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Law Presentation
presentation from 7-10 min power point slides about compare the council and the European council.
INTRODUCTION TO EUROPEAN UNION LAW
2nd Term, 2020,
Dr. Nora MEMETI
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THE MANDATORY LITERATURE:
1. Book: Nigel Foster, Foster on EU Law, Oxford University Press, 2019;
2. Blackstone, 2013;
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Course Outline:
| Historical and Constitutional Background. Establishment of the European Union. + BREXIT |
| The EU (5) Institutions |
| The Sources and Forms of EU Law. |
| The Supremacy of EU law. |
| Ensuring EU Laws are Effective: Direct Effect & State Liability. |
| Art. 267 TFEU: The Preliminary Ruling Procedure. |
| The Direct Jurisdiction of the Court of Justice. |
Course Outline – EU Law
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CHAPTER 1
HISTORICAL AND CONSTITUTIONAL BACKGROUND;
ESTABLISHMENT OF THE EUROPEAN UNION. + BREXIT;
Read from the book:
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Enlargement: from six to 28 countries
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Which country which year joined the EU? Look carefully at the enlargement process!!!
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HISTORY
Q: WHY THERE IS A NEED TO UNDERSTAND THE EUROPEAN HISTORY?
In the EU, the Law-making procedures and forms of law, the principles and the doctrines, the whole body known as ‘Acquis communitaire’ arise from different nations, different cultural understandings, different histories and different social and economic backgrounds and systems!
-ALL THE TREATIES WITHIN THE EU ARE ACHIEVED ONLY AS A COMPROMISE BASED ON THESE DIFFERENT ELEMENTS!!!
Q: WHAT MEANS ACQUIS COMMUNITAIRE?
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World Wars:
After the short period between the First World War and the Second World War.
Countries gathered together under 3 Communities.
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3 COMMUNITIES!!!
EUROPEAN COAL AND STEAL COMMUNITY;
EUROPEAN ECONOMIC COMMUNITY;
EUROATOM.
Q: DISCUSS THE DEVELOPMENT OF THE THREE COMMUNTIES!
*** 6 countries: *(Benelux, France, Germany, Italy).
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European Union (EU):
Economic and Political Unification
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(ECSC)
European coal and Steel community 1952-2002
European Economic Community (EEC) Treaty of Rome 1957
Renamed to (EC) European Community
(EU) by Treaty of Maastricht 1992
(Euratom) European Atomic Energy Community 1958
THE IMPORTANT CURRENT EU TREATIES:
The European Union law is shaped by the following two Treaties:
1- Treaty on European Union (TEU).
2-Treaty on the Functioning of the European Union (TFEU).
I: Please take the Consolidated versions of both Treaties from LMS and have them with you during lectures!!!
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The developments of the treaties from 52 until today.
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EU Membership History:
1958 – Belgium, France, Germany, Italy, Luxembourg, Netherlands.
1973 – Britain, Denmark, Ireland.
1981- Greece.
1986 – Spain, Portugal.
1995 – Austria, Finland, Sweden.
2004 – Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia.
2007 – Bulgaria, Romania.
2013- Croatia.
Communism
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The years when the countries joined the EU, including the countries being part of communism!
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Again about the enlargement!
Question: 1. Is Norway a M.S of the UE?
When the common law countries joined the EU?
Name a state which may join the EU in the next 30 years?
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– WRITE THE NAMES OF THE COUNTRIES NEXT TO THE YEARS!
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European Union:
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Find the EU Members States Countries by their flags?
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THE FOUNDING OF THE EUROPEAN COMMUNITIES
Today EU is a union of 28 MS.s, with supranational legal order, with 500 million people!
Let’s go back and see how the process evolved…
The origin of EU Integration Process:
EVERYTHING STARTED WITH THE DESIRE FOR PEACE AND WELLFARE IN EUROPE!!!
Schuman Plan
ECSC and
The idea of Jean Monnet: Is better to fight on the table than in a batlefield!
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A continent after a conflict
After WWII (World War II) several form of Cooperation where created all over the world:
1945 United Nations
1947 GATT
1948 OECD (before OEEC) to to administer the Marshall fund fro US TO EUOPE
1949 NATO, with the objective keeping the US in, The Russia out and the Germany down to sign the first general secretary
1949 the Council of Europe known today with the main its main achievement with the ECHR!
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European Cooperation!
Three suggestions where given:
1. Politics : Churchill? Many initiatives given: Churchill proposed a United states of Europe in Zürich with Britain being Inside of course! FAILED
2. Defense, Pleven suggested : European Army? FAILED
3. Economy: 1959: Robert Schuman to create the CSEC, the only one that DIDN’T FAIL at the end!!!
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How is Russia related to EU?
Russia had control over the countries nearby. These countries preferred very much to join the EU and to ‘save’ themselves from Russia where the communism system was applied. This is the reason why these countries are called satellite countries such as: Poland, Hungary, Cyprus, Estonia, Czech Republic, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.
Communism: a system based on Marxism, advocating the abolition of capitalism by ground-roots revelation, the abolition of private ownership in favor of common ownership!
1990 the communism failed and the reforms for the satellite states started.
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THE SCHUMAN PLAN
1. Stabilization b/ Germ and France;
ECSC UNDER THE SUPRNATIONAL AUTHORUTY!
The Schuman Plan FINALISED WITH 1951 Paris Treaty and creation of ECSC with the first six Countries Germany, France, Italy and Benelux: Belgium, the Netherlands and Luxembourg.
INDEPENDENT INSTITUTIONS WITH SUPRANATIONAL POWERS WERE SET UP
1. high Authority-the main EXECUTIVE organ
Assembly-with supervisory role
3. A council- with an advisory function
4. ECJ
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AFTER 60 YEARS!
A LOT OF CHANGES HAVE OCURRED!!!
THE MAIN THING WHICH IS STILL THE SAME IS THE DESIRE FOR PEACE YET VERY IMPORTANT!
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24 official languages
Български
Čeština
dansk
Deutsch
eesti keel
Ελληνικά
English
español
français
Gaeilge
hrvatski
Italiano
latviešu valoda
lietuvių kalba
magyar
Malti
Nederlands
polski
português
Română
slovenčina
slovenščina
suomi
svenska
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Candidates for membership:
E.g. Iceland, Montenegro, Serbia, Turkey and North Macedonia.
Those candidate countries have started membership negotiations.
Must adopt EU laws.
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*HOMEWORK:
Q: DISCUSS THE PROGRES OF EUROPEAN INTEGRATION
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WORK IN CLASS
Are the following States members of the EU? Indicate the year when they joined?
Sweden…… .
Slovenia……… .
Serbia……… .
2- Outline the development of the EU, starting with the fall of communism and going up to the present ?
3- The UK joined the European Union in 1973. TRUE/FALSE
4- Russia is not a member of the EU. TRUE/FALSE
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WORK IN CLASS
What was the purpose for rebuilding Europe?
2nd WW (World War) ended in…? Mention the year
What you know about the satellite states?
What is communism?
Write what do you know about the 3 communities?
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WATCH AND DISCUSS VIDEO
HISTORY OF EU LAW –
SOURCE: LEIDEN UNIVERSITY:
QUESTIONS:
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QUIZ 1
The details about the form of the questions and evaluations included in the Quiz can be found in the Syllabus.
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ADDENDUM TO THE FIRST CHAPTER BREXIT
From the book, pages, 11-13
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THE EUROPEAN COUNCIL CALLED FOR URGENT MEETING:
The European Council is the EU institution that defines the general political direction and priorities of the European Union.
It consists of the heads of state or government of the member states, together with its President and the President of the Commission.
On the 23rd june, Thursday, The UK citizens voted in a referendum for LEAVE or REMAIN within the EU!
WILE 48% WANTED TO REMAIN, THE OTHER 52% VOTED TO LEAVE THE FAMILY!!!
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Donald Tusk: The President of the Council.1
The Statement by the President of the European Council on the outcome of the UK referendum, 24 June:
http:// www.consilium.europa.eu /en/home/
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Donald Tusk: The President of the Council.2
President Tusk, President Schulz and Prime Minister Rutte met on Friday morning in Brussels upon the invitation of European Commission President Juncker.
