Basic notions and nature of the Eu legal order - L2 Flashcards
Example for how juidicial worlds of EU and national world are combined - Austrian law and EU law
Under Austrian law, Good Friday was a (paid) public holiday for
members of four churches only (for members of the Evangelical
Churches of the Augsburg and Helvetic Confessions, the Old
Catholic Church and the United Methodist Church). If, however, members of those churches work on that day, they are
effectively entitled to double pay.
Mr Markus Achatzi is employed by
Cresco Investigation GmbH (a security
and detective Agency). Mr Achatzi
does not belong to any of those four
churches. Consequently he did not
receive a paid holiday nor was he paid
double for working on Good Friday
in 2015.
–> Austrian law: § 7 Abs. 3 des österreichischen Arbeitsruhegesetzes:
„ Für Angehörige der evangelischen Kirchen AB und HB, der Altkatholischen Kirche und der Evangelischmethodistischen Kirche ist auch der Karfreitag ein Feiertag.“
+ 9 Abs. 5 des ARG: „ Der Arbeitnehmer, der während der Feiertagsruhe beschäftigt wird, hat außer dem Entgelt nach Abs. 1 Anspruch auf das für die geleistete Arbeit gebührende Entgelt, es sei denn,
es wird Zeitausgleich im Sinne des § 7 Abs. 6 vereinbart.“
–> EU law: Article 21 of the Charter: ‘Any discrimination based on any ground such as sex,
race, colour, ethnic or social origin, genetic features, language, religion or belief,
political or any other opinion, membership of a national minority, property,
birth, disability, age or sexual orientation shall be prohibited.’
Directive 2000/78 (establishing a general framework for equal treatment in
employment and occupation)
Article 2 (2) (a) direct discrimination shall be taken to occur where one person is
treated less favourably than another is, has been or would be treated in a
comparable situation, on any of the grounds referred to in Article 1 (… which
includes religion or belief)
Article 7 (Positive action): “With a view to ensuring full equality in practice, the
principle of equal treatment shall not prevent any Member State from
maintaining or adopting specific measures to prevent or compensate for
disadvantages linked to any of the grounds referred to in Article 1.”
a) Substance of the claim?
b) Procedure to be followed by Herr Achatzi
in order to get paid double (the outstanding
EUR 109.09 for having worked on 3 April
2015)?
Basic notions of EU law
- Brussels is european capital, bc it was between france and germany and accessible (in 50s couldn’t be france nor germany)
- European council= state of heads, so elected by the people ; parliament= directly elected; commission= not elected by the ppl
- Last treaty reform= in 2007
- Theres also criticism of the EU (takes away too much sovereignty, FRONTEX, not democratic enough, impossible to change, too expensive to fund, some members pay too much into the budget etc.) 🎆
- Direct effect= EU direct enforcement by and before national bodies (default national procedural autonomy)
- EU law has primacy (EU law over national law) (in case of conflict, EU law prevails, even over constitutional law
The characteristics of the EU system
Direct enforcement by and before national bodies
(„two hats“ of national institutions)
=> (default
national procedural autonomy
=> direct effect
In case of a conflict, EU law has primacy
=> the principle of primacy
Cooperative Federalism (not „federal isolation“ – e.g.
USA) in the Member States = Member States´
authorities (judicial, administrative) applying rules of
boths systems
Is EU law PIL?
Key Notions:
Per se nothing that groundbreaking that would be unheard
of in either PIL or municipal legal systems (e.g. direct effect ≈
self-executing treaties; primacy of EU Law ≈ monist
municipal legal systems ….)
… It is rather the unique mixture and intensity of various
elements that indeed made EU/EC legal order to an unique
blend, a sui generis legal system.
A/ Union method (decision-making within the organisation)
B/ Supranationality (nature of the legal system and its direct
relation to individuals)
(EU did not invent most concepts, so they have already been seen in PIL (ex: human rights convention of EU normal treaty) , but the mixing of these laws makes EU law a sui generis legal system)
The Union Method
- Laws are created internally, by the institutions established by the
Treaties, with the right of legislative initiative vested within the
(instead of the MSs) - Qualified majority voting in the Council (instead of unanimity)
- Parliament as full co-legislator (instead of pure representative body
or executive at the int. level) - Direct enforceability (instead of ratification and freedom of choice
in implementation) - Full judicial review by the CJEU and the national courts (instead of
no court/arbitration/and judgments requiring implementation)
Supranationality
Fusion of EU law and national laws; for the purpose of
national application, they become one.
- The individual (physical and legal persons) are in the middle
of it all; primacy of EU law means direct and immediate
enforcement in the MSs.
Key Elements:
- Primacy of EU law
- Direct effect (direct applicability) at the national level
- National procedural autonomy (institutional and procedural)
- All of it embedded in protection of fundamental rights under
the Charter (the MSs in the implementation of EU law – Art.
51(1) Charter)
The Constitutional Moments I:
Van Gend (Case 26/62) –
Reclassification of a chemical for the
purpose of import duty. But, standstill
clause in Article 12 EEC (Member States
shall refrain from introducing between
themselves any new customs duties on
import or exports or any charges having
equivalent effect, and from increasing
those which they already apply in their
trade with each other.)
May a company invoke
internally, before the courts
of a MS, provisions of the
EEC Treaty?
