Law Outline - Summary European Union Law Part 1

Part 1: Basics EU law is “quasi-federal”  unlike US, which is a federation Schuman Declaration – roughly equivalent to the Declaration of Independence  Non-binding document  only provides an animating idea  Many EU legal scholars think the EU Treaties should be read through the lens of the Schuman Declaration, much like how US scholars read the Constitution through the lens of the Declaration of Independence. Founders of the EU  France and Germany  Jean Monnet – behind the scenes during WW2. Coined Part 2: Basic Legal Architecture Civil Law or Common Law? 1. Structure 2. Precedent 3. DNA Members  Collegiate drafting in a foreign language  By people from civil law  Write in French, a second language for most Advocate General – one person who gives a reasoned, proposed judgment. ECJ is made of other people. Direct Effect Direct Effect – rights for individuals that national courts must protect Treaty Provisions: Article 267 TFEU (ex Art. 177 EEC Treaty) – ECJ shall have jurisdiction to give preliminary rulings concerning: (a) Interpretation of the Treaties; (b) The validity and interpretation of acts of the institutions, bodies, ofÏces or agencies of the Union  Where such a question is raised before any MS court, that court may request the ECJ to give a ruling if it’s necessary to enable judgment.  Where any such question is raised in a case pending before a MS court against whose decisions there is no judicial remedy under national law, that court shall bring the matter before the Court.  If such a question is raised in a case pending before a MS court with regard to a person in custody, the ECJ shall act with minimal delay. Article 258 TFEU (ex Art. 169 EEC Treaty) – If the Commission thinks a MS failed to fulfill a Treaty obligation, it shall deliver a reasoned opinion on the matter after giving the MS the opportunity to submit its observations.  If the MS doesn’t comply with the opinion within the period laid down by the Commission, the Commission may bring the matter before the ECJ. Article 259 TFEU (ex Art. 170 EEC Treaty) – A MS which thinks another MS failed to fulfill a Treaty obligation can bring the matter before the ECJ.  The accusing MS has to bring the matter to the Commission first. The Commission shall deliver a reasoned opinion after each MS has been given the opportunity to submit its own case and observations on the other party’s case both orally and in writing.  If the Commission hasn’t delivered an opinion within 3 months, the accusing MS can bring the matter to court. Article 19(1) TEU (ex Art. 220 EEC Treaty) – The Court of Justice of the EU includes the ECJ, the General Court, and specialized courts. It shall ensure that the law is observed in the interpretation and application of the Treaties. MSs shall provide remedies sufÏcient to ensure effective legal protection in fields covered by EU law. Cases: Van Gend en Loos – company imports urea-formaldehyde from West Germany to the Netherlands. Dutch taxes the imports with a tariff. Company says the tariff is contrary to EC law.  All member states say this is a question of Member State constitutional law  AG gave interpretations by saying what the intent of the parties was  ECJ holds that Art. 12 has direct effect  rights for individuals that national courts must protect  Some say this case establishes supremacy of the EU Supremacy EU Law is supreme over MS law in regards to all of the following:  Substance  Procedure  Remedies Article 267 TFEU (177 EEC) disaggregates the traditional legal system  allows EU courts to interact directly with lower courts of MSs, exercising direct control over their decisions and interpretations of national laws. Treaty Provisions: Article 4 TEU – (1) Competences not conferred upon the EU in the Treaties remain with MSs. (2) EU shall respect the equality of MSs before the Treaties as well as their national identities. It shall respect essential MS functions, including ensuring territorial integrity of the MS, maintaining law and order, and safeguarding national security.  National security remains the sole responsibility of each MS. (3) Principle of sincere cooperation: the EU and MSs shall assist each other in carrying out tasks which flow from the Treaties in full mutual respect. MSs shall take any appropriate measure to ensure fulfillment of Treaty obligations or obligations from the acts of EU institutions. MSs shall facilitate the achievement of the EU's tasks and refrain from any measure which could jeopardize the attainment of EU objectives. Article 288 TFEU (ex Art. 189 EEC Treaty) – To exercise EU's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.  Regulation – has general application. It shall be binding in its entirety and directly applicable in all MSs.   Directive – binding, as to the result to be achieved, upon each MS to which it’s addressed. Still leaves to the national authorities the choice of form and methods. Decision – binding in its entirety. o A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force. Cases: Costa v. ENEL – Electricity bill customer refused to pay because he thought that utility was illegally nationalized by Italy. Milan court referred questions about specific EEC Treaty provisions that might be used to challenge the nationalization. Italian Constitutional Court ruled that the nationalization was constitutional, and that the EEC Treaty ranked as a law in the Italian legal order because Italy ratified it by simple statute, thus making the Treaty subordinate to the subsequent Italian nationalization legislation.  