Week 4 Flashcards
Institutions, bodies and agencies of EU law and their competences in the 3 field of intellectual property rights. The Community Plant Variety Office (CPVO). The European Union Intellectual Property Office (EUIPO).
What is lecture 4 about?
Character of EU competences in the field of intellectual property. The 3 problem of EU exclusive competence in common commercial policy and the commercial aspects of intellectual property rights – the recent case- law of the CJEU.
What competences has EU?
The competences reserved explicitly in the treaties for the member states are the following:
- maintaining public order,
- protecting internal security,
- establishing the content of teaching,
- organising educational system,
- respect the culture and linguistic diversity of the member states
- defining health policy
- organisation and delivery of health services and medical care,
- production and trade in arms ammunition and explosives, property regimes.
What court held in the case Flaminio costa vs E.N.E.L. ?
court held: by creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and more particularly real powers stemming from a limitation of sovereignty over the transfer of powers from the states to the community the member states have limited their sovereign rights of within limited fields and have thus created a body of law which binds both their nationals and themselves
What is the principle of conferral?
is a fundamental principle of EU law. According to this principle, the EU is a union of member states, and all its competences are voluntarily conferred on it by its member states. The EU has no competences by right, and thus any areas of policy not explicitly agreed in treaties by all member states remain the domain of the member states.
The Union shall act only within the limits of the competences conferred upon it by the member states in the treaties to attain the objectives.
There is a presumption that competences not transferred to the EU are within the competences of the member states.
What are central institutions of EU?
- Commission
- Parliament
- Council
How many part is consisted the TEU (Treaty of Rome)?
is divided into six parts:
- Title I: Common Provisions
- Title II: Provisions on democratic principles
- Title III: Provisions on the institutions
- Title IV: Provisions on enhanced co-operation
- Title V: General provisions on the Union’s external action
- Title VI: Final provisions
What the first part Common Provisions is about of TEU?
Article 1 establishes the EU on the basis of the EC, and legal value of the treaties.
Article 2 EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
The member states share a “society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Article 3 aims of the EU in six points:
- to promote peace, European values and its citizens’ well-being
- free movement with external border controls in place.
- internal market
- establishes the euro.
- EU shall promote its values, contribute to eradicating poverty, observe human rights and respect the charter of the UN.
- EU shall pursue these objectives by appropriate means according with its competences given in the treaties.
Article 4 relates to member states sovereignty and obligations.
Article 5 sets out the principles of conferral, subsidiarity and proportionality with respect to the limits of its powers.
Article 6 binds the EU to the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
Article 7 deals with suspension of a member state.
Article 8 establishing close relations with neighboring states.
What the second part Provisions on democratic principles is about of TEU?
Article 9 establishes the equality of national citizens and citizenship of the European Union
Article 10 declares that the EU is founded in representative democracy and that decisions must be taken as closely as possible to citizens. It makes reference to European political parties and how citizens are represented: directly in the Parliament and by their governments in the Council and European Council – accountable to national parliaments.
Article 11 establishes government transparency, declares that broad consultations must be made and introduces provision for a petition where at least 1 million citizens may petition the Commission to legislate on a matter.
Article 12 gives national parliaments limited involvement in the legislative process.
What the third part Provisions on the institutions is about of TEU?
article 13 establishes the institutions in the following order and under the following names: the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union,
the European Central Bank and the Court of Auditors. It obliges co-operation between these and limits their competencies to the powers within the treaties.
Article 14 deals with the workings of Parliament and its election
article 15 with the European Council and its president
article 16 with the Council and its configurations
article 17 with the Commission and its appointment
Article 18 establishes the High Representative of the Union for Foreign Affairs and Security Policy
article 19 establishes the Court of Justice.
What the forth part Provisions on enhanced co-operation is about of TEU?
only one article which allows a limited number of member states to co operate within the EU if others are blocking integration in that field.
What the fifth part General provisions on the Union’s external action is about of TEU?
Chapter 1
article 21 principles that outline EU foreign policy, including compliance with the UN charter, promoting global trade, humanitarian support and global governance.
article 22 gives the European Council, acting unanimously, control over defining the EU’s foreign policy.
Chapter 2
Section 1 deals with common provisions, details the guidelines and functioning of the EU’s foreign policy, including establishment of the European External Action Service and member state’s responsibilities.
