EU Decision Making - Main Deck Flashcards
(144 cards)
1
Q
What does the EU have to achieve the aims or goals, the EU and its institutions have:
A
specifically defined competences
2
Q
Exclusive Competences (art. 3 TFEU)
A
The Union enjoys exclusive competences in a few areas only, such as (1) for certain aspects of the common custom duties, (2) commercial policy to third countries, and (3) Parts of the Common Fishing Policy
3
Q
Shared / non-exclusive Competences (art. 4 TFEU)
A
The Union shall share competences with the member states where the Treaties confer on it a competence which does not relate to the areas referred to in Art. 3 and 6
4
Q
In which article can you find the division of competences?
A
Art. 2 TFEU
5
Q
Areas of Shared Competences
A
(1) Internal Market
(2) Social Policy
(3) Economic, social and territorial cohesion
(4) environment
(5) agriculture and fisheries
(6) consumer protection
(7) transport
(8) energy
(9) area of freedom security and justice
(10) common safety concerns in public health matters
6
Q
In which TFEU article can you find the supporting, coordinating competences?
A
Art. 6 TFEU
7
Q
Conferral (main principles)
A
Under this principle of conferral, the Union shall only act within it limits of the competences conferred upon it by the MS in the Treaties
8
Q
The Principle of Conferral
A
This principle also entails that for each specific competence it is already determined
(1) Which procedure the institutions have to follow
(2) which instruments can be adopted
9
Q
Principle of Subsidiarity
A
In areas that do not fall within the Union’s exclusive competence, the Union shall only act if and in so far as the objectives of the proposed action cannot be sufficiently achieved by MS
10
Q
Principle of proportionality
A
Under this principle the content and form of the Union action shall not exceed what is necessary to achieve objectives of the Treaties
11
Q
Who/What is the Primary Legislature of the Union
A
The Member States
12
Q
Legal Autonomy of the EU
A
Autonomous legal order (van Gend en Loos) → Legal acts adopted by the institutions are binding to the MS
13
Q
Political Autonomy of the EU
A
Developed since 1974 when the European Council was established and agreement on a directly elected parliament was reached
14
Q
In which institution(s) are the MS represented
A
European Council → By their head of state or government and the Council of the European Union → by their governments
15
Q
EU Citizenship
A
Every national of a MS shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship
16
Q
EU Citizens have a dual citizenship
A
One of the MS and one of the EU
17
Q
In which institutions are the Citizens of the Union represented?
A
Citizens are directly represented at Union level in the European Parliament
18
Q
Community method (Decision making)
A
Classic Depiction of EU Decision Making → This method allows for a transparent, effective and democratic functioning of the European Union
19
Q
The Union method (Decision making)
A
Coordinated action in a spirit of solidarity → each of us in the area for which we are responsible but all working together to the same goal
20
Q
What does the Union method reflect?
A
- Eu Decision making is not a matter of traditional institutions
- Decision Making is not only technical and about rulemaking
- The Role of the European Council
- The role of member states
21
Q
The EU and Corona
A
A coordinated approach to purchase vaccines
22
Q
Which EU institutions are involved in EU Law Making
A
European Council, European Commission, European Parliament, Council, CJEU
23
Q
The Concept of Institutional balance (Art. 13(2) TEU)
A
Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
24
Q
Which EU Executive Branch has the right of initiative
A
The European Commission
25
The EU's Executive Branch is
the European Commission
26
To whom can the content and timing of an initiative from the commission often be traced back?
To the conclusions of the European Council
27
The EU's legislative branch
European Parliament and the Council (of the European Union) → equal
28
European Parliament
Different political groups + committees
29
Council
Different Configurations, in practice a lot is decided or prepared in Coreper and Working Groups
30
EU's Judicial Branch
Court of Justice of the European Union (CJEU)
31
Judicial Branch law making
Preliminary Procedure
| Action for Annulment
32
Legal basis for the right of initiative (Commission)
Art. 17(2) TEU
| Tobacco Advertising Case (Federal Republic of Germany v EP and Council
33
The Ordinary legislative procedure
Art. 294 TFEU → In most instances a proposal is adopted by the EP and the Council after the first reading. Normal to have this procedure where there are two chambers of the legislative branch
34
A special legislative procedure
Art. 289(2) TFEU → In most instances this means adoptions by the Council with the participation (Consent or Consultation) of the Parliament.
