Essay On Article 34

That such a momentous step was taken in Factortame is, on the face of it, grist to the mill of those who contend that sovereignty has been ceded to Brussels. Yet Wade’s analysis — and the dramatic consequences that it implies — is problematic. For one thing, it is incompatible with the way in which Lord Bridge — the only Law Lord in Factortame to consider this point in any detail at all — explained the judgment. He argued that any limitations upon its sovereignty implied by EU membership had been accepted ‘voluntarily’ by Parliament when it enacted the European Communities Act 1972. The implication was that Parliament is at liberty to permit EU law to prevail over its own enactments. The flip side of that coin must be that if Parliament

This essay advances the position that the quotation under discussion is, with all due respect to the Author, entirely incorrect. It is the counter-argument of this essay that the Courts of Justice of the European Union (CJEU) have ‘abused’ their interpretive jurisdiction, and, in places, have even done violence to the very wording of the Treaty itself.

Poland has also restricted the sale of Gioco computer games arguing that they encourage bad behavior which can be bad for the user’s health. In considering this, public health is an obvious ground. However, there must be evidence of a real risk and measure must be proportionate to that risk. The ECJ repeatedly held that the health and life of humans rank among the asset and interest protected by Article 36 TFEU (Steiner, J. Woods, L 2012). “It is for the UK and Poland, within the limits imposed by the treaty, to decide on the degree of protection they which to afford to public health and on the way in which that degree of protection is to be achieved (Steiner, J. Woods, L 2012). While this allocate Member of State considerable discretion, and variance between the levels of protection chosen by the various Member States is permitted, in practice they are limitation on this discretion. So, while discriminatory measures for UK and Poland for which justification may be sought on health ground to ban, test and inspection of imports to ensure that domestic standards are met, thus, in order for the UK and Poland to successes on banning imports of Gioco games they must prove that “Total War” imposed a real health risk which is demonstrated in case Duphar BV (case 238/82). In the case of Commission v UK the ECJ found that a requirement that UHT milk should be marketed

Years after the end of the revolutionary war, the fledgling colonies that would eventually become the United States, would face the daunting task of unifying an eager and restless population. This led to some of the greatest minds in the areas of economics, law, and politics to come together to create a unifying document that was to become the law of the land, The Constitution. One of these contested issues was the idea of separation of powers and what that entailed for the impressionable country. Over the laborious weeks, the various delegates convened, debated and more or less agreed on the powers of the legislative and executive branches with the representatives of both branches being popularly elected into office. However, the tension

‘The jurisprudence of the Courts of Justice of the European Communities has, of course, established that the law of the communities, whether embodied in regulations or directives, must be given primacy, where it is applicable, over the domestic law of the member States.’ …‘

Consequently, Derogations should not be enforced arbitrary; additionally, they may not cause a disguised discrimination between member states, to rely on Art 36 TFEU a measure must be justified objectively. Also, another requirement which a national rule must fulfil to comply with Art 36 TFEU is that it cannot form arbitrary discrimination or a disguised restraint on trade between Member states. The purpose of this condition is to prevent restrictions on trade based on one of the derogations stated in the first condition of Art 36 TFEU from being diverted from their purpose and used in a way to either create discrimination in respect of goods created in other member states or indirectly to guard certain domestic products.

Although the EU is only licensed to create laws regarding distinct subject matters, in which such matters are obliged to take precedence above laws constructed by parliament, in this matter, the parliament is no longer the superior body of law in the UK. The earliest exemplar by which the long-established prospect of Parliamentary Sovereignty was questioned, hence embodying the infection point for the ideology of Parliamentary Supremacy relating to EU amalgamation was the instance of Factortame . This case recognized the superiority of EU law on top of parliament’s domestic law seeing that it refuted the Merchant Shipping act 1998 as a result of discrimination of ethnic minority, consequently conflicting the rules of the EEC. By which, national courts had to neglect Parliament’s statuary for it to adhere with EU arrangements as the Court of Justice of the European Union had maintained conclusively opposing with the doctrine of Parliamentary Sovereignty

