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201 Cards in this Set
- Front
- Back
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European commission ARTICLE
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ARTICLE 17 TEU
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4Held at least 4 times a year 4Sets the overall guidelines for EU policies
4President: Herman Van Rompuy |
the European council
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European council article
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15
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European parliament located in
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BRUSSELS
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Art 294 TFEU
Formerly known as ‘co-decision’ - meaning a joint decision of Council and EP This has gradually gained in importance – hence the change of name |
ORDINARY LEGISLATIVE PROCEDURE
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CASE ILLUSTRATING COMPULSORY CONSULTATION WITH ep
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Case 138/79 Roquette Frères SA v Council
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case If Parliament delays giving its opinion, it cannot complain if the measure is adopted without waiting for it.
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Parliament v Council (‘General tariff preferences’) [1995]
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Reports on EU budget each November
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Court of Auditors Article 285-87 tfeu
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3 courts within the EU
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COURT OF JUSTICE
GENERAL COURT CIVIL SERVICE TRIBUNAL |
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ECJ SET OUT IN ARTICLE -----to ensure that ‘in the interpretation and application of the Treaties the law is observed.’
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19 TEU
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ECJ -----judicial review
Art ------ (direct) annulment actions Art ------- failure to act |
263 TFEU
265 TFEU |
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ECJ------enforcement actions against Member States
Art ------------; ArT-------------- |
258 TFEU/ 259 TFEU
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Supranational organization meaning in a category of its own
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sui generis
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Art 3 The unions aim was to promote peace, it was created initially in its history to ensure peace between
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FRANCE AND GERMANY
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THE UNION WAS INITIALLY SET UP BY
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THE TREATY OF ROME 1957
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THE UNION IS NOW GOVERNED BY
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TREATY ON EUROPEAN UNION AND THE TREATY ON THE FUNCTIONING OF THE EU
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PROMOTE PEACE, AREA OF FREEDOM, SECURITY AND JUSTICE, INTERNATIONAL FRONTIERS, FREE MOVEMENT OF PERSONS, INTERNAL MARKETS
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ARTICLE 3 TEU
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THE COURT OF HUMAN RIGHTS BELONGS TO THE
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COUNCIL OF EUROPE
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3 TYPES OF ECONOMIC INTEGRATION
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FREE TRADE AREA
CUSTOMS UNION COMMON MARKET |
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FOUNDERS OF THE EU
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KONRAD ADENAUER
WINSTON CHURCHILL SCHUMAN DE GASPERI MONNET |
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FUNCTIONAL FORM OF INTEGRATION CREATED A COMMON MARKET IN COAL AND STEEL
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EUROPEAN COAL AND STEEL COMMUNITY 1951
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EXTREMELY SIGNIFICANT , INCOROPORATED THE EXISTING COMMUNITY WITHIN IT MEANT TWO FOUNDATIONAL DOCUMENTS GOVERNING IT THE EC TREATY AND THE TREATY ON THE EUROPEAN UNION
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MAASTRICHT TREATY 1992
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CREATED THE EU , ESTABLISHING 3 PILLARS OF THE EU, COMMITMENT TO EUROPEAN MONITARY UNION, SUBSIDIARITY AND FLEXIBILITY
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TEU
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CREATED CLOSER COOPERATION CONSTITUTIONALIZING THE IDEA THAT THERE WOULD BE A EUROPE OF DIFFERENT SPEEDS, GREATER EMPHASIS ON HUMAN RIGHTS CAME INTO EFFECT IN 1999
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TREATY OF AMSTERDAM
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MODIFICATION OF ART 7 TEU, ENHANCED COOPERATION , INCREASED ROLE FOR THE COURT OF FIRST INSTANCE- ADDED A NON BINDING CHARTER ON FUNDAMENTAL RIGHTS CAME INTO EFFECT 2003
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TREATY OF NICE
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7 KEY INSTITUTIONS OF THE EU HELD IN ARTICLE
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13 TEU
