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Europe and the World: Climate Change, Trade and Investment > 3 - Nature & Scope EU Powers in Areas of CTI and Legal Effects of IAs in EU Legal Order > Flashcards

3 - Nature & Scope EU Powers in Areas of CTI and Legal Effects of IAs in EU Legal Order Flashcards

1
Q

What does lecture on nature & scope EU powers and legal effects of IAs in EU legal order touch upon? (7)

A

1/ nature and scope of EU’s powers in areas of CTI

2/ distribution of competences btwn EU and MS

3/ determination of correct legal basis

4/ linkages btwn EU trade&investment policy and climate policy

5/ legal effects of EU IAs in EU legal order in areas of CTI

6/ jurisdiction EU courts to interpret IAs

7/ direct effect, conform interpretation of IAs and liability EU&MS for breaches of IAs

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2
Q

What are key elements to keep in mind regarding EU IAs? (3)

A

1/ EU competence to conclude IAs: pcple of conferral of powers

2/ scope EU competence: express and implied powers

3/ nature EU competence: exclusive and shared powers (Art. 2(1)(2) TFEU, respectively)

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3
Q

What do exclusive powers entail? (2)

A

1/ only EU can adopt legally binding acts in areas of exclusive competence

2/ but MS may still act in such areas if express authorisation from EU institutions

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4
Q

Where are exclusive powers of EU codified?

A

Art. 2(1) TFEU, Art. 3(1) TFEU

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5
Q

Where are shared powers codified?

A

Art. 2(2) TFEU, Art. 4 TFEU

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6
Q

What is a pcple governing the exercise of shared powers?

A

Preemptive effect

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7
Q

What is role of pcple of conferral of powers? Legal basis? (4)

A

1/ Art. 5(2) TEU

2/ EU can act only within limits of competences conferred upon it

3/ pcple must be respected both in internal and international action of EU (Opinion 2/94, para 24)

4/ the choice of legal basis has constitutional significance (Opinion 2/00, para 5)

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8
Q

Why does choice of correct legal basis for decisions concluding IAs have constitutional significance? (3)

A

1/ affects validity of decision concluding IA

2/ consequences for horizontal DP

3/ consequences for vertical DP

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9
Q

Why does choice of correct legal basis for decisions concluding IAs have international relevance? (2)

A

1/ invalidation can create complications for EU under IL as it vitiates EU consent to be bound by IA

2/ legal basis is also indication for partners of division of responsibilities under IA

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10
Q

What is a relevant example to illustrate the significance of choice of legal basis for decision concluding IA?

A

Art. 207 TFEU vs Art. 192 TFEU

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11
Q

Characteristics Art. 207 TFEU? (3)

A

1/ EU exclusive competence

2/ EC exclusive negotiator

3/ jurisdiction ECJ to interpret provisions IA

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12
Q

Characteristics Art. 192 TFEU? (5)

A

1/ shared competence

2/ EU can choose to exercise its powers

3/ MS can still adopt more stringent envtal measures

4/ Council appoints EU negotiator for IA

5/ jurisdiction ECJ to interpret provisions IA only insofar as EU has exercised its powers

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13
Q

When can EU negotiate IAs? Legal basis? (6)

A

1/ not every area within Treaties expressly codifies ability of EU to conclude IAs

2/ cf Art. 216(1) TFEU (codification CJEU case law)

3/ when Treaties so provide

4/ when conclusion IA is necessary to achieve one of Treaties’ objectives

5/ when conclusion IA is provided for in an EU legally binding act

6/ when conclusion IA is likely to affect common rules or alter their scope

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14
Q

When does EU have exclusive treaty-making powers? (4)

A

1/ in areas of exclusive competence (Art. 3(1) TFEU)

2/ when conclusion is provided for in EU legislative act (Art. 3(2) TFEU)

3/ when conclusion is necessary to enable EU to exercise internal competence (Art. 3(2) TFEU, Opinion 1/76)

4/ insofar as conclusion IA affects common rules or alters their scope (Art. 3(2) TFEU, ERTA)

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15
Q

Considerations on shared treaty-making powers? (4)

A

1/ here, EU can choose to exercise its powers

2/ ECJ has jurisdiction to interpret extent to which EU exercised its powers (OTIF

3/ ECJ has jurisdiction to interpret those parts of IA for which EU exercised its powers (OTIF)

4/ above applies to implied shared powers (Opinion 2/91)

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16
Q

Contribution of Opinion 2/91 regarding implied shared powers? (2)

A

1/ when EU law and IA lay down minimum standards, the IA cannot affect common rules or alter their scope (para 18)

2/ thus, no exclusive but shared treaty-making powers

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17
Q

What are EU’s powers in areas of trade and investment? (3)

A

1/ imbrication of trade & investment agreements

2/ EU has explicit and exclusive competence for trade agreements

3/ investment agreements are traditionally charted territory of MS

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18
Q

Considerations on EU trade agreements? (3)

