Exam Answers on EU Law

Exam Answers on EU uprightness(a)The UK sevens covetinges to challenge the draft geting on the basis that it infringes the rationale of subsidiarity. The UK fantan has a administration of scrutiny committees that atomic number 18 responsible to review the scheme established by the EU Commission. In the clearn scenario, the draft Directive touches on the area of Research, Technological Development and Space. tally to term 4 of Lisbon pact, the EU and fraction nominates have shared competence in this field, but paragraph 3 further stipulates that the exercise of the EUs competence in this field does non limit the competence of the Member States.Therefore, the scrutiny committees whitethorn issue a reasoned mental picture on the basis that the draft Directive has infringed the principle of subsidiarity sterilise erupt in expression 5(3) of the Lisbon treaty of European kernel. According to dodgeicle 6 of Protocol 2, the UK committees moldiness issue the reasone d whimsey that oppose the draft Directive within eight weeks from the date of transmission.1 Here, the draft Directive was established on 15 celestial latitude 2012 and frankincense the deadline for the UK fantan to issue the reasoned opinion will be 9 February 2013.It moldiness be noned that, if at least one third of the field of study parliaments have given the reasoned opinion, it is considered as a yellow poster and the Commission mess be required to review the draft Directive. However, in theme of more than a simple majority, this is an orange card and this allows the European Parliament and the Council to reject the draft Directive forrader the premiere reading.2(b)The German Association of University Professors and Lecturers (hereinafter referred to as the experience) wishes to challenge the regulation, in goern for it to be declared invalid. There are two ways for sale a direct meet at a lower place(a) Article 263 of the Treaty on the surgical operation of the European Union (hereinafter referred to as TFEU) or an indirect march to a lower place Article 267 of TFEU.Direct Action under Article 263In indian lodge to strike down the leading successfully under Article 263,3 at that place are three procedural requirements on that point is a legitimate act, the action is raised within the prescribed limit of two months and the appli merchantmant must have sufficient sanctioned standing to initiate the action.4By moral excellence of Article 288 of the TFEU, a directive is a legal act that complete the Article 263 requirement. We are told that the directive was adopted on 1 July 2013 and thusly the latest date for the association to bring the action is 1 kinsfolk 2013. Further, the association is a non-privileged applicant who has no automatic standing and thus it is necessary for the association to satisfy that the adopted Directive is of both the direct and issue-by-case concern to them.5 Nevertheless, as shown in the Salamander case, it may be extremely difficult for a non-privileged applicant to prove that a directive is of direct concern to him.6 According to Plaumann, it is likely that the directive casts no individual concern to the association as they cannot be differentiated from the other researchers.7 Thus, the action under Article 263 looks unlikely materialise to the association.Indirect Action under Article 267Alternatively, under Article 267, the association may have to be a p imposturey to an action in a matter butterfly and the philander would have discretion as to whether or not to confine a fictitious character on this issue to the CJEU. According to Rau v BALM, the features that the association has no standing under Article 263 would not affect their energy in bring an Article 267 action.8 But it is keep mum not well(predicate) for the association to bring an action under Article 267 as it has been pointed out by Advocate General Jacobs in Union de Pequenos Agricultores that it is wrong to expect someone to crack the faithfulness in request to gain access to justice.9(c)Professor Moltisanti wishes to bring an action against Italian g everywherenment for its chastening to implement the directive. There are two actions avail fitting to him the doctrine of direct effect or the Francovich principle.The Doctrine of Direct emergenceAccording to the leading case of train Gen den Loos, in order for directive to give rise to direct effects, original criteria has to be satisfied.10 