EU week 1

Question 1

week 1;

history of EU treaties

Answer 1

1. 1950s = Economic Coal + Steel Community
   => 1952 - formation of ECJ
2. 1957 Rome Treaty
   => EURATOM (eur atom energy community)
   => European Economic Community
   => 1986 EEC renamed Euoprean Community
3. 1992 Maastricht treaty
   => established EU - known as treaty of European Union (TEU)
   => 3 pillar structure
4. 1997 Amsterdam Treaty
5. 2001 Nice Treaty
6. Lisbon treaty signed 2007, in force 2009 - today
   => got rid of 3 pillar structure
   => established TEU + TFEU as main sources
   => led to formation of CJEU (=ECJ)

Question 2

week 1;

Are ECJ judgments on “old” Treaties still valid?

Answer 2

YES - they are often just under dif articles

Question 3

week 1;

treaty provision vs treaty article

Answer 3

article = the ‘paragraph’ of a treaty, it may contain many provisions

provision = the ‘rules’ of a treaty, they create the treaty article

Question 4

week 1;

outline EU core institutions

include articles

Answer 4

1. European Parliament
   - legislative pwr
   - represent individuals
2. Euorpean Commission
   - executive power
   - rep interests of Union
3. The Council (of ministers)
   - legislative power
   - reprs interest of MS
4. European Council
   - NO legislative pwr
5. ECJ = CJEU
6. court of auditors
7. European central bank

Question 5

week 1;

The Council vs European Council vs Council of Europe

Answer 5

1. The Council
   - also known as the council of minsiters / the council of european union
   - has legislative powr, rep MS
2. The European Council
   - no legislativ power
   - president = charles michel
3. The Council of Europe
   - NOT AN EU INSTITUTIONS - its for intr law and upholds HR

Question 6

week 1;

WHICH EU INSTITUTIONS PRODUCE LAW?

Answer 6

yes;
- parliament
- the council (of ministers)
- court of justice = case law = most important
- commission => does not enact legislation!

no;
- european council
- european central bank
- court of auditors

Question 7

week 1;

primary + secondary sources of EU law

Answer 7

primary;
- TEU + TFEU
- CRFEU = charter of fundamental rights of EU

secondary;
- Legal Acts found in Art. 288 TFEU
1. regulation
2. directive
3. decision
4. recommendation - non-binding
5. opinion - non-binding

• case law = CJEU/ECJ decisions
• general principles

Question 8

week 1;

regulation vs directive vs decision

Answer 8

1. Regulations
   - most invasive
   - used when uniformity across MS is necessary
   - direct vertical effect = leonesio
   - direct horizontal effect = simmenthaal
2. Directives
   - certain aim is imposed on MS but they can choose how to achieve it
   - direct vertical effect = Marshall
   - direct horizontal effect = does not exist
3. Decisions
   - least invasive
   - directed at a specific country
4. recommendations
5. opinions

Question 9

week 1;

HOW DOES THE CJEU PRODUCE LAW?

Answer 9

• through case law

judgements stem from 2 dif types of procedures / judicial actions;

1. preliminary rulings - Art. 267 TFEU
   the EU court checks if entities (ex. member states, organizations, individuals) are interpreting + applying laws correctly
2. Review of EU institutions’ acts (Articles 263-264 TFEU): The EU Court checks if laws made by EU institutions follow the rules set by the EU treaties.

Question 10

week 1;

direct effect

Answer 10

Certain EU laws can be directly enforced by people in their own country’s courts. If a law has direct effect, individuals can rely on it to protect their rights without waiting for their country to change its own laws

aka certain provisions of EU legislation can be directly invoked in natinoal courts by individuals

vertical = individual vs state
horizontal = individual vs individual

Question 11

week 1;

Van Gend en Loos

rule + facts

Answer 11

DIRECT VERTICAL EFFECT OF EU TREATY PROVISION

facts;
- VGenLOOS is a company bringing goods from ger to nl
- nl wanted to impose tax #illegal, rome treaty is an agreement that was traditionally applied between countries NOT private entities - can priv entity use this provision?

rule;
a provision has direct vertical effect IF;

1. sufficiently clear
2. unconditional

• ONLY can apply if u r given the actual provision
• CANNOT be applied to directives (use Marshall)
• CAN be applied to regulations (but first u must use leonesio)

Question 12

week 1;

Defrenne

Answer 12

fact;
- deffrene the flight attendant argued that being forced to retire at 40 violated her rights of equal pay protected under art. 119 TEC (aka 157 TFEU)
- (woman vs company = two priv entites)

rule;
DIRECT HORIZONTAL EFFECT EU TREATY

1. mandatory in nature = must, shall
2. creates obligations applicable between individuals

• ONLY can apply if u are given the actual provision
• CANNOT be applied to directives (use Marshall)
• CAN be applied to regulations (but first must use leonesio)

Question 13

week 1;

Costa vs Enel

Answer 13

facts;
- nationalization of an electric company

EU LAW TAKES PRECEDENCE OVER NATIONAL LAW

• ONLY apply if state argued national law should prevail over EU law FOR A REASON
• Ex; national rule is more specific, recent, etc.
• IF IF the law is in the constitution of the country => u dont apply costa v enel u apply SOLANGE
• IF its just a dispute of national law vs eu law = its direct effect

