EU Law: Supremacy and Judicial Dialogue Flashcards
1
Q
Larsy
A
Administrative agencies should disapply conflicting national rules
2
Q
How do most national courts view CJEU supremacy?
A
Flowing from national constitutions, retaining ultimate power of constitutional review of EU measures
3
Q
What case used the ECHR as a floor for EU law?
A
Schindler v Com
4
Q
When was the Joint Declaration of P, Council and Commission?
A
1977
5
Q
What is a solange principle?
A
‘so long as’ [x]
6
Q
What case was the second Solange of Germany?
A
Wunsche Handelsgesellschaft
7
Q
Rutill judgment
A
Limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles
8
Q
Mannesmannrohren-Werke
A
‘maximum standard’
9
Q
What approach did the court focus on in Costa?
A
Teleological
10
Q
What four arguments did the CJEU give for primacy in cOSTA?
A
Contractarian, functional, egalitarian and analytical
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
12
Q
What case affirmed category of general principles of EU law from Costa?
A
Stauder
13
Q
What case showed national courts are not always required to review final decisions for EU supremacy?
A
Kapferer
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
15
Q
Simmenthal judgment
A
Primacy precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside
16
Q
Contractarian argument in Costa
A
Primacy flows from Member agreement to join EU
17
Q
What case showed the EU stating that core norms in a legal system cannot be overtaken by ‘primacy’?
A
Kadi I
18
Q
Declaration 17 Lisbon of Treaty
A
EU law has ‘primacy over the law of Member States’
19
Q
Articles 8 - 11 TFEU are what type of clauses?
A
‘mainstreaming’ clauses
20
Q
What case showed that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?
A
Wachauf v Germany
21
Q
What proposed a supremacy clause?
A
TECE
22
Q
What case showed that the ECJ can take EU law beyond the ECHR, using it as a ‘floor’?
A
Schindler v Com
23
Q
Mannesmannrohren-Werke judgment
A
German court dismissed ‘maximum standard’ approach, so fundamental right needs to belong to more than one Member
24
Q
When does a Member act as an ‘agent’ of the EU?
A
When it implements and applies EU measures
25
What is a benefit of the Internationale Handelsgesellschaft mbH case?
Protects uniformity and primacy of EU law
26
National provision MAY be maintained until possible to redress violation
Winner Wetten
27
Why is primacy preferred terminologically to supremacy?
More self-contained and narrow
28
Internationale Handelsgesellschaft mbH disadvantage
Hard to determine if protection in EU law IS in conformity with fundamental rights if presumed
29
What was the claim for in Internationale Handelsgesellschaft mbH ?
Against HR of right to property and freedom to carry on business, protected by German Constitution and ECHR
30
Function argument in cOSTA
Primacy required to achieve Treaty aims
31
How do CJEU view EU supremacy?
Autonomous, not linked to national constitutions
32
Germany v Council judgment
Supremacy of EU law, even over Constitution
33
When are Members subject to fundamental rights review under EU law?
When they act as 'agents' of the EU
34
Why is the CJEU analytical argument weak?
Article 288 DA only refers to regulations, and DA only removes implementing measures - there is still priority issue between EU and domestic
35
Costa v ENEL on supremacy
If no primacy, Treaty obligations would be contingent on domestic legislation, calling the EC legal basis into question
36
Hauer judgment
No 'special criteria' to assess particular Member constitution, or would 'lead inevitably to the destruction of the Common Marker'
37
What report suggested the annexation of EU fundamental rights standard to international standard?
Network of Independent Experts' Report
38
What was the constitutional point made in Internationale Handelsgesellschaft mbH ?
Fundamental rights are 'integral' to 'general principles of Community law', inspired by 'constitutional traditions common to' Members
39
Facebook case
Schrems v Facebook
40
What approach did the court avoid in Costa?
Textual
41
What case found that limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles?
Rutill
42
Germany v Council general
Bananas case
43
Internationale Handelsgesellschaft BverG general
Back to German court
44
What argument for EU primacy shows there can be no unilateral precedence of domestic law?
Egalitarian
45
What did the CFI cite in Kadi I and II, that the CJEU did not?
UN Charter and 'jus cogens rules of international law'
46
Name at least one case showing supremacy principle is applicable against all national law
Internationale Handelsgesellschaft BverG, mbH, Germany v Council, Ciola and Wunsche Handelsgesellschaft
47
What case showed the outcome if EU law did not have primacy?
