Flashcards
Foundations of EU
Flashcards do conjunto (97)
- 1Requirements for State Liabilityrelevant measure intended to confer rights; sufficiently serious breach; causation
- 2Commission v Irelandenforcement; the deadline imposed for state-compliance can't be too short
- 3Starfruit v Commissionenforcement; wording in A258 "considers" infers a discretion; action failed against the commission for not acting
- 4Enforcement procedureA258 - commission delivers a reasoned opinion on the matter; deadline imposed for state-compliance
- 5Article 17(1) TFEUrole of commission is to "promote the general interests of the union and take appropriate initiatives to that end. It shall ensure the application of the treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under its control of the Court of Justice"
- 6Article 258 TFEUoutlines the enforcement actions procedure
- 7Protocol 30 on the Application of the Charter of Fundamental Rights to Poland and the United Kingdomnot technically an opt out; rather it states "noting the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter"...
A1(1) Charter doesn't extend the ability of the ECJ or any court or tribunal in UK or Poland to find their actions are inconsistent with the Charter
A1(2) nothing in the charter creates justiciable rights in the UK or Poland, except insofar as they are provided for in domestic law - 8Article 6(2) TFEUaccession to ECHR
- 9Article 52(3) TFEUtackles the tricky relationship between the ECHR and Charter
- 10Article 52(2) TFEUcovers overlap between existing EU principles and the Charter, providing that the charter "shall be exercised under the conditions and within the limits defined by those Treaties"
- 11Traghetti del Mediterraneostate liability - no need for intentional fault or serious misconduct on part of the state
- 12Koblernational courts can give rise to an action in state liability
- 13Brasserie du Pucheur; Factortame (No 3)to be sufficiently serious for state liability, there must be a "manifest and grave disregard" for the limits on the exercise of its discretion
- 14Commission v Franceenforcement; action for inadequate implementation; French law that breached EU discrimination rules, Govt argued that they'd issued guidelines etc urging the EU law importance; Held, still a positive obligation to implement properly because of legal certainty issues
- 15FrancovichState Liability - Italy failed to adopt directive proscribing compensation funds for employees of insolvent companies; ECJ: "the principle of liability for damage to individuals caused by a breach of Community law for which a state is responsible is inherent in the scheme of the Treaty". Justified it on the finding that otherwise the "full effectiveness of Community rules would be impaired and the protection of rights which they grant would be weakened"
- 16CIA Securitiesincidental horizontal effect - security system didn't meet Dutch standards. C argued that Dutch standards were not compliant with EU standards. Successful: directive's aim had been to have common specifications throughout Europe, and any deviation had to be brought to Commission's notice
- 17Adeler and OthersMarleasing principle in direct effect will only apply where the implementation period has passed
- 18Marleasingwhilst Von Colson was a situation of incorrect implementation of the directive, Marleasing extended it to situations where not implemented at all
- 19Von Colsonduty of sympathetic interpretation (indirect effect) - C didn't get a job because of his sex; national law reimbursed travel costs to interview etc but no compensation. Equal Opportunities Directive allowed for compensation; ECJ held he was entitled to it to fulfil the purpose of the directive
- 20Foster v British Gasbroadening of the concept of the state as to lessen the harshness of vertical direct effect only; part of the state if they are "providing a service under the control of the state, and has for that purpose special powers"
- 21Paul Craig on Directives'Textual argument' - addressed to member states, not individuals. citizens are to get their rights from national laws when member states implement them
'Legal certainty' argument - not as important now that freely published - 22Marshall v Southampton and South-West Hampshire AHAretirement age discrimination, contravening a directive; ECJ: directives do not have horizontal direct effect, but Hospital is public body so available
- 23Van Duyn v Home Officescientologist; denied entry to UK on grounds of public policy; directive stated that any derogation must be based on behaviour; ECJ: directives can have direct effect as long as they fulfil the requirements in Reynes v Belgium
- 24Defrenne v Sabena Airlinesair hostess; unequal pay on sex-discrimination. Demonstrates the horizontal direct effect of regulations, treaties and decisions
- 25Reynes v Belgium3 requirements for direct effect: sufficiently clear and precise; unconditional obligations; complete and legally perfect (no further enactment)
- 26Article 267 TFEUpreliminary rulings procedure
- 27Telemariscabruzzopreliminary rulings; court will refuse to hear ruling concerning a case in which the facts are unclear
- 28Laurenco Diaspreliminary ruling; ECJ duty to reply?; Qs irrelevant to the dispute, don't have to
- 29Foglia (No 2)preliminary rulings; ECJ duty to reply?; held that they were the ultimate decider of their jurisdiction
- 30ICC Casepreliminary ruling; obligation to refer; just because there is a previous ruling on the point doesnt mean cant refer
- 31Da Costapreliminary rulings; have to refer?; previous ruling on the point may mean no obligation, but see ICC case
- 32Acte Clairpreliminary rulings; don't have to refer where it would be unnecessary because the answer is considered obvious
- 33Broekmeulenpreliminary rulings; court or tribunal; appeals committee for general medicine; considered court or tribunal
- 34Factors for whether a body is a court or tribunalbody established in law; permanent and compulsory jurisdiction (Nordsee); adversarial procedure; applies rule of law; independent of the state; must be dispute resolution, not eg admin (Niebull)
