Appunti diritto europeo (CEILS), Appunti di Diritto dell'Unione Europea

Scarica Appunti diritto europeo (CEILS) e più Appunti in PDF di Diritto dell'Unione Europea solo su Docsity! EUROPEAN UNION LAW 12/02/2024 SYLLABUS: 1) Pdf of EU parliament 2) Exam: 1st part multiple choice (1 points x 13, -0.5 for wrong ones) + written exam on open general questions European integration: Different techniques to use in the evolution in the EU:  Taking a picture-> to try to understand the overall structure but not the meaning of the system, and why it is structured in a certain way. We must understand the past and analyse it.  Cinematography-> a dynamic analysis to understand the development-> elements that had a huge impact of the EU. Schumann declaration It is a political non-binding declaration structured by the, at the time, minister of foreign affair of France, Robert Schumann 1 on 9th May 1950 (later on proclaimed EU Day); the document focuses on the design for a European integration. Few years before, Europe was the host of a Second World War, which caused along with WW1 100 million death, caused by Europe and countries in it. The countries who participated in it tried to avoid the eruption of a war but failed; during the war people already started to think of ways to avoid the eruption of a third conflict with, conceiving many different techniques to do so: 1. Human rights -> on one side human rights weren’t protected therefore the 1st thing to do was to establish standards in protection of human rights. 2. Democracy-> was something that needed to prevail against regimes, many mistakes made during the war were also made under democratic nations. In Germany, for example, the regime established itself through vote; the 80% of the people allowed and welcomed the invasion of Austria. If there is not a restrain to power that will eventually become a risk. 3. Rule of law-> is the principle that all individuals and institutions are subject and accountable to, it ensures the correct enforcement of the law that no one is above it and all are treaty equally under it. 1 Robert Schuman saw action as a member of the French resistance in the Second World War, and was captured and imprisoned by the Nazis. He had been active in politics before the war as a member of the French Parliament After the war, he held a series of top-level posts in France, and eventually drew up the ‘Schuman Declaration’ to unite Europe and prevent further wars. Born a German citizen in Luxembourg, Schuman became French in 1919 when the region of Alsace-Lorraine, where he lived, was returned to France. During the Second World War, French leader-in-exile Charles de Gaulle asked Schuman to go to London to serve in his government. After the war, he returned to national politics in a series of top-level posts, and became a key negotiator of major treaties and initiatives such as the Council of Europe, the Marshall Plan and NATO – all aimed at increased cooperation within the western alliance and uniting Europe. In order to have this European nation created, in 1949, an international organisation to protect and deal with these 3 elements that is the council of Europe, composed by 46 member states(up until 2022 were 47). The council of Europe was officially founded on May 5th 1949, the organ closed with the participants adopting a political resolution calling for the convening of a European assembly, the drafting of a charter of human rights and the setting up of a court of justice responsible for ensuring compliance with that charter. It is an interconnected but a different system from the EU; they participate to an organisation dealing with human right, democracy and the rule of law. To have this there are international treaties that bind states to work in the matter of these aims, the most important treaties in the council of Europe in the European convention of human rights. E ( 3RD September 1953) is still one of the most important elements of the council of Europe, it is a legal obligation descending to all the member states of the council of Europe; it happens before the EU due to the many efforts to limit the public power and politics, these limitation can be found in the constitution but it can be dysfunctional therefore there is a need for other remedies: o Supranational-> when there is a failure of the system at national level, e.g human rights not protected there is a need for an upper level, which one is it? In international law is a very peculiar kind of law due to its high difference from domestic law; the main subjects of the legal system of international law are states not individuals contrary to domestic law. From a legal perspective, according to international law, all states are all on the same level. International law, after WW2, is based on 2 components: 1. Co-existence -> almost 200 states populate the international community, there are certain number of rules that all states respect as they are customary not statuses. International customary rules are at the basis of international coexistence; to have a custom is to have a strong number of members respecting them as they think these rules are compulsory. They are so because of the repetition of them, based on the fact that they have been respected for long period of time. There is no hierarchy nor authority imposing them, it is flat system; some states on these bases try to cooperate: to have a common interest and work together for it, the main instrument are international treaties. Is a way to impose legal obligation and descend from them. E.g: to arrive in foreign harbours there’s a need of an administrative request, Italy and Tunisia, with a treaty decide that for the respecting parties is not necessary to have an administrative request; this is a cooperation to avoid delays, in this way there will be a strong and dynamic access to one’s respective harbours. At some point one party stops respecting the condition of the treaty. In this case in the past there will be war but today there are different possible solutions like: o sanctions o appeal to international court (depending on the kind of treaties they have) o create a court. o include in the treaty a specific tribunal. From this there was the emergence of a defence community, with a treaty, but was never enacted for the lack of ratification of France. Other attempts were made and in fact on the 25th of March 1957, with the signature of the Treaty of Rome, there was the establishment of both the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom). 13/02/2024 Natseclaw.eu Schumann declaration The declaration was just the beginning of the unification progress and the project to avoid new wars. Beginning: “World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.” “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.”  The idea of solidarity presents both a positive e negative element for the EU, a sit stands as trust; it is the positive acceptance of action coming form other parties. The higher the trust the strongest the integration. The first implulse for the integration was trust itself, to create and use economics to make a strong common market; in the declaration the target is political integration which by itself can have different meanings ( federation ,confederation …) . The EU built the biggest trading block on the planet, these countries have 24 official languages and it works regardless;the level of integration is to be considered incredible as it happens in a peaceful and short way contrary to the integration happened in the US which happens through ivil wars and other conflicts. The idea is to use this technique to avoid conflict among states, to do so it is necessary to:  Meet : necessary for the knowing and encounter of member states. E.g the European council, founded in 1974 with its first meeting held in Dublin on March 11th 1975. This organ regroups head of state and ministers charged with the executive power; is the perfect representation, where head of states and governments meet each other to avoid conflict and confusion. If you know each other you will avoid contrasts. The last enlargement based on the Treaty of Athens (2004) which integrated 10 nations all at once. The issue encountered in this integration was the opposition of the UK. The issue was the number as it presented a threat to the stopping of integration; meaning that if the number increases the integration will continue. “With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.” “It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.” The demonstration of the intent which then will be resulting in the international organisation of the European Coal and steal community through the treaty of Paris or treaty of the European coal and steel community (ECSC) in 1951. The international organisation is composed by organs which are also called institutions. At the time the institutions was to be considered the high authority, nowadays that is not conceived anymore as it is called commission. The high authority is composed by the members who meet. In internationa law there are different levels, going form states to international organisation and the latter are differentiated by their level of integration. At the time the European communities were defined as international organisation, a very peculiar one, in fact many scholars called it supranational or sui generis. There are elements defining it as an international organisation, The European community and union are both international organisation but there are peculiar element making it hard to imagine them as starting international organisation. There are distinction, to understand what is necessary for international organisation:  Inter-governmental: organisation based on the connection of governments bounded by an International treaty which is a legal agreement that multiple states agree upon coming together in anorganisation. When a states does so it has a legal obligation descending form the treaty.  Give up of sovereignty : in an international agreement states stive up part of ther power to collaborate.  Representatives: In treaties there is a need for specification of the mebers of the organisation; in particularly there is a need to specify that the member are state representatives as these people are not to be considered individuals but as states.  Power of decision: to set a quorum for consensus in decision in order to protect state’s interest; in inter-governamental is uninamity.  No binding acts: to have declaration and such as it can be still an official document but not legally binding.  Negotiations: the annulment of the figure of judges, as countries representatives meet and discuss conditions and issues without applying to courts and legal remedies.  Community model : a framework where member states delegate significant decision making authority, it is characterised by an high level of integration and shared sovereignty  Individuals: not supposed to follow instruction form goverments.  Binding acts  Qualified majority: in the European coal and steel community the power was given to a body formed by individuals ( high authority) which for the first 12 years decide accordingly to uninamity and later on with qualified majority.  Court of justice. European coal and steel community: Started as a simple organisation; goes by the acronym of ECSC and was established in 1952 with the Treaty of Paris. Later on in 1952 there was a proposal for a defensive treaty denied by France in 1954. EURATOM and EEC (25th march 1957; treaty of Rome) Same 6 countries; same commission and organs all together on the basis of 3 treaties and therefore 3 different bodies. EAEC or Euratom :treaty is about nuclear power and managing of atomic energy; pooling of atomic material EEC: not only to have a common market but to have a integrative custom union which stands as the fact that the EU appears to be a unified and sole nation, form an economical an international trading point of view is a single nation. It is a union based on a custom which is unified externally. Later on the European communities were asked on the idea of a bigger market which excluded limitis to import and exports and therefore the abolishment of custom duties. From an economical prespective this created a huge market, and form a technical prespective there are trading zones like there are in Europe ( not even in China). If you appear as a single entity that is to include millions of people; therefore by being a huge entity that works as a single state is to have importance and power. By the end of the ’50 there were 3 communities composed by the same members, therefore composing 3 different institutions:  High authority : individuals with power; European coal and steel community  Council of ministers : meant to be composed by reresentative if goverments at ministerial levels.  Commission : former high authority composed by individuals.  European Parliament  Court of justice. The 3 founding treaties were modified during the evolution of the commuity. This is so due to the necessity of single ratification of each state. In 1966-67, with the Merger Treaty( 8th  Regional policy: omologation and development in different countries or European regions  Consumer protection . states, howler in some cases there are specific areas, allowed by specific treaties, agree over foreign policemen through QVM. 14/02/2024 In the 1960 especially in its second half we had the Merger Treaty (1965), where there was a mergence of the 3 commission. SEA: In 1987 the Merger Treaty was firstly amended through the so called, Single European Act(SEA); the SEA is a collection of amendment of treaties, as it signifies the annulment to the perception of the previous treaties,( ECSC, EEC, EAEC), becoming a solidified and unified treaty regrouping the 3. This treaty is the first amendment of these previous treaties, it is an addition or delete of articles and points. We have new rules in different competences. The treaty includes, and is about other European matters, it goes beyond the simple economic terms of the treaties( foreign polices…); although the communities are mainly focused on economical goal. The Treaty of the European community (EEC) is the consolidation of the previous treaties plus the SEA. With these treaties that are parallel tracks regarding different matters: NATO, Council of Europe. There are, outside the European economic community, organs and political efforts to achieve other results; these institutions are outside as they do not present the same levels of trust. The state prefers to not give competences to a single European community and therefore forming a inter-governmental organisation. We have an evolution of both economical (European community) and foreign polices (inter- governmental), the latter presents states that discuss with one another with no legal obligation. After the collapse of the Soviet Union to became clear that states act for their personal interests and they come together in communities and intergovernmental organisations to push those interests. Treaty of Maastricht (7th February 1992- 1st November 1993) The Treaty on European Union was signed in Maastricht in the presence of the President of the European Parliament, Egon Klepsch. In accordance with that Treaty the Union is founded on the European Communities (first pillar), with two additional areas of cooperation (second and third pillars): the Common Foreign and Security Policy (CSFP) and Justice and Home Affairs (JHA).Upon entry into force of the Treaty on European Union, the EEC becomes the European Community(EC).The EP's legislative and supervisory powers increase with the introduction of the codecision procedure and extension of the cooperation procedure. the EU became a “temple”; it is said that “the European Union is founded on 3 pillars (legal disciplines)”: 1. First pillar= The 3 communities : SEA+EEC+EAEC+ECSE; the mainly used method was the community method. 2. Second and third pillars= 2 intergovernmental cooperation: it means that the 2nd and 3rd pillar were based on the intergovernmental method. The 1st pillar was at the basis of the European integration al process, the 2nd and 3rd pillars are explain the intergovernmental element in the commounity which stands as, the 2nd pillar common foreign security policies, the 3rd, justice and home affairs (cooperation between police and justice matters. These fields are intergovernmetal, as the same states have other fields of cooperation which are intergovernmental. The dynamic is reversed in a federal state as these competences will be conferred and regulate by the capitol and the presidency and government not the single regional units ( states). In the EU these competences are given to the state themselves, the community has no competences or action in the matter. Until December 1st 2009 the EU wasn’t an international organisation, it was a strange entity based on states and other communities; the treaties were on behalf of the European community but not theunion. Treaty of Lisbon ( 13th December 2007-2009) The Treaty establishing the European Community is renamed the ‘Treaty on the Functioning of the European Union’ (TFEU) and the term ‘Community’ is replaced by ‘Union’ throughout the text. No additional exclusive competences are transferred to the Union by the Treaty of Lisbon. However, it changes the way the Union exercises its existing powers and some new (shared) powers, by enhancing citizens’ participation and protection, creating a new institutional set- up and modifying the decision-making processes for increased efficiency and transparency. A higher level of parliamentary scrutiny and democratic accountability is therefore attained. The Treaty of Lisbon gives the EU full legal personality. Therefore, the Union obtains the ability to sign international treaties in the areas of its attributed powers or to join an international organisation. Member States may only sign international agreements that are compatible with EU law. The European community seized to exist and it became the European Union, where all the previous treaties and legal obligatio were to be respected. With this treaties we have the disappearance of the pillars, meaning that in the community ( 1992-2009) the pillars were a fundamental structure to the system; in 2009 they disappeared. In the new European Union had a new method, the comprensive framework in which pillars became exceptions in some fields; as matters like securities and policies were integrated in the union. E.g: after the bataclan attack the France appelated to the union according to article 42 paragraph 7, in reference of the art.51 of the United Nations calling for help in matters of securities and attacks and calls for help. There is no institution involved; still in treaty of the EU powers were still given to single states not an specific institution. This is to explain that still in the EU treaty there is still and intergovernmental conferring of powers, therefore in the bataclan attack. Multiple countries decided voluntarily to help France, for example UK decide to give the military base of Akrotiri( Cyprus) to attack Rafah. Different states with different specificities helped in their way. In the last 20 years we had a strong economical competition that generated the blurred line between politics and commerce. Some states started to use national security clauses for almost anything. In 2018 Trump started to put out some statues that allowed the president to enact national security clauses to impose custom duties for national security reason. It is to say that law, or lawfare is the use of law to reach strategic goals and this is also achieved through economic tools. E.g Lithuanian established some offices in Tawain and china blocked the import for Lithuania; now WTO ( world trade organisation) is dealing with the case in which China is using economic coercion. In response to this the EU adopted a regulation on the use of economic tools as a pressure method: the anti-coercion instrument (ACI). Between the treaty of Maastricht ans the Treaty of Lisbon there were:  Amsterdam treaty (October 2nd 1997-1st May 1999):The subsequent Treaty of Amsterdam amending the EU Treaty, the Treaties establishing the European Communities and certain related acts was signed in the presence of the President of the European Parliament, José María Gil-Robles.With its entry into force in May 1999, the codecision procedure was simplified and broadened in scope. Parliament now had the right to approve the Commission President.  