EU Law: Supremacy and Judicial Dialogue Flashcards Preview

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Flashcards in EU Law: Supremacy and Judicial Dialogue Deck (181):
1

Larsy

Administrative agencies should disapply conflicting national rules

2

How do most national courts view CJEU supremacy?

Flowing from national constitutions, retaining ultimate power of constitutional review of EU measures

3

What case used the ECHR as a floor for EU law?

Schindler v Com

4

When was the Joint Declaration of P, Council and Commission?

1977

5

What is a solange principle?

'so long as' [x]

6

What case was the second Solange of Germany?

Wunsche Handelsgesellschaft

7

Rutill judgment

Limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles

8

Mannesmannrohren-Werke

'maximum standard'

9

What approach did the court focus on in Costa?

Teleological

10

What four arguments did the CJEU give for primacy in cOSTA?

Contractarian, functional, egalitarian and analytical

11

How does Internationale Handelsgesellschaft show difficulty in integrating common constitutional principles of Members into EU?

Under EU law, no violation of proportionality, but yes under German Constitution

12

What case affirmed category of general principles of EU law from Costa?

Stauder

13

What case showed national courts are not always required to review final decisions for EU supremacy?

Kapferer

14

What is required for national provision to be maintained until possible redress in Winner Wetten?

Overriding considerations of legal certainty and minimum period possible

15

Simmenthal judgment

Primacy precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside

16

Contractarian argument in Costa

Primacy flows from Member agreement to join EU

17

What case showed the EU stating that core norms in a legal system cannot be overtaken by 'primacy'?

Kadi I

18

Declaration 17 Lisbon of Treaty

EU law has 'primacy over the law of Member States'

19

Articles 8 - 11 TFEU are what type of clauses?

'mainstreaming' clauses

20

What case showed that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?

Wachauf v Germany

21

What proposed a supremacy clause?

TECE

22

What case showed that the ECJ can take EU law beyond the ECHR, using it as a 'floor'?

Schindler v Com

23

Mannesmannrohren-Werke judgment

German court dismissed 'maximum standard' approach, so fundamental right needs to belong to more than one Member

24

When does a Member act as an 'agent' of the EU?

When it implements and applies EU measures

25

What is a benefit of the Internationale Handelsgesellschaft mbH case?

Protects uniformity and primacy of EU law

26

National provision MAY be maintained until possible to redress violation

Winner Wetten

27

Why is primacy preferred terminologically to supremacy?

More self-contained and narrow

28

Internationale Handelsgesellschaft mbH disadvantage

Hard to determine if protection in EU law IS in conformity with fundamental rights if presumed

29

What was the claim for in Internationale Handelsgesellschaft mbH ?

Against HR of right to property and freedom to carry on business, protected by German Constitution and ECHR

30

Function argument in cOSTA

Primacy required to achieve Treaty aims

31

How do CJEU view EU supremacy?

Autonomous, not linked to national constitutions

32

Germany v Council judgment

Supremacy of EU law, even over Constitution

33

When are Members subject to fundamental rights review under EU law?

When they act as 'agents' of the EU

34

Why is the CJEU analytical argument weak?

Article 288 DA only refers to regulations, and DA only removes implementing measures - there is still priority issue between EU and domestic

35

Costa v ENEL on supremacy

If no primacy, Treaty obligations would be contingent on domestic legislation, calling the EC legal basis into question

36

Hauer judgment

No 'special criteria' to assess particular Member constitution, or would 'lead inevitably to the destruction of the Common Marker'

37

What report suggested the annexation of EU fundamental rights standard to international standard?

Network of Independent Experts' Report

38

What was the constitutional point made in Internationale Handelsgesellschaft mbH ?

Fundamental rights are 'integral' to 'general principles of Community law', inspired by 'constitutional traditions common to' Members

39

Facebook case

Schrems v Facebook

40

What approach did the court avoid in Costa?

Textual

41

What case found that limitations in Directive on restrictions Members can impose on FMW were specific expressions of EU general principles?

Rutill

42

Germany v Council general

Bananas case

43

Internationale Handelsgesellschaft BverG general

Back to German court

44

What argument for EU primacy shows there can be no unilateral precedence of domestic law?

Egalitarian

45

What did the CFI cite in Kadi I and II, that the CJEU did not?

UN Charter and 'jus cogens rules of international law'

46

Name at least one case showing supremacy principle is applicable against all national law

Internationale Handelsgesellschaft BverG, mbH, Germany v Council, Ciola and Wunsche Handelsgesellschaft

47

What case showed the outcome if EU law did not have primacy?

