Unsustainable Amsterdam

Can Art. 114 TFEU (harmonization of lows to benefit the internal market) be used as LEGAL BASIS for a Directive?

1. measure seeks to approximate laws, and

2. measure is necessary for the functioning of the internal market

Can a provision be directly invoked in a national court? (direct effect)

Provision must be:

1. unconditional (does not give MSs a discretion to act differently)

2. sufficiently clear:

   1. Who has the right?

   2. What is the content of the right?

   3. Who has the obligation?

MISLEADING PRACTICE (Art. 6:193c DCC)

1. info is incorrect/wrong OR is likely to deceive the average consumer

2. info that is false must be important/relevant

3. info has the potential to influence consumer choice

MISLEADING OMISSION (Art. 6:193d DCC)

1. misleading omission (material info needed for consumer to make a consumption decision is not provided)

2. omission has the potential to influence consumer choice

Under the UCPD, unfair commercial practices can be:

1. aggressive

2. misleading

Unfair commercial practice (Art.s 2(a)(b) & 5(3) UCPD)

1. contrary to the requirements of professional diligence

2. significantly affects/is likely to affect the buying decision of the average consumer

Claim for damages (Art. 6:162(2) DCC)

1. wrongful conduct (contrary to law)

2. causation (but for test)

3. damage

4. fault (culpability/attribution)

5. relativity (proving that, as a claimant, you are covered by the rule on which you are basing your claim on)

Claim for injunction (Art. 3:296 DCC)

1. impending wrongful conduct

2. relativity

3. sufficient interest (by the court awarding your ruling, your interests will be protected)

   1. e.g. Millieudefensie et al. did not have sufficient interest in their claim

social standard of care (Millieudefensie et al. v. Shell)

companies have a duty to protect human rights & thus must guard against climate change, even if this is not specified in public law

• unwritten standard of law

  • companies who have contributed to climate change historically

  • companies who have the capacity to contribute to addressing the danger now

Conclusions of Millieudefensie et al. v. Shell

• Protection from dangerous climate change is a human right

• Shell has a social duty of care (unwritten law)

• Under EU law, Shell has reporting obligations regarding emissions & must prepare a climate transition plan, BUT NO CONCRETE REDUCTION OBLIGATION

• no imminent breach (REGARDING SCOPE 1 & 2) = bcs no clear evidence that Shell’s current emissions policy would lead to a legal breach in the near future (its current policy is promising in terms of the PA)

• Court cannot determine emission reduction % (SCOPE 3) necessary = just knows overall global emissions should decrease by 45%, but Shell increasing scope 3 emissions might actually be beneficial (burning oil/gas less bad than burning coal)

• Claim of Millieudefensie et al. are DISMISSED

Necessity requirements (justification)

1. imminent DANGER to a LEGITIMATE INTEREST

2. involves the weighing of interests

3. necessity/subsidiarity (no other means to avert the attack)

4. proportionality (choosing the lesser evil)

Self-defence requirements (justification)

1. unlawful (wrongful) & imminent ATTACK (arises from human behavior)

2. legitimate interests (life, limb, liberty, property)

3. necessity/subsidiarity

4. proportionality

Retribution theories

• Who is punished?

  • the guilty offender

• Why should someone be punished?

  • because a crime has been committed

• How severely should someone be punished?

  • seriousness of the crime AND the culpability of the offender

Utilitarian theories

• Who should be punished?

  • those who (after punishment) will no longer commit certain crimes (ppl can be influenced by external factors —> if punishment can help prevent them from reoffending, it should be given to them)

• Why should someone be punished?

  • punishment is required so that future crimes can be prevented

• How severely should someone be punished?

