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Law Second Year > EU Law: Supremacy and Judicial Dialogue > Flashcards

EU Law: Supremacy and Judicial Dialogue Flashcards

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1
Q

Larsy

A

Administrative agencies should disapply conflicting national rules

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2
Q

How do most national courts view CJEU supremacy?

A

Flowing from national constitutions, retaining ultimate power of constitutional review of EU measures

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3
Q

What case used the ECHR as a floor for EU law?

A

Schindler v Com

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4
Q

When was the Joint Declaration of P, Council and Commission?

A

1977

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5
Q

What is a solange principle?

A

‘so long as’ [x]

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6
Q

What case was the second Solange of Germany?

A

Wunsche Handelsgesellschaft

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7
Q

Rutill judgment

A

Limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles

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8
Q

Mannesmannrohren-Werke

A

‘maximum standard’

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9
Q

What approach did the court focus on in Costa?

A

Teleological

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10
Q

What four arguments did the CJEU give for primacy in cOSTA?

A

Contractarian, functional, egalitarian and analytical

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11
Q

How does Internationale Handelsgesellschaft show difficulty in integrating common constitutional principles of Members into EU?

A

Under EU law, no violation of proportionality, but yes under German Constitution

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12
Q

What case affirmed category of general principles of EU law from Costa?

A

Stauder

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13
Q

What case showed national courts are not always required to review final decisions for EU supremacy?

A

Kapferer

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14
Q

What is required for national provision to be maintained until possible redress in Winner Wetten?

A

Overriding considerations of legal certainty and minimum period possible

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15
Q

Simmenthal judgment

A

Primacy precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside

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16
Q

Contractarian argument in Costa

A

Primacy flows from Member agreement to join EU

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17
Q

What case showed the EU stating that core norms in a legal system cannot be overtaken by ‘primacy’?

A

Kadi I

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18
Q

Declaration 17 Lisbon of Treaty

A

EU law has ‘primacy over the law of Member States’

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19
Q

Articles 8 - 11 TFEU are what type of clauses?

A

‘mainstreaming’ clauses

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20
Q

What case showed that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?

A

Wachauf v Germany

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21
Q

What proposed a supremacy clause?

A

TECE

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22
Q

What case showed that the ECJ can take EU law beyond the ECHR, using it as a ‘floor’?

A

Schindler v Com

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23
Q

Mannesmannrohren-Werke judgment

A

German court dismissed ‘maximum standard’ approach, so fundamental right needs to belong to more than one Member

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24
Q

When does a Member act as an ‘agent’ of the EU?

A

When it implements and applies EU measures

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25
Q

What is a benefit of the Internationale Handelsgesellschaft mbH case?

A

Protects uniformity and primacy of EU law

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26
Q

National provision MAY be maintained until possible to redress violation

A

Winner Wetten

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27
Q

Why is primacy preferred terminologically to supremacy?

A

More self-contained and narrow

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28
Q

Internationale Handelsgesellschaft mbH disadvantage

A

Hard to determine if protection in EU law IS in conformity with fundamental rights if presumed

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29
Q

What was the claim for in Internationale Handelsgesellschaft mbH ?

A

Against HR of right to property and freedom to carry on business, protected by German Constitution and ECHR

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30
Q

Function argument in cOSTA

A

Primacy required to achieve Treaty aims

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31
Q

How do CJEU view EU supremacy?

A

Autonomous, not linked to national constitutions

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32
Q

Germany v Council judgment

A

Supremacy of EU law, even over Constitution

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33
Q

When are Members subject to fundamental rights review under EU law?

A

When they act as ‘agents’ of the EU

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34
Q

Why is the CJEU analytical argument weak?

A

Article 288 DA only refers to regulations, and DA only removes implementing measures - there is still priority issue between EU and domestic

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35
Q

Costa v ENEL on supremacy

A

If no primacy, Treaty obligations would be contingent on domestic legislation, calling the EC legal basis into question

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36
Q

Hauer judgment

A

No ‘special criteria’ to assess particular Member constitution, or would ‘lead inevitably to the destruction of the Common Marker’

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37
Q

What report suggested the annexation of EU fundamental rights standard to international standard?

