Learn EU law from scratch
1What EU law is
The European Union is a union of member states that have given some of their powers to common institutions. EU law is the law those institutions make and the Treaties they work under.
It affects daily life: you can work in another member state, buy goods from it without customs duties, and rely on EU consumer and equal pay rules in your national court.
Since the Treaty of Lisbon (2009) the EU rests on two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Charter of Fundamental Rights has the same legal value as the Treaties.
The main institutions and their jobs:
- European Commission: proposes most new legislation and enforces EU law against member states. One Commissioner per member state.
- Council of the EU: ministers of the member state governments. It adopts legislation, often by qualified majority.
- European Parliament: directly elected by citizens. Under the ordinary legislative procedure it has an equal role with the Council.
- European Council: the heads of state or government. It sets the political direction but does not legislate.
- Court of Justice of the EU (CJEU), in Luxembourg: the Court of Justice and the General Court. It interprets EU law and reviews the acts of the institutions.
The EU can act only within the powers the Treaties give it (conferral, Article 5(2) TEU). Outside its exclusive competences it acts only if the aim cannot be achieved well enough by the member states (subsidiarity).
Self-check Which EU institution normally proposes new EU legislation?
- The Court of Justice
- The European Commission
- The European Council
- The European Parliament
Answer: The European Commission. The Commission has the right of initiative for most legislation. The Parliament and the Council then adopt it. The European Council, a different body from the Council of the EU, sets political direction but does not legislate.
2Sources, supremacy and direct effect
Article 288 TFEU lists the legal acts of the institutions, known as secondary law:
- Regulation: binding in its entirety and directly applicable in all member states. No national law is needed.
- Directive: binding as to the result to be achieved. Each member state must transpose it into national law by a deadline.
- Decision: binding in its entirety, on its addressees if it names them.
- Recommendations and opinions: not binding.
Supremacy (primacy). EU law takes precedence over conflicting national law, including national constitutions (Costa v ENEL; Internationale Handelsgesellschaft).
A national court that meets a conflict must set the national rule aside itself, without waiting for parliament or a constitutional court (Simmenthal).
Direct effect. An EU provision that is clear, precise and unconditional creates rights that individuals can enforce in national courts (Van Gend en Loos). Treaty articles can have vertical effect (against the state) and horizontal effect (against private parties), as with equal pay in Defrenne.
Directives have special limits:
- They can have direct effect only after the transposition deadline has passed (Ratti).
- They have vertical direct effect only: they can be relied on against the state or an emanation of the state (Foster v British Gas), but not against a private party (Faccini Dori).
- Indirect effect: national courts must interpret national law as far as possible in line with the directive (Von Colson, Marleasing).
- State liability: a member state must pay damages for a sufficiently serious breach of EU law that causes loss, for example a failure to transpose a directive (Francovich, Brasserie du Pêcheur).
Self-check A Dutch court finds that a Dutch statute conflicts with a directly effective EU regulation. What must it do?
- Apply the statute until parliament repeals it
- Apply whichever rule was adopted later
- Refer the statute to the Dutch parliament for review
- Set the statute aside in the case itself, without waiting for parliament
Answer: Set the statute aside in the case itself, without waiting for parliament. Under Costa v ENEL EU law prevails, and under Simmenthal the national court must disapply the conflicting national rule of its own motion. The “later rule wins” approach is a national rule of implied repeal that does not apply to EU law.
3The Court and the single market
Three procedures at the Court of Justice appear in most exams:
- Preliminary reference (Article 267 TFEU): a national court asks the Court of Justice how to interpret EU law or whether an EU act is valid. Courts of last instance must refer, unless the answer is obvious or already settled (CILFIT). Only the Court of Justice can declare an EU act invalid (Foto-Frost).
- Infringement proceedings (Article 258 TFEU): the Commission takes a member state to court. Stages: letter of formal notice, reasoned opinion, referral to the Court. Fines can follow under Article 260.
- Action for annulment (Article 263 TFEU): a challenge to an EU act, within two months. Private applicants need direct and individual concern (Plaumann), or only direct concern for a regulatory act without implementing measures.
The internal market rests on four freedoms: free movement of goods, persons, services and capital.
Goods. Article 30 TFEU bans customs duties and charges with equivalent effect. Article 110 bans discriminatory taxation of imports. Article 34 bans quantitative restrictions on imports and measures having equivalent effect (MEQRs).
- Dassonville: an MEQR is any trading rule capable of hindering trade between member states, directly or indirectly, actually or potentially.
- Cassis de Dijon: goods lawfully sold in one member state should be accepted in the others (mutual recognition), unless a mandatory requirement such as consumer protection justifies the rule.
- Keck: selling arrangements (when and where goods are sold) fall outside Article 34 if they apply to all traders and affect domestic and imported goods in the same way.
