LAW Flashcards
What was the TTIP? What were the participant countries? Who negotiates?
- It was the TRANSATLANTIC TRADE INVESTMENT PARTNERSHIPS
- Between EU and the US
- Negotiations started in 2013, ended in 2016 without conclusion.
- Council decision of 15 April 2019 says that the negotiating directives are obsolete and no longer relevant.
- “The United States has announced its intention to withdraw from the Paris Agreement on climate change, while the Union seeks the negotiation of deep and comprehensive free trade agreements only with Parties to that Agreement. […] It is therefore appropriate to pursue with the United States a more limited agreement covering the elimination of tariffs on industrial products only, and excluding agricultural products.”
O tratado visava impedir a interferências dos Estados no comércio entre os países aderentes e estava sendo negociado em paralelo com a Parceria Trans-Pacífico ou TPP
What is the role od the Political and Security Committee? What is the composition? What institution is it a part of?
ROLE:
- the Political and Security Committee is responsible for the EU’s Common Foreign and Security Policy (CSFP) and the Common Security and Defence Policy (CSDP);
- it monitors the international situation;
- recommends strategic approaches and policy options to the Council;
- provides guidance to the Military Committee, the Politico-Military Group and the Committee for Civilian Aspects of Crisis Management;
- ensures political control and strategic direction of crisis management operations;
COMPOSITION:
it is composed of the member states’ ambassadors based in Brussels and is chaired by the representatives from the European External Action Service.
WHAT INSTITUTION IS IT PART OF?
The Council of the European Union.
When was the Rule of law communication (“framework to strengthen the rule of law”) adopted/published? Which institutions can determine a clear risk of a serious breach of EU values?
The Rule of law communication: the rule of law is one of EU’s fundamental values (Article 2 TEU). It is the idea that both the EU itself and all EU countries are governed by a body of law (legal codes and processes) adopted by established procedures rather than discretionary or case-by-case decisions. It is one of the criteria (Copenhagen Criteria) that countries have to meet for joining the EU (together with having a functional democracy and respect for human rights and rights of minorities).
The EC adopted the rule of law framework after it concluded that a tool was necessary to deal with systemic threats to the rule of law in EU countries. ADOPTED IN 11 March 2014!!!
The objective is to prevent emerging threats to the rule of law from escalating to the point where the Commission needs to trigger the mechanism of article 7. The framework establishes a 3 stage process: 1) Commission assessment; 2) Commission recommendation; 3) monitoring of the EU country’s follow-up to the Commission’s recommendation.
WHO CAN DETERMINE A CLEAR RISK OF SERIOUS BREACH?
ANSWER: The Council (of the EU).
On a REASONED proposal by 1/3 of the Member States or the Parliament or the Commission, the Council, acting by a majority of 4/5 of its members AFTER obtaining consent from the Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before determining this, the Council shall hear the Member State in question and make recommendations to it, in accordance with the same procedure.
obs. extra: quem determina a EXISTÊNCIA não é o Council, é o European Council, por unanimidade, após proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament.
Depois disso, the Council, by qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.
What does the European Economic and Social Committee do? To whom are its opinions transmitted? Who appoints its members?
The EESC is an EU ADVISORY BODY, comprising representatives of workers’ and employers’ organisations and other interest groups (Employers, trade unionists and representatives of social, occupational, economic and cultural organisations). It contributes to the strengthening of the democratic legitimacy and effectiveness of the European Union by enabling civil society organisations of Member States to express their views at European Level. Legal basis: art. 13, Rome Treaty.
OPINIONS in LEGISLATIVE PROPOSALS are addressed to:
- the COUNCIL,
- the EUROPEAN COMMISSION, and
- the PARLIAMENT
The members are appointed by the Council by QUALIFIED MAJORITY , on the basis of proposals by the Member States. The Council consults the Commission on these nominations.
Members are appointed for 5 years, renewable. The Committee shall elect its chairman and officers from AMONG ITS MEMBERS for a term of 2,5 years.
Currently 329 members, maximum 350 (art. 301 TFEU)
Ordinary Legislative Procedure
- The Procedure is launched by a Legislative Proposal of the European Commission to the Council and the European Parliament.
- FIRST READING begins: the European Parliament examines the Commission Proposal and may:
- adopt it (simple majority) or
- Introduce amendments to it (simple majority).
After that, the Council may:
- decide to accept the Parliament’s position (qualified majority): legislative act is adopted, or
- amend the Parliament’s position (qualified majority): the proposal is returned to the Parliament for a second reading.