By creating the EEC Treaty, MSs limited their sovereign rights within limited fields, thus creating a body of law that binds nationals and themselves. The executive force of EU law can’t vary from MS to MS in deference to domestic laws without jeopardizing the objectives in TEU Article 4(3).  Limitation of sovereignty transferred power to the EU. This created the “new legal order” with unlimited duration. Treaty laws can’t be overridden by subsequent domestic laws and must apply in uniform way  ECJ – requirements of EEC Treaty means that it must be applied uniformly. Three aspects: o Unlimited durations o Institutional o Limitation of Sovereignty Simmenthal – Public health inspection fees on beef and veal were held to be in violation of EEC law. P sued to get money back. Court asks ECJ whether or not P has to wait.  There is no need to wait in the domestic legal system. o Effectiveness argument – effectiveness of EU law will be compromised and rights will be destroyed. o Duty of cooperation  Art. 4(3) o Uniformity argument o Art. 177 – if you prevent national courts from applying EU law, you are undermining the ability of the court to make reference to the ECJ  Observation: This clearly envisions matters of EU law to arise in national courts.  Observation: It doesn’t necessarily follow from this that direct effect/supremacy is self-evident from these arguments.  EU laws must have direct applicability, so they need to stay in force for MSs and individuals. EU laws prevent new incompatible national legislation from taking force. A national court which is called upon to apply EU law must give full effect to those provisions even if it means going against applying conflicting national laws. Factortame – UK amended an act to prevent Spanish fishing interests from taking a share of the fishing quota allotted to UK. The act prevented Spanish-owned fishing vessels from being registered as UK vessels if less than 75% of the company’s stock was owned by people dwelling in the UK. P didn’t satisfy this requirement and sued. House of Lords asked ECJ whether national courts can grant interim relief against an Act of Parliament which might violate EU law. UK constitutional rule says you can’t enjoin an Act of Parliament.  ECJ says to issue the injunction. It doesn’t matter what the UK constitution says.  National courts must ensure the legal protection derived from EU law. A national law that takes its court’s power to set aside national laws that prevent EU laws from having full force is incompatible with the essence of EU law and impairs its effectiveness.  The Reception of EU Law in the Member States Monism – all of law is based on a hypothetical norm. There can only be one hypothetical norm.  I.e. “this is the way the world is”  National law is grounded in international law. International law takes precedence  Fromagerie Dualism – recognizes two systems of law that derive from different sources.  Can be: o Hostile – gives little deference to treaty  o Neutral – adopts treaty law but allows subsequent statutes to override treaty provisions o Friendly – allows treaties to trump international statutes This arrangement is not the result of “the nature of international law,” as in the monist tradition, but is the result of laws passed by the nation itself. Belgium and the “Monist States” Belgium – has written its constitution to allow treaties to take primacy over national legislation.  Belgium is actually super friendly because it is amenable to changing its Constitution to accommodate an international treaty.  No country in the world (even Belgium) is probably truly monist; they are more accurately super-super-friendly dualists. Cases: Fromagerie Le Ski (Belgium, 1971) – Belgium enacted a tariff on dairy products, which the ECJ ruled violated Article 12 (the “no new taxes” provision). Belgium then decided that it wouldn’t pay back any duties that had been paid under the illegal law. P sued to recover duties it paid. The subsequent rule that conflicts with treaty law cannot be given effect. The tariff must be set aside and illegally paid duties must be repaid. o EU has created a new legal system that limits what Belgium can do. This is true for all treaties that take the same effect; international law requires that a treaty will always take primacy over national laws. o “The primacy of the treaty results from the very nature of international treaty law”  Belgium’s monist tradition – laws are driven by governing norms. All laws ultimately must tie back to one overarching legal norm that is the origin for all legal systems.  Because we have so many individual nations, the ultimate norm in monism must be international law since it’s the only body of law that supersedes all national legal systems. Thus, international law provides the foundation for all other law.  Therefore, if international law makes a claim of primacy, then that primacy must be given effect. Orfinger (Belgium, 2000) – conflict between a Belgium royal decree and a provision of Belgium’s constitution. The former allowed citizens of MSs to be recruited for civil service positions in Belgium; the latter reserved those jobs for Belgian nationals alone “except for specific cases to be determined by law.” EU treaty, meanwhile, required MSs to open up public administrative positions to citizens of member states – consistent with the royal decree.  