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THE EU TREATIES AND THE CHARTER OF FUNDAMENTAL RIGHTS A COMMENTARY

The EU Treaties and the Charter of Fundamental Rights A COMMENTARY

EDITED BY

MANUEL KELLERBAUER MARCUS KL AMERT and JONATHAN TOMKIN

3

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford.

It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2019 The moral rights of the authors have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018951257 ISBN 978–​0–​19–​879456–​1 Printed in Italy by L.E.G.O. S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Foreword The establishment of a European Union, which according to Article 1 TEU is intended to create ‘an ever closer Union among the peoples of Europe’, is being threatened from within. And the most serious threat is to the rule of law in Europe and the effectiveness and uniformity of the application of EU law in all the Member States.

A first attack on the rule of law has been directed at the values that constitute the very foundations of the Union as laid down in Article 2 TEU. The immediate victim of the second attack is each citizen of the European Union who risks being prevented from exercising the rights that he or she derives from EU law on the same terms.

The foregoing observations make it clear why this book is of paramount importance at this time. Explaining to the citizens of the European Union (and not only lawyers) how the goals, values, principles, competences, institutional machinery, and procedures of the European Union are shaped is nowadays an urgent task.

At the turn of the 20th century, Sir William Osler noted that ‘The greater the ignorance the greater the dogmatism’. Too many important decisions having immense impacts on the lives of millions of people in Europe and elsewhere have arisen out of pure ignorance and ensuing dogmatism. This book helps to fill an important gap in the general knowledge of the constitutional and institutional framework of the European Union.

This book will be of great value not only to scholars and students, judges and practitioners, civil servants and company lawyers, legislators, policy makers and business people. In general, all citizens wishing to find out more about the Union, its objectives and mechanisms, the decision-​making practice of the European Commission and the most relevant case law of the Court of Justice of the European Union, may find an answer in the pages that follow.

Written by distinguished academics and members of the Commission’s Legal Service, some with past experience in private practice in member and non-​member States, the book is exemplary in its structure, format and content.

First of all, it gives a complete picture of all the main issues concerning the constitutional provisions of the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights of the European Union (the Charter). They are presented in a comprehensive manner, which assists the reader on a wide range of matters falling within the scope of what is currently known as the ‘EU legal order’.

That legal framework is no longer a mere tool for developing trade and strengthening economic integration between Member States. It encompasses nowadays a wide array of matters typically pertaining to a true constitutional legal order: a common currency, Union citizenship and a common area of freedom, security and justice, a division of competences and powers and a number of principles governing that division, a formal catalogue of fundamental rights, a sophisticated institutional machinery, a set of policies to be pursued by the political authorities, an international legal personality, and an embryo of foreign and security policy in the international arena.

This book contributes to a better understanding of the meaning and scope of the constitutional provisions that govern the Union and how they are applied.

vi

Foreword

Second, the commentaries are written in a clear and concise manner accessible to any normally informed person. Moreover, the reader may easily find his or her way to further, more specialized, readings that complete the information already provided in the commentaries.

Indeed—and this is another quality of the book—each Commentary is preceded in general by useful information relating to a ‘Selected bibliography’ and ‘Essential case l​ aw’, as well as, where appropriate, a table of contents and a listing of the main legal acts or instruments of ‘soft law’ (Commission notices and communications, guidelines, action plans, etc.). There is also an introduction, overview and selected bibliography for each title or chapter of the Treaties and the Charter. The commentaries further rightly set out widely recognized academic legal writings and appropriately build upon them in order to reach their conclusions.

In addition, the texts contain abundant references to international treaties and other instruments of international law, including in particular the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights).

The case law of the European Court of Human Rights has received considerable analysis, mainly as concerns the application of the Charter of Fundamental Rights. This is not surprising since, as stated in Article 52(3) of the Charter, ‘[in] so far as this Charter contains rights which correspond to rights guaranteed by the [European Convention], the meaning and scope of those rights shall be the same as those laid down by the said Convention’, without prejudice to the possibility for EU law to provide more extensive protection.

However, it is of course the case law of the Courts of the European Union (the Court of Justice and the General Court) which receives the most extensive coverage. In that regard, the book offers a comprehensive and in-depth analysis of such case law (including, where relevant, of the case ​law of the EFTA Court), as well as of the opinions of Advocates General, thus providing elegant—and sometimes controversial—legal commentary.

No doubt that the great experience and vast knowledge of the combined authors constitutes the mainstay of a colossal work. The fact that I may not share all the views expressed by the commentators among the more than 2000 pages of the book does not stop me from considering it a serious piece of work of the highest quality. I sincerely welcome the debate that may arise, in the legal literature, from such vast and rich amounts of analysis, ideas and arguments.

I was deeply pleased and honoured to receive the invitation from the three co-​editors— Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin—asking me to write the foreword to the book they undertook to write and coordinate.

I would like to sincerely congratulate them and all their co-​authors for this undertaking that represents a major contribution to the reflection on the current state of the EU legal order. Most of them are very well-​known faces to the members of the Court of Justice, who appreciate their competence, professionalism and integrity.

I am sure that this book will become a regular companion to judges, lawyers and scholars at EU and national level. I strongly recommend it to everybody who feels the need for assistance in understanding the increasing complexity of EU law or to all those who are simply interested in being better informed on the basic laws of the Union.

José Luís da Cruz Vilaça Judge, President of Chamber (2012–2018) European Court of Justice

Preface The European Union is essentially a legal construct. For over sixty years, its shape and scope have been defined and developed through the adoption of successive EEC, EC and EU Treaties and their interpretation by the Court of Justice of the European Union.

The EU Treaties and the accompanying Charter of Fundamental Rights are not merely a set of operational rules; they represent the embodiment of the shared laws, principles, and values of successive generations of constituent Member States. In the absence of any single language, ethnicity or culture, those shared laws, principles and values have been fundamental in defining the EU’s identity. It is thus unsurprising that the EU Treaties have been referred to by the Union Courts as the ‘constitutional charter’ of (what is now) the European Union.

