Domande European Union Law - Mignolli, Prove d'esame di Diritto dell'Unione Europea

Scarica Domande European Union Law - Mignolli e più Prove d'esame in PDF di Diritto dell'Unione Europea solo su Docsity! EU LAW Exam Prep he Dark blue was the one mentioned as Important] But the others are important as well What are the differences between the European Council and the Council of Ministers regarding their role and function? The European Council is a collective body that defines the European Union's overall political direction and priorities. It comprises the heads of state or government of the EU member states, along with the President of the European Council and the President of the European Commission. The High Representative of the Union for Foreign Affairs and Security Policy also takes part in its meetings. Established as an informal summit in 1975, the European Council was formalised as an institution in 2009 upon the entry into force of the Treaty of Lisbon. Its current president is Charles Michel, former Prime Minister of Belgium. Beyond the need to provide "impetus", the Council has developed further roles: to "settle issues outstanding from discussions at a lower level", to lead in foreign policy — acting externally as a "collective Head of State", "formal ratification of important documents" and "involvement in the negotiation of the treaty changes". Although the European Council has No direct legislative power, under the "emergency brake" procedure, a state outvoted in the Council of Ministers may refer contentious legislation to the European Council. However, the state may still be outvoted in the European Council. Hence with powers over the supranational executive of the EU, in addition to its other powers, the European Council has been described by some as the Union's "supreme political authority". The Council of the European Union referred to in the treaties and other official documents simply as the Council, is the third of the seven Institutions of the European Union (EU) as listed in the Treaty on European Union. The Council represents the executive governments of the EU's member states and is based in the Europa building in Brussels. The Council of the European Union and the European Council are the only EU institutions that are explicitly intergovernmental, that is forums whose attendees express and represent the position of their member state's executive, be they ambassadors, ministers or heads of state/government. The primary purpose of the Council is to act as one of two vetoing bodies of the EU's legislative branch, the other being the European Parliament. Together they serve to amend, approve or disapprove the proposals of the European Commission, which has the sole power to propose laws. Jointly with the Parliament, the Council holds the budgetary power of the Union and has greater control than the Parliament over the more intergovernmental areas of the EU, such as foreign policy and macroeconomic coordination. Finally, before the entry into force of the Treaty of Lisbon, it formally held the executive power of the EU which it conferred upon the European Commission. EU LAW Exam Prep Seven Institutions (Article 13 TEU) The EU has an institutional framework aimed at promoting and defending its values, objectives and interests, the interests of its citizens and those of its member countries. This framework also contributes to ensuring the coherence, effectiveness and continuity of EU policies and actions. According to Article 13 of the Treaty on European Union, the institutional framework comprises 7 institutions: ARTICLE 13 - 7 INSTITUTIONS. Each political community needs institutions to govern its society;as each society needs common rules and a method for their making,execution, and arbitration. European Council (summit) Council of Ministers European Parliament the Council) European Commission Court of Court of Economic and Social Committee Justice Auditor Committee of the Regions European Investment Bank Agencies European Central Bank The Union's institutions shall be: a. The European Council=> The European Council is the group of heads of the EU member states. lt meets four times a year to define the Union's policy agenda and give impetus to integration (making general line of political integration - is the main purpose of the Council). The President of the European Council is the person responsible for chairing and driving forward the work of the institution, which has been described as the highest political body of the European Union. b. The European Parliament => meeting of 751 deputies which are elected every 5 years. The chairman is elected every 2,5 years. The main role of the parliament - legislative activity. After the Lisbon Treaty it now characterizes the European Parliament as being “composed of representatives of the Union's citizens”. 4 powers: legislative, budgetary, supervisory and elective powers. Parliament must-first- “elect” the President of the Commission. And it must-secondly-confirm the Commission as a collective body. c. The Council of EU=> Includes 28 members. The Council of the European Union (informally known as the "Council of Ministers" or just "the Council") is a body holding legislative and some limited executive powers and is thus the main decision-making body of the Union. Its Presidency rotates between the states every six months, but every three Presidencies now cooperate on a common programme. This body is separate from the European Council, which is a similar body, but is composed of national leaders. Article 16 - Voting system - Qualified majority (55% = 260/ 354 votes) The current president is Donald Tusk. d. The European Commission=> Includes 28 members, executive organ which proposes new legislations. Commission