EU LAW EXAM PREP Notes PDF

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EU LAW EXAM PREP NOTESSEMESTER 1Lecture 1: European IntegrationWhat is the European Union?  28 member states at a glance o Develop their legal systems – adopting EU standards, laws and norms voluntarily  It is a process about brining together individual member states within a treaty structure thro...

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EU LAW EXAM PREP NOTES SEMESTER 1 Lecture 1: European Integration What is the European Union?  28 member states at a glance o Develop their legal systems – adopting EU standards, laws and norms voluntarily  It is a process about brining together individual member states within a treaty structure through which member states have developed corporations’ over  Binds member states together through treaties and laws – gives the citizens rights  Has institutions – Commission, Council of the EU, European Parliament (determines how these organizations function)  Has this idea of being a united organization?  Constitution o Which are the treaties – setting out the relationships b/w the member states give the other member states certain rights The Treaty Structure (2 key treaties) 1. The Treaty on European Union (TEU) a. Overall aims and principles of EU integration. The principles by which it is governed, the institutional structure, provisions on enhanced co-operation, external action, including a common foreign and security policy, and new revision procedures for both parties 2. The Treaty on the Functioning of the European Union (TFEU) a. Detailed practice of achieving objectives b. Set out in the Treaty on European Union. Except in the field of external action, it sets out the explicit competences of the Union. This is a statement of where the Union can make laws and where there has been a transfer of law-making powers from the Member states The treaties provide a process of supra-national integration Transfer of legislative sovereignty by Member States to supra-national EU institutions. These powers go the commission, council, and the European parliament (they are ones that have the upper hand on the decision making process) Parliaments are often marginalized. They implement the laws that the EU makes mainly because they are enforced by the supra-national EU institutions Legislative decisions taken by supra-national EU institutions Enforced by supra-national Court of justice of the European Union (CJEU) Values and Aims of the Union  Articles 2 and 3 TEU – socioeconomic rights  It is there to provide additional rights o Promotion of peace and wellbeing of its people o An area of freedom, security and justice without internal frontiers o An internal market o Economic and monetary union – euro, banking Union o Promoting its values in relations with the wider world especially fundamental rights From integration to disintegration  It is a voluntary act by the United Kingdom Article 50 process which began with the case of R (Miller) v Secretary of State for Exiting the European union [2017]  o Accepted by both applicant and government, that the triggering article 50 TEU this will affect domestic law o Supreme court held that Article 50 cannot be revoked by the UK o Government argued that parliament intended that when ECA 1972 enacted that prerogative could be used to effect withdrawal from the EU o Supreme court held that the use of prerogative powers was not intended by parliament as means to repeal ECA 1972  Wightman and Others v Secretary of State for Exiting the European Union o Reference whether Article 50 can be revoked o Contrary to supreme court judgment CJEU held that UK can unilaterally revoke Article 50

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The UK has the power to revoke at any stage The court also confirms that a revocation would mean that the UK retains its current status as an EU member state. This can be done by obtaining a letter by the Parliament CJEU stated that revocation must be ‘unequivocal and unconditional’

Lecture 2: The European Union Institutions The Institutions  The Commission o They have the exclusive task of proposing new legislation o They are itemized in Article 17(1) and (2) TEU o Powers include  Agenda setting  Legislative and Quasi – legislative powers  Executive powers  Supervisory powers  The Council of Ministers  The European Parliament  The Court of Justice of the European Union o Court of judicial body o Judgment s of the court filled the gap that was left by the lack of political direction o Developed most of the legislatives – such as the Freedom of Goods o Their role is absolutely fundamental  The European Council o Will agree whether or not to negotiate or approve deals that the EU and UK might make o Tries to set a more forward looking agenda on the EU needs to establish o Heads of government for each member state and has a strong political stand Article 13 TEU Lists 7 institutions that exist o ADDITONAL – The European Central Bank and The Court of Auditors o Must act within the limits of their powers o The Economic and Social Committee and Committee of the Regions  Representing specific types of interests, stakeholders across the EU (third sector organizations that are involved in delivering policies  One or both of these committees must be consulted o The concept of ‘Institutional Balance’  Different institutions within the state all are together within this constitution fulfill their functions and do not have an overlap b/w them  Court of justice has developed this concept The European Commission  Consists of the College of Commission and the permanent state of the commission: around 38000 people  To be viewed as the civil service executive of the EU  Covers all aspects and has the overall responsibility to ensure that legislation has been carried out  Each Member State under Article 17 nominates a person to be a commissioner. The UK currently has decided not nominate a commissioner  Refers to this idea that there is a system of collective responsibility b/w the commission. Decision by which they stand by and they all support  The commissioners do not represent their Member State. They are there to serve the interest of the EU and not their Member State. However, they still want a sense of nationalism  Powers: o Agenda Setting  Produce an annual work program for which they provide o Legislative and quasi-legislative powers  The institution which proposes all new laws  Often limited, tend to be technical areas  The Commission can provide some legislation, but deal with very specific activities

