Advanced EU law

Prof: YULIYA KASPIAROVICH

Thursday October 24, 2024
First stage of the EU:
- Direct effect:
o Direct effect of treaties/international law to persons is rare in
international law. Exceptions are in human rights, international criminal
law and trade and investment law (individual companies/investors can
go against states).
o Supremacy: EU law takes precedence over conflicting national law.
o Implied Powers: The EC can act beyond its explicit competencies to
fulfill its objectives.

Monday 28
- Review comments on the Van Hender Loss case of EU Basic.
- German Constitutional Court has reserved the right to review rulings from the
EU Court of Justice if its rulings go beyond their competence (Weiss case –
ECB).
- Direct effect and Supremacy go hand in hand.
- Costa vs. Enel case: Court said that since there is direct effect, EU law has
supremacy.
- Supremacy: In the field of competence of the EU, EU law is always superior to
the national laws.

Tuesday 29
- EU = 27 countries
o Free trade area
o Customs Union = single tariffs for foreign states.
- EFTA = Currently Iceland, Liechtenstein, Norway and Switzerland. It emerged
when the UK was not admitted to the EU
- European Economic Area: EU + Iceland, Liechtenstein and Norway entered
into a common market. EFTA Court has jurisdiction in controversies between
EU and EFTA countries with respect to the EEA but has to apply the case law
of the CJEU.
- Mix Agreements = Agreements signed by the EU -as a subject of international
law-, its member countries, individually, and a third party.
- Monetary Union level: EU is almost here.

November, Monday 4
Free movement of goods in the EU
Landmark cases, Dassonville and Cassis de Dijon, which were instrumental in
shaping EU law concerning the free movement of goods within the internal market.
Dassonville, Case 8/74 (1974)
Background: This case involved Belgian importers of Scotch whisky who were
charged for not having a certificate of origin as required by Belgian law. They
argued that this requirement was an unjustifiable restriction on trade within the EU.
Ruling: The Court of Justice of the European Union (CJEU) ruled that any national
measure that hinders trade between Member States, directly or indirectly, actually
or potentially, is a "measure having equivalent effect" to quantitative restrictions
(MEQRs) and is therefore prohibited by Article 34 of the Treaty on the Functioning of
the European Union (TFEU).
Significance: The Dassonville ruling introduced the "Dassonville formula," which set
a broad definition of what constitutes a restriction on trade. This laid the foundation
for the EU’s prohibition of measures that could impede the free movement of
goods.
Cassis de Dijon, Case 120/78 (1979)
Background: This case arose when Germany refused to allow the importation of
Cassis de Dijon, a French fruit liqueur, due to its alcohol content being below the
minimum level required by German law. The German rule effectively restricted the
importation of the liqueur from France.
Ruling: The CJEU held that, in the absence of EU-wide harmonized laws, Member
States could not restrict imports simply because of differences in domestic
standards unless the restriction was necessary to protect fundamental societal
interests, such as public health or consumer protection. This established the "rule of
reason" principle.
Significance: The Cassis de Dijon ruling introduced the concept of "mutual
recognition," which asserts that goods legally sold in one Member State should
generally be allowed in all Member States. It also established that certain
"mandatory requirements" could justify restrictions, but only if proportionate.
Together, Dassonville and Cassis de Dijon have significantly impacted the EU’s
single market by clarifying and expanding the legal basis for the free movement of
goods.

TAX PROVISIONS in the TFEU

Article 110
No Member State shall impose, directly or indirectly, on the products of other
Member States any internal taxation of any kind in excess of that imposed directly
or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other Member
States any internal taxation of such a nature as to afford indirect protection to other
products.
Direct effect when: its clear and it has a prohibition:
- Article 34
Quantitative restrictions on imports and all measures having equivalent
effect shall be prohibited between Member States.

- Article 35
Quantitative restrictions on exports, and all measures having equivalent
effect, shall be prohibited between Member States.

- Article 36
The provisions of Articles 34 and 35 shall not preclude prohibitions or
restrictions on imports, exports or goods in transit justified on grounds of
public morality, public policy or public security; the protection of health and
life of humans, animals or plants; the protection of national treasures
possessing artistic, historic or archaeological value; or the protection of
industrial and commercial property. Such prohibitions or restrictions shall not,
however, constitute a means of arbitrary discrimination or a disguised
restriction on trade between Member States.

Tuesday 5, 2024
Continuation… EU internal markets and free movement of goods and people.
- One of the aims of the EU is to eliminate internal barriers for the movement
of goods and people.
- 3 types of measures may go against this an are dealt with in the treaties:
o Customs (art. 30 TFEU).
o Taxes (art. 170 TFEU).
o Quantitative restrictions and similar (Art. 34 and 35 TFEU).
- Analyzing if we are before a violation of Arts. 34 and 35
o Are we before a law that sets a quantity restriction, or is it a similar
effect?
o Is it justified under article 36?
o Proportionality test
- In Cassis de Dijon the EU Court accepted that consumer protection was a
justification under Art. 36. In the Italian trailers case, the same happened for
road safety. Other justifications include human rights.

Thursday 07
Lecture by Joseph H.H. Weiler
- EU treaties are superior to the member states’ constitutions. Therefore, EU
Court decisions are of a constitutional level, which gives it a lot of power.
- EU law is not supreme over all national law, just over national law within the
sphere of competencies of the EU.
- The Principle of Supremacy is being questioned by some member states,
since the EU treaties are now regulating things beyond economy.
 - Polish constitutional court has rejected supremacy. Other constitutional courts
are also questioning it.
- EU Court decisions on the rule of law in Poland:
o EU Court pronouncing on how the judiciary in Poland was organized
o The EU Court founded their ruling on the fact that its organization was
a EU matter since such judges would have to apply EU law.
o Poland set that a judge could exceed their retirement age, provided
that it was approved by the Ministry of Justice.
o EU Court deemed this broke rule of law, since it conflicted with the
independence of judgment = guarantee against removal from office.
- Art. 255 committee on appointment of judges:
o Appointment of judges is for 6 months, removable.
- Judges in the EU Court have manifested fears of not being renewed if they
rule against their country or are not able to file a dissenting ruling.
- Former German government is thus proposing to go for a 12-year term
nonrenewable.
- Judges are appointed by common accord of the member states.
- Prof. Weiler thinks that the government can agree by common accord to issue
a statement that judges will be automatically renewed if he/she asks for it
and that at the end of the renewal there will be no more renewal. This would
also apply to seating judges. This to avoid going through the process to
modify the treaties.
- Case of appointment of Judge Gonçalo Manoel de Vilhena de Almeida Ribeiro:
o The 255 committee invented a 20-year experience requirement to sit
in the EU Court. There is no such requirement.
o Portugal withdraws the candidate.
o However, the president of the 255 committee will appear before the
governments to sustain their decision.
- The function of the 255 committee is advisory. However, in practice, the
governments follow their advice.
- There is a bottom-line problem: there is no clarity on how does each member
state chooses their appointee for the EU Court.
- EU Courts judges have to be beyond any questioning.

Monday 11
Free movement of persons in the EU
Rottmann Case C135/08
Zambrano Case C34/09
Directive 2004/38/EC – Citizens Rights Directive.
EU Law – nationality is based on member state law. A national of the member state
is also a citizen of the union. (what is being a citizen of the union?)
Rottmann case:
 - Austrian national, who also acquired the German nationality. When getting
the German nationality, he lost Austrian one. He didn’t declare he had a
criminal procedure back in Austria, so Germany wanted to revoke the German
one thus leaving him without nationality.
- Questions for the court:
o Will he lose EU citizenship.
o Will Austria had to give nationality back?
- EU court ruled that Germany had to determinate if loosing the nationality was
a due sanction.
- EU court ruled that it was up to Austria to give the nationality back. They did
say that if the German procedure was not completed, then Austrian
nationality was not lost.
Zambrano
- Zambrano was an asylum seeker in Belgium. He had his asylum rejected but
started working. He had kids in Belgium, with Belgian citizenship.
- The Zambrano judgement established that a third country national parent
who is the primary carer of an EEA minor child could not be refused a right to
reside and work in the host member state if the refusal of a right to reside
would force the EEA child to leave the country, thus depriving them of their
European citizenship rights.
- Because of the ruling and subsequent amendments to EEA regulations the
Zambrano case now acts as an immigration route that states that EU member
states can grant a right of residence the primary carer of an EU national child
if refusing this would mean the child’s care would be jeopardized.

