- adopted measure is suitable to achieve the desired end,
- measure is necessary to achieve this end, and
- measures it takes are not worse than the problem it wants to address with this
measure.
Together, these three demands fall under the principle of proportionality.
The demand for a legal basis in combination with the principles of subsidiarity
and proportionality together limit the powers of the EU and impose a limit on the
amount of sovereignty that the Member States have transferred to the EU.
10.6.6 The Principle of Loyalty
Since the beginning of European cooperation in the 1950s, Member States have
transferred powers in increasingly more policy fields to “Europe”, powers that
originally belonged to the sovereign sphere of the states. This means that Member
States should refrain from acts that disturb or impede the process of European
integration and also that they should be cooperative with regard to the EU, its
institutions, and its law. This is expressed in Article 4, Section 3 TEU:
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in
full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of the Treaties or resulting from the acts of the
institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from
any measure which could jeopardize the attainment of the Union’s objectives.
Moreover, according to Article 291 TFEU, Member States are under an obliga-
tion to adopt all measures of national law necessary to implement legally binding
Union acts. This obligation applies to all state organs, both horizontally (legislature,
administration, and judiciary) and vertically (national level, districts, provinces,
and municipalities).
Implications for Legislature and Administration If a state is an EU member,
this means a partial loss of power for its national legislature and administration
since these powers have been assigned to, or limited by, the EU. In addition, the law
of Europe limits the autonomy of the legislator and the administration since they
must take care not to violate their European obligations in the exercise of their
national competences. Moreover, they are obligated to transform European
directives into national legislation, to take the required executive measures—for
instance, by appointing bodies that must apply EU law in concrete cases and by
assigning these bodies sufficient staffing, budget, and powers—and to uphold the
law of Europe.
Implications for the Judiciary National judges are obligated to cooperate with
the law of Europe and to apply it correctly in concrete cases. In this way, they play
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