4 - Mutual Recognition and Autonomy of MS Law Flashcards

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1
Q

What are the 3 main market models?

A

1/ harmonisation model

2/ host country model

3/ home country model

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2
Q

Characteristics of the harmonisation model? (3)

A

1/ product conditions and standards are replicated at the EU level

2/ MS must sit together and agree on these common standards

3/ see e.g. Art. 114 TFEU

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3
Q

Characteristics of the host country model? (4)

A

1/ standards, rules, regulations of host country apply

2/ normal situation for trade among sovereign States in int. trading system

3/ pb is this can easily lead to protectionist measures

4/ this model must not lead to discrimination against foreign products

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4
Q

EU’s historical evolution regarding mutual recognition in internal market law? (4)

A

1/ suppression of custom duties and tariffs on imported/exported products of EU MS (as well as charges having equivalent effect)

2/ prohibition of taxes and duties excessive compared to those applied to domestic products or that have a protectionist effect (see Art. 110 TFEU)

3/ prohibition of quantitative restrictions on imports and measures having equivalent effect (see Art. 34 TFEU)

4/ prohibition of quantitative restrictions on exports and measures having equivalent effect (see Art. 35 TFEU)

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5
Q

What judgment was relevant in specifying under which conditions a measure is to be considered discriminatory against foreign products?

A

Dassonville (1974)

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6
Q

Background & finding of Dassonville ruling? (4)

A

1/ BE law required importers of Scotch Whiskey to have British certificate of authentification

2/ BE law applied to all imports (not discriminatory)

3/ ECJ: BE law is a measure having an equivalent effect to a quantitative restriction (Art. 34 TFEU)

4/ ECJ finding based on the fact that BE law indirectly hindered trade (‘directly or indirectly, actually or potentially’)

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7
Q

What is the consequence of the inclusion of ‘indirect’ effects on trade in interpretation of Art. 34 TFEU?

A

This leads to a wide interpretation of which national measures fall under EU law

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8
Q

Aftermath of Dassonville ruling? (3)

A

1/ extreme activism of businesses across the EU to get rid of many types of regulations

2/ MS faced an almost absolute lack of tools to protect themselves and their local economies from the striking down of national rules

3/ this led to further case law in which ECJ tried to reconcile different interests (e.g. Cassis de Dijon)

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9
Q

Background & finding of Cassis de Dijon (1979)? (4)

A

1/ GER regulation required fruit liquors to have a minimum alcohol content of 25% to be sold

2/ Cassis de Dijon had alcohol content of 15-20% so could not be sold, although legally produced under French law

3/ GER measure not outrightly discriminatory

4/ ECJ: GER measure constitutes obstacle to intra-Community trade bc made it impossible to sell Cassis de Dijon

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10
Q

Reasoning of ECJ in Cassis de Dijon? (5)

A

1/ search for harmonisation measures for a specific product

2/ if none, look at national rules and regulations (host country rationale)

3/ determine whether national rules are discriminatory under EU law

4/ if measure is discriminatory, check whether it falls within a derogation defined by Treaties

5/ if no harmonisation, discriminatory and disproportional measure => application of the principle of mutual recognition (GER must accept FR standards and import product if legally produced)

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11
Q

Characteristics of home country model? (5)

A

1/ rules applying to a given product are those defined by the country of origin

2/ importing country must accept standards of home country, which requires mutual trust

3/ application of the pcple of mutual recognition

4/ pb: may lead to a race to the bottom

5/ pb 2.0: if trust btwn trading partners is gone, it is difficult for the system to function

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12
Q

Basic considerations surrounding EU asylum law? (3)

A

1/ harmonisation of MS’ asylum policies and procedures begun from 1989 onwards

2/ initially, no competence in the Treaties so Treaty of Amsterdam introduced Arts. 77-78 TFEU which allowed adoption of a Common European Asylum System (CEAS)

3/ first measure was Dublin II Regulation (2003)

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13
Q

Important aspects of Dublin II Regulation? (3)

A

1/ lays down criteria & mechanisms for determining MS responsible for examining asylum application

2/ responsibility lies with MS of first entry (Art. 3(1))

3/ sovereignty clause in Art. 3(2) allows another MS ti examine an application for asylum even though it is not responsible

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14
Q

Background N.S. case? (3)

A

1/ refugees entered EU via Greece then travelled to UK/IRL where they filed asylum applications

2/ UK and IRL wished to transfer refugees back to GR

3/ argument refugees: UK/IRL have obligation to examine their asylum applications bc they would face degrading and inhuman treatment if sent back to GR

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15
Q

Findings ECJ in N.S.? (5)

A

1/ rationale of CEAS is rationalisation of treatment of asylum claims

2/ this requires pcple of mutual trust, i.e. MS trust they observe FR when processing asylum claims

3/ the sole fact that a MS faces operational pbs and fails to comply with FR does not affect obligations under Dublin II Regulation

4/ mutual trust and mutual recognition take priority

5/ one exception: systemic deficiencies amounting to substantial grounds for believing the asylum seeker would face a real risk of being subjected to IDT (para 94) => Dublin II then does not apply

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16
Q

Background to mutual recognition in EU criminal law? (3)

A

1/ before 2002, application of extradition procedures for transfer of criminals btwn EU MS

2/ reluctance to harmonisation bc criminal law is a key area of sovereignty

3/ adoption of European Arrest Warrant (EAW) procedure under Council Framework Decision of 2002

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17
Q

What are 2 grounds for issuance of EAW?

