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University Degree: European Union Law
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- Marked by Teachers essays 2
What is the meaning of the term 'measure equivalent to a quantitative restriction' for the purposes of Article 28 EC?4 star(s)
Dassonville were a French company who exported Scotch Whiskey and they appealed that it would be very difficult for third party exporters to obtain such a certificate in respect of goods already in free circulation in the third country. The ECJ upheld the Dassonville appeal, stating that the law would impose a greater burden on those seeking to import goods into Belgium, and would therefore hinder free movement, and is consequently a MEQR as prohibited by the Treaty. What is important to note in this decision, is that the ECJ will take a very broad view of measures which hinder the free flow of goods between Member States.
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Council Directive 2004/707 on transporting retired people (fictitious), adopted on 1 November 2000, requires all Member States: a. to implement measures by March 2007 giving all retired EU workers beyond the age of 65 years the right to travel within the3 star(s)
Bill, a Spanish national was a teacher for 15 years in Spain before he moved to the UK. After working for 3 years as a secondary teacher in the UK, he decided to take life easier and stopped his job. At 55, he has agreed with friends that he will take care of their gardens as long as they cook for him afterwards. He now wishes to spend the winter of every year in Spain where the warmer climate is better for his health. Bill goes to his Department of Transport to ask for his free flight, but his request is refused.
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Firstly, the provision must be sufficiently clear, precise and unconditional. The case of C-148/78 Pubblico Ministero v. Ratti decided that the implementation date of the directive has to have passed, while the case of C-271/91 Marshall v Southampton & South West Health Authority stated that there was no horizontal direct effect of Directives, they can only be invoked against a state or public authority. Here, the Directive is being used against B, an employer, and not a state or public authority, so it would appear the test is not satisfied, even though the implementation date has passed, and even if it is found that the provision is sufficiently clear.
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Free movement of capital and payments. Although the 1957 Treaty of Rome included free movement of capital among the foundational provisions of the European Common Market, this freedom was expressed in more ambiguous terms than the other freedoms.
2 Who can rely on the free movement of capital? European Union citizens, legal persons and third-country nationals can all rely on the treaty provisions. 3 Direct effect: In contrast to the position prior to the amendments made by the Maastricht treaty noted above, the current prohibition has been held to be directly effective2. This is the case whether we are considering prohibitions on restrictions on capital movements between member states or between member states and third countries. 4 Free movement of Payments: Free movement of payments relates to transfers of foreign exchange as consideration for a transaction and not, as in the case of capital movements, to investment of the funds in question3.
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With reference to the works of two or more comparative lawyers and other sources, critically discuss the proposition that the comparative method drives integration rather than separation among legal systems:
This has fused elements from all legal systems to ensure that there is clarity for the many business, who wish to conduct their affairs throughout different countries and continents, and to ensure that disputes are resolved more quickly, cheaper and effectively. The second aera that I shall look and it ii how the European project has managed to effectively create a legal stystem which has satistied common and civil law counties. The rise of the need for a comparative method for international trade: International trade can be a complicated area of law to because there are numerous levels of trade organizations and interactions.
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Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of the EU legal system
The European Charter of Human rights (the Charter) has also been given the status of EU primary law. In this essay, I will explore whether the change in the makeup of the EU legal system, most notably the issue of fundamental rights in the EU, has completed the evolution of a legal system or not. 2 The origins of fundamental rights in the European legal system: 2.1 In its first two decades the EUCJ was very reluctant to adjudicate on issues which were not economic in nature.
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EU Freedom of Establishment. In this essay I will discuss the definition of establishment and consider the relevant case-law which has shaped this fundamental freedom.
paid to that person directly and in full The ECJ rejected the argument that the prostitutes were in subordination to the pimp and thus in an employment contract. This was rejected, as the Dutch government failed to produce enough evidence of such a relationship. The ECJ also mentioned the Morgenbesser2 case and reinforced the settled law that a person does not need to undergo professional training to be providing a service with regards establishment. 2.4 The entry and residence of Self employed persons are the same rights as workers under Directive 2004/38.
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Directives require implementation into national law by a state's legislative body before taking effect. Failure to properly implement a directive into national law by a Member State, the directive may give to direct effect provided the date of the final implementation has passed. The European Union Court of Justice deems this as a compulsory measure in order to ensure the effectiveness of directives. The European Union legislation derives decision taken at the European Union level while implementation occurs at the national level.
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The democratic deficit is a concept created by the euro sceptics regarding the European Union and the alleged lack of democracy within its institutions.
