European Law

Question 1

Direct effect

Answer 1

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

Question 2

Costa v. ENEL

Answer 2

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.

Question 3

Dassonville

Answer 3

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).

Question 4

Simmenthal

Answer 4

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.

Question 5

Four fundamental freedoms

Answer 5

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

Question 6

Cassis de Dijion (Rewe-Zentral)

Answer 6

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.

Question 7

Keck and Mithouard

Answer 7

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.

Question 8

Primary law

Answer 8

Treaties

Question 9

Secondary law

Answer 9

Directives and Regulations

Question 10

Bosman

Answer 10

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.

Question 11

Gebhard Proportionality Test

Answer 11

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.

Question 12

Säger

Answer 12

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.

Question 13

Types of cases

Answer 13

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.

Question 14

Braserie du Pecheur SA & Factortame III

Answer 14

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

Question 15

Francovich

Answer 15

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.

Question 16

Martinez Sala

Answer 16

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.

Question 17

Baumbast

Answer 17

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.

Question 18

Internationale Handelsgesellschaft

Answer 18

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.

Question 19

Test-Achat

Answer 19

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.

Question 20

Seidic and Finci

Answer 20

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.

Question 21

Kadi & El Barkaat

Answer 21

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.

Question 22

Pupino

Answer 22

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.

Question 23

Advocaten voor de Wereld

Answer 23

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.

Question 24

Opinion on EEA

Answer 24

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.

Question 25

Grimme

Answer 25

The Court specifies the scope of the Agreement with Switzerland in the field of the free movement of persons and argues that it does not apply to freedom of establishment by a legal person or freedom to provide services longer than 90 days per year.

Question 26

Art 263 TFEU

Answer 26

Annulment procedure (originally Art. 173 Rome Treaty) + infringement procedure + scope of the ECJ

Question 27

Principle of recognition of standards (also called mutual recognition)

Answer 27

Allow products lawfully marketed in one member state to be marketed in an other member state. If not, you need a good reason under Art. 36 TFEU

Question 28

Principle of non-discrimination

Answer 28

ECJ: On the basis of nationality.

European Court of HR: On the basis of ethnicity or race.

Question 29

Interpretation conforme

Answer 29

States that a national court of a MS is under obligation to interpret national law in conformity with EU law. Developed around the principle of loyal and sincere cooperation Art. 4 TEU.

Question 30

Principle of the legality of criminal offenses and acts (nullum crimen, nulla poena sin lege)

Answer 30

Principle of criminal law which implies that legislation must define clearly offenses and the penalties which they attract - condition met when individual is in a position on the basis of the wording of the relevant provision and judicial assistance to know which acts or omissions will make him criminally liable .

Question 31

Principle of subsidiarity

Answer 31

The principle of subsidiarity is established in Article 5 TEU.

The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the Member States. This may concern action at European, national or local levels.

In all cases, the EU may only intervene if it is able to act more effectively than Member States (transnational dimension).

Question 32

Principle of conferral

Answer 32

The principle of conferral is established in Article 5 TEU.

The Union only has the competences conferred upon it by the Treaties.

Question 33

Right to reparation

Answer 33

If a State breaches its obligations or omits to take action it becomes liable, so a legal or natural person can seek reparation of such damages. Valid for both primary and secondary law.

Conditions to met:

1) Provision must confer a right
2) The breach must be serious (manifestly and gravely)
3) There must be a causal link between the breach of the obligation and the damages sustained by the individual.