also represents the EU on international stage. And they are the guardians of the treaties. e. The Court of Justice of the European Union => the highest judicial body of the EU, which is located in Luxemburg. Includes 28 referees and 8 general lawyers. They are appointed EU LAW Exam Prep symmetric procedural rights--- Primary legislations : may have direct effect and are capable of conferring individual rights enforceable in the UK courts without further enactment. Secondary legislation : it emanates from the Council and Commission of the EU communities. There are 3 types: Regulations, Directives and Decisions. Legislative acts: 1_ Regulations [Binding, directly applicable, more similar to a domestic law] 2_ Directives [Binding, no direct effect, not detailed, member states, framework] - ART 288 TFEU 3_ Decisions [Binding, administrative, political (CFSP), conclusion of int agreements] 4_Recommendations [Non-binding] 5_ Opinions [Non-binding, but mandatory] Indirect Effect Indirect effect is a principle of European Union (EU) law, whereby national courts of the member states of the EU are required to interpret national law in line with provisions of EU law. The principle of indirect effect contrasts with the principle of direct effect, which allows individuals to invoke the EU law itself before national courts. Indirect effect arises from the failure of a member state to implement a directive but where direct effect cannot apply because the party against whom the directive is sought to be enforced is a private entity or otherwise fails to meet the conditions which would give the directive direct effect national court of the member states of the EU, are required to interpret national law in line with provisions of EU law. It allows individuals to invoke the EU law itself before national courts. [ Von Colson case, 1984. Sabine Von Colson and Elisabeth Kamann were German social workers who applied to work in men's prisons run by the State of North Rhine-Westphalia . Both were rejected on the basis they were women.They appealed the decision at the Labour Tribunal. Under European Communities law , the Equal Treatment Directive required member states to give effect to principle of equal treatment and obliged them to provide a legal remedy. The claimants argued that they had a directly effective right to demand that the court order the employer to appoint her. Instead of this or compensation, they were awarded only "reliance losses" as a remedy, equivalent to the travel costs incurred by going to the interview] Treaties of EU (TEU - TFEU) The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives. The EU can only act within the competences granted to it through these treaties and amendment to the treaties requires the agreement and ratification (according to their national procedures) of every single signatory. Two core functional treaties. TEU / Treaty on European Union (originally signed in Maastricht in 1992, aka The Maastricht Treaty) The TEU forms the basis of EU law, by setting out general principles of the EU's purpose, the governance of its central institutions (such as the Commission, Parliament, and Council), as well as the rules on external, foreign and security policy. EU LAW Exam Prep Title 1, Common Provisions Title 2, Provisions on democratic principles Title 3, Provisions on the institutions Title 4, Provisions on enhanced cooperations Title 5, General provisions on the Union's external action and specific provisions on the Common Foreign and Security Policy Title 6, Final provisions TFEU / Treaty on the Functioning of the European Union (originally signed in Rome in 1957, aka The Treaty of Rome) which brought about the creation of the European Economic Community (EEC), the best- known of the European Communities (EC). It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany and came into force on 1 January 1958. lt remains one of the two most important treaties in the modern-day European Union (EU). Part 1, Principles Part 2, Non-discrimination and citizenship of the Union Part 3, Union policies and internal actions Part 4, Association of the overseas countries and territories Part 5, External action by the Union Part 6, Institutional and financial provisions Part 7, General and final provisions These 2 treaties lay out how the EU operates, and there are a number of satellite treaties which are interconnected with them. The treaties have been repeatedly amended by other treaties over the 65 years since they were first signed. The consolidated version of the two core treaties is regularly published by the European Commission. Legal Sources of EU Law There are 2 Legal Sources of EU Law Primary Primary sources or Supreme sources of European Union law consist of the founding treaties, the treaties between Member States, and the treaties between the EU and third parties. The Legal order created by the European Community has become a permanent feature of political reality in the member states of the EU. Not only the EU is a creature of the law but it pursues its aims exclusively through a new body of law, Community law. This is an independent, uniform in all the Member States of the Community, and separate from yet superior to national law. Many of its provisions are directly applicable in all Member States. @ Treaties. European integration is based on the three founding treaties: 1) Treaty establishing the European Coal and Steel Community (Paris, 1952); 2) Treaties of Rome (1958) establishing the European Economic Community and the European Atomic Energy Community ; 3) The current consolidated treaty is the Treaty on European Union and the Treaty on the Functioning of the European Union, 2016. EU LAW Exam Prep @ Legislations. The terms Primary and Secondary legislations