NO DEADLINE FOR FIRST READING - SECOND READING.
The Parliament reads the Council’s position and has 3 + 1 months to:
- approves it or does not take a decision - the act is adopted
- rejects it (ABSOLUTE MAJORITY) - the act will not enter into force and the whole procedure ends,
- proposes amendments (ABSOLUTE MAJORITY) - it returns the proposal to the council for a second reading.
Then, the Council:
- approves the Parliament’s amendments (QUALIFIED MAJORITY or Unanimity - if the Commission has given a negative opinion): the act is adopted;
- does not approve all the amendments (QUALIFIED MAJORITY or Unanimity if the Commission has given negative opinion): the conciliation committee is convened.
At this point the Council can only react to the Parliaments amendments.
- CONCILIATION:
If the Council does not approve all of the Parliament’s amendments at the second reading, the conciliation committee is convened (within 6 weeks, with a possible extension to 8 weeks). The committee is composed of members of the Parliament and of the Council. The members of the parliament vote by majority of the members representing the European Parliamentand the members of the council vote by qualified majority.
The committee has to come to a decision after 6 weeks.
If the Committee:
- does not agree on a joint text, the legislative act is not adopted and the procedure is ended
- agrees the joint text, that text is forwarded to the Parliament and the Council for a third reading
- Third reading
The Parliament examines the joint text.
It may (in 6 weeks):
- reject or fail to act on it: the proposal is not adopted and the procedure ends
- approve it. if the Council also approves, then it is adopted (simple majority).
Then, the Council may (in 6 weeks):
- reject: proposal not adopted;
- approve: proposal is adopted.
Council approves by qualified majority.
Obs.: os períodos de 3 meses e 6 semanas no artigo 294 TFUE (processor legislative ordinário) são respectivamente prorrogáveis por 1 mês e 2 semanas.
Special Legislative Procedure. Which area does not use ordinary legislative procedure?
In practice, the Council is the SOLE LEGISLATOR, the Parliament is required to give its CONSENT on a legislative proposal or to be consulted on it.
CONSENT: The Council can adopt a legislative proposal after obtaining consent from the Parliament. The parliament can accept or reject the proposal by an ABSOLUTE MAJORITY, but cannot amend it. The Council cannot overrule the Parliament’s decision.
As a legislative procedure, it is used when new legislation combating DISCRIMINATION is being adopted, and also when the SUBSIDIARY general legal basis is applied in line with Article 352 of the Treaty on the Functioning of the EU (When action from the Union is necessary to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers).
The Parliament’s consent is also required as a NON-LEGISLATIVE procedure, in the following cases:
- when the Council adopts certain international agreements negotiated by the EU
- in cases of a serious breach of fundamental rights (Article 7 of the Treaty on European Union)
- for the accession of new EU members
- arrangements for withdrawal from the EU
CONSULTATION:
In this procedure, the Council adopts a legislative proposal after the Parliament has given its opinion on it. In this case, the Parliament may approve, reject or amend the proposal, but the Council is not bound by it. But it must not make the decision without the opinion of the Parliament.
APPLICABLE:
This procedure is applicable in a limited number of policy areas, such as INTERNAL MARKET EXEMPTIONS and COMPETITION LAW, as well as financial matters and aspects of intellectual property and administrative issues (sem ênfase).
as a non-legislative procedure: it is used when international agreements are adopted under common foreign and security policy.
QUESTIONS:
Examples of Special legislative procedure:
- Measures concerning operational cooperation - police cooperation is SLP - Consultation
- Establishing the European Public Prosecutor’s Office EPPO - consent (article 86 TFEU)
- Multiannual Financial Framework
Which area does not use the Ordinary Legislative Procedure?
a) EPPO - Establishing a European Public Prosecutor’s Office from Eurojust.
b) Non-Operational Police cooperation
c) EU civil servants regulation
d) Trademarks
Answer: A - EPPO - EUROPEAN PUBLIC PROSECUTOR’S OFFICE FROM EUROJUST.
According to article 86 TFEU, n order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
- Non-operational police cooperation: operational cooperation is established according to the special legislative procedure of consultation. But it is ONLY OPERATIONAL. Non operational is ORDINARY.
- Civil servants regulation - ORDINARY Art. 336 TFUE
- Trademarks: Art. 118 TFUE ordinary.
When was the European Investment Bank established? Where is it seated?
DATE
FIRST SEAT
CURRENT SEAT
Established by the Treaty of Rome. Founded in Brussels in 1958, it moved its seat to Luxembourg in 1968.