- With these cases, the EU moved beyond economy.

- In both cases, EU member states opposed the ruling, since they argued that
nationality was a matter of the competence of the member states.
- Substance of rights doctrine : The EU court didn’t deny the competence of the
member states but concluded that if national laws contravene the exercise of EU
citizenship rights, then it would be able to rule.
- Free movement in the EU:
o Choose the place where you want to develop.
o Free travel.
o Nondiscrimination.
o Freedom to move to work or study in other EU countries.
o This extends to the direct family of the citizen, and even parents if they
are economically dependent.
- This should not be confused with the Schengen Agreements, which eliminated
border controls.
- In the Rottmann case, the Court considered that if he lost both nationalities, he
would:
o Lose EU citizenship.
o Be stateless.
To avoid this, in the end, Germany and Austria agreed that German citizenship
would be formally revoked, and Austria would give it back.
- Conclusion: Acquiring nationality is an issue
- How to obtain nationality:
o Blood
o Birth
o Residence
o Marriage
o Investment
- Article 20 TFEU
Citizenship of the Union shall be additional to and not replace national
citizenship.
The right to petition the European Parliament, to apply to the European
Ombudsman, and to address the institutions and advisory bodies of the
Union in any of the Treaty languages and to obtain a reply in the same
language.
- EU Court has ruled that the citizenship of the EU is a fundamental condition of
the nationals of the EU.
- Additional rights as an EU citizen:
o Freedom of movement.
o Protection against discrimination in the EU.
o Right to vote for EU organs (EU parliament) and be elected.
o Diplomatinc/counsular protection in foreign countries where your
member state has no representation.
o All other rights in the treaties.

Tuesday 12
Under EU law (COUNCIL DIRECTIVE 2003/86/EC), EU citizens have the right to
request a residence permit if they are residing in another EU country. Said country
must issue the permit within 9 months of the request.
Students are also considered under the Freedom of Movement of Workers concept.
Freedom of establishment: Freedom to establish businesses in any EU country.
However, controls may be enacted in the case of strategic industries.
Freedom for providing services: Companies can provide services in other EU
states without need to establish in such country for +/- 1 year.

Friday 15
European Commission v. Malta
- Case on options given by Malta for obtaining nationality or residence permit.
- EU Commission had concerns on money laundry and security. Who would be
applying for it?
- The Commission maintains that citizenship should reflect a genuine
connection between the individual and the Member State, not be available for
purchase.
- Malta defends its program by emphasizing its sovereign right to determine
nationality laws. The Maltese government argues that the scheme includes
 due diligence procedures and investment requirements that contribute to the
country's economic and social development.
- Against Malta:
o Abuse of right
o The principle of mutual trust would be undermined. The new citizens
would be EU citizens, and able to participle in the other members
states.
- In defense of Malta:
o A matter of national competence. TEFU – citizenship is an exclusive
competence of the member state.
o The regulation has limits, even for the number of citizens that can be
naturalized.
o There cannot be a standard of EU citizen. Each country can keep their
identity.
o This is beyond the competence of EU courts and law.
- Naturalization is a very sensitive political matter in Europe. It’s constantly
being debated, especially in election periods.
- Advocated general: Defended Malta. Nor mutual trust nor sincere cooperation
is affected.

Monday, November 18 – Session 9

Constitutional counter-revolution
Principle of Supremacy: In matters of exclusive competence or in shared
competence where the EU has already exercised them -and have thus become
exclusive of the EU-, European Union law takes precedence over conflicting
laws of Member States, including constitutional provisions. This is not in the
treaties, but in the European Court of Justice case law. Main reference cases: Van
Gend en Loos and Costa v. Enel Cases. It is based on the acceptance of the Member
States.
Principle of Direct Effect: EU law can be relied upon by individuals in national courts
without requiring further implementation by Member States. This ensures that EU
law is effective and uniformly applied across all Member States. Such law must
comply with the following requirements set out by the Court of Justice of the EU in
Case 26/62, Van Gend en Loos:
1. Clarity and Precision:
o The provision must be clear, precise, and unambiguous.

2. Unconditional:
o The provision must not depend on further actions by the EU or Member
States.
3. Judicially Enforceable:
 o It must be possible for a court to enforce the provision without
additional legislative or administrative measures.
Italy cases:
The Case C-105/14, Taricco and Others (commonly referred to as Taricco I), is a
landmark judgment by the Court of Justice of the European Union (CJEU) that
addresses the relationship between EU law, national criminal law, and fundamental
rights. The case revolves around the enforcement of EU obligations in cases of
serious VAT fraud and the tension between EU law and constitutional principles of
Member States.

Background of the Case

1. Facts:
o The case involved individuals accused of serious VAT fraud in Italy.
Under Italian law, statutes of limitations applied to criminal cases,
including those involving VAT fraud.
o Italian statutes of limitations often expired before a judgment could be
delivered, particularly for complex cases like VAT fraud. This hindered
Italy's ability to meet its EU obligations to combat fraud affecting the
EU’s financial interests.
2. Legal Issue:
o The Italian courts asked the CJEU whether the national rules on
statutes of limitations, which potentially allowed VAT fraud to go
unpunished, were compatible with EU law, specifically Article 325
TFEU. This article requires Member States to combat fraud and other
illegal activities affecting the EU's financial interests.

CJEU's Judgment (Taricco I)

The CJEU ruled that:
1. Obligation Under Article 325 TFEU:
o Member States are required to take effective measures to protect the
EU’s financial interests. This includes ensuring that serious VAT fraud is
effectively prosecuted.
2. Italian Statutes of Limitations:
o The CJEU found that the Italian statutes of limitations could undermine
the EU’s financial interests if they systematically prevented the
prosecution of serious VAT fraud.
 o Such rules were deemed incompatible with Article 325 TFEU if they:

 Prevented effective and dissuasive penalties.

 Created a higher threshold for protecting EU financial interests
than national financial interests.
3. National Courts' Role:
o The CJEU instructed Italian courts to disapply national statutes of
limitations where they conflicted with EU obligations under Article 325
TFEU, even if those rules were part of national criminal law.
4. No New Criminal Offenses:
o The judgment emphasized that disapplying statutes of limitations does
not amount to retroactively introducing new criminal offenses, which
would violate the principle of legality.

Impact and Controversies

The Taricco I judgment sparked significant controversy in Italy because:
1. Conflict with Constitutional Principles:
o The Italian Constitution strongly protects the principle of legality in
criminal matters, which includes the requirement that statutes of
limitations be clearly defined by law and not applied retroactively.
2. National Resistance:
o Italian courts, including the Constitutional Court, questioned whether
the CJEU’s ruling adequately respected Italy’s constitutional identity
and fundamental rights.
3. Referral to the CJEU (Taricco II):
o The Italian Constitutional Court referred the case back to the CJEU (C-
42/17, Taricco II), seeking clarification on how to reconcile the
obligations under Article 325 TFEU with fundamental principles of
Italian constitutional law.

Significance of Taricco I
1. EU Law Supremacy:
o The judgment reaffirmed the supremacy of EU law, even in sensitive
areas like criminal law.
2. Protection of EU Financial Interests:
 o It highlighted the importance of effectively combating VAT fraud, which
directly affects the EU’s financial resources.
3. Tension Between EU and National Law:
o The case exposed potential limits to the principle of EU law primacy
when fundamental constitutional principles of Member States are at
stake.
The Taricco II case (C-42/17, M.A.S. and M.B.), also known as the follow-up to
Taricco I (C-105/14), revisited the contentious issues surrounding the relationship
between EU law, national criminal law, and constitutional principles. In Taricco II, the
Court of Justice of the European Union (CJEU) sought to address the tension
between the enforcement of EU obligations and the protection of national
constitutional identity.

Background and Context

1. Origin in Taricco I:
o In Taricco I, the CJEU held that Italian statutes of limitations, which
systematically prevented the prosecution of VAT fraud, violated Article
325 TFEU.
o The CJEU instructed Italian courts to disapply those national rules if
they hindered the effective protection of the EU's financial interests.
2. Italian Constitutional Concerns:
o The Italian Constitutional Court expressed concerns about the
implications of Taricco I for fundamental principles of Italian
constitutional law, particularly the principle of legality in criminal
matters (Article 25 of the Italian Constitution), which requires that
criminal penalties and related procedural rules, including statutes of
limitations, must be clearly defined and not retroactively applied.
3. Referral to the CJEU:
o The Italian Constitutional Court referred the matter back to the CJEU,
asking whether the obligations under Article 325 TFEU could override
fundamental principles of national constitutional law.

