Outcome A1: English Legal System Flashcards
(226 cards)
1
Q
What are the judges on County Courts called?
A
Circuit Judges or Recorders (part time) or District Judges
2
Q
What is the jurisdictional threshold for County Courts?
A
Personal injury under 50k must be In county court. Contract and tort claims under 100k must be in count court. Above 100k can be in county or high court. Amount in issue under 25k a circuit judge hears the claim. Above that, a district judge hears the claim.
3
Q
Where do you appeal a county court decision?
A
A district judge decision is appealed to a circuit judge. A high court judge hears appeal from a circuit judge.
4
Q
What equity jurisdiction does a county court have?
A
A claim in equity under 350k concerning: admin of estate; trust; mortgage foreclosure; specific performance or property; maintenance of minor; winding up or dissolution of partnership; or relief against fraud or mistake.
5
Q
Are the rules of evidence different in county court and high court?
A
No.
6
Q
What tracks are cases assigned in civil court?
A
- Small claims.
- Fast track.
- Multi-track.
7
Q
Can the high court hear small claims or fast track cases?
A
No. Only the county court. The county court can have jurisdiction of multi-track cases.
8
Q
What characteristics are used to determine if a case is a small claims track case?
A
- It must be under 10k, provided that in personal injury cases the claim for pain and suffering also cannot exceed 1k.
- tenant claims for repairs where repairs are less than 1k and other damages less than 1k.
- the case is not complicated.
- unlawful eviction, harassment in real property and any claim relating to dishonesty is generally not on small claims track.
9
Q
What costs are awarded in small claims case Study?
A
- Court fees are generally paid by losing party.
- expenses relating to travel and lost income can be awarded.
- expert costs (though experts are unusual).
Legal fees are generally not awarded (though the court has the power to do so). Most litigants represent themselves.
10
Q
What do the English call a pro se plaintiff?
A
Litigants in person.
11
Q
Does a small claims litigant have an appeal as of right?
A
No. Needs permission of district judge hearing case or circuit judge hearing appeal.
12
Q
Once a civil track is assigned, can it be changed?
A
Yes.
13
Q
What are factors for assigning a case to the fast track?
A
The case is under 25k, involves more complex facts than small claims (if under 10k), takes less than a day trial and needs no more than 2 areas of expert testimony.
14
Q
May a case be assigned the multi-track if the amount issue is under 10k?
A
Yes. If the case involves couples issues of fact or law, is of high public importance or involves numerous witnesses.
15
Q
What are the divisions of the High Court?
A
- Queens bench
- Chancery
- Family
All are part of the same court but have different procedures. Penalties apply if a case is begun In The wrong division.
16
Q
Does the High Court hear appeals or is it a court of first instances?
A
It is both. It is a court of first instance for complex civil cases and hears both civil and criminal appeals.
17
Q
What are the general thresholds for having trial in the High Court?
A
- claims for money in excess of 100k (less than that will generally be heard by a county court)
- claims for personal injury in excess of 50k (except malpractice claims)
18
Q
What is role of the Queens Bench?
A
It hears multi-track civil claims as well as review of administrative bodies exercising public law functions. It contains admiralty, commercial, administrative, technology and construction courts.
19
Q
Where is an appeal filed from a queens bench ruling?
A
In civil cases, the Appeals Court (civil division) though the Supreme Court may hear a case on leave. Criminal matters are, subject to leave, heard boon appeal by Supreme Court.
20
Q
What is jurisdiction of chancery court?
A
Generally:
- contracts for land
- estates, wills
- trusts
- winding up and dissolution of companies with share capital in excess of 120k
- tax appeals
21
Q
In what cases do litigants have a right to a jury?
A
- fraud
- malicious prosecution
- false imprisonment
The court may refuse a jury in complex cases.
22
Q
How many jurors sit on civil cases?
A
8 in county court.
12 in high court.
23
Q
Is a unanimous verdict required in civil jury trials?
A
No. A majority of 7:1 is required in county court.
A majority of 11:1, 10:2, 10:1 or 9:2 is required in high court.
24
Q
How many jurors sit on a coroners inquest?
A
A jury is only required for deaths in police custody or caused by police. The jury is from 7 to 11. A super majority is needed (not more than 2 dissenters).
25
What are the two principal civil courts of first instance?
County Court and High Court. Magistrate courts have limited civil authority over matrimonial, tax disputes, child custody and a few others.
26
What courts can hear appeals?
- County courts hear appeals from fast track cases by a higher judge. A circuit judge hears appeals from a district judge.
- High courts hear appeals from circuit judges in county courts.
- Court of Appeals hears appeals from circuit judges in multi-track cases and from the high court
- the Supreme Court (on points of law only).
27
Is appeal from the county court an appeal of right?
No. Appeal is granted only if there's a real prospect of success or a compelling reason. Prison sentences or committal orders can be appealed without permission.
28
When can you appeal a small claims case?
When there is a serious error of law or irregularity.
29
Can you appeal directly to the Supreme Court from the High Court?
Yes, with permission. Case must involve a point of law of general public importance.
30
Is a second appeal ever of right?
Generally only granted with permission -- this includes appeals from circuit judge to high court judge, high court to appeals, appeals to Supreme, etc . . . where it would be the second appeal.
31
Do you need permission to bring an appeal of a civil ruling?
Yes. The court of first instance or the appeals court must grant. There needs to be a real prospect of success or some other compelling reason.
32
Is the Supreme Court of the United Kingdom the highest court?
Yes, except for criminal cases in Scotland which are heard by the High Court of Justiciary of Scotland.
33
Which court in England has power to hear disputes concerning devolution and legal powers of devolved governments?
Supreme Court.
34
Can the Supreme Court strike out primary parliamentary legislation?
No. The parliament is the supreme law making body.
35
If parties mediate, can the mediation discussions be used as evidence?
No. The courts encourage ADR and may penalize parties for failure to attempt mediation.
36
What are the criminal courts of first instance and what kinds of cases can they hear?
- Magistrates Courts. Composed of 3 lay judges advised by a court clerk or a district judge, these courts hear "summary offences" not subject to jury trial and "either way" offences where the defendant consents to no jury. Maximum sentence is 6 months and 5K (extended to 12 months if more than 2 offences).
