European Law Flashcards
Direct effect
Treaty creates legal rights which could be enforced by legal and natural persons before the courts of community member states. Law must be clear, precise and unconditional to have direct effect
Costa v. ENEL
In the case of Costa v. ENEL, Mr. Costa claimed that the nationalization of ENEL in Italy was unlawful under community law and as a result the ECJ established the supremacy of Community Law over the laws of its member states, arguing that the EEC Treaty has created its own legal system which limits the sovereign rights of the member states and creates binding rights and obligations.
Dassonville
The Dassonville judgement is a preliminary ruling of the court as regards the free movement of goods and competition in which the court gave a broad definition on measures having an effect equivalent to a quantitative restriction on imports (MEEs).
Simmenthal
In the Simmenthal judgement the ECJ decided that every national court at any level was obliged to give supremacy to community law, and apply it in preference to any national law that might be inconsistent, even if it is adopted later.
Four fundamental freedoms
The European Union’s (EU) internal market seeks to guarantee the free movement of goods, capital, services, and people – the EU’s “four freedoms” – within the EU’s 28 member states
Cassis de Dijion (Rewe-Zentral)
This judgment, known as the ‘Cassis de Dijon judgment’, introduced the principle of mutual recognition allowing for products lawfully marketed in one MS to be marketed in other MS even when the product does not comply with a MS technical rules and in addition determined the grounds for allowing prohibition or restriction on imports in addition to those stated in Art. 36 of the TFEU.
Keck and Mithouard
The Keck judgement decided that national provisions prohibiting “certain selling arrangements’ (in this case resale at a loss) to products from other Member States falls outside the scope of the prohibition laid down by Article 34 TFEU, so long as (1) those provisions apply to all relevant traders operating within the national territory and (2) so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
Primary law
Treaties
Secondary law
Directives and Regulations
Bosman
In the Bosman ruling, the Court considers that Article 48 (now Article 45) of the EC Treaty regarding free movement of workers and abolition of any discrimination based on nationality precludes (schliesst aus) the application of the rules laid down by sporting associations with regard to transfers of professional players and to nationality clauses.
Gebhard Proportionality Test
In the Gebhard ruling the ECJ decided that national measures that hinder or make the exercise of fundamental freedoms less attractive have to be (1) non-discriminatory, (2) justified by the imperative requirements in the general interest, (3) suitable for securing the attainment of the objective which they pursue and (4) they must not go beyond what is necessary in order to attain it. Proportionality test: objective, suitable and necessity.
Säger
In the Säger case the ECJ decided that non-discriminatory measures for restrictions in the freedom of services can be justified by overriding reasons relating to the public interest, they however have to comply with the proportionality test and justified by the imperative reasons relating to the public interst.
Types of cases
Preliminary ruling – when national courts ask the Court of Justice to interpret a point of EU law.
Annulment procedure – against EU laws thought to violate the EU treaties or fundamental rights.
Infringement procedure - ECJ has the power to go to a MS and say that they breached a law or failed to fulfill its obligations.
Braserie du Pecheur SA & Factortame III
In the Brasserie du Pêcheur & Factortame case the legislative body of two MS breached primary law causing damage to third parties and the ECJ decided that a state becomes liable for reparation payment to the damaged party when the damage is attributable to legislative measures of a MS given that (1) the breached law conferred rights to individuals, (2) that the breach was sufficiently serious and (3) that there is a casual link between the breach and damage suffered by the injured parties
Francovich
In the Francovich case Italy did not transpose a directive that was supposed to protect workers in case of employer insolvency, causing damage to a group of workers and the ECJ created the Francovich principle which says that a state becomes liable for reparation payment to the damaged party when it does not fulfill its obligation to transpose a directive given that the (1) directive conferred rights to individuals (right holder), (2) it is possible to identify the content of those rights (guarantee) and (3) that there is a casual link between the breach of state obligaton and damage suffered by the injured parties.
Martinez Sala
The Martinez Sala case can be understood as the beginning of European Union Citizenship as being more than just a mechanism for participation in the economic internal market, because the court decided that Martinez Sala, a Spanish national residing in Germany and not working, was being discriminated on grounds of nationality as the German authorities refused to grant her a residence permit and a child raising allowance.
Baumbast
In the Baumbast case the court argued that Article 18(1) (20 TFEU) had direct effect and thus conferred to nationals of MS the right as a union citizen to move and reside freely in the territory of all other MS even if they are economically inactive, however, this right is subject to certain limitations which have to be applied in accordance with community law and the principle of proportionality.
Internationale Handelsgesellschaft
The court recognised in the Internationale Handelsgesellschaft case that respect for fundamental rights forms an integral part of the general principles of Community law and thus established the moment of creation of fundamental rights within the union. General principles of law inherent in all MS constitutions. Measures adopted have to be in line.
Test-Achat
The insurance exemption in the Gender Directive, which allows insurers to take sex into account when calculating premiums and benefits, goes against the principle of equal treatment between men and women and is invalid with effect from 21st December 2012.
Seidic and Finci
In the Seidic and Finci case the European Court of Human Rights in Strasbourg declared that a provision of the Daytona Convention for Bosnia Herzegovina that only allows Bosniacs, Croats and Serbs to be elected as presidents and in the house of people violates the right of non-discrimination and thus represents the only case where the court in Strasbourg declared a provision of a constitution as unlawful.
Kadi & El Barkaat
In the Kadi case the ECJ decided that judicial review covers all Community acts, even if they are designed merely to give effect to resolutions adopted by the UN Security Council and specially emphasized that measures which are incompatible with the observance of fundamental rights are not acceptable in the Union. However, International Law still takes precedence over Union Law.
Pupino
In the Pupino ruling the court transposed “interpretation conforme” derived from the principle of loyal/ sincere cooperation, which originally was developed in the first pillar, to the third pillar and thus decided, that a Council framework decision concerning police and judicial cooperation in criminal matters must be respected in a national criminal court case.
Advocaten voor de Wereld
The Court of Justice confirmed the validity of the framework decision on the European arrest warrant, rejecting the claims made against it in relation to the inappropriate nature of the legal instrument used and the alleged infringement of the principle of equality and non-discrimination and the principle of legality in criminal matters.
Opinion on EEA
In the opinion on EEA the ECJ said that the establishment of an EEA court is not possible as some aspects of the agreement jeopardized the autonomy of the EC legal order and that homogeneity between both legal orders could not be guaranteed.
