Understanding the EU Legal Order

Course offered at the University of Pittsburgh School of Law

by

Tamara Ćapeta

Professor of EU law

Jean Monnet Professor

University of Zagreb, Faculty of Law

 

Courses start on 29 August 2016

Courses taker place each Monday and Wednesday from 5.30 to 8.20 p.m.

(except Monday, September 5th, which is a Labor Day Holiday)

 

Course Credits: 2

Course Type: Lecture

Method of work:

The course consists of 28 classroom hours delivered in 9 class sessions. The bulk of reading required for classes are cases of the Court of Justice of the European Union. Sometimes, students will be asked to read an article, or part of it. These will be discussed in class. Students are required to prepare for each class session. All class reading materials are posted on this web site.

As background reading, students can use the textbook by Paul Craig and Gráinne De Búrca: EU Law, Text, Cases and Materials, 6th edition, OUP, 2015.  Within each unit the relevant book chapter is indicated. It is not necessary to read these Chapters as preparation for class.

Grading: The grade is based on class participation (50%) and written open-book exam (50%).

 


Unit I -Evolution of the EU – from an International Treaty Regime to the Federal-Type Order

Monday, 29 August

 

Aim: to get to know each other; to learn about the methods of work in this class; to learn about two principal EU-law data-bases; to get familiar with the development of EU integration since its coming into life til today, to discuss the importance of law and the EU Court of Justice in the integration proess

 

Questions: How would you describe the EU - as an international organisation, as a state, as something else? Why? What is the role of the courts in the development of a polity? Can you think of some US examples?

 

Class Reading

 

- PPT presentation on EU history

- PPT presentation on EU web sources

- case Van Gend en Loos

- case Costa v ENEL

 

Backgroung Reading

 

Craig/De Burca, Ch. I, pp. 1-28


Unit II - EU Competences

Wednesday, 31 August

 

Aim: to learn about the vertical division of competences between the EU and its Member States; to understand the meaning of the principle of conferral, principle of subsidiarity and principle of proportionality; to understand the EU powers in external relations; to discuss the European executive federalism and new systematisation of legal acts into legislative and non-legislative

 

Questions: How are the powers delimitted between the federation and the states in the USA? Cf Art I, section 8 of the US Constitution; Is this comparable to the EU distribution of competences? Compare case Tobacco Advertisig with cases such as Lopez or Morrison in the US constitutional law. Compare the USA and its states in international relations with the situation in the EU; What are express and what implied powers? Compare ERTA with US McCulloch v Maryland (second Federal Bank case); How is implementation and enforcement of federal laws organised in the USA? Could a case such as US Gonzales v Raich (medical marijuana case) happen in the EU? 

 

Class Reading

 

- read Article 5 TEU and Articles 2 - 6 TFEU

- PPT presentation on the EU competences

- case Tobacco Advertising

- PPT presentation on EU external competences

- case ERTA

- read Articles 289 - 291 TFEU introducing the new systematozation of legal acts

- PPT presentation on executive federalism

 

Background reading:

Craig/De Búrca, Chapter 3, 73 – 103 


Unit III - EU Political Institutions

Wednesday, 7 September

 

Aim: to understand the organization of government at the EU level, to understand the internal organization of three most important political institutions: the European Parliament, the (European) Council and the Commission; to learn about the horizontal division of powers between the EU political institutions and the role of the Court of Justice in maintaining the institutional balance; to discuss very briefly the legislative procedure

Questions: Think about the similarities and differences in the organisation of government in the EU and in the USA. Which are similarities and differences between the EU Council of Ministers and the US Senate?; Is the European  Parlimanet comparable with the US House of Representatives? Which are the differences in the power of legislative initiative?

 

Class Reading

 

- by using the europa.eu web find out the basic information about the European Commission, European Parliament, Council of Ministers and the European Council

- PPT presentation on EU political institutions

- case C-409/13 Council v Commission

 

Background reading:

Craig/De Búrca, Chapter 2, pp.30 – 57


Unit IV - EU Judicial System

Monday, 12 September

 

Aim: to learn that the EU judicial system is composed of the Courts at the EU level and all courts of the EU Member States (national courts); to understand how and why the European Court of Justice included MS's courts in the EU judicial system; to discuss the difficulties that the concept of supremacy of EU law represented for national courts and briefly talk about the responses; to discuss the internal organisation of judiciary at the EU level; to learn about the main heads of jurisdiction of the CJEU

 

Questions: Reread the case Van Gend en Loos (Unit 1) and think about the relationship that was created between the ECJ and MS courts. How would you characterise the CJEU?

 

Class Reading:

 

- case 106/77 Simmenthal

- read Article 19 EU and Articles 251 - 257 TFEU

- PPT presentation on the organisation and jurisdiction of the CJEU

- Bruno De Witte, Direct Effect, Primacy and the Nature of the Legal Order, in: Evolution of EU Law, 2nd edition, 2011, p. 323

 

Backgound reading:

Craig/De Búrca, pp. 57-66


Unit V - Preliminary Ruling Procedure

Wednesday, 14 September

 

Aim: to learn how the preliminary ruling procedure functions; to discuss the reasons for the insertion of this procedure in the Treaties; to understand the division of tasks between the ECJ and national courts in this procedure

 

Questions: Think about the main purpose of the preliminary ruling procedure; When do national courts need to refer to the ECJ?; Is there difference between different levels of national courts? Is there a textual difference in powers and obligations of national courts whether the question referrred is the question of interpretation or of validity? 

