Eu law Lectures History of the eu

EU Law Lectures

History of the EU

EU integration

Sources of EU law

Most basic disting of EU law- primary law and sec law distinguishing

Heirarchy structure

Primary- benchmark if secondary is compliant with EU primary law

Secondary law- EU got created by treaty of masstricht

1sr pillar economic community, supranational integration

2^nd int matters

3d legal cooperation

Conseq of pillar structure- every pillar had a system of sec law sources= complicated, politically understandable, product of political experiment

Streamline decision making= not optimal method

Treaty of Lisbon changed the decision-making process, it introduced a unified catalogue of sec law

Art 288 TFEU= sec law catalogue= provision for sec law

1. 
   Regulations
   
2. 
   Directives
   
3. 
   Opinions- non binding acts
   

Lisbon treaty abolished pillar structure

Every sec law would fit in this catalogue

Acts had very similar characteristics to different ones and were undistinguishable

All sec law are parts of bigger whole, they complement each other, they are tailored to different task. Each sec law is an instrument/tool and the catalogue is the toolbox.

Regulations- reg are directly applicable and as soon as they come into force, they become part of domestic law, automatic process, no legislation needed, no need to transfer into national law.

A law is inserted into member state national legal system, they are inserted into all member states’ legal system.

Regulation=Unification, regulation aims to unify member states legally. It leaves no margin for discrimination.

Direct applicability= a. we should look at reg the same way we look at any national legislation. Reg become part of member state. All members are legally obliged to follow reg the same way they follow domestic legislation. Regulation is undistingushible from domestic legislation. However, they enjoy primacy over national law. Collision rule= pathway to avoid conflict of law scenarios. EU law reigns supreme over domestic law.

Primacy- when we have situation when the same matter is regulated by different regulations both applicable but have different provisions, the law which is applied in favor of another, it enjoys supremacy= principle of supremacy.

National law vs EU reg= EU law is applied instead of domestic law due to the principle of supremacy. Every legal entity is obliged to use the supreme law and disapply national law. Ie give priority to EU law and avoid applying domestic law. Reg is the most intrusive EU law tool, thus it leaves more space for conflicts of law due to the principle of direct applicability.

This does not mean that the national law is null and void, primacy means that in a specific conflict situation, we are simply not applying the domestic law. It may be applicable to different situations where they are compatible to EU law. It usually better to amend conflicting regulation to remove possibility of conflict with EU law. Primacy allows EU law to be immediately applied after EU legislation. These conflicts are most visible with EU regulations as they are intrusive in nature. If we want something to be unified and harmonized and regulated in identical all over EU, we use regulations.

Directives-

General rule- compared to reg

Similarity= addressed to member states, abstract and general,

Difference= lack of direct applicability= main characteristic of directives.

Constructed in a way in which they state a general goal/objective which is a target and the directives include a certain time period in which the member states have to accomplish this goal. But how they accomplish it through which tools, ways, methods is left for the member states to decide, reg= unification, directives= harmonization, harmonization= we are on the same page but not identical. Common goal with different ways to achieve it.

How it works- when directives come to force, they have a time frame and each directive has a different time period, generally few years. It usually isn’t something u can do in short time period. There is certain deadline. Member states must do a few things after directives enter into force

1. 
   Which instruments are they going to use to achieve this goal, which legal tools are they going to use. Poland uses a general parliemnt legislation. Each member states uses different tools. It can be a regional act, a parliemnatry act, some member states might have achieved these goals already.
   
2. 
   Transposition- they have to transpose the directives into their domestic legal act= legislation. They have to legislate the directive into a domestic act.
   
3. 
   Adoption of act into legal system- it might require some consultation and legal advocacy, some technical provisions, some administration, we might need to hire/ build new institutions to accomplish goal
   

This whole process from the issuing of the directive and entry into force in legal system is called implementation. Implementation is the whole process and includes transposition etc.

If we assume directive is implemented, we don’t need a directive to be directly applicable, the direct source of law for subjects of law is the law which was derived from directives. In a perfect world, all states implement directives properly and on time. How can we directly apply directives outside the general rule that u should not do that?