It is neither an EU institution, nor an advisory body. Its goal (309 TFEU) is however to contribute to the balanced and steady development of the internal market in the interest of the EU. It is the lending arm of the EU and the biggest multilateral financial institution in the world (one of the largest providers of climate finance).
SEAT OF THE EU INSTITUTIONS. Who decides the seat of the European Institutions?
The Treaties establishing the European Communities DO NOT stipulate the seats of each of the three organisations. Instead, they state that the seat of the institutions is to be determined by common accord of the governments of the Member States (Article 341 TFEU).
[Regulatory Scrutiny Board] What is the Regulatory Scrutiny Board?
It is an independent body within the Commission that advises the college of Commissioners. Provides quality control and support for Commission impact assessments and evaluations at early stages of the legislative process. The Board’s work on impact assessments strengthens subsequent evaluations, and vice versa.
The role is to provide quality control of the Commission’s impact assessments, fitness checks and major evaluations to the political level of the Commission.
The Board examines and issues opinions on the quality of draft reports relating to:
- impact assessments, developed during the preparation of new initiatives
- major retrospective evaluations of a single policy or law, and fitness checks of multiple policies and laws
The Board opinions contain recommendations for Commission services on how to improve draft reports.
Regarding impact assessments, the opinions can be positive, positive with reservations and negative.
In order for an initiative accompanied by an impact assessment to be tabled for adoption by the Commission, it must have either a positive or a positive with reservations opinion by the Regulatory Scrutiny Board. In case of a negative opinion, the draft must be reviewed and resubmitted to the board before it can proceed. If there is another negative opinion, then only the Vice-President for Inter-institutional Relations and Foresight may submit the initiative for the College of Commissioners to decide whether or not to go ahead.
Regarding evaluations, opinions can be positive or negative. A negative opinion does not prevent the responsible Commission department from finalising and publishing the fitness check or evaluation report. However, they can resubmit the report for a second opinion by the Board on a voluntary basis. In either case, the lead department is always expected to improve their reports and to take the Board’s advice into account. he Board does not review all Commission evaluations: only a number of major evaluations is selected each year, based on relevance and political priorities of the Commission. ‘Fitness checks’ are always scrutinised.
The board is composed of 7 members:
- A Commission Director-General who chairs the Board;
- Three high-level Commission officials;
- Three experts recruited from outside the Commission
All members work for the Board full-time, with no other policy responsibilities, for a non-renewable term of three years, which can be extended by up to one year under exceptional circumstances. The Board acts independently from the policy-making departments and from any European institution, body, office or agency.
When did the treaty of Maastricht enter into force?
ENTERED INTO FORCE IN 1993!!!!!!!
(signed on 7 February 1992, entered into force on 1 November 1993).
[Council minutes] Value of Council’s minutes for interpretation of legislation.
Statements in the minutes reflect their author’s position. they CANNOT RESTRICT THE SCOPE or effects of the legal act, which can only be determined by the content of the act itself. the statements can only confirm interpretations based on the wording of the act itself.
A statement cannot therefore be taken as a basis for the interpretation of a provision in an act of secondary legislation if the content of the statement is not expressed in the text of the relevant provision.
THE COURT HAS CONSISTENTLY HELD THAT THE TRUE MEANING OF RULES OF COMMUNITY LAW CAN BE DERIVED ONLY FROM THOSE RULES THEMSELVES , HAVING REGARD TO THEIR CONTEXT .
Case 237/84, Commission v. Kingdom of Belgium, ECR 1986 01247, point 17.
Belgium went beyond the directive regarding safeguarding of employer’s rignts in the event of transfers. One article said that transferes should not be grounds for dismissal.
There was a paragraph saying that some categories of workers could be excluded from this right.
Belgium created a royal decree excluding workers on trial period and approaching retirement age. This was not foreseen in the directive.
In one of the arguments, Belgium said that this was in accordance with the Council meetings. Court said this is irrelevant and that the meaning of the rules in Community law can only be derived from the rules themselves, and not from the Council minutes.
Interinstitutional Agreements. Which institutions can conclude interinstitutional agreements?
Article 295, TFUE: The European Parliament, the Council and the Commission can, in compliance with the Treaties, conclude interinstitutional agreements which may be of a binding nature.
Council, Parliament and Commission agree on inter-institutional agreements by mutual consent. The Commission is charged to take the initiative. Initiative in Art. 17 TEU.
The Treaty of Nice only allowed inter-institutional agreements when all three institutions took part. The Council insisted on this following an agreement between the EU Commission and the Parliament on access to certain classified documents on which the Council did not agree. The Lisbon Treaty also requires a common accord between the three institutions to allow such agreements.
