EU LAW: Week 2
Decision-making competences EU: Legal Bases
Art. 43(2) TFEU Art. 113 TFEU Art. 114(1) TFEU Art. 168(5) TFEU Art. 352(1) TFEU
CASE: Akerberg Fransson
Member States - Akerberg Fransson, 2013 - Mr. Akerberg Fransson didn't pay taxes. Administrative sanction & criminal prosecution. - Issue: Whether national rules for administrative and criminal penalties applicable to infringements of VAT legislation can be considered implementation of Union law - Art. 51(1): - "all situations governed by European Union law, but not outside such situations" - In casu? "The tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT" YES! 19. The Court's settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures. 20. That definition of the field of application of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to this effect, Case C-279/09 DEB [2010] ECR I-13849, paragraph 32). According to those explanations, 'the requirement torespect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law'. 21. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter. 27. It follows that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1) of the Charter.28. The fact that the national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union. Contentious issue: Interpreting Article 51 (1) CFR Directive 2006/112/EC, MS take necessary measures to collect VAT ≠ (is not the same as) MS legislation: tax penalties and criminal proceedings - not a transposition of the directive. The situation might fall within the 'scope' of EU law but Member States were not 'implementing' EU law. 'Implementing EU law' - wording reflects the desire of Member States to limit the scope of the Charter Still, paras. 19-21: the Court equated "implementation" with "scope of application" (Ne bis in idem: not harmed if administrative sanction is not of criminal nature. Up to national court to decide, para 1&2 of decision)) Facts Fransson was fined for tax avoidance in 2007, then he got criminal proceedings against him in 2009, he says this is a violation of fundamental rights A50 that nobody should be punished twice for the same fault Question If this case falls within the scope of EU law Can he be punished the second time? Court ECJ only has jurisdiction over national legislations that aims to implement EU law, in this case the MS has the obligation to collect taxes and counter all wrongdoings affecting the financial interest of the EU, so ECJ has jurisdiction The principle that you can't be punished twice only applies if the first punishment was criminal in nature, to determine if a punishment is criminal in nature is up to the MS, HR charter only applies to MS when they are implementing union law, ECJ can force MS to do it because ECJ has jurisdiction, but if you dive deeper, they can't because it is outside their jurisdiction to see if the punishment is criminal
CASE: Internationale Handelsgesellschaft
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel also known as "Solange I", is an EU law case and German constitutional law case concerning the conflict of law between a national legal system and the laws of the European Union. Facts - You can only export if you have a licence and if you deposit some money, and if the other side (importer) doesn't import the goods, then you would lose your deposit - IH lost its deposit, claimed that the system is invalid because it is contrary to HR under German constitution as you can only impose on citizens rules that are necessary for public objectives - It intervenes with the freedom of disposition and econoimc liberty - Question: does EU law have primacy over national law especially fundamental rights in the MS constitutions - Court: full supremacy of community law, national law needs to amend itself to fit EU law not vice versa otherwise EU law would be called into question - Also: fundamental rights of a MS can't affect the validity of community law JUDGEMENT: The ECJ held that the validity of EU measures cannot be challenged on grounds of national law rules or concepts, even if that is a violation of fundamental human rights provisions in a member state's constitution
CASE: Van Gend en Loos
Van Gend en Loos (1963) was a landmark case of the European Court of Justice which established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Community's member states. This is now called the principle of direct effect. The case is acknowledged as being one of the most important, and possibly the most famous development of European Union law.
Decision-making competences EU: Legal Basis Disputes before the CJEU
Working Time Directive Case: - Directive on maximum working hours: social policy or an unforeseen case? - Council: Art. 153 TFEU: "improvement in particular of the working environment to protect workers' health and safety" = OLP = QMV in Council - UK: no specific legal basis exists, hence Art. 352 TFEU = Spl = Unanimity in the Council - Court: working too long is bad for your health, so Art. 153 TFEU is the correct legal basis Tobacco Advertising Case: - Directive prohibiting almost all forms of advertisements for tobacco products: internal market or public health protection? - EP and Council: Art. 114: good for free movement, creating a level playing field = OLP = QMV in Council - Germany: smoking is bad for your health, so Art. 168 = also OLP but prohibition of harmonization - Court: lot of forms of advertisements for tobacco products that are prohibited have nothing to do with free movement nor with competition (paras. 98 and 99). So not Art. 114. So annulment of the Directive.
