EUROPEAN UNION PAPER - FD

A COMPREHENSIVE REVIEW OF
THE EUROPEAN UNION
BY:
MICHAEL LYONS
International Organizations
Professor Jiri Toman

2
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. THE HISTORICAL EVOLUTION LEADING TO THE
EUROPEAN UNION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Early Development of the European Communities . . . . . . . . . 8
B. The Direct Effect of European Law . . . . . . . . . . . . . . . . . . . . .13
C. Early Enlargements to the EEC . . . . . . . . . . . . . . . . . . . . . . . .16
D. The Single European Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
E. The Treaty on European Union . . . . . . . . . . . . . . . . . . . . . . . .19
F. The Treaty of Lisbon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
III. THE EUROPEAN UNION TODAY . . . . . . . . . . . . . . . . . . . . . . 23
A. Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
i. The European Parliament . . . . . . . . . . . . . . . . . . . . . . . 24
ii. The European Council . . . . . . . . . . . . . . . . . . . . . . . . . .26
iii. The Council of Ministers . . . . . . . . . . . . . . . . . . . . . . . .29
iv. The European Commission . . . . . . . . . . . . . . . . . . . . . .32
v. The Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
IV. THE LEGISLATIVE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . 39
A. Comprehensive Legislative Process . . . . . . . . . . . . . . . . . . . . 41
V. EU LAW AS APPLIED TO A CITIZEN . . . . . . . . . . . . . . . . . . .46
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
B. Citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
C. Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
D. Right of Establishment and the Right to Provide Services . . . 53
E. The Right of Reparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57

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I. INTRODUCTION
“Nationalism is an infantile disease.
It is the measles of mankind.”
– Albert Einstein.
According to ProfessorSiegfried Fina of the University of Vienna
Law School, the European Union is a “supranational organization.”1 The
European Union currently contains twenty-eight Member States who have
agreed, “as a result of their membership in the EU, to transfer some of their
powers to the EU institutions in specified policy areas.” This transferal of
power enables EU institutions to make “supranational binding decisions”
that ultimately permit Member States to collaborate and cooperatewith each
other in ways unimaginable before the formation of the European Union. 2
This solidarity has propelled the European Union into a position of immense
1 Professor Dr. Siegfried Fina, Program Director. LLM Program in European and
International Business Law, University of Vienna School of Law, Dept. of Commercial
and Business Law, Lecture at the Vienna School of Law: EU Law: Introduction to the
EU (26 May 2014) [hereinafter Fina Lecture)
2 European Parliament, About Parliament, (Nov. 16, 2014, 5:28 PM),
http://www.europarl.
europa.eu/aboutparliament/en/displayFtu.html?ftuId=FTU_1.4.1.html.

4
global power. In fact, the EU was the world’s largest exporter in 2011,
accounting for 15.4% of worldwide exports.3
Today, it seems obvious that an alliance between European nations
would producegreat benefits for its people. Forcenturies, many bright
minds from many different nations put forth ideas that would eventually
pave the way for the European Union. However, these ideas could not
blossominto policy until the fierce nationalistic tendencies clouding much
of Europe were overcome.
Thus, centuries filled with philosophical thought and political rhetoric
advocating for a united Europe came and went before they were able to take
hold. The Second World War provided the final spark for European unity.
With much of the continent in ruin, many saw European unity as the only
viable option for peace, harmony, and order. What was needed was a
curtailing of national interests and a strong cooperative advocating for
European interests.
3 European Union, The Economy, (Nov. 16, 2014, 5:32 PM), http://europa.eu/about-
eu/facts-figures/economy/index_en.htm.

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II. THE HISTORICAL EVOLUTION LEADING TO THE
EUROPEAN UNION
Countless men and women contributed to the eventual formulation of
the European Union. However, there are some whose ideas have become
integral to the foundation and eventual disposition of the European Union as
we know it today. Central to these ideas was a yearning for a peaceful and
harmonious Europe, a Europe where the common interests of all would not
succumb to the national interests of few.
In 1693, William Penn published his Essay on the Present and Future
Peace of Europe. Within it, he advocated for the establishment of a
European Parliament whose decisions would be enforced by a European
Army. He also argued that actions taken by this Parliament be voted on
“based on the demographic and economic importance of various countries.”4
Penn believed that a European Parliament would save “money, both to the
Prince and the People; and thereby prevent those Grudgings and
4 William Penn, An Essay Towards the Present and Future Peace of Europe (Nov. 16,
2014, 5:55 PM), https://archive.org/stream/anessaytowardsp00penn/mode/2up.

6
Misunderstandings between them that are [likely] to follow the devouring
Expenses of War.” From these savings. governments would be able “to
perform [public] acts for Learning, Charity, [and] Manufacturing,” or what
he called “the Virtues of Government.”5
Immanuel Kant wrote PerpetualPeace: A Philosophical Sketch in
1795 where he advocated for the creation of a “federation of free states.”
Kant believed that “A state of peace among men who live side by side with
each other, is not the natural state; the natural state is one of war. A state of
peace, therefore, must be established for in order to be secured against
hostility it is not sufficient that hostilities simply be not committed; and,
unless this security is pledged to each by his neighbor (a thing that can occur
only in a civil state), each may treat his neighbor, from whom he demands
this security, as an enemy.”6
In 1798, English philosopher Jeremy Bentham wrote Principles of
InternationalLaw where he too advocated for European unity through a
European Parliament that would be able to secure freedom of trade and of
5 Id.
6 Immanuel Kant, Perpetual Peace: A Philosophical Sketch (Nov. 16, 2014 5:59 PM),
https://www.mtholyoke.edu/acad/intrel/kant/kant1.htm#fn3.

7
the press. He also believed that this unity could reduce the money being
spent on national armaments.7
In 1814, Claude-Henri Saint-Simon proposed for “all European states
[to] be governed by national parliaments,” while “a European Parliament
should be created to decide on common interests.”8 In 1851, Victor Hugo
called for the creation of a United States of Europe while speaking at the
International Peace Conference in Paris. Hugo asserted, “A day will come
when we shall see . . . the United States of America and the United States of
Europe face to face, reaching out for each other across the seas.”9 In 1863,
Pierre Joseph Proudhonpublished Principle of Federation, where he argued
that nationalism inevitably leads to war and a Federal Europe could reduce
nationalism.
Despite the aforementioned ideas and warnings, European countries
remained staunchly nationalistic. This philosophy provoked the First World
War. With tens of millions dead, cities in ruin, and governments in upheaval,
nationalism was dealt its greatest blow yet. This reality led to the Briand
Memorandum or 1929. French Foreign Minister Aristide Briand submitted
the memorandum to twenty-six other European states. The memo advocated
7 Jeremy Bentham, Principles of International Law (1798).
8 Damian Chalmers, Gareth Davies & Giorgio Monti, European Union Law 7, (2d ed.
2010).
9 Discours d'ouverture, congrès de la paix, [Opening address, Peace Congress], Paris
(21 August 1849); published in Actes et paroles - Avant l'exil (1875).