Question 14

week 6;

SOLANGE

Answer 14

fact;
- germany claimed EU law contradicted fundamental principles in german constituitional law
- court said no it doesnt

rule;
This case CLARIFIES THE PRINCIPLE OF SUPREMACY established by Costa v Enel;

• Even the most significant constitutional rules within a member state cannot invalidate an EU measure or its effects within that member state (par 3)

=> Therefore ⇒ The impact of EU law within a member state cannot be affected by allegations that it runs contrary to the fundamental principles of the state (par 4)

Question 15

week 4;

REVIEW the LEGAL ACTS OF THE UNION

““To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.”

regulation vs decision vs directive

state article + explain

Answer 15

Art. 288 TFEU

REGULATIONS + DECISIONS:
- can directly bind individuals as well as States (aka have horizontal or vertical direct effect)

DIRECTIVES:
- only bind States directly, as to the result to be achieved.
- Individuals are directly bound by the national acts of transposition of the Directive.
- aka ONLY VERTICAL EFFECT
- HORIZONTAL EFFECT OF DIRECTIVES DOES NOT EXIST

Question 16

Indirect Effect

Answer 16

• use if conflict between eu rule + national rule, national rule is hinted at but no specific provision is included
• if specific provision included = apply van gend

rule;
Can the regulation be read in light with & conformity with EU law?

to check u apply the 3 limits;
1. interpretative methods recognized by law
2. general principles of law are upheld
3. no contra legem interpretation (against wording of the provision - changes meaning)

if all yes = the regulation can be read in light + conformity = direct effect

if no = conflict between eu law vs national law = - if regulation = apply leonesio (horizontal) or simmenthal (vertical)
- if directive = apply marshall

Question 17

week 4;

LEONESIO

Answer 17

facts;
- EU regulation said farmers must get paid for every slaughtered cow
- farmer leonesio was not paid = mad at gov
- do regulations create individual rights?
- leonesio vs gov

rule; DIRECT vertical EFFECT OF REGULATIONS
1. regulations have direct vertical effect (aka create indiviudal rights)
=> derived from art. 288(2) TFEU
=> only if clear + unconditional (van gend en loos)

2. national gov cant create conditions or additional requirements to the regulation (ex. time limit)
   => cant modify the regulation
   => cant create other legislation to contradict the regulation
3. if regulation regards pecuniary rights, gov cant withold payment by relying on national law

• ## ONLY APPLIES TO PROVISIONS WHICH ARE CLEAR + UNCONDITIONAL (so apply van gend NEXT)

Question 18

week 4;

SIMMENTHAL II;

Answer 18

facts;
- Simmenthal a french canned meat company importing meat to italy - Italy set a regulation stating meat industries have to pay a tax for a public health inspection
- Simmenthall said this goes against EU

rule;
DIRECT HORIZONTAL EFFECT OF REGULATIONS
1. regulations have direct horizontal effect
=> if clear + uncondotional (van gend)
=> if mandatory + established between individuals (deffrenne)

2. community law takes precedence over national law
3. If a national rule conflicts w/ an EU provision that has direct effect it should be dissaplied
   - priv entites can rely on the rule even if MS legislative branch did not do this yet

• u can only apply IF DIRECT EFFECT IS MET (van gend+ then defrenne + then Leonesio)

Question 19

MARSHALL

Answer 19

facts;
- UK girly named marshall forced to retire at age 60
- this is #discrimination which is #illegal under a directive - but the directive was not implemented in UK
- do directives have direct effect?

rule;
A DIRECTIVE HAS VERTICAL EFFECT IF IT IS;
1. unconditional
2. sufficiently precise
3. implemented on time
4. implemented correctly

• directives never have horizontal effect (p48)

Question 20

direct effect vs direct applicability

Answer 20

Direct applicability = When an EU law, like a regulation or certain treaty provisions, automatically applies in a country without needing that country to make its own laws to match.

direct effect = Certain EU laws can be directly enforced by people in their own country’s courts. If a law has direct effect, individuals can rely on it to protect their rights without waiting for their country to change its own laws

example;
For REGULATIONS;
- the direct effect is a consequence of their direct applicability (under Article 288(2) TFEU: Leonesio; Simmenthal II)

For TREATY PROVISIONS which meet all requirements for direct effect (Van
Gend & Loos + Defrenne II);
- the direct applicability is a consequence of their direct effect.

If a PROVISION OF A DIRECTIVE meets all Marshall requirements for direct
effect;
- this provision (not the whole Directive: only that provision!) is directly applicable:
=> aka the direct applicability is a consequence of their direct effect.

Question 21

week 4;

proportionality + subsidiarity test

Question 22

week 6;

history of EU Charter of Fundamental Rights

Answer 22

-

Question 23

week. 6;

Does Art 51(1) of the Charter preclude the horizontal effect of the Charter rights in
private relationships?

