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EU LAW > EXAM REVISION > Flashcards

EXAM REVISION Flashcards

1
Q

Questions:

A

Answers:

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2
Q

The Grounds for Challenge of Judicial Review (1 case per ground)

A

1) Lack of Competence - (ultra vires act) - Case = Menidiatis 2009; 2) Infringement of an essential procedural Requirement - Case: Roquette Freres (1980) -Concerned consulting parliament, it didn’t, and the action was made void. 3) Infringement of the Treaty / Rules relating to its application - Broad grounds: ‘Proportionality’ = Comission v Germany, ‘Equality’ = R Louwage v Commission 1974; 4) Misuse of Powers Act of an insitition trying to achieve an objective not under the powers conferred upon it, Case = Wenning (2009). Court examines, purposes intended of act, purpose of the provisions under which the act was adopted - to see if the act followed this purpose.

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3
Q

Cases: Jego-Quere(2002) & UPA (2002)

A

Judicial Review / Unprivilieged Applicants / Plaumann Test. CASE: Jego (C. of F.I.), aside from Codorniu, Jego was the first case to relax the conditions set out in the Plaumann test, for non-privileged applicants to challenge Union Law under Art. 263. CASE: UPA 2002- (tightened back up conditions) Reaffirmed the pre-Jego restrictiveness, “Not for the court to decide the Locus Standi of applicants” - should be done via MS’s amending the treaties </p>

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4
Q

Judicial Review. Discuss & Define.

A

Defined = to protect rights of individuals / MS, treaties provide for an extensive system of judicial review to ensure the Union institions fulfill their obligations. JR also safeguards the rights of institutions against one another. Art 263 - C.o.J. may consider an action for annulment of an act of the institutions. (individuals may also ask for review, provided they meet the Plaumann test). Action to be brought within 2 months. Locus Standi - does the applicant have it? (basically Capacity). What may be brought? Anything legally binding - regulations, decisions, Directives. Right to challenge based on Privileged, semi-privileged, non-privileged status of the applicant. </p>

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5
Q

Who are Privilieged, semi-privileged, and non-privileged applicants? (art 263)

A

Privileged = Member States, Council, Commission, Parliament. Semi Privileged = European Bank, Court of Auditors, Standing Committees. Non-privileged = Private individuals and companies. </p>

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6
Q

Types of Competences in EU law. Explain.

A

Exclusive = EU only has competence to legislate = Customs Union, Common Commerical Policy, and so on. Shared: between the MS and the EU, they both may legislate = Energy, Internal Market, Environment. Supportive = EU may legislate to support the MS’s = Protection of Human Health, Industry, Culture, Tourism. </p>

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7
Q

The Insitutions: The European Council

A

European Council (27 heads of State, Pres of Euro Council, Pres of Commission) (bi-annual meeting) No formal powers. Functions: provides Union with Political impetus, represents EU externally, nominates Commission President, appoints the entire Commission, appoints High Rep for FA.</p>

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8
Q

Name the Primary Sources of EU Law

A

TFEU, TEU, Charter of Fundamental Rights, Euratom Treaty</p>

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9
Q

6 Founding Nations of EU

A

France, Germany, Italy, Benelux</p>

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10
Q

Single European Act 1986

A

Began the Internal Market Programme. Introduced QMV. Formalisation of European Council. Creation of Co-operation Procedure. Harmonisation in health and safety, professional qualifications, VAT, frontier controls.

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11
Q

Maastricht Treaty 1993

A

Introduced the Principle of Subsidiarity in Law making process. Created status of Citizen of the EU. Created the ombudsman. Changed rules on appointment of commission. Modified/expanded powers in area of economic and social cohesion. </p>

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12
Q

EU Membership Exapansion 1995

A

Austria, Finland, Sweden</p>

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13
Q

EU Membership Expansion 2007

A

Bulgaria & Romania</p>

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14
Q

EU Membership Expansion 1973

A

UK, Denmark, Ireland</p>

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15
Q

Treaty of Rome 1957

A

Created European Economic Community and EURATOM. “to lay the foundations of an ever closer union amongst the peoples of Europe” - Formation of a supranational organisation, creation and maintenance of a teriff-free market, removal of national economic barriers.</p>

