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European Law Revision Exam
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Enforcement Free Movement of Goods Free Movement of People Access to remedy Competence and subsidiarity Human Rights
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EU Law Revision1. Enforcement
-Lisbon Treaty (2009)-sets out TEU on constitutional framework, TFEU on
functioning and detailed policies of EU and Charter of Fundamental rights
-Article 288 TFEU- regulations (general application in all member states),
Directives (binding upon member states but up to them how to enforce),
Decisions (general application to person it aimed at) and
recommendations and opinions have no say so
-Also is international agreements and general principles of EU law such as
proportionality/non-discrimination, respect for fundamental rights...
a) Centralised Enforcement
Unlike International Treaties, there are significant differences to EU central
enforcement:
1)Unlike normal notions of voluntary submission, here CJEU has
compulsory and exclusive jurisdiction on issues under Article 344 TFEU. In
Comission v Ireland (2006) Ireland punished for suing UK under UN
protocol rather than going to CJEU
2) complying with EU law not based on reciprocity so cannot rely on
another MS failure to comply with EU Law as your defence. Also cannot
have your own interpretation or stance which contradicts EU law
i)when do member states breach EU law?
Breaching Article 4(3) TEU on communication and cooperation with
commission
-Comission v Netherlands (1982)- water directive where condition was to
tell commission when it was fulfilledif provision vague it is for MS not
commission to go chasing
-Comission v France (1997)- article used where, as in case here of French
farmer protests, they don’t cooperate and frustrate treaties
Inadequate implementation of directives
-Comission v France (1974)- implemented naval directive by oral order
rather than legislationmust fully implement them in way communicated
to public
-Comission v Netherlands (1982)- implementing them in way which can
“be altered on a whim” is not proper implementation
-Comission v UK (1997)- it was taken to be fully implemented where
national law allows judges to read national law compatibly with directive,
as long as sufficiently clear
Interfering with EU external relations
-Open Skies v UK (2002)- did airforce agreement with several countries
and US even though was now a shared competence area
-Stockholm convention (2010)- Sweden listed substance before
commission had formed position on it
, General and systemic breaches
-Case against Ireland (2005)-12 times breached waste directive
ALSO CAN refer a court as they did for Swedish court in 2004, although
this very controversial
ii)article 258 and enforcement
Article 258 TFEU- allows commission to be prosecutors against MS for
these breaches, for ANY part of member state
Article 259 TFEU- can be brought by MS against eachother but very rare
-Star Fruit v Comission (1989)- individuals CANNOT bring proceedings or
influence them
-Comission v France (Spanish strawberries)(1997)- MS can be found in
breach indirectly by not preventing breach by private partiesprotest
preventing free movement of goods
METHOD:
a) Comission Investigate
Craig & Evans- both agree that it is commissions sole discretion to bring
proceedings
-Comission v Greece (2005)- lack of motive from commission will not
affect procedure
-Comission v Ireland (1984)- gave 5 days between 1st letter and reasoned
opinionwas allowed as they HAD waited time frame BUT massively
criticised as unfair
-Comission v Belgium (1988)- rejected ECJ application because
commission had not respected the time frame of process very short
time periods will only be allowed in urgent situations BUT NOT to speed up
for sake of individual
2002- EU Ombudsman codified their policies and rules so that letter of
infringement served when MS don’t announce plans to agree with
directivesEU Pilot and Chap registration and compliance systems means
amount of cases is falling significantly
b)Formal notification of infringement-2 months to
reply
44% finish after this stage
c) Reasoned Opinion
36% finished after this state
-Comission v Italy (1961)- must outline sufficient reasons and arguments
why it believes state has breached treaty- Article 296 TFEU- all legal acts
must be reasoned
-Comission v Germany (1998)- reasoned opinion cannot set out new
grounds, must confine the breach and must set out time-limit of
compliance etc
d) referral to ECJ
only 1/10 reach this stage
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