EU Law

Question 1

VAN GEND EN LOOS

Answer 1

Treaty provisions have direct effect. The underlying reason for this was that the EU constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights. Additionally it was stated that the wording of the treaty provision was what matters rather than the original intentions of its signatories. This means that a treaty provision can have direct effect even if the MS did not intend it to at the time they signed the treaty.

Question 2

SGB BELGIUM

Answer 2

Regulations are presumed to have direct effect

Question 3

FRANZ GRAD

Answer 3

Decisions have direct effect but only against those to whom the decision was

Question 4

CARP

Answer 4

Decisions cannot be invoked in a dispute between two individuals to whom the decision was addressed before the courts of their member state per

Question 5

VAN DUYN

Answer 5

Directives have direct vertical effect.

Question 6

MARSHALL

Answer 6

Directives do not have direct horizontal effect

Question 7

VON COLSON

Answer 7

Principle of indirect effect first articulated. Courts count as organs of the state for the purpose of direct effect actions

Question 8

MARLEASING

Answer 8

Even national law adopted prior to the EU legislation in question must be interpreted in conformity with EU law

Question 9

EUROPEAN ARREST WARRANT

Answer 9

The Czech Constitutional Courts interpreted the Czech constitution which said that ‘no citizen may be forced to leave his homeland’ in conformity with EU law (EU citizens, so EU is homeland, no matter whether they are tried in Belgium or Luxemburg). The German and Polish courts, who faced similar constitutional difficulties, declared that their national constitutions were incompatible with EU law and thus they stated that while they might participate in the EAW system, their national legislation would have to be amended first

Question 10

ADENELER

Answer 10

Limits to the duties of constitutional interpretation regarding indirect effect. these are that: interpretive methods used must be recognised by national law; the courts are limited by the fact that the must comply with general principles of law e.g. legal certainty and non-retroactivity; and that the courts must not interpret contra legem (decision making against the law/statute)

Question 11

COSTA V ENEL

Answer 11

(One year after Van Gend en Loos) it was held that EU law is supreme over any conflicting national laws. Subsequent national legislation encapsulating a clear expression of the will of the national legislator cannot derogate from treaty obligations

Question 12

Simmenthal

Answer 12

Courts must apply EU law in its entirety and all national judges can set aside incompatible national laws

Question 13

INTERNATIONALE HANDELSGELLSCHAFT (Primacy)

Answer 13

the CoJ held that the validity of EU measures cannot be challenged on grounds of national law rules or concepts, even if that is a violation of fundamental human rights provisions in a member state’s constitution. However the German Constitutional Court held that so long as fundamental rights protection was evidenced, they would not scrutinise EU actions in detail.

Question 14

WUNSHE

Answer 14

the German Constitutional Court accepted supremacy so long as EU law protected fundamental rights

Question 15

BRUNNER

Answer 15

The German Constitutional Court accepted supremacy provided that the EU does not go further than the powers conferred upon it

Question 16

FACTORTAME AND THOBURN

Answer 16

The UK accepted Supremacy in FACTORTAME however this was caveated in THOBURN where it held that constitutional statutes could not be impliedly repealed

Question 17

COMMUNE DI MILANO

Answer 17

Decentralisation of powers does not effect state liability. Local authorities are state organs for the purposes of direct effect

Question 18

FRANCOVICH

Answer 18

It was stated that the principle of state liability for harm caused to individuals by breaches of community law for which the state can be held responsible is inherent in the system of the treaty

Question 19

BRASSERIE DU PECHEUR

Answer 19

States that community law gives a right to reparations where three conditions are met: the rule of law infringed must have been intended to confer rights on individuals; the breach must have been sufficiently serious; and there must be a direct causal link between the state’s breach and the damage sustained by the injured party. Whether a breach is sufficiently serious depends of whether the MS or community organisation concerned manifestly and gravely disregarded the limits on it’s discretions, i.e. there must be a degree of intent

Question 20

KOBLER V REBUBLIC OSTERREICH

Answer 20

The supreme court of Austria failed to refer a question to the CoJ as it was bound to do. The courts are included in the definition of the state for state liability purposes.

Question 21

STAUDER

Answer 21

the courts made the first reference to the fact that fundamental rights are part of the basic principles of EU law. It made it clear that it would protect such fundamental rights and that any community acts that were adopted in breach of fundamental rights would be declared void. Additionally, it was held that if more than one interpretation of a legal instrument was possible, that which did not infringe fundamental rights would be adopted.

