EU Law 1 Flashcards
1
Q
How was the EU established?
A
- The EEC was established by the Treaty of Rome in 1957, which aimed to create a COMMON MARKET and promote ECONOMIC COOPERATION among European countries.
- However, the founding treaties did not include explicit provisions for the protection of fundamental rights.
- Initially, 6 countries became the EEC and sought to create economic integration beyond the coal and steel sector
- EU was established in 1993 by the Maastricht Treaty
2
Q
EU Charter on Fundamental Rights
A
- Drafted and officially ‘proclaimed’ in 2000. Elevated to Treaty status through its annexation to the Lisbon Treaty.
- It has a list of fundamental rights including civic, social, political and economic rights.
- Its rights and freedoms fall under Dignity, Justice, Citizens’ rights, solidarity, equality, freedom.
- Art 51(1) Charter: Applies to all EU institutions and member states when they are implementing EU law and in the context of action.
- Art 6 TEU makes it clear that it did not replace case law on the general principles but adds to it.
- Has explanatory notes
3
Q
Evolution of Fundamental Rights
A
- The Convention of Human Rights was drafted in 1950 by the Council of Europe. Entered into force in 1953. Led to European Court of Human Rights.
- European Convention on Human Rights is
generally held to be the minimum threshold in terms of standards to be applied. - Article 6 of the TEU confirmed that fundamental rights are protected under EU law. It was quite a weak provision as it was non-justiciable.
- Member States thought that a detailed positive protection of fundamental rights in the EU was necessary.
- After the Treaty of Amsterdam, Article 7 of the TEU allowed Council to suspend Member States’ EU rights where they committed persistent and serious breaches of the fundamental rights of EU law.
- Then, the European Charter of Fundamental Rights was proclaimed.
- Member States were going to introduce the Charter in Part 2 of the EU Constitution but the Constitution was rejected.
4
Q
Fundamental Rights Cases
A
- Costa V ENEL
- Stauder
- Internationale Handelsgesellschaft
- Kadi I
- Hauer
- Aranyosi / Căldarăru
- Digital Rights Ireland
- Scottish Ministers
- Fransson
- Glatzel
- Egenberger
- Bosphorous v Ireland
5
Q
Costa v ENEL
A
- Italy nationalised its electricity system and Mr Costa objected to this and refused to pay his electricity bill and was taken to court
- CJEU held that the EEC Treaty has created its own legal system which … became an integral part of the legal systems of the Member States. Thus, Member States must limit their sovereign rights in certain areas.
6
Q
Stauder
A
Even though fundamental rights were not mentioned in the original Treaties, they were still part of the general principles of EU law.
7
Q
Internationale Handelsgesellschaft
A
- Conflict between EU law and German constitutional law case
- Created a possibility to challenge EU ACTIONS on the basis that they breach fundamental rights.
- A technical part of EU law it that it takes PRECEDENT over DOMESTIC RIGHTS LAW BUT the protection of fundamental rights is a general principle of law that must be RESPECTED in the actions of the EU.
- German constitutional court said as long as fundamental rights protection in the EU does not fall below that of the German Constitution, it would not scrutinise EU action in detail (Solonge II)
8
Q
Kadi I
A
- Applicant was placed on a UN Security Council
Committee list, and his financial resources had been severely limited as it was alleged that he had
links to Al Qaeda. - CJEU Struck down a regulation for breach of fundamental rights.
- The CJEU mentioned the AUTONOMY of the EU legal system and the CENTRALITY of fundamental rights as GENERAL PRINCIPLES of Union law.
9
Q
Hauer
A
- EU imposed limitations on wine production
- CJEU held that property rights exist in EU law but can be subject to limitations.
- The CJEU consulted different member states constitutions to arrive at this conclusion.
- The critique of this was it can lead to conflict of laws and law is constantly changing.
- It led to a debate about the need to define fundamental rights protected by EU law and then the EU Charter.
10
Q
Craig and de Burca on the EU Charter
A
The adoption of the EU Charter represents a SIGNIFICANT STEP forward in the protection of fundamental rights in the EU.
They also note that CHALLENGES REMAIN, particularly in ensuring the EFFECTIVE IMPLEMENTATION and ENFORCEMENT of fundamental rights in practice.
11
Q
Aranyosi / Căldarăru
A
- The EU makes extraditions of suspects easier through the European arrest warrant so if one member state has one, the other member states must abide. The applicant did not want to go from Germany to a Romanian prison.
- The EU Charter applied. The suspects should not be returned if there are ‘substantial grounds’ to believe that they would incur ‘a real risk’ of being subject to inhuman or degrading conditions.
12
Q
Digital Rights Ireland
A
- A Directive regulated Internet Service Providers’ storage of telecommunications data and could be used to fight serious crime in the EU.