A

Network of Independent Experts’ Report

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38
Q

What was the constitutional point made in Internationale Handelsgesellschaft mbH ?

A

Fundamental rights are ‘integral’ to ‘general principles of Community law’, inspired by ‘constitutional traditions common to’ Members

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39
Q

Facebook case

A

Schrems v Facebook

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40
Q

What approach did the court avoid in Costa?

A

Textual

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41
Q

What case found that limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles?

A

Rutill

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42
Q

Germany v Council general

A

Bananas case

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43
Q

Internationale Handelsgesellschaft BverG general

A

Back to German court

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44
Q

What argument for EU primacy shows there can be no unilateral precedence of domestic law?

A

Egalitarian

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45
Q

What did the CFI cite in Kadi I and II, that the CJEU did not?

A

UN Charter and ‘jus cogens rules of international law’

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46
Q

Name at least one case showing supremacy principle is applicable against all national law

A

Internationale Handelsgesellschaft BverG, mbH, Germany v Council, Ciola and Wunsche Handelsgesellschaft

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47
Q

What case showed the outcome if EU law did not have primacy?

A

Costa v ENEL

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48
Q

Article 3(5) TEU

A

EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements

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49
Q

Article 49 TEU

A

Condition of respect for EU founding values in order to be a Member

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50
Q

Simmenthal general

A

Beef, vet inspections

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51
Q

What case said no individual review of cases as long as EU protection of fundamental rights satisfactory?

A

Wunsche Handelsgesellschaf

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52
Q

What is a disadvantage of Kadi I judgment?

A

If everyone did that, there would be less uniformity

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53
Q

Schrems v Facebook general

A

Facebook

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54
Q

UN Convention on the Rights of the Child

A

Nold v Commission

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55
Q

Van Gend en Loos on supremacy

A

‘new legal order’

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56
Q

What is a positive solange?

A

Acceptance that other system does offer sufficient protection

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57
Q

What is a negative solange?

A

Particular system does not accept another system offers sufficient protection

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58
Q

Bananas case

A

Germany v Council

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59
Q

Internationale Handelsgesellschaft mbH judgment

A

CJEU made two points - primacy of EU law, and constitutional rights fit inside Community framework

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60
Q

What does Dougan believe the outcome is if DE placed in the driving seat?

A

Primacy is a remedial manifestation of using DE EU rights in domestic system

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61
Q

Hauer general

A

No ‘special criteria’

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62
Q

According to Article 2 TEU, what are the EU’s founding values?

A

Human dignity, freedom, democracy, RoL, equality and respect for human rights

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63
Q

What did the national court say in Germany v Council?

A

If EU interfered with fundamental points of Constitution, Constitution would take primacy

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64
Q

ITWF and FEU v Viking Line JUDGMENT

A

Balanced right to strike against FM given economic and social purpose of Community

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65
Q

What are the two informal sources for fundamental rights in EU?

A

Constitutional traditions common to Members and international human rights treaties to which all Members are a party

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66
Q

Why did the case of Stauder affirm category of general principles from Costa?

A

Fear of a threat to supremacy of EU law

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67
Q

Article 5 TEU limits EU how?

A

Principle of conferral - can’t always integrate human rights protection without being given competence

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68
Q

What do Articles 8 - 11 TFEU require EU to do?

A

EU policies and activities need to take account of things like gender equality, environmental protection etc.

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69
Q

Kadi I on core norms

A

Core norms in EU legal system cannot be overtaken by ‘primacy’

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70
Q

What is the outcome of Simmenthal for applicants?

A

They no longer need to fight up to Constitutional Court to rely on EU law

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71
Q

Who criticised Article 7 TEU for lack of practical usage?

A

Williams

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72
Q

What does Article 19 TFEU enable Council to do?

A

Take action to combat discrimination based on protected characteristics

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73
Q

Analytical argument in Costa

A

Obligations must be unconditional, with reference to DA of Article 288 TFEU on regs

74
Q

What Articles gives the EU’s goals?

A

Article 3 TEU

75
Q

When did general principles first gain political approval?

