TCL resit flashcards

A comprehensive set of flashcards covering key concepts and terminology in International Commercial and European Law.

Treaties (TEU)

The TEU sets out the principles and values of the EU, its main objectives, the roles of the main institutions, and rules on common foreign and security policy.

TFEU

The Treaty on the Functioning of the European Union provides the legal basis of EU law and determines and delimits the areas of EU competence.

ICC

The International Chamber of Commerce is a private international body that creates influential trade rules such as Incoterms and the Uniform Customs and Practice for Documentary Credits.

European Parliament (EP)

The European Parliament is directly elected by EU citizens for five years and exercises legislative, control, and budgetary powers.

EP – legislative power

The European Commission proposes legislation, and the proposal becomes law only when both the European Parliament and the Council of the EU approve it.

EP – control of the executive

The EP monitors the Commission and the Council of the EU. It may ask questions to the Commission, which must answer, and to the Council, which does not have to answer.

EP – budgetary power

The European Parliament must approve the budget of the EU under Article 314 TFEU.

European Council

The European Council consists of the heads of state or government of the Member States, the President of the Commission, and the President of the European Council. It sets the EU’s general political guidelines and priorities.

Council of the EU

The Council of the EU is made up of national ministers responsible for the subject being discussed. It drafts and adopts EU legislation together with the European Parliament.

Blocking legislation in the Council

To block legislation, at least four countries representing at least 35% of the EU population must vote against the proposal.

European Commission

The Commission acts as the EU’s executive body, with one Commissioner from each Member State. Commissioners represent the interests of the EU as a whole, not their home states.

Commission – propose laws

One of the Commission’s main tasks is to submit legislative proposals.

Commission – execute policy

The Commission manages and executes EU policy.

Commission – enforce EU law

The Commission verifies compliance by Member States and individuals with EU law.

Commission – external role

The Commission acts as spokesperson for the EU and negotiates international trade and cooperation agreements.

Court of Justice of the EU (CJEU)

The CJEU, located in Luxembourg, monitors the correct application and interpretation of EU law so that it is applied uniformly across Member States.

General Court and Court of Justice

The CJEU consists of the General Court and the Court of Justice. Most cases go directly to the Court of Justice, which also acts as an appellate court for the General Court.

Infringement procedure (Arts. 258–259 TFEU)

If a Member State fails to comply with EU law, the Commission may start proceedings before the Court of Justice to require that state to comply.

State liability

A Member State may have to pay damages to individuals harmed by a breach of EU law.

State liability – condition 1

The infringed rule of EU law must grant rights to individuals.

State liability – condition 2

The breach must be sufficiently serious to justify an award of damages.

State liability – condition 3

There must be a causal link between the state’s breach and the damage suffered.

Action for annulment

An action for annulment seeks cancellation of an EU measure such as a regulation, directive, or decision.

Action for annulment – who may bring it

A Member State, the European Parliament, the Council, or the Commission may seek annulment of an EU measure.

Action for annulment by individuals

Individuals have limited standing and may apply only when an act is addressed to them, directly and individually affects them, or, in the case of a regulatory act, is of direct concern to them.

Preliminary ruling (Art. 267 TFEU)

A preliminary ruling is a procedure in which a national court asks the CJEU to interpret EU law so that it can decide the national case consistently with EU law.

Why preliminary rulings matter

They ensure that EU law is interpreted in the same way throughout the Union.

ECtHR

The European Court of Human Rights, based in Strasbourg, enforces the European Convention on Human Rights.

ECHR / ECUR in the summary

The European Convention on Human Rights protects fundamental rights that signatory states must respect.

ECHR – Article 4

Article 4 ECHR prohibits slavery, servitude, and forced labour.

ECHR – Article 5

Article 5 ECHR protects the right to liberty and security of person.

ECHR – Article 6

Article 6 ECHR protects the right to a fair trial.

ECHR – Article 8

Article 8 ECHR protects the right to privacy.

ECHR – Article 10

Article 10 ECHR protects freedom of expression.

ICJ

The International Court of Justice is the main judicial organ of the United Nations and settles legal disputes submitted by states.

ICC (court)

The International Criminal Court exercises jurisdiction over persons accused of the most serious crimes of international concern.

International Tribunal for the Law of the Sea

This tribunal deals with rights and responsibilities relating to the use of the world’s oceans and sits in Hamburg.

European legislation

The TEU regulates the EU’s structure and principles, while the TFEU determines and limits the EU’s competences.

Direct effect

Direct effect means that a citizen can enforce a provision of EU law before a national court.

Direct effect – condition: clear and precise

A provision has direct effect only if it is sufficiently clear and precisely stated.

Direct effect – condition: unconditional

A provision must be unconditional and not dependent on further national implementing measures.

Direct effect – condition: confers rights

A provision must grant a specific right that an individual can rely on.

Horizontal effect

Horizontal effect means an individual can invoke EU law against another individual or company.

Vertical effect

Vertical effect means an individual can invoke EU law against a Member State.

Directive

A directive binds Member States as to the result to be achieved but leaves them free to choose the form and methods of implementation.

Full harmonization

A directive may fully standardize national legislation on a particular subject.

Minimum harmonization

A directive may set only a minimum threshold that national legislation must meet.

Regulation

A regulation has general application, is binding in its entirety, and is directly applicable in all Member States.

Decision

A decision is binding in its entirety upon those to whom it is addressed; it may have general application or be addressed to named persons.

Recommendations and opinions

Recommendations and opinions are soft law: they are not binding.

Exclusive legislative competence (Art. 3 TFEU)

Areas in which only the EU may legislate, including the customs union, competition rules, monetary policy, and common commercial policy.

