Sources & application of EU Law

Question 1

Order of Treaties

Answer 1

1957 - Treaty of Rome (TFEU)
1986 - Single European Act
1992 - Treaty of Maastricht (TEU)
1997 - Treaty of Amsterdam
1999 - Treaty of Nice
2007 - Treaty of Lisbon

Question 2

Direct applicability

Answer 2

Recognised as a part of domestic law without the need for implementation

Question 3

Direct effect

Answer 3

When EU law can be enforced in a domestic court

Question 4

Example of supremacy of EU law and conflicting national law

Answer 4

Factortame

Question 5

Van Gend en Loos (1963)

Answer 5

Article 30 can be enforced if the following criteria are fulfilled:

• sufficiently clear, precise & unconditional
• no discretion given to Member States
• it produced direct effects between Member States and citizens

Question 6

Van Duyn (1974)

Answer 6

For a provision of EU law to have direct effect, it must

• be clear and precise
• be unconditional
• not require any implementation by the Member States

Question 7

Difference between vertical and horizontal effect

Answer 7

Vertical: enforceable only against the state
Horizontal: enforceable also against private individuals

Question 8

Defrenne No. 2

Answer 8

To have direct effect, the Directive must give clearly identifiable rights to individuals

Question 9

Ratti (1979)

Answer 9

Condition for Directive: the time limit for the implementation of the Directive must have passed

Question 10

Directive can only be enforced vertically (=against the state)

Answer 10

Marshall (1986)

Question 11

Marshall (1986)

Answer 11

Directive can only be enforced vertically (=against the state)

Question 12

Condition for Directive: the time limit for the implementation of the Directive must have passed

Answer 12

Ratti (1979)

Question 13

To have direct effect, the directive must give clearly identifiable rights to individuals

Answer 13

Defrenne No. 2

Question 14

Foster v British Gas (1990)

Answer 14

A body is a part of the State if:

• subject to the control of the State
• providing a public service
• special powers given to it by the State

Question 15

A body is a part of the State if:

• subject to the control of the State
• providing a public service
• special powers given to it by the State

Answer 15

Foster v British Gas (1990)

Question 16

Von Colson (1984)

Answer 16

Indirect effect: national courts must interpret national law in line with EU law, so an individual can enforce a law from the EU against another individual in a national court

Question 17

Indirect effect: national courts must interpret national law in line with EU law, so an individual can enforce a law from the EU against another individual in a national court

Answer 17

Von Colson (1984)

Question 18

Indirect effect - what it is & which case?

Answer 18

Von Colson (1984)
national courts must interpret national law in line with EU law, so an individual can enforce a law from the EU against another individual in a national court

Question 19

State liability

Answer 19

Francovich (1991)
State is liable for its failure to implement the Directive if:
- the directive gave rights to individuals
- those rights were identifiable within the wording of the Directive
- causal link between the failure to implement and the damage caused to the individual

Brasserie du Pecheur:
Breach must be sufficiently serious

Question 20

Francovich (1991)

Answer 20

State is liable for its failure to implement the Directive if:

• the directive gave rights to individuals
• those rights were identifiable within the wording of the Directive
• causal link between the failure to implement and the damage caused to the individual

Question 21

Dillenkofer (1996)

Answer 21

Failure to correctly implement Directive is automatically sufficiently serious

Question 22

Plaumann (1963)

Answer 22

Individual concern test:
Applicant must show it has attributes or characteristics which distinguish it from all other persons and mark it out in the same manner as addressee

The fact that he operates a trade which COULD be engaged in by any other person will normally be enough to deny individual concern
-> incredibly hard to succeed

Question 23

Individual concern test:
Applicant must show it has attributes or characteristics which distinguish it from all other persons and mark it out in the same manner as addressee

The fact that he operates a trade which COULD be engaged in by any other person will normally be enough to deny individual concern
-> incredibly hard to succeed

Answer 23

Plaumann (1963)

Question 24

Cassis rule of reason

Answer 24

Restriction may be necessary in order to satisfy mandatory requirements relating to

• effectiveness of fiscal supervision
• public health
• fairness of commercial transactions
• consumer protection

Non-exhaustive! Case law has added e.g.:

• protection of culture (Cinetheque)
• protection of environment (Commission v Denmark (Danish Bottles))

