Describe role of the (i) EP; (ii) TCEU; (iii) EC; and European Council.
(i) EP - Represents EU citizens, directly elected, holds EC and its president accountable, shares legislative function with council
(ii) TCEU - Represents Member States, makes legislative decisions
(iii) EC - Upholds EU interests and Treaty provisions; initiates all new EU policy initiatives and laws
(iv) European Council - Comprises heads of state and government of Member States, responsible for strategic planning and policy-making
What are the five areas of exclusive EU legislative competence?
- Customs union
- Competition rules
- Monetary policy
- Conservation of marine biological resources under common fisheries policy
- Common commercial policy
How does general voting take place in TCEU (3 points)?
- Simple majority for procedural matters
- Qualified majority - 72% of MS, 65% of population
- Double majority for EC or High Representative for Foreign Affairs and Security Policy proposals - 55% of MS; 65% of EU population
Three types of applications to CJEU?
- Judicial review (Arts 263 and 264 TFEU)
- Commission enforcement (Art. 258 TFEU)
- Preliminary references (Art. 267 TFEU)
What is the effect of the European Parliamentary Elections Act 1978?
UK Govt may not ratify a treaty expanding the EP’s powers without an Act of Parliament
What are the two effects of the European Union (Amendment) Act 2008?
- All directly effect Community provisions are automatically part of English law.
- Amendments to the founding EU treaties must be approved by an Act of Parliament.
What is the effect of the European Union Act 2011?
Amendments to TEU or TFEU must be approved by an Act of Parliament.
What is the meaning of “directly applicable” EU laws? Which forms of EU legislation are directly applicable?
No need for states to pass implementing legislation. Decisions and Regulations are directly applicable; Directives are not.
Which forms of EU legislation are binding in their entirety?
Only Regulations.
Directives and Decisions bind only those to whom they are addressed (note Decisions can be addressed to companies or Member States as well, but NOTE (i) Directives leave the precise form and method of implementation to each MS’ discretion and (ii) are binding as to Outcome only
Two effects of Simmenthal II?
- National courts must apply Community law in its entirety.
2. National courts must set aside conflicting national law whether prior or subsequent.
Effect of Factortame 2?
It is the duty of the UK Court to override any national law which conflicts with directly enforceable Community law.
Factortame 3 and 4’s 3-stage test of State liability?
- Rule of law infringed was intended to confer rights on INDIVIDUALS
- Infringement was sufficiently SERIOUS in that the State manifestly and gravely disregarded the limits of its discretion (e.g. failure to implement a Directive at all)
- Directly CAUSAL link between MS’ breach and damage
What is meant by the phrases “vertical direct effect” and “horizontal direct effect”?
Vertical DE - Individuals can evoke a European legislative provision in relation to the State
Horizontal DE - Individuals can evoke a European legislative provision in relation to other individuals
Which European legislative provisions can be horizontally directly effective?
Treaties and Regulations only, provided the provision is
- CLEAR and PRECISE - gives rise to identifiable rights and is set out in unequivocal terms; and
- UNCONDITIONAL - does not depend on the effectiveness of other measures and the State has no discretion in implementation
When is a Directive actionable?
Only Vertical Direct Effect IF the MS fails to implement within a time limit.
When does a national court need to issue a preliminary reference to the CJEU?
Only where
- the decision concerns validity and interpretation of an act by an EU institution and no appeal lies within the national system; or
- the decision concerns interpretation of the Treaties and the incompatibility of domestic legislation with the Treaties/EU law is not clear (i.e. acte clair doctrine not applicable)
Difference between Arts. 258 and 259 TFEU?
- Art 258 - Commissions brings proceedings against another MS
- Art. 259 - One MS bring proceedings against another MS
4 underlying principles of administrative law before the CJEU?
- Proportionality - do only what is necessary to implement EU law
- Legal certainty - no retroactive application of law and laws must not contravene legitimate expectations of those affected
- Procedural rights - CJEU will supply general safeguards if the EU provision does not
- Equality - persons in similar situations should only be treated differently if this can be objectively justified.
4 conditions of DE for Directives?
- CLEAR, PRECISE and UNCONDITIONAL
- INCORRECTLY implemented - i.e., not implemented at all (ii) implemented incorrectly or incompletely; or (iii) correctly implemented but incorrectly applied so that it fails to achieve intended purpose
- IMPLEMENTATION DATE has passed.
- Action is brought against the STATE or an emanation of the State (i.e., vertically)
Test for “emanation of the State” - tripartite test? Difference for bipartite test? Which preferred in UK?
- Body provides public service
- Which is under State control and
- For purposes of providing that service the body has special powers beyond those resulting from the normal rules applicable between individuals
Bipartite test = only 2 OR 3 needs to be satisfied.
UK prefers tripartite unless special circumstances.
What is the general principle behind indirect effect?
Even where a Directive does not have direct effect (or has only VDE where HDE is desirable), it can influence national law by requiring national legislation to be INTERPRETED, so far as possible, in conformity with the Directive
What are the 4 limitations on the principle of indirect effect?
Interpretation of national legislation should go as far as possible, but only provided
- It does not lead to an interpretation that is contra legem
- it does not contravene a general principle of EU law (legal certainty or procedural rights)
- It does not distort the meaning of original legislation or depart from the legislation’s fundamental feature.
- It cannot force the course to make policy choices or make decisions the practical effects of which cannot be properly assessed.
Limitation periods on State Liability claims?
6 years