The purpose is to increase efficiency and clarify procedures in order to limit or prevent conflicts amongst the institutions. They can be legally binding, but this is not required (so they can also be not binding). It depends on the wishes of the authors of the act. ONLY ADMINISTRATIVE and INSTITUTIONAL AFFAIRS concerning LEGAL, PROCEDURAL and FINANCIAL aspects may be covered by an interinstitutional agreement. They may take the form of codes of conduct, guidelines or declarations.
Interinstitutional agreements that are not based on Article 295 also exist. For example, there is an interinstitutional agreement between the European Parliament and the European Central Bank (ECB) on accountability and transparency in regard to European banking supervision.
When did the Lisbon Treaty enter into force?
ENTERED INTO FORCE IN 1 DECEMBER 2009
(Signed in 13 December 2007)
Who adopts the Multiannual Financial Framework?
The Multiannual Financial Framework (MFF) sets the annual limits (‘ceilings’) on EU commitments in different policy areas (‘headings’) and on overall annual payments for a period of at least five years, usually seven.
The Council (of the EU), after obtaining CONSENT from the Parliament, adopts the MFF.
Special Legislative Procedure.
The MFF regulation is adopted under a special legislative procedure:
- unanimity is required to secure a deal in the Council
- the consent of the European Parliament is required to conclude the decision-making process (absolute - majority of members)
- in practice, the Parliament may approve or reject the Council’s position but it may not make amendments to it
This is foreseen in article 312 of the TFEU.
It has to be established for a period of AT LEAST 5 YEARS.
Current (new) MFF: May 2018 Legislative proposal by the Commission; May 2020 Updated proposal with a recovery instrument due to COVID-19 (Next Generation EU). July 2020, EU Council endorses. November 2020, EP consents. Finally adopted on 17 December 2020. In total (with Next Generation EU), 1.8 trillion EUR.
How is the annual budget approved?
- The Commission draws up the draft budget and forwards it to the Council and Pariliament by 1 September at the latest (art. 314(2), TFEU). The Commission may amend this draft budget during the procedure until the time when the Conciliation Committee is convened.
- The Council adopts its position on the draft budget and forwards it to the Parliament by first of October at the latest. The Council shall inform the European Parliament in full of the reasons which led it to adopt its position.
- Within 42 days, the Parliament:
(a) approves the position of the Council, the budget shall be adopted;
(b) has not taken a decision, the budget shall be deemed to have been adopted;
(c) adopts amendments by a majority of its component members, the amended draft shall be forwarded to the Council and to the Commission. The President of the European Parliament, in agreement with the President of the Council, shall immediately convene a meeting of the Conciliation Committee. However, if within ten days of the draft being forwarded the Council informs the European Parliament that it has approved all its amendments, the Conciliation Committee shall not meet.
4.The Conciliation Committee (members of the Parliament and of the Council, same number) must reach an agreement on the joint text (qualified majority of members of the Council or their representants, majority of representants of the Parliament)
Should the Conciliation Committee fail to find an agreement on a joint text within the 21 days referred to above, a new draft budget must be submitted by the Commission. If the Conciliation Committee does agree on a joint text within the deadline, then Parliament and the Council have 14 days from the date of that agreement in which to approve the joint text.
Obs.: European Semester: On 7 September 2010, the Economic and Financial Affairs Council approved the introduction of the ‘European Semester’, a cycle of economic policy coordination at EU level with the aim of achieving the Europe 2020 targets. This is a six-month period every year during which the Member States’ budgetary and structural policies are to be reviewed in order to detect any inconsistencies and emerging imbalances.
Who is responsible for IMPLEMENTING the EU budget?
The European Commission is ultimately responsible for managing the EU budget. In practice, up to 80 percent of the budget expenditure is managed by EU countries under so-called shared management, particularly in the areas of agriculture, growth and employment aid to EU regions.
A set of checks and balances is in place to ensure that shared management expenditure is managed properly and in accordance with the rules.
Budget implementation may be direct (Commission, Union delegations, executive agencies), indirect (via third countries or bodies and international organisations), and shared (EU countries).
Which one is NOT an exclusive competence?
a. Customs union
b. Establishing the competition rules necessary for the functioning otf the internal market
c. Monetary policy of the Eurozone
d. Conservation of the marine biological resources under the common fisheries policy
e. Common commercial policy
f. internal market
F. Internal Market
Exclusive competences of the EU
The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
(f) the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.
