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European Constitutional Law and Fundamental Rights > 3 - The EU Legislative Pipeline > Flashcards

3 - The EU Legislative Pipeline Flashcards

1
Q

What can the EU legislative process be seen as?

A

An integrated process

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2
Q

Why can we see the EU legislative process as integrated? (4)

A

There are 4 steps:

1/ preparation EU aw

2/ establishing EU law

3/ implementation EU law

4/ application in practice EU law

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3
Q

Detail of the EU legislative chain? (5)

A

1/ citizens, interest groups, experts => discuss & consult

2/ EC => makes formal proposal

3/ EP & Council => decide jointly

4/ national or local authorities => implement

5/ EC and CJEU => monitor implementation

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4
Q

What are the 3 big legal/political questions during the preparation phase?

A

1/ attribution (power, procedure, measure)

2/ subsidiarity (who is to exercise power?)

3/ proportionality (how far can EU go?)

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5
Q

What is a 4th important legal/political question during the preparation phase? (3)

A

1/ is there input legitimacy?

2/ there must be democratic safeguards

3/ account must also be taken of the position of civil society/public at large

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6
Q

What is the first question that must be answered during the attribution phase?

A

The legal basis question

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7
Q

How is the legal basis for attribution determined? (3)

A

1/ consideration of aim + content

2/ consideration must be objective

3/ see Tobacco Advertising => no subjective considerations

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8
Q

What to do when there are more than 1 possible legal bases for attribution? (2)

A

1/ predominant purpose test

2/ see e.g. British American Tobacco (para 96)

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9
Q

What to do when a measure has inseparable aims? (3)

A

1/ possibly double legal basis

2/ procedures must however be compatible

3/ see Titanium Dioxide

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10
Q

What’s the solution of last resort when there are difficulties to determine the legal basis for attribution? (2)

A

1/ lex specialis/generalis approach

2/ see Art. 352 TFEU, at bottom of the pile

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11
Q

What does the legal basis of attribution determine? (4)

A

1/ whether EU has power to act at all

2/ type of power EU can wield

3/ the applicable procedure (IB, voting)

4/ type of EU act that can be adopted

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12
Q

Characteristic of Arts. 3-6 TFEU? (3)

A

1/ categorisation of powers

2/ not the powers themselves

3/ hence, not legal bases

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13
Q

Characteristics of exclusive EU competences? (3)

A

1/ Art. 2(1) TFEU: MS may act only with empowerment of EU

2/ listed in Art. 3 TFEU, which contains a limited list

3/ deadlock in the Council cannot ‘revive’ MS competences => exclusive powers are truly exclusive

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14
Q

Characteristics of shared competences? (6)

A

1/ Art. 4(1) TFEU

2/ typical for cooperative federalism

3/ subject to the conflict rule of precedence

4/ in the extreme, pre-emption of the field by EU

5/ exception are parallel competences (R&TD, space policy, humanitarian aid, dvpt cooperation) - Art. 4(3)(4)

6/ mandatory minimum harmonisation is also shared

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15
Q

Characteristics of Art. 5 TFEU? (2)

A

1/ EU competent to coordinate economic, employment and social policies

2/ compromise btwn shared and coordinating power

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16
Q

Characteristics of Art. 6 TFEU? (3)

A

1/ complementary competences

2/ EU may support, coordinate or supplement actions of MS

3/ however, no harmonisation in Art. 6 TFEU fields

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17
Q

Why is Art. 352 TFEU controversial as legal basis for attribution? (4)

A

1/ can almost be viewed as a ‘simplified treaty amendment’

2/ hence, it is one of the most contested legal bases for EU action

3/ however, there are limits => no changes of constitutional significance, no circumvention of harmonisation bans

4/ there are also safeguards => Council unanimity voting

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18
Q

What are possible litigants of legal basis litigation? (3)

A

1/ EU MS

2/ private parties before national courts

3/ EU institutions inter se

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19
Q

What was nature of litigation in ECOWAS case?