An understanding of this constitutional charter allows for an understanding of what the Union is and represents, namely, a thriving supranational organisation based on the common values of its members that has demonstrated resilience in the face of uprecedented challenges. In times suggestive of a drift towards unilateralism, the case for promoting a thorough and correct understanding of this unique model of international cooperation is even more compelling.

It was in the light of such considerations that, during a phone call between Vienna and Brussels in March 2015, the decision was taken to write this book: a comprehensive article-by-article commentary that presents within a single volume the constitutional framework of the EU legal order and that ensures a clear and structured analysis of each provision of primary law as interpreted by the Union Courts. We are very grateful to OUP for having quickly endorsed what has been, to say the least, a sizeable endeavour and for providing encouragement until its completion.

Over three years have passed and many more phone calls between Oxford, Vienna and Brussels have followed. As editors, we have managed to complement each other’s fields of expertise and skills effectively, making this project a truly enjoyable though timeconsuming endeavour. We are delighted and proud to have been able to enlist some of the most renowned and knowledgeable experts in their respective areas of EU law as co-authors.

The Commentary considers academic analysis and comment, but is also intended to facilitate the practice of EU law. To this end, special features have been incorporated to enable ready access and identification of key issues: each title, chapter, and section is preceded by an ‘Introduction’ setting out issues common to the articles considered. In addition, ‘Overviews’ give concise summaries of the content of the provisions. At the beginning of each article, a ‘Selected bibliography’ points to academic references considered especially relevant and useful. Under ‘Essential case law’, the Commentary gives a succinct summary of the most relevant findings of the Union Courts and the European Court of Human Rights. Finally, summaries of ‘Main legal instruments’ concisely describe key secondary law of relevance to the provisions analysed.

We are very grateful to a number of people who have assisted in various ways in realizing this project: Dominik Schnichels for bringing two of the editors together, Christine Pesendorfer for her gracious support from the very beginning, as well as Lukasz

viii

Preface

Baumgart, Caragh Cunniffe, Chris Docksey, Barbara Ernst, Aurélie-Anne Gilly, Anna Gnap, Lóránt Havas, Franz Koppensteiner, Emmanuel Manhaeve, Maria-Isabel Martinez del Peral, Rudolphe Munoz, Piedade Costa de Oliveira, Claire Smith, John Stanley, Peter Thalmann, Daniel Thym, Rudi Troosters and Jacquelyn Veraldi, for giving so generously of their limited time and abundant expertise to review numerous sections of the Commentary or to provide valuable input. However, any views expressed remain personal to the authors.

Special thanks are also due to Alex Flach, Natasha Flemming, Imogen Hill, Natalie Patey, Alec Swann and Emma Taylor at OUP for all their enthusiastic support, persistence and encouragement.

Finally, the editors would like to thank their families and children for their support and forbearance during the many hours, evenings and weekends, required to bring this project to fruition. They would like to dedicate this book to their children, who form part of the next generation of EU citizens: Anna Serena, Elias, Filippa, Laya and Luis. While writing was completed on 30 May 2018, it has been possible to take account of major legal developments as of January 2019.

Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin Brussels and Vienna January 2019

Contents—​Summary Notes on Contributors Abbreviations Table of Cases Table of Legislation TREATY ON EUROPEAN UNION

xix xxiii xxxiii cxiii 1

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

341

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

2095

Index

2265

Contents Notes on Contributors Abbreviations Table of Cases Table of Legislation TREATY ON EUROPEAN UNION

xix xxiii xxxiii cxiii 1

PREAMBLE TITLE I COMMON PROVISIONS Introduction Marcus Klamert Article 1 Marcus Klamert Article 2 Marcus Klamert and Dimitry Kochenov Articles 3–​5 Marcus Klamert Article 6 Tobias Lock Articles 7–​8 Dimitry Kochenov TITLE II PROVISIONS ON DEMOCRATIC PRINCIPLES Introduction Tobias Lock Article 9 Dimitry Kochenov and Tobias Lock Articles 10–​12 Tobias Lock TITLE III PROVISIONS ON THE INSTITUTIONS Introduction Paul-​John Loewenthal Articles 13–​18 Paul-​John Loewenthal Article 19 Marcus Klamert and Bernhard Schima TITLE IV PROVISIONS ON ENHANCED COOPERATION Article 20 Manuel Kellerbauer TITLE V GENERAL PROVISIONS ON THE UNION’S EXTERNAL ACTION AND SPECIFIC PROVISIONS ON THE COMMON FOREIGN AND SECURITY POLICY

3 5 5 7 22 31 79 88 103 103 105 108 124 124 126 172 189 192

Chapter 1 General provisions on the Union’s external action Articles 21–​22 Thomas Ramopoulos

198 200

Chapter 2 Specific provisions on the common foreign and security policy Introduction Thomas Ramopoulos Section 1 Common provisions Articles 23–​41 Thomas Ramopoulos Section 2 Provisions on the common security and defence policy Introduction Thomas Ramopoulos Articles 42–​46 Thomas Ramopoulos

208 208 209 212 272 272 276

197

xii

Contents

TITLE VI FINAL PROVISIONS Article 47 Marcus Klamert Article 48 Marcus Klamert Articles 49–​50 Friedrich Erlbacher Article 51 Marcus Klamert Article 52 Dimitry Kochenov Articles 53–​55 Marcus Klamert

298 299 302 311 332 334 337

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

341

PREAMBLE

347

PART ONE PRINCIPLES

348

Article 1 Marcus Klamert TITLE I CATEGORIES AND AREAS OF UNION COMPETENCE Introduction Marcus Klamert Articles 2–​6 Marcus Klamert TITLE II PROVISIONS HAVING GENERAL APPLICATION Introduction Marcus Klamert Articles 7–​13 Marcus Klamert Article 14 Tim Maxian Rusche Articles 15–​17 Marcus Klamert