35
Legislative Acts
Art. 289(3) → Legal acts adopted by legislative procedure shall constitute legal acts
36
Which acts can be both legislative and non-legislative
Regulations, Directives and Decisions
37
Are Non-legislative acts binding?
Yes they are binding → Clarity in the Constitutional Treaty
38
When do we apply non-legislative acts
1. When legislative acts cannot be adopted (CFSP)
2. When the act is non-legislative in nature
(sometimes this is not so clear)
39
Delegated and implementing acts
Art. 290 and 291 TFEU
40
Direct Effect in EU Law
EU Law creates rights that can be directly enforced in national courts
41
Supremacy in EU Law
National Courts must give immediate effect to EU law of whatever rank. Any EU provision prevails over any provision of national law including the national constitutions
42
Problems of Direct Effect and Supremacy (EU law)
National courts have to apply EU law, the law can be unclear in its application.
EU Law is supreme and the CJEU provides binding interpretations of EU law
43
Solution of the problems of Direct Effect and Supremacy
Preliminary Reference → Form of reference specific to EU law
44
What is a preliminary ruling?
Where national courts encounter problems relating to the interpretation of European law, they can ask 'preliminary questions' to the CJEU. These questions are preliminary since they precede the formal application of EU law by the national court
45
Role of the CJEU in the Preliminary ruling
The CJEU does not decide the case, it is only indirectly involved in the judgement delivered by the national court. It rules on the questions and then refers the case back to the national court.
46
The legal function of the preliminary ruling
1. Legal unity and uniformity of EU law → ensures that national courts apply the law uniformly
2. Serves the development of EU law → new cases, new situations, development
3. Protects individual rights
47
When has the Court jurisdiction in preliminary rulings
1. Concerning the interpretation of the Treaties
| 2. Concerning the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union
48
FOTOFROST
significantly, national courts cannot declare an EU norm or act invalid
49
National Court's rights to ask questions (article)
Art. 267 (2)
50
Acte Clair
When can the national court decline to refer?
51
Questions that can be referred
Mainly the responsibility of national courts in assessing the question when it is raised for a preliminary ruling before the CJEU. It is not up to the parties, not up to the CJEU
52
Referral Questions (Peterbroeck case)
If a national authority with proper legal authority finds that it needs to refer a question, this will not be reviewed by the CJEU
53
When are Courts obliged to refer?
Where any such question is raised in a case pending before a court or tribunal of a MS against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court
54
When can the national court decline to refer?
system of precedent begins to emerge, where past CJEU rulings can be applied to later cases by national courts.
55
Da Costa
Where the CJEU has already ruled an issue, national court can only refer if there is some new factor of argument, the court would still be inclined to just restate the substance of the earlier case
56
CILFIT
So obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. - equally clear -
57
Legal Effect of Preliminary rulings in Common law
Preliminary rulings are legal precedents that generally bind all national courts.
58
On who are judgement of the European Court binding? (Common Law)
They are binding on everyone
59
Acte Clair (Common Law)
Rise of the doctrine of judicial precedent with the evolution of the doctrine
60
CJEU's Judgements results (Common Law)
The CJEU's Judgement do not create new legal rules but only clarify old rules
61
Legal Effect of Preliminary Rulings in Civil Law
The CJEU's judgements are not sources but authoritative evidences of EU Law
62
On who are judgements of the European Court binding (Civil Law)
The CJEU's judgements are not generally binding
63
What do interpretation given by the court become? (Civil Law)
an integral part of the provision interpreted and cannot fail to affect the legal position of all those who may derive rights and obligations from the provision
64
What effect does the CJEU's judgements on preliminary rulings have?