They discussed the outcome of the United Kingdom referendum and made the following joint statement:
“In a free and democratic process, the British people have expressed their wish to leave the European Union. We regret this decision but respect it.”
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Donald Tusk: The President of the Council.3
This is an unprecedented situation but we are united in our response.
We will stand strong and uphold the EU’s core values of promoting peace and the well-being of its peoples.
The Union of 27 Member States will continue. The Union is the framework of our common political future. We are bound together by history, geography and common interests and will develop our cooperation on this basis. Together we will address our common challenges to generate growth, increase prosperity and ensure a safe and secure environment for our citizens.
The institutions will play their full role in this endeavour.
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Donald Tusk: The President of the Council.4
We now expect the United Kingdom government to give effect to this decision of the British people as soon as possible, however painful that process may be. Any delay would unnecessarily prolong uncertainty. We have rules to deal with this in an orderly way.
Article 50 of the Treaty on European Union sets out the procedure to be followed if a Member State decides to leave the European Union. We stand ready to launch negotiations swiftly with the United Kingdom regarding the terms and conditions of its withdrawal from the European Union. Until this process of negotiations is over, the United Kingdom remains a member of the European Union, with all the rights and obligations that derive from this. According to the Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in the United Kingdom until it is no longer a Member.
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Donald Tusk: The President of the Council.5
As regards the United Kingdom, we hope to have it as a close partner of the European Union in the future. We expect the United Kingdom to formulate its proposals in this respect. Any agreement, which will be concluded with the United Kingdom as a third country, will have to reflect the interests of both sides and be balanced in terms of rights and obligations.”
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LEGAL BASIS
THE IMPORTANCE OF ARTICLE 50 TEU
THE NOTION OF PRECEDENT
THE LACK OF PRECEDENT
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TREATY ON EUROPEAN UNION: Art. 50
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
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Art. 218 (3) TFEU
The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.
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TREATY ON EUROPEAN UNION: Art. 50
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
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TREATY ON EUROPEAN UNION: Art. 50
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
C 326/44 Official Journal of the European Union 26.10.2012
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Article 49 (ex Article 49 TEU)
Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.
The European Parliament and national Parliaments shall be notified of this application.
The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
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Article 49 p.2 (ex Article 49 TEU)
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
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HOMEWORK!
LISTEN CAREFULLY: Professor Michael Dougan: ‘UK’s position following vote to leave the EU’!
PROVIDE AN ANALYTICAL APPROCH ABOUT HIS SPEACH!!!
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WORK IN CLASS
OPEN BOOK EXAM:
The open book exam will be based only on the book;
The details about the form of the questions and evaluations included in the open book exam are to be found in the Syllabus.
If interested, preparation of presentations related to BREXIT are welcomed!
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2nd CHAPTER
INSTITUTIONAL FRAMEWORK:
1. The European Commission;
2. The Council of the EU;
3. The Council;
4. The European Parliament.
5. The CJEU.
– Art.13 TEU: ‘ The European Parliament, The European Council, The Council, The Commission, The Court of Justice of the European Union etc!
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1. THE EU COMMISSION (COMM)
President of the European Commission: Jean-Claude Juncker – 2014-PRESENT;
Three important features:
1. Composition: Who are the members of the COMM?
2. Appointment and Removal, Who can appoint the commissioners and who can remove them?
3. What there task and duties are?
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September 12, 2018
THE ROLE!
1. Executive administrator;
2. Legislation proposer;
3. The ability to make policy in compromise with the Council of Ministers and the European Council;
4. Decisions powers in particular regarding competition law!
MAIN FUNCTIONS
Art 244-250 TFEU!
THE VEHICLE OF THE EU- THE MOTTOR:
It formulates policy, proposes legislation, partakes in discussions on the framing of legislation by the Council and the parliament etc!
The guardian of EU Law bringing actions against MSs or individuals in breach!
September 12, 2018
The European Commission – promoting the common interest
28 completely independent members, one from each EU country 4Proposes new legislation 4Executive organ 4Guardian of the treaties 4Represents the EU on the international stage
September 12, 2018
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September 12, 2018
COMPOSITION
The composition, tasks and functions determined by art 17 TEU and 244-50 TFEU!
EQUAL TO THE NUMBER OF MSs = 28
MSs PROPOSES THE APPOINTMENTS BUT THEY HAVE TO BE INDIPENDENT FROM THEIR GOVERNMENTS!
September 12, 2018
APPOINTMENT AND REMOVAL
The PRESIDENT OF THE COMMISSION proposed by QMV by the European Council and should be approved by the European Parliament by majorly votes!
2.The High representative for foreign affairs and security policy (he would become one of the Commission’s vice-president) also appointed by the European Council with QMV (qualified majority voting)
QMV (qualified majority voting)
** mv (majority voting)
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September 12, 2018
APPOINTMENT AND REMOVAL
1. THE PRESIDENT OF THE COMMISSION NOMINATES COMMISSIONERS!
2. THE EUROPEAN COUNCIL APPOINTS THEM
3. THE PARLIAMENT GIVES THE FINAL APPROVAL!
September 12, 2018
APPOINTMENT AND REMOVAL
For the Commissioners: TERM OF OFFICE: 5 YEARS RENEWABLE.
CAN BE REMOVED BY A VOTE OF CENSURE BY THE EUROPEAN PARLIAMENT
Commissioner has to resign if the Commission-President so requests.
Court of justice upon the application of the Council or the Commission: en-bloc removal
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September 12, 2018
TASKS AND DUTIES
Art 17 TEU:
IT SHALL PROMOTE THE GENERAL INTEREST OF THE UNION AND
TAKE APPROPRIATE INITIATIVES TO THAT END:
A) Guardian or ‘watchdog’: prosecuting breaches of the treaties and secondary legislation
B) it formulates and proposes legislative initiatives (initiator of legislation
C) limited powers of independent decision-making
D) powers under delegated legislation
E) manages the union’s annual budget
F) powers and duties in representing the eu externally.
It is the most supranational institution of the eu: independent from direct national influences
September 12, 2018
TASKS AND DUTIES: other
It can decide matters collectively by a majority
Activity most pronounced in the fields of competition policy and in the management of the CAP (common agricultural policy) and CCP (common commercial policy)
Representing EU in international organizations and concluding international agreements on behalf of the EU.
LET’S SUMMARISE
WORK IN CLASS
Write three important issues you remembered from today’s lecture!!!
Write your name, surname and id
Don’t forget to write the today’s date
Check important facts about the Commission at http://ec.europa.eu/about/working-as-college/index_en.htm
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WORK IN CLASS
Explain the main articles from TEU & TFEU related to the European Commission?
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September 12, 2018
HOMEWORK!
What you know about the Commission related to:
1. Composition: Who are the members of the COMM?
2. Appointment and Removal, who can appoint the commissioners and who can remove them?
3. What their tasks and duties are?
KILAW, Summer, 2016
Dr. Nora Memeti
2. THE COUNCIL OF EUROPEAN UNION
Dr. Nora Memeti, spring, 2016, 18/01/2016
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September 12, 2018
THE COUNCIL (OF MINISTERS)
THE MAIN LEGISLATIVE ORGAN of the EU;
Consists of representative ministers of M.Ss depending on the subject matter. According to the Lisboa Treaty there are 10 different Council configurations now, e.g.: Agriculture, finance ministers, foreign ministers). e.g the council of justice is consisted form the Ministers of Justice.
Its tasks, composition and functions are outlined in Art 16 TEU and Arts 237-43 TFEU!
http://www.consilium.europa.eu/en/council-eu/presidency-council-eu/
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The Council (of Ministers)
(2.3) Pages: 45-46
September 12, 2018
Council (of Ministers) – voice of the member states
4One minister from each EU country 4Presidency: rotates every six months 4Decides EU laws and budget together with Parliament 4Manages the common foreign and security policy
September 12, 2018
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ART. 237-243 TFEU
The Council of Ministers Functions and powers :
1-Policy making and coordination functions
2-Exercising legislative functions jointly with the European Parliament.