349 351 351 353 377 377 380 391 397

PART TWO NON-​DISCRIMINATION AND CITIZENSHIP OF THE UNION

412

Introduction Denis Martin Articles 18–​24 Denis Martin Article 25 Dimitry Kochenov

412 413 462

PART THREE UNION POLICIES AND INTERNAL ACTIONS

463

TITLE I THE INTERNAL MARKET Article 26 Marcus Klamert and Alexandre-Xavier-Pierre Lewis Article 27 Marcus Klamert TITLE II FREE MOVEMENT OF GOODS Article 28 Marcus Klamert and Alexandre-Xavier-Pierre Lewis Article 29 Marcus Klamert

463 464 475 477 478 487

Chapter 1 The customs union Introduction Bernd-​Roland Killmann Articles 30–​32 Bernd-​Roland Killmann

492 492 493

Chapter 2 Customs cooperation Article 33 Bernd-​Roland Killmann

499 499

Chapter 3 Prohibition of quantitative restrictions between Member States Introduction Marcus Klamert, Maria Moustakali, and Jonathan Tomkin Articles 34–​37 Marcus Klamert, Maria Moustakali, and Jonathan Tomkin

502 502 504

Contents

TITLE III AGRICULTURE AND FISHERIES Articles 38–​44 André Bouquet, Friedrich Erlbacher, and Alexandre-Xavier-Pierre Lewis

xiii

544 546

TITLE IV FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL

604

Chapter 1 Workers Introduction Denis Martin Article 45 Manuel Kellerbauer and Denis Martin Articles 46–​48 Denis Martin

604 604 607 634

Chapter 2 Right of establishment Introduction Jonathan Tomkin Articles 49–​55 Jonathan Tomkin

647 647 650

Chapter 3 Freedom to provide services Introduction Jonathan Tomkin Articles 56–​62 Jonathan Tomkin

702 702 705

Chapter 4 Capital and payments Introduction Jonathan Tomkin Articles 63–​66 Audronė Steiblytė and Jonathan Tomkin TITLE V AREA OF FREEDOM, SECURITY AND JUSTICE Introduction Wolfgang Bogensberger

743 743 746 776 776

Chapter 1 General provisions Introduction Michael Wilderspin Articles 67–​70 Michael Wilderspin Articles 71–​73 Manuel Kellerbauer Articles 74 Michael Wilderspin Articles 75–​76 Manuel Kellerbauer

779 779 783 789 793 794

Chapter 2 Policies on border checks, asylum and immigration Introduction Michael Wilderspin Articles 77–​80 Michael Wilderspin

799 799 802

Chapter 3 Judicial cooperation in civil matters Introduction Michael Wilderspin Article 81 Michael Wilderspin

852 852 853

Chapter 4 Judicial cooperation in criminal matters Introduction Wolfgang Bogensberger Articles 82–​86 Wolfgang Bogensberger

870 870 875

Chapter 5 Police cooperation Introduction Wolfgang Bogensberger Articles 87–​89 Wolfgang Bogensberger TITLE VI TRANSPORT Introduction Tim Maxian Rusche Articles 90–​100 Tim Maxian Rusche

923 923 925 939 939 941

xiv

Contents

TITLE VII COMMON RULES ON COMPETITION, TAXATION AND APPROXIMATION OF LAWS

992

Chapter 1 Rules on competition Introduction Manuel Kellerbauer Section 1 Rules applying to undertakings Introduction Manuel Kellerbauer Article 101 Gero Meeßen Article 102 Manuel Kellerbauer Article 103 Manuel Kellerbauer and Gero Meeßen Articles 104–​105 Manuel Kellerbauer Article 106 Manuel Kellerbauer and Tim Maxian Rusche Section 2 Aids granted by States Articles 107–​109 Tim Maxian Rusche

992 992 994 994 998 1037 1059 1086 1088 1111 1111

Chapter 2 Tax provisions Introduction Manuel Kellerbauer Articles 110–​113 Manuel Kellerbauer

1219 1219 1221

Chapter 3 Approximation of laws Introduction Manuel Kellerbauer Articles 114–​118 Manuel Kellerbauer TITLE VIII ECONOMIC AND MONETARY POLICY Introduction Leo Flynn Article 119 Leo Flynn

1231 1231 1235 1270 1270 1272

Chapter 1 Economic policy Articles 120–​126 Leo Flynn

1274 1275

Chapter 2 Monetary policy Articles 127–​133 Leo Flynn

1298 1299

Chapter 3 Institutional provisions Articles 134–​135 Leo Flynn

1315 1316

Chapter 4 Provisions specific to Member States whose currency is the euro Articles 136–​138 Leo Flynn

1319 1320

Chapter 5 Transitional provisions Articles 139–​144 Leo Flynn TITLE IX EMPLOYMENT Introduction Sacha Garben Articles 145–​150 Sacha Garben TITLE X SOCIAL POLICY Introduction Sacha Garben Articles 151–​156 Sacha Garben Article 157 Denis Martin Articles 158–​161 Sacha Garben