8
for a European Federal Union and “considered the League of Nations to be
too weak a bodyto regulate international relations.” Id. Unfortunately, many
considered this proposaltoo radical and its ideals failed to take hold.
Penn, Kant, Bentham, Saint-Simon, Hugo, Proudhon, and Briand all
warned Europe against fierce nationalism. However, the shortsighted
ambitions of few triumphed over propositions for the unity of all. This
flawed ideology culminated in the Second World War. With millions dead,
cities in ruin, and governments in upheaval for the second time three
decades, European unity finally captured the hearts and minds of those in
power.
A. Early Development of the European Communities
Following the Second World War, enormous reconstruction efforts
were needed to repair extensive damage. There also existed fear that
rearmament could once again destabilize an already shaky Europe. In an
attempt to achieve bothobjectives, French civil servant, Jean Monnet drafted
a proposalthat would come to be known as the Schuman Plan.
The Schuman Plan proposedthe pooling of coal and steel production
amongst European nations. The objective of the Plan was to make the

9
possibility of war between France and Germany “notmerely unthinkable,
but materially impossible.”10 The Schuman Plan asserted, “The pooling of
coal and steel production . . . will change the destinies of those regions
which have long been devoted to the manufacture of munitions of war, of
which they have been the most constant victims.”11
The Schuman Plan provided momentum for the signing of the Treaty
of Paris in 1951. It was through this Treaty that the ECSC, or the European
Coal and Steel Community, came into existence. France, Germany, Italy,
Belgium, Luxembourg, and the Netherlands adopted the ECSC. The ECSC
also “established a High Authority, an Assembly, a Council of Ministers,
and a Court of Justice.”12 The High Authority “supervised the modernization
and improvement of production, the supply of products under identical
conditions, the development of a common export policy and the
improvement of working conditions in the coaland steel industries.”13 The
Assembly had supervisory power over the Treaty and was made up of
representatives from each national Parliament. The Council consisted of six
heads of state whose “approvalwas required for important decisions taken
10 European Union, The Schuman Declaration of 1950 (Nov. 16, 2014 6:17 PM),
http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-
declaration/index_en.htm
11 Id.
12 Damian Chalmers, Gareth Davies & Giorgio Monti, European Union Law 10, (2d
ed. 2010).
13 Id.

10
by the High Authority.”14 Finally, the Court of Justice ensured the identical
interpretation and observation of the Treaty by resolving differences
between Member States.15
The importance of the ECSC cannot be overstated. It provided the
platform from which decades of treaties between European nations were
promulgated. Furthermore, it enabled economic integration between the six
Member States by providing a common market for coal and steel. Most
importantly, however, it put forth a workable structure for the
implementation of treaties that has endured into the present. The ECSC
marked the first step towards a supranational Europe.
In 1957, the Treaty of Rome provided the next step towards greater
European integration. The Treaty established the European Economic
Community (EEC) and the European Atomic Energy Community
(EURATOM). The ideas underlying the EEC were propagated through the
Spaak Report, which made its goal the establishment of a common market.16
Article 2 of the EEC gave the Community the task of “establishing a
common market” through the adoption of economic policies whose goal was
14 Id.
15 Id.
ed. 2010).

11
promoting the “harmonious development of economic activities.”17 The
central objectives of these economic activities were to promote closer
relations between Member States and increase Community standards of
living.
The establishment of a common market was the EEC’s greatest
achievement because it founded the famous “four freedoms” that underlie
the original six’s goal of free competition. These “four freedoms” include
the free movement of (1) persons, (2) services, (3) goods, and (4) capital.
The Treaty ultimately sought to “prohibit restrictive agreements and state
aids which can affect trade between Member States and whose objective is
to prevent or distort competition.”18
The EEC also established a customs union, “which required the
abolition of all customs duties or charges having equivalent effect on the
movement of goods between Member States and the establishment of a
common external tariff.”19 Furthermore, the Treaty established a “principle
of equal pay for work of equal value for men and women. 20
17 EEC art. 2
18 European Union, Treaty Establishing the European Economic Community, EEC
Treaty (Nov. 16, 2014, 6:27 PM),
http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_eec_
en.htm
ed. 2010).
20 Id.

12
Finally, the EEC created a similar yet refined institutional
arrangement through which its objectives could be achieved. This
arrangement included four central institutions. First was the Commission.
The Commission was a body independent of the Member States who was
tasked with “proposing legislation and checking that the Member States and
other institutions complied with the Treaty and any secondarylegislation.”21
The Assembly, which later became the European Parliament, was composed
of national parliamentarians, “had the right to be consulted in most fields of
legislative activity and was the bodyresponsible for holding the
Commission [accountable].”22 The Council was made up of representatives
of the Member States. The Council required unanimity in reaching the
majority of its decisions and held “the power of final decision.” Finally, the
Court of Justice was established to monitor compliance and to hear cases
brought before it by national courts.
EURATOM was also agreed upon following the Treaty of Rome. Its
main objective was to develop atomic energy, ensure the security of its
supply, and enable Member States who could not meet the costs of
harnessing the energy to benefit from a pooling of funding. Furthermore,
EURATOM committed itself to the peaceful civil use of nuclear energy as
21 Id.
22 Id.

13
its central requirement was the prevention of nuclear materials “from being
diverted to military use.”23 The firm oppositionto any activity that could be
seen as militant marked yet another step towards a more collegial, peaceful
Europe.
The ECSC, EEC, and EURATOM introduced Europe to the benefits
of Member State cooperation. However, this cooperation could have been
decimated without the help of the Court of Justice.
B. The Direct Effect of European Law
If the Treaties signed by the Community were to have any relevance,
nations and individuals had to know that they could rely on its provisions.
The new Communities would recede into irrelevance if a nation could
simply deny individuals the right to invoke Treaty provisions in their
national courts. Such was the question before the Court of Justice in the
famous case, Van Gend en Loos v NetherlandsInland Revenue
Administration.24
23 European Union, Treaty Establishing the European Atomic Community,
EURATOM Treaty (Nov. 16, 2014 6:32 PM), http://europa.eu/legislation_
summaries/institutional_affairs/treaties/treaties_euratom_en.htm.
24 Case 26/62, Van Gend en Loos v. Netherlands Inland Revenue Administration, 1963
E.C.J., ECR 1.

14
The facts of the case were relatively straightforward. Van Gend en
Loos, a postaland transportation company, imported chemicals from West
Germany to the Netherlands. The Dutch authorities charged an import duty
on the chemicals to which Van Gend en Loos objected. Under Article 12 of
the EEC Treaty (Article 30 TFEU today), “Member States shall refrain from
introducing between themselves any new customs duties on imports and
exports or any charges having equivalent effect, and from increasing those
which they already apply with each other.” Van Gend en Loos paid the tariff
then went to the Dutch tax court, the Tariefcommissie, in an attempt to
invoke Community law to reclaim the funds.
The principle issue before the court was as follows: “Whether Article
12 of the EEC Treaty has direct application within the territory of a member
state, in other words, whether nationals of such a state can, on the basis of
the article in question, lay claim to individual rights which the courts must
protect.”25 Thus, the ECJ sought to answer whether a party can invoke and
rely on provisions of Community law before a national court. The answer
was a resounding yes. The court stated: “Article 12 of the Treaty
establishing the European Economic Community produces direct effects and
25 Id.

