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Eu Law Notes

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EU

EUROPEAN UNION LAW REVISION
Introduction................................................................................................1
Supremacy..................................................................................................4
Direct Effect................................................................................................6
Direct Effect and Directives....................................................................6
Horizontal Effect of Directives................................................................8
State Liability...........................................................................................11
Enforcement Proceedings.........................................................................14
Preliminary References (Art 267 TFEU)...................................................17
Action for Annulment (Art. 263 TFEU).....................................................21
The Free Movement of Goods...................................................................25
Free Movement of Goods: Fiscal Barriers................................................26
Customs Duties ('CDs') and Charges of Equivalent Effect ('CEEs').....26
Discriminatory or Protective Taxation..................................................27
Free Movement of Goods: Non-Fiscal Barriers........................................29
Indistinctly Applicable MEQRs..............................................................30
Selling Arrangements............................................................................32
Free Movement of Workers......................................................................35
Free Movement of Persons.......................................................................39
Directive 2004/38: Citizens' Rights Directive.......................................39

INTRODUCTION

1 History

1957: EEC established under Treaty of Rome (inc. four freedoms)
o 1973: UK, Ireland Denmark Join.
o 1980s: Southern and Iberian Additions

1987: Single European Act (SEA), first major treaty amendment. Internal market priority

1992: Maastricht Treaty expanded competence in monetary,
foreign, and security policy. Became EC not EEC.
o 1999: Treaty of Amsterdam.
o 2003: Treaty of Nice

2004: Big bang with 10 additions.
o 2007: Lisbon Treaty repackaged Treaty Establishing a
Constitution for Europe (2001), set out TEU and TEFU
Institutions:
o European Council: Heads of State or of Governments of
Member States meets to discuss direction of EC.

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2 o Council of Europe/Council of Ministers: Council consists of ministers of member states. Qualified majority voting.
o European Commission: represents interests of the union. 28 independent members nominated my MSs. Proposes and implements legislation.
o European Parliament: 751 seats (not population proportional)
o The High Representative of the Union for Foreign Affairs and
Security Policy: conducts EU common foreign and security policy

The Economic and Social Committee (ECOSOC): Advisory body intended to represent various sectional interests

The Committee of the Regions: Advisory body representing regional and local interests.
Policies

Core Policies:
 Creating the Common/Internal Market; removing barriers to free movement
 Regulating the internal market
 Competition (anti-trust) law (Articles 101-109 TFEU)
o Peripheral Policies:
 Social, Environmental… Policies (see e.g. Articles 151161 TFEU and 191-193 EC)
o Common European Policies
 Agriculture (Articles 38-44 TFEU), Fisheries, Transport

Other policies besides.
Principles of EU Action:
o The Principle of Conferral/Limited Competence (Art 5(2)
TEU)
 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

The Principle of Subsidiarity: Given the EU has the power to act is it a good idea for the Union to act (Article 5(3) TEU)
 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

The Principle of Proportionality: how far should the EU go with a particular power (Article 5(4) TEU)
 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.
Applying these principles:
o Lisbon introduced yellow and orange card protocol.
Commission must send new legislation to domestic parliaments who can provide and opinion.
 Yellow Card Protocol Article 7(2) of the Protocol: if one third of domestic parliaments object to the legislation then the commission must revisit the legislation but it does not have to withdraw.
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Orange Card Protocol Article 7(3(b)) if a majority of domestic parliaments object he commission has to review its legislation; it does not have to change its mind.
 But the other institutions (the council/EU
Parliament) may kill the legislative proposal.
Types of Competence:
o Exclusive competence: excludes the power of the member states (Article 2(1) TFEU)
 Customs union, competition rules, euro monetary policy

Shared Competence: (Article 2(2) TFEU) When the Treaties confer on the Union a competence shared with the Member
States in a specific area.
 The Member States shall exercise their competence to the extent that the Union has not exercised its competence.
 Internal market, social policy, agriculture, environment etc.
o Also: Coordinated Competences (2(3)); Competence in accordance with treaties (2(4)); and, Competence to support,
coordinate or supplement the actions of MSs (2(5))
o The Gap-Filler Provision (Article 352 TFEU)
 Opinion 2/94 (re: Accession by the EC to the ECHR)
 If something needs to be done it can be done
 But, this cannot be used to widen EU competence
Secondary Legistlation (Under Art 288 TFEU)
o A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member
States.
 Just like a domestic act of parliament

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.
 Directives are methods which in principle are to be adopted domestically buy member states.
o A decision shall be binding in its entirety.
 A decision which specifies those to whom it is addressed shall be binding only on them.
o These are for specific situations and may address specific states.
o Recommendations and opinions shall have no binding force.
Procedure

Ordinary legislative procedure (what used to be 'co-decision')
- Art. 294 TFEU
 Applies to most areas of economic activity (i.e. not applied to Foreign, Security Policy etc.)