- CJEU held that this violated fundamental rights under the EU Charter (Art 7 and 8) - the right to respect for private life and protection of personal data.
- Article 52 Charter: MANY of the fundamental rights are NOT ABSOLUTE and have limitations.
13
Q
Scottish Ministers
A
When implementing a DIRECTIVE, member states must respect fundamental rights as GENERAL PRINCIPLES of EU law as far as possible.
14
Q
Barnard and Peers on the EU Charter
A
Barnard and Peers stated that 1. the more EXTENSIVE the JURISDICTION of the CJEU,
2. the more ENTHUSIASTIC its protection of individuals, and
3. the more pronounced the INTRUSION on national law.
15
Q
Scope of Application of EU Charter
A
- When acting within the scope of EU action (protection from oppressive actions) and
- Where the MS is acting in certain circumstances
- When Member States are implementing an EU measure that is based on the protection of fundamental rights (Rutili) or any EU measure (Wachauf).
- When Member States are implementing EU law or trying to lawfully escape the OPERATION of EU law (ERT).
16
Q
Fransson
A
- A man fishing in Sweden near the border of Finland was subject to a tax surcharge & criminal prosecution for VAT tax fraud.
- He argued it breached his right not to be tried twice for the same offence.
- HELD: Since part of the revenue from VAT goes to the EU, the Charter could apply. The criminal penalties were different so there was no breach of Art 50.
- Case criticised for stretching the boundaries of EU law too far to protect fundamental rights.
- Berliiz Investment Fund involved a Directive that did not make express provisions for penalties to be imposed so laws relating to penalties are not within the scope of EU law.
17
Q
Socio-Economics Rights Issue
A
- Some member states do not have socio-economic rights in their constitutions so Art 52(5) of the EU Charter shows that principles in the EU Charter do not give rise to free-standing rights.
- Legislation may be adopted to further implement the aims of principles.
- The charter does not say which provisions are rights and which are principles but leaves it to courts to decide.
- Barnard and Peers highlight that a threat to democracy, fundamental rights, and the rule of law, even in one state, considerably weakens and threatens the functioning of the EU.
- Barnard and Peers highlight that on the one hand, because of the EU’s multi-layer and sui generis nature, the EU is unable to uphold its foundational values against a member state. On the other hand, a threat to democracy, fundamental rights, and the rule of law, even in one state, considerably weakens and threatens the functioning of the EU.
- Craig and de Burca state that the CJEU has been instrumental in the development of the EU’s legal framework for protecting fundamental rights but require that individuals have access to EFFECTIVE REMEDIES to protect their fundamental rights.
18
Q
Glatzel
A
- An EU Directive disqualified the applicant from DRIVING LORRIES as she had LOSS OF VISION in one eye. It was based on safety grounds in case she randomly lost sight in the other eye.
- He said it hindered his integration into the labour market and discriminated based on his disability.
- The courts implicitly said it was a principle, but not an enforceable right.
19
Q
Egenberger
A
- Not hired for a research position in an organization with a religious ethos since it was required for her to have a religious ethos. She said it was discrimination based on religion/belief prohibited by Art 21 of the EU Charter.
- HELD: An individual can go to their domestic courts and invoke article 21 of the charter.
- This obligation is more precise and fleshed out in legislation which could have been a factor in the court’s decision.
20
Q
Divergence between ECHR and EU Charter
A
- Art 6(2) TEU: If there is a divergence in rights in the ECHR and EU Charter, the EU Charter would accede to the ECHR
- Art 52(3) Charter: Rights in the charter that correspond to the ECHR shall have the same meaning and scope as the ECHR.
- Art 52(4) Charter: European courts will not recognise a fundamental right in question unless it exists in most of the national laws of Member States (AM & S).
21
Q
Bosphorous v Ireland
A
- When states are implementing EU law, there is a presumption that it is compatible with EU rights, which is rebuttable.
- Presumption that EU law provides equivalent protection for fundamental rights as domestic law, which is rebuttable.
- “General principles of law” would prevail over a EU measure, should there be a conflict.
22
Q
What are the General Principles of EU Law
A
- Fundamental Rights
- Legitimate expectations (Mulder)
- Proportionality (Fedesa)
- Legal Certainty (Racke)
- Non-discrimination (Ruckdeschel)
- Subsidiarity
- Transparency
- Article 263(2) TFEU: “any law relating to the application of the Treaties”
- Secondary legislation may be struck down if it is incompatible with the general principles. They confer standalone rights on individuals.
23
Q
Legitimate Expectations
A
- Stems from German law that the law should not be any different from what one might reasonably expect.