A

1/ EU is founding member of WTO (= multilateral trade liberalisation agreement)

2/ around 33 trade liberalisation agreements are currently in force

3/ 16 trade liberalisation agreements are currently provisionally applied

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19
Q

Considerations on EU investment agreements? (2)

A

1/ EU only party to ECT

2/ several agreements have been negotiated and are in process of ratification (e.g. CETA)

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20
Q

What are opposing views on competence in area of CCP? (2)

A

1/ EC: broad view of EU powers under Art. 207 TFEU

2/ MS and Council: more restrictive view regarding scope Art. 207 TFEU, in favor of sticking to its wording

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21
Q

What is the main means through which EC asks for clarification on scope EU powers under Art. 207 TFEU?

A

Requesting opinions from CJEU

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22
Q

Relevant cases pre-Lisbon on scope EU powers under Art. 207 TFEU? (3)

A

1/ Opinion 1/75

2/ Opinion 1/78

3/ Opinion 1/94

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23
Q

What does pre-Lisbon case law on scope EU powers under Art. 207 TFEU illustrate? (2)

A

1/ favorable view of CJEU to EC broad interpretation EU powers in field of trade

2/ therefore, not only instruments cited in Art. 207 TFEU are considered part of EU competence

24
Q

According to Art. 207(1) TFEU, what is the CCP to be based on?

A

Uniform pcples

25
Q

What do uniform pcples CCP particularly cover? (5)

A

1/ changes in tariff rates

2/ conclusion of tariff and trade agreements

3/ liberalisation measures

4/ export policy

5/ measures to protect trade (anti-dumping, anti-subsidies)

26
Q

Which case lays down the CJEU test to determine whether measure falls within scope of CCP post-Lisbon? What are the criteria? (4)

A

1/ Daichi Sankyo, para 51

2/ EU act relates specifically to int. trade

3/ EU act essentially intended to promote, facilitate or govern trade

4/ EU act has direct and immediate effects on trade

27
Q

According to Opinion 2/15 (EUFSTA), which elements of IAs are part of EU exclusive competence? (8)

A

1/ goods

2/ services

3/ transport services

4/ NTBs, REG and competition

5/ government procurement

6/ IP

7/ foreign direct investment

8/ sustainable development

28
Q

According to Opinion 2/15 (EUFSTA), which elements of IAs are part of shared EU/MS competence? (3)

A

1/ portfolio investment

2/ ISDS (mixity required?)

3/ termination of MS BITs

29
Q

Who is to ratify IAs containing ISDS? Why? (2)

A

1/ EU and the MS

2/ ruled as shared competence bc such IAs remove DS from the MS, therefore requiring their consent

30
Q

According to which legal bases does EU have competence to act externally in area of climate change? (3)

A

1/ Arts. 191(4) and 192(1) TFEU: envt

2/ Art. 194 TFEU: energy

3/ Art. 43 TFEU: conservation marine living resources under CFP

31
Q

What is scope of EU competence regarding external action in area of climate change? Legal basis? (2)

A

1/ Art. 191(1) TFEU

2/ promotion of measures at int. level to deal with regional or worldwide envtal pbs, in particular combating CC

32
Q

What is nature EU competence for external action in area of CC? Legal bases? (4)

A

1/ Art. 191(4) TFEU, Art. 4(2)(e) TFEU

2/ shared competence

3/ Art. 193 TFEU: MS may adopt more stringent envtal measures at national level

4/ but MS are bound by duty of loyalty (Commission v Sweden (PFOS))

33
Q

In which cases did Council decide to rely on Art. 192 TFEU? (2)

A

1/ adherence to CITES

2/ Carbon Border Adjustment Mechanism

34
Q

In which case did Council decide to rely on Art. 207 TFEU?

A

Voluntary Partnership Agreements under Timber Reg.

35
Q

How is the choice of legal basis determined in gnl? (4)

A

1/ on basis of objective factors amenable to judicial review

2/ includes aim and content of measures

3/ centre of gravity test

4/ exceptionally, dual legal basis

36
Q

Which element is also relevant to determine the choice of legal basis for conclusion of an int. agreement?

A

The context in which agreement was negotiated (Art. 31 VCLT)

37
Q

What is the preferred choice of legal basis when it comes to IAs touching upon trade and envt? (6)

A

1/ Art. 207 TFEU

2/ cf Opinion 2/15

3/ Lisbon changes to CCP = significant dvpt of primary EU law

4/ now, obligation to integrate gnl external objectives into CCP

5/ therefore, objective of SD forms integral part of CCP

6/ thus, TSD chapters fall within CCP according to CJEU

38
Q

What is the main feature of the EU legal order?

