Oxford Principles of European Union Law : Volume 1: The European Union Legal Order

Cover Half title Oxford Principles of European Union Law Copyright Summary Contents Table of Contents Table of European Court of Justice Cases Table of General Court Cases Table of Legislation Table of Treaties and International Instruments Table of Treaty on the European Union (TEU) Provisions Table of Treaty on the Functioning of the European Union (TFEU) Provisions Table of Equivalences Part I: History and Nature 1. An Historical Perspective I: From Community to Union (1957–​1993) I. The Launching of the EEC: 1952–​1972 A. Visions and Reality: The EEC Treaty B. The EEC Governing Institutions Begin Operations C. The Court of Justice: Composition, Operational Role, and Constitutional Doctrines (1) Structure and Operational Role (2) The Court’s Constitutional Doctrines D. The European Council Authorizes the First Enlargement II. 1973–​1984: Post-​enlargement Progress Followed by Euro-​stagnation A. The European Council Provides New Political Leadership B. Constitutional Developments: The Direct Election of Parliament C. The Court’s Constitutional Doctrines D. Progress Towards Achieving the Common Market E. New Fields of Action: Social Policy, Environmental Protection, and Consumer Protection III. 1985–​1993—​New Horizons: The Internal Market Programme and the Single European Act A. The June 1985 Internal Market Programme B. The Single European Act Rejuvenates the EEC C. New Ambitions: Monetary Union and the Maastricht Treaty (1) The Road to Monetary Union (2) The Road to Maastricht D. The Social Charter and the 1989 Social Action Programme E. Continuity in Court of Justice Doctrines IV. Conclusion 2. An Historical Perspective II: The New Architecture (1994–​2009) I. Introduction A. The Community Governmental Institutions Take on a Modern Look B. Enlargement: The Union’s Success Proves a Magnet C. The Road to Monetary Union and the Euro D. Maastricht and Amsterdam Treaty Innovations (1) The Subsidiarity Principle (2) Citizenship of the Union: Rights of Free Movement and Residence (3) New Fields: Social Policy, Employment Policy, Consumer Protection, Education, and Public Health (4) The 2000 Anti-​discrimination Directives (5) The Charter of Fundamental Rights E. Noteworthy European Community Developments, 1994–​2009 (1) Internal Market Programmes and Legislation (2) External Commercial Relations and Trade Policies (3) Competition Policy F. The Pillars: Intergovernmental Fields of Action (1) Common Foreign and Security Policy (CFSP) (2) Cooperation in Justice and Home Affairs (CJHA) II. Conclusion 3. An International Perspective I. Introduction II. The European Union as a Global Actor A. ‘State-​Like’ Actions of the EU in International Relations? B. Classifying the EU under Public International Law C. The Division of Competences between the EU and its Member States: Special Treatment? III. Reconsidering the Union’s External Posture in the Light of Sovereignty A. Sovereignty and Statehood B. Sovereignty under Public International Law: A Popular Element? C. EU Law’s ‘Original’ Nature Built on Assumed Sovereign Rights D. The National Perspective IV. Classification and Conclusion 4. A Constitutional Perspective I. Introduction II. An Autonomous, Self-​sufficient, and Coherent System of Norms III. The Constitutional Features of EU Law A. Individual Liberty, the General Interest, and Constitutional Pluralism (1) Limitations on Individual Liberty (2) Individual Liberty, EU Harmonization, and Value Diversity (a) In the Presence of EU harmonization (b) In the Absence of EU harmonization B. Federalism and the EU (1) The Principle of Conferral (2) Subsidiarity and Proportionality (a) The Principle of subsidiarity (b) The Principle of proportionality (3) The Principle of Sincere Cooperation (4) The Principle of National (Constitutional) Identity (5) Within and beyond the Bounds of the Principle of Conferral (6) Mutual Trust and Mutual Recognition