A

Joint Declaration of P, Council and Commission in 1977

76
Q

What case affirmed other international human rights treaties and instruments than the ECHR as sources?

A

Nold v Commission

77
Q

What is the impact of the supremacy doctrine on national law, and according to what case?

A

Only refuse to apply - not invalidation/annulment; Simmenthal

78
Q

EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements

A

Article 3(5) TEU

79
Q

Kapferer

A

National court not always obliged to review final decision, respecting res judicata

80
Q

What Articles expresses list of EU founding values?

A

Article 2 TEU

81
Q

Kadi I general

A

Terrorists, banks frozen, UN sanction

82
Q

What Article gives various sources of human rights in EU law

A

Article 6 TEU

83
Q

Ciola

A

Primacy of EU law applies to constitutional norms and individual administrative acts

84
Q

Internationale Handelsgesellschaft BverG saw Germany highlight what about ECJ?

A

Germany highlighted lack of democratic legitimacy of ECJ and lack of codified catalogue of rights

85
Q

Egalitarian argument in Costa

A

Equal burden and benefit among Members - no unilateral precedence of domestic law

86
Q

What part of what Treaty stated eu law has ‘primacy over the law of Member States’

A

Declaration 17 Lisbon of Treaty

87
Q

What case saw the national court highlighting the lack of democratic legitimacy of the ECJ?

A

Internationale Handelsgesellschaft BverG

88
Q

What case has been criticised by labour lawyers for diminishing the right to strike?

A

ITWF and FEU v Viking Line

89
Q

What does the case of Larsy show?

A

Administrative agencies should disapply conflicting national rules - they also need to apply supremacy doctrine

90
Q

what case shows a specific example of when res judicata will be ignored?

A

Lucchini

91
Q

What case stated that an incompatible existing national provision needs to be set aside, regardless of whether the Member constitutional court has found it unconstitutional or not?

A

Simmenthal

92
Q

Lucchini

A

Res judicata ignored if it would prevent recovery of state aid granted in breach of EU law

93
Q

What is the ‘maximum standard’ approach?

A

Fundamental right only need belong to one Member for it to be part of a ‘common’ approach

94
Q

What Article of what Treaty did the CJEU refer to in Costa to support analytical argument?

A

Direct effect of Article 288 TFEU on regulations

95
Q

What did the court emphasise in Costa, under teleological approach?

A

EU aims through four arguments - contractarian, functional, egalitatian and analytical

96
Q

What two reasons can explain why CJEU rarely cites any specific constitutional provisions of Members?

A

Hard to assert ‘common approach’ if not in every Member constitution, and fear of compromising doctrinal supremacy

97
Q

What three points does Dougan make about the relationship between EU primacy and direct effect?

A

Primacy best explains incidental horizontal effect of positive law, DE conditions are distinct from primacy, and there are different outcomes if primacy is considered more important or direct effect

98
Q

Article 7 TEU

A

Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles

99
Q

What is the emphasis in Opinion 2/13 on autonomy of EU legal order likely to lead to?

A

Critique of EU law as disconnected from wider international HR system

100
Q

Digital Rights Ireland general

A

Annulled Data Retention Directive

101
Q

What case showed that a ower court can seek ruling on compatibility of higher court with EU law, regardless of binding nature of higher court

A

Elchinov

102
Q

Commission Communication did what under Article 7 TEU

A

Set out early warning system to supplement Article 7 TEU

103
Q

Digital Rights Ireland judgment

A

Disproportionately restricted privacy and data protection

104
Q

What case shows primacy of EU law precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside

A

Simmenthal

105
Q

Kadi II general

A

Maintenance of sanctions

106
Q

What case shows the heightened protection of right to privacy, against social network?

A

schrems v Facebook

107
Q

Wunsche Handelsgesellschaft general

A

Second Solange of Germany

108
Q

What case showed the primacy of EU law applies to constitutional norms and individual administrative acts?

A

Ciola

109
Q

What case shows the ECJ respecting res judicata?

A

Kapferer

110
Q

‘uniform tendency’

A

AZKO

111
Q

Who stated that the CJEU have ‘difficulty in accepting, in practice if not in principle, that it is formally bound by an international judicial decision’?

