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80 Cards in this Set

  • Front
  • Back

Rome

Created European Economic Community and a common market and a customs union.

Single European Act

This created the cooperation procedure.

Maastricht

Creates the European Union to supplement the EC in the Treaty on European Union. Includes CSFP.

Amsterdam

Member states agreed to devolve certain powers from national governments to the European Parliament across diverse areas, including legislating on immigration, adopting civil and criminal laws, and enacting CFSP, as well as implementing institutional changes for expansion as new member nations join the EU.

Nice

The Treaty of Nice reformed the institutional structure of the European Union to withstand eastward expansion, creation of subsidiary courts below the European Court of Justice and the Court of First Instance to deal with special areas of law such as patents.

Lisbon

This includes the move from unanimity to qualified majority voting in at least 45 policy areas in the Council of Ministers, a change in calculating such a majority to a new double majority, a more powerful European Parliament forming a bicameral legislature alongside the Council of Ministers under the ordinary legislative procedure, and a consolidated legal personality for the EU. The Treaty also made the Union's bill of rights, the Charter of Fundamental Rights, legally binding. The Treaty for the first time gave member states the explicit legal right to leave the EU and the procedure to do so.

Montevideo Convention, Art 1

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Lisbon Case

The Treaty does not create a European federal state (which would invalidate the Basic Law and require a referendum in Germany), that the structural democratic deficit of the EU institutions cannot be resolved in an association of sovereign national states (since it would break the principle of the equality of states), and that the substance of German national sovereignty is protected. In addition, the judges reserved the right to overrule judgments by the European Court of Justice (ECJ) within Germany, if they should be judged in violation of the Basic Law.

Case 8/55, Federation Charbonniere

Doctrine of implied powers accepted by the ECJ.

Case 22/70, Commission v. Council (ERTA)

Implied powers played major role in external relations.

CJEU Jurisdiction

Jurisdiction is ratione materiae with supreme authority on all matters of Union law (except where its jurisdiction is excluded: Article 24(1) TEU). It is also ratione personae which includes private parties, Member States, institutions.

Van Gend

EU law creased a “new legal order” above that of Member States in areas of competencies conferred. Direct applicability. Treaty provisions will be directly applicable if they are




a) clear and concise,


b) unconditional, and


c) do not require implementation.

Costa v ENEL

Refers to Article 288 TFEU. In principle, as the Treaty of Rome has no direct effect on individual citizens, a claim could not be bought against a government by anyone except the Commission, so the claim failed. The Court of Justice did provide the following guidance, however:




a) [EU] law is an independent source of law,




b) It may not be overridden by domestic legal provisions; and



c) a contrary view would undermine the Union’s character and affect its ability to achieve its objectives.

Simmenthal

The ECJ held that the national court had a duty to give full effect to Community provisions, even if a conflicting national was adopted later.

HP Bulmer v Bollinger [1974] 2 WLR 202

The conditions for making a reference are that




a) the facts of the case should already have been decided,


b) that the decision of the question referred should be conclusive of the case,


c) that there had been no previous ruling on the point by the ECJ, and


d) that the provision in question was not acte clair.

CILFIT

Expressly accepting the French concept of acte clair; which states that if a judgment or rule of law is clear enough, then a member state has no duty to refer a question for preliminary ruling to the ECJ.




No reference to the ECJ need be made if the question of EC law is




a) irrelevant, or


b) the relevant provision has already been interpreted by the ECJ, or


c) the correct application of EC law is so obvious as to leave no room for doubt.

Chernobyl

The Court stated that the Treaties had created a balance between the institutions by assigning specific tasks and a particular role to each one. Under Art. 164 of the EEC Treaty the Court had to be able to maintain the institutional balance.

Meroni

This relates to the extent to which EU institutions may delegate their tasks to regulatory agencies; a delegation of power that is too broadly and insufficiently defined is prohibited.

Honig

A regulation is a measure which applies to objectively determined situations and produces legal effects with regard to categories of persons regarded generally and in the abstract.

Kloppenburg

Directives are binding as to the result to be achieved, but leave Member States a choice as to the means and methods used to achieve that result. Not of general application, although may be addressed to all Member States.

Enka; Commission v Belgium

Discretion left by directives may be limited.

Case 54/65 Compagnie des Forges de Chatillon, Commentry & Neuves-Maisons v. High Authority

Decisions have no general scope of application unless addressed to all Member States. They are binding in their entirety on their addressees only.

Haegeman

The provisions of an international agreement, from the coming into force thereof, form an integral part of community law.

