EU and international law Flashcards
What are the primary sources of international law?
- Treaties: Legally binding agreements between states or international organizations (e.g., the UN Charter).
- Customary International Law: Long-established practices recognized as binding.
- General Principles of Law: Universal legal principles, like fairness and justice, recognized across legal systems.
Who are the subjects of international law?
Subjects are entities with rights, obligations, and legal capacity under international law (international legal personality):
- States: Primary subjects with full international legal personality.
- International Organizations: Created by states (e.g., UN, EU) with independent capacity in international law.
What does the binding force of international law entail at the intergovernmental and domestic levels?
Intergovernmental Level:
- New Treaties: Binding after formal approval (e.g., by Germany’s Federal President under Article 59(1) GG) and ratification.
- Existing Treaties: States can accede and become legally bound.
Domestic Level:
- Treaties require a ratification process to be enforceable.
- In Germany:
=> Federal President’s role in ratification (Article 59(2) GG).
=> Sovereign powers transferred under Articles 23-24 GG.
How do treaties interact with domestic law in Germany?
- Treaties and international rules, once incorporated, take precedence over conflicting national laws (Article 25 GG).
- Must align with constitutional principles to retain validity.
What is the European Union (EU), and what are its main features?
An association of states (Staatenverbund) under international law.
- Main Features:
=> Market-Economy Structure: Single/internal market (Article 3(3) TEU, Protocol 27).
=> Neutrality in Economic Policy: Required by German Basic Law (GG) and upheld by the Federal Constitutional Court. - Related Treaties:
=> Euratom (1957): Nuclear energy cooperation.
=> ECSC (1951-2001): Economic integration in coal and steel.
What are the European Economic Area (EEA) and European Free Trade Association (EFTA)?
European Economic Area (EEA):
- Purpose: Extends the EU single market to Iceland, Liechtenstein, and Norway.
- Judicial Oversight: European Court of Justice (ECJ).
European Free Trade Association (EFTA):
- EFTA provides an alternative framework for countries seeking the benefits of free trade without being full EU members
- Members: Iceland, Liechtenstein, Norway, Switzerland.
- Judicial Oversight: EFTA Court.
What is the Council of Europe (CoE) and the European Convention on Human Rights (ECHR)?
Council of Europe (CoE):
- Membership: Includes EU and non-EU states (e.g., Turkey, Russia).
- Focus: Broader human rights protections.
European Convention on Human Rights (ECHR):
- Status in Germany: Treated as federal law.
- Relation to EU: Not fully incorporated into EU law (ECJ Opinion 2/13).
- Judicial Oversight: European Court of Human Rights (ECtHR), Strasbourg.
How do the EU, EEA/EFTA, and Council of Europe differ in focus and integration?
- EU: Focused on economic and political integration with binding legislation.
- EEA/EFTA: International agreements extending market benefits without full political integration.
- Council of Europe: Broader human rights focus, involving both EU and non-EU states.
What defines the EU as an association of sovereign states?
Member states delegate certain powers but remain in control of foundational decisions, including unanimous agreement for treaty changes. (Masters of Treaties)
What are Articles 23 and 24 GG in relation to the EU?
- Article 23 GG: Governs Germany’s participation in the EU, ensuring democracy and sovereignty.
- Article 24 GG: Permits Germany to transfer sovereign rights to international organizations.
How does the EU function between an international organization and a federal state?
- As an international organization, it operates under international law.
- As a supranational organization, its laws have direct binding effects on member states and citizens.
How does the German Federal Constitutional Court define the EU?
A close, permanent association of states where sovereignty remains with member states, but powers are transferred to the EU with democratic legitimacy from national governments.
What is the BVerfG’s (German Federal Constitutional Court) stance on EU institutions exceeding their powers?
- Prohibits transgressions (ultra vires)/exceeding their authority without explicit member state consent.
- Violations must be clear and significant (e.g., Judgment of May 5, 2020).
How does the BVerfG address constitutional identity in relation to EU law?
EU law must respect Germany’s constitutional identity, including fundamental principles of the Basic Law.
What is the systematic structure of EU law?
- Treaties (Primary Law): Framework of the EU’s legal system.
- Secondary Legislation: Regulations, directives, decisions, recommendations, and opinions.
- Tertiary Law: Delegated and implementing acts under Articles 290-291 TFEU.
How do regulations differ from directives in EU secondary law?
Regulations: Fully binding and directly applicable in member states.
Directives: Bind member states to objectives, requiring national implementation.
What are implementing and delegated acts in EU law?
- Implementing Acts: These are legally binding measures adopted by the European Commission to ensure the uniform application of EU laws across all member states.
- Delegated Acts: These are measures adopted by the European Commission to amend or supplement non-essential elements of existing legislation, under the authority delegated by the EU legislature.