Decision-making competences EU: Adding Level 3
(First look at image) Delegation Art. 290(1) TFEU: "A legislative act may delegate to the Commission the power to adopt non-legislative acts of general applicationto supplement or amend certain non-essential elementsof the legislative act. Implementation Art. 291(1)(2) TFEU: "1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts. 2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission...."
EU and Human Rights Art. 6 TEU: 1. HR as general principles of EU law 2. Accession EU to ECHR, but negative Opinion 2/13 3. Charter of Fundamental Rights of the EU 3. Charter of Fundamental Rights of the EU
- binding since Lisbon - 7 Titles - Scope of application: Art. 51(1) Charter = "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." Institutions Digital Rights Ireland: annulment of the Data Retention Directive because it violates Articles 7 and 8 of the Charter (privacy; protection personal data) Member States Akerberg Fransson: - "all situations governed by European Union law, but not outside such situations". - In casu? "The tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT" àYES! Private parties AMS: Does the Charter have horizontaldirect effect?? à "It is necessary to ascertain .... whether Article 27 of the Charter....can be invoked in a dispute between individuals" (para 41) Private parties But since Bauerit is clear that the Charter indeed can have HDE: 87 With respect to the effect of Article 31(2) of the Charter [right to paid annual leave] on an employer who is a private individual, it should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union....and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.
EU and Human Rights Art. 6 TEU: 1. HR as general principles of EU law 2. Accession EU to ECHR, but negative Opinion 2/13 3. Charter of Fundamental Rights of the EU 1. HR as general principles of EU law
- initially CJEU: no written list, no HR protection against acts of the EEC/EU institutions - reaction national courts, esp. Bundesverfassungsgericht: okay, then we will do the job (Solange I) - CJEU: HR do exist in the EU legal order, but as unwritten general principles (= part of primary EU law); 'inspiration' drawn from national constitutions and HR Treaties, esp. the ECHR See Internationale Handelsgesellschaft: "Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice" (para. 4)
Under which provision(s) does the Court of Justice have jurisdiction to declare the Union's draft treaty for accession to the ECHR incompatible with Union law? And, why has the Court in fact done so?
Art. 218(11) TFEU - binding opinion. Why not action for annulment? Because it's a DRAFT decision. CJEU negative Opinion 2/13. Why? CJEU wants to keep final say on EU laws! Doesn't want to give it away to an external court. BUT: CJEU never considered itself materially bound by the European Convention on Human Rights. Has drawn inspiration from common constitutional traditions and the ECHR instead.
Decision-making competences EU: Legal Instruments
Art. 288 TFEU: "To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. - A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. - A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. - A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. - Recommendations and opinions shall have no binding force".
Decision-making competences EU: Exercise of Competences
Art. 5 TEU "1. 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. ... 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.... 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties...."
Since World War 2, European States have been a party to various human rights treaties, including the European Convention on Human Rights. What then is the added value of the Charter of Fundamental Rights of the European Union? Again, include in your answer the relevant case law of the CJEU prescribed for this week.