CJEU Judgment in Taricco II

In Taricco II, the CJEU struck a more balanced approach, recognizing the importance
of respecting national constitutional identity alongside EU law supremacy. The key
points of the judgment include:
1. Principle of Legality in Criminal Matters:
 o The CJEU acknowledged that the principle of legality is a fundamental
right under both EU law (Article 49 of the Charter of Fundamental
Rights) and national constitutional law.
o Disapplying statutes of limitations that are integral to national criminal
law could violate this principle if it leads to retroactive effects.
2. National Constitutional Identity:
o The CJEU emphasized the need to respect the constitutional identity of
Member States under Article 4(2) TEU.
o It recognized that the Italian Constitutional Court has the final
authority to determine whether disapplying statutes of limitations
would breach Italy’s constitutional identity.
3. Limits to Disapplying National Law:
o The CJEU clarified that national courts must disapply conflicting
national rules only if this does not violate fundamental rights or
constitutional principles.
o If disapplying the statutes of limitations would infringe the principle of
legality as interpreted in the national legal system, national courts are
not required to do so.
4. Effective Protection of EU Financial Interests:
o While the CJEU reiterated the importance of combating VAT fraud
under Article 325 TFEU, it tempered this obligation with the need to
uphold fundamental constitutional rights.

Impact and Outcome

1. Reconciliation of EU and National Law:
o The Taricco II judgment demonstrated a willingness by the CJEU to
accommodate national constitutional principles, marking a shift toward
a more cooperative approach to resolving conflicts between EU law
and national law.
2. Role of National Constitutional Courts:
o The CJEU acknowledged the role of constitutional courts in
safeguarding fundamental principles of national law, reinforcing the
principle of judicial dialogue between the CJEU and national courts.
3. Respect for Fundamental Rights:
 o The judgment emphasized the importance of protecting fundamental
rights, such as the principle of legality, even in the pursuit of EU
objectives.
4. Italian Constitutional Court’s Reaction:
o Following the Taricco II judgment, the Italian Constitutional Court held
that disapplying the statutes of limitations in the case at hand would
violate the principle of legality under the Italian Constitution,
effectively limiting the application of Taricco I.

Significance of Taricco II
1. Balancing Supremacy and Sovereignty:
o Taricco II marked a shift from the CJEU’s traditionally strong assertion
of EU law supremacy toward a more nuanced approach that respects
national constitutional identities.
2. Judicial Dialogue:
o The case exemplifies the importance of judicial dialogue in resolving
conflicts between EU law and national constitutional law, fostering
mutual respect between courts.
3. Precedent for Future Cases:
o Taricco II set an important precedent for how the CJEU might handle
future cases involving tensions between EU obligations and national
constitutional principles.

Conclusion
Taricco II reflects a significant moment in the evolution of EU law, highlighting the
complexities of enforcing EU obligations while respecting the constitutional
identities and fundamental rights of Member States. It underscores the importance
of balancing the effectiveness of EU law with the protection of national legal
traditions and individual rights.
Comments by the class:
At the end, after Taricco II, the Italian national court kept applying the national
principles.
Principle of legality: “Nullum crimen, nulla poena sine lege”, meaning "No crime, no
punishment without law." This principle ensures that:
- Individuals can only be punished for actions that were clearly defined as
criminal at the time they were committed.
- Punishments are only imposed if they are prescribed by a pre-existing law.
There is no competence for the EU to harmonize on criminal law nor fiscal policy.
The short prescription period for the omission of VAT as a crime in Italy cheated the
EU law (Art. 325 of the TFEU), since it affected the EU’s source of revenue. Art. 325:
Take effective and dissuasive measures to combat fraud and other illegal activities
that harm the financial interests of the EU and ensure that EU financial interests
receive the same level of protection as national financial interests.
In Taricco I, the CJEU focused on procedure. In Taricco II the CJEU considered that, in
the end, the statute of limitations was not procedure but substance.
Final ruling Taricco II: Article 325(1) and (2) TFEU must be interpreted as requiring
the national court, in criminal proceedings for infringements relating to value added
tax, to disapply national provisions on limitation, forming part of national
substantive law, which prevent the application of effective and deterrent criminal
penalties in a significant number of cases of serious fraud affecting the financial
interests of the European Union, or which lay down shorter limitation periods for
cases of serious fraud affecting those interests than for those affecting the financial
interests of the Member State concerned, unless that disapplication entails a breach
of the principle that offences and penalties must be defined by law because of the
lack of precision of the applicable law or because of the retroactive application of
legislation imposing conditions of criminal liability stricter than those in force at the
time the infringement was committed.

Tuesday 19
Germany – case of the indirect buying by the ECB of bonds issued by the member
states. The EU Court, with vague arguments, upheld the buying of bonds even do -
as the teacher even agree- it was manifestly against the treaties (Art. 123 – 1 /
prohibition of financing to the member states).
The ESM – European Stability Mechanism – was ideated among the Eurozone
countries to provide an stability mechanism in case of financial stress of any of their
members.

Thursday 21
Reaction by Germany: The German Constitutional Court manifested the EU Court
ruling lacked “comprehensible” reasoning. Among others, they criticized the lack of
importance to the proportionality principle -applied to the division of competences-
and that it disregarded the effects of the PSPP.
They also argument that ECB acted “ultra vires”, since they didn’t have powers to
implement the policy.
The EU Court, with its ruling, broadened the mandate of the ECB and the scope of
the treaties, and thus went beyond its mandate – “ultra vires” and had no effect in
Germany.
The German Court recognized that the national courts still have a say with respect
to the interpretation of the treaties with respect to the competence given to the EU
since it was the member states which gave the competence. However, they did
recognize the importance of the EU Court roll to have a standardized reading of the
EU treaties and the principle of supremacy.
Polish case:
- EU law has also direct application in local laws. They must be aligned with EU
law.

Tuesday 26
EU External Relations – CCP and CFSP
Principles governing EU external action
Art. 3(5) TEU – In its international relations, the EU should uphold its values and
interests and contribute to the protection of its citizens. However, it’s a broadly
general article. Not commonly used.
Art. 21 TEU – EU’s actions shall be governed by the principles which inspired its
creation: democracy, rule of law, human rights, equality, solidarity and respect for
the principle of the UN Charter and international law.
Common Foreign and Security Policy – Second Pillar of the Maastricht treaty.
Regulated solely in the TEU.
The first step of sanctions is to agree to them under the TEU, unanimity in the
European Council. However, specific measures -economic sanctions- are regulated
in the TFEU – both on countries and individuals. Used to protect the interests of the
EU.

I. Common commercial Policy - CCP

- Exclusive competence of the EU. Countries cannot individually conclude
international treaties on commerce.
- Stronger external competence of the EU.
Stages of regional economic integration:

- The CCP is a consequence of internal market integration.

- Is not expressly regulated in the Treaties, it derives from market integration.
- Member states cannot conclude individually external trade deals because
they may clash with the internal market.
- Art. 206 TFEU – Harmonious development of trade.
- It happened in parallel to the liberalization process of the GATT / WTO.
- In case of a conflict within GATT/WTO against a Member State, the
representation of the State is assumed by the EU. However, because of the
harmony in the internal market, now the claims are generally against EU as a
whole, not a specific member state.
- What happened with previous internal treaties between countries in the EU?
A treaty was executed between the EU countries agreeing to denounce any
treaty on investments among themselves, since that is now covered by the
EU regulations.
- How are investments disputes settled within the EU? They have to be solved
within the EU system. Foreign tribunals cannot interpret EU law.
- The EU is seeking to establish a Multilateral Investment Court System that
would be EU law compatible and open to third countries, in order to replace
the current bilateral agreements between EU countries and 3 rd states.
Negotiation of trade deals by the EU

Mixed agreement includes subjects that are a matter of national competence (e.g.
portfolio investment).
Treaties can have provisional application prior to EP’s consent. In the case of mixed
agreements, solely the part that comprehends EU exclusive competencies.

