CLS Reviewer EU Law Chapter 7 and 8

7/28/2019 CLS Reviewer EU Law Chapter 7 and 8

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ALS CLS Reviewer 2013

2 By Al Whilan A. Baljon

What are the two kinds of effectivity?1. Vertical Direct Effectivity State against Private Parties2. Horizontal Direct Effectivity Private Parties against Private Parties

What are directly applicable and directly effective in the EU policy?Direct Applicability Vertical Effectivity Horizontal Effectivity

Treaty YES Depends on thelanguage:

1. Clear andunconditional

2. NegativeCouched

Depends on Laguage

Regulation YES SAME SAMEDirective NO Depends on Period:

1. Lapse w/ocompliance

2. IncorrectImplementation

3. Implemented butnot achievingresults

NO

Decision NO Depends on theLanguage

NO

What is the issue as regards the ruling in the VAN DUYN case? (Scientology Case)The case seem to disregard the second requirement for effectivity in the language of the Treaty becausenotwithstanding that Treaty Article 39 (free movement of workers) was not negatively couched, the

Court held that it is directly effective.

How will the Court declare there if the national law is in conflict with an EU policy?The Court would order to DISAPPLY the national law. It will not declare it VOID.

What happened in the case of Pubblico Ministerio vs. Ratti? (Discussion part)The EU treaty requires states to abolish certain practices; however it issued a directive to provideexceptions (i.e. public policy, public security, and no discretion on the states on compliance). But aren tthose too vague. NO! There are legitimate expectations against standards of personal conduct becausemember states cannot take into account anything outside their personal conduct.

What is the difference between a regulation and a directive?Sorry I wasn t able to hear the recitation. But I think this can be answered by referring to the tableabove. In a sense, regulation has general applicability while a directive is specific on the addresseeMember State (See page 232 and Publicco)*If you were able to take notes regarding this matter please text me at 09178922631

What is the difference between a monist and a dualist State?In Monist States, domestic and international law are said to constitute a single integrated legal systemtherefore treaties are normally directly applicable in the national legal order without need of legislative


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implementation or other act of incorporation. In Dualist States, domestic and international law areseparate and distinct spheres with different purposes and different constituencies. In Dualist States, atreaty may engage a State in its international relations but does not itself affect internal legalrelationships except to the extent that a domestic law provides.

Give examples of qualified and unqualified countriesUnqualified QualifiedBelgium Germany

FranceDenmarkIrelandUK

Describe Belgium?Belgium is a Monist State. It agrees that when the States enter into a treaty it agrees restrict theexercise of the sovereign powers in the areas determined by those treaties. Thus, treaty law is superiorto national law.

What did the case of Orfinger say?It discussed about the effects of treaties and the principle of auto limitation in that each state givesparts of its sovereign powers to be consistent with the international law.

What is the qualification in Germany?Under the German Constitution, a treaty law may only be binding if it is adopted by legislation.

What is the importance of SOLANGE 1 and SOLANGE 2?Solange 1 Solange 2

As long as EU has no solid structure:1. Legislative Parliament

a. Elected by the peopleb. Have legislativec. Hold accountable for legislative

functions2. Fundamental Rights of the Member States

because the EU has no Central Code of Conduct

The Courts refrained from exercising jurisdictionwith respect to fundamental rights.

What is the importance of SOLANGE?Solange qualified their acceptance. It means as long as the EU have no solid structure. The Germancourts will apply domestic law if there is a conflict between the Consti and the EU.

What are the matters that should remain in the national level as held in the LISBON judgment?1. Public safety and order2. Use of Military Force3. Fundamentals of Criminal Procedure4. Fiscal Matters Mnemonic: PUFFFERS


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5. Family6. Education7. Religion8. Social Policy

What is the qualification in France?In France, if a treaty is contrary to the Constitution. The Constitution itself would have to be amended.In the discussion, there was until other party apply equal treatment *If you know what this means, please text me at 09178922631

What is the discussion in the Administration Des Dounes vs. Societe Cafes Jacques Vabre?The Court failed to apply the Two-Fold Test here, note that the coffee was an imported Dutch coffee.The lower court did not inquire on whether Ireland is applying the same regulation

What is the qualification on Denmark?The implied powers was said to violate the constitutional mandate that delegates sovereignty to

international organizations only to an extent specified by statute . Also the Danish Courts of Lawcannot be deprived of their right to try and question as to whether an EC act exceeds the limits for thesurrender of sovereignty made by the Acts of Accession.

What is the qualification in Ireland?There is a conflict of policy in EU law against claims based on fundamental individual rights guaranteedby the Irish Constitution.

What is the discussion in Society for the Protection of Unborn Children vs. Grogan?Normally if there is a conflict between a national law and EU law, EU law prevails. However, the Court, incomparing the Constitutional right to life and EU law of free movement of services, classified both as 2Constitutional rights. And that ordinarily the right of life would prevail. However, it didnt make a rulingas to the injunctive relief prayed for but referred the matter to the Court of Justice.

What is the qualification in UK?UK has no constitution. Thus to apply EU law in the UK, a legislative action must first be made. Even if atreaty if already signed it will not have any effect unless it is made an act of the parliament. It is a dualistState. The Regime of UK is common law place of residence.

What is the discussion in the case of Regina?If a court found a the EU policy in conflict with national law it must construe in favour of compatibility.In cases where the court is satisfied that there really is a conflict and is inconsistent, the UK courts andthey alone may make a declaration of incompatibility which has no direct legal effect but sets inmotion a fast track mechanism for parliamentary amendment of the offending national law.*Note I wasnt able to fully capture the discussion on this part but if you did please text me at 0917-8922631

Note: Caveat. This reviewer may contain grammatical errors, wrong spellings, and mistakes of fact andlaw. But may you have peace of mind in knowing that any mistakes in here are made unintentionally andthat this reviewer is made in good faith and honesty.

- Love: Al Whilan A. Baljon

CLS Reviewer EU Law Chapter 7 and 8

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