Art. 51(1) Charter: primarily for EU institutions to be bound, because EU is not a party to human rights treaties! MS were already bound. Art. 51 = scope of application! "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." Relevant case law: Applied Against Institutions --> Digital Rights Ireland Applied Against Member States--> Akerberg Fransson Applied Between Private parties --> Bauer
Decision-making competences EU: Ordinary Legislative Procedure
Article 289 and 294 TFEU --> Three 'readings' (=phases)
CASE: Digital Rights Ireland
Digital Rights Ireland: annulment of the Data Retention Directive because it violates Articles 7 and 8 of the Charter (privacy; protection personal data) Lobby group against controversial EU Data Retention Directive, which obliged telecom providers to retain phone no's, IP-addresses, location data & other things for 6 monts - 2 years. Purpose Directive: to prevent, investigate, detect and prosecute serious crimes such as organized crime and terrorism. Art. 7, 8 & 11 EU Charter Can you limit a right? - Art. 52(1). 1. Provided by law2. Respect the right's essence3. Proportionality CJEU: proportionality harmed! No clear rules governing the extent of the interference, not sufficient safeguards to ensure effective protection of data. Paras. 47-48, 53-54 (considerations) 65 - 69 (decision). Directive = invalid. 51. As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.52. So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court's settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C-473/12 IPI EU:C:2013:715, paragraph 39 and the case-law cited). 65. It follows from the above that Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary. 68. In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data (see, to that effect, Case C-614/10 Commission v Austria EU:C:2012:631, paragraph 37). 69. Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.
CASE: Working Time Directive
Facts - Council adopted a directive (work 48 hours a week) based TFEU Article 153 (OLP) - UK: no specific legal basis exist, so we should rely on TFEU Art. 352 (SLP) - Question: which legal basis is right? - Court: council is right The main purpose was protection of health and safety, working too long is bad - The council couldn't explain why Sunday is the best rest day, so the court got rid of that. Working Time Directive UK v Council of the EU UK is still furious about decision Directive adopted by Council that limited working week to 48 h with the purpose to protect the health and safety of workers Council: right basis is Art. 153 TFEU UK: Art. 153 only sees to physical "working environment", not working hours Principle of subsidiarity No explicit legal basis, so need to use Art. 352 instead - requires unanimity in Council CJEU: Art. 153 TFEU is right basis = Council won If you work too much, it's threatening your health → broad interpretation of "working environment" Directive has EFFECT on the internal market, but isn't the central feature. So no annulment of the Directive (para. 22) Principle of subsidiarity not harmed, para. 55 & 58. NB Court has NEVER declared a legislative act void because of that. Political question: not up for the CJEU to consider
CASE: Tobacco Advertising
Facts A. Council adopted a directive (ban all tobacco advertisement) based on TFEU A114 (OLP) - Internal market because harmonized tobacco marketing B. Germany: smoking is bad for your health, so we should rely on TFEU A168 (OLP, but prohibits harmonization) C. Question: which legal basis is right? D. Court: Germany is right - Banning tobacco advertising does not improve market conditions nor remove existing obstacles Germany v the EP and the Council Directive banned ALL advertising on tobacco, incl. on parasols, posters and ashtrays on the basis of Art. 114 TFEU (harmonization), OLP Motivation: such big differences in MS that certain advertising companies/producers were disadvantaged Germany: smoking is bad for your health. There is no legal basis to harmonize, in fact Art. 168(5) prohibits harmonization of laws "designated to protect and improve human health" CJEU: That is justified when, in line with Art. 114: The Directie actually contributes to eliminating obstacles to the free movement of goods & services or; It removes distortions of competition Both arguments are not convincing enough (para. 98 and 99). Ban too wide/general → Directive annulled. It was the first time the Court did that; it really wanted to make a point: conferral is important BUT door open to the future for SPECIFIC forms of bans, para. 97 & 117 Happened in 2003, for press, printed media products, radio, broadcasts etc. Germany lost new lawsuit in 2006
AMS Case
Issue: May an Article of the Charter, in conjunction with a Directive, be invoked in a national court in order to disapply a national provision? Rule: Art. 27 of Charter (Workers' right to information and consultation within the undertaking) Analysis: Does the Directive meet the conditions to have direct effect? Unconditional Sufficiently precise (§31). §35: Art. 3(1) of the Directive has direct effect. A Directive that confers rights and obligations cannot of itself apply in proceedings exclusively between private parties (§36) The obligation of a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem. Art. 27 by itself does not suffice to confer to individuals a right they can invoke in private proceedings Conclusion: Art. 27 cannot be invoked in a proceeding between private parties to disapply a national provision, which is incompatible with EU law
What is, according to the Court of Justice of the European Union, the scope of the principle of "effective judicial protection" in the context of the fight against terrorism? Include in your answer the relevant case law of the CJEU prescribed for this week.
