EU Law Content

• Principle of conferral and types

• - how much can the EU act within the scope that was given by the consent of the MS -> Art 4(1) TEU 

  • Exclusive

  • Shared

  • Complementary

• Internal market

• 3(3) TEU - to unite to achieve certain goal 

  • 26(2) TFEU - area without internal frontiers, free movements

• Positive integration

• - EU adopt rules that applies to all national law, creating common rules - harmonisation 

  • Always need legal basis to adopt common rules

  • 114 TFEU who, how, what

• Negative integration

• - To create a prohibition rule e.g. no discrimination in nationality

  • Four fundamental freedoms : 

    • Goods, persons, service, capital 

3 models of negative integration

• International model - A(importing state/host state) -> can impose their national law on the imported products however, they must also apply the same rules to the domestic products , both domestic and imported products

• Federal - Home state (exporting state) rules apply to the product, the host state must recognize the rule that is applying to the product when it arrives at the host state - principle of recognition 

• National - no MS rule can restrict trade 

• Principle of mutual recognition 

Recognizing the home state law

Principle of sincere coopoeration

4(3) TFEU :

• National courts are decentralized EU courts 

• MS must apply EU law fully with direct effect, application of EU law takes precedence over national law 

3 types of direct effect

Vertical (individual against state), Inverse vertical (state against individual), Horizontal

• Regulations

• are directly applicable therefore it has a direct effect -> regulations are automatically added to the MS law without needing to implement = direct applicability, whether EU law becomes a national law 288 TFEU

• Different from direct effect because direct effect is about how one can invoke a provision of EU law against a national court. 

Decisions

- 288 TFEU  - a decision is binding in its entirety and it specifies to those addressed where it binds only to the addressed, usually tailored to an actor and certain actions

•  directives

• does not enter the national law directly as it requires the MS to implement the law with certain deadline (process of transposition) +  can never be horizontal as it does not create rights and obligations for individuals

• No Inverse vertical direct effect - since it does not create rights and obligations for individuals (kolpinghuis)

Indirect effect

• Interpretation of national law as close to the EU law (consistent interpretation = also the duty to implement EU law)

  • Interpretative method that was recognized by national law 

  • Compliance with general principles of law 

  • No contra legem interpretation (no going against EU law) (Adelener)

  • Only after the implementation deadline (Adeneler)

State liability

• Brasserie -: 

  • Sufficienty serious breach 

  • Breached provision of EU law aims to grant rights to individual 

  • Causal link between breach and damage (can only be economic loss)

3 pillars of free movement of goods

• Three pillars of free movement of goods : 

  • Prohibition of custom duty

  • Prohibition of indirect taxation

  • Prohibition of quantitative restrictions (with derogations/exceptions)

    • MEE and QR

• Prohibition of custom duty

Full prohibition + no matter how small the custom duty is it is porhibited

30 TFEU

Prohibitinon of discrimination story indirect taxation

•  That the imported goods should be taxed the same as the national/domestic products and treated the same way. 

• Full prohibition

• 110 TFEU

  • Prohibition of Direct discriminatory

    • Comparable products = same taxation

  • Prohibition of Indirect discriminatory

    • Protective taxation e.g. humblot

Quantitative restrictions

MEE → national measures that makes it harder to trade even if it doesn’t restrict or limit quantities directly.

QRs → anything that directly limits the quantity of goods imported

art 34

art 36 TFEU for justifications

Art 34 applicable?

• Is Article 34 TFEU applicable in this case?

  • a) Is the case about “goods”? -> Italian art case

  • b) Is there applicable harmonisation at EU level? -> no becuz we don’t study this

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

    • Good moving between A and B, must have import/export

  • d) Can the claimant invoke Art 34?

    • Whether there is a direct effect

      • Art 34 has vertical direct effect

      • No horizontal direct effect -> Commission v. Farmer case; farmer protest making it impossible to import in certain products from a company, company cannot invoke art 34 against farmers but can against state for not resolving the issue. 

Material scope of art 34

• Is there a measure QR or MEE? 

  • If MEE what is the relevant measure about:

    • Product requirement -> cassis de dijon (mutual recognition)

    • Selling arrangement → Keck

    • Restriction on use → Italian trailers

• Justifications

• Can MS invoke 36 TFEU as a justification 

  • Mandatory requirements can only be invoked against no direct discriminatory measures

• Proportionality 

  • Whether measure is suitable 

    • Is the measure suitable to attain it’s purpose (purpose = ground of justification)

  • Whether measure is necessity 

    • Is the measure necessary to attain its purpose or could’ve be other alternatives to achieve the same thing? 

Applicability of art 45

•  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. = Directive 2004/38 or Regulation 492/2011

    •  If not:

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

  • d) Can the claimant invoke Article 45 TFEU against the defendant? (i.e. does the defendant fall under the “personal scope” of Ar ticle 45TFEU?)

    • Art 45 has vertical direct effect

    • However art 45 can be used against certain private parties/entities that can exercise their legal autonomy and regulating in a collective manner - มีอํานาจในการ affect the movement of workers

• Material scope of Article 45

• e) Does the measure restrict the free movement of workers?

  • 45(2) Prohibition to Direct/Indirect discrimination : 

  • Prohibition of non-discriminatory obstacles to free movement of works : 

• . Justification

• f) Is there a ground of justification in Article 45 TFEU or a “mandatory/imperative requirement”?

• g) Is the measure proportionate

• Art 45(3) - Treaty derogations 

  • But cannot apply if it was an act of Arbitrary discrimination - unequal treatment 

• Case law based justifications e.g. Bosman