scholarly journals EU citizens’ rights post Brexit: why direct effect beyond the EU is not enough

2018 ◽  
Vol 14 (3) ◽  
pp. 443-474 ◽  
Author(s):  
Stijn Smismans
Keyword(s):  
Direct Effect ◽  
Equal Protection ◽  
Eu Law ◽  
Uk Government ◽  
Specific Implementation ◽  
The Eu

Brexit – EU citizens’ rights – Direct effect beyond the EU – The Withdrawal Agreement does not protect citizens properly – Copying substantive provisions of EU law and parts of the EU’s supranational features, such as direct effect, does not provide equal protection for EU citizens once a country is no longer part of the EU – UK-specific implementation measures to be set out in Withdrawal Agreement or Protocol – Guarantees also to be set out in primary legislation – UK Government intends to act to a great extent via secondary legislation – relationship between the Withdrawal Act and the Withdrawal Agreement and Implementation Bill

2. Supremacy, direct effect, indirect effect, and state liability

2018 ◽  
Author(s):  
Matthew J. Homewood
Keyword(s):  
Member State ◽  
Direct Effect ◽  
Indirect Effect ◽  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
Key Concepts ◽  
State Liability ◽  
The Eu

This chapter discusses the key concepts within the EU legal order: supremacy, direct effect, indirect effect, and state liability. The doctrine of supremacy dictates that EU law takes precedence over conflicting provisions of national law. If a provision of EU law is directly effective, it gives rise to rights upon which individuals can rely directly in the national court. If an EU measure is not directly effective, a claimant may be able to rely on it through the application of indirect effect, which requires national law to be interpreted in accordance with relevant EU law. State liability gives rise to a right to damages where an individual has suffered loss because a Member State has failed to implement a directive or has committed other breaches of EU law.

9. EU law

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Maastricht Treaty ◽  
Eu Law ◽  
The European Union ◽  
Legislative Power ◽  
Treaty Of Amsterdam ◽  
The Relationship ◽  
Direct Applicability ◽  
The Eu

This chapter discusses the primary and secondary laws of the European Union (EU). Treaties are the primary law of the EU. In addition to the treaties that originally established the three European Communities, a number of other treaties have subsequently been made. These include the Treaty on European Union (the Maastricht Treaty), the Treaty of Amsterdam, the Treaty of Nice, and the Lisbon Treaty, all of which have made important amendments to the foundation treaties. Article 288 of the Treaty on the Functioning of the European Union (TFEU) confers legislative power on the Union’s institutions to make secondary legislation in accordance with the provisions of the Treaty. This secondary legislation may take different forms: regulations, directives, decisions, recommendations, and opinions. The chapter also discusses the concepts of direct applicability and direct effect, and the relationship between EU law and the English courts.

Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights after Lisbon

2011 ◽  
Vol 7 (1) ◽  
pp. 64-95 ◽  
Author(s):  
Wolfgang Weiß
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Order ◽  
Fundamental Rights ◽  
European Convention ◽  
Eu Law ◽  
Eu Member States ◽  
Loss Of Autonomy ◽  
The Eu

Treaty of Lisbon – Fundamental Rights Charter – European Convention on Human Rights – Partial incorporation of Convention in Charter – Incorporation of Charter into EU law with Lisbon – Questions of loss of autonomy for the EU legal order – Gain in direct effect of Convention in EU member states

BENEFITS FOR EU CITIZENS: A U-TURN BY THE COURT OF JUSTICE?

2015 ◽  
Vol 74 (2) ◽  
pp. 195-198 ◽  
Author(s):  
Steve Peers
Keyword(s):  
European Union ◽  
Social Welfare ◽  
Member State ◽  
Eu Law ◽  
The European Union ◽  
Welfare Benefits ◽  
Court Of Justice ◽  
Uk Government ◽  
The Uk ◽  
The Eu

THE recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

ECJ bugbear undermines London’s negotiating position

2017 ◽  
Keyword(s):  
United Kingdom ◽  
Eu Law ◽  
Content Type ◽  
The United Kingdom ◽  
Regulatory Standards ◽  
Uk Government ◽  
The Uk ◽  
Sticking Point ◽  
The Eu

Significance The role for the ECJ after Brexit will be a key sticking point as negotiations between London and Brussels progress. Impacts Fragmentation in regulatory standards would make it much harder for the United Kingdom to trade with the EU. The dissonant position adopted by the UK government increases the risk of delay, and ultimately of failing to secure a deal. Unless London settles on stable guidance for interpretation of EU law post-Brexit, uncertainty for firms, investors and citizens will rise.

2. Supremacy, direct effect, indirect effect, and state liability

2020 ◽  
pp. 22-46
Author(s):  
Matthew J. Homewood
Keyword(s):  
Member State ◽  
Direct Effect ◽  
Indirect Effect ◽  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
Key Concepts ◽  
State Liability ◽  
The Eu

This chapter discusses the key concepts within the EU legal order: supremacy, direct effect, indirect effect, and state liability. The doctrine of supremacy dictates that EU law takes precedence over conflicting provisions of national law. If a provision of EU law is directly effective, it gives rise to rights upon which individuals can rely directly in the national court. If an EU measure is not directly effective, a claimant may be able to rely on it through the application of indirect effect, which requires national law to be interpreted in accordance with relevant EU law. State liability gives rise to a right to damages where an individual has suffered loss because a Member State has failed to implement a directive or has committed other breaches of EU law.

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Refugee Law ◽  
Functional Understanding ◽  
Scope Of Application ◽  
International Refugee Law ◽  
Border Controls ◽  
The Eu

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

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