Riassunto European Union Law - A. Mignolli, Appunti di Diritto dell'Unione Europea

Scarica Riassunto European Union Law - A. Mignolli e più Appunti in PDF di Diritto dell'Unione Europea solo su Docsity! After the ​I and II World War​ plus the ​crisis of the 20’s,​ Europe was devastated and a lot of  initiatives in order to help with reconstruction started again an economy that was completely  destroyed.     At that time in EUROPE:  - Germany was​ divided in eastern (under Soviet influence) and western Germany (Under  American influence) in the middle of the Cold War (Actually all Europe was divided!).   - Also the​ UN​ with the chapter of San Francisco was born in those times to protect  stability, preserve peace and prohibition of using war as an international instrument for  diplomacy and against international disputes.   - The ​Council of Europe​ was the first international organization established in Europe (it  is a separate entity from the EU and it still exists), it is important for the ​European  convention of human rights and fundamental freedoms​. This convention which is an  international agreement was signed in Rome in 1950 promoted by the Council of Europe.  - A lot of treatments were born, such as the ​The Atlantic treatment organization​ that  made a bond between Europe and the US and also the ​International Monetary Fund or  the GAT (Agreement on international trade).   - Europe​ had problems on its own, countries inside the EU didn’t trust each other, for  example between France and Germany there was still the fear for Germany to rebuild its  military apparatus. And also between their borders there was the most disputed region,  the SAR and the ​RUR​. In this area there were the most important industries, iron minds,  heavy industries, coal and iron mines, steel factories and also military industries.         Chronology​ of EU:    Other pioneers of European projects were for example Adenauer, De Gasperi, Churchill, Veil  and Spinelli. There are ​24 official language​s, every member state can indicate an official  language.   The symbols of EU are:  - The ​motto​ :” United in diversity”, it means that this is a union of different states,  origins, cultures and languages but there is a union that respects this diversity.  - The european anthem is the “​9th symphony of Beethoven - Inno alla gioia”  - The ​blue flag with twelve yellow stars  - Europe day ​9th May    1950  The​ founding federalist fathers of the EU​ - Schuman and  Jean-Monnet - wanted to build a unified Europe. Schuman  proposed to all european countries ​“The Schuman  declaration​”​ (1950)​ which objective was to find new ways to  have a new construction of peace through concrete  achievement and create a ​de facto solidarity and trust.  One of the​ main points:  - RUE/SAR’s industries managed by an higher authority  of EU  - A common foundation of an economy unity  - A federation of European states (not completely  achieved today)    The french government pushed for the development of  exports​ (common external tariffs and abolition of duties) and  a common market. Supply of coal and steel must be provided  in the ​same conditions for every country of the EU and  must be a free movement of those products among the  countries​. Attention to the workers and welfare of member  states.    1951  The ​Treaty of Paris ​signed by France, Germany, Belgium,  Netherlands, Luxembourg, Italy established ​the European  Coal and Steel Community.​ The high authority is an  i​ndependent body​, appointed by the governments, but  represents all the citizens. The high authority will act in  contrast to the ​establishment of cartels​ (groups of  production of manufacturers that alter the function and the  prices of the market or limiting the competition).     The three main features of EU imagined by  Schuman/Joan-Monnet:  - Independence​ of the high authority from the member  state (sovran nationality)  - Direct effect ​on the states and inside the states ​of the  decision​s of the high authority  - The ​judicial power  Many  problems  during  the  1973–1975  recession  The main monetary system at that time was ​the gold  exchange standard ​after the fall of ​Bretton Woods 1944​-  each currency was connected with gold and value in dollars.  By ​1971​ the ​Declaration of Nixon​ declared that America was  not able anymore to assure the standard by dollars, then,  currencies were able to fluctuate according to the market.  1973  Denmark, Ireland and UK enter ​the Communities  1979  The ​European Monetary System was born​ and was the  first attempt for the EU to establish a relationship  between the currencies of the member states. ​(IMF)  International Monetary Fund​ (still in force today) was  already born in the 50s, and was the place where the  relations between the currencies of the member states  were regulated.   - There was ​the first election of european  parliament.​ After many delays the mechanism  that the parlamentarias of the EU ​were  appointed by the member state’s government​,  ended. The first parliament elected with  democratic legitimacy, under the guidance of  Altiero Spinelli ​they wanted to start a new  constitutional season for the EU. Every state has  its ​own electoral law​ that has to respect the  criteria and common features established by the  EU.  1981  There was the entrance ​of Greece  1984  Spinelli started the discussion about the necessity to begin  with a new integration after the crisis with a new  commission under the presidency of ​Jaques Delors.​ Anyway,  his revolutionary ideas Spinelli was put aside because it was  too ambitious for that time.  1986  There was the ​entrance of Spain and Portugal​.  Jaque Delors​ (the then President of the EU Commission)  wanted to abolish all the ​remaining barriers of movement  and ​go back to the majority voting in the council​ by  eliminating the Luxembourg Compromise. ​He proposed to  develop political integration by launching a new  international conference for the revision of Rome treaties.   1987  It was signed ​The European Single Act​: The first treaty for  the ​revision of the original economy treaties and to build a  single market​, something unified and not similar as it was  before. The introductory norms of this act are important  also because one of them says that ​the headers of the states  can meet in the frame of european council​ (so in this  agreement there is the​ formalization ​and mentioned in a  european treaty) to give the community strategic guidance  and a general direction.  1989  - The fall of the ​Berlin Wall​, the end of the cold war and  the conflicts between the US and Russia ended with the  reunion of Germany and the desegregation of Soviet  Union. Western Germany acquired eastern one, the  territories of the east were included in the first ones.   1992  It was signed​ The Maastricht Treaty​ ​between the ​12 ​member  states​ ​of the ​European Communities​, is the ​foundation  treaty of the ​European Union​ (EU)​. It confirms among its  objectives are "the introduction of a ​citizenship of the Union​"  common to the nationals of the Member States; "​economic  and monetary union​, ultimately including a ​single  currency​"; and "a ​common foreign and security polic​y  including the eventual framing of a common defence"    MAASTRICHT’S PILLAR  1. First pillar​ - Economics Communities (EC)  2. Second pillar​ - Common foreign and security policies  (intergovernmental cooperation)  3. Third pillar ​- Police and Judicial corporation  (immigration, asylum etc.) ​limited role for the Court  of Justice    The ​Maastricht treaty​ also defined the political and  economical criteria to apply for a state to membership in the  EU. They must respect the principles of EU, democracy,  human rights, etc.  1993   Were laid down ​The Copenhagen Criteria ​by the  European Council ​and are the rules that define  whether a country is​ eligible to join the European  Union​ through the achievement of certain features as  democracy, ​rule of law​, human rights, respect for  minorities    The ​Rule of law ​is the foundation of the EU. It means that the  EU is based on law, on some principles that have to be  respected, of three categories:  1. Political​: like democracy, respect for human  rights, free elections and independence of the  judiciary  2. Economic ​( a functioning market economy ​whose  producers have the capability to cope with  competitive pressure and market forces within  the Union)  3. Legislative ​(​ a country which laws are into line  with the body of European law - ​acquis  communautaire​ - )  1995  There was the ​entrance of Austria, Finland and Sweden  1997  The ​Treaty of Amsterdam ​was signed​ and the key reform  was splitting the Justice & Home Affairs pillar​ and  transferred some contents to the Community pillar  - A more supranational approach for areas such as  i​mmigration/asylum ​etc. was preferred. (Free  movement of persons)   - The ​UK and Ireland ​opted out to ensure border  controls remained in place.  2000  The ​Treaty of Nice ​was signed and ​It amended the  Maastricht Treaty​ (or the Treaty on ​European Union​) and the    European Union response to the COVID-19 pandemic  The European Commission ​is coordinating a​ ​common European response​ to the  coronavirus outbreak. We are taking resolute action to reinforce our public health  sectors and mitigate the socio-economic impact in the European Union. The European  Commission has been working tirelessly to secure doses of potential ​safe COVID-19  vaccines ​that can be shared with all. On ​25 August 2020 t​he European Commission  - Simplified union instruments & Law Making  processes  - Abolished Common Positions and Cooperation  procedure  - Made a dramatic step towards a political union of  the EU (ART 10)  2007  Romania and Bulgaria join the EU  2009  EU Institutional Reforms: ​Treaty of Lisbon reforms the EU,  including the European Council, and incorporates much of  the original Constitutional Treaty. ​Lisbon Treaty​ ​abolishes  the ​three pillars ​of the European Union​.  