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Transnational Commercial Law Summary
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A well detailed summary for your law exam, about chapter 2, 3, 4, 8, 10 & 11. Tip: please use the summary to make the cases in the books!
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Transnational Commercial LawChapter 2 – European Law
2.1 Introduction.
The main sources of international trade law are:
Treaties.
European law.
Rules made by private international entities.
Such as the ICC, International Chamber of Commerce, e. g. Incoterms and Uniform Customs
and Practice for Documentary Credits.
TFEU = Treaty on the Functioning of the European Union.
TFEU is the legal basis for European Law.
TEU = Treaty on European Union.
TFEU + TEU are the legal basis for of the European Union.
Main points in the TEU:
Principles and values of EU.
Main objectives of EU.
Roles of main institutions in EU.
Rules of common foreign and security policy.
ECJ = European Court of Justice.
It ensures the correct interpretation of European Law.
ECtHR = European Court of Human Rights.
It secures to residents of the signatory states fundamental rights.
It also prohibits inhuman or degrading treatment or punishment.
The ECHR has been signed by more countries than just the EU member states.
2.2 Institutions of the EU.
The EU has the following institutions (Art. 13 TEU):
1. European Parliament.
2. Council of European Union (= council of ministers).
3. European Council (= heads of State).
4. European Commission.
5. Court of Justice of European Union.
1. European Parliament.
Members of the European Parliament (MEPs) are directly elected for a 5 year term by the citizens of
the member states. The EP has a max. of 705 members (Art. 14 (2) TEU). Distribution of seats is based
on the degressive proportionality principle: the larger the population, the more MEPs, the better the
representation. Minimum MEPs is 6 of each country and the maximum MEPs is 96 of each country.
,The EP (together with the Council of EU) is the co-legislator of the European
legislation.
EP monitors the Commission, where EP has the authority to ask the
commission questions (Art. 230 (2) TFEU).
EP is also permitted to question the Council of the EU (Art. 230 (3) TFEU).
The Commission must answer the questions, but the Council does not.
EP can also submit a motion of censure, which will, if there is a 2/3 majority,
force the resignation of the entire Commission from office (Art. 234 TFEU).
EP has to approve the budget of EU (Art. 314 TFEU).
2. Council of European Union.
Group of ministers from member states, varying depending on the topic being discussed, e.g. finance
ministers for economic matters etc. (Art. 16 (2) TEU).
Council drafts the legislation of EU (together with EP).
The Lisbon Treaty introduced qualified majority voting (QMV) in the council as the standard procedure
in most policy areas. This means that voting powers of the member states are based on their
population. A qualified majority is reached when at least 55% of all Member States (with a minimum
of 15 States), whose populations comprise at least 65% of EU citizens, vote in favor of a proposal. To
block legislation, at least four countries (representing at least 35% of the EU population) have to vote
against the proposal. This prevents big populated member states from blocking a decision.
3. European Council.
This consist of the heads of State or government of the 27 member states, the president of the
European Commission and the president of the European Council (Art. 15 TEU).
They meet at least 4 times a year to define the EU’s general political guidelines and political priorities.
It does not have a legislative function.
4. European Commission.
This serves as the executive committee of the EU.
It comprises of 27 Commissioners (one of each member state) appointed for 5 year term.
Commissioners represent the interests of the EU as a whole rather than their home countries (unlike
the ministers in the council).
The main tasks are (Art. 17 TEU):
Submitting legislative proposals.
Managing and execute EU policy.
Ensuring compliance with Community Law by member states and individuals.
Representing the EU in international negotiations.
,5. Court of Justice of European Union.
They ensure the correct application of EU
Law.
It addresses the need for harmonizing
both laws and interpretations across
member states, as even identical laws can
be interpreted differently.
Court of Justice of EU =
General Court + Court of Justice.
Please study the examples on these
articles given on p. 41 – 51 !!!
A Member State does not comply with EU obligations (Art. 258 & 259 TFEU).
When a Member State does not comply with European law, the Commission can initiate proceedings
before the Court of Justice, asking the Court of Justice to order the Member State to abide by EU law.
Liability of a Member State for damages caused to individuals by a breach of EU law.
A Member State is only liable to pay damages if the following conditions are met:
1. The infringed rule of EU law grans rights to individuals.
2. The breach of EU law has to be sufficiently serious to merit the award of damages.
3. There should be a causal link between the breach of the Member State ’s obligation and the loss
damage suffered by the injured parties.
Action for annulment (Art. 263 (2) TFEU).
Hereby a Member State, the EP, the Council or the Commission may seek the annulment (cancelation)
of a measure (regulation, directive or decision) adopted by an institution of the EU. A Member State or
European institution may also consider that another EU institution is not complyi ng with EU law.
Action for annulment (Art. 263 (4) TFEU).
Individuals have only limited scope to apply to the ECJ and can only apply when a legal act:
1. Is addressed to the individual.
2. Directly and individually affects the individual.
3. In case of regulatory act, is of direct concern to the individual.
Compensation based on non-contractual liability (Art. 268 TFEU).
If individuals or legal entities suffer damage due to wrongful acts committed by EU institutions, they
have the right to seek compensation at the Court of Justice. The process begins at the General Court,
with the possibility of appealing its decision to the Court of Justice.
Preliminary ruling (Art. 267 TFEU).
The vast majority of rulings by the ECJ are preliminary rulings. EU law must be interpreted the same
way throughout the Union. Therefore, it is possible for national courts in the Member States to refer
questions to the Court directly requesting preliminary rulings on the interpretation of the European
law. In this way, the national court can take the ECJ’s ruling into account when giving its decision.
, 2.4 European Legislation.
The legal framework for European Union law is established by the Treaty on the Functioning of the
European Union (TFEU) and the Treaty on European Union (TEU).
Provisions in the TFEU address key aspects
such as free movement of goods, persons,
services, and capital, and prohibit anti-
competitive practices and state aid.
These provisions have direct effect, enabling
citizens to enforce their rights in national
courts, if they meet certain criteria:
is sufficiently clear and precisely stated;
is unconditional or non-dependent on any
national implementing measure;
confers a specific right for the citizen to base
his/her claim on.
If a provision of a Treaty or other legal act, e.g.
a directive or regulation, confers rights on an
individual which he/she can invoke against a
Member State, this is called vertical direct
effect.
If a provision of a Treaty or other legal act, e.g.
a directive or regulation, confers rights on an
individual which he or she can invoke against
another individual (e.g. an employee against
an employer) this is called horizontal direct effect.
The European Union makes the following legal acts:
Directives.
Regulations.
Decisions.
Recommendations.
Opinions.
The legal basis for the adoption of these legal acts is Article 288 TFEU.
Directives (Art. 288 (3) TFEU).
A directive is binding, as to the result to be achieved, upon each Member State to which the directive
is addressed, but leaves the national authorities the choice of form and methods.
A directive is not automatically applicable in a Member State. Member States have to follow their own
national law-making procedure to implement the legislation in their national l aw. It is therefore in
principle not possible for an individual to invoke a directive in a national court. In other words, a
directive does not have direct effect.
However, a directive contains a timetable, a period within which the directive must be transposed into
national legislation. The deadline for the transposition of the directive into national legislation is often
at the end of the directive. If the time limit for transposition has expired and a Member State has not
transposed the directive into national legislation, the directive generally has a direct effect. This means
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