mean different things when applied to EC legislation than in the UK domestic context. The treaties are the Primary legislation. They can have a Direct effect and are capable of conferring individual rights enforceable in the UK courts without further enactment. Secondary Secondary sources are legal instruments based on the treaties. Secondary law build from unilateral acts and agreements. The 5 types of secondary legislation: * Regulations are adopted by the Council of the European Union upon a proposal from the Commission. Regulations have general effect and are directly applicable in all of the Member States. * Directives are adopted by the Council of the European Union upon a proposal from the Commission. Directives are addressed to the Member States and are binding - Member States may choose the form and methods of implementation. The process of implementation is called harmonization. * Decisions are issued by the Council or Commission and are binding on the governments, companies, or individuals addressed. e Recommendation ® Opinion of the Court of Justice Restriction on competitiong(:\is{4 (hh) Adopted from Sherman act 1890 about prohibition of cartels and market monopoly. Both the US and Europe have well-developed competition policies that aim to prevent and punish anti-competitive behaviour. European competition law seeks to maintain market competition by regulating anti- competitive conduct by companies in use within the European Union. It promotes the maintenance of competition within the European Single Market by regulating anti- competitive conduct by companies to ensure that they do not create cartels and monopolies that would damage the interests of society. European competition law today derives mostly from articles 101 to 109 of the TFEU, as well as a series of Regulations and Directives. Four main policy areas include: * Cartels, or control of collusion and other anti-competitive practices, under article 101 TFEU. * Market dominance, or preventing the abuse of firms' dominant market positions under article 102 TFEU. * Mergers, control of proposed mergers, acquisitions and joint ventures involving companies that have a certain, defined amount of turnover in the EU, according to the European Union merger law. ® State aid, control of direct and indirect aid given by Member States of the European Union to companies under TFEU article 107. The main objective of Article 101 is to ensure that firms do not use agreement, including vertical agreements, to restrict competition to the detriment of consumers. EU LAW Exam Prep Look for a job in another EU country Work and reside there without needing a work permit Stay there even after employment has finished Enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages EU citizens acquire the right of permanent residence in the host Member State after a period of five years of uninterrupted legal residence. EU nationals may also have certain types of health & social security coverage transferred to the country in which they go to seek work (see coordination of social security systems). Free movement of workers also applies, in general terms, to the countries in the European Economic Area: Iceland, Liechtenstein and Norway. Who can benefit from this freedom? * Jobseekers, i.e. EU nationals who move to another EU country to look for a job, under certain conditions e EU nationals working in another EU country * EU nationals who return to their country of origin after having worked abroad. e Family members of the above. Rights may differ somewhat for people who plan to be self-employed, students, and retired or otherwise economically non-active people. For more information on these groups, see Your Europe. What restrictions are there? e The rights described on this site apply to people who exercise their right to free movement for work purposes. e There are limitations based on considerations of public security, public policy, public health grounds and employment in the public sector. e Nationals of Croatia may face temporary restrictions. What are the rights of EU citizens? Citizenship of the European Union (EU) is given to the citizens of member states by the 1992 Maastricht Treaty ® Freedom from discrimination on nationality * Contact and receive response from any EU institution in one of their EU's official languages; Rights to vote and to stand as a candidate for EU Parliament and municipal elections; Rights to good administration; Rights of access to documents; * European ombudsman; Right to petition; Freedom of movement and of residence; Diplomatic and consular protection. Equal access to the EU civil service. Freedom from discrimination on nationality EU LAW Exam Prep What are the intergovernmental and supranational methods in the institutional structure of the European Union? INTERGOVERMENTAL SUPRANATIONAL 1. OBLIGATIONS ARE LIMITED TO 1. Obligations and rights for states and STATES citizens (direct effect) 2. UNANIMITY AGREEMENT 2. Majority agreement 3. NO JUDICIAL REVIEW, BUT ONLY 3. Complete system of judicial remedies DISPUTE SETTLEMENT BETWEEN STATES (ECJ) (ICJ) 4. Supremacy 4. ABSENCE OF SUPREMACY 5. Independence 5. MOSTLY ORGANS OF STATE REPRESENTATIVES The intergovernmental method of operation used in decision-making, mainly on Common Foreign and Security Policy and aspects of police and judicial cooperation. This method has the following salient features: © the Commission's right of initiative is shared with the EU countries or confined to specific areas of activity; © the European Council, explicitly mentioned in the Lisbon Treaty, often plays a key role; © the Council generally acts unanimously; © the European Parliament has a purely consultative role. A supranational organization is an international