Areas in which the EU has supporting competences
this means that, in these areas, the EU can only compliment, support or coordinate the action of a Member State. it has no powers to pass law, and cannot prevent MS from doing so.
These areas are:
public health
industry
culture
tourism
education and training, youth and sport
civil protection
administrative cooperation
Which of the following IS a shared competence?
A. CUSTOMS UNION
B. MONETARY POLICY
C. ENERGY
D. COMPETITION RULES FOR INTERNAL MARKET
Answer is C. Energy.
BE CAREFUL: even though letter d might seem like it is a shared competence because it mentions internal market, we must remember that competition rules for internal market are an EXCLUSIVE competence, while internal market alone is shared.
Shared competences:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
(l) In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
[Commissioner Retirement] Who can compulsorily retire a Commissioner? Early retirement of Commissioner. WHAT IS THE MAJORITY NECESSARY?
Commissioners must be completely independent in the performance of their duties, in the general interest of the Union. They may neither seek nor take instructions from any government or other external body. They must not engage in any other occupation, whether gainful or not.
They are accountable (Article 245 TFEU).
They can be compulsorily retired by the CJEU, at the request of the Council by SIMPLE MAJORITY or at the request of the Commission itself, if they breach any of the above obligations or have been guilty of serious misconduct (art. 247, TFUE)
A vacancy caused by resignation, compulsory retirement or death shall be filled for the remainder of the Member’s term of office by a new Member of the same nationality appointed by the Council, by common accord with the President of the Commission, after consulting the European Parliament and in accordance with the criteria set out in the second subparagraph of Article 17(3) of the Treaty on European Union.
The Council may, acting unanimously on a proposal from the President of the Commission, decide that such a vacancy need not be filled, in particular when the remainder of the Member’s term of office is short.
The Commission is collectively accountable to Parliament under Article 234 TFEU. If Parliament adopts a motion of censure against the Commission (by a ⅔ majority representing a majority of the component members of the EU), all of its members are required to resign, including the High Representative of the Union for Foreign Affairs and Security Policy as far as his or her duties in the Commission are concerned.
What is the motion of censure? who votes?
If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote.
If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component Members of the European Parliament, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from duties that he or she carries out in the Commission. They shall remain in office and continue to deal with current business until they are replaced in accordance with Article 17 of the Treaty on European Union. In this case, the term of office of the members of the Commission appointed to replace them shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired.
[Contractual liability of the Union] Which law determines the contractual liability of the EU?
Article 340 TFEU: The contractual liability of the Union shall be governed by the law applicable to the contract in question. This means NATIONAL LAW.
NATIONAL COURTS.
it arises when the EU is party to a contract. An action for damages can be brought before the CJEU only if an arbitration clause so provides. This means that the contract to which the EU is party must contain a clause providing for the jurisdiction of the CJEU in the event of a dispute. In the absence of such a clause, the national courts will have jurisdiction in disputes arising from the contract.
Non-contractual: it arises due to damage caused by the EU bodies or servants in the performance of their duties. The non-contractual liability of the EU complies with uniform rules which have been developed by the case-law of the CJEU. 3 conditions must be met:
a) the claimant has suffered damage.
b) the EU institutions or their agents have acted illegally under EU law.
c) there is a direct causal link between the damage suffered by the claimant and the illegal act of the EU institutions or their agents.
Actions may be brought by individuals or Member States. The deadline for acting is 5 years from the date on which the damage occurred. AT THE CJEU.
CJEU Jurisdiction
In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
The action for damages must be brought either against the EU as a whole (represented by one or more of the institutions) or against the European Central Bank (:the ECB is liable for its acts alone, and not the EU as a whole as is the case with other institutions). It is not limited to ‘institutions’ as defined in Article 13 TEU, but the European Investment Bank has also been allowed to be held liable (case C-370/89 SGEEM). To sum up, all bodies and agencies and, after Lisbon, even the European Council (which is now officially an EU institution) may be defendants in the action for damages. A relatively new defendant institution is the Court of Justice of the EU itself, which can be sued for protracted proceedings (institutionally acting as judex in causa sua, a ‘judge in its own case’). If damage is caused jointly by an illegal action of the EU and one or several of its Member States, shared (concurrent) liability of both may be established.
Which document aims to reduce GHG emmissions? When was it adopted?
The KYOTO Protocol.
Adopted on 11 December 1997 and entered into force on 16 February 2005.
It is a protocol of the United Nations Framework Convention on Climate Change.
It was adopted in 1997, but due to a complicated ratification procedure, it only entered into force in 2005.