  • seriousness of the crime AND the risk the offender poses to society
    

Civil disobedience (requirements - according to the readings)

1. communication (act is a type of symbolic speech that aims to convey a message to society)

2. publicity (act must be conducted in public/openly)

3. non-violence (disobedients must not use physical force)

4. non-evasion (disobedients are to take responsibility and accept the consequences of the crime)

5. decorum (disobedients must respect social norms)

Civil disobedience (conscientiousness, non-violence, & publicity - according to slides)

Civil disobedients break the law with:

• seriousness

• sincerity

• moral conviction (broader societal interests)

• in response to a substantial & clear injustice

• non-violently

• publicly

Other types of protest

• legal protest

• rule departure (by an official)

• conscientious objection (refusal to conform to a rule that affects an individual)

• immigration disobedience

• digital disobedience

• uncivil disobedience (acts that violate one or more marks of civility)

• revolutionary action

Rawls’s justificatory conditions for civil disobedience

1. it targets serious & long-standing injustice and, at the same time, appeals to widely accepted principles of justice (everyone must be able to recognize a violation as an injustice, e.g. racial segregation)

2. to be undertaken as a last resort

3. to be done in coordination w/ other groups w/ similar grievances

Self-defence-excess (excuse)

if the defendant, overpowered by rage or fear, exceeds the limits of proportionality

Intensive excess (self-defence-excess)

the degree of necessary force is exceeded

Extensive excess (self-defence-excess)

the defendant either continues after the attack has ended OR only reacts after the attack has ceased

Lausanne, Geneva, & Germany Cases

• In each case, the Court affirmed that climate change poses a danger to the lives of young activists/animals (depending on the case)

• climate change threatens the legal interests (activists —> private legal interest e.g. life & limb; animals —> public legal interest to keep animals alive)

• ACTIONS JUSTIFIED BY STATE OF NECESSITY

Crime

a public wrong (i.e. it affects the whole of society); vs. tort = private wrong as it only affects the individual

Hart’s definition of punishment

1. must involve pain/unpleasant consequence

2. must be for an offence against legal rules

3. must be an actual/supposed offender for his offence

4. must be intentionally administered by human human beings other than the offender

5. must be imposed & administered by authority constituted by a legal system against which the offence is committed (jurisdiction)

Sanctions must meet the following requirements (Wolgrave)

1. coercion (sanction impose by gov. regardless if the willingness of the offender)

2. suffering (sanction hurts the offender)

3. intention (suffering is deliberately inflicted)

4. relation (relationship between the crime committed & the sanction imposed)

Punishment timeline over the years

• 1945-75: re-integration & re-socialization as primary aims

• 1975-85: increase in imprisonment; “nothing works”

• 1985-2001: crimes seen as risks that need to be managed by criminal law (criminal law used by politicians to fight crime)

• 2001-PRESENT: criminal law is viewed as an instrument of security politics

Universal themes of tort law

1. liability (i.e. wrongfulness = breach of law)

2. causation (physical causation + remoteness)

3. remedies (money, injunction, or apologies)

Tort law can be based on:

1. duty of care

2. abstract norms of case law

3. statutory norms (i.e. hard law)

4. soft law

5. judgments of experts

6. circumstances of the case

Civil disobedience (definition)

a public, non-violent, & conscientious (= seriousness + sincerity + moral conviction) breach of law undertaken with the aim of bringing about a change in laws or government policies

Fidelity to the rule of law

• ppl who engage in civil disobedience are willing to accept the legal consequences of their actions

• by submitting to unjust punishment under unjust laws, activists can bring the current crisis into sharper focus —> leads to social change

• must be conducted as a LAST RESORT

the climate necessity defence

the perils of climate change are so severe, and the state’s democratic processes are so unresponsive, that no other option remains but civil disobedience

Justifications

negate the wrongfulness of the act

Excuses

negate the blameworthiness/culpability of the person accused for their wrongful acts

Self-defence (definition)

the natural right to self-preservation of man

Necessity/subsidiarity (self-defence)

the least intrusive means of defence to ward off an attack

• if there is an alternative, less intrusive means to avert the attack, use it (e.g. running away instead of punching somebody)

Proportionality (self-defence)

the relationship between the offence committed and the amount of harm likely to be suffered by the defendant

• force used in self-defence must be proportionate to force used by attacker (e.g. if somebody slaps you, you can’t kill him with a gun)

• individual characteristics can lower/raise the proportionality requirement! (e.g. use of weapons against an unarmed aggressor may sometimes be proportionate if he is much stronger)

Double causation (condition of self-defence-excess)

1. state of mind (strong emotion) is (at least partially) caused by the attack

2. the excess is directly caused by this state of mind

Self-defence-excess is influenced by…

… the individual characteristics of the defendant!