Shared competence (Art. 4(2) TFEU)

Areas in which both the EU and Member States may legislate, including the internal market, social policy, environment, transport, energy, and consumer protection.

Single market

The single market allows citizens and businesses in Member States to move and trade without barriers across the EU.

Four freedoms

The four freedoms are the free movement of goods, persons, services, and capital.

Free movement of goods

The free movement of goods is mainly governed by Articles 28, 34–36, and 110 TFEU.

Free movement of persons

The free movement of persons is mainly governed by Articles 45–55 TFEU.

Free movement of services

The free movement of services is mainly governed by Articles 56–62 TFEU.

Free movement of capital

The free movement of capital is mainly governed by Articles 63–66 TFEU.

Customs union

A customs union prohibits customs duties and charges having equivalent effect between Member States and applies a common customs tariff to third countries.

Article 28 TFEU

Article 28 TFEU defines the customs union and its two core aspects: no internal customs duties and a common external tariff.

Customs duties and charges having equivalent effect (Arts. 28–30 TFEU)

Member States may not impose customs duties on imports or exports or charges having equivalent effect in intra-EU trade.

Levy applying only to imported or exported goods

A levy that applies only to imports or exports always breaches Article 30 TFEU.

Levy applying to domestic and imported goods

Even a levy that formally applies to both domestic and imported goods can breach Article 30 if it is discriminatory in practice.

When a levy may be allowed

A levy may be allowed if it pays for a service required under EU law and the service genuinely benefits the individual trader.

Article 110 TFEU

Article 110 TFEU prohibits discriminatory internal taxation on products from other Member States.

Direct discrimination in taxation

Direct discrimination is openly different treatment of imported goods compared with similar domestic goods.

Indirect discrimination in taxation

Indirect discrimination appears neutral but in practice disadvantages imported goods.

Reverse discrimination

Reverse discrimination occurs when a Member State taxes goods intended for export more heavily than the same or similar goods sold domestically.

Forbidden taxation under Art. 110 – similar products

Imported products may not be taxed more heavily than similar domestic products.

Forbidden taxation under Art. 110 – indirect protection

Member States may not structure taxation so as to give indirect protection to domestic products.

Forbidden taxation under Art. 110 – domestic benefit

Taxes that mainly benefit domestic products are prohibited.

Relationship between Articles 110 and 34

If a case is covered by Article 110 TFEU, Article 34 TFEU does not apply.

Article 34 TFEU

Article 34 prohibits quantitative restrictions on imports and all measures having equivalent effect.

Article 35 TFEU

Article 35 prohibits quantitative restrictions on exports and all measures having equivalent effect.

Article 36 TFEU

Article 36 provides express justifications for restrictions on imports, exports, or goods in transit.

Rule of reason

The rule of reason is a Court of Justice doctrine allowing certain non-Article 36 justifications for indirect barriers to trade.

Direct discrimination and justification

A directly discriminatory import measure may be justified only under Article 36 TFEU, not under the rule of reason.

Indirect discrimination and justification

An indirectly discriminatory import measure may be justified under Article 36 TFEU or the rule of reason.

Article 36 justification – public morality/policy/security

Restrictions may be justified on grounds of public morality, public policy, or public security.

Article 36 justification – health and life

Restrictions may be justified to protect the health and life of humans, animals, or plants.

Article 36 justification – national treasures

Restrictions may be justified to protect national treasures of artistic, historic, or archaeological value.

Article 36 justification – industrial and commercial property

Restrictions may be justified to protect industrial and commercial property.

Conditions for Article 36 or rule of reason

The measure must be proportionate and appropriate, must not be purely economic, and the subject must not be fully harmonized.

Cassis de Dijon

Cassis de Dijon recognized mandatory requirements that can justify trade restrictions, such as fiscal supervision, consumer protection, fairness of commercial transactions, and environmental protection.

Mandatory requirement – fiscal supervision

Under Cassis de Dijon, effectiveness of fiscal supervision may justify a restriction.

Mandatory requirement – consumer protection

Under Cassis de Dijon, protection of consumers may justify a restriction.

Mandatory requirement – fairness of commercial transactions

Under Cassis de Dijon, fairness in commercial transactions may justify a restriction.

Mandatory requirement – environmental protection

Under Cassis de Dijon, environmental protection may justify a restriction.

Environment examples accepted by the Court

The Court accepted environmental justifications such as banning waste imports, deposit-and-return systems, and obligations to buy renewable electricity.

Keck case

Keck held that certain selling arrangements, such as a general ban on resale at a loss, fall outside Article 34 if they apply to all traders and concern the way goods are sold rather than the goods themselves.

Selling arrangement

A selling arrangement is a rule about how goods are sold, such as shop opening hours or the timing of sales.

Measures having equivalent effect (MEQRs)

MEQRs are national measures that are not direct quantitative restrictions but have an equivalent restrictive effect on trade.

Examples of MEQRs

Examples include restrictions on use, technical product rules, sanitary controls, type approval, authorization procedures, price controls, language rules, and restrictions on distance selling.

Free movement of workers

Workers are free to move within the EU, and national laws preventing them from working in another Member State are prohibited.

Right of establishment

Nationals of one Member State have the right to establish themselves in another Member State under Articles 49–55 TFEU.

Exception – public service employment

A Member State may restrict access to public service employment for nationals of other Member States under Article 45(4) TFEU.

Exception – exercise of official authority

Under Article 51 TFEU, a Member State may restrict self-employed activities involving the exercise of official authority.

Exception – public security/policy/health

Restrictions on free movement of persons may be justified on grounds of public security, public policy, or public health.

Proportionality in free movement of persons

Any restrictive measure must not go beyond what is necessary to achieve the objective pursued.

Article 56 TFEU

Article 56 prohibits restrictions on the freedom to provide services within the EU.