Session 15 – Monday, December 2, 2024

Kadi cases: Following UN Security Council Resolution and in keeping with the
Common Foreign and Security Policy, the EU gave effect to the UNSC Resolution
through multiple regulations.
Mr Kadi, a Saudi resident with assets in Sweden, claimed that the freezing of their
assets under the EU Regulations was unlawful. The seizures occurred without any
court hearing, right of redress or allegation of wrongdoing. Kadi argued within the
Court of First Instance that the EU lacked competence to sanction individuals and
had breached his fundamental rights to a fair hearing, respect for property, and
effective judicial review.
The claimants were named in the resolution and the regulation. They claimed that
the regulation should be annulled under TFEU Article 263 and was a breach of
human rights.
Comments to the cases:
- The CJEU cannot review the legality of acts on security policy, except for
direct actions brought by individuals against sanctions.

- Review = appeals. It applies when a party appeals.

- Individuals can file annulment action against EU sanction acts if their names
are on the list. The annulment action will be only with regards to the part that
affects them. This is because it would comply with the “direct and individual
concern” requirement.

- The cases highlight a conflict between EU law and international law. In the
professor’s view, what the CJEU did was indirectly review the sanctions
imposed by the UNSC for which it has no competence.

- CJEU: General Court’s faulted by revising the UNSC resolution based on ius
cogens principles of international law. It said that EU law was sufficient to do
it.

- Outcome: CJEU – Ruled in favor of Mr. Kadi and sustained that he had to be
granted due procedure and the possibility of review of the sanctions.
However, it gave the Council and the Commission 3 months to adopt a new
regulation and thus frozen the effects of the ruling for such a period.

Chat GPT Summary: The Kadi cases before the Court of Justice of the
European Union (CJEU)—Kadi I (C-402/05 P and C-415/05 P) and Kadi II (C-
584/10 P, C-593/10 P, and C-595/10 P)—are landmark decisions that address
the intersection of EU law, international law, and fundamental rights. These
cases arose from the imposition of sanctions under United Nations Security
Council (UNSC) resolutions and raised critical issues about the relationship
between EU law and international obligations. They were actions for
annulment under Art. 263 TFEU.

Background

UNSC Sanctions Regime: Following the September 11, 2001 attacks, the
UNSC adopted resolutions requiring Member States to freeze the assets of
individuals and entities associated with terrorism.
 Mr. Yassin Abdullah Kadi, a Saudi businessman, was listed by the UN
Sanctions Committee as being associated with Al-Qaeda, leading to the
freezing of his assets.

EU Implementation: The EU implemented these sanctions through Council

Regulation (EC) No 881/2002, directly freezing Mr. Kadi's assets within the EU
without any prior judicial process.

Mr. Kadi's Challenge: Mr. Kadi challenged the EU regulation, arguing that it
violated his fundamental rights, including the right to property and the right
to be heard, as guaranteed by EU law.

Kadi I (2008)
Legal Issue: Whether the EU regulation implementing the UN sanctions
violated EU fundamental rights and whether the CJEU could review such
regulations.

CJEU Judgment (from paragraph 73 onwards): The General Court of the EU

denied the action. He filed a revision recourse against the CJEU.

The CJEU held that EU law is an autonomous legal order and subject to its
own fundamental rights standards. It ruled that:
- The EU regulation violated Mr. Kadi's fundamental rights because it
provided no opportunity for judicial review or for Mr. Kadi to challenge the
listing.
- EU regulations implementing UN sanctions must comply with EU
fundamental rights.
- The Court annulled the EU regulation as far as it applied to Mr. Kadi but
maintained its effects temporarily to allow the EU to remedy the situation.

Significance: The judgment asserted the primacy of EU fundamental rights

over international obligations, even those arising from UNSC resolutions. It
emphasized the autonomy of the EU legal order and the need for judicial
protection.

- Kadi II (2013)

Background: Following Kadi I, the European Commission relisted Mr. Kadi

under Regulation 881/2002 but provided additional reasoning and evidence
to justify the listing. Mr. Kadi again challenged the relisting, arguing that the
new decision still violated his fundamental rights.

CJEU Judgment:
The CJEU upheld Mr. Kadi’s challenge, reiterating that:
- The evidence provided was insufficient to justify the sanctions.
 - The rights of defense and effective judicial protection had been violated
because Mr. Kadi was not given adequate information to contest the
allegations.
- The Court annulled the relisting.

Significance: Kadi II reinforced the principles established in Kadi I, particularly

the requirement that any restrictive measures imposed within the EU must
comply with fundamental rights and allow for effective judicial review.

Key Implications
- Autonomy of EU Law: The Kadi cases affirmed the independence of EU law
from international law, emphasizing that all EU measures must respect
the EU Charter of Fundamental Rights.

- Fundamental Rights Protection: The CJEU ensured that fundamental

rights, such as the right to be heard and the right to property, are upheld
even in the context of implementing international obligations.

- Judicial Oversight: The judgments underscored the importance of judicial

review in maintaining the rule of law within the EU, even when dealing
with matters of international security.

- Relationship with International Law: The cases highlighted tensions

between EU law and international law, particularly the UNSC’s sanctions
regime, and raised questions about reconciling global and regional legal
frameworks.

- Conclusion: The Kadi cases are milestones in the development of EU law,

demonstrating the CJEU’s commitment to protecting fundamental rights and
the autonomy of the EU legal order. They set a precedent for how the EU
implements international obligations, ensuring that they align with its
internal legal principles.

Tuesday 3, 2024
Common Foreign and Security Policy
- Is subject to specific rules and procedures. Cannot go into the same set of
general competences of the EU.
- They are not mentioned in Art. 3-6 TFEU.
- The role of the EU’s courts is limited. Only with respect to the compliance of
article 40 TEU (that they don’t go ultra vires) and Article 275 TFEU (actions on
annulments by individuals due to sanctions, considering Art. 29 TEU).
- EU budget cannot be used to provide aid in defense matters to third
countries.
- Defined by the European Council (agreeing the general measure) and the
Council (agreeing on the specific measures).
 - The Council is the main body for decisions on CFSP. They are assisted by the
High Representative of CFSP. The High Representative has also a seat in the
Commission.
- The Council represents their government and countries. While the
Commission shouldn’t represent the interests of their states, but the general
interest of the Union, it is an intergovernmental organ.
- If the Commission is dismissed, the High Representative will lose his role as
VP in the Commission and keep his role in the Council for Foreign Affairs.
- European External Action Service = A mix of employees of the Council and
Commission, plus diplomats of the countries, working on the EU’s external
policy.
- EU Court usually confirms sanctions.
- Main nature of the sanctions: economic.
Russia Today case:
- Russia Today France was prohibited from broadcasting.
- They alleged violation of freedom of speech and that the Council exceed their
faculties.
- The EU General Court confirmed the sanctions.
- Important paragraph 50: These sanctions must be able to be imposed at the
EU level.
- First time the Council imposed a sanction beyond purely economic measures.
- The Court did the proportionality test based on what the EU Court of Human
Rights would have done. They based the necessity test on public interest.
Contested argument.
- Fundamental rights can be restricted, but not those who touch provisions of
ius cogens (e.g. prohibition of torture).
Chat GPT summary on Russia Today: General Court's Findings

On July 27, 2022, the General Court upheld the Council's measures, concluding that
the restrictions did not infringe upon RT France's freedom of expression. The
Court's key legal determinations included:

Competence of the Council: The Court affirmed that the Council had the authority to
adopt restrictive measures under the EU's Common Foreign and Security Policy
(CFSP), especially in response to threats to international peace and security.

Proportionality and Necessity: The Court evaluated whether the measures were
appropriate and necessary to achieve their objectives. It determined that the
temporary suspension of RT France's broadcasting was proportionate, given the
exceptional context of the military aggression and the need to counter propaganda.

Freedom of Expression: While acknowledging the importance of media freedom, the

Court noted that this right is not absolute. It can be subject to restrictions,
particularly when such limitations are justified by objectives of general interest,
such as safeguarding peace and security.
Temporal Limitation: The Court emphasized that the measures were temporary and
subject to regular review, ensuring that they did not impose a disproportionate or
indefinite restriction on RT France's operations.

Implications of the Judgment

This ruling underscores the EU's capacity to impose restrictive measures on media
entities when deemed necessary to protect its foundational values and security
interests. It also highlights the balance between upholding fundamental rights and
addressing significant threats to peace and stability.
December 5, 2024

Opinion on the EU-Canada Comprehensive Economic and Trade Agreement

Art. 218 TFEU allows the EU to conclude international treaties. The Commission
negotiates.

When an agreement includes matters that are not of exclusive EU competence, the
agreement needs to be additional executed by the member states.

Provisional application of an investment treaty requires unanimity at the Council

(e.g. all the heads of state/government of the Member States).

