Catherine Barnard, Trinity College, Cambridge*
EU law is a captivating field of study that offers something for everyone, particularly those interested in politics, visionary thinking, and pragmatic solutions. Even if these aren’t your primary interests, it’s essential to study EU law due to its mandatory nature. However, it’s unlike any other legal system you may have encountered, defying categorization and fitting into no single box.
Before diving in, it’s helpful to reflect on your existing political perspectives on the EU. Every student approaches the subject with their own biases, so acknowledging your stance will enhance your engagement with the legal debates and potential future developments. Be prepared for your viewpoints to shift as you delve deeper, as EU law and politics are inherently intertwined. Studying this field may even lead to a complete reversal of your opinions on the EU as a political entity.
Most courses commence with an overview of EU institutions, which may not be initially captivating for many. However, persevere, as these institutions are the fundamental building blocks of the EU system. The European Commission proposes laws, the European Council wields considerable power over major decisions, and the European Parliament shares legislative authority with the Council of Ministers, composed of ministers from all 28 Member States. A significant portion of your studies will focus on the Court of Justice and its influence.
To gain a deeper appreciation for these institutions, consider visiting them in person or exploring their websites and live-streamed parliamentary debates. Instead of viewing them as mere buildings, envision them as dynamic entities comprised of individuals navigating international affairs and grappling with contemporary challenges like the Eurozone crisis, refugee crises, climate change, and unemployment.
The institutions become particularly engaging when considering their roles and effectiveness. While the European Parliament holds significant power, voter turnout in the 2014 elections was a mere 43% across the EU and 60% in the UK. This raises questions about the EU’s democratic deficit and whether it is truly less democratic than many of its Member States. Is it appropriate to judge the EU by the same standards as a sovereign state? Can it even be considered a state, and should it aspire to be one?
The EU’s foundational treaties have been amended multiple times throughout history. Try to grasp the key changes introduced by each treaty, providing historical context and insights into past decisions. The Maastricht Treaty of 1992 brought about significant alterations, particularly the provisions on Economic and Monetary Union. Another crucial change came with the Lisbon Treaty, which reorganized the existing treaty into two equally important treaties: the Treaty on European Union (TEU) containing constitutional provisions like guiding principles and power allocation, and the Treaty on the Functioning of the European Union (TFEU) outlining operational principles such as free movement regulations and access to the Court of Justice.
One common challenge for students, and anyone involved with EU law, is navigating the numbering changes to treaty provisions resulting from amendments. Initially, new provisions were labeled A, B, etc., but this approach was deemed insufficiently transparent. As a result, the EU renumbered all treaty provisions, not once but twice, with the Amsterdam Treaty in 1997 and the Lisbon Treaty in 2009. Consequently, Article 34 TFEU concerning the free movement of goods was originally Article 30 EEC, then Article 28 EC. While unhelpful, particularly when studying older cases, destination tables in statute books and leading textbooks can assist in deciphering these changes. The current practice is to use the Lisbon numbering even when discussing past cases.
The Court of Justice plays a significant role in EU law and comprises three courts: the Civil Service Tribunal handling appeals from EU staff cases, the General Court addressing competition cases and direct actions on EU law validity, and the Court of Justice of the EU hearing all other cases. The citation of cases has recently been updated, and a summary of these changes is available online. The Court of Justice convenes in Chambers of three or five judges, as the Grand Chamber, or in rare instances, as the Full Court. Typically, more significant cases are heard by the Grand Chamber or the Full Court.
Judgments from the Court of Justice differ from those of common law courts, featuring a single judgment without dissenting or concurring opinions. Cases are generally more concise, with a helpful summary, known as the dispositif, outlining the Court’s decision at the end. In preliminary reference cases, where national courts seek clarification on EU law, the judgment’s early sections often detail key facts and relevant EU and national law provisions. The Court then addresses the national court’s questions, though the case’s ultimate outcome may not always be explicit. This ambiguity is intentional, as the Court of Justice interprets EU law while national courts apply those interpretations to specific situations. In significant or complex cases, the Court of Justice may overstep its bounds, advising the national court on the justification and proportionality of national law, potentially leading to case settlements before a final hearing in national courts.