- Crown Court. This deals with more serious offences and is tried by a jury. It also hears appeals from Magistrate Court and deals with some sentencing from Magistrate Court cases. On appeal from Magistrate Court, there is a judge and to magistrates (lay judges).
37
What is judge's role in criminal trial?
Judge instructs jury and may summarize evidence and comment on implausibility and contradictions.
38
On what basis may a juror be stricken in a criminal trial?
- The prosecution may order a juror to "Stand by for the Crown" and need not give a reason. The AG in 1988 indicated this would be used only where juror is manifestly unsuitable or after vetting in terrorist trial. Vetting is a rarely used process where police check background of jurors in terrorist, gangland and other special trials.
- For cause by either party. This may not be on the basis of protected categories (e.g., race, religion, etc . . .)
- Challenge to the array. This is based on claim that summoning officer was biased and is rarely used.
39
Must a criminal conviction be unanimous?
No. IN a 12 jury trial, you need only 10 jurors. In a 10 jury trial, 9. A jury cannot be instructed that a majority can decide until at least 2 hours of deliberation.
40
Must a jury confine itself to the indicted offences?
No. If there is an underlying offence that is not charged, a defendant can be found guilty.
41
May jurors disclose the subject of their deliberations?
No. It is an offence under the Contempt of Court Act.
42
Must a jury always be used in criminal trials (that are not summary offences)?
No. If there is a real risk of jury tampering and the court finds protective measures insufficient, it can order a bench trial.
43
What is appeal by way of "case stated" in a criminal court?
An appeal on the ground that Magistrates have misapplied the law or acted beyond their jurisdiction. The magistrates must "state their case" to the High Court which hears the appeal. THIS IS CONSIDERED A CIVIL APPEAL and is not paid for out of the criminal docket (but through legal aid).
44
What authority does the Administrative Court have to review criminal cases?
The Administrative Court reviews appeals from the Magistrate Court (non-indictable offences) and is limited in scope to appeals based on the way in which the Magistrate Court has conducted a case. It can quash (overturn a decision), stay a case or order a case tried.
45
May the courts invalidate an act of parliament if it fails to comply with the European Convention on Human Rights?
Courts must interpret all laws in accordance with the ECHR. If a court finds a law is incompatible it is sent back to parliament but is not annulled unless parliament does so.
46
What is the Human Rights Act 1998? What are key provisions?
It imposts the European Convention on Human Rights into all criminal court proceedings.
- Prohibition on torture;
- Right to liberty and security (challenging bail);
- Right to a fair trial.
47
How is a criminal case begun?
Most start in Magistrates Court and are begun with a summons based on an "information" or by being "charged" at the police station.
48
What is the English equivalent of a DA or AG?
The Crown Prosecution Service.
49
Name the three classes of criminal offences.
- Summary Offences. Minor matters such as traffic violations.
- Indictable Only Offences. All jury trial cases.
- Either-Way Offences. Cases that can be before a jury or judge only.
50
In indictable-only cases, what is the role of the Magistrate?
The defendant initially appears before a Magistrate Court which will send the case to Crown Court if the case is indictable only. The Magistrate Court also determines remand status.
51
What is delegated or subordinate legislation?
What we would call regulations -- rules made by ministers to supplement and prescribe details to Acts of Parliament.
52
What is the "literal rule" of statutory interpretation?
Words are to be given their ordinary meaning even it if leads to "manifest absurdity." An examples is Fisher v. Bell in which a shop owner displaying knives with price tags did not violate statute against "offer for sale" of weapons, since under common law it was merely offer to treat.
53
What is the "golden rule" of statutory interpretation?
Words are to be given their ordinary meaning UNLESS it would lead to an absurd result. In that case, the grammatical and ordinary sense of the words may be interpreted to avoid the absurdity.
54
What is the "mischief rule" of statutory interpretation?
Courts should look to the gap in common law that parliament intended to close with the statute, not just plain meaning. An example is a law prohibiting soliciting sex "on the street" applied to solicitation from a balcony (not literally on the street).
55
What did Heydan's Case establish?
The 1584 case established the "mischief" rule of interpretation holding that a court look to 4 matters in determining meaning of a statute: (i) what was the common law; (ii) what mischief or defect is the statute intended to address; (iii) what remedy does the statute give; and (iv) what is the true reason for the remedy?
56
What is the difference between the "purposive approach" to statutory interpretation and the "mischief rule"?
The purposive approach seeks to understand the what parliament intended to achieve through the legislation where as the mischief rule seeks to determine only what gap parliament intended to cover.
57
What is the predominant approach to statutory interpretation and why?
The purposive approach is predominant in part because of the influence of EU law.
58
What is the role of EU law in England?
The UK is a member of the EU and as such EU law takes precedence. The UK passes legislation giving effect to EU law and such legislation must be interpreted to achieve the results intended by the EU law.
59
Do UK courts interpret EU law directly.
Yes. Under EU practices the purposive approach to interpretation -- gleaning intent in view of wider social and economic issues -- is required.
60
What does "Expressio Unius Est Exclusio Alterius" mean?
In interpreting laws, where one thing is expressly mentioned, it will be assumed that all other things are excluded (e.g., a law repealing an earlier law will only be read as a repeal of the mentioned law, not related laws).
61
What does "Noscitur A Sociis" mean?
Words can be understood in context unless they are expressly defined.
62
What are common aids to interpretation used by courts?
- Statutes should be read as a whole.
- Intrinsic aids to reading include (i) preambles, (ii) headings, (iii) punctuation, (iv) definition sections, (v) titles and (vi) schedule.
- Extrinsic aids include (i) legislative history (parliamentary debates -- which used to be excluded), (ii) secondary law and (iii) other statutes.
63
What presumption is used in interpreting penal statutes?
Ambiguity is resolved in favor of the accused.
64
Are statutes presumed to have a restrospective effect?
No.
65
What presumptions generally apply in connection with property and private rights?
Statutes are presumed against deprivation or property and private rights.
66
What does stare decisis mean?
Prior decisions on similar facts are binding on future courts that are inferior to the deciding court.
67
What does ratio decidendi mean?
This describes the portion of a decision that is actually binding: pronouncements of LAW that are necessary to reach the decision.