Kadi case continued: Para. 324 - 326, 334, 335, 351. At the UN level there's no effective judicial protection, so we will do the job (CJEU). Stubborn case of CJEU? "International law not higher than our own system"? 324. The Guidelines of the Sanctions Committee, as last amended on 12 February 2007, make it plain that an applicant submitting a request for removal from the list may in no way assert his rights himself during the procedure before the Sanctions Committee or be represented for that purpose, the Government of his State of residence or of citizenship alone having the right to submit observations on that request. 325. Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons. 326. It follows that the Community judicature must (...) ensure the review, in principle the full review, of the lawfulness of all Community action in light of the fundamental rights forming an integral part of the general principles of EU law, including review of EU measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the United Nations SC under Chapter VII of the Charter of the UN.
CASE: Accession EU to ECHR (Opinion 2/13)
Opinion 2/13 (2014) is an EU law case, concerning the accession of the European Union to the European Convention on Human Rights, and the power struggle of the Court of Justice of the European Union to maintain its perceived preeminence. FACTS: The Commission asked the Full Court whether, in its view, the Draft Agreement on Accession of the EU to the European Convention on Human Rights was compatible with the Treaties. -> on request of the European Commission under Article 218 (11) TFEU JUDGEMENT: The Court of Justice held that the EU could not accede to the ECHR under the Draft Agreement. It held the Agreement was incompatible with TEU article 6(2). Its reasons suggested the Draft Agreement : (a) undermined the Court of Justice's autonomy (b) allowed for a second dispute resolution mechanism among member states, against the treaties (para (c) the "co-respondent" system, which allowed the EU and a member state to be sued together, allowed the ECtHR to illegitimately interpret EU law and allocate responsibility between the EU and member states; (d) did not allow the Court of Justice to decide if an issue of law was already dealt with, before the ECtHR heard a case; and (e) the ECtHR was illegitimately being given power of judicial review over Common Foreign and Security Policy. Lecture: Main Issues: - Review on request of the European Commission under Article 218 (11) TFEU - The autonomy of the EU legal order (para 170...181) NB see cases for this week listed there! - The monopoly on dispute settlement - Article 344 TFEU (paras 201...); Other reasons: - The co-respondent mechanism (paras 215...); - The procedure for the prior involvement of the CJEU (paras 236...) - The specific characteristics of EU law concerning judicial review in matters of the CFSP (paras 249...)
CASE: Bauer
Private parties - Bauer, 2018 Bauer: right to pay annual leave, between worker/employer (afterworker's death) German law: right disappears after death. Directive: no! So no correct implementation of the directive. Can the Charter be invoked by private parties against other private parties (horizontal direct effect)? Since Bauer CJEU: yes. Para. 87 & 88-90. 2. The requests have been made in two sets of proceedings between, in Case C- 569/16, Stadt Wuppertal (town of Wuppertal, Germany) and Mrs Maria Elisabeth Bauer and, in Case C-570/16, Mr Volker Willmeroth, in his capacity as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e.K., and Mrs Martina Broßonn, concerning the refusal by Stadt Wuppertal and Mr Willmeroth, respectively, in their capacity as former employers of the late husbands of Mrs Bauer and Mrs Broßonn, to pay Mrs Bauer and Mrs Broßonn an allowance in lieu of the paid annual leave not taken by their spouses before their death. 72. The Court has already held that Article 7(1) of Directive 2003/88 satisfies those criteria of unconditionality and sufficient precision, as it imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved that is not coupled with any condition regarding application of the rule laid down by it, which gives every worker entitlement to at least four weeks' paid annual leave. That article thus fulfils the conditions required to produce direct effect (see, to that effect, judgment of 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, paragraphs 34 to 36). 75. Since Article 7 of Directive 2003/88 fulfils, as is apparent from paragraphs 72 and 73 of the present judgment, the conditions required to produce direct effect, it follows that Mr Bauer, or in the light of his death, his legal heir, has, as is clear from the case-law of the Court referred to in paragraphs 70 and 71 of this judgment, the right to obtain, from Stadt Wuppertal, an allowance in lieu of paid annual leave acquired under that provision and not taken by the individual, national courts being, in that regard, required to disapply national legislation which, like that at issue in the main proceedings, precludes the award of such an allowance. 