EU Revision Bundle PDF

How to structure the institutions? ================================== Recurring themes: - What is the purpose of the EU? - What are the powers, strengths and weaknesses of the different institutions? - How is power allocated between the institutions? - What matters more: democracy o...

How to structure the institutions? ================================== Recurring themes: - What is the purpose of the EU? - What are the powers, strengths and weaknesses of the different institutions? - How is power allocated between the institutions? - What matters more: democracy or efficiency? (there is always a trade-off, so can have an opinion but acknowledge the trade-off). Theories of integration ----------------------- **[SUMMARY: ]** The lecture examines the **purpose and evolution of the European Union (EU)**, highlighting its core values and the continuous interplay of integration and disintegration throughout its history. World War II is identified as a major catalyst for the EU\'s formation, driven by the need to rebuild Europe economically and morally, prevent future conflicts, and address issues such as colonialism and the rise of communism. The lecture traces the EU\'s journey from the Treaty of Rome in 1957 to the present day, marking key milestones like expansions, the introduction of the Euro, and the shift towards political integration. It also acknowledges contemporary challenges such as economic crises, the refugee crisis, Brexit, and the rule of law crisis. Four major theories explaining the EU\'s purpose are explored: - **Intergovernmentalism:** Focuses on cooperation between member states based on national interests. - **Neo-functionalism:** Emphasises efficient regulation of specific sectors by technocrats. - **Supranationalism:** Envisions the EU as transcending nation-states to empower citizens. - **Post-functionalism:** Views the EU as a dynamic entity shaped by crises and balancing integration with national interests. It concludes that all **four theories coexist within the EU**, influencing its trajectory and highlighting the complex relationship between law, politics, and integration within the Union. **[KEY THEMES: ]** - Which theory do I think is best for the EU? - Which theory best reflects the EU at the moment? - Functionalist nature of the EU. Institutions & law making ------------------------- **[SUMMARY: ]** The lecture examines the **European Union\'s (EU) legislative process, focusing on the tension between efficiency and transparency, particularly concerning trilogues.** - The **Ordinary Legislative Procedure (OLP)** is the EU\'s standard decision-making process, involving the Commission, Parliament, and Council. Trilogues are informal negotiations between these institutions to reach early agreements on legislative proposals. - **Trilogues, though not explicitly mentioned in EU treaties, have become the norm in EU lawmaking**, often leading to faster agreements than the formal OLP. - The **Council views trilogues as a way to streamline the process and potentially neutralise EP politics**. In contrast, the **EP sees trilogues as an opportunity to increase its influence and politicise EU legislation**. - **A shared belief in the value of trilogues as a \"space to think,\" free from public scrutiny, exists**. This allows for open discussions and compromise-building without external pressures. - **However, the lack of transparency in trilogues raises concerns about democratic accountability**. - The **De Capitani judgment**, a landmark case, **highlighted the tension between trilogue efficiency and transparency**. While acknowledging the importance of trilogues, the court ruled that the **Parliament must provide concrete justifications for refusing access to trilogue documents**, emphasising the principle of the widest possible access. - The **judgment ruled that a general presumption of non-disclosure of trilogue documents is unacceptable**. - **Transparency is vital for the legitimacy of the EU legislative process**, enabling citizens to understand and scrutinise decisions. - The court also found that the **Parliament\'s arguments for refusing access in the De Capitani case were insufficient**, particularly concerning the sensitivity of the information and the risk of undermining the decision-making process. - **Research suggests that while trilogues can lead to efficient outcomes, the EP\'s reporting back on these negotiations is often inconsistent and insufficient, hindering public scrutiny**. - **Changes in the Council\'s internal processes suggest that trilogues may be impacting its traditional decision-making culture.** - **Member states are increasingly using informal channels to monitor the Presidency during trilogues**, potentially weakening the Council\'s collective position. **It concludes that while trilogues are an integral part of the EU legislative process, their informal nature and lack of transparency raise significant concerns about democratic accountability**. **Balancing efficiency with transparency remains a challenge for the EU**. **[KEY THEMES: ]** - My opinion on triolgues??? Democracy & reforms ------------------- **[SUMMARY: ]** **Three Perspectives on the EU\'s Nature:** - **International Organisation:** Based on treaties between sovereign states. - **Exercising State Power:** Functions like a state with citizens, elections, and legal supremacy. Raises questions about the \"democracy deficit.\" - ***Sui Generis* Institution:** A unique entity requiring a new type of democracy, termed \"Demoicracy.\" **Benchmarks for EU Democracy:** - **National Democracy:** Fails to adequately assess the EU as it falls short in areas like citizen participation. - **Demoicracy:** Emphasizes the control of the EU by member states and prioritizes national democratic institutions. - **Consociational Democracy:** Focuses on stability through supermajorities and collaboration, but marginalizes citizens. **Proposed Innovations for a More Democratic EU:** - **Subsidiarity:** EU action limited to issues beyond national competence. - Effectiveness of the \"Early Warning Mechanism\" and the role of National Parliaments (NPs) debated. - **Spitzenkandidaten:** Lead candidate from the winning European Parliament party becomes Commission President. - Intended to increase electoral competition and visibility, but raises concerns about power dynamics and citizen engagement. - **Transnational Party Lists:** Aims to create a European political sphere and identity. Faces resistance from member states. - **Conference on the Future of the EU (CofEU):** Platform for recommendations on EU\'s future, including democratization and other key issues. Limited implementation so far. - **European Citizen Initiatives (ECI):** Allows citizens to propose EU legislation. - Concerns exist about NGO influence, limited Commission response, and low impact. **Key Points:** - The appropriate benchmark for evaluating EU democracy depends on the chosen perspective of its nature. - Institutional reforms aimed at improving democratic legitimacy face both support and criticism. - The EU\'s democratic structure is fragile, requiring careful consideration of reform proposals. **Questions for Further Discussion:** - How can the EU balance the need for efficiency and stability with increased citizen participation? - What role should National Parliaments play in EU decision-making? - Can the EU develop a stronger sense of European identity and a transnational public sphere? - What concrete steps can be taken to address the EU\'s democratic deficit? **[KEY THEMES: ]** - Law v politics in the EU sphere? What the EU is choosing now? What should it choose? The authority of EU law ======================= The authority of EU law ----------------------- (include academics and what they say as well as this will be useful for exam) STILL NEED TO BE ABLE TO FORM AN OPINION. **[BACKGROUND OF EU LAW]** Direct effect: - What is it? - Direct effect refers to the ability of the EU law to confer rights or obligations on the individuals, which they can invoke directly in national courts. This principle ensures the uniform application of EU law across MS. - Van Gend & Loos case - The landmark case established the principle of direct effect. The ECJ held that EU law creates rights for individuals that national courts must protect, provided that the provisions are clear, precise, and unconditional. Primacy: - What is it? - Primacy (or supremacy) means that EU law takes precedence over conflicting national law. This ensures the uniform application and effectiveness of EU legislation across MS. - Costa case - The principle of primacy was first established in Costa v ENEL 1964, where the ECJ ruled that EU law overrides any national law, including constitutional provisions, if there is a conflict. **[DILEMMA BETWEEN NATIONAL LAW AND EU LAW]** EU law prevails. The primacy of EU law creates a legal hierarchy where national law must yield to EU law in case of conflict. PSPP case -- highlights this conflict. - PSPP case brought by the German Federal Constitutional Court highlighted tensions between national constitutional courts and the ECJ. The German court questioned the proportionality and legitimacy of certain EU actions, challenging the absolute nature of EU law's primacy. Two main views: 1. Hierarchical view - Supported by scholars like Bobic Dawson. - This perspective asserts that EU law holds a superior position in a strict legal hierarchy over national law. The ECJ is the ultimate authority, ensuring the uniform application of EU law. 2. Pluralist view - Advanced by scholars like Keleman, Fabbrini, et al. - Offers a nuanced perspective on constitutional pluralism. This view suggests that EU and national legal system coexist, respecting each other's autonomy. Instead of strict supremacy, pluralists advocate for dialogue and mutual recognition between courts. **[NORMATIVE FOUNDATIONS FOR LIMITING THE SUPREMACY OF EU LAW]** **The three key areas where the tensions flare up:** 1. **Fundamental Rights Review** - Why is this area sensitive? - It concerns the protection of fundamental rights, regarded as the cornerstone of democratic societies. National constitutional courts aim to safeguard citizens' rights as enshrined in national constitutions, particularly when EU law may infringe upon them. - Examples: - Solange I and II cases: The German Constitutional Court reserved the right to review EU law for compatibility with German fundamental rights until the EU offered equivalent protection. - Melloni case: Highlighted the interplay between EU law and national standards, acknowledging that national constitutions may provide different fundamental rights protections. 