It implemented the objective of the UNFCCC to reduce the onset of global warming by reducing greenhouse gas concentrations in the atmosphere to “a level that would prevent dangerous anthropogenic interference with the climate system”.
Countries commit to reducing the emissions of greenhouse gases in relation to the base year, which is 1990.
No Anexo B ele tem o alvo de emissões para 37 países industrializados e economias em transição E A UNIÃO EUROPEIA. O alvo para esses países no primeiro momento era reduzir em 5% a emissão em relação a 1990 no período de 2008 a 2012.
Para a maioria dos países EU o ano base é 1990.
Em 2012, na Conferência das Nações Unidas sobre Mudança do Clima, concordou-se em estender a vida do protocolo de Kyoto até 2020 (Doha Ammendment), prevendo uma redução de 18% em relação a 1990.
Em 2015, UE e Islândia se comprometeram a alcançar conjuntamente uma redução de 20% em suas emissões combinadas de gases de efeito estufa para o período 2013-2020.
Furthermore, the list of GHGs covered by the Protocol was extended. Under the Protocol, parties must meet their targets primarily through national measures. However, the Protocol also offers them additional means to meet their targets by way of 3 market-based mechanisms. The Kyoto mechanisms are emissions trading between parties which signed the Protocol, joint implementation of projects by these parties, and the clean development mechanism (with parties which did not sign the Protocol). Under the Protocol, parties’ actual emissions are monitored and precise records are kept of the trades carried out.
Depois de 2020, em vez de tentarem estender mais uma vez o protocolo de Kyoto, os países decidiram adotar o Acordo de Paris.
Paris Agreement
The Paris Agreement is a legally binding international treaty on climate change. It was adopted by 196 Parties at COP 21 in Paris, on 12 December 2015 and entered into force on 4 November 2016.
Its goal is to limit global warming to well below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels.
To achieve this long-term temperature goal, countries aim to reach global peaking of greenhouse gas emissions as soon as possible to achieve a climate neutral world by mid-century.
Another key difference between the Paris Agreement and the Kyoto Protocol is their scope. The Kyoto Protocol differentiated between Annex-I, richer countries with a historical responsibility for climate change, and non-Annex-I countries, but this division is blurred in the Paris Agreement as all parties are required to submit emissions reduction plans.[73] The Paris Agreement still emphasises the principle of Common but Differentiated Responsibility and Respective Capabilities—the acknowledgement that different nations have different capacities and duties to climate action—but it does not provide a specific division between developed and developing nations.[73]
European Green Deal?
Commission proposal: first climate neutral continent by 2050 (no net greenhouse gases emissions); cut emissions by at least 55% by 2030 (compared to 1990 levels), included in the proposal for a new European Climate Law.
- no net emissions of greenhouse gases by 2050
- economic growth decoupled from resource use
- no person and no place left behind
The European Green Deal is also our lifeline out of the COVID-19 pandemic. One third of the 1.8 trillion euro investments from the NextGenerationEU Recovery Plan, and the EU’s seven-year budget will finance the European Green Deal.
The European Commission adopted a set of proposals to make the EU’s climate, energy, transport and taxation policies fit for reducing net greenhouse gas emissions by at least 55% by 2030, compared to 1990 levels.
European Council President. Mandata? Term of Office?
The European Council elects its own president by qualified majority.
For a 2.5 YEARS TERM, renewable once!!!
It used to be an informal position, headed by the head of state or government of whoever was holding the rotating presidency of the Council of the EU.
Now it is an elected position.
MANDATE:
The president of the European Council shall:
a. chair and drive forward its work
b. ensure the preparation and continuity of its work in cooperation with the President of the Commission and the General Affairs Council.
c. ensure its cohesion and consensus
d. send a report of every meeting to the parliament
IT SHOULD ALSO:
d. ensure the representation of the Union on matters regarding Common Foreign and Security Policy, except for the powers reserved to the High Representative of the Union for Foreign Affairs and Security Policy.
What is the Composition of the European Council?
It is composed of:
- 27 heads of state or government of EU MS.
- The European Council President CHARLES MICHEL
- The President of the Commission URSULA VON DER LAYEN
Obs.: when matters regarding common foreign security policy are being discussed, the High Representative Participates and sometimes other people such as the president of the European Central Bank participates depending on the subjects discussed.
What is an action for failure to act?
Article 265 TFEU. The European Parliament, the European Council, the Council of the EU, the Commission or the European Central Bank (as well as other bodies, offices, agencies of the Union) must make certain decisions under certain circumstances. If they don’t, EU governments, other EU institutions or (under certain conditions) individuals or companies can complain to the COURT.
