EU Law Doctrines Emerging from ECJ Case Law

Question 1

Is EU law national law, international law, or something else?

Answer 1

Something else - a new legal order
Van Gend Loos
Costa v ENEL

Question 2

Does EU law confer upon individuals rights that can be maintained before national courts/rights that national courts can enforce?

Answer 2

Yes
Van Gend Loos

Question 3

Which takes precedences when there is a conflict between EU law and national law?

Answer 3

EU law, assuming a relevant competency is at stake.

Question 4

Name six important outcomes from the Van Gend Loos case

Answer 4

1. It established EU law conferred rights on the individual
2. It established the EU doesn’t just have Member States as subjects, but each Member State’s individual citizens too
3. It created a new enforcement mechanism for EU Law
4. It ensured the uniform nature of EU law
5. It gave national courts the new job of enforcing EU law
6. It kept the momentum of integration going

Question 5

What were two important outcomes about the Costa v ENEL case? (Nationalised Italian energy bill case)

Answer 5

1. It reiterated the doctrine of direct effect
2. It asserted the supremacy of EU as necessary to ensure consistency between member states. (Otherwise EU law would be “merely contingent.”)

Question 6

What was two important outcomes of the International Handels (Solange I) case (deposit retention scheme to regulate the cornflour market)?

Answer 6

1. The ECJ asserted fundamental national rights cannot prevail over EU law. To allow such a thing would “deprive EU law of its character and call the EU’s existence into question.”
2. EU law MUST respect national fundamental rights guarantees.

Question 7

What were two important outcomes of the Simmenthal case? (Fees for the importing of beef from France into Italy)

Answer 7

1. EU law renders any conflicting provision of national law automatically invalid. Such national law must be set aside.
2. Disapplication of Italian law in such an instance did not have to be referred to an Italian Constitutional court, but could be handled by a lower court.

Question 8

What is a key takeaway from the Poplovski case?

Answer 8

Only directly applicable EU laws prevail over national law.

Question 9

What is a key takeaway from the Incoge case?

Answer 9

EU legal supremacy applies whether national law was adopted before or after the relevant EU law.

Question 10

Do national courts often concede kompetenz kompetenz to the ECJ?

Answer 10

No. Germany as an example of a court that certainly has not.

Question 11

What did the German Constitutional Court find in Solange II (Re Winsche)?

Answer 11

As long as the EU promises general protection of fundamental rights, national courts in Germany will cede to EU courts.

Question 12

What did the German Constitutional Court find in Solange I (International Handel)?

Answer 12

As long as (solange) fundamental rights of the nation don’t conflict with EU treaties, national courts in Germany will cede to EU courts.

Question 13

What is a key takeaway of the Brunner v EU Treaty (aka Mastrict) case?

Answer 13

Member states remain “masters of the treaties” and EU laws cannot be tolerated if it is outside the perview granted by national law

Question 14

What are two key take aways of the Honeywell case?

Answer 14

1. Any ultra vires review should be executed in an EU friendly matter.
2. A 267 reference should be made to give the ECH a chance to review an ultra vires issues.

Question 15

What happened in the Garweimer case?

Answer 15

German con law courts made reference to EU courts re: ECB handling of debt crisis, then complained ECU and ECJ were acting ultra vires.

Question 16

What happened in the Weiss and others case (helicopter money/PSPP program)?

Answer 16

The German Court held the ECJ ruled incorrectly by not considering whether the ECB had acted in accordance with proportionality.

The German government worked with EU institutions to smooth over the kerfuffle this caused.

Question 17

What happened in the Lisbon case?

Answer 17

It was determined there was a new limit to EU supremacy, as it was held the constitutional identity of Germany must be respected?

Question 18

What are the three conditions necessary for EU law to take direct effect?

Answer 18

1. It must be clear and unambiguous.
2. It must be unconditional.
3. It must not be dependent on any further action by either member state or by EU authorities.

These requirements are usually interpreted pretty liberally by the ECJ.

Question 19

What was an exception to the further action rule of direct effect from the cases of Defrenne v SABENA (gender equality related case) and Publico v Ratti?

Answer 19

There was a due date for implementation on the law, but since the due date had passed, there was no longer conditionality present.

Question 20

What is a vertical case vs. a horizontal case?

Answer 20

vertical case: individual vs. the state (or vice versa)
hortizonal case: individual v individual

Question 21

Have treaty provisions and the charter of the fundamental rights of the EU found to have been horizontally and vertically effective?

Answer 21

Yes for treaty provisions. Yes for particular provisions of the Charter for Fundamental Rights of the EU

Question 22

Why does our professor believe the ECJ has stated direct effect cannot be argued in hortizonal cases?

Answer 22

Because national courts would freak out/feel encroached upon.

Question 23

True/false: You can rely on the direct effect of EU principles?

Answer 23

False

Question 24

True/false: You can sue the state for violation fo EU law?

Answer 24

True (there’s a new tort in town!)

Question 25

What are the elements of state liability torts re: breaches in EU law?

Answer 25

I. A rule of EU law that confers the right in question
2. It must be a sufficiently serious breach
3. There must be a causal link

Question 26

What is the doctrine of indirect effect? (aka interpretative obligation or duty of sympathetic interpretation)

Answer 26

The requirement that national law must be interpreted in the light of the word and purpose of EU directives.

But there are limits - the ECJ doesn’t expect national courts to read in words which are not there.

Question 27

What are the five heirarchy of norms in EU law?

Answer 27

1.The constituent Treaties and Charter of Rights;
2. General principles of law;
3. Legislative acts;
4. Delegated acts;
5. Implementing acts