68
What is obiter dicta?
Dicta are pronouncement that are not necessary to the decision of a case and are therefore not binding. They can be influential and become ratio in later cases.
69
What is a practice direction?
Practice direction is a statement of law issued under the power of the High Court, Supreme Court or Lord Chief Justice that, although not binding, are generally treated as precedent.
70
Who has the power to issue a practice direction for civil courts?
The Lord Chief Justice under Section 5 of the Civil Procedure Act. He may designate this authority under the Constitutional Reform Act and has designated the Master of the Rolls.
71
In which courts do the practice directions to the Civil Procedure Rules 1998 apply?
Civil litigation in the Queen's Bench Division and Chancery Division of the High Court; litigation in the County Court (other than family court) and appeals to the Civil Division of the Court of Appeals.
72
What is the hierarchy of courts for purposes of Stare Decisis.
1. European Court of Justice on matters of EU law. (Decisions of the European Court of Human Rights are not binding, but are persuasive.)
2. Supreme Court of the UK (formerly the House of Lords) The Supreme Court may depart from its own prior decisions when it appears right to do so (used sparingly).
3. Court of Appeal.
The civil division may overturn its own past decisions where (a) there are conflicts with other court of appeals decisions, (b) if precedent cannot be reconciled with later Supreme Court decisions, even if not expressly overruled or (c) where the prior decision was "per incurium" or very narrowly the result of failing to consider binding authority or statute (this is not a basis for ignoring Supreme Court precedent).
The criminal division applies stare decisis less rigidly where a person's liberty is at issue.
4. The High Court
Not bound by other high court decisions where high court was one of first instance.
Bound by High Court acting on appeal with 2 or more judges.
Not bound by High Court acting on appeal with only 1 judge.
5. Other courts
Their decisions have no binding power on any courts, including their own.
73
How do you avoid precedent?
Primarily by distinguishing.
74
How can a case be overruled?
By a higher court (e.g., Supreme Court of a Court of Appeals decision, but not the Court of Appeals of its own decision) or by statute of an unrelated case.
75
What is reversal?
Overturning a lower court decision in the same case.
76
What kinds of authority are persuasive?
- Courts in Scotland, Ireland,
- Commonwealth jurisdictions, esp. Australia, Canada, New Zealand and US
- Dicta of English courts.
- Inferior English courts.
77
What are the three main decision-making bodies in the EU?
- The European Parliament: directly elected by EU citizens and passes new laws;
- The Council of the European Union: Represents each Member State; and
- The European Commission: upholds the interests of the Union as a whole and proposes new laws.
78
What is the high court in Europe called?
The Court of Justice.
79
What is the Court of Auditors?
It checks the finances of EU activities.
80
What are the 4 treaties that founded the EU?
- Treaty establishing the European Coal and Steel Community (signed in 1952, expired in 2002);
- Treaty establishing the European Economic Community (aka "The Treaty of Rome") which came into force in 1958;
- Treaty establishing the European Atomic Energy Committee;
- Treaty on European Union ("Treaty of Maastricht"), in force in 1993, established all Member nationals were EU citizens and created timetable for common currency.
81
What is an intergovernmental conference?
An IGC is a meeting of member states to amend the founding treaties.
82
What is the difference between the EC and the EU?
The EC (European Community) concerns the social and economic functions of the single market and is less broad than the Union.
83
What is the Treaty of Lisbon?
This amended the Treaties of Maastricht and Rome to increase democracy and transparency (it also revised the number of the Articles).
84
Were does sovereignty rest in the EU?
With each Member States. The states delegate specific powers to the EU.
85
What does the EU exclusively regulate?
- Competition Rules
- Monetary policy of the Euro area
- Common commercial policy
86
What do Member States exclusively regulate?
Health, education and industry.
87
What do Member States and the EU jointly regulate?
Internal markets, agriculture, transport and energy.
88
Can a member state withdraw from the EU?
Yes, under Article 50, a withdrawal agreement can be negotiated and agreed by the Council with consent of the European Parliament.
89
What is the principle of "subsidiarity"?
That EU decision must be taken as close to citizens as possible.
90
What is the principle of "proportionality"?
EU action must be the least necessary to achieve the objectives of the Treaty of Lisbon.
91
What process must a proposed Commission rule undergo before approval?
All proposals must be submitted to Member State parliaments which may object by a "reasoned opinion" if they believe it violates subsidiarity. If 1/3 of parliaments object, the Commission must review the proposal but can nonetheless proceed. If 1/2 of parliaments object and the Commission pushes the proposal anyway, it must publish a reasoned opinion of its own. A vote is held and if 55% of member states object or a majority of Parliament objects, the rule will not be implemented.
92
What is the principle of enhanced cooperation?
A minimum of 9 states may co-operate on joint rules where non-exclusive EU competence is blocked (e.g., divorce or patents).
93
What is the European Parliament?
It is directly elected by citizens of the 28 member states and has 745 members. It elects a president and has the following powers:
- jointly passes new EU laws with the Commission in a process call "co-decision"
- Oversees other EU bodies and approves or rejects appointment of commission ministers
- Approves the EU budget
- May force resignation of entire commission through motion of censure (may not remove them individually) approved by 2/3 of parliament
94
What is the European Counsel?
The most senior elected officials of each Member State who meet and make policy by consensus (usually).
95
What is the Council of the EU?
It is made of 28 ministers representing each member state. It shares law-making and budget powers with the parliament in six key areas:
- pass EU laws jointly with Parliament;
- co-ordinate broad economic policies of Member States;
- conclude international agreements between the EU and other states, organizations;
- approve EU budget with Parliament;
- to develop EU Common Foreign and Security Policy;
- to coordinate cooperation between national courts and police in criminal matters.
96
How does the Council of the EU pass an Act?
Where adopted on proposal from Commission or High Representative:
- 55% of members approve PLUS those voting represent 65% of EU population
Where requiring a qualified majority (foreign policy, defense, judicial and police cooperation and taxation):
- 72% of members PLUS they must represent 65% of EU population provided that 4 countries may jointly block passage
97
What is the High Representative of the Union for Foreign and Security Policy/Vice President of the Commission?