Só pode ser tentado depois que a instituição foi convidada a agir.
The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.
Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion
Which is the case about public procurement?
1. Adia Interim S.A. v. COM
2. Francovich v. Italy
3. Factortime I
4. Rush Portuguesa
Answer: Adia Interim S.A. v COM
What is the order of commitments?
Order of commitments:
1. Budgetary
2. Legal
ADIA INTERIM SA V COM
Adia Interim SA v. Comissão das Comunidades Europeias (1996): nesse caso, a adia havia perdido o concurso para ser a empresa fornecedora de trabalhadores temporários para a Comissão. Ela tinha um erro em seu preço e afirmou que a Comissão violou o princípio da igualdade ao não chamá-la para consertar. Também tinha afirmado que não obteve uma fundamentação individual da recusa da comissão em contratá-la. O facto de os proponentes interessados só receberem uma decisão fundamentada em resposta a um pedido expresso da sua parte não restringe de modo algum a possibilidade de que dispõem de invocarem os seus direitos perante o Tribunal. As instituições dispõem de um importante poder de apreciação quanto aos elementos a tomar em consideração para a tomada de uma decisão de adjudicar um contrato relativo a um concurso público, devendo o Tribunal limitar-se a verificar a ausência de erro grave e manifesto.
Francovich v. Italy
Liability of the EU MEMBER STATES to individuals by damages caused by infringement of Community Law
C-6/90 and C-9/90 Francovich3
Principle of the liability of a Member State
In 1991, in Francovich and Others, the Court developed another fundamental concept, the
liability of a Member State to individuals for damage caused to them by an infringement of
Community law by that State. Since 1991, European citizens have therefore been able to bring
an action for damages against a State, which infringes a Community rule.
Two Italian citizens who were owed pay by their insolvent employers had brought actions for
a declaration that the Italian State had failed to transpose Community provisions protecting
employees in the event of their employers’ insolvency. On a reference from an Italian court,
the Court stated that the directive in question was designed to confer on individual’s rights,
which they had been denied as a result of the failure to act of the State which had not
implemented the directive. The Court thus opened up the possibility of an action for damages
against the State itself.
Factortime I
DUTY OF NATIONAL LAWS TO SECURE THE FULL EFFECTIVENESS OF COMMUNITY LAW, even where it is necessary to create a national remedy where non had previously existed.
Factortime I (1990) Foi uma decisão de um reenvio prejudicial. Uma empresa tinha navios de bandeira britânica mas que não eram de nacionais britânicos. Reino Unido criou uma lei que dizia que, para serem registrados, os navios tinham que ter bandeira britânica e donos britânicos. Isso era contrário ao direito comunitário. O Juiz nacional perguntou se, considerando que o direito comunitário dizia uma coisa e a lei britânica dizia outra, ele poderia ou deveria desconsiderar a lei nacional e aplicar a comunitária. Eficácia da norma comunitária. O tribunal falou que as regras de aplicabilidade directa do direito comunitário devem produzir todos os seus efeitos, de maneira uniforme em todos os Estados-membros, a partir da sua entrada em vigor e durante todo o seu período de validade. De acordo com a jurisprudência do Tribunal, é aos órgãos jurisdicionais nacionais que compete, por aplicação do princípio da cooperação enunciado no artigo 5.° do Tratado, garantir a protecção jurídica decorrente, para os particulares, do efeito directo das disposições do direito comunitário.
“whether a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law, must disapply that rule”. –> EFFECTIVENESS DO DIREITO DA UE deve ser DIRETA, ou seja, se tem regra interna atrapalhando direito da UE, deve ser DESAPLICADA. Mesmo se ainda for necessario create national remedy. Following the Advocate-General’s opinion, the ECJ held that a national court, in fact, has a duty to grant interim relief to safeguard alleged Community rights of individuals until the decision of the ECJ on the interpretation of Community law is available, and where a rule of national law would deny such relief, to set aside that rule.
The basis of such a duty lies in the nature and object of directly effective Community law rights which are intended to be fully effective throughout the EU, and where, in order to safeguard such a right, it is necessary to grant interim measures, a national court must do so. This is especially true where a national court is awaiting a clarification or interpretation of the right claimed by the ECJ. (interim measures é tipo tutela antecipada urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm.)
COSTA v. ENEL
Principle of the primacy of Community law
In 1964, the Costa judgment established the primacy of Community law over domestic law. In that case, an Italian court had asked the Court of Justice whether the Italian law on nationalization of the production and distribution of electrical energy was compatible with certain rules in the EEC Treaty. The Court introduced the doctrine of the primacy of Community law, basing it on the specific nature of the Community legal order, which is to be uniformly applied in all the Member States.