2. **Ultra Vires Review** - Why is this area sensitive? - This concerns the boundaries of EU competences as defined by **the principal of conferral**. National constitutional courts protect their sovereignty by ensuring that the EU operates within its delegated powers. - Examples: - OMT case: The GCC questioned the legality of the European Central Bank's bond-buying program, arguing it encroached on national economic policy. - PSPP case: The GCC challenged the ECB's quantative easing program, arguing it exceeded the EU's mandate and violated proportionality principles. 3. **Constitutional Identity** - Why is this area sensitive? - This touches on core national values and principles essential to a nation's identity and self-determination, which some argue should remain outside EU jurisdiction. - Examples: - GCC Lisbon ruling: identified criminal law, education, and social policy as aspects of Germany's constitutional identity that warrant scrutiny. - Coman case: involved the recognition of same-sex marriage for free movement purposes, raising potential conflicts with national cultural norms. **[THE ECJ'S CLAIM TO FINAL AUTHORITY ON EU LAW]** - Limited sovereign rights for unlimited duration - MS voluntarily ceded certain sovereignty rights to the EU, transferring power for an indefinite period. This requires the ECJ to act as the ultimate interpreter to ensure consistency. - Effect utile - The principle emphasises the effectiveness and uniformity of EU law across MS, necessaiting a single authoritative body to avoid divergent interpretations. - Reciprocal Commitment - The EU relies on MS shared commitment to uphold EU legal principles. The ECJs role is central to maintaining the integrity of this legal order. **[RECONCILING EU LAW SUPREMACY AND NATIONAL CONSITUTIONAL CLAIMS]** - Are the claims irreconcilable? - The tension between EU law supremacy and national constitutional autonomy is challenging but not necessarily irreconcilable. Mediation methods include judicial dialogue, conditional supremacy, and rethinking the legal framework. Mediation methods: 1. Formalism - Argues for strict adherence to the principle of primacy, as upheld by the ECJ, to maintain EU integration and functionality. 2. Solange Reborn - Proposes conditional EU law supremacy, contingent on the ECJ's adherence to proper proportionality and competence boundaries. National courts may intervene if these conditions are unmet. 3. Constitutional pluralism - Acknowledges the coexistence of multiple constitutional orders within the EU, promoting judicial dialogue and cooperation to resolve conflicts. Critics argue this may lead to legal uncertainty. 4. Radical pluralism - Advocates for a fundamental restructuring of the EU, either through creating a stronger fiscal and political union or by dismantling the Euro in a coordinated manner. 5. 'Wrong Question' Perspective - Challenges the debate itself, suggesting that focus should shift to justifying EU authority on normative grounds such as freedom, justice, and solidarity rather than merely resolving Kompetenz-Kompetenz. **[PLURALISM AND RADICAL PLURALISM IN CONTEXT]** Pluralism - Emphasises dialogue and mutual respect between the ECJ and national courts, recognising each legal system's legitimacy. It supports coexistence rather than strict hierarchy. Radical Pluralism - Suggests the current EU legal framework is inadequate to address structural challenges. It calls for deeper reform or a shift in governance to reconcile conflicts between EU and national legal orders. **[CASE NOTES]** **[Van Gend & Loos]** [Facts:] - N.V. Algemene Transport- en Expeditie Onderneming van Gend & Loos (Van Gend & Loos) imported ureaformaldehyde from West Germany into the Netherlands. - The product was classified under heading 39.01-a-1 of the Dutch import tariff, which came into force on 1 March 1960, and was subjected to an 8% import duty. - Van Gend & Loos objected to this duty, arguing that on 1 January 1958 (when the EEC Treaty came into force) the product was classified under heading 279-a-2 of the 1947 tariff and was subject to only a 3% duty. - The company claimed that the increase from 3% to 8% was a breach of Article 12 of the EEC Treaty. - The Dutch revenue authorities argued that the product should have been classified under heading 332 bis, with a 10% duty. - The Tariefcommissie, a Dutch administrative tribunal, referred the matter to the Court of Justice of the European Communities (the Court) for a preliminary ruling. [Issues:] - Does Article 12 of the EEC Treaty have direct application within the territory of a Member State, meaning can individuals claim rights based on this article that national courts must protect? - Did the application of an 8% import duty on ureaformaldehyde represent an unlawful increase under Article 12 of the EEC Treaty, or was it a reasonable alteration of the duty? [Judgment:] - **The Court ruled that Article 12 of the EEC Treaty has direct effect and creates individual rights that national courts must protect**. This means that individuals can invoke Article 12 in national courts. - The Court stated that the EEC Treaty constitutes a new legal order of international law where states have limited their sovereign rights. This new legal order benefits not only the Member States but also their nationals. - Community law can confer rights upon individuals, not just impose obligations. These rights arise from express provisions of the Treaty and from obligations the Treaty imposes on both Member States and individuals. - **Article 12 contains a clear and unconditional prohibition on increasing customs duties, and it is well suited to produce direct effects in the legal relationship between Member States and their subjects**. - The fact that the Treaty enables the Commission and Member States to bring actions against states for failure to fulfil their obligations does not prevent individuals from pleading these obligations in national courts. - **To determine whether a customs duty increase is unlawful under Article 12, the Court must consider the duties and charges actually applied when the Treaty came into force**. - An increase in duty can arise from reclassification of a product under a more highly taxed heading, as well as an actual increase in the rate of customs duty. - The Court did not decide the specific issue of whether the product was correctly classified but noted that if the national court found that the duty applied to the product after the entry into force of the Treaty was higher than the duty applied at the date of entry, such an increase was illegal under Article 12. - The decision as to costs is a matter for the Tariefcommissie. **[Costa ]** [Facts:] - Flaminio Costa, a shareholder of Edison Volta (an electricity company that was nationalised), refused to pay an electricity bill to ENEL (the newly formed National Electricity Board). - Costa argued that the Italian law nationalising the electricity sector infringed several articles of the EEC Treaty. - The Giudice Conciliatore (a magistrate\'s court) in Milan referred the case to the European Court of Justice (the Court) for a preliminary ruling under Article 177 of the EEC Treaty. - The specific articles of the EEC Treaty that Costa claimed were infringed were Articles 102, 93, 53, and 37. - The Italian government argued that the request for a preliminary ruling was inadmissible, as the national court was essentially asking the Court to rule on the compatibility of Italian law with the EEC Treaty, which it cannot do. [Issues:] - Did the nationalisation of the Italian electricity sector violate Articles 102, 93, 53, and 37 of the EEC Treaty? - Can a national court use Article 177 to question the compatibility of a national law with the EEC Treaty? - Does Community law take precedence over national law? - Do the articles of the Treaty in question create individual rights that national courts must protect? - Specifically, do Articles 102, 93, 53, and 37 create individual rights that national courts must protect? [Judgment:] - **The Court asserted its jurisdiction to interpret the EEC Treaty**. The Court clarified that while it cannot rule on the validity of national law under Article 177, it can extract questions of Treaty interpretation from the national court\'s request. - The Court established the **precedence of Community law over national law**. The EEC Treaty created its own legal system that became an integral part of Member States\' legal systems, which their courts are bound to apply. The Member States limited their sovereign rights when they joined the Community, and cannot give precedence to a subsequent unilateral measure over Community law. - The Court stated that the transfer by Member States of rights and obligations under the Treaty to the Community legal system implies a permanent limitation of their sovereign rights. - **The Court held that Article 102 does not create individual rights that national courts must protect**. This article concerns consultation with the Commission when there is a risk of distortion of competition, and creates obligations for Member States but not rights for individuals. - **The Court held that Article 93 does not create individual rights that national courts must protect**. This article outlines the procedure for the Commission to monitor and eliminate state aid, which binds Member States but does not give individuals the right to challenge the state\'s actions. - **The Court held that Article 53 does create individual rights that national courts must protect**. This article prohibits the introduction of new restrictions on the right of establishment, creating a legal duty that is directly applicable and creates rights for individuals. This means that Member States cannot make it more difficult for nationals of other Member States to set up businesses than they do for their own nationals. - **The Court held that Article 37(2) does create individual rights that national courts must protect**. This article prohibits new measures that discriminate between nationals of Member States regarding the conditions under which goods are procured and marketed, and forms part of the legal system of Member States, creating rights for individuals. This article applies to state monopolies that deal with commercial products that are subject to competition between Member States. The national court must assess if the economic activity at issue is related to such a product. - The Court declared that the decision on costs is a matter for the Giudice Conciliatore in Milan. - In summary, the *Costa v ENEL* case is a landmark judgment that established the **supremacy of Community law over national law** and clarified which articles of the Treaty created individual rights. This was a key step in developing a unified European legal order and ensuring the effectiveness of Community law. The court determined that Articles 53 and 37(2) of the EEC Treaty can create individual rights, whereas Articles 102 and 93 do not. **[Solange I and II ]** [Doctrine:] *as long as* EU law guarantees generally equivalent standards of fundamental rights as the German constitution, the GCC will not review EU law for compatibility.  **[Melloni ]** [Facts:] - Stefano Melloni was the subject of a European arrest warrant issued by Italian authorities for the execution of a prison sentence for bankruptcy fraud. - The sentence was handed down *in absentia* (in his absence) by the Tribunale di Ferrara (District Court, Ferrara, Italy). - Mr. Melloni had been authorised for extradition to Italy in 1996, but he fled after being released on bail. - In 1997, the Tribunale di Ferrara declared that Mr. Melloni had failed to appear in court and directed that future notices should be given to his lawyers. - Mr. Melloni\'s lawyers were notified of the trial and defended him at the first instance, appeal, and cassation proceedings. - Mr. Melloni was arrested in Spain in 2008, and the Spanish court authorised his surrender to Italy. - Mr. Melloni opposed his surrender, arguing that he was not able to appeal the *in absentia* sentence and that his rights of defence had not been respected because one of the lawyers had been replaced. - The Spanish Constitutional Court (Tribunal Constitucional) considered that the surrender could violate Mr. Melloni\'s fundamental rights under the Spanish Constitution if Italy did not guarantee the possibility of appealing the judgment. - The Spanish Constitutional Court referred questions to the Court of Justice of the European Union (the Court) for a preliminary ruling. [Issues:] - Can national judicial authorities make the execution of a European arrest warrant conditional upon the conviction being open to review when the person was tried *in absentia*? - Is Article 4a(1) of Framework Decision 2002/584, which governs the execution of European arrest warrants in cases of *in absentia* trials, compatible with the rights to an effective judicial remedy and a fair trial as guaranteed by Articles 47 and 48 of the Charter of Fundamental Rights of the European Union? - Does Article 53 of the Charter of Fundamental Rights permit a Member State to apply a higher standard of protection of fundamental rights than that provided by EU law, allowing them to make surrender conditional on the possibility of review of the *in absentia* conviction? [Judgment:] - **Article 4a(1) of Framework Decision 2002/584 must be interpreted as precluding the executing judicial authorities from making the execution of a European arrest warrant conditional upon the *in absentia* conviction being open to review in the issuing Member State, in the circumstances specified in that provision**. This means that if the conditions set out in Article 4a(1) are met, the executing judicial authority cannot demand a retrial as a condition of surrender. - **Article 4a(1) of Framework Decision 2002/584 is compatible with the rights to an effective judicial remedy and a fair trial as guaranteed by Articles 47 and 48(2) of the Charter**. The Court stated that the right to appear in person at a trial is not absolute and can be waived if the person was informed of the trial or was defended by a lawyer they had appointed. - **Article 53 of the Charter of Fundamental Rights does not allow a Member State to make the surrender of a person convicted *in absentia* conditional upon the conviction being open to review in the issuing Member State**. The Court held that national law, even of a constitutional nature, cannot undermine the effectiveness of EU law. The Court stated that the Framework Decision sought to harmonise the conditions of the execution of the arrest warrant, and allowing Member States to impose additional conditions would undermine mutual trust and recognition. - In summary, the *Melloni* case clarifies that Member States cannot refuse to execute a European arrest warrant for a person tried *in absentia* if the conditions of Article 4a(1) are met, even if national constitutional law would have required the possibility of review. The ruling affirms the **primacy of EU law** and the harmonised approach to the execution of European arrest warrants, while also recognising the importance of fundamental rights in the process. **[OMT ]** [Facts:] - Several groups of individuals, including a group with over 11,000 signatories, brought constitutional actions against the German government and parliament concerning the European Central Bank\'s (ECB) Outright Monetary Transactions (OMT) decisions. - The applicants argued that the OMT decisions were outside the ECB\'s mandate and violated Article 123 TFEU, which prohibits monetary financing of Member States, and also breached the principle of democracy in the German Basic Law. - The German Federal Constitutional Court (Bundesverfassungsgericht) questioned whether the OMT decisions exceeded the ECB\'s mandate or violated Article 123 TFEU. - The German court referred questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling, asking about the validity and interpretation of the OMT decisions in relation to EU law. - The OMT decisions concerned the Eurosystem\'s outright monetary transactions in secondary sovereign bond markets, designed to safeguard monetary policy transmission and the singleness of monetary policy. - The OMT program involved purchasing sovereign bonds on the secondary market under certain conditions, including compliance with a European Financial Stability Facility/European Stability Mechanism (EFSF/ESM) program and no pre-set quantitative limits. - The ECB stated that OMTs would focus on shorter-term bonds (one to three years) and that the liquidity created would be fully sterilised. [Issues:] - Do the OMT decisions exceed the monetary policy mandate of the ECB, as laid out in Articles 119 and 127 TFEU, and Articles 17 to 24 of the Protocol on the ESCB and the ECB? - Does linking OMTs to EFSF/ESM economic assistance programmes, the selective purchase of government bonds, and the potential to undermine EFSF/ESM programme conditions, exceed the ECB\'s mandate? - Are the OMT decisions incompatible with the prohibition of monetary financing in Article 123 TFEU, given the lack of quantitative limits, time gaps, or credit standing requirements for bond purchases? - Can the Eurosystem make government bond purchases conditional on EFSF/ESM programmes, purchase bonds from selected Member States, or purchase bonds in addition to EFSF/ESM programmes? - Does Article 123 TFEU permit the Eurosystem to purchase government bonds without quantitative limits, time gaps from primary market issues, or minimum credit standing requirements? - Does the OMT program potentially encourage the purchase of newly issued bonds and does it violate the prohibition of monetary financing? [Judgment:] - The CJEU ruled that **the OMT programme is within the scope of monetary policy**, as defined by Articles 119 and 127 TFEU, and Articles 17 to 24 of the Protocol on the ESCB and the ECB. - The Court clarified that the **primary objective of the Union's monetary policy is to maintain price stability**, and that the OMT programme is intended to safeguard the transmission of monetary policy and the singleness of monetary policy, contributing to this objective. - The Court found that **the OMT program uses instruments that are permitted under primary law**, namely the purchase and sale of marketable instruments in euros. - The Court concluded that **the selective nature of the programme does not place it outside the realm of monetary policy**, because it was designed to address disruptions in the monetary policy transmission mechanism caused by specific situations in certain Member States. - The Court noted that **the OMT program was made conditional on full compliance with EFSF or ESM macroeconomic adjustment programmes**, which ensures that the monetary policy will not enable member states to depart from the adjustment programmes and will not undermine the effectiveness of economic policies of member states. - The Court ruled that **the OMT program does not violate the prohibition of monetary financing under Article 123(1) TFEU** because the ECB buys bonds on the secondary market and not directly from Member States and because sufficient safeguards are in place to ensure that the ECB\'s actions do not have the effect of directly financing Member States. - The Court clarified that the OMT program includes safeguards, such as a minimum time period between the issue of a bond and its purchase by the ESCB, and a lack of any prior announcements about planned purchases, preventing the program from having the effect of directly purchasing bonds from public authorities. - The Court also stated that the OMT program is limited to bonds from Member States under a macroeconomic adjustment programme with renewed access to the bond market, restricting the scope and potential volume of the programme. - The CJEU noted that **the ECB is permitted a broad discretion in its economic assessments** and the court is limited to reviewing the procedures and ensuring sufficient reasons are given. - The court found that the OMT program **does not violate the principle of proportionality** as it is appropriate for achieving the objectives of monetary policy and does not go beyond what is necessary. - The Court ultimately concluded that **Articles 119, 123(1), and 127(1) and (2) TFEU, along with Articles 17 to 24 of the Protocol on the ESCB and the ECB, permit the ESCB to adopt a programme for the purchase of government bonds on secondary markets, such as the OMT programme**. - In summary, the *Gauweiler and Others* case affirms the legality of the ECB\'s OMT program, concluding that it is a legitimate monetary policy tool and does not violate the prohibition of monetary financing. The CJEU emphasised the ECB\'s independence and broad discretion, as well as the importance of maintaining price stability and the singleness of monetary policy. **[GCC