 

 

Class Reading:

 

- have with you a text of Article 267 TFEU

- case 283/81 CILFIT

- case 314/85 Foto-Frost

- Recommendation for national courts on preliminary ruling procedure

 

Background reading: 

Craig/DeBurca, Chapter 13, pp. 465 - 507


Unit VI - Sources of EU law and further development of the doctrine of direct effect:directives

Monday, 19 September

 

Aim: to learn which types of norms belomg to EU law and the hierarchy among them; to discuss differences in purpose and effects of the main EU legislative instruments: regulations and directives; to learn the difference between vertical and horizontal relations for the purpose of direct effect, to learn about the judicial development of the doctrine of direct effect and understand the reasons for such developments and the drawbacks of the judicial development of law

 

Questions: Could you compare a directive with any type of American legal act? Would such an act be possible? Read the definition of a directive in Article 288 TFEU and think would you attribute it a direct effect?

 

Class Reading:

- PPT presentation on sources of EU law

- case 41/74 Van Duyn

- case 148/78 Ratti

- case 152/84 Marshall

- case C-91/92 Faccini Dori

- Opinion of AG Lenz in Faccini Dori

 

Background reading:

Craig/De Búrca, Chapter 7, pp. 184 - 208 


Unit VII -Interpretive Effect and State Liability for damages

Wednesday, 21 September

 

Aim: to learn about additional techniques for the enforcement of EU-based rights – interpretive effect and state liability for damages 

 

Questions: Find in Dominguez how does the Court define a 'state' for the purposes of direct effect of directives; What is the main difference between judge's task when he gives EU law direct effect from when it is using interpretive effect? Which norm does a judge apply in the first case and which in the second? What is easier for a judge? Which parts of a state may become liable in damages to individuals? For which kind of behaviours?

 

Class Reading:

- case C-282/10 Dominguez

- joined cases C-6 and 9/90 Francovich

- joined cases C- 46 and 48/93 Brasserie du Pêcheur and Factortame 2

- hypothetical case for class exercise

 

Background reading:

Craig/De Búrca, Chapter 7, pp. 209 -216 and Chapter 8, pp. 251 - 265


Unit VIII - Internal Market - free movement of goods

Monday, 26 September

 

Aim: to understand the importance of the internal market project for the interpretation of EU law; to learn about the way in which and the reasons why the CJEU paved the way for the development of the internal market; to learn how to perform legal analysis of an internal market case: (i) is a measure an obstacle to trade, (ii) is there a justification. (iii) is the measure proportionate; to discuss the role of the Court in the development of the EU legal order

 

Questions: Compare the case law of the ECJ with the case law of the Supreme Court relating to the dormant commerce clause; Could the ECJ have given different definition of a measure of equivalent effect?; What would be the consequences? Who was empowered by the chosen definition of MEE (as given in the case Dassonville, quoted in Cassis de Dijon)?; Is mutual recognition written in the Treaties? Why has it become important in internal market law? Who performs the proportionality review? 

 

Reading as preparation for class:

- read Articles 34 - 36 TFEU

- case 8/74 Dassonville

- case 120/78 Cassis de Dijon

- joined cases C-267 and 268/91 Keck

- case C-112/00 Schimdberger

- Opinion of AG Maduro in case C-434/04 Leppik - read paras 21 - 26 for proportionality review

- Karen Alter, The Pathbreaking Cassis de Dijon case, Comparative Political Studies, Vol  26, No 4, January  1994, pp 535-561 

 

Background reading:

Craig/De Búrca, Chapter 19, pp 665 – 718


Unit IX - Fundamental Rights in the EU Legal Order

Wednesday, 28 September

 

Aim: to understand the history and reasons for incorporation of fundamental rights into the EU constitutional order; to understand the scope of application of EU fundamental rights – as binding the EU institutions but also the Member States; to discuss the possible horizontal effect of EU fundamental rights; to understand different sources of EU fundamental rights and the complexity of fundamental rights protection regimes in Europe; to discuss the problems with the membership of the EU in the European Convention for Human Rights and Fundamental Freedoms

 

Questions: What is the purpose of fundamental rights in legal systems?; Could the EU legal order be transformed into a quasi-federal one without the introduction of fundamental rights?; For who do the EU fundmanetal rights create obligations?; Why has the ECJ rejected the proposed Agreement for the membership of the EU in ECtHR? 

 

Reading as preparation for class:

- case 44/79 Hauer

- have a look at the EU Charter of Fundamental Righs, especially horizontal provisions: Articles 51-53

- case C-617/10 Akerbeg Fransson

- case C-555/07 Kücükdeveci

- case C–176/12 AMS

- Opinion 2/13

 

Background reading:

Craig/De Búrca, Chapter 11, pp. 380 - 427


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