A

It is autonomous

39
Q

What are consequences of EU autonomous legal order? (3)

A

1/ EU monist approach to IL: no need for transposition after IA has been ratified

2/ place of IL in EU hierarchy of norms: prevails over 2ndary law

3/ legal effects of EU IAs in areas of CTI in EU legal order: direct effect, consistent interpretation, non-contractual liability

40
Q

Contribution of Haegeman v Belgian State ruling regarding monism vs dualism? (2)

A

1/ from date IA comes into force, provisions form integral part of EU law

2/ EU has monist system

41
Q

According to Sevince case, whose decisions also form part of EU law in line with monist system?

A

Decisions of bodies set up under IAs also form part of EU law

42
Q

According to Vereniging Milieudefensie, what place do EU IAs take in EU hierarchy of norms? (2)

A

1/ Art. 216(2) TFEU: IAs prevail over acts laid down by EU institutions

2/ therefore, validity of secondary EU law can be challenged in light of IAs (PR and direct actions)

43
Q

What are the 4 cumulative steps laid down in Kupferberg ruling to directly invoke EU IAs? (4)

A

1/ EU is bound by IA

2/ parties did not explicitly decide to exclude direct effect

3/ nature and broad logic IA do not preclude direct effect

4/ provisions appear, as regards content, to be unconditional and sufficiently precise

44
Q

According to Sevince case, whose decisions do 4 cumulative criteria of Kupferberg ruling also apply to?

A

Decisions of bodies set up by IAs

45
Q

Does WTO law have direct effect? (3)

A

1/ historical aspect: from GATT to WTO

2/ GATT basic pcples denied direct effect

3/ those pcples confirmed for WTO (Portugal v Council)

46
Q

What are GATT basic pcples denying direct effect? (4)

A

1/ great flexibility of provisions

2/ based on reciprocity

3/ not capable of conferring rights to ind.

4/ idem for challenges brought by MS (Germany v Council)

47
Q

Do WTO DS decisions have direct effect? (3)

A

1/ cf Van Parys

2/ no direct effect of rulings by WTO DSB

3/ due to flexibility and room for negotiations under DSU

48
Q

If no direct effect of WTO law, what does CJEU try to do? Case law? (3)

A

1/ consistent interpretation, i.e. interpret EU law as much as possible in conformity with WTO law

2/ Commission v Germany

3/ Ikea Wholesale

49
Q

If no direct effect and no consistent interpretation of WTO law possible, what remains an option? Case law? (2)

A

1/ non-contractual liability of EU

2/ FIAMM and Fedon

50
Q

What are 2 exceptions to denial of direct effect WTO law? (2)

A

1/ EU measure intends to implement an obligation assumed in context of WTO

2/ EU measure expressly refers to WTO provisions

NB: exceptions are old, date from 1980s

51
Q

Do EU FTAs have direct effect? (2)

A

1/ older FTAs and trade agreements have been given direct effect by ECJ

2/ new generation of FTAs explicitly excludes direct effect

52
Q

What are legal effects of EU int. investment agreements? (2)

A

1/ only EU IA containing investment protection rules in force is ECT, which contains no provisions excluding direct effect, but there is also no case law on direct effect ECT

2/ new trade&investment agreements containing investment chapter explicitly exclude direct effect

53
Q

What are conditions for legal effects of IAs in area of CC? (5)

A

1/ same as Kupferberg criteria

2/ EU is bound by IA

3/ no explicit exclusion direct effect

4/ nature and broad logic IA do not preclude direct effect (cf Intertanko case: UNCLOS does not have direct effect)

5/ provisions unconditional and sufficiently precise

54
Q

Which IA has direct effect due to unconditional and sufficiently precise provisions? Case law? (2)

A

1/ Barcelona Convention

2/ Etang de Berre

55
Q

Which IA does not have direct effect due to lack of unconditional and sufficiently precise provisions? Case law? (2)

A

1/ Aarhus Convention

2/ Vereniging Milieudefensie

56
Q

What are legal effects of int. envtal agreements? (6)

A

1/ WTO exceptions to denial of direct effect cannot be applied outside of WTO context (Vereniging Milieudefensie)

2/ but IEAs can have direct effect if EU secondary legislation makes direct reference to specific provisions of the IEA and confers a right on ind. (Fediol)

3/ there can be direct effect if implementation of IEA through secondary EU law (Nakajima)

4/ if no direct effect, consistent interpretation

5/ national courts have obligation to interpret national law in light of EU IAs (Slovak Bears I)

6/ other EU law must also be interpreted as far as possible in light of EU IAs (Slovak Bears II)

57
Q

Recap of lecture on nature & powers EU in areas of CTI and legal effects of EU IAs? (4)

A

1/ scope EU external powers has gradually increased overtime

2/ scope EU external powers affects ability of MS to act internationally

3/ EU’s approach to enforceability of IAs domestically may affect compliance and position of ind. and groups

4/ however, EU approach to enforceability of IAs domestically also gives the EU flexibility

Europe and the World: Climate Change, Trade and Investment (7 decks)

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