We can be sure that the Treaty increases the power of democratically elected European Parliament and introduces the Citizen's initiative which is another democracy-increasing factor. The view is that the Community institutional set-up is too bureaucratized and it lacks democratic legitimacy. The question of democratic legitimacy has become increasingly sensitive at every stage of the European integration process. Treaties such as Maastricht, Amsterdam and Nice have triggered the inclusion of the principle of democratic legitimacy within the institutional system by reinforcing the powers of Parliament with regard to the appointment and control of the Commission and successively extending the scope of co decision procedure.
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Cassis de Dijon case analysis. Having considered the two essential legal principles in Community law from Cassis, it is important to recognize that the judgment of the case in question may support the principle of supremacy in European Union law in that
Evidently, the Court of Justice (CJEU) found that the Italian Republic have failed to fulfil the obligations under Article 34 of the TFEU, as it infringed the Community law set out in Article 34 TFEU that prohibits obstacles to the free movement of goods. The Commission added that such restriction significantly obstructs access to the Italian market. 3 Therefore the Court followed the commission's line of argument by stating that Article 34 aims to prohibit "all rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra - Community trade "4 as laid out in the case of Procureur du Roi v Dassonville  also known as the 'Dassonville formula'.
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Eu Directives Problem Case. Difficulties arise in situations such as the one faced by Gunilla, where Directives are improperly transposed or ignored by the implementing national authority.
Colson v Land Nordrhen-Westfalen (1984)2 also said: "that national courts are bound to interpret national law in light of the wording and purpose of the directive". Difficulties arise in situations such as the one faced by Gunilla, where Directives are improperly transposed or ignored by the implementing national authority. A Directive which has not been properly transposed creates legal anomalies in the domestic legal system in question. Directives are used to harmonise national legislation, regulation and administrative provisions. They require co-operation between the Community and the Member States.
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The democratic legitimacy of the Unions legislative process may have been enhanced by the growing influence of the European Parliament, but it remains deeply flawed by the role of the Commission and the functioning of the Council.
do in order to represent that democratic legitimacy. Democratic legitimacy has been described by Abraham Lincoln as depending upon, ''government by the people, of the people, and for the people'' that is based on political participation, citizen representation and effective government.3 As argued by Daniel Gaus, the nature of legitimacy can be described as the ''worthiness of a political system'' and, shows in successfully operating legitimations or, in other words, in generally accepted justifications of a political order.4 There is a sense in which the EU does enjoy sufficient legitimacy for the tasks it undertakes.
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In theory, the European Commission represents the EU interest, the European Parliament acts as the voice of the people of the EU, and the Council represents the interests of national governments. The reality is quite different. Discuss.
From these facts it seems clear that the Commission represents EU interest and not the interests of individual member states. However, given that the 27 commissioners consist of one commissioner from each member state, the independence of individual commissioners must be seen in relative terms. Chosen because of well-connected and established prior political careers in their countries (with over two-thirds chosen from a party in government at the time of appointment), they often act as links between the Commission and the member states.3 The Court of Justice have stated that Commissioners were required to ensure that the general interest of the European Union took precedence at all times over both national and personal interests.
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'The inauguration by the Court of Justice of the doctrines of direct effect and supremacy marked an important shift in the emphasis of European integration.' (M. Dougan, 2004) Explain the relationship between the principle of supremacy and that of
With each stage, the supremacy of EU law was enlarged and deepened. The doctrine of 'supremacy' applies to national law that 1) pre-dates the EU law 2) post-dates the EU law 3) and that of a constitutional nature. The doctrine of supremacy was first given credence in 1964 during the Costa v Enel case2, Court of Justice of the European Communities. The Court clarified that the EEC Treaty had created its own legal system, which had become an integral part of the legal systems of the Member States and which their courts were bound to apply.
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The Problem With The ECJs Approach To Free Movement Is Not Whether It Has Found The Ideal Analytical Techniques For Determining The Boundaries Of The Treaty Prohibitions, But Rather That Its Application Of The Proportionality Principle Undermines An
This was largely based on the reasoning that indistinctly applicable rules which relate to product composition and packaging create a dual burden for the importer, as the importer will have to comply with 2 sets of regulations. The court mitigated the effects of this widening, by allowing distinctly applicable rules to be justified by the Article 30 derogations, but also creating judicially created derogations known as mandatory requirements (discussed further on). With regards to selling arrangements, i.e. those rules concerning who sells the product, when they sell the product and how they sell the product7, the ECJ in Keck8 carved a solid exclusion for provided they meet the two provisos universality & neutrality.