Question 22

INTERNATIONALE HANDELSGELLSCHAFT (HR)

Answer 22

the court clarified that the court would draw inspiration from the constitutional traditions of the MS in deciding which fundamental rights formed parts of the general principles

Question 23

NOLD

Answer 23

further clarified that the court would draw inspiration from International treaties to which the MS were signatory or had collaborated, most significantly the ECHR, in deciding which fundamental rights formed part of the general principles

Question 24

KADI

Answer 24

a UN sanction that was directly implemented into EU law. Mr Kadi challenged the freezing of his assets in front of the EU courts, relying on two grounds in particular; that there was no competence for the EU to adopt these measures, and that the measures adopted breached his fundamental rights. Both the general court and the CoJ found that the EU had competence to adopt the measures however the differed on whether it was possible to carry out a fundamental rights review. The CoJ stated in the strongest possible terms that the EU cannot escape their fundamental rights obligations, even in such cases where a breach might put the EU in breach of national law.

Question 25

NS

Answer 25

related to the application of a directive regarding asylum claims, the claimants challenged their deportation from the UK to Greece (first port of entry).Claimants argued that asylum conditions in Greece were sufficiently bad that deportation would be a breach of their right not to be subject to degrading treatment (protected under article 4 of the EU’s charter). The court founf that the exercise of the MS discretion constituted the application of EU law and that EU fundamental rights were to an extent applicable. Fundamental rights apply when a MS is acting within the scope of EU law

Question 26

MATHEWS V UK

Answer 26

ECtHR case- it was held that states can be in breach of the ECHR even if it is because of their compliance with EU law

Question 27

BOSPHEROUS V IRELAND

Answer 27

stated that contracting ECHR states may be liable for acts of international organisations (e.g. the EU) to which they have transferred power, however if that organisation has a system for protecting human rights comparable to the ECHR then there is a rebuttable presumption that that state has not violated the convention when it implements that organisations measures

Question 28

COMMISSION V NETHERLANDS (Defence)

Answer 28

defence that the commission delayed proceedings unreasonably compromising the ability of the MS to defends itself was accepted on principle but not on facts

Question 29

COMMISSION V BELGIUM

Answer 29

defence that the commission had given the MS too short a time to comply with its reasoned opinion was accepted

Question 30

PLAUMANN

Answer 30

Under the general test, individual concern was interpreted as meaning an act would be of individual concern if it affects them by certain aspects that are peculiar to them or by reason of circumstance from which they are different from all other persons. This did not apply to Plaumann because he was engaged in commercial activity which may at any time be practiced by any person. In other words Plaumann did not have standing because he was part of an ‘open’ group of people, because any person could, at least in theory, join that group

Question 31

INTERNATIONAL FRUIT

Answer 31

test for direct concern- has been construed to be satisfied when there is a direct causal relationship between the act in question and the effect is has on the applicant

Question 32

SALERNO V COMMISSION AND COUNCIL

Answer 32

Actions for illegality can only be brought against acts of general application and are dependent on the existence of another action pending before the court

Question 33

DORSCH CONSULT

Answer 33

Any court or tribunal may refer a question to the CoJ

Question 34

SYFAIT I

Answer 34

a court or tribunal is defined, under EU law, as being a body that: is established by law; has a permanent existence; can exercise binding jurisdiction; has a procedure that is between parties; applies the rule of law; is independent. Additionally it was held in this case that a national court can only refer a question to the court if there is a case pending before it and it is called upon to give a judgement in proceedings intended to lead to a decision of a judicial nature

Question 35

FOTO-FROST

Answer 35

national courts cannot review the legality of EU acts and that only the CoJ can declare an act invalid

Question 36

FOGLIA V NOVELLO

Answer 36

it was held that the courts would not entertain a reference where there is evidence that the parties have manufactured a dispute for the purpose of triggering a reference

Question 37

SALONIA V POIDOMANI

Answer 37

The court will not give a reference when it thinks the question is irrelevant

Question 38

CORSICA FERRIES

Answer 38

The courts will not give a reference where the question asked is not relevant to the dispute before the national court

Question 39

Lyckeskog

Answer 39

Courts that have a duty to refer include not only the highest court in the judicial system of the MS but also courts against whose decision there is no remedy in the particular case

Question 40

DA COSTA

Answer 40

The court does not have to make a reference where the question has already been answered in a preliminary ruling

Question 41

CILFIT

Answer 41

The Court does not have to make a reference where the interpretation is act eclair (free from doubt)

Question 42

LAURIE-BLUM

Answer 42

A worker is one who performs services for and under the direction of another for remuneration and for a certain period

Question 43

KEMPF

Answer 43

A part time worker is a worker if their work is effective and genuine, even if their pay is supplemented with social security or private means

Question 44

JANY

Answer 44

The elements of a self employed worker under freedom of establishment are given in this case. The provision of services must be genuine and effective, they must be outside of the employment relationship and under their own responsibility, and they must work in return for remuneration paid directly to them and in full

Question 45

COWAN V TRESOR PUBLIC

Answer 45

Article 56 TFEU includes the freedom to receive services in another MS on a non-discriminatory basis

Question 46

BOSMAN

Answer 46

indirect obstacles to free movement are contrary to EU law unless they pursue a legitimate aim and are justified by pressing reason of public interest. Under Bosman, articles 19 and 45(2) have horizontal direct effect. Bosman is a case of overt discrimination where the basis of differentiation was explicitly on the grounds of nationality

Question 47

VAN DUYN (FM)

Answer 47

Articles 19 and 45(2) have horizontal direct effect

Question 48

SK v HAMBURG

Answer 48

A loyalty scheme will be examined by the Court to see if the discrimination is objectively justified and whether it genuinely rewards loyalty to the same employer. Rejected German Govt’s justification of rewarding loyalty to the same employer because agreement covered many different employers.