Section 2 article 42 to 46 deal with military co-operation
What the sixth part Final provisions is about of TEU?
article 47 establishes a legal personality for the EU
article 48 deals with the method of treaty amendment, specifically the ordinary and simplified revision procedures.
article 49 deals with applications to join the EU
article 50 withdrawal
article 51 deals with the protocols attached to the treaties
article 52 geographic application of the treaty
article 53 the treaty is in force for an unlimited period
article 54 deals with ratification
article 55 different language versions of the treaties
What is flexibility clause?
its an example of the implied competence which is the competence arising from article 352 of the TFEU.
According to that provision if action by the union should prove necessary within the framework of the policies defined in the treaties to attain one of the objectives set out in the treaties and the treaties have not provided the necessary powers for the Union the Council acting unanimously on the proposal from the commission and after obtaining the consent of the European Parliament shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.
What is the principle of proportionality ?
Like the principle of subsidiarity, the principle of proportionality regulates the exercise of powers by the European Union (EU). It seeks to set actions taken by EU institutions within specified bounds. Under this rule, the action of the EU must be limited to what is necessary to achieve the objectives of the Treaties. In other words, the content and form of the action must be in keeping with the aim pursued.
The principle of proportionality is laid down in Article 5 of the Treaty on European Union. The criteria for applying it are set out in the Protocol (No 2) on the application of the principles of subsidiarity and proportionality annexed to the Treaties.
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Important role in balancing rights and values of EU and national law. article 3 to 6 of the TFEU - expressly recognize 4 general competence categories: exclusive, short competence, coordinating competences and complementary competences.
What is exclusive competences?
according to the article 2 p1 of TFEU.
When the treaties confer on the Union exclusive competence in a specific area, only the union may legislate and adopt legally binding acts. The member states being able to do so themselves only if so empowered by the union or for the implementation of the union acts.
Examples:
- Customs Union, the establishing of the competition rules necessary for the functioning of the internal market,
- monetary policy for the Member States whose currency is the euro,
- the conservation of marine biological resources under the Common Fisheries Policy
- and common commercial policy.
What is shared competence?
According to the article 2 p2 and article 4 of the TFEU.
When the treaties confer on the union a competence shared with the member states in a specific area, the union and the member states may legislate and adopt a legally binding acts in this area. The member states shall exercise their competence to the extent that the union has not exercised its competence.
What is coordinating competence?
provided for in Article 2 paragraph 3 and Article 5 of the Treaty on the Functioning of the European Union. The Member States shall coordinate their economic and employment policies within arrangements as determined by this treaty which the Union shall have competence to provide. The Member States shall coordinate their economic policies within the union. To this end the Council shall adopt measures in particular broad guidelines for these polices. Specific provisions shall apply to those Member States whose currency is the euro. The Union shall take measures to ensure coordination of the Employment Policies of the member states in particular by defining guidelines for these policies. The union may take initiatives to ensure coordination of the member states social policies.
It is said in the literature that the constitutional constitutional character of coordinating competences remains largely undefined. Articles 2 and 5 on the Treaty on the Functioning of the European Union only tell us that the union has a competence to provide arrangements for the member states so as to allow them to exercise their competences in a coordinated manner. The union’s coordination afford will thus usually involve the adoption of guidelines and initiatives to ensure coordination.
What is complementary competence?
They are referred in Article 2 paragraph 5 and Article 6 of the Treaty on the Functioning of the European Union. In certain areas and under the conditions laid down in the treaties the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the member states without thereby separate setting and their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of the treaties relating to these areas shall not entail harmonisation of the member states laws or regulations. This is said to be the most characteristic feature of this category of competences but on the other hand it is admitted that the limits of the competence of these competence type are largely unexplored.
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the member states in the following areas: protection and improvement of human health, industry culture, tourism, education, vocational training, youth and sport, civil protection and administrative cooperation.
What is the uniform principle?
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What is the distribution of the competences?
The Treaty of Lisbon clarifies the division of competences between the EU and its member countries. Alongside the principles of subsidiarity and proportionality, sits the principle of conferral (Article 5 of the Treaty on European Union - TEU).
This principle means that the EU can only act within the limits of the competences that have been conferred upon it by the EU treaties. These competences are defined in Articles 2-6 of the Treaty on the Functioning of the EU (TFEU).