C. The Principle of Institutional Balance (1) The Principle of Institutional Balance and the European Parliament (2) The Principle of Institutional Balance as Applied to the ECJ (3) New Challenges to the EU Institutional Framework (a) EU Agencies (b) A new form of governance? IV. The EU Principle of Democracy A. The Democratic Transformation of the EU B. Understanding Democracy in a Supranational Context C. The EU Principle of Democracy as Applied by the ECJ V. Concluding Remarks: A Constitutional Order of States and Their Peoples 5. A Comparative Perspective I. Two Europes A. Federal Europe (1) Competences (2) Sovereignty (3) Subsidiarity (4) Constitutionalism and the Democratic Deficit B. Intergovernmental Europe (1) Governmental Capacity (2) Administrative Capacity and Implementation (3) Identity II. The Future of European Integration: Of Federalism and Time A. ‘Ever Closer Union’? B. Shocks to the System: The Euro and Other Crises (1) Fiscal Federalism and Member State Sovereignty (2) Variable Geometry and Intergovernmentalism III. Conclusion Part II: Constitutional Foundations 6. The Competences of the Union I. Introduction II. Express Provisions Defining EU Competences A. Getting to Grips with the Lisbon Typology B. Exclusive Competence C. Shared Competence Recourse to Article 114 TFEU D. Supporting Competence E. Separate Categories of Competence III. Express Embodiments of Implied Competence A. The Flexibility Clause of Article 352 TFEU B. External Implied Competence under Article 216(1) TFEU IV. The Balance of EU Competences V. Concluding Remarks: ​The Future 7. The Principle of Subsidiarity I. Introduction II. Nature and Meaning III. Philosophical Foundations IV. Judicial Safeguards V. Political Safeguards VI. Conclusion 8. The Principle of Proportionality I. Definition and Scope II. What Does Proportionality Entail? A. Suitability III. The Less Restrictive Alternative Test A. The Standard of Scrutiny B. The Manifestly Inappropriate Test C. Strict Scrutiny IV. Proportionality and the Internal Market V. Proportionality and Limitations on Charter Rights A. The Right to Personal Data and the Right to Family Life B. Proportionality in the AFSJ C. The Enduring Appeal of Proportionality VI. Conclusions 9. Direct Effects and Indirect Effects of Union Law I. Introduction II. Direct Effect(s): General Principles A. Direct Applicability and Direct Effect B. Direct Effect: From Strict to Lenient Test C. Addressees: Judicial and Executive Authorities D. Dimensions: Vertical and Horizontal III. Direct European Law: Special Principles A. Primary Law: EU Treaties and Charter B. EU Secondary Law: Regulations and Decisions IV. Indirect European Law: Directives A. Direct Effect: Conditions and Limits B. The No-​horizontal-​direct-​effect Rule C. Vertical Effects: The Wide Definition of State (Actions) D. (Incidental) Horizontal Direct Effect: An Exception to the Rule V. External European Law: International Agreements A. Direct Effect: Legal and Political Conditions B. Dimensions: Vertical and Horizontal C. Beyond Treaties: Customary International Law VI. Indirect Effects: General Principles A. Indirect Effects of European on National Law B. Indirect Effects of Primary on Secondary Union Law C. Indirect Effects of Secondary on Primary Union Law? D. Indirect Effects of External on Internal Union Law VII. Conclusion 10. The Twin Doctrines of Primacy and Pre-emption I. Introduction II. The Doctrine of EU Primacy A. The Origins, Development, and Nature of EU Primacy (1) EU Primacy’s Jurisprudential Genesis: From Humblet to Costa (2) From Costa Onwards: The Manifold Primacy Mandate of National Organs (3) The Nature of EU Primacy: ‘Constitutionalisation’ of a Treaty or ‘Creative Development’ of International Treaty Law? B. The Scope and Limits of EU Primacy (1) The Broader Context: International Treaties and Domestic Constitutions (2) The Internal Limits to EU Primacy: A Non-absolute Principle (3) The External Limits to EU Primacy: National Judicial Defiance as a Catalyst for Decentralized Change? III. The Doctrine of EU Pre-​emption A. The Origins and Conceptualizations of EU Pre-​emption B. A Comprehensive Conceptual Framework for EU Pre-​emption C. Legislative Pre-​emption: Conflicts Involving EU Secondary Law (1) Scope-overlap Test (2) Conflict Pre-emption (3) Field Pre-emption D. Constitutional Pre-​emption: Conflicts Involving EU Primary Law (1) Scope-overlap Test (2) Conflict Pre-emption (3) Field Pre-emption E. ERTA Pre-​emption: The Subsequent Exclusivity of EU External Competences (1) Scope-overlap Test (2) Conflict Pre-emption (3) Field Pre-emption IV. Conclusions 11. Sincere Cooperation and Respect for National Identities I. Introduction: Article 4 of the Treaty on European Union II. The Principle of Presumed Member State Competence III. The Principle of Sincere Cooperation A. The ‘Positive’ Obligation upon Member States to Take Any Appropriate Measure to Ensure Fulfilment of the Obligations Arising Out of EU Law B. The ‘Negative’ Obligation upon Member States to Refrain from Any Measure Jeopardizing the Attainment of the Union’s Objectives C. Loyalty in Comparative Perspective (1) Sincere Cooperation in EU Law and Good Faith in International Law (2) Sincere Cooperation in EU Law and Federal Fidelity in Constitutional Law IV. The Principle of Respect for Member States’ National Identities A. History of the Identity Clause B. The Use of Article 4(2) TEU in the Case Law of the Court of Justice of the European Union (1) Review of National Measures (2) Review of EU Measures V. The Unitary and Pluralist Twists of the European Integration Process A. The Unitary Twist of the Principle of Sincere Cooperation B. The Pluralist Twist of the Duty to Respect Member States’ National Identity VI. Towards a Less ‘Integrationist-​biased’ Concept of Sincere Cooperation? The New Balance Provided by the Treaty of Lisbon 12. The European Union and Fundamental Rights I. Introduction II. Fundamental Rights in the EU: The Growth of an Idea III. The EU Charter of Fundamental Rights A. The Earlier History of the Charter B. The Content of the Charter C. The Legal Effect and Scope of the Charter: Problematic Issues (1) The Applicability of the Charter (2) Protocol 30: An ‘Opt-​out’ for the UK and Poland (3) Horizontal Effect (4) The Distinction between Rights and Principles (5) The Charter and National Constitutional Law (6) The Charter and the ECHR IV. EU Accession to the ECHR A. The Court’s Reasoning in Opinion 2/​13 (1) The Specific Characteristics and the Autonomy of EU Law (2) Article 344 TFEU (3) The Co-​respondent Mechanism (4) The Procedure for the Prior Involvement of the Court of Justice (5) The Specific Characteristics of EU Law as Regards Judicial Review in CFSP Matters B. Reflections on the Opinion C. The Bosphorus ‘Presumption of Equivalence’ D. The Future of the EU in the ECHR V. Fundamental Rights as ‘General Principles of Law’ A. ‘The Sins of Youth’ B. Defensive Use of Human Rights C. Binding the Member States D. The Continuing General Principles of Jurisprudence VI. Further Development of a Fundamental Rights Jurisprudence A. Conflicts of Rights B. Fundamental Rights at the Pinnacle of the EU Legal Order? C. The Ongoing Dialogue with National Courts and Authorities D. The Silence of EU Fundamental Rights Law? E. A More Developed Fundamental Rights Law for the EU? VII. Human Rights in the Broader Context VIII. Conclusion 13. Amending the EU Treaties I. Introduction II. Ordinary Treaty Revision Procedure A. Scope of the Procedure B. Procedural Rules III. Simplified Revision Procedures A. Amendments to Part Three of the TFEU (1) Overview (2) Article 48(6) in Practice (3) Procedural Rules (4) Substantive Limits on Article 48(6) B. Changes to Decision-​making Rules IV. Accession and Withdrawal A. Accession Treaty Procedure B. Withdrawal Procedure V. Conclusions Annex I List of Special Legislative Procedures (1) Covered by Article 48(7) TEU (2) Not covered by Article 48(7) TEU Annex II List of Unanimous Voting Requirements (1) Covered by Article 48(7) TEU (2) Not covered by Article 48(7) TEU Part III: Institutional Framework 14. The European Parliament I. Introduction: Parliament as an ‘Institution’ and Representative of the Citizens II. Composition of Parliament and Elections A. Number and Allocation of Seats B. Adoption of the Election Procedure C. Electoral Procedure (1976 Act) D. Rights to Vote and to Stand as a Candidate in European Parliament Elections E. Verification of Credentials F. Incompatibilities G. Vacancy of Seat III. The Role and Status of Members of the European Parliament A. Representative Functions and Independence B. Rights of Individual Members C. Legal Proceedings by Individual Members of the European Parliament D. Statute of Members of the European Parliament E. Privileges and Immunities of Members of the European Parliament (1) Absolute Immunity (Article 8 PPI) (2) Qualified Immunity (Article 9 PPI) (3) Justiciability of Immunity Decisions (4) Disclosure of Certain Personal Data of Members of the European Parliament IV. Organization of Parliament’s Work A. Organizational Autonomy and the Treaty B. Parliament’s Rules of Procedure C. Officers of Parliament D. Standing Parliamentary Committees and Interparliamentary Delegations E. Political Groups F. Political Parties at the European Level G. The Seat and Working Places of the European Parliament V. Supervisory Functions and Powers A. Council and European Council B. Commission C. The European Ombudsman D. Appointment Powers in Respect of other Institutions and Officers E. Petitions (1) Scope and Admissibility of Petitions (2) Procedure for Handling Petitions F. Inquiry Committees VI. Parliament and the Court of Justice VII. National Parliaments 15. The European Council I. Introduction: Looking at a Key Institution A. Political and Academic Relevance B. Models: Contrasting Concepts and Assessments (1) The Presidency Model: The European Council as Supreme Authority (2) The Council Model: Towards Communitarization (3) The i Model: The Dominant Multi-​level Player II. Basic Features: Legal Provisions and Real Performance A. Legal Provisions: Ambiguous Formulations B. Real World Observations: Search for Comprehensive Leadership (1) Economic Governance: Towards an Economic Government (2) External Action: A Voice for a Common Foreign and Security Policy (3) Area of Freedom, Security, and Justice: Pre-​constitutional and Pre-​legislative Leadership III. Inside the European Council: The Puzzle of Consensus Formation A. Working Style: Confidential Deliberations B. The Role of the President (1) History and Legal Provisions (2) The Election of the President: Constraints for an Ambitious Leader C. Phases, Procedures, and Patterns of Deliberations and Decision-​making (1) Preparation (2) Getting to Consensus: Concluding Agreements (3) The Power Factor: Leaders and Followers IV. Shifting the Institutional Balance: Towards Horizontal Fusion A. The European Parliament: Towards an Uneasy Bicameral System B. The Council: Serving the Masters? C. The Commission: Only Agent for the Principal? D. The Court: The Legal Watchdog E. The European Central Bank: New Forms of Participation F. National Parliaments: Emerging Players in the Institutional Architecture G. Revisiting the Models V. Conclusion: Trends towards Fusion A. Revisiting the Performance B. Long-​term Perspectives: Rise or Decline of the European Council? (1) The European Council as a Guardian of the Nation State (2) The European Council as a Federator (3) The European Council as Fusion Engine 16. The Council I. Context and Conceptual Framework: Executive Federalism II. Organizational Structure: Form Follows Function A. Composition: Appointed Executives, Not Elected Politicians B. Configurations: The Pyramid of Working Groups, Committees, and Ministers C. Coherence: General Affairs Council, Rotating Presidency, and General Secretariat (1) General