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Law Notes European Law Notes

Legal And Constitional Limit Notes

Updated Legal And Constitional Limit Notes

European Law Notes

European Law

Approximately 1161 pages

European Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB EU law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best European Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest resul...

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Models of Integration

  • Art 2(1) – exclusive competence (dual federalism)

  • Art 2(2) – shared competence (co-op federalism)

  • Art 2(3)-(5) – no legislative competence but primacy if conflict arises

Competence Creep

  • Art A TEU – tension: EU integration v preservation of nat. identity & autonomy

  • Art 4 TEU – more explicit on preserving nat. autonomy/deference to nat. authorities

Remit of Legal Authority

  • Doctrine of conferred powers (Art 5(1))

  • Flexibility provision (Art 352(1)) - potential to be used for creating a gapless system of competencies... how far it will go depends on ECJ interpretation. If too wide, it leaves areas excluded from Treaty at risk of intrusion.

  • Signs of safeguarding nat. constit. identities Germany: 352(1) is wide, if used, will require approval of Parl. chambers + can’t be used in central areas of crim. law, social policy, religion

Limits of EU law making

  1. Competence – does Comm. have legal basis to act? (Art 5(1) + Art 362(1))

  2. Subsidiarity & proportionality – exercise of those powers (Art 5(3) + 5(4))

Legal

  1. Is Comm. legislator acting within its competence must identify specific legal basis for the action in Treaty

  • Technique of attribution highly specific & though some bases (e.g. Art 114 TFEU) are open ended & broad, yet not completely uncontrolled

  1. Has it acted on correct legal basis?

  • Dir. went outside Art 114 (‘internal market’) into ‘public health regulation’ = no correct legal basis

  • Germany v Parl. & Commission Tobacco Ad Dir. under Art 114 imposed complete ban on advertising & sponsorship of tobacco products in EC. ECJ: designed to regulate public health, not promote operation of IM = void. Harmonising IM measures must be market making.

Art 114 Threshold

  1. obstacles to trade

  2. appreciable distortions of competition

  3. how will proposed measure address these

  • Comm. drew up a narrower ban = valid, even though incidentally harmonised public health laws too

  • Tobacco Advertising II–Comm. followed guidance, narrower, not blanket, ban = Art 114 valid legal basis. Incidental harmonisation of public health laws permissible, since market making measure.

  • Weatherhill: expansionism is the key trend. Legislative competence ltd in principle but broad in practice

  • If Dir. meets 114 threshold, even though public health considerations are “decisive matter”, it has a correct legal basis

  • Swedish Match Labelling Dir. under 114 prohibited marketing tobacco for oral use; Swed. Company wanted to export to UK, where banned (Sw. had exception) - unsuccessful challenge. ECJ: when ban was introduced, some MS already legislated + public health concerns suggested more will legislate, so eventually would distort competition/impact free movement of goods. Dir. introduced to eliminate these likely risks.

  • If Dir. meets 114 threshold, reliance on health concerns doesn’t deprive it from valid legal basis

  • Alliance for Natural Health – different food supplement laws = clear distortion of IM which Dir. eliminates. Need direct effect on functioning of IM, not mere finding of disparities, like in Tobacco I.

  • Weatherhill: competence conferred isn’t static – depends on nat. reg. practices + reported impact on economic operators. Relatively easy for Comm. to manipulate threshold criteria, relatively hard for ECJ to obtain independent evidence of the impact.

  • If Dir. meets 114 threshold, Comm. legislature can rely on it, even for consumer protection

  • Vodafone – roaming reg. capping charges imposed by mob. phone operators on consumers for roaming services within EU argued by Vod. to be invalid b/c no correct legal basis + disproportionate + offend subsidiarity. AG Maduro didn’t think 114 threshold met but ECJ did. ECJ: Reg. adopted in response to likelihood of diverging price control measures = classic preventative harmonisation & improvement of IM conditions.

  • Weatherhill: court decided the case by ref to EU institutions own observations & attachments to measure – failed to be an outside observed but instead aligned itself with institutions whose acts were being challenged by C.

  • In practice, case law on competency has become a drafting guide for legislature which now finds it all too easy to ensure compliance in a manner unreviewable in practice...

Constitutional

  1. Proportionality (Art 5(4))places legal limits on EU law making powers by requiring content + form of measure not to exceed what’s necessary to achieve Treaty objectives

  • 2 purposes

  1. controls extent to which Comm. authority can override MS interests

  2. limits leeway of MS to derogate from fundamental rules under the guise of public interests

  • Test

  1. Is measure suitable to achieving objective sought?

  2. Does it impose fewest constraints?

  3. Is it proportionate to end sought?

  • Flexible – applied w/varying degrees of intensity, depending on: right claimed + objective + relative expertise of MS & Comm. More deferential in policy, economics, less in fundamental rights and civil liberties

  • Tridimas: enables ECJ to review equality + merits, to some extent. Potentially strongest ground of review but depends on its willingness to apply it with requisite degree of stringency. Not strict/uniform test- varying degrees of judicial scrunity depending on context. But not applied w/same degree of stringency to Comm. & MS!

  • Types of challenges where PP may be used against Comm.

  1. Comm. action infringing rights – intense scrutiny

  2. Comm. action imposing penalties – ECJ likely to be searching b/c of potential to infringe personal liberties + can strike down w/out invalidating whole admin policy. Claim re: excessive penalties.

  • Atalanta – Comm. imposed same penalty on MS for non implementation, regardless of circumstances. MS implemented but didn’t submit docs. ECJ: absolute nature of penalty = disproportionate; must take into acc gravity of breach + degree of fault

  1. Comm. action imposing charges

  • Bella-Muhle–Comm. imposed on animal feed producers obl. to use skimmed milk instead of soya,...

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