2013  - Croatia joins the EU  2014  The emergence of​ Euroscepticism​ as a popular movement  that is spreading all over Europe  2015   Greek debt crisis  2016  UK holds a ​Membership Referendum​ and ​votes to leave the  European Union  2017  Negotiations between the UK and the EU​ officially started in  June. ​End of roaming​ in the EU.  2020  UK leaves the EU​ after the Brexit withdrawal agreement  takes effect on 31 January 2020   proposed to provide ​€87.3 billion in financial support for 16 Member States under  SURE.    Union Institutions   The Union's institutions ​and their core tasks are defined in​ Title III of the Treaty on  European Union (TEU).  The Union's institutions shall be:  – the ​European Parliament,  – the ​European Council,  – the ​Council,  – the​ European Commission​ (hereinafter referred to as ‘the Commission’),  – the ​Court of Justice of the European Union​,  – the ​European Central Bank,  – the ​Court of Auditors.    The European Parliament  It was an “​auxiliary”​ organ that was to assist the institutional duopoly of Council and  Commission. ​This minimal role gradually increased from the 1970s onwards.​ Today  the Parliament constitutes – with the Council – a chamber of the Union legislature.  Directly elected by the European citizens​, Parliament constitutes not only the most  democratic institution; in light of its elective “appointment”, it is also the ​most  supranational institution of the European Union.    Based in a sort of ​bicameral legislature ​in which there are now 705 members from  different countries (before Brexit there were 750+1 members)    FUNCTIONS:   - Legislative  ↳ Enacts the EU legislation (on the proposal of the Commission and in co-decision with  the Council)  - Budgetary  ↳ adopts the EU budget (with the Council). It is a single budget that is not divided.  - Supervisory  ↳ Political control and supervision of the Commission and political control of the  Council in external relations by giving assent to all international treaties signed by the  Council on behalf of the EC.    The European Council  The European Council​ (​informally​ EUCO) is a collegiate body that ​defines the overall  political directions and priorities of the ​European Union​.   - 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​.​ While the European Council​ has no ​legislative​ power​, it is a  strategic (and crisis-solving) body that provides the union with general political  directions and priorities, and acts as a collective presidency.    The Council of Ministers  The ascendancy of the European Parliament ​has limited the Council's legislative role  within the Union. On the other side, the ​rise of the  European Council​ has restricted the ​Council's executive powers ​(​Importantly:​ the  European Council is not identical with the Council​. It constitutes a separate Union  institution composed of the Heads of State or Government of the Member States.)    The Treaty on European Union​ defines it as follows: The Council shall consist of a  representative of each Member State at ministerial level, who may commit the  government of the Member State in question and cast its vote. And indeed, ​depending  on the subject matter at issue, ​there are different ​Council configurations.  1. General Affairs  2. Foreign Affairs  3. Economic and Financial Affairs  4. Justice and Home Affairs  5. Employment, Social Policy, Health and Consumer Affairs  6. Competitiveness (Internal Market, Industry, Research and Space)  7. Transport, Telecommunications and Energy  8. Agriculture and Fisheries  9. Environment  10.Education, Youth, Culture and Sport    One minister from each EU country. ​The ​Presidency rotates every six months​. Decide  EU ​Laws and budget ​together with Parliament. Finally, manages the ​common foreign  and security policy.    Decision-making and Voting  Decision-making in the Council will take place in two principal forms:    Charles Michel, ​previously also the ​Presidency of European Council​ was based on a six  months rotation. This until The Lisbon Treaty because now it provides a permanent  president. He or she must be a relevant and independent figure from the national  government (not a Head of a state, a minister, etc.) but elected for his/her commitment  for European Integration.​ Between The intergovernmental method and the integration  method, ​it needs mediation scale and in charge of representation tasks.      The European Commission   ↳ ​By promoting the common interest of the EU, ​the EU commission has to be  independent (not receiving instructions from anyone) and its main members are  independent from the government states. Composed by 27 commissioners, one from  each EU country.   - Collective responsibility: ​There​ is not an individual responsibility​ of each  commissioner of the acts that become from The Commission    THE PRESIDENT:  - The President has the role of coordination and representation of the  Commission. ​His/Her power has been increased, because he/she shapes the  political direction of the commission and as a consequence of the Union (with the  European Council).     FUNCTIONS:              The high  representative for  foreign affairs and  security  Josep Borrell              Presidency of the  Council of the  European Union  Angela Merkel  (July 2020 – 31  December 2020)          President of the Court  of Justice  Koen Lenaerts  (8 October 2015 - 6  october 2021)    - Legislative role, ​It proposes new legislation ​(exclusive power of initiative) ​also  when Parliament and citizens propose something the Commission needs to revise  and examine the proposals.  - Executive role,​ puts in place the policy and has the power to adopt implementing  legislation.    - Guardian of the treaties, ​administering and monitoring power in a framework of  enforcement of the european Union law by controlling the behaviour of each  figure in the EU.  - Representative roles, ​particularly important with negotiations. An international  subject with the power to enter in agreements with other international  organizations.      The “Ordinary” Legislative Procedure  The ordinary legislative procedure has seven stages:    1. Proposal stage  2. First reading  3. Second reading   Article 294 TFEU  4. Conciliation stage  5. Third reading  6. Signing   7. Publication   Article 297 TFEU    1. Proposal stage ​↳ Under the ordinary legislative procedure, the  Commission enjoys – with minor exceptions – t​he exclusive right to  submit a legislative proposal. ​This (executive) prerogative guarantees a  significant agenda-setting power to the Commission. The Treaties – partly  – protect this power from “external” interference by insisting that any  amendment that the Commission dislikes will require unanimity in the  Council.    2. First reading​ ↳   a. The Commission proposal goes to ​the European Parliament.​ The  Parliament will act by ​a majority of the votes cast, ​that is: ​the  majority of physically present parliamentarians​. It can ​reject ​the  proposal, ​approve it,​ or – as a middle path – ​amend it​.   b. The bill then ​moves to the Council,​ which will act by a qualified  majority of its members. Where​ the Council agrees with  Parliament's ​position, the bill is ​adopted after the first reading.   c. Where it ​disagrees​, the ​Council is called to provide its own position  and communicate it​, with reasons, to ​Parliament (second reading).    3. Second reading​ ↳ The (amended) bill lies for the second time in  Parliament's court; and Parliament has three choices as to what to do with  it.   a. Parliament may ​positively approve​ the Council's position by a  majority of the votes cast;   b. or ​reject it​ by a majority of its component members. Approval is thus  easier than rejection. (This tendency is reinforced by assimilating  passivity to approval.)  c. Parliament has a third choice: it may ​propose​, by a majority of its  component members, amendments to the Council position.   d. The amended bill will be forwarded to the ​Council​ and to the  Commission​ (that must deliver an opinion on the amendments). The  bill is thus back in the Council's court, and the Council has two  options. Where it approves all (!) of Parliament's amendments, the  legislative act is adopted.(The Council thereby acts by a qualified  majority, unless the Commission disagrees with any of the  amendments suggested by the Council or the Parliament.) But where  the Council cannot approve all of Parliament's amendments, the bill  enters into the conciliation stage.    4. Conciliation stage ​↳ This stage presents the last chance to rescue the  legislative bill. As agreement within the “formal” legislature has proved  impossible, the Union legal order “delegates” the power to draft a “joint  text” to a committee. This committee is called the ​“Conciliation  Committee”​.. The Committee is composed of members representing the  Council, and an equal number of members representing the European  Parliament. The Commission will take part “in” the committee, but is not a  part “of” the Committee.   a. Where the Committee ​does not adopt a joint text​, the legislative bill  has failed.   authorise the issue of banknotes and coins within the Union. It also manages the  official currency reserves of the Member States and ensures the smooth operation  of payments systems.  - Is composed by 19 governors of the central banks of the Member States of the  euro area    European economic and social committee   (art. 301 TFEU)  - 350 members  - The purpose of the European Economic and Social Committee is to give the  various economic and social groups (especially employers and employees,  farmers, carriers, business people, craft workers and the professions and  managers of small and medium-sized businesses) representation in an EU  institution. It also provides a forum for consumers, environmental groups and  associations.    Committee of the Regions of the European Union (art.305 TFEU)  - 350 members  - The members are representatives of regional and local authorities in the Member  States who must have a mandate based on elections from the authorities they  represent, or must be politically accountable to them.    