1326 1327 1338 1338 1341 1352 1352 1354 1401 1415

Contents

TITLE XI THE EUROPEAN SOCIAL FUND Introduction Leo Flynn Articles 162–​164 Leo Flynn TITLE XII EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT Introduction Sacha Garben Articles 165–​166 Sacha Garben TITLE XIII CULTURE Article 167 Sacha Garben TITLE XIV PUBLIC HEALTH Article 168 Sacha Garben TITLE XV CONSUMER PROTECTION Article 169 Sacha Garben TITLE XVI TRANS-​EUROPEAN NETWORKS Introduction Dimitry Kochenov Articles 170–​172 Dimitry Kochenov TITLE XVII INDUSTRY Article 173 Manuel Kellerbauer TITLE XVIII ECONOMIC, SOCIAL AND TERRITORIAL COHESION Introduction Leo Flynn Articles 174–​178 Leo Flynn TITLE XIX RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE Introduction Sacha Garben Articles 179–​190 Sacha Garben TITLE XX ENVIRONMENT Introduction Sacha Garben Articles 191–​193 Sacha Garben TITLE XXI ENERGY Article 194 Sacha Garben TITLE XXII TOURISM Article 195 Sacha Garben TITLE XXIII CIVIL PROTECTION Article 196 Sacha Garben TITLE XXIV ADMINISTRATIVE COOPERATION Article 197 Sacha Garben

xv

1419 1419 1420 1423 1423 1424 1439 1439 1445 1445 1456 1456 1467 1467 1468 1472 1472 1476 1476 1478 1491 1491 1494 1512 1512 1516 1547 1547 1554 1554 1556 1556 1559 1559

PART FOUR ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES

1562

Introduction Dimitry Kochenov Articles 198–​204 Dimitry Kochenov

1562 1565

xvi

Contents

PART FIVE EXTERNAL ACTION BY THE UNION

1580

TITLE I THE UNION’S EXTERNAL ACTION Article 205 Friedrich Erlbacher and Tim Maxian Rusche TITLE II COMMON COMMERCIAL POLICY Articles 206–​207 Friedrich Erlbacher and Tim Maxian Rusche TITLE III COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID Introduction Friedrich Erlbacher and Marcus Klamert

1581 1582 1585 1585

Chapter 1 Development cooperation Articles 208–​211 Marcus Klamert

1610 1610

Chapter 2 Economic, financial and technical cooperation with third countries Articles 212–​213 Friedrich Erlbacher

1619 1619

Chapter 3 Humanitarian aid Article 214 Friedrich Erlbacher TITLE IV RESTRICTIVE MEASURES Article 215 Friedrich Erlbacher TITLE V INTERNATIONAL AGREEMENTS Introduction Friedrich Erlbacher Articles 216–​219 Friedrich Erlbacher TITLE VI THE UNION’S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS Articles 220–​221 Friedrich Erlbacher TITLE VII SOLIDARITY CLAUSE Article 222 Friedrich Erlbacher

1626 1626 1631 1631 1642 1642 1643

PART SIX INSTITUTIONAL AND FINANCIAL PROVISIONS

1697

TITLE I INSTITUTIONAL PROVISIONS

1697

Chapter 1 The institutions Introduction Paul-​John Loewenthal Section 1 The European Parliament Articles 223–​234 Paul-​John Loewenthal Section 2 The European Council Articles 235–​236 Paul-​John Loewenthal Section 3 The Council Articles 237–​243 Paul-​John Loewenthal Section 4 The Commission Articles 244–​250 Paul-​John Loewenthal Section 5 The Court of Justice of the European Union Introduction Bernhard Schima Articles 251–​281 Bernhard Schima Section 6 The European Central Bank

1697 1697 1698 1700 1724 1725 1728 1729 1739 1740 1748 1748 1751 1879



1606 1606

1676 1676 1690 1690

Contents

xvii

Articles 282–​284 Leo Flynn Section 7 The Court of Auditors Articles 285–​287 Leo Flynn

1880 1886 1887

Chapter 2 Legal acts of the Union, adoption procedures and other provisions Introduction Paul-​John Loewenthal Section 1 The legal acts of the Union Article 288 Marcus Klamert and Paul-​John Loewenthal Articles 289–​292 Paul-​John Loewenthal Section 2 Procedures for the adoption of acts and other provisions Articles 293–​299 Paul-​John Loewenthal

1893 1893 1895 1895 1911 1934 1934

Chapter 3 The Union’s advisory bodies Article 300 Marcus Klamert Section 1 The Economic and Social Committee Articles 301–​304 Marcus Klamert Section 2 The Committee of the Regions Articles 305–​307 Marcus Klamert

1953 1954 1959 1959 1963 1963

Chapter 4 The European Investment Bank Articles 308–​309 Leo Flynn TITLE II FINANCIAL PROVISIONS Introduction Bernd-​Roland Killmann Article 310 Bernd-​Roland Killmann

1967 1968 1972 1972 1975

Chapter 1 The Union’s own resources Article 311 Bernd-​Roland Killmann

1977 1977

Chapter 2 The multiannual financial framework Article 312 Bernd-​Roland Killmann

1980 1980

Chapter 3 The Union’s annual budget Articles 313–​316 Bernd-​Roland Killmann

1982 1982

Chapter 4 Implementation of the budget and discharge Articles 317–​319 Bernd-​Roland Killmann

1988 1988

Chapter 5 Common provisions Articles 320–​324 Bernd-​Roland Killmann

1992 1992

Chapter 6 Combatting fraud Article 325 Bernd-​Roland Killmann TITLE III ENHANCED COOPERATION Articles 326–​334 Manuel Kellerbauer

1998 1998 2003 2004

PART SEVEN GENERAL AND FINAL PROVISIONS

2016

Articles 335–​336 Marcus Klamert Articles 337–​342 Manuel Kellerbauer Articles 343–​345 Marcus Klamert Articles 346–​348 Manuel Kellerbauer

2018 2022 2044 2050

xviii

Contents

Article 349 Dimitry Kochenov Article 350 Marcus Klamert Articles 351–​352 Manuel Kellerbauer and Marcus Klamert Article 353 Marcus Klamert Articles 354–​355 Dimitry Kochenov Articles 356–​358 Marcus Klamert

