| Name the three sources of European human rights. | The sources:
1. Charter of Fundamental Rights of the EU
2. European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR/EVRM)
3. General principles of the Union's law |
| Name the difference between absolute and relative rights. | Absolute rights:
1. Cannot under any circumstances be legitimately limited
2. Absolute limit, no exceptions
Relative rights:
1. Can be limited in accordance with a public interest
2. Restrictions must be proportional
3. Balance is key |
| Define the Charter of Fundamental Rights of the EU. | The definition:
1. Legally binding
2. Reaffirms
- Constitutional traditions
- ECHR
- General principle of EU law
3. Aims to codify existing fundamental rights
4. It codified EU rights from various sources, and thus not solely the general principles found in the treaties |
| The Charter makes a distinction between ...? | The Charter makes a distinction between:
1. Rights (hard)
- Only those provisions that have direct effect will be rights; in that they can be invoked before a court
- Not all provisions in the Charter are rights in this strict sense
2. Principles (soft)
- Objective guidelines
- Rights derive from principles, but they are not the same |
| Name the three constitutional principles in regards to limitations on limitations (art. 52 Charter). | The three principles:
1. Provided for 'by law'
- Court favoured the material concept of law
2. 'Essential core' principle
3. Principle of proportionality
- Necessary in light of the general interest of the Union or the rights of others
- Imposes a general constitutional obligation to balance rights and interests |
| Are the national courts principal judicial enforcers of EU law? And what does this mean (2 things). | Yes, it means that:
1. Whenever EU law is directly effective, national courts must apply it;
2. Whenever a Union norm comes into conflict with a national law, each national court must disapply the latter |
| Name the three models of judicial federalism. | The models:
1. American federalism (application of federal law is principally left to 'federal' courts)
2. European federalism (based on philosophy of cooperative federalism: all national courts are entitled and obliged to apply EU law to disputes before them)
3. German federalism (state courts are hierarchically subordinated) |
| Define the principle of national procedural autonomy. | The EU recognizes the judicial authority of the MS. This essentially means that the EU can piggyback its judicial enforcement of EU law on the national judicial systems. |
| Define the duty of sincere cooperation (art. 4(e) TEU). | The general duty governing the decentralized enforcement of EU law by national courts. |
| The duty of sincere cooperation has imposed two limitations on the procedural autonomy, name them. | The limitations:
1. Principle of equivalence: procedural rules cannot make the enforcement of EU rights less favourable than the enforcement of similar national rights
2. Principle of effectiveness: national procedural rules ought not to make the enforcement of EU rights 'impossible in practice'
- Minimum standard (not make enforcement virtually impossible)
- Maximum standard (guarantee real and effective judicial protection)
- Medium standard (national procedures must not make exercise of EU rights excessively difficult) |
| Define the new liability test (legislative branch liable). | The new test:
1. EU rule grants rights to individuals
2. Breach must be sufficiently serious
3. Causal link between breach and damage |
| Define the preliminary rulings. | The preliminary rulings:
1. Form the cornerstone of the judicial federalism of the EU
2. Two functions:
- Validity (the Court will be confined to providing a ruling on the validity of Union acts below the treaties)
- Interpretation (includes all types of Union law) |
| What is the nature of the preliminary acts and who will it bind. | The nature:
1. Are not appeals, but discretionary acts
2. Decision for preliminary act will lay with the court, not the parties
3. Will be binding
Whom will it bind:
1. Cannot bind parties to the national dispute
2. Addressed to the national court |
| Define the two competing views in regards to the preliminary ruling and its binding nature. | Common law view: PR are legal precedents that generally bind all national courts. Judgment of the ECJ are binding erga omnes.