3-Budgetary functions with the EU Parliament.
4-Responsible, along with the European Parliament for the adoption of the annual budget.
5-The power to take decisions and to delegate to the Commission.
6-Decides on the adoption of legislative proposals “ordinary legislative procedure” (final right of veto to the European Parliament).
(2.3.1) Page: 46
September 12, 2018
-other powers-
7. Action (can act) on a Commission proposal, but can require the COM to frame draft legislation in any specific area.
8. Can delegate power to the COM. to enact secondary legislation,
9. Final decision on the adoption of the secondary leg.;
September 12, 2018
The Presidency of the Council:
The Council is chaired by a presidency that is held by each MSs in turn for a period of 6 months.
-The head of ministers chair the meetings. Their meetings are transparent!
(2.3.2) Page: 46
September 12, 2018
September 12, 2018
The troika (TRIO) within the Council
Troika: In the EU context ‘troika’ or TRIO originally referred to the trinity comprising the Member State holding the Presidency of the Council, the Member State which had held the Presidency in the previous six months and the Member State which would be holding the Presidency in the next six months. The troika is assisted by the Commission.
2016 January – June: the Netherlands and
2016 July- December: Slovakia
Malta: January-June 2017
September 12, 2018
Voting in the Council
Following the Lisbon Treaty reforms, qualified majority vote is by far the most common method of voting, although it would be usual practice for the Council President to attempt to gain the consensus of all member states before proceeding to take a formal decision.
Forms of voting in the Council:
The Council votes as follows:
1- with Unanimity. (e.g. defense, policies, taxation, social security) (rare), ALL M.S MUST AGREE,
2-Simple Majority., e.g by 14 states with 13 against, Article 205
3- Qualified Majority Votes. (QMV) Article 16(3).
In most cases, the Council votes on issues by qualified majority voting.
(2.3.3) Pages: 46-50
September 12, 2018
HOW QMV WORKS???
-Each member state has a block number of votes: Germ, UK, FR, IT=29, the total=352,
-Related to population and economic power (contribution to the EU).
-Minimum of 260 votes out of 352. (Now)
-So it must be 90:255(260) to vote in favor of an issue.
-I.e. 74% TO VOTE . If more than 26% Against = lose.
(2.3.3.5) Page: 48
September 12, 2018
September 12, 2018
QMV
Double voting system:
block number: eg. FR, GER, IT, UK=29 EACH
260 VOTES (73.91%) out of 352
The blocking minority of 91 votes will prevent a proposal from being passed!
If voting on a proposal that has been introduced by the Council rather than the COMM, an additional requirement is imposed that A MINIMUM OF 2/3 of the MSs MUST HAVE VOTED IN FAVOUR and that if a MS so request, the total must represent a minimum of 62% of the EU population!
September 12, 2018
QMV
From 2014: 55% of the Member States with 65% of the population
15 MSs+65% out of 82 mil Germany
WHY IS THIS DIFFICULT to understand?!?!?
The Council of the European Union
1952–2012: Sixty years of law- and decision-making
AND ALWAYS WHEN SMTH NOT CLEAR, CHECK: http://www.consilium.europa.eu/en/council-eu/presidency-council-eu/
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Qualified Majority Votes :
(2.3.3.5) Page: 48
September 12, 2018
“Qualified majority” needed for many decisions: 260 votes + THE majority of member states 15
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September 12, 2018
HOMEWORK
How many institutions of the EU you know so far?
What is the difference between the European Commission and the Council (of Ministers)?
What are the similarities and the differences between the European Commission and the Council of Ministers?
Do they cooperate and if yes write how?
Explain the system of voting in the Council?
PG 50-52 THE BOOK,CHECK THE VOTING SYSTEM, SEE BETWEEN 2014-17, READ AND EXPLAIN FOR H.W
-The European council-
Art 235-236 TFEU
Comprises the Heads of state or Government of he MSs.
NON LEGISLATIVE ROLE!!!
Consulting on political issues;
Defining general policy direction for the EU;
Its meetings are known as “European Summit”
September 12, 2018
Treaty of Lisbon created the new role of president of the European Council
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(2.4) Pages: 51-52
-Committee of heads of governments of member states.
-Meets twice every six months. How many time in a year they usually meet?
-Reach a decision by agreement.
-If there is a vote then they will use the Qualified Majority Vote.
-Meets regarding international crises.
-EU political cooperation. (Foreign policy Consultation).
September 12, 2018
http://www.consilium.europa.eu/en/european-council/
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The European Council :
(2.4) Page: 52
-28 heads of states: heads of the state and government of MSs
The current President: Donald Tusk
-EU President
+ the President of the Commission + Representative of the foreign affairs memebrs of the European Council (No voting rights).
It appoints the high representatives by QMV and decides on the composition of the European Parliament and the membership, both by UNANIMITY!
September 12, 2018
Treaty of Lisbon, article 15 of Treaty on European Union states that the European Council appoints a full-time president for a two-and-a-half-year term, with the possibility of renewal once. Appointments, as well as the removal of incumbents, require a double majority(QMV) support in the European Council
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TO SUM UP
(2.4) Pages: 51-52
-Committee of heads of governments of member states.
-Meets twice every six months= 4times in a year!
-Reach a decision by agreement.
-Meets regarding international crises.
-EU political cooperation. (Foreign policy Consultation).
–
September 12, 2018
Summit at the European Council
Summit of heads of state and government of all EU countries 4Held at least 4 times a year 4Sets the overall guidelines for EU policies
September 12, 2018
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September 12, 2018
WORK IN CLASS-TEAM WORK
1. What are the commonalities and the differences between the two councils?
2. Make a table and a chart about the Functions, duties, voting systems, powers etc. of the
1. The European Commission
2. The Council (of Ministers)
3. The European Council and
KILAW, Summer, 2016
Dr. Nora Memeti
THE EUROPEAN PARLIAMENT
Dr. Nora Memeti, spring, 2016, 18/01/2016
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The European Parliament:
(2.5) Page: 53
-It is a discussion and debate forum.
-Providing democratic legitimacy to the EU
-The only directly democratically elected institution.
September 12, 2018
The European Parliament: MEMBERSHIP
-766 seats=MPs
-There are Multi-state (many states) Political groups in the parliament. 7+1, SEE. PG 55 E.g. Social Democrats, Christian Democrats and the Green .
-The voting system here is a simple majority.
,
The European Parliament
FUNCTIONS AND POWERS
Parl. approval must obtained before legislation can be adopted.
Decides EU laws and EU budget together with Council of Ministers; -Democratic supervision of all the EU’s work;
Approval and dismissal of the Commission;
To take under the question the commissioners;
The power to reject the annual budget; etc
September 12, 2018
WHAT The European Parliament DOES:
1-Consent to major external decisions.
2-Law-making role: legislative and budgetary functions jointly with the Council.
3–Control of executive (Commission).
4-Power of consent: accession of new members States, entry of the EU into international and association agreements;
5-Power of veto over delegated non-legislative acts
The European Parliament:
(2.5) Page: 53
-The European Council decides the number of the members of parliament for each country. For example Germany 96, the UK 75.
-The European Union used to be criticized because only one or two countries used to take decision and control the EU.
Therefore the powers were transferred to the parliament so that citizens elect the members through the constituency i.e. through democracy.
September 12, 2018
The European Parliament – voice of the people
The seat in Strasbourg, a secretariat in Luxembourg , certain sections and meeting in Brussels.Members of the EP are directly elected in the MSs
Number of members elected in each country
United Kingdom
11
21
74
73
13
Italy
Ireland
21
Hungary
Greece
96
Germany
France
Finland
6
Estonia
13
Denmark
21
Czech Republic
6
Cyprus
11
Croatia
18
Austria
21
Belgium
Total
751
73
20
Sweden
54
Spain
8
Slovenia
13
Slovakia
32
Romania
21
Portugal
51
Poland
26
Netherlands
6
Malta
6
Luxembourg
11
Lithuania
8
Latvia
Bulgaria
17
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The European political parties
Greens/European Free Alliance
50
European Conservatives and Reformists
70
Alliance of Liberals and
Democrats for Europe
67
European People’s Party (Christian Democrats)
221
Non-attached members
52
Total : 751
Progressive Alliance of Socialists and Democrats
191
European United
Left – Nordic Green Left
52
Europe of Freedom and Direct Democracy
48
Number of seats in the European Parliament per political group
(June 2014)
87
Control of the Executive Appointment:
European Council (QMV): proposes a candidate for President of the Commission.