Effectively a secretary of state/foreign minister position. He is appointed by the EU Council.
98
What is the European Commission?
The commission is composed of one member from each state and acts on behalf of the entire EU. It is the executive body and oversees both implementation of law as well as proposes law to the parliament. It has four main roles:
- to propose legislation to Parliament and the Council;
- to manage and implement EU policies and budget;
- to enforce EU law (with Court of Justice);
- to represent EU on international stage.
The commission sits for five years and proceeds on simple majority vote.
99
What is the Court of Justice?
The court has jurisdiction over EU members states, institutions, business and individuals and has three branches:
- Court of Justice;
- General Court (first instance); and
- Civil Service Tribunal.
The Court of Justice has one judge from each member state appointed for a 6 year term. It rarely sits en banc but instead in panels of 3, 5 or 13. Decisions are by majority but no dissent is announced or published.
The General Court also has one judge from each member and its opinions are subject to appeal to Court of Justice.
100
Who are the advocates general?
There are 9 advocates general who publicly provide the Court of Justice with impartial opinions on the law.
101
In the Court of Justice, what is the preliminary ruling procedure?
If an issue of EU law is presented to a court of a member state and there is any doubt about the application of the EU law, the member state court may (and sometimes must) seeking a "preliminary ruling" from the Court of Justice under "Article 267".
102
In the Court of Justice, what is the proceeding for failure to fulfill an obligation?
The Court of Justice may sua sponte start a proceeding against a member state that fails to meet an EU obligation or here a claim from another member state on this issue. It may impose fines for failure to meet obligations.
103
In the Court of Justice, what is an action for annulment?
A member state, the Council, the Commission, parliament (under some conditions) and individuals may seek review of EU laws. The Court of Justice may annul a law if it was not correctly adopted or not correctly based on treaties.
104
In the Court of Justice, what is an action for failure to act?
If the Parliament, Council or Commission fail to take obligatory actions a member state, other institutions or an individual (in some circumstances) can seek to compel action.
105
In the Court of Justice, what is an action for damages?
An individual or company may seek damages for harm caused by the action or inaction of the Community or its staff.
106
How is a case prosecuted in the Court of Justice?
Written submissions are made and a hearing is then held before a panel (more important, more judges). The judges can directly question litigants. An advocate general publicly states his opinion at the hearing, but the Court is not bound by his opinion (and it's generally given only in cases presenting new issues). The General Court follows the same procedure but without the advocate general.
107
What is the European Court of Auditors?
It audits EU finances and budgets, including any entity or individual that handles EU funds. It also analyzes the financial impact of proposed legislation. It has one auditor from each member state who serves a 6 year term.
108
What is the European Central Bank?
It is the equivalent of the federal reserve in the US.
109
What is the chief secondary source of EU legislation?
Article 288 TFEU (Treaty of Rome).
110
What is a "regulation" under Article 288?
It is a law that his "direct applicability" in every member state. It takes effect without member state implementation.
111
What is a "directive" under Article 288?
A directive requires a member state to meet a certain goal (such as fairness in consumer contracts) usually through implementing legislation. Even though there is no "direct application," failure to implement can result in enforcement actions.
112
What is a "decision" under Article 288 ad which bodies make decisions?
They are made by the Council and Commission and are directed against member states, companies or individuals. The have direct effect in that third parties can enforce them and they require no implementing legislation.
113
Does a Council recommendation have binding effect?
Under Article 288 the Council can issue recommendations. These are not binding but are considered persuasive in interpreting EU law.
114
Is there any equivalent to common law in the EU justice system?
Yes. There is supplementary case law which is the body of international law, general legal principles and history of cases of equity and human rights which bridge in the treaties and implementing law.
115
How do courts approach statutory (e.g., treaty) interpretation in the EU?
They use a "purposive" or "teleological" approach in contrast to the textual approach of common law. They divine the intent behind the treaties in interpreting laws.
116
What is the jurisdiction of the Court of Justice (and General Court)?
The Treaty of Maastricht (Article 19 TEU) provide that the courts ensure uniformity of application of the law. As a result courts have authority over all direct effect laws and other binding legislation as applied in member states (e.g., EU law is supreme). Court decisions have pushed member states further than they might otherwise have gone.
117
What is the principle of "Direct Effect" and what case first established it?
The principle of Direct Effect says that EU law takes precedence over member state law, and can be enforced by citizens, where the law is:
- sufficiently clear and precisely stated;
- unconditional or non-dependent; and
- confers a specific right for the citizen based on the claim.
Where might, rights can be enforced before national courts. The case was Van Gend en Loos v Nederlandse (1963) and involved a postal company charged a tariif in the Netherlands for an import from Germany. The national court referred the matter to the Court of Justice. The Advocate General's opinion was that the treaty did not give individuals (entities) standing, so the claim was invalid. The court disagreed, relying on the purpose of the statute (not its literal meaning).
118
What is the "Supremacy of EU Law" and in which case was it established?
In the case of Costa v. ENEL [1964] an Italian citizen challenged the government's decision to take over an energy company as a distortion of the market. Italy argued that the court had no jurisdiction because there was no individual right to enforce. The Court of Justice held that while the individual lacked standing (only the commission could bring a complaint) the court had jurisdiction because of the supremacy of EU law. Subsequent cases have established that member states must set aside conflicting law (even in the case of Germany a conflicting constitutional provision) and no state has challenged this authority.
119
What Act of Parliament makes EU law applicable in the UK?
Article 2(1) of the European Communities Act 1972 ("ECA"). The European Union (Amendment) Act 2008 adds the Treaty of Lisbon to the list of binding treaties under the ECA. These acts also require the judiciary to adapt EU law and refer matters to the Court of Justice for clarification of EU law.
120
What case established the supremacy of EU law in the UK?
Case C-213/89, R v. Secretary of State for Transport, ex parte Factortame (1990) ECR I-2433. This was the first of the Factortane cases involving a law that limited fishing rights to companies with a majority of UK subjects. The claimants were Spanish. The District Court referred the matter to the Court of Justice and also issued interim relief suspending the relevant law. The House of Lords (lka Supreme Court) ruled that the District Court had no authority to suspend an Act of Parliament. The Court of Justice said it did (in order to comply with EU law) and the House of Lords eventually agreed.