setoff of all, as shown in Ratti, the cost held that the applicant is only allowed to rely on a directive that the deadline for implementation has been expired.11 On the facts, the grant scheme runs from July 2014, this indicates that the deadline for exchange (1 November 2013) has already expired and thus Professor Moltisanti may be able to rely on the directive directly in the judicial system.Next, in marshall v Southampton SW Hampshire AHA, it was held that a directive cou ld be invoked vertically against a public body.12 In the other words, Professor Moltisanti can rely on the directive vertically against the Italian government.Francovich PrincipleOn the other hand, an alternate way that available for Professor Moltisanti is the principle established in the Francovich case that a right to damages against the member states is available to individuals if they have suffered passing as a result of the member states loser to implement a directive.13 This principle is further developed Factortame, where the mash pose down the criteria in replying the Francovich principle that there must be a sufficiently serious breach and direct causal link can be established surrounded by the breach and the loss suffered by the individual.14Applying this to the facts, the ill to implement the directive is automatically a sufficiently serious breach within the Schoppenstedt15 formula and it is make believely that the Italian governments failure to implement the dir ective makes Professor Moltisanti lost the opportunity to gain ache under the scheme. Therefore, it is likely that he may seek redress under the Francovich principle.IntroductionThe statement suggests that the principle of mastery of EU fairness is lock away a myth originated from the tourist court of umpire case uprightness of nature, where in fact the theme courts have constantly challenged on this concept.In this essay, we will passel with the principle of conquest of EU rightfulness from both the Court of Justice and case courts perspectives and argue that the given statement is correct in the background that the victory principle enunciated by the Court of Justice is itself fictional and its use in the guinea pig courts is not absolute.The Principle of Supremacy of EU uprightness from the Court of Justices PerspectiveWhen a State joins the European Union, it is considered that there will be a transfer of sovereignty for certain specific areas of policy from th e state to the connection. Nevertheless, the community treaty does not master specific reference in the relationship betwixt the EU equityfulness and study fairness and this leads to a situation where both law are in conflict.Not surprisingly, the Court of Justice (hereinafter referred to as CJEU, previously cognise as the European Court of Justice, ECJ) is on the view that the EU law must prevail in such conflict. The court took its first step in preserving the uniformity of practise of EU law among the Member States in the landmark case of new wave Gend en Loos.16 The stance was corroborate in Costa v ENEL, where the ECJ held that the community has created its own legal ashes which became an integral part of the legal systems of the Member States and which their courts are bound to keep back.17 The ECJ further added force to the subordination principle in the Simmenthal case, where it held that the national courts must set aside the national law if it is in conflict with the community law.18At this point, it can be argued that the supremacy principle established by the CJEU is fictional as it only if requires a disapplication of national law. In Factortame, the ECJ make clear that if there is a dispute between the national law and the community law, the national courts must set aside its national law, preferably on striking down the preparation as ultra vires.19 Furthermore, the supremacy principle from the CJEUs perspective is not absolute and this was shown in the Asda Stores case in which the ECJ had forfeited the EU supremacy and use the conflicting national law. 20On the other hand, because of the wide variation of the constitutional background between the member states, the national courts have responded differently in interpreting the supremacy principle into their own legal system.The Principle of Supremacy of EU law from the National Courts PerspectivesThere are mainly two approaches to the incorporation of EU law by the national c ourts, namely