The Principle of Loyalty in EU Law

Front matter

Studies In European Law

The Principle ofLoyalty in EU Law

Marcus Klamert

Preface

The purpose of this book is to offer a thorough discussion of the principle of loyalty in European Union law. In spite of its continued provision in primary law, in wording that has remained almost unchanged since the Rome Treaties, there is no comprehensive English language study on loyalty to date. While also addressing the pertinence of loyalty in the Common Foreign Security Policy, the focus of this book is on the other areas of Union law. ‘Hard’, confrontational rules on conflict resolution such as supremacy, pre-emption and duties of abstention are discussed alongside ‘softer’, more cooperative duties of conflict prevention such as duties of consideration and coordination.

This book introduces a novel way of classifying the very diverse roles loyalty plays in the European Union. It will distinguish between the effects loyalty prescribes for interlocking the legal orders of the Member States with Union law (Loyalty and the Cohesion of European Union law), its application for preventing and resolving conflicts (Loyalty and Cooperation in the European Union), and its constitutional aspects (Loyalty and the Construction of the European Union). Cohesion deals with loyalty as the rationale for the intervention of Union law in the legal orders of the Member States by principles such as supremacy, effectiveness, direct effect, and the Union interest. The Part on Cooperation is concerned, in particular, with the delimitation of the powers between the EU institutions and the Member States in terms of the distribution and the exercise of competence in matters such as supporting competences and mixed agreements. Finally, the Part on Construction, among other things, deals with the role of loyalty in shaping the EU constitution and with the question of whether loyalty has been neglected in the prevailing narratives on this process.

Each of these parts of the book, as well as the three introductory chapters, addresses important and yet unresolved questions pertaining to loyalty. Thus, its relation to other central concepts of Union law, such as solidarity, pre-emption, the Union interest, institutional balance, and the unity of international representation, is explored. The limits to the application of loyalty are discussed by introducing the concept of amplification, as well as its position among general principles of Union law and its controversial role in what is perceived as judicial lawmaking. This book also suggests several ways to systematize the manifold obligations grounded on loyalty in Union law, distinguishing duties of consideration from duties of coordination and duties of abstention, as well as the application of loyalty as a legal principle, a rule of interpretation, a supporting legal basis, or a separate source of obligations.

This is a book that I have thoroughly enjoyed writing. It allowed me to reflect on aspects of EU law I had so far not yet written about, and at the same time revisit and re-explore issues that have preoccupied me during the past years. When I started work on this study, loyalty in Union law had only been the subject of limited scholarly attention. While this has changed over recent years, especially in the literature on external relations, I believe that this book will contribute both to many general issues in EU law as well as to some legal issues particular to Union loyalty.

I am grateful to a number of people for different reasons. I sincerely have to thank Stefan Griller for his unfaltering support, inspiring ideas, comments, and the ability to lay a finger on every weakness of argument. Christoph Grabenwarter has been a supportive, resourceful and encouraging protagonist in bringing this book to completion. Erich Vranes has been a truly inspiring colleague in his ambitions and his work ethic. I want to express my gratitude to Marise Cremona for hosting me at the Law Department of

This is an open access version of the publication distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact academic.permissions@oup.com viii Preface the European University Institute at a crucial phase of the work on this book, for her inspiring courses that I have been allowed to attend, and the encouragement to pursue my chosen topic. I also want to thank the Institute of European and Comparative Law at the University of Oxford for hosting me during another crucial period towards the end of my work on this book. Nicholas Aroney, Peter Thalmann, and Andreas Orator have commented on different parts of the manuscript. I would also like to express my gratitude to my former colleagues at the WU for providing a stimulating and friendly environment for conducting my research throughout the last few years.

Last but certainly not least, I am grateful to Paul Craig and Gräinne de Bürca for having included this book in their series, and to Oxford University Press for being supportive all the way.

Vienna and Brussels August 2013

This is an open access version of the publication distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact academic.permissions@oup.com

Contents

Table of Cases xiii Table of Instruments xxi Introduction 1 1. The Background Í 2. Caveats as Regards Perspective and Methodology 2 3. The System Applied in this Study 4

I. INTRODUCING LOYALTY

1. Loyalty in the EU Treaties 9 1. Introduction 9 2. Loyalty before the Lisbon Treaty 10 3. The Lisbon Treaty Amendments 11 4. Specifications of Article 4 (3) TEU in the Treaties 13 5. Loyalty and National Identities 19 6. The Vectors of the Application of Loyalty 22 7. Conclusion 29 2. Loyalty in Context 31 1. Introduction 31 2. Some Remarks on Terminology 33 3. Distinguishing the Union Principle of Solidarity 35 4. The Relation with the Principles of Good Faith and pacta sunt servanda 41 5. Federal Fidelity in the European Union 47 6. Conclusion 61 3. Loyalty and the Constitutionalization of EU Law 63 1. Introduction 63 2. Loyalty in the Literature 64 3. The Foundational Case Law Re-assessed 71 4, The Way Loyalty Has Been Used by the Court in the Foundational Case Law 80 5. Conclusion 83 Conclusion of the Introductory Part 84