Remedies Before National Courts

This chapter is concerned with the decentralized enforcement of European Union law, that is, the way in which national courts uphold the rights it confers on litigants. When the Court of Justice established in Van Gend en Loos that Union law was capable of conferring on litigants rights which the national courts were bound to protect, it had written only the first sentence (albeit a very striking one) of a long and complex story that remains unfinished. For while the Court in Van Gend en Loos had enlisted the help of the national courts in ensuring that Union law was observed, it had not made clear how exactly it expected them to discharge that responsibility. The Union legislature might have attempted to resolve the issue systematically and today there is a significant body of Union legislation dealing with the remedies national courts must provide in discrete areas. However, such legislation was slow to develop and remains piecemeal in nature. This has meant that much of the responsibility for fleshing out the remedial obligations of national courts when seeking to uphold rights granted by Union law has fallen to the Court of Justice.

The Decision-Making Process

A main feature of the European Union’s constitutional arrangements, as laid down in the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), is the organization of the rules governing external policies around the theme of integration. This is illustrated in different ways. First, the external policies of the Union are all part of what the Treaties describe as the Union’s ‘external action’. Terms such as ‘external policies’ or ‘actions’ are avoided. Instead, the choice of the reference to ‘external action’ signifies the design of the EU’s foreign affairs as a coherent whole.

The Open Method Of Coordination: Obstinate Or Obsolete?

Policy coordination in one form or another has been a feature of EU governance for the past two decades. Developing initially as a mechanism through which to coordinate national economic policies in the shadow of economic and monetary union (EMU), and extending to the coordination of employment policies through the European Employment Strategy, by the 2000s, policy coordination was being heralded as a new form of governance to be deployed to achieve the aims of the Lisbon Strategy of economic and social reform. Indeed, such was the interest in this new form of EU governance, it even acquired its own distinctive nomenclature—the ‘open method of coordination’ (OMC).

The European Central Bank

The provisions on Monetary Union (MU), of the Treaty on the functioning of the European Union (TFEU or the Treaty), as well as the Statute of the European System of Central Banks and of the European Central Bank (the Statute), are important in their own right, and are amongst those from which any student of the European Union (EU) can learn a great deal with regard to the EU.

Mixed Agreements: The EU Law Fundamentals

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

The Union Budget And The Budgetary Procedure

The shape and content of the EU budget define what the EU wants to be, what it can actually do, its nature, and its aspirations. As often happens with the EU, much depends on the terms of comparison: the Union budget, which is slightly higher than 1 per cent of the EU Gross National Income (GNI), is much smaller than the budgets of most Member States but, at the same time, it is three times bigger than that of the United Nations. Its size and, even more so, the EU procedures which set its expenditures—apart from its revenues—reveal that the EU aims to be something different from a mere international organization.

The Principle of Proportionality

The principle of proportionality is the most oft-invoked and, in terms of its role in constitutional adjudication, the most influential principle of EU law. The principle was developed in continental legal systems, especially in Germany and France, in the twentieth century. Even at an early stage in the development of EEC law, proportionality had already been pronounced by the Court of Justice to be a fundamental principle deriving from the rule of law and requiring in particular that ‘the individual should not have his freedom of action limited beyond the degree necessary in the public interest’.

Decentralized Implementation

The European Union (EU) ‘agencification’ process is a story of success. European agencies are relied on in an ever-wider variety of sectors, ranging from the internal market to economic and social regulation. Over the past two decades, they have acquired increasing practical importance, both as an institutional phenomenon and as a method of policy delivery. Unsurprisingly, their functional and normative significance has become central in the institutional discourse and has caught the attention of European legal scholars.

Supranational Differentiation and Enhanced Cooperation

The ‘unity dogma’ has long characterized European law discourse. In many of its landmark judgments, the European Court of Justice had recourse to the ‘unity argument’—such as in Costa v ENEL, where the Court stated that ‘the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty’. Unilateral national deviations could not be tolerated without the common rules ‘being deprived of their character as Community law and without the legal basis of the Community itself being called into question’. Other expressions of the ‘unity dogma’ include the principle of non-discrimination or the uniform composition of EU institutions. This contribution demonstrates that the asymmetric non-participation of some Member States in selected policy areas can be embedded into the supranational legal order. The main danger seems to be a structural weakening of political legitimacy.

Sincere Cooperation and Respect for National Identities

Article 4 of the Treaty on the European Union is a core provision to understand the ‘federal’ nature of the European Union. It is composed of three paragraphs, any of which tries to strike a balance between the constitutive units of the composite legal order, namely the EU, on the one hand, and the Member States, on the other. The first paragraph enshrines the so-called ‘principle of presumed Member States competences’, according to which competences not conferred upon the EU remain to the Member States. The second paragraph requires the EU to respect Member States’ national identities, inherent in their fundamental political and constitutional structures. The third paragraph enshrines the principle of sincere cooperation. In this respect, all the paragraphs express a sort of ‘federal concern’. Article 4(1) TEU is devoted to the vertical division of competences and strengthens the respect of the principle of conferral, Article 4(2) TEU is devoted to the identities of the Member States of the EU thus protecting diversities in the composite legal order, and Article 4(3) TEU is devoted to loyalty, which, like in many federal or compound legal orders, should inform the cooperation among levels of government.