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EU Law > European union law > Flashcards

European union law Flashcards

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1
Q

principle of conferral?

A

EU has only the competences conferred on it by the Treaties

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2
Q

Competences not conferred upon the Union in the Treaties remain with…

A

remain with the Member States

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3
Q

Costa v ENEL

A

established the primacy of European Union law over the laws of its member states

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4
Q

ways treaties confer powers on to the EU

A
  • express powers
  • implicit powers
  • derive from article 352 TFEU
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5
Q

what are express powers

A

identify in an express mode the topics that the UE is competent to adopt normative acts, directive, decisions

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6
Q

what are implicit powers

A

If EU has power to legislate internally, but treaty does not recognize corresponding power to conclude an international agreement in the field which is object of regulation inside the union, the court of justice recognizes implied power to conclude international agreement in that area

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7
Q

case about implicit powers

A

ERTA

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8
Q

reasoning behind implicit powers

A

coherence between internal and external action of EU

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9
Q

when can competences

be derived from article 352 TFEU

A

if action is required by the EU, but in order to comply with objectives of EU, and the treaties do not provide power to the EU

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10
Q

process for powers derived from 352 TFEU

A

commission gives proposal to do so, and the parliament has to consent
- treaty does not define consent. presume absolute majority of parliament

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11
Q

before union can act, what must it always have

A

ALWAYS HAS TO BE RECOGNIZED WHAT IS THE LEGAL BASIS OF ACTION OF EU
- if no solid basis, its invalid

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12
Q

the three division of competences between the EU and EU countries?

A
  • exclusive competences
  • shared competences
  • supporting
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13
Q

exclusive competences

A

areas in which the EU alone is able to legislate and adopt binding acts
- member states have released power

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14
Q

if the union has exclusive competences, how can member states influence the legislation of the union?

A

through the council and their membership here

- MS cannot legislative unilaterally, but they still have the right to vote and sit in the council

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15
Q

areas where EU has exclusive competence?

A
  • customs union
  • establishing competition rules
  • monetary policy for euro (central bank)
  • conservation of marine biological resources
  • common commercial policy
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16
Q

what is the customs union

A

free movement of goods + common external tariff

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17
Q

what does common commercial policy include?

A
  • rules that refer to international trade (imports, exports, international investments)
  • international dimension of IP rights
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18
Q

who has competence over international IP rights

A

the EU

- states cannot unilaterally decide anything

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19
Q

what are shared competences?

A

EU and EU countries are able to legislate and adopt legally binding acts
- member states have not released all the power

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20
Q

why is it politically important to put limits on action of union in areas of shared competence?

A

because once the EU legislates, it occupies the field and member state can no longer adopt regulation that contradicts the EU one

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21
Q

wrt shared competences, can MS get back power?

A

yes can get back if EU stops using the competence

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22
Q

how does treaty manage the power of union wrt shared competences?

A

through principle of subsidiarity

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23
Q

what is principle of subsidiarity

A

serves to regulate the exercise of the Union’s non-exclusive powers

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24
Q

when can union intervene (principle of subsidiarity)?

A

can only intervene if the objectives of proposed action cannot be sufficiently achieved by the action of the MS alone
- union has to justify action by saying its okay with principle of subsidiarity and proportionality

25
Q

what areas where MS cannot achieve objective, and needs union (principle of subsidiarity)?

A

eg environment

- areas where we need common/harmonized rules

26
Q

principle of proportionality

A

content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties

27
Q

what are supporting competences

A

EU can only support, coordinate or complement the action of member countries. It has no power to pass laws and may not interfere with member countries’ ability to do so

28
Q

hierarchy of union law

A
  • eu treaties (TEU, TFEU, Charter)
  • general principles
  • secondary legislation
29
Q

what is primary law

A

supreme source of law of the European Union

- prevails over everything

30
Q

primary sources of EU law

A
  • Foundation Treaties (TEU, TFUE)
  • charter
  • Accession Treaties and other International Treaties of reform
  • It complies with the requirements to be an autonomous legal order
31
Q

characteristics of primary law

A
  • supremacy

- direct effect

32
Q

scope of primary law

A
  • temporal: for unlimited period

- territorial- 27 member states and overseas territories

33
Q

can you revise treaties? what must happen?

