EU Recht (Week 1)
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EU Recht (Week 1) - Leaderboard
EU Recht (Week 1) - Details
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| Name the 7 core players in the Union. | The players: 1. The European Parliament 2. The Council of ministers 3. The Commission 4. The Court of Justice of the European Union 5. The EU Council (niet zo belangrijk) 6. The EU Central Bank (niet zo belangrijk) 7. The Court of auditors (niet zo belangrijk) |
| Define the European Parliament. | The definition: 1. Representative organization of the EU citizens 2. Art. 14 TEU --> no proportional representation (small states have slight advantage) 3. 750 Members + 1 chairman 4. Four powers: - Legislative power (Informal power to propose bills) - Budgetary power (together with the Council it makes a budget) - Supervisory power (Debate, question & investigate) - Elective power (two steps: parliament chooses President of the Commission, second, it must also confirm the Commission as a collective body as a whole) |
| Define the Council of Ministers in regards to the internal structure and organs. | The internal structure & organs: 1. The Council has developed committees to assist it --> Committee of Permanent Representative (also: Coreper) 2. Coreper has two parts: - Coreper II: represents the meeting of the ambassadors. It prepares Council configuration 1-4 - Coreper I: represents the meetings of ambassadors' deputies. It prepares the more technical Council configurations 5-10 3. Working parties (composed of national civil servants operation on instructions from national ministeries, support the Coreper in achieving this task. We can distinguish between: - A item: where Coreper reaches an agreement in advance - B item: where Coreper fails to agree in advance. Need to be expressly discussed by ministers in Council 4. Corepers merely prepare and facilitate formal devision-making in the Council |
| Define the Council of Ministers in regards to system of decision-making/voting. | The system of decision-making/voting: 1. Council meetings are divided into two parts: dealing legislative and non-legislative activities 2. The Council meets in public, Commission will attend meeting, but is not entitled to vote 3. Two kinds of voting: - Unanimity voting - Requires consent of all national ministers; and - Is provided in Treaties for sensitive political questions - Majority voting - Simple majority: Council shall act by majority of its component members. This form is rare - Qualified majority (QMV): Constitutional default except where Treaties provide otherwise |
| What constitutes a qualified majority? There are two systems. | System 1: Triple majority system - until November 2014 1. Weighted votes - votes correlated with the size of their population 2. Not proportional System 2: Qualified majority system - from November 2014 1. At least 55% of the members of the Council, comprising at least fifteen of them and representing Member states compromising at least 65% of the population of the Union 2. Less than four states try to block it 3. Ionnina Compromise: ?? |
| Define the Council of Ministers in regards to the functions and powers. | Four functions of the Council: 1. Core of Union's legislative function: Council used to be the Union legislator. Today it is a co-legislator together with the European Parliament. 2. Exercise of budgetary function: shared in the exercise with Parliament 3. Policy-making function: European Council has overtaken the Council. European Council decides on the Union's general policy choices. The Council has been limited to specific policy choices 4. Coordinating function: the idea is an open method of coordination between Member states. An example is the general economic policy |
| Define The Commission in regards to the definition and electoral procedure. | The definition: 1. Executive task; acts partly as the Union's government 2. Consists of one national from each MS, term is five years, MS respect independence of the Commission 3. Election procedure: - Stage 1: The President of the Commission will be elected, President gets nominated by Council, gets elected by Parliament - Stage 2: Council adopts a list of candidates based on suggestions by MS, Parliament votes and Commission is appointed by the European Council |
| Define The Commission in regards to the President and her college. | Members of the Commission carry out the duties devolved under her authority. Art. 17(6) TEU identifies three powers for the President: 1. Lay down guidelines within which the Commission is to work. She can lie down the politician direction of the Commission in the form of strategic guidelines. 2. Decide on the internal organisation. She can reshuffle responsibilities and may as a Commissioner to resign 3. Appoint Vice-Presidents 4. She shall represent the Commission |
| Define The Commission in regards to the functions and powers. | Art 17 TEU distinguishes 6 different functions, of which the first 3 constitute the core functions: 1. Promote the general interests of the Union through initiatives - Can propose bills 2. To ensure the application of the treaties 3. Act as guardian of the Union - Polices: monitor and investigate infringement of EU law - Prosecutes: prosecutes MS or other Union institutions before the ECJ |
| Define The Court of Justice of the EU. | The definition: 1. Different kinds of courts (Court of Justice, General Court, Specialized Courts) - Court of Justice (ECJ) is the highest and most important court 2. Advocate-Generals assist the Court. They are appointed as officers, however their duty is not to judge. They are independent advisors to the Court, and produce an opinion which is not legally binding on the Court 3. Jurisdiction of the Court of Justice is compulsory within borders 4. ECJ has no inherent jurisdiction (principle of conferral) 5. Functions and powers: - Rule on actions brought by a MS, an institution or a natural or legal person - Give preliminary rulings (interpretations or validity of acts) - Rule in other cases provided for in the Treaties 6. Two actions: - Direct: brought directly before the Court - Indirect: brought before the court by preliminary reference |
| Name the two theories in regards to domestic law and IL. | Two theories: 1. Monism - Monist states make IL part of their domestic legal order. IL will apply directly as if it were domestic law 2. Dualism - IL is separate legal order from domestic law. IL is viewed as between states, national law as within states. IL treaties cannot be binding, they need to be incorporated. After that, they have direct effect |
| Define primary and secondary law. | Primary law: treaties by the EU Secondary law: - Regulations: binding, direct effect - Directives: binding, direct effect - Decisions: binding - Recommendations: non-binding - Opinions: non-binding |