121
What did the Marshall cases establish?
The case, Marshall v. Southampton Area Health Authority [No.1] [1984] C-152/84, involved the mandatory retirement of a female at age 62. UK law allowed different retirement ages for men and women but an EU directive did not. The Court of Justice held in favor of the worker on the grounds that the Directive was superior law and while not directly applicable to the worker, was applicable to the state health agency. A subsequent case held that a cap on damages was impermissible under the directive because it did not guarantee real and effective judicial protection and have a real deterrent effect on the employer.
122
What is the difference between "Direct Applicability" and "Direct Effect" of EU law?
Laws that are directly applicable automatically become law in the Member State. Laws that have direct effect are ones that individuals and companies can rely on and enforce in national courts.
123
What is "horizontal direct effect"?
This is EU law that can be enforced by one individual (or entity) against another individual (or company). See, eg., Defrenne v. Sabena (No 2) [1976] ECR 455 (C-43/75) (air hostess sued airline for sex discrimination under EU law).
124
What is "vertical direct effect"?
This is a claim between a private arty and the government to enforce EU law.
125
Can Directives have a horizontal direct effect?
Generally no. They have a vertical direct effect, enforceable against the member state only. Directives require implementation and a private citizen can sue if not timely implemented or defend on the basis that a law or rule violate a directive.
126
Who's procedural law applies in cases applying EU law?
The member state provided that:
- the procedure for EU cases is "equivalent" to national law cases; and
- the procedure is "effective," e.g., does not render the EU law functionally ineffective.
127
What is the doctrine of "Indirect Effect" in application of EU law?
When applying national law, courts can be asked to interpret the law in light of an EU Directive "so far as possible."
128
Summarize the effects of different types of EU laws.
Source of Law Effect Use in a Claim
Treaty Articles Horizontal and Vertical Direct Effect Directly Applicable – Individuals can base claims on the provision
Regulations Horizontal and Vertical Direct Effect Directly Applicable – Individuals can base claims on the provision
Directives Vertical Direct Effect only Individual can rely on the Directive, if the Member State fails to implement with a time limit
Decisions Vertical Direct Effect on the addressee Individuals can rely on them in an action against the addressee
Recommendations and Opinion Do not have Direct Effect Have some effect on interpretations of law by court
129
Can the Court of Justice hear individual claims?
No. It establishes standards for individual claims through referrals (pursuant to Article 267 TFEU) from national courts. For example, in C-432/05 Unibet (London) Ltd., et al v. Justitiekanslern, the Court of Justice held that national courts must establish adequate procedures and remedies to ensure judicial protection of individual rights under The EU Convention on Human Rights and the Charter of Fundamental Rights.
130
What are the principals of Equivalence and Effectiveness under EU law?
Per the case of Unibet, "Equivalence" means that rules governing EU law cases should be no less favourable than those governing national law cases. "Effectiveness" means that it must not be "practically impossible or excessively difficult" to exercise rights conferred by EU law.
131
What is the relationship between "interim relief" and the principles of Effectiveness and Equivalence?
In order to ensure the adequacy of national law remedies under EU law, the courts must have the authority to grant interim relief.
132
What if an individual is harmed by a state's failure to implement at Directive?
Because a Directive has only vertical direct effect, an individual cannot enforce a right if the state has not implemented the directive. To address this, the Court of Justice developed the doctrine of "State Liability." In Francovich v. Italy ([1991] joined cases C-6/90 and C-9/90), the individual did not receive compensation on insolvency of employer as required under EU directive because Italy did not implement the directive. Because Italy was in breach, it was directly liable to compensate the employee.
133
What are the elements of a State Liability claim?
- The Directive must confer rights on individuals;
- the breach must be "sufficiently serious"; and
- There must be a causal link between the damage and the failure to implement.
To be sufficiently serious, factors considered are:
- the clarity of the rule infringed;
- whether the damage was intentional or involuntary;
- whether an error of law was excusable; and
- whether a community institution contributed to the adoption or maintenance of the the contrary national law or policy.
134
Are exemplary or punitive damages available in EU law cases?
No. See Factortame No. 5. Such damages are alien to Court of Justice and punitives are not part of civil law, thus not available.
135
What is a preliminary ruling under Article 267 TFEU?
It is a procedure whereby national courts refer matters of EU law to the Court of Justice. The reference should provide all necessary detail but avoid superfluous detail.
136
Is a national court that makes a reference for a preliminary ruling bound by the Court of Justice Decision.
It depends. If the national court decides the case without reference to the point of EU law referred, it is not binding. If the national court refers to the preliminary ruling, it is bound thereby.
137
What is the jurisdiction under Article 267 TFEU?
Preliminary rulings may be made concerning:
- the interpretation of Treaties; and
- the validity and interpretation of acs of the institutions of the EU.
138
When may a court make a referral for a preliminary ruling?
If an issue is pending before any national tribunal (e.g. any body with judicial function, such as social security judge), and an appeal is possible, then the court MAY make a referral.
139
When must a court make a referral for a preliminary ruling?
If there is no appeal from the judicial bodies decision and it faces a question of EU law, it MUST make a reference to the Court of Justice.
140
May the Court of Justice change the referral for a preliminary ruling?
Generally no, but it may re-formulate a question for clarity and rarely may answer a question that was not asked.
141
What parties are involved in a preliminary ruling from the Court of Justice?
Only the member state court making the referral (e.g., not the litigants).
142
Is there any appeal from a Court of Justice preliminary ruling?
No.
143
Are preliminary rulings binding?
They are res judicata on all national courts.
144
What is the "acte clair" (clear act) doctrine as it relate to preliminary rulings of the Court of Justice?
Where the application of EU law is so obvious as to leave no scope for any reasonable doubt, it need not be referred to the Court of Justice. Failure to refer a case where EU law is in some doubt, however, may give rise to State Liability, Traghetti v. Italy [2006] ECR I-5177.
145
Can the Court of Justice refuse a referral for a preliminary ruling?
Yes. Where:
- it is obvious that EU law bears no relationship to the case;
- the reference is made purely for political purposes;
- important facts are missing from the referral;
- there is no real dispute between the parties;
- the answer to the question cannot affect the outctome of the case; or
- where there is already an applicable decision that is materially identical.
