EU Law

Maastricht Treaty signed establishing the co-decision procedure

1992

Under the ordinary legislative procedure, what is the deadline at the conciliation stage after which the measure is lost, with a qualified majority needed for the council, and an absolute majority needed for P?

6 weeks

Treaty Article allowing P to elect President of the Commission

Art 14 TEU

Treaty Article stipulating that Regulations have general application, bind in its entirety and are directly applicable

Art 288(2) TFEU

Treaty Article stipulating that Directives are not directly applicable, and MS must implement but can choose method of doing so. Time limit is usually 2 years, and failure to do so can lead to infringement proceedings being brought by Commission.

Art 288(3) TFEU

Treaty Article stipulating that Decisions have no general application, only applying to the named states/parties

Art 288(4) TFEU

Treaty Article stipulating that Soft law is only recommendations and opinions. Have no binding force but are persuasive.

Art 288(5) TFEU

Treaty Article stipulating that if the ordinary legislative procedure is not stipulated, then should use special legislative procedure

Art 289(2) TFEU

Case showing German reluctance to exercise 'reserve power', as no evidence that protection of rights had dropped below German standard.

Banana Market case

Case on legal basis. If a measure comes partly within 2 areas covered by different Articles, the procedural requirements of both Articles must be satisfied

Commodity Coding case

Case establishing that direct applicability means that a Regulation's entry into force is "independent of any measure of reception into national law". MS under duty "not to obstruct". Direct applicability is an "indispensable condition of the simultaneous and uniform application" of regulations

Fratelli Variola Spa

Type of competence seen as necessary to obtain the objectives of the EU

General competence

Limit on supremacy. Held that it leads only to non-applicaiton in EU context, not nullification altogether

IN.CO.GE case (1998)

Legislative procedure for the internal market, requiring the consent of P and qualified majority voting in the Council

Ordinary legislative procedure

Number of current Council configurations

10

Establishment of the Council of Europe...Winston Churchill amongst founding fathers, with the aim being to promote democracy and protect the rule of law in Europe

1949

Based on French Foreign Minister Robert Schuman's promise of deeper co-operation in Europe, 6 European countries sign the Treaty Establishing the European Coal and Steel Community

1951

6 founding nations sign the Treaty of Rome creating the EEC

1957

UK ascession to EEC

1973

UK confirmed membership of EEC in national referendum

1975

The European Single Act (single market) comes into force

1987

Treaty of Lisbon comes into force, removing 'pillar system' replacing EEC with EU

2009

Under ordinary legislative procedure, what is the time limit for P to consider the Council position at first reading?

3 months

European Parliament elected every...

5 years

What % of MS is needed for a qualified majority?

55%

The existing law of the EU, built up body of legislation and case law is known as..

Acquis commutaire

Treaty Article offering EU general competence for law-making in the field of the internal market.

Art 114(1) TFEU

Treaty Article allowing Commission to initiate draft leg, which is sent to council and p to approve under ordinary legislative procedure

Art 17(2) TEU

Treaty Article allowing P to ask Qs and demand written answers from Commission

Art 230 TFEU

Treaty Article allowing P to ask Commission to resign en bloc

Art 234 TFEU

Treaty Article allowing Commission to bring enforcement actions for beach of EU law by MS

Art 258 TFEU

Treaty Article outlining the ordinary legislative procedure, previously known as co-decision, and used for 89% of new legislation.

Art 294 TFEU

Treaty Article allowing P to amend compulsory and non-compulsory expenditure

Art 314 TFEU

Key section of key Treaty establishing secondary EU Law. 'To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.'

Article 288(1) TFEU

Key section of key Treaty establishing that Regulations shall have general application and shall bind in its entirety, and is directly applicable in all Member States

Article 288(2) TFEU

Key section of key Treaty establishing that a directive shall be binding, as to the result achieved, upon each Member State to which it is addressed (no general application), but shall leave to the national authorities the choice and form of methods.

