EU Law: Supremacy and Judicial Dialogue Flashcards
Larsy
Administrative agencies should disapply conflicting national rules
How do most national courts view CJEU supremacy?
Flowing from national constitutions, retaining ultimate power of constitutional review of EU measures
What case used the ECHR as a floor for EU law?
Schindler v Com
When was the Joint Declaration of P, Council and Commission?
1977
What is a solange principle?
‘so long as’ [x]
What case was the second Solange of Germany?
Wunsche Handelsgesellschaft
Rutill judgment
Limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles
Mannesmannrohren-Werke
‘maximum standard’
What approach did the court focus on in Costa?
Teleological
What four arguments did the CJEU give for primacy in cOSTA?
Contractarian, functional, egalitarian and analytical
How does Internationale Handelsgesellschaft show difficulty in integrating common constitutional principles of Members into EU?
Under EU law, no violation of proportionality, but yes under German Constitution
What case affirmed category of general principles of EU law from Costa?
Stauder
What case showed national courts are not always required to review final decisions for EU supremacy?
Kapferer
What is required for national provision to be maintained until possible redress in Winner Wetten?
Overriding considerations of legal certainty and minimum period possible
Simmenthal judgment
Primacy precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside
Contractarian argument in Costa
Primacy flows from Member agreement to join EU
What case showed the EU stating that core norms in a legal system cannot be overtaken by ‘primacy’?
Kadi I
Declaration 17 Lisbon of Treaty
EU law has ‘primacy over the law of Member States’
Articles 8 - 11 TFEU are what type of clauses?
‘mainstreaming’ clauses
What case showed that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?
Wachauf v Germany
What proposed a supremacy clause?
TECE
What case showed that the ECJ can take EU law beyond the ECHR, using it as a ‘floor’?
Schindler v Com
Mannesmannrohren-Werke judgment
German court dismissed ‘maximum standard’ approach, so fundamental right needs to belong to more than one Member
When does a Member act as an ‘agent’ of the EU?
When it implements and applies EU measures
What is a benefit of the Internationale Handelsgesellschaft mbH case?
Protects uniformity and primacy of EU law
National provision MAY be maintained until possible to redress violation
Winner Wetten
Why is primacy preferred terminologically to supremacy?
More self-contained and narrow
Internationale Handelsgesellschaft mbH disadvantage
Hard to determine if protection in EU law IS in conformity with fundamental rights if presumed
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
Function argument in cOSTA
Primacy required to achieve Treaty aims
How do CJEU view EU supremacy?
Autonomous, not linked to national constitutions
Germany v Council judgment
Supremacy of EU law, even over Constitution
When are Members subject to fundamental rights review under EU law?
When they act as ‘agents’ of the EU
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
Costa v ENEL on supremacy
If no primacy, Treaty obligations would be contingent on domestic legislation, calling the EC legal basis into question
Hauer judgment
No ‘special criteria’ to assess particular Member constitution, or would ‘lead inevitably to the destruction of the Common Marker’
What report suggested the annexation of EU fundamental rights standard to international standard?
Network of Independent Experts’ Report
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
Facebook case
Schrems v Facebook
What approach did the court avoid in Costa?
Textual
What case found that limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles?
Rutill
Germany v Council general
Bananas case
Internationale Handelsgesellschaft BverG general
Back to German court
What argument for EU primacy shows there can be no unilateral precedence of domestic law?
Egalitarian
What did the CFI cite in Kadi I and II, that the CJEU did not?
UN Charter and ‘jus cogens rules of international law’
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
What case showed the outcome if EU law did not have primacy?
Costa v ENEL
Article 3(5) TEU
EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements
Article 49 TEU
Condition of respect for EU founding values in order to be a Member
Simmenthal general
Beef, vet inspections
What case said no individual review of cases as long as EU protection of fundamental rights satisfactory?
Wunsche Handelsgesellschaf
What is a disadvantage of Kadi I judgment?
If everyone did that, there would be less uniformity
Schrems v Facebook general
UN Convention on the Rights of the Child
Nold v Commission
Van Gend en Loos on supremacy
‘new legal order’
What is a positive solange?
Acceptance that other system does offer sufficient protection
What is a negative solange?
Particular system does not accept another system offers sufficient protection
Bananas case
Germany v Council
Internationale Handelsgesellschaft mbH judgment
CJEU made two points - primacy of EU law, and constitutional rights fit inside Community framework
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
Hauer general
No ‘special criteria’
According to Article 2 TEU, what are the EU’s founding values?
Human dignity, freedom, democracy, RoL, equality and respect for human rights
What did the national court say in Germany v Council?