Grimaldi

Article 288 TFEU expressly provides that recommendations and opinions have no binding force. They are not sources of law, but may have legal effects.

Case 28/67 Firma Molkerei-Zentrale Westfalen/Lippe GmbH v. Hauptzollamt Paderborn [1968] ECR 143

It is necessary and sufficient that the very nature of the provision of the treaty in question should make it ideally adapted to produce direct effects on the legal relationship between member states and those subject to their jurisdiction.

San Michele

Ratification of treaties do not require reservations.

Variola

No implementing measure necessary for regulations.

Internationale Handelgesellschaft

Community law is subject to judicial review by the Court on the basis of Community law.

Dzozi v Belgium

A referral may be made concerning the validity and interpretation of EU acts even if national legal act extends the scope of EU law act.

Case 166/73, Rheinmühlen or C-210/06 Cartesio

“Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may (have the right to, must be allowed to), if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.”

Broekemuelen

Only courts of law (fulfilling judicial functions) are allowed to adjudicate on matters concerning preliminary references.

Lyckeskog

Even the highest court of a Member State can be obliged to make a request for a preliminary ruling from the Court of Justice of the European Union.

Da Costa

When question raised in the new case was materially identical with question which had already been subject of preliminary ruling – obligation removed.

CJEU rejects PR

Case C-83/91, Meilicke




Question referred is hypothetical in nature, therefore rejected.




Cases C-320-322/90, Telemarsicabruzzo




Very little information about factual background or relevant provisions of Italian law – not able to give useful ruling.




Case 244/80, Foglia No. 2




National courts should explain why they need a reply to their question.

ICC

Although a judgment of the ECJ under Article 234 EC (ex 177) declaring a Regulation void is only directly addressed to the national court which sought the ruling, it is ‘sufficient reason’ for any other national court to regard that Regulation as void. However, this does not deprive national courts the right to raise the question again under the preliminary rulings procedure.

R. v International Stock Exchange of the UK (1993) QB 534

Presumptions can be made in favour of a referral. If EU law issue is critical to final decision, reference, unless: there is complete confidence of the court that it can resolve the issue itself. Confidence is justified if it flows from thorough analysis of: differences between national and EU law, pitfalls of potentially unfamiliar field, need for uniform application of EU law, expertise and logistical advantages of CJEU

Case C-181 and 248/91, EP v Council and Commission)

Bodies subject to review would be the council and commission but not the representatives of the Member States acting as representatives of their governments.

Case 22/70, Commission v Council (ERTA)

Resolution to a case may have legal effect.

Case 60/81, IBMC v Commission

The test as to whether an act is reviewable is one of substance, not form and that the challenged measure must be final and not preparatory.

Case C-511/03, Netherlands v Ten Kate Holding Musselkanaal

MS may challenge the validity of EU acts for the benefit of its citizens.

European Parliament may challenge (until Nice Treaty only quasi-privileged)

C-70/88, Chernobyl (Privileges)

Case C-583/11, Inuit

Individuals are not privileged applicants unless legislative acts apply to a narrow group of applicants, but not regulatory acts (as they are not legislative acts).




Test for standing:




addressee of a decision? (examples: competition law, state aid)


IF NOT: regulatory act with no implementing measures AND direct concern


IF NOT: direct AND individual concern?

Case C-274/12 P Telefónica & case C-456/13 P T&L Sugars

Implementing acts are not limited to implementing measures foreseen/provided by EU institutions, but also include those adopted by the Member States.

Grounds of review

lack of competence




misuse of power




infringement of essential procedural requirement e.g. right to be heard; duty to give reasons (e.g. case 24/62, Germany v Commission (Wine Tariffs))




infringement of the Treaty or rules related to its application (e.g. fundamental human rights)

Proportionality

Is the measure suitable to achieve the desired end? e.g. if wide discretion than unsuitable only if manifestly inappropriate (case C-331/88, Fedesa)




Is it necessary to achieve the desired end? e.g. case 120/78, Cassis de Dijon




Does it impose an excessive burden on an individual in relation to the objective sought to be achieved? e.g. case 44/79, Hauer and cases C-402 &415/05, Kadi

C-5/71, Schöppenstedt [1971] ECR 975

Where legislative action involving choices of economic policy is concerned, the Community does not incur non-contractual liability for damage suffered by individuals as a consequence of that action, by virtue of the provisions contained in Article 215, second paragraph, of the Treaty, unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred. Damages may therefore be obtained under Article 268 or 340 TFEU as a result of sufficiently flagrant violation of EU law.