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ROLE TO THRASH OUT THE POLITICAL AGENDA FOR THE UNION IN THE ENSUING MONTHS AND YEARS. TFEU PROVIDES THAT THE -------------- SHALL ACT BY A SIMPLE MAJORITY WITH REGARD TO PROCEDURAL QUESTIONS AND FOR THE ADOPTION OF ITS RULE OF PROCEDURE
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EUROPEAN COUNCIL
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IT IS THE TASK OF THE ----------- TO PROMOTE THE GENERAL INTERESTS OF THE UNION AND TAKE APPROPRIATE INITIATIVES TO THAT END,
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COMMISSION
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THE PROVISIONS OF THE EU TREATIES THAT GOVERN THE COMMISSION ARE
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ARTICLE 17
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FUNCTION IS TO ACT AS THE EXECUTIVE OF THE UNION AND TO SEE THAT UNIO POLICY IS CARRIED OUT, TO FORMULATE NEW POLICY AND TO DRAFT LEGISLATION, TO GIVE IT EFFECT, TO POLICE OBSERVATION OF UNION RULES IN THE FORM OF TREATY PROVISIONS,REGULATIONS , DIRECTIVES
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COMMISSION
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SHALL BE COMPLETELY INDEPENDENT , SHALL NEITHER SEEK NOR TAKE INSTRUCTION FROM ANY GOVERNMENT OR OTHER INSTITUTION BODY OFFICE OR ENTITY
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COMMISSION
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HELD THAT MR B'S APPOINTMENT CONSTITUTED A CIRCUMVENTION OF THE RULES RELATING TO THE APPOINTMENT OF MEMBERS OF A CABINETAND OF VISITING SCIENTISTS. MRS C WAS LIABLE FOR A BREACH OF HER OBLIGATIONS UNDER ART 245 TFEU
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COMMISSION V EDITH CRESSON
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THE ROLE OF THE COMMISSION AS THE PRIMARY PROPOSER OF LEGISLATIVE ACTS HAS OFTEN BEEN SUMMARIZED BY THE MAXIM
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COMMISSION PROPOSES COUNCIL DISPOSES
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IF MEMBER STATE IS IN BREACH OF UNION LAW THE COMMISSION MAY TAKE PROCEEDINGS AGAINST THE MEMBER STATE SUCH PROCEEDINGS BEING BROUGHT BEFORE THE COURT OF JUSTICE
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COMMISSION V MEMBER STATE
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MADE UP OF POLITICIANS FROM THE MEMBER STATES WHO ARE AUTHORIZED TO BIND THE MEMBER STATE THEY REPRESENT
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THE COUNCIL
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LEGAL ADVICE MUST BE UNDERSTOOD AS MEANING THAT THE PROTECTION OF THE PUBLIC INTEREST MAY PRECLUDE THE DISCLOSURE OF THE CONTENTS OF DOCUMENTS DRAWN UP BY THE COUNCILS LEGAL SERVICE IN THE CONTEXT OF COURT PROCEEDINGS BUT ALSO FOR ANY OTHER PURPOSE
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TURCO V COUNCIL
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THE COUNCIL REFUSED TO DISCLOSE THE DOCUMENT ON THE GROUNDS THAT THE ADVICE OF ITS LEGAL SERVICE DESERVED PARTICULAR PROTECTION BECAUSE IT WAS IMPORTANT INSTRUMENT WHICH ENABLED THE COUNCIL TO BE SURE OF THE COMPATIBILITY OF ITS ACTS WITH UNION LAW AND THAT DISCLOSURE OF ITS LEGAL SERVICES OPINIONS COULD CREATE UNCERTAINTY REGARDING THE LEGALITY OF LEGISLATURE ACTS ADOPTED FURTHER TO THOSE OPINIONS
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SWEDEN V TURCO COUNCIL
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COURTS POINTED OUT 3 STAGES MUST BE UNDERTAKEN BEFORE DISCLOSURE OF DOCUMENTS
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WHETHER DISCLOSURE OF THE PARTS OF THE DOCUMENTS IN QUESTION WOULD UNDERMINE THE PROTECTION OF LEGAL ADVICE
- THE DOCUMENT DOES IN FACT CONCERN LEGAL ADVICE - ASCERTAIN WHETHER THERE IS ANY OVERRIDING PUBLIC INTEREST JUSTIFYING DISCLOSURE |
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CONSISTS OF SENIOR NATIONAL OFFICIALS WHO ARE PERMANENTLY LOCATED IN BRUSSELS
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COREPER
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PROVIDES THAT A COMMITTEE CONSISTING OF THE PERMANENT REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES SHALL BE RESPONSIBLE FOR PREPARING THE WORK OF THE COUNCIL AND FOR CARRYING OUT THE TASKS ASSIGNED TO IT BY THE LATTER
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ART 240 TFEU
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DIRECTLY ELECTED BODY SHALL JOINTLY WITH COUNCIL EXERCISE LEGISLATIVE AND BUDGETARY FUNCTIONS
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EUROPEAN PARLIAMENT
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ALLOCATION OF SEATS TO EACH MEMBER STATE WILL BE DISTRIBUTED ACCORDING TO ---------------
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DIGRESSIVE PROPORTIONALITY, TREATY OF LISBON
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THE PARLIAMENT HOLDS PLENARY SESSIONS IN ---------------------- COMMITTEE MEETINGS IN ----------------------------- AND IS SERVICED BY STAFF IN ------------------
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STRAUSBORG, BRUSSELS, LUXEMBOURG
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THE EUROPEAN PARLIAMENT SHALL HAVE ITS SEAT IN STRAUSBOURG WHERE THE TWELVE PERIODS OF MONTHLY PLENARY SESSIONS INCLUDING THE BUDGET SESSION SHALL BE HELD. THE PERIODS OF ADDITIONAL PLENARY SESSIONS SHALL BE HELD IN BRUSSELS. CASE.