Lisbon ]** [Facts:] - The European Commission brought an action for annulment of Council Decision 8512/15 of 7 May 2015. - The Council decision authorised the opening of negotiations on a revised Lisbon Agreement on Appellations of Origin and Geographical Indications. - The Commission argued that the decision should have been based on Article 207 TFEU, concerning the common commercial policy, and Article 218(3) and (4) TFEU, given the EU\'s exclusive competence in this area. - The Council, however, based its decision on Article 114 TFEU, concerning the approximation of laws in the internal market, and Article 218(3) and (4) TFEU, arguing that the subject matter fell within the shared competence of the EU and its Member States. - The Lisbon Agreement is an international agreement designed to protect appellations of origin, and a revised version was under negotiation to include geographical indications and allow intergovernmental organisations such as the EU to accede. - The Lisbon Agreement establishes a Special Union within the framework of the Paris Convention for the Protection of Industrial Property. - The proposed revised agreement aimed to improve the Lisbon Agreement and make it more attractive, extending the scope of protection to geographical indications, and allowing intergovernmental organisations to join. - The European Union has adopted various measures governing appellations of origin and geographical indications for certain products like wines, spirits and agricultural products. - The Commission contended that the revised agreement, like the original Lisbon Agreement, had a specific link with international trade, and therefore fell under the exclusive competence of the EU in the common commercial policy. - The Council and several intervening Member States argued that the revised agreement did not primarily concern international trade but rather the harmonisation of intellectual property protection, placing it under shared competence. - The Council argued that if the Court considered Article 207 TFEU to be the appropriate substantive legal basis, the mistaken reference to Article 114 TFEU should be regarded as a formal defect that could not warrant the annulment of that decision. [Issues:] - Does the negotiation of the revised Lisbon Agreement fall within the **exclusive competence of the European Union under the common commercial policy** (Article 3(1) TFEU and Article 207(1) TFEU), specifically regarding the commercial aspects of intellectual property? - Or does the agreement fall within the area of **shared competence between the European Union and its Member States** because it relates to the approximation of laws in the internal market under Article 114 TFEU? - Did the Council err in choosing Article 114 TFEU as the legal basis for its decision, instead of Article 207 TFEU? - Is the international agreement essentially intended to promote, facilitate, or govern trade between the EU and third states? - Does the international agreement have direct and immediate effects on such trade? - If the Court decides that the Council made an error in choosing the legal basis for the decision, is this a formal defect that does not require the annulment of the decision? [Judgment:] - The Court ruled that **the draft revised agreement falls within the exclusive competence of the European Union in the field of the common commercial policy**. - The Court determined that the common commercial policy relates to trade with third states and not to trade within the internal market. - The Court established that international agreements concerning intellectual property fall under the common commercial policy if they have a **specific link with international trade** and are **intended to promote, facilitate or govern such trade** and **have direct and immediate effects on it**. - The Court found that the revised Lisbon Agreement, like the original agreement, aimed to **facilitate trade** by establishing a system of international registration that provides legal protection for appellations of origin and geographical indications. - The Court concluded that the agreement had the objective of ensuring the **reciprocal protection** of appellations of origin and geographical indications, and thus **governing trade** between the contracting parties. - The court stated that the agreement has a **direct and immediate effect on trade** by removing the obligation on producers to apply for separate registration in each contracting party, thus reducing risks and facilitating trade. - The Court also stated that the agreement establishes a system to **protect against the harmful or unfair use** of appellations of origin and geographical indications abroad. - The Court emphasized the importance of intellectual property rights in international trade, stating that an international agreement that establishes a registration mechanism and system of reciprocal protection of geographical indications directly and immediately affects international trade. - Therefore, the Council was wrong in basing its decision on Article 114 TFEU, which concerns the approximation of laws in the internal market, and should have used Article 207 TFEU on the common commercial policy. - The Court stated that this was not a mere formal defect, as the use of Article 114 TFEU led the Council to disregard the procedural provisions of Article 207(3) TFEU, particularly regarding the conduct of the negotiations by the Commission. - The Court **annulled the Council Decision 8512/15**. - However, the Court **maintained the effects of the annulled decision** until the entry into force of a new Council decision based on Articles 207 and 218 TFEU, with a maximum of six months from the date of the judgment. - The Council was ordered to pay the costs of the Commission, while the intervening Member States and the Parliament were ordered to bear their own costs. - In summary, the Court ruled that the negotiation of the revised Lisbon Agreement falls under the exclusive competence of the EU\'s common commercial policy due to its direct impact on international trade. The Council\'s decision was annulled for using an incorrect legal basis, but its effects were maintained temporarily to ensure the continued progress of the negotiations. **[Coman ]** [Facts:] - Mr. Relu Adrian Coman, who holds Romanian and American citizenship, and Mr. Robert Clabourn Hamilton, an American citizen, met in New York and lived together from May 2005 to May 2009. - Mr. Coman took up residence in Brussels, Belgium, to work at the European Parliament, while Mr. Hamilton remained in New York. - They were married in Brussels on 5 November 2010. - In March 2012, Mr. Coman ceased working at the Parliament but continued to live in Brussels, receiving unemployment benefits until January 2013. - In December 2012, they contacted the Inspectorate in Romania to inquire about the procedure for Mr. Hamilton, as a non-EU national and family member of Mr. Coman, to obtain the right to reside in Romania for more than three months. - On 11 January 2013, the Inspectorate informed Mr. Coman and Mr. Hamilton that Mr. Hamilton only had a right of residence for three months because Romanian law does not recognise same-sex marriage. - The Inspectorate stated that an extension of Mr. Hamilton\'s temporary residence in Romania could not be granted based on family reunification. - Coman and Others brought an action against the Inspectorate\'s decision, seeking a declaration of discrimination based on sexual orientation regarding the exercise of the right of freedom of movement in the EU. - They argued that Article 277(2) and (4) of the Romanian Civil Code, which does not recognise same-sex marriages, was unconstitutional. - The Romanian Constitutional Court referred questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling. [Issues:] - Does the term \"spouse\" in Article 2(2)(a) of Directive 2004/38 include a same-sex spouse, from a non-EU State, of a Union citizen, where the marriage was legally concluded in another Member State? - If so, do Articles 3(1) and 7(2) of Directive 2004/38 require the host Member State to grant the right of residence for more than three months to the same-sex spouse of a Union citizen? - If the answer to the first question is negative, can the same-sex spouse be classified as \"any other family member\" or \"a partner with whom the Union citizen has a durable relationship\" under Article 3(2)(a) or (b) of Directive 2004/38? - If so, do Articles 3(2) and 7(2) of Directive 2004/38 require the host Member State to grant the right of residence for more than three months to the same-sex spouse of a Union citizen? - More broadly, does EU law, specifically Article 21(1) TFEU, **require a Member State to recognise a same-sex marriage legally concluded in another Member State for the purpose of granting a right of residence** to the non-EU spouse? [Judgment:] - The Court stated that Directive 2004/38 applies to Union citizens moving to or residing in a Member State other than their own and to their family members, but it does **not confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national**. - However, the Court noted that the referring court\'s questions were limited to the interpretation of Directive 2004/38 but that **the Court could still provide interpretative elements of EU law to assist in adjudicating the case**, even if not specifically mentioned in the questions. - The Court stated that, in some cases, third-country nationals who are family members of a Union citizen could be granted a right of residence under Article 21(1) TFEU, even if not eligible under Directive 2004/38. - If a family life is created or strengthened during a Union citizen\'s genuine residence in another Member State, the effectiveness of the rights conferred by Article 21(1) TFEU requires that **the family life continues when the citizen returns to their Member State of origin**, with a derived right of residence for the third-country national family member. - The Court determined that the conditions for granting such a derived right of residence **cannot be stricter than those laid down in Directive 2004/38**. - The Court stated that **the term \"spouse\" in Directive 2004/38 is gender-neutral and can cover same-sex spouses**. - A Member State cannot rely on its national law to refuse recognition of a marriage concluded by a third-country national with a Union citizen of the same sex in another Member State, **for the sole purpose of granting a derived right of residence**. - While Member