Case 25/62, Plaumann v. Commission, [1963] ECR 95

In order for a private applicant to claim under Art 258 TFEU, individual concern must be shown and this means that the decision or Regulation must affect the applicant. This would be ‘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 virtue of these factors distinguishes them individually just as in the case of the person addressed.’ Anyone could become a Clementine trader – it is a group that is open to all - it is very hard to enter in to a closed group.

C-74/74 CNTA

‘a trader, even a prudent one, might be induced to omit to cover himself against such a risk’

C 83, 94/76, 4, 15, 40/77 Bayerische HNL

In areas where the Community enjoys a wide discretion, the Community may not incur liability unless ‘unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of powers’.

C-116,124/77 Amylum

Establishes community liability

Case 4/69, Alfonse Lütticke v. Commission, [1971] ECR 975

The case establishes that positive obligations arising from treaty articles can have direct effect.

* Defrenne v SABENA (No 2) [1976] Case 43/75) ECR 455

There was question as to whether or not Defrenne had rights under EU law (whether or not Direct Effect was applicable to her case). National court made a reference to the CJ, who found that the case met the Van Gend en Loos criteria, therefore, EU law was applicable. Therefore there was horizontal direct effect.

Leonesio v Italian Ministry of Agriculture (1973)

Regulations must be applied even if the member state has already passed legislation that conflicts with them. The ECJ said that only Leonesio had satisfied the conditions, and that he was entitled to the payment; the Italian government could not use its own laws to block that right.

Ratti

Normally, direct effect should not arise within directives, but it may have direct effect (after end of prescribed period) if not implemented.

Faccini Dori

Directives do not have horizontal direct effect.

* Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur [1996] ECR I-1029

Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete implementation of the Treaty. State liability is not confined to failure to implement EC Directives. A remedy under Francovich should be available whether or not there were other means by which Community rights might be enforced, i.e. on the principles of direct and indirect effect. A state should only be liable for ‘manifest and serious’ breach of EC law.




The 3 conditions that must be met (altered as a result of the increased scope given to the principle in Brasserie). The rule of law infringed must be intended to confer rights on individuals. The breach must be sufficiently serious, and There must be a direct causal link between the breach of the obligation resting on the State’s failure and the damage suffered by the injured parties.

* Joined Cases C-6/90 and C-9/90, Francovich [1991] ECR I-05357

Directives are not horizontally directly effective, so cannot not be relied on. This case created the doctrine of state liability, which provided that a citizen may recover compensation from their own Member State where: there is a directive intended to confer rights on the citizen; the directive’s content is clear; and there is a causal link between a state’s incorrect/absence of interpretation and the citizen’s loss.

Case C-352/98 P, Bergaderm [2000] ECR I-05291

For contractual or non-contractual damages claims under Articles 268 and 340 TFEU, there must be an infringement of rights, which is sufficiently serious, and causes loss.




“The decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.”

Case 7/68 Commission v Italy (Italian Art) [1968] ECR 423. (tax on exports of articles having an artistic, historic, archaeological or ethnographic value)

“...products capable of being valued in money and which are capable, as such, of forming the subject of commercial transactions.”

Case C-110/05, Commission v Italy (Trailers case) [2009] ECR I-519

The ECJ identified three situations where a rule could be regarded as measures having equivalent effect to a quantitative restriction: Where the object/effect of the measure is to treat products from other member states less favourably than domestic products. When a measure requires goods lawfully made in another member state to meet another condition even if it applies to all products indiscriminately.

Case 24/68, Communities v. Italy (statistical levy) [1969] ECR 193

This case provided a comprehensive definition to charges having equivalent effect: any pecuniary charge, however small; whatever its designation and mode of application; imposed unilaterally on domestic or foreign goods; by reason of the fact that they crossed a frontier; and NOT a customs duty in the strict sense.

Cases 2&3/69 Sociaal Fonds voor de Diamantarbeiders [1969] ECR 211. (Diamonds case)

A small charge imposed on imported diamonds to fund benefits for workers in the diamond industry) CHEEs are CHEEs even if: it is not imposed for the benefit of the State; it is not discriminatory in effect; it is not protective in effect; and the product on which the charge is imposed is not in competition with any domestic product.

Case 18/87 Commission v Germany (Live Animals) [1988] ECR 5247

A charge can escape classification as a CHEE if it: constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service…OR attaches to inspections carried out to fulfil obligations imposed by Union (or international) law…OR relates to a system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike.

