LPC NOTES EU LAW - ENFORCING EU RIGHTS -DISTINCTION GRADE

LPC NOTES
[EU LAW - ENFORCING EU RIGHTS]
(2019-2020)

, EU LAW - ENFORCING EU RIGHTS



The Council (Legislative Branch)
Composition
 One representative from each MS at ministerial level
 Not a fixed body: membership changes depending on the topic to be discussed
 Assisted by Committee of Permanent Representative, COREPER
 Consists of Member States’ ambassadors to the EU, i.e. Permanent Representatives
Functions
 Coordinating general economic policies of MSs
 Has power to take decisions within the Union
 Decision-making role, very significant role in legislative process
Voting procedure
 Mostly majority voting until 1980s
 From early 1980s, system of consensus, practically has to be unanimous
 Since Single European Act → more use of qualified majority voting, QMV
 QMV = supported by >55% OR 16 MSs, rep 65% of EU population
 Blocking minority = rep >35% OR >4 MSs, rep 35% of EU population
 Treaty article will state which voting procedure the Council will use


European Council
 Developed out of summit conferences of Heads of State / Government of MSs
 Coordinate and carry out EU’s foreign and security policy, i.e. Common Foreign and
Security Policy (CFSP) and Common Security and Defence Policy, CSDP
 Meets six times each year
 Provide EU with necessary impetus for its development
 Define its general political guidelines
 Also an institution of the Union, yet more of a mechanism for inter-governmental
cooperation
 Deals with many vital issues affecting the Union, e.g. agreements on direct elections
to the Parliament, the single currency and application for membership


Commission (Executive branch)
Composition
 28 European Commissioners, one from each MS, each responsible for particular
portfolio, divided into departments, known as Directorates-General and services
 European Council agrees by QMV whom to nominate as the new Commission
President
 Parliament must approve the Commission President-designate
 The Commission President-designate and the European Council select other
members of the Commission
 The European Council adopts the list of nominees by QMV and submits it to the
European Parliament for approval

,  Parliament votes whether to approve the new Commission as a whole
 After Parliament’s vote of approval, the new Commission is appointed by the
European Council, acting by QMV
Functions
 Initiating Union policy and proposing legislation
 Implementing Union policies and the budget
 Ensuring that MSs comply with their obligations under EU Law
 Administering and enforcing EU Competition Law
 Negotiating international agreements between the EU and other countries


The Parliament (Legislative Branch)
Composition
 751 MEPs, number of MEPs for each MS is decided roughly by the size of their
respective populations
 All MEPs have been directly elected since 1979, although are elected according to
the national electoral system of each MS
 Sit according to political sympathies in political groups, rather than nationality
 Holds plenary sessions in Strasbourg for one week per month except August
 Committee meetings take place in Brussels, as well as additional plenary sessions
Functions
 Supervisory powers, can veto appointment of Commission President
 Set up committee of inquiry to investigate alleged maladministration
 Appoint a European Ombudsman to investigate maldministrations
 Submit oral and written questions to the Commission and the Council
 Debate the Commission’s annual report
 Legislative powers, three main legislative procedures
 Ordinary legislative procedure, aka co-decision
 Internal market, consumer protection, and health and safety
 Proposal from Commission submitted to Council and Parliament
 Council approves Parliament = Act adopted
 Council doesn’t approves Parliament = Council adopts its own position
and send it to Parliament
 Within 3 months
 Parliament approves Council = Council’s position adopted = Act
 Parliament rejects Council = proposed act will not be adopted
 Parliament proposes amendments = amended sent to Council and
Commission
 Within 3 months of receiving from Parliament
 Council approves amendments = Act adopted
 Council disapproves all amendments = Conciliation Committee
 Within 6 weeks
 Vote on joint text, approval = Act adopted
 Vote on joint text, disapproval = Act not adopted
 Special legislative procedure, aka Consultation
 Commission proposal → only to Council → must consult Parliament
 Council not bound by Parliament’s position, but need to consult
 Justice, home affairs, harmonisation of indirect taxation
 Special legislative procedure, aka Assent
 Measures can only be adopted if approved by both P and C
 Application for EU membership
 P can accept or reject the proposal, cannot amend it

, ECJ Jurisdictions - Preliminary Rulings
ECJ - tasked with interpreting EU Law and ensuring its equal application across MSs
Direct Actions against
 Institutions of Union, Art. 263 TFEU, ECJ can review legality of acts of other Union
institutions, e.g. review Council Regulation and declare it to be invalid
 If Council used the wrong legislative procedure for adopting the Regulation in
question, e.g. Freres v Council, ECJ can annul a Council Regulation adopted under
the consultation procedure as Council failed to consult Parliament adequately
 Members States, Art. 260 TFEU, ECJ can impose a lump sum or penalty payment on
a Member State that disobeys its judgment, at the request of the Commission
 Art. 259 TFEU, MS v MS → failure to fulfil Treaty obligations
 Art. 258 TFEU, Commission v MS → failure to fulfil Treaty obligations
 Individuals, cases can never be brought against individuals in ECJ


General Court
 Single European Act 1986 set up a new lower court, Court of First Instance, now
known as the General Court, deals with cases under Art. 263 TFEU by individuals
 General Court jurisdictions = Competition Law, simple Article 267 TFEU cases (after
Treaty of Nice 2000)


Role of National Courts in MSs
 Individuals can sue an institution (very limited circumstances), CANNOT sue another
individual or a MS before ECJ
 Individuals will assert rights under EU Law in their own national courts, relying on
direct effect, indirect effect and State liability
 EU Law can be used in any proceedings of national law whether public, i.e. JR, or
private, i.e. contract, tort, equity


Article 267 TFEU Reference Procedure
 Under Art. 267 TFEU, ECJ has jurisdiction to make rulings on the interpretation of the
TFEU and ‘acts of the institutions’, i.e. secondary legislation, bodies, offices or
agencies of the Union, e.g. ECB and the validity of secondary legislation
 If the question is raised before any national court or tribunal, then that court may refer
the question to ECJ
 If ECJ ruling is ‘necessary’ to allow the national court to give judgment, the national
court MAY refer the question to ECJ (litigants may request a court to refer, but
cannot oblige it to do so)
 If a case is where there is one ‘against whose decision there is no judicial remedy
under national law’ (no further appeal, i.e. Supreme Court), the national court MUST
refer the question to ECJ


STEP 1 - Is it a ‘Court or Tribunal’? (aka Dorsch Consult test)
 Established by law?
 Permanent?
 Compulsory jurisdiction?
 Inter partes procedures, i.e. had hearings where all parties are present and heard
 Applies rules of law (NOT rule of law)?