Web-Companion Essential EU Law in Text: Suggested solutions to the exercises

Please find hereinafter the suggested solutions to the 64 exercises contained in the book "Tobler/Beglinger, Essential EU Law in Text, 5th edition, HVG-ORAC 2020, ISBN 978-963-258-490-4".  To give you an idea how the exercises in the book are phrased, they have been added for the first three instances. Any comments or feedback are welcome.

Showing only entries concerning chapter Part 1, C. VI. 2.. View all entries

The institutional framework of the EU – Exercise 2

Page: 32 Chapter: Part 1, C. VI. 2.

Suggested solution:

a) The statement compares the Commission to the engine room of e.g. a large ship, i.e. the element that keeps the ship going. This refers to the important role of the Commission in the development of the EU’s secondary legislation (legislative plans, proposals etc.). It may also refer to the Commission’s role as a watchdog (i.e. enforcement proceedings, investigations in competition law), which makes sure that EU law is actually respected. It should be added that the Commission is not the only institution in charge of strategic thinking within the EU. Indeed, at the top political level, strategy is the particular responsibility of the European Council. In fact, it appears that the European Council is increasingly displacing the Commission as engine room, especially with the legitimacy that it now has after the Lisbon revision.

[Relevant Charts: Chapter 3, in particular Chart 3/5]

b) According to this statement, the main integration force in the Communities (and later the EU) is the Court of Justice, rather than other institutions. It is undoubtedly true that the ECJ plays an extremely important role in this context, as it is based on its case law that important doctrines of Community law (now: Union law) were developed.

The statement compares the ECJ to the emperor in the famous Danish writer Christian Andersen’s fairy tale “The Emperor with no clothes”. In the story, the emperor parades his new clothes which, according to the makers, are extremely beautiful and precious but invisible to the uninitiated. In fact, there are no such clothes and the emperor is naked. Is the ECJ naked when handing down judgments such as on the existence of direct effect of EU provisions (Van Gend en Loos), indirect effect (von Colson and Kamann), primacy (Costa), Member State liability (Francovich) and, more recently, on the meaning of EU citizenship (Baumbast and others) – all of which decisions that led to outcomes that do not spring to the eye when looking at the wording of the relevant provisions? Critiques will say yes, but the Court asserts that it limits itself to finding that which is implied in the law, thus keeping within the limits of its powers (and of the limits of the principle of conferral of powers to the EU as a whole). In a broader context, it may be argued that the Court simply applies the interpretation rules of the Vienna Convention on the Law of Treaties. According to Art. 31 of this Convention, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The statement further indicates that in practice, the Court’s approach so far has always been accepted. There are very few exceptions to this. An example is the famous case of Daniel Cohn-Bendit (today an important Member of the European Parliament), where a French court refused to accept the direct effect of a provision of an EEC directive (formally, the Cohn-Bendit case has been revoked only very recently, in the decision of the Conseil d’Etat of 30 October 2009 in the case Perreux). Another issue where the ECJ’s approach is not fully accepted, at least in theory, is the extent of the doctrine of primacy where certain Member States pose limits. Readers may use the statement to recall the relevant national case law (e.g. the reservations expressed by Italy and Germany in relation to the protection of human rights). Finally, in certain cases the Member States have responded to ECJ case law by adopting Protocols or secondary law on a particular issue (e.g. in the fields of social law and of employment law).

[Relevant Charts: Chapter 3, in particular Charts 3/10-3/11, further Chart 1/9 and Charts 6/1-6/2]

c) and d): These are two contradictory statements about the European Parliament, each of which exaggerates one side of the truth. The statements invite reflections on the functions of the EP. However, in the particular case of the EP, it is not sufficient to merely list these functions under the present law. Rather, it is important to state that these functions have developed very significantly through Treaty revisions. They changed the EP from a rather powerless institution that played a merely monitoring and – in the context of secondary legislation – consultative role to a much more powerful institution which, in the ordinary legislative procedure, acts as a co-legislator with the Council of Ministers. Parliament is not, however, the legislator within the meaning of the national systems of the Member States. Readers may use the two statements to recall this development and to list the functions of the EP today, in particular in relation to the EU budget, the appointment of the Commission and the making of secondary law.

An interesting concrete example of the EP’s present position concerns the European External Action Service (EEAS). In relation to the creation of the EEAS, the EP has a merely consultative function Art. 27(3) TEU). However, the EEAS will need its own budget, and legislation on this needs to be approved by the EP. In this context, therefore, the EP has a de facto veto right.

[Relevant Charts: Chapter 3, in particular Chart 3/5, further Chart 5/3]



Published: 13 July 2020