15
create individual rights which national courts must protect.”26 The court
reasoned, “The Community constitutes a new legal order of international law
. . . that not only imposes obligations on individuals but is also intended to
confer upon them rights which become part of their legal heritage.”27
The importance of this opinion cannot be overstated. First, the Court
of Justice essentially created a “supranational organization that exists not
merely autonomously from the national legal orders but over and above
them.”28 By ratifying the Treaty “the States have limited their sovereign
rights.”29 Thus, even if Dutch law enabled the imposition of a tariff on Van
Gend en Loos, Community law, which expressly contradicts national law,
supersedes it. This created a legal system where Treaty provisions are
superior to national law and will prevail in most instances. This gave great
power to the Community as a singular unit and established the foundation
for what would become the European Union. It also made the ratification of
Treaty provisions extremely important to citizens and companies alike. If
measures contained within treaties are directly effective, legislative
negotiation and implementation become extremely important as it forces
26 Id.
27 Id.
ed. 2010).
29 Id.

16
different nations with different ideals to come together and create solutions
that strengthen Europe as a whole.
The Van Gend en Loos decision also outlined the criteria for directly
effective legislation. For a law to be directly effective, the article must: (1)
Be clear, (2) be a negative, rather than a positive obligation, (3)
unconditional, (4) containing no reservation on the part of the member state,
and (5) not dependent on any national implementing measure.30 We will
return to direct effect in our discussionof the Treaty on the Functioning of
the European Union (TFEU). Fornow, it is important to recognize that the
Van Gend en Loos decision set the stage for a larger, more powerful
European Union. A Union whose citizens now understood that they could
legally depend on the Treaties their countries agreed to.
C. Early Enlargements to the EEC
In 1963, Great Britain sought to join the Community because EEC
Member States were experiencing faster economic growth. However, French
President Charles De Gaulle vetoed the application. Four years later, the
United Kingdom, Ireland, Denmark, and Norway applied to join the EEC.
E.C.J., ECR 1.

17
However, De Gaulle once again vetoed the application. De Gaulle had his
reasons for rejecting the application, especially with regards to Great Britain.
De Gaulle saw British membership as a possible hindrance to its leadership
in Community policy. He also personally despised the United States who he
saw as Britain’s greatest ally both militarily and economically.31
Following the resignation of De Gaulle, negotiations were reopened in
The Netherlands. In 1973, the EEC formally accepted the United Kingdom,
Denmark, and Ireland into the EEC. Greece became a member in 1981
followed by Portugal and Spain in 1986. While the EEC was growing, the
economic downturn of the early 1980s made further economic integration
and market competitiveness a key issue for the EEC Member States to
address going forward.
D. The Single European Act
To combat the declining economy, EEC members began to push for
the completion of the “internal market.”32 The internal market was defined
by the Single European Act as “an area without internal frontiers in which
31 Christos Lymbouris, The Role of De Gaulle in the Integration Process (Nov. 16,
2014, 8:32 PM), http://testpolitics.pbworks.com/w/page/20734319/The%2
0Role%20of%20De%20Gaulle%20in%20the%20Integration%20Process.
ed. 2010).

18
the free movement of goods, persons, services and capital is ensured in
accordancewith the provisions of this Treaty.”33 This internal market would
seek to remove obstacles to the free movement of goods, capital, services,
and people. To achieve this goal, the decision making process ofthe Council
had to be reformed because Council decisions still required unanimity. Thus,
the EEC had to be amended to allow for greater latitude in decision-making.
The SEA amended the requirement for Council unanimity in all
decisions except those concerning “taxation, the free movement of persons,
and the rights and interests of employed persons.”34 The SEA also
established the European Council and enhanced Parliamentary power. This
was a step in the right direction, however, President Kohl of Germany and
President Mitterand of France advocated for further political integration
amongst Member States to make the SEA’s goals more sustainable.35 These
goals were laid out in the Treaty on European Union.
33 European Union, the Single European Act (Nov. 16, 2014, 8:40 PM),
http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_sing
leact_en.htm.
34 Id.
35 Collette Mazzucelli, France and Germany at Maastricht: Politics and Negotiations to
Create the European Union 138-39 (1997).

19
E. The Treaty on European Union
The Treaty on European Union was signed in Maastricht in 1992 and
entered into force in November 1993.36 The TEU was much more politically
ambitious than the EEC, which predominantly focused on economic
integration. The TEU outlined five primary goals: (1) Strengthen the
democratic legitimacy of the institutions; (2) improve the effectiveness of
the institutions; (3) establish economic and monetary union; (4) develop the
Community social dimension; and (5) establish a common foreign and
security policy. 37
The Treaty officially created the European Union consisting of three
pillars: (1) the European Communities, (2) common foreign and security
policy, and (3) police and judicial cooperation in criminal matters. The
European Communities bound themselves to a legislative process where the
European Commission proposes regulations which are then adopted by both
the Council and the European Parliament and are monitored for compliance
by the Court of Justice.38 The second pillar enabled Member States “to take
36 European Union, Treaty of Maastricht on European Union (Nov. 16, 2014, 8:51
PM), http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties
_maastricht_en.htm.
37 Id.
38 Id.

20
joint action in the field of foreign policy.”39 Finally, the third pillar, or the
field of justice and home affairs (JHA) established an expectation for the
Union “to undertake joint action so as to offer European citizens a high level
of protection in the area of freedom, security, and justice.” All three pillars
highlight just how far the European Union had come from the days of fierce
nationalism. By mandating legislative processescalling for profound
cooperation between European Member States, the EU kept its focus on
Europe as a whole, devoid of nationalistic preferences.
The Treaty also created the Economic and Monetary Union (EMU).
Under the EMU, Member States became bound to coordinate their economic
policies, allow for oversight, and subject themselves to financial discipline
for abridging their duties. The EMU also sought to establish a single
currency.40
Finally, the TEU made incredible strides in the field of citizenship.
Under the Treaty, all citizens of Member States became citizens of the
European Union. For instance, a citizen from Germany also became a citizen
of the Union following the ratification of the TEU. EU citizenship bestowed
new rights for all Europeans including, the right to reside freely in the
Community, the right to vote and run for office in their State, the right to be
39 Id.
40 Id.

21
protected by other Member States’ consulates in the event that a EU citizen
does not have access to his country’s consulate, and the right to petition the
European Parliament.41 These new rights accorded great leverage and
freedom to all EU citizens. For example, a French citizen now had the right
to move to Germany, to vote in France, to run for office in France, to be
protected by the Belgium consulate in the United States, and to petition the
European Parliament.
Two subsequent Treaties entered into force in 1997 and 2001. The
Treaty of Amsterdam largely dealt with employment policy while the Treaty
of Nice established qualified majority voting in the Council and the make up
of the Commission. Finally, the Treaty of Lisbon established the European
Union as we know it today.
F. The Treaty of Lisbon
The Treaty of Lisbon was signed in December 2007 after years of
heated debate between highly divided Member States. Out of this came two
treaties, the amended Treaty on European Union (TEU) and the Treaty on
the Functioning of the European Union (TFEU). Together, these Treaties
41 Id.

