4 - Mutual Recognition and Autonomy of MS Law Flashcards
What are the 3 main market models?
1/ harmonisation model
2/ host country model
3/ home country model
Characteristics of the harmonisation model? (3)
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
Characteristics of the host country model? (4)
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
EU’s historical evolution regarding mutual recognition in internal market law? (4)
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)
What judgment was relevant in specifying under which conditions a measure is to be considered discriminatory against foreign products?
Dassonville (1974)
Background & finding of Dassonville ruling? (4)
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’)
What is the consequence of the inclusion of ‘indirect’ effects on trade in interpretation of Art. 34 TFEU?
This leads to a wide interpretation of which national measures fall under EU law
Aftermath of Dassonville ruling? (3)
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)
Background & finding of Cassis de Dijon (1979)? (4)
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
Reasoning of ECJ in Cassis de Dijon? (5)
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)
Characteristics of home country model? (5)
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
Basic considerations surrounding EU asylum law? (3)
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)
Important aspects of Dublin II Regulation? (3)
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
Background N.S. case? (3)
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
Findings ECJ in N.S.? (5)
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
Background to mutual recognition in EU criminal law? (3)
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
