EUL

Secondary law: 

• Vertical: Directive 2010/13 , Directive 2011/24
• Horizontal (cross-sectoral ) harminozation: Directive on the internal market, directive concerning the posting of workers in the framework of the provision of services (related to the Cassis de Dijon principle)

Material scope:
Defining features of the protected activity: A service provider is someone who provides servies, normally for remuneration Art. 57(1) TFEU. Include: Illegal services in the hosttate. Excludes services provided by the stat efree of charge.
-> Posted workers. Personal scope: Natural person s (Art. 56(1 & 2) TFEU). Legal persons acc. to Art. 54 TFEU

Restriction:

• Is the freedom restricted by an addressee of that freedom?
• Is the measure deeemed to be restriction?

Justifiaction?
Written reasons Art. 62 TFEU. + principle of proportionality

Free movement of workers, freedom of establishment, free movement of services, free movement of persons not pursuing an economic activity.

-> In general direct effect (Art. 11 AFMP).

Relationship to EU: Extending Eu law to the Swiss-EU relationship. It makes explicit references to EU legislation which shall also apply between CH and EU (Art. 16(1) AFMP. It is a static agreement -> no dynamic adoption of new provisions.

• Restrictions of competition private parties (Art. 101-106 TFEU)
  • Agreements
  • Abuse of dominant market position
  • merger control
• Restrictions of competition by the state: Stateaid Art. 107-109 TFEU

In most case when people are talking about competition law, then they mean restrictions of competition.

Origin and recipient of state aid: An intervention

§by the state and through state resources

Ø(1) Imputable to the state: Measures by public authorities, but also by other entities, as long  as these entities are under a dominant influence of public authorities

Ø(2) State resources: Broad concept of state resources, including not only direct payments  from the state treasury but also, for instance, exemptions from taxation

Ø

§that confers on a recipient undertaking an advantage that is selective

Ø(3) Undertaking: Entity engaged in an economic activity (offering goods or services on the  market), regardless of its legal status and the way in which it is financed (functional definition)

Ø(4) Advantage: Any economic benefit which an undertaking could not have obtained under  normal market conditions, i.e. in the absence of the state intervention

-  Market economy operator test: Would a market economy operator (like a private investor,  creditor or vendor) have carried out the transaction under the same conditions?

-  Form of the economic advantage is irrelevant; for instance, it could be a direct grant  or a relief from an economic burden (like tax reductions)

  (5) Selectivity

-  Material selectivity: The measure applies, de jure or de facto, only to certain (groups of)  undertakings or certain sectors of the economy in a given member state

-  Regional selectivity: The central government (or a regional body that is not independent  of the central government) of a member state decides to extend advantages (e.g. a lower  level of taxation) to only parts of the territory of that state

Effect of state aid: The intervention must (6) be liable to affect trade between member states and

(7) distort or threaten to distort competition

• Planned aid
  Member state have to notify the aid to the commission, which decides
• Already implemented aid:
  • Unlawful aid: Put into effect without notifiaction
  • Misused aid: Aid authorized by the Commission which is then misused by the recipient.
  • Existing aid: All other alrealdy implemented aid.

-> Th commission monitors and, if nessary takes action

Art. 23 FTA

Art. 27 FTA

Agreement of Air Transport Art. 13 AAT, 14 AAt
(Art. 8A DIFA)

The objecitve of the monetary union is a price stability!

Only instituion can print money, not the member states.

Strong monetary union, relatively weak economic union

All EU member states have the right to join the euro, provided they fullfill certain convergence criteria acc. to Art. 140 TFEU: price stability, sound public finance, exchange rate stability, durability of convergence.

(Art. 120-126 TFEU)

• Art. 120: objectives and guiding principles.
  • Art. 123-125: Limitations on how to finance public debt.
  • Art. 121 + 126 TFEU: Stability and growth pact.