A

Cross pillar legal basis litigation

NB: case pre-dates Lisbon system

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20
Q

Background info ECOWAS case? (3)

A

1/ TEU (CFSP, UV) vs. TFEU (dvpt cooperation, QMV)

2/ Council Decision

3/ capacity building operations for ECOWAS States

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21
Q

Main findings ECOWAS case? (4)

A

1/ reduction of small firearms is cumulatively a condition for peace&security AND sustainable dvpt

2/ 2 goals are indissociably linked, so centre of gravity test doesn’t work

3/ double legal basis however not possible bc cross pillar

4/ Council Decision annulled

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22
Q

What is the nature of the pcple of subsidiarity? (4)

A

1/ federal?

2/ legal?

3/ political?

4/ => this remains a question, no clear answer

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23
Q

Was is the test to satisfy pcple of subsidiarity? (2)

A

1/ national insufficiency + comparative EU efficiency

2/ so difficult to satisfy

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24
Q

Other considerations surrounding pcple of subsidiarity? (3)

A

1/ typical pcple of cooperative federalism

2/ not applicable to EU exclusive competences

3/ judicial safeguards are weak (manifest error, exceeding limits of its discretion)

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25
Q

Why can it be argued that there exists a proceduralisation of subsidiarity? (3)

A

1/ statement of reasons? (Art. 5 P2)

2/ impact assessments

3/ intensity of CJEU review?

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26
Q

What does Protocol 2 cover?

A

Application of the pcples of subsidiarity and proportionality

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27
Q

What mechanisms does Protocol 2 codify in Art. 7? (3)

A

1/ yellow card procedure

2/ orange card procedure

3/ but there are possible defects

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28
Q

Characteristics of yellow card procedure? (4)

A

1/ draft legislative acts

2/ 1/3 votes allocated to NPs (1/4 for AFSJ)

3/ mandatory review of proposal

4/ however, final choice may be to maintain, amend or withdraw proposal

29
Q

Characteristics of orange card procedure? (4)

A

1/ only for proposals legislative acts under OLP

2/ simple majority votes allocated to NPs

3/ mandatory review of proposal

4/ possible ‘easy rejection’

30
Q

What are some possible defects of Protocol 2? (3)

A

1/ only legislative acts (as defined in Art. 289(3) TFEU)

2/ only subsidiarity, not proportionality

3/ no red card procedure

31
Q

Case that shows subsidiarity in action? (3)

A

1/ Monti II (Regulation on the right to strike)

2/ 1st time yellow card threshold was met

3/ EC proposal withdrawn but came back as a cooperative act

32
Q

Test for pcple of proportionality?

A

Measure must be suitable + necessary

33
Q

How to evaluate necessity of a measure under proportionality test? (2)

A

1/ excessive intrusion into MS autonomy?

2/ effects on rights and interests of citizens, businesses, etc?

34
Q

Scope of proportionality review? (2)

A

1/ strict for MS action

2/ ‘manifestly inappropriate’ test for EU action

35
Q

Who are the main players in EU lawmaking? (4)

A

1/ MS (Gvts, NPs)

2/ EU political institutions (European Council, EP, EC, Council)

3/ civil society

4/ ECJ

36
Q

How to determine the type of procedure to be applied for EU lawmaking? (4)

A

1/ EU ‘legislative acts’ is a formal concept

2/ the nature of the act is determined by procedure, not content

3/ see Art. 289(3) TFEU

4/ see Quota ruling

37
Q

What are the 2 main types of procedures for the adoption of legislative acts?