2058 2063 2065 2080 2081 2092

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

2095

PREAMBLE TITLE I DIGNITY Introduction Tobias Lock Articles 1–​5 Tobias Lock TITLE II FREEDOMS Introduction Tobias Lock Articles 6–​19 Tobias Lock TITLE III EQUALITY Introduction Jonathan Tomkin Articles 20–​21 Denis Martin Article 22 Tobias Lock Article 23 Denis Martin Article 24 Tobias Lock Articles 25–​26 Denis Martin TITLE IV SOLIDARITY Introduction Tobias Lock Articles 27–​33 Tobias Lock Article 34 Denis Martin Articles 35–​38 Tobias Lock TITLE V CITIZENS’ RIGHTS Introduction Jonathan Tomkin Articles 39–​40 Denis Martin Articles 41–​42 Tobias Lock Articles 43–​46 Denis Martin TITLE VI JUSTICE Introduction Tobias Lock Article 47 Tobias Lock and Denis Martin Articles 48–​50 Tobias Lock TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER Articles 51–​54 Tobias Lock

2097 2098 2098 2099 2110 2110 2111 2158 2158 2161 2168 2170 2173 2176 2178 2178 2180 2194 2195 2200 2200 2202 2204 2209 2213 2213 2214 2227

Index

2265



2241 2241

Notes on Contributors Wolfgang Bogensberger is Deputy Head of the Representation of the European Commission in Austria. Previously, he was a judge at the Juvenile Justice Court in Vienna, a Director General at the Austrian Ministry of Justice, a principal administrator in the secretariat of the Committee on Civil Liberties, Justice and Home Affairs in the European Parliament, and a Legal Advisor at the Legal Service of the European Commission. He has represented the Commission in numerous cases before the CJEU, predominantly in criminal matters. He holds doctorates in law and in philosophy and a postgraduate diploma in European law. He has published in the field of domestic and European criminal law and lectures on fundamental rights at the Sigmund Freud University in Vienna.

André Bouquet is a Legal Adviser at the Legal Service of the European Commission (CFSP and External Relations Team). Previously he was Member and thereafter acting head of the Agriculture and Fisheries team, and before that he was Member of the Competition team. Prior to joining the Legal Service he worked at the Euratom Supply Agency, dealing inter alia with legal matters. He appears regularly before the European Court of Justice, predominantly in matters related to competition, fisheries, agriculture and interinstitutional dispute affairs as well as in international litigation cases (ITLOS and UNCLOS arbitration). Before working at the European Commission he practiced law at the Brussels and Antwerp Bar. He has published and lectured in the field of nuclear law (Euratom Treaty), competition and fisheries.

Friedrich Erlbacher is a Legal Adviser at the Legal Service of the European Commission (Institutional Team). He is a former Legal Secretary (Référendaire) at the General Court of the European Union. He has published and lectured extensively in various fields including external relations, judicial protection, and state aid.

Leo Flynn is a Legal Adviser at the Legal Service of the European Commission (Eurozone Team). Before joining the Legal Service in 2002, he worked as Legal Secretary (Référendaire) at the Court of Justice and lectured at King’s College London, where he now is a visiting Professor at its Centre for European Law. He has written widely on Union law, especially on State aid, social policy, and Union law in national courts.

Sacha Garben is Professor of EU law at the College of Europe and on leave from the European Commission. As well as a prize-winning PhD from the European University Institute (Florence), she holds an LLM from the College of Europe and a Master’s degree from the University of Maastricht. She has held a 2-year postdoctoral fellowship with the London School of Economics as well as a visiting fellowship from Harvard Law School.

She has published extensively on a range of constitutional and substantive EU law issues, including the division of competences between the EU and the Member States, Social Europe and European higher education law and policy.

Manuel Kellerbauer is a Member of the Legal Service of the European Commission (CFSP and External Affairs Team). He appears regularly before the European Court of Justice, predominantly in matters related to competition, internal market and social

xx

Notes on Contributors

affairs. He previously worked at the Commission’s Directorate-General for Competition.

He passed the German bar exam and holds master’s degrees from the Universities of Aix-en-Provence and Tübingen, as well as a PhD from the University of Tübingen.

He is a guest lecturer at the Universities of Saarbrücken and Lyon, has published widely on EU law, and is a member of the advisory board of the European Journal of Business Law (EuZW).

Bernd-Roland Killmann is a Member of the Legal Service of the European Commission (Social, Consumer Affairs and Equality Team). He holds a doctorate in law from the University of Graz, a Master of Business Law from the University of Sankt Gallen, and a diploma from the Paul H. Nitze School of Advanced International Studies at the Johns Hopkins University in Bologna. Before joining the Commission, he worked as a research assistant at the law faculty of the University of Graz and in law firms in Austria and Italy.

He has published and lectured in the field of European law.

Marcus Klamert is a Legal Adviser at the Federal Chancellery of Austria and holds a postdoctoral qualification to lecture in European and public international law (Habilitation) awarded by the Vienna University of Economics and Business. He has held (visiting) fellowships with the Austrian Academy of Sciences, the Institute of European and Comparative Law, University of Oxford, and the European University Institute, Florence. He has represented Austria before the CJEU, has practised law in a leading international law firm in Vienna, and has worked for the European Commission in Brussels. His publications include The Principle of Loyalty in EU Law (OUP 2014) and Services Liberalization in the EU and WTO – Concepts, Standards and Regulatory Approaches (CUP 2014).

Dimitry Kochenov is Professor of EU Constitutional Law in the Faculty of Law, University of Groningen. He was a visiting professor at Princeton University, the College of Europe and Università degli Studi di Torino, and held fellowships, inter alia, at Princeton’s Woodrow Wilson School, Institute of Global Studies in Basel and NYU Law School.

He recently edited EU Citizenship and Federalism (CUP 2017). His second monograph Citizenship is forthcoming with MIT Press in 2019.

Alexandre-Xavier-Pierre Lewis is a Legal Adviser at the Legal Service of the European Commission (Agricultural Team). Previously he practiced law at the Paris Bar and the English Bar, was Director of Legal and Executive Affairs, EFTA Surveillance Authority, and Legal Secretary (Référendaire) to AG Francis Jacobs in the Court of Justice. He holds an LLB, a Maîtrise en Droit and a DEA in civil law from King’s College London and the University of Paris I (Panthéon-Sorbonne), and is a Fellow of Harvard University. He has represented the Commission in numerous cases before the Court of Justice, the General Court, the EFTA Court and the US Federal District Court.