Why Belgium asked for the opinion? -stage: the Council haven’t agreed to the CETA
yet-. Belgium was seeking legal argument to support its opposition to the
agreement.

The EU cannot sign an agreement that gives a different tribunal the possibility to
interpret EU law.

Characteristics on an independent tribunal

- Qualified requirements (ethical requirements)
- Not linked to the parties.
- Appointment with limited mandate (5 + 5) -be aware of Prof. Weiler position
on renewal of judges in the Court-

December 17, 2024

EU Court’s opinion on the accession by the EU to the European Convention

for the Protection of Human Rights and Fundamental Freedoms.

The Council of Europe is a separate international organization, different and not a

part of the EU. Although, all members of the EU are members of the Council of
Europe and the ECHR.

A first attempt was made on the 90’s, however the EU Court of Justice issued an
opinion reflecting that the EU didn’t had competence to do so under the EU Treaties.
In the Treaty of Lisbon, a provision was incorporated to allow this (modification of
Art. 6 TEU).

Likely, the Council of Europe and ECHR had to be adjusted to allow international of
organizations, and not just states (Protocol 15).

Why does the EU needs to be part of the ECHR?

- ECHR allows citizens to go against the state in the case of breaches of human
rights.
- Member States have conferred powers to the EU.
- Individuals can go before the ECHR Court to challenge EU regulations that are
of direct application or those that are implementing EU law. However, the
liability will lie with the specific state, not the EU as a whole.
- Because of this, it is important to incorporate the EU, so that the EU can be
incorporated into the procedures.

Court of Human Rights = ECHR System

Parliamentary Assembly and Committee of Ministers = Council of Europe

Autonomy of the European Union Law = No external Courts can decide on EU law.

Difference with the CETA case = There the EU Court of Justice accepted the
agreement because they argued that the CETA dispute resolution mechanism would
take EU law as a “fact” and not interpretate it.

EU Court of Justice is sensitive of letting go of their power of being the final

interpreter of EU law.

December 12, 2024

Recap. Class

Mercosur-EU case:
- Negotiations on the text have been concluded. Next step is signing and
ratification of the treaty by the party states.
- EU Commission must decide whether it is solely a trade agreement -requiring
only EU approval- or if the signature of the 27 states is needed.
- The Commission presents the treaty to the Council for approval. If well the
commission presents and recommends to the Council, it is up to the Council
to approve the road to take.
- If there is no agreement, France can take it to the Council.
- See 218 par. 11 = Opinion from the Court: A Member State, the European
Parliament, the Council or the Commission may obtain the opinion of the
Court of Justice as to whether an agreement envisaged is compatible with the
Treaties. Where the opinion of the Court is adverse, the agreement envisaged
may not enter into force unless it is amended, or the Treaties are revised.
- If the Council agrees to conclude the treaty, France challenges it under an
annulment action.
- Decisions of the Council are taken by unanimity or qualified majority.
 - The Trade Agreement could be approved by a qualified majority in the Council
if it’s solely a trade agreement because it is an exclusive -largely-
competence of the EU, as for the shared competences of internal markets, its
mostly harmonized.
- The Opinion -is concludes non-compatible- has the same effect as an
annulment.
- The other option is to go through unanimity in the Council -e.g. if it regulates
competences not exclusive given to the EU or harmonized, intellectual
property-.
- If it includes matters not of the competence of the EU -e.g. education-, it
additionally needs the individual approval of member states and that they are
a party.
- Yuliya doesn’t think that the agreement could be questioned for failing to
comply with the negotiation of an “association agreement” mandate if what
is signed is qualified just as a trade agreement. The substances would be a
stronger argument.
- The question would be “can the agreement be signed by the EU?”. This was
handled before in an agreement between the EU and Singapore (review this).
The States wanted it to be classified as a mixed agreement by the
Commission wanted it to be just EU under its competences. See Art. 207. The
Court said that it was legally an agreement that could be signed by the EU,
but politically it should be mixed.
However, this case made case law that the competence for EU to conclude
trade agreements is very ample -as long as it doesn’t touch investment
matters-.
- Yuliya: This expansion of competencies by the EU Court in favor of the
Commission and the EU undermines the legitimacy of the EU and spikes euro-
skepticism.
- France has 2 options:
o Opinion: But unlikely to get a favorable ruling.
o Rebel: Either not applying or recuring to national constitutional court in
a ultra vires like case as the Weiss case in Germany.
- Even if they go along the road of approval by the member states, the
Commission still has the option to go for the provisional application of the
Mercosur agreement.
- When does provisional application stop? It should stop when one of the
member states rejects the treaty, theoretically. This is based on the principle
of international law. However, EU hasn’t followed this.
- EU Court tends to fall on an argument that the EU treaties created a new
legal order (See 157 of Opinion 2/13 -previous class-).
- Migration is not an exclusive competence of the EU.

Study:

What does the CJEU do?

The CJEU gives rulings on cases brought before it. The most common types of case
are:
 interpreting the law (preliminary rulings) – national courts of EU countries
are required to ensure EU law is properly applied, but courts in different
 countries might interpret it differently. If a national court is in doubt about the
interpretation or validity of an EU law, it can ask the Court for clarification.
The same mechanism can be used to determine whether a national law or
practice is compatible with EU law.
 enforcing the law (infringement proceedings) – this type of case is taken
against a national government for failing to comply with EU law. Can be
started by the European Commission or another EU country. If the country is
found to be at fault, it must put things right at once, or risk a second case
being brought, which may result in a fine.
 annulling EU legal acts (actions for annulment) – if an EU act is believed to
violate EU treaties or fundamental rights, the Court can be asked to annul it –
by an EU government, the Council of the EU, the European Commission or (in
some cases) the European Parliament.
Private individuals can also ask the Court to annul an EU act that directly
concerns them.
 ensuring the EU takes action (actions for failure to act) – the Parliament,
Council and Commission must make certain decisions under certain
circumstances. If they don't, EU governments, other EU institutions or (under
certain conditions) individuals or companies can complain to the Court.
 sanctioning EU institutions (actions for damages) – any person or
company who has had their interests harmed as a result of the action or
inaction of the EU or its staff can take action against them through the Court.