- 35Machinabaupreliminary rulings; ECJ may extract from the elements of the case the Qs of interpretation or validity which alone fall within its jurisdiction
- 36Article 267(3) TFEUno discretion over whether a final court of appeal refers
- 37Article 267(2) TFEUdomestic courts have discretion over whether to refer for a preliminary ruling
- 38Factortamedemonstration of UK's relaxed approach to Supremacy compared to Germany, Poland etc. Lord Bridge: EU law is supreme because of voluntary conferral and so limitation of sovereignty
- 39Commission v Spainenforcement; defences; difficulties of a technical, political or institutional nature is not accepted as a defence
- 40Commission v United Kingdom (enforcement)enforcement; defences; reciprocity not accepted as a defence
- 41Commission v Greeceenforcement; defences; illegality not a defence, other methods states can use to avoid illegal measures (JR)
- 42Commission v Italy (enforcement)force majeure; may be allowed in cases where, e.g., bomb attack; unsuccessful here
- 43Bord Bainne Cooperative v Intervention Boardenforcement actions; force majeure; "not limited to absolute impossibility", but it needs "abnormal and unforeseeable circumstances, the consequence of which... could not have been avoided except at the cost of excessive sacrifice"
- 44Penalties attached to enforcement actionscan be penalised by lump sum or periodic payment orders
Flat rate of 500 euros a day, factors in the seriousness, multiplied by duration - 45France v United Kingdomenforcement by member states under A259; dispute over fishing net mesh sizes
- 46Enforcement actions by other statesmember state takes the matter before the commission; commission gives opportunity for opinions from both member states; commission delivers reasoned opinion, 3 months to reply; matter bought before the court
- 47Article 259 TFEUenforcement by other states; procedure to be followed is outlined (see other card)
- 48R v Bochereauenforcement actions; failure by national courts; can find a breach where the national court "deliberately disregarded or ignored EC law"
- 49Commission v United Kingdomenforcement action; failure to give effect to EU measures; Working Hours Directive, but guidelines issued played down importance of compliance; breach: guidelines were liable to create a culture of non-compliance
- 50Council Voting Requirements - Luxembourg Compromiseeffective veto given to states in matters which concerned 'very important national interests' - very intergovernmentalist
- 51Article 3(1) TFEUareas of exclusive competence; includes customs union, competition rules for the internal market, monetary policy, conservation of marine biological resources under the common fisheries policy, common commercial policy
- 52Article 2(1) TFEUexclusive competence; the areas in which only the EU can legislate
- 53Article 5(2) TFEU"under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the member states in the Treaties"
- 54Examination procedure (implementing acts)less used; applies to Acts of general scope; committee delivers opinion, only adopted if approved
Committees made up of representatives of member states - 55Advisory procedure (implementing acts)commission delivers opinion on taking the Committee deliberations into account
- 56Article 291 TFEUimplementing acts: states shall adopt all measures of national law necessary to implement legally binding Union Acts
- 57Ex Ante restraintobjectives, content, scope and duration of the delegation must be specified
- 58Article 290 TFEUEP can revoke delegated legislation by majority; Council by QM
- 59Article 16(4) TFEUFrom 1 Nov 2014, QM will always be 55% of the Council, representing states comprising 65% of Union population, at least 15 member states
- 60The 'Passerelle' Clausethe European Council can authorise a QM vote where normally requires unanimity, if they get approval from the member states and the European Parliament
- 61Post-Lisbon Council Voting Requirementsthe treaty in Q can now prescribe unanimity or simple majority in the Council; normal requirement is now that qualified majority voting takes place
- 62Article 3(2) TFEUconditional exclusivity; EU has competence to make international agreements, where provided for in a legislative act or necessary to enable the union to exercise its internal competences
- 63Legislative process (ii) - second readingEP - receives council position, sent to committee to attempt reconciliation; EP has 3 months to accept it, reject it or amend it; amendments only allowed where they are to restore the EP's first reading position, broker a compromise or amend part that wasn't in first reading
Council - 3 months to accept or reject; if rejected, Conciliation Committee, who seek to broker compromise in 6 weeks; if fail to do so, not adopted, if succeed, goes to EP and Council for a vote (third reading) - 64Legislative Procedure (i) - First ReadingEP - committee scrutiny of Com's proposal in the EP; suggests amendments and invites comment from com; if Com rejects amendments, back to committee
Council - receives EP position, either accepts and adopts in that wording, or send detailed reasoning of amendments made - 65Article 294 Treaty on the Functioning of the European Unionlegislative process outlined
- 66Article 14 Treaty on the European UnionEP and Council exercise legislative and budgetary functions jointly - co-decision is not the OLP
- 67Article 15 Treaty on the European UnionEuro Council powers; provides a formal place of meeting; doesn't perform legislative tasks but it helps to "define the general political direction" of the EU
- 68Article 16 Treaty on the European Unionpower of Council, "jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the treaties
- 69Treaty of Amsterdamshifted responsibilities of the third pillar into EC
- 70Treaty of the EUcreated the 3 pillars: European Community, Foreign and Security policy, justice and home affairs
- 71Inter-Governmentalismstates and national governments are the key actors; so powers should be vested in the Councils not EP?
