W200 Exam Review, Unit 18

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A: The relationship of European Union law and national law

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1: Introduction

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A monist state refers to

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A Member State where supremacy of EU law is incorporated into national law automatically when it is ratified

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A dualist state refers to

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A Member State where EU law does not become national law until incorporated through national legislation in the domestic Parliament

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The ECJ took a lead in the developing of a doctrine of supremacy due to

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the variety of positions and procedures adopted by the Member States in enacting EU law

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The Court of Justice developed the doctrine of supremacy through judgments in

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cases it slowly exerted authority over national law incompatible with EU law

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What Article allows a Member State to be brought before the Court of Justice by the Commission, or other Member state regarding infringements of EU lae through national law

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Article 258 (infringement procedure)

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The ECJ in the Van Gend en Loos case set out that Member States of the EU had limited there

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sovereignty by becoming Member States

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The ECJ in Costa v. ENEL case set out 'a clear limitation...of sovereign right, upon which a subsequent unilateral act, incompatible with the aims of the EC,

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cannot prevail'

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What does a national court do in practice when faced with a conflict

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apply EU law

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ECJ ruled in Amministrazione delle Finanze Dello Stato v. Simmenthal (Case 106/77) that a national court need not wait or ask for the setting aside of a national provision but

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should apply EU law straight away.

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What UK provision gives EU law supremacy

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The ECA 1972 s. 2(4) provides that any enactment passed or to be passed...shall be construed and have effect subject to ss(1); i.e. obligations of a community nature

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B: General principles and fundamental rights

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1: General Principles of European Union law

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general principles refers to

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unwritten principles shared by Member States of the EU

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What are the general principles:

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(i) respect for fundamental rights

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(ii) the principle of proportionality

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(iii) the principle of equality

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(iv) the principle of legal certainty

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(v) the principle of respect for procedural rights

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(vi) the principle subsidiarity

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What Article of the TFEU sets out that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, which shall have the same legal value as the Treaties

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Article 6

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What Article sets out that the Member States accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms and allows that Member States be held accountable by other Member States for any breaches of those principles

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Article 7

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What are 'fundamenetal rights':

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fundamental rights are not defined explicitly in any treaty but are generally seen as fundamental human rights commonly enshrined in national constitutions

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fundamental human rights commonly enshrined in national constitution

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What relevance does the ECHR have regarding the principles of fundamental rights:

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All the Member States are signatories to the ECHR and Article 6 states they will accede to it and therefore the ECJ can invoke it in any

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decision making process reagarding fundamental rights

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What refers to the means used to achieve a particular result must not exceed whatb is necessary and appropriate to achieve that result

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the principle of proportionality

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What refers to simply allowing fair and equal treatment of parties in whatever circumstances where an inequality may exist

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the principle of equality

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The principle of legal certainty consists of:

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(i) the principle of legitimate expectation; which in the absence of overriding public concern, persons are entitled to assume EU law will not be changed dramatically to their disadvantage

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(ii) the principle of non retro activity; which stops laws from being retrospectively applied

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What refers to the safeguards employed to protect an individuals rights when affected by EU law

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Procedural rights

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Secondary legislation often provides

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specific procedural safeguards

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What refers to the procedural rights used in cases where legislation does not directly set out any safeguards

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General principles which are:

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(i) the right to a fair hearing

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(ii) the duty of decision-making body to give reasons for its decisions

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(iii) the right ot due process

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(iv) protection against self incrimination

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Subsidiarity refers to:

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(i)the principle that in areas of legislation where the EU has the exclusive right to act and a member states alone cannot achieve and objective the community should act

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(ii) requiring decision-making to be 'as close to the citizen as possible'

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(iii) the Union can only act within the powers given to it by the treaties

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the areas of exclusive competence regarding EU law are not

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defined

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Protocol No.2 attached by Treaty of Lisbon (pg 125-127, Foster) refers to

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priciples of subsidiarity and proportionality

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What Article sets out the sanction for a member state which seriously or persistently breaches fundamental rights

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Article 7

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What attempts to 'enhance the protection of fundamental rights in the light of changes in society, social progress and scientific and technical developments' set out in the Treaty of Nice

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Charter of Fundamental rights

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C: The role of the Court of Justice

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1: Courts composition and role

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Composition of the ECJ is:

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(i)one judge from each member state appointed by agreement by Member States

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(ii) A president elected by the judges

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(iii) 3 or 5 judges will usually sit to hear a basic case while 7 or more for a more important case

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Role of the Court is:

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(i) set out in Articles 267, 258, 259, 19(TEU) and 263

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2: Direct Action before the ECJ

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What Articles permit direct action to be started in the court against Member States (not individuals)

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Articles 258 and 259

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According to Articles 258 and 259 who has the right to bring a Member State before the ECJ:

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(i) The Commssion

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(ii) Another Member State (Although it must approach the Commssion first)

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3: How much power does the ECJ really have

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Rulings of the ECJ:

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(i)have no power directly to make law in a Member State for a specific case but the rulings on the validity of other institutions decisions assures that the national courts of Member States will enforce it's decisions

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(ii) cannot be appealed against

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(iii) are not bound by precedent

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(iv) can make law through the doctrine of direct effect (especially in areas where Treaties make little or no provision on a matter)

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(v) are binding (Article 4, TEU) in areas of EU law on national courts according to the provisons of the Treaty

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(vi) can be ignored by national courts but it is a highly exceptional situation

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Under what Article the ECJ can review the legality of any decision by any EU institution

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Article 263

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Under what Article must a ruling of the ECJ be complied with by the Member States and fines can be imposed by the ECJ for non-compliance

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Article 260

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D: Rights of and protection for individuals under EU law

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1: How can individuals use European law

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The three main options for an indivdual are:

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(i) the cdoctrine of direct effect

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(ii) the priciple of indirect effect

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(iii) claiming damages from a member state for its failure to comply with EU law

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all claims are initiated in

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national courts

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an individual referes to a

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person or business

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individuals cannot bring claims against other individuals in the

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ECJ

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What refers an individual using EU law as a defence in any civil action, prosecution or tax claim against them

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Shield

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What refers to an individual bringing a claim directly in reliance on EU law

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Sword

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2: Direct effect

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What refers to the use of EU law in a case allowing an individual to rely on it directly without needing to cite national law

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Direct effect

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the doctrine of direct effect means national courts must apply EU law regardless of

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any conflict with national law

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What refers to an EU law which does not need to be passed in national parliaments for it to be valid

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Directly applicable

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All Treaty Articles and Regulations are directly applicable but Directives are never

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directly applicable