Article 288(3) TFEU

Case on proportionality. Legality is affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.

British American Tobacco (2002)

Case on negative harmonisation. Blackcurrant drinks produced in France, and German authorities made it difficult to import. Company claimed this was contrary to EU law. CJ established principle of mutual recognition, i.e if something is marketed in one MS, should be allowed to be marketed in all equally. Struck down barrier but did not replace, thus putting trust in France's manufacturing standards.

Casis de Dijon case

Who has right of legislative initiative?

Commission

Case on national application of supremacy. French law restricting employment on merchant ships to French citizens. France issued direction to naval officers to treat EU citizens as French. Held not enough, EU citizens need legal protection, executive order not enough.

Commission v France (1974)

Case on exhaustive/total harmonisation. On dim-dip lights. Held that where the EU has exhaustively regulated an area, it is not possible for MS to legislate for a stricter standard. UK required all cars manufactured after October 1985 to be fitted with dim-dip lights. Nothing produced in EU meeting required standard, thus MS could not set a stricter standard.

Commission v UK (1988)

Area allowing for free movement of production factors (workers and capital) as well as products. The idea is that liberalisation of factors of production allows for optimum allocation of labour and capital.

Common market

Theory on the internal market proposed by Ricardo in 1817. States that countries are more productive if they can produce what they specialise in, and trade surplus for what they don't. Also creates independence which is important for harmony and peace

Comparative Advantage

Principle of EU law-making that grants the EU power of decision making in particular policy area. CJEU determines scope.

Competence

Problem with harmonisation is that harmonisation in one area makes it necessary in another? EU harmonisation can prevent MS being able to make necessary amendments, necessitating further EU reform. Conferral says can legislate only when given specific power, but seems EU interpreting 114 to give itself more power

Competence Creep

What is the principle of EU law-making that the EU has no inherent powers, only that given ti it by MS'. Limits of Union powers governed by this

Conferral

Major case on supremacy. Conflict between Treaty provisions and Italian statute nationalising electricity company. Costa argued nationalisation violated EU law on state aid. Italy had similar system to implied repeal, so question was did law impliedly repeal earlier EU law? Held that becoming a MS of EU means agreeing to body of law created by EU. Limited to areas agreed to by MS themselves (conferral) Also held that law stemming from the Treaty could not be overridden by domestic legal provision, however framed. Transfer from domestic to Community legal system rights and obligations arising under Treaty, carries permanent limitation of sovereign rights

Costa v ENEL (1964)

Institution comprising of the relevant Minister from each MS for specific configuration

Council of the European Union

System in European Parliament whereby small states have more seats relative to their population

Digressively proportional

Institution comprising of one national from each MS

European Commission

EU institution comprising on Heads of States -> TEU Art 15(2)

European Council

Supremacy case. What prevailed, UN national law or EU free movement rules? Held one exception to supremacy, International obligations undertaken prior to accession to EU, otherwise would be breach of International law. Date of accession therefore important; Post accession, EU has exclusive competence for international agreements

Evans Medical Ltd case (1995)

Type of competence where Treaties confer to Union absolute competence in a specific area, and MS lose the ability to legislate

Exclusive competence

Type of harmonisation where the EU sets out the requirements a product must meet to be lawfully sold, leaving MS with no remaining discretion.

Exhaustive/total harmonisation

Case on national application of supremacy. Dispute over Merchant Shipping Act 1988, which restricted ownership of UK-registered fishing boats, requiring at least 75% owned by UK nationals. Spanish fisherman sought temporary suspension of Act while its legality was determined. Required court injunction against the Crown, something not possible under UK law. HoL, after CJEU clarification, held that where conflict between Eu and national law, PS modified by ECA 1972, which allowed them to disregard MSA. Cited need for effectiveness and automatic precedence of EU law, therefore a court that would grant interim relief if it were not for national law, is obliged to do so

Factortame No2 (1990)

Case questioning British acceptance of supremacy? HoL accepted CJEU suggestion, but did not adopt reasoning. Said supremacy is not based on Costa, but rather the will of the sovereign UK Parliament as expressed in ECA 1972. Voluntary acceptance of certain limits to sovereignty.