Chapter 2: Union Legislation  1. Primary law treaties : ​Treaties are the starting point for EU law and are known  in the EU as primary law.  a. TEU art.6 ↪ Charter of fund rights  b. TFEU    2. The​ body of law that comes from the principles ​and objectives of the treaties is  known as ​secondary law​; and includes ​regulations, directives, decisions,  recommendations and opinions.    3. international agreements ​↪ General principles of Eu Law    Treaty-making power of the EU. ​International agreements cannot conflict with the  primary treaties,​ but legislation is subordinate to them.          General principles of Eu Law  ↪ they are non-written,​ customary principles. ​According mostly to national principles  of the member states. Fundamental rights were introduced as general principles.      Legislative versus non-legislative acts  Legislative acts are adopted following ​one of the legislative procedures​ set out in the  EU treaties (ordinary or special).​ Non-legislative acts do not follow these procedures  and can be adopted by EU institutions according to specific rules.   The acts that the EU can adop​t following the procedur​es (Not always those names are  used to describe those acts.):    1. Regulation​↪ ​Regulations are​ legal acts​ that ​apply automatically and uniformly to  all EU countries as soon as they enter into force,​ ​without needing to be  transposed into national law. ​They are ​binding​ in their entirety on all EU  countries.    2. Directive ​↪ ​Directives ​require EU countries to achieve a certain result​, but ​leave  them free to choose how to do so​. EU countries must ​adopt measures to  incorporate them into national law (transpose)​ in order to achieve the objectives  set by the directive. National authorities must communicate these measures to the  European Commission. When a country does not transpose a directive, the  Commission may initiate​ infringement proceedings.    3. Decision ​↪​ ​A distinction can be made between two categories of decision:  decisions which specify those to whom they are addressed, and general decisions  which do not have any specific addresses. It is directly binding on those to whom  it is addressed. A decision addressed to a Member State may in fact have the same  direct effect in relation to the citizen as a directive. General decisions which do  Legislation​ ↪ general term that includes all the ​acts ​ that can be adopted by the  institutions with different legal value according to the competencies of the union and  according the procedures established by the treaties ( a pretty wide dimension).    not specify to whom they are addressed​ are binding in their entirety​, although it  is not clear whom they are binding upon.    4. Opinion ​↪ ​NOT BINDING - ​An 'opinion' is an instrument that allows the ​EU  institutions to make a statement, without imposing any legal obligation ​on the  subject of the opinion. ​Outcome of the consultations during the legislative  processes (From the European central bank for example) - there is no obligation  to follow the opinion of a consultation body. It can be ​MANDATORY, ​because it is  essential that they are consulted. When an opinion of the parliament for the  adoption of an international agreement, only in THIS CASE, the opinion is  BINDING. ​The other exception is referring to the opinion of the ​Court of Justice.    5. Recommendation ​(conclusions of the EU council, in the written communication  of the commission, declarations of intents) ↪ ​NOT BINDING.​ ​Recommendations  allow the ​EU institutions to make their views known and to suggest a line of  action​ ​without imposing any legal obligation​ on those to whom it is addressed.     Chapter 3: Union Competences  The power to adopt normative acts. A legislative competence is the ​material field  within which the EU is entitled to legislate. It applies to the Union as such and to the  institutions.  - Vertical distribution of competences:​ the distribution of legislative powers  between the Union and the Member States.  - Horizontal distribution of competences:​ the distribution of decision-making  functions among the EU institutions (institutional balance)    Principle of conferral (or attribution​): The EU powers are not inherent, as in a State,  they must be conferred by the Treaties. In the Treaty it is possible to find the  thematic​ ​competences​ of the Union    Principle of subsidiarity: ​The principle of subsidiarity is defined in ​Article 5​ of the  Treaty on European Union. It aims to ensure that decisions are taken ​as closely as  possible to the citizens​ and that constant checks are made to verify that action at EU  art. 216 TFEU  The European Treaties do acknowledge the international personality of the European  Union. Origin: the EEC Treaty ​limited the Community’s power to enter into  international agreements​ with third countries to trade and association agreements.  The battle over external competences began with ERTA. ​The European Road  Transport Agreement (“ERTA”)​ had been drafted to harmonize certain social aspects  of international road transport and involved a number of Member States as potential  signatories. The negotiations were conducted without formal involvement of the Union.  The Commission felt excluded from its role as Europe's external broker. It  unsuccessfully insisted on being involved in the negotiations and eventually brought the  matter before the European Court. There, the Commission argued that the ​Union  competence​ under its transport policy included a ​treaty-making power​ (and that this  power had become exclusive after the adoption of Union legislation).  The provision​ grants the Union a residual competence to ​conclude international  agreements in three situations.  Parallelism of competences  Subsequent cases confirmed that from ​the fact that the Union has an internal power  derives for the Court an implied external power to conclude international agreements  for all matters falling within the scope of the Union’s internal competence. Opinion 1/76  (1977) on a laying-up fund for vessels in the​ Rhine and Moselle’s fluvial basins​, ​to be  established through an agreement with Switzerland  Art. 216 TFEU​ «The Union may conclude an agreement with one or more third  countries or international organizations 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 or is likely to affect common rules or alter their scope».    EU COMPETENCES  Different types of competences​ constitutionally pitch the ​relative degree of  responsibility of public authorities within a material policy field.    1. EXCLUSIVE COMPETENCIES  ↳ ​When the EU has an ​exclusive competence member states are not permitted to make  their own laws concerning that area. ​ It can  be assumed that a measure at EU level will be more effective ​than  a measure in any ​Member State ​that is not coordinated.    Article 3 TFEU of the Lisbon Treaty defines the following areas as exclusive EU  competences​:   - the ​Competition rules ​within the ​internal market​,  - the ​C​ustoms union​,   - the C​ommon ​commercial policy​,    - Monetary policy​ for the ​Euro​ countries,   - the ​Conservation of marine biological resources​ under the ​common fishing  policy   - the​ Conclusion of international agreemen​ts as exclusive competences if the EU  has a corresponding internal competence.    In these policy areas ​only the EU may legislate and adopt legally binding acts​, the  Member States being able to do so themselves only if so empowered by the EU or for  the implementation of Union acts.    2. SHARED COMPETENCIES  ↳ If the EU has a ​shared competence both the EU and the member states ​may make  laws, in all these areas the EU ​can exercise competence first, ​but only with regard to  matters laid down in the relevant Union instrument and not to the entire policy area.    There is ​shared competence​ for internal market  rules, economic, social and territorial cohesion, agriculture and fisheries,  environment, transport, trans-European networks, energy supply  and the area of freedom, security and justice, and also for common  safety concerns in public health matters, research and technological  development, space, development cooperation and humanitarian aid.    The pre-emptive effect of EU legislation  ↳ T​he ​Member States​ are allowed to legislate only in the part of the field that is not  occupied by EU legislation  3. COORDINATING COMPETENCIES   Article 2 and 5 TFEU    Competences that fall outside of the main categories:  • Economic policy  • Employment policy  • Social policy  The European Union has a competence to provide “arrangements” for the Member  States to exercise their competences in a coordinated manner. The Union's  coordination effort may include the adoption of “guidelines” and “initiatives to ensure  coordination”.  4. COMPLEMENTARY COMPETENCES  ↳ ​ ​Art. 2, par. 5, TFEU:   The EU’s competence to carry out supporting action is limited to ​coordinating or  providing complementary action​ for the action of the Member States; ​the EU cannot  harmonise national law​ in the areas concerned. Responsibility for drafting legislation  therefore  continues to lie with the ​Member States​, which thus have considerable  freedom to act.    The areas covered by this category of competence are  ↳ (​Article 6 TFEU) : the protection and improvement of human health; industry; culture;  tourism; education, vocational training, youth, and sport; civil protection; and  administrative co-operation.    Chapter 4: Fundamental Rights  The protection of human rights​ is a ​central task ​of many modern  constitutions. The European Union considers itself to be “founded on the values of  respect for human dignity, freedom, democracy, equality, the rule of law and respect  for human rights”.    Today, ​the EU is based on principles of ​Social Market economy​, an open market, with  freedom of movement of individuals and companies, freedom of competition and trade.  A great attention to citizens and social aspects of economic freedoms.     Chapter 5: Enforcement of European Union law   Direct Effect  Classic international law holds that each State can c​hoose the relationship between its  “domestic” law and “international” law. ​Two – constitutional – theories thereby exist:  monism and dualism.  