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eu law > Sources Of EU Law > Flashcards

Sources Of EU Law Flashcards

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1
Q

Define: Regulations

A
  1. Have general application throughout the EU
  2. Are binding in their entirety
  3. Are directly applicable to all MSs
  4. Used to impose ‘one size fits all’ laws throughout the EU
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2
Q

Define: Directives

A
  1. Binding upon those MSs to whom they are addressed.

2. Method of implementation is left to the discretion of each MS

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3
Q

Define: Decisions

A
  1. Apply to those persons to whom they are addressed
  2. Binding in their entirety upon those persons
  3. Do not require legislatures of MSs to enact them in order to have legal effect.
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4
Q

Recommendations & Opinions

A
  1. No binding legal force - Persuasive only
  2. Should be considered when interpreting national law which has been enacted to enforce EU directives. (Grimaldi v Fonds)
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5
Q

Principles of administrative law

A
  1. Proportionality - Only do what is necessary to implement EU law
  2. Legal Certainty - EU citizens must be able to be certain as to what the law is.
  3. Protection of Procedural Rights
  4. Equality
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6
Q

Article 258 TFEU

A

Allows the Commission to bring proceedings before the ECJ against a MS for not fulfilling its Treaty obligations

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7
Q

Article 259 TFEU

A

Allows a MS to bring proceedings against another MS

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8
Q

Article 294 TFEU

A

The ‘ordinary’ procedure by which EU institutions decide on particular secondary legislation to adopt. This gives the European Parliament a veto.

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9
Q

Article 289 TFEU

A

The ‘special’ legislative procedure by which secondary legislation can be adopted by the Council with only a limited requirement to ‘consult’ the European Parliament. Note that failing to follow the correct procedure under articles 294 or 289 can be reviewed by the ECJ.

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10
Q

Define: Direct Effect

A

Some provisions of EU law confer rights on individuals, which can be enforced in national courts.

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11
Q

Case authority: Treaty articles are directly effective

A

Van Gend En Loos (VGL)

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12
Q

What was the justification given in VGL for treaty articles having direct effect?

A

EC Treaty had created a “new legal order” in which MSs waived some of their own sovereign rights and which imposes both rights and obligations on individuals and on the state.

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13
Q

Case authority: Supremacy of EU law

A

Costa v ENEL

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14
Q

Case authority: Individuals gain rights at the cost of the MS’s sovereignty

A

Simmenthal

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15
Q

Van Gend en Loos criteria for direct effect

A
  1. Clear and precise - provision gives rise to identifiable rights, and the obligation must be set out in unequivocal terms.
  2. Unconditional - The provision does not depend no other measures and the state has no discretion in implementation.

(Coop Agricola Zootecnica)

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16
Q

Case authority: Treaty articles can have direct effect

A

Defrenne v Sabena

17
Q

Case authority: Treaty articles can have direct effect even when they confer a positive obligation

A

Lutticke (Alfons) v Hauptzollamt

18
Q

Case authority: Recommendations and opinions cannot have direct effect as they are not binding

A

Grimaldi

19
Q

Are regulations capable of having direct effect?

A

Regulations are directly applicable. May also be capable of direct effect if the VGL criteria are met.

20
Q

Case authority: Directives are only capable having direct effect

A

Van Duyn

21
Q

Case authority: Directives can only have vertical direct effect, not horizontal.

A

Dori (Faccini); Marshall v Southampton AHA

22
Q

What are the conditions for directives to have direct effect?

A
  1. Must be sufficiently clear and precise (VGL; Van Duyn)
  2. It must have been incorrectly implemented (Ratti).
  3. The implementation date must have passed (Ratti)
  4. The action must be against the State or an emanation of the state (Marshall v Southampton AHA; Doughty v Rolls Royce)
23
Q

When considering whether a directive has direct effect, what are the three circumstances under which a directive may have been incorrectly implemented?

A
  1. Directive has not been implemented at all (Ratti)
  2. It has been implemented partially, or incorrectly (VNO v Inspecteur)
  3. It has been correctly implemented but has been applied so that it fails to achieve the purpose it was supposed to achieve. (Marks & Spencer v Commissioner)
24
Q

Case authority: Tests for an emanation of the state.

A

Foster v British Gas

25
Q

What are the tests set out in “Foster” for determining whether an undertaking is an emanation of the state?

A
  1. Tripartite test

2. Bipartite test

26
Q

What is the Tripartite test set out in Foster?

A
  1. The body provides a public service; and
  2. The service is under the control of the state; and
  3. For the purpose of providing the service the body has special powers beyond those which result from the normal rules applicable between individuals.
27
Q

What is the Bipartite test set out in “Foster”?

A
  1. The body has special powers beyond those which result from the normal rules applicable between individuals; or
  2. The service is under state control
28
Q

Case authority: Tax authorities are emanations of the state.

A

Becker

29
Q

Case authority: Local and regional authorities are emanations of the state.

A

Fratelli Costanzo

30
Q

Case authority: Police forces are emanations of the state.

A

Johnston v CC (RUC)

31
Q

Case authority: Health authorities are emanations of the state.

A

Marshall

32
Q

Case authority: Universities are emanations of the state.

A

Scholz

33
Q

Case authority: Privatised water companies are emanations of the state.

A

Griffin v South West Water

34
Q

Case authority: Government owned company producing cars was deemed not to be an emanation of the state.

A

Doughty v Rolls Royce

35
Q

Define: Treaties

A
  1. Forms of Primary Legislation.
  2. Agreed by Member States at meetings of European Council, subject to ratification by the legislature of each MS. May also require a referendum if required under the national law of a particular MS.
  3. In UK treaty changes must be approved by both Houses of Parliament, and if major changes are made by a treaty, the EU Act 2011 requires a referendum.

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