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**A-EU Constitutional > institutions & Competences > Flashcards

institutions & Competences Flashcards

1
Q

Which article states that the Court of Justice shall ensure that the interpretation and application of the Treaties is observed?

A

Art 19

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2
Q

What does Art 19 say?

A

states that the Court of Justice shall ensure that the interpretation and application of the Treaties is observed

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3
Q

European Court of Justice established two important constitutional doctrines showing the autonomy of the Community legal order, which two cases?

A

Van Gend en Loos

Costa v ENEL

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4
Q

Van Gend en Loos
Costa v ENEL

summarise these cases where the European Court of Justice established two important constitutional doctrines showing the autonomy of the Community legal order

A

Van Gend en Loos and the direct effect of the Treaty in the national legal orders

Costa v ENEL and the Supremacy of Community law over national law

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5
Q

What was the main point in Van Gend en Loos?

A

that EC law not only imposes obligations on individuals but it also intended to confer upon them rights
Community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights

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6
Q

that EC law not only imposes obligations on individuals but it also intended to confer upon them rights
Community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights

which case

A

van gend en loos

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7
Q

What is the empty chair policy?

A

Luxembourg accord, meant that MS could insist on unanimous voting in the Council even where qualified majority voting was constitutionally provided

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8
Q

Which article governs the European Council?

A

article 15

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9
Q

Why was Van Gend en Loos so important?

Law Meets History Rasmussen

A

Commission argued that EU law went beyond international law because of the objectives of the EEC and special nature of the institutions

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10
Q

Which case reflected where European Court of Justice presented a coherent overall vision for the development of EL by holding they had an exclusive competence to interpret EU law and decide which European legal norms had direct effect?

A

Borsch

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11
Q

How did the ECJ defend their exclusive competence to interpret EU law and decide with European legal norms had direct effect in Borsh?

A

they said the fact the treaty went beyond the traditional agreement of international law. This was confirmed in the preamble of the treaty which referred to the people, not to the governments and also by the establishment of treaties with sovereign rights; impacting states and citizens

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12
Q

Tell something about Amsterdam Treaty 1997

A

was about consolidation
It is known as a “vanishing Treaty”, because it only made amendments to the existing Treaties (and therefore vanished after its provisions were effective).

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13
Q

Something about the Nice Treaty 2000

A

Amsterdam treaty had not tackled institutional reform for Eastern Enlargement. the “amsterdam leftovers’

Commission President and the list of Commissioners can now be nominated by qualified majority rather than “common accord” (= unanimity). The powers of the Commission President to organize the Commission have been strengthened.

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14
Q

Something about Lisbon treaty 2007

A

this dual treaty did no longer distinguish between a community-treaty and a union-treaty, the new Union would be a single organisation.

Libson Treaty abolished the pillars of the Maastricht Union

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15
Q

Where are the Unions institutions defined?

A

Title III of the TEU and the central provision is Art 13 which states the institutional framework shall aim to promote EU values, objectives and interests to ensure consistency, effectiveness and continuity of its policies and actions

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16
Q

Something about the composition of the EP

A

Art 14
For the European Parliament was not directly elected, they are delegated national parliamentarians.

It was to “consist of delegates who shall be designated by the respective Parliaments from among their members in accordance with the procedure laid down by each Member State”.

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17
Q

Which article defines composition of EP

A

Art 14

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18
Q

What does Art 14 TEU state about EP composition?

A

Shall be composed of representatives of the Union’s citizens
Shall not exceed 750, now 705 following Brexit
Representation is digressively proportional
Minimum threshold of 6 members per MS
Maxmimum of 96 seats

EC shall adopt by unanimity, a decision establishing the composition of the EP

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19
Q

What does the national quotas for EP seats show a compromise between?
Art 14

A

a compromise between the democratic principle and the federal principle. For while the democratic principle would demand that each citizen in the Union has equal voting power (“one person, one vote”), the federal principle insists on the political existence of States. The result of this compromise was the rejection of a purely proportional distribution in favour of a degressively proportional system. The degressive element within that system unfortunately means that a Luxembourg citizen has ten times more voting power than a British, French or German citizen.

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20
Q

How much more voting power does a Luxembourg citizen have in comparison to British, French or German?

A

10 x because f the digressively proportional system

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21
Q

Parliament’s Rules of Procedure stipulate that a political group (7) must comprise a minimum of how many members and MS?

A

25 members and compromise of Members elected in at least 1/4 of the MS

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22
Q

How did the powers of Parliament increase?

A

treaty of Paris it merely had supervisory power, Rome Treaty expanded this to advisory and supervisory, which recognized the active power of Parliament to be consulted on Commission proposals before their adoption by the Council.

