FE-1 Law of the European Union common mistakes
FE-1 Law of the European Union · Understand the traps and how to avoid them.
Treating 'directly applicable' and 'directly effective' as synonyms, so a directive is described as directly applicable and a regulation as needing transposition.
Article 288 TFEU's instrument-by-instrument definitions get flattened into a single memorised phrase, often because candidates revise direct effect before they have fixed the legal effects of regulations, directives and decisions.
What to do instead
Start every sources question by stating Article 288 TFEU: regulations are general, binding in their entirety and directly applicable in all Member States; directives bind Member States as to the result to be achieved and require transposition; decisions bind those to whom they are addressed. Then ask separately whether a provision is directly effective.
In an ordinary legislative procedure question, saying the Council adopts the act alone or that Parliament merely gives an opinion, and omitting the conciliation stage and QMV.
National legislative habits and pre-Lisbon co-decision models linger, and candidates blur ordinary legislative procedure, consultation, consent and the Commission's monopoly of proposal.
What to do instead
Map Article 294 TFEU step by step: Commission proposal, Parliament first reading, Council first reading by QMV, Parliament second reading, Council second reading, conciliation, third readings. Distinguish special legislative procedures and state expressly who acts, by what majority, and whether Parliament consents or is consulted. Keep delegated acts under Article 290 TFEU separate from implementing acts under Article 291 TFEU.
Arguing that an unimplemented directive can be relied on directly against a private employer or company in a horizontal dispute.
Treaty articles and regulations can have horizontal direct effect, and candidates overgeneralise the label 'direct effect' without checking who the defendant is and whether the instrument is a directive.
What to do instead
Identify the parties first. Against the state or an emanation of the state, a directive may be directly effective if its provisions are clear, unconditional and the transposition deadline has passed. Against private parties, use consistent interpretation where possible (Marleasing) or state liability (Francovich); do not invent horizontal direct effect of directives.
Concluding that a later national statute or a national constitutional provision prevails over conflicting EU law, or that the national court must wait for the legislature to repeal the national rule.
National constitutional habits and confusion between supremacy and direct effect lead candidates to treat EU law as an ordinary international treaty or to forget the national court's own duty.
What to do instead
Apply supremacy as developed in Costa, Internationale Handelsgesellschaft and Simmenthal: directly effective EU law prevails over conflicting national law, including later and constitutional provisions, and the national court must disapply the conflicting national rule of its own motion without waiting for repeal. State clearly which EU provision is directly effective before reaching that conclusion.
Applying Keck selling-arrangement reasoning to a rule on product composition, packaging or use, and then finding no breach without considering mutual recognition or Article 36 TFEU.
Keck is used as a shortcut to avoid proportionality analysis, so candidates misclassify product requirements as selling arrangements and miss the Cassis de Dijon line of authority.
What to do instead
Classify the measure first. A product requirement is prima facie a measure of equivalent effect under Dassonville and needs justification. A selling arrangement falls under Keck only if it is non-discriminatory in law and in fact. Then test Article 36 TFEU or mandatory public-interest requirements and proportionality, and apply mutual recognition to goods lawfully produced in another Member State.
Invoking Article 21 TFEU or Directive 2004/38 for a purely internal situation with no cross-border movement, or assuming citizenship gives an unconditional right to reside.
Candidates remember 'citizenship rights' but forget the cross-border link and the conditions and limitations laid down in the Citizenship Directive.
What to do instead
Check for movement between Member States or another genuine cross-border element, including return cases. Then choose the correct regime: worker, self-employed person, service provider or Union citizen. For residence beyond three months, apply Directive 2004/38 conditions (work, sufficient resources and sickness insurance, study) and the public-policy, public-security and public-health limits.
Analysing a State grant to an undertaking under Article 101 or 102 TFEU, or saying that all State aid is automatically unlawful because it distorts competition.
Competition law and State aid are separate chapters, but candidates conflate public support with anti-competitive agreements or abuse of dominance and forget compatibility and notification rules.
What to do instead
For State aid, apply Article 107(1) TFEU: state resources, selective advantage, distortion of competition and effect on trade. Then examine compatibility and exemptions, including the General Block Exemption Regulation, de minimis aid, Article 106(2) TFEU and Article 107(2)-(3) TFEU, and the notification and standstill obligations. Use Articles 101-102 TFEU only for undertakings' agreements and abuse.
Writing that every national court must refer every EU law question to the Court of Justice, or that the Court can declare a national law invalid.
Candidates confuse the obligation of courts of last instance with all national courts, and confuse interpretation or validity of EU law with review of national law.
What to do instead
State Article 267 TFEU precisely: any national court may refer; a court of last instance must refer unless the CILFIT exceptions apply (acte clair, acte éclairé or an irrelevant question). The Court rules on the interpretation or validity of EU law; the national court decides the dispute and, if necessary, disapplies national law.
Claiming Francovich damages for any breach of EU law without showing a sufficiently serious breach, or treating state liability as the same thing as direct effect.
Candidates list 'breach' as the only condition and forget the manifest-and-grave-disregard test and the discretion of the institution concerned.
What to do instead
Set out the three conditions: the rule must be intended to confer rights on individuals, the breach must be sufficiently serious (manifest and grave disregard, considering clarity, discretion and duration), and there must be a causal link with the damage. Then note national procedural autonomy subject to equivalence and effectiveness.
Applying the EU Charter of Fundamental Rights to a purely national measure with no link to EU law, or saying the Charter has replaced general principles and the ECHR.
Candidates treat the Charter as a general human-rights catalogue for all national acts and overlook Article 51(1) of the Charter.
What to do instead
Check scope first: the Charter applies to EU institutions and to Member States only when they are implementing EU law (Article 51(1) of the Charter; Åkerberg Fransson). If there is no EU law link, national fundamental rights apply. General principles remain part of EU law, and ECHR accession is a separate process under Article 6(2) TEU.