→European Parliament: elects (votes) the president of the Commission (majority of members)
→Council and the President elect: adopt the list of other persons for appointment as members of the Commission = Commissioners
→ European Parliament: vote on consent on the president, the high representative and the Commissioners
→European Council: appoints all by QMV
September 12, 2018
The censure and/or removal:
The censure motion requires the vote of 2/3 of the members of the Parliament and the commission would resign in its entirety.
The censured commissioners remain in office until the new commissioners are approved.
So far no motions of censure have been adopted.
The Commission President (Juncker currently) can require an individual Commissioner to resign and could perhaps be persuaded by the European Parliament to take action.
September 12, 2018
Other Parliament’s powers
Other powers of scrutiny:
Ability to set up a committee of inquiry on the alleged contravention in the implementation of Community law;
Ability to question the Commission (orally or in writing);
The right to discuss the Commission’s annual general reports;
The right to request the Commission to submit proposals that the European Parliament considers necessary for the implementation of the treaties
September 12, 2018
September 12, 2018
ANTONIO TAJANI – THE PRESIDENT OF THE EU PARLIAMENT
THE COURTS OF JUSTICE OF THE EU – CJEU
ECJ – CJEU :
THE FUNCTIONS;
COMPOSITION & ORGANISATION;
PROCEDURE;
JURISDICTION.
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How EU laws are made
Citizens, interest groups, experts: discuss, consult
Commission: makes formal proposal
Parliament and Council (of Ministers): decide jointly
Commission and Court of Justice: monitor implementation
National or local authorities: implement
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The Court of Justice – upholding the law
28 independent judges, one from each EU country – Rules on how to interpret EU law – Ensures EU countries apply EU laws in the same way
– Location: Luxembourg
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THE MAIN FUNCTION:
To ensure that, in the interpretation and application of treaties, the law is observed, and to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
To expand rights not previously directly sanctioned by the treaties. It may, thus, be possible to make it easier for individuals to challenge Union acts.
THE ORGANISATION
It is a free-standing independent Union court and is not in hierarchical relationship with the national courts as in a system of appeal.
The President of the Court of Justice is elected from and by the judges for a renewable term of three years! 3+3
The post of vice-president was created by amendments to the Statute of the Court of Justice in 2012.
September 12, 2018
The Composition of the Court of Justice of the UE (CJEU or ECJ):
It comprises:
The Court of Justice (CJEU), the highest instance in the Community legal order.
The General Court: deals with cases brought forward by private individuals, companies etc, ( in particular cases relating to competition law)
Specialized courts : the EU civil Service Tribunal: – rules on disputes between the European Union and its staff
September 12, 2018
The Composition & the main duty
The total number of the Judges within CJEU = 28. One judge per EU country.
General Court (GC) includes also 28.
The CJEU is helped by 11 ‘Advocates-General’ presenting opinions on the cases brought before the Court. Not a case for the GC.
Usually: 3-5 judge for looking into cases. But in important cases it could have a Grand Bench.
IMPARTIALITY AND TRANSPARENCY ITS THEIR DUTY!
September 12, 2018
ix of the eleven[6][dated info] Advocates General are nominated as of right by the six largest member states of the European Union: Germany, France, the United Kingdom, Italy, Spain and Poland. [ citation needed][ clarification needed] The other three positions rotate in alphabetical order between the 23 smaller Member States: currently Belgium, Sweden and Finland. [16] Being only a little smaller than Spain, Poland has repeatedly requested a permanent Advocate General. [ clarification needed] Under the Lisbon Treaty, the number of Advocates General may—if the Court so requests—be increased to 11, with six being held permanently by the six biggest member states (adding Poland to the above-mentioned five member states), and five being rotated between the other member states
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Composition and Organization
– The judges are chosen from persons whose independence is beyond doubt and who possess either the qualifications necessary for appointment to the highest judicial office in their own countries or recognized juridical competence, which includes academic lawyers, of whom the appointment to the highest courts is a tradition in a number of countries. (Arts. 253-4 TFEU)
September 12, 2018
The Procedure
– Its working language is French.
Civilian law procedure, with the emphasis on written proceedings rather than oral.
September 12, 2018
4 stages of the procedure:
4 stages of proceedings:
Written proceedings. The statement from the parties to the judge responsible for the case.
Investigation and preparatory work on the case. The judge writes a summary of these statements and the case’s legal background.
Oral proceedings (public hearing + the opinion of the advocate-general)
Judgment which follows deliberation in secret in French (single ruling/opinion)
Pictures of hearings are frequently televised (Europe by Satellite).
The procedure for hearings in the General Court is similar, except that no opinion is given by an advocate-general.
The form of judgments
Report drafted in the language of the case chosen by the parties or the defending member state.
Internal working documents and deliberations are conducted in French.
September 12, 2018
The form of judgments
Full report:
First part: Summary of the case +summary of the arguments of the parties.
Second part: Opinion of the Advocate General.
Final part: Reasons of the judgment + the single ruling of the CJEU.
September 12, 2018
The reporting of cases
The European Court Reports emanating from the Court of Justice and the General Court published in all the official languages.
3 parts (judgments of the Court of Justice + judgments of the General Court + staff cases).
Publication delayed by 2 to 3 years
The Common Market Law Reports: English reports appearing very soon after judgments.
September 12, 2018
Jurisdiction
The CJEU shall ensure that, in the interpretation and application of the treaties, the law is observed.
Watch carefully Professor: Koen Lenaerts-Law of the European Union
Its geographic jurisdiction is limited by the treaties to the area of (28) member states, but a judgment of the CJEU can have consequences and effects outside the geographic area. Eg. ‘Dyestuffs’ case.
September 12, 2018
Jurisdiction
The CJEU’s jurisdiction can be divided in a number of ways:
Actions against the MEMBER STATES +
actions concerned with the review of acts of the UNION INSTITUTIONS
or damages actions + PRELIMINARY RULINGS.
DIRECT JUDICIAL CONTROL
INDIRECT JUDICIAL CONTROL.
September 12, 2018
What are the most common type of cases?
INDIRECT ACTIONS:
Requests for a preliminary ruling – when national courts ask the court of Justice to interpret or look into the Validity of a point of EU law…
The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. If a national court is in doubt about the interpretation or validity of an EU law, it may – and sometimes must – ask the Court of Justice for advice. This advice is called a ‘preliminary ruling’.
AND
2. DIRECT ACTIONS….
September 12, 2018
TO SUM UP
1- Interpretation of EU law to make sure it is applied in the same way in all EU countries.
2-Settles legal disputes between EU governments and EU institutions.
3- Individuals, companies or organizations can also bring cases before the court if they feel their rights have been infringed by an EU institution.
September 12, 2018
WORK IN CLASS
WRITE 3 SENTENCES ABOUT THE CJEU !
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HOMEWORK
WRITE A SHORT ESSAY ABOUT THE DIFFERENCE BETWEEN THE CJEU AND THE EUROPEAN PARLIAMENT!
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September 12, 2018
DIRECT ACTIONS
The CJEU upholds the lawful exercise of the EU legislative and executive powers in actions against EU institutions concerning the judicial review of legally binding acts;
Compliance of the Union obligations by member states;
1. Proceedings for failure to fulfill an obligation:
2-Actions for annulment – against EU laws thought to violate the EU treaties or fundamental rights.
3- Actions for failure to act – against EU institutions for failing to make decisions required of them.
4- Direct actions – brought by individuals, companies or organizations against EU decisions or actions:
September 12, 2018
DIRECT ACTIONS
Conformity with EU law by individuals (eg. Competition policy)
Non-contractual jurisdiction.
Staff cases (handed over to a specialized Civil Service Tribunal court).