Mr. Costa was an Italian citizen who had owned shares in an electricity company, Edisonvolta, and opposed the nationalisation of the electricity sector in Italy. He asked to two lower courts in Milan (two different Giudici conciliatori) to ascertain that the real creditor of his electricity bill (a relatively small amount of money, 1,925 lire) was the nationalised company, Edisonvolta, and not the newly established state company, Enel. He argued that the nationalisation of the electricity industry violated the Treaty of Rome and the Italian Constitution. The first Giudice conciliatore of Milan referred the case to the Italian Constitutional Court and the second Giudice conciliatore referred it to the European Court of Justice.
Rush Portuguesa
Freedom to provide services.
A Rush era uma empresa portuguesa de obras. Ela levou trabalhadores para fazer uma obra na França, e as autoridades francesas iniciaram um processo porque esses trabalhadores não haviam sido contratados através do escritório competente dentro das regras francesas para contratar estrangeiros. A aplicação das disposições restritivas do código do trabalho francês a esse pessoal é, portanto, contrária ao direito comunitário. uma empresa estabelecida em Portugal, que efectua prestações de serviços no sector da construção e obras públicas noutro Estado-membro, pode deslocar-se com o seu pessoal próprio, trazido de Portugal, pelo período de duração das obras em causa.
Obs.: at that time, Portugal was a new member, so during the transition period the free movement of workers did not yet apply. This is why the French authorities had considered them as 3rd country workers. However, Rush defended itself on the grounds of freedom to provide services. This was the Court’s position. The Court also said that freedom of work would not apply in this case because the workers returned to their home country after the performance of the service, so they did not keep having access to the market.
Agenţia de Plăţi şi Intervenţie pentru Agricultură (APIA) ?
Common agricultural policy
a Romênia estava condicionando a concessão de pagamentos diretos nacionais a agricultores à inexistência de dívidas por parte dos agricultores, contrariando o Regulamento.
Agriculture — Common agricultural policy — Regulation (EC) No 1782/2003 — Direct support schemes — Conditions for the granting of the complementary national direct payments — Condition not provided for by EU legislation — Condition relating to the absence of debt falling due to the State budget and/or local budget on the date of submission of the application for aid — Not permissible
van Gend & Loos February 1963
C-26/62 Van Gend & Loos1
Principle of direct effect
In its case-law the Court has introduced the principle of the direct effect of Community law in the Member States, which enables European citizens to rely directly on Community provisions
before their national courts.
The transport company Van Gend & Loos had imported goods from Germany to the Netherlands and had to pay customs duties which it considered to be incompatible with the rule in the EEC Treaty prohibiting increases in customs duties in trade between Member States. The action raised the question of the conflict between national legislation and the provisions of the EEC Treaty. The Court decided the question referred by a Netherlands court by stating the doctrine of direct effect, thus conferring on the transport company a direct guarantee of its rights under Community law before the national court.
a grant agreement can be the only type of a legal commitment ?
I think the answer is no because a procurement contract can also be a type of legal commitment.
[European Council President] Mandate? Term of office?
Term of office, European Council President:
Article 15 of the TEU.
The European Council shall elect its President, by a qualified majority, for a term of two and a half years (2,5 years ), renewable once. In the event of an impediment or serious misconduct, the European Council can end the President’s term of office in accordance with the same procedure.
The position of President of the European Council became a permanent and full-time role following the entry into force of the Treaty of Lisbon in 2009. Previously, the European Council had been an informal body and the head of the European Council was an unofficial position. The role was held by the head of state or government of the member state holding the rotating Presidency of the Council of the EU.
Mandate:
The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
When can individuals lodge an action for failure to act?
Correct option: when directly affected
What is the composition of the European Council?
Legal Basis: Article 15 TEU.
MEMBERS:
- the heads of state or government of the 27 EU member states,
- the European Council President (Charles Michel) and
- the President of the European Commission.
The High Representative of the Union for Foreign Affairs and Security Policy also takes part in European Council meetings when foreign affairs issues are discussed. Other people, such as the President of the European Central Bank, may be invited to attend meetings, depending on the issues being discussed.
Established in 1961, informally.
First full-time president: Herman Van Rompuy, appointed in November 2009 (until then, there was a rotating system). After Van Rompuy, Donald Tusk (December 2014-November 2019). Charles Michel is the 3rd full-time president.
