EUP – European Law

a.) Regulation – binding in its entirety, and directly applicable in all member states

Regulation --> EU-Citizen (Ignoring Member States)

b.) Directive – binding as to the result to be achieved, leave to the national authorities the choice of form and method. (Also known as Harmonization law) Not directly applicable

Directive --> Member States --> EU-Citizen

c.) Decision – binding in its entirety, specifies those to whom it is addressed shall be binding only to them.

d.) Recommendations

e.) Opinions

a+b+c= “hard law”

d+e = “soft law”

…means that the measure automatically becomes law in each Member States on the date specified. The consequence of this is that there is no requirement for the state to implement the measure.

Subsidiarity principle – Decisions should be taken as closely to the citizen as possible

Proportionality principle – All decisions should be based on proportional means

Legal certainty – Predictability of ruling

Principle of Direct effect – enforceable of EU law in / by national courts (enables individuals to immediately invoke European law before courts)

Principle of Equality – The concept of equal treatment or non-discrimination

Natural Justice – The ECJ has on occasions referred to it simply as « fairness ». It consists of the right of being heard and the right of a fair and unbiased hearing.

Protection of Human Rights

Pillar 1: it represents all of the common provisions of the existing Community and while these are widened as above includes also all of the objectives of the original treaties. It also set out the basic aims of the newly formed union.

Pillar 2: Concerns adoption of a common foreign and security policy. The general obligation on Member States was one of “loyalty and mutual solidarity and to refrain from any action contrary to those objectives”. Any actions taken would be on the basis of a unanimous vote in Council.

Pillar 3: Cooperation in justice and home affaires

It concerns sensitive issues like immigration and asylum seeking.

→Pillar 2 and 3 were beyond legal scope and not legally enforceable.

• Free movement of Goods – Title lll, art. 28
• Free movement of Persons – Title IV, art. 45
• Free movement of Services – Title IV, art. 56
• Free movement of Capital - art. 63

is a treaty to which three or more sovereign states are parties

French expression for all the law in “Europe”

A bundle of legislation which have to be adopted by a country/future member states

Collection of forms and procedures required to gain bureaucratic approval for something, especially when unjustly complex and time-consuming, and hinders or prevents action or decision-making.

A government report and consultation document of policy proposals for debate and discussion, without any commitment to action

First step in changing the law

Green papers may result in the production of a white paper

A white paper is an authoritative report or guide helping readers to understand an issue, solve a problem, or make a decision. White papers are used in two main spheres: government and business-to-business marketing. They may be considered as grey literature.

A political term used to describe "the unseen, yet unbreachable barrier that keeps minorities and women from rising to the upper rungs of the corporate ladder, regardless of their qualifications or achievements."

Two types of Discrimination

Direct & Indirect

• Making a difference without (sufficient) justificiation
• Creating (or when…) a barrier e.g. in trade (Dassonville –Whiskey case)

• Directly making difference between men/women (Dekker case)
  • The refusal to employ a pregnant woman because of her pregnancy is direct sex discrimination contrary to the directive

• Creating a barrier
• Hard(er) to discover:
• E.g. in case of full-time (males) and part time work (females)
  • (But could be allowed to pay differential rates to part-timers provided there is an “objective justification”

Treaties created the framework for EU law – hence also used the word skeleton, the rest of the body came later

Before deciding whether companies have significant market power which would justify government intervention, the test of Small but significant and non-transitory increase in price – is used to define the relevant market in a consistent way. (Competition law)

Vertical direct effect: Member state --> Individual

Horizontal direct effect: Individual --> Individual

1. Ordinary legislative procedure: art 289 sub 1 j° 294

• Commission submits a proposal to European Parliament and Council (former co-decision procedure)

1. Special legislative procedure: art 289 sub 2 j° 295

• This procedure most accurately represents the notion that it is the commission that “proposes” and the council that “dispose”. Nevertheless, the process still depends also on some consultation with EP.

Preliminary Procedure Art. 267 - National court asks ruling on EU law issue to ECJ

• Cartel was formed in the LCD market between LG, Samsung etc.
• Whistleblower procedure done by Samsung, bailing them out by 100%

• Microsoft sued for tying their products together. (Market dominance)
• Only having ‘Windows Media Player’ as a packaged deal with their operating system

• State purchased land for the football club at higher price than the land was worth
• Causing an indirect stat aid case

• EE was a merger between T-Mobile and Orange à becoming dominant market leader through merger. (Merger regulation)
• Investigation of EC began à Result: Regulations were put in place to assure competitive fairness towards other companies.

• Rewe was not permitted to import Cassis de Dijon[1] into Germany.
• German law stated that fruit liqueur must contain a minimum of 25‰.
• ECJ ruled that the application of that law to imported products has an effect equivalent to a quantitative restriction on trade.
• Principle of mutual recognition - Any country can’t say that one cassis is better. You have to consider both sides. If a product is produced is a legal way in France, Germany has to recognize it.
• Rule of reason - the proposition that a proportionality exercise must be performed by the Court to determine whether the effects of Member State legislation on the free movement of goods is justified in light of the legislation's stated goals.

[1] a type of fruit cream liqueur

• Belgium had a rule preventing the sale of products such as whisky without a certificate of authenticity
• A trader, who purchased whisky in France, made his own certificate of authenticity, as France has no such rules.
• The trade was therefore accused of forging the certificate and was held by the Belgian court in breach of the law.
• ECJ ruled that the Belgian legislation represented a measure having the effect of restricting trade.
• Import permits & Technical barriers
• Parallel imports

• Mr Bosman, player for RFC Liège (Belgian football club) whose contract had expired in 1990 (5 years) wanted to change teams and move to Donkerque, France. (Other football club)
• However, Dunkerque refused to meet the Belgian club’s transfer fee demand, causing Liège refusing to let him go.
• ECJ ruled that these actions were in conflict with the free movement of workers. Therefore the ruling stated: all EU football players were given the right to a free transfer at the end of their contracts, with the provision that they were transferring from a club within one EU association to a club within another EU association.

• United Brands accused of engaging in an abuse of a dominant position (Market Dominance)
  • Differing prices to distributors throughout MS, for Bananas of same quality. (Sometimes 138% price difference)
• EC declared United Brands has infringed on EU Law, and was fined accordingly

• Mr Francovich,was owed payment, including 33 of his colleagues
• Gaia Confezioni Srl, had gone bankrupt
• Claim against the Italian state, arguing that it must pay damages to compensate for their losses instead, on account of a failure to implement the Directive.

• A decision of the ECJ which established that European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state's failure to transpose an EU directive into national law.
• EU member states were expected to enact provisions in their national law to give a minimum level insurance for employees who had wages unpaid if their employers went insolvent.
• ECJ held that the Italian government had breached its obligations, and was liable to compensate the workers' loss resulting from the breach.

Direct Discrimination

• A woman had been dismissed because she had attempted to take pregnancy leave, but had not disclosed this to her employer when hired. (Both not being aware of it, at the time of hiring)
• The contract was set to be invalid because of the temporary inability of the pregnant employee to perform the night-time work for which she was employed would be contrary to the objective of protecting such persons
• Equal Treatment in regards to employment

• Case which established “Supremacy of European Union law over the laws of its member states”
• Preliminary ruling
• It is the same as Van Gen & Loss, but there are more explications.
• This case exemplifies the theory related to the relationship between national and European law and the effect of European Law on (Italian) nationals. In this case the nationalization of the electricity company was found to be in order under Italian law, but in conflict with EC law. According to the European Court of Justice, Italian law was to be set aside this case.