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| FREEDOM OF MOVEMENT OF EUROPEAN NATIONALS WITHIN THE EU |
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ARTICLE 43- FREEDOM OF ESTABLISHMENT-
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| FREEDOM TO SET UP A BUSINESS IN ANOTHER MS |
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DEFINITION OF A WORKER- SERVICES FOR RENUMERATIO (EARLY DEFINITION OF WORKER) |
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| LEVIN vs STRAATSTEIS DE JUSTIIE |
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| PURSUIT OF GENUINE AND EFFECTIVE ECONOMIC ACTIVITY, DISTINGUSHED FROM MARGINAL AND ANCILLARY |
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| VOLUNTEER WORK MAY CONSITUTE GENUINE AND EFFECTIVE ACTIVITY |
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THE CLAIMING OF STATE BENEFITS DOES NOT PREVENT THE INDIVIDUAL HAVING THE RIGHTS OF AN EU WORKER and PROTECTION OF ARTICLE 39 |
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Definition
| THE RIGHTS OF THE NATIONAL ENTERING A MS WILL BE QUALIFIED BY REFERENC TO THE NATIONALIT OF HIS HOST MEMBER STATE- IF THE HOST MS DEFINES HIM AS NATIONAL. HE IS EU NATIONAL (IE IN CASE OF DUAL NATIONALITY) |
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| FOR A TREATY ARTICLE TO BE CAPABLE OF DIRECT EFFECT - MUST BE CLEAR PRECISE AND UNCONDITIONAL |
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| REGULATIONS MUST BE CLEAR PRECISE AND UNCONDITIONAL TO BE CAPABLE OF DIRECT EFFECT |
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VAN DUYN VS HOME OFFICE (1) |
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Definition
| IF MEMBER STATE HAS FAILED TO IMPLEMENT A DIRECTIVE OR HAS IMPLEMENTED A DIRECTIVE INCORRECTLY IT WILL BE CAPABALE OF DIRECT EFFECT IF IT SATISFIES THE VAN GEND CRITERIA |
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Definition
AN EMANATION OF THE STATE IS DEFINED AS PROVIDING A SERVICE PURSANT TO A STATUTORY DUTY UNDER STATE CONTROL WITH SPECIAL POWERS |
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Definition
| NEED TO SATISFY THE VAN GEND CRITERIA TO BE CAPABLE OF INDIRECT EFFECT |
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Definition
COURT MUST INTREPRET THE NATIONAL LEGISLAITON TO THE GREATEST EXTENT POSSIBLE TO ACHIEVE THE RESULT IN THE DIRECT -THE TELELOGICAL APPROACH- |
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Definition
| IF DOMESTIC LAW IMPLEMENATATION SPECIFICALLY EXCLUDES THE APPLICATION OF A DIRECTIVE IT WILL NOT BE POSSIBLE TO RELY ON INDIRECT OR DIRECT EFFECT IN AN ACTION BETWEEN HORIZONTAL BODIES |
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Definition
| PRINCIPLES OF INDIRECT EFFECT CANNOT BE APPLIED TO IMPOSE CRIMINAL LIABILITY |
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| FRANCOCIH VS ITALIAN STATE |
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Definition
STATE LIABILITY THE PROVISION MUST CONFER RIGHTS ON INDIVIDUALS THE RIGHTS MUST BE IDENTIFIABLE FROM THE DIRECTIVE THERE MUST BE A CASUAL LINK BETWEEN THE DAMAGE SUFFERED AND THE FAILURE TO IMPLEMENT |
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Term
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Definition
THE BREACH MUST INFRINGE A RULE OF LAW WHICH IS INTENDED TO CONFER RIGHTS ON INDIVIDUALS THE BREACH MUST BE SUFFICENTLY SERIOUS A CASUAL LINK BETWEEN THE BREACH AND DAMAGE SUFFERED BY THE PARTIES MUST EXIST. |
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EX PARTE BRITISH TELECOM FACTOR TAME NO 5 |
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Definition
THE MEASURE OF DAMAGES IN THE PRINCIPAL OF STATE LIABILTY IS COMPENSATORY (NOT RESITUTIONARY OR PUNITIVE) |
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Term
Decisions coming from the ECJ |
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Definition
| both direct effect in Van Gend en Loos, and supremacy in Costa v ENEL emerged from the preliminary ruling) |
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Term
IN artcile 234 the ECJ Rules on |
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Definition
Treaty Intrepretation (Treaty of Rome + Treaty Articles) Validation and Intreptation of Acts of Community Insitutions |
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Definition
A Court May refers an issue to the ECJ if it concerns a point of EC Law- This is the Courts Discretion |
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Term
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Definition
| the issue at hand it concerns a point of EC Law and arises in a court / tribunal where there is no judical remedy then it is mandatory to raise the matter before the ECJ. (examples of courts of permissive juridication- the general medical council,. The House of Lords |
