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EU Institutions Revision Sheet

The Institutional Framework
The Institutional Framework of the Union was originally laid down by the European Coal and Steel
Community (ECSC) Treaty, which established a mix of supranational and international institutions in
a tripartite system consisting of the Council of Ministers, the Commission, and the European
Parliament (The Assembly)
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The
European Council has now become the main policy=steering body which has been formalized as the
main institution (Article 13 TEU), and the additional consultive bodies such as the Committee of the
Region (CoR) and the European Economic and Social Committee (EESC) which gather the opinions of
public interest and feed them in to the decision-making process
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e
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However, the Judicial Branch is most notably separate, although
under Article 13 TEU an institutional balance is required whereby each institution must not act
beyond powers granted to them by treaties
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The Nice Treaty and the 2004 accession negotiations by Bulgaria and Romania agreed that
the number of Commissioners should be reduced to two-thirds of member states
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Although Article 17(5) still commits to the reduction of Commissioners, the guarantees given
to Ireland to hold a new referendum in 2009 reinstated the principle of one Commissioner
per state and hence there are currently 28 Commissioners
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Although Commissioners are nominated representatives of the member states, they are
required under Article 17(3) TEU and 245 TFEU to not seek instruction from governments
and act completely independently
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The Commission is not considered a massive bureaucracy with only 23,000 staff working
directly in the Commission Directorates
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They are then subject to
approval to the European Parliament by majority vote
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The High representative is appointed by the European Council by QMV with the agreement
of the Commission President
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The term served is a renewable period of 5 years under Article 17(3) TEU
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Removal of the Commission
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The Commission can be removed by a vote of censure by the European Parliament (EP), but
only collectively until the replacement committee is appointed in its entirety
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Also, single commissioners can be removed by request of the Commission President under
Article 17(6) TEU
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Tasks and Duties
Article 17 TEU imposes duties upon the Commission promoting the general interest of the Union
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Main functions:
1) Must ensure that the provisions of the Treaty and the measures taken by the institutions
under the are applied
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2) It formulates and proposes policy initiatives and legislative proposals by way of
recommendations on matters as expressly provided for by the Treaty or as the Commission
deems necessary
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They have the sole
right to propose legislation under Article 17(2) TEU
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3) It has limited powers of independent decision-making by participation in the shaping of the
measures taken by the Council of Ministers and by the EP under Article 211 EC
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4) It has powers under delegated and implementing legislation procedures conferred on it by
the Council of Ministers and the EP for the adoption of non-legislative administrative, or
regulatory acts (Articles 290 and 291 TFEU)
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EU Institutions Revision Sheet

The Council (of Ministers) of the EU

The council of Ministers of the EU is NOT the same as the European Council, but is often referred to
as the Cou il
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The Council decides on the adoption of legislative proposal, in a procedure known as the
ordi ary legislati e pro edure u der Article 289 TFEU
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Along with the EP, the Council are
responsible for adopting the annual budget under Article 314 TFEU
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This can be done by
simple majority votes
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Council general law-making powers
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As well as specific powers to enact legislation under particular Articles within the Treaty, the
Council also have general powers to enact legislation
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Article 352 TFEU provides generally that the Council can enact measures required to meet
the objectives of the Union
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COREPER and the Council Secretariat
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COREPER are the committee of permanent representatives built up of senior national
officials
COREPER are not formally established under Articles 16(7) and 240(2) TFEU, and aims to
reduce the workload of the Council
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Article 240(2) also provides for a permanent Council Secretariat to overtake much of the
mundane work of the Council, such as the organisation and preparation of meetings, and
also assists the European Council and the High Representative
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They have no legislative function
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The European Council has been criticised for being a completely intergovernmental organization
who are placed at the top of the EU Institution Hierarchy
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e
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The European Parliament
Functions and powers
Legislative powers
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The primary legislative powers of the EP are granted under Article 14(1) TEU, which
empowers them to exercise legislative and budgetary functions jointly with the Council
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The Lisbon Treaty furthered this power considerably in more than 40 instances
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The EP can also question the Court of Justice as to whether a proposed international
agreement breaches a treaty
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The EP now also has the right of participation in the revision of Treaties, under Article 49
TEU, by submitting their proposals to the European Council
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The President of the Commission is voted for via QMV which must then be approved by the
EP
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In 2004 the Commission was
required to be reconstituted as a result of the EP taking objection to a particular
Commissioner
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Ability to question the Commission or the Council under Article 230 TFEU
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By a two-thirds vote by the EP, they have the power to censure the Commission under
Articles 17(8) and 234 TFEU
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However, the Commission President CAN have the
power to remove an individual commissioner under Article 17(6) TEU
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However, this
consultation can be ignored once received by the Council
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The Committee are governed by Articles 301 – 304 TFEU
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The CoR are governed by Articles 305-307 TFEU
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EU Law-making Revision Sheet
The EU can only act to legislate where it has the competence to do so and the exercise of that
competence is subject to the principles laid out in Article 5 TEU
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Competences not conferred on the
U io
the Treaties re ai s ith the e er states
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Legal basis of the Articles
Treaty Articles will specify the legal procedures to be used and may also prescribe legal instruments
to be used, as in Article 114 TFEU
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The exercise of EU Competence
Article 5(3) TEU Principle of Subsidiarity
i areas hi h do ot fall ithi its e lusi e o pete e, the U io shall a t o l of a d i so far as
the objectives of the proposed action cannot be sufficiently achieved by the MS, either at a central
level or at a regional and local level, but can rather, by reason of the scale of effects of the proposed
a tio , e etter a hie ed at U io le el
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of U io a tio shall ot e eed hat