146
What is a "Discretionary Referral" of a preliminary ruling to the Court of Justice?
Where a ruling of Court of Justice would be determinative in the case it MUST be referred. In Bulmer v. Bollinger [1974] 2 All ER 1226, the Court of Appeal established the following conditions for making a discretionary referral to the Court of Justice: Consider all circumstances, e.g., costs, difficulty or importance of question, wishes of the parties, overloading Court of Justice. Only the highest court MUST refer a case -- discretion otherwise rests with the national courts.
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147
Does the EU have a constitution?
No. But the Treaty of Rome and Treaty of Masstricht are primary law that enable legislation and function as a constitution.
148
Are amendments to EU treaties automatically effective in UK?
No. All changes to EU treaties that would expand the scope of EU powers must be authorized by English parliament.
149
What is the European Communities Act 1972?
It is the enabling legislation adopting the EU treaties.
150
What is the European Union Act 2011?
It gives more control to English subjects over EU ratification as follows:
- public referendum before UK can ratify a treaty that amends or replaces the main EU treaties;
- Act of parliament required before certain decisions provided for in treaties;
- No EU law is effective unless enabled by Act of Parliament (affirming sovereignty of England over EU).
151
What is Article 288 of the Treaty of Rome?
This is enables legislation under the treaties and defines the different kinds of laws under the treaties.
152
What is a "regulation" under Article 288?
A regulation has "direct applicability" and come into force in all member states immediately upon adoption without further act of the member state.
153
What is a "directive" under Article 288?
A directive does not take direct effect but requires each member state to pass legislation to implement the directive (e.g., a general statement of consumer fairness is turned into statute in each country).
154
What happens if a member state does not fulfill an obligaton?
Under Articles 258-260 of TFEU the Court of Justice can order compliance where a member state takes acts (legislative or administrative) or fails to act in connection with an obligation. A state act is broadly defined to include any body of the state. The Court can impose pecuniary sanctions although states are give a reasonable time to rectify. Political defenses have been rejected but force majeure can be plead as a defense.
155
Who can bring an action where a member state fails to fulfill and obligation?
The Commission or other member states.
156
What is a proceeding for failure to act and who can bring claim?
Under Article 265 TFEU, institutions and individuals may bring claims against the Council, the Commission, the EU Parliament and Central Bank on the basis that they infringed EU law by failing to act.
157
If a member state believes another state as failed to fulfill a obligation, what is a prerequisite to filing a claim?
It must bring the matter to the Commission which will issue a reasoned opinion after hearing from all parties.
158
What is a action for annulment?
It is an action by a member state, council, commission, parliament, Court of Auditors or Central Bank alleging that a binding legal instrument (not recommendations or opinions) should be annulled under Articles 263-264. Individuals can bring action to annul only where a decision is of direct and individual concern to them. The annullment may have retroactive effect.
159
On what basis can EU law be annulled?
- Ultra vires;
- violation of essential procedural requirements (due process);
- infringement of Treaties secondary legislation; or
- abuse of powers.
160
Is there a statute of limitations for claims for annulment?
Yes. Two months of publication or notification to the plaintiff or of knowledge of the measure.
161
Can an appeal be taken to the European Court of Human Rights from a decision of an English or Welsh court?
No.
162
Are decisions of the European Court of Human Rights binding on English courts?
No. English and Welsh courts should "take into account" ECHR decisions, but it is not binding precedent. If the ECHR finds that an English law violates the Convention on Human Rights, the decision is not binding and only parliament can implement a change in the law.
163
Are the rights enforced by the European Court of Human Rights binding on all member states.
Yes. But the details are still being negotiated pursuant to Article 6(2) of the TEU and will be subject to review by the Court of Justice which will have jurisdiction.
164
What are the EU's Four Freedoms?
- Free movement of goods;
- Free movement of capital;
- Free movement of services; and
- Free movement of people.
165
What is the Single European Act?
Signed as a revision to the Treaty of Rom in 1986 it was intended to speed the integration of the Eurozone economies and permit the easy transfer of people, goods and services to permit economies of scale and increased competition.
166
What TFEU articles ensure the free movement of people?
Article 21 ensures citizens the right to move freely between member states to work, retire or study permanently or temporarily.
167
Are there worker protections against discrimination under the TFEU?
Yes. Articles 45 & 18 ensure that no member state may discriminate on the basis of national origin. This is directly effective and enforceable in national courts.
168
What is required for an EU citizen to obtain permanent resident status in a member state not his or her own?
Five years uninterrupted legal residence provided absences of up to six months a year do not count.
169
Is there any basis on which a permanent resident can lose that status?
Yes. If they leave for 2 successive years.
170
Can a member state permanently bar an EU citizen?
No.
171
What is required for a retiree to obtain permanent resident status?
If they reach retirement age (including early retirement) or qualify for pension benefits (In the absence of a legal retirement age, it is 60) and either:
- have worked in the country for preceding 12 months and have lived there for three years;
- have lived there for 2 years and stopped working because of disability; or
- have worked for three years and are self employed in another member state but return at least once a week.
172
How is a "worker" defined under EU law?
A worker is broadly defined to encompass the fundamental principle of the free movement of workers. A worker is one who is paid to provide services to another under the direction of another. The rights of aworker (e.g., residence) continue even if temporarily unable to work, but not if there is voluntary termination. Work can be part time and for low (or sometimes even no pay) provided that there must be some "economic value" to the work. A worker is entitled to all social security benefits of the host country. A self employed person is not a worker for these purposes.
173
May a worker bring his/her family to a host country and what is the definition of a worker?
Yes. This is part of the principle of the right of free movement of workers. Spouses, registered partners, children under 21 and related dependants are family members.
174
What rights do a family member have if the worker dies or a marriage is divorced or annulled?
The family members can remain in the host country as long as they don't pose an "unreasonable burden" on the social security services of the country. Simply applying for social support is not unreasonable and the request must be evaluated in light of circumstances such as length of residence and time of potential need for support. To obtain permanent residence, a person still must meet normal requirements.
175
What is right to equal treatment under Article 24 with respect to employment?