A

Eeckhout

112
Q

Specific expressions of general principles

A

Rutill

113
Q

What case shows the ECJ being Less deferential to EU institutions and international institutions like UN Security Council?

A

Kadi II

114
Q

Article 53(2) Charter

A

Same meaning and scope if Charter and ECHR overlap, but EU law can provide ‘more extensive protection’

115
Q

What is the difference between EU and ECHR in terms of an individual being able to rely on each?

A

C need not exhaust domestic remedies under EU law, and ECJ decision directly implemented, but exact opposite in ECtHR

116
Q

Article 6 TEU general

A

Various sources of human rights in EU law

117
Q

What does Dougan believe the outcome is if primacy placed in driving seat?

A

DE only relevant for substitution effect

118
Q

Internationale Handelsgesellschaft BverG judgment

A

Any conflict between fundamental constitutional rights and Community leads to former prevailing

119
Q

What case made it clear that the ECHR is NOT formally incorporated into EU law?

A

Schindler v Commission

120
Q

What was cited in Nold v Commission?

A

UN Convention on the Rights of the Child

121
Q

Winner Wetten

A

National provision MAY be maintained until possible to redress violation

122
Q

Why is it logical EU law has primacy?

A

To ensure the community actually functions

123
Q

Who argues that the EU system of human rights protection is increasingly characterised by integration with national constitutional laws?

A

Eeckhout

124
Q

What showed, in the case of Wachauf v Germany, that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?

A

Case had little to do with rights and before implementation of EU Charter - slight link enough

125
Q

Internationale Handelsgesellschaft shows what about ‘common constitutional principles’?

A

Hard to integrate those of Members into the EU

126
Q

What Article is a powerful human rights tool in specific field of non-discrimination for EU?

A

Article 19 TFEU

127
Q

Network of Independent Experts’ Report

A

suggested the annexation of EU fundamental rights standard to international standard

128
Q

What does the case of Kadi I show, contextually?

A

Post-9/11, ECJ more willing to strike down EU law for disproportionately violating individual rights

129
Q

Rutill general

A

Specific expressions of general principles

130
Q

What did the Schrems decision make defunct?

A

‘safe harbour’ of US

131
Q

When was the Fundamental Rights Agency established?

A

2007

132
Q

Wachauf v Germany

A

Members need to ensure protection of fundamental rights WHENEVER implementing EU measures

133
Q

What are the two categories showing a balance between economic freedoms and protection of public interest

A

Attempt by Member to derogate from FM restricted by infringement of right, or economic freedom clashes with State fundamental right

134
Q

AKZO

A

‘uniform tendency’

135
Q

Why was res judicator ignored in Lucchini?

A

would have prevented recovery of state aid granted in breach of EU law

136
Q

German court dismissed ‘maximum standard’ approach, so fundamental right could only belong to one Member

A

Mannesmannrohren-Werke

137
Q

Factortame on national bodies that must apply supremacy

A

Set aside rule against interim relief if prevents ‘full effectiveness of the judgment’

138
Q

Article 2 TEU

A

Expresses list of EU founding values

139
Q

According to Article 3 TEU, what is the goal of the EU?

A

combat social exclusion and discrimination, and promote social justice, protection, equality, solidarity and protection of children’s rights

140
Q

Simmenthal on national bodies that must apply supremacy doctrine

A

Regardless of Constitutional Court - court before which conflict arises must give immediate effect to EU law

141
Q

What case is the first Solange of Germany?

A

Internationale Handelsgesellschaft mbH

142
Q

What was the declaration in the Lisbon Treaty instead of?

A

TECE proposed supremacy clause

143
Q

What case stated that special criteria to assess particular Member constitution would ‘lead inevitably to the destruction of the Common Market’?

A

Hauer

144
Q

In what case was it said that the ECJ offers protection ‘substantially similar to the unconditional protection of fundamental rights under Constitution’?

A

Wunsche Handelsgesellschaft

145
Q

What did Members refuse to include in Fundamental Rights Agency?