monist or dualist approaches.Monistic possiblenessIn monist States, such as Belgium and France, all law is treated equally, it is not necessary for an international law to be implemented into national law and the national courts can apply the lawDualistic TheoryFor states with a dualist system, such as Germany and coupled landed estate, international law and national law are considered to be vestigially distinct. This means that international law cannot be directly applied by the national courts but requires the translation into the national law.As to give a clearer analysis, we will deal with the legal system of the member states separatelyBelgiumBelgium providiethylstilbesterol a good example of acceptation of the supremacy of EU law based upon reasoning which is closest to that employed by the ECJ itself.21 Even though there has no provision in the Belgian Constitution that supports the supremacy of EU law, the Belgian Court demonstrated its willingness to ac quiesce the supremacy principle in Le Ski case. In this case, it was held that if there is a conflict between the Belgian Constitution and a provision under EU treaty that imposes direct effect in the national legal system, the EU law prevails.22Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the Belgian courts perspective?It is submitted that Belgium manages the supremacy principle of EU law with relatively ease. Can this be argued that as an evidence of the supremacy principle? Bribosa commented on this issue that the approach taken by the court was actually a consideration of Kompetenz-Kompetenz (competence-competence) doctrine but rather than the persuasion of ECJ.23 In other words, instead of treating that the EU law is superior to the Belgian law, it may be more enamour to recognise that the Belgian courts has seek to emerge the new community rule with its established domesticated legal framework.FranceIn France, the courts willingness to accord the supremacy of EU law was shown in the judicatory des Douanes case24, where it was held that by virtue of Article 55 of the French Constitution, if there is a conflict between national law and a ratified international treaty, the latter should be give anteriority over the former.25 This approach was only affirmed in Nicolo case26 where the court suggested that Article 55 enables the courts to review the validity of French legislation with the EU render and thus the community law should be given precedence over the national law.Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the French courts perspective?Even though the French courts have value the supremacy of EU treaty, it is arguable that the supremacy of EU law in the context of French jurisdiction is not absolute. The Constitutional Council had made it clear in the reasoned Decision given on 9 April 1992 Maastricht I27 that France could pick at its sov ereignty to the Union, only if the particular community rule is not antonymous to the French Constitution and will not violate the exercise of national sovereignty.28 Such reasoning can be regarded as putting a limitation to Frances acceptance of supremacy and thus it may casts ambiguity on the supremacy principle that derived from the CJEUs ruling.GermanyIn Germany, the EU supremacy principle is shaped with the terms of Article 23 of the German introductory Law. In Internationale Handelsgesellschaft mbH v EVGF (Solange I), the national Constitutional Court held that although Article 23 allowed the transfer of legislative power to EU law, the German Constitution would still take priority over the EU treaty if the community has not removed the possible conflict of norms between EU law and the fundamental rights provision under the German Constitution.29 However, having considered the development of fundamental rights doctrine by the ECJ, the position has been altered in the case of Re Wuensche Handelsgesellschaft (Solange II), where it held stated that the court would no longer review EU provision in out of work of the German Constitution.30Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the German courts perspective?By observing the change of attitude of Federal Constitutional Court in adopting the supremacy principle, it is likely that the ECJs wish that the EU law should prevail over national law may be fulfilled. However, in has been made clear in Brunner v European Union Treaty the supremacy of EU law within German jurisdiction is not