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16
Q

Treaty of Paris 1952

A

Supranational Authority created, European Coal and Steel Community. Members accepted mutual obligations and limited their sovereign rights and transferred them to independent institutions. </p>

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17
Q

Lisbon Treaty 2009

A

abolishment of 3 pillar system, EU acquires legal capacity and becomes successor to EC, EU now organised into TEU, TFEU, and charter of FR; EU insitutions increased to 7; Increased democratic accountability; EU now more structured, coherent, democratic, and better prepared for new applicant states. </p>

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18
Q

Official Sources of Information

A

Judgments fo the Court of Justice - ECR, Common Market Law Reports. Journals - CML Review, EL review. </p>

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19
Q

Directives. Purpose and nature.

A

shall be binding, as to the result to be achieved, upon each MS to which it is addressed, but shall leave it to the national authorities to implement. Must be implemented in a certain amount of time. Purpose: to allow achievement of common objectives throughout the MS. </p>

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20
Q

Decisions. Purpose and Nature.

A

Binding upon who it is addressed to. Made by the Commission or the Council and addressed to a specific individual. Decisions can be challenged at COJ. </p>

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21
Q

Recommendations and Opinions.

A

Not binding, only persuasive. </p>

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22
Q

Case Law of the COJ.

A

are authoritative on all aspects of the Treaties, acts of the Institutions, and acts of the MS’s. Doctrine of Precdent does not operate - Court may depart from earlier rulings. </p>

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23
Q

General Principles of EU Law.

A

Proportionality = legislative measures should not go beyond what is necessary to achieve the desired objective. Subsidiarity - the EU may only legislate on an issue that the MS’s cannot effectively legislate on themselves. Equal Protection/Non-discrimination = including age, nationality, etc. </p>

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24
Q

The Insitutions: The Court of Auditors

A

the watchdog- supervises the budget and keeps EU spending accountable - helps clarify the annual budget. </p>

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25
Q

The Insititions: The Court of Justice of the European Union

A

(27 judges, 6 year term, one from each MS- though it can sit with less in hearings) Assisted by 8 advocates General; 2 stage appointment process - 1st -panel of 7 legal experts, 2nd- appointed by common accord of the gov’ts of the MS. Functions: (19TEU) Infringement actions against MS, Legality of Union Action/Inaction, Preliminary rulings on Interpretation/ validity of EU law, Appeals from General Court on Points of Law (within 2 months). Court can impose financial penalties to MS for not fulfilling obligations in the Treaties, Can rule on international agreements entered into by the Union, the COJ acts as both a court of First Instance and an appeal Court from the General Court. </p>

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26
Q

Who are the Advocates General?

A

8 judges who whose task is to examine cases and deliver reasoned opinions to the court. Appointed for term of 6 years. </p>

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27
Q

The General Court (Court OFI)

A

Consists of 1 judge from each MS appointed under same criteria as COJ judges; No advocates general- one of the judges provide preliminary rulings; To ease the workload of the COJ, the single European Act provided for creation of a Court of First Instance. Hears cases from Natural/legal persons including actions for judicial review and actions for damages against the Union Institutions/MS. Lisbon treaty renamed it to the GC. Jurisdiction = contractual/non-contractual liability of the Union and compensation for damages in that event; European trademarks, appeals against civil service tribunal; arbitration clauses in Union contracts. </p>

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28
Q

The Institutions: The Council of the European Union (The Council)

A

Ministerial Level of officials- The power of decision (legislation) now shared jointly with Euro Parl and the Council. Establishes the budget along with the Parl. One from each MS, appointed by their respective MS government. </p>

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29
Q

The Institutions: The European Parliament

A

(736 members, representing 501 million citizens of MS of EU, with a minimum number of MEP’s from one country at 5 and 99 at max; directly elected every 5 years throughout all MS; all citizens of the EU are eligible to vote and stand for election. Functions and powers: Supervisory, Legislative, Budgetary - Art 223-234 TFEU.</p>

30
Q

The Institutions: The Commission (How are the President and Commissioners selected)

A

27 Commissioners, includes high rep for FA&SP, European council nominates the President of the Commission by QMV, Euro Parl then approves of appointment by vote. The President Elect - will nominate commissioners-nominate, which are then voted on in Euro Parl. Commissioners serve 5 year terms and must be independent beyond doubt, Commission is supervised by Euro Parl -power to censure, monthly reports, annual general report. Forbidden from taking instructions from my any MS govt. President can force a commissioner to resign. Functions: Known as the GUARDIAN OF THE TREATIES; 3 main categories- Guardian of the treaties, Initiator of Union Action, Executive of the Union. </p>

31
Q

Free Movement of Goods - Discuss.