group or union in which the power and influence of member states transcend national boundaries or interests to share in decision making and vote on issues concerning the collective body. The European Union and the World Trade Organization are both supranational entities. In the EU, each member votes on policies that will affect each member nation. The benefits of this construct are the synergies derived from social and economic policies and a stronger presence on the international stage. Although supranational organizations must operate in multiple countries, they generally have no enforcement capabilities. Characters of supranationality: 1) Independence; 2) Direct effect; 3) Judicial review; 4) Supremacy. Cooperation between National courts and the ECJ. The preliminary ruling. The original vision of the relation between the European Court of Justice (ECJ) and national courts was characterized as horizontal: each court was equal, but with different functions. The National court decides whether to refer a question of EU law under the preliminary reference procedure of Article 254 TFEU, the ECJ provides an answer interpreting the point EU LAW Exam Prep of EU law, and the national court applies the ECJ°s guidance to decide the case before it. In practice, this horizontal conception has become more vertical due to the ECJ’s superior position. A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, given in response to a request from a court or tribunal of a European Union Member State. A preliminary ruling is a final determination of EU law, with no scope for appeal. The ECJ hands down its decision to the referring court, which is then obliged to implement the ruling. Although the procedure is formally a bilateral one between the ECJ and the particular national court making the reference, in practice it has become a multilateral relationship. The rulings of the ECJ become accepted in all other national courts when the same question of EU law arises. In this way, the preliminary reference procedure has been instrumental in developing an EU judicial system with the ECJ at its apex, handing down decisions, which bind the courts of allthe Member States. The Legal standing of Natural and Legal persons in the action for annulment Actions for annulment may be brought by a member state, the European Commission or the Council of the EU against any reviewable act. They can also be brought by the European Parliament or by the Court of Auditors, the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives. Actions for annulment brought by private parties are heard by the General Court at first instance (TFEU). The General Court is the lower general court of the CJEU. The ECJ is the senior court. The admissibility criteria for applications for annulment brought by private parties are stricter than for those brought by privileged applicants. An action for annulment may be brought by any natural or legal person against: - anact addressed to that person; - anactthatisof direct and individual concern to them; - aregulatory act which is of direct concern to them and does not entail implementing measures. Is a legal procedure before the Court of Justice that guarantees the conformity of EU legislative acts, regulatory acts and individual acts with the superior rules of the EU legal order. An action can be brought within two months of the publication or notification of the contested measure. Applicants are divided into three categories: privileged, semi-privileged and non-privileged. 1) Privileged applicants - the Member States, Parliament, Commission and Council - may bring an action for annulment purely in the interests of legality, without providing any particular interest. 2) Semi-privileged applicants - comprising the European Committee of the Regions, the European Central Bank and the European Court of Auditors - may bring an action for annulment only to protect their own prerogatives. 3) Non-privileged applicants - comprising all natural and legal persons, including regional or local governments, may bring an action for annulment only if they prove that the contested act infringes upon their interests. EU LAW Exam Prep that they are non-discriminatory (i.e. they apply to all relevant traders operating within the national territory, and affect in the same manner, in law and in fact, the marketing of domestic products and products from other Member States)11. C. Exceptions to the prohibition of measures having an effect equivalent to that of quantitative restrictions Article 36 TFEU allows Member States to take measures having an effect equivalent to quantitative restrictions when these are justified by general, non-economic considerations (e.g. public morality, public policy or public security). Such exceptions to the general principle must be interpreted strictly, and national measures cannot constitute a means of arbitrary discrimination or disguised restriction on trade between Member States. Finally, the measures must have a direct effect on the public interest to be protected, and must not go beyond the necessary level (principle of proportionality). Furthermore, the Court of Justice has recognised in its jurisprudence (Cassis de Dijon) that Member States may make exceptions to the prohibition of measures having an equivalent effect on the basis of mandatory requirements (relating, among other things, to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer). Member States have to notify national exemption measures to the Commission. Procedures for the exchange of information and a monitoring mechanism were introduced in order to facilitate supervision of such national exemption measures (as provided for in Articles 114 and 117 TFEU, Decision 3052/95/EC of the European Parliament and of the