lordly, the EU law will be applied only because the national law says it does. 31 Therefore, it may not be appropriate to say that the EU law is overbearing over German domestic law because the German courts have not surrendered Germany sovereignty but merely fulfil the obligations of EU membership.32United KingdomThe situation becomes more complicated in the UK jurisdi ction because of its doctrine of Parliamentary Sovereignty. As a dualist states, the EU treaty will only have effect in the UK legal system with the incorporation of UK Act. This led to the publication of the European Communities Act 1972 (hereinafter referred to as ECA 1972), whereby it incorporates the EU provisions into the English legal system. In R v Secretary of State for Transport, ex parte Factortame, Lord Bridge stated that it had endlessly been clear that it was the duty of a United Kingdom court when delivering final exam judgment, to override any rule of national law make to be in conflict with any directly enforceable rule of fellowship law.33 Nevertheless, it must be noted that, the effect of this case would not actually nullify the existing UK legislation and this indicates that the UK national law is still superior to the EU law.Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the British courts perspective?It is arg uable that the EU law does not take precedence over the UK law since the community legislation may only be effective within the UK legal system with the incorporation of ECA 1972. Such approach has been adopted by Lord Justice Laws in the case of Thoburn v Sunderland City Council, where he pointed out that the relationship between the UK and the EU depends on UK law, not EU law. 34ConclusionAccording to Maduro, the acceptance of the supremacy of EU rules over national constitutional rules has not been unconditional.35 It is apparent from the discussion above, despite the distinction between monistic and dualist system, the application of EU law under the national legal framework is last influenced by the national law. Therefore, it might be true that the supremacy principle is a fantasy of the CJEU.However, notwithstanding talk of any legal fiction, it can be observed from the case law that the national courts do give effect to supremacy of EU law. The fact that EU law has been con sistently and uniformly applied in the member states courts today creates no square dispute over the application of supremacy principle in practice. psycheWord length(2)1129(4)1999TOTAL3128BibliographyTables of casesEU factsAktien-Zuckerfabrik Schoppenstedt v Council (5/71) 1971 ECR 975Amministrazione delle Finanze dello Stato v Simmenthal (106/77) 1978 ECR 629Brasserie du Pecheur/Factortame cardinal (C-46/93 48/93) 1996 ECR I-1029Consorzio del Prosciutto di Parma and some other v Asda Stores Ltd and Another (C-108/01) 2003 ECR I-5121Costa v ENEL (6/64) 1964 ECR 585Francovich v Italy nation (6/90) 1991 ECR I-5357Marshall v Southampton and South West Hampshire AHA (271/91) 1993 ECR I-4367Ministero Pubblico v Ratti (148/78) 1979 ECR 1629P Union de Pequenos Agricultores v Council (C-50/00) 2002 ECR I-6677Plaumann Co v Commission (25/62) 1963 ECR 95Rau v Bundesanstalt fur Landswirtschaftliche Marktordnung (C-133/85) 1987 ECR-2289Salamander and others v European Parliament and Coun cil (T-172 175-177/98) 2000 ECR II- 2487R v Secretary of State for Transport, ex parte Factortame Ltd and Others (C-213/89) 1990 ECR 2433Van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) 1963 ECR 1Belgian CaseMinister for stinting Affairs v SA Fromagerie Franco-Suisse Le Ski 1972 CMLR 330French CasesAdministration des Douanes v Societe Cafes Jacques Vabre J. Weigel et Cie. SARL 1975 2 CMLR 336Raoul Georges Nicolo and another 1990 1 CMLR 173German CasesBrunner v European Union Treaty 1994 1 CMLR 57Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fr Getreide und Futtermittel 1974 2 CMLR 540Wnsche handelsgesellschaft,Re 1987 3 CMLR 225United Kingdom CasesThoburn v Sunderland City Council 2003 QB 151R v Secretary of State for Transport, ex parte Factortame 1991 AC 603Table of LegislationEU Legislation amalgamated Version of the Treaty on European Union 2008 OJ C115/13, art 4Consolidated Version of the Treaty on European Union 2008 OJ C115/13, art 5Consolidated Version of the Treaty on the carrying out of the European Union 2008 OJ C115/47, art 263Consolidated Version of the Treaty on the Functioning of the