A

Elimination of duties/tariffs a fundamental objective of the Union. Customs Union is an exclusive competence of EU. Shields national industries from pressure of imports. Is horizontally and vertically directly effective. 3 areas of focus - Imposition of Custom duties and those having equivalent effect (art28-30), discriminatory internal taxation (art110), Quantitative Restriction on imports/exports and measures having equivalent effect (art34-36)</p>

32
Q

Article 34 covers all trading rules enacted by MS which are capable of hindering EU internal Trade; name the first case dealing with this issue-

A

Case 8/74 Procureur du Roi v Dassonville </p>

33
Q

What is the Public Service Exception?

A

Art 45 (4) an exception stating that public service workers do not benefit from the other provisions of article 45. </p>

34
Q

Give an Example ofwhich the Court of First Instance has challenged the application of the Plaumann Test and a case in which the Court of Justice reverted back to a narrower test.

A

COFI -CASE: Jego-Quere 2002, relaxed the standing rules; COJ - CASE: UPA (2002) tightened the standing rules to pre -Jego interpretation. </p>

35
Q

Who is the President of the European Council and the High Representative for FA&SP, after their creation at the Lisbon treaty?

A

Herman Van Rompuy and Catherine Ashton (Respectively)</p>

36
Q

Identify two innovative aspects of Directive 2006/123 (Services Directive)

A

Simplified Administration Procedure, and General Coverage. </p>

37
Q

What are the innovations of Directive 2004/38 (the citizens directive)?

A

covers the rights for self-employed persons and their families to enter and leave the host state for the purpose of establishing themselves or providing or receiving services. </p>

38
Q

One of the potential consequences of Cassis de Dijon Case was that it may lead to a ‘deregulatory spiral’ - WHY?

A

Lowest common denominator would keep dropping; if one MS lowers standards it will take away from other MS and they will consequently drop their prices - vicious cycle of reducing the prices. </p>

39
Q

What is the difference between the Right of Establishment (art49-55 TFEU) and the Right to provide/receive Services (Art59-62 TFEU)?

A

Right of Establishment = art 49, 54 TFEU= allows MS nationals to set up business as self-employed persons in another MS. The right to provide/receive services is different, art. 56 relating to services gives a temporary right lasting only as long as the services are provided and only if the provisions in Art 49 do not apply. There is a dichotomy here between permanent and temporary rights and it determines the extent to which the host and home state are entitled to regulate the behaviour of the service provider. (the rights apply both to natural/legal persons)lost </p>

40
Q

Directive 89/48

A

For the mutual recognition of diplomas, certificates and other evidence of formal qualifications or, as the case may be, for the coordination of national provisions concerning the taking-up and pursuit of activities as self-employed persons.</p>

41
Q

Gebhard v Milan Bar (1995)

A

RIGHT OF ESTABLISHMENT v RIGHT TO PROVIDE SERVICES - Gebhard a German National, was suspended for using the title Avvocato (the professional legal title) - In a preliminary ruling from the General Court, it was indicated that he should be considered under the Right of Establishment as opposed to the Right to provide Services as he had pursued on a stable and continuous basis, a professional base in a Member State other than the State of origin of an activity directed towards, among others, nationals of the host State. In the ruling it seems as though Gebhard would be entitled to use the Avvocato title and his suspension would be removed. This would be for the Italian National Court to do however, as this was just a preliminary ruling. Used the Criteria established in Commission v Luxembourg (1992).</p>

42
Q

Kraus v Land Baden-Wuerttemberg (1993)

A

RIGHT OF ESTABLISHMENT- PROFESSIONAL QUALIFICATION - Key case citing the guidelines stipulated by the a host counry for entry into a particular profession. IE- national measures liable to hinder of make less attractive a fundamental freedom, must meet the 4 conditions) - 1 requirements must be applied to the applicant in a non-discriminatory manner, 2-must be justified by imperative requirements in the general interest, 3- must be suitable for obtaining the objective desired, 4- they must not go beyond what is necessary in order to attain it</p>

43
Q

5 types of cases/actions heard by the Court of Justice:

A

1-Requests for Preliminary Rulings, 2- Actions for failure to fulfill an obligation(brought against EU govts for not applying EU law), 3- Actions of annulment (art263TFEU) brought against EU laws thought to violate the treaties or fundamental rights, 4- Actions for failure to act (art265-TFEU)- for failure to make decisions required of them, 5 -direct actions brought by individuals/companies against EU decisions/actions.