Effects ex nunc (an effect from the time of the ruling)
65
What are preliminary rulings?
Mechanisms through which national courts can ask the CJEU questions of EU law
66
What does the Court do with questions asked?
Answers, and refers the case back to the national court
67
The Principle of sincere Cooperation
Member States are responsible for applying EU law in good faith, and for the EU and the MS working together to do so
68
Why is the Principle of sincere cooperation often used by the CJEU
To ensure cooperation between the EU and the MS
69
Power of the European Commission (week 3)
To bring enforcement proceedings
70
4-stage process
1. Pre-contenious stage
2. Formal notification
3. Reasoned opinion
4. Referral to CJEU
71
Pre-litigation phases of the 4-stage process
Pre-contenious stage and formal notification
72
Litigation phase of the 4-stage process
Reasoned opinion and Referral to CJEU
73
Pre-continious stage
Chance of the MS to explain itself, gives opportunity to reach accommodation with the Commission. 90% of cases are resolved at this stage, after MS takes some action to resolve the issue
74
Formal notification
Letter from the Commission requesting further information. The MS is given (usually) 2 months to address the specific infringement.
75
Move from pre-litigation to litigation phase
Most cases don't move from the pre-litigation phase
76
Reasoned opinion
Art. 258 Official way the Commission Communicates the substance of a complaint to a state. There is a specified time period in which the MS has to respond (usually 2 months) - sets out clearly the grounds on which the alleged infringements rests
77
Commission v. United Kingdom (reasoned opinion)
Court will not examine Commission's motives to bring proceedings, Commission can choose whether to do it or not
78
Star Fruit (reasoned opinion)
CJEU has repeatedly refused to admit actions for failure to act which seek to compel the Commission to initiate proceedings
79
Case law and procedural issues (reasoned opinion)
length between infringement and decision to bring proceedings; decision the bring case after issueing Reasoned Opinion
80
Petrie - Confidentiality (Reasoned Opinion)
MS entitled to some confidentiality
81
Regulation 1049/2001 - Confidentiality (Reasoned Opinion)
On access to Commission documents - allows some exceptions based around court proceedings
82
Bavarian Lager II - Confidentiality (Reasoned Opinion)
Can disclose 6 years later
83
Sweden/API - Confidentiality (Reasoned Opinion)
Can disclose after the CJEU has ruled
84
Does the CJEU publish the documents - Confidentiality (Reasoned opinion)
Sometimes
85
Reasoned Opinion - Consequences
At this point either
1. The MS responds
2. fails to respond within the two month period
86
Referral to the CJEU
Court case now happens. It still happens even if the breach has been remedied by the time the court case happens - question is only whether it was a breach at the time.
87
Referral to the CJEU part 2
Commission has ongoing interest
Important for the Court to rule
Establish possible liability
88
State Defence (Referral to the CJEU)
- No limits to points raised earlier
- No adverse effects is not a defence
- Can't rely on pointing out other MS are also in the breach
- Court has been dismissive of arguments that breach was minor or that the breach was not deliberate
89
Spanish Strawberries - State Defence (Referral to the CJEU)
Sometimes deliberate lack of action
90
Genuine Force Majeure - Case 33/69 Commission v. Italy - State Defence (Referral to CJEU)
Bomb attack - Can't rely on internal legal system, or action of its own independent agencies
91
MS arguing that the measures the infringement is based on is illegal - State Defence (Referral to CJEU)
Can come up
| States have to use article 263 to challenge
92
Digital rights Ireland - State Defence (Referral to CJEU)
Cases against Sweden and Germany for non-transposition of Data Retention Directive struck down in Digital Rights Ireland
93
Article 260
Provides the fines against MS in case of breach(es) by a MS of EU Law
- Similar to article 258 only no reasoned opinion
94
Sanctions under Art. 260
1. Informal inquiry
2. Formal letter
3. Ms Responds or fails to respond within 2 months
4. Judicial Stage
5. Two types of payments
95
Two types of payments under art. 260
Daily penalty payment and Lump Sum payment
96
Interim measures - art. 278
Actions before the CJEU do not in themselves suspend the effects of the subject matter, but the Court can order application of the contested act be suspended
97
Interim measures - art. 279
Court can more generally prescribe interim measures
98
State-to-State cases - art. 259
- Matter initially brought before the Commission
- Both states given chance to submit its case
- Commission delivers a reasoned opinion
- Even if they don't bring one within 3 months, matter can go before the court anyway
99
Why do state-to-state cases almost never happen?