Answer 23

In simpler terms, the question is whether the EU Charter applies only to actions of governments and public bodies, or if it also applies to interactions between private individuals, such as employers and employees, businesses and consumers, or individuals and organizations in the

preclude = preventprivate sector.

answer;
NO = aka the charter can have both vertical and horizontal effect

Question 24

week 6;

Egenberger

Answer 24

facts;
- ms egenberger wanted a job at evangelist organization
- she was rejected cuz shes not religous = she got emo, acc to eu fundamental rights u cant religous discriminate
- q; do eu fundamental rights have direct horizontal effect?

rule;
EU FUNDAMENTAL RIGHTS HAVE DIRECT HORIZONTAL EFFECT IF;
1. the Art. is mandatory + sufficient in itself (par 78)
2. unconditional (bauer)

Question 25

week 6;

Breur

Answer 25

facts;
widows wanted money after their husbands died, german law said not allowed, eu charter says yes allowed

rule;
To have direct effect an eu charter provision must;
- be mandatory
- unconditional + sufficinet in itself (egenberger)
- (par 85)

To have direct horizontal effect a eu charter provision must;
- Entail a corresponding obligation on an individual (par 90)

Question 26

SO for charter provisions to have direct effect they must;

Answer 26

1. mandatory (egenberger)
2. sufficient in itself (egenberger)
3. unconditional (bauer)

AND for them to have HORIZONTAL DIRECT EFFECT they must ADDITIONALLY;
1. entail a corresponding obligation on an individual (priv party) (breur)

Question 27

week 5;

Facini Dori

Answer 27

f;
- girly named facini dori concluded a contract abt english course
- wanted to cancel it by relying on an EU DIRECTIVE BUT italy did not transpose it into national law on time so she #couldnt and #lost money and she wanted #financial compensation

rule;
WHEN STATE FAILS TO IMPLEMENT DIRECTIVE ON TIME RESULTING IN ECONOMIC DAMAGE, indv can claim compensation IF;
1. purpose of the directive must be to grant rights to individuals
2. there was failure to transpose the directive correctly or on time
3. it must be possible to identify the content of those rights on the basis of the provision
4. there was economic damage
5. there is a causal link between the breach of the state’s obligation and the damage suffered

Question 28

Brasserie

Answer 28

f;
- ger didnt let french company import beer into ger bc of ger law, fre company said #illegal
- fre comp wanted compensation for money they lost by not being allowed to import their beer

rule;
STATE LIABILITY (clarification of facini dori)
the state is liability (guilty) and can give reparations to injured party IF;
1. there is a breach of law
2. the rule of law infringed is intended to confer rights on individuals
3. the breach must be sufficiently serious

• member state manifestly and gravely disregarded the limits on its disgretion (they overstep the boundires - go too far)
• was the rule breached clear + precise
• the measure of discretion left by that rule to the national authorities (they had freedom on how far to take it. if high discretion = lots of freedom, if low discretion = not lots of freedm)
• was the infringement and damage cdaused intentional or invluntary
• was the error of law excusable or inexcusable

(seriousness of financial damage is not a factor,
3. there must be damage sustained
=> economic financial damage
4. there must be a direct causal link between the breach of the obligation and the damage sustained
=> “if not for” test

Question 29

3 key principles of EU law enforcement at a national level;

Answer 29

1. Direct effect
2. indirect effect (consistent interpretation in light + conformity of eu)
3. supremacy (primacy)

• EU law enforced through national procedural rules

Question 30

Rewe

Answer 30

EU procedural rules take precedence over national procedural rules
IF there are no EU procedural rules ⇒ national procedural rules apply

2 limitations regarding national procedural autonomy; Principle of Effectiveness the rights granted under EU law should not be practically impossible or excessively difficult to practice aka member states must ensure that their procedural rules do not create unreasonable barriers or obstacles that would prevent individuals from exercising their EU-guaranteed rights

Principle of Equivalence
procedural conditions governing this right may not be less favorable than those governing rights of a similar nature under domestic law
So, if your country has rules that make it easy to use a certain right internally, the rules for using that same right under EU law shouldn’t be harder to obtain for an individual

Question 31

enforcement of EU law

Question 32

Chernobyl

Answer 32

Legal base disputes;

Centere of gravity test = the choice of a legal basis msut be based on objective factors which predominantly include aim and content of the measure (par 9)

Question 33

Ireland v Parliament

Answer 33

legal base dispute
=> USE IF INTERNAL MARKET IS MENTIONED;

RULE;
if differences between MS national rules exist, and the dif obstruct fundamental freedoms (free movements of goods, persons, services, etc. found in art. 26 or art. 114 TFEU) of the internal market OR create distortions of competition (create unfair advantages for buisnesses - think cow stomach + shoe vs chair making) and this negatively impacts the functioning of the internal market = u can use ARt. 114

(par 63 and par 71)

Question 34

Tobacco Advertising I

Answer 34

legal base disputes;
=> USE IF INTERNAL MARKET IS METNIONED

rule;
1. the genuine aim of the treaty rule has to be abt bettering the functioning of the internal market
2. if it is abt small differences between MS national rules, but the differences are so small that the impact they have on the internal market is not that big = u CANT use Art. 114 (the dif are not sufficient enough)

(par 84)