Treaty of Nice (11th December 2000 -26th February 2001):The Treaty of Nice amending the EU Treaty, the Treaties establishing the European Communities and certain related acts was signed in the presence of the European Parliament President, Nicole Fontaine. The aim of the Treaty of Nice was to reform the institutional structure of the European Union to with stand the challenges of the new enlargement. With the Treaty of Nice, Parliament's legislative and supervisory powers are increased and qualified-majority voting is extended to more areas within the Council. There was a huge gap between 2001-2009 in which many countries were appelating to the entering in the union; the European Convenction (an organ) which was intended to propose options to modify the system and amend treaties. The convenction was formed by Amati (Italian PM), Giscard D’esatin president of France and head of the European convenction . The Constitutional Treaty (18th July 2003-29th October 2004) The convenction did not propose amendments but instead a project for a constitution for Europe in the form of a treaty, Between February 2002 and July 2003, the Convention on the Future of Europe took place with the intent of developing a draft constitution for the EU. The Draft Constitution was completed and presented to the President of the EU by the President of the Convention on July 18, 2003. The final version of the proposed constitution, called the Treaty Establishing a Constitution for Europe, was signed by the heads of state on October 29, 2004. It was submitted to the member states for ratification. Although it has been ratified by fifteen  Return to National Court: After receiving the CJEU's ruling, the national court applies it to the case before it and makes a final decision based on both the CJEU's interpretation of EU law and the facts of the case. The preliminary ruling procedure serves several important purposes  Ensuring Uniform Application of EU Law: It helps to ensure consistent interpretation and application of EU law across all Member States by providing authoritative guidance from the CJEU.  Protecting Individual Rights: It enables individuals to rely on the same interpretation of EU law in any Member State, thus safeguarding their rights under EU law.  Promoting Legal Certainty: By clarifying the interpretation and validity of EU law, the procedure contributes to legal certainty for both individuals and businesses operating within the EU. In a pending case before the CJEU, the case resented firstly started with VGL v. NFA in front of a Dutch court, but the latter decided through an order in which the tariffe commise( judge) asked the CJEU to take over the case. First question: whether art.12 of the treaty has direct application in national law in the sense that nationals of member states may in the basis of this article lay claim rights which the national courts must protect. Second question: to ascertain whether the provisions of an international treaty extend so far in their effects it is necessary to consider the spirit the general scheme and the wording of those provision. For scheme it is intended the purpose of the rule present in the treaty, to is what is behind; the bigger picture of the spirit is not simply limited to the treaty but to the: This is an example of legal reasoning as the dynamic of persuasion in the case is perfectly shown. The objective of this case shows perfect the intention and the menaning of why counties came together in the first place. This is an argument, a nnarrrative shown to present the element of persuasion contained in arguments. Arguments is the use of words as meas of persuasion, which change depending on the party I’m confronting with. The treaties where mot made by judges by iplomats and therefore it is a regropment of political ideas, and essential include people. The job of CJEU is to have uniform interpretation in adjudicating cases between, initially 6 now 27, and therefore explain the meaning of the rules to explain and not limit themselves but to expand and explain the means and opals of certain provisions. THE OBJECTIVE:of the EEC treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the community, implies that this treaty is more than an agreement which merely creates mutual obligations between the contratic states, this view is confined by the preamble to the treaty which refers not to only governments but people. It is also confirmed more specifically by the establishments of institutions endowed with sovereign rights, the exercises of which effe to member states and also citizens . Furthermore, it must be noted that the nationals of the states brought together in the community are called upon to cooperate in the functioning of this community through the intermediary of the European arliament and the economic ans social committee. Arguments:  The first argument is the preamble which states and mentions individuals.  Confirms the establishment of institutions as they wer created to impose obligation not not to member states but also citizens.  Nationals( individuals) are called upo to cooperate to the function of the European Community, through the EU Parliament nad committees. In a national judgment in pending case the national judge could send a question to the EU court and judg on the basis of the argument. It is to proove that the individuals are at disposal of the EU law can use it and appellate to it In addition the task assigned to the court of justice under art.177. The object of which is to secure uniform interpretation of the treaty by national courts and tribunals, confirms that the states have acknowledged that community law has an authority which can be invoked by their nationals before court and tribunals.the conclusion to be drawn from this is that the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subject of which comprise not only member states but also their nationals.independently. The legislation of member states community law therefore not only imposes obligations on indivivduals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but alsi by reason of obligation which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions. With regard to the general scheme of the treaty as it relates to customs duties and charges having equivalent effect it must be emphasised that article 9, which bases the community upon a customs union, includes as an essential provison the prohibition of these customs duties and charges. This provison is found at the beginning of the part of the treaty which defines the foundations of the community: it is applied and explained in article 12. The wording of article 12 contained a clear and unconditional prohibition which is not a positive but a negative obligation. The obligation, moreover, is not qualified by any reservation of the part of states which would make its implementaition Conditional upon a positive legislative measure nested under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationships between member states and their subjects. The wording of art.12 contains a clear and unconditional prohibition which is not positive but a negative obligation. Art.12 doesn’t require any legislative intervention on th part of the states, because of the legal reasoning of the court there are other command one intepretationdoes not exclude the other, from the same provision you may extract different orders and command . This article has direct effect on individuals. One part of the treaty produces direct effects on individual rights, which use be protected by national courts natioal court in fact are in charge of applying EU law as it was national law. It is completely different form the conception of international courts which require a long procedure to be appelated. Form this moment on, this preliminary ruling procedure will be use in cases similar. To this one, it is a centralised control based on precedent interpretation. Which also must be concerned and include legal interpretation. The same treaty could present different results on the basis of different interpretation. The normative part of treaty’s is normally done with the use of the guidelines to the beginning of the treaty. The giving of an abstract way to interpret is corresponding to an interpretative activity concerned with giving the best option, bu tin this way this could be close to a common law systems. At the time states denied the itepretiton and argumented the fact that the article corresponded to an relation between only states excluding individuals. 20/02/2024 Operative part: Doesn’t mention the parties or the case, the interpretation form this moment on the interpretation will be he one ven in the case. The CJEU is blinded in interpreting it this way. Art.12: it produces direct effects without any state being of interference; once the treaty has been ratified and entered into force, the treaty and art.12, according to the CJEU, which has interpreted the article, the latter creates direct effects and individual rights which national courts must protect. In the treaty, regardless the use of wording, it is stated more than explicated; any company in the future will be protected under this interpretation. I, as an individual, make a claim that art.12 should be interpreted in order to protect me by national law. The approach of the court is practical. The principle of direct effect is the capacity of a piece of legislation to be enforced by an individual in court against a member state. Is of consequence in relations between individuals. This means that an individual can invoke a provision of EU law in relation to another individual.According to the type of act concerned, the Court has accepted either a full direct effect (i.e. a horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to a vertical direct effect). Case 6/64 Costa v. ENEL5 :Principle of the primacy 5 Flaminio Costa was a Milanese lawyer as well as a user and shareholder of Edisonvolta, a municipal electricity company nationalized by the Italian government in the context of the nationalization of the electricity sector at the end of 1962. When Costa received his first electricity bill from ENEL, the monopolist established by the electricity nationalization law, he refused to pay it, claiming that ENEL had not validly taken over his electricity supply contract with Edisonvolta, because the nationalisation law infringed both the Italian Constitution and the EEC Treaty. Costa had challenged the second electricity bill he had received from ENEL before another Justice of Peace of Milan, Vittorio Emanuele Fabbri. The latter referred the case to the Italian Constitutional Court again and, for the first time, to It is important to determine the legal basis, to determine the copetence of the union in a determinate case, according the principle of conferral. There are fields of competence in which the EU will try to put all stats around the table to discuss but the eu itself cannot eneact binding act; if the fileds of competence does not belong to the EU’s, therefore outside treaties, the binding act is annulled. E.g:there is a provison denying the advertisement for tobacco, in order to still advertise the product they used clothing. Due this, some years ago, the EU enacted a binding act(required legal basis) prohibiting indirect advertising. France was against this protection as the competence regarding public health (therefore regarding indirectly tobacco) did not belong to the Union but of the member states. CJEU annulled the directive due to lack of legal basis and competence on public health of the EU. 21/02/2024 Art.4.2: the union shall respect the equality of member states before the treaties as well as their regional identities, inherit in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential state functions, including ensuring the territorial integrity of the state, maintaining law and order and safeguarding national security. In particular, national security remains sole responsibility of each member states. There is a necessity for the EU to respect equality of member states and national identities in their fundamental structures; it is necessary to ensure the existence and maintainance of rule of law democracy and human rights. The states is ensuring its own:  territorial integrity  maintain law and order : there are matters of regulation for public security at international level, but this competence still is secluded and belongs to solely the states. There cannot be any influence, unless there is a specific request, of intervention form other states.  national security : it is different form public safety/security/order; it is the maintainance of the pillars of the states: o Government o Population o Territory It is a protection for the mainatce of the integrity of the state along with the protection of it from internal and external threats. Generally speaking this competence is left up to the army (for immediate effects,physical defence) and also intelligence (to prevent) The intelligence organ for the protection of national security was officially introduced in the UK, as they refused to recognise national security as an EU competence a sintrodued in the constitutional treaty. National security is a matter of steps regarding:  Content  Organisation : usually at state level includes both army ad intelligence E.g:Italy has not be concerned with terrorist attacks as much as other European countries, at least recently; terrorism is till under the field of competences of intelligence as it can be (potentially) a threat to the pillars of the state. E.g:Cesare Battist arrival at Ciampino, an Italian criminal exported from Brazil to Italy. The plane used was a Flacon 9, the pilot of the plane demanded a reduce of his carrier years declaring that he had the right as he drawn the flight bringing battisti to Italy; by stating this he violated art.24 of the Italian intelligence. The case went form national civil tribunal to the CJEU. E.g: Edward Snowden extracted an published secret documents of the CIA, making known to all that public digital communication are controlled by states’ intelligence. After this revelation the EU parliament demeaned an inquiry on this surveillance, therefore were involved in matters regarding national security and intelligence. The Parliament sdidn’t adopt any one of binding act as it’s not in competence. When intelligence do this the organ deosn’t care about enforcement of legislation, as it is a matter of information. The parliament and its competences regard European citizens, they tried to understand if thee actions regarded the safety of people. Treaty on the functioning of the European Union (TFEU) Art.3 1. The Union shall have exclusive competence in the following areas: (a) customs union: it is solely a competence if EU, (e.g) Italy cannot engage in customs contarct with japan. (b) the establishing of the competition rules necessary for the functioning of the internal market (c) monetary policy for the Member States whose currency is the euro (d) the conservation of marine biological resources under the common fisheries policy (e) common commercial policy Art.2 1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts. Only the EU may legislate and adopt legally binding acts, as these specific fields are and can only be managed by the EU. States can engage if and only if are authorised in doing so by a specific act. Shared competences: areas of policy making and legislation where both EU institutions and the individual memebr states have the authority t legislate and adopt legal measures.member states shall exercise their competences to the extent of its competence (depends on the level of trust between member state and the EU). Art.4 1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6. 2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty. Most of these fields are covered by EU legislation Art.5 3. The Union may take initiatives to ensure coordination of Member States' social policies. Art.6 The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level. (a) protection and improvement of human health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth and sport;  EU parliament: interest of the eu citizens  EU council  Council: interest to represent internal goverments of member states. The adoption of legislation is the result of the expression of representation which will be accepted on this basis. The system behaves as a huge public power; the ways in which, at national level, contain power are present also at EU level. There always a need of control to prevent abuse of power form a both public and private prespective. Actions taken by the institution and political approaches have parameters to be checked, if they are in violation of previous directives and pieces of legislation. ART. 10 Democracy:  Parliament representing citizens (1)  EU council: ministers and goverments overall which are democratically accountable to their Parliament or citizens goverments have democratic supports from their nation either form parliament and citiznes who elected them.(2) INSTIUTIONS (art.14)  EU parliament  EU council  The council  EU commission  The CJEU  The Eu central bank  The Court of Auditors EUROPEAN COMMISSION  Current president: Ursula von der Leyen 27 members, 5 years term  Elections : In the last election the commission was described as undemocratic. The election of the EU Parliament which will give a political result, they are based on proportionate method, to give the broader spectrum of political ideas in the parliament. 1- During the election there is a process of choice for the president of commission according to different practices (well known, political experience, a politician with a curriculum of administrative and institutional political positions). 2- After designating a president of the commission, this person will go in front of the parliament to present their agenda; Parliament will then decide and the outcome is mostly positive as there is a support form the coalition. 3- After the approval the president proposes a list of commissioners which have represent each country; all the potential commissioner will be interviewed by the parliament. If the interview is failed the parliament will send a communicate to the president. It is based on an agreement and the weight of single states. The vice-president, responsible for common foreign security policy, partecipates to both commissions meetings and to the council configuration of foreign security policies. With the establishment of the commission, members of it are prohibited to have any contact with national governments; as their main interest is the general one of the Union. There are still contacts and expressions of national interest, there is a filter resulting form the political election at EU (parliament) level. Competences The interest represented is the one of the union through which treaties are made; it explains the goals and the aims to be achieved. Art.17.1: the commission shall promote the enrol interest of the Union (…) it shall ensure the application of the treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the CJEU. It shall execute the budget and manage programmes. It shall exercise coordinating ,executive and management functions (…) it shal ensure the Union’s external representation (…). The EU commission is the guardina of the Union, it imposes a control over the application of EU law. This is implemented thought different provisions in the treaties. It is concerned with the consideration and control over the action of member states, enterprise and individuals.  