Tobias Lock is Professor of Law at the National University of Ireland, Maynooth. He previously worked at the Universities of Edinburgh, Surrey, Erlangen, and at University College London. During 2018 he served on the Scottish First Minister’s Advisory Group on Human Rights Leadership. His main research interests are in EU constitutional law, EU fundamental rights law, and multi-level relations between the EU and other legal orders. His publications include The European Court of Justice and International Courts (OUP 2015).

Notes on Contributors

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Paul-John Loewenthal is a Member of the Legal Service of the European Commission (State Aid Team). He has represented the Commission as an agent in numerous cases before the CJEU, predominantly in matters related to State aid and taxation. He previously worked as a Legal Secretary (Référendaire) at the Court of Justice and the General Court of the European Union, as an attorney in a leading global law firm in Brussels and Washington D.C., and as a university lecturer at Oxford and Harvard Universities. He holds degrees from Harvard Law School (LL.M), Oxford University (M.Phil, M.Jur), the Institut d’études politiques de Paris (Sciences Po), and Leiden University.

Denis Martin is a Legal Adviser at the Legal Service of the European Commission (Social, Consumer Affairs and Equality Team). Prior to joining the Legal Service in 2000, he worked in the Directorate-General responsible in particular for free movement of workers, sex equality and the prohibition of discrimination. He is an invited Professor at UC Louvain, and has published extensively on the free movement of persons and on the prohibition of discrimination in Union law.

Tim Maxian Rusche is a Member of the Legal Service of the European Commission (Eurozone Team). Previously, he worked in the State aid team of the Legal Service and in DG Energy and Transport. He has represented the Commission in numerous court cases before the CJEU, in national courts, and in investment arbitration procedures. He holds a joined Maîtrise en droit and Magister Legum from University of Paris I (PanthéonSorbonne) and University of Cologne, a Masters in Public Administration from the Harvard Kennedy School, and a joined Franco-German doctorate in law from the University of Paris I (Panthéon-Sorbonne) and the University of Cologne. He is the author of EU Renewable Electricity Law and Policy (CUP 2015) and has published extensively, in particular on State aid law, trade defence law and regulatory law (transport, energy, and environment).

Gero Meeßen is a Member of the Legal Service of the European Commission (Competition Team). He has represented the Commission as an agent in numerous cases before the CJEU, predominantly in matters related to competition law. He previously worked as a case handler, case manager (with a focus on energy markets) and Head of Unit at the Bundeskartellamt’s (German Federal Cartel Office) General Policy Division. He passed the German bar exam and holds an M.Jur. (University of Oxford) and a Dr.iur. (University of Münster). He lectures EU Competition Law at the Europa-Institut of the University of Saarbrücken.

Maria Moustakali is a case handler in the office of the European Ombudsman. She has previously worked in the Legal Service of the EFTA Surveillance Authority (ESA), and has represented ESA as an agent in numerous cases before the EFTA Court and the CJEU. She has graduated from the law school of the University of Athens and also holds Master’s degrees from the College of Europe and Columbia Law School.

Thomas Ramopoulos is a Member of the Legal Service of the European Commission (CFSP and External Relations Team). He studied law (Hons) at Aristotle University of Thessaloniki and holds a Master of Philosophy in International Relations from the University of Cambridge. Since May 2011 he has been a fellow of the Centre for Global Governance Studies at KU Leuven. He has published extensively on EU external relations law and is a co-author of The Law of EU External Relations: Cases, Materials and Commentary on the EU as an International Legal Actor (2nd ed, OUP 2015).

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Notes on Contributors

Bernhard Schima is a Legal Adviser and Assistant to the Director-General of the Legal Service of the European Commission. He is a former Legal Secretary (Référendaire) at the Court of Justice of the European Union and former EU Fellow at Yale University, holds a postdoctoral qualification to lecture in European law (Habilitation), and is an honorary professor of European Law at the Vienna University of Economics and Business. He has published and lectured extensively in the field of EU law, with a particular emphasis on court procedure.

Audronė Steiblytė is a Member of the Legal Service of the European Commission (Establishment, services, business law, movement of capital, transport, intellectual property and information society Team). Previously, she was a lecturer at Mykolas Romeris University and as government official was directly involved in the accession negotiations of Lithuania. She has represented the Commission in numerous cases before the CJEU. Jonathan Tomkin is a Member of the Legal Service of the European Commission (Justice, Liberty and Security team). Since 2016, he is an affiliated researcher at the Institute of European Law, KU Leuven. He is a barrister (admitted to the Bars of Ireland, England and Wales – Inner Temple), a former Director of the Irish Centre for European Law at Trinity College, Dublin, and has previously worked as a Legal Secretary (Référendaire) at the European Court of Justice. He appears regularly before the CJEU and has published and lectured extensively, particularly in the field of Union citizenship, asylum and free movement law. He is a co-author and co-editor of EU Immigration and Asylum Law (Brill 2012), and The EU Citizenship Directive (OUP 2014), respectively.

Michael Wilderspin is a Legal Adviser at the Legal Service of the European Commission (Justice, Liberty and Security Team). He has represented the Commission in numerous cases before the CJEU, the EFTA Court and international arbitral tribunals. He previously worked as a Legal Secretary (référendaire) at the Court of Justice. He has lectured at the Universities of Durham, Saarbrücken and Paris II (Panthéon-Assas), and currently lectures at UCL Louvain-la-Neuve and Université Lyon III, where he is a Visiting Professor. He has published extensively, mainly in the field of private international law.