1. Monism​. International law is part of the domestic legal order of a State. In this  case, it is directly applied as if it was of domestic origin.   2. Dualism​. International law is considered a separate legal order. It can’t be  directly applied, International law here needs to be “transposed” or  “incorporated” into domestic law and will here only have indirect effects through  the medium of national law.  To exercise the Union's competences, the institutions shall adopt ​regulations,  directives, decisions, recommendations and opinions.​ [2] A regulation shall have  general application.​ It shall ​be binding in its entirety and directly applicable in all  Member States​. A directive shall be ​binding​, as to the result to be achieved, upon each  Member State to which it is addressed, but shall leave to the national authorities the  choice of form and methods. A decision shall be ​binding in its entirety​. A decision  which specifies those to whom it is addressed shall be binding only on them.  Recommendations and opinions shall have no binding force.    Van Gend En Loos (case 26/62) of 1963  The case concerned a central objective of the European Union: the internal market.  According to that central plank of the Treaties, the Union was to create a customs union  between the Member States. Within a customs union, goods can move freely without  any pecuniary charges being levied when crossing borders. The Treaties had chosen to  establish the customs union gradually; and to this effect ​ex-Article 12 EEC ​contained a  standstill obligation: “Member States shall refrain from introducing between  themselves any new customs duties on imports or exports or any charges having  equivalent effect, and from increasing those which they already apply in their trade  with each other.”    - The Netherlands ​had allegedly violated this clause  ↳ ​Van Gend en Loos,​ a Dutch import company, brought action against the Dutch  government in a national court. The Dutch court referred a number of preliminary  questions to the Court of Justice: in particular, whether a private party could enforce  the EEC Treaty (an international treaty) in a national court. It followed from the “spirit”  of Treaties that European law was no “ordinary” international law.​ It would thus of  itself be directly applicable in the national legal orders.    1. All European Law is ​directly applicable in the national legal orders, a​nd is to be  enforced in national courts.  2. Individuals are subject to EU law​ and individual rights and obligations can derive  directly from EU law.  3. To be directly enforceable, ​a norm must be justiciable (self-executing)    Position of the States  Any infringements by the States have to be addressed under the procedure in art. 258  and 259 TFEU. The national court has the exclusive right to decide the effects of a treaty  in the domestic legal order.Legal rights of private parties can’t derive from the Treaties,  but solely from legal measures enacted by the States.    Position of the Commission  The effects of the provisions of the Treaty on the national law of the Member States is  determined by the Treaties themselves. Art. 12 EEC is a rule of law capable of being  effectively applied by the national court. The fact that the provision is addressed to the  states does not take away from individuals the right to require it to be applied in the  national courts    Decision of the Court:  The Court favored the constitutional view. It follows from the spirit of the Treaty that  European law is no ordinary international law. It can thus be directly applicable in the  national legal orders.  Conditions for ​direct effect of Treaty ​provisions according to Van Gend en Loos:  1. the provision has to be clear  2. The provision has to be unconditional  3. The provision has to be absolute (it must not allow for reservations on the part of the  States).  A provision has direct effect when it is capable of being applied by a national court.  Almost all Treaty prohibitions have direct effect, the direct effect being the normal  feature of European law.    Vertical and horizontal direct effect  1. Vertical effect↳ ​The possibility for an individual to invoke European law against  the State. It implies that the Treaties only attribute rights to the individuals.  2. Horizontal effect↳ ​The possibility for an individual to invoke European law  against another private party. It implies that the Treaties impose obligations on  individuals.    Direct effect of Secondary Law: Directives  In principle the directive is binding on States, not within States. A ​directive shall be  binding,​ as to the result to be achieved, upon each  Member State to which it is addressed, but shall leave to the national authorities the  choice of form and methods.    - Obligation of result  - Dualist approach    … direct effect of directives - Conditions and limits  - Temporal ↳ ​the direct effect of directives only arises after the failure of the State  to implement the directive has occurred. Thus, before the end of the  implementation period granted to Member States, no direct effect can take place.  - Normative ↳ ​The direct effect of directives can operate only against the State  (vertical effect)     The no horizontal direct effect rule  - A directive may not impose obligations on an individual and a provision of a  directive may not be relied upon as such against such a person (​case Marshall,  1986).    Case Faccini Dori​, 1994​. A private company had approached Ms Dori for an English  language correspondence course. The contract had been concluded in Milan's busy  central railway station. A few days later, she changed her mind and tried to cancel the  State?”    - Amministrazione delle Finanze v Simmenthal SpA case ​ (1978)​ 106/77 is an EU law  case, concerning ​the conflict of law between a national legal system and  European Union law​.Simmenthal SpA imported beef from France into Italy. Italy  imposed a public health inspection fee for the meat crossing the frontier under an  Italian Law of 1970.​ This conflicted with European Community Regulations from  1964 and 1968.  ↳ The​ ECJ​ held that the national court had ​a duty to give full effect to Community  provisions, even if a conflicting national law was adopted later.     A first national challenge to the absolute supremacy of European law crystallized  around​ ​Internationale Handelsgesellschaft case​.  ↳ also known as ​"​Solange I​"​, is an ​EU law case and German constitutional law case  concerning the ​conflict of law between a national legal system and the laws of the  European Union.  The Common Agricultural Policy permitted exports only by exporters who obtained an  export licence, on a deposit of money, that could be forfeited if they failed to make the  export during the licence’s validity period. The Internationale Handelsgesellschaft mbH  claimed that the licensing system was a disproportionate violation of their right to  conduct a business under the German constitution (​Grundgesetz​), because it did more  than was necessary to achieve the public objective at hand.  - The Court said that the validity of European measures can only be judged in the  light of European law (​absolute​ ​supremacy​). The case moved back to the German  Constitutional Court, which expressed its theory of ​relative supremacy​. “The part  of the Constitution dealing with fundamental rights is an inalienable feature of  the valid Constitution of the Federal Republic of Germany and one which forms  part of the constitutional structure of the Constitution''. The Court affirmed in  particular that ​so long as the European legal order had not developed an  adequate standard of fundamental rights, the German Constitutional Court  would disapply European law ​that conflicted with the fundamental rights  guaranteed in the German legal order.    Italian Constitutional Court: Frontini case, 1973  Counter-limits to the limits to sovereignty accepted under article 11 Italian Constitution  and the European Treaties. In the improbable case of ​violation, by EEC institutions, of  the fundamental principles of the Italian Constitution, or the fundamental rights of  the human being​, the judicial control of the Constitutional Court would be always  assured. This judicial control would have as object the compatibility of the Treaty with  said fundamental principles.       ECJ, Foto-frost vs ​hauptzollamt lübeck-ost.​, 1987  ↳ ​National courts,​ whether or not a judicial remedy exists against their decisions under  national law, themselves ​have no jurisdiction to declare that acts of community  institutions are invalid ​. That conclusion is dictated, in the first place, by the  requirement for community law ​to be applied uniformly.      BVerfGE, Maastricht-Urteil case , 1994  ↳With the Maastricht judgment of October 12, 1993,​ the German Federal Constitutional  Court confirmed the compatibility of the EU Treaty of Maastricht with the German  Basic Law​. It decided that the relocation of certain competences to the European Union  , which was criticized by the complainants - especially with the introduction of  economic and monetary union - did not violate the principle of democracy guaranteed  by the Basic Law and it is not associated with any significant reduction in the protection  of fundamental rights.  ↳ With the ​Lisbon judgment​ , the Second Senate of the German Federal Constitutional  Court​ (BVerfG)​ decided on June 30, 2009 on several applications. Both the Lisbon  Treaty (or the corresponding German Transformation Act ) and the transposition into  German law in the corresponding ​accompanying law​ ​were on the compatibility with the  German constitution​ (constitutionality or unconstitutionality checked).  After this decision, ​the German ​accompanying​ law partially violated the Basic Law.  The Treaty of Lisbon can be reconciled with the Basic Law , ​but it can only be ratified  by Germany if a new accompanying law gives the national parliaments more rights.    Chapter 7: National Actions  National Courts as European Courts  According to the ECJ, the national courts are the principal judicial enforcers of  European Law.   