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Principles and Foundations of EU Law > 2 - Divisions of Power in EU Law > Flashcards

2 - Divisions of Power in EU Law Flashcards

(52 cards)

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1
Q

What is a fundamental premise when talking about the division of power within EU? (2)

A

Distinction btwn:

1/ division of powers (exists, but not a pcple in itself)

2/ separation of powers (no consensus on whether it exists within EU)

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2
Q

What is DP in the EU? (2)

A

1/ multi-layered

2/ polycentric

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3
Q

Main idea of DP? (2)

A

1/ legal limits to power

2/ no abuse of power

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4
Q

What does DP protect? (3)

A

1/ freedom

2/ self-determination

3/ both of EU citizens and MS

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5
Q

What should one look at when studying the vertical DP within EU?

A

EU systems of competences

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6
Q

What are the constitutional pcples regarding the EU system of competences? (3)

A

See Art. 5 TEU

1/ pcple of conferral

2/ pcple of subsidiarity

3/ pcple of proportionality

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7
Q

Characteristics of the pcple of conferral? (4)

A

1/ conferred but limited powers

2/ renders EU a unique supranational polity (only derived powers)

3/ key to EU action is conferral (i.e. attribution)

4/ figures across the Treaties

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8
Q

Where can one find the distribution of competences?

A

Arts. 2-6 TFEU

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9
Q

What are the 4 types of competences?

A

1/ exclusive powers EU (Art. 3 TFEU)

2/ shared powers EU-MS (Art. 4 TFEU)

3/ complementary EU powers (Art. 6 TFEU)

4/ special competences

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10
Q

What are some competences considered ‘special’? (4)

A

1/ CFSP

2/ Art. 3(2) TFEU (subsequent exclusive treaty powers)

3/ coordination of economic, employment and social policies

4/ Art. 352 TFEU (‘flexibility clause’)

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11
Q

Characteristic exclusive powers EU?

A

MS may not act

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12
Q

Characteristics of shared powers EU-MS? (2)

A

1/ MS may act if EU didn’t act

2/ full or partial harmonisation

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13
Q

Characteristics of complementary powers? (2)

A

1/ MS act, but EU may coordinate, support or supplement

2/ e.g. Open Method of Coordination

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14
Q

Important characteristic of the pcple of conferral?

A

Its flexibility

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15
Q

Why can the pcple of conferral be considered ‘flexible’? (3)

A

1/ CJEU monopoly & teleological interpretation of Treaties

2/ horizontal cross-cutting ‘purposive’ competences within the Treaties (e.g. internal market, ‘flexibility clause’)

3/ MS bound to exercise their competences in conformity of EU law (even their exclusive competences)

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16
Q

What is striking about ‘Tobacco Advertising’ case?

A

First time ECJ didn’t accept the EU legislature’s interpretation of EU competence

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17
Q

2 cases in which ECJ reminded MS that they are bound to exercise their competences in conformity of EU law?

A

1/ Rottman (nationality case law)

2/ Viking and Laval (free movement law)

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18
Q

Characteristics of the ‘flexibility clause’ (Art. 352 TFEU)? (3)

A

1/ no EU power

2/ however, EU action is possible where it is necessary to attain one of the objectives of the Treaties

3/ there are limits

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19
Q

Limits to the ‘flexibility clause’? (3)

A

1/ no circumvention of harmonisation bans

2/ Council acts by unanimity

3/ may not result in amendement of the Treaty

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20
Q

Counter-mouvements to the flexibility of the pcple of conferral? (4)

A

1/ constitutional saving clauses (e.g. social policy, health, constitutional identity)

2/ Tobacco Advertising: ‘harmonising measures adopted on the basis of other provisions of the Treaty’

3/ harmonisation bans allow for use of Art. 114 TFEU if its conditions are fulfilled

4/ ultra vires control by national constitutional courts (e.g. PSPP, Weiss)

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21
Q

Nature of the subsidiarity pcple? (2)

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A

See Art. 5(3) TEU

1/ does not apply to EU exclusive competences

2/ weak as legal pcple

22
Q

Link btwn pcple of subsidiarity & harmonisation?

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A

Harmonisation => bias towards EU as only can harmonise national laws

23
Q

Pcple of subsidiarity in CJEU case law?

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A

CJEU never annulled a measure based on a breach of subsidiarity

24
Q

Main question surrounding pcple of conferral and subsidiarity?

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A

Do they effectively set limits to European integration?

