Term
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Definition
| An individual has the right to enforce EU law in national courts. First articulated in Van Gend en Loos in 1963. Member States objected saying it contradicted the intentions of those who created the Treaty. ECJ disagreed. By participating in the EU, Member States have voluntarily submitted themselves to community law, conferring upon their citizens certain rights and obligations which may be invoked in national courts. |
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Definition
| Individual seeks to enforce EU law against the state |
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Definition
| Individual seeks to enforce EU law against a private party |
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Definition
| Subject to direct effect theory if provision is "self-executing". Article must be "clear, negative, unconditional, containing no reservation on the part of the Member State." Vertical and horizontal direct effect. |
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Definition
| Regulations are "binding in their entirety" and are "directly applicable in all Member States." Regulations immediately become a part of domestic law. Regulations are subject to vertical and horizontal direct effect as long as they are sufficiently clear, precise, and relevant. |
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Definition
| Not directed to all Member States and are binding only as to the ends to be achieved and not as to the means by which to achieve them. Vertical direct effect but not horizontal direct effect. |
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| Harmonious interpretation principle. Encourages the effectiveness of directives and requires national law to be interpreted in light of directives. This includes directives which have not yet been implemented by Member States. |
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Definition
| According to Marshall, public authority includes "organs of the state." |
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Definition
| National courts are required to "disapply" domestic legislation when it is in conflict with EU law. This does not mean to invalidate - simply refuse to enforce. |
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Definition
| Extends indirect effect to unimplemented directives, requiring that national law be interpreted in the light of an uninterpreted directive. |
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| Parliamentary Sovereignty |
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Definition
| Parliament has the power to do everything except bind itself for the future. |
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Term
| European Communities Act of 1972 |
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Definition
| Made direct effect a part of the UK legal system, agreeing that treaties are "without further enactment to be given legal effect" and "shall be reconigzed and available in law, and be enforced, allowed and followed accordingly." |
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Term
| Doctrine of Implied Repeal |
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Definition
| If there are two acts of Parliament which are in direct conflict with one another, the courts shall apply the latter Act, and the first Act is repealed. Each future Parliament is presumed to have the same authority and power as the present Parliament. |
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Term
| Parliamentary Sovereignty prior to Factortame |
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Definition
| Predominant judicial assumption that when Parliament enacted the European Communities Act of 1972, it intended any ambiguity or inconsistency with EU law to be resolved by giving primacy to EU law. If Parliament were to expressly depart from EU law, the courts were to follow the will of Parliament. |
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Term
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Definition
| "Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act of 1972 was entirely voluntary," and "it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law." Shift of previous line of thinking which gave way to the supremacy of EU law. Regardless of Parliament's intent, courts should resovle direct conflict by disapplying the conflicting national law. End of theory of implied repeal. |
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Term
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Definition
| Does not require the national court to invalidate conflicting national laws - only to refuse to apply the conflicting national law. Guarantees primacy of EU law within the national courts while still respecting sovereignty of UK. |
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Term
| Doctrine of Legislative Supremacy |
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Definition
| Requires that the UK's national courts may not hold an Act of Parliament to be invalid or unconstitutional. |
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Term
| UK Constitutional Override |
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Definition
| If a conflicting EU measure is repugnant to a fundamental or constitutional right, EU law shall not be given overriding effect. Constitutional limits have yet to be tested and not clear where boundary lies. Safety net. |
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Term
| UK contrast with Germany? |
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Definition
| Germany makes EU law subordinate to German constitution but otherwise welcomes supremacy |
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Term
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Definition
| Describes the gap between the people of Europe and the European Union |
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Term
| What is the EU doing to fight direct effect? |
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Definition
| It has created the concept of the European citizen |
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Term
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Definition
| Article 20 TFEU. Every person holding the nationality of a Member State shall be a citizen of the Union. Dual Citizenship in addition to, not a replacement of, national citizenship. Article 20 confers certain rights upon individuals. |
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Term
| Three Essential Elements of Citizenship |
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Definition
1. Requirement of a relationship between the citizen and the state, meaning that the citizen is given certain rights and responsibilities.