There are 4 types of competences:
exclusive (Article 3 TFEU) only the EU can act in these areas e.g. customs union & trade policy;
shared between the EU and EU countries (Article 4 TFEU). EU countries can act only if the EU has chosen not to, e.g. cohesion policy, energy & environment. EU countries may ask the Commission to repeal an adopted legislative act in one of the shared areas so as to better ensure compliance with the principles of subsidiarity and proportionality (Declaration No 18 annexed to the Treaty of Lisbon);
EU sets up arrangements within which EU countries must coordinate policy (Article 5 TFEU) e.g. economic policy;
EU can support, coordinate or supplement EU countries’ actions (Article 6 TFEU) e.g. culture & tourism.
What is the principle of subsidiarity?
The principle of subsidiarity is defined in Article 5 of the Treaty on European Union. It aims to ensure that decisions are taken as closely as possible to the citizen and that constant checks are made to verify that action at EU level is justified in light of the possibilities available at national, regional or local level.
Specifically, it is the principle whereby the EU does not take action (except in the areas that fall within its exclusive competence), unless it is more effective than action taken at national, regional or local level. It is closely bound up with the principle of proportionality, which requires that any action by the EU should not go beyond what is necessary to achieve the objectives of the Treaties.
There are two Protocols annexed to the Treaty of Lisbon that are key:
Protocol No 1 on the role of national Parliaments encourages national Parliaments’ involvement in EU activities and requires EU documents and proposals to be forwarded promptly to them so they can examine them before the Council takes a decision.
Protocol No 2 requires the Commission to take into account the regional and local dimension of all draft legislative acts and to make a detailed statement on how the principle of subsidiarity is respected. This Protocol allows national Parliaments to object to a proposal on the grounds that it breaches the principle, as a result of which the proposal must be reviewed and may be maintained, amended or withdrawn by the Commission, or blocked by the European Parliament or the Council.
In the case of a breach of the principle of subsidiarity, the Committee of the Regions or EU countries may refer an adopted act directly to the Court of Justice of the EU.
What is exclusive competence ?
Article 3 of the Treaty on the Functioning of the European Union — TFEU) areas in which the EU alone is able to legislate and adopt binding acts. EU countries are able to do so themselves only if empowered by the EU to implement these acts. The EU have exclusive competence in the following areas:
customs union;
the establishing of competition rules necessary for the functioning of the internal market;
monetary policy for euro area countries;
conservation of marine biological resources under the common fisheries policy;
common commercial policy;
conclusion of international agreements under certain conditions.-
What is shared competence?
(Article 4 of the TFEU): the EU and EU countries are able to legislate and adopt legally binding acts. EU countries exercise their own competence where the EU does not exercise, or has decided not to exercise, its own competence. Shared competence between the EU and EU countries applies in the following areas:
internal market;
social policy, but only for aspects specifically defined in the Treaty;
economic, social and territorial cohesion (regional policy);
agriculture and fisheries (except conservation of marine biological resources);
environment;
consumer protection;
transport;
trans-European networks;
energy;
area of freedom, security and justice;
shared safety concerns in public health matters, limited to the aspects defined in the TFEU;
research, technological development, space;
development cooperation and humanitarian aid.
What is supporting competence?
Supporting competences (Article 6 of the TFEU): the EU can only intervene to support, coordinate or complement the action of EU countries. Legally binding EU acts must not require the harmonisation of EU countries’ laws or regulations. Supporting competences relate to the following policy areas:
protection and improvement of human health;
industry;
culture;
tourism;
education, vocational training, youth and sport;
civil protection;
administrative cooperation.
What is the principle of conferral?
Under this fundamental principle of EU law, laid down in Article 5 of the Treaty on European Union, the EU acts only within the limits of the competences that EU countries have conferred upon it in the Treaties. These competences are defined in Articles 2–6 of the Treaty on the Functioning of the EU. Competences not conferred on the EU by the Treaties thus remain with EU countries.
While the principle of conferral governs the limits to EU competences, the use of those competences is governed by the principles of subsidiarity and proportionality.
What do you know about EU power and competence?
European powers are those that are conferred on the European Union (EU) in specific areas by EU countries.
There are 3 types of powers, which vary in how they are conferred:
Explicit powers: these are clearly defined in the relevant articles of the Treaties.
Implicit powers: according to the implicit powers theory, competence in external matters derives from explicit internal competence. Where the Treaties assign explicit powers to the EU in a particular area (e.g. transport), it must also have similar powers to conclude agreements with non-EU countries in the same field (the principle of parallelism between internal and external powers).