The Court of Justice in the legal order of the European Union

For the purpose of European construction, the Member States (now 27 in number)
concluded treaties establishing first the European Communities and then a
European Union, with institutions which adopt legal rules in specific areas.
The Court of Justice of the European Union is the judicial institution of the
European Union and of the European Atomic Energy Community (Euratom). It is
made up of two courts: the Court of Justice and the General Court. Their primary
task is to examine the legality of EU measures and ensure the uniform
interpretation and application of EU law.
Through its case-law, the Court of Justice has identified an obligation on
administrations and national courts to apply EU law in full within their sphere of
competence and to protect the rights conferred on citizens by that law (direct
application of EU law), and to disapply any conflicting national provision, whether
prior or subsequent to the EU provision (primacy of EU law over national law).
The Court has also recognized the principle of the liability of Member States for
breach of EU law which, first, plays an important part in consolidating the protection
of the rights conferred on individuals by EU provisions and, secondly, may
contribute to more diligent application of EU provisions by Member States.
Infringements committed by Member States are thus likely to give rise to
obligations to pay compensation which may, in some cases, have serious
repercussions on their public funds. Moreover, any breach of EU law by a Member
State may be brought before the Court and, where a judgment finding such an
infringement is not complied with, the Court can order payment of a periodic
penalty and/or a fixed sum. However, if measures transposing a directive are not
notified to the Commission, it may propose that the Court impose a pecuniary
penalty on a Member State, once the initial judgment establishing a failure to fulfil
obligations has been delivered
The Court of Justice also works in conjunction with the national courts, which are the
ordinary courts applying EU law. Any national court or tribunal which is called upon
to decide a dispute involving EU law may, and sometimes must, submit questions to
the Court of Justice for a preliminary ruling. The Court must then give its
interpretation or review the legality of a rule of EU law.
The development of its case-law illustrates the Court's contribution to creating a
legal environment for citizens by protecting the rights which European Union
legislation confers on them in various areas of their daily life.
Fundamental principles established by case-law
In its case-law (starting with Van Gend & Loos in 1963), the Court introduced the
principle of the direct effect of Community law in the Member States, which now
enables European citizens to rely directly on rules of European Union law before
their national courts.
The transport company Van Gend & Loos had imported goods from Germany to the
Netherlands and had to pay customs duties which it considered to be incompatible
with the rule in the EEC Treaty prohibiting increases in customs duties in trade
between Member States. The action raised the question of the conflict between
national legislation and the provisions of the EEC Treaty. The Court decided the
question referred by a Netherlands court by stating the doctrine of direct effect,
thus conferring on the transport company a direct guarantee of its rights under
Community law before the national court.
In 1964, the Costa judgment established the primacy of Community law over
domestic law. In that case, an Italian court had asked the Court of Justice whether
the Italian law on nationalisation of the production and distribution of electrical
energy was compatible with certain rules in the EEC Treaty. The Court introduced
the doctrine of the primacy of Community law, basing it on the specific nature of the
Community legal order, which is to be uniformly applied in all the Member States.
In 1991, in Francovich and Others, the Court developed another fundamental
concept, the liability of a Member State to individuals for damage caused to them
by a breach of Community law by that State. Since 1991, European citizens have
therefore been able to bring an action for damages against a State which infringes a
Community rule.
Two Italian citizens who were owed pay by their insolvent employers had brought
actions for a declaration that the Italian State had failed to transpose Community
provisions protecting employees in the event of their employers' insolvency. On a
reference from an Italian court, the Court stated that the directive in question was
designed to confer on individuals rights which they had been denied as a result of
the failure to act of the State which had not implemented the directive. The Court
thus opened up the possibility of an action for damages against the State itself.
The Court in the life of European Union citizens
Of the thousands of judgments given by the Court, the majority, particularly
preliminary rulings, clearly have important consequences for the daily life of
European Union citizens. Some of these judgments are cited below as examples
from the most important areas of European Union law.
 Free movement of goods
Since the Cassis de Dijon judgment in 1979 on the principle of free movement of
goods, traders can import into their country any product coming from another
country within the European Union, provided that it was lawfully manufactured and
marketed there and that there is no overriding reason relating, for example, to the
protection of health or the environment to prevent its importation into the country
of consumption.
 Freedom of movement of persons
Many judgments have been given in the field of freedom of movement of persons.
In the judgment in Kraus (1993), the Court held that the situation of a Community
national who holds a postgraduate academic title, which was awarded in another
Member State and facilitates access to a profession or the pursuit of an economic
activity, is governed by Community law, even as regards the relations between that
national and his Member State of origin. Accordingly, if a Member State can make
use of that title in its territory subject to an administrative authorisation, the
authorisation procedure must be intended solely to verify whether the title was
properly awarded.
One of the most well-known cases in this field is Bosman (1995), in which the Court
gave a ruling on a reference from a Belgian court on the compatibility of rules of
football federations with freedom of movement of workers. It stated that
professional sport is an economic activity whose exercise may not be hindered by
rules governing the transfer of players or restricting the number of players who are
nationals of other Member States. That principle was extended in subsequent
judgments to the situation of professional sportsmen from third countries which had
entered into an association agreement (Deutscher Handballbund, 2003) or a
partnership agreement (Simutenkov, 2005) with the European Communities.
 Freedom to provide services
A judgment of 1989 on freedom to provide services concerned a British tourist who
was assaulted and seriously injured in the Paris metro. On a reference from a French
court, the Court held that, as a tourist, he was the recipient of services outside his
country and was covered by the Community law principle of non-discrimination on
grounds of nationality. He was therefore entitled to the same compensation as a
French national could claim (Cowan).
In cases referred by the Luxembourg courts, the Court declared that national
provisions having the effect that an insured person cannot obtain reimbursement of
the cost of dental treatment on the ground that it was given in another Member
State constitute an unjustified restriction on freedom to provide services (Kohll,
1998), and that refusal to reimburse costs related to the purchase of spectacles
abroad is regarded as an unjustified restriction on free movement of goods (Decker,
1998).
 Equal treatment and social rights
An air hostess brought an action against her employer on the grounds of
discrimination in the pay she received compared with her male colleagues who did
the same work. On a reference from a Belgian court, the Court held in 1976 that the
Treaty rule requiring equal pay for men and women for equal work had direct effect
(Defrenne).
In its interpretation of the Community rules on equal treatment for men and women,
the Court has played a part in protecting women against dismissal linked to
pregnancy. A woman who was unable to continue work because of difficulties
connected with her pregnancy was dismissed. In 1998, the Court held that that
dismissal was contrary to Community law. Dismissal of a woman during pregnancy
for absences linked to pregnancy-related illness is unlawful discrimination on
grounds of sex (Brown).
In order to ensure the protection of the health and safety of workers, workers must
have paid annual leave. In 1999, BECTU, a British trade union, challenged United
Kingdom legislation which denied that right to workers on short-term contracts on
the ground that it was incompatible with a Community directive on the organisation
of working time. The Court held (BECTU, 2001) that the right to paid annual leave is
a social right directly conferred on every worker by Community law and that no
worker may be denied that right.
 Fundamental rights
By holding that respect for fundamental rights is an integral part of the general
principles of law it safeguards, the Court has made a considerable contribution to
improving the standards of protection of those rights. In this respect, it looks to the
constitutional traditions common to the Member States and to international treaties
on the protection of human rights, on which the Member States have collaborated
or which they have signed, in particular the European Convention on Human Rights.
Following the entry into force of the Treaty of Lisbon, the Court will be able to apply
and interpret the Charter of Fundamental Rights of the European Union of 7
December 2000, which is recognised under the Treaty of Lisbon as having the same
legal value as the Treaties.
After numerous terrorist attacks against the police, police officers in Northern
Ireland began carrying fire-arms. However, on the grounds of public safety, women
police officers were not authorised to carry fire-arms (on the basis of a certificate
issued by the competent minister which could not be challenged before the courts).
As a result, full-time contracts in the Northern Ireland police were no longer offered
to women. On a reference from a United Kingdom court, the Court held that
excluding any power of review by the courts of a certificate issued by a national
authority runs counter to the principle of effective judicial control which may be
relied upon by all persons who consider themselves wronged by discrimination on
grounds of sex (Johnston, 1986).
 European citizenship
In respect of European Union citizenship which, under the Treaty on the Functioning
of the European Union, is afforded to every person holding the nationality of a
Member State, the Court has stated that such citizenship entails the right to reside
in another Member State. Accordingly, a minor who is a Member State national, is
covered by sickness insurance and has available to him or her sufficient resources
also has that right to reside. The Court noted that Community law does not require
the child itself to have the necessary resources and that refusal to grant at the
same time to its mother, who is a third-country national, a right to reside would
render redundant the child's right to reside (Zhu and Chen, 2004).
In the same judgment the Court stated that, even where the purpose of acquiring
the nationality of a Member State is to obtain for a third-country national a right of
residence pursuant to Community law, it is not permissible for a Member State to
restrict the effects of the grant of the nationality of another Member State.

The General Court has jurisdiction to hear and determine:

 requests for a preliminary ruling, transferred by the Court of Justice, which
come exclusively within one or more of the following six specific areas:
o the common system of value added tax;
o excise duties;
o the Customs Code;
o the tariff classification of goods under the Combined Nomenclature;
o compensation and assistance to passengers in the event of denied
boarding or delay or cancellation of transport services;
 o the scheme for greenhouse gas emission allowance trading.
 actions brought by natural or legal persons against acts of the institutions,
bodies, offices or agencies of the European Union (which are addressed to
them or are of direct and individual concern to them) and against regulatory
acts (which concern them directly and which do not entail implementing
measures) or against a failure to act on the part of those institutions, bodies,
offices or agencies; for example, a case brought by a company against a
Commission decision imposing a fine on that company;
 actions brought by the Member States against the Commission;
 actions brought by the Member States against the Council relating to acts
adopted in the field of State aid, trade protection measures (dumping) and
acts by which it exercises implementing powers;
 actions seeking compensation for damage caused by the institutions or the
bodies, offices or agencies of the European Union or their staff;
 actions based on contracts made by the European Union which expressly give
jurisdiction to the General Court;
 actions relating to intellectual property brought against the European Union
Intellectual Property Office (EUIPO) and against the Community Plant Variety
Office (CPVO);
 disputes between the institutions of the European Union and their staff
concerning employment relations and the social security system.
The decisions of the General Court may, within two months, be subject to an appeal
before the Court of Justice, limited to points of law.
In certain categories of cases, appeals against decisions of the General Court are
considered by the Court of Justice after an initial procedure determining whether
such appeals are allowed to proceed. This procedure applies to appeals (i) in cases
that have already been considered twice, first by an independent board of appeal of
a body, office or agency of the European Union and then by the General Court, and
(ii) against decisions of the General Court relating to the performance of a contract
containing an arbitration clause (under Article 272 of the Treaty on the Functioning
of the European Union). In such cases, the appeal must be accompanied by a
request that it be allowed to proceed setting out the issue or issues raised by the
appeal that is or are significant with respect to the unity, consistency or
development of European Union law.