22
replaced all of the existing legislation previously agreed upon by Member
States.
Amongst the measures agreed upon within the Treaty on European
Union were the EU’s mission and values, democratic principles, the
composition and central functions of the EU institutions, procedures for
amending the new treaties, and provisions governing integration.42 Perhaps
the most important measure was Article 47, which gave the European Union
legal personality.43 This merged the European Communities into the EU.44
This gave the EU the ability to bind itself to international agreements,
“becomea member of international organization[s] and join international
conventions, suchas the European Convention on Human Rights
(ECHR).”45
The Treaty on the Functioning of the European Union (TFEU) is
much more important in practice because it “sets out the explicit
competences of the Union.”46 It is under the TEU and the TFEU that all
governments, citizens, and businesses within the EU are bound.
42 TEU art. 3
43 TEU art. 47
44 European Union, Legal Personality of the Union (Nov. 16, 2014, 9:04 PM),
http://europa.eu/legislation_summaries/glossary/union_legal_personality_en.htm.
45 Id.
ed. 2010).

23
III. THE EUROPEAN UNION TODAY
The Preamble to the Treaty on European Union made two things
clear. First, the European Union is a supranational organization whose goal
is to unite Europe as much as possible. The text explicitly “Recall[s] the
historic importance of the ending of the division of the European continent
and the need to create firm bases for the construction of the future Europe.”47
To accomplish this, the TEU “Desire[s] to deepen the solidarity between
their peoples while respecting their history, their culture and their
traditions.”48 This is no easy task. Today, the EU has twenty-eight Member
States, twenty-four different official languages, and countless different
cultures and traditions. This makes the differences spread across the United
States, for example, seem trivial. The TEU seeks to tackle this great
divergence of ideas by “enhanc[ing] further the democratic and efficient
functioning of the institutions so as to enable them better to carry out, within
a single institutional framework, the tasks entrusted to them.”49
47 TEU Preamble
48 Id.
49 Id.

24
A. Institutions
Article 13 of the TEU sets out seven institutions for all areas of EU
cooperation. This cleaned up the mess left over by previous treaties. Today,
(1) the European Parliament, (2) the European Council, (3) the Council, (4)
the European Commission, (5) the Court of Justice of the European Union,
(6) the European Central Bank, and (7) the Court of Auditors, “ensure the
consistency, effectiveness and continuity of [EU] policies and actions.”50
Under Article 4, the “competences not conferred upon the Union in the
Treaties remain with the Member States.” Therefore, the aforementioned
institutions have no legal authority to act outside of the explicit competences
granted to them through the TEU and TFEU.
1. The European Parliament
Article 14 lays out the European Parliament’s legislative ability,
membership, and voting powers. Parliamentarians are elected every “five
years by direct universal suffrage in a free and secret ballot.”51 Just this year,
Europeans elected a new Parliament. It is interesting to note that the EU’s
50 TEU art. 13
51 TEU art. 14

25
voter turnout for 2014 was 43.09%. EU Parliamentary elections have been
experiencing a downward trajectory in voter turnout since its high of 62% in
1979.52 The United States posted similarly disappointing voter turnout
numbers in its midterm election this year. The 2014 U.S. midterm elections
hit a 72-year voter-turnout low of 36.4%. It appears that the ever-increasing
polarity between political viewpoints has had an adverse effect on voter-
turnout on both sides of the Atlantic.
Article 14 also allocates 750 Parliamentary seats with an extra seat for
the President of the Commission, whom it elects. These 750 seats are
allocated through degressive proportionality. This system is very similar to
the United States House of Representatives. For example, Germany, the
largest EU Member State by population, has the most seats within
Parliament. Similarly, California, the largest United State, has the most seats
in the House of Representatives. However, it does not allocate seats strictly
proportional to Member State population. Under Article 14(2) of the TEU,
even the smallest Member State, Malta, is allocated 6 seats in the
Parliament. Malta has a just under 450,000 citizens. Germany is the largest
country allocating it the maximum 96 seats possible under Article 14(2).
Germany has a population of 80.7 million. Simple math will tell you that
52 UK Political Info, European Parliament Election Turnout 1979-2014 (Nov. 16, 2014,
9:12 PM), http://www.ukpolitical.info/european-parliament-election-turnout.htm.

26
Malta has one representative for every 75,000 citizens while Germany has
one representative per every 840,000 citizens. Thus, EU Member States like
Germany, France, and the United Kingdom made dramatic concessions in
the elections of Parliament in their effort to include smaller countries in the
political process. This highlights the EU’s goal of free competition and
adheres to Ricardian economic principles.
EU legislation must also pass Parliamentary muster and will be
discussed below in the section “Legislative Process.”
2. The European Council
Under Article 15(2) of the TEU, “The European Council shall consist
of the Heads of State or Government of the Member States, together with its
President and the President of the Commission.” The heads of state are each
country’s top executive from a formal standpoint. For instance, the Prime
Minister of United Kingdom and the Federal Chancellor of Germany are
European Council members because their titles are paramount within their
respective governments. The European meets “twice every six months, [and
are] convened by its President.”53
53 TEU art. 15(3)

27
The President of the European Council is elected “by a qualified
majority, for a term of two and a half years, renewable once.”54 The
President’s responsibilities include chairing and driving meetings,
facilitating consensus amongst heads of state, presenting a report to
Parliament after each meeting, and making sure that the agenda set by the
European Council is being implemented through the other institutions.55
This is an exceedingly difficult task. For example, if the President of France
were elected European Council President, he would be expected to work and
negotiate an agenda with smaller Member States who may not share his
same views or aspirations. Furthermore, the President must somehow appear
neutral which could expose him politically back home. This duty provides
yet another way the EU places European solidarity ahead of nationalistic
predilections.
Article 15(1) prohibits the European Council from “exercise[ing]
legislative functions,” but it does command the European Council to define
the general political direction as well as the priorities of the EU. A good way
to think about the European Council is as a collective presidency. Here in
the United States, President Obama has no legislative power, however, he
does outline objectives and priorities in his political agenda. He then
54 TEU art. 15(5)
55 TEU art. 15(6)

28
advocates for Congress to aid him in accomplishing this agenda through its
legislative powers.
The European Council does, however, exercise power in certain areas.
For instance, it sets the criteria to be met by a state wishing to join the
Union.56 Under Article 48(3) of the TEU, the European Council has “the
power to instigate treaty reform.”57 This process includes consultation with
Parliament and the adoption “bya simple majority” of the amendments by
the Commission. The President of the European Council may then “convene
a Convention composed ofrepresentatives of the national Parliaments, of the
Heads of State . . . of the European Parliament and of the Commission.” This
power compliments the European Council’s overall agenda-setting power. In
this way, the European Council exerts more controlover the EU governing
bodythan the President of the United States exerts over Congress. The U.S.
President can ask for Congress to convene and tackle legislation, however,
Congress is not compelled to acquiesce under United States federal law.
56 TEU art. 49
57 TEU art. 48(2)-(4)

29
3. The Council of Ministers
Like the European Council, the Council of Ministers, also known as
the Council of the European Union or simply the Council, represents
national interests. The Council has 28 representatives, or one from each
Member State. This representative is authorized to “commit the government
of the Member State in question and cast its vote.”58 An interesting wrinkle
exists within the Council in that it has ten different configurations. These
configurations include: (1) General affairs, (2) foreign affairs, (3) economic
and financial affairs, (4) justice and home affairs, (5) employment, social
policy, health and consumer affairs, (6) competitiveness, (7) transport,
telecommunication and energy, (8) agriculture and fisheries, (9)
environment, and (10) education, youth, culture and sport. Thus, each
Member State has a representative for each configuration.
This seems like a very complicated system, however, it does ensure a
certain extent of expertise. Under this system, Member States can send their
experts in each field without being forced to send one representative
responsible for understanding each and every configuration. In a way, this is
better than the Congressional approachused in the United State’s because
58 TEU art. 16(2)