=> depends mainly on actor interpreting EU law

25
Main aims of conferral and subsidiarity? (2)
1/ limit EU powers 2/ protect powers of the MS
26
How is the effectiveness of conferral and subsidiarity undermined? (2)
1/ autonomy of EU law 2/ expressed in judicial monopoly of CJEU
27
What is a negative/positive (?) feature of conferral? (2)
1/ flexible pcple 2/ allowing for expansion of EU powers beyond those expressly conferred in Treaties
28
What limits are necessary to EU integration? (2)
1/ legal limits 2/ political limits
29
What is discussed when speaking of the horizontal division of powers within EU?
EU institutional balance (IB)
30
What is nature of pcple of IB? (2)
See Art. 13(2) TEU => 2 constitutional commands 1/ each institution acts within powers conferred on it 2/ with due regard to powers of other institutions
31
Meaning of IB? (3)
1/ fragile pcple with uncertain contents 2/ elusive concept 3/ relationship to concept of SP is contested and not yet settled
32
What is the meaning of IB as simple answer? (4)
1/ shorthand for the set of Treaty rules that apply to any EU decision => no general and independent legal content 2/ treaty procedural rules too diverse & detailed => no general system or balance across all policy fields 3/ CJEU: mainly uses pcple to verify specific procedural rules of Treaty provisions are complied with 4/ arguably not an actionable legal pcple
33
Meaning of IB if complicated answer? (4)
1/ content & function of IB as legal pcple remain unclear 2/ relationship with pcple of SP 3/ one view considers IB = EU specific expression of SP ('checks and balances') 4/ another view: IB and SP are different concepts
34
Why do some consider IB and SP are different concepts? (3)
1/ SP = politico-philosophical pcple securing collective & individual self-determination (constituting & limiting power) 2/ IB = legal pcple aiming to represent different interests in EU decision-making 3/ IB can only be used to evaluate EU political practice & secondary law against primary law
35
Meaning of IB in view of CJEU? (4)
1/ case law criticised as not entirely clear 2/ first mention in 'Meroni' ('fundamental guarantee') 3/ IB reflected in Art. 13(2) which is 'characteristic of the institutional structure of the Union' (Commission's right of Withdrawal) 4/ however, most case law does not go beyond applying Treaty procedures
36
Why is Chernobyl an exceptional case? (3)
1/ IB used to fill gap in the Treaty 2/ contra legem interpretation of Art. 263 TFEU (legal standing of EP) 3/ judicial invention subsequently codified via Treaty amendment
37
What does IB require?
Each institution exercises its powers with due regard for powers of other institutions
38
Which article codifies the ordinary legislative procedure?
Art. 289(1) TFEU
39
What is the objective of the ordinary legislative procedure? (2)
1/ to represent different interests 2/ double legitimacy bc representation of EU citizens (EP) and MS (Council)
40
Why can one say the Commission has a special role in the OLP? (6)
1/ part of EU executive 2/ truly supranational institution 3/ promotes EU general interest 4/ (almost) exclusive prerogative to initiate legislation 5/ 'fundamental characteristic of the EU constitutional order' 6/ has to be completely independent
41
Where is the EC's right of initiative codified?
Art. 17(2) TEU
42
Why does EC have a right of initiative?
To promote general interest of the EU
43
What does EC do before proposing legislation?
Broad consultation with parties concerned
44
What does EC determine with respect to legislative proposals? (3)
1/ subject-matter 2/ objective 3/ content => See 'Commission's Right of Withdrawal', para 70)
45
Who can request a proposal? (3)
1/ EP 2/ Council 3/ Citizen's Initiative
46
Can EC not follow a request for legislative proposal?
Yes but then it must explain why
47
How is right of initiative protected? (3)
See Art. 293 TFEU 1/ Council may amend EC proposal only by unanimity 2/ EC may alter its proposal as long as Council has not acted 3/ right of withdrawal?
48
Does EC have a right of withdrawal? (6)
1/ not expressly established in Treaties 2/ mirror image of the right of initiative 3/ combined reading of Arts. 17 TEU and 289, 293 TFEU 4/ see 'Commission's Right of Withdrawal' 5/ power of EC decreases the more advanced the legislative process (no right in 2nd or 3rd reading) 6/ there are limits
49
Why should EC have a right of withdrawal?
Otherwise, 2 legislators would be able to adopt legislation without EC proposal
50
Limits to EC right of withdrawal? (3)
1/ no right to veto 2/ reason-giving supported by 'cogent evidence or arguments' 3/ only where proposal is deprived of its raison d'être
51
Which pcples is OLP guided by? (2)
1/ equality 2/ joint decision-making btwn Council and EP
52
Fundamental question surrounding EC's monopoly of initiative?
Is it democratic?

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