76. However, as regards the dispute in the main proceedings in Case C-570/16 between Ms Broßonn, as the legal heir of her late husband, and his former employer, Mr Willmeroth, it should be recalled that, according to the Court's settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. If the possibility of relying on a provision of a directive that has not been transposed, or has been incorrectly transposed, were to be extended to the sphere of relations between individuals, that would amount to recognising a power in the European Union to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations (judgment of 7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraph 42 and the case-law cited). 77. Thus, even a clear, precise and unconditional provision of a directive seeking to confer rights on or impose obligations on individuals cannot of itself apply in a dispute exclusively between private persons (judgment of 7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraph 43 and the case-law cited). 78. As the Court has already held, Article 7 of Directive 2003/88 cannot therefore be invoked in a dispute between individuals in order to ensure the full effect of the right to paid annual leave and to set aside any contrary provision of national law (judgment of 26 March 2015, Fenoll, C-316/13, EU:C:2015:200, paragraph 48). 79. In the light of the foregoing, it is necessary, secondly, to examine the scope of Article 31(2) of the Charter, in order to determine whether that provision, for which it has been established, in paragraphs 52 to 63 of the present judgment, that it is intended to apply to situations such as those in the main proceedings and must be interpreted as meaning that it precludes legislation such as that at issue in the main proceedings, may be invoked in a dispute between individuals, such as that arising in Case C-570/16, in order to require that the national court sets aside that national legislation and grants the deceased worker's legal heirs an allowance, payable by the former employer, in lieu of paid annual leave not taken to which that worker was entitled under EU law at the time of his death. 84. By providing in mandatory terms that 'every worker' has 'the right' 'to an annual period of paid leave' without referring in particular in that regard — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale (C-176/12, EU:C:2014:2) — to 'the cases and ... conditions provided for by Union law and national laws and practices', Article 31(2) of the Charter reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave. Private parties Bauer (6) But since Bauer it is clear that the Charter indeed can have horiontal direct effect! 87. With respect to the effect of Article 31(2) of the Charter [right to paid annual leave] on an employer who is a private individual, it should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices andagencies of the European Union....and to the Member States only whenthey are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter andcannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility. Q5. What is your opinion about the Court's judgment in the Bauer case? 88. First of all, as noted by the Advocate General in point 78 of his Opinion, the fact that certain provisions of primary law are addressed principally to the Member States does not preclude their application to relations between individuals (see, to that effect, judgment of 17 April 2018, Egenberger, C-414/16, EU:C:2018:257, paragraph 77). 89. Next, the Court has, in particular, already held that the prohibition laid down in Article 21(1) of the Charter is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute with another individual (judgment of 17 April 2018, Egenberger, C-414/16, EU:C:2018:257, paragraph 76), without, therefore, Article 51(1) of the Charter preventing it. 90. Finally, as regards, more specifically, Article 31(2) of the Charter, it must be noted that the right of every worker to paid annual leave entails, by its very nature, a corresponding obligation on the employer, which is to grant such periods of paid leave.
Explain what is meant by the "principle of conferral."
TEU Art. 5(2): Under the principle of conferral, 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 set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. Summary: Any competences not assigned to the EU by statue is reserved for the Member States
Explain what is meant by the "principle of subsidiarity."