A

1/ special legislative procedures (Art. 289(2) TFEU) => decreasing category

2/ OLP (Art. 289(1) TFEU) => increasing category

38
Q

Who is dominant in special legislative procedures? (2)

A

Either

1/ EP

2/ Council (depending on procedure, EP must consent or be consulted)

39
Q

Characteristics of the OLP? (5)

A

1/ complex tango btwn Council and EP

2/ 1st reading on basis of EC proposal

3/ if necessary, 2nd reading on basis position Council

4/ if necessary, 3rd reading on basis text Conciliation Committee

5/ protection of EC after commencement (Art. 293 TFEU)

40
Q

Internal voting of Council? (3)

A

1/ default rule = QMV (Art. 16(4) TEU)

2/ exceptionally = unanimity

3/ even more exceptionally = simple majority

41
Q

Internal voting EP? (3)

A

1/ default rule = majority of votes cast (Art. 231 TFEU)

2/ quorum is 1/3 of 751 MEPs (= 251 MEPs)

3/ exceptionally = majority of members (e.g. for rejection or amendment)

42
Q

OLP in practice? (3)

A

1/ great rate of success in 1st reading

2/ very few proposals get killed

3/ early agreements in trilogue settings

43
Q

Considerations surrounding trilogues? (4)

A

1/ participation of EP, Council and EC

2/ possible at all stages of OLP

3/ high chance of early agreement in 1st reading OLP

4/ ties in with ‘input’ vs. output legitimacy discussion

44
Q

Who represents EP during trilogues? (2)

A

1/ rapporteur

2/ chair relevant committee

45
Q

Who represents Council during trilogues? (2)

A

1/ permanent representative of MS holding presidency

2/ chair Council WG

46
Q

Who represents EC during trilogues?

A

Most relevant DG

47
Q

How is the EC protected under the OLP? (4)

A

1/ right of initiative protected under Art. 293 TFEU

2/ up until 2nd reading, Council must act unanimously on amendments on which EC delivered negative opinion

3/ in 3rd reading, necessity to come to a deal prevails however

4/ EC can withdraw proposal until Council has acted (so not an unfettered right, see Macro Financial Assistance)

48
Q

What are the most common forms of end products? (2)

A

1/ secondary law = ‘legislative acts’ (Regulations, Directives, Decisions

2/ tertiary law = ‘non legislative acts’

49
Q

Characteristics of Regulations? (6)

A

1/ general application

2/ binding in entirety

3/ directly applicable

4/ no implementation in national law

5/ see however case law, showing that Regulations often need implementation (e.g. Amsterdam Bulb)

6/ aim is uniformity + speed

50
Q

Characteristics of Directives? (4)

A

1/ binding as to result to be achieved

2/ MS choose form and methods

3/ aim is harmonisation

4/ hybrid instrument (confederal/international; federal/national)

51
Q

Characteristics of Decisions? (3)

A

1/ binding in their entirety

2/ if addressed to specified persons, only binding on them

3/ can be of individual or regulatory nature

52
Q

What is a criticism of the forms of EU secondary law? (5)

A

1/ blurred distinction

2/ overly detailed Directives = masked Regulations?

3/ Reg. in need of implementation = masked Dir.?

4/ Decisions masking as Dir.

5/ is this legal?

53
Q

What is tertiary law of EU composed of post-Lisbon? (2)

A

1/ delegated acts (Art. 290 TFEU)

2/ implementing acts (Art. 291 TFEU, also governed by Comitology and Regulation 182/2011)

54
Q

Safeguards for delegated acts? (6)

A

1/ always under legislative act

2/ only possible to amend or supplement non essential elements

3/ delegation of rule-making

4/ only to the EC

5/ acts of ‘general application’

6/ scope of EC power must always be strictly defined

55
Q

Considerations surrounding Schengen Borders Code (SBC) case? (3)

A

1/ adopted under pre-Lisbon regime

2/ main question: who determines what essential elements are? EU legislature or ECJ?