Affairs Council (2) Rotating Council Presidency (3) The General Secretariat of the Council III. Competences and Partners: The Council as Team Player A. Overview and General Characteristics B. General EU Stewardship and Implementation—​with the Commission C. Legislature and Budgetary Power—​with the European Parliament (1) Governments as Legislature? (2) Relation between Council and European Parliament (3) The Council and the Legislative Procedures (4) Budgetary Role of the Council D. Agenda-​setting and Foreign Policy—​with the European Council E. The Council as Coordinator IV. Decision-​making: Consensus in the Shadow of the Vote A. Challenges to the Consensus Culture B. Reasons for the Longevity and Necessity of Consensus V. Legitimacy: Fifty Shades of Grey A. Conceptualizing the Legitimacy of the Council B. Interrogating the Legitimacy of the Council (1) General Concerns (2) Democratic Concerns about the Council as Legislature (3) Democratic Concerns about the Council as Coordinator VI. Conclusion 17. The Commission I. Introduction II. Composition and Term of Office A. The Size of the Commission B. Qualifications Required of Members of the Commission C. The Appointment Procedure (1) The President (2) The High Representative (3) The Other Members of the Commission (4) The Final Steps (5) Replacement of Individual Members of the Commission D. Term of Office and Removal of Commissioners III. Duties of Members of the Commission A. During their Term of Office B. After their Term of Office C. Sanctions IV. Internal Organization V. Functions, Duties, and Powers A. General B. Guardian of the Treaties C. Legislative Proposals D. The Adoption of Non-​legislative Acts E. Amending the Treaties F. The Budget G. Coordination, Executive, and Management Functions H. Internal and External Representation of the Union I. Annual and Multi-​annual Programming J. Ancillary Communications VI. ‘Dealing with Current Business’ VII. Concluding Remarks 18. The Court of Justice of the European Union I. Introduction II. Article 19 TEU: The Rule of Law, the Separation of Powers, and the Bifurcated Nature of the EU Judicial System III. Composition, Appointment, and Tenure A. Composition B. Method of Appointment and Tenure C. The Role of the Advocate General IV. Jurisdiction A. Categories of Jurisdiction B. Exclusivity C. From Exclusivity to Autonomy V. Organization and Procedure A. Organization B. Procedure C. The Collegiality of the Judgment VI. The Judicial Architecture and the Reform of 2015 A. The Judicial Architecture B. The General Court C. Judicial Caseload D. The Reform of the GC 19. The European Central Bank I. Introduction II. Institutional Framework of the European System of Central Banks, the Eurosystem, and the ECB A. ESCB and Eurosystem B. Objectives and Tasks of the Eurosystem C. The ECB (1) The ECB’s Legal Status and Its Implications (2) The ECB’s Place within the EU (a) The ECB’s place in the international arena (3) ECB Independence (4) ECB Transparency and Accountability (5) ECB Decision-​making Bodies (a) Governing Council (b) Executive Board (c) General Council (6) ECB Regulatory Powers (a) ECB legal acts (b) ECB legal instruments III. Eurosystem Governance, Structure, and the Relationship between ECB and NCBs A. Introductory Remarks B. Structure and Governance of the Eurosystem C. Decentralization of Operations D. The Principle of Specialization E. Guidelines and Instructions: The NCBs’ Duty of Compliance F. Status of the NCBs When Performing Eurosystem Tasks IV. The ECB’s Involvement in the Legislative Process A. The ECB’s Right of Initiative B. The ECB’s Advisory Role (1) The ECB’s Advisory Role with Regard to EU Legal Acts (2) The ECB’s Advisory Role with Regard to Draft National Legislative Provisions V. The Evolving Role of the ECB Since the Start of the Financial Crisis A. ECB Crisis-​related Response (1) Temporary Broadening of the Eurosystem Collateral Eligibility Rules and Enhanced NCBs Collateral Policy Discretion (2) Provision of Liquidity in Leading Foreign Currencies (3) The Covered Bonds Purchase Programmes (4) Securities Markets Programme and Outright Monetary Transactions (5) ABS Purchase Programme and (6) Concluding Remarks B. ECB and Macro-​prudential Supervision C. ECB and Micro-​prudential Supervision D. The ECB’s Role in Supporting the ESM VI. Concluding Remarks 20. The Court of Auditors I. Introduction: The Role of the Court of Auditors A. The Role of the Court B. The Fight against Fraud C. The Seat of the Institution II. History III. The Composition of the Court of Auditors A. Number of Members B. Appointment of Members (1) Qualifications (2) Procedure for Appointment (3) Members’ Term of Office (4) Conditions and Privileges C. The President and Chambers (1) The President (2) The Chambers D. The Secretary General and Staff of the Court (1) The Secretary General (2) Staff (3) Budget IV. The Work of the Court of Auditors A. Scope of the Audit (1) All Revenue and Expenditure of the Union (2) Implementation of the Budget of the Union (a) Revenue (b) Expenditure (3) The DAS (a) Reliability of the Accounts (b) Legality and Regularity of the Underlying Transactions (c) The Holy Grail—​An unqualified DAS B. Audit Criteria (1) The Three Criteria (2) Legality (3) Irregularity (4) Timing of the Audit C. The Court’s Audit Powers (1) General (2) Institutions (3) Member States (4) European Investment Bank D. Reporting the Audit (1) Annual Reports (a) The general budget (b) The European Development Funds (c) Specific Annual Reports (2) Special Reports (3) Opinions (a) Mandatory Opinions (b) Discretionary Opinions V. Conclusion A. Direct Impact (1) The Discharge Procedure (2) Legislative Procedure B. Indirect Impact C. Constraints D. Review and Reform E. The Future Part IV: Legislative and Executive Governance 21. Primary Legislation and Legislative Procedures I. Introduction II. Concept and Meaning of Union Legislation III. Legislative Procedures A. Initiation of Union Legislation B. Ordinary Legislative Procedure (1) First Reading (2) Second Reading (3) Third Reading C. Special Legislative Procedures IV. Scope of Union Legislation V. Legal Effects of Union Legislation VI. Conclusion 22. Delegated and Implementing Acts I. Introduction II. The Lisbon Model: Core Assumptions A. Secondary Norms: Their Centrality and Importance B. Comitology: The Pre-​Lisbon Model C. Comitology: The Lisbon Model III. Analytical and Temporal: The Fragile Divide between Articles 290 and 291 TFEU A. The Analytical and Temporal Problem B. The Relative Use of Article 290 and Article 291: Current Practice C. The Choice between Article 290 and Article 291: Limited Legislative Guidance D. The Choice between Article 290 and Article 291: Particular Regulatory Schemes E. The Choice between Article 290 and Article 291: Transitional Issues IV. Constitutional: Politics and Constitutional Architecture A. Constitutional ‘Modification’: Decision-​making under Article 290 TFEU B. Constitutional ‘Modification’: The New Schema and the European Parliament C. Constitutional ‘Modification’: Commission and the ‘New’ Status Quo V. Institutional: Agencies, Conferral, Delegated Acts, and Implementing Acts A. Agencies: Conferral and Delegation B. ESAs and Delegated Acts C. ESAs and Implementing Acts VI. Legal Form: Hard Law, Soft Law, and Articles 290–​291 TFEU VII. Conceptual: Rule-​making and Adjudication VIII. Conclusion 23. Decentralized Implementation: European Agencies I. Introduction II. Explaining and Conceptualizing the ‘Agencification’ Process A. The Proliferation of European Agencies in the 1990s B. The Explanations Provided by European Legal Scholarship C. A Different Interpretation: A ‘Game of Forces’ D. European Agencies in the 1990s: A Peculiar Component of the EU Administrative System E. A New Model for the Administrative Implementation of EU Laws and Policies F. The ‘Agencification’ Process in the New Century: Consolidation, Clarification, and Complication