European Union Law

Week 1-11 Flashcards

Why EU law?

• It forms the basis for much of UK Law

• A ‘regulatory superpower’ on the doorstep of the UK with a global reach

The Principle of Conferral

• Article 5 of the TEU

• ‘Under the principle of conferral, the Union shall act only within the limits of the competences conferred up it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’

• These are governed by the principles of “subsidiarity” and “proportionality”

Subsidiarity

• The EU only takes action when objectives cannot be sufficiently achieved by Member States, but are better achieved on an EU level

  • Local issues are for Member States

  • Cross-border issues are for the EU

Proportionality

• The EU should not use a bigger solution than necessary to fix a problem (to achieve a treaty’s objectives)

  • Ensures that EU laws and policies are not excessive and they have is a balance between effectiveness and a less restrictive approach

Why is Conferral, Subsidiarity and Proportionality important?

• National parliaments can object to proposed EU legislation if they consider it breaches the principles of subsidiarity and/or proportionality

• Together (conferral, subsidiarity, and proportionality) regulate a balance between EU and member states, ensuring that the EU can act only in its designated authority in a way that respects national governance

Competences

After the Treaty of Lisbon (‘competence creep’), the principle is operationalized through the concept of competences, that is, those powers granted to the EU in specific areas

• Article 3 TFEU: “Exclusive competence”

• Article 4 TFEU: “Shared competence”

• Article 6 TFEU: “Coordinating competence”

Article 3 TFEU — ‘Shared Competence’

Areas where the EU has sole authority to pass laws and make binding decisions

1. “The union shall have exclusive competence in the following areas:

   1. Customs union; 

   2. Establishment of the competition rules necessary for the functioning of the internal market 

   3. Monetary policy for the Member States whose currency is the euro; 

   4. The conservation of marine biological resources under the common fisheries policy. 

   5. Common commercial policy”

   6. also sometimes International agreements

Article 4 TFEU —- ‘Shared Competence’

A type of legislative power in the EU that allows both the EU and its member states to create legally binding laws in certain areas

1. “Shared competence between the UNion and the Member States applies in the following principle areas: 

   1. Internal market 

   2. Social policy, for aspects defined in this Treaty; 

   3. Economic, social and territorial cohesion 

   4. Agriculture and fisheries, excluding the conservation of marine biological resources; 

   5. Environment; 

   6. Consumer protection 

   7. Transport 

   8. trans-European networks

   9. Energy

   10. Area of freedom, security and justice 

   11. Common safety concerns in public health matters”

How does shared competence work?

• Member states can only pass laws in areas of shared competence if the EU has not already done so —- once the EU passes legislation in the area of shared competence, member states can no longer pass laws in that area

• The EU may only impose minimum rules in shared competence areas; allowing member states to make their own more restrictive rules

Article 6 TFEU —- ‘coordinating competence’

The power of the EU to coordinate, support, or supplement the actions of its member states.The EU can only exercise this power if the member states grants authority

1. “The Union shall have competence to carry out actions to support, coordinate, or supplement the actions of the Member States. The areas of such action shall, at European level, be: 

   1. Protection and improvement of human health 

   2. Industry 

   3. Culture 

   4. Tourism

   5. Education, vocational training, youth and sport 

   6. Civil protection

   7. Administrative cooperation”

Occupying the field

• Area governed of shared competence where both the Union and Member States can legislate: However as the result of “the principle of primacy” if there is conflict between the Union and MS, EU law must prevail

• Hence, where the union has legislated on a particular topic, it will displace national law

Retained competences

• Even in areas where Member States must retain competence, they must exercise that competence in compliance with Union law

Legal Basis

Articles 3,4, and 6 are important but not sufficient in identifying whether or not the EU can legislate and to what extent | For this answer, one must look to the specific “legal basi.s” 

Every piece of EU legislation has a specific legal basis (or multiple), which will be the particular provision of the Treaties 