30
Congressmen often have no special knowledge or expertise in certain fields.
As a result, they often vote along party lines and may do a disservice to their
state’s interests in the process.
Like the European Council, The Council of Ministers has its own
President, however, this presidency only last six months. The Presidency is
held “byMember State representatives . . . on the basis of equal rotation.”59
This President is charged with convening Council meetings and setting the
daily agenda.
Most importantly, the Council is part of the bicameral legislative
branch of the EU. Along with the European Parliament, the Council
“exercises[s] legislative and budgetary functions.”60 Most legislation is
passed through qualified majority voting. This complicated process is seen
as a compromise between larger Member States, who seek greater EU
representation because of its larger populace, and smaller Member States,
whose agendas could be disregarded due to their relatively small populace.
Qualified majority voting is complex. First, larger states get more
“votes” than smaller states. For example, Germany, France, Italy and the
United Kingdom each get 29 votes tallied towards each piece of legislation.
Meanwhile, Estonia, Cyprus, Latvia, Luxembourg and Slovenia only get 4
59 TEU art. 16(9)
60 TEU art. 16(1)

31
votes apiece. The total amount of votes for all Member States is 345. For
legislation to pass the Council it must first be adopted by a majority of
countries, or 15 today. Second, the legislation must garner acceptancefrom a
majority of voting weights, which equals 255 of the possible 345 votes or
74%. Member States can ask for the legislative process to be taken one step
further. In this circumstance, the legislation has to garner the supportof 62%
of the total EU population as calculated by Member State representative
votes. This is seen as a check on smaller state collusion to defeat a larger
state interests in the legislation.
For instance, if Germany, who represents 16.5% of the total EU
population, vetoes a bill that was supported by20 smaller member states
representing at least 72% of the voting weight, it can defeat the bill by
showing that without its population, the legislation fails to meet the 62%
benchmark.61 This complex formula is what the EU had deemed most fair in
light of the enormous disparity in population between Member States.
However, this formula was altered on November 1 of this year.
Qualified majority now means that 55% of Member States must vote
for the legislation and those States must comprise 65% of the EU population.
61 TFEU art. 238

32
To block legislation, at least 4 Member States representing at least 35% of
the EU population have to vote against the legislation.62
If a bill passes these three tests, it will enter into force as long as it has
Parliamentary consent. The greater legislative process will be discussed
below.
4. The European Commission
The European Commission serves as a neutral legislative bodywithin
the EU. It is made up of 28 commissioners, one from each state, who serve
five-year terms.63 This is a fascinating governing bodybecause of its
unrivaled commitment to neutrality. This commitment is illustrated by the
requirement that Commissioners “be completely independent” from the
interests of their respective national governments to the point that their
“independence is beyond doubt.”64 Correspondingly, Commissioners must
completely devote their efforts to the EU, they may not hold any other
position in any other field, and they must disregard all national interests.
62 TEC art. 238(3)
63 TEU art. 17(1) & (3)
64 Id.

33
While this would seem like an impossible task, there are multiple
measures in place to safeguard Commissioner independence. First, the
European Council proposesthe Commission’s President to the European
Parliament who may or may not elect the candidate.65 Once the President’s
neutrality is agreed upon, the Council and the nominated President appoint
the other 27 Commissioners from the remaining Member States. Like the
President, these 27 candidates do not becomeCommissioners until
Parliament gives them their vote of approval in light of their independence.66
Once Commissioners are in office, “they remain accountable to Parliament,
which has the sole power to dismiss the Commission.”67 This power derives
from Article 17 of the TEU, which commands Commissioners to neither
seek nor take instructions from anyone and “refrain from any action
incompatible with their duties of the performance of their tasks.”68 Thus,
Commissioner independence is absolutely indispensable to the position.
The duties of the President of the Commission are far greater than
those outlined for the President’s of the Council and the European Council.
He/she is responsible to “(a) lay down guidelines within which the
65 TEU art. 17(7)
66 Id.
67 European Union, European Commission (Nov. 17, 2014, 9:09 AM),
http://europa.eu/about-eu/institutions-bodies/european-
commission/index_en.htm.
68 TEU art. 17(3)

34
Commission is to work; (b) decide on the internal organization of the
Commission, and (c) ensur[e] that it acts consistently [and] efficiently as a
collegiate body.”69 It is an incredible responsibility to make sure that all
other 27 Commissioners remain independent of outside pressures. To avoid
the entire dismissal of the Commission by Parliament, the President has the
power to request the resignation of a Commissioner who is then bound to
step down.70
The Commission’s objectives are many. It (1) proposes new laws to
Parliament and the Council, (2) manages the EU’s budget and allocates
funding, (3) enforces EU law, and (4) represents the EU internationally be
negotiating agreements with countries outside of the EU.71
The Commission is the sole EU bodythat initiates actual legislation
that binds the entire EU. “It does this only on issues that cannot be dealt with
effectively at national, regional or local levels.”72 This is the Principle of
Subsidiarity. The Commission is further restricted by the Principle of
Proportionality, which disallows any Union action from exceeding what is
69 TEU art. 17(6)
70 Id.
71 TEU art. 17(1)
72 European Union, European Commission (Nov. 17, 2014, 9:17 AM),
http://europa.eu/about-eu/institutions-bodies/european-
commission/index_en.htm.

35
necessary to achieve the objectives of the European Treaties.73 The greater
legislative process will be discussed below.
The Commission also enforces EU law. In this way, the Commission
is the “guardian of the Treaties.”74 If the Commission believes that a
Member State is failing to apply EU law, it first asks the State to correct the
problem. If the State fails to do so, the Commission has the right to “refer
the issue to the Court of Justice,” who may then impose fines and
penalties.75
5. The Court of Justice
The Court of Justice sits in Luxembourg and its main purposeis to
interpret “EU law to make sure it is applied in the same way in all EU
countries.”76 The Court “consist[s]of one judge from each Member State.”
These judges are charged with,
(a) rul[ing] on actions brought by a Member State, an institution or a natural
or legal person; (b) giv[ing] preliminary rulings, at the request of courts or
tribunals of the Member States, on the interpretation of Union law or the
73 TEU art. 5(4)
74 TEU art. 17(1)
75 Id.
76 European Union, Court of Justice of the European Union (Nov. 17, 2014, 9:21 AM),
http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm.

36
validity of acts adopted by the institutions; [and] (c) rul[ing] in other cases
provided for in the Treaties.77
Each judge is selected by each Member State to serve a term of six
years and may be reappointed for an additional term.78 Similar to judges here
in America, ECJ judges need assistance. They get this assistance from
“Advocates-General” who operate similarly to law clerks here in the States.
The stark difference, however, is that these Advocates-General are appointed
to the same six-year term as the judges they work for and can be reappointed
at the will of Member States.79 The Court of Justice gets further assistance
from the General Court. This court “deals with cases brought forward by
private individuals, companies and some organizations, and cases relating to
competition law.”80
Thus, the system is very similar to our federal court system. The
General Court handles the majority of the cases brought forth involving the
interpretation and application of EU law. In the United States, the Federal
District Courts interpret federal law and apply the facts to the said law.
Furthermore, the General Court can hear disputes between individuals or
legal persons who reside in different Member States. This provides a neutral
77 TEU art. 19(2)-(3)
78 TEU art. 19(2)
79 Id.
80 European Union, Court of Justice of the European Union (Nov. 17, 2014, 9:26 AM),
http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm.

