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Principles and Foundations of EU Law > 5 - Solidarity and Equality in EU Law > Flashcards

5 - Solidarity and Equality in EU Law Flashcards

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1
Q

Questions surrounding the concepts of equality and solidarity? (3)

A

1/ are they values and/or legal principles?

2/ are there any limits?

3/ is there a connection between the 2?

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2
Q

In which different areas of law can equality and solidarity be invoked? (4)

A

1/ citizenship

2/ internal market

3/ migration law

4/ competition law

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3
Q

Definition of ‘legal principle’? (3)

A

1/ basic norm

2/ for general application

3/ beyond a specific legal context

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4
Q

Main characteristic of legal principles?

A

They are not very context-specific

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5
Q

When can one think of a legal norm as a legal principle? (2)

A

1/ vague and tricky area

2/ treaty text can arguably matter in this regard

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6
Q

Regarding legal principles, what does the CJEU make a difference between? (3)

A

1/ general pcples of EU law

2/ other principles

3/ this is linked to hierarchy of norms in EU law

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7
Q

In which treaty provisions can one find equality? (4)

A

1/ equality in abstracto (Arts. 2 and 8 TEU)

2/ equality as democratic value, implying the EU must respect and observe equality (Arts. 4(2) and 9 TEU)

3/ equality of citizens before the law (Art. 20 CFR)

4/ arguably also Art. 18 TFEU (prohibition of discrimination on grounds of nationality)

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8
Q

EU must respect and observe equality of … ? (2)

A

1/ MS (Art. 4(2) TEU)

2/ EU citizens (Art. 9 TEU)

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9
Q

What are the 2 types of equality that can be distinguished?

A

1/ formal

2/ substantive

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10
Q

What are the 2 elements of the prohibition to discriminate?

A

1/ if situations are equal, treat them equally

2/ if situations are different, treat them differently

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11
Q

What are the different types of discrimination/ (3)

A

1/ direct

2/ indirect

3/ reverse

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12
Q

Characteristics of direct discrimination?

A

Formal limits to the application of EU law to a given situation/entity

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13
Q

Characteristics of indirect discrimination?

A

No formal discrimination but the effects of direct discrimination

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14
Q

Characteristics of reverse discrimination? (2)

A

1/ discrimination against members of a dominant/majority group in favor of minority/disadvantaged group

2/ allowed under EU law

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15
Q

What is a difficulty surrounding equality? (2)

A

1/ question of when situations are equal

2/ difficulty of determining the meaning of ‘equal’

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16
Q

What are the 2 cases related to students and equality, mentioned in the lecture?

A

1/ Dutch student transport carts => (in)direct discrimination?

2/ Access to universities (Bressol) => (in)direct discrimination?

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17
Q

When can it be considered that the pcple of solidarity is applied? (2)

A

1/ when individuals get rights in a host MS

2/ and these rights cost money

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18
Q

In which treaty provisions can one find solidarity? (3)

A

1/ in TEU common provisions

2/ in TEU Title V (external action and CFSP)

3/ in TFEU (immigration, energy, disasters)

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19
Q

What principle is also a reflection of solidarity in the EU?

A

Principle of sincere mutual cooperation between the EU and MS

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20
Q

What appears to be the most elaborate legal norm in terms of solidarity?

A

Art. 80 TFEU (migration law)

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21
Q

How can solidarity within Art. 80 TFEU be approached?

A

‘Fair sharing’ of responsibility

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22
Q

What could be considered to impose solidarity within field of EU migration law?

A

Binding mechanism for relocation

23
Q

What did CJEU rule in Slovakia and Hungary v. Council (2017)? (3)

A

1/ Council is required to give effect to the pcple of solidarity when implementing EU common policy on asylum

2/ proportionality of decision assessed in light of pcple of solidarity

3/ burdens must be divided btwn all MS as a rule bc pcple of solidarity governs EU asylum policy

24
Q

Difficulties related to solidarity and the social market economy? (4)

A

1/ can a market economy really foster solidarity?

2/ what does the term ‘social market economy’ even mean?

3/ how to balance solidarity and competition law?

4/ how to balance solidarity and free movement provisions?

25
Q

What was Brentjens case mainly about?

A

Workers solidarity (mandatory pension fund in monopolistic position, backed up by NL)

26
Q

What was the main finding of the Court in Brentjens? (3)

A

1/ solidarity in the present case requires refusal to let undertakings within the sector cherrypick the insurance pension funds they like

2/ monopoly of the fund is justified under Art. 106 TFEU

3/ competition law does not apply

27
Q

What were the 4 main questions in Brentjens?