Role as controlling the action of the states : to prevent violation of EU law; the most important and general procedure is the infringement procedure. There is a specidfc procedure according to which every time there is a violation of. A law by MS the EU law will act through the member states. There are ways to activate the procedure:  Internal input: Motu proprio: public servants of the commission analyse the MS behaviours and will highlight eventual violation, autonomously.  External input: a state can autonomously ask the commission to analyse a certain henomenn, followed up by an informal procedure, in the sense that from both external and internal input of the commission states will appellate to the commission itself, to be sure and assert the non-violation of laws.  Case C-338/01 Once an infringement procedure starts, the judge has to declare that the state has violated the law for specific reasons; it needs to be a general rule. The states might decide to either comply with the decison of the court or not comply with it, in the latter case the state will be questioned by the commission it will answer again; the state must comply and the commission can impose,through the CJ a lump sum of money or a penalty payment in case of uncompliance with a determinate CJ decision or overall with EU law. Example: France was brought in for not of the CJ as the state didn’t comply with a decision for 10 years; they were given a sum of money to pay up+ 6 months of penelaity payment. The infringment procedure: 1. Starts with an dministarive part, which the main target is compliance; they denounce and male the state notice their lack of attention. In this first part most cases stop here; there is no high number of actual cases presented in fornt of the CJ as the sanction is very heavy. 2. CJEU is presented with the cases. A directive is a norm which needs to be transposed by the memebers states. The latter need to apply norms to fully implement the directive. If doesn’t happen then the commission can refer to the CJEU for a penality payment. The power of the commssion is highly influenced and strong especially in the field of competition, as it regards the behaviour of companies and states in the market. The first rule in the field of competition are laid down in the Sherman Act a) Companies: the idea of strong freedom of action in the market is strongly worong. Some companies decide to fix princes at their pleasure and wil and are in contrast with EU law. The institution of dynamics which lack of competitions are also against EU law, which regualtes it biìut believes in to necessity. E.g: Microsoft corp. v. Commission6 b) Member states: violation of competition rules can be based on action form states not companies. States most of the time aid companies, as for example own a part of them or have interest to defend certain aspects of it. EU law prohibits to give economic support to companies coming form the states, there are exceptions in cases of national disasters. The states,even if sometimes violate it, are strictly forced to follow these law as its violation could lead to a disruption of the competitive and economical element of the common market. If the commission finds a state in violation of this rule, it could be sanctioning the state as it donated and supported a company, in other words commission can ask to refund the subsides given to these companies by the states. Anti trust( vs. Companies)+ anti-sussidies laws ( vs. States) 6 Microsoft Corp. v. Commission (2007; T-201/04) is a case brought by the European Commission of the European Union (EU) against Microsoft for abuse of its dominant position in the market (according to competition law). It started as a complaint from Sun Microsystems over Microsoft's licensing practices in 1993, and eventually resulted in the EU ordering Microsoft to divulge certain information about its server products and release a version of Microsoft Windowswithout Windows Media Player. The European Commission especially focused on the interoperability issue. reached a preliminary decision in the case in 2003 and ordered the company to offer both a version of Windows without Windows Media Player and the information necessary for competing networking software to interact fully with Windows desktops and servers.[5] In March 2004, the EU ordered Microsoft to pay €497 million ($794 million or £381 million), the largest fine ever handed out by the EU at the time, in addition to the previous penalties, which included 120 days to divulge the server information and 90 days to produce a version of Windows without Windows Media Player. the finance ministers of the Eurogroup meet one day before the meeting of the Economic and Financial Affairs Council. The Council also carries out a number of economic governance functions in the context of the European Semester. The council decides in the basis of Ian interested voting system: 1. Simple majority: This means that a decision is deemed to have been made when there are more votes for than against. Each member of the Council has one vote. Therefore, simple majority is reached if 14 Council members vote in favour. The simple majority rule is applicable when the Treaty does not provide otherwise (Article 238(1) of the TFEU). It is thus the default decision-making process. In practice, however, it applies only to a small number of decisions: internal Council rules, the organisation of the Council’s General Secretariat, and rules governing committees provided for in the Treaty. 2. Qualified majority: most cases are adjudicate through it; the majority is fact set by satndards, in the council is 55% and the states need to represent 65% of EU population; to avoid an hegemony of bigger states. At eu level thre is a block of minorities which is bog an d put as an opposition. Majority, opposition or contacts are avoided in the decision making and in voting to find an agreement and to avoid conflict. To calculate there is a voting mechanism activate by a calculator. 3. Unanimity: Unanimity is only required by the Treaty for decisions in a few areas, such as taxation and social policy. This was maintained by the Treaty of Lisbon. Article 48(7) of the TEU provides a general passerelle clause applicable to all EU policies which, under certain conditions, gives the possibility to derogate from the legislative procedures initially provided for by the treaties. Consequently, it enables the Council to adopt decisions on certain issues by a qualified majority instead of unanimity: passerelle clauses allow for switches from the special legislative procedure to the ordinary legislative procedure and from voting by unanimity to QMV. However, a passerelle clause can still only be activated if a decision is adopted unanimously by the Council or the European Council. Consequently, all Member States must be in agreement before such a clause can be activated.  Within council: COMMITTEE OF PERMANENT REPRESENTATIVES (COREPER) Founded in 1958, is composed by those who are part of the permanent mission of a country; its aim is to prepare the agenda for the ministerial council of the EU meting. The institutions serves to maintain a contact between the member of the committee in their mission abroad and the national ministerial decision. The ambassadors are a called to partecipate in meeting in which their nation is called to partecipate.  COREPER structure The capacities of the Coreper are “horizontal”, since the body is tasked to prepare all the sectional EU Councils and discuss the dossiers (proposals presented by the EU Commission) in a pre-negotiating phase. The Coreper plays a fundamental role in the EU decision-making mechanism, being at the same time a forum of dialogue (dialogue among the Permanent Representatives and between each of them and their respective capital) and a politically monitoring body (with its function of monitoring and supervision of the working groups). The Coreper is structured into two different formations identified on the basis of their respective competences:  the Coreper II or “second part”:composed by the Permanent Representatives of the Member States, deals with subjects falling under the umbrella of the following: Council formations:  General Affairs  Foreign Affairs  Economic and Financial Affairs (ECOFIN)  Justice and Home Affairs (JHA). Moreover, the Coreper II is the preparatory body of the European Council. the Coreper I or “first part”: composed by the Deputy Permanent Representatives of the Member States, deals with issues which fall under the umbrella of:  Employment  Social Policy  Health and Consumers’ Policy  Competition  Transportatios  Energy and Telecommunications  Environment  Education  Youth and Culture Councils. The staff is mainly made by people working in the field of foreign affairs; the government sends experts ven if they work for other administration.  Council working groups: The Council working groups have informal character and are attended by representatives of the Member States who have a specific competence in the matters handled by the single groups. The main task of the working groups is to provide the Coreper with essential assistance by focusing on the technical preparatory work in view of the adoption of a certain act. The working groups’ number changes by time. At the beginning of 2015 more than 150 groups were established. The Italian participation in the working groups is entrusted to members of the Permanent Representation, often assisted by capital-based colleagues. Approximately 60 functionaries and “experts” belonging to more than 20 national and regional administrations serve at the moment in the Permanent Representation. The question regarding matters is firstly passed through the specific working group and its staff (diplomats and technincal experts), then to either COREPER I or II and then ministers, these passage happens only if the could not be a solution at grou level. EUROPEAN COUNCIL  Current president Charles Michel The European Council is now the summit conference of heads of state or government of the EU Member States. The first of these ‘European summits’ took place in Paris in 1961 and they have become more frequent since 1969.In the Paris European summit of February 1974, it was decided that these meetings of heads of state or government should henceforth be held on a regular basis under the name of ‘European Council’, which would be able to adopt a general approach to the problems of European integration and ensure that EU activities were properly coordinated. The Single European Act (1986) included the European Council in the body of the Community Treaties for the first time, defining its composition and providing for biannual meetings. The Treaty of Maastricht (1992) formalised its role in the EU’s institutional process. The Treaty of Lisbon (formally known as the Treaty on European Union, 2009) made the European Council a full institution of the EU (Article 13) and defined its tasks, which are to ‘provide the Union with the necessary impetus for its development and define the general political directions and priorities thereof’ (Article 15). The European Council and the Council of the European Union (hereinafter ‘the Council’) have agreed to share section II of the EU budget (Article 43(b) of the Financial Regulation), which is why the general budget only has 10 sections and not 11, although the European Council and the Council are separate institutions. The council, from 1974, met only once per semester, later on it became twice per semester; in some special conditions there are extra-ordinary meetings. The council is composed of: heads of governments/states, the president and vice president of the commission (high representative) and the president of the EU who is a citizen of the member states who will represent the EU externally. Convened by its president, the European Council brings together the heads of state or government of the 27 Member States and the President of the Commission (Article 15(2) TEU). The High Representative of the Union for Foreign Affairs and Security Policy takes part in its work. The President of the European Parliament is usually invited to speak at the beginning of the meeting (Article 235(2) of the Treaty on he Functioning of the European Union (TFEU)). The president is elected by the European Council itself for a two-and-a-half-year term that may be renewed once and represents the EU to the outside world. introduced several new bridging clauses enabling the European Council to change the decision-making formula in the Council from unanimity to majority voting Competences of the EU council:  Steering:  Defines the general political guidelines  In the CFSP identifies the EU strategic interests  Reconciling:  Looks f consensus when a maìember if the council opposes a measure for vital reasons of national policy or a cease it implies fundamental changes to the state’s financial or social security’s team  Consittuent:  Partecipates in the revisions of treaties  Proposes the president of the commission HR and ECB executive board  Plays a role in the administration and withdrawal procedures Operations:  Normally, decisions by consensus  When provided for by treaties, unanimity or qualified majority. EUROPEAN PARLIAMENT  Current president: Roberta Metsola The origins of the European Parliament lie in the Common Assembly of the European Coal and Steel Community (ECSC), which became the common assembly of the three supranational European communities that existed at the time. The assembly subsequently acquired the name ‘European Parliament’. Over time, the institution, whose members have been directly elected since 1979, has undergone profound changes: evolving from an assembly with appointed members to an elected parliament that is recognised as a political agenda-setter of the European Union. Before 1979 the powers of this institutions were equal to none and the member were not directly elected, governments pushed for the integration of the EU community. The importance of Parliament started for the political election of 1979, the degree of legitimacy increased extremely as before ’79 the members were chosen from national parliament and selected through a second degree system; the democratic element increased. Art. 14.1 TEU: “The EU parliament shall jointly with the council of the EU, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation. It shall elect the resident of the commission.” Through the treaties other institutions pushed and increased powers of the parliament which are currently in charge of legislation and directive applicable in the union. In the ‘50s the power of the council wa the power of decision, legislative an budgetary as present in the treaty; at the time te word deciding was very abstract and general as the use of legislative would resemble the competences of states which was not an appropriate image for the society in the ’50. They introduced the co-decision porcedure: the proposòa comes form the commission, goes through council and then parliament which both ave to agree and therefor amend and have a discussion over these proosals as the decision s of thee institutions are both binding at sìame level. 5/03/2024 Before the introduction of direct elections, Members of the European Parliament (MEPs) were appointed by each of the Member States’ national parliaments. All MEPs thus had a dual mandate. Each member of the parliament when elected joins a political party, there are diagrams showing the number of representatives for each country in each party. The members represent a certain quantity of citizens. The age range of the mebers goes form 21 to 90, there has also been an increment on the participation of women in the parliament. The 705 MEPs are elected under national electoral systems, but these have to observe certain common principles established in EU law, notably proportional representation (PR). Under PR, voters may choose between political parties, individual candidates or both. Whilst in some Member States, voters can only vote for a list, with no possibility of changing the order of candidates (closed list), in others, voters can express their preference for one or more of the candidates (preferential voting). Instead of a list system, some Member States use the single transferable vote (STV) method of PR. The map to the right shows the number of seats in each Member State (from February 2020) as well as the electoral system used in the 2019 European elections. The parliament is divided in commission occupied with different fields of expertise. After the 70’s there was a push towards the powers of the Parliament. Today, the Parliament and the Council share their position in the field of adopting legislative and budgetary functions. In the 50’s, the power of the Council was the “power to decide”, completely in the hands of ministers. From 1979 onwards there was the growth of the Parliament, and eventually the co-legislative procedure was enacted. In this procedure, the Council only asks the Parliament for a non- binding opinion. Since the Parliament was acquiring powers, this opinion became more and more important. Elections. The general rules for the composition of the European Parliament are laid down in Article 14(2) TEU, which stipulates that the European Council shall adopt by unanimity, on the initiative of Parliament and with its consent, a decision establishing composition.It also states that Parliament is to be composed of no more than 751 representatives of the EU’s citizens (750 Members plus the President). In addition, the representation of citizens is ‘degressively proportional’, with a minimum threshold of six members per Member State. No Member State can have more than 96 seats. The concept of degressive proportionality means that although the total number of seats is allocated on the basis of Member State population size, more populous Member States agree to be under-represented in order to favour a greater representation of less populous Member States: the larger the country, the smaller the number of seats relative to its population. This concept has been further defined in the successive European Council decisions taken under Article 14(2) TEU since the entry into force of the Treaty of Lisbon. The rules concerning the election of the MEP are at national level. The way in which the member states elect their MEP should follow some common principles, for example the principle of proportional representation, in order to make all political ideas represented (high degree of representation). Under proportional representation, voters may choose between political parties, individual candidates or both. Whilst in some Member States, voters can only vote for a list, with no possibility of changing the order of candidates (closed list), in others, voters can express their preference for one or more of the candidates (preferential voting). Instead of a list system, some Member States use the single transferable vote (STV) method of proportional representation. The parliament is composed by cardinal elects and figures: The president: Under the Rules of Procedure, the President of Parliament is elected from among its Members for a renewable term of two and a half years (Rule 19). The President represents Parliament vis-à-vis the outside world and in its relations with the other EU institutions. The President oversees the debates in plenary and ensures that Parliament’s Rules of Procedure are adhered to. At the beginning of every European Council meeting, the President of the European Parliament sets out Parliament’s point of view and its concerns as regards the items on the agenda and other subjects. The plenary: The plenary is the European Parliament sensu stricto and its sittings are chaired by the President. The places assigned to Members in the Chamber are decided by political affiliation, from left to right, by agreement with the group Chairs. The President opens the sitting, sometimes with a tribute or a speech on a topical issue. The President is assisted in this task by the 14 Vice-Presidents, who may take over the Chair. The Commission and the Council of the European Union take part in the sittings in order to facilitate cooperation between the institutions in the decision-making process. Political bodies: COURT OF JUSTICE The Court thus constitutes the judicial authority of the European Union and, in cooperation with the courts and tribunals of the Member States, it ensures the uniform application and interpretation of EU law. The Court of Justice of the European Union, which has its seat in Luxembourg, consists of two courts: ▸ the Court of Justice ▸ the General Court (created in 1988) ▸ The Civil Service Tribunal, established in 2004, ceased to operate on 1 September 2016 after its jurisdiction was transferred to the General Co The ECJ was originally one of the main institutions of the EU, and it started to operate in the late 50’s (only the Court of Justice). It was only through the Single European Act that another body, the Court of First Instance, was created. Most of the ECJ cases were highly technical. The Commission started to adopt acts in the field of competition, and lawyers started to defend the interests of companies. Therefore, there were many cases concerning competition law, very technical and complicated cases. In the 80’s, due to the need of support in those cases, the Court of First Instance was created. In all cases in which a company or a private individual is involved, the case can be appealed to the ECJ. In all other cases, the jurisdiction is of the General Court.  