37
third-party to hear the dispute and give litigants confidence that nationalistic
preferences will not compromise judgment. This is much like diversity
jurisdiction in United States District Courts.
If the dispute is exceedingly important, it goes before the ECJ, which
operates similarly to the United States Supreme Court. The five most
common types of cases the ECJ hear include: (1) requests for a preliminary
ruling, (2) actions for failure to fulfill an obligation, (3) actions for
annulment, (4) actions for failure to act, and (5) direct actions.81
Requests for preliminary rulings are extremely beneficial to the EU as
a whole. With 28 Member States and 24 different official languages, certain
laws put forth by the EU run the obvious risk of misinterpretation. To guard
against this, a Member State may request advice from the Court of Justice.
Once the interpretation is clear, the Member State can conform with the
legislation and therefore the goals the EU sought to achieve. It can also
avoid being in violation of the law thereby steering clear of suits brought by
other Member States or individuals.
Actions for failure to fulfill an obligation occurwhen either the
Commission or a Member State believes that another Member State is in
81 Id.

38
violation of EU law, or it is failing to fulfill its obligations under EU law.82
If the Court finds that the country is violating EU law it gets the opportunity
to “put things right at once” or subject itself to a fine.83 This “second
chance” makes sense especially when a Member State’s national law
conflicts with EU law. New legislation can take time to properly develop
and implement, making it fair to give a country a little more time to
conform.
Actions for annulment concernthe legality of EU law. Forinstance,
the Commission can proposea law that is eventually passed by the
Parliament and the Council of Ministers and then implemented on a national
level. However, if the EU violates the Principle of Subsidiarity by adopting
legislation that can be handled at national or even local levels, a Member
State can request the ECJ to annul the law. This authority is identical to the
U.S. Supreme Court’s authority to hold federal legislation unconstitutional.
Actions for failure to act concern the failure of an EU institution to
fulfill its obligations under the Treaties. Direct actions occurwhen “any
personor company has suffered damage as a result of the action or inaction
of the Community or its staff.”84 This brings to mind the Van Gend en Loos
82 Id.
83 Id.
84 Id.

39
case where a company was forced to pay an import duty in violation of
Community law. There, the company was compensated for the expenses it
paid to Dutch authorities because the EU law at issue superseded the
national law.
IV. THE LEGISLATIVE PROCESS
The European Union consists of 500 million people living in 28
different countries who speak 24 different languages and adhere to countless
different cultural norms. With this diffuse and complex citizenry in mind, it
is understandable why the legislative process in the European Union is so
complicated. How can the Union adoptlegislation that benefits the EU as a
whole without overly disadvantaging some? The Treaty of Lisbon, the TEU
and the TFEU are Europe’s most recent answer to this question. These
Treaties have produced an exceedingly complex process that legislation
must sustain. Nevertheless, the complexity of the process yields a system
with multiple checks and balances, where principles of neutrality and greater
European unity trump nationalistic predilections.

40
In its simplest form, the legislative process canbe summed up as
such. First, the European Council, which is represented by the heads of each
Member State, define the general political direction they deem best for the
entire EU. They then highlight priorities they would like to see the other
institutions strive towards. Citizens, experts, and interest groups also discuss
how best to achieve these priorities and lobby the EU to take their respective
positions. Second, the European Commission, who is independent of
national pressures, proposes legislation to the Parliament. Third, the
European Parliament, who is elected by their Member States and thus serves
their interests, gives the legislation its first reading and either adopts the
legislation or amends it. Fourth, the same piece of legislation comes before
the Council of Ministers. The Council gives it its first reading and if both
Parliament and the Council agree on the legislation it enters into force. Once
the legislation enters into force, it is binding on all Member States.85 Finally,
if the directives are violated by any Member State, business, or individual,
the Court of Justice has the authority to remedy the injury. Of course, the
actual legislative process involves additional intricacies but it is important to
gain a general understanding before diving into the details.
85 TFEU art. 294

41
A. Comprehensive Legislative Process
The legislative process is outlined in Article 294 of the TFEU. Under
Article 294, the Commission kicks off the official legislative process by
preparing “legislative proposals on its own initiative or at the request of
other EU institutions.”86 More often than not, the Commission makes
proposals on its own initiative. This “right of initiative” is enshrined in
Article 17(2) of the TEU, which states: “Union legislative acts may be
adopted only on the basis of a Commission proposal.” The Commission
drafts legislation and proposes the measure as long as it garners a simple
majority of Commissioner approval. The Commission will then send their
proposals to the European Parliament and the Council of Ministers.
Once the proposalis sent to Parliament, its President appoints the
committee, or committees, that have expertise in the area.87 These
committees debate the legislation and may call on the Commission to defend
the positions it put forth. Once the legislation is adopted by the appropriate
committee, “it is placed on the plenary agenda.”88 The plenary, or the 751
Members of the European Parliament, discuss and debate the legislation and
86 European Union, Legislative Powers: Ordinary Legislative Procedure (Nov. 17,
2014, 9:36 AM), http://www.europarl.europa.eu/aboutparliament/en/0081f4b3
c7/Law-making-procedures-in-detail.html.
87 Id.
88 Id.

42
subject it to a vote. Parliament requires a simple majority to approve
legislation.
Parliament has three options, (1) reject the proposalas a whole, (2)
approve the proposalwithout amendments, or (3) approve the proposal
subject to amendments. To better understand the entire process;let’s assume
that Parliament adopts the proposalsubject to amendments. In this case, the
final draft of the bill is postponed until the Commission has a chance to state
its position on each amendment. If the Commissions position can be
reconciled in Parliament, Parliament submits its official position to the
Council of Ministers.89
The Council of Ministers receives the legislation at the same time as
Parliament; however, they are unable to adopttheir own position until after
Parliament has spoken. The Council makes its first reading then reaches a
“political agreement.” This agreement is “a broad outline of its proposed
first reading position.”90 After receiving Parliament’s position and
conducting its own first reading, the Council puts forth its amended
proposal.
The Council’s proposalthen goes before Parliament who may accept
the position. If this happens, the legislation is approved. Parliament may also
89 Id.
90 Id.

43
reject the Council’s position. If this happens the legislation will not enter
into force.91 Parliament’s remaining choice is to proposeamendments in a
similar fashion to its first reading, then send their renewed position back to
the Council. If the Council accepts Parliament’s newest amendments, the
legislation will pass. If the Council only approves some amendments, the bill
goes before the Conciliation Committee.92
It makes sense to require a Conciliation Committee. If the process has
progressed this far, it seems obvious that the general goal of the bill is
important enough to pass. Thus, Article 294(8) requires that “the President
of the Council” and “the President of the European Parliament . . . “convene
a meeting of the Conciliation Committee.” The Conciliation Committee is
“composed ofthe members of the Council . . . and an equal number of
members representing the European Parliament.”93 The committee is tasked
with “reaching agreement on a joint text . . . on the basis of the positions of
the European Parliament and the Council at second reading.”94 The
Committee has six weeks to adopta joint text. If they cannot agree the bill
91 Id.
92 TFEU art. 294(8)
93 TFEU art. 294(10)
94 Id.

