P1 Law Flashcards
4 interpretations of legal sources (tutorial 2)
- Grammatical or literal interpretation = rules should be interpreted literally, taking the law word by word
- Mischief rule or legislative intent = interpreter looks at the purpose of rule
- Legislative or historical interpretation = looking at the reasoning behind the creation of the rule
- Schematic/systematic/contextual interpretation = refers to the fact that you may interpret the rule in the context of other rules in the same document
What is a legal source ? (Tut 2)
- Treaties & legislation
- case law => depending on the country
- legal sources are legal as they can be traced back to an official person or committee
Legal reasoning (3 things - tut 2)
- syllogism = argument w two premises and one conclusion => 1st premise IF … THEN , 2nd premise = description of the facts of a case, Conclusion
- IRAC
- use of precedence
What is a legal precedent (tut 2)
- a legal source => case law : the fact that a court has decided a precedent can be used as a reason why this rule is valid law and can support new legal decisions
- binding nature of precedents only applies if similar
- analogy : apply by analogy, certain facts which are different are irrelevant if the reasoning is the same
- case law : important when a judge may make a decision that makes a ruling which runs counter to the precedent => creates uncertainty around the courts reliability and consistency
Reasoning with rules and cases (4 things - tut 2)
- applicability = is a rule applicable to the case
- analogy
- case based reasoning = use similar cases or make them similar, use ratio decidendi
- distinguishing = distinguish to argue that another case is not precedent
- broadening = if judge appli as a rule and broaden the rule considerably
Where are stated EU values/big goals (tut 3)
- Article 2 TEU = states the core values
- Article 3 = the goals of the Union
- Charter of Fundamental Rights
What are the criterias, procedure, and article for accession to the EU ? (tut 3)
=> article 49 TEU = how a state can enter the EU, international agreement between MS and the applicant
Conditions :
- European state
- Values of article 2
- Copenhagen criterias (1993) = need of stable institutions/constitutions to guaranty fundamental rights, functioning market economy able to cope with prices of free market, state must have the ability to take on the obligations of the EU (acquis communautaire)
Procedure 5 conditions
A) Membership application addressed to the EU council
B) recommendation from the Commission
C) Unanimous decision by EU council
D) consent by EP
E) international agreement btwn all MSs and acceding state
Withdrawal of the EU : article and difference w article 49 (tut 3)
Withdrawal : once a country is in, it cannot be forced out
Article 50 TEU = right of withdrawal, requirements of withdrawal laid down (Brexit)
Accession : international agreement between MSs and the applicant =/= withdrawal : international agreement between the country and the EU
Mechanism for protecting EU values (just state article bc details are later)
- article 7 TEU = breach of Art 2
- article 258, 259, 260 TFEU (they will me together on the next Flashcards) = infringement and CJEU
- article 309 := money
- you can talk abt Case C-156/21 where some MS argued that using values to withhold money is not linked to treaty which CJEU answered in para. 127 = ’the values contained in Article 2 TEU have been identified and are shared by the MS. They define the very identity of the EU as a common legal order. Thus, the EU must be able to defend those values, within the limit of its powers as laid down by the Treaties’
Article 7 TEU as a mechanism for protecting EU values
Article 7 TEU : if breach of article 2 TEU
- not always clear if article 2 has been breached
- requires unanimity in the European Council => impossible when more than one country breaches (eg Poland and Hungary)
- not designed for slow descent into autocracy but more for a sudden change in gvnt or coup
- keeping article 7 open as a symbol
Article 258, 259, 260 as mechanisms for protecting EU values (i only have the note for tut 3 so just basic and ill do later the details given in tutorial 11 or some shit like that)
Article 258 TFEU : infringement measure, commission considers MS failed to fulfill obligation, if state does not comply => CJEU
Article 259 TFEU : MS can bring matter to CJEU if another MS failed obligation (very rare bc they are scared b*tches)
Article 260 TFEU : seeking penalty payments for non compliance with prior CJEU ruling
The use of article 309 as a mechanism for protecting EU values
Article 309 : European investment bank = withholding funds
- article 7 : old tool =/= new tool : secondary law & new regulations (the power of the purse), stop funding autocracies
3 measures : Conditionality regulation, next generation EU recovery plan, Common Provisions regulation