The principle of supremacy of European Union (EU) law has been established over the course of more than five decades. It is a principle that was established by the European Court of Justice (ECJ) in 1964, and it has continued to have a rich history in the jurisprudence of the ECJ and national constitutional courts. As the ECJ and national courts attempt to define their respective realms of influence, a bright debate has sparked regarding constitutional pluralism. Moreover, the recent codification of primacy in the Constitutional Treaty has led to a new debate on the scope of the supremacy of EU law.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Enforcing the European Union legal system is diverse and done on multiple platforms; through not only actions taken against member states for breach of their obligations, but also, for example, through the use of direct effect1. Article 267 TFEU; an organism devised to practice private enforcement of EU law before national courts, has been critical to ensure uniform interpretation and application of EU law in member states. References for preliminary rulings occur when the national courts are presented with a question of EU law due to uncertainty of the provision. The national court will therefore ‘make a reference to the Court of Justice (COJ) to obtain a preliminary ruling on any point of EU law relevant to the proceedings’2. In

The CJEU case-law on horizontal direct effect of directives arguably lacks consistency in regards to the application of the general principle. The principle of direct effect was established in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Although there is no set definition of direct effect, a broader definition was provided in Van Gend en Loos that it “can be expressed as the capacity of a provision of EU law to be invoked before a national court.” However, Van Dyun v. Home Office established that directives are capable of direct effect. Furthermore, Marshall v. Southampton established that there could only be vertical direct effect of directives. This stringent principle has arguable ignited the highly contested debate of whether or not horizontal direct effect is applicable to directives or if directives could only have vertical direct effect. However, this essay shall explore the lack of consistency in case-law regarding horizontal direct effect of directives. Firstly, this paper will delve into the case-law of the topic of horizontal direct effect of directives in efforts to try to highlight its consistency in its approach. Secondly, the paper will use case law and the opinion of academics (enter the name of the academics later) to highlight its inconsistencies using the legal mechanisms that have been introduced by the Courts to try to compensate for the lack of horizontal direct effect of directives. Namely, indirect effect, incidental horizontal

This question concerns non-fiscal barriers to the free movement of goods in the European Union. Issues concerning Articles 34,35 or 36 of the Treaty on the Functioning of the European Union (TFEU) are raised and Brian’s potential claim is against France as the Member State who has enacted measures which may restrict imports and exports, thereby violating the Treaty.

This essay will examine and evaluate the principle of supremacy of European Union (‘EU’) law since its ‘inception in the two fundamental authorities’ of Van Gend en Loos v Nederlandse Administratie and Costa v ENEL analyzing how these cases established ‘an autonomous legal order which limits national sovereignty’ . Using Professor Weiler’s prism of ‘bi-dimensionalism’ this essay will examine supremacy through two viewpoints, how the Court of Justice of the European Union (‘CJEU’) has looked at the supremacy of EU law and how the national courts have viewed the supremacy. Whilst the EU may have one view, the second part of bi-dimensionalism is how the Member States have reviewed and interpreted the EU decisions reconciling them with

In the aftermath of the 1957 Treaty , the European Economic Community (EEC) was established and customs barriers between the member states have been abolished. Member States throughout the Community, can “promote a harmonious development of economic activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the standard of living and closer relations between them”. Therefore, in order for a common market to be established between Member States, the Community enacted some legislative provisions which aimed to a true harmonization of laws; incorporate different legal systems under a basic legal framework. The main issue arising is whether these legal provisions in accordance with the case law, ensured the free movement of goods within this market.

One of the main objectives of the European Union (EU) is the establishment of the internal market, which shall consist of “area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. The internal market is based upon a customs union achieved through the abolition of the imposition of customs duties and charges having an equivalent effect and the prohibition of discriminatory taxes on intra-EU imports. The internal market is enhanced by the provisions on free movement of workers, freedom of establishment, free movement of services, and free movement of capital. Whereas Articles 28 to 30 of the Treaty on the Functioning of the European Union (TFEU) provide for the establishment of an EU common external tariff and the elimination of customs duties, Articles 34 and 35 of the TFEU (with exceptions under Article 36) go further, and prohibit quantitative restrictions and measures having equivalent effect. Taken together, Articles 28 to 32 and 34 to 36 serve to ensure the free movement of goods within the EU and to facilitate the operation of the internal market.