Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

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

3 - The EU Legislative Pipeline Flashcards

(68 cards)

Start Studying
1
Q

What can the EU legislative process be seen as?

A

An integrated process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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?)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

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

A

The legal basis question

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

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

A

1/ categorisation of powers

2/ not the powers themselves

3/ hence, not legal bases

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What was nature of litigation in ECOWAS case?

A

Cross pillar legal basis litigation

NB: case pre-dates Lisbon system

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

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

A

1/ national insufficiency + comparative EU efficiency

2/ so difficult to satisfy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Why can it be argued that there exists a proceduralisation of subsidiarity? (3)
1/ statement of reasons? (Art. 5 P2) 2/ impact assessments 3/ intensity of CJEU review?
26
What does Protocol 2 cover?
Application of the pcples of subsidiarity and proportionality
27
What mechanisms does Protocol 2 codify in Art. 7? (3)
1/ yellow card procedure 2/ orange card procedure 3/ but there are possible defects
28
Characteristics of yellow card procedure? (4)
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
Characteristics of orange card procedure? (4)
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
What are some possible defects of Protocol 2? (3)
1/ only legislative acts (as defined in Art. 289(3) TFEU) 2/ only subsidiarity, not proportionality 3/ no red card procedure
31
Case that shows subsidiarity in action? (3)
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
Test for pcple of proportionality?
Measure must be suitable + necessary
33
How to evaluate necessity of a measure under proportionality test? (2)
1/ excessive intrusion into MS autonomy? 2/ effects on rights and interests of citizens, businesses, etc?
34
Scope of proportionality review? (2)
1/ strict for MS action 2/ 'manifestly inappropriate' test for EU action
35
Who are the main players in EU lawmaking? (4)
1/ MS (Gvts, NPs) 2/ EU political institutions (European Council, EP, EC, Council) 3/ civil society 4/ ECJ
36
How to determine the type of procedure to be applied for EU lawmaking? (4)
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
What are the 2 main types of procedures for the adoption of legislative acts?
1/ special legislative procedures (Art. 289(2) TFEU) => decreasing category 2/ OLP (Art. 289(1) TFEU) => increasing category
38
Who is dominant in special legislative procedures? (2)
Either 1/ EP 2/ Council (depending on procedure, EP must consent or be consulted)
39
Characteristics of the OLP? (5)
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
Internal voting of Council? (3)
1/ default rule = QMV (Art. 16(4) TEU) 2/ exceptionally = unanimity 3/ even more exceptionally = simple majority
41
Internal voting EP? (3)
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
OLP in practice? (3)
1/ great rate of success in 1st reading 2/ very few proposals get killed 3/ early agreements in trilogue settings
43
Considerations surrounding trilogues? (4)
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
Who represents EP during trilogues? (2)
1/ rapporteur 2/ chair relevant committee
45
Who represents Council during trilogues? (2)
1/ permanent representative of MS holding presidency 2/ chair Council WG
46
Who represents EC during trilogues?
Most relevant DG
47
How is the EC protected under the OLP? (4)
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
What are the most common forms of end products? (2)
1/ secondary law = 'legislative acts' (Regulations, Directives, Decisions 2/ tertiary law = 'non legislative acts'
49
Characteristics of Regulations? (6)
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
Characteristics of Directives? (4)
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
Characteristics of Decisions? (3)
1/ binding in their entirety 2/ if addressed to specified persons, only binding on them 3/ can be of individual or regulatory nature
52
What is a criticism of the forms of EU secondary law? (5)
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
What is tertiary law of EU composed of post-Lisbon? (2)
1/ delegated acts (Art. 290 TFEU) 2/ implementing acts (Art. 291 TFEU, also governed by Comitology and Regulation 182/2011)
54
Safeguards for delegated acts? (6)
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
Considerations surrounding Schengen Borders Code (SBC) case? (3)
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
What are political safeguards in Art. 290 TFEU? (3)
1/ EP or Council may revoke delegation 2/ EP or Council may veto entry into force 3/ ex post control
57
Characteristics of implementing acts? (6)
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
Constitutional safeguards Art. 291 TFEU? (4)
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
Considerations surrounding EURES case? (2)
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
Considerations surrounding implementation phase? (4)
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
What are 2 typical implementation pbs?
1/ EU's own terminology 2/ EU multilinguism
62
What are fundamental questions regarding implementation? (5)
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
Main contribution Arnold Andre case (2004)? (3)
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
What happens when an EU measure pursues a twofold aim or has a twofold component? (3)
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
Finding CJEU in ECOWAS case (2008)? (5)
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
Findings of CJEU in Schengen Borders Code case (2012)? (5)
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
Findings CJEU in Biocides case (2014)? (4)
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
Findings CJEU in EURES case (2014)? (2)
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)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions