Law of the European Union Final Notes (Y2B1 RUG LLB)

What is the principal of conferral of the EU?

Competences not conferred upon the Union in the treaties remain with member states, meaning that the EU shall only act within the limits of the competences conferred upon it by MS.

What are the types of competences conferred upon the EU?

1. Exclusive competences: Areas where only EU can act

2. Shared competences: Areas where the EU and MS act together

3. Complimentary competences: Mostly MS but with support of the EU

What is the internal market?

It is an area within the EU without internal frontiers where there are no barriers or borders to trade.

Has four fundamental freedoms:

1. Goods

2. Services

3. Persons

4. Capital

How to create an internal market?

1. Positive integration: Adopting EU-wide legislation to create common rules, also known as harmonisation.

2. Negative integration: Prohibitions in the Treaty directed at Member States and private parties.

What are the three models of negative integration?

1. International model: Each state maintains its own rules as long as they are non-discriminatory.

2. Federal model: Only the rules of the “home state” of a good/service/person apply

3. National model: No member state rule may restrict trade

What are the types of direct effect?

Vertical direct effect: Individual against state

Inverse direct effect: State against individual

Horizontal direct effect: Between individuals

What does contra legem mean?

You cannot interpret a national law against its clear wording

What does indirect effect mean? (End of W1)

Interpretation of national law in light of and in conformity with EU law (consistent interpretation)

What are goods?

Products which can be valued in money and which can be the subject of commercial transactions

Three pillars of the free movement of goods

1. Customs duties are prohibited

2. Discriminatory indirect taxation is prohibited

3. Quantitative restrictions are prohibited unless….

Customs union as a pillar of the free movement of goods

Internal dimension: Abolishment of all custom duties and charges having equivalent effect

External dimension: Common Customs Tariff and Commercial Policy

Discriminatory indirect taxation is prohibited as a pillar of the free movement of goods

1. Prohibition of discrimination and protectionism against foreign products (International model)

2. Prohibition of direct and indirect discrimination

3. Prohibition of protective taxation

Prohibition of quantitative restrictions as a pillar of the free movement of goods

1. Quantitative restrictions and all measures having equivalent effect shall be prohibited

2. Derogation in Article 36 TFEU

3. MEE: Not a quota but same effect on the market as it restricts trade

How to apply Article 34(1) TFEU?

1. Is Article 34 TFEU applicable in this case?

a. Is the case about goods?

b. Is there applicable harmonisation at EU level? If yes, then apply the harmonisation legislation. Article 34 does not fall under harmonisation) If not:

c. Is there a cross-border element in the case?

d. Can the claimant invoke Article 34? (Only vertical direct effect)

2. Material scope of Article 34

a. Is the measure a quantitative restriction or a MEE?

b. If MEE, what is the relevant measure? (Dassonvile defines what an MEE is)

• Product requirement apply Cassis

• Selling arrangement apply Keck (Not an MEE unless directly or indirectly discriminatory)

• Restriction of use apply Italian trailers

3. Justification

a. Mandatory requirement: Indirect discrimination (Cassis)

Article 36 justification: For direct discrimination

b. Is the measure proportionate?

• Suitability: Is the measure suitable or appropriate to attain its purpose?

• Necessity: Is the measure necessary to attain its purpose?

How to apply Article 45 TFEU for the free movement of goods?

1. Is Article 45 TFEU applicable in this case?

a. Is the case about workers?

b. Is there applicable harmonisation at EU level? If yes, then apply the harmonisation legislation. If not:

c. Is there a cross-border element in the case?

d. Can the claimant invoke Article 45 TFEU against the defendant?

• Article 45 has vertical direct effect (Van Duyn)

• Has full horizontal direct effect (Angonese)

2. Material scope of Article 45

a. Does the measure restrict the free movement of workers?

• Prohibition of direct and indirect discrimination (Angonese)

• Prohibition of non-discriminatory obstacles to free movement of workers (Bosman)

3. Justification

a. Is there a ground of justification in Article 45 TFEU or a mandatory requirement?

• Treaty derogations in Article 45(3) (Adoui and Cornuaille)

• Pressing overriding reasons of public interests (Cannot be used for directly discriminaotry measures)

b. Is the measure proportionate?

• Suitability: Is the measure suitable/appropriate to attain its purpose?

• Necessity: Is the measure necessary to attain the purpose or is there a better alternative?

What is a worker?

Lawrie-Blum:

1. Working for or under the direction of another person

2. For a certain period of time

3. In exchange for remuneration

What is the public service exception?

Article 45(4) TFEU:

Some types of public employment can be reserved for own nationals

How to apply Regulation 492/2011?

Material scope: Both indirect and direct discrimination

How to apply:

1. Is the regulation applicable in this case?

a. Is the case about workers?

2. Need for cross border element, applies to workers in other member states but not to workers returning to their own member state.

3. Have vertical and horizontal direct effect if sufficiently clear and unconditional

4. Virtually no justifications for infringements of non-discrimination rights in the regulation. (Except for language requirements and the requirement has to be important for the job)

How to apply Directive 2004/38: worker’s rights?

Aim: Provide framework for the rights of EU citizens including workers

Material scope: 1. Free movement and residence 2. Non-discrimination

How to apply directive?

1. Is the Directive applicable in this case?

a. Is the case about workers?

2. Need for a specific cross-border element: See Article 3(1)

• Not applicable to EU citizens returning to their own Member State

3. Sufficiently clear and unconditional provisions only have vertical direct effect

4. Limited justifications for infringements (Article 27-29)