EU lawmaking Flashcards
What is enhanced cooperation?
*A form of flexible integration within the
framework of the EU Treaties (Art. 20 TEU)
*Allows at least nine member states to adopt
geographically limited EU law outside the
acquis of the Union in a uniform procedure
*e.g., Rome III Regulation, Unitary Patent
Regulation
What constitutes the principle of
decentralised enforcement of EU
law?
*Decentralised enforcement of Union law
by the authorities and courts of the
member states, Art. 19 (1) TEU, Art. 291
(1) TFEU
*Exception: Own/direct enforcement by
the Union only if there is an explicit legal
rule
Give examples of own/direct
enforcement of Union law
*Competition law
*Foreign trade law
*Union Funds
*Research and science funding
*Cross-sectional tasks (human resources,
budget, internal organisation)
What is meant by the principle of
procedural autonomy?
*The MS responsible for the enforcement of
Union law shall provide for the necessary civil,
public or criminal proceedings and procedural
law → national law applies
*Exception: Union law itself lays down
procedures for its enforcement
◦Example Art. 77 ff. GDPR
◦Example Antitrust Damages Directive 2014/104/EU
Which principles restrict the
procedural autonomy of the
member states?
1)Principle of equivalence
2)Principle of effectiveness
What is meant by the principle
of effectiveness?
*Case 33/76, Rewe-Zentralfinanz
*National (procedural) law must not make
the enforcement of Union law practically
impossible or excessively difficult
What is meant by y the principle
of equivalence?
*Case 33/76, Rewe-Zentralfinanz
*National (procedural) law may not be
less favourable than the rules applicable
to similar domestic actions
The Merchant Shipping Act 2020 introduced new
requirements in Ireland for registering a fishing vessel
as an Irish vessel. Spanish fishers were subsequently
barred from fishing in Irish waters. They sought
judicial review of the compatibility of the 2020 Act with
the EU Treaties and an injunction (interim relief) to
stay the 2020 Act pending a final judgment. Under
Irish common law, the courts do not have the power
to suspend Acts of Parliament by way of interim relief.
Can the Spanish fishers rely on Union law for
interim relief?
- C-213/89, Factortame I
◦A national provision which could prevent, even
temporarily, the full effectiveness of Union rules is
incompatible with Union law
◦The full effectiveness of Union law would be
equally affected if national law could prevent a
court from granting interim relief
◦National courts are therefore obliged to grant
interim relief against national legislation which is
being reviewed for its compatibility with Union law
Can a claim for damages against
Member States for breach of Union law
be based on Article 340(2) TFEU?
- No, Art. 340(2) TFEU provides for the Union’s
liability to pay damages in the area of noncontractual liability for damage caused by its
institutions or by its servants in the
performance of their duties ≠ Member States
➢Gap in the Union legal system
Can one claim damages against a MS
for breaches of EU law?
- C-6/90 and C-9/90, Frankovich → Why?
◦ Principles governing the enforcement of Union law by
national institutions
◦ Linkage between the Union and national systems of legal
protection
◦ Supremacy of Union law and direct effect
◦ Obligation of national courts to ensure the full effect of
Union law and to protect the subjective rights of
individuals
◦ Loyal cooperation of MS: remedying unlawful
consequences
What is direct effect?
= EU provision becomes the immediate source
of law for the national court or administrator. No
further implementing act is necessary for its
application within the national legal order.
Basis for direct effect: The judgment
Van Gend & Loos (Case 26/62
It follows from the foregoing considerations
that, according to the spirit, the general
scheme and the wording of the Treaty, Article
12 must be interpreted as producing direct
effects and creating individual rights which
national courts must protect.
Artilce 12 EEC: Member States shall refrain from introducing between themselves any new
customs duties on import or exports or any charges having equivalent effect, and from
increasing those which they already apply in their trade with each other.
The arguments of the ECJ in Van Gend
& Loos (Case 26/62)
The objective of the EEC Treaty, which is to establish a Common
Market, the functioning of which is of direct concern to interested
parties in the Community, implies that this Treaty is more than an
agreement which merely creates mutual obligations between the
contracting states. This view is confirmed by the preamble to the
Treaty which refers not only to governments but to peoples. It is also
confirmed more specifically by the establishment of institutions
endowed with sovereign rights, the exercise of which affects
Member States and also their citizens. Furthermore, it must be
noted that the nationals of the states brought together in the
Community are called upon to cooperate in the functioning of this
Community through the intermediary of the European Parliament
and the Economic and Social Committee.
In addition the task assigned to the Court of
Justice under Article [267], the object of which
is to secure uniform interpretation of the Treaty
by national courts and tribunals, confirms
that the states have acknowledged that
Community law has an authority which can be
invoked by their nationals before those
courts and tribunals.
The conclusion to be drawn from this is that the Community
constitutes a new legal order of international law for the benefit
of which the states have limited their sovereign rights, albeit
within limited fields, and the subjects of which comprise not only
Member States but also their nationals. Independently of the
legislation of Member States, Community law therefore not only
imposes obligations on individuals but is also intended to confer
upon them rights which become part of their legal heritage. These
rights arise not only where they are expressly granted by the
Treaty, but also by reason of obligations which the Treaty imposes in
a clearly defined way upon individuals as well as upon the
Member States and upon the institutions of the Community
The wording of Article 12 contains a clear and
unconditional prohibition which is not a positive but a
negative obligation. This obligation, moreover, is not
qualified by any reservation on the part of states which
would make its implementation conditional upon a positive
legislative measure enacted under national law. The very
nature of this prohibition makes it ideally adapted to
produce direct effects in the legal relationship between
Member States and their subjects.
General conditions for direct effect
- Individual right or obligation
- Sufficiently clear and precise
wording - Without restriction or further
conditions barring its immediate
enforcement
Direct effect of Regulations
Muñoz (C–253/00)
Owing to their very nature and their place in the
system of sources of Community law,
regulations operate to confer rights on
individuals which the national courts have a
duty to protect.