- Obvious diplomatic consequences
- Ideally Commission should be enforcing law, and can do so after issue is brought to its attention
- Commission will often decline give a reasoned opinion
100
Examples of state-to-state cases that went to the ECJ
- Spain v UK on voting rights for Gibraltar
| - Slovakia refused to allow to president of Hungary to enter the country
101
Four-stage procedure for infringement proceedings
used in a number of circumstances
102
Commission retains a reasonable degree of discretion over Reasoned opinions
multiple consequences existing in the form of interim measures and pecuniary measures
103
What happens when the Union oversteps its competences?
An action of annulment can be brought before the CJEU on the basis of Article 263 TFEU
104
The CJEU Jurisdiction
Direct actions and Preliminary references
105
Direct actions of the CJEU jurisdiction
1. Enforcement proceedings Arts. 258-259
2. Action for annulment Art. 263
3. Action for failure to act Art. 265
4. Action for damages Arts. 268 and 340(2)
106
Preliminary references of the CJEU jurisdiction
1. References on interpretation
| 2. References on validity
107
Five conditions for an act to be challenged
1. Body is amendable to JR
2. Act is open to challenge
3. Institution or person has standing
4. Grounds of review met
5. Challenge within time limit
108
Who can bring an action for annulment (privileged applicants)
Member States
European Parliament
The Council
The Commission
109
EU Acts subject to review
ECJ can review legality of acts, other than recommendations and opinions, taken by the institutions listed in art. 263(1)
This includes:
1. Regulations
2. Decisions
3. Directives
110
Commission v. Council (Act of annulment)
"any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects"
111
IBM v. Commission (Act of annulment)
To determine whether an act is within the meaning of art. 263 " It is necessary to look at their substance" when determining if it can be subject to review
112
Standing - Different categories of persons that can challenge in judicial review
1. Privileged applicants
2. Semi-privileged applicants
3. Non-privileged applicants
113
Privileged Applicants
Have unrestrained policing powers of other bodies through judicial review
114
Semi-privileged Applicants
Have a restricted right to challenge Union acts: They can only do so for the purpose of protecting their own prerogatives, meaning when their own interests are clearly affected.
115
Non-privileged Applicants
Can only call for judicial review applications under certain circumstances
116
Who are semi-privileged applicants
1. Court of Auditors
2. European Central Bank
3. Committee of Regions
117
Who are non-privileged applicants
Natural or legal persons
1. Addressee of a decision
2. Act is or direct and individual concern
3. Regulatory act, with no implementing measures is of direct concern
118
Direct Concern - a non-privileged applicant must show direct concern
The general principle is that a measure will be of direct concern where it:
1. Directly affects the legal situation of the applicant
2. (and) leaves no discretion to the addressees of the measure, who are entrusted with its implementation
3. This implementation must be automatic and result from EU rules
4. Without the application of other intermediate rules
119
Plaumann v. Commission (Individual concern)
An act of general application has to
1. Affect them by reason of certain attributes which are peculiar to them (or)
2. circumstances in which they are differentiated from all other persons and by virtue of these factors distinguish them individually just as in the case of the person addressed
120
Why is the test unclear (plaumann v. Commission
Creates a narrow conception of individual concern, but it is still the test used for individual concern
121
Impact of the Plaumann test
Very restricted:
Cordoniu → Tried to expand + Court confirmed the Plaumann test
Critique:
P Union de Pequenos Agricultores → Critical of the test - denied effective judicial protection
Lisbon treaty → no need for individual concern re regulatory act of direct concern with no implementing measures
122
Lisbon treaty amended rules on standing
Exception to need for individual concern if
1. challenging a regulatory act that is of direct concern AND
2. does not require implementing measures
123
P Telefonica SA v Commission
Implementing measure
124
EU Law - Grounds of review
Art . 263 → It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or any rule of law relation to their application, or misuse of powers
125
EU Law: 5 Set Grounds of review
1. Lack of competences
2. Infringement of an essential procedural requirement
3. Infringement of the Treaty or any rule of law relating to its application
4. Misuse of power
5. Art. 41 Charter of Fundamental Freedoms
126
Indirect challenge
TFEU article 267
127
2 main elements for Action of annulment
1. Admissibility
| 2. Substance
128
Admissibility
Several questions need to be examined.