What are general principles of EU law?
Unwritten norms like:
- proportionality
- legal certainty
- protection of fundamental rights
=> Derived from constitutional traditions and EU charters.
What are the peculiarities (Besonderheiten) of EU law interpretation?
- Multilingual Interpretation: All official language versions of EU law are equally authentic, requiring consideration of linguistic nuances.
- Systematic Interpretation: EU laws are interpreted in alignment with overarching EU objectives and principles, such as promoting integration and uniform application.
- Case Law Precedence: The European Court of Justice (ECJ) interpretations, particularly under Article 267 TFEU, are binding and set precedent for consistent application across member states.
What is the proportionality test in EU law?
- Legitimate Objective: The measure must aim to achieve a legitimate goal (e.g., public health, environmental protection).
- Suitability: The measure must effectively achieve its stated goal.
- Necessity: There must be no less restrictive alternative to achieve the objective.
- No Evaluation of Overall Appropriateness: Unlike some national systems, the EU focuses only on meeting the above criteria, avoiding broader judgments of fairness.
How does the EU Charter of Fundamental Rights influence EU law?
It centralizes protection of fundamental freedoms, reducing reliance on treaty-based protections.
What is the “primacy of application” in EU law?
EU law takes precedence over conflicting national laws, ensuring uniform application across member states (Costa/ENEL case).
What is the role of the European Council
- Sets the EU’s strategic direction, general political priorities, and objectives.
- Provides momentum (Antrieb) for EU development.
What are legislative and executive bodies of the EU
Legislative Bodies:
Council of the European Union:
- Represents member states’ governments.
- Adopts laws and coordinates EU policies.
European Parliament:
- Represents EU citizens.
- Co-legislates with the Council of the EU on most matters.
Executive Body:
European Commission (EC):
- Acts as the EU’s executive arm.
- Proposes legal acts but cannot adopt them.
- Enforces EU law and manages day-to-day operations.
What are the components of the Court of Justice of the European Union (CJEU):
- European Court of Justice (ECJ):Handles cases concerning EU law interpretation and disputes between EU institutions and member states.
- General Court (GC):Deals with cases brought by individuals, companies, and some EU bodies.
What are Financial and Auditing Bodies of the EU and their roles
European Central Bank (ECB):
- Manages EU monetary policy and the euro.
- Ensures price stability across the Eurozone.
Court of Auditors:
- Monitors the management and spending of EU funds.
- Ensures financial accountability.
What are the limited direct competences of EU institutions in administrative enforcement, and in which areas do they primarily apply?
EU institutions have restricted direct administrative powers, primarily enforcing EU law in areas with explicitly granted competence.
Examples include:
- Banking Supervision: Conducted by the European Central Bank (ECB) under the Banking Union framework.
- Competition Law: Managed by the European Commission (EC) to prevent anti-competitive practices (e.g., mergers, cartels).
- Anti-Dumping Duties: Imposed by the EC to protect EU industries from unfair trade practices.
How is EU law primarily enforced, and what principles guide the indirect implementation by Member States?
EU law is primarily enforced indirectly by Member States:
- Effective Implementation: Ensuring EU law has equivalent effects for all citizens, avoiding nationality-based discrimination.
- Directly Applicable EU Law: National procedural rules apply unless overridden by secondary EU law.
-
Transposition of Directives:
=> National rules are individually assessed for compliance with EU law.
=> May be overridden (e.g., state aid recovery under Art. 107 TFEU) if they hinder effectiveness.
The overarching goal is uniform and effective application of EU law across Member States.
What are the key features of Actions for Annulment (Art. 263 TFEU) in EU legal protection?
Actions for Annulment allow eligible parties to challenge the legality of EU acts.
- Brought Before: General Court (GC), with appeals (Beschwerden) to the European Court of Justice (ECJ).
-
Eligible Parties:
=> Privileged: Member States and EU institutions (e.g., European Commission, European Parliament).
=> Non-Privileged: Individuals or entities directly and individually affected by an EU act. - Scope: Comprehensive review of the legality of the contested act, regardless of its impact level.
What are the key features of Actions for Failure to Act (Art. 265 TFEU) in EU law?
Actions for Failure to Act provide recourse when EU institutions fail to fulfill obligations under EU law.
- Who Can Bring Action: Member States or individuals affected by the inaction.
- Purpose: To compel EU institutions to act when they are legally required to do so.
How do Preliminary Rulings by the ECJ (Art. 267 TFEU) ensure uniform application of EU law?
Preliminary rulings by the ECJ ensure uniform interpretation and application of EU law across Member States.
- Purpose: To interpret EU treaties and assess validity/interpretation of EU legal acts.
- Role of ECJ: Acts as the ultimate arbiter of EU law.