Preventive judicial control.
It adjudicates in contractual disputes between Union institutions and contractual partners, if called on to do so under an arbitration clause in the contract.
It hears indirect challenges to EU legislation by individuals in proceedings already taking place before it.
11
28
September 12, 2018
Advocates General (AG)
–
Represents the Public Interests.
-presents all the point of views, arguments etc.
-Speech after the Parties argue first.
-The court usually agrees with the Advocate General because looks for the public interest that is why 70% of the verdicts the court agrees with the Advocate General.
-The Advocate General number are 11. It goes around from one member to another.
-The General court is not that important therefor they do not have an Advocate General often. But if they need one then they will select one Judge to act as an Advocate General.
September 12, 2018
In a 2016 study, Arrebola and Mauricio measured the influence of the Advocate General on the judgments of the Court, showing that the Court is approximately 67% more likely to deliver a particular outcome if that was the opinion of the Advocate General.[14] As of 2003, Advocates General are only required to give an opinion if the Court considers the case raises a new point of law.[1][15]
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September 12, 2018
INFORMAL INFORMATION!
Six of the eleven[6][dated info] Advocates General are nominated as of right by the six largest member states of the European Union: Germany, France, the United Kingdom, Italy, Spain and Poland. [ citation needed][ clarification needed] The other three positions rotate in alphabetical order between the 23 smaller Member States: currently Belgium, Sweden and Finland. [16] Being only a little smaller than Spain, Poland has repeatedly requested a permanent Advocate General. [ clarification needed] Under the Lisbon Treaty, the number of Advocates General may—if the Court so requests—be increased to 11, with six being held permanently by the six biggest member states (adding Poland to the above-mentioned five member states), and five being rotated between the other member states. [17 ]
September 12, 2018
Art. 251 TFEU
Methodology: 1.Interpretation
Interpretation
CJEU should be engaged in expansive interpretation of the texts.
It has taken a proactive role in European integration. Today the approach is minimalist ;
Forward looking style of interpretation: it tries to determine, in light of the aims and objective of the treaties and legislations, what was intended and what result would assist those goals.
Contextual approach for interpretation: spirit of the treaty, the Union project itself, Preamble, general provisions. Useful effect of EU law undermined in case of no expansive interpretation in line of the objectives of the Treaty.
Those EU methods of interpretation are applicable in addition to the usual methods of interpretation found in member states’ legal systems although any strict use of such methods has often been rejected by the CJEU as unsuitable in the EU context
September 12, 2018
September 12, 2018
Methodology: 2.PRECEDENT
There is No formal system of precedent but the CJUE tries to maintains consistency in its judgments.
Past decisions carry a persuasive rather than formal authority.
Certain decisions are regarded as precedent for national courts.
Leading cases in Union law have higher status than other cases.
However, the term ‘PRECEDENT’ CAN BE FOUND within the CJEU! Unofficially, the system of case-law developed by the CJEU increasingly seems to resemble a true case law system relying on precedents to take the law forward to new cases.
No constraints by previous case law when the CJEU considers that a change in the law is required.
WORK IN CLASS
DISCUSS THE DIFFERENCE BETWEEN THE DIRECT AND INDIRECT ACTIONS OF THE CJEU!
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HOMEWORK
Write a long essay comparing the methods of Interpretation and Precedent!
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SOURCES OF EU LAW
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September 12, 2018
SOURCES AND FORMS OF EU LAW
PRIMARY:
1. TREATIES
AMENDMENTS
ACCESSION TREATIES
PRTOCOLS
DECLARATIONS
CHARTER OF FUNDAMENTAL RIGHTS
2. SECONDARY LEGISLATION: INSTITUTIONAL LAW + TFEU Art. 288
3. CASE-jurisdiction from CJEU?!
September 12, 2018
CIVIL v COMMON LEGAL SYSTEM
CIVIL – DEDUCTIVE SYSTEM – FROM GENERAL TO SPECIFIC
COMMON – INDUCIVE SYSTEM – FROM SPECIFIC TO GENERAL,
Acquis Communautaire: french term: that contains the whole body of EU law that has been built up over the years and comprises the sources:
The Primary legislation – the Treaties + Protocols, Declarations and EU fundamental rights Charter;
Secondary legislation (regulations, directives decisions and other acts producing binding legal effects);
International agreements;
Case-law and development of legal principles by the Court of Justice.
Acquis communautaire
September 12, 2018
The Treaties and the EU charter of Fundamental Rights;
General Principles;
International Treaties;
Secondary EU Law:
Regulations;
Directives;
Decisions;
Recommendations and opinions;
Others acts producing binding effect.
Hierarchy of EU Law
September 12, 2018
General guidelines for pursuing the agreed aims and objectives, explicit and concise, no detailed provisions!
Direct applicability :
All the provisions of the Treaties automatically become part of the generally binding law of the member state, which is also applicable to the companies and ultimately the citizens…
MSs don’t take new actions for incorporation of EU in the nat. leg, exception., UK
The TREATIES: the main features
September 12, 2018
Attached to the Treaties
37 attached to the TFEU, (less with UK outside)
Integral part of the respective Treaty, having a treaty status!
LEGALY Binding;
LET’S CHECK HOW THEY LOOK LIKE?
THEIR FUNCTION?
Give interpretation for Articles of Treaties; deal with technical matters!
THE PROTOCOLS
September 12, 2018
Attached to each amending treaty has been a list of declarations (sometimes all, but mainly few or even one member state) on a particular matter.
NO treaty status (differs from Protocol), except explicitly said , eg., Charter of Fundamental Rights has binding force!
Their importance: help for better understating of a treaty provision!
DECLARATIONS
September 12, 2018
NEW FROM LISBOA TREATY, EU IS A PARTY TO ECHR!!!
WHAT THIS MEANS???
Part of primary source law, check art 6 TEU
The same legal value as the treaties.
Charter of Fundamental Rights of the European Union
September 12, 2018
September 12, 2018
HOMEWORK
**Find (online) One article from the TFEU and one article from the TEU related to sources and explain them.
September 12, 2018
THE LEGAL ACTS OF THE UNION Article 288 TFEU
To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
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.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
Art 288 TFEU: 1. “A regulation shall have general application.
2. It shall be binding in its entirety and
3. directly applicable in all member states”
Detailed forms of law;
R. become legally valid in all the Mss without any need for implementation on the date specified or on the 20th day after publication in the official journal!
Exception yes, see Case C-128/78 COM v UK, in which administrative rules had to be implemented concerning the enforcement and sanctions for failure to to install smth needed with the Regulation!
LETS SEE HOW A REGULATION LOOKS LIKE?
REGULATIONS:
September 12, 2018
1. Art 288 TFEU: “A directive shall be binding as to the result to be achieved,
2. upon each member state to which it is addressed,
3. but shall leave to the national authorities the choice of form and methods”
Not directly applicable but MSs are given a period of time to implement, from 1-5 or more years depending on:
1. the complexity
2. urgency
Usualy 2 year is the practice!
DIRECTIVES
September 12, 2018
ART 288 TFEU: “1. A decision shall be binding in its entirety.
2. A decision which specifies those to whom it is addressed shall be binding only on them.”
DECISIONS:
September 12, 2018
September 12, 2018
SOFT LAW
RECOMMENDATIONS AND OPINIONS ART.288 TFEU
NO BINDING FORCE
Exception yes, see e.g. ‘Grimadli Case, Case C-322/88
General principles and fundamental rights unless expressly stated by the CJEU;
Communications, notices, guidelines, (competition law) press statements;
Their function: To help with observation of law while interpreting;
Other ‘Soft Law’
September 12, 2018
The Council and the Commission are empowered to conduct external relations, the agreements of which form a true source of EU law binding on the Union and the member states.
3 types of agreements:
Commercial and trade policy: EU-Canada free trade agreement (CETA) , Feb.2016
Association agreements with non-member states: Stabilization and Association Agreement with FYROM
International agreements with non-member, EG. EG. Bilateral agreements Switzerland–EU
Following the Lisbon Treaty, the Union has legal personality and has the right to conclude international agreements over a wider range of topics than previously.