i
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is the EU measures suitable and necessary to achieve the objective
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EU Law-making Revision Sheet
Legislative procedures
There are a number of legislative procedures that exist that are characterised by the level of
participation of the European Parliament
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Today the EP is the Co-legislator
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S
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Their proposals will
then be reviewed by the EP and the Council as co-legislators
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This accommodates the interests of all 3 institutions, as well as others, where:
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National Parliaments and other EU bodies where specified by the legal basis e
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economic
and social committee
The Co
issio s proposals ill ha ge ith the i put of the EP a d the Council who may
propose amendments at the first and second reading stages, but Commission involvement is
ensured
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EU Law-making Revision Sheet
Law Making
Other bodies involved
COREPER – Committee of permanent representatives
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Represents to Council in conciliation committee with the EP, as well as being involved in
negotiations with the EP at early stage of the Ordinary Legislative Procedure
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Delegated law making by the Commission
Comitology – Committee structure, comprising of MS representatives, to oversee the exercise of
delegated law making which excluded the involvement of the EP

Free movement of goods revision sheet
Introduction
The economic objective of the EU is to create an internal market –
Article 26 TFEU - a area ithout i ter al fro tiers i hi h the free o e e t of goods, perso s,
services and capital is ensured in accordance with the provisions of this treat
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g
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For goods, customers will benefit from a more competitive market with more choice at
cheaper prices
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g
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g
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g
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Divergence between national standards between M
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means that goods, otherwise lawfully
produced and marketed in one M
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may not gain access to another unless the producer also
complies with the standards of the M
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in which they now wish to also sell their goods
Such goods may be subject to dual regulatory standards by which they must comply with the
regulatory standards of both their home MS and those of the state they are exporting to
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Positive integration = Harmonization
Legislation replaces divergent national regulatory standards for a single and common EU rule
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Negative integration
This removes obstacles by prohibiting national rules or practices which hinder trade between
member states
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Article 34
Scheme of Treaty Provisions
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A prohibition on discriminatory obstacles to free movement i
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where the effect of a rule is
to treat national goods/ persons more favourably than other from other MSs
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Free movement of goods revision sheet
This prevents any rule that would lead to the favorability of national workers over other
workers
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S
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Proportionality is essentially a means of
balancing
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Quantitative restrictions were defined in Geddo, as – easures hi h a ou t to a total or
partial restrai t of, a ordi g to the ir u sta es, i ports, e ports or goods i tra sport i
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quotas or bans
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Vertical direct effect – can be relied upon to enforce provisions against the state
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Fra
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They did NOT state that Article 34 has horizontal direct effect, but it can be applied in the above
scenario^
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The national rule complies with the principle of proportionality

This requires that the MS shows that the national rule at issue was:
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Suitable – to achieve the objective the MS sought it to i
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the protection of public health,
and
Necessary – the least restrictive means of achieving the objective

Free movement of goods revision sheet
This principle aims to balance the free movement of goods with the movement of provisions in the
least restrictive way possible
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These were defined in the case of Dassonville as,
all tradi g rules e a ted
actual or potential, intra- o

e er states hi h are apa le of hi dering, directly or indirectly,
u it trade
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The Irish government sought to promote sales of Irish goods, the object being to switch consumer
spending from imports to domestic products
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The Irish Goods Council
had been set up by the government to implement the strategy to promote Irish goods
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Judicial Review Revision Sheet

The Law
Article 263 TFEU
(1) The EU act must be open to review
(2) The institution or individual seeking to challenge the legality of the measure must have
standing (locus standi)
(3) Procedural or substantive illegality of the type mentioned in para 2
(4) Challenge must b brought within the time limit (5)
(5) The proceedings provided in this Article shall be instituted within 2 months of:
- The publication of the measure, or
- Of its notification to the plaintiff, or
- Of the day on which it came to the knowledge of the latter, as the case may be

Article 263 (1): Reviewable acts?
(1) The CJEU shall review the legality of legislative acts
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Legislative acts include regulations, directives, and acts with binding force that
produce legal effects
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Article 263 (2): Standing for non-privileged applicants
Natural or legal persons can bring challenge in 3 instances:
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Act addressed to that person
Act of direct and individual concern to that person (but not the immediate adresse)
Regulatory act which is of direct concern and does not entail implementing measures
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Too any challenges will unduly restrict EU decision making and threaten legal certainty
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ay threate the i di idual s right to

