Lecture 1 Flashcards
Primary EU law examples
Article 5(2) TEU, the EU can only within its competences. If an issue is not within EU limits, it needs to be handled by the member state itself.
Examples of issues that need to be handled by MS are:
Article 43(2) TFEU agricultural and fisheries policy,
Article 113 TFEU harmonization of indirect taxes
Article 114(1) TFEU internal market
168(5) TFEU public health
Article 352 TFEU unforeseen cases
Secondary EU law examples
Legislative acts (aka basic acts) of the European Parliament and Council, Article 289 TFEU
Legislative acts are directives, decisions, regulations
Tertiary EU law examples
Non-legislative acts of (often) the European Commission. They consist of Delegated acts (Article 290 TFEU) and Implementing acts (Article 291 TFEU).
!! Delegated and Implementing acts are also adopted in the form of directives, decisions or regulations. Therefore, it is of importance to look at the Article of the TFEU that is involved.
What does article 288 TFEU express?
To what extent an act (decision, regulation, directive) is binding upon member states.
A regulation will have general application, will be binding in its entirety and directly applicable in all Member States.
A directive is binding, as to the result to be achieved, for each Member State to which it is addressed but will leave it up to the national authorities to decide how to implement it (on the form and methods to achieve the result).
A decision is binding in its entirety and specifies those to whom it is addressed and is binding only for those.
What is OLP?
Ordinary Legislative Procedure: Article 289(1) and 294 TFEU: according to the OLP, the Council can decide by a qualified majority of votes and the EP acts as the co-legislator, together with the Council.
What does Article 5 TFEU express?
The three principles that indicate the (limits of the) EU’s competences:
- principle of conferral: EU has to act within its competencies, meaning that there has to be a legal basis on which an act is carried out
- principle of subsidiarity: in areas that do not fall within the scope of the EU’s exclusive competencies, the EU can only act if it is necessary and the objective cannot be achieved by acts carried out by the member states themselves.
- principle of proportionality: the intensity of an action cannot be higher than necessary to achieve the Treaties’ objectives.
What articles (TEU) express that the EU supports and respect human rights?
Article 2, 6 & 49 TEU (they refer to the Charter of Fundamental Human Rights of the European Union which has been a legally binding document since the Treaty of Lisbon (signed 2007, implemented 2009)
What is the scope of the Charter of Fundamental Rights of the EU and which article can you find this?
Article 51(1) “The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union (…) and to the Member States only when they are implementing Union law.”
Thus, only if there is (a threat of) an infringement of a fundamental right made by 1) an EU institution, body, office or agency or by 2) a member state implementing EU law, then this Charter can be invoked.
In what areas does the EU have exclusive competence?
Article 3(1) TFEU:
(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.
Article 6 TFEU:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
In what areas will the EU share competencies with member states?
Areas not referred to in article 3 and 6 TFEU. See Article 4(2) TFEU:
a. internal market
b. social policy
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
What article explains the EU’s competencies?
Article 2 TFEU states that there are three types of EU competences:
1. Art. 2(1) TFEU states that the EU has exclusive competences
2. Art. 2(2) TFEU states that there are areas in which the EU will share its competences with member states.
3. Art. 2(3), 2(4), 2(5) TFEU states that in some areas the EU only has supporting, coordinating or supplementing competences.
For example, economic and employment policies can be determined by member states themselves within the arrangements specified in the TFEU.
What is the potential consequence of the EU’s legislature (European Parliament and Council) using the wrong legal basis for adopting a legislative measure?
In the Tobacco advertising case, Federal Republic of Germany vs. European Parliament and Council of the European Union, a directive was introduced to prohibit most forms of smoking advertisements. However, it was not clear whether the legislature had used the right legal basis for this directive. More specifically, the issue was whether the EP and Council had correctly used article 114 TFEU, to support the functioning of the internal market, or that the correct legal basis was article 153 TFEU which refers to ‘human health protection’. The Court argued that the wrong legal basis was used as a lot of forms of advertisements for tobacco products that are prohibited by the Directive have nothing to do with free movement nor with competition (Article 114 TFEU, paras. 98 and 99). Therefore, the Directive was annulled.
In 2019, the European Parliament and the Council adopted a Regulation (2020/2092) to make transfers of EU funds to Member States conditional upon their respect for the rule of law. Find this Regulation and then find out what the legal basis of this Regulation is.
