Consider the significance of the court's judgment in Case C-376/98 'Tobacco Advertising'  ECR I-8419 for the community's legislative powers.
2. Consider the significance of the court's judgment in Case C-376/98 'Tobacco Advertising'  ECR I-8419 for the community's legislative powers. On October 19th 1998, the Federal Republic of Germany brought an action for the annulment of a directive relating to the advertising and sponsorship of tobacco products. This case gave the court an opportunity to consider the legislative powers the community may or may not exercise. The German government brought a complaint before the Court of Justice on several grounds, the basic of which, was Article 100a1 of the Treaty was not the appropriate legal basis for the Directive. Article 95 prescribes that: "The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administration in Member States which have as their objective the establishment and functioning of the internal market". This means that directives can be approved if there is a need of harmonising the law in order to establish or improve the functioning of the internal market. If that is true, the issue is genuinely a European one. If not, it should remain under the competence of national governments. The German Government disputed the fact that the main argument of the directive was a public health
Introduction: Whether or not it is possible for a reference to be made in this case with reference to relevant EC Treaty provisions and decided cases is one part of the problem which needs to be addressed in the matter. The next part of the problem is to critically explain the purpose and effect of Article 234 Jane not being able to access publicly funded childcare services is a matter to be considered in relation to Art. 234 - i.e. the validity and interpretation of acts of institutions of the Community and the UK's responsibility in effecting this Decision. Art. 234 has been important in the development of landmark cases such as Van Gend en Loos and determining that the ECJ is not acting as an appellate court but simply ruling on a point of EC law. The responsibility of the national court is to use the information provided by the ruling to decide a case. As a result of case law the EU's definition of a court or tribunal has been addressed by the ECJ. The ECJ has tended to provide interpretation based on teleological and purposive approaches. A court or tribunal for the purposes of Article 234 EC is determined by Community, not national, law. Even if the body or tribunal is not regarded as a court or tribunal under its own national law, it may be a court or tribunal under Art 234 EC if it meets certain requirements. In Case 246/80 Broekmeulen  the ECJ
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
"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, litigants, especially private litigants, would be able to rely on that. They should not have to meander their way through obscure doctrines to second guess whether the Court might find some way to give effect to a directive prior to the transposition deadline or to make it produce effects detrimental to individuals." DISCUSS The inherent need in any system for there to be legal certainty is a sentiment, which has long been expressed by academics alike, seen perhaps most influentially by Albert Venn Dicey, in his analysis of the rule of law. He stated that to do otherwise, would be to govern arbitrarily. This essay will seek to explore how the European Court of Justice (ECJ) has adapted new rules, contrary to what they have previously stated, on the ability to give effect to directives and whether they have perhaps entered into the 'political thicket', which contravenes Montesquieu's doctrine of separation of powers. The initial part of the assertion makes reference to judgements of the Court and Treaty Articles. The definition in Article 249 shows that: directives have distinct objectives, in that they are 'binding as the result to
The UK Government has imposed a (fictitious) absolute ban on the import of all Citizen Band CB Radios, irrespective of their origin, on the basis that they may be used for immoral purposes. The sale and use of CB Radios has not however been outlawed in the UK. Although the manufacturers of CB Radios in the UK do not enjoy much of the market share they do exist. Ms. Richardot, a French exporter of CB Radios, enters into a contract to deliver 200 CB's to Ms. Haggis in Scotland. On arrival at Aberdeen docks, Customs Officers refuse entry to the radios. Advise Ms. Richardot and Ms. McHaggis on the validity of the UK measure and the means available to challenge its validity. The first step in reaching a conclusion is to understand what has taken place, as in this case a ban, how it is achieved by the UK and on what grounds. We are told that a ban exists and on the grounds of immoral purposes. I will first look into why bans are created and the effects they have. Since the entry into force of the EC Treaty, one of the main aims of completing the internal market has been the abolition of quantitative restrictions and the measures having equivalent effect which constitute barriers to trade within the EU. However the abolition of such restrictions is not sufficient to guarantee the free movement of goods within the common market, as there are other barriers to trade. These are
To what extent does EU law protect fundamental rights? The Preamble of the European Union outlines that: it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.1 "Core fundamental rights" refer to those "rights", or to those "levels of protection", which are said to be universal, transcending any legitimate cultural or political difference among different societies in, at least, the universe of Europe.2 Neither the Treaty of Paris nor the Treaty of Rome contained any illusion to the protection of fundamental human rights. The initial trigger for the Court's declaration that fundamental rights formed part of the EC legal order was: "the challenge posed to the supremacy of Community law by Member State courts, which felt that EC legislation was encroaching upon important rights protected under national law.3" Once the European Court of Justice, which played a major role in securing the growing awareness of fundamental rights, put in place its constitutional jurisprudence in cases such as Van Gend en Loos4 and Costa5, it became legally and politically imperative that a way had to be found to support fundamental human rights at the Community level.6 In Van Gend en Loos, the ECJ established direct effect, stating
An investigation into the problems that have arisen with regard the use of the general powers enshrined in Article 94, 95 and the residual power in 308 EC in relation to the development of the European Community's competence.