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FRANCE V EUROPEAN PARLIAMENT
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THERE ARE THREE MAIN POWERS EXERCISED BY THE PARLIAMENT
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PARTICIPATION IN THE LEGISLATIVE PROCESS OF THE UNION
- ACTING AS THE BUDGETARY AUTHORITY -SUPERVISION OF THE COMMISSION |
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PARLIAMENT HAS THE RIGHT TO DISMISS THE COMMISSION EN BLOC UNDER
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ART 17 TEU AND ARTICLE 234 TFEU
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THE INSTITUTIONAL TRIANGLE
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EP
COUNCIL OF MINISTERS EUROPEAN COMMISSION |
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MUCH OF THE BULK OF EU LAW IS PROPOSED BY THE
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COMMISSION
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INVESTIGATES AND DECIDES WHETHER THERE HAS BEEN A BREACH IN THE LAW
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COMMISSION
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PEOPLE SITTING ARE NOT EMPLOYED BY THE EU THEY ARE MEMBERS OF NATIONAL GOVERNMENT THAT GO THERE TO SIT
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THE COUNCIL OF THE EU
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BUT IF THE COMMISSION DOES NOT WANT TO DO WHAT THE PARLIAMENT WANTS TO DO, ALL IT HAS TO DO IS LET THE PARLIAMENT KNOW THE SPECIFIC REASONS UNDER
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ART 225
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CO-DECISION HELD UNDER
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ART 294 TFEU
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IS AS QUALIFIED AS THE JUDGE AND PAID THE SAME AND THEIR ROLE IS TO PREPAREA REPORT ON THE CASE AND PRESENT IT TO THE JUDGES TO HELP THEM DECIDE.
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ADVOCATE GENERAL
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THREE PILLARS OF THE EUROPEAN UNION
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THE EUROPEAN COMMUNITIES- EC EURATOM
COMMON FOREIGN AND SECURITY POLICY COOPERATION IN JUSTICE AND HOME AFFAIRS |
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MEANT TO BROADEN THE OBJECTIVES OF THE EU , MOVING IT FURTHER AWAY FROM THE NARROW ECONOMIC BASE OF ITS EARLY YEARS
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TREATY OF AMSTERDAM
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WAS TO REFORM INSITUTIONS BY AMENDING THE FOUNDING TREATIES IN PREPARATION FOR EU ENLARGEMENT
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TREATY OF NICE
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IN ORDER TO JOIN THE UNION EACH PROSPECTIVE MEMBER STATE IS REQUIRED TO FULLFILL ECONOMIC AND POLITICAL CONDITIONS KNOWN AS THE ------------------ ACCORDING TO WHICH THEY MUST ---------------------------
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COPENHAGEN CRITERIA
STABLE DEMOCRACY FUNCTIONING MARKET ECONOMY ADOPT COMMON RULES AND STANDARDS AND POLICIES THAT MAKE UP THE BODY OF EU LAW |
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THIS MEANS THE UNION SHALL ACT ONLY WITHIN THE LIMITS OF THE COMPETENCES CONFERRED UPON IT BY THE MEMBER STATES IN THE TREATIES TO ATTAIN THE OBJECTIVES SET THEREIN
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CONFERRAL
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WHERE ONLY THE EU MAY LEGISLATE- THE MEMBER STATES CAN ONLY ACT IF EMPOWERED TO DO SO BY THE UNION, OR TO IMPLEMENT THE UNION ACTS
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EXCLUSIVE COMPETENCE
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THE MEMBER STATES CAN ONLY EXERCISE THIS SHARED COMPETENCE IF THE EU HAS NOT EXERCISED ITS COMPETENCE TO ACT , OR IF THE EU HAS CEASED TO EXERCISE ITS COMPETENCE
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SHARED COMPETENCE
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PROVIDES THE UNION WITH GENERAL LEGISLATIVE POWER IF NO SPECIFIC POWER HAS BEEN PROVIDED BY THE TREATIES
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ARTICLE 352 TFEU
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PROVIDES FOR THREE VOTING METHODS
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SIMPLE MAJORITY , QUALIFIED MAJORITY AND UNANIMITY
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WAS THE RESULT OF AN IMPASS BETWEEN FRANCE AND OTHER MEMBER STATES IN RELATION TO FARM PRICES IN 1965, THE DECISION HAD TO BE DETERMINED UNDER THE TREATY BY THE COUNCIL ACTING BY A QUALIFIED MAJORITY
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LUXEMBOURG ACCORD
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IT WAS DECIDED THAT THE COMMISSION SHOULD CONSULT MORE WIDELY BEFORE PROPOSING LEGISLATION AND SHOULD INCLUDE IN THE RECITALS TO ANY NEW MEASURE ITS JUSTIFICATION FOR INITIATING THE MEASURE UNDER THE SUBSIDIARY PRINCIPLE
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EDINBURGH EUROPEAN COUNCIL MEETING
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IN AREAS WHICH DO NOT FALL WITHIN ITS EXCLUSIVE COMPETENCE, THE UNION SHALL ACT ONLY IF AND IN SO FAR AS THE OBJECTIVES OF THE PROPOSED ACTION CANNOT BE SUFFICIENTLY ACHIEVED BY THE MEMBER STATES
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SUBSIDIARITY
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CONTENT AND FORM OF UNION ACT SHALL NOT EXCEED WHAT IS NECESSARY TO ACHIEVE THE OBJECTIVES OF THE TREATIES
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PROPORTIONALITY
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THE COURT OF JUSTICE HELD THAT THE COMMISSION DID HAVE THE POWER TO CONSULT WITH MEMBER STATES ON THE IMPACT OF THIRD COUNTRY IMMIGRATION ON THE EMPLOYMENT MARKET, AND HOW THIS WAS AFFECTING UNION WORKERS, BUT IT DID NOT HAVE A BINDING MEASURE RESTRICTING THE WAY IN WHICH MEMBER STATES COULD REGULATE IMMIGRATION INTO THIER TERRITORIES FROM OUTSIDETHE UNION