EU External Relations
Restrictive measures or ‘sanctions’ constitute a key tool of foreign policy by which
the EU aims to create a change in the policy or behaviour of a country. They can
take the form of arms embargos, asset freezes, restrictions on entry into and travel
through the territory of the EU, import or export bans etc. They can target
governments, companies, individuals and groups or organisations (such as terrorist
groups for example).
In addition to terrorist organisations such as Al-Quaeda, around thirty countries
have already had sanctions imposed on them by the Council of the European Union,
including Afghanistan, Belarus, Ivory Coast, Egypt, Iran, Libya, Russia, Syria,
Tunisia, Ukraine and Zimbabwe.

Eyad Makhlouf (the cousin of Syrian President Bashir Al Assad) had his funds frozen
by the Council on the grounds that he was the brother of Rami Makhlouf (one of the
most powerful Syrian businessmen) and a General Intelligence Directorate officer
involved in violent repression against the Syrian civilian population. The General
Court upheld the freeze, finding that Mr Makhlouf did not produce evidence that
could cast doubt on the claim that he supported the Syrian regime. Furthermore, Mr
Makhlouf’s rights of defence had not been violated because he was afforded the
opportunity to defend himself effectively against the Council.
Makhlouf v Council, T-383/11, 13 September 2013

In 2010, the Iranian company Fulmen and its director were subject to a freeze of
their funds on the basis that they were implicated, according to the Council, in the
installation of electrical equipment at a secret site connected to the Iranian nuclear
programme. The General Court, however, annulled the freeze. It found that the
Council had based its reasoning on mere unsubstantiated allegations and that it had
thus not provided evidence of an intervention by Fulmen or by its director at the site
concerned. The General Court held that the Council was required to produce such
evidence.
Fulmen and Fereydoun Mahmoudian v Council, T-439/10 and T440/10, 21 March
2012

In Plaumann & Co. v. Commission, Case 25/62, 1963 E.C.R. 95, the Court of Justice
required that in order to allow individuals to challenge a regulation, this regulation
should affect them “by reason of certain attributes, which are particular to them or
by reason of circumstances in which they are differentiated from all other persons
and by virtue of these factors distinguishes them individually.”

The approval process for treaties to be signed by the European Union (EU) depends
on the treaty's subject matter and the legal basis provided in the EU Treaties. Here’s
a detailed explanation:

1. Majority or Unanimity in the Council: Key Determinants

The decision-making rules for the Council of the EU are set out in Articles 218 and
207 TFEU and depend on the type of agreement:

A. Qualified Majority Voting (QMV)

 When is QMV Used?
o General Rule: Most treaties fall under the scope of qualified majority
voting in the Council, especially for agreements related to:
 Trade and common commercial policy (Article 207 TFEU).
 Areas where the EU has exclusive competence (e.g., customs
union, fisheries policy, and monetary policy for eurozone
members).
 Certain association agreements and economic partnerships.
 Voting Mechanism:
o A decision is adopted if at least 55% of Member States (15 out of 27)
vote in favor, representing at least 65% of the EU population.

B. Unanimity
 When is Unanimity Required?
o Unanimity is required in sensitive areas, where Member States retain a
higher degree of sovereignty or where the treaties explicitly mandate
it. Examples include:
 1. Areas of Shared Competence:
 Agreements concerning sensitive policy areas, such as
taxation, social policy, and cultural matters (Article 218(8)
TFEU).
2. Institutional Matters:
 Treaties affecting the EU’s institutional framework or
amendments to existing treaties.
3. Foreign and Security Policy:
 Agreements relating to the Common Foreign and Security
Policy (CFSP) require unanimity (Article 31 TEU).
4. Accession Agreements:
 Treaties for new Member States joining the EU must be
unanimously approved by the Council and ratified by all
Member States.

2. Key Article: 218 TFEU

The procedure for negotiating and concluding international agreements is outlined
in Article 218 TFEU, which specifies:
 Stage 1: The Commission (or the High Representative for CFSP matters)
submits recommendations to the Council.
 Stage 2: The Council authorizes the opening of negotiations and decides the
negotiating directives.
 Stage 3: The final decision on signing and concluding the treaty depends on
the subject matter:
o QMV is the default rule unless the treaties specify otherwise.
o Unanimity applies in cases listed in Article 218(8) TFEU, including
CFSP matters or areas requiring unanimous agreement.

3. The Role of the European Parliament

 In most cases, the European Parliament's consent is required for the EU
to conclude an agreement. For example:
o Trade agreements under Article 207 TFEU.
o Association agreements and agreements involving significant
budgetary implications.
 However, in CFSP matters, the Parliament is usually only informed.

4. Practical Examples
Qualified Majority Voting:
 EU-Canada Comprehensive Economic and Trade Agreement (CETA):
o Most provisions were approved by QMV, as the agreement primarily
concerned trade policy.
Unanimity:
 Accession Treaties:
o For example, the Treaty of Accession for new Member States joining
the EU requires unanimity.
 CFSP Agreements:
o Sanctions or defense-related agreements require unanimous approval
in the Council.

Conclusion
  QMV applies as the general rule for treaties related to areas of EU
competence, ensuring efficiency in decision-making.
 Unanimity is reserved for sensitive areas where Member States wish to
maintain stronger control or where the treaties explicitly require it.

Shared competences between the European Union (EU) and its Member States do
not become permanently exclusive to the EU once the EU acts on them.
However, the principle of pre-emption applies, which temporarily limits Member
States' ability to act in areas where the EU has exercised its shared competence.
Below is a detailed explanation:

1. What Are Shared Competences?

 Defined in Article 4 TFEU, shared competences are areas where both the EU
and Member States can legislate and adopt legally binding acts.
 Examples include:
o Internal market.
o Social policy (specific areas).
o Environment.
o Consumer protection.
o Energy.

2. Principle of Pre-emption
 Article 2(2) TFEU explains that in areas of shared competence:
"The Member States shall exercise their competence to the extent that the Union
has not exercised its competence."
 Key Implication:
o When the EU adopts binding legislation in a shared competence, it
"pre-empts" Member States from acting in the same area.
 o Pre-emption applies only to the extent covered by the EU legislation:
 Full Pre-emption: Member States cannot legislate or adopt
conflicting rules in the specific area governed by EU law.
 Partial Pre-emption: Member States retain the ability to
legislate in areas not covered by the EU’s actions.

3. Does Shared Competence Become Exclusive?

 No Permanent Exclusivity:
o Even after the EU has acted, the competence remains legally shared.
The pre-emption principle merely restricts Member States temporarily
in the covered area.
o Member States can regain the ability to act if:
 The EU repeals its legislation.
 The EU explicitly allows Member States to legislate (e.g.,
implementing measures).
 Example:
o In environmental policy, if the EU adopts a directive on waste
management, Member States must comply with its provisions.
However, they can still act on aspects not addressed by the directive,
provided they do not conflict with EU law.

4. Relevance of Subsidiarity and Proportionality

 The principle of subsidiarity (Article 5(3) TEU) ensures that the EU acts
only when objectives cannot be sufficiently achieved by Member States.
 The principle of proportionality (Article 5(4) TEU) limits the extent of EU
action, ensuring it does not go beyond what is necessary to achieve its
objectives.
 These principles guard against the EU overly pre-empting Member States'
abilities to act within shared competences.

5. Practical Examples
A. Consumer Protection
 The EU’s directives, such as the Unfair Commercial Practices Directive,
harmonize specific rules across Member States. Once adopted, national laws
must align, but Member States can introduce stricter protections if permitted.
B. Environmental Policy
 In areas like climate action, EU legislation often leaves room for Member
States to adopt complementary measures, such as stricter carbon reduction
targets.

6. Exceptions: Exclusive Competence by Nature

Some competences start as exclusive to the EU by treaty definition (e.g., customs
union, monetary policy for the eurozone). These are not affected by shared
competence rules.

