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Chapter 1Essay question
The European Union has been criticized as 'undemocratic'. Critically evaluate the
accuracy of this assessment by reference to the composition of the EU
institutions and their respective powers in relation to law-making within the EU.
You should begin by exploring the meaning of 'undemocratic' or 'democracy'.
Definitions may vary, but are likely to include the idea that democracy relates to
the engagement of citizens with political and law-making processes. This
operates through their right to select and reject, in the electoral process, the
persons whom they consider will best represent their interests in formulating law
and policy.
The answer requires consideration of each of the EU law-making
institutions, the European Commission, the Council, and the European
Parliament, including their composition and powers.
The European Commission: not directly elected by citizens. Describe its
composition, how Commissioners are appointed. Next consider the
Commission's input into law-making and its power to initiate and draft
proposed secondary legislation. You are likely to conclude that the
Commission is not democratically appointed but has considerable power in
the making of law and policy in the European Union, indicating that its
composition and functioning is undemocratic. Consider the changes that
would be effected by the Treaty of Lisbon.
The Council: not directly elected by citizens. Do citizens nonetheless have
some influence over the appointment of members of the Council? Describe
the composition of the Council and how Council members are appointed. You
might argue that there is an element of democracy in appointment in that
the Council comprises ministers of the Member States who in many cases
will have been indirectly chosen through national democratic processes. As
to the Council's powers in law- and policy-making, these are considerable.
Consider in outline the main law-making procedures, pointing out that the
Council has extensive input into the framing of secondary legislation, as well
as the ultimate power to approve it. You should also consider how far voting
in the Council can be considered democratic. This entails discussion of
unanimity, simple majority, and qualified majority voting and the extent to
which these voting methods provide for representative decision-making.
Consider the changes that would be effected by the Treaty of Lisbon.
The European Parliament: the only EU institution that is directly elected
by Union citizens but, arguably, the institution that holds the least power.
You should evaluate the input of Parliament into the main legislative
procedures – consultation, cooperation, co-decision, and consent. It is
important to trace the development of Parliament's power from the
beginnings of the EU. Originally, Parliament had the right merely to be
consulted on secondary legislation but its input was increased as the
cooperation and then the co-decision procedures were introduced and as co-
, decision was gradually extended to more policy areas. You should also
discuss the control that Parliament exerts over the executive through its
power to approve the President of the Commission and the Commission; its
power, by vote of censure, to dismiss the entire Commission; its powers of
scrutiny, including the ability to question Commissioners orally or in writing;
and its power to reject the annual budget. Finally, consider the changes that
would be introduced by the Treaty of Lisbon.
In conclusion: the fact that the European Parliament, the only directly
elected EU institution, holds the least power supports the view that the EU is
lacking in democracy. However, with the introduction of co-decision and its
extension to more policy areas by amending Treaties, this democratic deficit
is being gradually addressed and, if the Treaty of Lisbon eventually enters
into force, the 'democratization' of the European Union is being progressed
still further.
Chapter 2
Essay question
Trace the development of the principles of direct effect, indirect effect, and state
liability by the Court of Justice, evaluating their significance for individual
claimants.
Your answer should address direct effect, indirect effect, and state liability in turn,
with relevant analysis and evaluation as you go along. As all three doctrines were
created by the Court of Justice, the case law will feature strongly, as the question
itself indicates. You should begin by reference to the doctrine of supremacy,
which forms the basis of the three principles.
Supremacy of EU law
Sovereignty of the Community (now EU) legal order: 'The Community
constitutes a new legal order in international law, for whose benefits the
states have limited their sovereign rights, albeit within limited fields . . .'
(Van Gend) '. . . the EEC Treaty has created its own legal system which
became an integral part of the legal systems of the Member States . . .'
(Costa v ENEL).
The corollary of EU sovereignty is the supremacy of EU law: EU law takes
precedence over national law (Costa v ENEL, Internationale
Handelsgesellschaft,Simmenthal, Factortame II).
Direct effect
Meaning of 'direct effect: set out a definition – if a provision of EU law is
directly effective, it can be invoked by individuals in the national court.
The principle is not contained in the Treaty. Trace its development by the
Court of Justice, discussing Treaty articles, regulations, directives.
Treaty articles
, Van Gend: Creation of the principle. Treaty articles capable of direct effect.
The Treaty is not only an agreement creating obligations between Member
States. EU law imposes obligations upon individuals and confers on them
legal rights.
Direct effect of Treaty articles: subject to the conditions first formulated
in Van Gend(measure must be sufficiently clear, precise, and unconditional
and its implementation must not be dependent upon any implementing
measure), then subsequently reworked and loosened, for instance
in Defrenne (the measure must be sufficiently clear, precise, and
unconditional).
Van Gend: Treaty articles capable of vertical direct effect (explain) but the
question of their horizontal direct effect (explain) was left unresolved.
Defrenne : Treaty articles can be invoked horizontally.
Since Van Gend and Defrenne: numerous Treaty articles held to be vertically
and horizontally directly effective, including the internal market provisions.
Significance for individuals: ability to invoke, in the national court, Treaty
rights against the state and other individuals.
Regulations
Regulations: capable of vertical and horizontal direct effect, subject to the
same conditions as are applied to Treaty articles (Politi, Leonesio).
Directives
Article 288 TFEU: directives must be implemented into national law.
Originally not thought to be capable of direct effect: not intended to
operate as law within national systems, since that is the role envisaged for
the relevant national implementing measures; addressed to Member States
and do not appear to affect individuals directly; seen as giving Member
States a broad discretion in implementation, being binding only as to the
result to be achieved, and therefore considered to be insufficiently precise
to fulfil the Van Gend criteria.
Van Duyn: directives can be directly effective, provided clear, precise, and
unconditional.
Ratti: additionally, the implementation deadline must have passed.
Rationale: it would be unfair to permit a directive to be invoked against a
Member State until its obligation to implement had become absolute. By the
same token, it would be unfair to allow a Member State to rely on its failure
to implement a directive to escape obligations arising under it.
Van Duyn did not address the possible horizontal direct effect of directives.
Marshall: directives can only be invoked vertically against the state or a
public authority, but not horizontally. Reiterated in Faccini Dori.
Court of Justice's refusal to permit directives to be invoked horizontally
frequently criticized as anomalous and unfair. In the employment context,
for instance, individuals employed by the state or a public body can invoke
rights under a directive against their employer, whilst those working for
private employers cannot.
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