Functionally, the direct effect and supremacy of EU law transforms every national court  into a European court. The European system​ ​is based on a philosophy of​ cooperative  federalism:​ all national courts are entitled and obliged to apply European law to  disputes before them.    National procedural autonomy  The basis of judicial cooperation between national and EU courts is the principle of  procedural autonomy:​ when national authorities are responsible for implementing  European law it must be recognized that in principle this implementation takes place  with due respect for the forms and procedures of national law.    This formulation has become known as the principle of ​“national procedural  autonomy”​. It essentially means that in the judicial enforcement of European law, the  Union ​“piggybacks” ​on the national judicial systems. Yet the danger of such  “piggybacking”​ is that there is a European right but no national remedy to enforce that  right.    The Union​ has indeed imposed a number of o​bligations on national courts​. The core  duty governing the decentralized enforcement of European law by national courts is  thereby rooted in  - Duty of ​sincere cooperation (art. 4(3) TEU)  ↳ It is today complemented by​ (art. 19(1) TEU)​ which states: “Member States shall  provide remedies sufficient to ensure effective legal protection in the fields covered by  Union law Principle of equivalence”.  This duty of “sincere cooperation” has traditionally imposed two limitations​ on the  procedural autonomy of the Member States:   1) The principle of equivalence   2) The principle of effectiveness.    Principle of equivalence  National procedures and remedies for the enforcement of European rights cannot be  less favourable than those relating to similar actions of a domestic nature. ​When  applying European law, national courts must act as if they were applying national  law.  National procedures and remedies must not discriminate between national and  European rights. The principle of equivalence will consequently not affect the  substance of national remedies.  or multilateral effect of judicial decisions,​ as “judgments of the European Courts are  not sources but authoritative evidences of [European] law”:    - National courts and tribunals  The formulation ​“court or tribunal” in Article 267 ​directly refers to judicial authorities.  This removes administrative authorities, which have indeed been systematically  excluded from the scope of the judicial cooperation procedure.    In order ​to determine​ whether a body making a reference is a court or  tribunal for the purposes of Article [267] of the Treaty, which is a question  governed by [Union] law alone, ​the Court takes account of a number of factors:  - Established by law, Permanent, Compulsory jurisdiction, Procedure inter partes,  Applies rules of law, Independent- An ​authority that is not independent ​from the  State's administrative branch i​s not a court or tribunal​ in the meaning of  European law.  Any national court or tribunal, at any level of the national judicial hierarchy, and at any  stage of its judicial procedure,​ is entitled to refer a preliminary question to the ECJ    Questions   The national courts can request preliminary rulings when they have doubts on the  validity or interpretation of a EU rule that is relevant to the resolution of a dispute -  there is a “question” on which they consider it “necessary” for judgment to be given.  • If this is the case, the national court formulates a ​question ​and addresses the  question to the ECJ    Obligation of preliminary reference – art. 267, par. 3  - Where any such question is raised in a case pending before a court or tribunal of a  Member State against whose decisions t​here is no judicial remedy under national  law, ​that court or tribunal shall ​bring the matter before the Court​. This is the  case where a judicial decision cannot be appealed before a higher court.    - In the case of references on the validity of EU law, the Court has said that all  national courts – even courts that are not courts of last resort – are under an  obligation to refer when they are in doubt about the validity of an Union act. This  is because of ​the exclusive power of the ECJ to invalidate Eu acts.    Limit to the obligation to refer preliminary questions  “Acte clair” - ​The doctrine simply means that where it is clear how to act, ​a national  court need not ask a preliminary question.    1. When the question raised​ is materially identical with a question ​which has  already been the subject of a preliminary ruling in a similar case  2. Where the European Court had already given a ​negative answer​ to a question  relating to the validity of a Union act, another national court need not raise the  same question again.  3. When the correct application of EU law is so obvious as to leave no scope for any  reasonable doubt as to the matter in which the question raised is to be resolved    Chapter 8: European Actions  Judicial Competences and Procedures  The ​European legal order ​envisages two potential applicants for enforcement actions  against a failing Member State: ​the Commission and another Member State.    Infringement actions against Member States (Commission) – articles 258   The procedural regime for enforcement actions is the following:  If the Commission considers that a Member State ​has failed to fulfil an obligation  under the Treaties,​ it shall deliver a ​reasoned opinion ​on the matter after giving the  State concerned the ​opportunity to submit its observations ​(administration stage)​.  Before the administration stage is required a ​“letter of formal notice”​. In the “letter of  formal notice” the Commission will notify the State that it believes it to violate  European law, and ask it to submit its observations. If the State concerned ​does not  comply with the opinion ​within the period laid down by the Commission, the latter  may bring the matter before t​he Court of Justice of the European Union.    Enforcement Action brought by another Member State - Art. 259 TFEU   The Commission can raise any violation of European law, including breaches of the  Union's international agreements. ​However, the breach must be committed by the  “State”. This includes its ​legislature, its executive and – in theory – its judiciary​. The  Member State might also be responsible for violations of the Treaties by territorially  autonomous regions. And even the behaviour of its nationals may –exceptionally – be  attributed to the Member State. The Court has also denied the availability of​ “internal”  constitutional problems, or budgetary restraints, as justifications.​ However, one of  the arguments that the Court has accepted in the past is the idea of force majeure in an  emergency situation.    Financial sanctions – art. 260 TFEU - Action for a Failure to Comply with a Court  judgment    The European Court ​is not entitled to void national laws that violate  European law​. It may only declare national laws or practices ​incompatible ​with  European law. It remains with the ​competence of the Member States​ to remove  national law or practices that are incompatible with European law.   - Financial sanctions will not automatically follow from every breach of European  law. According to Article 260(2), the Commission may only apply for a “​lump sum  or penalty payment​”, where a Member State has failed to comply with a judgment  of the Court.  - The Commission can bring ​a second (!) case before the Court​. There is only one  exception to the ​requirement of a second judgment​. This “exceptional” treatment  corresponds to a not too exceptional situation: the failure of a Member State  properly to transpose a “directive”. Where a Member State fails to fulfil its  obligation “to notify measures transposing a directive adopted under a legislative  procedure”, the Commission can apply for a ​financial sanction​ in the first  enforcement action.     Actions against the Union - article 265 TFEU (Enforcement) Action for the Union's  Failure to Act  Enforcement actions primarily target a Member State's failure to act (properly).  However, infringement proceedings may also be brought against ​Union institutions. ​An  action for failure to act can be brought against any ​Union institution or body​, with the  exception of the ​Court of Auditors and the Court of Justice.  - It can be brought by another ​Union institution or body​, a ​Member State​, and  even a ​private party.  If the European Parliament, the European Council, the Council, the Commission or the  European Central Bank, in infringement of the Treaties, ​fail to act,​ the ​Member States  and the other institutions ​of the Union may bring an action​ before the Court of Justice  of the European Union to have the infringement established. The action shall be  admissible only if the institution, body, office or agency concerned has first been called  upon to act (​administrative stage)​. If, within two months of being so called upon, the  protecting their prerogatives. Court of Auditors, European Central Bank,  Committee of the Regions.   3. Non-privileged applicants​: natural or legal persons. They must demonstrate that  the Union act affects them specifically.    Legal standing of natural and legal persons in the ​Rome Treaty  The ​Rome Treaty ​granted individual applicants the ​right to apply ​for judicial review:  «Any natural or legal person may… institute proceedings against a decision addressed  to that person or against a decision which, although in the form of a regulation or  decision addressed to another person, is of direct and individual concern to the  applicant».   Critics:​ this limitation of private party standing (as interpreted by the Court in  Plaumann, 1963) is an illiberal limitation of an individual fundamental right to judicial  review (art. 47 EU Charter of fundamental rights).     Legal standing of natural and legal persons in the ​Lisbon Treaty  The ​Lisbon Treaty​ has substantially amended the Rome formulation. «Any natural or  legal person may… 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».   What are “regulatory acts”?   