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Constant interactions between different institutions:
the commission (interests of the Union); the council
(the interests of the states); the parliament (i.e. the interests of the citizens)
 Commission instigates > parliaments (EU and domestic) > amendments agreed by the council >
council disagrees second reading in parliament >
conciliation committee > third reading.
 Neither institution has absolute power to pass legislation. Inherent feature of this procedure is to encourage institutions to cooperate.
o Extraordinary Legislative Procedures
 Do not need to know much about these.
 The treaties outline these, e.g. specific areas of transport.

4 Hugh Rowan EU

SUPREMACY

The Principle of Supremacy: EU law is supreme over domestic law

Costa v ENEL [1964]
 EU legal order is distinct from all other legal systems.
 EU law is an integral part of domestic law.
 MSs have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.
 EU law is supreme because ether member states wished it to be so.
 This is a teleological and textual approach.
o Internationale Handelsgesellschaft [1970]
 At the time was considered that EU had nothing to do with Human Rights
 Held Scope of supremacy is unlimited, any EU law takes precedence over any national law, other EU law would not be effective.
Enactment of Supremacy

Internationale Handelsgesellschaft [1970]
 Alleged clash between and EU regulation and the principle of proportionality which was protected under the German constitution.
 Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.
o Simmenthal II [1978]
 Were inspections carried out on the Italian boarder compatible with EU law - no.
 "every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule."
 Individuals gain rights at the cost of MSs sovereignty
 EU measures are immediately effective, need not wait until the measure is set aside.
o Reflects Art. 4(3) TEU: : "Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties"
o Factortame (I) [1990] - Procedural problem in so far as the court in question was not allowed to provide interim relief as was being requested by plaintiffs.
 It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.

NATIONAL RESPONSES

5 TO

SUPREMACY

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6 UK
o European Communities Act 1972: Act of Parliament that binds to the principle of supremacy.
o Factortame (No. 2) [1991]
 Lord Bridge: whatever limitation of its sovereignty
Parliament accepted when it enacted the European
Communities Act 1972 was entirely voluntary.
 This is purely based on domestic principles not EU
principles.
o Thoburn v Sunderland CC [2002]
 Laws J: The ECA is a constitutional statute: that is, it cannot be impliedly repealed

R (Miller) [2017]
 Do we need an act of parliament to notify EU of our withdrawal.
 Held we require express repeal
 We follow EU judgement s because sovereign parliament has asked us to do so, if this parliament asked us to do otherwise we would do otherwise.
In Germany

Solange I (1974)
 What if supremacy violated human rights?
 Held every time there is a clash between constitution and EU legislation, German courts retain the right to check if the EU measure protects human rights at the same level as the German constitution.
 A power that was reserved but never used.
o Solange II (1986)
 Intervening period EU introduced its own protection of
Human Rights, therefore argued that they no longer needed to check the compliance with human rights every time.
o Brunner (1993)
 Re ratification of Maastricht, some people challenged as unconstitutional for giving up too much power.
 Court dismissed but at the same time reminded the world that the states are the masters of the treaties ECJ was being warned to interpret the treaties too broadly.
o Lisbon Treaty (2009)
 Same as Brunner but for Lisbon
 "According to the constitution, such integration steps …
must, in principle, be revocable."
o Honeywell (2010)
 Regarding age discrimination: plaintiff argued ECJ
went too far
 German constitutional court concluded that for them to deny supremacy they had to be dealing with a manifest

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violation of conferral, in an issue that is central to their constitution.
Raised bar for rejecting supremacy massively.

Poland

Constitutional Tribunal on Membership of EU (2005) "a collision may in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm."
Czech Republic

Slovak Pension Case (2012) - Conclude EU violated its remit.
 But idiosyncratic case (Komárek) - the Czech supreme court in dispute with administrative court, and the
Czech government.
Note we are yet to have a crisis of supremacy

This tells us a lot about the EU itself

No unconditional acceptance of supremacy

The logic of acceptance is not established in the same way as it is in the EU
MacCormick: interaction is pluralistic not monistic. Interactive rather than hierarchical.

DIRECT EFFECT

7 Direct effect - does a provision of EU law confer a right on individuals which are enforceable in national courts.
Van Gend en Loos [1963]
o Held that Dutch govt. could be sued in their national court for implementing a law that was contrary to the treaties.
o EU constitutes "a new legal order" the subjects of are both
Member States and nationals.
Conditions for Direct Effect

Clear and Precise: Provision must give rise to identifiable rights that are set out unequivocally (Van Gend en Loos;
Reyners v Belgium; Coop Agricola Zootecnica)
o Unconditional: the provision does not depend on other measures and the state has no discretion as to implementation (Van Gend en Loos; Coop Agricola
Zootecnica)
Article 288 TFEU: Direct Effect of EU Law

Regualtions: It shall be binding in its entirety and directly applicable in all Member States

Decisions: A decision which specifies those to whom it is addressed shall be binding only on them.
o Treaty Articles
 Horizontal direct effect (i.e. can be enforced against other individuals - Defrenne v Sabena)
 Vertical direct effect (i.e. can be enforced against the state - Van Gen den Loos)
o Recommendations cannot have direct effect as they are not binding (Grimaldi)

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