• This provision will indicate: (a) what kind of instrument the EU can adopt (directives, regulations, or decisions), (b) the legislative procedure that must be used, and © the extent of the power and any limitations on the power 

Legal basis case: Case C-300/89 Titanium Dioxide EU: C:1991:244

Key case for determining how to choose the correct legal basis for legislative acts

Objective test (judicially reviewable criteria)

a. The choice of legal basis must rest on objective factors, which are amenable to judicial review 

b. These factors include  ____

• Aim (purpose) of the measure 

• The content (substance) of the measure 

c. If a measure has MORE than one aim, determine the predominant purpose 

1. Use the legal basis that corresponds to the predominant aim 

d. If there is NO predominant aim (aims are inseparably linked), then use a joint legal basis 

e. Institutional prerogatives 

• If a joint legal basis is not possible (eg, due to incompatible procedures) then select the legal basis that best preserves the institutional balance

Flexible legal basis

• The concept of competences and the need to identify a specific legal basis may be constraining for the EU’s ability to legislate to meet unforeseen eventualities or to achieve the objectives set out for the Union. Treaties therefore, contain some ‘flexible legal basis’ 

• Competences and legal basis may limit EU's power to govern

Case I: Case C-376/98 German v Parliament and Council EU (Tobacco Advertising) 

Summary

• Germany brought an application for annulment of the Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products

• Germany argued that the Parliament and Council were wrong to enact the Directive based on Article 114 — They argued that Art 114 could only be used to promote, not limit, trade

Court

• The directive was annulled

• The real aim was public health, not the internal market (although public health could be protected under art 14 it should not be the predominant aim)

• art 114 cannot justify a measure unless is clearly contributibes to market integration

Case II: Case-491/01 BAT and Imperial Tobacco

Summary

• Referred to the Court for a preliminary ruling under Article 234 EC two questions on the validity and interpretation of Directive 2001/37 of the European Parliament and Council on the laws, regulations and administrative provision of the Member States concerning the labelling of tobacco products and the prohibition of the market of certain types of tobacco

• Brought by British American Tobacco ltd (BAT), seeking to apply judicial review on the intention and/or obligation of the UK Government to transpose the Directive into national law

Court ruling

• Directive MET the conditions under Art 114 of the TFEU because

  • The directive aimed to remove trade barriers between member states caused different tobacco regulations

  • It also contributed to public health protection, which is allowed under art 114 (not the dominant aim but the dominant aim was trade barriers)

• Directive was hence valid

Article 352 TFEU — ‘implied powers clause’

• Implied powers clause — Allows the EU to act when no specific legal basis exists, but action is needed to achieve EU objectives 

• Objectives of the Union (see Article 3 TEU) 

  Conditions for use:

  • Negative condition — No other provision in the treaties provides a legal basis 

  • Positive condition – Action must be necessary to achieve the Union’s objectives 

  Limits: 

  • Cannot be used to extend EU competences 

  • Cannot be used to amend the treaties

  • Requires unanimity in the Council and Consent of the European Parliament

Article 114

• Establishment and functioning of the internal market 

• Conditions for use: There must be — 

  • Obstacles to trade between member states 

  • Threat to competition 

• Limits: 

  • Cannot be used for aims not directly linked to the internal market 

Cannot serve as a pretext for measures primarily pursuing other goals (eg, health of the environment) 

Timeline of EU integration

1. From Paris to Rome

2. From Rome to Maastricht

3. From Maastricht to Lisbon

4. The Treaty of Lisbon 2009

Intro: successes and failures

1. Economic integration

   • Free trade agreements

   • Customs Union

   • Common market: states join to share one big market

2. Political integration

   • Political cooperation: doing things together (diplomacy, defence)

   • Confederation

   • Federation of states

3. Legal integration

   • Economic and political integration happens through member states committing to integrate | At times, it is not always Member States, sometimes legal processes like the Court of Justice