Each member state must treat all EU citizens the same as its own. This includes access to employment. A state need not provide social services during the first 3 months of residency, however.
176
Can a person be expelled while looking for work?
No. Not as long as they are engaged in a job search and can demonstrate that they have a genuine chance of employment.
177
Is there an equal pay law (for men and women) in the EU pr UK.
Yes, in both. Directive 2006/54 requires non-discrimination in pay and was implemented in the UK through the Equality Act 2010.
178
Are professional qualifications recognized across member states?
Yes, but a state may impose specific requirements due to the application of professional rules as justified by the public interest.
179
On what basis may a member state refuse admission or expel a worker from another member state?
On grounds of public policy, public security or public health. These are strictly interpreted.
- For public policy, prostitution, drugs, scientology have been sufficient reasons, but the host state must treat its citizens identically.
- For public security, a criminal conviction is not sufficient. There must be a present threat to security.
- For public health, there must be a risk of an epidemic disease as defined by the World Health Organization.
180
What is the Schengen Agreement?
The Schengen Agreement permits passport free entry between member states. It became part of EU law through the 1999 Treaty of Amsterdam. The UK and Ireland are not signatories and not bound by the agreement.
181
What is the effect of the freedom of establishment under Article 49 of the TFEU and right to provide services under Article 56?
This grants the right for the self employed to provide services in any member state and/or a company to establish a branch or provide services in other member states. They are subject to national laws (e.g., labor, health, safety, etc ...).
182
What are the rights of the self employed in EU?
Under Article 49 the self employed and their family members may not be discriminated against. This is broadly interpreted. See, e.g., Steinhauser v. Biarritz (French law favoring French artists unlawful); Stober (German law granting benefits to children of the self employed but only to children living in German held unlawful).
183
What is a service under EU law?
Something provided for pay that is NOT a good, capital or person. Article 56 provides for the free movement of services and prohibits discrimination against provision of services across borders.
184
Is there a right to receive services?
There can be no discrimination in those seeking services. Thus tourists in France (seeking services by being tourists) have a right to compensation under french law reserved to French nationals. People are free to cross borders seeking services like medical, legal, etc . . .
185
What are the rights with respect to services connected with the exercise of "official authority"?
These are exempt from the free exercise rights, thus judges, registrars, etc . . . may not freely provide services across borders. This does not apply to lawyers (although some restrictions on lawyers can apply, e.g., Dutch rules requiring residency for lawyers may be justifiable if related to professional rules intended for the general good).
186
On what basis can a national rule hinder or make less attractive the exercise of a fundamental freedom?
- non-discriminatory;
- justified by imperative requirements in the general interest;
- suitable for the attainment of the objective it pursues; and
- does not go beyond what is necessary to achieve the objective.
French rules requiring tour guides take an exam was justifiable under these standards. Likewise Dutch rules prohibiting cold calling in the financial sector (which affected access to the market in other states).
187
What is the Posting of Workers Directive?
Requires a company posting workers to another member state for more than one month to comply with local labor laws. This was implemented in the UK under the Equal Opportunities (Employment Legislation) Regulations 1999 and allows workers to enforce their rights in UK courts.
188
May member states impose tariffs on goods from other member states?
No. The free movement of goods is a fundamental principle of the EU and the EU has formed a customs union within which goods can move freely.
189
What are the provisions that establish the free movement of goods?
- Article 28 TFEU establishes a customs union in which Member States have common tariffs on non-EU goods;
- Article 29 of TFEU provides that once goods enter an EU country, they can circulate freely;
- Article 30 TFEU prohibits tariffs (or charges having an equivalent effect) on goods passing between Member State borders whether originating in or outside of the EU.
190
What is the meaning of "charges having an equivalent effect" in relation to the movement of goods?
Any pecuniary charge applied unilaterally to goods by reason of their crossing a frontier that is not a customs duty. Certain charges are permitted as follows:
- the charges apply to domestic and imported products equally as part of a internal dues system;
- payment for services rendered in proportion to the services;
- charges to cover the cost of inspections mandated by EU or international law.
191
What is the non-harmonized area?
Harmonized areas address free movement of certain kinds of goods (like cars and drugs). Where there has not been harmonization, there must be free movement and this right has direct effect.
192
What are "goods" within the meaning of TFEU?
They are anything of value capable of forming the subject of commercial transactions. This is broad and excludes only things like TV signals or fishing rights.
193
Is there a de minimus exception to the free movement of goods rights?
No. Any restriction is prohibited (unless falling within limited exceptions).
194
What is a measure equivalent to quantitative restrictions for purposes of free movement of goods?
Any restriction that might have the effect of limiting the movement of goods is impermissible. This captures indirect effects, though not if they apply equally to domestic goods (e.g., restriction on shop hours). Note that cases have held that rules that superficially apply to both domestic and imported goods but in fact effect imported goods (called "Indistinctly Applicable") more are impermissible unless they meet the "rule of reason."
195
What is the "first Cassis principle"?
National rules that apply to both domestic and imported goods but restrict imported goods more (e.g., alcohol content restrictions) are permissible where they are necessary in order to satisfy mandatory requirements relating to fiscal supervision, public health, fairness or commercial transaction and defense of consumers. To be necessary, there must be no less restrictive measure that can accomplish the same goal (e.g., rather than content restrictions, labeling requirements).
196
May a state impose restrictions on selling arrangements?
Yes. It is not a restriction of cross border trade where:
- the provisions apply to all relevant traders (e.g., not just foreign); and
- apply to domestic and imported goods equally.
Selling arrangements mean factors such as opening hours, training requirements, selling at a loss, advertising and selling location. In general, these are measures applying to marketing, rather than the characteristics of the goods.
197
What are typical technical (as opposed to financial or quantitive) trade barriers?
Technical requirements (e.g., sizing, quality, safety, etc . . .) may differ between member states where there has not been harmonization. When proposing new technical requirements, they must be published and subject to 3 month review during which complaints can be brought to the Commission. Common requirements:
- import licenses, inspections, controls;
- obligations to appoint a rep;
- national price controls;
- national bans on specific products;
- authorization procedures;
- advertising restrictions; and
- technical regulation as to presentation (size, weight, labelling, etc . . .).