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GERMANY V COMMISSION
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REPRESENTS THE INTEREST OF THE MS GOVT
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COUNCIL OF MINISTERS
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SERVE THE INTERESTS OF THE EU AS AN ORGANIZATION
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COMMISSION
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THE POWER OF THE PRIMARY INSTITUTIONS CAN BE DIVIDED INTO ---------------- AND --------------------- POWERS
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LEGISLATIVE , SUPERVISORY
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To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
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article 288 tfeu
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A shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
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regulation
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“A shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”
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directive
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A shall be binding it its entirety. A decision which specifies those to whom it is addressed shall be binging only on them.”
E.g. |
decision
the Microsoft decision |
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The EU is the body of common rights and obligations which bind all the Member States together within the European Union
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acquis
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Art 5 (1) “The limits of Union competences are governed by the principle of ----------. The use of Union competences is governed by the principles of -------------- and -----------------”.
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conferral
subsidiarity proportionality |
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“[Article 13 (2) TEU] makes it clear that the Community institutions do not have inherent powers but only those which, expressly or by implication, are conferred upon them by the Treaty. Powers which are not thus conferred lie with the Member States” case
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parliament v council 1994
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types of competence
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exclusive, shared and complimentary
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whenever the EC has promulgated internal rules in a certain field---for instance, has taken measures binding on the member states---then the powers to act externally in that field are created. Moreover, under certain conditions, these powers will be of an exclusive nature: as soon as the EC comes into possession of these powers, the member states will have lost them.
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commission v council ERTA
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TO EXERCISE THE UNIONS COMPETENCES THE INSITUTIONS SHALL ADOPT REGULATIONS, DIRECTIVES, DECISIONS, RECOMMENDATIONS, AND OPINIONS
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article 288 tfeu
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even when it has the power to act it must act in the way that is least intrusive , it must show the reason for it being issued
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subsidiarity
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the court of justice can judicially review pieces of EU legislation, if there is something wrong with it. The whole idea of the EU is based on the idea of ---------- power
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conferred
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article ---- sets out each institution shall act within limits of the powers conferred on it within treaties
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13
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--------- is there to police the principle of conferral
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ECJ
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case made it clear that the community insitutions do not have inherent powers but only those which expressly or by implication , are conferred upon them by the treaty. Powers which are not thus conferred lie with the member states
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PARLIAMENT V COUNCIL
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THE WORKING TIME DIRECTIVE CASE.. DESIGNED TO LIMIT THE HOURS THAT PEOPLE CAN BE COMPELLED TO WORK
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uk v council
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this is the tobacco advertising case. the effect of the directive would have been to ban tobacco advertising. It was adopted under an internal market basis , EU arguing that things like magazines ash trays etc. often had cigarette logos on them, having different laws across the EU those products might be more difficult to sell in different places. Argued directive was more close to public health than internal market
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GERMANY V EP AND COUNCIL
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TYPES OF EXTERNAL COMPETENCES TFEU
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COMMON COMMERCIAL POLICY
DEVELOPMENT AND HUMANITARIAN AID RESTRICTIVE MEASURES RELATIONS WITH INTERNATIONAL ORGANISATIONS ASSOCIATIONS OF OVERSEAS TERRITORIES AND COUNTRIES |
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CAN THE EU ACT?
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COMPETENCE
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SHOULD THE EU ACT?