To gain a comprehensive understanding of a case, consider reading the Advocate General’s (AG) ‘advisory’ Opinion. This opinion resembles a common law judgment, albeit non-binding, presenting one judge’s perspective on the case’s resolution. While the Court is not obligated to follow the AG’s opinion, it does so in approximately 70% of cases. Some AG’s Opinions are regarded as landmark judgments, such as AG Jacobs’ Opinion in Case C-50/00P UPA v. Council.
The Court of Justice is often perceived as an activist court, issuing surprising rulings that push legal boundaries. While some view this label as criticism, it’s important to acknowledge that the Court often operates within an incomplete framework. The Treaty lacks comprehensive rules, requiring the Court to shape the system based on an understanding of broader EU goals, such as a functional single market. Consider how you would rule if you were in the Court’s position. Remember that the Court’s working language is French, but cases can be presented in any of the EU’s 24 official languages, requiring the Court to interpret legislation accordingly.
One of the Court’s most challenging tasks is balancing the relationship between the EU and its Member States, particularly concerning their respective powers. Consequently, numerous Court decisions impact the actions of both. Each time the EU identifies a national rule violating EU law, such as Article 34 TFEU on the free movement of goods, it encroaches on Member States’ regulatory autonomy and empowers the EU to regulate those matters. These politically sensitive decisions directly affect the actions of democratically elected governments, exemplified by headlines like “Court of Justice orders the UK/Scotland to halt minimum alcohol pricing.”
A primary focus of undergraduate courses is the EU Charter of Fundamental Rights. Adopted in 2000 and legally binding since 2009, the Charter has significantly impacted EU law, though perhaps not to the extent its proponents envisioned. It has invalidated EU law provisions and shaped interpretations, both positively and negatively. However, it has limitations, including the misnamed UK opt-out. You will dedicate considerable time studying these limitations.
While the Charter incorporates rights from the European Convention on Human Rights (ECHR), these documents belong to distinct systems. The ECHR, a product of the Council of Europe, is adjudicated by the Court of Human Rights in Strasbourg and applies to 47 states, including the 28 EU Member States. The Charter applies to EU institutions and Member States implementing EU law, interpreted by the Court of Justice in Luxembourg. A recent attempt by the EU to accede to the ECHR was rejected by the Court of Justice.
Another key topic is EU citizenship, held by all nationals of Member States. You will explore its practical implications, such as whether it holds rhetorical value or grants substantive rights, particularly for marginalized communities. Additionally, you’ll examine the implications of EU citizenship on securing employment or claiming benefits in other Member States.
These questions and many others are relevant to the UK referendum campaign. Studying EU law will equip you with the knowledge and understanding to participate in these debates effectively. You’ll gain a nuanced perspective on the EU’s purpose and challenges, recognizing that the referendum’s outcome will have long-lasting consequences. Engage with these issues by reading, listening to speakers, attending seminars, participating in discussions, and campaigning.
To fully enjoy EU law, it’s crucial to read articles and opinion pieces due to the dynamic nature of the field and its ever-evolving debates. Numerous dedicated academic journals and online resources cover EU law, including websites, Twitter feeds, and blogs maintained by EU institutions. The Financial Times provides excellent news and commentary on EU matters.
However, be wary of misinformation, which extends beyond myths like bendy bananas. The Daily Express headline “Teach Boys to Dust says EU: Barmy Brussels latest call for gender equality” exemplifies this issue. While the UK Representative of the European Commission addresses such euromyths, it’s prudent to approach all reports with a healthy dose of skepticism.
For exams, remember key distinctions: the Advocate General is not the Attorney General, Francovich is not Francovitch, direct effect differs from direct concern, and the Court of Justice convenes in Luxembourg, not Strasbourg. Mastering these fundamentals will lay a solid foundation for your studies.
Above all, remember the excitement and dynamism of EU law. It’s a constantly evolving field, with the EU’s future uncertain. As one former student aptly noted, “At times this seems a bit overwhelming, but reframing it as an opportunity for debate makes it a really rewarding subject.” Enjoy the journey!
*Thanks to George Apps, Alicia Hinarejos, Amy Ludlow, Steve Peers, and Emmeline Plews for their thoughts and comments.