Factortame No2 (1990)

Case on the issue of reverse discrimination for minimum harmonisation. Concerned a tobacco Directive requiring a warning on cigarette packets covering 4%. UK decided 6%, but would accept 4% from outside. Thus made worse, protecting national industry.

Gallaher case

Case suggesting a wide view of the theory of implied powers. Treaty tasked Commission with promoting close cooperation between MS. No legislative power was conferred, perhaps because the authors of the Treaty thought that it was not necessary. Commission adopted a decision obliging MS to consult them on certain matters. Challenged by MS' but upheld by courts, where Treaty confers a task, also impliedly confers 'the powers which are indispensable in order to carry out the task'. Wide functions so wide powers

Germany v Commission

Principle stating that British courts will interpret any apparently conflicting provision of national law in conformity with directly effective EU law, even when inconsistent with literal intepretation

Harmonious Construction

Method of EU removing protective barriers between states, ensuring a free trade area. Has positive and negative strands

Harmonisation

Another case on legal basis for harmonisation. Directive regulating the manufacture, presentation, labelling and sale of tobacco products. BAT and IT challenged on legal basis and subsidiarity. 114 held valid, Directive aimed at eliminating likely obstacles to free movement. Can use same legal bsis more than once. On subsidiarity, competence on IM shared with MS under 114. Subsidiarity does apply, but was no breach, as objective of Directive better achieved at Union level, due to 'multifarious development of national laws'.

Imperial Tobacco case (2002)

The area without internal frontiers in which the free movement of goods, persons, services and capital are ensured

Internal Market

Another case on supremacy. Regulation provided for certain goods to be exported in certain time frame or deposit lost. Contrary to national law protecting rights of freedom of action, disposition, economic liberty and proportionality. More difficult than Costa, could EU law prevail over a fundamental human right? Went further by holding that even secondary EU law was higher form of law than constitutional law of MS. In attempt to mitigate harshness CJ said they would protect fundamental rights, but this was unclear at the time as no HRA. Thus despite statement, clear that MS must accept lower standards

International Handelsgellschaft MBH (1970)

The name for the issue of, who has the competence to determine the limit of EU competence?

Kompetenz-kompetenz

Case on national application of supremacy. Held that supremacy extends to all courts, including national administrative agencies.

Larsy v INASTI (2001)

Principle of law-making, the provision setting out the power to make law that the EU must cite.

Legal basis

Case showing British acceptance of supremacy, where Lord Denning stated: "we are entitled to look at the Treaty...not only as an aid but as an overriding force".

Macarthy v Smith (1979)

Most popular form of harmonisation, where EU sets minimum standard but leaves MS discretion to impose stricter rules, provided they comply with the Treaty. No absolute standard, but reduces difference between MS; are still some barriers

Minimum harmonisation

Existence of power implies existence of any other power which is reasonably necessary to exercise that power.

Narrow theory of implied powers

Type of harmonisation that prohibit national rules which hinder cross border trade. Does not replace barriers, just strikes them down. Reinforced by mutual recognition, that MS must accept subject to certain exceptions

Negative harmonisation

Limitation of conferral, that not all Treaty provisions lay down clear limits to the powers they confer

Open-ended powers

Directive setting strict standards on tobacco product packaging and prohibition on sale of tobacco products with flavouring. PM challenged on legal basis and subsidiarity. On legal basis, Directive allowed MS to introduce extra packaging requirements, undermining harmonisation and incompatible with 114? Directive Article therefore interpreted as allowing MS to set requirements only in aspects not covered by the Directive. In practice, potential barriers as packaging varied across MS. BUT still valid on 114, as EU had option to choose to harmonise in stages and did not have to exhaustively harmonise packaging requirements in this particular Directive. On subsidiarity, PM argued public health benefits of banning flavoured tobacco could be achieved at MS level. Court disagreed, need to prevent differing rules in different MS

