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European Union Law
University of Connecticut School of Law
McLean, Willajeanne F.

EU SPRING 2007 OUTLINE
 
I.                   Institutions of the EC
A.     Council: ensures that objectives set out in the treaty are attained, has power to take decisions and confer on the commission powers for the implementation of those rules which it lays days
1)      has the final power of decision on most secondary legislation; in most cases, can only act on the basis of a proposal from the commission
B.     Commission: acts as initiator of community action (all important decisions made by the council must be made on the basis of proposals from the commission)
1)      sets the legislative timetable for thee year, formulates more general policy guidance through its white papers
2)      community watchdog/guardian of the treaties
3)      Under Art. 10 Member states are obliged to take all appropriate measures to ensure fulfillment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community; commissions’ task to seek out and bring to an end any infringement of EC law, if necessary by proceedings under Art. 226
4)      Functions as the executive of the community
C.     Parliament: serves advisory and supervisory functions; has a right of co-decisions with the council in certain defined areas; has significant power of veto in certain matters
1)      in its supervisory role, it exercises direct political control over the Commission
2)      commissioners must reply orally or in writing to its questions; Council not subject to the control of parliament but is subject to extensive supervisions
3)      has power to request advisory opinions under article 300 from the European court of justice; promotes human rights
D.     European court of justice: task is to ensure that in interpretation/application of the Treaty, law is observed; supreme authority on all matters of community law
1)      may be required to decide matters of con law, admin law, social/eco law in matters brought directly before it or on application from national courts
2)      its jurisdiction is principally over the acts of the institutions and member states within the communities’ sphere of activity (no juris over actions of European council (Adv.-Gen’s opinions persuasive not determinative authority)
E.      Law Making Process: institutions can only act w/in the scope of the powers conferred on them
1)      consultation procedure: requires that Council consult the Parliament before it adopts an act (Parliament’s views must be considered but have no binding effect on the council) (still used in areas such as agriculture)
2)      cooperation procedure: requires that parliament be given the opportunity to propose amendments to the draft legislation (needs to act unanimously; council can still overrule); has virtually disappeared)
3)      co-decision procedure: parliament has two opportunities to view the proposal; if approves common position, act is adopted; if not, propose amendments; Parliament may veto piece of legislation, but this is only applied w/in specified policy areas
A.     assent: measure may only be adopted if parliament gives its consent; used in external relations
B.     delegation: permits issues to be dealt w/by experts (Art. 202)
II.                 Scope of the Treaty: is a traite cadre (framework treaty) that sets out broad general principles
A.     General Principles
1)      Art. 2, 3 describe main objectives of community and identify means by which they are to be attained; they do not, themselves, impose specific legal obligations on the member states
2)      Gen. principles examples—no discrimination on grounds of nationality, internal market
B.     Community policies—like requiring member states to promote improved working conditions/living standards
C

iduals are also termed directly applicable
B.     whether a provision is directly effective is a matter of construction depending on its language/purpose, as well as terms on which the treaty has been incorporated into domestic law
C.     if a provision of EC law is directly effective, domestic cts. must not only apply it but give it priority over any conflicting provisions of national law
1)      criteria for direct effect: provision must be sufficiently clear and precise; must be inconditional, and leave no room for the exercise of discretion in implementation by member states or community institutions
2)      Van Duyn: not necessary for provision to be particularly precise for it to be deemed sufficiently clear
3)      Directive cannot be directly effective before the time limit for implementation has expired (Ratti).
4)      Arguments for vertical direct effects strong; weak for horizontal
5)      Marshall v. Southampton: equal treatment directive; could lady rely on directive to sue for sex discrimination under England’s compulsory retirement age for women? ECJ held that the directive could be invoked against a public body as the health authority; however, because directives do not impose obligations on an individual à a directive may not be relied upon against such a person à no horizontal direct effects
6)      A directive can be invoked against a “body, whatever its legal form, which is responsible for providing a pub service under the control of the state, has special powers