lecture 1 Flashcards
(22 cards)
State of the Union
To explain the work program for the next year
annual speech by the President of the EU Commission to the EU Parliament
- But what happens in election years? ➞ then in September the new commission isn’t appointed yet. Therefore it happens in December, when it becomes official. There is no need for a state of the union in election years
- Between the elections and September, they have already voted for the president of the commission ➞ they then have to set up a program. Then it has enough time to do so until December
EU creation
1950s to promote peace (art 3.1 TEU)
- The EU promotes values. We must say what these values mean in everyday life to give it actual value. Perhaps this is where it is lacking today
- Shuman Declaration said that when people work together they can build trust and then get more done
There has always been an institutional framework ➞ today the EU commission.
Instututions + concrete projects = what is focussed on and important today
economic aspects of the EU
- interdepence
- exchanges
- economic progress
The idea that when countries would import and export coal and steel, they could keep an eye out on other countries ➞ it exchanges discussions and they were depentent on another
other aspects besides economic aspects in the EU
- EURATOM (1957-58)
- Single European Act (1986-87): social, environnement (early)
- Even in Maastricht treaty of 1992 they were thinking about eu citizenship & political rihts
➞ but the economic aspects remains at core- e.g. equal payment: even though it sounds like a fundamental right, it was boosted by unright concerns
Integration (what is it?)
It can take differnt forms ➞ political, economical, through law…
Integration through law is more specific. That the integration of the EU has been supported by the law, and that it has pushed all the MS to one other and forced them to collaborate more than they wouldve probably liked
- not always easy to define
- opposite of integration = disintegration ➞ that people go apart (into different directions)
- integration = that people come together under a single system and willing to colaborate
two types of integration
J. Tinbergen
a. Negative: That there are different injunctions given that are prohibiting MS to act a certain way. Due to this, all the states come together
- court of justice uses this type of integration more often (because it infringes on the fundamental freedoms)
b. Positive: when the EU institutions compell MS to do something or behave in a certain way
- art 288 TFEU
Legal integration in a positive form is what we could call harmonization
competences of the EU
Principle of conferral (art 5 TEU) = that the union can only use the competences which it has been granted. The MS hold all the other competences which haven’t been granted to the EU
- so for each action we must find out where thje comptence is
categories of competences (art 2-6 TFEU)
1. Exclusive: external comercial trade, customs, etc
2. Shared: that the EU can use them, and as soon as they have used this the MS cannot legislate anymore (they are then bound by EU legislation) ➞ principle of preemtion. think of the internal market
3. Coordination & support: where the EU cannot legisalte and only support the actions of MS (art 6)
special elements in terms of competence
- it tells what the adequate procedure is to follow
- also situations where the EU doesn’t have competence, but MS want the union to legislate
Flexibility clause (art 352 TFEU)
also situations where the EU doesn’t have competence, but MS want the union to legislate
- at unanimity decide to give EU competence to legisalation
art 114 TFEU
+ Tobacco advertising case
considered the widest competence (anything which has an impact on the internal market)
-
Tobacco advertising case: Germany didn’t want to comply with the rules. Question whether the EU parliament could ban it all together
➞ now prohibiting some goods to cross border
The CJEU ruled that a total tobacco ad ban exceeded Article 114 powers
Key point = the EU must stick to internal market goals when using Article 114
what if there are two potential legal bases?
How do you know which one is the right legal basis?
also adressed in the tobacco advertising case: when serveral can be applied, you need to apply the center of gravity test ➞ which one of the competence is the most important one
- If they are of the same importance?: then you have to apply both of the procedures
Internal market: the Treaty provisions on free movement and harmonisation
➞ negative integration
Cassis de Dijon: free movement provisions will apply when there is a market access that needs to be granted.
- Market access to trigger the application of the treaty
- Here the Court of Justice rules about the mutual recognition: marketed in all EU marktets if marketed in one legally ➞ it should be able to go to all the different MS
- Exceptions: rule of reason or the treaty exeptions
distortion of harmonization?
However harmonisation is the idea that there is a legal integration, but also that there are no distortions (that they are at the same level)
➞ so basically: harmonisation levels out the distortions resulting from the various national regimes
- with the mutual recognition, the court brings all the products to the same level
after harmonization
National measures must be assessed in the light of
the relevant EU directive or regulation concerned (and not in the light of the Treaty provisions on free movement) ➞ so must apply the harmonization including the exceptions
- When there are also other measures of harmonisation that have been adopted, you need to have a specific approach and look at what the measures are doing
basic scheme
how do we solve a case before the CJEU (harmonization)
- Harmonisation? Then imply this
- Prohibition to restrict free movement ➞ look if the activity or aspect is actially infringing
- Exceptions + proportionality: suitable & no less restrictive means (treaty & rule of reason)
➞ once harmonized, you should only apply national measures under the scope of the relevant measures/directives involved
so, you should only look at this measure when accessing national measures and not look into the treaty anymore ➞ Tedeschi rule
Chronology
- Until end of 1980’s : CJEU (CJEC) > lawmaker
Important cases: not. Van Gend en Loos, Costa c. ENEL, « Cassis de Dijon » (Rewe-Zentral)
= Golden age of the case law
➞ mostly negative integration till this point - From end of 1980’s until 2000’s : inversion: need to « achieve » the internal market ( 114 TFEU – subsidiarity)
= Golden age of legislative instruments
➞ enabled by 114 TFEU, to achieve the internal market. many different instrumentsfrom legislative - Since early 2000’s : poly crisis
➞ Brexit example
Types of Harmonisation
1) Total harmonisation
2) Minimum harmonisation
3) Optional harmonisation
4) The ‘New approach’
5) Partial harmonisation
6) Mutual recognition
Total harmonization
A system in which harmonisation allows no derogation from EU standards
- Little discretionary powers of the MS
- Classic harmonisation method
First all the products must be accepted, all which do not conform have to be prohibited = the tradition clauses which we find
Minimum harmonisation
Provides that the standard established by the EU is the minimum standard and that MS can go further if they want
- Mentioned explicitely or implicitly implied from the treaty or from the wording from the text itself
- It can only take place if the treaty allows for it
➞ why do we use it?: when it is difficult to find an agreement with all and some say that they wish to protect even more (usually to protect consumers)
Optional Harmonisation
Manufacturors may choose to comply with the EU or the national standards
➞ we use this when MS want to keep some diversity, but they understand that some may want to cross the borders
Products traded across the borders must meet the EU standards (or the national requirements of the country of
destination)
Partial Harmonisation
The standard of harmonisation only complies with cross-border transactions
- No freedom of choice here
- There are some aspects which are not regulated. For those that are regulated there is no freedom of choice