Theories of integration

1. Functionalism

   • starts with a guy called David Nitrani, and he is writing in the Second World War to blueprint peace: he came up with functionality, stating — ‘states should cooperate pragmatically in specific areas, often very technical’

2. Neofunctionalism

   • Emphasises the role of states and non-state actors

     • Spillover effect: If you have integration in one area, it will automatically spill over to another area

3. Intergovernmentalism

   • Between governments, decision-making is done

   • Can be the Council (made up of ministers in government)

4. Supranationalism

   • Making a decision that is capable of binding participating states even if it is against their will

   • The Commission is supranational

Integration in two dimensions

1. Deepening — about expanding the scope of EU law to new areas (competences)

2. Widening — The geographical expansion of the EU (addition of new member states)

Phase 1: Paris to Rome

• Phase of the European Coal and Steel Community in 1952

• Robert Schuman and Jean Monnet (functionalists) were like the founding fathers

• 1950, the Schuman Declaration was delivered (‘the alpha of European Integration’)

  • Economic integration of coal and steel markets (can bind states against their will)

  • It was administrative, not legal

  • Other members started joining because it set a precedent for economic and political cooperation to maintain peace after WWII

• Treaty of Paris

  • The council of ministers, the assembly, and the court of justice are added because other member states wanted to check the power

Failure 1: 1954 French rejection of the EDC/EPC

• The next idea was the formation of the European Defence Community and the accompanying “European Constitution” in 1954

• Hence, political integration hit a setback (economic integration only), which toned down supranationalism

1957 - Economic integration instead

• Member States were happy to continue with economic integration which started the idea of the common market

Phase 2: From Rome to Maastricht

• Rome treaties established both Eurotam (nuclear energy) and the EEC

• the EEC marked a step back to supranationalism. Decision making powers shifted from the Commission (intergovernmnetal) to Council (supra)

• After 1957 it pursued “constitutional interpretation” of the treaties through the Court of Justice resulting in Case law (eg. van gend en loos)

1970s the court to the rescue

• oil crises, inflation: the shock of the global in the 1970s

• A European alternative

  • Increasing emphasis on independent (European) judicial power

  • Negative and positive integration

1. Negative integration: Removal of obstacles to free movement

   • Dassonville (1974)

   • Cassis de Dijon: mutual recognition

2. Positive Integration

   • Harmonisation of legislation

   • Mostly through EEC legislation

1980s: Relaunching integration

1. Relaunching market integration

   • Commission’s white paper: completing the internal market

   • Legislative proposals for the internal market

   • Economic and monetary union

2. Relaunching political integration

   • European Political Cooperation

   • European Council

   • Justice and Home Affairs

Phase 3: From Maastricht to Lisbon

• Began with the treaty of Maastricht (1992) which created the EU

• Incorporated communities in a “three pillar structure”

Three pillar structure

1. Pillar one (supranationalism)

   • The European Community (EEC before)

   • The European Coal and Steel Community

   • Eurotam

2. Second Pillar

   • Common foreign and security policy

3. Third pillar (intergovernmental)

   • Justice and Home Affairs

   • Police and Judicial Criminal Matters

Phase 4: After the Lisbon Treaty 2009

• Better division of competences

• Simplification of EU instruments

• More democracy, transparency, and efficiency

  • eg ordinary legislative procedure

• Towards a constitution for European citizens (abolished three-pillar structure)

• Only two treaties

  • TEU and;

  • TFEU

Decentralized system

• multilevel governance

• Subsidiarity — it is the case that EU decision making should happen as closely as possible to the citizens; subsidiarity dictates how this works

No seperation of powers

• Usually, power is distributed in governance but the EU does not have this kind of system

The Institutional Triangle

1. The Commission

2. Council of Ministers

3. European Parliament

Other Institutional bodies

1. European Council - Political discretion

2. Court of Justice - Court of justice (judges, advocates general), and general court

3. European Central Bank - Monetary policy and banking supervision

4. Court of Auditors - worked to improve the European Commissions’s management of the EU budges

Other bodies

1. Advisory

2. Independent agencies

The interplay of MS and EU control: Article 13(2)