Question 49

MORSON V JHANJAN

Answer 49

Reverse discrimination - situations where nationals are treated less favourably than nationals of other MS are not contrary to EU law because this is outside the scope of Art 45

Question 50

EVEN

Answer 50

Foreign workers shall enjoy the same tax and social advantages as national workers under article 7(2) of regulation 492/11. Court defined social advantages broadly to include all benefits.

Question 51

REED

Answer 51

Foreign workers shall enjoy the same tax and social advantages as national workers under article 7(2) of regulation 492/11. Social advantages include rights on cohabitation

Question 52

DEAK

Answer 52

Foreign workers shall enjoy the same tax and social advantages as national workers under article 7(2) of regulation 492/11. Social advantages include social security benefits

Question 53

CHRISTINI

Answer 53

Beneficiaries of the same tax and social advantages under article 7(2) of regulation 492/11 include workers and their family members. Held that social advantages include rail travel

Question 54

LOAMIDIS

Answer 54

Beneficiaries of the same tax and social advantages under article 7(2) of regulation 492/11 does not include those looking for work unless the benefit concerns access to the labour market

Question 55

BROWN

Answer 55

Beneficiaries of the same tax and social advantages under article 7(2) of regulation 492/11 does not include students seeking educational grants after engaging in work

Question 56

ZHU AND CHEN

Answer 56

Article 21 TFEU (EU citizens have the right to reside and move freely) includes primary care givers (in this case parents) of EU citizens

Question 57

GEBHARD

Answer 57

national measures liable to hinder or otherwise make less attractive the right of establishment must fulfil four cumulative conditions to be acceptable under EU law. They must be applied in a non-discriminatory manner. They must be justified by an imperative requirement that is in the national interest. They must be suitable for the attainment of the objective they pursue. They must not go beyond what is necessary in order to attain it

Question 58

COMMISSION V BELGIUM (FM)

Answer 58

The public service restriction applies only to posts which involve direct or indirect participation in the exercise of power conferred by public law and duties designed to safeguard the essential interest of the state and other public authorities

Question 59

BOUCHEREAU

Answer 59

In order to limit a right on the grounds of public policy there must be a genuine, present and sufficient threat to the requirements of public policy affecting onne of the fundamental interests of society

Question 60

ADOUI AND CORMAILLE V BELGIUM

Answer 60

for a restriction based on public policy to be acceptable, the measure applied must be equally repressive for nationals of the MS as to foreigners

Question 61

Rottman

Answer 61

Concerned a wholly internal situation so EU law should not have applied however German government intended to make him stateless thus depriving him of his EU citizenship conferred by article 20 TFEU and thus the situation fell within the jurisdiction of the court

Question 62

R v Saunders

Answer 62

If there is no interstate element - the so-called wholly internal situation- then national law only applies

Question 63

Collins

Answer 63

For those who are not economically active (e.g. not workers or self employed) and their families, they are not entitled to social assistance or student grants or loans. Total exclusion to the equality principle but only in respect of SA and SG&L. Host states are allowed to set proportionate criteria justified on the grounds of the need to make sure that there was a genuine link between the applicant for an allowance and the geographic employment market in question

Question 64

Grzelzcyk

Answer 64

Union citizenship is destined to be the fundamental status of nationals of the MS. Student who had previously been working to support his studies stopped working and applied for social assistance. Belgian gov refused on the grounds he wasn’t from Belgium, argued that he was a student and asking for finacial support, by definition he did not have sufficient resources. Court disagreed.

Question 65

Up to 3 month residency

Answer 65

Individuals can be refused entry/deported on any one of the three express ground: public policy, public security and public health
In respect of all three derogations the MS must also consider whether the exclusion/deportation is proportionate and compatible with fundamental rights.
Right to minimum protection and ability to reaply after 3 years

Question 66

3 months to 5 years

Answer 66

between three months and five years the only grounds that the state can invoke to justify deportation are public policy and public security. For those deported in this time frame the state must also take into consideration not only fundamental rights, but also degree of integration in the host state and the extent of their links with their country of origin

Question 67

5 years +

Answer 67

Those with permenant resident status and who have been resident in the Uk for 5-10 years can only be deported for serious grounds of public policy (serious threat to the fundamental interests of society
Those who have resided in the UK for over 10 years they can only be deported on imperative grounds of public security, subject to tests on human rights and degree of integration