Referral Process:
- Optional Referral: National courts may request guidance.
- Mandatory Referral: Courts of last instance must refer unless the matter is clear (acte clair) or settled (acte éclairé)
What are the key features of Public Liability Actions (Art. 268 TFEU) in the EU?
Public Liability Actions allow individuals to claim compensation for damages caused by EU institutions. Key features:
- Who Can Claim: Any individual or entity harmed by unlawful acts or omissions of EU institutions.
- Purpose: To ensure accountability and provide remedies for harm caused by EU authorities.
What is the Charter of Fundamental Rights (CFR), and how does it apply within the EU?
The CFR covers right like those in the national constitution and applies when EU Institutions or Mmbers act under EU law
- It prevent conflicting national laws from applying (vertical and horizontal)
What does Art. 157 TFEU stipulate about the prohibition of sex discrimination in employee pay?
Prohibition: Ensures equal pay for equal work, forbidding sex-based discrimination.
Justifications for Unequal Treatment:
=> Permitted only under strict conditions:
- There is a genuine business need for the unequal treatment and/or the treatment is necessary to meet that need.
Positive Discrimination: Preferential treatment may be allowed for equally qualified candidates to correct imbalances (e.g., promoting gender equality in underrepresented fields).
What is the scope of protection under the Fundamental Freedoms of the EU (Art. 34 ff. TFEU)?
Factual Scope:
- Ensures cross-border freedom of movement and eliminates barriers created by discrimination and restrictive practices
Personal Scope:
- extends the protection of fundamental freedoms to private relationships where imbalance or restrictions undermine the Eu’s free movement principles
Under what conditions can Member States justify restrictions on fundamental freedoms?
Justifications for Restrictions:
- Specific limits for each freedom are defined in the TFEU.
- Non-discriminatory interventions allowed for overriding reasons of general interest, such as:
1. Public health.
2. Consumer protection.
3. Public safety.
Conditions for Justification:
Restrictions must be necessary and proportional to achieve the objective.
How do cross-border cases relate to the application of the EU’s fundamental freedoms?
Cross-Border Preference:
- Giving preference to cross-border cases over purely national cases is not discriminatory against nationals.
- Aligns with the EU’s purpose of promoting the internal market.
Suitability Question:
- Debate exists over whether certain restrictions align with the purpose of fundamental freedoms.
- Balances national interests with the EU’s goal of economic integration through a non-discriminatory internal market
What types of Member State interferences are prohibited under the free movement of goods (Art. 34 ff. TFEU)?
Prohibits any discrimination restriction or measures with an equivalent effect that hinder cross-bordder trade within the EU
Equivalent effects are regualtions hindering trade direct or indirect, for example signifcant sales regulation
- Distribution Regulations: Generally not restrictive unless they significantly hinder market access (e.g., store opening hours).
Allowd under public interest reasons as long as necessary and proportional
Under what conditions can Member States justify restrictions on the free movement of goods?
Justifications for Restrictions: Public health/safety/policy
Imperative Requirements of General Interest (case law):
- Environmental protection.
- Consumer safety.
Conditions for Justification:
- Restrictions must be proportionate and necessary.
- Must not unfairly limit trade or undermine the internal market.
What are the key features of the Free Movement of Workers and Freedom of Establishment under Articles 45 and 49 TFEU?
Free Movement of Workers:
- Workers from one Member State can work freely in another without discrimination based on nationality.
- Covers access to employment, equal working conditions, and social benefits.
Freedom of Establishment:
- Similar to the free movement of goods, prohibiting discriminatory or restrictive measures.
- Justifications (similar to Art. 12 GG): Allow limited restrictions for public safety, health, or policy.
What is the scope of Freedom of Establishment and Freedom to Provide Services under Articles 49 and 56 TFEU?
Freedom of Establishment:
- Protects the right of individuals and companies to establish and run businesses in any Member State.
- Includes forming companies, branches, or subsidiaries.
- Exception: Does not apply to sovereign activities like military or governmental duties (interpreted narrowly).
Freedom to Provide Services:
- Ensures nationals of one Member State can provide services in another without restrictions.
- Covers Active Freedom (operating across borders without establishing a business) and Passive Freedom (service recipients traveling to another Member State).
- Applies broadly to all economic activities, ensuring an internal market for services.
What does Article 63 TFEU guarantee regarding Freedom of Capital Movements and Payments, and what are its exceptions/Intervention ?
Scope: Covers all capital transactions between Member States and third countries.
Focus: Specific to capital markets and financial transactions
Member State Interventions:
- Allowed under specific conditions, such as:
=> Preventing tax evasion or financial crimes.
=> Addressing public security or order threats. - General interest-based restrictions (e.g., economic stability) remain ambiguously defined and subject to legal challenges.