44
fails to enter into force. If the Committee does agree, they send the text back
to Parliament and the Council for a third and final reading.95
The text sent to Parliament and the Council from the Conciliation
Committee cannot be altered. Parliament votes in plenary and still requires a
simple majority. The Council votes by qualified majority.96 If both
bicameral institutions approve the legislation, it enters into force. If either
institution rejects the Conciliation Committee’s text, the bill is officially
dead. This convoluted legislative process was summed up by Professor
Siegfried Fina of the University of Vienna in his chart below.
95 TFEU art. 294(13)
96 European Union, Legislative Powers: Ordinary Legislative Procedure (Nov. 17,
2014, 9:44 AM), http://www.europarl.europa.eu/aboutparliament/en/0081f4b3
c7/Law-making-procedures-in-detail.html.

45
Many laws have survived this gambit and have thus becomebinding
on all Member States, individuals, and businesses. Perhaps the most
important group of laws passed bythe European Union involve the “four
freedoms.” These include the free movement of (1) goods, (2) people, (3)
services, and (4) capital. To better understand these four freedoms, it is

46
helpful to look at a real life example taken from my studies abroad in
Vienna, Austria.
V. EU LAW AS APPLIED TO A CITIZEN
“Vienna wasn’t just a city, it was a tone that either one carries forever in
one’s soul or one does not. It was the most beautiful thing in my life.”
-Sandor Marai.
A. Introduction
It was my first night out in Vienna. A light spring rainstorm gave
Vienna a brisk and refreshing aura more intoxicating than anything I had
ever experienced in a metropolitan city. The people, the architecture, the art,
and the music all contribute to an enticingly addictive ambiance making
Vienna the most beautiful city I have ever had the pleasure of visiting. The
city’s profound magnetism affects people from around the world. In fact,
20% of Vienna’s two million inhabitants are foreigners.97
97 Vienna in Figures (Nov. 17, 2014, 10:28 PM),
https://www.wien.gv.at/statistik/pdf/viennainfigures.pdf.

47
Andreas, a student who studied law at the University of Vienna, was
kind enough to invite me to the celebration of his friend’s graduation from
law school. I walked into the room unsure of what to expect. Here I was in a
new city meeting new people. Would they like me? Do they like Americans?
Should I have attempted to learn more German?
There are few experiences in life that induce more anxiety than
walking into a party in a foreign country alone. However, I quickly realized
that the anxiety I felt towards this new experience was thoroughly
unfounded. Andreas and his friends were exceedingly welcoming and made
sure I had a good time. Throughout the night Andreas introduced me to
wonderful people, but none more wonderful than Sandra. Sandra was very
tall, very blonde, and very beautiful. Her tremendous beauty would
intimidate any man, but she was precisely the kind of woman I dreamt of
meeting. And luckily for me, her charm matched her beauty. Throughout the
night she revealed a quick rendition of her life story.
B. Citizenship
Sandra was born in Slovenia, with both of her parents carrying
Slovenian citizenship as well. Under Article 20 of the TFEU, “Every person

48
holding the nationality of a Member State shall be a citizen of the Union.
Citizenship of the Union shall be additional to and not replace national
citizenship.”98 Slovenia was once part of the Austro-Hungarian Empire and
was more recently “oneof Yugoslavia’s six constituent republics.” 99
Slovenia officially became a member of the European Union in 2004.100
Slovenia uses the conceptof jus sanguinis as one of its means for
acquiring citizenship. 101 Under this concept, “a personmay obtain
citizenship of the Republic of Slovenia through his or her parents or at least
one of them, provided that the parent is a Slovenian citizen at the time of
birth of the aforementioned person.”102 Both of Sandra’s parents were
citizens of Slovenia when she was born, thus, according to Slovenian law
she is a citizen of the Republic of Slovenia. Because she is a citizen of
Slovenia, and Slovenia is a Member State, Sandra is a citizen of both her
home country and the Union.
98 TFEU art. 20
99 Slovenia as a Member State, (Nov. 17, 2014, 10:30 AM), http://europa.eu/about-
eu/countries/member-countries/slovenia//index_en.htm.
100 Id.
101 Republic of Slovenia Ministry of the Interior, Citizenship in Slovenia, (Nov. 17,
2014, 10:31 AM), http://www.mnz.gov.si/en/services/slovenia_your_new_country/
102 Id.

49
C. Fundamental Rights
As an EU citizen, Sandra enjoys certain fundamental freedoms
available to all citizens of the Union. These include: Article 21(1) “the right
to move and reside freely within the territory of the Member States;”103 and
Article 45 “the right to move freely within the territory of Member States” to
work.104 Article 45(2) of the TFEU states that “Such freedom of movement
shall entail the abolition of any discrimination based on nationality between
workers of the Member States as regards employment, remuneration and
other conditions of work and employment.”105
Sandra moved to Vienna 5 years ago and is currently employed as a
marketing associate for a travel agency. Though I do not know how easy this
transition was for her, one can’t help but admire the fact that the Member
States of the European Union have shown an exceptional ability to
collaborate and cooperate. The TFEU is one in a long line of treaties made
between an ever-growing number of Member States. The fundamental
freedoms granted to EU citizens via these Treaties convey Europe’s general
willingness to forgo nationalistic preferences for the betterment of the Union
103 TFEU art. 21
104 TFEU art. 45
105 Id.

50
as a whole. This is no small feat considering the EU comprises 500 million
citizens who come from 28 different countries and speak 24 different
languages. The fact that it is even possible for the 28 Member States of the
EU to agree on any treaty and the fact that EU law is disseminated in all 24
official highlights a level of cooperation that has no international equal.
As a citizen of both Slovenia and the EU, Sandra has the ability to
rely on the provisions set forth in treaties adopted by all Member States.
This powerful right was first adopted by the European Court of Justice in the
landmark case Van Gend en Loos v NetherlandsInland Revenue
Administration. 106There, the European Court of Justice articulated the
principle of direct effect. When legislation adopted by Member States is
directly effective “individual rights which national courts must protect” are
created.107 The criteria outlined in Van Gend en Loos for directly effective
legislation require that the article: (1) Be clear, (2) be a negative, rather than
positive obligation, (3) unconditional, (4) containing no reservation on the
part of the member state, and (5) not dependent on any national
implementing measure.108
E.C.J., ECR 1
107 Id.
108 Id.