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SUBSIDIARITY
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DID THE EU ACT IN THE LEAST INTRUSIVE MANNER?
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PROPORTIONALITY
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The European Parliament works with the
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council
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this committee adopts a joint text based on the common position and the EPs second reading amendments. If the council and parliament approve the joint text in its entirety , the act is adopted. If the committee cannot agree on a joint text or if parliament or the council do not approve it , the act is deemed not adopted
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conciliation committee
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conciliation committee case- in use term conciliation the authors of the treaty intended to make the procedure adopted effective and to confer a wide discretion on the conciliation committee.
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international air transport assoc.
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council and commission acting alone , consent of ep needed
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SPECIAL LEGISLATIVE PROCEDURE
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KEY ROLE IN SHAPING EU LAW AND THE RELATIONSHIP BETWEEN THE NATIONAL AND EU LEGAL SYSTEM. THE NATIONAL COURT REFERS; THE ECJ RULES ON THE ISSUES; THE CASE IS SENT BACK TO THE COURT ; THE NATIONAL COURT WILL APPLY EU LAW
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ART 267 TFEU
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2 TYPES OF CASES THAT CAN BE BROUGHT TO THE ECJ
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INTERPRETATION OF THE TREATY
VALIDITY AND INTERPRETATION OF ACTS OF THE INSTITUTIONS AND BODIES OF THE EU |
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SUCH IS THE CASE EXPECIALLY WHEN THE QUESTION RAISED IS MATERIALLY IDENTICAL WITH A QUESTION WHICH HAS ALREADY BEEN THE SUBJECT OF PRELIMINARY RULING. CASE.
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DA COSTA EN SCHAAKE
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A NATIONAL COURT DEEMS THAT THE ANSWER TO THIS ISSUE IS SO CLEAR AS TO LEAVE NO SCOPE FOR ANY REASONABLE DOUBT AND IT IS CONVINCED THAT THE MATTER IS EQUALLY OBVIOUS TO THE COURTS OF THE OTHER MEMBER STATES AND TO THE ECJ
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ACTE CLAIR DOCTRINE
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is about the exercise of that power
“a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level”. |
SUBSIDIARITY
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Under the principle of subsidiarity, in areas which do not fall within its ------------------, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level
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EXCLUSIVE COMPETENCE
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"The principle of ------------------- ... falls to be considered in relation to action already taken ... and has as its object to permit verification of compliance with the Treaty's objectives. The principle of -------------- operates at an earlier stage, namely in deciding whether or not to take action at Community level".
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PROPORTIONALITY, SUBSIDIARITY
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court said that by creating a community of unlimited duration , having tis own instititutions its own personality , its own legal capacity of representation on the international plane and more particularly real powers stemming from a limitation of sovereignty , the member states have limited their sovereign rights ,and have thus created a body of law which binds both their nationals and themselves.
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COSTA V ENEL
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A LEGAL SYSTEM WHERE ANY INTERNATIONAL AGREEMENTS SIGNED BY THAT STATES GOVERNMENT CAN ONLY BECOME LAW WHEN LEGISLATION IS ENACTED IN THAT COUNTRY TO RATIFY THAT AGREEMENT.
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DUALIST
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THE COMMUNITY CONSTITUTES A NEW LEGAL ORDER IN INTERNATIONAL LAW FOR WHOSE BENEFIT THE STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS AND THEREFORE LIMITED THEIR ABILITY TO MAKE LAWS WHICH GO AGAINST THE TREATY .
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VAN GEN EN LOOS
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CONCERNING THE EFFECT OF THE EU TREATY ON THE APPLICATION OF UK LAW IN THE COURTS.
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MCCARTHYS V SMITH
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CONCERNING SUPREMACY OF EU LAW. WHERE THERE IS CONFLICT BETWEEN NATIONAL LAW AND COMMUNITY LAW THE DOCTRINE OF PARLIAMENTARY SUPREMACY IS MODIFIED BY S2 OF THE EU COMMUNITIES ACT 1972 AND ALLOWED THE HOL TO DISREGARD THE MERCHANT SHIPPING ACT , SOMETHING IT HAD NEVER BEEN ABLE TO DO BEFORE. IN THIS CASE THIS ALLOWED THE SPANISH FISHERMAN WHO COMPLAINED TO THE COURTS TO GET INTERIM RELIEF AND EVENTUALLY LED TO THE RELEVANT PARTS OF THE MERCHANT SHIPPING ACT BEING REPEALED
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FACTORTAME
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EU law is directly applicable if it is recognised as part of UK law. Treaties and regulations are directly applicable because they become part of uk law as a result of the European communities act. Directives are not directly applicable as they need implementing piece of legislation to become law in the uk
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Direct Applicability
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EU law is directly effective if it can be enforced in a UK court. There are two types of direct effects , horizontal and vertical.
