EU Law 0 Flashcards
1
Q
Union Judicature
A
CJEU and its Article 19 TEU Courts
2
Q
EU Treaties
A
- The EEC Treaty was signed in Rome in 1957 establishing the free trade area. It created the EU Commission, Economic and Societal Committee, EU Parliament and CJEU.
- The Single European Act led to major constitutional reforms of the Treaties, completed the common market and unified the monetary policy.
- The Maastricht Treaty (TEU) created the EU in 1993.
- The Treaty of Lisbon is like a constitution and it amended the TEU and TFEU. It also relaxed the locus standi judicial review rules and incorporated the Charter of Fundamental Rights.
3
Q
European Parliament
A
- Article 14 TEU and Articles 223-234 TFEU
- Originally established as an Assembly under the founding Treaties and its members were nominated by national legislatures
- It has grown in importance through successive Treaties. Founding Treaties described it as “advisory and supervisory” but it has acquired more legislative and budgetary powers.
- Under Article 225 TFEU EP does not have a right to initiate legislation but can “request the Commission…”
- EP can suggest amendments to the Commission’s legislative proposals.
- EU voters directly elect members of the EP every 5 years.
- Article 263 TFEU - EP has unlimited locus standi to bring proceedings to the CJEU as a privileged applicant.
- Its legislative powers varies depending on the legislative procedure. This is determined by the policy area the legislation will be enacted in.
4
Q
How have the Treaties expanded the Powers of the European Parliament
A
- Before the Single European Act, EP only had the right to be consulted regarding legislation
- The Single European Act introduced cooperation, which was defunct but a stepping stone to increased legislative power, and assent/consent.
- The Maastricht Treaty introduced co-decision, which is now known as the ordinary legislative procedure, which the Treaty of Amsterdam, Nice and Lisbon kept expanding.
- Ordinary legislative procedure is the EP’s usual procedure to adopt legislation and is most important. It gives EP co-equal legislative power to Council of the EU, so EP can veto legislation. This stems from the Treaty of Lisbon.
- Consultation procedure means EP only has a right to be consulted on certain legislation and consent procedure requires EP’s consent to adopt legislation.
- EP’s increased legislative powers show a move from INTERGOVERNMENTALISM to SUPRANATIONALISM in the EU political system. It enhances the perceived democratic deficit between the EU institutions and EU citizens, in favour of EU citizens in the legislative process.
- Article 231 TFEU: Ordinarily, EP acts by an absolute majority of votes cast and the rules of procedure shall determine the quorum.
- Chalmers states that EP has many tools to hold other EU institutions to account. “It has powers of appointment and dismissal, powers of litigation and powers of enquiry.”
5
Q
EU Commission
A
- Article 17 TEU and Article 244-250 TFEU
- Commission represents the EU’s interests internationally and is known as the “watchdog” or “guardian” of the EU Treaties.
- It proposes new laws and monitors the application of EU laws. It has agenda-setting powers, manages EU policies and allocates EU funding. It is the most “federal” institution as the politically independent, executive arm.
- EP and Council can request the Commission to make a legislative proposal and the Commission can do so under Article 294 TFEU. Under the Lisbon Treaty citizens’ initiative, a million citizens from many MS can request a legislative proposal.
- Article 263 TFEU - Where necessary, it brings infringement proceedings before the CJEU against those who have breached EU law.
- Commission can formulate opinions or recommendations on matters which come within the scope of EU Treaties.
- It has a special role in regulating and ensuring compliance with competition law in the EU. This gives the Commission the power to vet all mergers with EU-wide effects and initiate proceedings against companies that violate EU Competition laws.
- Foster writes that the Commission is regarded as the most supranational institution of the EU, due largely to its independence from direct national influences.
- Each member state nominates a commissioner and there is also a president and High Representative.
- Commission acts by a majority of its members.
- Commission can enact legislation alone for state aid and to determine conditions under which EU nationals may reside in a host MS having worked there.
- Ireland’s commissioner is Mairead McGuiness, who is serving a 5 year term.
- Article 290 TFEU - it delegates quasi-legislative powers. Chalmers says this is widespread.
6
Q
Council of the EU
A
- Article 16 TEU and Articles 237-243 TFEU
- Council of the EU is the EU’s decision-maker based in Brussels. It represents Member States’ interests.
- Article 16 TFEU - Council negotiates and adopts new EU legislation and co-ordinates and makes policies. It also has budgetary functions.
- Generally, Council makes decisions with EP through the ordinary legislative procedure where Council legislates on proposals submitted by Commission.
- In certain areas, Council also uses consent procedure or consultation procedure, where EP’s role is limited under Article 289(2) TFEU.
- It has the power of final legislative decision in many areas.
- Council operates at a political level by meeting with ministers and at the working level in “comitology” through committees made up of expert representatives of each MS.
- Council mainly decides through simple qualified majority voting but it sometimes uses unanimous voting. Their vote approves virtually all legislative proposals.
- Article 290 and 241 TFEU - Council can delegate decision-making to the Commission and can request the Commission to undertake studies or legislative proposals.
- Article 237 TFEU - Council meets on its own initiative, at Commission or its members’ request or when convened by its President.
- Before Lisbon, Presidency was 6 months but now, it rotates between groups of 3 MS for 18 months at a time.