Appointment: To be applied for a job there, there is a selection at both national and European level. In the past, the governments proposed their candidates. Today, there is a selection committee that checks how competent is the person designated through an interview, and may give a negative opinion. With the last enlargement of the EU, there was the need to check the competences and potential national influence of the candidates, especially the ones from new countries (ex. new countries might not have the same legal education). The Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who ar ejurisconsults of recognised competence. They shall be appointed by common accord of the governments of the Member States for a term of six years, after consultation of the panel provided for in Article 255. Every three years there shall be a partial replacement of the Judges and Advocates-General, in accordance with the conditions laid down in the Statute of the Court of Justice of the European Union.  Composition CJEU: The court is present in special cases, described in the statues of the court of justice (protocol attached to the treaty and has the same legal value of the latter). Chambers composed by 3 to 5 judges. The ECJ is composed of 13 judges. Cases that are very sensitive and important are going to be examined by all 13 judges. In all other cases, the usual formation is of 5 judges, sometimes 3.  Composition of the general court: The General Court is composed of 54 members. The number of the judges was doubled in the last years because the pending cases were too many. The result is that now the Court is super-fast in deciding cases, because judges are too many. There are 11Advocates Generals, part of the ECJ, that participate to procedures before the ECJ (the General Court doesn’t have Advocates Generals, but they could be introduced in the system). Advocates Generals are judges that judge but do not decide. They aren’t going to participate in the final decision, but they are going to give a certain opinion about the case (due to the fact that there are no contrary or concurring opinions in this system – difference with the national level). The opinion of the Advocate General introduces some “fresh air” in the system. No other opinion can influence the Advocate General, that will provide his personal opinion on the case. On the other side, the judgement of the Court is the judgement of the whole Court, without specification on which judge thought what. Decisions are taken by majority vote, and the vote of the president is the most important. The members of the General Court shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office. They shall be appointed by common accord of the governments of the Member States for a term of six years, after consultation of the panel provided for in Article 255. The membership shall be partially renewed every three years. Retiring members shall be eligible for reappointment. The Judges shall elect the President of the General Court from among their number for a term of three years. He may be re-elected. The General Court shall appoint its Registrar and lay down the rules governing his service. The General Court shall establish its Rules of Procedure in agreement with the Court of Justice. Those Rules shall require the approval of the Council. Unless the Statute of the Court of Justice of the European Union provides otherwise, the provisions of the Treaties relating to the Court of Justice shall apply to the General Court. Roles of the CJEU: It shall ensure that in the interpretation and application of the Treaties the law is observed. (art. 19 TEU) 1. reviewing the legality of the acts of the institutions of the European Union 2. ensuring that the Member States comply with obligations under the Treaties, and 3. interpreting European Union law at the request of the national courts and tribunals. Fields of jurisdiction:  Preliminary ruling procedure: preliminary rulings that any European citizen can seek clarification of the European Union rules which affect him. Although such a reference can be made only by a national court, all the parties to the proceedings before that court, the Member States and the institutions of the European Union may take part in the proceedings before the Court of Justice. In that way, several important principles of EU law have been laid down by preliminary rulings, sometimes in reply to questions referred  by national courts of first instance. to ensure the effective and uniform application of EU law, national courts may (and sometimes must) refer to the ECJ. The ECJ’s reply takes the form of a judgement. The case is indirect as it starts at national level before a national jurisdiction, the national court would stop the case and send a notice directly to the CJEU. When the case is examined by an inferior court the judge may send the case to an higher court otherwise they can keep to adjudicate it. Where there are no possible judicial remedies to be exhausted the judge must send the case to the court of justice, if they don’t that is a violation of EU law. The court of justice has the power to determine the requisites for a tribunal and there are different criteria at national level. E.g: a company “traghetti del mediterraneo” was in competition with many companies included the partly state controlled company “tirrenia”, the former company started a trial for bankruptcy due to fail on competition with tirreni, the company after arriving to the court of cassation asked to appeal the case to the CJEU as Italy violated the EU regulations on subsides; the court of cassation refused to send the case to the CJ and therefore violated EU law. After the failed case lawyers asked to send the case back to the CJEU on grounds on violation of EU law and also demanded compensation of damages. The court of cassation was held responsible for lack of respect of the duty of responsibility in regard to the case. Italy changed the law regarding accountability of judges, which were held accountable and had to repaid damages to the early hurt. Direct applicability:on focuses on regulation as it is concerned with whether an EU law needs a national parliament to enact legislation to make it law in a member state. EU treaties and regulations are directly applicable, they do not need any other acts of national parliament to make laws. Therefore, once a treaty is signed or a regulation is passed in Brussels by the Council of Ministers, it instantly becomes applicable in all member states. EU directives are not directly applicable. Directives, in essence, tell member states to do something, so when passed they need a piece of legislation to make them into national law. From a techinacal and legal prespective a regulation regarding back accounts by terrorists in EU country, the issue is to understand the level and necessity of effort for researching these accounts which are different form one another. There is a need of time of application. Implementation: application and enactment of regulation and laws applicable directly in member states. Directives Art.288: a directive shall be binding as to a 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. Through regulation the result got is uniformity, through directives a range of possibility. Left to member state who can decide how to transpose a directive at national level. A directive is a mean of harmonisation to achieve certain results with the intermediation of member states; the latter use national legal instruments to transpose it at their discretion. Directives have to be applied according to a deadline Gove to the state which has to transpose it and all its articles. The methods used to transpose the directives should be communicated to the commission, this includes both either if they did or didn’t transpose it and the legal instruments used. The commission has a sensor to check this. The lack of transposition odd directives provokes the commission into asking the CJ to impose a penalty payment to states which lacked of transposition. The CJ has acted on violating states many times, the punishment was more of political and ethical character. In all cases the directives needs to be transposed regardless the independent and freedom given to the state in doing so. This scheme is a patch work as it is not coherent as a legal order, the way and legal means must be compliant with EU law. That is why is necessary to communicate , to prevent a strong incoherence. If a state doesn’t transpose the directive all rights descending from it won’t be enforceable and protect other individuals; the lack of transposition is dangerous. The CJ invented remedies for neglect of directives, as there is an imbalance between those who implemented and those who didn’t. Due to the transposition of certain rules one may have certain rights which lack as the transposition didn’t happen , the CJ declared that individuals can use and appeal to the rights and law in the directives even when they weren’t transposed: this is called direct effect of directives. This helps to force states to transpose directives. The direct effect is produced by clear norms present in directives which were either not applied or mis applied. Direct effect can be used only in cases regard member states and individuals. Decisions Art.288: decision shall be binding in their entirety A decision which specifies those to whom it is addressed shall be binding only in them. They can either be specific for certain states or companies; they can be general as they are taken in field of competences of the EU aligned with the use of regulations. E.g: common foreign security policy, the EU can impose decision followed by specific regulations. Recommendations and opinions Art.288: shall not have binding force. There are acts in which behaviours and sorts are recommended, but they cannot be appealed to in front of the CJ. In 2019 parliament and council adopted a regulation conferring the power of adoption recommendations of the commission, if the former refuse to accept the recommendations they will have to give a justification. This way of doing has always existed, nowadays there is a clear distinction between legislative and non-legislative; distinguished on the basis of procedures. 12/03/2024 Art 263 TFEU: The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives. Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. 3 groups of request coming form 3 different groups: 1. Member state, EU parliament, commission and council (of the EU on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. 2. Court of auditors, European Central Bank and the committee of the regions: to protect prerogative, meaning to check the correct respect of competences. 3. Group of legal persons: if I hev a fine targeting a certain persons, they will go in fornt of the general court; the act is direclty on them. “Direct and individual concern to them”, a critical point for many years and still is. Through a proceeding in general court what happens is the request of delimitation of an act directed to a specific person. Within the act there should be certain features distinguishing the individuated subject form others . Direct individual concern Individual concern is a condition of standing for non-privileged applicants in an application of annulment and requires that the applicants can be distinguished from other persons. Individual concern constitutes a condition, together with direct concern, in order for non- privileged applicants (natural and legal persons) to be able to seek judicial review before the CJEU of acts which are not addressed to them. The Lisbon Treaty, however, introduces an important exception for regulatory acts which do not entail implementing measures; individual concern does not constitute a condition for an annulment action of such acts. E.g: Plaumann & Co imported clementines. The German authorities wished to suspend custom duties on imports, but the European Commission refused permission. Mr Plaumann sought judicial review of the Commission decision. The Court of Justice held that Plaumann & Co had no standing for judicial review of the Commission decision because the firm was not "individually concerned". The case PLAUMANN, importer of clementines, at some point there was a regulation on agriculture on the import-export of clementines; so they went before the general court (tribunal of first instance) and asked for the annulment of the regulation. The court refused, even though it was directly applicable but isn't individual. Within the act there should be some elements that would distinguish the specific company from the others. 50s: there wasn't distinction between legislative and non acts, they were scared about a massive use of the acts and so that everyone would go before the COJ and ask for an annulment — so they tried to separate the condition on which the annulment could be asked, there are new elements. Any individual couldn't ask for the annulment due to the fact that the regulation is general and not specific. In the 50’s there was no distinction between legislative and administrative acts. This distinction is not necessarly either general or specific because of he possibility to have an administrative character. Some have legislative characteristics in their content others may have be legislative but have an administrative form ad they are implemented by the commission. The Governing Council of the ECB comprises the members of the ECB Executive Board and the Governors of the national central banks of euro area Member States. It formulates monetary policy and establishes the necessary guidelines for its implementation. The Governing Council adopts the Rules of Procedure of the ECB, exercises advisory functions and decides how the ESCB is to be represented in international cooperation. The Governing Council may also delegate certain powers to the Executive Board. The Governing Council usually meets twice a month and has a monthly rotating system of voting rights. The Governors from the countries ranked first to fifth according to the size of their economies and their financial sectors share four voting rights. The 15 remaining countries share 11 voting rights. In addition to the national central bank Governors, the ECB’s Executive Board members hold permanent voting rights.  General Council The General Council is the third decision-making body of the ECB, but only as long as there are Member States that have not yet adopted the euro. It consists of the President and Vice- President of the ECB and the Governors of the national central banks of all the Member States. Other Executive Board members may participate in meetings of the General Council, but do not have voting rights. Its existence is depended on the one on countries which have to yet adopt euro.  Objectives and tasks According to Article 127(1) TFEU, the primary objective of the ESCB is to maintain price stability. Without prejudice to this, the ESCB also supports the Union’s general economic policies in order to help achieve the Union’s objectives, which are outlined in Article 3 TEU. The ESCB acts in accordance with the principle of an open market economy with free competition and in compliance with the principles set out in Article 119 TFEU. The basic tasks carried out through the ESCB are: defining and implementing the Union’s monetary policy; conducting foreign exchange operations consistent with the provisions of Article 219 TFEU; holding and managing the official foreign reserves of the Member States; and promoting the smooth operation of payment systems. The EU central bank has a strong connection with other central world bank, especially after the beginning of the Ukrainian war there is a strong connection within the G7 countries.  Powers and instruments The ECB has the exclusive right to authorise the issue of euro banknotes. Membe States may issue euro coins subject to the ECB’s approval of the volume of the issue (Article 128 TFEU). The ECB passes regulations and takes decisions necessary for carrying out the tasks entrusted to the ESCB under the Treaty and the ECB Statute. It also makes recommendations and delivers opinions (Article 132 TFEU). The ECB must be consulted on any proposed EU act in its fields of competence, and by national authorities on any draft legislative provision in its fields of competence (Article 127(4) TFEU). It may submit opinions about the issues on which it is consulted. The ECB is also consulted on decisions establishing common positions and on measures relating to unified representation of the euro area in international financial institutions (Article 138 TFEU). Assisted by the national central banks, the ECB collects the necessary statistical information either from the competent national authorities of directly from economic agents (Article 5 of the ECB Statute). The ECB Statute lists various instruments that the ECB may use in order to fulfil its monetary functions. The ECB and the national central banks can open accounts for credit institutions, public entities and other market participants, and accept assets as collateral. It can conduct open market and credit operations and require minimum reserves. The Governing Council may also decide on other instruments of monetary control by a two-thirds majority. However, Article 123 TFEU prohibits financing monetary financing, and sets limits on the use of monetary policy instruments. To ensure efficient and sound clearing and payment systems, the ECB may provide infrastructure and establish oversight policies. The ECB may also establish relations with central banks and financial institutions in other countries and with international organisations.  