A

yes, to adapt to new challenges

- EU countries must unanimously agree on the revision of the Treaty provisions concerned

34
Q

what is the ordinary revision procedure?

A

concerns key amendments made to the Treaties

- such as increasing or reducing competences of EU

35
Q

ordinary revision process

A
  • national gov, european parliament, or commission can submit proposal to council
  • if european council gives positive decision, a convention starts to examine proposal (no convention if amendments not so important)
  • then conference of representatives of gov of eu countries
  • changes come into force once ratified by all eu countries
36
Q

what is the simplified revision procedure

A

for amendments of eu’s internal policies and actions

37
Q

what does the simplified procedure avoid

A

the convention and conference

38
Q

how does simplified procedure work

A

council acts by unanimity having consulted the Commission, the European Parliament (and central bank if about monetary things)
- Amendments to the Treaties only enter into force if they have been ratified by all EU countries

39
Q

what are Passerelle clauses’

A

Where the Treaties provide that an act is to be adopted by the Council acting unanimously, the European Council may adopt a Decision (unanimously after consent of EP) authorizing the Council to act by qualified majority

40
Q

general principles of eu law

A

Court of Justice often goes to this source of law, in order to clarify and complete the provisions of the Treaties
- gap filling function

41
Q

general principles are ___

A

binding norms

42
Q

general principles:

A
  • right to judicial protection
  • principle of equal treatment or non-discrimination
  • principle of proportionality
  • principle of legal certainty
  • principle of the protection of LE
  • rights of defence
  • Rebus sic stantibus, pacta sunt servanda
43
Q

Rebus sic stantibus, pacta sunt servanda (racke case)

A

legal doctrine allowing for a contract or a treaty to become inapplicable because of a fundamental change of circumstances. An “escape clause”
- eg war changed conditions

44
Q

what other general principles have the courts recognized?

A

principle of primacy, direct effect

45
Q

International agreements as source of eu law?

A

international agreements concluded by EU are source of legal obligations in the EU legal order
- express and implied powers

46
Q

whats last in the eu legal order

A

secondary law

47
Q

what are the types of secondary law

A
  • regulations
  • directives
  • decisions
48
Q

characteristics of regulations

A
  • general application (Binding on anyone that comes under its scope)
  • binding in its entirety
  • directly applicable (creates rights and obligations from moment it comes into force)
49
Q

why can regulations be directly applicable

A

very specific

- eg burned

50
Q

difference between Regulations with a legislative character and executive regulations

A

legislative character = expresses will of legislator (dont hunt seals)

executive character = how prohibition on seals will happen

51
Q

what happens if regulation is not respected?

A

can be used as a piece of law in a member state court against the state or another individual
- direct effect

52
Q

what are directives

A

are binding obligation to be achieved within a deadline, upon all of the Member States to whom they are addressed

53
Q

what do directives leave to national authorities?

A

the choice of form and methods

- national legislators must adopt a transposing act or ‘national implementing measure’

54
Q

what do directives lay out

A

criteria, but not exhaustive. Up to member states to decide how equality should be achieved (concrete measures

55
Q

are directives directly applicable?

A

no
- Directives tell member states to do something, so when passed they need a piece of legislation to make them into national law

56
Q

what happens when a country does not transpose a directive

A

Commission may initiate infringement proceedings

57
Q

how can individual invoke rights to a directive?

A
  • Cant go to judge and ask to apply directive

- Look for the right in the implemented legislation!!!! You invoke the right through the implemented legislation

58
Q

are decisions directly applicable?

A

depend on its terms and whether the decision leaves room to the State to adopt discretionary measures to implement the decision

EU Law (7 decks)

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