States have competence over marriage laws, they **must comply with EU law, particularly the freedom of movement**. - The Court held that denying a third-country national a right of residence based on the fact that their same-sex marriage is not recognized, could **interfere with the Union citizen\'s right to move and reside freely**. - The Court also stated that this denial is a **restriction on freedom of movement** which must be justified by public-interest considerations and proportionality. - The Court noted that the obligation to recognise same-sex marriage for the sole purpose of granting a derived right of residence **does not undermine the institution of marriage in the Member State**, nor pose a threat to public policy. - The Court ruled that the fundamental right to respect for private and family life, as guaranteed by the Charter, applies to homosexual couples in the same way as heterosexual couples. - The Court concluded that **Article 21(1) TFEU precludes a Member State from denying a right of residence to the same-sex spouse of a Union citizen** where the marriage was lawfully concluded in another Member State. - The Court stated that **Article 21(1) TFEU means that a third-country national same-sex spouse has the right to reside in the Member State of which the Union citizen is a national for more than three months**, with conditions no stricter than those in Article 7 of Directive 2004/38. - In summary, the Court ruled that a Member State must recognise a same-sex marriage legally concluded in another Member State for the purpose of granting a right of residence to the non-EU spouse, thus ensuring that Union citizens can exercise their freedom of movement without being hindered by discriminatory national laws. **[Jobcentre Krefeld]** [Facts:] - Polish national (JD) entered Germany in 2013 with former wife and two children. - Since 2015, the children have lived with their father and they entered the German school system in August 2016. - JD was employed for sixth months in 2015 as a locksmith assistant and 10 months in 2016 as a production worker. - Early 2018, JD restarted employment. - JD received a range of social benefits. - Subsidiary unemployment benefits and social allowances were discontinued in June 2017 on the basis that 'JD had not retained the status of a worker and he was residing in Germany solely in order to seek employment' paragraph 24 of case. - He and his daughters received basic social protection benefits from September 2016 to June 2017. - JD applied for continued benefits but Jobcenter Krefeld denied his application. - JD brought an action and the Sozialgericht Düsseldorf ruled in his favour. - Jobcenter Krefeld appealed to the Landessozialgericht Nordrhein-Westfalen. [Issue:] - Is it compatible with EU law for German law to exclude JD and his children from receiving social assistance benefits because their right of residence in Germany is based on Article 10 of Regulation 492/2011? - Does Article 24(2) of Directive 2004/38 apply to the right to equal treatment enshrined in Article 18 TFEU, read in conjunction with Articles 10 and 7 of Regulation 492/2011? - Is the exclusion of EU citizens from receiving special non-contributory cash benefits under Articles 3(3) and 70(2) of Regulation 883/2004 compatible with the requirement of equal treatment arising from Article 18 TFEU, read in conjunction with Article 4 of that regulation? [Judgment:] - JD retains his right to residence. Ruled in favour of JD. Found that German legislation violated EU law. - PROBLEM WITH THIS JUDGMENT: The Courts don't explicitly address WHY equal treatment in the EU exists. - 'The fundamental right to education that embeds the solidaristic claims in Jobcentre Krefeld, but the Court is afraid to make this explicit as it would extend their scope beyond those with a link to the labour market' p.84. - The Court ruled that Article 7(2) and Article 10 of Regulation 492/2011 **preclude** legislation of a Member State that automatically excludes nationals of another Member State and their children from entitlement to benefits that cover the costs of their subsistence, if they have a right of residence based on Article 10 of that regulation. - This interpretation is **not affected** by Article 24(2) of Directive 2004/38. - Article 4 of Regulation 883/2004, read together with Article 3(3) and Article 70(2) of that regulation, **precludes** legislation of a Member State that automatically excludes nationals of another Member State and their children who are covered by a social security system within the meaning of Article 3(1) of Regulation 883/2004 from entitlement to special non-contributory cash benefits, if they have a right of residence based on Article 10 of Regulation 492/2011. **[Dano ]** [Facts:] - Ms Dano and her son, both Romanian nationals, moved to Leipzig, Germany and lived with Ms Dano\'s sister. - Ms Dano received child benefit and an advance on maintenance payments for her son, but did not work or seek work in Germany. - Ms Dano applied for basic provision benefits (Grundsicherung) under the German Social Code (SGB II), but was refused because she was not a worker or self-employed and did not have a right of freedom of movement under the German Law on freedom of movement of Union citizens (FreizügG/EU). - The German Social Court in Leipzig (Sozialgericht Leipzig) questioned if EU law provisions, such as Article 4 of Regulation No 883/2004, Article 18 TFEU, and Article 20 TFEU, prevent the German provisions from excluding Ms Dano and her son from receiving these benefits. - Does EU law preclude a Member State from denying \"special non-contributory cash benefits\" to economically inactive citizens of other Member States who are residing in the host Member State for more than three months but less than five years, even though those benefits are granted to the host Member State\'s own nationals? [Judgment:] - The German legislation denying Ms Dano these benefits was deemed compatible with EU law. - EU law does not prevent a MS from excluding economically inactive citizens of other MS from certain social benefits if they do not have a rigjt of residence under Directive 2004/38. - Ms Dano did not meet these conditions for residency. - The Court of Justice of the European Union (CJEU) held that Article 24(1) of Directive 2004/38, in conjunction with Article 7(1)(b), and Article 4 of Regulation No 883/2004 do **not** preclude national legislation that denies certain \"special non-contributory cash benefits\" to nationals of other Member States if they don\'t have a right of residence under Directive 2004/38. - The CJEU reasoned that this is because Directive 2004/38 aims to prevent economically inactive citizens of other Member States from becoming an unreasonable burden on the host Member State\'s social assistance system. - The CJEU also stated that a Member State is allowed to refuse social benefits to economically inactive Union citizens who exercise their right to freedom of movement to access social assistance in another Member State if they lack sufficient resources for a right of residence. - The CJEU decided it did not have jurisdiction to answer the question of whether Articles 1, 20, and 51 of the Charter require Member States to provide non-contributory cash benefits sufficient for permanent residence. - The CJEU stated that because the conditions for granting \"special non-contributory cash benefits\" are not defined in EU law, Member States have the power to set those conditions and define the level of social cover these benefits provide. - Therefore, when Member States establish conditions for granting and the scope of these benefits, they are not implementing EU law. **[Healthcare cases]** Court's outcome in the 3 healthcare cases below: Courts have created a basic fundamental right = access to adequate healthcare. If a MS cannot meet the standard, then they must fully reimburse the patient if they seek treatment in another MS. Logic of free movement prevails again. **Elchinov** [Facts:] - Patient suffered from a malignant oncological disease of the eye. - Treatment available in Bulgaria was the removal of the eye. - Went to Germany to receive high technology radiotherapy. **Watts** [Facts:] - British NHS waiting time of a year. - Watts needed a hip replacement surgery. - Was in constant pain and unable to work. - Instead of waiting, went to France and was operated in a matter of weeks. **Petru** [Facts:] - Romanian women suffered from a severe cardiovascular disease, which needed an open-heart surgery within 3 months. - In the hospital she was before, there was a lack of basic medical supplies. - Petru decided to go to Germany to get treated. - Asked Romania to reimburse her. **Tjebbes** [Facts:] - This case involved four individuals - Ms Tjebbes, Ms Koopman, Ms Saleh Abady and Ms Duboux. All four individuals held dual nationality: they were all Netherlands nationals as well as nationals of another country (Canada, Switzerland and Iran, respectively). - All four individuals had resided outside of both the Netherlands and the EU for an uninterrupted period of 10 years. - Under Article 15(1)(c) of the Netherlands Law on Nationality, an adult will lose Netherlands nationality if they are a dual national and have their primary residence outside of the Netherlands and the EU for an uninterrupted period of 10 years. - Under Article 16(1)(d) of the Netherlands Law on Nationality, a minor will lose Netherlands nationality if one of their parents loses their Netherlands nationality in accordance with Article 15(1)(c). - The Minister for Foreign Affairs decided not to examine their applications for a Netherlands passport as they had lost Netherlands nationality by operation of law. [Issue:] - The key issue in this case was whether Articles 20 and 21 TFEU, read in conjunction with Article 7 of the Charter of Fundamental Rights, preclude national legislation that provides for the loss of nationality of a Member State by operation of law. - This was particularly significant because loss of Member State nationality for individuals who only hold the nationality of one Member State automatically results in the loss of EU citizenship. - The Raad van State was uncertain whether examining the proportionality of the loss of Netherlands nationality in these cases could be satisfied by a general statutory scheme or if each individual case needed to be examined. [Judgment:] - The Court of Justice of the European Union (CJEU) held that EU law does not preclude national legislation of a Member State which provides, under certain conditions, for the loss of nationality of that Member State by operation of law. - The judgment in *Tjebbes* essentially says that a Member State\'s law that automatically takes away a person\'s nationality (and consequently their EU citizenship) because they\'ve lived outside the country and the EU for a certain time **isn\'t necessarily against EU law**. - However, the judgment makes it clear that **this is only okay if** the authorities in that Member State, including the courts, can **look into what happens to the person** because of losing their nationality. This means they have to consider: - **Is it fair and proportionate?