198
Are restrictions on export permissible under EU law?
No. Under Article 35 TFEU, member states cannot restrict exports. But this is more narrowly construed than rules on imports in that it applies only to goods, on not to indirect effect (indistinctly applicable measures).
199
What are the primary exceptions to the rule permitting freedom of movement of goods?
With respect to indistinctly applicable measures, they are defensible where they apply to:
- fiscal supervision;
- public health;
- fairness of commercial transactions;
- defense of the consumer;
- improvement of working conditions;
- protection of culture;
- diversity of the press;
- maintenance of social security;
- public security (e.g., requirements to buy certain percent of oil from country's only refinery OK); and
- fundamental freedoms such as freedom of expression.
Note that fairness or consumer protection are not defenses to trade barriers. The Member State has the burden of proof to show its restriction is justifiable.
200
What is the "proportionality test" in connection with restriction on movement of goods?
That there be no less restrictive measure that could serve the same goal.
201
What obligation does a member state have before implementing technical standards on information society services.
It must provide notice before adoption and there is a stay period in which problems can be identified. It cannot be implemented during the stay.
202
What is the "mutual recognition" regulation in connection with the free movement of goods?
It places the burden of proof on a member state to provide the technical or scientific regulations that they are proposing meets the proportionality test.
203
Does the principle of free movement of goods (in TFEU 34-35) have direct effect?
Yes. This means there is a private right of action.
204
Does the Commission have jurisdiction to investigate and refer cases to the Court of Justice concerning infringement of the free movement of goods.
Yes. And the Court of Justice may impose financial sanctions if there is a second referral.
205
What is the principle of non-discrimination in domestic taxation with respect to free movement of goods (similar goods)?
A Member State cannot impose a tax on imported goods that exceed those on "similar" domestic goods. Similar is broadly defined to include goods in competition (e.g., wine vs beer). These provisions have direct effect.
206
What is an undertaking?
Essentially, a company (or organization subject to the competition laws). Technically any natural or legal person "engaged in an economic activity".
207
What are are the prohibitions against cartels (collusion) intended to prevent?
The Commission or national competition authority can end illegal agreements (written or unwritten) and impose fines where parties act together to:
- fix purchase or selling prices (or other trading conditions);
- limit production, markets, technical development or investment;
- share markets or rouses of supply between competitors; or
- apply discriminatory conditions to companies that are not parties to the agreement (putting them at a competitive disadvantage).
208
What is a horizontal agreement?
Article 101 prohibits agreements which may affect trade and which intend to prevent, restrict or distort competition. A horizontal agreement is one between competitors at the same level of production (e.g., retail, distribution, manufacture) to divide markets or broker price fixing.
209
What is a vertical agreement?
Also restricted by Article 101, a vertical agreement is an arrangement between undertakings at different levels of production (e.g., exclusive distribution or licensing).
210
Is there a mens rea element in prohibitions against cartels?
No. An anticompetitive effect is sufficient even if it was not intended by the parties.
211
Does actual harm need to be proved to demonstrate an anticompetitive effect?
No. A mere potential of harm is sufficient.
212
What are the defenses to anticompetition claims under Article 101 prohibiting cartels and collusion?
-Consumer Benefit
So long as all competition is not restricted, if consumers are benefited (eg by facilitating technological advances) is permissible. This has rarely been successfully invoked.
- de minimis exception
Where competitors in horizontal arrangement are less than 10% of market share or in vertical arrangement aggregate market share is less than 15%. Price fixing is not exempt under this definition.
- Block Exemptions
These are written rules exempting certain classes of arrangements -- on vertical arrangement agreements between undertakings with less than 30% market share, though there are exceptions to this exemption.
213
Describe the prohibition against monopoly.
Article 102 prohibits abuse of dominance. Dominance is not per se prohibited, but using a dominant market position to distort competition is prohibited.
214
How is dominance defined under Article 102?
Dominance is either:
- presumptive dominance if a firm has more than a 39.7% market share; or
- acts "to an appreciable extent independently of its competitors, customers and ultimately the consumer"
215
How is a "relevant market" determined under Article 102 (abuse of dominance)?
This is almost always a subject of dispute, but the Commission and Court look to interchangeability of goods (e.g., what are there substitutes) and geography. Article 102 can be violated even where the relevant market is a single member state.
216
What are the primary forms of abuse under Article 102 (abuse of dominance)?
- imposing unfair prices or trading conditions (e.g., rebates related to predatory pricing);
- limiting production, markets or development;
- applying dissimilar conditions to equivalent transactions with other trading partners that imposes a competitive disadvantage;
- tying acceptance of conditions that are unrelated.
217
What are the defenses to abuse of dominance (Article 102)?
If relevant market, dominance and abuse are shown, there is no defense or exemption.
218
What is the EUMR (European Union Merger Regulation)?
It is the equivalent of the HSR. There is no obligation to obtain pre-clearance, but failure to do so risks an order of de-merger. The standard for rejecting an application is if it would "significantly impede effective competition . . . in particular as the result of the creation or strengthening of a dominant position".
219
How do competition rules in EU deal with state aid?
State aid of specific industries is generally prohibited except to promote general economic development with other exceptions for certain public services, charities, natural disasters and regional development.
220
What entity enforces the competition rules?
The Commission. It may instigate investigations on its own and has investigatory powers. It may also impose substantial fines up to 10% of turnover (revenue) and an ongoing fine of 5% of turnover. Each Member State also has a National Competition Authority ("NCA") with enforcement rights and national courts can enforce EU competition rules.
221
Is there a private right of action under competition laws?
Yes. Since 2003.
222
What is the leniency policy in competition law enforcement?
The first to report a cartel or collusion are exempt from prosecution. Cooperation in investigations is also rewarded.
223
What is the main aim of EU competition law (Article 101, 102, 107 TFEU)?
To remove or prevent barriers to trade within the single market.
224
What is the European Economic Area (EEA)?
It is the member states plus Iceland, Liechtenstein and Norway (for purposes of competition law).
225
Does EU competition law limit state aid?
Yes. Article 107 TFEU.
226
Which court is the court of first instance for competition law claims?
The General Court. The Court of Justice hears appeals. National competition authorities have primary authority for enforcing competition law.
