This chapter considers non-EU nationals. The Treaty on the Functioning of the European Union provides common policies on borders, immigration and international protection, albeit that there are special regimes for Denmark and Ireland. The Schengen Borders Code governs the treatment of non-EU nationals at external borders. However, it is supplanted for many non-EU nationals by out-of-area border controls such as visa policy, carrier liability regimes and interception of non-EU nationals out at sea. Immigration policy requires States to deport non-EU nationals who are irregularly present in the Union unless there are strong compassionate grounds. EU law grants significant social rights to two types of non-EU national and their families: the worker resident and the long-term resident. Those seeking international protection can make only one application in the EU, which, usually, has to be in the State where they first enter the EU. They have a right to remain within the State pending consideration of their application. During this time, they must be provided with housing, food, healthcare and education for minors. These benefits are sparse and contingent on the applicant complying with reporting and accommodation requirements.

Article 45 and Article 49 provide for the free movement of workers and self-employed people, and the free movement of companies, throughout the EU. To overcome discrimination, legislation has been adopted addressing the rights of workers concerning matters such as tax, social advantages, languages, the mutual recognition of qualifications and requiring even private employers and social partners to treat all EU citizens equally. The case law goes even further than this, addressing all kinds of measures which discourage cross-border pursuit of an occupation, something which has had a great impact on professional football and its restrictive transfer rules. European company law has been similarly turned upside down by ruling in Centros that companies can choose their state of incorporation, a decision which led to the death of the real-seat theory of company law.

This chapter considers judicial review of the EU Institutions and bodies. Acts are subject to review if there is no formal competence to adopt them; the use of a power for a purpose other than that for which it was granted; a manifest error of assessment; a breach of rights of process; or infringement of the Treaties or any rule of law relating to their application, such as fundamental rights. Privileged applicants – the Member States, Parliament, the Commission and Council – have unlimited standing to challenge a measure. Semi-privileged applicants – the Court of Auditors, European Central Bank and Committee of the Regions – may bring an action to protect their institutional prerogatives. All other parties may only challenge acts addressed to them; regulatory acts which entail no implementing measures and are of direct concern to them; and all other acts which are of direct and individual concern to them. Parties can also sue EU Institutions for damages where three conditions are met: the EU Institution has infringed a rule of law intended to confer rights on them, that breach is sufficiently serious and there is a direct causal link between the breach and the loss sustained.

This chapter considers infringement proceedings, normally brought by the Commission against a Member State before the Court of Justice for not complying with EU law. Actions can only be brought against the State. However, the State is responsible for the legal acts and administrative practices of any State agency. There are three stages to the proceedings. The first is an informal stage where the Commission sees if there is a case to answer and, if so, seeks resolution with the State. In the second, the Commission issues a letter of formal notice, setting out the breach and what compliance requires. In the third, the Commission issues a reasoned opinion giving a reasonable period for compliance. The case only goes to the Court if there is no resolution by the end of the third stage. The Commission can also go to the Court to seek damages against the State in two circumstances: the State has failed to transpose a Directive or it has failed to comply with an earlier judgment of the Court. The sanction will usually take the form of a lump sum and penalty payments, which are recurring daily fines that continue as long as the breach.

In Van Gend en Loos and Costa, the Court stated that EU law was an autonomous legal order which limited the sovereignty of member States. These EU law qualities prevent other laws determining central elements of EU law (‘autonomy of EU law’); grant precedence to EU law over national law (‘primacy of EU law’); allow EU law alone to determine when there is a conflict between it and national law and the consequences of that (‘pre-emption’); and require national authorities to ensure that the EU legal system functions effectively and its authority is sustained (‘fidelity principle’). Historically, most national courts have accepted the authority of EU law over national law, subject to three constraints. First, EU law should not violate fundamental rights recognised in their respective constitutions. Secondly, if it generates significant consequences for the national democracy, the EU law must not be clearly ultra vires. Thirdly, a number of courts will not accept EU law primacy on matters that go to that State’s constitutional identity, most notably those issues over which that court believes national parliaments have the necessary democratic pedigree.

Union citizenship was created to provide a closer bond between the European Union and the nationals of the Member States. It provides a frame for rights to move and reside throughout the EU, and to work and live in conditions of equality and non-discrimination within a host Member State. Union citizens also have the right to be accompanied by their families when they move, even if the family members are not Union citizens themselves. The very power and scope of these rights can make them controversial. The question of whether and when Union citizens should have access to benefits, whether their same-sex family arrangements should be recognised in Member States that do not allow same-sex marriage themselves, and the extent to which Member State nationality law is constrained by the fact that each Member States national is also a Union Citizen, have all been the subject of much discussed case law.

This chapter commences by looking at how the ideas of Europe and European Union have informed debates about the European Union. It then traces the history of the European Union since the Second World War. It considers how two ideas have been central to European integration. Intergovernmentalism emphasises the place of the national State within European integration, and sees it as the only arena serving as the locus for democracy. Supranationalism allows for political decision-makers that are not national ones, the overriding of the national veto and conceives democracy as something that can transcend the nation State. The chapter then looks at the current treaties which establish the European Union. The Treaty on European Union set outs its institutions, central values and foreign and defence policy. The Treaty on the Functioning of the European Union sets out its other policies. The chapter culminates by looking at the crises that have beset the Union in recent years: the sovereign debt crisis, Brexit, the crisis in liberal values, Covid-19 and, most recently, the crisis in Ukraine.