A

1/ prosecution of a person

2/ execution of a custodial sentence or detention order

18
Q

What are the 2 States involved in EAW procedure?

A

1/ issuing State

2/ executing State

19
Q

What is necessary for EAW system to work?

A

Mutual recognition of and trust by MS of their respective criminal systems

20
Q

Why is mutual recognition important in criminal matters?

A

MS’ national judicial authorities must trust that each MS will provide criminals with a fair trial

21
Q

Background of Aranyosi case (2016)? (4)

A

1/ HG and RO nationals committed crimes and fled to GER => issuance of EAWs

2/ in meantime, ECtHR ruled HG and RO violated Art. 3 ECHR

3/ refusal GER authorities to execute EAWs

4/ is this refusal in line with Council Framework Decision on EAW?

22
Q

What was the underlying consideration at stake in the Aranyosi case?

A

Coherence of EU legal order in field of criminal law

23
Q

What is the test defined by ECJ in Aranyosi to determine whether MS can refuse to execute EAW? (4)

A

1/ judicial authority of executing State must assess existence of risk violation FR criminal

2/ general and systemic risk that criminal will be treated in an inhuman/degrading manner is not enough to refuse execution EAW

3/ judicial authority executing State must therefore examine whether there are substantial grounds to believe individual will be exposed to that risk

4/ in any case, execution of EAW can be postponed but cannot be abandoned (para 98)

24
Q

In which fields of EU law does mutual recognition apply? (4)

A

1/ EU internal market law

2/ EU asylum law

3/ EU criminal law

4/ EU competition law

25
Q

What can be recognized under the pcple of mutual recognition? (5)

A

1/ products

2/ services

3/ asylum law systems

4/ criminal law systems

5/ competition law systems

26
Q

Characteristics of concept of mutual recognition? (2)

A

1/ no harmonisation but coordination of various legal systems

2/ fiction that each legal system is of equal standards

27
Q

Main contribution of Dassonville ruling? (3)

A

1/ broad definition of ‘measures having an equivalent effect’ to quantitative restrictions

2/ this led to an almost complete ban of national measures

3/ prevalence of home country model bc importing MS must recognize equivalence of the legal system of the exporting MS

28
Q

Characteristics of Art. 36 TFEU? (3)

A

1/ acceptable justifications of quantitative restrictions

2/ closed list

3/ narrow interpretation

29
Q

What did CJEU do in Cassis de Dijon? (2)

A

1/ restore the balance in light of almost absolute ban of national regulatory regimes entailed by Dassonville

2/ introduced concept of rule of reason (para 8) which exists in parallel of Art. 36 TFEU

30
Q

Characteristics of ‘rule of reason’ concept introduced in Cassis de Dijon? (2)

A

1/ list of justifications is not closed

2/ allows CJEU to include elements that aren’t covered by Art. 36 TFEU (e.g. consumer protection, protection envt)

31
Q

What are characteristics of negative integration? (4)

A

1/ no harmonisation at EU level

2/ striking down national laws

3/ forbidding MS to adopt national laws in certain fields

4/ ineffective when MS validly rely on public interest

32
Q

What does positive integration entail?

A

Harmonisation

33
Q

What do all ‘public interest’ tests carried out by the CJEU include?

A

Proportionality test

34
Q

What was the legal framework applicable to free movement of services before Services Directive (2006)? (3)

A

1/ Art. 56 TFEU: freedom to provide services

2/ Arts. 51-52 TFEU jo Art. 62 TFEU: exceptions (limited list)

3/ rule of reason created by CJEU

35
Q

What does introduction of Services Directive & its Art. 16 entail? (2)

A

1/ Art. 16(1)(b) codifies limited list of acceptable justifications restriction free movement of services

2/ MS cannot rely on rule of reason anymore to justify exceptions other than those listed

36
Q

Where is N.S. ruling codified?

A

Art. 3(2) Dublin III Regulation

37
Q

What does Art. 101 TFEU cover?

A

Cartel agreements

38
Q

What does Art. 102 TFEU cover?

A

Abuse of dominant market power

39
Q

Under which jurisdiction do Arts. 101 and 102 TFEU fall? (2)

A

Dual jurisdiction of

1/ EU (EC supervised by CJEU)

2/ MS (national competition authority supervised by national court)

40
Q

Why does pcple of mutual recognition apply in competition law?

A

It is assumed MS will comply with EU competition law based on the same standards as EC

41
Q

Why does pcple of mutual recognition have a different form in the field of EU competition law? (2)

A

1/ regulatory framework generally identical

2/ vertical relationship (EU-MS)

42
Q

Main concern regarding application of mutual recognition to EU competition law? (2)

A

1/ in certain MS, independence of national competition authorities is questioned

2/ can EU trust MS in such instances?