Abbreviations AA AAAA ACP ACTA ADA ADN ADR AETR AFSJ AG AMS APO ARO ASCM BC Int’l & Comp L Rev BIOT BIS BIT BOI BVerfG CAP CATs CCP CDE CEAS CEPOL CETA CIVCOM CFP CFR CFSP CIR CISA CJEU CML Rev CMLR CMO

Assocation Agreement Addis Ababa Action Agenda African, Caribbean and Pacific Anti-​conterfeiting Trade Agreement Anti-​dumping Agreement Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways Agreement concerning the International Carriage of Dangerous Goods by Road Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport Area of Freedom, Security and Justice Advocate General Aggregate Measurement of Support Associations of Producer Organizations Asset Recovery Office Agreement on Subsidies and Counter-​Veiling Measures Boston College International Comparative Law Review British Indian Ocean Territory Bank for International Settlements Bilateral Investment Treaty Binding Origin Information German Federal Constitutional Court Common Agriculture Policy Coordinating Committee in the area of police and judicial cooperation in criminal matters Common Commercial Policy Cahiers de Droit Europeen Common European Asylum System European Union Agency for Law Enforcement Training Comprehensive Economic and Trade Agreement Committee for Civilian Aspects of Crisis Management Common Fisheries Policy Council on Foreign Relations Common Foreign and Security Policy Common Implementing Regulation Convention Implementing the Schengen Agreement Court of Justice of the European Union Common Market Law Review Common Market Law Reports Common Market Organization

xxiv CN ConstT CoE COHAFA Columbia J of Europ L CoR COREPER COSI COTER COTIF CRC COSAC CSDP CSFP CTP CUP CYELS DAA DAC DC DCFTA DCI DG DPA DTTs EAEC EAFRD EAGF EAGGF EASO EAW EBRD EC ECAC ECB ECHO ECHR ECI ECJ ECDC ECN ECOFIN ECRIS ECRIS-​TCN 

Abbreviations Combined Nomenclature Treaty establishing a Constitution for Europe Council of Europa Council working party on Humanitarian Aid and Food Aid Columbia Journal of European Law Committee of the Regions Committee of Permanent Representatives Standing Committee on Operational Cooperation on Internal Security Commission on Territorial Cohesion Policy Convention concerning International Carriage by Rail Convention on the Rights of the Child Conference of Parliamentary Committees for Union Affairs Common Security and Defence Policy Commonwealth Scholarship and Fellowship Plan Common Transport Policy Cambridge University Press Cambridge Yearbook of European Legal Studies Draft Accession Agreement Development Assistance Committees Development Cooperation Deep and Comprehensive Free Trade Areas Development Cooperation Instrument Directorate General Data Protection Authority Double Taxation Treaties European Atomic Energy Community European Agricultural Fund for Rural Development European Agricultural Guarantee Fund European Agricultural Guidance and Guarantee Fund European Asylum Support Office European Arrest Warrant European Bank for Reconstruction and Development European Community European Civil Aviation Convention Euroepan Central Bank European Civil Protection and Humanitarian Aid Operations European Convention on Human Rights European Citizens’ Initiative European Court of Justice European Centre for Disease Prevention and Control European Competition Network Economic and Finance Council European Criminal Records Information System European Criminal Records Information System for Third-​country Nationals and Stateless Persons

Abbreviations ECSC ECtHR ECT ECTC ECTS ECVET EDA EDF EDPB EDC EEA EEAS EEC EEO EES EES EESC EEZ EFC EFAR EFSA EFSF EGAF EGTC EIB EIDHR EIF EIoP EIPR EJIR EJLS EJN EJML EJTN EMA ELJ EL Rev EMCO EMCDDA EMU ENI ENP ENS EORI EP EPA EPC

xxv

European Coal and Steel Community European Court of Human Rights Energy Charter Treaty European Counter Terrorism Centre European Credit Transfer System European Credit system for Vocational Education and Training European Defence Agency Environmental Defense Fund and European Development Fund European Data Protection Board European Defence Community European Economic Area European External Action Service European Economic Community European Enforcement Order European Employment Strategy Entry/​Exit System European Economic and Social Council Exclusive Economic Zone Economic and Financial Committee European Foreign Affairs Review European Food Safety Authority European Finanical Stability Facility European Globalisation Adjustment Fund European Grouping of Territorial Cooperation European Investment Bank European Instrument for Democracy and Human Rights European Investment Fund European Integration Online Papers European Intellectual Property Review European Journal of International Relations European Journal of Legal Studies European Judicial Network European Journal of Migration and Law European Judicial Training Network European Medicines Agency European Law Journal European Law Review Employment Committee European Monitoring Centre for Drugs and Drug Addiction Economic and Monetary Union European Neighbourhood Instrument European Neighbourhood Policy Entry Summary Economic Operator Registration and Identification European Parliament European Partnership Agreement European Political Cooperation

xxvi EPO EPPO EPSCO ERA ERAC ERCC ERM ESA ESC ESCB ESDC ESDP ESIF ESM ESS EStAL ESRB ETIAS ETS EU EUAM EUBAM EUCAP EUCARIS EUCPN eucrim Eu Const L R EUFOR EU IRU EUISS EULEX KOSOVO EUMC EUMM EUMR EUMS EUPOL COPPS EuR EUROMED Eur Rev Private L EUSF EUTM EUVR 