Subsidiary powers: where the EU has no explicit or implicit powers to achieve a Treaty objective concerning the common market, Article 352 of the Treaty on the Functioning of the EU allows the Council, acting unanimously, to take the measures that it considers necessary.
What are 3 main categories of the EU competences?
exclusive competences;
shared competences; and
supporting competences.
What do you know about distribution of the competence?
The Treaty of Lisbon clarifies the division of competences between the EU and its member countries. Alongside the principles of subsidiarity and proportionality, sits the principle of conferral (Article 5 of the Treaty on European Union - TEU).
This principle means that the EU can only act within the limits of the competences that have been conferred upon it by the EU treaties. These competences are defined in Articles 2-6 of the Treaty on the Functioning of the EU (TFEU).
There are 4 types of competences:
exclusive (Article 3 TFEU) only the EU can act in these areas e.g. customs union & trade policy;
shared between the EU and EU countries (Article 4 TFEU). EU countries can act only if the EU has chosen not to, e.g. cohesion policy, energy & environment. EU countries may ask the Commission to repeal an adopted legislative act in one of the shared areas so as to better ensure compliance with the principles of subsidiarity and proportionality (Declaration No 18 annexed to the Treaty of Lisbon);
EU sets up arrangements within which EU countries must coordinate policy (Article 5 TFEU) e.g. economic policy;
EU can support, coordinate or supplement EU countries’ actions (Article 6 TFEU) e.g. culture & tourism.
What are special competences of EU ?
The EU can take measures to ensure that EU countries coordinate their economic, social and employment policies at EU level.
The EU’s common foreign and security policy is characterised by specific institutional features, such as the limited participation of the European Commission and the European Parliament in the decision-making procedure and the exclusion of any legislation activity. That policy is defined and implemented by the European Council (consisting of the Heads of States or Governments of the EU countries) and by the Council (consisting of a representative of each EU country at ministerial level). The President of the European Council and the High Representative of the Union for Foreign and Security Policy represent the EU in matters of common foreign and security policy.
Where shared competences between the union and the Member States are applied?
applies in the following areas:
internal market,
social policy for the aspects defined in the treaties, economic, social and territorial cohesion, agriculture and fisheries, excluding the conservation of marine biological resources, environment, consumer protection, transport, trans-European networks, energy, area of freedom, security and justice, common safety concerns in public health matters for the aspects defined in this treaty.
What is preemption?
Adoption EU Act prevents the member states from action their act would be incompatible with EU law.
What is external competence of the Union?
it means competence in external relations in particular to conclude international agreements with their countries and other international organisations. According to article 216 of the Treaty on the Functioning of the European Union. The union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide all word the conclusion of an agreement is necessary in order to achieve within the framework of the Union’s policies one of the objectives referred to in the treaties or is provided for in legally binding union act or is likely to affect come on the rules all or other their scope.
What is proportionality test ?
the test of proportionality principle in the light of the jurisprudence of the court of Justice.
Under the test:
- it reviews suitability of the measure
- necessity of the measure
- proportionality in the strict sense.
What is the principle of sincere cooperation (principle of loyalty)?
According to Article 4 Paragraph 3 of the Treaty on the European Union, pursuant to the principle of sincere cooperation, the union and the Member States shall in full mutual respect assist each other in carrying out tasks which flow from the treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the treaties or resulting from the acts of the institutions of the Union. The principle of sincere cooperation was originally perceived as a moral duty that is an expression of the principle of public international law pacta sunt servanda.
What is pacta sunt servanda?
the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that nonfulfillment of respective obligations is a breach of the pact.
Pacta sunt servanda is a latin term which means agreements must be kept. It is the principle in international law which says that international treaties should be upheld by all the signatories. The rule of pacta sunt servanda is based upon the principle of good faith. The basis of good faith indicates that a party to the treaty cannot invoke provisions of its domestic law as a justification for a failure to perform. The only limit to pacta sunt servanda is the peremptory norms of general international law known as “jus cogens” which means compelling law.
How do you understand the proportionality test?
Within suitability it explores whether the EU measure is suitable to achieve a given objective. It means whether it is possible to achieve with a given measure a given objective.
The necessity explores whether the measure is the least restrictive measure to achieve a given the union’s objective. Its so-called formal excessiveness.
The proportionality test in the strict sense explores substantive excessiveness of the measures to the objective pursued with regard to individual searching for a fair balance between the demands of the public and the interest of individuals concerned.
What is the principle of the effectiveness of the EU Law?
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