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23
Q

What does Art 14 say about EP duties?

A

EP shall jointly with the Council, exercise legislative and budgetary functions, an functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.”

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24
Q

What is EP’s principal power?

A

in the making of EU laws , it can informally propose new legislation but not entitled to formally propose bills

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25
Q

Who has the task of making legislative proposals?

A

Commission

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26
Q

What is the ordinary legislative procedure?

A

the joint adoption by the EP and the Council on a proposal from the Commission (Art 289)

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27
Q

What is the special legislative procedure? (3) Art 289

A

Consent procedure: Parliament must give its consent before the Council can adopt European legislation. (negative power as P cannot suggest positive amendments)

Consultation procedure: P merely needs to be consulted

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28
Q

Parliament must – first – “elect” the President of the Commission. And it must – secondly – confirm the Commission as a collective body.
Which article determines this?

A

Art 17 TEU

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29
Q

Which article demonstrates the functions of EP

e. g
i) Normative function: With Council and Commission for inter-institutional procedures

ii) Monitoring function: inquiries, questions, petitions, election of the ombudsman, motion of censure
(230 the Commission shall reply orally or in writing to questions put to it by the EP )

A

Art 231

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30
Q

the Union has a Dual executive? who

A

European Council and Commission

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31
Q

1957 Rome Treaty had charged the Council with the task to?

A

“to ensure that the objectives set out in this Treaty are attained”.

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32
Q

1957 Rome Treaty had charged the Council with the task “to ensure that the objectives set out in this Treaty are attained”.how has this changed?

A

EP has limited the Council’s legislative role and the European Council has restricted the Councils executive powers

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33
Q

What is the Council?

A

the federal chamber where national governments meet

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34
Q

What does Art 16(2) state?

A

The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.”

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35
Q

which article?
The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.”

A

Art 16(2) TEU

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36
Q

What is main feature of the Presidency of the Council under Art 16(9)?

A
  1. rotating presidency, held by pre-established groups of 3 MS for a period of 18 months.

special rule for Foreign Affairs

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37
Q

What is COREPER:

A

Committee of Permanent representatives.

“Coreper”. The Permanent Representative is the ambassador of a Member State at the European Union

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38
Q

What are the two principal forms of voting in the council?

A

unanimity voting (requiring consent of all national ministers) and majority voting (the constitutional norm art 16(3)

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39
Q

Article 16(3) TEU

A

the Council shall act by a qualified majority except where the Treaties provide otherwise

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40
Q

what constitutes a qualified majority of MS in the Council?

before 2014 Art 16(4)

A

controversial. Weighted votes.

some extent digressively proportional but also with symbolic compromises

Smaller States have claimed that it favours the bigger Member States and have insisted that the 260 votes must be cast by a majority of the States.

bigger Member States, by contrast, have complained that the weighing unduly favours smaller Member States and have insisted on the political safeguard that the 260 votes cast in the Council correspond to 62% of the total population of the Union.

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41
Q

How does the decision making in Council demand a triple majority? (until 2014 when a new system was in place via Art 16(4) by Lisbon Treaty)

A

majority of the weighed votes must be cast by a majority of the MS representing a majority of the Union population

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42
Q

Art 16(4) TEU

A

qualified majority shall be defined as at least 55 per cent of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 per cent of the population of the Union.

43
Q

which article? qualified majority shall be defined as at least 55 per cent of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 per cent of the population of the Union.

A

Art 16(4) TEU

44
Q

how have smaller states qualified Council voting following Art 16(4)TEU?

A

A qualified majority will be ‘deemed attained’, where fewer than four States try to block a Council decision, otherwise with a population threshold of 65 per cent of the Union population would mean that any three of the four biggest States of the Union could block a Council decision.

45
Q

Art 16

A

Council shall jointly with EP exercise legislative and budgetary functions. Policy making and coordinating functions

46
Q

an example of qualified majority voting in Council

A

Art 50: a MS which decides to withdraw shall notify the European Council of its intention, the agreement shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament

47
Q

which article describes the ordinary and special legislative procedure?

A

Art 289 TFEU

48
Q

What are trilogues?

A

 The triologues system is designed to create informal bridges during the formal co-decision procedure that opens up posisbilities for agreement at first an second reading stages, and thus may be held at all stages of the ordinary legislative procedure.

49
Q

 Early Agreements through Triolgues are effective.

How many are granted?

A

Between 2009-2014, 400 procedures were granted at the first reading, around 10 were rejected.

50
Q

What does the Commission consist of? Art 17

A

one national of each MS ‘“on the ground of their general competence and European commitment from persons whose independence is beyond doubt”.
5 years

51
Q

Art 17(6) TEU explains what?