Impact on financial crisis and monetary union

Middle: Same rates for the whole EU, because the market looked at the Europe-area and not a single country. After crises they started to look at the countries themself.

• Reactive: Stabilizing countries with severe financial problems:
  • Bail-out (buy bonds)
  • Measures by the European Central Bank
• Preventive:
  • Strenghening budegtary and economic coordination
  • Further harmonization and strengthening of financial regulation

• Free movement of people -> the part we covered
• Judicial and police cooperation in criminal matters
• Judicial cooperation civil matters

Treaty of Amsterdam, also from the third pillar (Justice and Home affairs).

Treaty of Lisbon completed process all how was missing in the third pillar was implemented there. So it is no like internal market or state aid. Distinguish between Schengen are and Dublin area.

• Border controls
• Common visa policy
• EU support infrastructure:
  • System
  • Organisations (such as Frontex)

Art. 2 Schengen Agreement

Art. 7() Schengen Agreement

Art. 15(2) Schengen agreement

Art. 7.

If Schengen or Dublin agreement is terminated, the other will be terminated too.

Treaty of Amsterdam -> Minimum standards, was extendet in the Treaty of Lisbonb

...

Core principle: An asylum application will be examined by a single member state. Art. 7

Six Hierachical criteria Art. 7 DR

Other important provisions:

• Art. 20(1)
• Art. 18(1)
• Art. 21 (1)
• Art. 22(1)
• Art. 27-28

Problem that people should stay at the place where they first entered in the Schengen area.

Main treaty provisions on the EUs external relations:

• Part five of the TFEU Art. 205-222 TFEU
• Title fice of the TEU: Art. 21-46 TEU

§The European Council and the Council are the main decision-makers, whereas the Commission and the Parliament have only very limited roles.

§

§Unanimity is as the general decision-making rule

(in contrast to simple or qualified majority voting).

§No legislation: Legislative acts cannot be adopted.

§

The Court of Justice of the EU (CJEU) has only a very limited jurisdiction

1957 European Economic Community and European Atomic Energy Community

Objectives: Common Market (free movement of goods, persons, services and capital)

186

Objective: Completion if the internal market until 1992

Objective: Extending European integration from the internal market to monety and political union

Changes: Introduction of the European Union, Introduction of a three pillar structure and monetary union

2001

Objective: Institutional changes for eastern enlargement

Changes: Integration of new member states

2007

Objective: Institutional reform. Major changes: Removal of three pillar structure,charter of fundamental rights become binding, The three treaties

Art. 13 TEU

§European Council

§Council [of the European Union]

§European Parliament

§[European] Commission

§Court of Justice of the European Union

§European Central Bank

§[European] Court of Auditors

Art. 13 (2)

-> Principle of conferal

-> Principle of institutional balance

-> Principle of sincere cooperation

Main Features

§Purpose: "The European Council shall provide the Union with the necessary impetus for its deve-  lopment and shall define the general political directions and priorities thereof. It shall not exercise  legislative functions." (Art. 15(1) TEU)

Composition (Art. 15(2) TEU)

ØHeads of member states

ØPresident of the European Council and President of the Commission,  but both without a vote (Art. 235(1) TFEU)

ØThe High Representative for Foreign Affairs and Security Police is  not a member of the European Council, but takes part in its work

Meetings (Art. 15(3) TEU): It meets twice every six months;  the President can convene special meetings

§Purpose: "The Council shall, jointly with the European Parliament, exercise  legislative and budgetary functions. It shall carry out policy-making and  coordinating functions as laid down in the Treaties." (Art. 16(1) TEU): 

Presidency: Romania, Finland & Croatio -> Always three countries for 1.5 year

Composition

ØThe Council acts by a qualified majority except where the Treaties provide otherwise  (Art. 16(3) TEU)

Configurations: General affairs, foreign affairs, justice and home affair, einvironment, education...