Question 25

Keck

Answer 25

Selling arrangements are circumstances of sale (when/how/where) -> not MEQRs UNLESS 1) they put imports at disadvantage OR 2) the measure relates to characteristics of the product

Question 26

Conditions of Keck

Answer 26

Selling arrangements are not MEQRs (ie do not breach Art 34) only if they 1) apply to all affected traders within the territory AND 2) affect in the same manner, in law and in fact, the marketing of domestic products and imports from other MSs

Question 27

Vertical direct effect established for Treaties

Answer 27

Van Gend en Loos Clear Precise Unconditional Not dependent upon further implementation (the last one only for treaties and reg)

Question 28

Horizontal direct effect established for treaties

Answer 28

Defrenne v Sabena

Question 29

Establishes vertical direct effect for Regulations

Answer 29

Simmenthal

Question 30

Simmenthal

Answer 30

Establishes vertical direct effect for Regulations

Question 31

Slaughtered Cow

Answer 31

Confirms horizontal direct effect for Regulations

Question 32

Confirms that Regulations are capable of having horizontal direct effect

Answer 32

Slaughtered Cow

Question 33

Vertical direct effect for Directives

Answer 33

Van Duyn (1974)

Question 34

Three arguments in van Duyn

Answer 34

1) efficacy argument: directives are supposed to binding, and they would be more binding if individuals could rely upon them 2) textual: because national courts can refer questions relating to any EU measure, it implies that individuals can rely upon them 3) estoppel: MS shouldn't be able to benefit from their failure to implement

Question 35

Wagner Miret

Answer 35

Insolvency Directive protects workers' wages but Spanish law did not apply to higher management. - > Wagner Miret wanted Spanish law interpreted in conformity with the Directive - > not possible because the domestic law was unambiguous

Question 36

Insolvency Directive protects workers' wages but Spanish law did not apply to higher management. - > wanted Spanish law interpreted in conformity with the Directive - > not possible because the domestic law was unambiguous

Answer 36

Wagner Miret

Question 37

IMPACT

Answer 37

Fixed-Term Work Directive was implemented in Ireland in 2003 although DL was 2001 - > some civil servants had their contracts renewed before this - > did indirect effect require the 2003 act to be applied retrospectively? HELD: indirect effect can't serve as the basis for an interpretation of national law contra legem (against the law)

Question 38

Fixed-Term Work Directive was implemented in Ireland in 2003 although DL was 2001 - > some civil servants had their contracts renewed before this - > did indirect effect require the 2003 act to be applied retrospectively? HELD: indirect effect can't serve as the basis for an interpretation of national law contra legem (against the law)

Answer 38

IMPACT

Question 39

indirect effect can't serve as the basis for an interpretation of national law contra legem (against the law)

Answer 39

IMPACT

Question 40

Mangold (2005)

Answer 40

Because the Directive implemented a General Principle of EU law, it had horizontal direct effect EVEN BEFORE the period for implementation expires CONTROVERSIAL!

Question 41

Because the Directive implemented a General Principle of EU law, it had horizontal direct effect EVEN BEFORE the period for implementation expires CONTROVERSIAL!

Answer 41

Mangold (2005)

Question 42

Critique of EU decision making

Answer 42

1) unresponsive to democratic pressures because a change in the Parliament's composition does not have a major effect to policies 2) executive dominance at the expense of national parliaments - > partial solution: EP's direct elections; however: limited powers, lack of voters' interest, absence of a developed party system 3) technocrats and national interest groups have dominated decision-making 4) distance to a regular citizen 4) lack of transparency, complexity - especially decision-making by the Council of Ministers is done behind closed doors - difficult to understand for other than experts 5) substantive imbalance: writers from the Left think there's an imbalance between labour and market as a result of freeing up the European market

Question 43

Moravcsik's defence against democratic deficit

Answer 43

"constitutional checks and balances, indirect democratic control via national governments and increasing powers of EP are sufficient to ensure EU-policy making is in nearly all cases clear, transparent, effective and politically responsive to the demands of European citizens"

Question 44

"constitutional checks and balances, indirect democratic control via national governments and increasing powers of EP are sufficient to ensure EU-policy making is in nearly all cases clear, transparent, effective and politically responsive to the demands of European citizens"

Answer 44

Moravcsik's defence against democratic deficit