Philip Morris Brands case (2016)

Type of harmonisation where barriers are replaced with EU standards. Came about after a Commission white paper on completing the internal market which concluded that the Community had lost momentum on commitment to single market, and needed to remove physical, technical and fiscal barriers

Positive harmonisation

Principle of law making that the EU action cannot exceed what is necessary to achieve the objectives of the Treaties

Proportionality

System by which President of European Council is elected

Qualified Majority

Directive banning sale of oral tobacco under 114. Sm challenged, 114 cannot be used for Directive placing complete ban on certain products, as this not promoting IM, as creating obstacle by not allowing product to cross borders. Court rejected, MS disagreement on topic meant likely future divergent laws on oral tobacco sale. Sometimes necessary for EU to act first, and this can include a complete ban.

R (Swedish Match AB) v Sec of State for Health (2004)

Case on proportionality. Man submitted his application for an expert licence 4 hours late. His security was forfeited, costing him over 1 million Euros, which he claimed was disproportionate. Held that Commission were entitled to impose penalty, but this was too severe and should have been more closely connected to the real consequences of failure to meet the time limit. Must ask, are means appropriate and necessary to attain objectives sought?

R v Intervention Board, ex parte man (sugar)

Major disadvantage of negative harmonisation. Otherwise known as the Delaware Effect, the US State that has to lowest requirement for tax in the US. Because of this, 50% of all incorporated companies are based there. Similar in EU, if can be marketed lawfully in any MS, why not go to the cheapest> Gravitate to the lowest level of control. Mutual recognition does nothing to prevent this

Race to the bottom

Case establishing that where European Parliament has the right to be consulted on legislation, it must be given reasonable opportunity to formulate its views and make them known. Case decided at time where P's role only consultative

Roquette v Council

Limit on supremacy. Obligation on court to set aside a judgement if later found to conflict with EU law? Not always, importance of principle of res judicator and legal certainty and stability.

Rosemarie Kapferer v Schlank and Schick (2006)

Another case on negative harmonisation, to do with movement of services. Patent services by English company in Germany. Were public interest concerns, and it was held that the UK could maintain if it was necessary to protect consumers.

Sager case

Type of competence where Treaties confer Union power but MS retain the right to legislate. The power share is not entirely balanced as EU has priority. Is default category of competence

Shared competence

Case on supremacy. Charge imposed for vet inspection on beef into Italy. Was this a breach of free movement of goods? Italian law pre-dated. Held EU law prevails whether prior or subsequent

Simmenthal SpA case

Case on national application of supremacy. Did pre-dating Italian law found to be submissive to EU law have to be declared unconstitutional at national level before being disapplied? Held that NC has obligation to give full effect to EU law, thus not necessary to wait for setting aside of provision through legislation. Expansion of power of NC's.

Simmenthal Spa case (1978)

Legislation introducing positive harmonisation. new procedures designed to facilitate legislation to complete the internal market

Single European Act 1986

First case on German view of EU supremacy, that it is conditional. FCC held that transfer of sovereign powers to EC must not affect fundamental rights of German constitution. So long as EC does not protect rights equivalent to that guaranteed by German constitution, the latter prevails. FCC can review EC law in light of German constitutional rights

Solange I (1974)

Second case on German view of supremacy. FCC retains 'reserve power' to review compliance by EC law with rights of German constitution. So long as general protection of rights does not fall below German constitutional standard, FCC will not exercise jurisdiction

Solange II (1986)

Principle of law making that for areas not within EU exclusive competence, the Union can act only so far as the objectives of action cannot be achieved by the MS themselves

Subsidiarity

Type of competence where Union has competence to support, coordinate or supplement actions of MS. This is controlled by MS' who have decided that they wish to act through EU

Supplementary competence

Case involving a Commission and Council dispute over legal basis for regulations giving tariff preferences to imports from developing countries. One basis required QM voting, other unanimity. Final regulations made no reference to legal basis. Court held that regulations void, as the failure to specify the precise legal basis was an infringement of an essential procedural requirement. Could have been adopted under one basis, so council not justified adopting under another

Tariff Preferences Case

Case showing that the CJ initially took broad view of scope of EU competence to harmonise laws. Commission argued that a council Directive, on harmonisation of pollution was not about the internal market but environmental protection, so should have a different legal basis that 114. It was not possible to base on both due to the different procedural requirements. Held not possible to determine the main aim, which brought within the scope of 114.