7
Q
CJEU
A
- Article 19 TEU and 251-281 TFEU
- Judicial branch of the EU under Article 19 along with the general courts and “specialised” courts
- It ensures that the law is observed when the Treaties are interpreted and applied. It ensures the law is EFFECTIVE and INTEGRATED into national law.
- The Treaty of Nice and later the Treaty of Lisbon reformed the European Courts.
- Before the Lisbon Treaty, the general court was called the Court of First Instance.
- The Treaty of Nice aimed to improve the European Courts’ efficiency and alleviate the growing burden of cases.
- The Court’s jurisdiction ensures EU law will be consistently applied at a national level.
- Article 276 TFEU - The Treaty of Lisbon gave the Courts general jurisdiction over the TFEU and TEU in new areas BUT NOT in policing.
- Article 269 TFEU - CJEU decides on the legality of an act adopted by Council.
- The CJEU will not always provide a remedy but Article 19(1) TEU states MS shall provide remedies to ensure legal protection.
8
Q
Democratic Deficit
A
- The Debate is should the EU be held accountable by indirectly elected political representatives of MS governments acting independently (realism) or should the EU have a single directly elected democratic body (federalism) acting for EU citizens?
- Originally, members of national parliaments would also be members of the EP (dual mandate). Now, EP members are directly elected.
- There is no separation of powers in EU treaties but there is an institutional balance in the EU, which evolves with each treaty revision.
- The Single European Act expanded EP’s role from a weak consultative one to more legislative. The co-operation procedure gave EP a right to a second reading of legislation. The assent procedure required EP’s assent for certain decisions like the ascension of new MS, some ECB tasks and international agreements.
- Maastricht Treaty introduced co-decision procedure for certain legislation. Treaty of Amsterdam extended this to more areas of legislation and put EP as co-legislator with Council. It gave EP the power to approve Commission appointments.
- Lisbon Treaty turned co-decision to ordinary legislative procedure, giving EP the power to veto legislation in certain areas but EP still cannot propose laws.
- Recent treaties have also enhanced protection for citizen rights through reference to the Charter of Fundamental Rights, Citizens’ Initiative, and strengthened role of national parliaments in EU law making. These have also improved the concern of democratic deficit.
- BUT ordinary voters sometimes feel they cannot effect change at EU level and there are still issues of transparency and accountability.
- Some criticise the CJEU as making law rather than interpreting it and some supranational areas increase democratic deficit.
- National courts have reduced power to review constitutionality of legislation and locus standi rules don’t exactly help.
9
Q
Implementing National Law by REGULATION
A
- Article 288 TFEU - regulations have direct effect in EU MS. They are the most direct form of EU law.
- Regulations are binding legislative acts applied in their entirety across the EU (Variola Case).
- MS must not take implementing measures to give them effect but regulations may need additional national legislation to supplement them, like penalties for non-compliance.
- Regulations apply to general categories and groups (Calpak v Commission).
- Example is GDPR
10
Q
Implementing National Law by DIRECTIVE
A
- Article 288 TFEU
- Directives are legislative acts addressed to MS setting out the aims that they must achieve
- MS must implement directives so they become part of national law. MS have a certain level of discretion when implementing.
- Van Duyn - Directives have vertical direct effect when its provisions are sufficiently clear, precise and unconditional and the transposition period has expired when the MS has not transposed it.
- Directives do not have horizontal direct effect.
- Directives are published in the Official Journal of the European Communities.
- Example is Work-Life Balance Directive.
11
Q
What are Legislative Acts
A
- Article 290 TFEU
- Legislative acts are adopted by the legislative procedure, which are ordinary legislative procedure, consent/assent procedure, cooperation procedure or consultation procedure.
- Article 263(4) TFEU - The Plaumann test for locus standi continues to apply for legislative acts
- Examples are regulations, directives and decisions
12
Q
What are Non-Legislative Acts
A
- Allow for the delegation of power via a legislative act of the EU Commission to adopt acts of general application which will supplement/amend legislative acts.
- For a non-legislative act to be adopted, a legislative act must first delegate to the Commission the power to adopt it.
- New locus standi judicial review rules for non-legislative acts (T & L Sugars) - regulatory act without implementing measures.
- Non-legislative acts are adopted other than by the ordinary or special legislative procedures
13
Q
What is a Decision
A
- Article 288 TFEU
- Decisions are issued by the EU institutions and only apply in specific cases which involve particular parties.
- They are only binding on whom they are addressed to and are directly applicable.
- Decision can be issued to one or more MS, individual, company, organisation, authority, etc.
- Decisions are published in the Offdicial Journal of the European Communities.
- Example is when Council let Croatia adopt the euro.
14
Q
What are Delegated Acts
A
- Delegated acts are non-legislative and give Commission power flowing from a specific piece of legislation. EU Commission sometimes uses delegated acts to support or amend non-essential parts of a primary act.
- EP and Council are the ones who give the power, and they can also veto the delegated acts.
- Example is deciding on the use of body scanners in airports.
15
Q
What are Implementing Acts
A
- Implementing acts legislate on how implementation should take place.
- They are purely executive in nature and normally relate to very technical areas like approval of drugs.
- The examination procedure is used for most implementing acts.
Advisory procedure is for acts regarding funding. Under the advisory procedure, Commission gives utmost regard to national experts’ advice on acts. - Example is awards of grants/funds with EU projects under Article 291 TFEU.
