ALS CLS Reviewer 2013 CLS Reviewer EU Law Chapter 7 & 8

What are the Functions and Compositions of the EU Bodies? Functions Council Legislative EU Council Policy making Commission Initiate Legislation Parliament Advisory/ Legislate with Council Court of Justice Preliminary Rulings on Treaties and Obligation with Member States General Court Complex Factual Matters Composition Minister + Head of State Pres + Head of State Pres + Commissioners Pres + Members of EU Parliament Judges Judges

Cross refer the different EU Principles with the Federal System EU System Federal System Conferral Various Consti Articles Implied Necessary and Proper Clause Subsidiarity 10th Amendment Pre-Emption Consti What is the meaning of subsidiarity? Subsidiarity means that the policy should not be under the exclusive competence of EU and the individual member states can effectively implement the said policy taking into account the latters scale and effects. What is pre-emption? Pre-emption is the primacy of the EU Law. It dictates the binding character of a treaty, rule, directive, and decisions. What is the difference between effectivity and applicability? The effectivity of an EU law deals with the domesticating or transforming the EU policy into national law or if the EU policy is in itself a self-executing provision. While effectivity deals on the effect of the EU policy and whether or not this can be used as a source of right by private persons. What is direct effect in general? It is used to designate those provisions that are clear, precise, and unconditional enough to create rights for private parties, and not merely obligations for Member States. (See page 231) Does direct effect appear in treaties? NO! It appears nowhere in Treaties but is largely a result of the construction of the European Court of Justice. What is direct applicability in general? It is the domesticating of Treaty articles in order for them to become an element of the national legal order.

By Al Whilan A. Baljon

ALS CLS Reviewer 2013

What are the two kinds of effectivity? 1. Vertical Direct Effectivity State against Private Parties 2. Horizontal Direct Effectivity Private Parties against Private Parties What are directly applicable and directly effective in the EU policy? Direct Applicability Vertical Effectivity Treaty YES Depends on the language: 1. Clear and unconditional 2. Negative Couched Regulation YES SAME Directive NO Depends on Period: 1. Lapse w/o compliance 2. Incorrect Implementation 3. Implemented but not achieving results Decision NO Depends on the Language

Horizontal Effectivity Depends on Laguage

SAME NO

NO

What is the issue as regards the ruling in the VAN DUYN case? (Scientology Case) The case seem to disregard the second requirement for effectivity in the language of the Treaty because notwithstanding that Treaty Article 39 (free movement of workers) was not negatively couched, the Court held that it is directly effective. How will the Court declare there if the national law is in conflict with an EU policy? The Court would order to DISAPPLY the national law. It will not declare it VOID. What happened in the case of Pubblico Ministerio vs. Ratti? (Discussion part) The EU treaty requires states to abolish certain practices; however it issued a directive to provide exceptions (i.e. public policy, public security, and no discretion on the states on compliance). But arent those too vague. NO! There are legitimate expectations against standards of personal conduct because member states cannot take into account anything outside their personal conduct. What is the difference between a regulation and a directive? Sorry I wasnt able to hear the recitation. But I think this can be answered by referring to the table above. In a sense, regulation has general applicability while a directive is specific on the addressee Member State (See page 232 and Publicco) *If you were able to take notes regarding this matter please text me at 09178922631 What is the difference between a monist and a dualist State? In Monist States, domestic and international law are said to constitute a single integrated legal system therefore treaties are normally directly applicable in the national legal order without need of legislative

By Al Whilan A. Baljon

ALS CLS Reviewer 2013

implementation or other act of incorporation. In Dualist States, domestic and international law are separate and distinct spheres with different purposes and different constituencies. In Dualist States, a treaty may engage a State in its international relations but does not itself affect internal legal relationships except to the extent that a domestic law provides. Give examples of qualified and unqualified countries Unqualified Qualified Belgium Germany France Denmark Ireland UK Describe Belgium? Belgium is a Monist State. It agrees that when the States enter into a treaty it agrees restrict the exercise of the sovereign powers in the areas determined by those treaties. Thus, treaty law is superior to national law. What did the case of Orfinger say? It discussed about the effects of treaties and the principle of auto limitation in that each state gives parts of its sovereign powers to be consistent with the international law. What is the qualification in Germany? Under the German Constitution, a treaty law may only be binding if it is adopted by legislation. What is the importance of SOLANGE 1 and SOLANGE 2? Solange 1 Solange 2 As long as EU has no solid structure: The Courts refrained from exercising jurisdiction 1. Legislative Parliament with respect to fundamental rights. a. Elected by the people b. Have legislative c. Hold accountable for legislative functions 2. Fundamental Rights of the Member States because the EU has no Central Code of Conduct What is the importance of SOLANGE? Solange qualified their acceptance. It means as long as the EU have no solid structure. The German courts will apply domestic law if there is a conflict between the Consti and the EU. What are the matters that should remain in the national level as held in the LISBON judgment? 1. Public safety and order 2. Use of Military Force 3. Fundamentals of Criminal Procedure 4. Fiscal Matters Mnemonic: PUFFFERS

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ALS CLS Reviewer 2013

5. 6. 7. 8. Family Education Religion Social Policy

What is the qualification in France? In France, if a treaty is contrary to the Constitution. The Constitution itself would have to be amended. In the discussion, there was until other party apply equal treatment *If you know what this means, please text me at 09178922631 What is the discussion in the Administration Des Dounes vs. Societe Cafes Jacques Vabre? The Court failed to apply the Two-Fold Test here, note that the coffee was an imported Dutch coffee. The lower court did not inquire on whether Ireland is applying the same regulation What is the qualification on Denmark? The implied powers was said to violate the constitutional mandate that delegates sovereignty to international organizations only to an extent specified by statute. Also the Danish Courts of Law cannot be deprived of their right to try and question as to whether an EC act exceeds the limits for the surrender of sovereignty made by the Acts of Accession. What is the qualification in Ireland? There is a conflict of policy in EU law against claims based on fundamental individual rights guaranteed by the Irish Constitution. What is the discussion in Society for the Protection of Unborn Children vs. Grogan? Normally if there is a conflict between a national law and EU law, EU law prevails. However, the Court, in comparing the Constitutional right to life and EU law of free movement of services, classified both as 2 Constitutional rights. And that ordinarily the right of life would prevail. However, it didnt make a ruling as to the injunctive relief prayed for but referred the matter to the Court of Justice. What is the qualification in UK? UK has no constitution. Thus to apply EU law in the UK, a legislative action must first be made. Even if a treaty if already signed it will not have any effect unless it is made an act of the parliament. It is a dualist State. The Regime of UK is common law place of residence. What is the discussion in the case of Regina? If a court found a the EU policy in conflict with national law it must construe in favour of compatibility. In cases where the court is satisfied that there really is a conflict and is inconsistent, the UK courts and they alone may make a declaration of incompatibility which has no direct legal effect but sets in motion a fast track mechanism for parliamentary amendment of the offending national law. *Note I wasnt able to fully capture the discussion on this part but if you did please text me at 09178922631 Note: Caveat. This reviewer may contain grammatical errors, wrong spellings, and mistakes of fact and law. But may you have peace of mind in knowing that any mistakes in here are made unintentionally and that this reviewer is made in good faith and honesty. - Love: Al Whilan A. Baljon

By Al Whilan A. Baljon