Council and Council Regulation (EC) No 2679/98). This was further formalised in Regulation (EC) No 764/2008 on mutual recognition, which was adopted in 2008 as part of the so-called New Legislative Framework (NLF) Kompetenz Kompetenz BVerGE, Maastricht Urteil, 1994: «The Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them. EU law adopted ultra vires could be disapplied by the German Constitutional Court. Kompetenz-kompetenz, or competence-competence, is a jurisprudential doctrine whereby a legal body, such as a court or arbitral tribunal, may have competence, or jurisdiction, to rule as to the extent of its own competence on an issue before it. The concept arose in the Federal Constitutional Court of Germany. Since then, kompetenz-kompetenz has often been important in international arbitration Article 16(1) of the Model Law and article 23(1) of the Arbitration Rules both dictate that "the arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement EU CASES Ele te TESE CL Direct Effect EU LAW Exam Prep Van Gend en Loos, a postal and transportation company, imported urea formaldehyde from West Germany to the Netherlands. The authorities charged them a tariff on the import. Van Gend en Loos objected, stating that it was a clear violation of Article 12 of the Treaty of Rome. The European Court of Justice held that this breached a provision of the treaty requiring member states to progressively reduce customs duties between themselves, and continued to rule that the breach was actionable by individuals before national courts and not just by the member states of the Community themselves. 1) Vertical effect => invoke European law against the state 2) Horizontal effect => invoke EU law against another private party. The Direct effect of directives can operate only against the State (vertical effect). de Di Free Movement of Goods The Cassis de Dijon case and the mutual recognition of measures on the quality and presentation of products in the internal market. (Already mentioned in question number 17) Case Defrenne 1976 Horizontal Effect of Women's Rights Stewardess Gabriella Defren did not agree to retire at age 40 when her male colleagues could retire later. Ratti Case 1979 National Law vs Directives Case about varnishes and paints; Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails Von Colson, 1984: The Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 4,3 TEU (principle of fair cooperation and solidarity) to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law, in particular the provisions of a national law specifically introduced in order to implement a directive, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 288 TFEU Marleasing, 1990 After the expiry of the implementation period, national courts are under an obligation to implement the directive judicially through a European interpretation of national law. Webb case, 1994 A lady was hired to replace a pregnant co-worker. When she discovered to be pregnant herself, Mrs Webb was dismissed and sued her employer. The court rejected, but the House of Lords, in appeal, requested a preliminary reference to the Court. The Court found that there was sex discrimination under the equal treatment directive, and the fact that Mrs Webb had been hired to replace another employee was irrelevant. EU LAW Exam Prep Costa Enel 1964 By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply... The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of european law cannot vary from one State to another in reference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaties... it follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as European law and without the legal basis of the Community itself being called into question Baaumbast Case 2002 Freedom of Movement for Citizens (Direct Effect Article 21 TFEU) Baumbast case (2002): the case of a father who wanted to reside in the UK with his daughters, despite the fact that he was neither a worker, nor exercising his freedom of establishment. The Court said that the right to reside within the territory of a Member State under article 21, 1, TFEU is conferred directly on every citizen of the Union by a clear and precise provision of the Treaty. The Treaty on European Union does not require that citizens of the Union pursue a professional or trade activity, whether as an employed or self-employed person, in order to enjoy the rights provided in Part Two of the EC Treaty, on citizenship of the Union. Furthermore, there is nothing in the text of that Treaty to permit the conclusion that citizens of the Union who have established themselves in another Member State in order to carry on an activity as an employed person there are deprived, where that activity comes to an end, of the rights which are conferred on them by the EC Treaty by virtue of that citizenship. The right to reside within the territory of the Member States under Article 18(1) EC, that right is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty. Purely as a national of a Member State, and consequently a citizen of the Union, Mr Baumbast therefore has the right to rely on Article 18(1) EC. Admittedly, that right for citizens of the Union to reside within the territory of another Member State is conferred subject to the limitations and conditions laid down by the EC Treaty and by the measures adopted to give it effect. However, the application of the limitations and conditions acknowledged in Article 18(1) EC in respect of the exercise of that right of residence is subject to judicial review. Consequently, any limitations and conditions imposed on that right do not prevent the provisions of Article 18(1) EC from conferring on individuals rights which are enforceable by them and which the national courts must protect