If EU interfered with fundamental points of Constitution, Constitution would take primacy
ITWF and FEU v Viking Line JUDGMENT
Balanced right to strike against FM given economic and social purpose of Community
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
Why did the case of Stauder affirm category of general principles from Costa?
Fear of a threat to supremacy of EU law
Article 5 TEU limits EU how?
Principle of conferral - can’t always integrate human rights protection without being given competence
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.
Kadi I on core norms
Core norms in EU legal system cannot be overtaken by ‘primacy’
What is the outcome of Simmenthal for applicants?
They no longer need to fight up to Constitutional Court to rely on EU law
Who criticised Article 7 TEU for lack of practical usage?
Williams
What does Article 19 TFEU enable Council to do?
Take action to combat discrimination based on protected characteristics
Analytical argument in Costa
Obligations must be unconditional, with reference to DA of Article 288 TFEU on regs
What Articles gives the EU’s goals?
Article 3 TEU
When did general principles first gain political approval?
Joint Declaration of P, Council and Commission in 1977
What case affirmed other international human rights treaties and instruments than the ECHR as sources?
Nold v Commission
What is the impact of the supremacy doctrine on national law, and according to what case?
Only refuse to apply - not invalidation/annulment; Simmenthal
EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements
Article 3(5) TEU
Kapferer
National court not always obliged to review final decision, respecting res judicata
What Articles expresses list of EU founding values?
Article 2 TEU
Kadi I general
Terrorists, banks frozen, UN sanction
What Article gives various sources of human rights in EU law
Article 6 TEU
Ciola
Primacy of EU law applies to constitutional norms and individual administrative acts
Internationale Handelsgesellschaft BverG saw Germany highlight what about ECJ?
Germany highlighted lack of democratic legitimacy of ECJ and lack of codified catalogue of rights
Egalitarian argument in Costa
Equal burden and benefit among Members - no unilateral precedence of domestic law
What part of what Treaty stated eu law has ‘primacy over the law of Member States’
Declaration 17 Lisbon of Treaty
What case saw the national court highlighting the lack of democratic legitimacy of the ECJ?
Internationale Handelsgesellschaft BverG
What case has been criticised by labour lawyers for diminishing the right to strike?
ITWF and FEU v Viking Line
What does the case of Larsy show?
Administrative agencies should disapply conflicting national rules - they also need to apply supremacy doctrine
what case shows a specific example of when res judicata will be ignored?
Lucchini
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
Lucchini
Res judicata ignored if it would prevent recovery of state aid granted in breach of EU law
What is the ‘maximum standard’ approach?
Fundamental right only need belong to one Member for it to be part of a ‘common’ approach
What Article of what Treaty did the CJEU refer to in Costa to support analytical argument?
Direct effect of Article 288 TFEU on regulations
What did the court emphasise in Costa, under teleological approach?
EU aims through four arguments - contractarian, functional, egalitatian and analytical
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
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
Article 7 TEU
Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles
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
Digital Rights Ireland general
Annulled Data Retention Directive
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
Commission Communication did what under Article 7 TEU
Set out early warning system to supplement Article 7 TEU
Digital Rights Ireland judgment
Disproportionately restricted privacy and data protection
What case shows primacy of EU law precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside
Simmenthal
Kadi II general
Maintenance of sanctions
What case shows the heightened protection of right to privacy, against social network?
schrems v Facebook
Wunsche Handelsgesellschaft general
Second Solange of Germany
What case showed the primacy of EU law applies to constitutional norms and individual administrative acts?
Ciola
What case shows the ECJ respecting res judicata?
Kapferer
‘uniform tendency’
AZKO
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
Specific expressions of general principles
Rutill
What case shows the ECJ being Less deferential to EU institutions and international institutions like UN Security Council?
Kadi II
Article 53(2) Charter
Same meaning and scope if Charter and ECHR overlap, but EU law can provide ‘more extensive protection’
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
Article 6 TEU general
Various sources of human rights in EU law
What does Dougan believe the outcome is if primacy placed in driving seat?
DE only relevant for substitution effect
Internationale Handelsgesellschaft BverG judgment
Any conflict between fundamental constitutional rights and Community leads to former prevailing
What case made it clear that the ECHR is NOT formally incorporated into EU law?
Schindler v Commission
What was cited in Nold v Commission?
UN Convention on the Rights of the Child
Winner Wetten
National provision MAY be maintained until possible to redress violation
Why is it logical EU law has primacy?
To ensure the community actually functions
Who argues that the EU system of human rights protection is increasingly characterised by integration with national constitutional laws?