Yes, we can …
The objective of the EEC Treaty, which is to establish a Common Market,
the functioning of which is of direct concern to interested parties in the
Community, implies that this Treaty is more than an agreement which
merely creates mutual obligations between the contracting states. …
The conclusion to be drawn from this is that the Community constitutes
a new legal order of international law for the benefit of which the states
have limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only Member States but also their
nationals. Independently of the legislation of Member States, Community
law therefore not only imposes obligations on individuals but is also
intended to confer upon them rights which become part of their legal
heritage. These rights arise not only where they are expressly granted by
the Treaty, but also by reason of obligations which the Treaty imposes in
a clearly defined way upon individuals as well as upon the Member
States and upon the institutions of the Community.
and Art. 12 is directly effective
The wording of Article 12 contains a clear and unconditional
prohibition which is not a positive but a negative obligation. This
obligation, moreover, is not qualified by any reservation on the
part of states which would make its implementation conditional
upon a positive legislative measure enacted under national law.
The very nature of this prohibition makes it ideally adapted to
produce direct effects in the legal relationship between Member
States and their subjects.
The implementation of Article 12 does not require any legislative
intervention on the part of the states. The fact that under this
Article it is the Member States who are made the subject of the
negative obligation does not imply that their nationals cannot
benefit from this obligation.
The Constitutional Moments II:
Costa/Enel (Case 6/64)
What shall a national judge do if a MS
subsequently defaults on its obligations arising
under the Treaty? Adopts internal legislation
incompatible with EC Treaty? (National) lex
posterior shall prevail (implied repeal)?
By contrast with ordinary international treaties, the EEC Treaty has created its own
legal system which, on the entry into force of the Treaty, became an integral part of the
legal systems of the Member States and which their courts are bound to apply.
By creating a Community of unlimited duration, having its own institutions, its own
personality, its own legal capacity and capacity of representation on the international
plane and, more particularly, real powers stemming from a limitation of sovereignty or
a transfer of powers from the States to the Community, the Member States have limited
their sovereign rights, albeit within limited fields, and have thus created a body of law
which binds both their nationals and themselves.
The integration into the laws of each Member State of provisions which derive from the
Community, and more generally the terms and the spirit of the Treaty, make it
impossible for the States, as a corollary, to accord precedence to a unilateral and
subsequent measure over a legal system accepted by them on a basis of reciprocity. Such
a measure cannot therefore be inconsistent with that legal system. The executive force
of Community law cannot vary from one State to another in deference to subsequent
domestic laws, without jeopardizing the attainment of the objectives of the Treaty …
It follows from all these observations that the law stemming
from the Treaty, an independent source of law, could not,
because of its special and original nature, be overridden by
domestic legal provisions, however framed, without being
deprived of its character as Community law and without the
legal basis of the Community itself being called into question.
The transfer by the States from their domestic legal system to
the Community legal system of the rights and obligations
arising under the Treaty carries with it a permanent limitation
of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot
prevail.
Supranationality : columbus egg
Primacy + Direct Effect(both
autonomously defined) = a radical,
but extremely efficient way of
solving the eternal question of
proper implementation of PIL
within the legal systems of the MS)
Cf. the alternatives
(x direct access to rights and
remedies x traditional endless
debates in PIL on state liability,
inclusive the national
implementation of the ECHR and
the ECtHR judgments)
The Overall Enforcement Picture
1/ Limited EU Own Enforcement (only specifically
attributed, such as elements of COMPET)
2/ For all the rest = cooperative/dual federalism
(decentralized) – cf. USA and CH
– national institutional and procedural autonomy,
with caveats (equivalence and effectiveness)
- Advantages (reach, scope, close to citizen …)
- Disadvantages (can there truly be „a servant of two
masters“ …?)
Structural Principles of the Union (I)
- Principle of conferred powers (Art. 5 (2) TEU) ((EU can only be active, in areas when there is confidence of MSs, meaning u need treaty basis for regulation you want to adopt)
- Subsidiarity (Art. 5 (3) TEU)
- Proportionality (Art. 5 (4) TEU)
- Loyal and sincere cooperation
- vertical – Union-MS (Art. 4 (3) TFEU)
- horizontal (and the principle of the instititutional balance –
a.k.a. „separation of powers, version „light““) (Art. 13 (2)
TFEU)
Structural Principles of the Union (II)
- Union values (Art. 2 TEU)
- An Union of Fundamental Rights and their respect in
any Union activity (Art. 6 TEU + Art. 51(1) Charter) - Union citizenship and prohibition of discrimination,
rights of participation for the Union Citizens (Arts. 20
– 25 TFEU) - Multilingualism
Union´s Multilingualism
24 Official Languages (!) of the Union (Art. 55 TEU, Reg 1/1958)
(cf UN = 6; Council of Europe = 2)
- the right of every citizen to address the EU institutions in any
official lanauge and get an answer in the same language (Art. 24
TFEU)
- All binding legislation published in all 24 official languages
(incl. Maltese and Irish)
All languages are equal! Equal authenticity. Prohibition of
isolation and majorisation of languages, inclusive in domestic
interpretation of EU law.
Costs and quality. Formal side and reality. The future? General vs.
specific regimes (EUIPO, the European Patent …)
How close to the citizen is close
enough? The idea of Citizen´s Initivate
The idea of participatory democracy in the Lisbon Treaty.
Art. 11 (4) TEU - one million EU citizens from at least one
quarter of the MS may ask the Commission to propose to the
Union legislator the adoption of a legal act (within the powers
and competence).
Is the Commission obliged to follow the initiative
(legislatively) …? (Cf. C-418/18 P, Puppinck v Commission) -
“One of Us” (to stop funding embryo research within the
Union and any development aid outside).
