EU Law

Question 1

4 Freedoms of EU

Answer 1

1. Freedom of Goods
2. Freedom of Workers
3. Freedom of Services
4. Freedom of Capital

Question 2

Democratic Concerns in the EU

Answer 2

Craig and de Burca
1. The EU is unresponsive to democratic pressure
2. The EU is dominated by the executive
3. Distance from citizens
4. The EU is a complex organisation and it is not easy for citizens to understand.

Question 3

EU Courts

Answer 3

1. European Court of Justice - Luxembourg
2. European Court of Human Rights - Strasbourg, France

Question 4

Infringement Proceedings

Answer 4

Article 258 TFEU
- Commission can enforce EU law through infringement proceedings.
- Issue a letter of formal notice to the member State that they are in breach.
- Issue a reasoned opinion.
- Seek a declaration that the member state is in breach
- Impose penalties

Question 5

Case for Infringement Procedures

Answer 5

Commission v Ireland (Derrybrien)
- Failure to comply with 2008 judgment regarding an environmental impact assessment of the Derrybrien Wind Farm.
- Ireland was fined a €5 million lump sum penalty and a €15,000 daily penalty until they complied.

Question 6

EU Institutions

Answer 6

1. Council of the EU
2. European Parliament
3. EU Commission
4. European Council
5. ECB
6. Court of Auditors

Question 7

EU Commission

Answer 7

• EU’s administration of law and policies
• Article 17(1) TEU
• They promote the general interest and execute the budget and manage programmes
• Propose legislation and set agenda
• Its president needs a democratic mandate.

Question 8

European Parliament

Answer 8

• Article 14 TEU
• legislative and budgetary functions
• Only Directly elected part of the institutions
• Legislate with EU council

Question 9

Council of the EU

Answer 9

• Article 16 TEU
• Legislative and budgetary functions
• Policy-making and coordinating functions
• More powerful than European Parliament
• Consists of a representative of each Member State at ministerial level
• Simple majority, qualified majority vote

Question 10

EU Model of Governance

Answer 10

• Article 10 TEU: founded on a dual image of representative democracy
• 1. Direct representation of citizens in the European Parliament AND 2. indirect representation of citizens through the governments that they elect at national level that are in the European Council.

Question 11

Primacy of EU law Cases

Answer 11

1. Costa v ENEL
2. Internationale Handelsgesellschaft
3. Ciola
4. Simmenthal SpA
5. Factortame
6. Crotty
7. Pringle v The Government of Ireland
8. MJELR v WRC
9. Maastricht: BVerfG
10. Weiss: BVerfG

Question 12

Costa

Answer 12

• Teleological approach that looks at the spirit of the Treaties
• Unlike other international treaties, the EEC Treaty has created its own legal system which became an integral part of the legal systems of the Member States and which their courts are bound to apply
• permanent limitation of sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.
• EU law would be weak and inconsistent if states could consistently override EU law.
• Craig and de Burca notes this was a pragmatic and purposive judgement. It made sure that EU law could function consistently across the member states. Looks to ultimate aim of forging a new legal system.

Question 13

Internationale Handelsgesellschaft

Answer 13

• You cannot subject EEC/EU law to comply with all the Constitutions of the member states as there are conflicting national constitutions.
• EEC law must be consistent and effective across the states.
• General principle of respect for fundamental rights within EEC law
• Germany made a constitutional acceptance of the CJEU’s decision
• CJEU doesn’t in and of itself of have a lot of power to force national courts to go along with what it says.

Question 14

Ciola

Answer 14

• Argument that principle of primacy should not apply to specific administrative acts
• CJEU dismissed this. Primacy still applies where directly effective EU law is concerned.

Question 15

Simmenthal SpA

Answer 15

• Para 21: Every national court must apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it
• Lower courts can acquire measures to take jurisdiction that ordinarily would not have if not for EU law
• Critique: 1. can lead to lower courts circumventing higher courts and create tensions AND 2. it turns every court into a Union law court because of its focus on effectiveness.

Question 16

Factortame

Answer 16

• Quotas on how many fish can be caught to combat overfishing in UK.
• Merchant Shipping Act: at least 50% of a vessel had to be British owned to fish on British waters.
• HELD: The Act must be suspended regardless of national rules.
• The full effectiveness of Community law would not occur if the courts were constrained.
• Euro-sceptics said it showed that parliament was not as sovereign as they thought but the UK should have been aware of this upon joining the EU.

Question 17

Treaty of Lisbon on Primacy

Answer 17

• Declaration 17 of the Treaty of Lisbon on primacy
• Declarations are not legally binding
• in accordance with well-settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

Question 18

Primacy and Irish Law

Answer 18

Art 29.4.6° - Immunity Clause
- Any that is necessary because of EU law is valid under the Constitution. The Constitution allows for EU law to take primacy when necessary.

Question 19

Crotty v An Taoiseach

Answer 19

• Challenge that to ratify the Single European Act would be unconstitutional.
• HELD: Changes to the ‘essential scope or objectives’ of the EC require constitutional amendment.

Question 20

Pringle v The Government of Ireland

Answer 20

European Stability Mechanism did not require a referendum as it did not change the essential scope of the EU or its treaties.

Question 21

MJELR v WRC

Answer 21

• • EU law does require that any organ of the state must disapply national law in favour of EU law when faced with a conflict between the two.
• The duty to disapply national legislation contrary to EU law applies to all organs of the State.
• WRC is a body established to ensure the enforcement of EU law ⇒ it must have the power to disapply the national law if in breach of EU law.

Question 22

How are the limits of EU competence to be determined?

Answer 22

1. Maastricht: BVerfG - While the EU Treaty was not in breach of the German Constitution, it reserved the possibility that if the CJEU interpreted the treaties in a way which went beyond the scope of the treaties, it might exercise review of EU legal acts.
2. Weiss: BVerfG - German Courts criticised the CJEU. They will not use the CJEU’S reasoning where the interpretation of the Treaties is simply not comprehensible and thus objectively arbitrary

Question 23

Fabian Amptenbrink and René Repasi

Answer 23

• Although the CJEU has a very simple and absolute doctrine of primacy, in reality, there is an interrelationship and the court has to try to work in accordance with what Supreme Courts are willing to accept to some extent.
• The German Court’s willingness to accept the decisions of the CJEU is subject to its belief that the CJEU is acting within the limits of the law that apply to it.
• So there are still tensions are its future obedience to CJEU decisions.

Question 24

Direct Effect

Answer 24

How and when can you sue EU law before national courts
Invoking EU law directly before a national court

Question 25

Cases for Direct Effect

Answer 25

1. Van Gend en Loos
2. Defrenne v SABENA (II)