ØThe Council consists of a representative of each Member State

at ministerial level (Art. 16(2) TEU)

ØThe Council meets in different configurations, namely the General Council, the  Foreign Affairs Council and further configurations as determined by the European  Council (Art. 16(6) TEU)

ØA Committee of Permanent Representatives of the governments of the member  states (Coreper) is responsible for preparing the work of the Council

(Art. 16(7) TEU, Art. 240(1) TFEU)

§  The Presidency of the Council, with the exception of the Foreign Affairs configuration, is held by  pre-established groups of three member states for a period of 18 months; the groups are made up  on a basis of equal rotation among the member states; each member of the group shall in turn chair

for a period of six months all configurations except the Foreign Affairs configuration (Art. 16(9) TFEU  in conjunction with Art. 1 Declaration No. 9 TFEU and Art. 1 European Council Decision 2009/881)

§Purpose: "The European Parliament shall, jointly with the  Council, exercise legislative and budgetary functions. It shall  exercise functions of political control and consultation as laid  down in the Treaties. It shall elect the President of the  Commission." (Art. 14(1) TEU)

§Composition (Art. 14(2) TEU):

Ø751 members

ØThe representation of the member states is degressively proportional (i.e. larger member  states have less representatives relative to their population than smaller member states)

ØThe most populous member state, Germany, has 96 seats, the least populous, Malta, has 6

§Elections take place every five years (Art. 14(3) TEU) on the basis of proportional representation  (Art. 1 of the 1976 Election Act); the details of the election process in each member state are  governed by its domestic law (Art. 8 Election Act)

§Decision-making: As a rule, Parliament decides by a simple majority (Art. 231 TFEU)

§  Purpose: The Commission is the EU's main executive body (see the  overview in Art. 17(1) TEU)

ØPromote the general interest of the Union and take appropriate initiatives

to that end: The Commission is the "motor" of European integration; for instance,  the Commission has the exclusive right to propose legislation (Art. 17(2) TEU)

ØEnsure the application of the treaties (in particular through adopting secondary  legislation [legislative function] or by applying the Treaties directly [executive function])

Ø  Oversee the application of Union Law: Guardian of the Treaties (e.g. through launching  enforcement actions against member states before the Court of Justice of the EU)

§Composition

ØOne commissioner from each member state (European Council Decision 2013/272; contrary to  Art. 17(5) TEU [18 Commissioners]; compromise offered to induce Irish voters to ratify the Lisbon  Treaty), including a President and the High Representative for Foreign Affairs and Security Policy

ØCommission members are independent from the member states (Art. 17(3) TEU)

ØPresident of the Commission (Art. 17(6) TEU)

-  Lays down guidelines within which the commission is to work

-  Decides on the internal organization of the Commission and appoints Vice-Presidents

-  Can force Commissioners to resign

Main features

§Purpose: "The Court of Justice of the European Union (...) shall ensure that in the  interpretation and application of the Treaties the law is observed." (Art. 19(1) TEU)

§Composition (Art. 19(1) TEU): "The Court of Justice of the European Union shall  include

Øthe Court of Justice,

Øthe General Court and

Øspecialised courts. (...)."

ØArt. 19 TEU and Arts. 251-281 TFEU

ØStatute of the CJEU (Protocol 3 to the TEU and TFEU)

ØRules of Procedure of the Court of Justice of 25 September 2012

ØRules of Procedure of the General Court of 4 March 2015

§  Working language: Unlike the other EU institutions, who use English as (unofficial) working language,  the CJEU has adopted French as (unofficial) working language (although officially all languages of the EU  members states have the same rank, cf. Arts. 36-42 Rules of Procedure of the CJ, and all important  documents and judgments are translated into all EU languages)

ØOne judge per member state (Art. 19(2) TEU),  currently 28 judges

ØJudges are appointed by the member states for  a renewable term of six years (Arts. 19(2) TEU,  253(3) TFEU)