Supervisory functions Since November 2014, the ECB has been responsible for the supervision of all credit institutions in the Member States participating in the SSM, either directly for the largest banks, or indirectly for other credit institutions. It cooperates closely in this function with the other entities in the European System of Financial Supervision. The SSM is made up of the ECB and the national competent authorities of the euro area Member States. The competent authorities of non-euro area Member States may participate in the SSM. The ECB directly supervises the largest banks, while the national supervisors continue to monitor the remaining banks. The ECB is responsible for the supervision of all credit institutions in the MS participating in the SSM (created after 2011-2012), elther directly for the largest banks, or indirectly for other credit institutions. It cooperates closely in this function with the ither entities in the European System of Financial Supervision. The SSM is made up of the ECB and the national competent authorities of the euro area Member States. The competent authorities of non-euro area Member States may participate in the SSM. The ECB directly supervises the largest banks, while the national supervisors continue to monitor the remaining banks. As a banking supervisor, the ECB's tasks include granting and withdrawing authorisation for credit institutions, ensuring compliance with prudential requirements, conducting supervisory reviews and participating in supplementary supervision of financial conglomerates. It is also tasked with addressing systemic and macro-prudential risk. European investment bank It is an organ through which the EU can found sand aid some parts of the EU, it ensures certain and specific areas of development regarding the union any its many aspects. Committee of regions The Committee of the Regions is made up of 329 members representing the regional and local authorities of the 27 Member States of the European Union. It issues opinions sought on the basis of mandatory (as required by the Treaties) and voluntary consultation and, where appropriate, own-initiative opinions. Its members are not bound by any mandatory instructions. They are independent in the performance oftheir duties, in the European Union’s general interest. Members are appointed for five years by the Council acting unanimously on proposals made by the Member State concerned (Article 305 TFEU). Important in the flow of adoption f legislation, in the procedure, when needed (legal basis informs so). The intervention regard the action taken or concerning a region. The committee represents regional parts of member states. The European Committee of the Regions (CoR) is an EU advisory body composed of locally and regionally elected representatives coming from all 27 Member States. Through the CoR they are able to share their opinion on EU legislation that directly impacts regions and cities. The European economic and social commitee The European Economic and Social Committee (EESC) is a consultative body of the European Union, based in Brussels. It is composed of 329 members. Its opinions are required on the basis of a mandatory consultation in the fields established by the Treaties or a voluntary consultation by the Commission, the Council, or Parliament. It may also issue opinions on its own initiative. Its members are not bound by any instructions. They are to be completely independent in the performance of their duties, in the EU’s general interest social committee. It is composed by 329 members, appointed by te council by qualified majority on the basis of proposal of member states that have to ensure that the. Targeted activity are adequalitly represented. The members of the committee are nominated by national governments and appointed by the Council for a renewable five-year term of office (Article 302 TFEU). They are drawn from economic and social interest groups in Europe. They belong to one of three groups:  Employers (Group I)  Workers (Group II)  Diversity Europe (Group III). The members must be completely independent in the performance of their duties, in the general interest of the EU (Article 300(4) TFEU). Every time a member’s or alternate member’s seat on the EESC becomes vacant following the end of their term of office, a separate Council decision is needed to replace that member. SANCTIONS There are different level of sanctions to understand the coordination between the security council and the UN. It is possible to distinguish interactions between EU and states Two kinds: 1. Consequence from UN : under chapter 7 of the charter it is explicitly stated that in specific situations sanctions are necessary. These situation regard human rights, weapons o mass destruction and terrorism. In this filed there are decision taken by the security council , composed of 15 members including 5 main states (Russia, USA, china, France, uk) who can exercise veto power in decision making in regard to measures and sanctions. The decisions of the security council gives impulses to the state for indication>; sanctions are mainly coercion constraining and signalling. Global or comprehensive sanctions (affect everybody). The sanction committee is composed as the security council (diplomats and intelligence), within the committee they individuate the individuals/insotutions/ organisation to target and sanctions. Regardless the fact that the list is made at international level sanctions are applied at national level. Article 41 of the United Nations Charter gives the Security Council the authority to use a variety of measures to enforce its decisions. The Council regularly creates subsidiary organs to support or implement these measures. Among the most common are those measures that are known as "sanctions", which are generally supported by a Committee, as well as Panels/Groups of Experts or other mechanisms to monitor implementation of the sanctions. The EU was an interface between UN and member states every time a new individual was added regulations needed to be modified. AL -QUAEDA Before 1991, the security council adopted a global sanctions (or comprehensive), that affected everybody. There was a decision of the security council that gives an input to the states. But states questioning the acidity of this type of sanction, that seemed to gave negative effects and to create more problems. This question happened especially after 1998 year in which there were two important terrorist attacks against the US embassies of Kenya and Tanzania (1998 United States embassy bombings). The main responsibility of those acts was of the terrorist group called al-Qaeda, whose leader was Osama bin Laden (1988-2011). In response to the bombings, President Bill Clinton ordered Operation Infinite Reach, a series of missile strikes on targets in Sudan and Afghanistan. In this situation, instead of adopting global sanctions the Security Council adopted Resolution 1226 (1999) and started using targeted sanctions. Targeted sanctions are intended to be directed at individuals, companies and organizations, or restrict trade with key commodities. They started targeting Talibans and imposing individual sanctions against them. Once a name is on the targeted sanctions list, all the states shall stop the assets of the person and impose a travel ban (Sanction Committee: diplomats + intelligence members –EU acts as an interface UN – EU member states). In 2000 there was an attack in Yemen (USS Cole bombing) against USS Cole, a guided missile destroyer of the US Navy. After this and other attacks, bin Laden thought he was ready to prepare an attack directly in the US. Therefore, there was 9/11. After that, many people from al-Qaeda were inserted in the list. But the reaction was more than mere sanctions. There was the invasion of Afghanistan and the activation of Article 5 of the Charter of the United Nations. Another example of application of targeted sanctions are the sanctions imposed against Iran in the field of control over weapons of mass destruction, to the point that Iran decided to negotiate. The JCPOA Treaty, the consequence of those negotiations, was partially working, but something changed. In 2003 the US invaded Iraq under the official justification of presence of weapons of mass destruction. The forces of the IS (Islamic State, also called ISIL, ISIS, Daesh, Taliban regime controlling Iraq at the time) were allied to al-Qaeda and participated to the Iraqi insurgency against the American occupation. After a protracted and intense conflict with American, Iraqi and Kurdish forces, IS lost control over its Middle Eastern territories by 2019 and reversed to insurgency tactics and propaganda efforts. In 2014 a massive number of people from Europe started joining the Islamic State, and we started to have terrorist attacks in Europe. The Security Council acted again with unanimity, adopting a resolution against foreign terrorist fighters (2015). In May 2015, Trump decided to withdraw from the JCPOA Treaty. Sanctions can be adopted also at national level from state to state. Those can be contrary to international law, in other cases simply non-friendly measures. 19/03/2024 RUSSIAN-URAINIAN WAR Between 2014 and 2022 sanctions were mostly autonomous sanctions, coordinated by the US and the EU, since the UN was in full block. Example: sanctions for the Janukovyc regime in 2014. The public prosecutor of Kiev stated that such sanctions were based on unlawful grounds. A big amount of those sanctions were annulled by the General Court. When Crimea was invaded, the first sanctions were about possible investments in that part of the territory, imports and exports. But things that were sent to Russia were then sent to Crimea. Russia was brought to tribunal. Massive sanctions were applied to companies dealing with energy and military equipment. Between 2014 and 2022 Russia did a few things, such as de-dollarize their economy– because a classic technique used by the US is to impose their jurisdiction on countries who possess dollars – and restructure their economy. At the end of 2021, sanctions were hitting in a certain way, but weren’t effective if compared to the whole situation. In February 2022, there was a clear intervention of Russia in Ukraine, with a declaration of support of the independence of Luhansk and Donetsk. NATO started sanctioning, and those sanctions were negotiated under the G7. The level of reaction was quite impressive after the war. Russia’s operation was structured in a way so to cut immediately the Ukrainian leader, based on the wrong assumption that the Ukrainian population would support the invasion. Russia lost 80% of their special forces since, and most of the Russian soldiers didn’t have any idea of the operation they were doing. The first sanction applied was assets freeze + travel bans, then economic sanctions, restriction of media, diplomatic and visa measures. Some of the people who were listed weren’t even so close to Putin, but in this kind of situations you take everything. All those sanctions are autonomous, negotiated in the G7 (Switzerland participated this time), and were a signal. The listed persons with an assets freeze were 200 between 2014 and 2022, then around 2000 (importance of the problem of transfers, fake names etc., the level of control Sanctions useful for interconnection of the legal order. Ban on imports and exports, there are many connection within countries. These sanctions weren’t directly hitting the population, although the lack of import/export etc. deprived Russian economy. The problem of global sanctions is that they enhance the regime. The most problematic sanctions were the ones in finance. The Russian Central Bank accumulated between 2014 and 2022 630 billions, mostly outside of the country. All those assets were frozen (approximately 300 billions). All the most important Russian banks were removed from the SWIFT mechanism (SWIFT is a way to confirm that a transaction has happened). Since Russia expected this, they created their parallel system of communication between their banks and the major banks in some Asian and East-Asian countries. Many of the financial sanctions, such as restrictions on Russia’s access to the EU’s capital and financial markets, weren’t proper sanctions, but choices. Russia, again, expected (if you start a war, your economy switches to production mode, with a huge amount of money spent by the state). From a financial and economic way, Russia is resilient, and is still resisting. Between 2014 and 2022, for example, Russia had a very little public debt. States grow based on two elements: population and economy. Russia continued to lose people every year for the past 20 years (between half million and one million per year). But in the Adams case; Stanley George Adams v. Commission of the European Communities, C- 145/83 (7 November 1985). The Commission of the EEC started to receive in Brussels some documents from a “whistleblower”, proving that there was an agreement between different companies in and outside EU to fix prices and distort competition. Adams was a senior executive with the Swiss pharmaceutical company Hoffmann-LaRoche when in 1973 he discovered documents which indicated that the company was involved in price-fixing to artificially inflate the price of vitamins. He passed on the documents to the Competition Commission of the European Economic Community, aware that Switzerland, while not part of the EEC, had a free trade agreement with it. The EEC failed to keep his name confidential during its investigation, passing documents containing Adams' name to Hoffman-La Roche. Adams was arrested and charged with industrial espionage and theft. Adams' wife was told that he faced a 20-year jail term for industrial espionage. She committed suicide. In the end, Adams served six months in a Swiss prison. The Commission failed in protecting Adams. Any kind of public power may intentionally or unintentionally violate certain kinds of rules. In the treaties there was a complete lack of definition of human rights, because they mainly focused on establishing a common market The role of the ECJ. The first test regarding human rights in Europe came on 1958, when the ECJ had to decide whether to judge Community provisions as being binded by constitutionally protected human rights of the member states. That was the case in Stork, 15 when Community legislation was attacked on the ground of breaching German fundamental rights. Responding to this issue the Court had two ways to react. To accept that claim known as mortgage theory16 and thus be directly bound by fundamental rights of all constitutions of member states or to reject it. In Stork, the ECJ chose the latter option, denying any direct link between EU law and member states’ constitutionally protected fundamental rights. It was not possible for a long time to deny protection of individuals in the field of human rights on the ground of EU law, because individuals could initiate proceeding in domestic courts on the ground for breaching their constitutionally guaranteed rights. That could lead to catastrophe, if national courts would find EU law invalid. The ECJ had no choice but to respond positively to the expectations and pressures of domestic courts (in particular the Italian and the German one) dealing with creation of adequate level of protection of human rights in EU law (principle of counter-limits). Otherwise than in Stork, in the Stauder case of 1969, 17 the ECJ acknowledged for the first time that human rights were protected as general principles of law (last paragraph, just before the stating of the judgement). But what is the meaning of “general principles”? There are a number of unwritten rules in the treaties, general principles of law. The problem was to understand the content of those general principles. In the Internationale case of 1970, 18 the ECJ stated that another source of inspiration were the international treaties ratified by the member states. The ECJ acknowledged its role as a guardian of fundamental rights in European Union legal order, which constitute part of general principles of the EU legal system. “Fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures, which are incompatible with fundamental rights recognized and protected by the constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines, which should be followed within the framework of law. In the Nold case of 1973, 19 the ECJ stated that sources of inspiration to understand which those principles are is found in common constitutional traditions. The Court found constitutional rights of member states as indirect but inspiring source of law, and accentuated, for the first time significance of international treaties for the protection of fundamental rights. In Europe there is one particularly important international document dedicated to the protection of human rights: European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1949). The ECJ although never recognized the Convention as a direct source of fundamental rights (confirmation in Schmidberger case). Between 1969 with the Stauder case and 1975 with the Rutili case, the ECJ created a judicial system of protection of human rights.. Within the council of Europe there was the elaboration of the Charter of human rights; the EU institution adopted the treaty as it was ratified by member states in the basis of cmon constitutional characteristics. The CJEU then built a system of protection of fundamental rights, outside treaties. The sources of inspiration are common constitutional principles and international treaties in regard to human rights. In 1977 there was a joint statement of the European Parliament + Council + Commission stating that the ECHR established general principles that had to be inspired by the common constitutional ground of the member states. From a legitimacy point of view, the system was very solid. The first time they clearly stated something in a treaty /act regarding human rights was in the preamble of the Single European Act (Article F). The European Convention of Human Rights was elaborated within the Council of Europe. Any member state of the EU is now required to be a member of this Convention. If there is a violation of this Convention, the case goes before the ECtHR. If you want to go before the ECtHR, you need to try all possible steps at national level, and there has to be a system failure that makes the ECtHR the only possibility. Example: Podchasov v. Russia. Anton Valeryevich Podchasov v. Russia, Application No: 33696/19. Mr. Podchasov is a user of Telegram. On 28 June 2017 the Telegram was listed as an “Internet communications organizer” (ICO) in a special public register. This entailed an obligation for Telegram to store all communications data for a duration of one year and the contents of all communications for a duration of six months, and to submit those data to law-enforcement authorities or security services in circumstances specified by law, together with information necessary to decrypt electronic messages if they were encrypted. This was done in order to decrypt the communications of six users that were suspected of terrorism-related activities. Telegram refused and the Taganskiy District Court of Moscow ordered the blocking of the application in Russia. Podchasov and 34 other persons challenged the disclosure order before a court arguing that it breached their right to respect for their private life and for the privacy of their communications. The case then went to the ECtHR. In December of 2000, it was proclaimed the European Charter of Fundamental Rights. It was a playlist of the best-of protection of human rights, but it wasn’t binding. A document like this, even if not binding, was used by constitutional courts and other entities. When in 2003-2004 the text of the Constitutional Treaty, it was asked to the governments if they wanted the text of the Charter to be binding and part of the European Convention of Human Rights. They replied yes to both, making the Charter binding and providing a legal basis for it to be considered part of the Convention. Article 6, TEU. 1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. The result of case law is because of the pressure of conditional court at national level; this pressure generated the idea of counter-limits. 