Fe1 Eu Law Night Before Notes: Institutional Question
Fe1 Eu Law Night Before Notes: Institutional Question
Fe1 Eu Law Night Before Notes: Institutional Question
Institutional Question:
i. Legislative Powers
Legislative PROCESS dictates level of Power/Involvement of the EP
Co-Operation Procedure - allows EP to have amendments/rejections to Commission
Proposals to be considered by the Council
SEA allowed the ASSENT Procedure, which essentially gave the EP a veto over the Council
proceeding with legislation, for certain areas of law. (Accession)
EP can Initiate Legislation by requesting the Commission to submit a proposal (TEU)
NICE – Rendered EP Equal to Council under the Co-Decision Procedure
ii. Powers over Accession of Member States
iii. Budgetary Powers – oversight of EU Budget Ombudsman
iv. Ombudsman
v. Executive Function – Appointment of Commission/President
With 2/3 majority of the EP, the EP can pass a vote of Censure over the Commission. This will
effectively compel the Commission to resign
vi. Compliance Function - European Court of Justice
A263 EC: EP can initiate proceedings against another EU Institution for an Illegal or Ultra
Vires (outside their powers) Act
vii. Committees of Inquiry to investigate alleged breaches of Community Law
viii. Common Foreign and Security Policy/ Police and Judicial Co-Operation - EP must be consulted
The Council:
The Council of Ministers is charged with debating and adopting Legislative Provisions proposed by
the Commission
The Council will adopt a Commission Proposal by creating either:
A Directive, or
A Regulation
Presidency Responsibilities (When MS has it for 6 months)
a) Develop POLICY Initiatives for the Council
b) Liaise with the President of the Commission and the EP
c) Present Council’s AGENDA to the Commission and EP
d) Convene and Set the Agenda at meeting of EP/Commission
Council voting:
o Unanimity Procedure
o Qualified Majority Procedure
Council also formulates the EU BUDGET
nd
Council has Sole responsibility for 2 Pillar Decisions:
o Common Foreign and Security Policy
o Immigration and Asylum Policy
Legislative Procedures
1. Consultation
2. Co-operation
3. Assent
4. Co-Decision
Consultation
Commission had the power to propose legislation
The Parliament had to be consulted on that legislation
The Council decided had the power to decide if the legislation was decided
Roquette Freres v Council and Maizena v The Council
The final decision of the Council was overturned by ECJ because the EP had not first been
consulted
SEA reduces Consultation to sensitive areas, such as Regional Planning, Taxation, Industrial Policy and
Social/Environmental Policy
These areas require UNANIMITY at Council level anyway
Consultation is used for QMV Council areas also – in the areas of Freedom, Security and Justice (Third
Pillar areas)
Co-Operation
Established By SEA 1986 To Increase Legislative Role Of EP
Unlike the Consultation Procedure – the EP do NOT just have the right to be consulted
However – the COMMISSION has to agree to the Amendments required by the EP
And the EP must NOT put Political pressure on the Commission
Parliament has a first reading of the Commission proposal, and gives its opinion. The Council
then decides by QMV on a common position and sends its proposal, relevant information
and reasons for its position to the EP
Assent
Established by the SEA
Parliament must give it’s ASSENT to a proposal of the Council before the Council makes its decision
Only applies to certain decisions in certain specified areas.
Accession of New Member States
Some International Agreements
Some duties of the ECB/European System of Central Banks/Amending the Statutes of both
Decisions of Council to Sanction MS for Persistent and serious breaches of fundamental EU Rights by
Member States
EP has no power of Amendment under the Assent Procedure. It is a straightforward veto.
Co Decision
Introduced to counter “Democratic Deficit” allegations of EU
Treaty of Maastricht (TEU) established Co-Decision
EP can adopt measures JOINTLY with the Council
Essentially Co-Decision gives the EP Almost equal legislative power to the Council
This means that whichever areas are covered by Co-Decision will involve a direct increase in power of the
EP over that area.
1, 2 or 3 Readings can be involved.
