European law

UNCLOS.

Clashes between EU primary law

Given that the EU primary law prevails over secondary law and national one, it has to be noticed

that there are also cases in which EU primary norms can be in contrast. These cases have to be

solved only by the ECJ that can be triggered by domestic judges that are required to properly

implement EU law.

An example of possible clash between EU primary law is the tension between fundamental rights,

that had happened in two cases:

1) Schmidberger case (C-112/00, 2003): whereby a German company claimed the violation

committed by Austria of the free movement of goods (protected in TFEU) because of a

manifestation for the protection of local enviroment in occasion of a Brenner motorway, authorized

by Austrian authorites. On the other hand, Austria stated that the manifestation authorized pursued

legittimate interest and that it had to be permitted in order to safeguard the right to manifest,

guaranteed by Austrian constitutional law.

The ECJ confirmed that the free movement was limitated by Austrian authorites that have breached

art.44 of TFEU. However, the ECJ, clarifying that those rights are not just national rights but they

have to be considered as EU rights because they are recognized by the ECHR (adopted within the

Council of Europe) that has a special significance, established also that a limitation of a

fundamental freedom can be justified. Indeed, the Court, having regard to the fair balance between

the norms at stakes, that are norms of EU primary law (the free movement of goods and the rights to

manifest and to reunion) and that are not absolute rights, decided that the Austrian measure wasn’t

lawful. Thus, the limitation of the free movement of goods is not completely unbearable, in order to

provide the free manifestation that, otherwise, cannot be supplied.

2) Omega case (C-36/02, 2004): that concerns on one hand the freedom to provide services and on

the other hand the public order, integrated by human dignity (protected by national constitution).

The ECJ, inspite of the recognition of the fact that the public order and the human dignity stand for

national constitution, said that those rights have to be considered in light of EU primary law.

Moreover, also in that occasion, the Court, in light of the fair balance and applying the

proportionalty test, decided that fundamental rights, standing for national constitution, could

represent a limitation of a EU market freedom.

How the EU primary law can be amanded

Art.48 TEU

According to art.48 TEU, the Treaties may be amended in accordance with an ordinary revision

procedure or with a simplified revision procedures.

1) Ordinary revision procedure

The Government of any Member State, the EU Parliament or the Commission may submit to the

Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either

to increase or to reduce the competences conferred on the Union in the Treaties. These proposals

shall be submitted to the EU Council by the Council and the national Parliaments shall be notified.

The EU Council:

- After consulting the EU Parliament and the Commission, can adopt, by a simple majority, a

decision in favour of examining the proposed amendments and so the President of the EU Council

shall convene a Convention, composed of representatives of the national Parliaments, of the Heads

of State or Government of the MSs, of the EU Parliament and of the Commission. The ECB shall

also be consulted in the case of institutional changes in the monetary area. The Convention shall

examine the proposals for amendments and shall adopt by consensus a recommendation to a

conference of representatives of the governments of the MSs as provided for in paragraph 4. That

obligation to convene a Convention is not mandatory and it is an innovation introduced by the

Lisbon Treaty, because it had been adopted in two cases related to:

. Adoption of the Charter of fundamental right;

. Adoption of the Constitutional treaty.

- After obtaining the consent of the EU Parliament, the EU Council may decide, by a simple

majority, not to convene a Convention should this not be justified by the extent of the proposed

amendments. In the latter case, the EU Council shall define the terms of reference for a conference

of representatives of the governments of the MSs.

In both of the situations an intergovernmental conference of representatives of the governments of

the MSs shall be convened by the President of the Council for the purpose of determining by

common accord the amendments to be made to the Treaties and so in order to ensure a final result

capable of considering the interest of all the major political actors.

The amendments shall enter into force after being ratified by all the MSs in accordance with their

respective constitutional requirements. If, two years after the signature of a treaty amending the

Treaties, four fifths of the Member States have ratified it and one or more MSs have encountered

difficulties in proceeding with ratification, the matter shall be referred to the EU Council.

2) Simplified revision procedure

This procedure can be applied only in order to modify the third part of the TFEU, concerning the

EU polices, with the general limitation, whereby that procedure cannot be used to extend or to

modify the competence of EU.