Case 46/76 Bauhuis v. Netherlands [1977] ECR 5.

CHEEs are legitimate if imposed by union law: Charge must be proportionate to the cost; Inspections must be obligatory and uniform; Prescribed by EU law in the interests of the EU; and promote FMG.

Case 89/76, Commission v. Netherlands

CHEEs are legitimate if prescribed by international law; and charge is proportionate to the cost.

C 45/75 Rewe v. HZA

Similar goods formal test – look at fiscal/customs/statistical classification of goods (eg. “under the same heading of common customs tariff”). Factual comparison combined with the economic analysis of the use of the products.

C-106/84 Commission v. Denmark [1986] ECR 833

“It is necessary first to consider certain objective characteristics , such as their origin , the method of manufacture and their organoleptic properties , in particular taste and alcohol content , and secondly to consider whether or not both categories of beverages are capable of meeting the same needs from the point of view of consumers , which must be assessed on the basis not of existing consumer habits but of the prospective development of those habits…”

C-57/65 Lütticke GmbH v Hauptzollamt Sarrelouis

Powdered milk imported to Germany subject to tax and German powder milk not subject to tax.

C- 55/79 Commission v. Ireland

Conditions under which tax is paid - certain producers of alcohol had 4-6 weeks to pay tax whereas the importers had to do this on the day of importation/delivery from customs warehouse.

Geddo

Quantitative restrictions are ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’ Quantitative restrictions (Article 34 TFEU) are generally accepted to have vertical direct effect.

Sapod-Audi (Trade)

No horizontal direct effect

French Farmers

Member States may nevertheless incur liability for failing to take adequate measures to prevent action by individuals disrupting trade.

Case 8/74, Procureur du Roi v. Dassonville [1974] ECR 837

The Court of Justice defined a ‘measure having equivalent effect’ as: “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions”


Case 120/78, Cassis de Dijon [1979] ECR 649

The Court of Justice found that under the principle of mutual recognition, a product lawfully marketable in one Member State (France) should be freely marketable in another Member State (Germany). However, the Court of Justice introduced the concept of ‘overriding reasons of public interest’ (ORPIs) – grounds of justification to act in addition to the Art 36 grounds. The court introduced several in this case: “necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.” ORPIs may only be used where Art 34 measures have a non-discriminatory effect, equally applying to both domestic and foreign products.

Joined Cases C-267 & 268/91, Keck and Mithouard [1993] ECR I-6097

The court held that 'contrary to previous judgments, a national provision which restricts or prohibits certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between member states within the meaning of the Dassonville judgment, provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other member states’.

Case C-268/99, Jany [2001] ECR I-8615

The activities of a prostitute are typically those of a self-employed person, and the rules about freedom of establishment applied. Activity was pursued by a self-employed person if it was:




(I) outside any relationship of subordination concerning the choice of the activity or conditions of work and remuneration,




(ii) under that person’s own responsibility, and




(iii) in return for remuneration paid to that person directly and in full.

Case 81/87, Daily Mail [1988] ECR 5483

The EJC held that the Article 52 (as it was) and 58 (now 48) of the EC treaty do not allow companies to move their headquarters to another Member states while retaining their legal status in the first member state. In this judgement, the Court of Justice also pointed that these articles are only valid for the institutions of “agencies, branches or subsidiaries by the nationals of any Member state”.

Case C-212/97, Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR I–1459

The European Court of Justice held that the Danish authorities' refusal to recognise the company was contrary to articles 52 and 58. The national authorities could adopt less restrictive measures, such as enabling creditors to obtain necessary guarantees, or could adopt measures preventing or penalising fraud, if necessary with the cooperation of another Member State.

Case C-210/06, Cartesio Oktató és Szolgáltató Bt [2008] ECR I–9641

The question of whether the company's right of freedom of establishment was restricted only arose under article 43 if it could be established that the company actually had a right to that freedom. A barrier to conversion was prohibited under TEC article 43 unless it is shown that the restriction is in the public interest.

* Case C-438/05, Viking [2007] ECR I-10779

It held that the right to strike could infringe a business' freedom of establishment under the TFEU article 49 (ex TEC article 43). Industrial action represents a restriction on the right of freedom of establishment if it makes the exercise of that right “less attractive”, but is acceptable if it pursues a legitimate aim and is justified by overriding reasons of public interest (such as the protection of workers and jobs that are “under threat”). The industrial action must also be “suitable” for achieving the objective, having regard to whether the union has other means of achieving it which are less restrictive of the employer’s right to freedom of establishment.