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Directly effective
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3 CRITERIA FOR DIRECT EFFECT FROM VAN GEN EN LOOS
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-IT WAS A CLEAR AND UNCONDITIONAL PROHIBITION
- IT IMPOSED A DUTY WITHOUT ANY DISCRETION GIVEN TO THE MEMBER STATES - IT PRODUCED DIRECT EFFECTS BETWEEN MEMBER STATES AND CITIZENS |
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IN ORDER FOR A PROVISION OF COMMUNITY LAW TO HAVE DIRECT EFFECTS IT MUST:
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- BE CLEAR AND PRECISE
- BE UNCONDITIONAL/WITHOUT EXCEPTIONS - NOT REQUIRE ANY IMPLEMENTATIONS BY THE MEMBER STATE |
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AN EU LAW IS --------------- EFFECTIVE WHEN IT IS ENFORCEABLE ONLY AGAINST THE STATE
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VERTICALLY
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IT IS ------------ EFFECTIVE WHEN IT IS ENFORCEABLE AGAINST PRIVATE INDIVIDUALS AS WELL AS AGAINST THE STATE
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HORIZONTALLY
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FOSTER V BRITISH GAS- SAID THE BODY WOULD BE PART OF THE STATE IF IT
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-IS SUBJECT TO THE CONTROL OF THE STATE
-HAS SPECIAL POWERS GIVEN TO IT BY THE STATE |
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CONCERNING INDIRECT EFFECT OF COMMUNITY LAW: as national courts are part of the state , they are under an obligation to interpret national law in line with community law. this can mean that an individual can enforce a law from the eu against another individual in a national court.
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von colson
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case concerning state liability for failing to implement a directive
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francovich
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in francovich Italian state would be liable for its failure to implement the directive if the following three conditions were fulfilled
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- the directive gave rights to individuals
- those rights were identifiable within the wording of the directive - was a causal link between the failure to implement and the damage caused to the individual |
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function of enforcement proceedings
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upholding the rule of law -> ensuring the general
and uniform observance of EU law; -> encouraging MS to comply voluntarily -> public policy tool, which allows prioritisation but the Commission’s discretion is controversial |
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While the manner and form of implementation of directives is incumbent on the--------, they must implement them fully.
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MS
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The Commission can bring proceedings at any time after the expiry of the time limit;
The Court will decide if the MS is in breach of EU law-> the state is required to comply with the judgment. |
JUDICIAL STAGE
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Penalties depend on
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1) seriousness; 2) duration; 3) deterrence
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COMMISSION DISCRETION AND FLEXIBILITY CASE
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STAR FRUIT COMPANY V COMMISSION
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STAGES FOR ENFORCEMENT
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ADMINISTRATIVE, JUDICIAL,
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FACTORS TAKEN INTO ACCOUNT WHEN CONSIDERING THE SIZE OF FINES
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-seriousness of the breach
- the financial size of the member state - whether to impose a lump sum fine or one which increases daily. |
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Acts subject to judicial review
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regulations , decisions and directives
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acts can be reviewed provided that they have binding force or produce legal effect
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sui generis
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Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against [1] an act addressed to that person or [2]which is of direct and individual concern to them, and [3] against a regulatory act which is of direct concern to them and does not entail implementing measures.
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non privilege applicant
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Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by reference to which they may be individually described in a way similar to that of addressee of the decision”
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plaumann test
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anomaly of judicial review
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the greater the amount of persons affected the less likely judicial reveiw will take place
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main case for judicial review
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plaumann
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grounds for judicial review
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Lack of Competence;
Infringement of an essential procedural requirement; Infringement of the Treaty or of any rules relating to its application; Misuse of powers. -binding nature of acts reviewable |
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international law becomes part of national law as soon as the treaty is ratified (e.g. Netherlands)
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monism
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> international law takes effect only when incorporated by enactment of national legislation (e.g. UK, Germany, Italy)
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Dualism
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The Community constitutes a new legal order in international law, for whose benefit the states have limited their sovereign rights, albeit within limited fields.’ case.
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Van gen den loos
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textual foundation for EU supremacy
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Lisbon treaty- declaration of supremacy
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by joining the EU, MS transferred ‘real powers’
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contractarian argument
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the aims of the Treaty could not be achieved unless primacy were accorded to EU law
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functional argument
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[A] national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means’
case. |
simmenthal
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The transfer by the States from their domestic legal system to the [Union] legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the [Union] cannot prevail’
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costa v enel
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Capacity of a provision of EU law to confer rights on individuals which they may enforce before national courts (narrow definition)
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direct effect
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A provision takes effect in the legal system of the MS without the need to pass a law to give it effect.