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Executive Powers Supervisory Powers  Monitor what is going on in the Member States. The commission can bring the Member state before the Court of Justice  Ensure that they are keeping the objective in the treaties enforced within the Member states Negotiating Brexit  The commission represents the EU

The Council of Ministers  The voice of the Member States o Where the member states are represented  The institution which brings together the ministers from each of the 28 member states. When the council and the parliament are working together in the legislative process, it will be specific ministers that will engage in the council for a particular body (e.g.: those in transport deal with these issues).  Adopts legislation usually jointly with the European Parliament  Voting and QMV o New voting system in place  Permanent presence through COREPER o Each member state has their own representative on the permanent basis of the EU  All of which is debated in Article 16 TEU Voting in the Council  Simple majority o 15 member states vote in favor – non legislative votes  Qualified majority o 55% of member states, representing at least 65% of the EU population, vote in favor – used in the ordinary legislative procedure  The blocking minority must include at least four council members representing more than 35% of the EU population  Unanimous vote o All votes are in favor – common foreign and security policy, enlargement The European Parliament  Has 736 members  Powers – Article 14 TEU  Participation in the legislative process o Members are directly elected o Individual hearings to elect the members  Holding other institutions to account  Budgetary supervision  Treaty revision after Brexit to remove UK MEPs Court of Justice of the EU  Highest level of court  Civil service tribunal o Deals with staff disputes b/w the EU institutions  Judicially activist institution  Focuses on the rights and the court protects these rights  Made up of judges from each member state (28 judges) The European Council  Meeting of the heads of government or state to give direction to the EU  Based on each member states constitutional structure  Acting more in inter-governmental than super-national state o Negotiate with each other equally o Each member has one right and they have the right to veto o Has the same voice  Will sign off Brexit negotiations under Article 50 TEU and grant extension

Lecture 3: Principles of EU Law Making: Competence, Sustainability, and Proportionality Introduction  Governance structure within a typical member state – known as a multi level governance o Local > Regional > National > EU > International (WTO)  EU is a system of multi level governance Competence Disputes  Conferred powers o The treaty confers these competences on to the EU o EU can only act if it is given the power to do so o Need to look for a treaty base first  Competence can be o Exclusive  Only legislation in this area can be determined at the EU level (e.g.: legislation over fisheries) o Shared  The treaty provides that certain competencies can be shared b/w the member sates and the EU  Competences are the ones that are found in article 114 of the TEU, which is the regulation of the internal market o Creeping competences  E.g.: should EU regulate sport, healthcare provision, education? Article 5 TEU  KEY PROVISON OF THE TREATY  It regards the conference of power but it also requires a political statement  As shown in paragraph 2, it makes a role of the treaties and the position and the powers of the EU 1. The limits of the Union competences are governed by the principle of conferral. The use of union competences is governed by the principles of subsidiarity and proportionality a. Subsidiarity = judgment if the EU needs to legislate b. Proportionality = to what extent should the EU legislate 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon 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 a. The Union should only act within the limits of the competences b. The EU only legislates b/c the member states have given that decision to do so 3. Subsidiarity a. 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 of effects of the proposed action, be belter achieved at Union level b. Subsidiarity only arises when shared competence c. Article 5 TEU suggests a presumption against EU action, BUT i. If MS act independently what would this mean for the internal market ii. Thus a presumption of a ‘narrow’ interpretation of subsidiarity iii. Who determines how to apply subsidiarity? Can subsidiarity be monitored? If so, by whom? iv. Case: Vodafone Ltd and others v Secretary of State for Business Enterprise and Regulatory Reform [2010] d. Para 72: it is appropriate to recall that the principle of subsidiarity provides that the community, in areas which do not fall within its exclusive competence, is to take action only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the community e. Para 76: Community legislature, introduced a common approach, in order in particular to contribute to the smooth functioning of the internal market, allowing those operators to act within a single coherent regulatory framework f. Para 77: So that any measure seeking to reduce retail charges alone without affecting the level of costs for the wholesale supply of community-wide roaming services would have been liable to disrupt the smooth functioning of the community wide roaming market. For that reason, community legislature decided that

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any action would require a joint approach at the level of whole sale charges and retail charges, in order to contribute to the smooth functioning of the internal market in those services g. ECJ concludes that EU legislation is necessary for smooth functioning of the internal market. Argument one of necessity. Competence better exercised at EU level Proportionality a. 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 b. Subsidiarity determines whether EU should legislate c. Proportionality determines the extent the EU should legislate d. Presumption of a light touch – only as far necessary to achieve the objective e. Extent of action is relative