• we can expect more from some & less from others

• e.g. an excuse can be rejected bcs a specific defendant failed to restrain himself (e.g. cannot rely on this excuse if, after restraining a prisoner on the floor, he continues punching him in the head)

Necessity (definition)

arises in situations of actual DANGER to legal interests, where the danger can only be averted by infringing less valuable interests of third parties —> i.e. choosing the lesser of two evils

Necessity/subsidiarity (necessity)

the defence must be capable of ending the danger (suitable & adequate) & be the least intrusive means of aversion

Proportionality (necessity)

choosing the lesser of two evils

• involves a concrete test (danger, damage, difference in value between conflicting interests. benefit for society. irreplaceability of damage, etc. MUST BE TAKEN INTO ACCOUNT)

• saved interest bust be equal to/greater than the sacrificed interest

Reasons to punish (retributive theories)

1. punishment is intrinsically good bcs it is purifying (i.e. forms the criminal)

2. punishment restores the status quo ante (situation before crime has occurred)

3. punishment restores the balance between benefits & burdens

4. punishment satisfied feelings of vengeance

5. punishment expresses moral disapproval

CRITICISMS Retributive Theories

1. punishment rarely has a purifying effect & society will seldom re-integrate them after punishment

2. original situation cannot be restored

3. unclear why balance between gains & burdens should be recovered by means of punishment

4. just bcs society habours feelings of vengeance does not mean it is morally justified to act upon these feelings

5. punishment should be a last resort (moral reject should take place as much as possible e.g. by community)

6. by punishing, you cause additional harm (to the offender)

CRITICISM Utilitarian Theories

1. threat of punishment is disputed (recidivism rates are high & punishment is not as effective for deterrence as they claim it is) —> i.e. does not always lead to prevention

2. cost-benefit analysis only relevant for economic crimes

3. offenders being treated merely as means to an end which is the prevention of crime (dehumanization of offenders)

4. if punishment can prevent future criminality & if punishing innocent ppl is suitable for reaching that goal, then there is nothing in the theory that prevents us from punishing innocent ppl

Which theories lead to stricter sentences?

UTILITARIAN THEORIES lead to stricter sentences bcs politics influence risk assessment!!!

• risk assessment is subjective (different political ideals lead to different perceptions of risk)

Sentencing possibilities

1. minimum/maximum sentence (withing guidelines i.e. limits of the law) —> sentence can also be lighter/harsher than minimum

2. mitigating/aggravating factors

   1. objective/subjective factors; may be prescribed in the provision

3. lesser sentence (through individualization of sentencing, judge prescribes a sentence outside of the guidelines/law)

   1. prescribed in the provision

4. judicial pardon (not imposing a sentence)

   1. offender convicted & sentence given but not imposed

   2. for cases where it would not be just to punish the offender AND the offence is very minor

Types of criminal sanctions

1. punishment (imprisonment, monetary sanctions) —> aim to punish

2. non-punitive measures (forced treatment in a clinic) —> do not aim to punish

3. additional types of measures

Enlightenment & criminal law

due to punishment’s inherently violent nature, theories of punishment are needed to offer a solid justification for the imposition of the punishment

• legitimizes punishment’s violent character

Special prevention

deters the offender from committing further crimes, e.g.:

• incapacitation

• social re-integration & rehabilitation

General prevention

deters society (i.e. potential offenders) from committing crimes, e.g.:

• deterrence

• preventing of taking justice into one’s own hands through state’s channelled vengeance

Individualization of sentencing

sentence needs to fit the seriousness of the criminal offence AND the personality of the perpetrator