It does not necessarily creates rights |
direct applicability
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birth of direct effect
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ven gen den loos
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conditions for direct effect
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Clear
Unconditional Negative obligation No reservation No need of implementing measure |
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a treaty article will confer direct effect if
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it is intended to confer rights on individuals, and it is sufficiently clear precise and unconditional
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case for horizontal effect
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Defrenne v sebena
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Directives do not have horizontal direct effect; only where the EC has competence to make Regulations can it enact obligations for individuals with immediate effect (para. 24); Directives are binding only in relation to each Member State to which they are addressed
case. |
marshall
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Organizations or bodies with public functions subject to the authority or control of the state, whatever their legal form
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DEFINITION OF STATE
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DIRECTIVES DO NOT HAVE
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HORIZONTAL DIRECT EFFECT
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> during the period after adoption of a directive but before the time limit for implementation has expired, all organs of the state, including courts, must refrain from adopting any measure of interpretation liable seriously to compromise the result prescribed by the directive
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INDIRECT EFFECT
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‘the provisions of a directive may be applicable by means of an express reference in a regulation to its provisions, provided that general principles of law, and, in particular, the principle of legal certainty, are observed’.
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VIAMEX
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case for state liability
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KOBLER
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3 CONDITIONS FOR STATE LIABILITY
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1) Legal rule must confer a right;
2) Breach must be sufficiently serious; 3) Direct causal link between the breach and the damage. |
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The ECJ recognises human rights as one of the general principles of law
To claim discounted EC butter, Stauder had to present a voucher and give his name and address. He claimed that this was contrary to his human dignity under the German Constitution. Commission decision could be interpreted in conformity with that right. ‘fundamental human rights [are] enshrined in the general principles of Community law and protected by the Court |
STAUDER V ELM
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Inspiration from constitutional traditions common to the Member States
International treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply the guidelines which should be followed within the framework of Community law |
NOLD
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7 CHAPTERS FOR HUMAN RIGHTS
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DIGNITY
FREEDOM EQUALITY SOLIDARITY CITIZENS RIGHTS JUSTICE APPLICABILITY |
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– Where the EU adopts measures in an area to ensure that all MS are applying the same rules.
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POSITIVE HARMONISATION
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– Where national rules are not applied as they are contrary to EU law- e.g Mangold case
• In the early years positive harmonisation was slow and the CJEU took the lead- direct/indirect effect |
NEGATIVE HARMONISATION
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Provided powers to achieve economic and monetary union
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MAASTRICHT TREATY 1992
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–----------is the difference between a Customs Union and a ‘Free Trade Area’, e.g EFTA.
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cct
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The ------------------- means that the Members of the EU represent themselves as a single entity when negotiating with the rest of the world.
– Within the WTO the EU appears as a single trading bloc negotiating, effectively, with the US, China and Japan |
common commercial policy
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case.‘I do not see how it is possible to achieve a genuinely single, integrated market without eliminating divergences between national legislation which, by having a differing impact on production costs, prevents the development of competition on the basis real equality within the Community. That interpretation essentially bases the concept of ‘internal market’ on that of the ‘common market’, as defined by the Court both in its two judgments in Schul in which it stated that: ‘the concept of a common market is defined by the Court in a consistent line of decisions involves the elimination of all obstacles to intra‐Community trade in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market’.
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commission v council titanium dioxide
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any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier constitutes a charge having equivalent effect… even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with the domestic product’
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COMMISSION V ITALY- STATISTICAL LEVY CASE`
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------------ ARE INTERPRETED AS PRODUCTS WHICH CAN BE VALUED IN MONEY WHICH ARE CAPABLE AS SUCH OF FORMING THE SUBJECT OF COMMERCIAL TRANSACTIONS
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GOODS
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MANY RULES IN EU LAW DO NOT IMPOSE A DUTY TO DO SOMETHING BUT RATHER A DUTY NOT TO DO SOMETHING
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NEGATIVE DUTY
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THE ECJ RULED THAT AS THE NEW DUTY IMPOSED A HIGHER RATE OF IMPORT DUTY UPON THE IMPORTER , IT WAS A DIRECT CONTRAVENTION OF ART 30 AND THAT THIS ARTICLE PROVIDED A RIGHT WHICH COULD BE ENFORCED BY INDIVIDUAL EU CITIZENS
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VAN GEN DEN LOOS
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the ecj ruled that the purpose of the export tax was irrelevant, the mere fact that the tax was prohibited by art 30 was enough for italy to be considered to be breaching eu law.