Titanium Dioxide Case (1991)

Further twist to the law on legal basis. Concerned a Council measure laying down uniform environmental protection standards for titanium dioxide industry. Court held that there were two purposes, to protect the environment and the promotion of fair competition between producers in different MS'. Covered by different Articles, one requiring unanimity an other Qm voting. CC case would suggest requirements of both must be met, entailing applying unanimity rule as far as voting in Council concerned, and co-op procedure as far as voting of P concerned. But the problem was the opinion of P lost importance due to need for unanimity in Council, which under this was needed anyway. CC disapplied

Titanium Dioxide case

Key case on legal basis for harmonisation. Directive banning all forms of tobacco advertising, based on 114. Different basis (168) allowed EU to protect health, but excluded harmonisation measures from its scope. EU said cannot use this as legislation necessary to combat different national requirements on tobacco advertising; imposed minimum standards in form of complete ban. Germany challenged 114 as legal basis. Public health primary purpose, thus should have used 168, but could not have. Also, even if EU had intended IM, current method inappropriate as no free movement clause. Held that 114 does not give EU general power to regulate the IM, as such power incompatible with principle of conferral. Use of 114 must genuinely concern IM. Mere disparity between national laws and 'abstract risk' of obstacle to trade, not enough. Now allowable to use 114 for sole purpose of avoiding 168 restrictions 114 can be validly used where measures eliminate obstacles to free movement likely to arise from diverse national laws, or where measures eliminate appreciable distortions of competition likely to result from such disparities. neither met, Directive annulled and struck down as invalid

Tobacco Advertising I (2000)

Another key case on legal basis for harmonisation. Directive banning certain types of tobacco advertising and sponsorship, under 114. Germany challenged for incorrect legal basis and breach of principle of proportionality. On legal basis, use of 114 valid, reiterated TA I stating this Directive included free movement clause designed to prevent obstacles to free movement and remove distortions of comp. Satisfied there was cross-border trade, and not invalid just because public health also a factor. On proportionality, measures not disproportionate, limited to certain types of media, did not cover publications not intended for Union market, and a lower level of coverage would have prevented achievement of Directive aims.

Tobacco Advertising II (2006)

Case where it was expressed that the EU constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.

Van gend en Loos (1963)

Landmark case of CJEU 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. Known as principle of Direct Effect.

Van gend en Loos (1963)

Another case on negative harmonisation, with a Greek lawyer who wanted to work in Germany

Vlassopoulou vase

Case demonstrating another drift from Tobacco Advertising I towards EU general competence to regulate internal market. Regulation on 114 capping charges operators could charge for roaming services. Challenged by V and others, on legal basis. Held had valid basis under 114, as aimed at the "smooth functioning of the internal market" If MS decided to regulate themselves, could cause sig distortions of comp, action therefore necessary.

Vodafone case (2010)

Case showing the CJ becoming stricter on scope of EU competence to harmonise laws. Concerned waste disposal Directive, which Commission argued should have been based on 114 as concerned the internal market. Court held that the main aim was to protect the environment; not promoting internal market, as whole point was ensuring waste dumped as close as possible, limiting it crossing borders. Incidental effect of harmonising market conditions, not main aim. True that for Tianium both aims were equal, but still inconsistent

Waste Directive case (1993)

Existence of objective implies existence of any power reasonably necessary to obtain that objective

Wide theory of implied powers.