=> work with QMV (that way easier if more than one country breaches the values)
Why is ‘law as the object and agent of integration’
Object => integration is achieved by harmonizing national laws
Agent => EU law as a tool for economic, political, and social integration
Different national constitutions : difference btwn monism and dualism
Monist : international law has automatic effect in the national legal order and ranks between the constitution and ordinary legislation
Dualist : International law must be ‘incorporated’ in the national legal to exist as law - ranks same rank as act of national law
Difference public and private law
Public law : concerns relationship btwn state and individual (criminal law, administrative law, tax law)
Private law : concerns relationship between individuals (contract law, torts law, family law)
Cases that states supranational character of EU law
- Costa v ENEL - EEC treaty has created its own legal system which became an integral part of the legal systems of the MS , MS have limited their soverign rights, Treaty as independent source of law that cannot be overridden by domestic legal provisions
- Simmenthal
- internationale handeldhbcqeifneijcnienqj (or smth like that)
- les verts : Treaties are the EU’s ‘basic constitutional charter’
Van Gend en loos - Eu as new legal order of international law, MS have limited their sovereign rights
What makes EU law autonomous from national and international law ? 2 fundamental legal principles
Direct effect = private parties (citizens or companies) can invoke EU law before a national judge, which can apply provisions of EU law in disputes before him/her - introduced by CJEU Van Gend & Loos
Supremacy = when a conflict between national and EU law arises, national law must be disapplied (EU law is supreme over national law) - introduced by CJEU Costa v. Enel
==> EU law integral part of national law, or law would vary btwn states
Are there limits to supremacy
If conflict btwn EU law and national constitutional law ?
=> Internationale handelsgesellschaft : EU law cannot be overridden by rules of national law, however framed
If conflict EU law and national law adopted at a later stage ?
=> Simmenthal : national courts ‘have a duty to give full effect to EU law if necessary refusing… to apply any conflicting provision of national legislation, even if adopted subsequently’
If national courts dont have the power under national law to set aside their national law
=> Simmenthal : it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means’
BUT 3 LIMTS :
- fundamental rights review : EU law may not infringe (essential) national fundamental = Solange II
- Ultra vires review : EU law should respect the limits of its powers = Honeywell
- Constitutional identity review : EU law may not affect the national constitution identity is touched = lisbon judgement
3 limits to EU law supremacy in the case of law of many national (constitutional courts):
Fundamental rights review : EU law may not infringe (essential) national fundamental rights (German Solange II)
Ultra vires review : EU law should respect the limits of its powers (German Honeywell)
Constitutional identity review : EU law may not affect the national constitution identify is touched (German Lisbon judgement)
Provisions on EU institutions : where to find them ?
- basic provisions on EU institutions o be found in the TEU (art 13-19)
- detailed rules on their functioning in TFEU (art 223-287)
- further details to be found in each institution’s own Rules of procedure
Art 13(1) TEU : EU has 7 institutions
Art 13(2) TEU : act within the limits of the powers conferred on it in the Treaties
Which article states the three competences
Art 5(1) TEU : the limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of Subsidiarity and proportionality
Principle of conferral : art 5(2) : act only within the limits conferred upon by its MS => EU only has attributed competences
The three competences : article that states it, the one that lists the competences, maybe a couple of exemple
Exclusive competence : art 2(1) TFEU + Art 3 TFEU lists (customs union, completion law, common commercial policy…)
Shared competence : art 2(2) TFEU + Art 4 TFEU lists (internal market, transport, consumer protection, environment, public health, energy…)
Supporting, coordinating, and supplementary competence : art 2(5) TFEU + art 6 TFEU lists (industry, culture, education…)
3 elements needed for a legal basis to be sufficient proof of EU competence
A legal basis defines
- the power to act
- the purpose for which power is to be exercised
- the procedure through which power is to be exercised
In a nutshell, before the EU acts, we must check what ??
- principle of conferral : is there competence to act, incl. legal basis ?)
- principle of subsidiarity : is the EU better positioned than MSs to act ?
- principle of proportionality : how should the EU act concretely ?
