EU Legal systems

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What is the EU?
A political and economic unions of 28 member states that works to promote greater social, political and economic harmony among the nations of Western Europe.
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What is EU law?
system of laws operating within the member states of the European union and represents a “new legal order of international law.”
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Council of ministers
State interest
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European commission
Executive- put forward legislation, 28 members
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EU Parliament
voted for
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What are the sources of EU law?
Primary legislation: Treaty law- give institution their power and restrictions Secondary: Regulations, Directives. Finally there are judgements from European Courts
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What are the treaties?
Treaty of European union (TEU) explains how power is managed, how it is conferred, what powers other countries retain. Treaty on the Functioning of the European Union (TFEU)
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What are treaties?
Agreed unanimously by Member States, following their own procedures and constitutional systems; The basis for all EU competence … and sometimes the sole legal text available
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What does Article 5 of the TEU say?
The limits of Union competences are governed by the principle of conferral. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objective
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set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at cen
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central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
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Where must secondary legal texts derive from?
from a Treaty article granting competence to pass secondary legislation.
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What does article 288 TFEU say on the difference between regulations and directive?
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall le
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shall leave to the national authorities the choice of form and methods.
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The European Courts: an introduction
Court of Justice of the European Union:28 judges, appointed by common accord of Member State governments; 11 Advocates General. General Court
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Problems the Court of Justice can address
A Member State failing to comply with Treaty obligations (Article 258 TFEU).The EU institutions legislating outside of their powers (Article 263 TFEU).
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National court uncertainty as to the interpretation of EU law (Article 267 TFE)
The function of the Court of Justice is to enforce the Treaty, and promote legal integration, insuring that what you can do in one state you can do in another
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in regards to article 258, what actions or omissions are made by all State bodies?
Failure to enforce EU law within the jurisdiction, Failure to implement EU law (usually the transposition of Directives), Or inadequate implementation
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What is the enforcement process for when this happens?
Informal stage ( European commission raises issue with member state), Letter of formal notice (if informal stage doesn't work), Reasoned opinion (prelude to legal action, court of justice hears the case (initially issues judgement alone), Article 260
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Article 260 processes (allow for fine or penalty payments if the first judgement is not complied with).
Article 258 is a long process, can depend on what commission sees as a priority- so there is a question on how effective it is.
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In matters of EU interpretation, are they binding?
There is use of the literal rule, reliance on prior cases, no doctrine of precedent, but a desire to build a coherent body of law. The purposive approach is also used, because of EUs unique political context
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What is the impact of CJEU judgments?
Binding in the instant case, Binding on national courts in future cases, Not binding on itself, Will state explicitly when it intends to overrule itself
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How is EU law developed?
Treaties, legislation, case law
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How has CJEU outlined the supremacy of EU law?
Member States are not entitled to pass national laws which conflict with EU laws, (Case 6/64 Costa v ENEL (1964) CMLR 425) Thus EU law is supreme and must be applied by the courts in preference to incompatible national law (Case 106/77 Simmenthal '78
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Doctrine of direct effect: Van Gend en Loos v Nederlandse Administratie der Belastingen Case 26/62 [1963] ECR 1
The subjects of the EU legal order are the citizens of the Member States; EU law gives to citizens rights as well as obligations; These rights ought to be enforceable; therefore they are ‘directly effective’ - i.e. can be applied by national courts
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What are the direct effect conditions?
the provision must be clear and unambiguous, it must be unconditional, its operation must not depend on further action being taken by EU or national authorities (often this deals with directive not transposed during transposition period)
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Does the provision contain a recognisable rule of law which can be applied by the courts?
it is often given a broad interpretation
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Dirrect effect of Directives: Why is it an issue? In principle, directives are not directly applicable – need transposition
Because individual member states have the ability to bring in rules however seems fit. There is a transposition period for a reason, EU want the laws to be directly effective. Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629 : the deadline for
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transposition must be passed
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Vertical and horizontal direct effect
Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority Directives are capable of being vertically directly effective (in litigation against public bodies) Directives are not capable of being horizontally directly effective
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effective (in litigation against public bodies) Directives are not capable of being horizontally directly effective (in litigation against private individuals) See also Case C-91/92 Faccini Dori v Recreb
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why?
A Member State may not plead in its own defence its failure to comply with EU obligations. Individuals and private sector companies are not bound by Directives, only by Member State transpositio
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What is the purpose of direct effect?:
to give effect to individual EU law rights? or to enforce law against the Member States?
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Summary
All EU legal instruments are capable of having direct effect i.e. being applied by national courts directly, if they are expressed in such a way as to be a recognisable legal rule that the judges can apply.
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Summary exception
Directives which have not yet reached their transposition date. Directives in horizontal litigation, between private individuals and/or companies.
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The duty of consistent interpretation (indirect effect)
Case 14/83 Von Colson and Kamann v Land Nordrhein Westfalen: - principle of statutory interpretation Case C-106/89 Marleasing v La Comercial Internacionale de Alimentacion SA: duty applies to all legislation, horizontally as well as vertically; Cas
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Case C-212/04 Adeneler v ELOG : duty only applies once the transposition date has passed; Based on a presumption that the Member State intends to fulfi its EU law obligations
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How does this interpretive principle work?
“Wherever possible” Same as s 3 HRA (Godin-Mendoza)(?)
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State liability
Cases C-6, 9/90 Francovich v Italy : individuals can claim compensation (via litigation in the national legal system) from Member States for violations of EU obligations which cause them harm;
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Cases C-46/93 and 48/93 Brasserie du Pêcheur v Germany and Factortame (No 3) Provision must confer rights Causal link Sufficiently serious breach
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What is a sufficiently serious breach?
Non-transposition: Case C-178/94 etc Dillenkofer Any failure to transpose by the deadline is per se a sufficiently serious breach of EU law and gives rise to Francovich liability
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What is EU law?

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system of laws operating within the member states of the European union and represents a “new legal order of international law.”

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Council of ministers

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European commission

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EU Parliament

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