1. According to a ​first view, ​“regulatory acts” are defined as all “generally applicable  acts”. This reading liberalizes the standing of private applicants significantly, as  the second category would cover all legislative as well as executive acts of a  general nature.   2. According to a ​second view, ​on the other hand, the concept should be defined in  contradistinction to “legislative acts”. Regulatory acts are here understood as  non-legislative acts.    1. Art. 275 TFEU - Non-Jurisdiction for the Union's Common Foreign and Security  Policy :​ all acts adopted under the Common foreign and security policy, with the  exception of decisions establishing restrictive measures against individuals  2. Art. 276 TFEU - Jurisdictional Limits within the Area of Freedom, Security and  Justice​: validity or proportionality of police or other law enforcement operations  in a Member State, or exercise of responsibilities necessary for maintaining  public order and safeguarding internal security    Actions against the Union – III. Damages (article 340 TFEU)  - Where the Union has acted illegally, may the Court grant damages for losses  incurred?    The Union ​shall make good any damage caused by its institutions ​or by its servants in  the performance of their duties.   - The proceedings can be brought against ​any Union action or inaction that is  claimed to have caused damage​, within a five-year period.  Today, European law confers a​ right to reparation​ when three conditions are met):   1. the rule of law infringed must be intended to ​confer rights on individuals​;  2. the breach must be ​sufficiently serious​;   3. there must be a direct ​causal link between the breach of the obligation and the  damage sustained​ by the injured parties.    Chapter 9: Internal Market: Goods I  To create an ​internal market,​ the EU Treaties pursue a dual strategy:  negative​ and​ positive​ integration.    1) The Union is first charged to ​“free” the internal market ​from national barriers to  trade in goods.  2) The Union is here charged to ​adopt positive legislation​ to harmonize the diverse  national laws.    Fiscal Barriers I: Customs Duties  Negative integration. Elimination of customs duties – art. 30 TFEU    Within a customs union, these pecuniary charges are prohibited. Within the European  Union,​ they are outlawed by Article 30 TFEU.    Customs duty:​ «any pecuniary charge that is imposed on goods by reason of the fact  that they cross a frontier»    Article 30 ​extends the prohibition to charges​ having an ​equivalent effect (CEE)​: «any  charge which, by altering the price of an article exported, has the same restrictive effect  on the free circulation as a customs duty. Evaluation is made only on the basis of the  effect ​ of a charge. (Statistical levy, 1969). The charge is prohibited even if it is not  discriminatory and devoid of protectionist effect.  May a State exceptionally impose customs duties in certain situations?​ There are no  express justifications for fiscal barriers to trade in goods. The Court however  subsequently recognized two implied exceptions.   1) The​ first exception​ relates to the situation where a fiscal charge constitutes  consideration for a service rendered.  2) The ​second (implied) justification​ from the absolute prohibition of fiscal charges  are charges that a Member State levies a compensation for frontier checks that  are required under European law.  Fiscal Barriers II: Discriminatory Internal Taxation  Internal taxation –Prohibition of Discriminatory Taxes art. 110 TFEU    - No Member State shall impose, directly or indirectly, on the products of other  Member States any internal taxation of any kind in excess of that imposed directly  or indirectly on similar domestic products.  - Furthermore, no Member State shall impose on the products of other Member  States any internal taxation of such a nature to afford indirect protection to other  products.    Internal taxation is prohibited only if it is discriminatory  - It is illegal all national tax laws that ​discriminate between foreign and domestic  goods​. Discrimination here means that “similar” foreign goods are treated  dissimilarly.This might occur through ​direct or indirect ​means:  1) Direct discrimination​ takes place where national tax legislation legally  disadvantages foreign goods by – for example – imposing a higher tax rate than  that for domestic goods.  2) Indirect discrimination​ occurs where the same national tax formally applies to  both foreign and domestic goods, but materially imposes a heavier fiscal burden  on the former.  Discrimination Against “Similar” Foreign Goods  Article 110(1) prohibits foreign goods to be taxed “in excess of” similar domestic goods.  the domestic market of the State in question at the expense of the production or of the  trade of other Member States. «Quantitative restrictions on exports, and all measures  having equivalent effect, shall be prohibited between Member States». ​Only measures  that specifically discriminate against exports are considered unlawful.    Justifying regulatory barriers – art. 36 TFEU  Some ​quantitative restrictions or measures​ having equivalent effect could be justified  on certain grounds. Regulatory barriers to trade often pursue a legitimate regulatory  interest.    The ​provisions of Articles 34 and 35 shall not preclude prohibitions or  restrictions​ on imports, exports of goods in transit justified on grounds of public  morality, public policy or public security, the protection of health and life of humans,  animals and plants, the protection of national treasures possessing artistic, historic or  archaeological value, the protection of industrial and commercial property.  • It must be interpreted strictly because it constitutes a derogation from the basic rule  of elimination of all obstacles to trade.    Implied justifications: mandatory requirements  Despite having found the express exceptions in Article 36 to be exhaustive,  the Court has recognized the existence of implied justifications.    • Cassis de Dijon case (1979): ​The Court held that a regulation applying to both  imported and to domestic goods​ (an "indistinctly applicable measure") that produces  an​ effect equivalent to a quantitative import restriction​ ​is an unlawful restriction  on the free movement of goods​.  • Effectiveness of fiscal supervision, protection of public health, fairness of  commercial transactions, defence of the consumer. These justifications can only be  applied to measures that apply​ without discrimination to both domestic and  imported products.    The Proportionality Principle  Even if a legitimate public interest can be found to justify a national measure,  restrictions on the free movement of goods will be subject to a ​proportionality test.  All restrictions to trade, even if justified, are subject to a proportionality test. They must  be necessary to achieve the objectives. Least-restrictive-means test. Problem of the  standard of protection. Non consistent case law. British ban on pornography and  German beer.     Chapter 10: Internal Market: Goods II  The scope and nature of positive integration within the internal market.   The Union here ​adopts positive legislation​ to – partly or exhaustively – ​remove the  diversity of national laws​. The idea of integration through legislation stands behind  Article 26 TFEU.​ It states: The Union shall adopt measures with the aim of establishing  or ensuring the functioning of the internal market, in accordance with the relevant  provisions of the Treaties.    The EU applies the principles of ​Mutatis mutandis​,​ to all of the internal market:  Expressions used to emphasize that it is necessary to take into account the​ changes that  have occurred in some details, modalities and circumstances of an event​ with respect  to an analogous or substantially similar one; made the necessary distinctions.    LIMITS TO THE UNION'S INTERNAL MARKET COMPETENCES:  - First, a​ simple disparity in national laws will not be enough to trigger the  Union's harmonization competence. ​The disparity must give rise to obstacles in  trade or appreciable distortions in competition.  - Second, the ​Union measure must actually contribute to the elimination of  obstacles to free movement or distortions of competition,​ and where this is not  the case the Union measure is not a measure of positive integration    We saw there that the Union has not been eager to limit its harmonization  competences. It has refused to give a specific content to the technique of  “harmonization”, and it has traditionally interpreted the requirement that Union  harmonization must serve the establishment or functioning of the internal market  extremely widely.     For a long time, the scope of the Union's harmonization power appeared  devoid of constitutional boundaries. Yet, the existence of constitutional limits was  confirmed in ​Germany v. Parliament and Council (Tobacco Advertising case).  - The bone of contention had been a European law that banned the advertising and  sponsorship of tobacco products. ​Could a prohibition or ban be based on the  Union's internal market competence?​ Germany objected to the idea. It argued  that the Union's harmonization power could only be used to promote the internal  market; and this was not so in the event, where the Union legislation constituted,  in practice, a total prohibition of tobacco advertising.  The Court accepted – to the surprise of many – the argument. ​And it annulled, for the  first time in its history, a European law​ on the ground that it went beyond the Union's  harmonization power.    “Opting Up”: Derogation Clauses in Article 114  Once the Union has adopted a​ harmonization measure,​ all national measures that  conflict with the Union measure should – theoretically – have to be disapplied:  1. If, after the adoption of a harmonisation measure by the European Parliament and  the Council, etc, ​a Member State deems it necessary to maintain national  provisions on grounds of majo​r needs referred to in Article 36, or relating to the  protection of the environment or the working environment, ​it shall notify the  Commission of these provisions as well as the grounds for maintaining them.  2. If, after the adoption of a harmonisation measure by the European Parliament and  the Council, by the Council or by the Commission, a Member State deems ​it  necessary to introduce national provisions based on new scientific evidence  relating to the protection of the environment​ or the working environment on  grounds of a problem specific to that Member State arising after the adoption of  the harmonisation measure, ​it shall notify the Commission of the envisaged  provisions​ as well as the grounds for introducing them  Tax Harmonization, in particular: Article 113  The Council shall, acting unanimously in accordance with a special legislative  procedure and after consulting the European Parliament and the Economic and Social  Committee, ​adopt provisions for the harmonisation of legislation ​concerning ​turnover  taxes, excise duties and other forms of indirect taxation​ to the extent that such  harmonisation is necessary to ensure the establishment and the functioning of the  internal market and to avoid distortion of competition.    The provision allows the Union, when backed up by the unanimous consent of all  ↳vThis covers both​ direct and indirect ​discrimination   Finally​, what about​ non-discriminatory restrictions ​to the free movement of workers?  - Bosman Case (1995):​ ​The case concerned a professional football rule according to  which a footballer could not be employed by another club unless the latter paid a  transfer or training fee. This was a non-discriminatory rule that applied to  nationals and non-nationals alike. Nonetheless, the Court found that “those rules  are likely to ​restrict the freedom of movement of players ​who wish to pursue  their activity in another Member State by preventing or deterring them from  leaving the clubs to which they belong even after the expiry of their contracts of  employment with those clubs”.  - Non-discriminatory restrictions are thus ​covered by Article 45 TFEU.    Freedom of establishment  It guarantees the free movement of ​self-employed persons.  - Article​ 49 TFEU​:  «Within the framework of the provisions set out below, restrictions on the freedom of  establishment of nationals of a Member State in the territory of another Member State  shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of  agencies, branches or subsidiaries by nationals of any Member State established in the  territory of any Member State.   Freedom of establishment shall include the right to take up and pursue activities as  self-employed persons and to set up and manage undertakings,​ in particular  companies or firms within the meaning of the second paragraph of Article 54, under the  conditions laid down for its own nationals by the law of the country where such  establishment is effected, subject to the provisions of the Chapter relating to capital”.  Self-employed persons can be natural or legal persons, ​do not work under the  direction of an employe​r and ​will not receive a “salary” ​compensating for their  subordination. They can ​produce goods or provide services.  Difference with the freedom to provide services​: in the freedom of establishment the  service provider works in the host state on a stable and continuous basis (for example  in the form of a branch, an agency, or an office), while in the freedom to provide  services the service providers acts on a temporary basis.     Freedom of movement as a citizenship right  With the formal introduction of the provisions on European citizenship,  The European Treaties recognize a ​range of rights that pertain to all “Europeans​” by  virtue of being Union citizens.    • Article 21 TFEU:   1. Every citizen of the Union shall have ​the right to move and reside freely within  the territory of the Member States,​ subject to the limitations and conditions laid  down in the Treaties and by the measures adopted to give them effect.   2. If action by the Union should prove necessary to attain this objective and the  Treaties have not provided the necessary powers, ​the European Parliament and  the Council,​ acting in accordance with the ordinary legislative procedure, ​may  adopt provisions with a view to facilitating the exercise of the rights referred to  in paragraph 1.     Directive 2004/38 ​on the right of citizens of the Union and their family members​ to  move and reside freely within the territory of the Member States  - 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 r​ight 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.    Consequences of the Baumbast case  1. Article 21, 1) is ​directly effective  2. The personal scope of the citizenship rights does not depend on the ​economic  status of a person  3. Citizenship provisions are residual provisions that do not apply when other  provisions can be applied (for example, workers movement)  4. Any limitation on citizenship rights would be subject to judicial review    Directive 2004/38  1. Rights of exit and entry:​ Having spelled out the right to exit and enter a Member  State on condition of a valid identity card or passport  2. Rights of residence : Short-term/Long-term/Permanent (after lawful presence  for a continuous period of ​five years. ​It is independent of the economic status  and the financial means of the citizen  3. Rules for the right of permanent residence  4. Common provisions  5. Legitimate restrictions (public policy, public security, public health)      Justifying Restrictions on (Self-)employed Persons  - For workers, ​Article 45(3) ​expressly allows for “limitations justified on grounds of  public policy, public security or public health​”. And for the freedom of  establishment, Article 52 permits the “​special treatment for foreign nationals on  grounds of public policy, public security or public health”.    Public service exception  - Many States prefer to reserve ​“State jobs'' for​ their nationals. And the Treaties  concede a public service exception for restrictions on the free movement of  persons. For workers, we find this special justification in Article 45(4) TFEU, which  states that ​“[t]the provisions of this Article shall not apply to employment in the  public service”.    - For the ​freedom of establishment​ this special limitation can be found in Article 51  excluding activities​ “connected, even occasionally, with the exercise of official  authority”​ (article 51 TFEU)    Chapter 12: Competition Policy:   Article 101 TFEU  Competitive markets ​are markets in which economic rivalry is to enhance  efficiency. ​Market “forces” determine the winners and losers​ of this rivalry, and  competition will – ultimately – force inefficient losers out of the market (competition  was conceived as a​ tool to avoid distortions in the common market​)    - Who, then, forces the winner(s) to act efficiently? ​By the end of the nineteenth  century, this question was first raised in the ​United States of America. ​To  the sphere of European competition law.  - Agreements concerning a single member state​ are included if they affect  inter-state trade. And the Court has developed a number of constitutional tests as  to when inter-state trade has been affected.  - Networks of agreements:​ ​Delimitis case (1991)​. In this case, the agreement on  beer supply between a local pub and the brewery Henninger was relevant for the  common market. ​Could a single agreement concluded by a local pub with a local  brewery have an effect in intra-Union trade​? Yes, because it was part of a  network of similar agreements.  - De minimis rule​: (​A legal term meaning too small to be meaningful or taken into  consideration; immaterial). ​O​nly agreements that produce ​significant effects​ are  covered by article 101       Forms of Collusion between Undertakings  What types of​ multilateral collusions ​are covered by the prohibition? Article 101 refers  to ​three types​ of collusions:    1. Agreements between undertakings  2. Decisions by associations of undertakings  3. Concerted practices    Agreements: horizontal and vertical  Can be a​ “contract”​: Any binding agreement, the contractual form is not necessary but  what count is “a concurrence of ​wills​” between economic operators.  - Horizontal agreements​ are agreements between undertakings that are competing  with each other, that is: horizontally placed at the same commercial level.  - Vertical agreements,​ by contrast, are agreements between undertakings at  different levels of the commercial chain.  Would vertical agreements fall within the jurisdictional scope of Article 101? ↳ ​In  Consten and Grundig case (1964)​, concerning a distribution agreement, the Court held  that: «it is irrelevant whether the parties to the agreement are or are not on a footing of  equality as regards their position and function in the economy. This applies all the more  since, by such an agreement, the parties might seek, by preventing or limiting the  competition of third parties in respect of the products, to create or guarantee for their  benefit an unjustified advantage at the expense of the consumers or user, ​contrary to  the general aims of article 101​».     Agreements: tacit acquiescence or unilateral conduct?  Every agreement – whether horizontal or vertical – ​must be concluded on  the basis of common consent between the parties.​ It must be formed by a  concurrence of two wills. The idea of an ​“agreement”​ will thus find a conceptual  boundary where one party unilaterally imposes its will on the other. Yet there may  sometimes be a ​fine line between tacit acceptance and unilateral imposition​.    The ​ECJ ​tried to demarcate this line through cases:  - Ford vs Commission case (1985).​ Ford distributed his products in Britain and  Germany, on the basis of a “main dealer agreement”. That​ agreement appeared  not to violate Article 101,​ and originally allowed German distributors to order  right-hand as well as left-hand drive cars. However, as the prices for Ford cars on  the British market suddenly increased significantly, ​British customers began  buying from German dealers.