European Union 2008 OJ C115/47, art 264Consolidated Version of the Treaty on the Functioning of the European Union 2008 OJ C115/47, art 267Consolidated Version of the Treaty on the Functioning of the European Union 2008 OJ C115/47, art 288Protocol (No.2) on the Application of the Principle of Subsidiarity and balance wheel 2010 OJ C 83/206, Art 6Protocol (No.2) on the Application of the Principle of Subsidiarity and ratio 2010 OJ C 83/206, Art 7French LegislationConseil Constitutionnel, close n.92-308 DC of 9 April 1992, Treaty of Maastricht IFrench Constitution, art 55German LegislationBasic Law, art 24United Kingdom LegislationEuropean Communities Act 1972Secondary SourcesBooksChalmers D, Davies G and Monti G, European Union Law (3rd edn, Cambridge University Press 2014)Hartley T, European Union Law in a Global Conte xt Text, Cases and Materials (Cambridge University Press 2004)ArticlesBenvenisti E and Downs G, The Premises, Assumptions, and Implication of Van Gend en Loos 2014 25 EJIL 85Martinoco G, Is the European regulation going to be supreme? A Comparative-constitutional overview of ECHR and EU law before national courts 2010 EJIL 401Maduro M, Interpreting European Law Judicial Adjudication in a Context of Constitutional Pluralism 20071 EJLS 2Electronic SourcesCraig P, The ECJ, National Courts and the Supremacy of Community Law http//www.ecln.net/elements/conferences/bookrome/craig.pdfaccessed 29 December 201411 Protocol (No.2) on the Application of the Principle of Subsidiarity and Proportionality 2010 OJ C 83/206, art 7.2 ib. art 6.3 Consolidated Version of the Treaty on the Functioning of the European Union 2008 OJ C115/47, art 264.4 Ibid, art 263.5 Ibid.6 Joined Cases T-172 175-177/98 Salamander and others v European Parliament and Council 2000 ECR II- 2487.7 Case 25/62 Plaumann Co v Commission 1963 ECR 95.8 Case C-133/85 Rau v Bundesanstalt fur Landswirtschaftliche Marktordnung 1987 ECR-2289.9 Case C-50/00 P Union de Pequenos Agricultores v Council 2002 ECR I-6677, Opinion of AG Jacobs,paras. 41-9.10 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen 1963 ECR 1.11 Case 148/78, Ministero Pubblico v Ratti 1979 ECR 1629.12 Case 271/91, Marshall v Southampton and South West Hampshire AHA 1993 ECR I-4367.13 Case 6/90 Francovich v Italy Republic 1991 ECR I-5357.14 Joined Cases C-46/93 48/93 Brasserie du Pecheur/Factortame III 1996 ECR I-1029.15 Case 5/71 Aktien-Zuckerfabrik Schoppenstedt v Council 1971 ECR 975.16 Van Gend en Loos (n 10).17 Case 6/64 Costa v ENEL 1964 ECR 585, 593.18 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal 1978 ECR 629, 21.19 Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and Others 1990 ECR 2433.20 Case C-108/01 Consorzio del Prosciutto di Parma and Another v Asda Stores Ltd and Another 2003 ECR I-5121.21 capital of Minnesota Craig, The ECJ, National Courts and the Supremacy of Community Law http//www.ecln.net/elements/conferences/bookrome/craig.pdf accessed 29 December 2014.22 Eyal Benvenisti and George Downs, The Premises, Assumptions, and Implication of Van Gend en Loos 2014 25 EJIL 85, http//www.ejil.org/pdfs/25/1/2477.pdf accessed 9 January 2014, citing Minister for Economic Affairs v SA Fromagerie Franco-Suisse Le Ski 1972 CMLR 330, 347.23 Paul (n 21), citing H Bribosia, Report on Belgium, in A-M Slaughter, A Stone Sweet and J H H Weiler (eds), The European Court and National Courts, Doctrine and Jurisprudence (Oxford Hart Publishing 1998) p.21-22.24 Paul (n 21), citing Administration des Douanes v Societe Cafes Jacques Vabre J. Weigel et Cie. SARL 1975 2 CMLR 336.25 Paul (n 21).26 Raoul Georges Nicolo and another 1990 1 CMLR 173, as translation can be comprise in http//www.utexas.edu/law/academics/centers/transnational/work_new/french/case. php?id=1440 accessed 9 January 2014.27Conseil Constitutionnel, decision n.92-308 DC of 9 April 1992, Treaty of Maastricht I, as translation can be found in http//www.utexas.edu/law/academics/centers/transnational/work_new/french/case.php?id=998 accessed 9 January 2014.28 Giuseppe Martinoco, Is the European Convention going to be supreme? A Comparative-constitutional overview of ECHR and EU law before national courts 2010 EJIL 401.29 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fr Getreide und Futtermittel 1974 2 CMLR 540, as translation can be found in http//www.utexas.edu/law/academics/centers/transnational/work_new/German/case.php?id=588 assessed 9 January 2014.