III. The Agency Model: Distinguishing Features, Shortcomings, Adjustments A. Administrative Integration (1) European Agencies’ Internal Organization (2) The Uneasy Search for Simplification B. The Relationship with the Commission (1) Partial Autonomy (2) Neither Executive Agencies, nor Intergovernmental Bodies, nor Independent Authorities C. Scientific Independence (1) The Reasons of Science (2) The Attempt to Strengthen Scientific Independence vis-​à-​vis the Market D. Transnational Polycentrism and European Agencies’ Functional Prominence (1) Sectoral Administrative Networks (2) The Implications on National Administrations E. Powers (1) Mainly Instrumental Powers (2) Concerns of Procedural and Judicial Protection F. Accountability (1) The Gradual Emergence of Accountability Regimes (2) An Imperfect Development IV. The Complication of the Agency Model and the Emergence of a New Type of European Agency A. From Autonomy to Independence B. More Incisive Powers V. Conclusion 24. The Open Method of Coordination: Obstinate or Obsolete? I. The OMC as a New Form of EU Governance A. Origin and Context B. Defining the OMC C. What Is the Function of the OMC? (1) Motivations for Policy Coordination (2) The Material Dimension of Policy Coordination (a) Guidelines (b) Indicators, Benchmarks and Targets (c) Recommendations (3) The Accountability Dimension (4) The Temporal Dimension D. Institutional Authorship and the OMC II. Law, Legal Principles, and Policy Coordination A. Legal Principles and the Distribution of Political Authority (1) The Principles of Conferred Competence and Subsidiarity (2) Participation, Openness, and Transparency B. Procedural and Substantive Dimensions of the Rule of Law (1) Effective Judicial Protection (2) Fundamental Rights III. Conclusion 25. The Union Budget and the Budgetary Procedure I. Introduction II. The Union Budget, Still Small Compared to the Union’s Ambitious Aims A. Revenues: The Failure to Introduce Truly Own Resources B. Expenditures: At the Centre of the Inter-​institutional Struggle and Subject to Progressive Diversification C. Perspectives: Proposals for Reforming the Union Budget III. The Sources of Law Regulating the Union Budget and the Budgetary Procedure IV. The Institutional Dimension of the Budgetary Procedure A. The Multi-​annual Financial Framework B. The Annual Budget after the Treaty of Lisbon (1) The Draft Budget by the Commission (2) The Position of the Council (3) The European Parliament’s Role at First Reading: Strengthened or Weakened? (4) The Conciliation Committee and the Different Outcomes of the Procedure (5) From the Centrality of the Annual Budget to the Centrality of the Amending Budget Acts? (6) The Signature of the Budget by the President of the European Parliament and Its Meaning C. The Implementation and Monitoring of the Budget D. The Discharge Procedure(s) V. Conclusion: The Strategic Use of the European Parliament’s Budgetary Powers to Increase Its Role: Myth or Reality? 26. Supranational Differentiation and Enhanced Cooperation I. Introduction II. The Concept of Differentiated Integration and Its Realization A. Political Debate (1) Multiple Speeds: Reflection of Economic Differences (2) Federal Core Europe (3) Flexibility à la carte B. Pragmatism of the Treaty Regime III. The Practice of Supranational Differentiation A. Generic Model: Enhanced Cooperation (1) Substantive Constraints (2) Procedural Requirements B. Differentiation in Action: Area of Freedom, Security, and Justice (1) Incorporation of the Schengen Cooperation (2) Diverse Opt-​out Arrangements (a) Denmark (b) United Kingdom and Ireland (3) Lisbon: Towards ‘Cherry-​picking’ C. Economic and Monetary Union (1) The Concept of the Treaty of Maastricht (2) Towards an ‘Economic Government’ for the Eurozone D. Limits of Differentiation: Foreign Affairs (1) CFSP: Benefits of External Uniformity (2) CSDP: Much Noise, Little Impact (So Far) (a) Improvement of defence capabilities (b) Enhanced