A

Monitoring of Members for the purposes of Article 7 TEU

146
Q

NS and Others

A

Inhumane and degrading treatment by UK and ireland

147
Q

Internationale Handelsgesellschaft mbH general

A

Maize, subsidy on export

148
Q

What case showed EU law is supreme, even over Constitution?

A

Germany v Council

149
Q

What case saw rejection of ‘special criteria’ to assess particular Member’s constitution?

A

Hauer

150
Q

ERT v Dimotiki general

A

Greece ban on certain TV ads

151
Q

What Article was violated in Schrems?

A

Article 8 ECHR

152
Q

What Article states conditions of respect for EU founding values to be a Member

A

Article 49 TEU

153
Q

Opinion 2/13 on EU Accession saw the CJEU emphasise what about the EU legal order?

A

It is autonomous

154
Q

What Treaty declared primacy?

A

Lisbon Treaty

155
Q

Elchinov

A

Lower court can seek ruling on compatibility of higher court with EU law, regardless of binding nature of higher court

156
Q

ITWF and FEU v Viking Line general

A

Strike, ‘re-flag’, trade unions

157
Q

ERT v Dimotiki judgment

A

Any restriction on FM still needs to comply with fundamental rights

158
Q

What does Article 6(3) TEU lack reference to?

A

International human rights treaties and instruments other than the ECHR

159
Q

Name at least two cases exploring national bodies which must apply the supremacy doctrine

A

Simmenthal, Factortame, Lars and Elchinov

160
Q

Strike, ‘re-flag’, trade unions

A

ITWF and FEU v Viking Line

161
Q

Name two cases showing balance between exercise of economic freedom and protection of public interest

A

ERT v Dimotiki; ITWF and FEU v Viking Line

162
Q

What did Costa v ENEL lead to concern about?

A

HRs would be undermined under domestic constitutions

163
Q

Stauder general

A

Affirmed category of general principles of EU law

164
Q

In what two ways can a solange principle operate?

A

Positive or negative

165
Q

Kadi II judgment

A

Less deferential to EU institutions and international institutions like UN Security Council

166
Q

Advantage of Declaration 17 Lisbon of Treaty

A

Less controversial and clearer than original supremacy clause in TECE

167
Q

What case shows the ECJ requiring a national rue preventing interim relief be set aside to ensure ‘full effectiveness of the judgment’?

A

Factortame

168
Q

Name at least one case showing a challenge to EU legislation

A

Digital Rights Ireland; Kadi I; Kadi II

169
Q

Kadi I and II cited only what?

A

Charter and ECHR

170
Q

Wunsche Handelsgesellschaft judgment

A

As long as EU protection of fundamental rights satisfactory, no individual review

171
Q

What was the primacy point made in Internationale Handelsgesellschaft mbH?

A

EU law has primacy, regardless of national legislation/rights/constitutional structure

172
Q

Inhumane and degrading treatment by UK and Ireland

A

NS and Others

173
Q

What was the outcome of schemers?

A

National supervisory authorities can review EU-US data transfers to stop data snooping and protect Article 8 ECHR

174
Q

What case required ‘uniform tendency’ among Members for the approach to be a general principle?

A

AZKO

175
Q

What does the case of Internationale Handelsgesellschaft BverG show a move to in terms of operation of solange?

A

Move from positive to negative operation of solange

176
Q

Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles under what article?

A

Article 7 TEU

177
Q

Same meaning and scope if Charter and ECHR overlap, but EU law can provide ‘more extensive protection’

A

Article 53(2) Charter

178
Q

Name some negatives of Declaration 17 Lisbon of Treaty

A

Might cause courts to doubt continuing validity of supremacy principle for constitutional matters, and no resolution on ultimate decision-maker on boundary of EU competences

179
Q

Name at least one case showing supremacy principle is applicable to national laws pre-dating and/or post-dating EU law

A

Simmenthal; Winner Wetten

180
Q

What case saw rejection of the ‘maximum standard’ approach?

A

Mannesmannrohren-Werke

181
Q

Williams criticised Article 7 TEU how?

A

Lack of practical usage

Law Second Year (62 decks)

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