1. Institutional Balance

• The choice of legal basis is important because it determines how involved the institution will be

2. Inter-institutional cooperation

• The institutional shall act within the limits of the power

• The institutions shall practice ‘mutual sincere cooperation’ so the institution consults on its way

The European Commission

• It proposes an also draft legislation

• Often releases white papers which are programs of legislative proposals

• It is made up of:

  • College of commissioners

  • The institution as a whole

• Monopoly on legislative

  • initiate

  • withdraw

    • When it takes on a direction that the commission does not like, it can withdraw

• Guardian of treaties

  • Implementations

  • Compliance

• 27 commissioners — “The commission shall consists of a number of members…equal to the number of Member States'“

The Council of the European Union — ‘Council of Ministers’

• Represents the governments of the member states/national interests

• The council shall consist of a representative from each member State the ministerial level who is authorised to commit the government of that State (elected representatives)

The European Parliament

• Directly elected throughout the Member States

• Since 1979, citizens have voted for the MEP

Case C-502/19 Junqueras

Summary

• Judgment of the EU privileges and immunities relating to a member of the parliament

• Junqueras, a Spanish politician was elected as an MEP

• At the time of his election, he was subject to criminal proceedings in which he was accused of having taken part in a process of secession

• Spain’s supreme court refused to release him from detention and make him an MEP

Legal question

• Does the person elected MEP acquire immunity of that role upon election"?

Court ruling

• The European Parliament acquires the status of Member of that institution at the time of the official decleration of the results and enjoys the immunities attached to that status

Case C-650/13 Delvigne

Summary

• Under French law, ‘a sentence for a serious criminal offence will entail the loss of civic rights’

• Mr Devigne, a French national, was convicted of a serious offence and sentenced to 12 years

• French law, he was automatically excluded from voting in European Parliament elections. He challenged this, particularly in his right to vote under the EU Charter of Fundamental Rights

Legal question

• Can Member States restrict voting rights for people who are criminally convicted, and is that conviction compatible with the EU fundemental rights?

Court ruling

• Delvigne lost the case because:

• Fundamental rights (like voting) can be restricted, but only if:

  • The restriction is proportionate and;

  • It served a legitimate objective

• It was proportionate because:

  • It only applied to serious crimes

  • It was not arbitrary or discriminatory

  • It respected the individual’s legal and judicial process

sources and hierarchy of laws

1. Primary law

   • Treaties

   • Charter

   • Protocols

2. Secondary law

   • Regulations

   • Directives

   • Decisions

3. Delegated and implemented acts

   • Delegated legislation (290 TFEU)

   • Implemented legislation (291 TFEU)

4. Non-binding acts (soft law)

• Recommendations

• Opinions

Delegated acts

• The EU legislative act may delegate powers to the Commission to supplement or amend non-essential elements of that act | control mechanisms:

  • Ex ante control — ‘before the act is adopted’. preventative

  • Ex-post control — ‘after the act is adopted’. like judicial review and political accountability

Implementing acts

Adopted where uniform conditions for the implementation of an EU legislative act are needed, it is administrative

• Control of implementing acts: exercised through ‘comitology’ (committee-based oversight), governed but regulation using two main procedures —

  • Advisory procedure

    • The committee gives a non-binding opinion

    • The commission may proceed even if the opinion is negative

  • Examination procedure

    • The committee gives a binding opinion

      • Positive opinion → The Commission can adopt the act

      • Negative opinion → The Commission cannot adopt the act unless it submits a revised draft

Case C-427/12 Commission v Parliament and Council

Question 

• Should the European Commission use delegated acts (Article 290 TFEU) or an implementing act (Article 291 TFEU) to set the fees that companies must pay to the European Chemical Agency?