** They need to decide if taking away someone\'s nationality in this situation is a reasonable and balanced response to the goal the law is trying to achieve. - **What does it mean for this person\'s life in the context of EU law?** They have to think about how losing their nationality might affect the person\'s family life and their job, especially considering the rights they have as an EU citizen. - **What about their family?** If the person has a family, the authorities also need to consider how losing their nationality might affect them. - The judgment also highlights that this assessment must consider **specific things**, such as: - **The right to move freely within the EU**: Can this person still easily travel and live in other EU countries without their nationality? - **The right to consular protection**: If they\'re living in a country outside the EU, can they still get help from an EU embassy or consulate if they need it? - **The child\'s best interests**: If it\'s a child who\'s losing their nationality, is it actually in their best interests, considering their rights under EU law? - This judgment emphasizes that even though countries have the right to make their own rules about nationality, **they still need to respect EU law**. EU citizenship is a big deal, and countries can\'t just take it away without carefully considering the impact on the individual. **[V.M.A]** [Facts:] - Bulgarian -- British same sex couple. - They had a child in 2019 who was born in Spain. - VMA -- the Bulgarian national applied for a birth certificate for her child to obtain the nationalituy. - It was denied based on the fact that the country doesn't accept same sex marriages. [Issue:] - Is this allowed? [Judgment:] - VMA won the case. Courts ruled in favour of VMA's claim that the Bulgarian authorities infringed on her childs rights under Articles 20 and 21 TFEU and Articles 7, 24, and 45 of the Charter by refusing to issue a birth certificate for her daughter. - A Member State must issue an identity card or passport to a child who is a national of that Member State, even if that child\'s birth certificate, issued by another Member State, lists two people of the same sex as the child\'s parents. The Member State cannot refuse to do so on the grounds that the child\'s birth certificate does not conform with national laws regarding same-sex parenthood. - The Member State is **not** required to change its national laws to allow for the parenthood of persons of the same sex. However, the Member State **is** obligated to recognise the parent-child relationship between the child and both parents listed on the birth certificate, for the purpose of allowing the child to exercise their right to move and reside freely within the territory of the Member States, as guaranteed under Article 21 TFEU. - The Member State must also recognise a document from the child\'s host Member State which allows the child to travel with both parents. The birth certificate issued by the host Member State would qualify as such a document. - It is irrelevant whether one of the child\'s parents is a national of a country that is not a Member State. - **If** the child is not a national of the Member State, both parents and the child must be recognised as family members under Article 2(2)(a) and (c) of Directive 2004/38. This applies regardless of the nationality of the parents or whether they are EU citizens. This will allow the child to exercise their right to move and reside freely within the territory of the Member States, as guaranteed under Article 21 TFEU. **[CG v Department for Communities in Northern Ireland]** [Facts:] - CG, a dual Croatian and Netherlands national, resided in Northern Ireland with her partner (Netherlands national) and two children since 2018. - CG was economically inactive and had no resources. - In 2020, CG was granted Pre-Settled Status under the UK Settlement Scheme, giving her temporary residence for five years. - CG applied for Universal Credit (a social assistance benefit) but was refused because her pre-settled status wasn\'t considered a \"right to reside\" for the purpose of establishing habitual residence. - Relevant UK law, specifically Regulation 9(3)(d)(i) of the 2016 Universal Credit Regulations, excludes those with limited leave to remain (like pre-settled status) from receiving social assistance. [Issue:] - Did Regulation 9(3)(d)(i) of the 2016 Universal Credit Regulations, by excluding EU citizens with pre-settled status from receiving social assistance, **unlawfully discriminate** against them based on nationality, violating Article 18 TFEU? [Judgment:] - It\'s not straightforward to say definitively who \"won\" the case. The CJEU\'s judgment has nuances that make it a partial victory for both sides: - **CG\'s Partial Victory:** - **Fundamental Rights Upheld:** The CJEU emphasized that while a Member State can deny social assistance based on a lack of resources, it **must** ensure that this denial doesn\'t violate the fundamental rights of the EU citizen and their children. This includes the right to live in dignity, the right to respect for private and family life, and considering the best interests of the child. - **Obligation to Consider Alternatives:** The judgment places an obligation on national authorities to check if refusal exposes the individual and their children to a risk of violating those rights. They **must** consider all other forms of assistance available under national law to ensure basic needs and dignity are met. This means CG and her children could potentially access other benefits despite being denied Universal Credit. - **The Department for Communities in Northern Ireland\'s Partial Victory:** - **Denial of Social Assistance Allowed:** The CJEU confirmed that Article 24 of Directive 2004/38 **doesn\'t prevent** a Member State from excluding economically inactive EU citizens without sufficient resources from social assistance. This means the UK\'s law, which denies Universal Credit to those with pre-settled status and insufficient resources, is not inherently incompatible with EU law. - **Outcome:** - The CJEU essentially provided a framework for balancing the UK\'s right to control its social assistance system with the obligation to protect the fundamental rights of EU citizens and their children. - The final outcome for CG will depend on whether the referring court (the Appeal Tribunal in Northern Ireland) finds that refusing her Universal Credit exposes her and her children to a risk of violating their fundamental rights. The Appeal Tribunal must also consider whether alternative forms of assistance available under UK law can adequately protect their rights and dignity. - **In Conclusion:** - The judgment isn\'t a clear-cut win for either side. It acknowledges the UK\'s right to set conditions for social assistance while emphasizing the need to protect fundamental rights. The final decision rests with the national court applying the CJEU\'s guidance to CG\'s specific circumstances. Judicial architecture --------------------- Include readings. **[FOUNDATIONS OF THE EU LEGAL SYSTEM]** The EU\'s legal framework is enforced through a dual system of national and EU-level courts. The primary responsibility for implementing EU law rests with **national courts, acting as \'European courts\'**. This is considered \'Plan A\', the most important method of enforcement. - The effectiveness of this system depends on the principles of **direct effect and supremacy**. - **Direct effect** allows individuals to invoke EU law in national courts. This principle is crucial as it turns the EU\'s biggest weakness (lack of centralised enforcement structures) into a strength. - For direct effect to apply, the provision of EU law must contain \"a **clear and unconditional prohibition** which is not a positive but a negative obligation\", and must not be subject to any reservations by Member States. - **Supremacy** dictates that EU law prevails over conflicting national law. This means that national courts must **disapply any conflicting domestic rules**. - The **Court of Justice of the European Union (CJEU)** is the judicial body of the EU, consisting of: - The **European Court of Justice (ECJ)**, which interprets EU law and ensures its uniform application. The ECJ is comprised of one judge from each Member State. - The **General Court (GC)**, which handles cases brought by individuals and companies. The GC has two judges from each Member State. - **Advocates General (AGs)**, who provide impartial legal opinions to the courts. There are 11 AGs, who assist both the ECJ and the GC. - **Preliminary Reference Procedure (PRP)**: Article 267 TFEU allows national courts to refer questions about the interpretation or validity of EU law to the CJEU. - This is a **key mechanism for cooperation** between national and EU courts, ensuring uniform interpretation of EU law. - The CJEU\'s interpretation of EU law is binding on the referring national court and guides other similar cases across the EU. This ensures a consistent approach to the law, which is important for market actors and protecting citizens' rights equally across the Union. - The procedure typically lasts around 16 months (or 3-4 months for urgent cases), due to the ability of Member States to intervene and the need for translations. Member states involvement is important because the interpretation guides similar cases around the EU. - The **objectives of Article 267** at a European level are to ensure uniformity, development and enforcement of EU law, and at a national level to allow engagement with the PRP through opportunities and costs for different institutional actors. - The **CJEU has developed criteria** for acceptable preliminary reference questions to manage its workload and ensure the efficiency of the system: - **Acte éclairé**: Questions already