Court: The Treaty must take primacy. Article 34 of the constitution allows a treaty to take primacy over national law. Belgium has made the treaty its own law by ratifying it. Belgium must now abide by its tenets going forward, per the requirements of Article 34.  Some argue that Orfinger’s nod to Article 34 is not a dualist interpretation, but rather Article 34 is merely an acknowledgement of the monist tradition of Belgium’s legal code.  Germany, Italy, and the “Dualist” Approach Cases: Internationale Handelsgesellschaft (1970) – European Council passed regulation requiring prior payments of deposit by exporters of agricultural products across MS borders. German exporter sued on a theory that the rule violated Germany’s legal principle of “proportionality.”  Court: The regulation is upheld even though it violated German constitutional principles, because it said it did not violate any fundamental rights of German citizens and accomplished an end that could not be achieved any other way.  This holding would not have occurred in the US, where treaties can’t abrogate individual rights guaranteed by our constitution. Germany is even stricter about protecting constitutional rights – not even the people can amend that section of its constitution. Solange I (Germany, 1974)  German Court: rejects EU’s interpretation of how the Treaty supersedes German law. There are two distinct legal systems here. The German constitution has primacy in the event of a conflict between the rights granted in the constitution and what is allowed under the Treaty. o German citizens are afforded the protections of their constitution, and the Treaty will not be allowed to abrogate those rights.  German constitutional court is putÝng itself into the dualist camp. o If there’s no conflict with German law, Germany is open to EU law  friendly dualism. o German court is here to protect German rights. They want to control the effect of EU law in Germany. Solange II (Germany, 1986)  German Court: Grants EU jurisdiction over fundamental rights as long as it continues to provide protections for those rights. o Court therefore doesn’t feel the need to exercise jurisdiction over these questions – it declines jurisdiction after EU ruled on the same subject. o This stance is conditional on EU continuing to protect fundamental rights.  German Court believes that the EU now has a generally decent record on human rights. o To make a claim to the German court in the future on this issue, you’d have to argue that the EU has a general, systematic, problem with human rights protections.  Must be a wholesale claim – akin to a class action or similar suit. It also has to represent a significant rights violation, not a small issue.  “Rough equivalence” of rights protections is acceptable.  Observation: This case is a remarkable step back for a constitutional court to defer to another constitutional court on issues of fundamental rights for its own citizens. However, it’s not a complete acceptance of supremacy because it leaves room for the German constitutional to still prevail if a major conflict arises in the future. Granital (Italy, 1984) – Company imports 500 tons of malt into Italy, refuses to pay the agricultural levy Italian authorities demanded, relying in EEC regulation. In a separate case, ECJ agreed with company’s interpretation of EU law. Company sought a declaration from Italian court that no payment was due. While this case was pending, a presidential decree modified Italian law to adopt ECJ’s substantive rule, but specified that the change would take effect only as of the date the ECJ’s ruling was published.  Italian court: recognizes two legal systems – Italian law and EU law. Refuses to allow EU law to abrogate Italian national laws  very dualist. o Giving effect to an EU law doesn’t negate an Italian law, although it does adopt principles that allow EU law to take supremacy in most situations. o Court reserves the power to refuse to enforce EU laws that violate a fundamental principle of the Italian legal system or if an Italian statute is intended to violate EU law. o Germany (again), Denmark, and the Expansion of “Dualist” Controls Germany – super friendly dualist  Views EU as derivative  derives legality from MSs  Right of withdrawal  retaining sovereignty  German constitutional check o Solange for fundamental rights o Wholesale claims of rough equivalence  Ultra vires – checking the enumeration of powers  letÝng ECJ opine first, then make their own decision based on manifest breach of structural significance  Identity – certain core powers must remain with the MS  MS cannot give these powers to the EU  On implementing legislation (domestic)  No transfer of “Kompetenz-Kompetenz” (power to determine your own powers) o If ECJ says they didn’t overstep power, Germany makes a determination of EU law for Germany only. Not concerned about what happens with the EU law in other MSs.  This hasn’t ever actually happened. Germany rarely ever refers cases – first one they sent was ultra vires  Seen as a leading MS in Europe for interpreting MS vs. EU relationship Denmark  Role of Danish courts  retain right to review. ECJ might get first look, but Danish courts still have a role to play. Italy – dualist Cases: The Lisbon Judgment (Germany, 2009) – members of Parliament challenged Germany’s proposed ratification as unconstitutional.  