Costa v ENEL

48

Article 3(5) TEU

EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements

49

Article 49 TEU

Condition of respect for EU founding values in order to be a Member

50

Simmenthal general

Beef, vet inspections

51

What case said no individual review of cases as long as EU protection of fundamental rights satisfactory?

Wunsche Handelsgesellschaf

52

What is a disadvantage of Kadi I judgment?

If everyone did that, there would be less uniformity

53

Schrems v Facebook general

Facebook

54

UN Convention on the Rights of the Child

Nold v Commission

55

Van Gend en Loos on supremacy

'new legal order'

56

What is a positive solange?

Acceptance that other system does offer sufficient protection

57

What is a negative solange?

Particular system does not accept another system offers sufficient protection

58

Bananas case

Germany v Council

59

Internationale Handelsgesellschaft mbH judgment

CJEU made two points - primacy of EU law, and constitutional rights fit inside Community framework

60

What does Dougan believe the outcome is if DE placed in the driving seat?

Primacy is a remedial manifestation of using DE EU rights in domestic system

61

Hauer general

No 'special criteria'

62

According to Article 2 TEU, what are the EU's founding values?

Human dignity, freedom, democracy, RoL, equality and respect for human rights

63

What did the national court say in Germany v Council?

If EU interfered with fundamental points of Constitution, Constitution would take primacy

64

ITWF and FEU v Viking Line JUDGMENT

Balanced right to strike against FM given economic and social purpose of Community

65

What are the two informal sources for fundamental rights in EU?

Constitutional traditions common to Members and international human rights treaties to which all Members are a party

66

Why did the case of Stauder affirm category of general principles from Costa?

Fear of a threat to supremacy of EU law

67

Article 5 TEU limits EU how?

Principle of conferral - can't always integrate human rights protection without being given competence

68

What do Articles 8 - 11 TFEU require EU to do?

EU policies and activities need to take account of things like gender equality, environmental protection etc.

69

Kadi I on core norms

Core norms in EU legal system cannot be overtaken by 'primacy'

70

What is the outcome of Simmenthal for applicants?

They no longer need to fight up to Constitutional Court to rely on EU law

71

Who criticised Article 7 TEU for lack of practical usage?

Williams

72

What does Article 19 TFEU enable Council to do?

Take action to combat discrimination based on protected characteristics

73

Analytical argument in Costa

Obligations must be unconditional, with reference to DA of Article 288 TFEU on regs

74

What Articles gives the EU's goals?

Article 3 TEU

75

When did general principles first gain political approval?

Joint Declaration of P, Council and Commission in 1977

76

What case affirmed other international human rights treaties and instruments than the ECHR as sources?

Nold v Commission

77

What is the impact of the supremacy doctrine on national law, and according to what case?

Only refuse to apply - not invalidation/annulment; Simmenthal

78

EU power and competence to conclude international agreements externally, and integrate human rights protection into these agreements

Article 3(5) TEU

79

Kapferer

National court not always obliged to review final decision, respecting res judicata

80

What Articles expresses list of EU founding values?

Article 2 TEU

81

Kadi I general

Terrorists, banks frozen, UN sanction

82

What Article gives various sources of human rights in EU law

Article 6 TEU

83

Ciola

Primacy of EU law applies to constitutional norms and individual administrative acts

84

Internationale Handelsgesellschaft BverG saw Germany highlight what about ECJ?

Germany highlighted lack of democratic legitimacy of ECJ and lack of codified catalogue of rights

85

Egalitarian argument in Costa

Equal burden and benefit among Members - no unilateral precedence of domestic law

86

What part of what Treaty stated eu law has 'primacy over the law of Member States'

Declaration 17 Lisbon of Treaty

87

What case saw the national court highlighting the lack of democratic legitimacy of the ECJ?

Internationale Handelsgesellschaft BverG

88

What case has been criticised by labour lawyers for diminishing the right to strike?

ITWF and FEU v Viking Line

89

What does the case of Larsy show?

Administrative agencies should disapply conflicting national rules - they also need to apply supremacy doctrine

90

what case shows a specific example of when res judicata will be ignored?

Lucchini

91

What case stated that an incompatible existing national provision needs to be set aside, regardless of whether the Member constitutional court has found it unconstitutional or not?

Simmenthal

92

Lucchini

Res judicata ignored if it would prevent recovery of state aid granted in breach of EU law

93

What is the 'maximum standard' approach?

Fundamental right only need belong to one Member for it to be part of a 'common' approach

94

What Article of what Treaty did the CJEU refer to in Costa to support analytical argument?