1. The issue of locus standi
2. Acts of which institutions are subject to review
3. Which acts can be reviewed
4. Time limit for challenging these acts
129
Locus Standi
Which applicant can bring an action of annulment
130
Member State v. Union Institution (act of annulment)
A MS may bring an action of annulment against an act of a union institution even if it did not oppose the act during the decision-making process in the Council
131
Acts of which institutions are reviewable?
Art. 263 TFEU → The Commission and the Council
132
Are the acts of the European Parliament reviewable? - case: Parti Écologiste ‘Les Verts’: - para 24
The EP is not expressly mentioned among the institutions whose measures may be contested because, in its original version, the EEC Treaty merely granted its powers of consultation and political control rather than the power to adopt measures to have legal effects vis-a-vis third parties
133
Are the acts of the European Parliament reviewable? - case: Parti Écologiste ‘Les Verts’: - para 25
An interpretation of Art. 173 of the Treaty which excluded measures adopted by the European Parliament from those which could be contested would lead to a result contrary to both the spirit of the treaty [...] and to its system
134
Are the acts of the European Parliament reviewable?
Yes an action of annulment may lie against measures adopted by the European Parliament intended to have legal effects vis-a-vis third parties
135
When is an act intended to produce legal effects vis-à-vis third parties?
According to the CJEU: Whenever the act is intended to have binding legal effects that definitely
and specifically, determine obligations for third parties and bring about a distinct change in their legal position
136
Acts of COREPER
are NOT reviewable, because COREPER is NOT an EU decision-making body, and any agreement it reaches can be pushed aside by the Council
137
acts of the European Council are reviewable if
those acts are intended to produce legal effects vis-à-vis third parties
138
Prior to the Lisbon Treaty, “reviewable acts” only included the following legally binding acts of the institutions:
1. Regulations
2. Directives
3. Decisions
139
How does the CJEU decide whether an act is reviewable or not?
Case C-22/70 Commission v. Council (ERTA), para. 42:
140
Case C-22/70 Commission v. Council (ERTA), para. 42:
“An action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects.”
141
Test applied by CJEU to determine whether an act is reviewable
Is the act intended to produce legal effects vis-à-vis third parties, meaning, is the act intended to have binding legal effects that definitely and specifically determine obligations for third parties and bring about a distinct change in their legal position?
142
Which acts or non-reviewable under Art .263
1. Refusal by the European Commission to start an infringement procedure against a member state
2. A reasoned opinion delivered by the European Commission under art. 258
143
If an action for annulment is well founded, the CJEU:
Shall declare the act concerned to be void
Can specify:
1. which parts of the act concerned will be annulled;
2. which parts of the act concerned may remain in force
144
Effects of well-founded action for annulment
Does not result in:
1. Imposing a fine on the Union institution which adopted the act concerned. The CJEU CANNOT impose a fine on the Union institution under Article 263 TFEU!
2. Awarding financial compensation for applicants who were damaged by the annulled act. The CJEU CANNOT order a Union institution to pay a sum of money to the applicant under Article 263 TFEU!
