU institutions, bodies, or organizations, with
exception of the bodies of the judiciary in the exercise of jurisdictional functions.
Regarding the submission of petitions addressed to the European Parliament, they may be presented individually or collectively and may concern
any issue that falls within the areas of activity of the Community and directly concerns it.

2.3. Impact of European citizenship on national citizenship

European citizenship has a complementary nature to national citizenship. However, it ends up having a strong impact.
About this. It requires an increasing interdependence of the nationality policies of the member states.

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This happens insofar as the changes made to the nationality law of a member state end up being
impact on European citizenship and the 27 Member States. This results in a clear need to harmonize legislation.
national in this domain.

3. The protection of fundamental rights

3.1. Initial unpredictability of fundamental rights

Originally, written community law did not include the subject of the protection of DFqua tale; it aimed to be more
like a 'Bill of Powers' rather than a 'Bill of Rights'. In fact, it was understood that this was not the purpose of the founding treaties of the
communities, besides the fact that this matter related to another regional international organization, the Council of Europe,
in addition to having long integrated the Constitutions of the Member States.
The economic scope of the treaties was not seen as a danger capable of conflicting with the ECHR. In any case, the
the initial objective of creating a single market resulted in the establishment of certain rights with particular emphasis on
economic activity. Likewise, some economic and social rights were anticipated here and there.
The EU, since its community phase, has been developing an extremely complex set of policies, in which it is evident
a materially guiding intent of the rules of the old EU treaty, to the detriment of a conception
merely formal and procedural of original community law.
In other words, the EU is now seeking to harmonize a favorable attitude towards the flourishing of a market economy, such as
economic development condition, with concerns for political, social, economic, cultural development
environmental. This fact led to the gradual awareness of the need to give greater centrality to the DF within the EU.

3.2. Fundamentalization of rights in the Community

The absence of a catalog of fundamental rights in the founding Treaties of the communities soon proved to be insufficient.
satisfactory. The problem was exacerbated by the fact that the eventual generalization of national judicial control of conformity
of derived community law with the national constitutional catalogs of fundamental rights was by many, including the
TJCE, considered undesirable and to be avoided at all costs, as it could affect the achievement of integration goals. Besides
thus, the widening of the action of community bodies to sensitive areas of the DF pointed, in the same way, to the
need to create an effective protection system for DF at the community level.
Thus, over several decades, the development of the protection of DF in communities and in the EU has been enriched in
various plans:
Firstly, the DF was recognized, by the judiciary, as having a nature of general principles of community law.
(solution that lasted for 3 decades);
Secondly, the economic rights contained in the Treaty of Rome began to be interpreted by reference.
for the traditions of the Federal District of the different Member States and embracing the influence of legal instruments
conventional international and by the incorporation of the ECHR; the rights enshrined in the founding treaties were
interpreted in a broader sense than strictly economic; thus, the TJCE stated that the freedoms
Economic ones, not being absolute, must be seen in reference to their social function and the respect due to rights.
humans
In third place, it should be noted the enhancement of the CEDH and its interpretation and application carried out by
TEDH; this convention is linked to European law in different ways: on one hand, it is important in the legal system.
of EU member states, as a classic instrument of conventional international law, furthermore, the
CEDH has supranational validity, extending its normative power, through incorporation, to the EU itself, thereby integrating the
general principles of European law.
In fact, for over three decades, the TJCE has been asserting the obligation of member states to conform to their
action in accordance with human rights, giving special emphasis to the ECHR, however, this emphasis ended up being
expressly recognized by the EU treaty, despite the Amsterdam Treaty pointing to the structuring of
an autonomous system for the protection of fundamental rights.