ØFormations: The CJ usually sits in chambers  of three or five judges, and exceptionally as  Grand Chamber (15 judges) or full Court

(all judges) (Art. 251 TFEU, Art. 16 Statute  of the CJEU)

ØMost important competences (actions) (Arts. 256 TFEU, 51 Statute of the CJEU)

-  Direct actions (in particular: infringement actions by the Commission  against member states; annulment actions by EU institutions and bodies  and, in certain cases, member states against EU acts)

-  Appeals against decisions from the General Court

-  Preliminary rulings (requested by national courts)

Ø  The CJ is supported by Advocates General (Art. 19(2) TEU, Art. 252 TFEU)

-  Advocates General provide written opinions on cases to the Court; they serve as impartial  and independent experts for the Court

-  There are currently 1  Advocates General

General Court:

ØMost important competences (actions) (Arts. 256 TFEU, 51 Statute of the CJEU)

-  Annulment actions by private persons and, in certain cases, by member states against EU acts

-  Damages actions against EU institutions and bodies

-  Disputes between the EU and its civil servants

1. Primary law

• Treaties (Art. 1 (2) & (3)
• Charter of fundamental rights of the EU (CFR)

2. General principles of law  (developed by the Court of Justice)

3. International agreement concluded by the EU (Art. 216 TFEU)

4. Secondary law (EU legislation) -> Art. 288 TFEU Regulations, Directives

• Legislative Acts
• Non-legislative Acts

Not ratified yet. The constitution consolidated the legal framework -> all in one document. The people said no to that constitution. They wanted to stay sovereign member states. The responsible people decided to let the 3 part section (like before).

§Principles inherent in all organized legal systems

Examples

ØPrinciple of legal certainty (e.g. principle of non-retroactivity, principle of good faith)

ØProcedural rights (e.g. right to be heard, right to a defense)

Ø

§Principles common to the law of all member states

Examples

ØPrinciple of the prohibition of unjust enrichment

ØPrinciple of confidentiality of communication between attorney and client

Ø

§Principles inferred from the nature of the EU

Examples

ØPrinciple of proportionality (see Art. 5(4) TEU)

ØPrinciple of supremacy of EU law

Ø

§Fundamental rights (see Art. 6(3) TEU)

picture

• Legislative Acts
  -> Adopted by a legislative procedure Art. 289(3) TFEU
• Non-legislative Act
  Art. 289(3) e contratio
  • Legal acts adopted by the executive (Commission) based on legislative acts)
    • Delegated acts Art. 290 TFEU
  • Other
    • Implementing acts Art. 291 TFEU

Ordinary revision procedure Art. 48 TEU

§The government of any member state, the European Parliament and the Commission can submit proposals to the European Council (Art. 48(2) TEU)

ØMore important amendments: If the European Council decides by simple majority to examine the proposals,  the President of the European Council convenes a Convention (of representatives of the nationals parliaments,  the heads of Governments, the European Parliament and the Commission) which then makes recommendations  to a Conference of representatives of the members states (Art. 48(3)(1) TEU)

ØLess important amendments: If the European Council considers the proposals less important, it may decide  by simple majority, after obtaining the consent of the European Parliament, to send them directly to the  Conferences of representatives of the member states (Art. 48(3)(2) TEU)

§The Conference of representatives of the member states then determines by unanimity the amendments  (Art. 48(4)(1) TEU)

§The amendments will only enter into force after they have been ratified by all member states (Art. 48(4)(2) TEU)

Simplified revision procedure (Art. 48)

§Changes to Part III of the TFEU without increase of EU competences: Can be decided by the European Council  by unanimity, on proposal by the government of any member state, the European Parliament or the Commission,  with the approval of all member states (Art. 48(6) TEU)

§Change Council decision-making from unanimity to qualified majority / change from special to ordinary  legislative procedure: Can be decided by the European Council by unanimity and with the consent of the  European Parliament, unless a national parliament objects within six months (Art. 48(7) TEU)