Ex: UN conferences, international finance and trade conferences, agreements relating to CFSP negotiated by the High Representative of the Union for foreign affairs and security policy.
INTERNATIONAL AGREEMENTS
September 12, 2018
HOMEWORK
CHECK AND WRITE ABOUT ALL SOURCES YOU NOW SO FAR!
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Purpose:
Need for the interpretation of primary treaties and secondary legislation.
Adapting existing rules to fit the situation or introduce new rules to settle the matter (since Law cannot possibly cater all economic and social development).
The Court of Justice’s Contribution
September 12, 2018
The primary and secondary legislation must be interpreted and applied according to the scheme of the Treaty as a whole and in the light of the broad principles of the Preamble and Art. 2,3,10,12 TFEU (…) in order to achieve the result required.
Wide judicial interpretation that lead to the development of some of the most fundamental doctrines and principles of the Community (direct effect, supremacy, state liability)
The Court of Justice’s Contribution
September 12, 2018
Group of Principles in the legal order of EU: A highly influential source of EU law (bringing about treaty changes well before the formal treaty amendment of such provisions by member states).
The DECISIONS are:
Binding. Art. 280 TFEU: “Judgments shall be enforceable”
The Court of Justice’s Contribution
September 12, 2018
The sources of general principles are the national legal systems (constitutions), rules of natural justice, the Treaty (ex-non-discrimination principle).
They are generally divided into:
Human or fundamental rights;
Equality principles;
Principles related to general procedural rights
The Court of Justice’s Contribution:
September 12, 2018
HOMEWORK
Write an Essay and discuss the importance of The Court of Justice’s Contribution:
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WORK IN CLASS
-BLACKSTONE’S: 2013-2014 EU LAW
ANALYSSIS OF THE PRIMARY LEGISLATION:
CONTENTS:
1. TEU pages 1-4;
2. TFEU pages 21-23;
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HOMEWORK
FIND AND WRITE DOWN ALL PARTS AND THE TITLES OF THE MAIN CHAPTERS FROM THE PRIMARY LEGISLATION: TEU & TFEU!
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THE SUPREMACY OF EU LAW
CJEU: There is NO express declaration or specific legal base for the supremacy of EU law in the Treaties.
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REVISION of Art. 267 TFEU
PRELIMINARY RULING PROCEDURE:
Provides a link (bridge), between the national legal systems and the EU legal system.
The courts of the member states can seek a ruling from the Court of Justice on the interpretation of the all forms of EU Law, including international Treaties, and on the validity and interpretation of EU secondary legislation.
Ex. Art. 234 EC
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Article 267 TFEU
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal MAY, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal SHALL bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
September 12, 2018
COSTA CASE: THE FACTS
Costa (a lawyer practising in Milan, Italy) claims that he is not under an obligation to pay an invoice amounting to 1925 lire demanded of him in respect of the supply of electricity by the ʹEnte Nazionale per lʹEnergia Elettrica (ENEL)ʹ. He objected to this payment before the Giudice Conciliatore (which has sole jurisdiction by virtue of the amount involved) claiming that the Law of 6 December 1962 nationalizing the electricity industry in Italy was contrary to a certain number of provisions of the Treaty of Rome, and was unconstitutional. In this connation he requested – and obtained – a reference of the case, on the one hand to the Italian Constitutional Court, and on the other hand to this Court for a preliminary ruling pursuant to Article 177 of the Treaty.
Van Gend en Loos – Costa v ENEL (1962-1964):
Van Gend – 1962
The CJEU holds: “the Community constitutes a new legal order of International Law for the benefit of which the States have limited their sovereign rights, albeit in limited fields, and the subject of which comprise not only member states but also their nationals”
September 12, 2018
Evolution of the Doctrine:
Costa v ENEL (1964)
The Issue: whether a national court should refer to the Court of Justice if it considers that Community Law may be applicable or, in the view of the Italian Government, simply apply the subsequent national law.
Preliminary ruling?!?! National court in doubts…
September 12, 2018
Flamino Costa v ENEL (1964)
ECJ:
EEC Treaty has created its own legal system which became an integral part of the legal systems of the member states and which their courts are bound to apply. “
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Costa v ENEL (1964)
ECJ: By creating a Community of unlimited duration, having its own institutions, its own personality, legal capacity, real powers stemming from a limitation of sovereignty or a transfer of powers from states to the Community the member states have limited their sovereign rights and have created a body of law to bind their nationals and themselves”
The EU Law must be supreme over subsequent national law.
September 12, 2018
WORK IN CLASS
Discuss the importance of Article 267 TFEU!
Which Article from the treaty Explains the principle of Supremacy!
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HOMEWORK
WRITE A SHORT ESSAY ABOUT THE SUPREMACY PRINCIPLE!
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Simmenthal (1977)
The issue: Inconsistency between a Community law provision and a national provision. Whether subsequent national measures that conflict with Community law must be disregarded without waiting until those measures are set aside by legislative or other constitutional means.
September 12, 2018
Simmenthal Case C- 106/77
CJEU Ruling: Directly effective provisions of Community law preclude the valid adoption of new legislative measures to the extent that they would be incompatible with Community provisions.
The voluntary limitation of sovereignty, and the need for an effective and uniform Community (EU) law, requires supremacy.
(This reasoning criticized by ‘De Wite’ 1984)
September 12, 2018
Factortame 1 – Case C-213-89
CJEU holding: “National court must suspend national legislation that may be incompatible with EC law until a final determination on its compatibility has been made.”
September 12, 2018
September 12, 2018
Factortame 2 – Case C-221-89
National rules that prevented a national court from issuing interim injunction suspending the application of national statute during a dispute whilst considering the existence of alleged rights under community ARE TO BE SET ASIDE!
UK DID BREACH COMMUNITY LAW!
Summary EU law is SUPREME over all types of national law.
Because of the unique nature of the Union, EU law denies the member states the right to resolve the conflict of law by reference to their own rules or constitutional provisions.
EU law obtains its supremacy because of the transfer of the state power and sovereignty to the Union by the members states in those areas agreed.
The member states have provided the Union with legislative powers to enable it to perform its task.
Uniform and consistent application of EU law in all member states can only be achieved if it takes precedence over national law. Therefore any provision of national law that conflicts with EU law, regardless of the date of enactment or rank, must be invalid
September 12, 2018
DIRECT EFFECT PRINCIPLE
Judicial enforcement of rights arising from provisions of EU law that can be upheld in favor of individuals in the courts of the member states (national courts).
Have been declared by the CJEU in a series of cases in respect of:
Regulations;
Directives;
Decisions;
Provisions of international agreements (to which the EU is a signatory).
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Direct effect and Treaty Articles Case 26/62 Van Gend en Loos
1. THE FACTS:
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September 12, 2018
TODAY CHAPTER 1: THE CUSTOMS UNION
Article 30 (ex Article 25 TEC)
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
Direct effect and Treaty Articles Case 26/62 Van Gend en Loos
2. The Issue:
Imposition of custom tariff by the Dutch authorities allegedly contrary to Community law: Art 12 EEC “member states shall refrain from introducing between themselves any new custom duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other”
September 12, 2018
Direct effect and Treaty Articles Case 26/62 Van Gend en Loos
2. THE ISSUE:
The Qs. for preliminary ruling:
1. whether art. 12 conferred on individuals rights which the nat. courts were bound to protect?
Q.2 : if so Art. 12 had been infringed in circumstances such as those of the main action
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Direct effect and Treaty Articles
If the court answers the first q. in affirmative, the result would be a considerable incursion into the sovereignty of MSs. Like many other provisions of the treaty, Art. 12 was addressed to MSs and contained no express reference to the rights of individuals. If art. 12 were held to be capable of producing direct effect, the same might be true of many others provision of the treaty.
The defendants argument:
The Treaty Article is addressed to the member state;
The correct way in which to enforce the Treaty obligation was by formal action by the Commission or by another state, but not by individuals.
September 12, 2018
Direct effect and Treaty Articles
3. CJEU Holding:
The Community (EU) had been endowed with sovereign rights, the exercise of which affects not only member states, but also their citizens, and the Community law was capable of conferring rights on individuals that become part of their legal heritage by them before the national courts.