Civil law philosophy: ECJ judgments do not create new legal rules but only clarify old ones. In this light the judgments are not generally binding (declaratory theory) |
| When is a body a court/tribunal? | Different factors:
1. Is the body established by law?
2. Is it permanent?
3. Is its jurisdiction compulsory?
4. Is its procedure inter partes?
5. Does it apply rules of law?
6. Is it independent? |
| Name the aim and scope of the preliminary ruling procedure. | Aim and scope:
1. Uniform application
2. Judicial protection of individuals
3. Decentralized enforcement |
| Does a national court need to refer to the ECJ with preliminary questions? | Two provisions:
1. Expansion obligation (all national courts are under an obligation to refer when they are in doubt about the validity of a Union act, judicial federalism)
2. Limits obligation (acte clair, when the answer is clear how to act, a national court need not to ask a preliminary question) |
| Name the two situations of the acte clair. | Two situations:
1. When it is clear how to act
2. Where the ECJ has already given a negative answer to a question relating to the validity of a Union act, another national court needs to raise the same question again |
| What do the EU treaties establish? | Dual enforcement mechanism:
1. Decentralised enforcement (by national courts)
2. Centralised enforcement ((in EU courts) |
| Name the types of enforcement actions (art. 258 jo. 259 TFEU) | The actions:
1. Failure to act of a MS
2. Failure to act of the Union
3. Judicial review
4. Damages |
| Define enforcement actions against MS. | The definition:
1. Applicants --> (Commission 258, MS 259)
2. Ultima ratio
3. First you need to pass the administrative stage
- Purpose --> MS can comply & opportunity to defend itself
4. Info:
- A breach committed by the state (UM, WM or RM)
- MS might also be responsible for violations of union law by territorially autonomous regions
- Behaviour of nationals may be attributed to MS
5. Justifications?:
- No: breaches by other MS cannot justify breaches by another
- No: the availability of internal problems or budgetary restraints
- Yes: force majeure in an emergency situation
6. Sanctions (financial, etc?) |
| Define the actions against the Union: failure to act. | The definition:
1. Applicants --> Union institution, body, MS, or private party
2. Against --> Everybody except Court of Auditors and the ECJ
3. Two stages
- Administrative stage
- Judicial stage (two months to react)
4. Failure to act --> obligation to act is needed
5. After this procedure --> Comply with the judgment of the ECJ |
| Define the annulment actions: judicial review. | The definition:
1. Initiator --> MS, EU institution or organ, private individual
2. Procedural requirement
- Whether
- Whose acts --> EU Parliament, Council, all Union bodies except COA
- Which acts --> Has to intent to produce legal effects
- Why --> On what grounds can one challenge the legality of a Union act
- Lack of competence
- Infringement of an essential procedural requirement
- Infringement of the treaties or of any rule of law relation to their application
- Misuse of power
- Who
- Privileged applicants (MS, EP, Council, Commission
- Semi-privileged applicants (COA, ECB, Committee of the Regions)
- Non-privileged applicants (natural/legal persons) |
| What is the meaning of direct and individual concern. | Direct concern: the contested measure as such would have to directly affect the position of the applicant
Individual concern: Plaumann case |
| Define the Plaumann test. | The test:
1. If that decision affects them by reason of certain attributes which are peculiar to them;
2. Or by reason of circumstances which they are differentiated from all other persons;
3. And by virtue of these factors distinguishes them individually just as in the case of the person addressed. |
| Which three situations does art. 263(4) TFEU distinguish. | The following three:
1. Decisions addressed to the applicant can automatically be challenged
2. With regard to regulatory acts a private party must prove direct concern
3. For all other acts the applicant must continue to show direct and individual concern |
| What are regulatory acts? | Two constitutional options exist:
1. Regulatory acts are defined as generally applicable acts
2. Regulatory acts are defined in contradistinction to legislative acts. They are non-legislate acts |
| Define the damages actions: Union liability. | The definition:
1. ECJ can grant damages for losses incurred by Union violating EU law
2. Procedural requirements
- Against any Union action or inaction that is claimed to have caused damage
- The act or omission must be an official act (attributable)
- Anyone who feels wronged --> attributable
- Against --> everybody except ECB
- Within five years |