• Commission argued that the setting of fees involves political and economic choices, which supplements the legislative act — hence it should be a delegated act 

• Parliament and Council said the implementing act is appropriate bc the act of fixing fees implements the existing legislative framework, requiring uniform application across MS

Court 

• The Court dismissed the Commission’s action, affirming that: 

  • The task of specifying the fees is not an essential element of the legislative act, not does it supplement or amend it in a legislative sense 

  • Instead, it is a technical application of existing rules i.e an act of implementation 

Law and Law making procedures

YOU GOT THIS !!

Treaty Change I: Ordinary Revision Procedure

• Article 48(2)-5 TEU

• Used for major institutional and constitutional changes i.e any change to the founding treaties like the TEU and TFEU

• Procedure

  • Proposal

  • Convention

  • Conference

  • Ratification

Treaty Change II: Simplified Revision Procedure

• Article 48(6)-(1) TFEU

• Used for internal policy changes under part 2 of the TFEU, not for increasing EU competences or changing the institutional structure

• Procedure

  • Proposal

  • Decision

  • Approval

Case C-370/12 Pringle v Ireland

• Concerned with the European Stability Mechanism (ESM)

• Whether establishing the ESM via a simplified revision procedure was valid

• Court held: YES, it was valid. ESM was consistent with EU Law because it did not increase EU competences, only allowed to respond to crises

The Council law functions

• Council acts by a ‘qualified majority vote’ (QMV)

• After Lisbon treaty under Article 16(4) TEU

  • QMV: the 55/56 rule

  • 55% majority of member states

  • 65% majority of EU citizens

• Also min 15 member states to adopt and min 4 MS to block

Initiating legislation

• European Commission (Article 17(a) TFEU)

• ¼ Member State’s in AFSJ

Requesting legislation

• Council

• European Parliament

• European Citizens’ initiative

procedure for ECI

1. formation of organizor committee

2. Registration of ECI

3. Collection of signatures

4. Verification of signatures

5. Submission and consideration

ECI and Commission relationship

The commission must consider the request and respond but it is not obligated to act

Case C-148/18P Puppinck

Summary

• A citizen’s initiative was brought up regarding embryo protection

• However, the commission stated that it would take no action on the ECI at issue

Court finding

• General court dismissed the action from the ECI against the Commission claiming the Commission has broad discretion and does not violate EU law by choosing not to draft or propose legislation

• Commission has, the power to take action in response to the ECI

The European Parliament Law functions

• There are now three procedures by which the Parliament is involved in the adoption of Union legislation

  • Consultation

  • The ordinary legislative procedure

  • Consent

The Ordinary legislative procedure

Article 294 TFEU

Special Legislative procedure

applied in a small number of areas

• Either or —-

1. Unanimity in Council + Consent of the European Parliament

2. Unanimity in Council + Consultation of European Parliament

Case 138/79 Roquette Freres v Council

• Case regarding whether the Council could adopt legislation without consulting the European parliament

• Court held: NO, failure to consult the parliament invalidated the act, even under the special legislative procedure

  • Although non-binding consultation is essential - the EP must be given genuine opportunity to express its opinions

Legitimacy in the EU

1. Input legitimacy

• ‘government by the people

• Are citizens voices represented in decision making?

2. Output legitimacy

• Governmnet for the people

• Focuses on what decisions achieve - performance and results

• Does the EU deliver peace, prosperity, regulation and protection

Political messianism

The belief in redemptive political goals, like unity and peace across nations

Did EU claim legitimacy?

