Principles Of EU Law Flashcards
Preemption - Art2.2 TFEU
MS can exercise competence only in so far as EU has not already done so or has stopped doing so.
Doesn’t apply to R&D, space.
Conferral - Art4/5 TEU
Union shall only act within limits of competences conferred by MS in Treaties to attain objectives set out therein. All other competences remain with MS.
Subsidiarity - Art5 TFEU
+ consequences
In areas in which it is not exclusively competent, Union will only act in areas where Treaty objectives can be better achieved at Union level than MS, regional, local.
See Protocol on its application.
Means EC has to consult widely before proposing legislative acts.
Gives greater control to national parliaments - ex ante control, early warning mechanism, Yellow card (1/3 votes of MS - EC must review) Red card (50%+1, EC must review, if maintains, Council or EP can veto it)
Ex post control - judicial review (though weak)
Flexibility Clause - Art 352 TFEU
Since Rome
EC can legislate even when primary law doesn’t expressly allow it in order to achieve wider Treaty aim.
Used more sparingly now. Less than 5 acts adopted here.
Requires unanimous Council, EC proposal and EP consent.
Harmonisation Clause - Art114 TFEU
Legal basis to harmonise national legislation through EU acts.
Measures which have as their object the establishment and functioning of internal market.
Concerns raised about extensive use.
Tobacco Advertising case - when national divergence creates impediment to functioning of single market.
Sincere cooperation
INTERENVIRONNEMENT WALLONIE case - cannot introduce national legislation that goes against EU directive even if implementation period is not expired.
Exclusionary effect
Incidental effect allows the use of indirect effect of EU directives in private legal actions. While an individual cannot be sued for failure to comply with an EU directive, the state’s failure to comply can be an incidental factor in a suit against an individual, where it will not impose legal obligations upon them. Case = CIA Security. And Unilever.
Supremacy / Primacy
Not in EC Treaty. Created by Costa vs ENEL 1964.
EU law takes primacy over national law. Primary or Secondary EU law, over ANY conflicting national measure.
To ensure uniform interpretation of EU law. Sensitive, not always accepted by National Courts eg Poland.
Justifies DE, harmonious interpretation and other remedies.
Included in Constitutional Treaty. Lisbon has a Declaration recalling it. Legally still valid but weakened by exclusion from text itself.
Equivalence
Conditions for the protection of rights which derive from EU law cannot be less favourable than those deriving from MS law.
Effectiveness
National rules should nit make the exercise of an EU law right impossible in practice.
Potential conflicts with national procedural autonomy.