First Pillar areas primarily – Supranational Areas relating to EU legislation – no requirement for prior
Intergovernmental Negotiations. 43 Areas of First Pillar legislation are now covered by Co-Decision
The Treaty Article that provides for power to enact legislation will – at the same time – specify what
METHOD of enactment that legislation must use. Therefore Co-Decision is decided by each Treaty to
apply to certain areas.
A189 TEU created Co-Decision – initially complex and lengthy, and
Declaration 34 of TOA streamlined the Procedure.
Democratic Deficit
Despite the four procedures above, despite the increased legislative power to amend or reject
proposals from various Treaties
The only Democratically elected institution - The Parliament – has the least legislative power of all
the institutions. This is termed the “Democratic Deficit”
The Legislative process is not only dominated by the Council and the Commission
It is also deemed to be too Complex, and to lack transparency
Many Committees used. Lengthy timescales. Occurs behind closed doors
This phenomenon is termed COMITOLOGY.
Separation of Powers
Which branch of the EU would be “The Legislature”? The Council AND the EP share the Legislative
process.
The Commission – as the Executive – is not Elected at all
The Council is not Directly Elected
The ECJ has a more activist and legislative role than a traditional Court, which is charged only with
dealing with those cases before it, and not “writing” laws.
Notwithstanding the above differences with traditional Separation of Powers, the basic Principle of
ACCOUNTABILITY is evident.
Case Law on the Separation of Powers in the EU
Roquettes Frere v The Council [1980]
Regulation was deemed void as the “Institutional Balance” provided for by the EP’s role in
the Consultation Procedure had not been applied.
European Parliament v The Council [1992] a.k.a. Cabotage II
Council adopted a Regulation regarding access to non-resident carriers to National Road
Haulage. EP initiated proceedings because it was not RE-Consulted on the final text.
European Parliament v Council [1995] a.k.a. “General Tariffs” case
Court of Justice did NOT intervene on the EP’s behalf. EP did not treat the Proposal as
Urgent, despite indicating previously that it would. The Council adopted it under pressure of
time. ECJ said if EP wanted to be consulted, they should have followed established timelines.
Supremacy:
A288 All EC Laws Have Priority over MS Laws. New Legal Order. Uniformity of EU Law
Costa ENEL –Domestic cannot override EU Law
Van gend en Loos/ Rights Created, MS Must provide Remedy
Handelgesellschaft: German Constitution subservient to EU, EU Legal Order Protects Fundamental
Rights
Simmenthal: Don’t wait for repeal – Conflicting Laws Are Immediately Inapplicable
Irrespective of date of Accession – Factortame UK
IRELAND: A29.4.10 “Necessitated by Obligations of Membership”
Crotty – Referendum Needed For Treaty Expanding EU Power
Meaghar: - Statutory instruments CAN Transpose Directives
Maher – Policies IN S.I. Are okay, if ALSO in Directives
Direct Effect:
A267 – CAN be sent to ECJ, A267(3) Final Court MUST Be Sent to ECJ (Appeal need not be
“Automatic”)
What is a “Court”:
Established by law
Permanent
Independent
Rule of law
Compulsory
Inter partes
A267:
Necessary?
Not Advisory?
Not Hypothetical?
Adequate information?
Not Artificial
A267(3) Exceptions:
Interloc
Already decided
Not Necessary
Acte Claire (interp. By other Courts)
Standing:
o Privileged Applicants
o Non-Privileged Applicants
o “Direct and Individual Concern”
o Challenges to Regulations and Decisions
o Codorniu
o Alternative Remedies
o Lisbon – ARTICLE 263(4) “REGULATORY ACTS” NOT REQUIRING ‘INDIVIDUAL’ CONCERN
Grounds of Illegality
Lack of Competence
Infringement of Procedural Requirement
Treaty Provision
Misuse of Powers
Effect of Judgement
A258
Individuals can INITIATE Case, but no further rights
Implementing Directive: MS Responsible for ALL Organs (including REGIONAL and
“Interpretation” of COURTS)
EFFECT is examined, not the Manner
Duty to give INFORMATION on how the Dir. Was initiated – failure can ground A258 Action
National Penalties for Dir Breach must be EFFECTIVE
A258 is Admin Procedure (LFN/RO + MS Fair Procedures) and Judicial Proc.( App to ECJ for
Enforcement)
Articles 258/A260 Fine – Possible if Reasoned Opinion (RO) Compliance is even Just LATE
A260 - Post A258 “Declaration”. Comm Suggest fine, ECJ Decides. Purpose of fine: INDUCE
COMPLIANCE
Letter of Formal Notice (LFN), LFN/RO Procedure Again. Then Court Case. Fine dates from RO
A259 MS Initiates. EVEN IF RO suggests no Infringement
Member State Liability: - No New Remedies In EU Law. DE (Direct Effect) Was Rendered Effective By
National Remedies
But what if DE did not ensure Enforcement (Conditions not met / Directive Time limit...or...National
Remedy not Sufficient)??