Art 12 EEC (now Art 30 TFEU) was suited by its nature to produce direct effects.
September 12, 2018
Direct effect and Treaty Articles
CJEU Holding: To be capable of direct effect that are enforceable in the national courts, a Treaty provision must satisfy the criteria established by the Court of Justice.
THE VAN GEND CRITERIA:
1. Be clear and precise;
2. Be unconditional (for ex. as to time limits);
3. Not require implementing measures to be taken by member states or Community (EU institutions);
4. Not leave discretion to member states or Community (EU institutions).
September 12, 2018
September 12, 2018
Case 48/65 Alfons
Difference between articles that could give rise to direct effects and those that could not!
Art 95 EEC (Now art 110 TFEU) yes
Art 97 EEC NO!!!
Check the book, page 162-163
September 12, 2018
Case C-43/75 Defrenne V Sabena
Under old Art. 119 EEC- NOW 157 TFEU
ECJ: Employers are obliged to comply with the requirements of a Treaty Article and that other individuals may enforce corresponding rights directly against the obliged party who has failed to comply with EU Law-
‘HORIZONTAL DIRECT EFFECT” = b/individuals
VERTICAL B/ state – individual
Summary:
Private parties have a right to defend their rights arising from EU law in the face of inconsistent or contrary national law;
Individuals can take actions that would result in enforcement in situations in which a member state had failed to comply with EU law and in which the Commission had not taken any action.
September 12, 2018
HOMEWORK
Read the case on ‘Van Gend en Loss’:
Give your analytical views on the case, discussing the three important parts….
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DIRECT EFFECT: PART 2
DIRECT EFFECT & SECONDARY LEGISLATION:
288 TFEU:
REGULATIONS
DIRECTIVES
DECISIONS
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Direct effect and Regulations
Regulations should not be subject to delays and shall be immediately enforceable in the national courts.
Regulations have to satisfy the same criteria as for treaty Articles (Van Gend en Loos case)
Be clear and precise;
Be unconditional (for ex. as to time limits);
Not require implementing measures to be taken by member states or Community (EU institutions);
Not leave discretion to member states or Community (EU institutions).
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September 12, 2018
Case C-93/71 Leonesio v Italian Ministry of Agriculture
ECJ: THE REGULATION COULN NOT BE SUBJECT TO DELAY AND SHOULD BE IMMEDIATELY ENFORCEABLE IN THE NATIONAL COURT-
VERTICAL DIRECT EFFECT OF REGULATION!
September 12, 2018
Case C-253/00 Munoz v Frumar
REGULATIONS ARE GENERALLY APPLICABLE AND THEY APPLY TO EVERYONE NOT ONLY PROVIDING RIGHTS BUT ALSO IMPOSING OBLIGATIONS ON EVERYBODY!
HORIZONTAL DIRECT EFFECT OF REGULSTIONS
Direct effect and Directives
What are the main features (characteristics) of Directives?
Try to think about the nature of the discretion in Directives.
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Direct effect and Directives
ECJ discussed and confirmed over the time:
Directives could give rise to direct effects, provided that they also satisfy the same 4 criteria;
The provisions of the directives would have to contain a clear and precise obligation, which they can and often do;
The discretion in directives is not in WHAT should be achieved but HOW it should be achieved;
The obligation or requirement is not discretional, but quite how it is achieved in each member state.
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DO THEY FULFILL THE VAN GEND EN LOOS CRITERIA?
1. Be clear and precise;
2. Be unconditional (for ex. as to time limits);
3. Not require implementing measures to be taken by member states or Community (EU institutions);
4. Not leave discretion to member states or Community (EU institutions).
In ‘Van Duyn V hOME office –C- Case 41/74 based on the Art 3 of the Directive 64/221 VERTICAL DIRECT EFFECT YES
Direct effect and Directives
The issue of the PERIOD of IMPLEMENTATION:
Directives allows the time for implementation (1-5, usually 2)
Case 148/78 Publico Ministero v Ratti
The Directive, which implementing period has expired, satisfy the requirements of clarity and precision, and others.
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E.g. The Directive on Consumer Rights 2011/83 EC
Transposition
Member States had to transpose the Directive into national laws by 13 December 2013. Member States must apply the national laws implementing the Directive from 13 June 2014. The Commission has assisted Member States in the transposition of the Consumer Rights Directive. Several meetings have been held with Member States’ representatives since October 2012; the most recent meeting took place on 11 April 2014
Direct effect and Directives
The issue of the PERIOD of IMPLEMENTATION:
Case C-144/04 Mangold
In some circumstances the time limit for the implementation of a directive may be unimportant: general principles prohibiting discrimination.
September 12, 2018
Directives and Direct Effect
Who could be a defendant:
Case 152/84 Marshall v Southampton Area Health Authority
Directives could only be enforced against the state, or arms of the state, and not against individuals, although the case.
HORIZONTAL DIRECT EFFECT-NO, bcs, they don’t have to be published, which is against legal certainty! Marshal C-152/84
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Decisions and DIRECT EFFECT
Grad, Case C- 9/70 ECJ:
It would be contrary to the binding nature of Community Law if the provisions of the decisions were not able to be invoked by individuals.
They must also satisfy the criteria and can only be enforced against those obliged.!
Summary
The concept of Direct effect enables individuals to protect their rights that arise from provisions of EU law.
Direct Effect is applicable if the Article of the Treaties, provisions of the Regulations and Directives satisfy the criteria defined by the CJEU in Van Gend en Loos case:
Be clear and precise;
Be unconditional (for ex. as to time limits);
Not require implementing measures to be taken by member states or Community (EU institutions);
Not leave discretion to member states or Community (EU institutions).
THE TREATY AND THE REGULATIONS BEING DIRECTLY APPLICABLE CAN HAVE VERTICAL AND HORIZONTAL DIRECT EFFECT, WHILE THE DIRECTIVES OLY VERTICAL!!!
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INTERNATIONAL AGREEMENTS
NEITHER THE PRIMARY NOR THE SECONDARY LEG. STATES THAT I.A. ARE GENERALLY BINGING OR CAN GIVE RAISE TO DIRECT EFFECT!
But,. ECJ said yes if the satisfy the criteria, EEC- morocco agreement…
But not GAAT bcs, are mixed with shared competences.,
C- Case 21-4/72 International Fruit,
CJEU: The provision in question were not directly effective bcs. they might change too easily by a political negotiations.
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INDIRECT EFFECT
In case where the CJEU, rather than highlight the unfortunate results of the lack of horizontal direct effect of directives, against the private but not the public employer, the CJEU, concentrated on old art 5 EEC, new 4(3) TEU which requires MSs to comply with community obligations. This is known as the principle of Indirect effect!
MID-TERM
Nov. 2019
CHAPTERS:
1. CJEU/ECJ
2. SOURCES
3. SUPREMACY &
DIRECT EFFECT
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Dr. Nora MEMETI
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STATE LIABILITY
Dr. Nora Ziba Memeti
September 12, 2018
STATE LIABILITY
An action by an individual against a MSs when the M.S has failed to comply with EU Law obligations and that has resulted in damage or loss to that individual!
Introduction
It allows an action by an individual against a member state when the latter has failed to comply with EU law obligations and that has resulted in damages or loss to the individual.
It is an alternative to Commission actions against member states to enforce EU law where EU provisions have not been implemented by member states, and to fill the gap left where EU provisions are held not to be directly effective, or because directives are effective only on the vertical and not horizontal axis, or indeed the entire absence of direct effect where the EU Law provision fails to satisfy the Van Gend en Loos criteria!
September 12, 2018
FRANCOVICH C-6/90
Whether individual has a right for redundancy (joblessness) payment according to the Directive 80/987 for a guaranteed redundancy payment, if the company is insolvent (bankrupt)
Since no action was possible against the company because of its insolvency, the action was made against the state for non-implementation of the said directive.
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THE LINK
In Italy there was NO NATIONAL LAW TO BE INTERPRETED IN CONFORMITY WITH THE DIRECTIVE, NO COMPENSATION AGENCY!!!
