Transnational Commercial Law Exam Notes
Chapter 2: European Law
2.1 Introduction
Main sources of international trade law:
Treaties
European law
Rules made by private international entities like ICC (International
Chamber of Commerce. Most important regulations made by ICC are
Incoterms and Uniform Customers and Practice for
Documentary Credits.
Treaty on the Functioning of the European Union (TFEU) – legal
basis for European law which contains provisions on the:
free movement of workers – Article 45
agreements distorting, preventing or restricting competition – Article
101 TFEU
abuse of dominant position – Article 102
the granting of State aid – Articles 107-109
TFEU and Treaty on European Union (TEU) form basis of the EU.
The main points of TEU:
the principles and value of the EU
the main objective of the EU
the roles of the main institutions in the EU
the rules of the common foreign and security policy
European Court of Human Rights (ECtHR) – secures fundamental
rights like fair trail and right to family life, prohibits inhuman or degrading
treatment or punishment.
Court of Justice (ECJ) – ensures the correct interpretation of European
law (the TFEU, directives, regulations)
2.2 Institutions of the EU
EU has the following institutions - Article 13 TEU:
the European Parliament
the European Council (=heads of State)
the Council of the European Union (= Council of minister)
the European Commission
the Court of Justice of the European Union
,2.2.1 Main Powers of the European Parliament:
Legislative – together with Council of the EU make the decisions
Control of the executive – monitors the Commission, they can ask
questions and Commission must answer. Council doesn’t have to
answer. They can force the resignation of the entire Commission
office if they have 2/3 majority votes but can’t force one individual to
step down.
Budgetary powers – has to approve the budget of the EU - Article
314 TFEU
2.2.2 The European Council – consist of heads of State or government
of the 28 Member States, President of European Council and President of
European Commission. Defines general politics guidelines and political
priorities. President of European Council is Donald Tusk. Do not have
legislative function.
2.2.3 The Council of European Union – formally one council, but
council consists of various ministers who deal with particular subject in
their own country like 28 national finance ministers, external relations.
Council draft the legislation of the EU.
2.2.4 The European Commission – 28 commissioners are bound to
represent the interest of EU as a whole rather than their home State,
unlike the ministers in the Council who represent the interest of their own
country. President is Jean-Claude Juncker.
Main tasks – Article 17 TEU:
Submit legislative proposals to the European Parliament and the
Council of the EU. Only the Commission can make formal proposals
for legislation.
Manage the policy of the EU and to execute EU policy.
Verify the compliance of Member States and individuals with
Community law and if necessary, to take measure to ensure that
Community law is complied with.
The Commission is an important spokesperson for the European
Union and negotiates on behalf of the EU with other countries about
international trade and cooperation agreements.
2.2.5 Court of Justice of the European Union – monitoring the correct
application of EU law. Even if countries have the same laws, their
,interpretation might be different, so court of justice is to unify the
interpretation of European Law.
2.3 European legislation
TFEU
1. Determines and delimits the areas of competence of the EU
2. Contains provisions regarding the foundation of the EU and the
internal market – EU comprises an area without internal
frontiers where the free movement of goods, persons, services
and capital is ensured
3. Contains provisions which forbid agreements distorting,
preventing or restricting competition
TEU
1. Contains provisions that regulate the structure and principles
of the EU
Direct effect means that citizen can enforce these rights in national
court, can be vertical or horizontal. Provision from one of the Treaties
has direct effect if the provision:
Is sufficiently clear and precisely stated
Is unconditional or non-dependant on any national implementing
measure
Confers a specific right for the citizen to base his/her claim on
2.3.1 Legal acts of the European Union
The EU makes following legal acts:
Directives
Regulations
, Decisions
Recommendations
Opinions
2.3.2 Directives - Article 288 TFEU
A directive – a binding upon each Member State to which the directive is
addressed but leaves the national authorities the choice of form and
methods. It requires Member States to establish or modify legislation. It is
not automatically applicable in a Member State. Member States have to
follow their own national law-making producer to implement the legislation
in the national law. Don’t have direct effect. FULL HARMONIZATION?????
2.3.3 Regulations – Article 288 TFEU
Regulations – have direct effect. Has general application, its binding in its
entirety and directly applicable in all Member States. A regulation does not
need to be transposed into national legislation. A regulation lays down
rules of general application. Has horizonal and vertical effect depending on
its wording.
2.3.4 Decisions – Article 288 TFEU
Decisions – sometimes has general application but can also be addressed
to a limited number of named individuals. A decision is binding in its
entirety upon those to whom it is addressed. Can have direct horizontal
effect. For example, decision by European Commission to fine someone for
abuse of power.
2.3.5 Recommendations and opinions
Do not have a binding force, differently called “soft law” for example,
common objectives, guidelines, policies. Since they don’t have binding
force, Member States often do not follow the recommendations of the EU.
Chapter 3: European Law: The Four Freedoms
3.1 EU has exclusive legislative competence in:
Customs unions
The establishing of the competition rules
Monetary policy for the Member States in the eurozone
Fisheries policy
Common commercial policy
EU has a shared competence with the Member States in:
Internal market
Social policy
Economic, social and territorial cohesion
Agriculture and fisheries
Environment
Consumer production
Transport
Trans-European networks
Energy
Chapter 2: European Law
2.1 Introduction
Main sources of international trade law:
Treaties
European law
Rules made by private international entities like ICC (International
Chamber of Commerce. Most important regulations made by ICC are
Incoterms and Uniform Customers and Practice for
Documentary Credits.