| Name the court case that is essential for direct effect and give a little summary of what was decided. | Van Gend en Loos: this treaty is more than an agreement which merely creates mutual obligations between the contracting States ... the Union constitutes a new legal order of IL ... Independently of t he legislation of MS. |
| Name the consequences of Van Gend en Loos. | The consequences: 1. EU law was now to be enforced in national courts 2. Individuals were subjects of EU law 3. Individual rights and obligations could derive directly from EU law 4. All EU law is directly applicable law |
| Which two foundational doctrines are there in EU law. | The doctrines: 1. Direct effect; 2. Supremacy or primacy |
| Define direct effect. | The definition: 1. A norm is directly enforceable (it needs no further implementation by legislature but can be directly applied by the executive or the courts) 2. It binds the national legislator, but the norm is not self-executing 3. A difference: - Direct applicability: refers to the internal effect of a EU norm within legal orders - Direct effect: refers to the enforceable effect of such a norm in a specific case 4. Direct effect ONLY relates to the executive and judicial branch |
| Define the direct effect of primary law. | The effect: 1. Treaties are primary law 2. Van Gen en Loos confirmed that treaties could have direct effect (case concerned the internal market)' 3. There were two competing views before the court: - Dualist: legal rights of private parties could not derive from the treaties, but solely from a legal measure of a MS - Monist: EU law was capable of directly creating individual rights 4. Court favoured monistic view |
| Name the criteria of Van Gend en Loos. | The criteria: 1. Provision had to be clear 2. Provision had to be unconditional in the sense of being an automatic prohibition: it should not depend on subsequent positive legislation by the Union 3. Tis prohibition would need to be absolute: not qualified by any reservation on the part of the States |
| Define the lenient test in regards to the direct effect. | The test: 1. How clear would a prohibition have to be to be directly effective 2. When was a prohibition automatic' 3. Could relative prohibitions, even if clear, ever be directly effective |
| Define the test we use today. | The test: 1. A provision has direct effect when it is capable of being applied by a national court 2. Direct effect does not depend on a European norm granting a subjective right 3. The subjective right is a result of a directly effective norm Ofwel: norm can be invoked and applied by a court, but only when the ECJ says so. |
| Define vertical and horizontal direct effect. | Vertical (individual vs. state): The state is normatively 'above' its subjects. Therefore, there has never been any doubt on whether Treaty provisions can be invoked in a vertical situation. Horizontal (individual vs. individual): Two private parties. Should treaties be allowed to impose obligations on individuals? In Van Gend en Loos the court accepted this possibility. |
| Which two instruments of secondary law have direct effect? | The instruments: 1. Regulations 2. Decisions |
| Why do directives have no direct effect (incorporate dualism) and what is the exception for this? | Directives: 1. No directive effect 2. Dualist, because EU wants MS to incorporate directive with NL 3. Can have direct effect, but limitations: - Temporal limitation: direct effect would only arise after MS failed to incorporate directive in NL - Normative limitation: no-horizontal-direct-effect rule |
| Define the estoppel argument. | The estoppel argument: A MS which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails. In other words: A MS that fails to implement its EU obligations is 'estopped' from invoking that failure as a defence, and individuals are consequently and collaterally entitled to rely on the directive as against the State |
| Name the two limitations on the direct effect of directives. | The two limitations: 1. Normative: Only be relied upon by an individual against the State (no-horizontal-direct-effect) 2. Temporal: By the end of the period prescribed or where it fails to implement the directive correctly |
| Define the no-horizontal-direct-effect rule (Marshall) in regards to Dori. | The definition: 1. Textual argument - Directives are binding for all of the MS (has to be adressed) 2. Estoppel argument - The direct effect for directives exists to prevent a MS from taking advantage of its own failure to comply with EU law 3. Systematic argument - If horizontal direct effect was given to directives, the distinction between directives and regulations would disappear 4. Legal certainty - Since directives were not published, they must not impose obligations on those to whom they are not addressed |
| Define the doctrine of consistent interpretation. | The ECJ has created a general duty on national courts to interpret national law as far as possible in the light of all European law. |
| What happens when two legislative wills come into conflict? How do courts solve these conflicts between NL and EL? Name the theories. | The theories: 1. Centralised solution: federal law is supreme of state law 2. Decentralised solutions: law law may reign supreme over central law. Each federal order must thus determine which law prevails 3. Absolute primacy: all law from the one legal order is superior to all law from the order |
| Name the two perspectives. | EU perspective (absolute primacy): Union law prevails over all national law National perspective: The primacy of EU law is relative |
| Explain the connection between the EU's absolute primacy and the national fundamental rights & ultra vires control. | Some MS claim that Union law cannot violate national fundamental rights, see Solange. In denying the Union an unlimited competence to determine the scope of its own competences, MS here insisted that they have the last word with regard to the competence limits of the Union. |
| Define Cotsa v ENEL. | In Costa v ENEL the ECJ confirmed Union law supremacy. The reasoning: 1. It was stated that EL ought to be supreme over NL, since its executive force must not vary from one MS to another 2. Sine the primacy of union law could not be derived from classic IL, the court had to declare the union legal order autonomous from ordinary IL |
| Name the two views in regards to the repealing of national laws by a national court. | The two views: 1. One view --> primacy indeed means that NC must declare conflicting NL void 2. Court's second view: milder view that where national measures conflicts with EU law, the primacy of EU law does not render t hem void, only 'inapplicable' |
| Define the EU primacy doctrine. | The definition: 1. The primacy doctrine is about the executive force of EU law 2. The Union legal order is not a unitary legal order 3. The primacy principle is not addressed to the State legislatures, but to the national executive and judicial branches 4. The executive force of Union law generally leaves the normative validity of national law intact |