Supplementary remedy to DE – MSL A340 – MS as Agent of the EU. 5 Year Limititaion
Infringement of EU Law Which Intends To Confer Rights / Serious / Causal (per National Court).
Francovich and Brasserie/Factortame
Sufficiently Serious? A2340: Clarity of Rule? Discretion to National Court? Intentional Breach?
Inexcusable? Did EU itself contribute(Institution)? Offending National Laws kept, despite
illegality?
Causation: - National Courts Decide: Brinkmann de Facto
MSL – Applies to Emanations of the State
Effectiveness and Equivalence – National Procedural Rules are fine, as long as E&E are Upheld
Clock starts ticking once the Directive implemented
CEE: (Comm v Italy) - even if: Small/Not called a Charge/no competition domestically/ No benefit to
MS/Not discriminatory in Effect
Agenda = Free Movement. Exceptions: 1-3
Indirect A110 (1) Tax applies to BOTH domestic/import but favours Domestic: (Humblot 16CV)
Identical relevance/Legitimate Policy/Objective Criteria /Non Discriminatory application ( Chemial –
Synthetic Ethyl tax)
A110(2) Applies to Dissimilar Products, But Protects Domestic Products. Test is:
Competitive Relationship of Dissimilar Products? (SSNIP)
Effect of Taxation?
Freedom of Services
Checklist for applicability of A56
Services for remuneration - Deliege
Cross-border Element - Debauve
Lawful and within scope of A50/56 – SPUC v Grogan
Includes pursuit of an Economic Activity (A57), Profession/Trade
To also receive services: Luisi and Carbone
What is a ‘Restriction’?
Any direct/indirect discrimination on Service Provision– Van Binsbergen
Any direct/indirect discrimination on Service Receipt - Cowan
Prohibit/impede/render less advantageous – Sager
Potential restriction – Omega
Collective/Trade Union Activity – Laval un Partneri
Justification for Restrictions:
Official Authority Economic Activities
Article 52 Derogations
Public Policy - Omega
Public Security - Watts
Public Health
“General Public Interest” requirement - Laval un Partneri, Alpine Investments
Services Directive
Freedom of Establishment
1. Undertaking?
2. Relevant Market?
3. Agreement between U/T’s or concerted Practice/Decision?
a. Agreement is widely defined. Formal or Oral Consensus
b. Concerted Practice is Contact outside normal Market conditions - rebuttable presumption if
such Contact exists.
4. Inter Brand or Intra Brand Competition affected
a. Vertical Agreement?
i. Exclusive Distribution Agreement (Geography)
ii. Selective Distribution Agreement (Expertise/Branding)
iii. Exclusive Purchasing Agreement
b. Horizontal Agreement?: Cartels/Price-Fixing//Rebates/Future Prices
5. Affecting Inter-State Trade ?: Actually/Potentially, Direct/Indirect,
6. A101 Exemptions: Block Exemptions. Reg 1/2003. A101(1)/(3) D.E.
a. Vertical BE 2790/99 Under €100M turnover (buyer)/30% Mkt share-Seller
b. Horizontal: A101(3): Improve Product/distrib/Tech for EU Generally
7. Enforcement: National Comp. Authority. 1% Turnover for Info. Deficit and 10% Turnover for actual
Breach of A101/102
8. De Minimis: Competitors Aggregate u/10% Mkt Share/Non-Comp u/15%
If question includes: Price-Fixing/Limiting Production/Market Sharing/Allocation of geographical areas
to Distributor/Dissimilar treatment of Similar Transactions
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