Eeckhout
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
Internationale Handelsgesellschaft shows what about ‘common constitutional principles’?
Hard to integrate those of Members into the EU
What Article is a powerful human rights tool in specific field of non-discrimination for EU?
Article 19 TFEU
Network of Independent Experts’ Report
suggested the annexation of EU fundamental rights standard to international standard
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
Rutill general
Specific expressions of general principles
What did the Schrems decision make defunct?
‘safe harbour’ of US
When was the Fundamental Rights Agency established?
2007
Wachauf v Germany
Members need to ensure protection of fundamental rights WHENEVER implementing EU measures
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
AKZO
‘uniform tendency’
Why was res judicator ignored in Lucchini?
would have prevented recovery of state aid granted in breach of EU law
German court dismissed ‘maximum standard’ approach, so fundamental right could only belong to one Member
Mannesmannrohren-Werke
Factortame on national bodies that must apply supremacy
Set aside rule against interim relief if prevents ‘full effectiveness of the judgment’
Article 2 TEU
Expresses list of EU founding values
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
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
What case is the first Solange of Germany?
Internationale Handelsgesellschaft mbH
What was the declaration in the Lisbon Treaty instead of?
TECE proposed supremacy clause
What case stated that special criteria to assess particular Member constitution would ‘lead inevitably to the destruction of the Common Market’?
Hauer
In what case was it said that the ECJ offers protection ‘substantially similar to the unconditional protection of fundamental rights under Constitution’?
Wunsche Handelsgesellschaft
What did Members refuse to include in Fundamental Rights Agency?
Monitoring of Members for the purposes of Article 7 TEU
NS and Others
Inhumane and degrading treatment by UK and ireland
Internationale Handelsgesellschaft mbH general
Maize, subsidy on export
What case showed EU law is supreme, even over Constitution?
Germany v Council
What case saw rejection of ‘special criteria’ to assess particular Member’s constitution?
Hauer
ERT v Dimotiki general
Greece ban on certain TV ads
What Article was violated in Schrems?
Article 8 ECHR
What Article states conditions of respect for EU founding values to be a Member
Article 49 TEU
Opinion 2/13 on EU Accession saw the CJEU emphasise what about the EU legal order?
It is autonomous
What Treaty declared primacy?
Lisbon Treaty
Elchinov
Lower court can seek ruling on compatibility of higher court with EU law, regardless of binding nature of higher court
ITWF and FEU v Viking Line general
Strike, ‘re-flag’, trade unions
ERT v Dimotiki judgment
Any restriction on FM still needs to comply with fundamental rights
What does Article 6(3) TEU lack reference to?
International human rights treaties and instruments other than the ECHR
Name at least two cases exploring national bodies which must apply the supremacy doctrine
Simmenthal, Factortame, Lars and Elchinov
Strike, ‘re-flag’, trade unions
ITWF and FEU v Viking Line
Name two cases showing balance between exercise of economic freedom and protection of public interest
ERT v Dimotiki; ITWF and FEU v Viking Line
What did Costa v ENEL lead to concern about?
HRs would be undermined under domestic constitutions
Stauder general
Affirmed category of general principles of EU law
In what two ways can a solange principle operate?
Positive or negative
Kadi II judgment
Less deferential to EU institutions and international institutions like UN Security Council
Advantage of Declaration 17 Lisbon of Treaty
Less controversial and clearer than original supremacy clause in TECE
What case shows the ECJ requiring a national rue preventing interim relief be set aside to ensure ‘full effectiveness of the judgment’?
Factortame
Name at least one case showing a challenge to EU legislation
Digital Rights Ireland; Kadi I; Kadi II
Kadi I and II cited only what?
Charter and ECHR
Wunsche Handelsgesellschaft judgment
As long as EU protection of fundamental rights satisfactory, no individual review
What was the primacy point made in Internationale Handelsgesellschaft mbH?
EU law has primacy, regardless of national legislation/rights/constitutional structure
Inhumane and degrading treatment by UK and Ireland
NS and Others
What was the outcome of schemers?
National supervisory authorities can review EU-US data transfers to stop data snooping and protect Article 8 ECHR
What case required ‘uniform tendency’ among Members for the approach to be a general principle?
AZKO
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
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
Same meaning and scope if Charter and ECHR overlap, but EU law can provide ‘more extensive protection’
Article 53(2) Charter
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
Name at least one case showing supremacy principle is applicable to national laws pre-dating and/or post-dating EU law
Simmenthal; Winner Wetten
What case saw rejection of the ‘maximum standard’ approach?
Mannesmannrohren-Werke
Williams criticised Article 7 TEU how?
Lack of practical usage