MSs remain the masters of the Treaties. The source of EU authority is the people of Europe with democratic constitutions in their states. Two consequences of this: o Exercise of powers by the EU must remain bound by the principle of conferral o EU must respect MSs constitutional identity  EU can’t exceed the scope of powers that have been conferred upon it by MSs  German government may act only on the basis of instructions from the Bundestag/Bundesrat regarding “emergency brake procedures” (draft legislative acts in certain policy fields can be referred to the European Council when they affect fundamental MS interests) Carlsen et al. v. Rasmussen (Denmark, 1998) – whether the implementation in Denmark of the EC Treaty as amended by the EU Treaty was lawfully enacted pursuant to Art. 20 of the Danish Constitution. Art. 20 allows transfer of powers to international bodies to such extent as provided by statute. Art. 235 of the EC Treaty says if we forgot to give you the powers to do something, you can still go ahead and do it.  Art. 235’s scope is limited to when operating in the common market, or trying to operate the Treaty in such a way specified.  Substantive scope: o Objectives defined in Treaty o Unanimity  Danish leg has to agree to it. Builds in statutory specification. France and the U.K.: Incomplete Member State Constitutions France – split high-court jurisdiction.  Three supreme courts: o Cour de Cassation – general supreme court  says they can do this because there’s a difference between applying treaties and the constitution o Conseil d’etat – high administrative court  says they’re not going to be judging this stuff o Conseil Constitutionnel – constitutional court  Has only been a full-fledged court since 2008; it was a council before.  Many French statutes were put aside because they’re incompatible with the treaties; were not thrown out if they violated their own constitution. Constitutional court was finally given power to determine statutes because they violate the French constitution.  Essentially bends over backwards to make the EU work and to make EU law effective  French Constitution: o Article 54 – If Constitutional Council holds that an international undertaking is unconstitutional, it can’t be ratified until the constitution is amended o Article 55 – Treaties prevail over Acts of Parliament o Article 61 – Institutional Acts will be referred to the Constitutional Council to rule on constitutionality before coming into force.  Doesn’t matter whether other MSs are living up to obligations. You can still sue them, and that’s enough (but you still have to live up to your own obligations). Can’t make the argument that another MS isn’t living up to its side of the obligation  Jacques UK – dualist  No written constitution. Composition of super important statutes.  Enacted the European Communities Act of 1972 – pledged to do what they can to abide by EU law and meet their obligations. Treaty Provisions: Article 352 TFEU (1) If EU action is necessary to attain one of the objectives of the Treaties and the Treaties haven’t provided the necessary powers, the Council will adopt appropriate measures. (2) The Commission will draw national Parliaments’ attention to proposals based on this Article (3) Measures based on this Article can’t harmonize MSs laws or regulations where the Treaties exclude such harmonization (4) This Article can’t be used to attain objectives regarding common foreign and security policy Cases: Administration des Douanes v. Societe Cafes Jacques Vabre (French Cour de Cassation, 1975) – Coffee importer claims French consumption tax on Dutch coffee violated EEC Treaty’s Art. 95 (prohibiting discriminatory taxation). Tax was based on the French Customs Code.  The EEC Treaty has greater authority than statutes according to Art. 55 of the French Constitution. Article 95 of the Treaty applies to this case rather than the Customs Code, even if the Customs Code was later in date. Societe Arcelor Atlantique et Lorraine v. Premier Ministre (Conseil d’Etat, 2007) – EU adopted directive to create gas emission allowance trading system to further the Kyoto Protocol. It required firms like Arcelor (steel manufacturer) to obtain a permit to emit greenhouse gases. Arcelor said the exclusion of chemical and nonferrous metal sectors like plastics/aluminum from the scheme was discriminatory (violating the principle of equal treatment in the constitution).  Although Art. 55 says that finished treaties have priority over statutes, the primacy accorded to international agreement doesn’t prevail over the constitution. It is for the administrative court to determine constitutionality of the EU law.  The constitutional value of equal treatment is also a general principle of EU law. EU law thus ensures respect for the French constitutional value. The Conseil d’Etat can determine whether the directive infringes the general principle of Community law. R. v. Secretary of State (UK, 1991) – Environmental issues arising from the plan to deploy a highspeed rail link between London and the North.  Although the UK doesn’t have a constitution, there are fundamental principles that Parliament didn’t consider when it enacted the European Communities Act of 1972.