answered by the CJEU or are so obvious that national courts can answer them themselves. - **Hypothetical questions**: Questions that are not related to real disputes or are merely academic in nature are inadmissible. - **Acte clair**: Questions where the correct application of EU law is so obvious that no reasonable doubt exists. This doctrine was clarified in the **CILFIT judgment**. The CJEU has sought to reclaim some control over the use of the acte clair doctrine because national courts, particularly apex courts, have used this as a 'way out' of referring. **[OPERATION OF NATIONAL COURTS AS EUROPEAN COURTS (PLAN A)]** - National courts are central to ensuring the enforcement of EU law. They directly apply EU law, including Regulations and Directives, though Directives only in \'vertical situations\' (between an individual and the state). - **Obligations of National Courts:** - They have an obligation of **indirect effect** (\'harmonious interpretation\') where national law must be interpreted in light of the objectives of non-directly applicable EU law. - In instances where EU law is not directly applicable, individuals must usually wait for the law to be transposed into their national system before they can make a claim. - National courts must provide remedies that are equivalent to domestic norms and are effective in protecting the EU rights at stake. - **Procedural autonomy**: National courts operate under their own procedural rules. However, EU law demands equivalence and effectiveness of these procedures. - **Lower Courts and the CJEU**: Lower courts may send questions to the CJEU and sometimes do so to challenge higher national courts, as CJEU judgements take precedence and can overturn domestic decisions. - This dynamic is partly because much of EU law is based on political compromises that result in vague wording which needs interpretation. - **Duty to Refer (Article 267(3) TFEU):** The requirement that courts of last instance *must* refer to the CJEU is in place to prevent conflicting interpretations of EU law by different national supreme courts. This preserves the uniform application of EU law across the bloc. - Lower courts *may* refer questions, but they *shall* refer where the validity of a Union act is in question. - Despite the strict wording of Article 267, higher courts have historically been reluctant to refer, often preferring to protect their own authority. However, the CJEU is increasingly demanding that national apex courts participate in the PRP. - The CJEU is also using the threat of Member State liability to enforce compliance with its rulings. - **Independence of the Judiciary**: National judges must be independent to ensure impartiality. This means: - Judges must be appointed following legally established procedures, and their positions must be permanent. - Courts must have compulsory jurisdiction and operate in a procedure inter partes (involving both sides of a dispute), applying rules of law. Critically, they must be independent. - There have been reforms that have undermined judicial independence, such as harsh disciplinary procedures against judges and court packing, which has prompted the EU to take action (Com v Poland, and Com v Hungary). **[CENTRALISED ENFORCEMENT: THE COMMISSION'S ROLE (PLAN B)]** - The Commission acts as the \'guardian of the Treaties\' under Article 258-260 TFEU. - **Article 258 TFEU** allows the Commission to initiate infringement proceedings against Member States for failing to fulfill their obligations under EU law. - This is a **supplement to individual enforcement** and is meant to resolve issues between the EU and Member States, not necessarily to achieve 100% right enforcement. - The Commission focuses on issues of priority for the EU and negotiates and uses diplomacy. - **The infringement procedure comprises three stages:** - **Pilot stage:** This is an informal process that is not formally part of Article 258 TFEU. Citizen complaints are forwarded to the Member State, which has 10 weeks to respond. Most complaints (80% in 2023) are resolved at this stage, with a focus on efficiency and informal resolutions. - **Administrative stage**: If the pilot stage is unsuccessful, a formal notice is issued by the Commission, outlining the nature and content of the violation, and giving the Member State procedural rights. However, the Commission has full discretion over whether to proceed. The Commission focuses on efficiency and enforcement in this stage. - **Judicial stage**: If the Member State fails to comply, the Commission may issue a reasoned opinion, setting out the steps required to remedy the infringement, and a timeline. If the Member State still fails to comply, the Commission can bring the matter before the CJEU. The Commission wins the majority of cases that reach the CJEU. - **Citizen complaints**: The Commission relies on citizen complaints for information on infringements (over 80%), as it has limited capacity to monitor all aspects of Member State compliance. This is because individuals do not have a right of action. The Commission releases priorities for strategic enforcement every year, due to the high volume of complaints. - **Enforcement of CJEU Judgements**: If a Member State fails to comply with a CJEU judgment, the Commission can initiate proceedings under **Article 260 TFEU**. - The Court can impose a lump sum payment and/or a penalty payment. - The lump sum relates to the length of time between the initial ruling and the Article 260 ruling. The penalty payment is an incentive for the Member State to remedy the infringement as soon as possible. - The calculation of these payments is based on the seriousness of the breach, the duration of the breach, and the Member State\'s ability to pay. - **Effectiveness of Article 258**: Article 258 is a valuable tool for addressing non-compliance, particularly where rights are not directly justiciable or where there are obstacles to individual enforcement. It is used strategically to address systemic weaknesses that hinder national courts from acting as 'EU courts'. However, its effectiveness is limited when facing deliberate non-compliance, where Member States are willing to pay financial penalties in order to maintain their policies. Member States can also use political leverage to circumvent the enforcement, such as through the use of veto powers, undermining the Commission\'s ability to enforce compliance solely through legal mechanisms. **[STATE LIABILITY (PLAN C)]** - **State liability** was created by the CJEU in the case of **Francovich**. - It allows individuals to seek compensation from a Member State for breaches of EU law. - This is a form of creative judicial activism used to fill gaps in legal protection, and provides an extra-legal method of enforcement. - **Conditions for State Liability**: - The infringed right must be for the benefit of the individual. - There must be a sufficiently serious breach of EU law. - There must be a causal link between the breach and the damage suffered by the individual. - State liability can be triggered by a \'manifest infringement of duty to refer\' under Article 267 TFEU (Kobler). - **Novel remedies**: State liability claims are pursued on a national level, with national courts creating novel remedies that allow actors to protect their rights under EU law. - The overarching aim of state liability is enforcement, creating both political and financial incentives for compliance. **[NEW JUDIDICIAL FEDERALISM: CENTRALISING AND DECENTRALISING FORCES]** - A new form of **judicial federalism** has emerged in the EU, characterised by both **centralising and decentralising forces**. - This new federalism is a move away from traditional structures in the relations between EU and Member State courts, with stronger centralisation as its distinguishing feature. - **Centralising Tendencies**: There is a stronger emphasis on federal judicial power: - **Growth of the EU Judiciary**: The EU judiciary has expanded significantly, with the creation of the General Court and the now-abolished Civil Service Tribunal, creating a de facto three-tiered system in some areas. The EU judiciary has grown to have almost 100 members, and receives almost 2000 cases a year. - **Increasing Hierarchisation**: The CJEU is increasingly demanding that national apex courts participate in the PRP and using the threat of Member State liability to ensure compliance with its rulings. This shifts the relationship from cooperation to hierarchy. There has been an increase in preliminary references from national supreme and constitutional courts, which are given priority by the CJEU. - **Prioritisation**: The EU judiciary is prioritising cases, focusing on important issues and using procedural tools to dispose of cases more efficiently. The GC may soon gain jurisdiction over some preliminary references. - **Control of National Judicial Processes:** The EU is asserting more control over domestic judicial choices through its \'Rule of Law jurisprudence\', including national procedures and the organization of national judiciaries. - **Decentralising Tendencies**: There is a pushback against the centralising forces: - **Challenges to Supremacy**: Several national supreme and constitutional courts have challenged the authority of the CJEU, including the German Federal Constitutional Court\'s **PSPP ruling**. Some national apex courts have refused to apply EU acts and rulings. - **Autonomous Interpretation of EU Law**: National courts, especially apex courts, have begun to interpret EU law, particularly in the area of fundamental rights, autonomously, creating a shift from a \'separation thesis\' where national courts did not engage in the constitutional review of EU acts. - **Relationship between judicial and political federalism**: The evolution of the EU\'s judicial system mirrors its broader political evolution, with increased political integration creating a demand for a stronger and more efficient federal judiciary. - **Workload and maturity**: There is now greater awareness of the need to control workload and there is a move towards a more mature judicial system, with the CJEU beginning to adopt a more nuanced approach to uniformity. **[KEY CASES]** - **C-53/03, Syfait**: Defines what constitutes a court for the purposes of the PRP \[source needed\]. - **Case 314/85, Fotofrost**: Establishes that lower courts \'shall\' refer on the validity of Union acts. - **CILFIT**: Introduced exceptions to the duty to refer under Article 267 TFEU. - **C-6/90, Francovich:** Established