- Where national laws recognise this principle, it will protect against individual measures but EU law extends it to legislative acts
- When a Community law measure takes effect, people acting under the old law should be temporarily exempt from the new measure (Toepfer II Case)
- Mulder allowed the applicant to invoke it where his milk quota would be negatively affected.
- In Carbogani and Lucchini, the EU Commission had not yet taken action against a long-standing breach of EU law or sent a comfort letter stating no action would be taken so no legitimate expectation created.
- In L’Oreal, the Advocate General found that in the absence of new information or a change in the law, the files of cases in which comfort letters were sent should not be reopened.
- Legitimate expectation is not absolute and can be subject to other principles like public policy (Luhrs Case).
- A chance of an expected result happening is not enough to create a legitimate expectation and The change in legislation must not be foreseeable when protection is initially claimed and worth protecting (Deuka/Mackprang Case)
24
Q
Proportionality
A
- Article 5 TEU: “Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”
- Proportionality test is usually used to challenge measures adopted by the EU institutions but may also be invoked to challenge MS actions.
- Test: an act pursuing a legitimate objective must be suitable and necessary to achieve the objective and must not impose an excessive burden on the individual.
- The intensity of judicial review of EU measures will vary depending on the nature of the act challenged. Generally, they use a strict standard of review where a measure infringes an individual’s rights or imposes a penalty/undertaking on an individual.
- Proportionality is usually challenged in staff cases (Council v Hautala) and competition law.
- CJEU shows deference where EU institutions are exercising their discretionary powers and making policy decisions (Fedesa Case).
- Cassis de Dijon Case held that Labelling disclosures rules must be proportionate to the aim pursued.
25
Q
Legal Certainty
A
- Racke is the key case where EU Commission introduced a system of financial compensation for a particular product but then changed the amount of compensation with retroactive effect, from 14 days before they were published.
- CJEU held the basic principle of non-retroactivity applied under EU law. A measure should not apply to those concerned before it was published. BUT in exceptional cases like this, the purpose to be achieved required retroactive measures as long as their legitimate expectation is respected.
- CJEU will be reluctant to dis-apply the principle of legal certainty where a penalty would be retroactively imposed on an individual under a new action (Kent Kirk).
- Heinrich Case states the rationale for legal certainty is that individuals can ascertain unequivocally what their rights and obligations are and take steps accordingly.
26
Q
Non-Discrimination
A
- Initially stems from Defrenne v SABENA based on sex discrimination but it expanded now like Mangold on age discrimination in employment.
- Defined as unequal treatment in situations which are identical or comparable.
- Embodied in many articles like Art 18 and 19 TFEU and Article 21 Charter.
- Reed Case: It was contrary to EU law that the rights of unmarried partners were not recognised in cases where the partner was foreign.
- Non-discrimination also applies to the origin of goods and services.
- Schermers says its articles are “Merely a specific enunciation of the general principle of equality” which is a fundamental principle of Community law (Ruckdeschel Case).
- Prima facie discrimination must be justified on objective grounds and discrimination cannot be arbitrary (Kendermann/Union de minotiers de la Champgane Case).
27
Q
What is Direct Effect
A
- “Direct effect” allows individuals to rely upon EU law and invoke it directly before their national courts.
- There are types of direct effect: vertical and horizontal. Vertical direct effect is between a private party and a member state while horizontal direct effect is between private parties.
28
Q
Direct Effect Cases
A
- Van Gend en Loos
- Defrenne v SABENA II
- Van Duyn
- Ratti
- Inter-Environnement Wallonie
- Bosman
- Egenberger
- Marshall 1
- Faccini Dori
- Foster v British Gas
- Farrell v Whitty
29
Q
Van Gend en Loos
A
- Established the doctrine of direct effect
- A Dutch company imported chemical substances from neighbouring States into the Netherlands.
- The Dutch Customs and Excise Administration charged the company a Custom duty of 8% on the imported substances. The company wished to obtain a reimbursement.
- HELD: There was direct effect of Art 30 TFEU using a teleological approach.
- TEST in Reyners Case: Direct effect of treaty provisions occurs where: 1. the provisions of the treaty are clear, precise and unconditional AND 2. the provisions are not dependent on any further action by MS or EU institutions.
- ‘The Community constitutes a new legal order of international law… States have limited their sovereign rights, albeit within limited fields’.
30
Q
Defrenne v SABENA II
A
- Female Air stewardesses paid less than Male air stewards in the airline SABENA. No Belgian law prohibited this.
- HELD: Art 157 TFEU stated that men and women should receive equal pay for equal work. It was sufficiently clear precise and unconditional.
- The application of this provision was not always and in all circumstances going to be clear but here, it was.