A

powers of the Commission President

52
Q

what are the 3 powers of the Commission President? Art 17(6)

A

1) lay down guidelines
2) decide on international organisation of the Commission
3) appoint vice presidents

53
Q

Art 17: tasks of Commission

A

to shall oversee the application of Union law under the control of the Court of Justice of the European Union.

54
Q

Art 17 distinguishes six different functions. The first three functions constitute the Commission’s core functions.
What are they?

A

1) to promote the interests of the Union through initiatives
Commission is given almost exclusive right to formally propose legislative bills

2) to ensure the application of the treaties (e.g by secondary legislation)
Direct enforcement of EU law can be best seen in the context of European competition law

3) guardian of the Union, significant powers to police the Union. Commission has the power to bring infringement proceedings against MS and other institutions (Art 105)

55
Q

Art 358 TFEU

A

Commission considers a MS has failed to fulfil an obligaton under the treatoes, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the MS does not in the period laid down, commission can bring the MS before the CJEU

56
Q

which article?
Commission considers a MS has failed to fulfil an obligaton under the treatoes, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the MS does not in the period laid down, commission can bring the MS before the CJEU

A

Art 358 TFEU

57
Q

What article states that the European Parliament may vote on a motion of censure of the Commission, meaning the Commission shall resign as a body

A

Art 234

58
Q

What is the role of EU Agencies?

A

primary function is to assist the Commission in its task to ensure and oversee the application of European law.

59
Q 
Composition of European Court of Justice
Art 19(2) TFEU
A

one judge from each MS
independence beyond doubt
Not appointed by MS by an independent advisory panel
6 years

60
Q

which article describes composition of ECJ?

A

Art 19(2)

61
Q

Functions and powers of the ECJ are classified in which article?

A

Art 19(3) TEU

62
Q

Functions and powers of the ECJ are classified in Art 19*3) TEU:

A

a) rule on actions brought by a MS
b) give preliminary rulings at the request of courts or tribunals of the MS on the interpretation of EU law
c) rule in other cases provided for in the Treaties

63
Q

The latter arrive at the Court indirectly through preliminary references from national courts. The powers of the Court under the preliminary reference procedure are set out in a single article , which?

A

Art 267 TFEU

64
Q

What are the two constitutional gaps in the jurisdiction of the Court?

A

1) no jurisdiction with respect to the Common Foreign and Security Policy (Article 275 TFEU).
2) no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State

65
Q

what article defines European Council?

A

Art 15

66
Q

Art 15: European council

composition and functions?

A

no legislative powers, consists of the Heads of State or Government and President of the Commission

67
Q

Principle of Conferral, which article?

A

Art 5(2)

68
Q

Art 5(2), principle of conferral

subsidarhrity and proportionality

A
  1. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States,

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

69
Q

What are the 4 types of competences of the EU?

A

Exclusive, shared, coordinating and complementary

70
Q

Article 3: the Union shall have exclusive competence in which areas? (2)

A

customs union
establishing competition rules
common commercial policy

71
Q

Where are there shared competences? (art4)

A

internal market

social policy

72
Q

What are the 3 reasons used to justify an expansive interpretation of Union competences?

A

1) teleological interpretation,
2) the general legal bases in the Treaties, such as Article 114 and Article 352 TFEU.
3) the doctrine of implied or parallel powers.

73
Q

Article 114: General competence

A

EU is permitted to adopt harmonisation measures ‘which have as their object the establishment and functioning of the internal market

74
Q

what are the two general competences

A

114 and 352 TFEU

75
Q

Article 352 TFEU:

A

If action by the Union should prove necessary, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”

76
Q

Case with Art 114

A

Tabbacco advertising

Article 114 does not provide a general power to regulate the internal market; measures must genuinely have their objective set on improving market conditions and remove existing or future obstacles to inter-state trade

• As long as these two requirements are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires

77
Q

Tabbacco advertising

A

Article 114 does not provide a general power to regulate the internal market; measures must genuinely have their objective set on improving market conditions and remove existing or future obstacles to inter-state trade

• As long as these two requirements are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires

78
Q

Opinion 2/94 on general competences: Art 352 TFEU

A

 the Court here established that Art 352 was designed to fill the gap where no specific treaty provision confers on the EU institutions express or implied powers to act.

79
Q

what is minimum harmonisation

A

The national legislator can adopt higher standards. e.g environmental competence

80
Q

examples of areas of complementary Union competence

A

culture, tourism, education

81
Q

Art 217 TFEU?

A

“The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.”

82
Q

which article?
“The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.”

A

Art 217

83
Q

Art 217 the Union can conclude international agreements, whenever it has an internal competence
which case?