Judicial Review Revision Sheet

Direct concern?
This requires a direct causal link between the EU act and the complained of affect on the applicants
legal position
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(3)
Individual concern?
Plaumann
Facts: The German Government requested the commission to authorise it to suspend the collection
of duties o Cle e ti e s i ported fro
o -MS
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The applicant sought to challenge the legality of the
o
issio s de isio addressed to a other
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The applicant was affected as an importer of clementines, which was a commercial activity that can
be practised by anyone 0 he was therefore not distinguished from others
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Article 263 (3): Procedural and substantive illegality
Article 263 (2) Grounds of review:
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Lack of competence i
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incorrect legal basis
Infringement of an essential procedural requirement
Infringement of the Treaties or any rule of law relating to their application i
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the
principle of proportionality
Misuse of powers

Judicial Review Revision Sheet
This will result in the measures being declared void
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Issue – whether the EU Treaty creates an effective system of judicial protection, by which individuals
can challenge the legality of EU acts
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The General Court dismissed the application because the members of the association were not
i di idually o er ed
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The preliminary reference procedure – if an individual raises the validity of an EU measure before
the national court, the national court must refer the issue of validity to the CJEU
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Under this system, where the applicant does not have standing under Article 263 TFEU
(direct challenge), they can fall back on Article 267 TFEU (indirect challenge)
It is however for the MS to establish a system of legal remedies and procedures which ensure
respect for the right to effective judicial protection
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Reform of Article 263 TFEU
AG Jacobs in UPA raises the point that this current system is flawed where, under the preliminary
ruling procedure, the applicant has no right to decide if a reference is made, which measures are
referred for review or what grounds for invalidity are raised
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easure

Judicial Review Revision Sheet
This test would ensure that:
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Applicant are granted a true right of direct access and cases of possible denial of justice
are avoided
Remove the anomaly under current case law that the greater the number of person
affected, the less likely that judicial review is available
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Reform via Treaty of Lisbon
Article 263(4) states:
Natural or legal persons can bring a challenge in 3 cases:
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Act addressed that person
Act of direct and individual concern to that person
Regulatory act which is or direct concern and does not entail implementing measures

There is no definition of a regulatory act in the Treaty, but his has been found by implication to be a
non-legislative act
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This would NOT
include regulations
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The first ase here regulatory a ts
Commission
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ust e u derstood as

Supremacy of EU Law Revision Sheet
There are 2 narratives (understandings) on the nature of the EU legal order (relationship between
the EU and national law) – The CJEU v National Court Institutions

CJEU’s Narrative
Case 26/62 Van Gend En Loos
the Community constitutes a new order of international law for the benefit of which the states have
li ited thei so e eig ights
The principle of supremacy comes from the case Costa v ENEL
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B eati g a Co
u it of u li ited du atio , ha i g its o i stitutio s its o pe so alit …
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The further effect from Costa is that a subsequent unilateral national act could not prevail over EU
Law – EU law was placed at the top of the legal hierarchy
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e
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The effectiveness of EU Law
The i teg atio i to the la s of ea h e e state of p o isio s hi h de i e f o the o
u it
make it impossible for states, as a corollary, to accord precedence to a unilateral and subsequent
measure over a legal system a epted the o the asis of e ip o it
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The uniformity of EU Law
Co
u it la a
do esti la s
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Community law should
be equally applied across all member states
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The issue was whether the national
law should be set aside immediately, or could the lower national court wait for the National
Constitutional Court to declare the measure unconstitutional? It was held that
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Every national court, including the lower courts, must apply Community law
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If the applicant had to wait for the case to be appealed to the Constitutional court it would
limit the effectiveness of EU Law Supremacy
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The issue was that
national courts did not have this power i
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no power to suspend parliamentary acts, but also there is
the assumption that any act of parliament is compatible with EU law up until the point where the
CJEU deems it incompatible
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The effectiveness of EU law thus requires national courts to:
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Disapply the offending national law, and;
Supply a remedy which may not be available under national law
This applies to all national law, as in the case Internationale Handelsgesellschaft:

Concerned a challenge to the validity of an EU Regulation before the German Courts, on the
basis that it breached German Constitutional law, in particular, fundamental rights

Supremacy and Lisbon
Declaration 17 on primacy:
i a o da e ith ell settled ase la of the CJEU, the T eaties ha e p i a
e e states
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Primacy is about rules of application – when there is a conflict between national law and EU law, you
simply ignore the national law and apply EU law
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Primacy is only considered in Declaration 17
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The result is that it is national law that
determines the legal effects of EU law in the national systems
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U de the te s of the 97 A t it has al a s ee lea that it as the dut of the U ited
Kingdom Court, when delivering final judgment, to override any rules of national law found to be in
conflict with any directly enforceable rule of Community law
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2)
[1991] 1 AC 603

Limits to supremacy
I the e e t, hi h o dou t ould e er happen in the real world, that a European measure was
seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a
question would arise whether the general words of the ECA were sufficient to incorporate the
measure a d gi e it o e idi g effe t i do esti la
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e
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Thoburn v Sunderland CC [2003] QB 151



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