Costa v ENEL
48
Article 3(5) TEU
EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements
49
Article 49 TEU
Condition of respect for EU founding values in order to be a Member
50
Simmenthal general
Beef, vet inspections
51
What case said no individual review of cases as long as EU protection of fundamental rights satisfactory?
Wunsche Handelsgesellschaf
52
What is a disadvantage of Kadi I judgment?
If everyone did that, there would be less uniformity
53
Schrems v Facebook general
Facebook
54
UN Convention on the Rights of the Child
Nold v Commission
55
Van Gend en Loos on supremacy
'new legal order'
56
What is a positive solange?
Acceptance that other system does offer sufficient protection
57
What is a negative solange?
Particular system does not accept another system offers sufficient protection
58
Bananas case
Germany v Council
59
Internationale Handelsgesellschaft mbH judgment
CJEU made two points - primacy of EU law, and constitutional rights fit inside Community framework
60
What does Dougan believe the outcome is if DE placed in the driving seat?
Primacy is a remedial manifestation of using DE EU rights in domestic system
61
Hauer general
No 'special criteria'
62
According to Article 2 TEU, what are the EU's founding values?
Human dignity, freedom, democracy, RoL, equality and respect for human rights
63
What did the national court say in Germany v Council?
If EU interfered with fundamental points of Constitution, Constitution would take primacy
64
ITWF and FEU v Viking Line JUDGMENT
Balanced right to strike against FM given economic and social purpose of Community
65
What are the two informal sources for fundamental rights in EU?
Constitutional traditions common to Members and international human rights treaties to which all Members are a party
66
Why did the case of Stauder affirm category of general principles from Costa?
Fear of a threat to supremacy of EU law
67
Article 5 TEU limits EU how?
Principle of conferral - can't always integrate human rights protection without being given competence
68
What do Articles 8 - 11 TFEU require EU to do?
EU policies and activities need to take account of things like gender equality, environmental protection etc.
69
Kadi I on core norms
Core norms in EU legal system cannot be overtaken by 'primacy'
70
What is the outcome of Simmenthal for applicants?
They no longer need to fight up to Constitutional Court to rely on EU law
71
Who criticised Article 7 TEU for lack of practical usage?
Williams
72
What does Article 19 TFEU enable Council to do?
Take action to combat discrimination based on protected characteristics
73
Analytical argument in Costa
Obligations must be unconditional, with reference to DA of Article 288 TFEU on regs
74
What Articles gives the EU's goals?
Article 3 TEU
75
When did general principles first gain political approval?
Joint Declaration of P, Council and Commission in 1977
76
What case affirmed other international human rights treaties and instruments than the ECHR as sources?
Nold v Commission
77
What is the impact of the supremacy doctrine on national law, and according to what case?
Only refuse to apply - not invalidation/annulment; Simmenthal
78
EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements
Article 3(5) TEU
79
Kapferer
National court not always obliged to review final decision, respecting res judicata
80
What Articles expresses list of EU founding values?
Article 2 TEU
81
Kadi I general
Terrorists, banks frozen, UN sanction
82
What Article gives various sources of human rights in EU law
Article 6 TEU
83
Ciola
Primacy of EU law applies to constitutional norms and individual administrative acts
84
Internationale Handelsgesellschaft BverG saw Germany highlight what about ECJ?
Germany highlighted lack of democratic legitimacy of ECJ and lack of codified catalogue of rights
85
Egalitarian argument in Costa
Equal burden and benefit among Members - no unilateral precedence of domestic law
86
What part of what Treaty stated eu law has 'primacy over the law of Member States'
Declaration 17 Lisbon of Treaty
87
What case saw the national court highlighting the lack of democratic legitimacy of the ECJ?
Internationale Handelsgesellschaft BverG
88
What case has been criticised by labour lawyers for diminishing the right to strike?
ITWF and FEU v Viking Line
89
What does the case of Larsy show?
Administrative agencies should disapply conflicting national rules - they also need to apply supremacy doctrine
90
what case shows a specific example of when res judicata will be ignored?
Lucchini
91
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?
Simmenthal
92
Lucchini
Res judicata ignored if it would prevent recovery of state aid granted in breach of EU law
93
What is the 'maximum standard' approach?