Treaty on the Functioning of the European Union (TFEU) – legal
basis for European law which contains provisions on the:
free movement of workers – Article 45
agreements distorting, preventing or restricting competition – Article
101 TFEU
abuse of dominant position – Article 102
the granting of State aid – Articles 107-109
TFEU and Treaty on European Union (TEU) form basis of the EU.
The main points of TEU:
the principles and value of the EU
the main objective of the EU
the roles of the main institutions in the EU
the rules of the common foreign and security policy
European Court of Human Rights (ECtHR) – secures fundamental
rights like fair trail and right to family life, prohibits inhuman or degrading
treatment or punishment.
Court of Justice (ECJ) – ensures the correct interpretation of European
law (the TFEU, directives, regulations)
2.2 Institutions of the EU
EU has the following institutions - Article 13 TEU:
the European Parliament
the European Council (=heads of State)
the Council of the European Union (= Council of minister)
the European Commission
the Court of Justice of the European Union
,2.2.1 Main Powers of the European Parliament:
Legislative – together with Council of the EU make the decisions
Control of the executive – monitors the Commission, they can ask
questions and Commission must answer. Council doesn’t have to
answer. They can force the resignation of the entire Commission
office if they have 2/3 majority votes but can’t force one individual to
step down.
Budgetary powers – has to approve the budget of the EU - Article
314 TFEU
2.2.2 The European Council – consist of heads of State or government
of the 28 Member States, President of European Council and President of
European Commission. Defines general politics guidelines and political
priorities. President of European Council is Donald Tusk. Do not have
legislative function.
2.2.3 The Council of European Union – formally one council, but
council consists of various ministers who deal with particular subject in
their own country like 28 national finance ministers, external relations.
Council draft the legislation of the EU.
2.2.4 The European Commission – 28 commissioners are bound to
represent the interest of EU as a whole rather than their home State,
unlike the ministers in the Council who represent the interest of their own
country. President is Jean-Claude Juncker.
Main tasks – Article 17 TEU:
Submit legislative proposals to the European Parliament and the
Council of the EU. Only the Commission can make formal proposals
for legislation.
Manage the policy of the EU and to execute EU policy.
Verify the compliance of Member States and individuals with
Community law and if necessary, to take measure to ensure that
Community law is complied with.
The Commission is an important spokesperson for the European
Union and negotiates on behalf of the EU with other countries about
international trade and cooperation agreements.
2.2.5 Court of Justice of the European Union – monitoring the correct
application of EU law. Even if countries have the same laws, their
,interpretation might be different, so court of justice is to unify the
interpretation of European Law.
2.3 European legislation
TFEU
1. Determines and delimits the areas of competence of the EU
2. Contains provisions regarding the foundation of the EU and the
internal market – EU comprises an area without internal
frontiers where the free movement of goods, persons, services
and capital is ensured
3. Contains provisions which forbid agreements distorting,
preventing or restricting competition
TEU
1. Contains provisions that regulate the structure and principles
of the EU
Direct effect means that citizen can enforce these rights in national
court, can be vertical or horizontal. Provision from one of the Treaties
has direct effect if the provision:
Is sufficiently clear and precisely stated
Is unconditional or non-dependant on any national implementing
measure
Confers a specific right for the citizen to base his/her claim on
2.3.1 Legal acts of the European Union
The EU makes following legal acts:
Directives
Regulations
, Decisions
Recommendations
Opinions
2.3.2 Directives - Article 288 TFEU
A directive – a binding upon each Member State to which the directive is
addressed but leaves the national authorities the choice of form and
methods. It requires Member States to establish or modify legislation. It is
not automatically applicable in a Member State. Member States have to
follow their own national law-making producer to implement the legislation
in the national law. Don’t have direct effect. FULL HARMONIZATION?????
2.3.3 Regulations – Article 288 TFEU
Regulations – have direct effect. Has general application, its binding in its
entirety and directly applicable in all Member States. A regulation does not
need to be transposed into national legislation. A regulation lays down
rules of general application. Has horizonal and vertical effect depending on
its wording.
2.3.4 Decisions – Article 288 TFEU
Decisions – sometimes has general application but can also be addressed
to a limited number of named individuals. A decision is binding in its
entirety upon those to whom it is addressed. Can have direct horizontal
effect. For example, decision by European Commission to fine someone for
abuse of power.
2.3.5 Recommendations and opinions
Do not have a binding force, differently called “soft law” for example,
common objectives, guidelines, policies. Since they don’t have binding
force, Member States often do not follow the recommendations of the EU.
Chapter 3: European Law: The Four Freedoms
3.1 EU has exclusive legislative competence in:
Customs unions
The establishing of the competition rules
Monetary policy for the Member States in the eurozone
Fisheries policy
Common commercial policy
EU has a shared competence with the Member States in:
Internal market
Social policy
Economic, social and territorial cohesion
Agriculture and fisheries
Environment
Consumer production
Transport
Trans-European networks
Energy