2. All citizens must be given equality of political respect - consistency. Same rights and responsibilities.
3. Exclusionary principle. |
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Term
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Definition
| No. See the three elements of citizenship. |
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Term
| Nationalism vs. citizenship? |
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Definition
| EU needs to merge these two concepts to be successful. It has created citizenship to attempt to create a sense of nationalism. Problems: individuals must change the way they see other people from dif nations in EU. Dual citizenship creates an inherent conflict. Which national sentiment is greater? |
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Definition
| Retained by Lisbon Treaty. Distinguishes between the existence of competence and the use of such competence, the latter being determined by subsidiarity and proportionality. |
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Term
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Definition
Three key elements:
1. Subsidiarity principle only applies in areas which do not fall within EU's exclusive competence
2. Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States
3) Objectives of the proposed action can, by reason of the scale or effects of the proposed action, be better achieved at the Union level |
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Term
| Purpose of subsidiarity principle |
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Definition
| Prevent EU from encroaching on sovereignty |
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Term
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Definition
| "The Member States shall exercise their competence to the extent that the Union has not exercised its competence," and "the Member States shall again exercise their competence to the extent that the Union has decided to cease exercisings its comeptence." |
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Term
| Intentions of authors of treaty as to the subsidiarity principle |
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Definition
1. Clearly define subsidiarity principle.
2. Subsidiarity principle might actually be enforced. |
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Term
| Problems with subsidiarity legal process? |
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Definition
| Commission creates a report and submits legislation to the states. The states have eight weeks to object. If one-third objects, then the legislation goes back to the Commission which has the sole discretion to decide whether to amend. Problem: lack of judicial review. |
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Term
| What if commission overreaches? |
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Definition
| Commission's decision can be overridden by majority of European Parliament votes or 55% of the Council. Or it may be brought before the ECJ. Unlikely that it will be overturned. |
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Term
| Germany v. European Parliament |
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Definition
| While the Commission is required to provide reports containing the reasons for its decisions, these reports are not required to contain express references to the subsidiarity principle. |
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Term
| How may damages be levied against a Member State for breach of EU law? |
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Definition
| Two fronts: (1) ECJ may impose a penalty payment against the Member State after infringement proceedings, and (2) Individuals may seek damages against the State for noncompliance with EU law. |
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Term
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Definition
| Four-stage infringement procedure: (1) pre-contentious stage which gave the Member State the opportunity to explain itself; (2) Formal notice with two-month response period unless urgent; (3) Reasoned opinion stating grounds; and (4) Referral to the Court of Justice. |
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Term
| Flaws with system under 258 |
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Definition
Discretionary nature of the proceedings.
Netherlands case - Commission waited five years to bring infringement proceedings
Ireland case - Commission gave Ireland only five days to amend 40-year old legislation when it was not urgent |
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Term
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Definition
| Allows Member States to initiate proceedings against other Member States for breach of EU law |
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Term
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Definition
| 2002. Introduces the penalty payment which may be imposed against a Member State for failure to comply with previous enforcement judgment. Commission no longer required to issue reasoned opinion before bringing a Member State before ECJ for non-compliance of 258 ruling, and Commission may issue a lump sum payment to penalize a state's breach continuing between date of 258 judgment and date of 260 judgment. |
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Term
| What three criteria does the Commission follow when calculating its penalties? |
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Definition
| (1) seriousness of the infringement; (2) duration of the infringement; and (3) the need to ensure the penalty itself is a deterrent to further infringements. |
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Term
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Definition
| Extended the availability of damages against Member States by requiring the creation of a domestic tort which allowed individuals to pursue damages claims against the Member State in national courts for failure to comply with EU law. |
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Term
| Brasserie du Pecheur elements |
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Definition
| Level of damages are weighed by certain factors, including the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a community institution may have contributed towards the ommission, and the adoption or retention of national measures or practices contrary to community law. Must be "sufficienty serious" for damages to be warranted. |
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Term
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Definition
| Restructures the national court system to avoid appealing to the ECJ for final say on Francovich matters. Allows the individual to take high court opinions back to the lower courts and assert there was a Francovich error. Problem with judicial uncertainty. |
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Term
| Monetary penalties and direct effect? |
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Definition
| The monetary penalties work as an alternative to direct effect. Can be used to enforce directives even when there is no horizontal direct effect. |
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