Fundamental right only need belong to one Member for it to be part of a 'common' approach
94
What Article of what Treaty did the CJEU refer to in Costa to support analytical argument?
Direct effect of Article 288 TFEU on regulations
95
What did the court emphasise in Costa, under teleological approach?
EU aims through four arguments - contractarian, functional, egalitatian and analytical
96
What two reasons can explain why CJEU rarely cites any specific constitutional provisions of Members?
Hard to assert 'common approach' if not in every Member constitution, and fear of compromising doctrinal supremacy
97
What three points does Dougan make about the relationship between EU primacy and direct effect?
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
Article 7 TEU
Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles
99
What is the emphasis in Opinion 2/13 on autonomy of EU legal order likely to lead to?
Critique of EU law as disconnected from wider international HR system
100
Digital Rights Ireland general
Annulled Data Retention Directive
101
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
Elchinov
102
Commission Communication did what under Article 7 TEU
Set out early warning system to supplement Article 7 TEU
103
Digital Rights Ireland judgment
Disproportionately restricted privacy and data protection
104
What case shows primacy of EU law precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside
Simmenthal
105
Kadi II general
Maintenance of sanctions
106
What case shows the heightened protection of right to privacy, against social network?
schrems v Facebook
107
Wunsche Handelsgesellschaft general
Second Solange of Germany
108
What case showed the primacy of EU law applies to constitutional norms and individual administrative acts?
Ciola
109
What case shows the ECJ respecting res judicata?
Kapferer
110
'uniform tendency'
AZKO
111
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’?
Eeckhout
112
Specific expressions of general principles
Rutill
113
What case shows the ECJ being Less deferential to EU institutions and international institutions like UN Security Council?
Kadi II
114
Article 53(2) Charter
Same meaning and scope if Charter and ECHR overlap, but EU law can provide 'more extensive protection'
115
What is the difference between EU and ECHR in terms of an individual being able to rely on each?
C need not exhaust domestic remedies under EU law, and ECJ decision directly implemented, but exact opposite in ECtHR
116
Article 6 TEU general
Various sources of human rights in EU law
117
What does Dougan believe the outcome is if primacy placed in driving seat?
DE only relevant for substitution effect
118
Internationale Handelsgesellschaft BverG judgment
Any conflict between fundamental constitutional rights and Community leads to former prevailing
119
What case made it clear that the ECHR is NOT formally incorporated into EU law?
Schindler v Commission
120
What was cited in Nold v Commission?
UN Convention on the Rights of the Child
121
Winner Wetten
National provision MAY be maintained until possible to redress violation
122
Why is it logical EU law has primacy?
To ensure the community actually functions
123
Who argues that the EU system of human rights protection is increasingly characterised by integration with national constitutional laws?
Eeckhout
124
What showed, in the case of Wachauf v Germany, that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?
Case had little to do with rights and before implementation of EU Charter - slight link enough
125
Internationale Handelsgesellschaft shows what about 'common constitutional principles'?
Hard to integrate those of Members into the EU
126
What Article is a powerful human rights tool in specific field of non-discrimination for EU?
Article 19 TFEU
127
Network of Independent Experts' Report
suggested the annexation of EU fundamental rights standard to international standard
128
What does the case of Kadi I show, contextually?
Post-9/11, ECJ more willing to strike down EU law for disproportionately violating individual rights
129
Rutill general
Specific expressions of general principles
130
What did the Schrems decision make defunct?
'safe harbour' of US
131
When was the Fundamental Rights Agency established?
2007
132
Wachauf v Germany
Members need to ensure protection of fundamental rights WHENEVER implementing EU measures
133
What are the two categories showing a balance between economic freedoms and protection of public interest
Attempt by Member to derogate from FM restricted by infringement of right, or economic freedom clashes with State fundamental right
134
AKZO
'uniform tendency'
135
Why was res judicator ignored in Lucchini?
would have prevented recovery of state aid granted in breach of EU law
136
German court dismissed 'maximum standard' approach, so fundamental right could only belong to one Member
Mannesmannrohren-Werke
137
Factortame on national bodies that must apply supremacy
Set aside rule against interim relief if prevents 'full effectiveness of the judgment'
138
Article 2 TEU
Expresses list of EU founding values
139
According to Article 3 TEU, what is the goal of the EU?
combat social exclusion and discrimination, and promote social justice, protection, equality, solidarity and protection of children’s rights
140
Simmenthal on national bodies that must apply supremacy doctrine
Regardless of Constitutional Court - court before which conflict arises must give immediate effect to EU law
141
What case is the first Solange of Germany?
