MT 2008, Tutorial Two: General Principles of EU Law and Fundamental Rights, the Relationship between EC/EU Law and national legal orders

Hi,

here come additional instructions for the second tutorial, which focuses on some of the most controversial (and still pressing) issues in the EU constitutional law - the relationship between legal orders of the member states and the EU, and the question of who and how should protect fundamental rights in the EU.

In this post you will find (1) tips for additional reading (which is only optional, but those of you who aspire at having a deeper understanding of what is going on in these matters in the EU now it is, in my opinion, very useful) and (2) some additional questions to those that you have on your Agreed Reading List.


(1) Suggested Additional Reading
Of all cases you have on your ARL, Mangold is currently (perhaps) the most important, since the questions it opened remain unsettled until today and are object of further controversy. To understand why, AG Sharpston's Opinion in Case C-427/06 Bartsch, especially paragraphs 26-93, is brilliant (among other things, she summarizes the subsequent case law concerning Mangold, but also tries to explain where do the general principles come from). Note that the Court decided the case on a jurisdictional basis and in a way avoided answering some of the questions that Mangold had opened.

If you are interested in the debate concerning EU law and its distinct character (or its absence) as regards EC law and the relationship between the legal orders, Koen Lenaerts and Tim Corthaut, "Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’," (2006) 31 EL Rev 287 is instructive. Note that K. Lenaerts is a judge at the ECJ... (you will find this article very useful also when we will talk about directives and their legal effects in national legal systems).

Finally, a very interesting and illuminating jurisprudential analysis of the relationship between legal orders (or systems) in the EU is offered by Julie Dickson here: "How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations between, Legal Systems in the European Union."

What can make your life easier:
Weiler’s “The Autonomy of the Community Legal Order: through the looking Glass” was originally published in Harvard Journal of International Law, accessible at Oxford from Hein On-line or JSTOR. Maduro’s ‘Europe and the Constitution: What if this is As Good As It Gets?’ can be downloaded here (pdf). So you do not have to go to the Library and copy these; you can print them off instead. Both Weiler and Maduro are THE ones who have shifted the EU constitutional debate to the new fields and are definitely worth reading.

(2) Additional Questions for Essays
5. “[The general principles of Community law] enabled the Court – often drawing inspiration from legal traditions common to the Member States, and international treaties – to guarantee and add content to legal principles in such important areas as the protection of fundamental rights and administrative law. However, it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty”. (AG Mazák in Case C-411/05 Palacios de la Villa, [86])

Discuss. Where do the general principles of Community law come from? To qualify as such, does a principle need to be recognized by all Member States? Which institution is empowered by existence of general principles?

6. Read Kadi v Council and Commission (C-402/05 P and C-415/05 P) carefully. How does the Court explain that its review of the contested regulation will not challenge the primacy of the UN Security Council resolution in international law? Compare this to how member state constitutional courts justify their authority to control constitutionality of EC law in their legal orders.

Back to main page.

Read more!

MT 2008, Tutorial One: Legal and Constitutional Limits on European Lawmaking

Hi again,

you should already have got most of the practical instructions in the e-mail I sent to to all of you on 5 October, so here come more bits related directly to the contents of our first tutorial. As noted in the Agreed Reading List (ARL), the first tutorial focuses on part 4 - “Legal and Constitutional Limits on European Law Making”. In the following I want to provide a number of more detailed questions, which should put the questions contained in the ARL (at p. 8) on a more concrete base and help you in answering them, since ...

... yes, there will be an essay required!

Please, write a short essay on either one of the questions set in the ARL or one of those listed below. I need your essays until 20:00 of the day before the tutorial. Our discussion will be based on your essays, so the more attention you will give to their writing, the better for you (and your preparation for the exam). After the tutorial I will mark the essays and will send them back to you with my comments and possible corrections, so as you can keep them when the end of Trinity Term and your long-awaited day of the EC law exam (a.k.a. The Judgment Day) comes.

The essays should be no less than 1.000 words and no more than 1.500 words long.


Legal limits on European lawmaking – competence

1) Why does it matter to the Member States and the institutions, which legal basis is to be used for a legislative measure? Does it matter to the citizens?

2) Try to think about who and how is represented in particular institutions: e.g.: in the Council: is it the Member States? or its governments? Does it make a difference? - Here, have in mind also ARL, Q4 (for this, I found Craig and de Búrca, 133-138 and Chalmers et al, 167-178 particularly helpful).

3) Considering that “powers retained by the Member States must be exercised consistently with Community law,” (for a practical example concerning direct taxation, apparently outside Community competence, see e.g. C-279/93 Schumacker, para. 21) there anything left for an autonomous action by a Member State? Try to find such an example; we will try to identify possible ways for the Community to intervene. (To me this seems to be a game where a Member State can never win; but may be you will prove me wrong).

Concerning the issue of EC competences in the Internal Market, you may find useful this article by Professor Wyatt: “Community Competence to Regulate the Internal Market” (no obligation to read it! just a recommendation if you want to see the cases in a mutual perspective). You do not have to read it in full; just look at the abstract and try to realize what the “competence restricting” and “competence enhancing” elements of Tobacco Advertising are. Then, you can skip to pp. 9-23 of the paper, where a superb analysis of the judgment can be found (or, alternatively, have a look at p. 22, where this section of the paper is briefly summarized). If interested, you can continue to pp. 23-40, where Wyatt analyses the subsequent case law, mentioned also in the ARL at p. 7 (Swedish Match and British American Tobacco). He shows that the Court has continuously eroded the competence restricting elements of Tobacco Advertising.

So, this is as far as the Community competence (or its absence) to regulate the Internal Market is concerned. (Have in mind ARL, Q1 here). Now, consider the difference between the EC and the EU:

4) How does Case C-176/03 Commission v. Council differ from the above cases? What is the difference between the issue concerning various legal bases within the EC Treaty on the one hand, and the question of a distinction between the EC and EU on the other? This is also relevant for ARL, Q5.

Constitutional limits on European lawmaking – Proportionality and Subsidiarity

The following is illustrative of the question of relevance of the principle of subsidiarity: write down “subsidiarity” in Microsoft’s Word: its dictionary does not know the expression and will want you to correct it… Do the Court and other Community institutions recognize the principle?
If you are particularly interested in subsidiarity and want to have an alternative material than reading, check out here a speech by Advocate General (and EUI Professor) Miguel Poiares Maduro at conference “Sharing Power in Europe” (you must survive first 2 minutes or so of a chairman’s organisational announcements - perhaps make a coffee in the meanwhile - and then you have Maduro there). It’s 20 minutes long and worth listening!

The following Qs are linked to ARL Qs 2 and 3:

5) What is the difference between the principle of attributed powers on the one hand, and the principles of subsidiarity and proportionality on the other?

6) What is the difference between the principle of subsidiarity and the principle of proportionality? Think about labelling requirements, e.g. health warnings against smoking: 1. Do we need the same standards for the whole EC?; 2. Once we establish that we need them, what should they say? How large should these labels be? Is 1. (“do we need it?”) detachable from the question of having the competence, i.e. concerning whether the power to set a harmonised standard has been attributed to the Community?

7) What can proportionality mean practically? You can consult judgments in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others: going beyond what is necessary and Case C-310/03 Spain v Council (not on the ARL): obligation to provide some assessment of the impact of the intended legislation and its ability to achieve the aim pursued (paras. 95-137).

Considering ARL Q5, you may find useful this article by Nick Barber: "The Constitution, the State and the European Union" (2005-2006) 8 Cambridge Yearbook of European Studies 37.

Back to main page.

Read more!