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commission v italy re export tax on art treasures
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article 110 is designed to prevent protectionism through the way the member states organise their internal taxation. it takes a two pronged approach
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prohibition on taxes which discriminate between impost and similar domestic products
- prohibition on taxes which discriminate between imports and competing domestic goods |
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goods will need to be objectively judged as similar before any comparison on the amount of tax levied can be made.when judging the similarity , this has to be done objectively on the different characteristics of the two products concerned .in this case the difference in alcohol content and the fact that one was produced by fermenting the other by distillation meant that they were not similar
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john walker v ministeriet for skatter
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despite not being similar they did compete with eachother because they may be considered alternative choices for people as alcoholic beverages
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COMMISSION V FRANCE
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IMPORTANT ISSUES TO CONSIDER FOR COMPETING GOODS
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IS WHETHER THE PRODUCTS COMPETE
EFFECT OF THE TAX DIFFERENCE IS SUCH THAT THE DOMESTIC PRODUCTS ARE MORE FAVOURABLY TAXED THAN IMPORTS |
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IS ONE WHERE IMPORTS OR EXPORTS ARE EITHER PARTIALLY OR TOTALLY RESTRICTED. THIS WOULD BE INCLUDE QUOTA SYSTEMS, BANS AND CAN POTENTIALLY ALSO BE ANY FORM OF LICENSING SYSTEM
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QUANTATIVE RESTRICTIONS
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EVEN WHERE THE APPLICATION FOR AN ----------- IS CONSIDERED A MERE FORMALITY IT CAN STILL BE CONSIDERED A QUANTATIVE RESTRICTION BECAUSE IT IS A MECHANISM WHEREBY IMPORTS CAN BE RESTRICTED
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LICENSING SYSTEM
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case concerning definition of meqr
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procureur du roi v dassonville
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cassis rule- restrictions would be allowed for indistinctly applicable measures if they could satisfy certain mandatory requirements such as
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effectiveness of fiscal supervision
protection of public health fairness of consumer transactions defence of the consumer. |
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case holding the principal of mutual recognition
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cassis
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Article 36 provides situations where the member state may be excused
public policy : |
thompson
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36 public morality
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darby
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36- public security
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campus oil ltd
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36-protection of life or health of humans, animals and plants
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lanwirscaftaskammer
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36 quantative restrictions on export of art treasures was justified but a tax was not
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re export on art treasures
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“It must be recognised that the possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion is not a national of the host member state, can assist his integration in the host State and thus contribute to the freedom of movement of workers. Consequently, that possibility must also be regarded as falling within the concept of social advantage for the purpose of Article 7(2) of Regulation 1612/68 [NOW REG 492/2011].
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netherland v reed 1986
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which, whether linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other MS therefore seems suitable to facilitate their mobility within the Community.
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even 1979
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are eu nationals who are either in employment full or part time in that they are paid in return for their performance under an employee/employer relationship or are seeking actual paid work
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worker
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blum set 3 standards for definition of worker
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during a certain period of time
performs services for and under the direction of another in return for renumeration |
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the concept of worker has two parts
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economic and formal
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the definition of worker included those doing part time worker
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levin
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payment for work did not have to be monetary but could be a benefit in kind
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steymann
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someone who does not earn enough to live on and must claim benefits is still worker
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kempf
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a worker could also be someone who had recently lost their job and was looking to take another one
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hoekstra
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definition of worker does not apply to the ------------- dealt elsewhere in the treaties
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self employed
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time limit for finding work
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3 months
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time limit for workers set out in
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brian francis collins
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right of workers are generally subject to limitations on grounds of
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public policy, public security, public health
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derogation under public policy reason
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must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society
action by person must be present threat not past |
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the ecj decided that the concept of public policy had to be interpreted narrowly , but that a member state had a certain amount of discretion as to how it was to be applied. Therefore her current membership of this organisation could constitute grounds for refusing her entry even where it was not a banned organisation. The activity has to be considered socially harmful
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van duyn
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criminal convictions as conduct under public policy grounds for exclusion
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r v bouchereau
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Defined remuneration
just because the work appeared unpaid this did not mean that it was not an effective economic activity |
steymann
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A FORMER WORKER CAN RETAIN THEIR STATUS:
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a. Temporarily unavailable
b. Involuntarily unemployed + one worked year + registered job-seeker c. Involuntarily unemployed + less than one worked year + registered as job-seeker = ‘worker’ for at least six months d. Undertaking vocational training (must be related to previous employment if voluntarily unemployed). |
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Article 4(1) provides that national provisions which restrict, by number or percentage, the employment of foreign nationals in any undertaking do not apply to nationals of the other MS
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Commission v. Italy [1999]
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The interests which this derogation allows MS to protect are satisfied by the opportunity of restricting admission of foreign nationals to certain activities in the public service
On the other hand this provision cannot justify the discriminatory measures with regard to remuneration or other conditions of employment against workers once they have been admitted to the public service The very fact they have been admitted shows indeed that those interests which justify the exceptions to the principle of non-discrimination permitted by [Article 45(4)] are not at issue.” |
SOTGIU
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PUBLIC SERVICE EXEMPTION
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ARMED FORCES
POLICE TAX AUTHORITIES JUDICIARY |
