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Principles and Foundations of EU Law > 2 - Divisions of Power in EU Law > Flashcards

2 - Divisions of Power in EU Law Flashcards

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1
Q

What is a fundamental premise when talking about the division of power within EU? (2)

A

Distinction btwn:

1/ division of powers (exists, but not a pcple in itself)

2/ separation of powers (no consensus on whether it exists within EU)

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2
Q

What is DP in the EU? (2)

A

1/ multi-layered

2/ polycentric

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3
Q

Main idea of DP? (2)

A

1/ legal limits to power

2/ no abuse of power

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4
Q

What does DP protect? (3)

A

1/ freedom

2/ self-determination

3/ both of EU citizens and MS

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5
Q

What should one look at when studying the vertical DP within EU?

A

EU systems of competences

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6
Q

What are the constitutional pcples regarding the EU system of competences? (3)

A

See Art. 5 TEU

1/ pcple of conferral

2/ pcple of subsidiarity

3/ pcple of proportionality

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7
Q

Characteristics of the pcple of conferral? (4)

A

1/ conferred but limited powers

2/ renders EU a unique supranational polity (only derived powers)

3/ key to EU action is conferral (i.e. attribution)

4/ figures across the Treaties

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8
Q

Where can one find the distribution of competences?

A

Arts. 2-6 TFEU

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9
Q

What are the 4 types of competences?

A

1/ exclusive powers EU (Art. 3 TFEU)

2/ shared powers EU-MS (Art. 4 TFEU)

3/ complementary EU powers (Art. 6 TFEU)

4/ special competences

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10
Q

What are some competences considered ‘special’? (4)

A

1/ CFSP

2/ Art. 3(2) TFEU (subsequent exclusive treaty powers)

3/ coordination of economic, employment and social policies

4/ Art. 352 TFEU (‘flexibility clause’)

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11
Q

Characteristic exclusive powers EU?

A

MS may not act

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12
Q

Characteristics of shared powers EU-MS? (2)

A

1/ MS may act if EU didn’t act

2/ full or partial harmonisation

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13
Q

Characteristics of complementary powers? (2)

A

1/ MS act, but EU may coordinate, support or supplement

2/ e.g. Open Method of Coordination

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14
Q

Important characteristic of the pcple of conferral?

A

Its flexibility

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15
Q

Why can the pcple of conferral be considered ‘flexible’? (3)

A

1/ CJEU monopoly & teleological interpretation of Treaties

2/ horizontal cross-cutting ‘purposive’ competences within the Treaties (e.g. internal market, ‘flexibility clause’)

3/ MS bound to exercise their competences in conformity of EU law (even their exclusive competences)

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16
Q

What is striking about ‘Tobacco Advertising’ case?

A

First time ECJ didn’t accept the EU legislature’s interpretation of EU competence

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17
Q

2 cases in which ECJ reminded MS that they are bound to exercise their competences in conformity of EU law?

A

1/ Rottman (nationality case law)

2/ Viking and Laval (free movement law)

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18
Q

Characteristics of the ‘flexibility clause’ (Art. 352 TFEU)? (3)

A

1/ no EU power

2/ however, EU action is possible where it is necessary to attain one of the objectives of the Treaties

3/ there are limits

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19
Q

Limits to the ‘flexibility clause’? (3)

A

1/ no circumvention of harmonisation bans

2/ Council acts by unanimity

3/ may not result in amendement of the Treaty

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20
Q

Counter-mouvements to the flexibility of the pcple of conferral? (4)

A

1/ constitutional saving clauses (e.g. social policy, health, constitutional identity)

2/ Tobacco Advertising: ‘harmonising measures adopted on the basis of other provisions of the Treaty’

3/ harmonisation bans allow for use of Art. 114 TFEU if its conditions are fulfilled

4/ ultra vires control by national constitutional courts (e.g. PSPP, Weiss)

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21
Q

Nature of the subsidiarity pcple? (2)

A

See Art. 5(3) TEU

1/ does not apply to EU exclusive competences

2/ weak as legal pcple

22
Q

Link btwn pcple of subsidiarity & harmonisation?

A

Harmonisation => bias towards EU as only can harmonise national laws

23
Q

Pcple of subsidiarity in CJEU case law?

A

CJEU never annulled a measure based on a breach of subsidiarity

24
Q

Main question surrounding pcple of conferral and subsidiarity?

A

Do they effectively set limits to European integration?

=> depends mainly on actor interpreting EU law

25
Q

Main aims of conferral and subsidiarity? (2)

A

1/ limit EU powers

2/ protect powers of the MS

26
Q

How is the effectiveness of conferral and subsidiarity undermined? (2)

A

1/ autonomy of EU law

2/ expressed in judicial monopoly of CJEU

27
Q

What is a negative/positive (?) feature of conferral? (2)

A

1/ flexible pcple

2/ allowing for expansion of EU powers beyond those expressly conferred in Treaties

28
Q

What limits are necessary to EU integration? (2)

A

1/ legal limits

2/ political limits

29
Q

What is discussed when speaking of the horizontal division of powers within EU?