• judicial individualization = choosing the most appropriate sentence in the particular case

Mitigating & aggravating factors (individualization of sentencing)

factors/circumstances that determine the sentence within a specific range relating to a particular offence (sometimes prescribed in the provision itself, their use is up to the court); can be:

• objective = refer to the criminal offence & its objective circumstances (e.g. offender’s motive in regard to the crime, priors)

• subjective = refer to offender’s guilt & personality (e.g. personal/economic (e.g. remorse of offender after offence)

European Parliament

constitutes, together with a Council of EU, a chamber of EU legislature (i.e. they act as co-legislators)

• directly elected by EU citizens (democratic)

• exercises, together with the Council, legislative & budgetary functions

ordinary legislative procedure

joint adoption by Parliament & Council on a proposal from the Commission

• the two co-legislators have symmetric procedural rights

special legislative procedure

Council acts as a dominant institution (unanimity voting) with only the consent/consultation of the Parliament

Council of EU (aka Council of Ministers)

acts as co-legislator w/ the Parliament to adopt Union law

• the federal chamber of Union legislature (the organ in which the nat. gov.s meet)

• composed of a minister of each MSs

• together w/ the Parliament, exercises legislative & budgetary functions

European Commission

executive branch of the EU acting to promote the general interest of the EU, ensuring the applications of the Treaties, and overseeing the application of EU law under the control of the CJEU

• exclusive right to propose legislative bills

• composed of one national of each MS

CJEU

ensures that the law is observed in the interpretation & application of Treaties

• composed of the Court of Justice, the General Court, & specialized courts

European Council

sets the EU’s political agenda

• composed of Heads of State/Heads of Gov. of the MSs

ordinary legislative procedure (timeline)

1. proposal stage

2. 1st reading

3. 2nd reading —> approved = adopted, OR

4. conciliation stage (committee adopts a joint text)

5. 3rd reading (legislature must approve the text WITHOUT amending it)

6. signing & publication

trilogue system (during ordinary legislative procedure)

constant communication between Parliament, Council, and Commission to ensure that the legislative procedure runs smoothly

• designed to create formal bridges during formal co-decision procedure

principle of subsidiarity

a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate/local lvl.

• in areas which do not fall under its exclusive competence, the Union should act only & in so far as the objectives of the proposed action cannot be sufficiently achieved by the MSs (but can be better achieved at Union lvl.)

principle of conferral

the Union shall act within the limits of the competences conferred upon it by MSs in the Treaties to attain the objectives set out therein

• competences not conferred upon the EU in the Treaties stay with the MSs

legislative competence

the material field in which an authority is allowed to legislate (i.e. make laws

teleological interpretation of legislative competences

looks at the aims & objectives of the EU in order to interpret the scope of EU competences

the Union legislator enjoys two types of competences that CUT ACROSS ALL SUBSTANTIVE AREAS

• harmonization competence

• residual competence

harmonization competence (Art. 114 TFEU)

EU is entitled to adopt measures for the approximation of nat. laws which have as their objective the establishment & functioning of the internal market

residual competence (Art. 352 TFEU)

if action by the Union should prove necessary to attain one of the objectives set out in the Treaties & the Treaties have not provided the necessary powers, the Council shall adopt measures

direct effect of DIRECTIVE PROVISIONS

In general, Directives do not have direct effect!, unless they are not implemented on time

The general rule is provision is:

1. unconditional

2. sufficiently clear

3. MS failed to implement the Directive in the given timeframe

If satisfied, this provision can ONLY BE INVOKED AGAINST THE STATE (vertically, & not between priv. parties (horizontally)

vertical effect

an individual can invoked European law in nat. court against the State

horizontal effect

when an individual wants to invoked a European norm against other private parties

direct applicability

law has effect as soon as it enters into practice & must not be transposed into nat. law (only applies to Regulations)

principle of primacy/supremacy of EU law

Eu law prevails over conflicting national law

• in cases of conflict, national law does not become void, but only “inapplicable”, & EU law is applied by the Court