TEU Art. 5(3): Under the principle of subsidiarity, in areas which do not fall within its exclusive competences(see Q.3), the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather by reason of the scale or effects of the Proposed action, be better achieved at Union level. --> Dutch PM statement: EU competence where it makes sense in the light of the task (i.e. exclusive competences over single market) but member states where integration does not make sense to fulfil the tasks of the treaties
Explain what types/categories of competences the European Union possesses.
TFEU Art. 2(1-5) introduces the 5 different types of competences that exists within the Union a. Exclusive Competences (TFEU Art. 2(1) read in combination with TFEU Art. 3): The Union can make policy unilaterally and does not need to consult or seek agreement of the Member States in these areas; i. Customs Union ii. Establishing competition rules to enable the functioning of the internal market iii. Monetary policies for the Member States in the Euro (see the statue of the European Central Bank and TFEU Articles 119 and 127(1) and (2) iv. Conservation of Marine biological resources pursuant to the Common Fisheries Policy (see TFEU Art. 38-44) v. Common Commercial Policy vi. Conditional exclusivity for the conclusion of International Agreements where the legal basis foresees this (see TFEU Art. 3(2)) b. Shared Competences (TFEU Art. 2(2) read in combination with TFEU Art. 4). The Member States and the Union shall share competences and must exercise power over these in tandem (see Art. 4(3) and the principle of Sincere Cooperation) i. Internal Market ii. Social policy iii. Economic, Social and Territorial Cohesion iv. Agriculture and fisheries (excluding the Conservation of Marine Life) v. Environment vi. Consumer protection vii. Transport viii. Trans-European Networks (i.e. Trans European Train Network) ix. Common safety Concerns in public health matters x. Research, Technological Development and Space and "shared" since both have competences as long as the Union's actions does not stop the Member States from also taking action in that area c. Coordination Competences within the scope of Economic, Employment and Social Policies (TFEU Art. 2(2 & 4) read in combination with Art. 5 i. Ensures common standards in employment and relates mainly to the Council and Member States d. Supplementary Competences (TFEU Art. 2(5) read in combination with TFEU Art. 6 i. Protection and Improvement of Human Health ii. Industry iii. Culture iv. Tourism v. Education, Vocational Training, Youth and Sport vi. Civil Protection vii. Administrative Cooperation
Decision-making competences of the EU: Treaties some 300-400 pages, yet there are some 80.000 pages of legal rules emanating from the EU. Where is the rest? Primary EU law <--> Secondary EU law
The Treaties, notably the TFEU are framework treaties -> detailed rules in decisions of the EU institutions. Article 5(2) TEU: "Under the principle of conferral [or: attribution of powers], 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 set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States." Therefore an appropriate legal basis must be found - the TFEU contains a lot of these legal bases which enable the institutions to adopt binding (Regulations, Directives, etc.) and non-binding ('soft law') acts. Each legal basis contains: topic, applicable decision-making procedure. Sometimes also type of legal instrument, sometimes prohibition of harmonization. Examples: see image
What is the potential consequence of the Union's legislature using the wrong legal basis in adopting a legislative measure? Include in your answer the relevant case law of the CJEU prescribed for this week.
The wrong legal basis for the issuing of a legislative act (i.e. Regulation, Directive and Decision) can result in the annulment of that act, as was the case in the first Tabacco Advertising Case [C-376/98] Important Paragraphs from the case: Par. 83 of the judgment: "Those provisions [see below], read together, make it clear that the measures referred to in Art. 100a(1 (...) are intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it bests in the community legislature a general power to regulate the internal market would not only be contrary to the express wording of the provision cited above but would also be incompatible with the principles of [conferral]. Par. 84 of the judgment: "Moreover, a measure adopted on the basis of Art. 100a (...) must genuinely have as its object the improvement of the conditions [of the internal market]. If a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to jusity the choice of Art. 100a as a legal basis, judicial review of compliance with the proper legal basis might be nugatory. The Court would then be prevented from discharging the function entrusted to it (...) of ensuring that the law is observed in the interpretation and application of the treaty. Par. 85 of the judgement: "So, in considering whether Art. 100a was the proper legal basis, the Court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (...) Par. 114 of the judgement: "In those circumstances, it must be held that the Community legislature cannot rely on the need to eliminate distortions of the competition, either in the advertising sector or in the tobacco products section, in order to adopt the Directive on the basis of Articles 100a, 57(2) and 66 of the (OLD) treaty (The new paragraphs are: Art. 114, Art. 53 and 62 TFEU). Judgement: "On those grounds, The Court, hereby: Annuls Directive 98/43/EC of the European Parliament and of the Council (...)"