Art 288- EU law sec law catalogue

Directly apply directives- case law of ECJ- EU law is continental law. A tenet of of continental law is the division of powers, legislation, executive and judicial. A premise of this division is that the 3 branches to do not overlap on each other and their competences. Checks and balances. Independent. In common law, court rulings are sources of law, law interpretation and precedents for courts in future cases. In continental law, if we have similar cases, we can solve them in a differ way. The later court cannot rely on the interpretation of previous court as their interpretation is based on that specific case regardless of similarities. Rulings of supreme courts, constitutional court etc are often used a source to judge cases even though it is not required to do so.

Common law is flexible as a precedent can be cited as a source of law while in continental law, case law and precents are can not be used as legally binding sources of law.

Effects of ruling courts-

1. 
   Effect on case
   
2. 
   Effect on future cases
   

No mention in treaties which mentions case law or precedents.

We cant use case law as it would mean that we are using their ruling outside the specific case which implies we use precedents as source of law. This is not stipulated in treaties. So the opposite is true as well.

The fact we are talkimg about the direct effect of directives means that the member stated failed in implementing directive to avoid extra state intervention in applying the directive.

(Francovich case)- Italian case, Italy was #1 state in failing to implement directives on time due to political turmoil.

The directive- create a fund in case people lose their jobs so that the unemployed use some of the fund for a time period until they find another job.

The Italian gov failed to implement this directive.

Two ladies lost their jobs and went to court saying that they should have gotten those funds, the directive guaranteed those funds for them had the directive been implemented.

Can this directive be applied directly so that the women get their money immediately rather than waiting for this implementation?

Not implementing directive on time= infringement on obligation to loyal cooperation. Legal responsibility to implement directives. Whether the state will be fined is irrelevant in this case. A state can be held responsible for this in any case.

Scenario one- Italy is liable to EU and not to the women as the directive is not directly applicable.

Scenario 2- Italy is liable to EU and women as the directive is directly applicable.

The fine is irrelevant for the women.

The court set a criteria and are cumulative ie all must be fulfilled at the same time together.

The first 2 are easy to satisfy and most cases depend on 3

1. 
   The time for implementing the directive must have expired.
   
2. 
   The directive should confirm advantages to all individuals at a member state’s expense. Vertical application of law. Vertical relationship between individual and state. The person below the state is getting certain privileges and rights from the state from by applying the directive. If the member states getting advantages from individuals, then directives is not directly applicable so that the member state does not benefit by not implementing the directive and suing individuals.
   
3. 
   The directive must be unconditional. i.e. it must not create a condition on the member which is unnecessary for the directive’s applicability. It must not require the member state to do something before the directive can be applied. In this case, it is not unconditional as the directive requires the state to take several steps before setting the fund. Thus, the directive is not unconditional and not directly applicable.
   

1. 
   Be late.
   
2. 
   Confer rights
   
3. 
   Unconditional
   

Case got dismissed. = exception for direct applicability of directives. Exception 1

Belgian case- Directive introduced licensing system for home security systems. And introduced criteria for certifying the security system. To set up this system=goal of directive

A company was aware of the deadline for implementing the directive was going to expire. So, they updated their products so that their systems are certified as soon as the directive is implemented in Belgium. They would benefit from other companies not having their products certified at the time of implementation. However, this directive was not implemented.

This company was the only one who spent money on updating their system while the other competitors on the market did not. As the directive was not implemented, they were disadvantaged. On the one hand, the company was right by updating their systems, on the other hand, the other companies did nothing wrong as the directive was still not implemented.

The only party who did something wrong was the state by not implementing the directive.

Incidental horizontal application/ triangular application of directive. In this case, the company can request the state to directly apply the directive on the other companies.

If all companies behaved the same way, the state might have been held responsible for this.

Netherland case- the directive closed a certain loophole within the fiscal system of the EU and vat rates, you could get 0% rate within an inter-EU trade even in case of fictitious trade. the Netherlands failed to implement the directive. Dutch fiscal authority used the unimplemented directive directly to disallow/prohibit the company from getting vat exemption and gain tax from them. The court agreed on it. The state benefited from the non-interpretation and use against individual to pay taxes. The court had to waif for understanding the state’s infringement in Implementing the directive and the behavior of the state to avoid this tax fraud and ruled that they can’t decide justly. Two evils- state not implementing the directive and tax fraud by company.