- Article 36 allows justifications such as public morality, public security and health. Purely economic aims, such as protecting national industry, are never accepted.
Persons and services. Article 45 protects workers: anyone doing genuine, effective work under direction for pay (Lawrie-Blum, Levin). Article 49 covers establishment and Article 56 cross-border services.
Competition. Article 101 TFEU bans anti-competitive agreements between undertakings. Article 102 bans the abuse of a dominant position. Article 107 bans most state aid.
Self-check A member state bans the sale of a German liqueur because its alcohol content is lower than national rules require for that drink. Which judgment applies most directly?
- Cassis de Dijon: mutual recognition, unless a mandatory requirement justifies the rule
- Costa v ENEL: the national rule is void
- Francovich: the state must pay damages
- Keck: it is a selling arrangement outside Article 34
Answer: Cassis de Dijon: mutual recognition, unless a mandatory requirement justifies the rule. A rule on the composition of the product is a product requirement, not a selling arrangement, so Keck does not apply. These are close to the facts of Cassis de Dijon. Francovich and Costa concern state liability and supremacy, not the scope of Article 34.
4The method for a problem question
Most problems ask whether a person can rely on EU law in a national court, or whether a national rule is compatible with the Treaties.
- Identify the EU provision and its type: a Treaty article, a regulation or a directive.
- Direct effect: is it clear, precise and unconditional? For a directive, has the transposition deadline passed?
- Who is the defendant? The state or an emanation of the state (vertical), or a private party (horizontal)? Directives work only vertically.
- If direct effect fails: try indirect effect (interpret national law in line with EU law), then state liability (Francovich).
- For a single market rule: which freedom is engaged, is there a restriction, and can it be justified (Treaty grounds or mandatory requirements) and is it proportionate?
- Procedure: should the national court make a preliminary reference? Conclude in one sentence with the leading cases.
5A worked example
Read the facts, then open the steps one at a time. Try to reach each conclusion yourself first.
Worked exampleAn EU directive gives workers a clear, unconditional right to 20 days of paid leave. The deadline for transposition has passed and the Netherlands has not transposed it. Sara works for a public hospital run by the state; Tom works for a private shop. Both are refused leave. Can they rely on the directive?
1The right is in a directive. A directive must be transposed by a deadline; here the deadline has passed without transposition.
2The right is clear, precise and unconditional (Van Gend en Loos), and the deadline has passed (Ratti). The provision is capable of direct effect.
3A public hospital run by the state is the state or an emanation of the state (Foster v British Gas). This is vertical direct effect, so Sara can rely on the directive in a Dutch court.
4The shop is a private party. Directives do not have horizontal direct effect (Faccini Dori), so Tom cannot rely on the directive against his employer directly.
5The Dutch court must interpret Dutch law as far as possible in line with the directive (Marleasing). If that fails, Tom can sue the Netherlands for damages: a complete failure to transpose is a sufficiently serious breach (Francovich, Dillenkofer).
Answer Sara can rely on the directive against the state hospital. Tom cannot use it against the private shop, but has indirect effect and state liability as alternatives.
6Common mistakes
- Giving a directive horizontal direct effect against a private party. Use indirect effect or state liability instead.
- Relying on a directive before its transposition deadline has passed.
- Confusing the Council of the EU (ministers, legislates), the European Council (heads of government, political direction) and the Council of Europe (a separate organisation that made the ECHR).
- Thinking a national court can declare an EU act invalid. Only the Court of Justice can (Foto-Frost).
- Accepting an economic aim, such as protecting national producers, as a justification under Article 36.
- Forgetting that the Charter binds member states only when they are implementing EU law (Article 51).
Self-check A consumer sues a private company, relying only on a consumer directive that the state has not transposed after the deadline. What is the likely result?
- She cannot rely on the directive itself against the company
- She must first bring infringement proceedings under Article 258
- She succeeds, because EU law is supreme over national law
- She succeeds, because the deadline has passed
Answer: She cannot rely on the directive itself against the company. These are the facts of Faccini Dori: directives cannot of themselves impose obligations on private parties. The passed deadline only allows vertical effect. Article 258 is the Commission's procedure, not one for individuals.
7How exam questions look
- Easy: key terms and facts. For example: which institution proposes legislation, what a regulation or directive is, which TFEU article covers which freedom.
- Medium: applying the concepts. A scenario about supremacy, direct effect, a preliminary reference, a trade restriction or competition law, where you choose the correct result.
- Hard: cases and analysis. The facts of a leading case (Van Gend en Loos, Francovich, Keck, Plaumann, Zambrano…) and you choose what the Court held and why.
Learn the article numbers that come up most: 4(3) and 50 TEU; 30, 34, 36, 45, 49, 56, 101, 102, 258, 263, 267 and 288 TFEU. Many easy questions only test whether you link the right number to the right rule.
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