3/ main finding: essential elements = objective factors amendable to judicial review (para 67)

56
Q

What are political safeguards in Art. 290 TFEU? (3)

A

1/ EP or Council may revoke delegation

2/ EP or Council may veto entry into force

3/ ex post control

57
Q

Characteristics of implementing acts? (6)

A

1/ executive power

2/ need for uniform conditions for implementation of binding EU act

3/ if not present, implementation by MS (vertical DP)

4/ beneficiary is EC or Council

5/ subject to Comitology (Regulation 182/2011, advisory & examination procedure)

6/ choice btwn Art. 290 vs. 291 is political and will only marginally be reviewed (Biocides)

58
Q

Constitutional safeguards Art. 291 TFEU? (4)

A

1/ ‘Comitology’

2/ EC kept in check by committees of representatives of MS

3/ examination procedure => veto and possibly appeal by EC

4/ residual: advisory procedure => EC may still act despite negative advice

59
Q

Considerations surrounding EURES case? (2)

A

1/ Art. 291 TFEU lays down a delimitation in substantive terms (only measures necessary for implementation of legally binding Union act)

2/ hence, no amending or supplementing a legislative act (incl. non-essential elements) (para 45)

60
Q

Considerations surrounding implementation phase? (4)

A

1/ time pressure

2/ typical pbs (constitutional issues, lengthy procedure, issues with federal decentralisation, court procedures)

3/ European compromise legislation vs. quality of EU legislation

4/ ‘misfit’ with national legal system

61
Q

What are 2 typical implementation pbs?

A

1/ EU’s own terminology

2/ EU multilinguism

62
Q

What are fundamental questions regarding implementation? (5)

A

1/ primacy of parliamentary (statutory) law?

2/ importance of efficient lawmaking

3/ importance of transparent lawmaking

4/ respect for national system and structure of legislative complex

5/ main question: what is remaining national discretion?

63
Q

Main contribution Arnold Andre case (2004)? (3)

A

1/ ECJ review proportionality of EU acts

2/ EU legislator must be allowed ‘broad discretion’ in areas involving ‘political, economic and social choices’ and requiring ‘complex assessments’

3/ it is only when EU institution adopts a measure that is ‘manifestly inappropriate in relation to the objective pursued’ that it may be considered illegal

64
Q

What happens when an EU measure pursues a twofold aim or has a twofold component? (3)

A

1/ if one is identifiable as the main one => measure must be based on a single legal basis (centre of gravity test)

2/ if none of the several components is incidental to the other => measure can be founded exceptionally on various corresponding legal bases

3/ recalled by CJEU in ECOWAS case

65
Q

Finding CJEU in ECOWAS case (2008)? (5)

A

1/ bear in mind this was before Lisbon

2/ contested decision pursued various objectives falling both within CFSP and dvpt cooperation policy

3/ none of the objectives were incidental to the other

4/ but Art. 47 EU precluded EU from adopting contested decision by relying on 2 legal bases

5/ decision annulled

66
Q

Findings of CJEU in Schengen Borders Code case (2012)? (5)

A

1/ issue related to Art. 290 (delegated acts)

2/ assessment of which elements must be categorised as ‘essential’ under Art. 290 is based on ‘objective factors amendable to judicial review’

3/ for that, necessary to take account of characteristics and particularities of domain concerned

4/ provisions requiring political choices falling within responsibilities of EU legislature cannot be delegated

5/ contested decision annulled in entirety

67
Q

Findings CJEU in Biocides case (2014)? (4)

A

1/ it is nature and purpose of power conferred on EC that determine whether power belongs to legislative delegation or implementing power (para 24)

2/ implementing power applied only ‘where uniform conditions for implementing legally binding Union acts are needed’

3/ concept of implementing act must be assessed in relation to concept of delegated act

4/ judicial review of EU legislature’s choice of power conferred on EC is limited to ‘manifest errors of assessment’

68
Q

Findings CJEU in EURES case (2014)? (2)

A

1/ case related to lawfulness of implementing measures adopted by EC

2/ when exercising implementing power, EC may neither amend nor supplement the legislative act

European Constitutional Law and Fundamental Rights (10 decks)

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