44
Q

List the Universal Principles of the Internal Market

A

Free Movement of Goods, Persons, Services, and Capital.

45
Q

Factortame Litigation (No.4)

A

State Liability / Damages / Sufficiently Serious Test - Mere infringement of Union law may be sufficient to establish the existence of a sufficiently serious breach. Types: judgment by the court findinf in breach of union law, persisted in action despite that judgment, taken no action to implement a directive, acted in the face of established Union Law.</p>

46
Q

Factortame Litigation (No. 3) & Brasserie du Peucheur v Germany

A

Direct Effect / Damages / Compensation / State Liability - Claims for compensation as a result of conflicting national and Union law. Conditions set as: 1- rule of law must be intended to confer rights on individuals, 2- breach must be sufficiently serious, 3- direct causal link between breach of obligation on the state and damage sustained by the injured parties. </p>

47
Q

Francovich (1991)

A

Damages/ State Liability - Beginning of MS liability as a default position to provide effective right rights for individuals. 3 Conditions to be found liable in damages -1) directive must confer rights for the benefit of individuals, 2)content of the rights must be identifiable from the directive, 3) must be a causal link between the damage suffered and the breach. </p>

48
Q

Dassonville (1974)

A

Free movement of goods / Art 34 TFEU – Established the Dassonville Formula - Belgian gov’t required a certificate of origin for Scotch Whisky imported via France; this was found to be against art 34. TFEU that covers all trading rules enacted by the MS which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade. </p>

49
Q

Cassis De Dijon (1978)

A

Free Movement of Goods / Art 34 TFEU – French importer of Red Currant Wine was denied as Drink didnÕt meet German Alcohol content standards – “Limitation of free movement of goods is only permitted in exceptional cases, in accordance with the principles of Art 36 (public health, moral grounds)…</p>

50
Q

Article 5 (2) TEU

A

Principle of Conferral: The Union may only act within the limits of the competences conferred upon it by the MS in the Treaties. </p>

51
Q

Membership Requirements are located where in the TEU?

A

Article 49 - Conditions for Membership </p>

52
Q

Define Articles TFEU 263, 265, 277.

A

JUDICIAL REVIEW / - 263 = CoJ considers an act of annulment of an act of one of the institutions. 265 = Failure to act by an institution may be challenged (and compelled to act in future). 277 = Means of Indirect Review where the “plea of illegality” is invoked. </p>

53
Q

Directive 2004/38

A

RIGHT OF ESTABLISHMENT / FREEDOM TO PROVIDE SERVICES – Covers rights for self-employed persons and their families to enter and leave the host state for the purpose of establishing or providing or receiving services. </p>

54
Q

CASE: Bergaderm (1998)

A

EU LIABILITY FOR DAMAGES / Established 3 conditions to prove liability for damages caused by the Union’s action - 1) law breached confers rights directly on the individual, 2) breach is sufficiently serious, 3) Direct causal linnk between the breach caused and the damages sustained. (Follows Factortame litigation)

55
Q

Commission v Luxembourg (1992)

A

RIGHT OF ESTABLISHMENT / PROFESSIONAL BODY QUALIFICATION / - created 4 criteria necessary to become a member of a Professional body in another MS: 1- must apply equally to nationals and non-nationals, 2 -must be justified by imperative requirements in the general interest, 3- suitable for the objective which they pursue, 4- they must not go beyond what is necessary to attain their objective

56
Q

Thieffry v Conseil des Avocats de Paris (1977)

A

Right of Establishment / Art 49 - “If a person has already obtained a professional qualification and had satisfied the necessary training requirements, there should be no obstacle to his admission to a professional body in another MS. Precluded the cases of Commission v Luxumbourgh (1992), Kraus (1993), and Gebhard (1995)

57
Q

Indirect Effect. Discuss.