Direct effect of Article 288 TFEU on regulations

95

What did the court emphasise in Costa, under teleological approach?

EU aims through four arguments - contractarian, functional, egalitatian and analytical

96

What two reasons can explain why CJEU rarely cites any specific constitutional provisions of Members?

Hard to assert 'common approach' if not in every Member constitution, and fear of compromising doctrinal supremacy

97

What three points does Dougan make about the relationship between EU primacy and direct effect?

Primacy best explains incidental horizontal effect of positive law, DE conditions are distinct from primacy, and there are different outcomes if primacy is considered more important or direct effect

98

Article 7 TEU

Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles

99

What is the emphasis in Opinion 2/13 on autonomy of EU legal order likely to lead to?

Critique of EU law as disconnected from wider international HR system

100

Digital Rights Ireland general

Annulled Data Retention Directive

101

What case showed that a ower court can seek ruling on compatibility of higher court with EU law, regardless of binding nature of higher court

Elchinov

102

Commission Communication did what under Article 7 TEU

Set out early warning system to supplement Article 7 TEU

103

Digital Rights Ireland judgment

Disproportionately restricted privacy and data protection

104

What case shows primacy of EU law precludes adoption of incompatible new legislative measures, and requires existing provisions to be set aside

Simmenthal

105

Kadi II general

Maintenance of sanctions

106

What case shows the heightened protection of right to privacy, against social network?

schrems v Facebook

107

Wunsche Handelsgesellschaft general

Second Solange of Germany

108

What case showed the primacy of EU law applies to constitutional norms and individual administrative acts?

Ciola

109

What case shows the ECJ respecting res judicata?

Kapferer

110

'uniform tendency'

AZKO

111

Who stated that the CJEU have ‘difficulty in accepting, in practice if not in principle, that it is formally bound by an international judicial decision’?

Eeckhout

112

Specific expressions of general principles

Rutill

113

What case shows the ECJ being Less deferential to EU institutions and international institutions like UN Security Council?

Kadi II

114

Article 53(2) Charter

Same meaning and scope if Charter and ECHR overlap, but EU law can provide 'more extensive protection'

115

What is the difference between EU and ECHR in terms of an individual being able to rely on each?

C need not exhaust domestic remedies under EU law, and ECJ decision directly implemented, but exact opposite in ECtHR

116

Article 6 TEU general

Various sources of human rights in EU law

117

What does Dougan believe the outcome is if primacy placed in driving seat?

DE only relevant for substitution effect

118

Internationale Handelsgesellschaft BverG judgment

Any conflict between fundamental constitutional rights and Community leads to former prevailing

119

What case made it clear that the ECHR is NOT formally incorporated into EU law?

Schindler v Commission

120

What was cited in Nold v Commission?

UN Convention on the Rights of the Child

121

Winner Wetten

National provision MAY be maintained until possible to redress violation

122

Why is it logical EU law has primacy?

To ensure the community actually functions

123

Who argues that the EU system of human rights protection is increasingly characterised by integration with national constitutional laws?

Eeckhout

124

What showed, in the case of Wachauf v Germany, that Members need to ensure protection of fundamental rights WHENEVER implementing EU measures?

Case had little to do with rights and before implementation of EU Charter - slight link enough

125

Internationale Handelsgesellschaft shows what about 'common constitutional principles'?

Hard to integrate those of Members into the EU

126

What Article is a powerful human rights tool in specific field of non-discrimination for EU?

Article 19 TFEU

127

Network of Independent Experts' Report

suggested the annexation of EU fundamental rights standard to international standard

128

What does the case of Kadi I show, contextually?

Post-9/11, ECJ more willing to strike down EU law for disproportionately violating individual rights

129

Rutill general

Specific expressions of general principles

130

What did the Schrems decision make defunct?

'safe harbour' of US

131

When was the Fundamental Rights Agency established?

2007

132

Wachauf v Germany

Members need to ensure protection of fundamental rights WHENEVER implementing EU measures

133

What are the two categories showing a balance between economic freedoms and protection of public interest

Attempt by Member to derogate from FM restricted by infringement of right, or economic freedom clashes with State fundamental right

134

AKZO

'uniform tendency'

135

Why was res judicator ignored in Lucchini?

would have prevented recovery of state aid granted in breach of EU law

136

German court dismissed 'maximum standard' approach, so fundamental right could only belong to one Member

Mannesmannrohren-Werke

137

Factortame on national bodies that must apply supremacy

Set aside rule against interim relief if prevents 'full effectiveness of the judgment'

138

Article 2 TEU

Expresses list of EU founding values

139

According to Article 3 TEU, what is the goal of the EU?

combat social exclusion and discrimination, and promote social justice, protection, equality, solidarity and protection of children’s rights

140

Simmenthal on national bodies that must apply supremacy doctrine

Regardless of Constitutional Court - court before which conflict arises must give immediate effect to EU law

141

What case is the first Solange of Germany?