Explain what is meant by the doctrine of "implied powers" and its importance to EU decision making. Include in your answer the relevant case law of the CJEU prescribed for this week.
Things to note before answering the question: a. "[T]here can be disagreement as to the ambit of a particular Treaty Articles, irrespective of the category of competence that applies to the area, more especially when the Article is case in broad terms" (see. Working Time Directive Case) b. "The CJEU has in general been disinclined to place limits on broadly worded Treaty Articles. It can however do so. In the Tobacco Advertising Casethe CJEU held that a directive relating to tobacco advertising could not be based on Article 95EC" (now Art. 114 TFEU) for instance c. However, subsequent case law has shown that the ECJ is willing to accept the use of Art. 114 as the legal basis for the enacted measure (see 2006 second Tabacco Advertising Case) Now on implied power: EU institutions may claim that a particular Treaty Article contains an implied power to make the particular regulation. While the notion of implied power is well known in domestic and international legal systems, its meaning is more contestable. Under the narrower formulation, the existence of a given power impliesthe existence of any other power that is "reasonably necessary" for the exercise of the former. Under the wider formulation, the existence of a given objective implies the existence of power reasonably necessary to attain it. The narrow sense of implied power has long been accepted. However, the CJEU has also endorsed the wider formulation. TBH, there is other case-law that fits way better and explains a lot more what the view of the CJEU is. Those cases are: Par. 27 and 28 of Germany v. Commission (281, 283-285 and 287/85) and Par. 48 of Commission v. Council (C-176/03) For instance: Par. 28 of Germany v. Commission: "(...) it must be emphasised that where an Article of the EEC Treaty (...) confers a specific task on the Commission it must be accepted if that provision is not to be rendered wholly ineffective, that it confers on the Commission necessarily and per sethe powers which are indispensable in order to carry out that task. Accordingly, the second paragraph of Art. 118 must be interpreted as conferring on the Commission all the powers which are necessaryin order to arrange the consultations. (...)"
How does EU law relate to (public) international law and in particular, a decision of the United Nations Security Council?
a. Explanation through Kadi case: Facts: Suspected Taliban terrorist. UNSC Resolutions: put on sanctions list. The EU implemented with Regulation (stating exactly the same) & froze Mr. Kadi's assets Mr. Kadi held that his rights of due process & property had been violated. He asked for annulment of the Regulation (right to be heard, access to court, justification). General Court: Can't annul, because indirectly annulling UNSC Resolution! "Charter of the UN prevails over any other form of law." CJEU judgement: NO - completely different view. Don't care, going to review respect for human rights in full. Annulled the Regulation, since a fundamental right was violated. No international agreement - incl the UN Charter - can trump EU primary law, of which general principles are part. Para. 285, Despite Art. 103 UN Charter: "In the event of a conflict between the obligations of theMembers of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." Kadi --> Hierarchy: 306. Article 300(7) EC provides that agreements concluded under the conditions set out in that article are to be binding on the institutions of the Community and on Member States. 307. Thus, by virtue of that provision, supposing it to be applicable to the Charter of the United Nations, the latter would have primacy over acts of secondary Community law (see, to that effect, Case C-308/06 Intertanko and Others [2008] ECR I-0000, paragraph 42 and case-law cited). 308. That primacy at the level of Community law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part. 316. As noted above in paragraphs 281 to 284, the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.