A

EU institutional balance (IB)

30
Q

What is nature of pcple of IB? (2)

A

See Art. 13(2) TEU => 2 constitutional commands

1/ each institution acts within powers conferred on it

2/ with due regard to powers of other institutions

31
Q

Meaning of IB? (3)

A

1/ fragile pcple with uncertain contents

2/ elusive concept

3/ relationship to concept of SP is contested and not yet settled

32
Q

What is the meaning of IB as simple answer? (4)

A

1/ shorthand for the set of Treaty rules that apply to any EU decision => no general and independent legal content

2/ treaty procedural rules too diverse & detailed => no general system or balance across all policy fields

3/ CJEU: mainly uses pcple to verify specific procedural rules of Treaty provisions are complied with

4/ arguably not an actionable legal pcple

33
Q

Meaning of IB if complicated answer? (4)

A

1/ content & function of IB as legal pcple remain unclear

2/ relationship with pcple of SP

3/ one view considers IB = EU specific expression of SP (‘checks and balances’)

4/ another view: IB and SP are different concepts

34
Q

Why do some consider IB and SP are different concepts? (3)

A

1/ SP = politico-philosophical pcple securing collective & individual self-determination (constituting & limiting power)

2/ IB = legal pcple aiming to represent different interests in EU decision-making

3/ IB can only be used to evaluate EU political practice & secondary law against primary law

35
Q

Meaning of IB in view of CJEU? (4)

A

1/ case law criticised as not entirely clear

2/ first mention in ‘Meroni’ (‘fundamental guarantee’)

3/ IB reflected in Art. 13(2) which is ‘characteristic of the institutional structure of the Union’ (Commission’s right of Withdrawal)

4/ however, most case law does not go beyond applying Treaty procedures

36
Q

Why is Chernobyl an exceptional case? (3)

A

1/ IB used to fill gap in the Treaty

2/ contra legem interpretation of Art. 263 TFEU (legal standing of EP)

3/ judicial invention subsequently codified via Treaty amendment

37
Q

What does IB require?

A

Each institution exercises its powers with due regard for powers of other institutions

38
Q

Which article codifies the ordinary legislative procedure?

A

Art. 289(1) TFEU

39
Q

What is the objective of the ordinary legislative procedure? (2)

A

1/ to represent different interests

2/ double legitimacy bc representation of EU citizens (EP) and MS (Council)

40
Q

Why can one say the Commission has a special role in the OLP? (6)

A

1/ part of EU executive

2/ truly supranational institution

3/ promotes EU general interest

4/ (almost) exclusive prerogative to initiate legislation

5/ ‘fundamental characteristic of the EU constitutional order’

6/ has to be completely independent

41
Q

Where is the EC’s right of initiative codified?

A

Art. 17(2) TEU

42
Q

Why does EC have a right of initiative?

A

To promote general interest of the EU

43
Q

What does EC do before proposing legislation?

A

Broad consultation with parties concerned

44
Q

What does EC determine with respect to legislative proposals? (3)

A

1/ subject-matter

2/ objective

3/ content

=> See ‘Commission’s Right of Withdrawal’, para 70)

45
Q

Who can request a proposal? (3)

A

1/ EP

2/ Council

3/ Citizen’s Initiative

46
Q

Can EC not follow a request for legislative proposal?

A

Yes but then it must explain why

47
Q

How is right of initiative protected? (3)

A

See Art. 293 TFEU

1/ Council may amend EC proposal only by unanimity

2/ EC may alter its proposal as long as Council has not acted

3/ right of withdrawal?

48
Q

Does EC have a right of withdrawal? (6)

A

1/ not expressly established in Treaties

2/ mirror image of the right of initiative

3/ combined reading of Arts. 17 TEU and 289, 293 TFEU

4/ see ‘Commission’s Right of Withdrawal’

5/ power of EC decreases the more advanced the legislative process (no right in 2nd or 3rd reading)

6/ there are limits

49
Q

Why should EC have a right of withdrawal?

A

Otherwise, 2 legislators would be able to adopt legislation without EC proposal

50
Q

Limits to EC right of withdrawal? (3)

A

1/ no right to veto

2/ reason-giving supported by ‘cogent evidence or arguments’

3/ only where proposal is deprived of its raison d’être

51
Q

Which pcples is OLP guided by? (2)

A

1/ equality

2/ joint decision-making btwn Council and EP

52
Q

Fundamental question surrounding EC’s monopoly of initiative?

A

Is it democratic?

Principles and Foundations of EU Law (7 decks)

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