1975 the EU parliament and the council released a joint statement which said that the ECHR established general principles that had to be inspired by common constitutional ground. From a legitimate point of view the system was very solid. The first mention of human right was in the preamble of the SEA. Within the council of Europe the ECHR was elaborated, all member states are member of this convention and nowadays is a requirement; If a violation occurs the case is judged by the ECtHR. The EU can only access to the ECHR as union with a solid legal basis. In 1996 the ECJ stated that the was n legal basis tho access therefore in December 2000 the EU proclaimed the  Own competences  Institutions and instruments  Decision making procedures  Direct effect both vertical and horizontal It is implied that in the relationship of the MS and EU, due to the principle of loyal cooperation thee is mutual trust between MS and institutions. The trust is on the position defined as better in the legislation and more democratic result. Trust exists between MS themselves, a at one point, especially in regard to the internal market, there is an approach in which the MS are required to trust each their their standards and protection as there is an assumption of almost if not at all equal protection of rights and objects. Direct effect  Vertical: possibility to use provided by the EU in front of their own domestic judges There are 3 requirements: 1. Clear : no space for interpretation 2. Precise : to be precise and available for recepient of the law by the interested part; the treatment has to be done with precision. 3. Unconditional : conditional upon the establishment of something else which decide whether to give citizens this treatment. In politics and action the EU decides without unanimity but qualified majority which allows to create a creature that lives on itself a self standing organ as it speaks to a specific form of cooperation based on trust even with lack of agreement from other parties. The masters of treaties are member states and therefore if they want to change their views they can as they re much more politically integrated although it is hard. Regards the lack of the tree pillars the structure still exist through the Lisbon treaty. The transformation of justice and home affair and foreign security policies, based on intergovernmental cooperation, were integrated into the first therefore in a supranational model; some competences still maintain a not pure form of pillar but are dealing with common security policies. 9/04/2024  EXERCISE COUNCIL DECSON OF PARTICIPATION OF THE EU + C-263/14 The declination of integration in legislative source is harmonisation, other is an elimination of obstacles and differences so that a certain standard an approach is the same. This is multa trust and collaboration. Reciprocity: in the area of international law this is the tule as the trust between states is not strong as they may be in conflict. It is a system of relationship that is looser and less integrated, reciprocity I the rule; behaviour is not due to trust but due to consequences. Reciprocity works in cases of responses, if state A breach contract B can d the same within that contract or others and that is considered valid. Filter of national states (intergovernmental): at international level the sanctions are not as strong and ignore written forms. At the level f the EU the implementation of EU legislation is much more enforced. There are different levels of legislation; international organisation which has a resolution binding to member states which have the obligation to implement the resolution and enact it; the consequences are much weaker then breaching EU law. In cases in which this happens with an EU the state acts independently from the EU but have to take into consideration the transposition of te resolution which at the same time is under the area of common foreign security policies. Common foreign security policies ha to do with reciprocity and political decision o the member states (unanimity) and therefore resembles the international model; states want to maintain powers in these types of areas and their political control. It is part of the treaties, mainly described in Title V of the TEU: art.24 states that” The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.” E.g: Kadi case, acceptance of area of intervention of the judiciary of the EU in regard to international blacklisting and more generally restrictive measures with EU intervention and scrutiny. The security council resolution (UN), adopted after 9/11 that changed international law, a moment in which the rules and frame of international law had to be changed and adapted. At the time thee was an activation of the SC for listing terrorists for cooperation in the annex to the resolution, and mister Kadi was one of them; he had assets in Sweden which were then frozen. Form an EU perspective these actions are capture under common foreign security policies under Sweden, the country was independently part of the UN but its position could take into consideration the EU membership. The assets meant an obligation to do something from the point of view of the Eu law as these measures were involving an EU state, meant that in doing so the EU adopted a council decision and position along with an opinion of the council of ministers; the EU captured this kind of resolution integrating it as an non- legislative act in common foreign security policy in the hands of the council and therefore member states. Sweden in the light of national legal system what was asked by EU which led to the freezing of assets by Kadi in Sweden. At this level of legal orders overlapping and being connected with wealth other as they transpose in one another there might be clashes at constitutional level; at the time of the case the list could not be relied although the insertion of the name was a mistake. From an EU perspective human rights and protection of individual are essential therefore as valuing and providing multiple guarantees of protection of human right, the lack could not be accepted. At the EU level these was a typical action for annulment under the ensues of action of the judiciary of the EU, according to article 263. The action can be raised by member steps as EU jurisdiction, where a. Legal person tries to annul an EU if in contrast with the principles and treaties according to conditions (plaumn test); only the individual, if concerned with the accr, can raise a question of annulment a sit is very an extremely restrict due to the inclusion of an previous address by the EU measure. There is a level to disagree on decision n common security policy called constructive abstention regulated by the TFEU, in order to do so for the sake of the principle of loyal cooperation the state can wither partially partecipate or can abstain and support in another action. They still can abstain from the act but must still collaborate. In the Kadi case Sweden had to look at the regulation of the council they should have refused at council level as they are a participant member; the decision are, mostly, not effective legislation therefore there is possibility of abstention (act 467/2001 regulation of council of ministers; transposition of regulation form UN). Every act has a legal basis. Terminology is important as applied in specific concepts, this is necessary due to the understanding of application of same principles in different context. 10/04/2024 Council decision are non-legislative acts in cases of competences of CFSP. In typical legislative act the procedure starts as a supranational process codified in the treaties with the prospect of adoption of acts. In art. 288, under legal acts if the union and adoption fo other legal procedures, including directive, regulations and decisions with their level of impact and binding nature. Decision shall be binding in their entirety who is adressed, regardless its nature it is still a legislative entity. The role of the parliament acquired much importance later on as a full and active organ in legislative porcess producing effective legislative and binding acts which ar not dependant characteristic. The decision of the adoption of a council decision follows a different legal basis laid down in the treaties ass CFSP; it is not legislative but is still binding. In this area states are active in the decision making as they are left which a much stronger area of freedom of choice accordingly to the treaties. How to look at a legislative process: There are directives so detailed that might seem to be a regulation, but the label of directive is deceiving as the regulation has irect applicability in the countries ah one stopped at the òlabel the content and the effects wouldn’t be understandable; the legal basis, the foundation of the act are essential as they determine the rationale and the nature of an act. The TEU mainly dealt with a integovernamelt form including CFSP competences as for the TFEU it follows a supranational model. For CFSP acts are atypical as there is an ontegovernamentla form of cooperation, restrictive measure as have their on procedure and approach which might resemble the TFEU as the CJEU in inserted, normally this organ wouldn’t be concerned due to a question of competences of the mS. Thee is a strong role of the council and almonst-none of the parliament, while it depends on th nature in regard to the roe of the commission. The nature of acts enacted and their legislative or non-legislative depend on the coucil and therefore here the parliament is very limited. The court although inserted in this area is not as active as for legislative acts by Parliament and in other fields de t the intergovernmental form of cooperation and the higòly political nature of decisions. When one analyse the nature of a regulation, firstly it is necessary to looks at the nature the organ which elected it (particular attention for council enaction), and legal basis laid out at the beginning referring to the treaty of Lisbon. The predominant legal basis is up for choosing the correct and predominant earl basis, meaning that there was an mistake at the moment of the adoption. Annulment procedure; action for annulment In the Kadi case when analysing the attack and response made one can only see the EU response to it not the sewedish as it is regulated at national leave. The coutry had to freeze the account effectuìivly but again this is not mention nor the moment of integration of the regulation; this is not found at the level of scrutiny. The ECJ had to give effect to I tam d make sure that the assets were frozen. The court was asked tif the imposition of effectivness was complying with human rights and their content, does it protect the rights of the individua at sufficient level. The case was brought in from of the court on the basis of the respect of property rights, of judicial review, of effectivness to EU provisions. There was no full-fledge mechanism of review of the name o suspects. The international level has to be taken into consideration, and whether in this case the EU should have been taken into consideration an higher protection of human rights. At first instance EU legal order is subjective t the international legal order the latter prevails. At second instance an error in law was individuated. In the first instance the error in law was made in the admission of subjection to international law neglecting th protection of human rights of the claimant; the first instance was prone to the international legal order defining it as an higher level of rule using art. 351 of the TFEU. By using the article they established a higher inmportance to the UN regulation and respecting it: “ Although under 351TFEU prior international agreements of the MSs usually must prevail over conflicting EU law, there It requires to be incorporated in national law; with either monism or dualism: 1. monism the transposition is directly within national law, without need of filters; if one applies this principle to international law. The domestic system trusts the international rule accepting it within th legal order. 2. dualism there are 2 levels of integration by which the treties or agreement found itself as being in a separate level from the national law; a filter is required. The systems can either be ministic or dualist and depending on this the incorporation of treaties is made. In Italy one for example must look at the art.11 of the constitution, there are specific laws made for the purpose of incorporation. Art. 11 Italian Constitution provides for the limitation of national sovereignty in favour of international legal systems that secure peace and justice between nations. Treaties have to be incorporated into domestic law. Law 234/2012 changed the mechanism for the fulfilment of the obligations deriving from Italy's membership of the EU. The annual Community act ("Legge comunitaria") has been replaced by two acts: the European delegation act ("Legge di delegazione europea") and the European act ("Legge europea"). Supremacy of Community law was accepted in Frontini v Ministero delle finanze (Italian Constitutional Court 1974). There is one caveat though: in Fragd v Amministrazione delle Finanze it is stated that the Italian Constitutional Court could review EU law in the light of fundamental rights provisions contained in the Italian Constitution. The EU is all about limiting the MS to give competences to someone other than the national governments. This has to do with the incorporation. Once EU law is incorporated you have the principle of supremacy or primacy making sure that prevalence is given to EU law. Domestic judges should be able to disapply domestic law incompatible with EU law. The Italian constitutional court claimed the protection of national constitutional values to the interference of EU legal system, as an example of the protectionist tendence to protect own values and rules in front of what is existing outside the system (as in Kadi). This narrative of protectionism, also referred to as sovranism or tendency to protect from what is outside, is present both at domestic (against EU) and European legal systems (against third countries), an expression is the tendency to withdraw from international agreement, the same as protecting the system from what is external. Counter limits: There are moments in which domestic legal system mat wan tot protect their sovreignty against the EU laws and integrations of such. The Eu is a group of sovereign countries characterised by their differences and own political agendas. Legal nature of the EU: The discussion explans the unicity of the EU as a legal system: 1. From a constitutional prespective there were doubts viewing Eu as a federal states due to the integrational level, the maintance points to the peculiarity of the EU compared to other international organisation. Is there a middle level between federal state and international organisation? Most say no but EU may not be called a federal states, this “accusation” highlights the different level of integration and competences, but it is an international organisation although there ar differences in considering the entity among different legal orders. C Timmermans in 1999: “in the early days of the European Communities the relationship between Community law and international law may have been slightly antagonistic. However, it has now developed into a more modern form of partnership: a relationship of living apart together and in good harmony”.  ICAO example : The European Union (EU) has been active in regulating emissions in the aviation sector through its participation in the International Civil Aviation Organization (ICAO). One significant initiative is the EU Emissions Trading System (EU ETS), which aims to reduce greenhouse gas emissions from various sectors, including aviation. Under the EU ETS, airlines operating flights within the European Economic Area (EEA) are required to monitor, report, and, in some cases, offset their emissions. This system has faced some challenges and controversies, particularly regarding its application to international flights entering or leaving the EEA. To address these issues and to ensure global cooperation on aviation emissions reduction, the EU has been involved in discussions within the ICAO. The ICAO has developed its own framework for addressing aviation emissions, known as the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). Not part of international law: 1-EU as been established thanks to the use of international treatie; there are many contrition referring to the EU as an international organisation. It has been establishin a sui generis legal system establishing a direct effect and enforcement of his provisions contrary to other international organisations. 2-Eu seems to be a separate entity from the state that compose it, there is a transfering of powers to the institution, there is a distinct will. The more supranational it Is the more thee is a distinct will from the mebers party of the agreement. 3-primacy of EU law over domestic law; a dualistic modality in itself. The Eu enters a monistic approach in cases if dmestic law but primacy as domestic law cannot prevail over the presidency of EU law. 4-international law allows for great flexibility (intrusiveness in the domestic system is wider); so it might well have estblished an international agreement with a permanent institutional structure and with organs having independent decison-making powers. 5-the very existence of article 50 TEU proves it is not a federal state (e.g possibility to withdraw form the EU). Still, the EU s a peculiar international organisation, one of a kind. The EU should nor be considered a part of the international law as it presents different characteristics and dynamics:  The EU is something else different form an internationa, it is a sui generis legal system.  The EU competence is in too many legal fields: the. MS have been giving u their powers in may areas, and those powers have become either exclusive or shared competences.  There is a common (sòthough partial) currency and common citizenship (though derivative).  Decision making of the institutions. One the competence is given thee is a low level fo control by the MS.  EU courts allow for access by individual plaintiff  Unique power of the commission to sue MS  The primacy of EU law over national legal orders,in international law states ar generally free as it manne in which domestically they pit themselves in the position ti meet their international obligations. Legal personality: Art. 47 TEU: “ the EU shall have legal personality” The EU can:  Conclude agree to with third countries an international organisations  Be held responsible on the international level  Aced to international organisation: e.g the Equis trying to enter to the ECHR (art.6(2)) at it shall not affect the Union’s competences as defined in the treties. One of the practical effect is that technically the Eu will have harmony and higher protection but since they are different entity the CJEU stated that the difference were too strong at structural level.  When treaties alow regional level of integration the EU may act a s a unified state, some treties may not be amended therefore the regional integration is not allowed, up until that moment the states had to participate as individuals and in the interest of the EU /(loyal cooperation…).  EU as observed: meaning to be partecipate but no right to vote; right to speak among representative of major groups but cannot sponsor resolution or decisions.  Partership between EU and UN is based on political adnd operation cooperation for the completion of joint projects. External action of the EU: The body of legal concepts, principles and mechanism also including case law that constitute the general law of the EU external action which governs the relationship with the outside world. The Maastricht treaty alters the former European treaties and creates a EU based on three pillars: the European communities, the CFSP and cooperation in the filed of justice and home affairs. With a view to the enlargement if the Unon, the Amsterdam treaty made asjustments needed to enable the union to function more efficiently and democratically; the pillars so not exist anymore. Before the Lisbon treaty this action was scattered and provision were present in the treaties in a unsystematised way; now there are organised and dedicated provision: Each point may have components of both CFSP and TEU, they overlap:  common commercial policy(art 207 TFEU): to represent at international level form an economical presepective; it is mainly concerned with international trades and therefore as also being an internal competence; under it the union is entitles to adopt unilateral legislative acts and conclude bilateral and multilateral international agreemets  Development cooperation  Technical cooperation with third countries  Humanitarian aid (art. 214 TFEU)  Restrictive measures (art.215 TFEU): th union is not entitled to act in he basis of this coprerence alone, ergo the one of establishing economic sanctions which may be exercised after the exercise of CFSP competences.  International agreement concluded by the EU (art. 216 TFEU; also CFSP)  Relations with international organisations (art. 220-221 TFEU)  Solidarity Claus (art. 222 TFEU)  Trade agreement between Canada and EU including aspect of insurance of trade and investment between the two parties and their mementos as well as matter of security; including both index of external actions. International agreements concluded by the eu: Art. 216-219: in theses set of articles there are all international agreements that Ned to be combined with articles regarding their specificities. They describe the detail procedure to conduct these agreements, allowing EU to conclude them with international organisations and third countries. In matters outside exclusive or shared competences, MS are free; exclusive or shared represent the banning of MS form legislating in that area as there are EU legislations already present. In principle there is a correspondence between shared competences internally and their effecitvness and action externally. If the EU enters in a convention regarding a shared competence all member states would have to participate; this is called mixed agreement. This is because there needs to be an assurance o f compliance of all members In cases in which there is not activate competences (exclusive or inexsistent), the realm of activation of competences is not included. The EU g rally is involved in 2 forms of treaties internationally: Pure union:  The union enjoys exclusive competences over the whole agreements  Nowadays difficultly to have trade agreement due to the multifaced dimension concerned with other fields. Trade is an area in which the EU has exclusive legal power but this new generation of international trade treaties goes far beyond trade; they affect at least sensitive national and regional competences Mixed agreement:  For example a trade afrerewm that also deals with environment issues, the Union enjoys exclusive competences only in relation to trade provisions, whereas the union shares its competences with its MS in the environmental provision. Article 216 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act (secondary legislations such as regulations or directives) or is likely to affect common rules or alter their scope. 2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States. CASE C-47/98 ERTA PRINCIPLE: Infringement proceeding regarding the so called erta principle (referring to the “likely to affect common rules or alter their scope); it regards implied powers o the EU from an external perspective. The power to enter into agreements with third countries ‘cannot be assumed in the absence of an express provision in the [Treaties]’.*” However, in its judgment, the European Court famously sided with the Commission’s extensive stance and held: To determine in a particular case the [Union‘s] authority to enter into international agreements, regard must be had to the whole scheme of the [Treaties] no less than to its substantive provisions. Such authority arises not only from an express conferment. Open skies: The erta principle referring to the case “Open skies case”: at some point some MS (uk, Finland, Denmark; Belgium, Luxembourg, Austria, Germany ) decided to adopt bilateral transport tgareemtes with the US, dealing with licences to flight on EU territory and traffic rights for American Airlines. MS thought to be free in sting externally a dn negotiations bilateral agree to with US, at the time there were EU rules on air transport but these rules didn’t conver the ranting of traffic right in intra-eu routes by non-eu flight companies. By interpretation te competences of acting externally expand; article codifies this implied the power of acting externally in the EU, as Ms are not free to act in the are as they run the risk in jeopardising th internal market. The Union is the one that has to act externally on this kinds of agreement as it is likely to affect common rules or alter their scope because by introducing these products one may jeopardise the market. Later on the union negotiation an agreement in relations to these products. Paragraph 2 art.3 of the TFEU, dealing with exclusive competences of the EU mentioning and referring of the ERTA principles: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.” Case law is part of the Aquis communitaire, the jurisprudence is a component to EU law and can be establishing principles such as the ERTA principle codified in the TFEU. Case law remains such even if it deals with important principles, such as the principle of primacy in Van Gend & Loss which is not codified in any treties; although there are declarations attached to the treaties such as one regarding principle of primacy (declaration 17). Pure union agreement: the union enjoys exclusive competences over the whole agreement. 17/04/2024 Mixed agreement Instrument of ratification that is the EU and MS have to deposit the treaty within their national law. The deposition of it is taken care by the council, the agreement tells who the depository and the instrument of ratification is. In the EU, these agree to reflect and internal shared competences. In cases of international agreement which are partially covered by internal exclusive competences and partly covers exclusive competences; in this scenario requires, in external action, that the type of agreement has to be mixed, as internal exclusive are transformed in mixed. Three scenarios of agreements: 1-In shared competences internally, the agreement is exercised externally in a mixed manner (exercised both by EU and MS) 2-Erta principle: unique situation in which the EU acts exclusively with third parties regardless the fact that those competences are shared internally and international law it is binding. The commission checks upon the compliance of it with the law as well as the risk of infringement procedure to those that do not comply. The treaties stand between primary and secondary law. The provisions of the agreement rank higher than EU secondary law and the provisions of national law have to be interpreted in light of the agreement.If the provisions contained in international agreements are directly effective, they are: capable of being invoked before national courts against the authorities of the MSs; they may be relied upon in order to invalidate incompatible EU secondary legislation (this happens if the EU secondary law is intended to implement a provision of the international agreement). Access to justice in environmental matters To what extent EU secondary legislation can be reviewed against the benchmark of th provisions of an nternational agreement (the Aarhus convention) in which EU participates with its MS? The convention requested the widening of parteciaptory rights: access to information in environmental matters and access to justice. Access to justice in environmental matters To what extent EU secondary legislation can be reviewed against the benchmark of the provisions of an international agreement (the Aarhus Convention) in which the EU participates with its MSs? The Convention requested the widening of participatory rights: access to information in environmental matters, access to justice etc. (It should have been widened under the convention) → EU adopted a Regulation implementing the Convention → but stricter approach (less possibility to have access to justife for NGOs) → mismatch between regulation and convention. Case brought before the CJEU. The general court found it to be incompatible vs 2015 CJEU (the Regulation was not intended tp implement the Convention therefore not reviewable under the convention) Common commercial policy-external trade On must combine article 216 and 207 (for trade internationally). It is an exclusive. Competences but as it has specific index it might be a form of mixed agreement. Due to its peculiarity these agreements and their procedures are lead by the commission assisted by a special committees in specialised in trade. In trade the role of the parliament is not prominent a it simply oversee and is informed, the council concludes an agreement if concerned with CFSP. When are conclude they are called free trade agreements;:  Comprehensive economic and trade agreements (CETA) between Canada and EU: the agreement considered a full package of measures, it arose many criticism due to the fact that companies in the EU had a major fear of being “invaded” by Canadian companies. Due to the intense criticism and refusal form regions of the Union a blockage and jeopardising happened. In this case the political approch was applied to reassure firstly the regions ( Belgium with its country Wallonian) in light of the principle of loyal cooperation. There wa a strictness and clash between two parties. The agreement aimed at elimination 70-80% of tariff bars, he limitations and standard o protection are explicit in the agreement its nature indicates so.  European free trade agreement (EFTA): it was precedent to Brexit, encompasses non- EU countries such as Liechtenstein, Switzerland, Norway, Iceland to allow products be part of the internal market, the collaboration was thanks the free trade agreement. One the EU is part of these deals it needs to grant a legal and judicial protection, if this action undergoes a non-eu court it could jeopardise EU law; it is at the core of EU law to have competence in inter petition and supervision of the EU law. 22/04/2024 CETA: Comprehensive Economic and Trade Agreement between Canada and EU (CETA). It is a bilateral agreement between Canada and EU and its member states, in order to remove the majority of the tariffs otherwise imposed on the two entities and other provisions and standards to be respected → mixed agreements, since covering different aspects (trade goes hand to hand with provisions on labour and environment, public services, social protection, local agriculture). EU participates to those agreements with the MS, highlighting also the participation independency of MS as sovereign states. Mixed agreements require the ratification by MS also (not only of the EU) but to ratofy these agreements (which contains a lot of aspects) is not easy, long negotiations, e.g. the CETA agreement saw a lot of opposition in Belgium, not only as a state but a region of Belgium (Wallonian) did not agree with the ratication of the agreement (competition purposes, companies coming in the country). In Belgian law, all five regional governments have to approve trade deals like the CETA before the federal government could give consent with signature. The problem arose because it was a mixed agreements and therefore ratification of each memebr states was required. Everything was resolved politically, reassurance came for the EU institutions so that the Belgian companies wouldn’t have field threatened by foreign investments. Wallonian region was worried about exposing its agricultural sector to competition form Canadian farmers. Example of these trade agreements which were a bit slower in the process of ratification: Transatlantic Trade and Investment Party with the US. Opposition also in the application of standards – free trade agreements tend to harmonise the standards for approval so that the product can be sold on the other market but this require that some countries recognise lower standards for that product which previously had greater strandards in order to protect the consumers. Not only opposition on competition with other companies, but also regarding the settlement of disputes, if change the rule of the investment you may undergo a judicial procedure if damages occur also a maer of money. Another major concern within regions within states opposing to an EU agreement, precautionary principles that clash with another country with different standards. There is a need to find balance between the need to open up the market and protect the values (mutual recognition of standards). Advocate general opinion, in regard to dispute settlement which includes and .is concerned with the judiciary. In strongly indeendted organs, such as the EU, the appointment and determination of the respective judges and courts is hard to settle. In cases o financial internaitonal law, protection are put on companies such has the right of compensation of companies n the basis of discrimination. When disputes are brought in front of the case the parties are companies vs. State and to state v. State regardless the fact that th agreement os bilateral between two countries/organisations. In article 3.4 of the TFEU it is stated he principle fo exclusive (only a specific court ha the right to deal with the pacific legal matter) jurisdiction opposed to the fre trade agreement. In this treaty the dispute was about the fact that the armies were the EU and Canada and the question arose that if the CETA dealt with EU la which tribunal could deal with dispute settlement? Paragraph 49; opinion AG: “The Court is now required, in relation to an agreement of the same kind with Canada, to rule on the possibility of such a dispute settlement mechanism and how such a system might co- exist with the EU judicial system. 6. The guarantees provided for by the Parties in order to preserve the exclusive jurisdiction of the Court over the definitive interpretation of EU law. 120. I observe that the CETA Tribunal enjoys a narrowly circumscribed jurisdiction. Pursuant to Article 8.18.1 of the CETA, that Tribunal has jurisdiction solely to rule on a breach of an obligation under Section C (‘Non-discriminatory treatment’) 106 or Section D (‘Investment protection’) of Chapter 8 of the CET. 122. It is apparent from that provision that, when rendering its decision, the CETA Tribunal is confined to applying that agreement and other rules and principles of international law applicable between the Parties, and consequently it does not have jurisdiction to apply rules of EU law. 107 Thus, the rules of law applicable to the disputes which the CETA Tribunal is called on to settle do not include the domestic law of the Parties. Is there a right answer to the which is the competent judge? The competent judge is only the international one. Discuss What is the extent to the possibility of interpretation of the agreement? Right before the parties could talk to the commission the latter started an infringement procedure. The declaration of competences is attached in the context of UNCLOS and copied in the judgment, this declaration declares the intention and extent of responsibility in relation to the compliance f the international agreement. Within the infringement proceeding th commission had to wtclish the competences of the MS in Reston to UNCLOS. When the EU nurse through states in international agreement it has competences shared and therefore makes them legislation, while other competences removing in the hands of states as exclusive. In determine jurisdiction one must look at the case and the main argument and if that is concerned with either a shard or an exclusive competence. To find out so one must understand the provision used to raise the claim 81: Under Article 300(7) EC, ‘[a]greements concluded under the conditions set out in [that] Article shall be binding on the institutions of the Community and on Member States’. 82: The Convention was signed by the Community and subsequently approved by Decision 98/392. It follows that, according to settled case-law, the provisions of that convention now form an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 36). 84 :The Court has already ruled that mixed agreements have the same status in the Community legal order as purely Community agreements, as these are provisions coming within the scope of Community competence (Case C-13/00 Commission v Ireland, paragraph 14). 85. From this the Court has concluded that, in ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of that agreement (Case C-13/00 Commission v Ireland, paragraph 15). Fulfill obligations towards both the convention and the EU 86: As the Convention is a mixed agreement, it is for that reason necessary to examine whether the provisions of that agreement relied on by Ireland before the Arbitral Tribunal in connection with the dispute concerning the MOX plant come within the scope of Community competence. 108 It follows that, within the specific context of the Convention, a finding that there has been a transfer to the Community of areas of shared competence is contingent on the existence of Community rules within the areas covered by the Convention provisions in issue, irrespective of what may otherwise be the scope and nature of those rules. It is contingent upon the fact that there is EU law in pace. Only enacted legislation proves the competence. 110 It appears that the matters covered by the provisions of the Convention relied on by Ireland before the Arbitral Tribunal are very largely regulated by Community measures, several of which are mentioned expressly in the appendix to that declaration. Ireland was found in breach of article 344 of the TFEU, on combination with the principle of loyal cooperation. 120 Those matters suffice to establish that the Convention provisions on the prevention of marine pollution relied on by Ireland, which clearly cover a significant part of the dispute relating to the MOX plant, come within the scope of Community competence which the Community has elected to exercise by becoming a party to the Convention. 121 It follows that the provisions of the Convention relied on by Ireland in the dispute relating to the MOX plant and submitted to the Arbitral Tribunal are rules which form part of the Community legal order. The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application of those provisions and to assess a Member State's compliance with them (see, in that connection, Case C-13/00 Commission v Ireland, paragraph 20, and Case C-239/03 Commission v France, paragraph 31). COMMON COMMERCIAL POLICY: The common commercial policy includes arrangements organising the commercial relations between the EU and third countries (once entered, freely circulate in the internal market). The more integretion the more single market, because the goods can circulate freely. There are different degrees of intensity, depending on the level of cooperation, the most integrate is not the custom union (same taxaton) but the single market, because it doesn’t just harmonise the taxation but also allows goods to freely move. EU to be seen as a block in front of other states or internatonal organisations. The legal basis is Art. 207, although different procedures because the matter is very intricated. The institutions that play a role in this filed are the EU commission and the special committee, that make the preparatory works, ... In the framework of the TTIP partnership with the US, there was the issue of transparency of the mechanism by which the EU Commission made agreements. there could be also an additional legal basis, for the matter dealing with the agreement (e.g. environmental protection measures); the choice of the legal basis lies with the approach of the institutions. Other ways to cooperate externally in the Free Trade area are the EFTA (European Free Trade Agreement) and TTIP. SOLIDARITY CLAUSE: Art.222 TFEU is a general clause whereby MS have to hel each other in cases of terrorist attach to disasters; the rationale was they treat of possible terrorist attacks and the calse contains many Eucharist’s that can be triggered, for example the civil protection. The clause was debated during the pandemic when the solidarity clause was called upon but actually many states closed the boarders. It requires an high level of parteciation it it is also a matter of discretion of MS; it was an adoption of council decision or a legal basis in 2014 within competences of external actioon. 