​ Afraid that its British distributor would suffer the  consequences, Ford notified its German dealers that it would ​no longer accept  their orders for right-hand drive cars​. Such a decision is exempt from the  prohibition contained in article 101, on the contrary, it forms ​part of the  contractual relations between the undertaking and its dealers.    - In ​Bayer vs. Commision case (2000).​ Bayer distributed a medicine which price  differed significantly as it was indirectly fixed by the respective ​national health  authorities. ​The prices fixed by the Spanish and French health services were  lower than prices in the United Kingdom; and following commercial logic,  Spanish and French wholesalers ​began exporting to the British market.​ With its  British dealer registering an enormous loss of turnover, ​Bayer decided to stop  delivering large orders to Spanish and French ​wholesalers. Instead, it ​provided  them with the quantities that it thought would only saturate their national  markets​.   - Was this indirect ​export restriction​ a consensual agreement? While  accepting that “apparently unilateral conduct” can qualify as an agreement,  the latter required – as a conceptual minimum – the “existence of an  acquiescence​ by the other partners, expressed or implied, in the attitude  adopted by the manufacturer”. And this tacit acquiescence must be shown  through ​actual compliance with the “apparently unilateral” measure.​ And  in the present case, ​even tacit acquiescence was missing​. For the mere  continuation of the business relationship could not as such be tacit  acquiescence.    Concerted practices and parallel conducts  The conclusion of an agreement is but one form of ​collusion between undertakings​.  - Another form mentioned in Article 101(1) is​ “concerted practices”.​ The concept  was designed as a safety net to catch all forms of collusive behaviour falling short  of an agreement.  - not all ​“parallel behaviour”​ between undertakings – such as the parallel raising of  prices – ​can be identified with a concerted practice.      Cartel decisions through associations of undertakings  - The inclusion of this ​form of collusion into Article 101​ clarified that undertakings  could not escape the scope of Article 101 by ​substituting multilateral collusion  between them by establishing an association that would adopt unilateral decisions  on their behalf.    Restrictions on competition: Anti-competitive object or effect  In order for an agreement to ​violate the prohibition of Article 101(​1), it  must be ​anti-competitive​; it must be a “prevention, restriction or distortion of  competition”.    A restriction of competition is primarily a ​restriction between competitors​. The Union  legal order consequently recognizes two independent dimensions of competition:  1. Inter-brand: ​A restriction of competition is a restriction between competitors  (inter-brand)  2. intra-brand: ​For example in the case of vertical agreements that affect  competition between distributors of the same brand.  In any case, the two dimensions of restrictions of competition must be ​evaluated and  balanced.    Restrictions by Object: European “Per Se Rules”    An agreement may fall within Article 101(1) if it is anti-competitive by “object or effect”.  - It refers to the objective content​ of the agreement. It is designed to identify  certain “hardcore restrictions” within an agreement, which need not be subjected  withdraw the benefit of a block exemption from an individual agreement. Contain a  black list of prohibited restrictions​ and a market framework within which the  agreement is exempted.     Chapter 13 - Epilogue Brexit: past, present, future  The Brexit ​procedure has occupied the EU for much of the last four years, this is  because it is the first time since its founding that a member state decided to ​dissociate  from the EU in an attempt to regain “sovereignty” and “independence”.    Past: Britain as an ‘Awkward Partner’?  The UK has never been ​too enthusiastic about european integration, ​instead it  prefered for example on a first attempt the British Commonwealth and also has  proposed a rival organization to the EU: the 1960 EFTA (European free trade  organization) without political integration between its member states.     After all these years of scepticism towards The EU, in the early ​60s suddenly the UK  wanted to be a part of it​. The UK will not succeed on this objective until ​1973,​ due to the  first rejection by the EU and the veto imposed by Charles de Gaulle in 1963. From the  first moment the UK joined the EU, it has not been a “quiet” state and one of the most  relevant struggles was the belief that t​he UK was paying too much (it refers to the EU  budget) for what it got in return. ​Under the presidency of Margret Thatcher (1980) and  the slogan ​“our money back”​ UK adopted a strategy of (un)civil disobedience by  deliberately obstructing the Council in 1982. Progress on the EU budget question,  colloquially termed the “Bloody British question” even if this was the crucial moment in  which the major cracks in EU/UK relationship started to open.    A market without a government: the Thatcher Vision  Another huge matter was the “british vision” of the UK which was totally contrary to the  EU's one. Uk strongly believes in the exclusive integration between economies, with the  possibility for british business to exploit the frictionless trade with economies of scale  and scope. Unfortunately (for the UK) for the founding fathers of Union, economic  integration was only a first step to achieve this wider constitutional and political aim of  the federation of states.    The clash between the UK and the non-governmental organization came to a fire with  the sign of its first formal Treaty amendment: ​The Single European Act (SEA)​. The  initiative itself was born from a British European Commissioner who dreamt for a  single market with the aim to liberalize and deregulate as the Thatcher philosophy  expected. The other members pushed for a major institutional reform of the Union by  reintroducing ​qualified majority voting​ and with it the​ idea of European Market  regulation. ​When the UK discovered that the single market project was more than an  exercise in deregulation Thatcher got furious and in a famous speech she underlined  the big division with the EU.  From differential integration to leaving the union  - In ​1992 Maastricht treaty​ was signed and laid the foundations for Economic and  Monetary Union (EMU) and a significant push towards further political union had  been made  - 1997 ​UK secured an opt-out from the treaty and after 5 years also received an opt  out of the supranationalizaton of the Schengen Agreement, extrapolation from the  Treaty title on “Visas, asylum, immigration and free movement of persons”.   - 2007​ With​ the Lisbon Treaty​ UK obtained a partial opt-out from the EU Charter  of fundamental rights as well as other things  No other country had the same special status in the EU.  Euroscepticism in the UK grows and grows until our days and the rough point is  reached with the ​European Act 2011 ​which contains provisions for a “referendum lock”  to any future competence transfers to the Union. More dramatically, the ​Conservative  Party Leader David Cameron​ also promised a renegotiation of the British terms of EU  membership and an ​“in-out” referendum. ​This referendum took place the 23th of June  2016 and the result was that the majority of voters in the UK here expressed their wish  to leave the EU.    Present: Withdrawing under Article 50 TEU  Law disposition: ARTICLE 50 TEU  Article 49A of the Lisbon Treaty, which entered into force on 1 December 2009,  introduced for the first time a procedure for a Member State ​deciding to voluntarily  leave the EU.​ This is specified in ​ARTICLE 50​ of TEU. This article ​was first used by the  UK on 29 March 2017:    - “Any member state ​may decide to withdraw from the Union​ in accordance with its  own constitutional requirements.  - A member state which decides to withdraw ​shall notify the European council of its  intention.​ [...] The Union shall ​negotiate​ and ​conclude an agreement​ with that State  and take account of the framework for its future relationship with the Union.  - ….”  The right to withdraw is not automatic, because the leaving state must formally ​notify  the European Council of its intention​ as happened in reality on the 29th of March 2017  with the subsequent agreement that now governs the relationship between EU and UK.    Withdrawal agreement I: Structure and content  The 2019 British Withdrawal Agreement  - The situation of european citizens that had exercised their f​ree movement ​rights  in the past.  - For a while Brexit will eventually end the free movement of persons, both  sides agreed that the rights of EU citizens in the UK must be guaranteed so  as to protect past life choices so they will continue to enjoy these rights un  Part II of the Withdrawal Agreement.  - A ​financial settlement​ between the UK and EU had to be found  - It allows the UK to leave the E without being liable for outstanding financial  obligations under the EU budget or other financial instruments.   - The ​“Irish Border question”  - Considering the “Bloody” past of the Irish border question with this  agreement the border between the Republic of Ireland and Northern Ireland  becomes an external border of the European Union and that border will  require border checks for goods entering the EU internal market.  UK​ was taken out of the EU customs union (and the single market); yet it leaves UK out  of the EU customs union (and element of the single market)     Withdrawal agreement II: Implementation and governance  The implementation period of the withdrawal agreement is set to expire on 31  december 2020 and envisages the possibility of an extension. During this period the UK  continues to be in the single market and must apply EU law as EU law.    Future I: (Possible) Trade Agreements with the Union  The UK will continue to negotiate on its “​bespoke​” agreement but nowadays there are  several different models that some states adopted to be closely associated with the EU