51
The TFEU provisions outlined above all meet these criteria. For
instance, TFEU Article 21, which confers EU citizens with “the right to
move and reside freely within the territory of the Member States,” is: (1)
Very clear, (2) it does not require a citizen to do anything positive before
they move to another member state, (3) it is a right without any conditions
attached, (4) no member states reserve the right to deprive certain citizens of
the right to enter their territory, and finally (5) the provision does not require
a member state to implement any measure to allow the free movement of
persons into their country. Thus, Sandra can rely on Article 20 of the TFEU
if her residence in Austria ever came into question or was hindered in any
unlawful manner.
Article 45 of the TFEU also meets the Van Gend en Loos criteria and
is thus a directly effective measure that Austria is bound to uphold. This
includes “the abolition of any discrimination based on nationality between
workers of the Member States as regards employment, remuneration and
other conditions of work and employment.”109 Thus, if Sandra were ever
denied access to work, compensated less than an Austrian in her same
position, or forced to work in sub par conditions solely because she is of
Slovenian descent, she could rely on Article 45 of the TFEU in an action
109 TFEU art. 45

52
against an individual, a company, or even Austria itself, depending on the
genesis of the discrimination.
In sum, Sandra is a citizen of Slovenia, which has been a member of
the EU since 2004. As a citizen of a member state she is a citizen of the EU
under Article 20 of the TFEU, granting her certain fundamental freedoms.
Two of these freedoms include the right to reside here in Austria and the
right to be protected against discriminatory employment practices while she
resides here. It appears this has been the case for her since moving to
Vienna. She tells me that she absolutely loves the city and plans on staying
longer.
Before coming to Vienna to study I was unaware that there were such
fundamental rights available to all members. It would appear that the general
youth of the European Union is quite beneficial. The Member States and
their leaders have been able to look at the governmental makeup of other
countries, gauge their strengths and weaknesses, and have, in my opinion,
adopted progressive measures that promote international harmony. The EU
is not perfect, however it is moving in a direction that the rest of the world
would be well served to explore. The measures put in place enable EU
Member States to maximize the tremendous potential available within its
borders.

53
D. Right of Establishment and the Right to Provide Services
Let’s imagine that Sandra is quite successfulin her job and would like
to one day open her own travel agency in Vienna. Let’s also imagine that she
already owned and operated a similar company in Slovenia. Companies must
satisfy two requirements to trigger the rights afforded to EU establishment.
First, they must be “formed in accordancewith the law of a Member State.”
110 Second, the company must either “hav[e] their registered office, central
administration or principal place of business within the Union.”111 Thus,
Sandra would have to establish her company in accordancewith the law of a
member state. It would be advisable for her to form her company in
accordancewith Irish law as they have a tax structure that is internationally
recognized as beneficial. If she were to open her primary business here in
Vienna, the city she loves, she would satisfy the second Article 54
requirement for establishment.
Article 54 was held directly effective in Case 81/87, TheQueen v.
H.M. Treasury and Commissioners of Inland Revenue, 1988, E.C.J., ECR 1.
There, the ECJ stated: “The transfer of the central management and control
110 TFEU art. 54
111 Id.

54
of a company to another Member State amounts to the establishment of the
company in that Member State because the company is locating its centre of
decision-making there, which constitutes genuine and effective economic
activity.”112 Therefore, the relocation of Sandra’s company from Slovenia to
Vienna cannot be hindered, and the Austrian government must afford this
right of establishment devoid of any discrimination.
If Sandra formed her business in the manner outlined above, her
company would enjoy certain rights granted through the TFEU. Amongst
these includes the right to equal protection under Article 49. Article 49
states: “restrictions on the freedom of establishment of nationals of a
Member State in the territory of another Member State shall be
prohibited.”113 Additionally, Article 55 states: “Member States shall accord
nationals of the other Member States the same treatment as their own
nationals as regards participation in the capital of companies or firms . . .
without prejudice to the application of the other provisions of the
Treaties.”114 Furthermore, her company would have the right to “be treated
in the same way as natural persons who are nationals of Member States.”115
Thus, under the TFEU Sandra’s company could not be discriminated against
112 Id.
113 TFEU art. 49
114 TFEU art. 55
115 Id.

55
with regards to her ability to open and operate a business in Vienna despite
the fact that she formed her business in Ireland and is a Slovenian national.
Considering the fact that a travel agency does not usually provide
tangible products, Sandrawould be offering a service, and services enjoy
further protection under the TFEU. Forexample, Article 56 states:
“restrictions on freedom to provide services within the Union shall be
prohibited in respectof nationals of Member States who are established in a
Member State other than that of the person for whom the services are
intended.”116 Therefore, if Sandra’s office were here in Vienna and
established in Ireland, the services she provided to an Austrian national, for
example, would be free from any Austrian regulation at odds with EU law.
This is a tremendous freedom that it allows for greater competition, which
is, in the end, beneficial to consumers.
Article 61 would additionally protect Sandra’s business, as “each
Member State shall apply such restrictions without distinction on grounds of
nationality or residence to all persons providing services within the
meaning.”117 Thus, if the Austrian government sought to heighten
requirements for travel agents, such as requiring that they have a university
degree for example, they could not require her to get better grades or go to a
116 TFEU art. 56
117 TFEU art. 61

56
better schoolthan an Austrian national, because that would be blatant
discrimination.
E. The Right of Reparation
If Sandra were discriminated against, or denied any of the
aforementioned fundamental freedoms by Austria, she would have the right
to redress her damages in the Court of Justice. The Court has repeatedly
held, “the principle that the State is liable for loss and damage caused to
individuals as a result of breaches of Community law for which the State can
be held responsible is inherent in the system of the Treaty.”118
Sandra’s recovery would then turn on her ability to prove three
conditions. First, “the rule of law infringed must be intended to confer rights
on individuals.”119 Second, “the breach must be sufficiently serious.” 120 And
third, “there must be a direct causal link between the breach of the obligation
resting on the State and the damage sustained by the injured party.”121
The first prong would be easy enough for Sandra to prove. The right
of establishment and the right to perform services are fundamental freedoms
118 Case C-392/93 The Queen v. HM Treasury ex parte British Telecommunications,
1996, E.C.J., ECR I-1631.
119 Id. at Paragraph 39.
120 Id.
121 Id.

57
that the Treaties directly bestowupon individuals. The second prong would
be met if, for example, Sandra could prove that the discrimination she
suffered at the hands of Austria amounted to her unemployment and
subsequent departure from the country. The third prong could be difficult to
prove. To show a direct causal link, Sandra would have to prove corruption
or discriminatory practices at the government level. This could prove to be
an exceedingly expensive endeavor as discovery on such a scale would take
great effort. However, if she were able to meet this more difficult third prong
she would be entitled to the recovery of damages from the Austrian
government.
VI. CONCLUSION
The plethora of freedoms Sandra enjoys from being a citizen of
Slovenia and the Union are quite impressive. She is free to move throughout
the EU. She is free to reside anywhere within the EU. She is free to work
anywhere in the Union and she possessesrights protecting her from
discrimination based on her nationality. She is free to establish a business
anywhere in the Union. She is free to set up her principal office here in
Vienna. And finally, she is free to provide services without fear of being

58
discriminated against for her Slovenian descent. If her rights are violated,
she is free to seek redress in the Court of Justice.
These rights convey just how impressive EU collaboration and
cooperation truly is. The fact that Sandra lives and works in Vienna without
having to overcome any substantial obstacle highlights just how far the
European Union has come.
The days of fierce nationalism are largely a thing of the pastfor EU
Member States. The EU continually learns from its past mistakes and makes
great effort to evolve into a system that satisfies its ever-growing
membership. This membership includes 28 different countries, 24 different
languages, 500 million people, and countless different cultures.
Incorporating these competing interests into a single organization is an
accomplishment that should be celebrated.
While the EU is not perfect, it has shown the world that reaching
across borders, accepting differences, and finding common ground produces
far greater benefits than clinging to nationalism. If the world is to move
forward and reach its greatest potential it must first dismantle the archaic
national allegiances that have plagued this planet throughout human history.
The European Union, its institutions, and its people confirm that we are one

59
species capable of tremendous accomplishments so long as we allow
ourselves to work together.

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