Abbreviations European Protection Order European Public Prosecutor’s Office Employment and Social Affairs Council Eureopan Research Area European Research Area and Innovation Committee Emergency Response Coordination Centre Exchange Rate Mechanism European Space Agency European Social Charter European Systems of Central Banks European Security and Defence College European Security and Defence Policy European Structural and Investment Funds European Stability Mechanism European Statistical System European State Aid Law Quarterly European Systemic Risk Board EU Travel Information and Authorization System Emmissions Trading Scheme European Union Advisory Mission for Civilian Security Sector Reform Ukraine European Union Border Assistance Mission Point European Union Capacity Building Mission European Car and Driving Licence Information System European Crime Prevention Network Journal for the Protection of the Financial Interests of the European Union European Constitutional Law Review European Union Force European Union Internet Referral Unit European Union Institute for Security Studies European Union Rule of Law Mission in Kosovo Military Committee of the European Union European Union Monitoring Mission EU Merger Regulation Military Staff of the European Union European Union Police Mission for the Palestinian Territories Europarecht Euro-Mediterranean partnership European Review of Private Law European Union Solidarity Fund European Union Training Mission Zeitschrift für Europäisches Unternehmens- und Verbraucherrecht

Abbreviations EuZW EWG EWS EYCS FAC FAR FAFA FAO FEMIP FIUs Ford Int La J FTA GAC GAECs GAERC GATS GATT GC GDPR GRECO GSP HA Harvard ILJ HR IA IACS ICAO CB ICCAT ICJ ICS ICSID IcSP IfG IFI IGC IIC ILO IMF IMO IO IP IPA IPCR IPEX

xxvii

Europäische Zeitschrift für Wirtschaftsrecht (European Journal of Business Law) Eurogroup Working Group Europäisches Wirtschafts- und Steuerrecht Education, Youth, Culture and Sport Council Foreign Affairs Council Regulation 1006/​2008 on fishing authorizations Financial and Adminstrative Framework Agreement Food and Agriculture Organization Facility for Euro-​Mediterranean Investment and Partnership Financial Intelligence Units Fordham International Law Journal Free Trade Agreement General Affairs Council Good Agricultural and Environmental Conditions General Affairs and External Relations Council General Agreement on Trade in Services General Agreement on Tariffs and Trade General Court General Data Protection Regulation Group of States Against Corruption Generalized Scheme of Preferences Humanitarian Aid Harvard International Law Journal High Representative International Agreement Integrated Administration and Control System International Civil Aviation Organization International Commodity Bodies International Commission for the Conservation of Atlantic Tuna International Court of Justice Investment Court System International Centre for Settlement of Investment Disputes Instrument contributing to Stability and Peace Instrument for Greenland International Fund for Ireland/International Financial Institution Intergovernmental Conference International Review of Intellectual Property and Competition Law International Labour Organization International Monetary Fund International Maritime Organization International Organization Intellectual Property Instrument for Pre-​accession Assistance Integrated Political Crisis Response InterParliamentary EU information eXchange

xxviii IPR IPRax ISAA ISF ISSG ITLOS ITU JBI JCMS JECL&Pract JEI JEPP JHA JIT JRC LDC LGBT LIC LJIL LPIS MAFF MEP MFA MFN MIC MoU MJ MoU MS MSY NATO NCA NCB NEAFC NFF NGO NPS OAD OCTs OCTA ODA OECD OIE OIV OJ OJLS OLAF 

Abbreviations Intellectual Property Rights Praxis des Internationalen Privat- und Verfahrensrechts Integrated Situational Awareness and Analysis International Security Fund International Syria Support Group International Tribunal for the Law of the Sea International Telecommunication Union Juristische Blätter Journal of Common Market Studies Journal of European Competition Law & Practice Journal of European Integration Journal of European Public Policy Justice and Home Affairs Joint Investigation Team Joint Research Centre Least Developed Country Lesbian, Gay, Bisexual, and Transgender Lower-​income Country Leiden Journal of International Law Land Parcel Identification System Multi-​Annual Financial Framework Member of European Parliament Macro-​Financial Assitance Most-​Favoured-​Nation Multilateral Investment Court/​Middle-​income Country Memorandum of Understanding Maastricht Journal of European and Comparative Law Memoradum of Understanding Member State(s) Maximum Sustainable Yield North Atlantic Treaty Organization National Competition Authority National Central Bank North-​East Atlantic Fisheries Commission Neighbourhood Finance Facility Non-​governmental Organization New Psychoactive Substances Overseas Assocation Decision Overseas Countries and Territories Overseas Countries and Territories Association Official Development Assistance Organisation for Economic Co-​operation and Development World Organisation for Animal Health International Organisation of Vine and Wine Official Journal of the European Union Oxford Journal of Legal Studies European Anti-​Fraud Office

Abbreviations OMC OMT OR ORP OSCE OSJD OTA OTIF OUP PCCCs PCD PDO PEM PESCO PFOS PGI PI PNR PO PPLR PSC PSO RDE RDP rESC RFMOs RID RIS RMC RSCAS RTDE SAA SAD SALW SAM SBC SCM SEA SFPAs SG SGEI SGI SGP SMEFF SMGS SOFA

xxix

Open Method of Coordination Outright Monetary Transactions Outermost Region Ordinary Revision Procedure Organization for Security and Co-​operation in Europe Organisation for Cooperation between Railways Online Travel Agent Intergovernmental Organisation for International Carriage by Rail Oxford University Press Police and Customs Cooperation Centres Policy Coherence for Development Protected Designation of Origin Pan-​Euro-​Mediterranean Permanent Structured Cooperation Perfluoroctane sulfonate Protected Geographical Indicationss Partnership Instrument Passenger Name Records Producer Organization Public Procurement Law Review Political and Security Committee Public Service Obligations Revue de Droit europeen Rural Developmet Policy (revised) European Social Charter Regional Fisheries Management Organisations Regulations concerning the International Transport of Dangerous Goods by Rail River Information Services Revue du Marché commun Robert Schuman Centre for Advanced Studies Revue Trimestrielle des Droit Européen Stabilisation and Association Agreement Single Administrative Document Small Arms and Light Weapons State Aid Modification Schengen Borders Code Subsidies and Counterveiling Measures Single European Act Sustainable Fisheries Partnership Agreements Secretary General Services of General Economic Interest Services of General Interest Stability and Growth Pact Sustainable Management of External Fishing Fleets SMR Statutory Management Requirements Status of Forces Agreement