3 - Nature & Scope EU Powers in Areas of CTI and Legal Effects of IAs in EU Legal Order Flashcards
What does lecture on nature & scope EU powers and legal effects of IAs in EU legal order touch upon? (7)
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
What are key elements to keep in mind regarding EU IAs? (3)
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)
What do exclusive powers entail? (2)
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
Where are exclusive powers of EU codified?
Art. 2(1) TFEU, Art. 3(1) TFEU
Where are shared powers codified?
Art. 2(2) TFEU, Art. 4 TFEU
What is a pcple governing the exercise of shared powers?
Preemptive effect
What is role of pcple of conferral of powers? Legal basis? (4)
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)
Why does choice of correct legal basis for decisions concluding IAs have constitutional significance? (3)
1/ affects validity of decision concluding IA
2/ consequences for horizontal DP
3/ consequences for vertical DP
Why does choice of correct legal basis for decisions concluding IAs have international relevance? (2)
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
What is a relevant example to illustrate the significance of choice of legal basis for decision concluding IA?
Art. 207 TFEU vs Art. 192 TFEU
Characteristics Art. 207 TFEU? (3)
1/ EU exclusive competence
2/ EC exclusive negotiator
3/ jurisdiction ECJ to interpret provisions IA
Characteristics Art. 192 TFEU? (5)
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
When can EU negotiate IAs? Legal basis? (6)
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
When does EU have exclusive treaty-making powers? (4)
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)
Considerations on shared treaty-making powers? (4)
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)
Contribution of Opinion 2/91 regarding implied shared powers? (2)
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
What are EU’s powers in areas of trade and investment? (3)
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
Considerations on EU trade agreements? (3)
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
Considerations on EU investment agreements? (2)
1/ EU only party to ECT
2/ several agreements have been negotiated and are in process of ratification (e.g. CETA)
What are opposing views on competence in area of CCP? (2)
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
What is the main means through which EC asks for clarification on scope EU powers under Art. 207 TFEU?
Requesting opinions from CJEU
Relevant cases pre-Lisbon on scope EU powers under Art. 207 TFEU? (3)
1/ Opinion 1/75
2/ Opinion 1/78
3/ Opinion 1/94
What does pre-Lisbon case law on scope EU powers under Art. 207 TFEU illustrate? (2)
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
According to Art. 207(1) TFEU, what is the CCP to be based on?
Uniform pcples
What do uniform pcples CCP particularly cover? (5)
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)
Which case lays down the CJEU test to determine whether measure falls within scope of CCP post-Lisbon? What are the criteria? (4)
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
According to Opinion 2/15 (EUFSTA), which elements of IAs are part of EU exclusive competence? (8)
1/ goods
2/ services
3/ transport services
4/ NTBs, REG and competition
5/ government procurement
6/ IP
7/ foreign direct investment
8/ sustainable development
According to Opinion 2/15 (EUFSTA), which elements of IAs are part of shared EU/MS competence? (3)
1/ portfolio investment
2/ ISDS (mixity required?)
3/ termination of MS BITs
Who is to ratify IAs containing ISDS? Why? (2)
1/ EU and the MS
2/ ruled as shared competence bc such IAs remove DS from the MS, therefore requiring their consent
According to which legal bases does EU have competence to act externally in area of climate change? (3)
1/ Arts. 191(4) and 192(1) TFEU: envt
2/ Art. 194 TFEU: energy
3/ Art. 43 TFEU: conservation marine living resources under CFP
What is scope of EU competence regarding external action in area of climate change? Legal basis? (2)
1/ Art. 191(1) TFEU
2/ promotion of measures at int. level to deal with regional or worldwide envtal pbs, in particular combating CC
What is nature EU competence for external action in area of CC? Legal bases? (4)
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))
In which cases did Council decide to rely on Art. 192 TFEU? (2)
1/ adherence to CITES
2/ Carbon Border Adjustment Mechanism
In which case did Council decide to rely on Art. 207 TFEU?
Voluntary Partnership Agreements under Timber Reg.
How is the choice of legal basis determined in gnl? (4)
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
Which element is also relevant to determine the choice of legal basis for conclusion of an int. agreement?
The context in which agreement was negotiated (Art. 31 VCLT)
What is the preferred choice of legal basis when it comes to IAs touching upon trade and envt? (6)
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
What is the main feature of the EU legal order?
It is autonomous
What are consequences of EU autonomous legal order? (3)
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
Contribution of Haegeman v Belgian State ruling regarding monism vs dualism? (2)
1/ from date IA comes into force, provisions form integral part of EU law
2/ EU has monist system
According to Sevince case, whose decisions also form part of EU law in line with monist system?
Decisions of bodies set up under IAs also form part of EU law
According to Vereniging Milieudefensie, what place do EU IAs take in EU hierarchy of norms? (2)
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)
What are the 4 cumulative steps laid down in Kupferberg ruling to directly invoke EU IAs? (4)
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
According to Sevince case, whose decisions do 4 cumulative criteria of Kupferberg ruling also apply to?
Decisions of bodies set up by IAs
Does WTO law have direct effect? (3)
1/ historical aspect: from GATT to WTO
2/ GATT basic pcples denied direct effect
3/ those pcples confirmed for WTO (Portugal v Council)
What are GATT basic pcples denying direct effect? (4)
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)
Do WTO DS decisions have direct effect? (3)
1/ cf Van Parys
2/ no direct effect of rulings by WTO DSB
3/ due to flexibility and room for negotiations under DSU
If no direct effect of WTO law, what does CJEU try to do? Case law? (3)
1/ consistent interpretation, i.e. interpret EU law as much as possible in conformity with WTO law
2/ Commission v Germany
3/ Ikea Wholesale
If no direct effect and no consistent interpretation of WTO law possible, what remains an option? Case law? (2)
1/ non-contractual liability of EU
2/ FIAMM and Fedon
What are 2 exceptions to denial of direct effect WTO law? (2)
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
Do EU FTAs have direct effect? (2)
1/ older FTAs and trade agreements have been given direct effect by ECJ
2/ new generation of FTAs explicitly excludes direct effect
What are legal effects of EU int. investment agreements? (2)
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
What are conditions for legal effects of IAs in area of CC? (5)
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
Which IA has direct effect due to unconditional and sufficiently precise provisions? Case law? (2)
1/ Barcelona Convention
2/ Etang de Berre
Which IA does not have direct effect due to lack of unconditional and sufficiently precise provisions? Case law? (2)
1/ Aarhus Convention
2/ Vereniging Milieudefensie
What are legal effects of int. envtal agreements? (6)
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)
Recap of lecture on nature & powers EU in areas of CTI and legal effects of EU IAs? (4)
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
