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Business Law Part 1 > EU and international law > Flashcards

EU and international law Flashcards

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1
Q

What are the primary sources of international law?

A
  1. Treaties: Legally binding agreements between states or international organizations (e.g., the UN Charter).
  2. Customary International Law: Long-established practices recognized as binding.
  3. General Principles of Law: Universal legal principles, like fairness and justice, recognized across legal systems.
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2
Q

Who are the subjects of international law?

A

Subjects are entities with rights, obligations, and legal capacity under international law (international legal personality):

  1. States: Primary subjects with full international legal personality.
  2. International Organizations: Created by states (e.g., UN, EU) with independent capacity in international law.
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3
Q

What does the binding force of international law entail at the intergovernmental and domestic levels?

A

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.
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4
Q

How do treaties interact with domestic law in Germany?

A
  • Treaties and international rules, once incorporated, take precedence over conflicting national laws (Article 25 GG).
  • Must align with constitutional principles to retain validity.
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5
Q

What is the European Union (EU), and what are its main features?

A

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.
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6
Q

What are the European Economic Area (EEA) and European Free Trade Association (EFTA)?

A

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.
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7
Q

What is the Council of Europe (CoE) and the European Convention on Human Rights (ECHR)?

A

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.
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8
Q

How do the EU, EEA/EFTA, and Council of Europe differ in focus and integration?

A
  1. EU: Focused on economic and political integration with binding legislation.
  2. EEA/EFTA: International agreements extending market benefits without full political integration.
  3. Council of Europe: Broader human rights focus, involving both EU and non-EU states.
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9
Q

What defines the EU as an association of sovereign states?

A

Member states delegate certain powers but remain in control of foundational decisions, including unanimous agreement for treaty changes. (Masters of Treaties)

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10
Q

What are Articles 23 and 24 GG in relation to the EU?

A
  • 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.
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11
Q

How does the EU function between an international organization and a federal state?

A
  • As an international organization, it operates under international law.
  • As a supranational organization, its laws have direct binding effects on member states and citizens.
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12
Q

How does the German Federal Constitutional Court define the EU?

A

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.

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13
Q

What is the BVerfG’s (German Federal Constitutional Court) stance on EU institutions exceeding their powers?

A
  • 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).
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14
Q

How does the BVerfG address constitutional identity in relation to EU law?

A

EU law must respect Germany’s constitutional identity, including fundamental principles of the Basic Law.

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15
Q

What is the systematic structure of EU law?

A
  • 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.
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16
Q

How do regulations differ from directives in EU secondary law?

A

Regulations: Fully binding and directly applicable in member states.
Directives: Bind member states to objectives, requiring national implementation.

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17
Q

What are implementing and delegated acts in EU law?

A
  • 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.
18
Q

What are general principles of EU law?

A

Unwritten norms like:

  • proportionality
  • legal certainty
  • protection of fundamental rights

=> Derived from constitutional traditions and EU charters.

19
Q

What are the peculiarities (Besonderheiten) of EU law interpretation?

A
  1. Multilingual Interpretation: All official language versions of EU law are equally authentic, requiring consideration of linguistic nuances.
  2. Systematic Interpretation: EU laws are interpreted in alignment with overarching EU objectives and principles, such as promoting integration and uniform application.
  3. 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.
20
Q

What is the proportionality test in EU law?

A
  1. Legitimate Objective: The measure must aim to achieve a legitimate goal (e.g., public health, environmental protection).
  2. Suitability: The measure must effectively achieve its stated goal.
  3. Necessity: There must be no less restrictive alternative to achieve the objective.
  4. No Evaluation of Overall Appropriateness: Unlike some national systems, the EU focuses only on meeting the above criteria, avoiding broader judgments of fairness.
21
Q

How does the EU Charter of Fundamental Rights influence EU law?

A

It centralizes protection of fundamental freedoms, reducing reliance on treaty-based protections.

22
Q

What is the “primacy of application” in EU law?

A

EU law takes precedence over conflicting national laws, ensuring uniform application across member states (Costa/ENEL case).

23
Q

What is the role of the European Council

A
  • Sets the EU’s strategic direction, general political priorities, and objectives.
  • Provides momentum (Antrieb) for EU development.
24
Q

What are legislative and executive bodies of the EU

A

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.

25
Q

What are the components of the Court of Justice of the European Union (CJEU):

A
  • 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.
26
Q

What are Financial and Auditing Bodies of the EU and their roles

A

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.

27
Q

What are the limited direct competences of EU institutions in administrative enforcement, and in which areas do they primarily apply?

A

EU institutions have restricted direct administrative powers, primarily enforcing EU law in areas with explicitly granted competence.

Examples include:

  1. Banking Supervision: Conducted by the European Central Bank (ECB) under the Banking Union framework.
  2. Competition Law: Managed by the European Commission (EC) to prevent anti-competitive practices (e.g., mergers, cartels).
  3. Anti-Dumping Duties: Imposed by the EC to protect EU industries from unfair trade practices.
28
Q

How is EU law primarily enforced, and what principles guide the indirect implementation by Member States?

A

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.

29
Q

What are the key features of Actions for Annulment (Art. 263 TFEU) in EU legal protection?

A

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.
30
Q

What are the key features of Actions for Failure to Act (Art. 265 TFEU) in EU law?

A

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.
31
Q

How do Preliminary Rulings by the ECJ (Art. 267 TFEU) ensure uniform application of EU law?

A

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)
32
Q

What are the key features of Public Liability Actions (Art. 268 TFEU) in the EU?

A

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.
33
Q

What is the Charter of Fundamental Rights (CFR), and how does it apply within the EU?

A

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)
34
Q

What does Art. 157 TFEU stipulate about the prohibition of sex discrimination in employee pay?

A

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).

35
Q

What is the scope of protection under the Fundamental Freedoms of the EU (Art. 34 ff. TFEU)?

A

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
36
Q

Under what conditions can Member States justify restrictions on fundamental freedoms?

A

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.

37
Q

How do cross-border cases relate to the application of the EU’s fundamental freedoms?

A

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
38
Q

What types of Member State interferences are prohibited under the free movement of goods (Art. 34 ff. TFEU)?

A

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

39
Q

Under what conditions can Member States justify restrictions on the free movement of goods?

A

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.
40
Q

What are the key features of the Free Movement of Workers and Freedom of Establishment under Articles 45 and 49 TFEU?

A

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.
41
Q

What is the scope of Freedom of Establishment and Freedom to Provide Services under Articles 49 and 56 TFEU?

A

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.
42
Q

What does Article 63 TFEU guarantee regarding Freedom of Capital Movements and Payments, and what are its exceptions/Intervention ?

A

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.

Business Law Part 1 (11 decks)

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