24/04/2024 INTERNAL MARKET Moving from that model there are differe shades of thepectrum, as a way to differentiate the position. One of the prerequisites for the establishment of th internal market is the establishment of a custom union. In order to establish a custom union, it was decided that in the relationship between the MS and third states the same level of taxation would be adopted. That is under the ides of the establishment of the customs union. Within the customs union we have all the MS of the EU and Turkey. Different degrees oof economic cooperations:  Free trade areas: trading between MS is liberismo, meaning that financial barriers and quantitative restrictions on the impor and export of goods are eliminated, although only on domestic products originating form the MS.  Customs unions: free movement of goods also covers goods originating from third countries, thus member states have a common commercial policy. In order to establish a custom union, 1948, in relation with third states the same level of taxation would be put so the third states would not be able to target a single state of the union. Above all goods entering the union, the member state decided to put a common external tariff. The members of the customs union decided to impose a common external tariff on all goods entering the Union. That is the basis for the seeing up of the internal market and the common commercial policy as an external action of the EU. The EU negotiates as a single entry-point in international trade instead of an individual MS negotiating for itself. Internally, there are no barriers amongst members. What are the relationships with third states? Internal market is not just abolition of tariff between MS, it develops in other aspects. Policies having to do with free movement of all the factors of production, i.e., goods, services and capital; free movement of workers. Common currency (euro-zone) is another way to modulate the relationship between MS. Political integration, common defence, etc. Throughout this spectrum, we shall focus on free movement of goods (which includes the environmental aspect). European Free Trade Association involves Norway, Switzerland, Iceland and Liechtenstein, and Norway, Iceland and Liechtenstein are also connected to the EU through the European Economic Area. Plus, the Schengen area.  Internal market  Economic union  Political union The internal market is one of the strictisest degree f cooperation in the Union, it acquired many elelmts and instances along time which constitute its functioning; along with economic interest it includes free movment of citizens as well as protection extend not to the employee but his family. There is a protection of human rights especially abuts within the Union and its treaties, it gives possibility to grant petition and raise claim in relation to situation to parliament. When approaching the marke one must think of it as not only an harmonisation in the economical process but also as an integrative component of the protection of citizens. Models:  EU: 27 nations in a single market of free trade ad shared regulations  Euro zone:19 countries using euro currency Germany was not happy but was outvoted so it challenged the EU act before the ECJ. The ECJ annulled the Directive because it went beyond the ”internal market competence” constituting an abuse of power by the EU legislature in contrast with art. 5TEU. Even if the EU adopts the measure the MS have a prerogative to consult the commission to maintain pre-existing national rules that contain higher protrction(e.g) in the filed. C- 55/79 commission v. Ireland The Commission of the European Communities brought a case against Ireland under Article 169 of the EEC Treaty, alleging that Ireland's excise duty provisions discriminated against imported spirits, beer, and made wine, thus violating Article 95 or Article 30 of the EEC Treaty. The Commission argued that Ireland's practice of deferring payment of excise duty for domestic producers while requiring immediate payment for imported products constituted discrimination, even though the duty rates were the same. Ireland defended its position, claiming that the deferment of payment was necessary to accommodate the different circumstances of domestic and imported products. Additionally, Ireland argued that its actions were aimed at addressing exchange rate differences and that harmonization of tax legislation should be sought instead of immediate compliance with Article 95. The Court ruled in favor of the Commission, emphasizing that the actual effect of taxation on national and imported products should be considered under Article 95, not just the rates of duty. The Court found Ireland in violation of Article 95 for granting benefits to domestic producers not extended to importers. Ireland was ordered to pay the costs of the case. C-62/86 commission v. Greece In this case, the Commission of the European Communities brought an action against the United Kingdom for breaching Council Directive 76/756/EEC regarding the installation of lighting and light-signalling devices on motor vehicles. The UK had prohibited the use of motor vehicles manufactured after October 1, 1986, and put into service after April 1, 1987, if they were not equipped with a dim-dip lighting device. The Commission argued that this prohibition violated the directive's provisions, which did not include dim-dip devices among the required or optional lighting devices listed in Annex I. The Court ruled in favor of the Commission, declaring that the UK's prohibition was indeed a breach of its obligations under Community law. The Court emphasized the exhaustive nature of the directive's list of lighting and light-signalling devices, implying that Member States cannot unilaterally impose additional requirements beyond those specified in the directive. As a result, the UK was ordered to pay the costs of the case. 29/04/2024 Techniques of the internal market: 1. Harmonisation: o Minimum: gives guideline to the states and leaves power to apply the law and its extent; they adopt and apply legislation or implement (of an adopted law). o Full: Terminology:  Implementaition: directive or treaty; following the indication.  Transposition: adoption of a legilation allowing the content of the directive to enter the national lega system; it makes the rules operative in the legal systems, fixing an aim within a date  Compliance: it is concerned with respecting the rule and not violating it; it is concerned more with the breach then the effective compliance to it.  Enforcement: C-120/78, cassis de Dijon The Cassis de Dijon case is one of the ground-breaking decisions of the ECJ in the framework of the internal market and of one of its fundamental freedoms: the free movement of goods. This case dates back to 1978, when the German import company Rewe-Zentral asked the Federal Monopoly Administration for Spirits for the permission to import from France some bottles of Cassis de Dijon, a liquor containing from 15 to 20% by volume of alcohol. Unfortunately, this went against a German law establishing that the only liquors that could be marketed in the country were those containing at least 32% by volume of alcohol. Therefore, Rewe was not granted the permission it requested. Rewe brought an action against the Federal Republic of Germany on the grounds that the provision at issue was a violation of article 28 EC, now article 34 TFEU. Article 34 is a provision establishing those quantitartive restrictons on imports and all measures having equivalent effect shall be prohibited between Member States. The case was then referred to the ECJ by means of preliminary ruling procedure. The main defence put forward by Germany consisted of underlying that article 34 could be applied only if the provisions at issue led to discrimination against imported goods in relation to domestic goods. According to this reasoning, since the restriction mixing a minimum content of alcohol for liquors applied in the same way to both imported and domestic products, it could not be regarded as creating discrimination against imported goods. This, of course, is just a limited participation in that all these external actors can do is submittng some written observations in which their position is specified to the ECJ. In this case, for example, we have the Kingdom of Denmark backing Rewe’s position on the grounds that also the import of Danish cherry wine was being affected by German marketng restrictions. Anyway, the decision of the court: the court established that obstacles to the free movement of goods deriving from conflicts among national laws could be accepted only if those provisions had a purpose in the general interest such as the protection of public health. However, the only effect of German law had been, up to that moment, to promote liquors with a high alcohol content by excluding from the national market products of other Member States which didn’t answer that description. Therefore, the provision at issue was declared discriminatory by the court of Justice. Through this decision, the ECJ established a principle that sell lies at the core of the functioning of the internal market, especially when dealing with the free movement of goods. I’m talking about the principle of mutual recognition and the rule of reason played in this. The principle of mutual recognition applies precisely when at European level there is no product harmonisation and it implies that states should recognise one another’s product rules. Therefore, when a product has been lawfully produced in one country, you should be able to sell that same product at exactly the same circumstances in all the other member states. This principle should not be understood merely as a way to reconcile the different legal systems of the member states, but rather it tries to establish a framework, a technique transcending them in order to achieve a greater common objective, namely the correct functioning of the internal market. Trust is a fundamental aspect of mutual recognition (supranational element). It’s connected to the principle of mutual trust: in this case, there’s no harmonization in place. Here, the premise is that harmonization isn’t in place and there’s the technique which is based on the principle of mutual trust. Looking at the other MS as a part of the same legal order, you can trust its standards, making them your own (with additional requirements if needed). Now, this principle is contained in articles of the TFEU. This principle of equivalence is now also applied between the European Union and European Court of Human Rights. They interact even if they do not belong to the same structure. The European court of human rights and the European convention of human rights looks at the European union, taking from granted that within the system of EU there’s an equivalent system of protection of human rights as theirs. This is granted also due to the Charter. With this “sufficient” it’s meant “with an equivalent level of protection”.  different legal orders that deal with each other. The human rights institution in Europe are trusting the fact that MS are applying international protection of human rights in line with principles of those institutions; in a sufficient way and a a standard of protection. An equivalent level of protection. Mutual recognition adding the eed to ensure of equal applicance of standards Brussels effect: Legaò phenomenon concerning a “spill over” of EU standard in ther countries not in the Union due to contact with this system. Legislative provisions: Customs duties and charges having equivalent effect (26-27TFEU) Common customs tariff (31-32 TFEU) Use of national taxation system to discriminate against goods imported (110TFEU) Quantitative restrictions or measures having equivalent effect (34-36TFEU) Additional competences to achieve internal market (114TFEU-115TFEU) Tariff barriers: Article 28 (ex Article 23 TEC) The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries. Commission v. Italy (C-24/68) the purposes of the second paragraph of Article 95 and that the Danish tax system has a discriminatory and protective effect in favour of fruit wine, which is a typical naonal product, to the detriment of wine made from grapes, which is exclusively an imported product. Denmark denies infringing article 95. Says that wine made from grapes and wine made from other fruits are not similar products based on the fact that the two are classifed under different headings of the common customs tarif, are manufactured differently and have different characteristcs. The danish government agreed on the possibility of there existing a competitive relationship but denies that the different taxation may have a protective effect. However, it says if it exists it is justiifed on legitimate social and economic grounds which allows Denmark to apply a favorable tax system for the benefit of certain categories of fruit growers who would otherwise be unable to find a market for their produce. The aim of Article 95: Ensure free movement of goods between MS in normal conditions of competition by the elimination of all forms of protection which result from the application of internal taxation which discriminates against products from other MS and to guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products. The article prohibits specifcally any tax provision whose effect is to impose, by whatever mechanism, higher taxaon on imported goods than on domestic products.  Wine made from grapes=exclusively imported product  Fruitwine(liqueurtype)=almost entirely domestically-produced product  Fruitwine(table-winetype)=1⁄3 imported but typically domestically-produced To determine whether these products were similar the court considered if they had similar characteristics and meet the same needs from the point of view of consumers using a broad interpretation of the criterion of similarity. Basically seeing if their use was similar and comparable. a. The court found that wine (table-wine type) made f rom grapes and other f ruits are made f rom the same basic product and use the same process, so with similar characteristics they can meet the same needs from the point of view of consumers as they can be consumed in the same way. b. In regards to the liqueur type, they also concluded that it had similar characteristics, also meeting the same needs from the point of view of consumers. c. Therefore they said fruit wine of the liqueur-wine type and grape wine of the liqueur-wine type must consequently be regarded as similar products for the purposes of the first paragraph of Article 95 of the EEC treaty. Wine made from grapes bears a higher fscal burden than the same quantity of wine made from other of ruits. The differential taxation is incomparable with community law if the products most heavily taxed are, by their very nature, imported products. Based on all the consideraons the court concluded that by taxing the wine made from grapes at a higher rate than wine made from other fruit C-170/80 Beer and wine, can they be considered similar product? They analysed the purpose the consume, where if they could substitute each other on the market and the type of win (if it was a light and consumers as much a s beer). The court arrived to the final conclusion on the ground that as they have a similar use for consumer the non-discrimination taxation applied. 30/04/2024 Non-tariff barries: Prohibition of trade restrictions in terms of quantity and “measures having equivalent effect” (34 and 35 TFEU). Art.36 TFEU: refers to derogation and where they are allowed or not. The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. They make imports, or the disposal at any marketing stage, of imported products, subject to a condition, other than a formality, which is required in respect of imported products only, or a condition differing from that required for domestic products and more difficult to satisfy. Equally, it covers, in particular, measures which favor domestic products or grant them a preference, other than an aid, to which conditions may or may not be attached. C-222/82 Apple and pear development council v. Lewis The apple an dear development council was established under UK law to oversee the apple and pear industry’s development. It replaced a previous order established in 1966 and was enacted through the Development Act of 1947. Its functions included scientific research, marketing promotion, levy collection for financing its activities. Growers were required to pay annual charges with exemptions for smaller growers. The key issue of the council establishment functions and levy imposition under European Community Law; the case highlights the tension between national industry development measures and EU law’s principles of free movment and competition. The development council arguses that its actions are not contrary to EU law and suggests that the court’s response to the first question should be negative. It emphasizes the importance of growers’ support for the establishment and continuation of the council, indicating that a majority of growers is substantially directed towards advertising promotion as related functions which it believes do not violate EU treaties or regulations. The key issue was on the council legal basis and ways of dong in regard to compliance with EU law. The county court raised questions as preliminary proceeding: 1. Is it right to establish such body? 2. Does the agreement influences the result? 3. Can EU laws in regard be applied directly? 4. Should there be compensation for producers? The UK position maintains that a national levy on apple and pear growers, primarily aimed at advertising and promotional activities, does not breach EU treaties or regulation 1035/72. The commission provides several insights: It emphasizes that any increase in a charge used to finance an aid must be notified to the Commission before implementation. The requirement for growers to register is seen as a means of enforcing levy collection and is not inherently contrary to Regulation (EEC) No 1035/72. Establishing a body to collect statistics and information from growers is compatible with Regulation (EEC) No 1035/72. However, a levy that finances activities incompatible with EU regulations is deemed unlawful. Danish Government's Position: The Danish Government suggests that compelling growers to register with an organization aiming to enhance efficiency and productivity within the sector is not incompatible with EU law. However, it emphasizes that the levy imposed must not hinder the operation of mechanisms introduced by the common organization of the market or impede the free movement of goods. Permissible Development Council Activities The Treaty framework permits member states to establish fruit production development councils. Registration, information sharing, and mandatory fees from certain growers are allowed to fund council activities, provided these activities focus on tasks like statistical analysis, research initiatives, and technical guidance for growers. Promotional Parameters National organizations can promote domestic fruit production and highlight specific varieties, avoiding dissuading consumers from purchasing fruit from other EU member states. Quality Advice and Standards Development councils can offer guidance to growers on fruit quality and presentation. However, the emerely i dient Organizations they are prohibited from imposing standards that deviate from established, common EU standards. Growers exceeding a certain production capacity may be required to join additional organizations, so long as those organizations' activities comply with EU law. Charge Legality and Use of Funds