Internationale Handelsgesellschaft mbH

142

What was the declaration in the Lisbon Treaty instead of?

TECE proposed supremacy clause

143

What case stated that special criteria to assess particular Member constitution would 'lead inevitably to the destruction of the Common Market'?

Hauer

144

In what case was it said that the ECJ offers protection 'substantially similar to the unconditional protection of fundamental rights under Constitution'?

Wunsche Handelsgesellschaft

145

What did Members refuse to include in Fundamental Rights Agency?

Monitoring of Members for the purposes of Article 7 TEU

146

NS and Others

Inhumane and degrading treatment by UK and ireland

147

Internationale Handelsgesellschaft mbH general

Maize, subsidy on export

148

What case showed EU law is supreme, even over Constitution?

Germany v Council

149

What case saw rejection of 'special criteria' to assess particular Member's constitution?

Hauer

150

ERT v Dimotiki general

Greece ban on certain TV ads

151

What Article was violated in Schrems?

Article 8 ECHR

152

What Article states conditions of respect for EU founding values to be a Member

Article 49 TEU

153

Opinion 2/13 on EU Accession saw the CJEU emphasise what about the EU legal order?

It is autonomous

154

What Treaty declared primacy?

Lisbon Treaty

155

Elchinov

Lower court can seek ruling on compatibility of higher court with EU law, regardless of binding nature of higher court

156

ITWF and FEU v Viking Line general

Strike, 're-flag', trade unions

157

ERT v Dimotiki judgment

Any restriction on FM still needs to comply with fundamental rights

158

What does Article 6(3) TEU lack reference to?

International human rights treaties and instruments other than the ECHR

159

Name at least two cases exploring national bodies which must apply the supremacy doctrine

Simmenthal, Factortame, Lars and Elchinov

160

Strike, 're-flag', trade unions

ITWF and FEU v Viking Line

161

Name two cases showing balance between exercise of economic freedom and protection of public interest

ERT v Dimotiki; ITWF and FEU v Viking Line

162

What did Costa v ENEL lead to concern about?

HRs would be undermined under domestic constitutions

163

Stauder general

Affirmed category of general principles of EU law

164

In what two ways can a solange principle operate?

Positive or negative

165

Kadi II judgment

Less deferential to EU institutions and international institutions like UN Security Council

166

Advantage of Declaration 17 Lisbon of Treaty

Less controversial and clearer than original supremacy clause in TECE

167

What case shows the ECJ requiring a national rue preventing interim relief be set aside to ensure 'full effectiveness of the judgment'?

Factortame

168

Name at least one case showing a challenge to EU legislation

Digital Rights Ireland; Kadi I; Kadi II

169

Kadi I and II cited only what?

Charter and ECHR

170

Wunsche Handelsgesellschaft judgment

As long as EU protection of fundamental rights satisfactory, no individual review

171

What was the primacy point made in Internationale Handelsgesellschaft mbH?

EU law has primacy, regardless of national legislation/rights/constitutional structure

172

Inhumane and degrading treatment by UK and Ireland

NS and Others

173

What was the outcome of schemers?

National supervisory authorities can review EU-US data transfers to stop data snooping and protect Article 8 ECHR

174

What case required 'uniform tendency' among Members for the approach to be a general principle?

AZKO

175

What does the case of Internationale Handelsgesellschaft BverG show a move to in terms of operation of solange?

Move from positive to negative operation of solange

176

Council can suspend voting and other rights of Member if found to persistently and seriously breach Article 2 principles under what article?

Article 7 TEU

177

Same meaning and scope if Charter and ECHR overlap, but EU law can provide 'more extensive protection'

Article 53(2) Charter

178

Name some negatives of Declaration 17 Lisbon of Treaty

Might cause courts to doubt continuing validity of supremacy principle for constitutional matters, and no resolution on ultimate decision-maker on boundary of EU competences

179

Name at least one case showing supremacy principle is applicable to national laws pre-dating and/or post-dating EU law

Simmenthal; Winner Wetten

180

What case saw rejection of the 'maximum standard' approach?

Mannesmannrohren-Werke

181

Williams criticised Article 7 TEU how?

Lack of practical usage

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