ER mid term3

Question 1

What is dualism (in international lax context)

Answer 1

International law is binding ON the state => international law needs to be transposed into domestic law:
dualism Is a theory of international law whereby provisions of international treaties binding on a state do not form part of the national legal order. These provisions are only binding on the state not in the state and therefore there is a need to transpose international law into national law before it can have legal effect in the national legal order.

Question 2

What is monism (in international lax context)

Answer 2

International law is binding IN the state => International law is part of domestic legal order.
Is a theory of international law whereby provisions of international treaties binding on a state form part of the national legal order and are binding in that state. There is therefore no need to transpose international law into national law before it can have legal effect in the national legal order.

Question 3

Why is the van Gent en Loos case suchs an important one for EU-law

Answer 3

It was the first time the court of justice declared that all eu-law should have direct effect in the members states.

Question 4

What were the considerations of the court

Answer 4

• treaty more than an agreement, creates mutual obligations
• with EEG MS set new legal order of international law.
• Treaty has created its own legal system which became intergral part of legal national legal system of MS
• all EU law forms part of national law: this was created by EU law itself.

Question 5

following the van gent en loos case Eu law has direct but certain conditions necessary in the provision, what cnditions

Answer 5

• clear an unconditional
• includes ‘not a positive but a negative obligation of the member state and
• is not qualified by any reservation on the part of states which would makes its implementation conditional upon a positive legislative measure enacted under national law.

Question 6

What is the difference between vertical and horizontal direct effect

Answer 6

vertical is individual to state (ascending) or state to individual (descending). horizontal is individual to individual.

Question 7

Did van gent en loos act over vertical or horizontal, explain

Answer 7

vertical. it was a company van gent en loos (individual) who called the state.

Question 8

What was the Defreme II case and what was its imprtance

Answer 8

DefremeII case was a EU worker that argued that here contract with Sebena was contrary to the EU principle of equality. Court agreed and followed to that EU-law has also horizontal direct effect.

Question 9

What does primacy of eu law entails

Answer 9

=> supremacy of precedence

• In conflict: EU law prevails in application
• Validity of national law is not affected

Question 10

What is a very important case in the history of eu-law in the context of primacy

Answer 10

Costa/Enel

Question 11

Name some key points of the Costa/enel case

Answer 11

• Italian nationalization law energie in some artivcles in conflict with EU treaties
• Italian government: national law prevails (magister should apply only national law).
• EU court of justice: EU law prevails over national law
• Community law should apply in all states
• Community law would be meaningless if states could bypass it by national law
• Teleological rather than textual approach

Question 12

Before van gent en loos what was the point of view on supremacy of EU (EEG) law of the dutch government

Answer 12

the Dutch Government was of the opinion that supremacy of eeg law (now EU law) derived from the Dutch Constitution, see paragraph 1 of Van Gend & Loos.

Question 13

what are the two main conditions of a provision to have direct effect

Answer 13

unconditional and sufficiently precise.

Question 14

what does preliminary reference procedure entails

Answer 14

Courts of the Member States may refer questions to the Court of Justice on the interpretation of EU law and on the validity of EU law.

Question 15

What principle of eu law was esthablised by the court in the Costa/Enel case

Answer 15

the principle of supremacy of EU law, which meant that national courts must set aside national law in all instances when it conflicts with EU law

Question 16

What did the court of justice held in the 106/77 Simmenthal (Simmenthal II)case

Answer 16

that every national court must set aside any provision of national law which may conflict with EU law, whether prior or subsequent to the EU rule. It is therefore not necessary for a national court to await a decision of a national constitutional court that would set aside that conflicting provision of national law.

Question 17

Do the Member State courts accept primacy of EU law?

Answer 17

In general yes. (Netherlands is best student of the class, rusttijden arrest).

Question 18

what is the conceptual basis for the acceptance by MS of the primacy of EU law

Answer 18

ECJ: EU law independent law system. not dependent on nation law. National courts acceptance differs in the MS Most MS go lean on their own constitutions to find out if eu has primacy.

Question 19

Do Member State courts place any limits on primacy of EU law?

Answer 19

YEs, most MS have some limits and exceptions stated by their constitutional courts in primacy.