Internationale Handelsgesellschaft mbH
142
What was the declaration in the Lisbon Treaty instead of?
TECE proposed supremacy clause
143
What case stated that special criteria to assess particular Member constitution would 'lead inevitably to the destruction of the Common Market'?
Hauer
144
In what case was it said that the ECJ offers protection 'substantially similar to the unconditional protection of fundamental rights under Constitution'?
Wunsche Handelsgesellschaft
145
What did Members refuse to include in Fundamental Rights Agency?
Monitoring of Members for the purposes of Article 7 TEU
146
NS and Others
Inhumane and degrading treatment by UK and ireland
147
Internationale Handelsgesellschaft mbH general
Maize, subsidy on export
148
What case showed EU law is supreme, even over Constitution?
Germany v Council
149
What case saw rejection of 'special criteria' to assess particular Member's constitution?
Hauer
150
ERT v Dimotiki general
Greece ban on certain TV ads
151
What Article was violated in Schrems?
Article 8 ECHR
152
What Article states conditions of respect for EU founding values to be a Member
Article 49 TEU
153
Opinion 2/13 on EU Accession saw the CJEU emphasise what about the EU legal order?
It is autonomous
154
What Treaty declared primacy?
Lisbon Treaty
155
Elchinov
Lower court can seek ruling on compatibility of higher court with EU law, regardless of binding nature of higher court
156
ITWF and FEU v Viking Line general
Strike, 're-flag', trade unions
157
ERT v Dimotiki judgment
Any restriction on FM still needs to comply with fundamental rights
158
What does Article 6(3) TEU lack reference to?
International human rights treaties and instruments other than the ECHR
159
Name at least two cases exploring national bodies which must apply the supremacy doctrine
Simmenthal, Factortame, Lars and Elchinov
160
Strike, 're-flag', trade unions
ITWF and FEU v Viking Line
161
Name two cases showing balance between exercise of economic freedom and protection of public interest
ERT v Dimotiki; ITWF and FEU v Viking Line
162
What did Costa v ENEL lead to concern about?
HRs would be undermined under domestic constitutions
163
Stauder general
Affirmed category of general principles of EU law
164
In what two ways can a solange principle operate?
Positive or negative
165
Kadi II judgment
Less deferential to EU institutions and international institutions like UN Security Council
166
Advantage of Declaration 17 Lisbon of Treaty
Less controversial and clearer than original supremacy clause in TECE
167
What case shows the ECJ requiring a national rue preventing interim relief be set aside to ensure 'full effectiveness of the judgment'?
Factortame
168
Name at least one case showing a challenge to EU legislation
Digital Rights Ireland; Kadi I; Kadi II
169
Kadi I and II cited only what?
Charter and ECHR
170
Wunsche Handelsgesellschaft judgment
As long as EU protection of fundamental rights satisfactory, no individual review
171
What was the primacy point made in Internationale Handelsgesellschaft mbH?
EU law has primacy, regardless of national legislation/rights/constitutional structure
172
Inhumane and degrading treatment by UK and Ireland
NS and Others
173
What was the outcome of schemers?
National supervisory authorities can review EU-US data transfers to stop data snooping and protect Article 8 ECHR
174
What case required 'uniform tendency' among Members for the approach to be a general principle?
AZKO
175
What does the case of Internationale Handelsgesellschaft BverG show a move to in terms of operation of solange?
Move from positive to negative operation of solange
176
Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles under what article?
Article 7 TEU
177
Same meaning and scope if Charter and ECHR overlap, but EU law can provide 'more extensive protection'
Article 53(2) Charter
178
Name some negatives of Declaration 17 Lisbon of Treaty
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
Name at least one case showing supremacy principle is applicable to national laws pre-dating and/or post-dating EU law
Simmenthal; Winner Wetten
180
What case saw rejection of the 'maximum standard' approach?
Mannesmannrohren-Werke
181
Williams criticised Article 7 TEU how?
Lack of practical usage