3.2.1. Formal consecration: the EU Charter of Fundamental Rights

However important the previous evolution may have been, the awareness and fundamentalization of the need for existence
from a catalog of Fundamental Rights that conformed the actions of the European community did not prevent that
it was considered necessary to introduce them into the original law of the EU (which did not foresee the existence of these rights), namely
a future constitution, of a catalog of DF endowed with normative primacy, legal force, and direct applicability. Such
it meant an evolution towards a broad supranational constitutional system of protection of rights, freedoms, and guarantees and
of the economic, social and cultural rights of European citizens. This catalog should constitute a reinforcement of citizenship
European, the transparency of European institutions and their proximity to individuals.

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This was the reason for the adoption of the Charter of Fundamental Rights within the EU (CFR EU).

3.2.2. Preparation and approval

In Tampere, Finland, it was decided to establish a Convention for the drafting of a Charter of DF, chaired by
by Roman Herzog.
This Convention had representatives from community bodies and member states. In a relatively short period, it was
A first draft of the text submitted for approval to the CE of Biarritz.
The final text of the CDFUE would be approved at the Nice European Council in 2000.

3.2.3. Normative content

The CDFUE deepens the Western tradition of consecration and protection of human rights, emphasizing the dimensions of
dignity, freedom, equality, solidarity, citizenship, and procedural guarantees.
As a Union Charter, it binds all supranational and intergovernmental activities concerning everyone.
the domains traditionally covered by the three pillars. The main recipients of the CDFUE are the institutions, bodies and
EU bodies. The binding nature for the States is not excluded in cases where their activity extends to areas
community members or carry out community acts. The horizontal effectiveness of the CDFUE in relations between EU citizens is not anticipated.
The CDFUE aims for a reasonable balance between the common cultural and normative heritage of European peoples and diversity.
that can be found between them in some subjects. Thus, the strategy followed consisted of deepening some common points,
namely ensuring a similar protection novel for the DFs already enshrined in the ECHR, without renouncing a protection
higher. Member states are thus doubly responsible, before the ECHR and the CDFUE. In this sense, it appears
particularly opportune the intensification of transjudicial cooperation between the CJEU and the ECHR, as it is essential for the unity and
Coherence in this matter will contribute to the EU's adherence to the ECHR determined by the TL. In the most sensitive points, the CDFUE referred to
pure and simply for the decision of the States, in terms analogous to the federal doctrine of states' rights in the United States.
The preamble of the CDFUE places the value of solidarity on the same level as human dignity, freedom, and equality.
as universal and indivisible values.

3.2.3.1. Dignity
The CDFUE refers to the fundamental principle of the dignity of the human being, as an indivisible and universal value, which serves as
pillar in the construction of the identity of the EU.
It applies to all human life and to all individuals, being the foundation of the rights to freedom, equality,
solidarity and justice, in their subjective and objective dimensions, negative and positive. The principle of the dignity of being
the human is realized through the consecration of certain rights: the right to life, integrity of the human being, prohibition of torture,
of cruel, inhuman or degrading treatment or punishment, the prohibition of slavery or forced labor.
Furthermore, the dignity of the human person constitutes an interpretative parameter for the other principles, rights and
fundamental freedoms, which can be used to broaden the scope of protection for certain rights and to justify restrictions
from others.

3.2.3.2. Freedoms
The dignity of the human person is a principle of autonomy, which implies that freedom is the rule and restriction is the exception.
exception, here valuing the principle in dubio pro libertate.
Title II of the CDFUE enshrines the right to liberty and security, respect for private and family life, and the protection of data.
personal, etc. (articles 6 to 19 of the CDFUE).
Some of these have a high personal burden, others are of great importance to the public sphere, ensuring the
autonomy of public opinion formation and political will. Others are still of great importance for the sphere
economic, safeguarding material and immaterial property and the right to private economic initiative.
Although the CDFUE does not expressly state it, it should be understood that the rights and freedoms enshrined therein apply to individuals.
collectives, to the extent that this is compatible with their nature.