The EU historically claimed legitimacy through

1. Peace - Ending was in Europe

2. Prosperity — promoting the common market after the 1970s shock

Sources of democratic legitimacy in the EU

1. Representative democracy

   1. Direct: European Parliament (directly elected by citizens)

   2. Indirect: Council (represents member states’ governments)

2. Participatory democracy - citizens engaging in policy making

   1. ECI

   2. Competences

Problems with democracy in the Union

1. Treaties are too detailed (over constitutionalized) — detailed treaties limiting democratic change, access, and making it consitutional through MS

2. No demons theory — no single European people with shared identity and public sphere

3. No government — Relies on executive branch solely limiting check and balances

4. No ability to influence policy — citizens feel detached from policy making (eg ECI rejected from the commission)

Christopher Bickerton and Lee Jones - ‘the EU’s democratic deficit’

• Claims that since 1992 EU has been about political elites seeking legitimacy in their relations with one another… EU Integration entrenches the power of executies

• EU serves elites, not democratic wishes — quite supranational and monism

WEEK 3 YOU GOT IT LETS GOOO

The principle of Direct Effect in EU law

New legal order in which states have limited their sovereign rights, and the subjects of which comprise not only MS but also their nationals

Requirements to implement direct effect

1. It is clear and precise

2. Created an unconditional and unqualified obligation

3. It requires or admits no further implementing measure on the part of any authority

C-26/62 Van Gend en Loos v Nederlandse Administratie der Balestingen

Facts

• Van Gend en Loos, a Dutch transport company, imports chemicals from Germany

• Dutch customs authorities reclassified the product, resulting in a higher import duty

• Article 12 EEC treaty: standstill clause

  • No new duties or charges have an equivalent effect

  • No increases in existing duties and charges

Questions

• Is Article 12 EC capable of having direct effect?

• If so, does Article 12 EC prohibit tariff reclassification by Dutch customs?

Findings

• Article 12 has direct effect (the application is for the national court)

• A “new legal order”

  • Objective

  • Creation of rights and obligations for individuals

  • Establishment of institutions

  • Effectiveness and uniformity

The Primacy of EU Law

• In the event of a conflict within fields of jurisdiction, the law of the federal authority will take precedence over the law of regional authorities

• Does not make national law void but conflicting municipal law must be “disapplied”

  • National law will be disapplied and EU law will prevail (in a conflict)

Costa v ENEL

Facts

• Nationalisation of the electricity market

• National law adopted after the treaty (lex posterior?)

Questions

• Which law prevails?

Two references

• Italian constitutional court

• Court of Justice of the EU

Facts and reasoning

• The treaty takes precedence (no lex posterior)

• All national rules which conflict with EU law — irrespective of their legal status at the domestic level must be disapplied

What is the nature of the new legal order (primacy and direct effect)

• Effectiveness

  • Not just the constitutional and supreme courts, national judges can apply EU law and ignore conflicting national procedures

• Uniformity

  • Applicable to all national courts - equal application

• Autonomy

Self referentiality

• The authority of EU law is grounded in EU law itself

  • The EU legal system defines its authority (eg, primacy and direct effect) — its legal authority comes from within

  • Courts like the CJEU interpret and enforce this, not national authorities

Is the new legal order contested?

• yes

• National courts sometimes challenge the primacy and direct effect of EU law

• National constitutional courts

  • esp German, Italian, French (all broadly dualist)

  • But the EU usually rejects dualism

Primacy through a national lens

• No national constitutional court has accepted primacy unconditionally, and most reserve the right in theory not to apply EU law in some exceptional circumstances (primacy can be theoretical?)

• Position taken by the German Federal Constitutional Court

Case 11/70 Internationale Handelsgesellschaft mbH

• National rules of any type must be set aside, including national consitutiional law

Case C-224/97 Erich Ciola v Land Voralberg

EU law enjoys primacy over sub-national administrative measures

Case 118/00 Larsy v INASTI

• Not only lower courts but all courts

• National administrative agencies

  Cases follow that the principle of primacy of EU law requires not only the courts but all bodies of the member states to give full effect to EU rules

Primacy rejections?

• In theory, there are limits to the primacy of EU law in the doctrine of national courts; in practice, these limits were not historically applied

• This changed in ecent yeas with number of supreme courts issuing decisions not applying EU law

Primacy and UK clash

• UK, there were difficulties in reconciling with primacy (notably parliamentary sovereignty, which clashed with the primacy of the UK’s dualist approach)