CJEU: MSs should make good any damage caused to individuals that was the consequence of a breach of EU Law!
THE CJEU HELD THOUGH, THAT THE CLAIM REQUIRED THE DIRECTVE TO CONTAIN AN INDIVIDUAL RIGHT, WHICH COULD BE DETERMINED BY THE PROVISION OF THE DIRECTIVE ITSELF, AND THAT MUST BE A LINK b/ THE BREACH AND THE DAMAGE CAUSED!
The Francovich case: CJEU ruling
The protection of individuals under EU law would be weakened if they were unable to claim damages for loss caused by a member state’s failure to comply.
The principle was inherent in the scheme of the Treaty that MEMBER STATES SHOULD MAKE GOOD ANY DAMAGE CAUSED TO INDIVIDUALS THAT WAS THE CONSEQUENCE OF A BREACH OF EU LAW.
However the directive should contain an individual right, which could be determined by the directive itself, and that there must be a link between the breach and the damage caused.
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GENERAL OBLIGATIONS: Art 4(3) TEU & 288 TFEU
The decision in Frankovich provides individuals with a remedy that stems NOT from the provision of EU Law, but from the breach by the MSs of the general obligations in Art 4(3) TEU and 288 TFEU!
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Article 4(3) TEU
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fullfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
HOMEWORK
Write a long essay about State Liability and Frankovich case!
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PART II- THE EVOLUTION OF THE PRINCIPLE OF STATE LIABILITY
Factortame 3 concerned the breach of a treaty article rather than the failure to comply with a directive but this was held by the CJEU to be no bar(BLOCK) to incurring state liability.
The result of Factortame case law is that the principle of state liability is applicable to all domestic acts and omissions, legislative, executive, and judicial, which are in breach of EU law, directly effective or not, and in principle by all three arms of the state.
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Factortame + new criteria
Factortame also introduced a new criteria: the seriousness of the breach.
It should be analogous to that applied to the EU institutions for damages caused unlawfully by legislative acts.
There must have been a sufficiently serious breach of a rule of law designed for the protection of individuals.
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The “sufficiently serious” requirement
The “sufficiently serious” requirement would be satisfied where a member state had manifestly and gravely disregarded the limits of its discretion.
The factors that should be taken into account by the national court assessing are:
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THE CRITERIA/FACTORS:
1. The clarity and precision of the rule breached
2. The measure of discretion
3. Whether the infringement and damage was intentional or involuntary
4. Whether the error in law was excusable or inexcusable
5. Whether there was any contribution to the problem by the EU institutions
6. Whether any incompatible national law was being maintained.
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Misunderstanding a directive! British telecom, C-392/93
At the Union level, it has proved to be extremely difficult to succeed in damages against the Union institutions:
The UK government successfully argued that its incorrect implementation of a directive was due to a misunderstanding of what the directive required.
The CJEU agreed that the directive was capable of more than one interpretation and thus no liability arose.
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In ‘Brinkmann, 319/96, Danish case
The CJEU also took into consideration the mistake in the interpretation of the directive that was made by more than one state to decide that there was no liability.
Liability is established basically on the grounds of straightforward infringements of EU law.
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Robins case C-278/05 : Restrict the discretion
The lower the degree of discretion on the part of the member state and the clearer the requirements of the directive, the higher the chance that the member state would incur liability for a mere breach.
The more ambiguous or unclear a provision of EU law, the more discretion would be enjoyed by the member state in implementing this and the breach would correspondingly have to be much more serious before the member state would incur liability.
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FRANKOVICH IN THE PRIVATE SPHERE
The principle was extended to the private sphere, in which it has been seen to determine liability in disputes between two private parties, and to the courts of the member states.
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Between private parties
The CJEU reasoned that the extension of the principle of the state liability was required by the new legal order for the effective protection of rights that would be undermined if it were not open to any individual to claim damages for loss caused to him by contract or by conduct liable to restrict or distort competition.
It has been extended then to determine liability between private parties where one has caused loss to the other by a breach of EU law.
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Köbler Case C-224/01 and judiciary-the National court
Köbler case extended state liability to breaches of EU law rights by the judiciary, which the state would have to compensate.
The state may, potentially at least, be liable for the breaches of Community law by the national courts provided that they were manifest and sufficiently serious. (In that case, the breach complained of was not serious enough)
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National courts- in ‘Traghetti’
C-173/03 Traghetti del Mediterraneo Spa v. Italy, the issue:
A company forced into liquidation as a result of errors in the interpretation of Community law undertaken by the Supreme Court in Italy where the court did not make a reference to the court of justice of the EU.
The liability is not limited to intentional fault and serious misconduct; it is extended to those instances in which national courts have manifestly infringed the law in their interpretation, thus causing damage.
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National courts and ‘Adeneler’
C-212/04 Adeneler: the obligation the MSs have to refrain from making laws that would compromise the aims of a directive also applies to the national courts.
The courts of the member states must, therefore, refrain from interpreting domestic law in a manner which might seriously compromise the aim sought.
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Summary:
The State Liability is one of the remedies to be provided in national courts.
The State must be liable for loss and damages caused to individuals as a result of breaches of Community Law for which the State can be held responsible.
State liability covers illegal conduct by all governmental institutions, including judiciary.
Member States are required to take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations under community Law.
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Summary:
Three Conditions under which liability gives right to reparation (based on Francovich):
1. The result prescribed by the Directive should entail the grant of rights to individuals.
2. It should be possible to identify the content of those rights on the basis of the provisions of the Directive.
3. The existence of a casual link between the breach of the State’s obligation and the loss and damage suffered by the injured parties.
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Three fold Test for establishing liability (following Francovich; Factorame):
The rule of EU Law infringed must be intended to confer rights on the individual litigants;
The breach of that rule must be sufficiently serious
There must be a direct casual link between the breach and the loss or damage sustained by the individuals.
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The breaches of EU Law are “sufficiently serious” if:
A failure to transpose a Directive or a clearly incorrect transposition of a Directive;
Breach of an order of the Court of Justice;
Breach of settled case law;
Breach of provision of EU law whose interpretation leaves no room for reasonable doubt.
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The Preliminary Ruling Procedure
The meaning of Preliminary Ruling.
Who can refer?
What are the issues that can be referred?
A Discretion or Obligation to refer?
No obligation to refer. Acte Clair!
Preliminary ruling procedure Art. 267 TFEU
The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. If a national court is in doubt about the interpretation or validity of an EU law, it may – and sometimes must – ask the Court of Justice for advice. This advice is called a ‘preliminary ruling’.
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The Purpose of the Preliminary Ruling
Sharing of the jurisdiction over EU law between the CJEU and the national courts;
Uniform interpretation and application of EU law in all member states;
Legal certainty that EU law means the same thing in each and every member state;
Establishing of cooperation and equality in relationship between national courts and CJEU (NOT hierarchy or appeal system).
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CJEU-NATIONAL COURT/AUTHORITY
The relationship should be based on equality and cooperation rather that hierarchy or an appeal system, so the CJEU SHOULD PROVIDE ONLY GUIDELINES AND NOT DIRECT THE NATIONAL COURT!
The Role of the CJEU and the national Courts
CJEU:
Interpret and rule on the validity of EU law
Provides only guidance and not direct the national courts.
NOT concern itself with application of the ruling that is has made
The National Courts:
To determine the facts of a case;
To decide whether to refer a question, To ask question of the CJEU (if needed);
Apply the ruling to the facts of the case
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Nature of references for a preliminary ruling:
1- A reference for a ruling on the interpretation of the European law: the national judge requests the Court of Justice (ECJ) to clarify a point of interpretation of European law in order to be able to apply it correctly.
2- A reference for a preliminary ruling on the validity of the European law: the national judge requests the Court of Justice (ECJ) to check the validity of an act of European law.
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Who can refer?
The bodies which decide legal issues based on EU law:
The National Courts;
The Administrative Tribunals;
The Arbitration Panels;
The Insurance Offices.
Depending on the level of involvement of national authorities, and national organization of legal remedies CJEU decides whether to accept or refuse the case.
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