- Following Van Gend en Loos, Direct effect of other types of legislation was eventually codified in Art 288 TFEU.
31
Q
Legislative acts and Direct Effect
A
- Legislative acts ARE regulations, directives and decisions.
- Primary law such as treaties and charters are superior to them.
- Regulations automatically become part of a member state’s laws. With directives, national authorities can decide on the choice of form and methods and have a certain period to do so. A decision is binding in its entirety.
- Direct effect of legislation is codified in Article 288 TFEU.
32
Q
Direct Effect of Directives
A
- when it comes to direct effect of directives, it becomes a bit more complicated because it requires implementing measures by a member state.
- Stephen Weatherill mentions that there is a GENERAL PROBLEM of INTERRELATION of national law with the EU legal order. They are reliant on state implementation.
- Directives require implementing measures and the CJEU in Van Duyn addressed direct effect of directives.
33
Q
Van Duyn
A
- Dutch woman who wanted to work for the Church of Scientology in the UK was refused entry. Sought to rely on Directive 64/221/EEC on restrictions to free movement.
- HELD: If a directive hasn’t been implemented correctly by member states, the member state itself should not be able to profit from its own failure to implement the directive. Set a new criteria for direct effect of directives.
- Direct effect of a directive occurs where: 1. the provisions of the directive are clear, precise and unconditional AND 2. the time limit for implementation has expired.
- Professor Rasmussen (Danish) condemned it as a case of ‘revolting judicial behaviour’.
- F. Mancini stated that the CJEU was guided by political considers, such as the intention of by-passing member states in a strategic area of law-making and assuring respect for the rule of law.
34
Q
Ratti
A
- Concerned the labelling of solvents. Ratti could not rely on the Directives until the implementation period expired.
- The deadline had not expired yet and it was still in the period of implementation.
35
Q
Inter-Environnement Wallonie
A
- Created an exception to Ratti. During the implementation period, states must refrain from taking any MEASURES SERIOUSLY LIABLE to COMPROMISE the result prescribed.
- Was the national measures intended to be the FINAL IMPLEMENTATION of the directive?
- Here, the measure adopted was only months before the deadline.
36
Q
Horizontal Direct Effect
A
- Craig and De Burca describe horizontal direct effect as the ability of individuals to invoke EU law in legal disputes with other private parties, such as companies or other individuals.
- It has been the subject of much debate and controversy within EU law, with its SCOPE and APPLICATION.
- Some say it ensures EU law is FULLY EFFECTIVE and individuals can rely on EU protections while other say that it would UNDULY INTERFERE with the AUTONOMY of private parties and open floodgates.
37
Q
Bosman
A
- Concerned the payment of TRANSFER FEES for SOCCER players.
- Bosman tried to invoke Art 45 TFEU against another private party.
- HELD: He could invoke HORIZONTAL DIRECT EFFECT OF A TREATY.
The courts must ensure the EFFECTIVENESS of EU rights so it extends to private organizations. It avoids INEQUALITIES between states.
38
Q
DIRECT EFFECT
Egenberger
A
- Woman with no religious beliefs that applied for a job with an organisation with a religious ethos and was not considered for the job because she had no religious beliefs. It was only open to Christians.
- She could not rely on horizontal direct effect of a directive but could rely on horizontal direct effect of the EU Charter.
- The charter has the same legal status as the Treaty.
- Note the rights vs principle distinction. The provisions that give rise to individual rights in the charter are enforceable, even through horizontal direct effect.
39
Q
Argument for Horizontal Direct Effect of Directives
A
- there is no difference in practice from other EU instruments. Since we expect member states to follow regulations like the GDPR automatically, they should also automatically follow things in Directives.
- Citizens should be able to enforce directives which confer additional rights like the work-life balance directive against their employer.
- Rights should not vary between public & private bodies since the distinction is often blurred (e.g. employment rights). Example is HSE nurse vs. private hospital nurse.
40
Q
Argument against Horizontal Direct Effect of Directives
A
- it would be difficult and a burden for individuals and private actors to know their legal obligations and what directives apply
- directives are addressed to states not individuals
- individuals cannot know faults in national implementing legislation.
- The CJEU decided not to allow horizontal direct effect of directives.
41
Q
Marshall
A
- UK law had different retirement ages for men and women. Applicant working for NHS argued that it breached the Equal Treatment Directive.
- HELD: Dismissing women based on a different age from men was sex discrimination.
- A directive is addressed to a member state, NOT INDIVIDUALS so they do not give rise to directly effective rights against private organisations or individuals.
42
Q
Faccini Dori
A
- Affirmed Marshall concerning a Directive with cooling off for contracts negotiated away from business premises.
- AG LENZ asked the CJEU to OVERRULE Marshall but they refused.