A

ERTA

84
Q

Union can agree on international agreements on its own, but where the external competence of the Union is sharedshared with the Member States, the Union often concludes international agreements “jointly” with the Member States. What is a positive and negative of a mixed agreement such as WTO agreement?

A

Mixed agreements allow MS to feel as though they remain visible on the international scene
However the use is a anti-Union consequence as ratificiation by all MS requires unanimity

85
Q

 Even where the Union has competence and is entitled to adopt legal rules under a legal basis, two principles will set a constitutional limit to the EU.
What are they ?

A

subsidiarity and proportionality

86
Q

Edinburgh guidelines of subsidiarity and proportionality said what ?

A

that care should be taken to respect well-established national arrangements and the organization and working of Member State legal systems. […]

87
Q

What did the Amsterdam Protocol on Subsidiarity and Proportionality (1997 say?

A

“The [Union] shall legislate only to the extent necessary.
Directives as provided for in Article [288] of the Treaty, while binding upon each Member State to which they are addressed as to the result to be achieved, shall leave to the national authorities the choice of forms and methods.”

88
Q

Subsidarity test is set out in which article?

A 
Art 5(3) 
the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States
89
Q

Art 5(3)
the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States
which principle/

A

subsidiarity test

90
Q

Which case is the subsidiarity test explained?

A

Netherlands v Council (Biotechnology Directive)
in areas which do not fall within its exclusive competence, the [Union] is to take action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States
e, it is clear that, given the scale and effects of the proposed action, the objective in question could be better achieved by the [Union].

91
Q

Case for what?
Netherlands v Council (Biotechnology Directive)
in areas which do not fall within its exclusive competence, the [Union] is to take action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States
e, it is clear that, given the scale and effects of the proposed action, the objective in question could be better achieved by the [Union].

A

subsidiary Art 5(3)

92
Q

Two ways MS can protect against EU law abuse of subsidiarity Art 5(3)?

A

Lisbon Subsidiarity Protocol (Art 6)
-within 8 weeks national parliament can state why it considers the draft legislative act not to comply with subsidiarity

Art 7: Yellow Card Mechanism

each national parliament has two votes, where opinions represent 1/3 of all votes for non-compliance

93
Q

What does proportionality require?Art 5(4) TFEU

A

“the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties” (Article 5 (4) TEU).

94
Q

 Even where the Union has competence and is entitled to adopt legal rules under a legal basis, two principles will set a constitutional limit to the EU.

How does the proportionality test also have a human rights angel?

A

Even where the Union has a competence to act (enumeration) and where is it is shown that is better placed to tackle a social problem than the Member States (subsidiarity), the Union must not “disproportionately” violate the interests of Europe’s citizens.

95
Q

Which case demonstrates proportionality? Art 5(4)

A

The Queen v Minister of Agriculture

outright prohibition would create dangerous black market, prohibition has excessive damages

Where there is a choice between several appropriate measures

96
Q

Case for what?
The Queen v Minister of Agriculture

outright prohibition would create dangerous black market, prohibition has excessive damages

Where there is a choice between several appropriate measures

A

proportionality Art 5(4)

97
Q

What are reviewable acts under Art 263(1)

A

CJEU can review legislative acts, acts of the Council, Commission, not recommendations and opinions, and acts of EP and EC intended to produce legal effects vis a vis third parties

98
Q

What are the 4 grounds for review by CJEU under Art 263(2)

A

lack of competence

infringement of an essential procedural requirement

infringement of EU law (proportionality)

misuse of power

99
Q

What Act gives the Commission power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act

A

Art 290(1)

100
Q

What is Art 290(1)

A

• A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act

101
Q

what is a political safeguard of delegated legislation?

A

• The European Parliament or Council may decide to revoke the delegation
The delegated act may enter into force only if no objection has been expressed by the EP or the Council within a period set by the legislative act

102
Q

What does art 291(1) TFEU state?

A

MS shall adopt all measures of national law necessary to implement legally binding Union acts but where uniform conditions for implementing legally binding Union acts are needed, the Union shall adopt the executive act (and confer implementing powers on the Commission)

103
Q

Impact of Brexit: Article Managing Disintegration: Bressanelli
What are the two main effects of British MEPs leaving?

A

1) withdrawal members bringing from 750 to 705

2) Francis jacobs wrote that the role of British MEPs has been very great and most influential MEPs have been British

104
Q

Impact of Brexit: Article Managing Disintegration: Bressanelli
There was going to be a reform attempted by the European Parliament 7 months before the British referendum of the European Electoral Act, why is this problematic now?

A

but the success of Leave radically changed the legal and political context.
Proposal to reduce members from 751 to 705

**A-EU Constitutional (10 decks)

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