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Furthermore, it held that rights conferred on individuals by the EC legislation should be enforceable by those individuals in national courts. With growing awareness of fundamental rights, especially throughout the European Community, these rights undoubtedly began to play a crucial role and therefore their protection became inevitable. In the 1970 case of Handelsgesellschaft7, which portrayed the importance of fundamental rights, the German Verwaltungsgericht referred to the ECJ the question of whether the import and export licensing system under the common organisation of the grain market was valid.
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The theory of natural and divine law was long held to govern long before the Bill of Rights. "In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will control it, and adjudge such an Act to be Void."iii A proposition by A.V Dicey suggested that the concept of parliamentary sovereignty has two parts, both a positive and negative strand. The principle proposed by the positive strand, is that Parliament can make or unmake any law whatsoever.
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Critically evaluate the impact of the E.U. Directive on Copyright in an Information Society, 2001/29/EC, on the problems posed for musical copyright owners by the development of the Internet. Does the Directive achieve, in your view, a workable and effec
It manages to promote some level of standardisation within the EU regarding copyright and related rights. This was a necessity for the successful enforcement of copyright owners' rights. Prior to standardisation, the laws governing the Internet within the EU were so fragmented that they could be circumvented by a user merely setting up a server in a country other than his own which had a lower standard of applicable laws and enforcement of those laws. The standardisation within the EU now means that all Member States have a degree of harmonisation and can enforce this Directive without dispute as to governing law (within the EU).
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Institutional development perspective is a crucial point of the enlargement process not least because before accepting new members, significant institutional reforms must be accepted. The process of interaction and integration with direct neighbours depend the future success or failure of the EU. Hence, Ronald Dannreuther suggests: The impact of EU enlargement is also not limited to the accession of new members but involves the definition of new borders and creation of new neighbours... (Dannreuther, 2004: 2) Fraser Cameron claims (2004)
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The scenario presented involves an Irish national, Gerard, who had migrated to the UK unaware of a new legislation which posed an obligation on him to register with the UK Border Agency upon arrival, because he was a non-UK national. Gerard appealed the d
wrongly dealt with as it is the role of the European Union law to govern such matters with the regulations laid down through various treaties. The problem must be dissected into fragments to consider each action taken by or against Gerard, the validity of these actions in accordance with EU law, the lawful procedure that Gerard should have experienced under terms of EU law and which authorities were responsible for handling the case. Whether Gerard has remedies that allow him to enforce his rights must be also be revised.
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The least one can expect from a Court is that it be consistent and promote legal certainty. If the Court of Justice decides that directives only impose obligations on Member States and only after the period for their transposition has expired, liti
Thus, from this definition, it could be stated that Directives cannot in themselves automatically create substantive rights that citizens are then able to enforce and it is this initial premise, which we shall consider. In Van Duyn1, the court observed that where an obligation has been imposed on a Member State to pursue a particular course of conduct, "the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented form taking it into consideration...".
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can utilise the "direct" actions, namely Art 230 (actions against EU institutions for exceeding powers), and Art 232 (actions against Community institutions for failure to act). Provided that the possibility of non-compliance has been notified, in the scenario given, the Commission can engage in informal discussion with the United Kingdom. This is known as the informal stage or mediation. The Commission will also identify the severity of the breach and will prescribe a time limit within which the UK must comply with the relevant obligation under the Treaty, namely its obligation under Art 39(1)
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The comitology procedures focus too much on institutional balance, and not enough on deliberation. Discuss.
Over the years, many criticised the Comitology Decision, especially whether the Decision "infringed upon the (Community) institutional balance of powers and Article 145, third indent"10. As a result, new Comitology Decisions were introduced. Before examining whether the comitology procedures focus too much on institutional balance and not enough on deliberation, it is important to outline the different comitology procedures; advisory, management, regulatory and regulatory with scrutiny. The advisory procedure is the one which the Commission has the greatest freedom. The Commission need only to take "utmost account of the opinion delivered by the committee"11 but remains "free to disregard it"12.
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In this case the Court of Justice discussed how community law is a unique system that is able to override any conflicting legislation. By 1964 where there were situations of conflict, the Court of Justice ruled that community law always prevails no matter what the situation was. A state that is in violation of community law may be challenged before its own national courts. The principles of direct effect and supremacy come into play. A complainant may choose to bring proceedings at national level in so far as that may offer legal protection unavailable at EC level: this will
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