- 72Neo-Functionalismintegration as a process not an outcome; collective pursuit of mutually beneficial goals leading to economic prosperity
- 73Functionalismprominent in '50s; integration best furthered by focusing initially on economic sectors, managed efficiently and technocratically by a supranational entity outside the fray of national politics
- 74Yellow card procedure Protocol on the Application of the Principles of Subsidiarity and Proportionalityall legislative proposals are sent to national parliaments; 8 weeks to send reasoned opinion of non-compliance with subsidiarity; each parliament gets 2 votes; if 1/3 of votes express non-compliance, it must be reviewed
- 75Lisbon case (Ger)EU law not followed if it infringes on Germany's constitutional identity: state must have a role in criminal law, war and peace, public expenditure and taxation, welfare, culture/religion
- 76HoneywellGerman courts will refuse to apply EU law where they believe it to be Ultra Vires
- 77Solange IIGerman CC - EC now has rights protection, so German CC not not entitled to apply discretion as to what was followed, as long as EC and ECJ affords protection to human rights
- 78Solange IGerman CC - acceptance of supremacy conditional upon non-conflict with fundamental laws of Germany, particularly rights protection
- 79SimmenthalECJ rejected an argument that national court couldn't just refuse to apply domestic law: it should first go to constitutional court. Rejected because it doesn't need to declare it null and void; merely needs to refuse to apply it
- 80Internationale HandlegesellschaftECJ: the legal status of a conflicting national measure not relevant to Q of whether EU law should take precedence, i.e. constitutional or not; to avoid "adverse effect on the uniformity and efficacy of Community Law"
- 81Van Gend en Loosfirst case to mention supremacy: the foundation of the judgement in Costa v ENEL
- 82Brunner v EU Treatymember states conferred the competences upon the Union, so it is legitimate that the Union is supreme -
- 83Costa v ENELopposed nationalisation of energy companies in Italy, claiming that it violated the constitution and the Treaty of Rome; ECJ held that "It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question" - 'new legal order' would be undermined otherwise
- 84Declaration 17"in accordance with well-settled case law... the treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of member states"
- 85Orange Card Procedure Protocol on the Application of the Principles of Subsidiarity and ProportionalityYCP, but more than 1/2 of votes; commission refusal to amend; EP (maj) and council (Q maj) can vote to stop consideration before first reading
- 86Article 17 Treaty on the European Unionpowers of the commission; needs to "promote the general interests of the Union and take appropriate initiatives to that end"
- 87Elastic clauseA352 - allows measures (necessary to achieve the objectives of a treaty) not provided for in a treaty to be adopted where proposed by commission; unanimously approved by the Council; assented to by EP
- 88Harmonisation CompetencesA114 - union can adopt measures for the approximation of national laws which have as their object the establishment and functioning of the internal market
- 89Majonethere is no democratic deficit, as long as policies are efficiency-oriented and there are accountability measures in place. Democracy will follow
- 90Directivesbinding only as to the result to be achieved, member states choose how; aimed at all or specific member states, not individuals
- 91Regulationsbinding in entirety; directly applicable; address all member states and natural persons
- 92Decisions(A288) decisions are binding in their entirety; directly applicable and binding only on whom it addresses
- 93Article 2(4) TFEUunion competence to define and implement a common foreign and security policy, including the 'progressive framing' of a common defence policy
- 94Article 5 TFEUcompetences: economic, employment and social policy; MS need to coordinate their economic policies within the union, so the Council shall adopt guidelines for such policies; the commission can take action to ensure the coordination of the employment policies of the MS; the Union can take initiatives to ensure social coordination
- 95Article 6 TFEUoutlines the support, coordination and supplement areas: culture, tourism, education, civil protection, etc
- 96Article 2(5) TFEUallows the EU to take action to support, coordinate or supplement member states, thereby superseding their competence in these areas
- 97Article 2(2) TFEUshared competences; "when the treaties confer on the Union a competence shared with the member states in a specific area, the Union and the member states may legislate and adopt legally binding acts in these areas". The member states are to use their competences to the extent that the Union has not used its own
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- FlashCards sobre Foundations of EU, criado por cbarrass-evans em 10-05-2013.
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- cbarrass-evans
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