3.2.3.3. Equality
The dignity of the human person is an egalitarian principle. In title III, we find the principle of equality before the law (art.
20º) followed by the special rights of equality in which it unfolds: right to non-discrimination (art. 21º), principle of
cultural, religious and linguistic diversity (art. 22), equality between men and women (art. 23), the rights of children (art.
24º) and of elderly people (art. 25º) and the integration of people with disabilities (art. 26º).
The holders of these rights are all people, whether they are EU citizens or not, including legal entities.
The principle of equality has a material-factual dimension, and is not satisfied with mere legal-formal equality.

3.2.3.4. Solidarity

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 Community Law I

The dignity of the human person has a social component and is the foundation of solidarity. From the dignity of the human person it is deduced-
it is a right to a minimum of dignified existence. In title IV of the CDFUR, related to the value of solidarity, there is a
catalog of social rights (art. 27 to 38).
Like their peers in constitutional and international law, they are characterized by a more
accentuated positive and performance component. Its presence in this systematic framework aims to strengthen the
interdependence between positive and negative dimensions of fundamental rights.

3.2.3.5. Justice
The dignity of the human person includes a demand for justice. Title VI of the CDFUE, concerning justice, contains some
fundamental dimensions of the classic rights deduce fair trial, components of the right to effective judicial protection and
the inherent substantive and procedural guarantees. This right is instrumental in relation to the protection of all fundamental rights. In them
it includes the right to action and to an impartial tribunal (art. 47), the presumption of innocence and rights of defense (art. 48) and the
principle of legality and proportionality of crimes and penalties (art. 49).

3.2.4. Legal force, interpretation and application

For several years, the CDFUE existed as a declaration of rights on the margins of the treaties establishing the Community,
not integrating the respective original right. Some authors even considered it absurd to talk about legal-formal consecration.
of a catalog of rights and, for the greater reason, of a European constitutionalization of fundamental rights. In any case, it is dressed in
of a very important nature: according to Article 51/1, its provisions are directed at the institutions, bodies, and agencies of the EU,
respecting the principle of subsidiarity; the member states are bound in the second instance, when they apply the law of
EU; furthermore, the application of the DF in horizontal relations is not relevant for the CDFEU and European jurisdiction.
However, it subsists as a national constitutional reality and refers, among us, to the catalog of DF of the CRP and to the
respective art. 18/2.
Even before the entry into force of the EU Charter of Fundamental Rights, the CJEU did not prevent itself from referring to it, if not to substantiate its decisions in

DF matters, in order to complement and reinforce the jurisprudential rhetoric built upon traditions.
constitutional provisions of the member states of the ECHR. Thus, the validity of the CDFUE constituted a strong impetus for the
jurisprudence of the CJEU on matters of citizenship of the EU, European citizenship, and fundamental freedoms of the internal market.
The CDFUE contributed to politically legitimizing the EU and strengthening the protection of fundamental rights within it, in coordination with the
national legal systems and the judicial protection mechanism of the ECHR.

4. The EU and the ECHR

An important development in the protection of DF within the EU concerns the accession to the ECHR provided by the TL.
The rule, within the jurisdiction of the EU, consists of the existence of a very restricted active procedural legitimacy on the part of the
individuals, to respond to violations of their rights and interests by acts of the EU before the CJEU. Usually, the
They address the national instances to challenge the acts of execution of the legislative and administrative measures of the EU.
that affect their legal sphere, and only when all ordinary internal remedies have been exhausted can individuals
to address the ECHR and sue your own state for violation of the rights enshrined in the ECHR. This is understood
solution taking into account the necessary respect for state sovereignty, the subsidiarity of court intervention
international and the protection of their own functionality.
Equally important and similarly to what happens in the relations between the ECtHR and the States, it is to prevent the CJEU from being able to
intervene in the assessment of the conformity of EU acts with the ECHR without the CJEU having had the opportunity to do so.
pronounce on the subject. The system of jurisdictional competencies within the EU would be seriously threatened if the oversight
external oversight would only take place after internal auditing, a claim that is entirely consistent with the idea of
subsidiarity and complementarity that should govern the intervention of national judicial instances.

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