A

1/ does Art. 101 TFEU set a competition restriction regarding collective agreement setting up a pension fund?

2/ can MS make such a collective agreement compulsory?

3/ is the pension fund an undertaking?

4/ is there an abuse of dominant position? must the pension fund comply with competition rules?

28
Q

What was the underlying question in the Laval case?

A

Should Swedish trade unions show solidarity with Latvian workers or with their own workers?

29
Q

What type of application of free movement provisions was made in Laval? (2)

A

1/ horizontal application

2/ i.e. btwn trade unions (not public authorities) and other negotiating entities

30
Q

In which instances can we ask ourselves whether solidarity was on the rise? (2)

A

1/ during financial crisis

2/ during pandemic

31
Q

What might we need for more solidarity within the EU?

A

A new social contract

32
Q

Takeaways of lecture? (4)

A

1/ equal treatment under free movement may lead to solidarity imposed on host States/their citizens

2/ solidarity is guiding pcple but elusive

3/ substance of solidarity may alter according to context

4/ solidarity is at times isolated from market rules and at times balanced with market rules

33
Q

Why was the position taken by the CJEU in para 57 of Brentjens strong?

A

It leaves measures considered to have a social purpose outside the scope of EU law

34
Q

What is the question left by para 57 of Brentjens regarding collective labour agreements with a social purpose? (2)

A

1/ do they fall outside the scope of Art. 101 TFEU by principle?

2/ does the answer to the question above vary from case to case?

35
Q

What was the underlying consideration of the Brentjens case?

A

The need to protect the vulnerable in society

36
Q

Which area of EU law does Brentjens touch upon?

A

EU competition law

37
Q

Which area of EU law does Laval touch upon?

A

Free movement law

38
Q

In Laval there was a clash between…? (2)

A

1/ free movement

2/ right to strike/right to collective action

39
Q

What is the key difference btwn Brentjens and Laval?

A

The CJEU chose a different approach regarding the extension of the scope of EU law

40
Q

Comparison Brentjens/Laval? (2)

A

1/ in Brentjens, application of Art. 101 TFEU => measure outside scope of EU law

2/ in Laval, application of Art. 56 TFEU => measure inside the scope of EU law => balancing act

41
Q

What was the result of the balancing act carried out in Laval? (2)

A

1/ CJEU privileged economic considerations over social concerns

2/ this was a deliberate choice

42
Q

In light of the Laval ruling, what does the priority of the CJEU appear to be?

A

Effectiveness of the internal market and fundamental freedom provisions

43
Q

Why are there various distinctions between status of EU citizens in Citizenship Directive (CD)? (3)

A

1/ economically inactive individuals can apply for social benefits in host MS

2/ this has costs

3/ such costs hence imply solidarity

44
Q

Main considerations surrounding EU citizenship? (3)

A

1/ status and time

2/ residence and equal treatment are closely linked

3/ if applying for social assistance, individual must not be an unreasonable burden

45
Q

What does Art. 24 of CD codify?

A

Principle of equal treatment of EU citizens legally residing in a host MS

46
Q

What does application of equal treatment (Art. 24 CD) require? (3)

A

1/ verification whether individual is entitled to reside within host MS

2/ residency linked to resources & self-sufficiency

3/ key: individual must not become an unreasonable burden on social assistance system of host MS

47
Q

What is main finding of Dano ruling & criticism? (3)

A

1/ a person, by applying for social assistance, is presumed to be an unreasonable burden

2/ this is a curious reasoning for interpretation of Art. 7(1)(b) CD

3/ this also seems to disregard solidarity

48
Q

What tension did the Wolzenburg case illustrate? (2)

A

Tension between

1/ execution of EAW

2/ respect for fundamental freedoms

49
Q

Main points of Wolzenburg ruling? (3)

A

1/ there existed a difference in treatment regarding execution EAW with respect to nationals/non-nationals

2/ this requires justification and proportionality

3/ 5-year residency requirement was found to be justified and proportionate by CJEU (prospects of reintegration, parallel with right of permanent residence if +5 years stay)

50
Q

What was Slovakia and Hungary v. Council (Asylum Quota case) about?

A

Temporary relocation mechanism redistributing refugees from Greece and Italy to other MS

51
Q

What is the Asylum Quota case a clear example of?

A

Solidarity between MS

52
Q

Main finding & uncertainty left by Asylum Quota case? (2)

A

1/ CJEU, in para 252, ruled that Council is ‘required to give effect to the principle of solidarity’

2/ however, remaining question: solidarity with whom? MS or refugees?

53
Q

Main takeaway of tutorial on solidarity?

A

Solidarity is different in the eye of the beholder

Principles and Foundations of EU Law (7 decks)

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