In the following paper an investigation will be made into the problems that have arisen with regard the use of the general powers enshrined in Article 94, 95 and the residual power in 308 EC in relation to the development of the European Community's competence. Introduction By virtue of Article 1 of the Maastricht Treaty on the European Union: 'The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this treaty' The European Communities as referred to above are of paramount importance in the structure and development of the Union, as it is through their relevant Treaties that the legal basis has been provided, for the implementation of policy legislation. Although comprehensive in nature, the Treaties do contain general and residuary powers to enact policy legislation that has not been specifically provided for, in particular Article 94, 95 and 308 of the EC Treaty.1 Through the general use of these provisions, has surfaced a 'statal anxiety over the creeping competences of the European Union' which has ultimately led to an in depth review of the delimitation of Community powers.2 In the following paper, the widening powers of the European Community will be outlined and elaborated on in order to provide a relevant background to the present problem concerning the delimitation of Community
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.
Katya Varbanova 200730017 Words count: 2061 Enhancing the democratic legitimacy of the European Union is one of the explicit aims of the Lisbon Treaty, set out in its Preamble. The Treaty includes a new section of the Treaty of the European Union (TEU), Title II Provisions on Democratic Principles, where Article 10(2) states that ''citizens are directly represented at Union level in the European Parliament''.1 It all started in 1979 where all citizens were given the power to elect their members directly.2 Before that time, the Parliament members were nominated by their respective governments only. The democratic legitimacy, therefore, has definitely been enhanced by the growing influence of the European Parliament, especially after the introduction of the co-decision procedure (currently named ordinary legislative procedure) by the Maastricht Treaty on European Union (1992). However, it could be argued that it still remains deeply flawed by the role of the Commission and the functioning of the Council as we shall explore below. In order to understand how has the democratic legitimacy of the Union's legislative process been influenced by the Treaties, we must first define what democratic legitimacy is and what do the three institutions (namely the European Parliament, The Council and the Commission) do in order to represent that democratic legitimacy. Democratic
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
This is the decision from the Court of Justice (CJEU) within the 6th Chamber of 16 January 2003 whereby Italian legislation required cocoa and chocolate products containing vegetable fats other than cocoa butter to be sold in Italy only under the name "chocolate substitute" on the grounds that the need for consumer protection was vital.1 The commission was quick to point out that the product met the specifications of chocolate under the Directive 73/241, which does not reduce the minimum content required. It added that if a chocolate product is lawfully manufactured in one of the Member States then it should be free to be marketed and sold in any other State unless the Member State of import can point to a mandatory requirement that would justify a forced name change.2 However, the Italian Government claimed that their consumer expectations of chocolate were not to contain such fats. Thus arguing that there was a need for consumer protection due to a possibility of customers being misled. The central issue was whether the obligation under the Italian legislation to market this product as 'chocolate substitute' amounted to a measure having equivalent effect to a quantitative restriction. 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
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.
Define directives with the help of case laws? This scenario exposes a discrepancy in the legal system of the European Community in relation to the enforcement of Directives. As a consequence, after a general commentary about directives advice will be given to Gunilla accordingly. Generally speaking, sources of European Community law take precedence over all forms of national law. However, it is not appropriate to apply the same treatment to EC legal instruments en masse. Certain forms of EC legislation differ in terms of their characteristics and the way in which they deliver enforceable law. DEFINATION OF DIRECTIVES: The Treaty of Rome specifies, in Article 249, that Directives are:- "binding, as to the result to be achieved, upon each Member State to which they are addressed, but shall leave to the national authorities the choice of form and methods."1 Moreover, Member States may decide that the existing legal framework they have already ensures that the objectives of the Directive can be obtained by enforcing the already existing legal rules and no further measures are necessary. Despite this flexibility, Member States are obliged to make sure that the objectives of the Directive are attained. For this purpose they are obliged to take the necessary measures for implementation or confirmation as to whether the national law already contains the rules ensuring the
. Introduction This paper shall advise Danielle Petrie, a French national, as to her and her family's right of entry to and residency in the UK, and rights of equality as non-UK nationals in the UK. In addition, consideration shall be given to Danielle's rights in her professional capacity as a solicitor who is proposing to work for a UK law firm, Scrooge & Co. 2. Danielle Petrie's rights and obligations Danielle has a prima facie right of free movement given that she is from France, an EC Member State,1 and she is moving to the UK, another EC country.2 However, in order to move to the UK she must fall within the substantive provisions of the EC Treaty and secondary legislation on free movement of persons. The relevant sections of the EC Treaty are those on the free movement of persons and freedom of establishment: Articles 39 and 43 respectively. Danielle is likely to be a worker so Article 39 EC should be considered. As she is a lawyer, she will be a professional, and it is possible that she will be a partner rather than a salaried employee at Scrooge & Co, so Article 43 EC should also be considered. Coles suggests that Article 39 and 43 EC are 'mutually exclusive' and that 'in practical terms since the rights available under both are reasonably equivalent, there should be relatively little concern placed on distinguishing which to plead'. 3 Article 39(1) EC