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Term
| How does the appeal system function |
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Definition
Its reference based- ie the lower courts send a reference to the ECJ , no individual may appeal to the ECJ. The ECJ then sends the issue back to the domestic court which applies it to the matter at hand. It is a medium which allows the national courts to balance the Reach of national law and community law when it conflicts. |
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Term
| Will The ECJ rule re validity |
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Definition
The ecj will not rule the validity of a national law, but only on issues of compatabilty in relation to the acts of the treaty. Who may make a reference to the ECJ ? A “COURT OR A TRIBUNAL” |
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Defined by the ECJ ///not the court itself. |
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Definition
| 1) IS THE BODY ESTABLISHED BY LAW 2) IS THE BODY PERMANENT 3) IS THE BODY OF LAWS JURISIDICTION COMPULSORY |
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| Definition 2is a court or a tribunal |
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Definition
| 4) are the procedures inter-partes ? 5) Does it apply rules of law ? 6) is it independent. ? |
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Definition
| If an appeal is made under article 234 and the court has already ruled on the matter, then it may decline to hear a case |
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Definition
| Then the court may also refer under article 234- the ruling in ICC is that any case with extremely strong or identical factual simialriies in which an existing ECJ ruling exists will have the benefit of the same decision- therefore the decision relating to the earlier case is related to the new set of facts |
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Term
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Definition
| If the answer to a decision in EC law is so clear that no reference to the ECJ should be required the ECJ may decline to give a decision |
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Term
| The combined action of Da Costa, ICC and Acte Claire Doctrine Function to create a loose system of precedent. |
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Definition
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| ECJ- When should a national court use the Article 234 Procedure |
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Definition
| 1) examine the presence of precedent and the Ante Claire doctrine- if the answers are so obvious that they should not need an answer then there is not need to refer |
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| If the facts and community law are critical to the courts final decision – the court should refer to the ECJ unless it can with complete confidence resolve the issue itself Regard should be made to the great advantage of experience that is enjoyed by the ECJin reference to its understanding of community law |
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Definition
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| The Court has the power to correct incorrectly framed ECJ references- but it only has the power to comment on the Treaty Articles and not on a point of law |
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Definition
| The dispute must be genuineMielecke made a hypothetical case on a point of german tax lawWhen it relates to a measure not yet adoptedWhen it the procedure before the court has been terminatedWhen its possible to answer the problems at hand without reference to EC law.When the appealing court does not provide enough factual information |
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Definition
| Will not consider if the decision is irrelevant to the outcomeAlready been decidedWould be obvious |
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General Principles of EC Law Cassis De Dijion |
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Definition
Proportionality of Action- might there be a less onerous way to achieve the ends desired |
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Term
| General Principle EC law 2 |
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Definition
Legislation must not violate the legitimate expectation of the parties concerned |
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| General Principle of EC Law 2 |
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Definition
| non retroactive legislation |
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Definition
| article 12, article 141m article 13 EC |
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