A

Sometimes called “UNIFORM INTERPRETATION” - Vertical (state to EU) & Horizontal (state to state) effect - Court creates an obligation on national courts to interpret national law in such a way as to achieve the aim of the directive. Stipulated in article 4.3 TEU.

58
Q

Van Gend En Loos (1963)

A

DIRECT EFFECT OF EU LAW / - Established criteria for when direct effect is applicable - 1) must be sufficiently precise, 2) unconditional, 3) not involve discretion in method of implementation. Establishes rights to be gained by individuals not just obligations enforced on them.

59
Q

Direct Effect - Explain.

A

DEFINED: Union law creates private enforceable rights for citizens which may be exercised in national courts as if it were the law of the land. Not set out in founding treaties - developed through case law of CoJ. </p>

60
Q

Costa v Enel (1964)

A

Direct Effect / Primacy of EU law - reinforces Van Gend en Loos judgment - “Membership entails transfer of certain competences which mean a permanent limitation of MS sovereign rights, and therefore any national legislation incompatible with EU Law cannot prevail. </p>

61
Q

Plaumann v Commission (1962)

A

Judicial Review / Non-Privileged Member Application - THE PLAUMANN TEST CRITERIA = the individual concern here must be as if it had been addressed to him personally, either alone, or as a member of a closed group. Plaumann not given locus standi as he was just one importer affected by a general problem. Tight interpretation. “Applicants must show that the decision affects them by reason of certain attributes which are PECULIAR TO THEM or by which they are differentiated from ALL OTHER PARTIES.” </p>

62
Q

Keck (1991)

A

Free Movement of Goods / Art 34 TFEU / Quantitative Restrictions – Limited the scope of measures according to Art 34, insofar as certain types of rules are allowed according to their subject matter. Selling arrangements not considered restrictions. Does not contribute to legal certainty. Does not follow Dassonville Formula or Cassis De Dijon. Evolution of art 34 in cases is = Dassonville, Cassis de Dijon, Keck.

63
Q

Explain the ‘Public Service’ exception in the context of free movement of workers.

A

Member States can exclude nationals of other MS from working in their domestic Public Service - (any gov’t department)</p>

64
Q

In order for an action in non-contractual liability against the Union to succeed, 3 conditions must be met:

A

Judicial review / EU Liability - Law breached confers rights directly on an individual, breach is sufficiently serious, Direct Causal link between the breach caused and the damage sustained. </p>

65
Q

Give examples of Exclusive, Shared, and Supportive competences of the EU.

A

EX: Customs Union, Common Commercial Policy; SHARED: internal market, environment, Supportive: protection of human health, Tourism. </p>

66
Q

Restriction of Workers from another MS. Discuss-

A

> FREE MOVEMENT OF WORKERS / Art 45(3)/ Dir 2004/38 – MS may restrict access to employment of other MS nationals on the grounds of public policy, security, and health. </p>

67
Q

Regulation 1612/68

A

FREE MOVEMENT OF WORKERS/ provides that any national of a member state, irrespective of his residence, has the right to take up activity as an employed person in accordance with the provisions alotted to Nationals of the host MS. Sameworking conditions must be afforded as that of a national of the home state. </p>

68
Q

CASE: Bosman (1995)

A

FREE MOVEMENT OF WORKERS / RESTRICTIONS - held, restrictions could be applied to foreign EU nationals where such restrictions pursue a legitimate aim that is justified in the public interest and is proportionate to that aim. </p>

69
Q

CASE: Angonese (1998)

A

Free movement of workers / direct effect - Established that the principle of non-discrimination under article 45 TFEU, does have horizontal direct effect as it is regarded as applying to private persons as well. Angonese would found to have been discriminated against based on a language requirement for a job application. </p>

70
Q

CASE: Von Colson (1984)

A

Indirect effect - Where a directive is indirectly effective (i.e. not directly effective) national legislation must be interpreted in the light of the wording and purpose of the directive. </p>

71
Q

CASE Marleasing (1990)

A

Indirect effect - The obligation to interpret national law to comply with a directive applies regardless of whether the national law was adopted before or after the directive.</p>

EU LAW (1 decks)

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