Pursuant to the simplified revision procedure, the Government of any MS, the EU Parliament

or the Commission may submit to the EU Council proposals for revising all or part of the

provisions of Part Three of the TFEU relating to the internal policies and action of the Union.

The EU Council may adopt a decision amending all or part of the provisions of Part Three of

the TFEU.

The EU Council shall act by unanimity after consulting the EU Parliament and the

Commission, and the ECB in the case of institutional changes in the monetary area. That

decision shall not enter into force until it is approved by the MSs in accordance with their

respective constitutional requirements.

The decision (that from a formal point of view is a decision taken by EU institution, whereas

from a substantive point of view is a treaty) shall not increase the competences conferred on

the Union in the Treaties.

Limitation on the revision power of EU primary law

- General limitation

According to the ECJ there are some elements of the EU law that represent supraconstitutional

elements that cannot be amended. For instance, the protection of human rights, the principle of

conferral or the institutional balance (conferral+loyalty).

- Specific limitation

With regard to the extention of EU competence.

Clashes between international and constitutional dimension of EU law

The international dimension will prevail in cases:

- Infringment procedure: started by EU Commission against the MS which breaches the limitations

of the revision power;

- Amandment of EU primary law outside art.48.

Jurisdiction of ECJ

- The ECJ has not jurisdiction over the validity of treaty concluded according to the ordinary

revision procedure (ex art.48): because it is the result of the sovreign power of MSs;

- The ECJ has jurisdiction over decision resulted from the simplified revision procedure: indeed,

even though we have said that, from a substantive prospective, those decisions are treaties

concluded by MSs, from a formal point of view they are legal act of EU institutions and so EU

secondary law (over which ECJ has jurisdiction). This is confirmed by the Pringle case (2012),

decided in a plenary section, related to the decision of the EU Council modifyng art.136 TFEU.

This modification of EU primary law had the aim to allow MSs to establish the European Stability

Mechanism. The argument of Mr Pringle was that that change of competence was not possible

because the ESM was considered by Mr Pringle as an instrument of the monetary policy (that is an

exclusive competence of the EU) and not of economic cooperation. The final solution elaborated by

the ECJ was that the decision was valid because, even though there are monetary implications, the

central gravity of the change is within the economic cooperation. This solution is the very same

argument of the Gauweiler case (C-62/14) on OMT that was decided after Pringle.

Fundamental values of the EU legal order

Art.2 TEU (“The Union is founded on the values of respect for human dignity, freedom, democracy,

equality, the rule of law and respect for human rights, including the rights of persons belonging to

minorities. These values are common to the Member States in a society in which pluralism, non-

discrimination, tolerance, justice, solidarity and equality between women and men prevail.”)

clarifies the fundamental legal basis of the EU legal order. Those values have:

- Political relevance;

- Legal force: meaning that the failure of the respect of these provisions may cause legal

consequences, illustarted by art.7 that introduces a qualified infringement procedure valid for a

violation of the values included in art.2. That is a political infringement, due to the fact that the

assessment is realized among peers, and it is a free step procedure:

1) First step: related to the early warning to state that clearly risks to seriously breach values of

art.2. The first paragraph of art.7 indeed states that, on a reasoned proposal by one third of the MSs,

by the EU Parliament or by the EU Commission, the Council, acting by a majority (very qualified

majority) of four fifths of its members, after obtaining the consent of the EU Parliament, may

determine that there is a clear risk of a serious breach by a MS of the values referred to in art.2.

Before making such a determination, the Council shall hear the MS in question and may address

recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made

continue to apply.

2) Second step: the EU Council, acting by unanimity on a proposal by one third of the MSs or by

the Commission and after obtaining the consent of the EU Parliament, may determine the existence

of a serious and persistent breach by a Member State of the values referred to in art.2, after inviting

the Member State in question to submit its observations.

3) Third step: where a determination under paragraph 2 has been made, the Council, acting by a

qualified majority, may decide to suspend certain of the rights (indeed it is not possible to expel the

state, as happened in other situations) deriving from the application of the Treaties to the Member

State in question, including the voting rights of the representative of the government of that

Member State in the Council. In doing so, the Council shall take into account the possible

consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be

binding on that State.

It has to be noticed that art.7, in particular paragraph 1, has been trigged for the first time in

September 2018, thanks to the decision of the EU Parliament against Hungary (that in