Competence Disputes 1. Vertical disputes – between the EU and the member states on whether the EU should legislate a. Case: Germany v Council i. Concerned a piece of legislation from the EU which required all forms of tobacco advertising were to be prohibited ii. Directive prohibited all forms of cigarette advertising iii. Adopted as an internal market measure – i.e. Designed to facilitate free movement iv. ECJ: cannot circumvent limits on EC powers in health via other treaty provisions – Article 308 EC not acceptable v. Germany argued that banning advertising but not all types od advertising have a cross border element vi. This legislation goes too far and has gone beyond the competence of the EU vii. Council: ensure that tobacco is sold and advertised through all member states, enter all markets the same way b. Case: Commission v UK (Financial Transaction Tax) [2014] i. Tax which imposed all financial transactions. UK should have been subject to different voting procedures ii. Court: decision could be taken under the legislative measure 2. Horizontal disputes – between EU institutions Treaty Base dictates level of participation by EP (no longer exists) Lecture 4: Sources of EU law and the Law-Making Process Primary Sources 1. The Treaties – constitutional document (contain provisions which the court has through the judgments, constitutionalized – in that sense they become fundamental) – gives us the framework of what EU law is and gives the treaties a constitutional provision a. TEU and TFEU b. Protocols (legally binding) and Declarations (will have declared and declaration on some persuasive effect in courts c. Charter of Fundamental Rights i. Effect n the EU bill of rights ii. Document that sets out the protection of fundamental rights in the EU iii. Part of the EU treaties 2. Van Gend en Loos a. “a new legal order” i. Dutch government reclassified import duties, standstill article of EU said that this was not allowed. Producer went to court relying on the EU article 30, stating that the raised costs he was experiencing was unfair. ii. Dutch court made an Article 267 reference seeking an interpretation of the article (standstill article, they did not breach it). dualist view = do the treaties give enforceable rights to the citizens? Did article 30 do this? iii. Held: initial literal approach, article 258 proceedings. Considered irrelevant. Clear that it was intended to affect individuals as well as member states. Clear, unconditional provision = direct effect more effective way of ensuring that citizen’s rights are met. iv. court of justice – referred to the EU treaties as ‘a new legal order”

v. not something that is subordinate to national laws, when there is a conflict b/w EU law and national law. EU law takes precedent vi. authority of action must be found in the treaties – idea of having a legal basis, member states must exercise abide by the EU competences The Treaties  EU a limited body of powers – EU only has powers that provided for in the Treaty  Union Competence – EU cannot act ultra vires – Article 352 TFEU residual power but very limited o Idea that you need to use more power to achieve objectives o Used for very technical acts, needed in order to fulfil a legal requirement  Legal base – all secondary EU legislation must be made by reference to a specific Treaty base e.g. Article 114 TFEU Legal base for the Internal Market (most common legislation) o It has to be explicitly written for the act to be lawful Regulations  Having to do with secondary legislation  Article 288 TFEU provides that regulations shall have general application and are binding in their entirety and directly applicable in all Member States o Regulation is aimed at the state, not at private individuals o Become binding on the entirety on the member states o “Direct applicability” – as a reference to the status of union law  A measure will be directly applicable when it automatically becomes part of binding law within the national legal order – includes the removal of any obstacles  Regulations can be used as a way of achieving an objective very effectively Directives  Article 288 TFEU provides that a directive shall be binding as to 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 o Binding on the member state,  The requirement for transposition o EU LAW IS TRANSPOSED INTO NATIONAL LAW o There are time limits – requires transposition by a particular date o Checking of existing legislation domestically to see if there is a conflict with legislation b/w the new directive from when it was implemented o Government laws will look at statistics, regulations and directives o EU directives implemented by statutory instruments – minister given power under the act of parliament to make changes to legislation  Report to the commission afterwards to show how changes were made and must provide a summary of what else needs to be done that ensures compliance (what pieces of pre-existing legislation has been complied) Other Measures 1. Decisions  Judicial Review  Binding on those whom they are addressed  Frequently used by the commission under delegated powers in competition law  Decisions stipulate parties on other parties on whom legislation is binding 2. Other acts having legal effect  Nordwijks Cement  ERTA 3. Recommendations and Opinions  Often used by the commission where they use a process prior to pursuing legal action against a particular state 4. International agreements  Recognizes that other international agreements are relevant  EU complies with whole range of international agreements  EU ensures it complies with European Convention of Human Rights  They recognize limits

General Principles of Law  Article 19(1) TFEU o The court of justice of the EU shall include the Court of justice, the general Court and specialized courts. It shall ensure that in the interpretation and application of the Treaties that law is observed  The law is observed  EU treaty rights have conflicted with fundamental or human rights – how are they preserved – limitations  Some Examples o Fundamental rights in the early years – now the Charter of Fundamental Rights o Equality and Non-Discrimination o Procedure fairness  The right to be heard  About physically being there and having the right to present your case  Confidentiality and legal privilege  Legal certainty  EU laws are only enforced by the court if they are certain and predictable  The courts judgment must be transparent, clear and understood by the people  Non retro activity and legitimate expectations  Proportionality The EU Legislative Process: institutionalized Balance  Legislative process brings together EU institutions  Each institution fulfils its Treaty objectives o Commission – represents the EU o Council – represents Member States o European Parliament – represents EU citizens  Objective is to reach a consensus b/w Parliament and the Council in ordinary legislative procedure  1st reading agreements – over 85% of legislation approved at first reading  Most legislative comes from the process of legislation with brings EU legislation together  Often referred as the Ordinary Legislative P...