Ordering Europe - A New Legal Order | Quizlet

Hierarchy of legal sources

Constitution -> legislation -> administrative acts

EU Treaties -> EU legislation -> Delegated/implementing acts

Monism

international law has automatic effect in the national legal order and ranks between the constitution and ordinary legislation.

Dualism

International law must be 'incorporated' in the national legal to exist as a law. International law will take the same rank as such an act of national law. It's the more common view.

EU Accession conditions

Article 49 TEU:

- European State

- Respect of Article 2 Values

- Comply with set of rules set out in an European Council Decision (the Copenhagen Criteria)

Copenhagen criteria

1. Possession of stable instituions guarenteeing democracy, rule of law, and fundamental rights

2. Functioning market economy able to cope with the pressures of free trade within the internal market

3. Ability to take on obligations of an EU member state and implement the full extent of the EU's Acquis Communautaire

5 procedural conditions to Accession

Article 49 TEU

1. Membership application adressed to the EU Council

2. A recommendation from the Commission

3. Unanimous decision by EU Council

4. Consent European Parliament

5. International agreement between all MSs and acceding state

Article 2 TEU

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Withdrawal of an EU member state

Article 50 TEU:

Article 50(1): "Member state may decide to withdraw from the Union in accordance with its own constitutional requirements"

Withdrawal requirements/procedure

Art 50(2) & Art 50(3) TEU:

- Notification of intention to withdraw to the European Council

- EU shall negotiate a withdrawal agreement with withdrawing MS

- QMV in Council to conclude withdrawal agreement

- Consent by the European Parliament to conclude withdrawal agreement

- EU law no longer applies when withdrawal agreement enters into force or, when no agreement is reached, two years after notification

Wightman case

"A state cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will"

Article 7 TEU Procedure

- Art 7(1) TEU: determination of a clear risk of a serious breach of Article 2 TEU values requires a 4/5 majority in Council and consent of Parliament

- Art 7(2) TEU: determination of the existence of a serious and persistent breach requires unanimity in European Council and consent of Parliament

- Article 7(3) TEU: rights can be suspended by QMV in Council (special QMV: 72% of members comprising 65% of population - See Art 354 TFEU)

Art 238(3)TFEU

Rules for normal QMV

- 3(a): 55% of MS comprising 65% of pop

-3(b): 72% of MS comprising 65% of pop, when voting on proposal that is NOT from Commission or High Rep

Art 235 TFEU

Art 16(4) TEU (normal QMV) and Art 238(2) (special QMV) apply to European Council QMV voting

Art 354 TFEU

Special QMV for Article 7(3) TEU (suspension of rights): 72% of member states comprising 65% of population

Supremacy

Principle of EU law is superior to national law.

Costa vs ENEL (1964)

Defined concept of supremacy, justified by claiming signing of Treaty entailed permanent limitation of sovereign rights. Treaty created its own legal system which became integral part of MS legal system. Treaty cannot be overriden by domestic legal provisions.

Les Verts (1986)

EU Treaties are the 'basic constitutional charter' with a complete system of legal remedies

Internationale Handelsgesellschaft

Presupposes/Responds to Solange 1: EU law has supremacy over national constitutions

But the protection of fundamental rights is inspired by national constitutions and has to be done at a community level.

Simmenthal

1. EU law has supremacy over more recent national law (EU law overrides Lex Posterior)

2. National courts are always empowered (no matter national laws on the matter) to disapply conflicting provisions of a national law in favour of EU law

3. (Even if national governments fix problem before CJEU gets to rule on the breach, the CJEU can still issue a ruling)

Stauder

Fundamental human rights enshrined in the general principles of community law and protected by the court (Response to Solange I)

Nold

Fundamental human rights are part of EU law.

CJEU will respect rules of ECHR (along with other international treaties)

3 objections by the Germans to Supremacy

- Ultra vires (Honeywell)

- Supremacy over constitution / fundamental rights (Solange II)

- National constitutional identity (Lisbon judgement)

Article 6 TEU

EU protects fundamental rights as detailed in the Charter of Fundamental Rights and shall accede to the ECHR.

Article 51 of Charter of Fundamental Rights

Provisions in Charter are adressed to EU institutions and MS when implementing EU law.

3 cases of MS implementing EU law

1. When a national member is intended to implement EU law (Julian Hernandez)

2. When a Member State derogates from EU law, they must do so in a way that complies with the Charter (ERT)

3. When EU law imposes specific obligations on MS (Julian Hernandez)

Article 52 of Charter of Fundamental Rights

Derogation of rights. Everything is in Article + remember to do proportionality test.