the principle of state liability for breaches of EU law. - **C-224/01, Kobler**: Established state liability for \'manifest infringement of duty to refer\'. - **Ferreira da Silva e Brito**: A national apex court was held liable for failing to refer a question based on an erroneous application of the acte clair doctrine. - **Commission v France**: The Commission successfully brought an infringement proceeding concerning the Conseil d'État's failure to make a reference in a tax case. - **Case C-791/19, Commission v Poland:** Challenge to judicial reforms in Poland. - **Consorzio Italian Management**: Imposed a new obligation on last instance courts to provide a statement of reasons when they choose not to make a reference. - **Landtovà**: The Czech Constitutional Court decided to disapply a CJEU ruling. - **PSPP ruling**: The German Federal Constitutional Court declared an ECB programme and a CJEU ruling upholding it, ultra vires. - **Akerberg Fransson and Melloni**: Defined the scope of the Charter of Fundamental Rights and Member States\' margin of appreciation. **[CHALLENGES TO THE SYSTEM]** - The EU system relies on the good will of national actors to remedy violations of EU law. - **Deliberate non-compliance** by Member States is a growing concern. - There are competing pressures in interpreting the demands of Article 267 TFEU, including workload, the need for uniform interpretation, and respect for national courts. - There is a tension between the need for uniformity of EU law and the desire to respect judicial autonomy. - The EU faces challenges in ensuring the uniform application of EU law, given the risk of conflicting interpretations by national courts and challenges to the CJEU\'s authority. - The EU is using creative judicial activism, such as state liability and conditionality rules to fill gaps in legal protection. The EU is also increasing its reliance on extra-legal enforcement instruments such as conditionality regulations in the EU budget. - The legal system risks being politicized when it is used to constrain politics. **[KEY THEMES]** - **Judicial Federalism**: The EU is evolving towards a more mature form of judicial federalism, with a balance of centralising and decentralising forces. There is a shift in the EU\'s federal balance, with the centre\'s power over judicial matters growing and the periphery\'s shrinking, although both national and EU courts have more power in the new system. - **Rule of Law**: The independence of national courts is crucial for the effective functioning of the EU legal order, and the EU is taking action to protect the rule of law within Member States. - **Uniformity vs. Autonomy**: The EU is constantly balancing the need for uniform application of EU law with respecting the autonomy of national judicial systems. The CJEU is adopting a more nuanced approach to uniformity, focusing on core principles and allowing more diversity in the application of EU law on matters of detail. - **Judicial Cooperation**: The concept of judicial cooperation between EU and national courts is evolving, requiring a more active role from national judges in implementing and interpreting EU law. The notion of cooperation has acquired a further, more active dimension as national judges must implement and, where necessary, interpret EU law independently to a greater extent than before. Brexit ------ Include readings. **[BREXIT: A UNIQUE CASE OF DIFFERENTIATION]** - **Brexit is not a typical example of differentiated integration (DI)**. Unlike other instances where member states (MS) opt out of specific EU policies, Brexit is a complete withdrawal from the EU. This places the UK entirely outside of the EU\'s legal and institutional framework. - However, the **Northern Ireland Protocol** introduces a unique form of DI within the context of Brexit, creating a distinct legal and economic space for NI. This highlights that while Brexit as a whole is not DI, it has resulted in a complex form of DI for Northern Ireland. - The **referendum** that led to Brexit was problematic because there was no clear 'reversion point' or plan for what would happen if the 'leave' vote won. This lack of clarity meant that different interpretations of what Brexit meant were possible. - The legal process for leaving the EU was relatively straightforward (Article 50 TEU), but the UK's situation was more complicated. - The UK\'s decision to leave raises questions about the balance between national sovereignty and the benefits of EU membership. **[DIFFERENTIATED INTEGRATION OF EU]** - **DI is a fundamental feature of the EU**. It acknowledges the diversity of member states and allows for flexibility in their participation. - DI can be described in two ways: - **Centralisation**: This involves progressive widening of the EU, leading to a system of opt-outs where some MS choose not to participate in certain policies due to national sensitivities. An example is the UK\'s opt-out from the Euro before Brexit. This can be seen as a continuous commitment to the EU project, albeit with specific exceptions. - **Territorial Extension**: This involves progressive deepening of the EU, leading to a system of opt-ins where non-MS like Norway and Switzerland participate in specific policy areas. The UK\'s continued participation in PESCO is an example of this. This can also indicate a general resistance to the EU project. - DI can be seen as an **evolution of existing integration** rather than an entirely novel phenomenon. Many states engage with the EU without being full members, and many MS do not participate in all EU initiatives. - The tension between **interdependence and politicisation** drives DI: - **Interdependence (functionalism)**: The more interdependent a state is with other MS, the greater the costs of non-integration. This suggests a strong incentive to be part of the EU. Countries like Norway and Switzerland need access to the EU internal market due to their economic ties to EU countries. - **Politicisation (intergovernmentalism and post-functionalism)**: The more politicised a policy area, the higher the costs of integration. This is because states may prefer to retain control over certain decisions. Areas related to identity and culture tend to be highly politicised. - **Politicisation is asymmetrical**, meaning the degree of politicisation varies from country to country. This explains why not all MS participate in all EU policies and accounts for the dynamic nature of the EU. **[ARGUMENTS FOR AND AGAINST DIFFERENTIATED INTEGRATION]** - **Arguments against DI**: - DI can lead to disintegration by allowing MS to \"cherry-pick\" policies, undermining the EU\'s collective nature. - This can create the impression that states can pick and choose what\'s best for them, rather than what\'s best for the EU as a whole. - Some argue that once a state is in the EU, it should not be able to opt out of policies. - **Arguments for DI**: - DI provides flexibility and allows the EU to accommodate the diverse concerns and sensitivities of its MS. - It recognises that MS are different, and enables the EU to adapt to those differences. **[THE NORTHEN IRELAND PROTOCOL: A CASE STUDY IN DI]** - The Protocol was designed to avoid a hard border on the island of Ireland, respecting the Good Friday Agreement and the peace process. - It places Northern Ireland within the EU single market for goods, while the rest of the UK is outside the EU. This means there is a **border in the Irish Sea** for goods moving between NI and the rest of the UK. - This arrangement is politically sensitive, creating a division within the UK itself. - The **\"Sausage War\"** illustrates the tensions arising from the Protocol, with disputes about the movement of goods between the UK and NI. - The **Windsor Framework** was created to address issues with the Protocol. It includes a 'green lane' for goods not at risk and a 'red lane' for goods heading to the Republic of Ireland. It also introduces the "Stormont Brake", which allows the Northern Ireland Assembly to suspend some new EU rules in specific circumstances. - Hayward describes the Protocol as a \"flexible and imaginative\" solution where both the EU and the UK compromised. **[THE WITHDRAWAL AGREEMENT (WA) AND THE TRADE AND COOPERATION AGREEMENT (TCA)]** - The **WA does not offer a clean break from the EU**. It establishes a framework for ongoing interaction and responsibilities. - Key elements of the WA include: - Protection of citizens\' rights for EU citizens in the UK and vice versa. - A yearly Joint Committee to oversee treaty implementation. - An obligation for national courts to give \"due regard\" to EU law. - Dispute settlement through arbitration. - The UK aimed for a flexible outcome in the WA, avoiding new EU-UK institutions. - The **TCA** is a political agreement which limits the role of EU institutions and national parliaments. It aims to avoid \"mixity\" and focuses on rules from 2021 onward. - The TCA includes provisions for: - Tariff-free goods, but with SPS and VAT rules. - Police cooperation. - Significant stand-still clauses in tax, environment, and labour, but with limited enforcement. - Exclusion of free movement of persons. - The TCA also has a safeguard clause, similar to Article 16 of the WA Protocol. - There are disputes between the UK and EU as the UK pushes for bilateral agreements on trade frictions, and the EU focus on enforcement structures. **[KEY ISSUES AND ONGOING CHALLENGES]** - **Enforcement** is a crucial issue in both Brexit and DI. - There is an ongoing tension between market access and regulatory autonomy. - The EU is wary of setting a precedent for renegotiating agreements to accommodate national interests for fear of a 'domino effect'. - The EU focuses on enforcement structures, while the UK seeks bilateral agreements for trade. - The **\'Brussels effect\'** gives EU norms an extraterritorial impact due to the EU\'s large economy and high regulatory standards. - The UK\'s proximity to the EU internal market limits its ability to fully \"take back control\". **[BREXIT'S IMPACT ON EU LAW]** - The interplay between interdependence and independence is central to EU law, and Brexit highlights the tension between these two. - The role of law in enforcing EU law and the scope for political and diplomatic deal-making are both important and need to be balanced. Substance of EU law =================== (I have nothing on this) Internal market --------------- Free movement of citizens ------------------------- Fundamental rights ------------------