Article 322(1a) TFEU expresses that, through regulations, the European Parliament and Council can determine the procedure of financial rules for establishing and implementing funding to a member state
Do you think this Regulation gives the Commission the power to unilaterally suspend funding to towns that declare themselves “LGBTI free zones”?
Yes: the regulation expresses that the EU (Commission) can reduce or suspend funding when the principles of the Rule of Law are breached. The Rule of Law requires non-discriminatory legislation and the legislation in LGBTI zones is discriminatory. This way, these zones are not in line with the Rule of Law and funding can be reduced or suspended.
What are the differences between the Ordinary Legislative Procedure (OLP) and the Special Legislative Procedure (SLP)?
The differences are expressed in Article 289 TFEU: in case of an OLP, both the EP and Council adopt the legislation proposed by the Commission, whereas in case of the SLP, either the EP or the Council adopt the legislation proposed by the Commission.
More specifically, according to the SPL, the Council must decide by unanimity and the EP merely needs to be consulted. According to the OLP, the Council can decide by a qualified majority of votes and the EP acts as the co-legislator, together with the Council.
How do you know whether to apply the OLP or the SLP to a case?
This depends on the legal basis that is used for a concrete draft measure as the appropriate procedure is expressed in the Article invoked. For example, if the Commission decides to base its proposal on Article 114 TFEU (internal market), then the OLP applies as this is stated in the Article. However, if the Commission would use Article 113 TFEU (indirect taxes harmonization) as its legal basis, the SLP would be applicable.
Explain how the ECJ interpreted the prohibition on customs duties and charges having equivalent effect between Member States of the EU. And what is the difference with the prohibition on discriminatory taxes?
The interpretation of the ECJ of the meaning of CEE’s is given in the Outokumpu case: a CEE is defined as “any pecuniary charge on goods circulating within the EU by virtue of the fact that they cross a national border” (Outokumpu, par. 19 and 20)
The difference is that Article 30 TFEU, the prohibition on customs duties and charges having equivalent effect, involves the charges that are put on products the moment they are going to cross national borders of a member state. Article 110 TFEU, the prohibition on discriminatory taxes, involves taxes that are put on products of other member states excessively compared to the taxes imposed on similar domestic products.
What are article 34 and 35 TFEU about?
About the free movement of goods: member states cannot put any ‘quantitative restrictions’ or other measures on imports and exports.
There are two types of exceptions to article 34 and 35 TFEU. Which ones and how are these exceptions different?
- Article 36 TFEU, the exceptions are specified in the article itself
- “Mandatory requirements” aka “Rule of Reason”: quantitative restrictions on imports/exports are prohibited UNLESS the country that does this has good reason to do so, to satisfy mandatory requirements. According to the Cassis de Dyon case, par. 8, a good reason could be related to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.
The differences between these two types of exceptions are, firstly that in Article 36 TFEU the justifications for breaches of Article 34 and 35 TFEU are specified, whereas the “Mandatory requirements” or “Rule of Reason” exception leaves room for other justifications. Secondly, article 36 can justify both discriminatory and non-discriminatory measures, whereas the “Rule of Reason” can only be applied to non-discriminatory measures.
A similarity is that in both cases the measures have to be proportionate.
What is the Keck judgment and why was it important?
Before the Keck judgment, no restrictions/trading rules implemented by a member state were allowed that could possibly hinder intra-Community trade. However, the Keck judgment introduced an (new) exception to this Article: it brought forward that certain selling arrangements do not hinder trade, within the meaning of the Dassonville judgment, between member states when they a) apply to all relevant traders, and b) affect the marketing of domestic products and those of other member states in the same way. Thus, from this moment on, if there are restrictions on the product requirements, this still falls within the scope of article 34 TFEU. However, if the restrictions involve selling arrangements and the restrictions are a) applicable to all relevant traders and b) affect the marketing of domestic products in the same way as products from other member states, these restrictions are allowed.
Why in the Gourmet case (C-405/98) did the Swedish government have to justify its rules on advertisements for alcoholic beverages by invoking an Article 36 TFEU exception (namely the protection of public health), although these Swedish rules clearly related to “selling arrangements” within the meaning of the Keck judgment?
Although the rules on advertisements clearly involved a ‘selling arrangement’, they did not fulfill the second condition. The prohibition of advertisements of alcoholic beverages would not affect the marketing of domestic products in the same way it would affect products from other member states. It would affect non-domestic products more negatively as fewer people know about these products and, thus, there is more reliance on advertisements.