Conclusion
Shared competences do not become permanently exclusive to the EU once the EU
acts, but Member States are limited by the principle of pre-emption. Member States
can regain competence in areas not covered or if the EU withdraws its legislation.
This system ensures flexibility and preserves Member States' sovereignty within the
framework of the Treaties.

Here's a detailed breakdown addressing each of your points based on the syllabus
and core EU law concepts:

### *1. EU Principles: Direct Effect, Supremacy, Proportionality, Mutual

Recognition*

#### *Direct Effect*

- *Definition: EU law provisions can be invoked by individuals in national courts if
they are **clear, precise, and unconditional*.
- *Key Case: **Van Gend en Loos (1963)*
- Facts: A Dutch company invoked Article 30 TFEU (formerly Article 12 EEC) against
a customs duty.
- Principle: Established *direct effect*, enabling individuals to rely on EU treaty
provisions before national courts.
- *Application*: Applies to:
- *Treaty Articles* (e.g., TFEU, TEU) – e.g., Articles 30, 45, 49 TFEU.
- *Regulations*: Directly applicable (Article 288 TFEU).
- *Directives: Have direct effect **only vertically* if the implementation deadline
has passed and the provision is clear (Case *Van Duyn*).
- *Treaty Basis*: Article 288 TFEU.

#### *Supremacy*
- *Definition*: EU law takes precedence over conflicting national law.
- *Key Case: **Costa v ENEL (1964)*
- Facts: Italy nationalized electricity; Costa argued it breached EU law.
- Principle: EU law cannot be overridden by domestic laws; it ensures uniform
application.
- *Legal Basis: Derived from **Article 4(3) TEU* (principle of loyalty/cooperation).
- *Conflicts: Tensions arise when national courts challenge supremacy (e.g.,
**Weiss* case in Germany).

#### *Proportionality*
- *Definition*: Measures taken by the EU or Member States must be appropriate,
necessary, and not go beyond what is required to achieve objectives.
- *Legal Basis*: Article 5(4) TEU.
- *Application*: Used to assess legality of national/EU measures restricting freedoms
(e.g., free movement of goods/persons).

#### *Mutual Recognition*

- *Definition*: A product legally produced in one Member State must be accepted in
others.
- *Key Case: **Cassis de Dijon (1979)*
- Facts: Germany prohibited French liquor due to alcohol percentage.
- Principle: Established mutual recognition and introduced *rule of reason*
exceptions for public health, consumer protection, etc.
- *Treaty Basis*: Article 34-36 TFEU (prohibitions on quantitative restrictions).
### *2. Internal Market and Free Movement of Goods*

#### *Internal Market*

- *Definition*: An area without internal borders, ensuring free movement of goods,
persons, services, and capital (Article 26 TFEU).
- *Legal Basis*:
- Article *26 TFEU*: Establishing the internal market.
- Article *34-36 TFEU*: Free movement of goods.

#### *Free Movement of Goods*

- *Key Cases*:
1. *Dassonville (1974)*:
- Defined “measures having equivalent effect” to quantitative restrictions under
Article 34 TFEU.
2. *Cassis de Dijon*:
- Principle of mutual recognition and rule of reason.
3. *Keck and Mithouard (1993)*:
- Selling arrangements are excluded from Article 34 TFEU unless they hinder
market access.
4. *Trailers Case (2009)*:
- Extended scope to non-discriminatory measures hindering market access.

#### *How It Applies*:

Member States cannot enact laws restricting imports/exports unless justified under
*Article 36 TFEU* (public policy, health, etc.). Proportionality applies.

### *3. Free Movement of Persons*

#### *Definition*
- The right of EU citizens and their family members to move, reside, and work freely
within the EU.

#### *Legal Basis*

- *Article 45 TFEU*: Workers' rights to move and work.
- *Directive 2004/38/EC*: Right of residence and family reunification.

#### *Key Cases*

1. *Rottman (2010)*: Loss of Member State nationality can impact EU citizenship.
2. *Ruiz Zambrano (2011)*: EU citizens’ rights indirectly protect non-EU family
members.

### *4. Constitutional Conflicts and Counter-Revolutions*

#### *Legal Basis*

- *Primacy* and *Direct Effect* (Costa and Van Gend cases).
- *Article 19 TEU*: Ensures EU law enforcement.
- *National Sovereignty*: National constitutional courts may challenge EU law.

#### *Conflicts*
- *Taricco Cases*: Italian courts refused to apply EU law due to constitutional
protections.
- *Weiss Case*: German Constitutional Court challenged ECB measures.
- *Poland K 3/21*: Polish Tribunal rejected primacy of EU law.

#### *Why It Happens*

- Member States protect constitutional sovereignty and fundamental rights.
- Tensions occur when EU law appears to override national constitutions.

### *5. Key Factors and Implications of the Kadi Case*

- *Facts*: Kadi challenged EU measures freezing his assets (based on UN
resolutions) for violating fundamental rights.
- *Ruling*:
- *EU law must respect fundamental rights*.
- CJEU held that EU law cannot automatically implement international law if it
breaches rights.
- *Significance*: Established EU constitutional autonomy over international law.

### *6. EU International Agreements and Article 218 TFEU*

#### *Legal Basis*

- *Article 218 TFEU*: Governs the process for concluding international agreements.

#### *Steps*
1. *Proposal*: The Commission or High Representative proposes the negotiation.
2. *Council Mandate*: Council authorizes negotiations.
3. *Negotiation*: Conducted by the Commission/High Representative.
4. *Council Approval*: Adoption requires a qualified majority or unanimity.
5. *Parliament Consent*: For specific agreements (e.g., association agreements).
6. *CJEU Opinion: Ensures compatibility with EU treaties (e.g., **Opinion 2/13* on
ECHR).

#### *Mixed Agreements*

- Agreements requiring participation of both the EU and Member States.

MEEQRs (Measures Having Equivalent Effect to Quantitative Restrictions)

are national measures that, while not outright bans or quotas, hinder the free
movement of goods within the European Union (EU) in a way that has the same
effect as quantitative restrictions. They are prohibited under Article 34 TFEU
(Treaty on the Functioning of the European Union), which ensures the free
movement of goods across Member States.

1. Legal Basis
 Article 34 TFEU:
"Quantitative restrictions on imports and all measures having equivalent effect shall
be prohibited between Member States."
 Article 35 TFEU extends the same prohibition to exports.

2. Definition of MEEQRs
MEEQRs were broadly defined in the landmark case Dassonville (Case 8/74):
“All trading rules enacted by Member States which are capable of hindering, directly
or indirectly, actually or potentially, intra-Community trade are to be considered as
measures having equivalent effect to quantitative restrictions.”

3. Examples of MEEQRs
MEEQRs include a wide range of measures that may not explicitly target imports or
exports but create barriers to trade:
 National standards or certifications that require imported goods to
comply with additional requirements not applied to domestic goods.
 Restrictive packaging, labeling, or marketing requirements.
 Advertising restrictions that limit the visibility of imported goods.
 Licensing systems that create delays or uncertainty for imports.
 Administrative practices that impose higher burdens on foreign products.

4. Key Case Law

A. Dassonville (1974):
 Introduced the broad definition of MEEQRs.
 Highlighted that even potential hindrances to trade could qualify as MEEQRs.
B. Cassis de Dijon (1979):
 Established the principle of mutual recognition, requiring Member States
to accept goods lawfully marketed in another Member State unless there is a
valid justification (e.g., public health or safety).
 Introduced the possibility of justifying MEEQRs under mandatory
requirements, such as consumer protection or environmental standards.
C. Keck and Mithouard (1993):
 Distinguished between product requirements (considered MEEQRs) and
selling arrangements (rules on how products are sold, which are not
MEEQRs if they apply equally to domestic and imported goods in law and in
fact).

5. Justifications for MEEQRs

MEEQRs may be permitted if they can be justified under:
1. Article 36 TFEU: Exceptions to Article 34 and 35 include:
o Public morality.
o Public policy or public security.
o Protection of health and life of humans, animals, or plants.
o Protection of national treasures.
o Protection of industrial and commercial property.
2. Mandatory Requirements (Cassis de Dijon):
o Consumer protection.
o Fair trading practices.
o Environmental protection.
o Public health and safety.
In all cases, the measure must comply with the principle of proportionality,
meaning it must be necessary and not go beyond what is required to achieve the
objective.

6. Significance
 The concept of MEEQRs is central to ensuring the free movement of goods in
the EU, a cornerstone of the internal market.
 It prevents Member States from using indirect barriers to trade that could
undermine economic integration.