cooperation and military missions IV. Constitutional Implications A. Unity of the Legal Order B. Single Institutional Framework C. Cohesion: United in Diversity D. Drawbacks for Identity and Legitimacy V. Conclusion Part V: Judicial Protection in the EU 27. Judicial Review I. Introduction II. Action for Annulment: Direct Review of EU Measures A. Reviewable Acts and Time Frame B. Applicants (1) Privileged and Semi-​privileged Applicants (2) Non-​privileged Applicants (3) What Are Regulatory Acts? (4) Regulatory Acts that Do Not Entail Implementing Measures (5) Direct Concern (6) Individual Concern (7) The Standing of Interest Groups C. Grounds for Review (1) Lack of Competence (2) Infringement of an Essential Procedural Requirement (3) Infringement of the Treaties or of Any Rule relating to Their Application (a) Legal Certainty and Legitimate Expectations (b) Non-​discrimination (4) Misuse of Powers III. The Plea of Illegality IV. Interim Relief V. Consequences of Annulment VI. Concluding Remarks 28. EU Liability Actions I. Introduction II. Raison d’être and Scope of EU Liability Actions A. EU Liability Action and the Rule of Law B. Broad Scope of EU Liability Actions (1) An Action Available to Any Person (2) A Broad Concept of ‘Institution’ (3) A Broad Concept of ‘Attributable’ Conduct (4) A Broad Concept of the Institutions’ ‘Conduct’ (5) ‘Effet Utile’ and Independence of the EU Liability Action C. Exceptions and ‘Grey Areas’ (1) No ‘Circumvention’ of Other Remedies (2) Responsibility in Case of Joint Union and National Actions (3) Subsidiarity of the EU Liability Action in Case of Joint Action? D. Conclusion III. Substantive Regime of EU Liability A. No Liability for Lawful Union Conduct B. Liability for Normative Acts (1) Reason for Adopting a Restrictive Approach (2) Functional Understanding of ‘Normative Acts’ (3) ‘Protectiveness’ of the Infringed (Superior) Rule of Law (4) Seriousness of the Breach (5) Non-​discretionary Normative Acts C. Liability for Individual Measures D. The Court’s Recast Illegality Test (1) Focusing on Discretion, Not on the Nature of the Act (2) Generalizing the ‘Serious Breach’ Requirement (3) Consequences This chapter offers some reflections on the relationship between the Union's express and implied external competences by examining them in the light of the principle of conferral of powers, one of the most fundamental of the principles which structure the EU's external relations. Since the landmark decision in Commission v Council (AETR), the evolution of implied powers has been one of the defining features of EU external relations law, scholarship focusing on the basis and scope of implied external powers, their relation to internal powers, and the conditions under which an implied external power may be declared exclusive. The consolidation of the AETR line of case law in the Treaty of Lisbon, in particular in Articles 3(2) and 216(1) TFEU, as well as the development of practice and law since the Treaty of Lisbon came into force invite us to rethink the relationship between express and implied powers. This relation has implications for the principle of conferral. Although implied powers might seem to put some strain on that principle, in fact their connection with the Treaty's internal competences and legislation adopted in furtherance of those objectives provides an identifiable Treaty- based rationale for external action. Express external competences, on the other hand are in themselves a conferral of powers. Their open- ended nature is designed to allow the Union to develop as an external actor, evolving its objectives and priorities in line with the Treaty- based objectives and principles governing all external action, but with considerable scope for institutionally- defined policy choice. The principles governing the process whereby such policy choice is made- including the principle of conferral as it is applied to the individual institutions- are therefore all the more important