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FE-1 Law of the European Union practice questions

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Question 1Constitutional foundations and sources of EU law

Under Article 288 TFEU, which description correctly characterises an EU regulation?

  1. It is binding only on those natural or legal persons to whom it is addressed.
  2. It has no binding force and is issued only as a recommendation by the Commission.
  3. It is binding as to the result to be achieved, leaving the national authorities to choose the form and methods.
  4. It is binding in its entirety and directly applicable in all Member States. Correct answer.

Explanation

Article 288 TFEU provides that a regulation has general application, is binding in its entirety and is directly applicable in every Member State. Direct applicability means that no national transposing measure is needed and that individuals may rely on the regulation before national courts. It must nevertheless be consistent with the Treaties.

Question 2Constitutional foundations and sources of EU law

Which proposition on the relationship between EU law and national law was established by the Court of Justice in Costa v ENEL?

  1. Conflicts between EU law and national constitutional law are resolved exclusively by national constitutional courts.
  2. EU law takes precedence over conflicting national law, including national legislation adopted later. Correct answer.
  3. The primacy of EU law extends only to provisions of the EU Treaties, not to secondary legislation.
  4. EU law binds a Member State only after its parliament has expressly approved each measure.

Explanation

In Costa v ENEL the Court held that the Member States limited their sovereign rights by creating a legal order with its own institutions, and that EU law cannot be overridden by later national legislation without losing its character as Union law. Primacy therefore covers the whole body of binding EU law, including secondary legislation, and any conflicting national provision.

Question 3Constitutional foundations and sources of EU law

Who holds the general monopoly of legislative initiative under the ordinary legislative procedure?

  1. The European Parliament, acting by a majority of its component members.
  2. The Council, acting by qualified majority.
  3. The European Commission, save where the Treaties provide otherwise. Correct answer.
  4. Any Member State, acting individually.

Explanation

Article 17(2) TEU gives the Commission the general monopoly of legislative initiative: Union legislative acts may be adopted only on a proposal from the Commission, except where the Treaties provide otherwise. The Parliament and the Council are co-legislators under the ordinary legislative procedure, but they do not hold a general power to initiate legislation.

Question 4Constitutional foundations and sources of EU law

Two private companies are in dispute before a national court. One seeks to rely on a directive that the Member State has failed to transpose, arguing that the directive itself gives it a right. What is the settled position under EU law?

  1. The directive may be relied on directly because directives are directly applicable in all Member States.
  2. The directive cannot be relied on against a private party, though consistent interpretation remains required. Correct answer.
  3. The directive may be relied on against the other private company provided its provisions are unconditional and sufficiently precise.
  4. The directive may be relied on only if the Commission has first begun infringement proceedings against the Member State.

Explanation

The Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be invoked in proceedings between private parties. The national court must instead interpret national law in conformity with the directive as far as possible, and a party may in some circumstances claim damages against the defaulting Member State.

Question 5Constitutional foundations and sources of EU law

A court of last instance in a Member State is hearing a case in which the interpretation of Article 34 TFEU is decisive. It considers the meaning clear and the Court of Justice has already ruled on an essentially identical point. Under Article 267 TFEU, what should the court do?

  1. The court may decide the case itself under the acte clair and acte éclairé exceptions. Correct answer.
  2. The court must refer the question to the Commission, which will issue a binding interpretation.
  3. The court may refer only if the parties jointly request it to do so.
  4. The court is obliged to refer in every case, since its decisions are not subject to appeal under national law.

Explanation

The third paragraph of Article 267 TFEU requires courts of last instance to refer questions on interpretation, but the Court recognised in CILFIT that no reference is needed where the point has already been decided (acte éclairé) or the correct application is so obvious as to leave no reasonable doubt (acte clair). The national court must still assess those conditions carefully.

Question 6Constitutional foundations and sources of EU law

Under Article 5(1) TEU, the limits of Union competences are governed by which principle?

  1. The principle of subsidiarity.
  2. The principle of conferral. Correct answer.
  3. The principle of proportionality.
  4. The principle of sincere cooperation.

Explanation

Article 5(1) TEU states that the limits of Union competences are governed by the principle of conferral, while the use of those competences is governed by the principles of subsidiarity and proportionality. The Union therefore acts only within the competences conferred on it by the Member States in the Treaties.

Question 7Constitutional foundations and sources of EU law

Which of the following is a source of primary law that prevails over secondary legislation adopted by the EU institutions?

  1. A decision addressed by the Commission to a Member State under Article 288 TFEU.
  2. The Treaties establishing the Union, as amended by the Member States. Correct answer.
  3. A regulation adopted by the European Parliament and the Council under Article 288 TFEU.
  4. An international agreement concluded by the Union under Article 218 TFEU.

Explanation

The Treaties are the primary source of EU law and all secondary legislation must be compatible with them. An act that conflicts with primary law may be annulled under Article 263 TFEU or declared invalid under Article 267 TFEU. International agreements concluded by the Union are binding on the institutions but are not themselves primary law.

Question 8Constitutional foundations and sources of EU law

A national court is applying a national statute adopted to implement an EU directive. The wording of the statute is ambiguous: one reading would conform to the directive, another would not. Under the case law on indirect effect, what should the national court do?

  1. Interpret the national statute in the light of the directive so far as possible. Correct answer.
  2. Dismiss the claim, because directives never affect the interpretation of national legislation.
  3. Refer the matter to the Council for an authentic interpretation of the directive.
  4. Disapply the national statute and replace it with the directive, since directives are directly applicable.

Explanation

In Marleasing the Court held that a national court must interpret national law in the light of the wording and purpose of a directive in order to achieve the result it pursues, as far as possible. That duty applies to all national legislation, whether adopted before or after the directive, but cannot justify an interpretation contra legem.

Question 9Constitutional foundations and sources of EU law

A national authority of a Member State applies national legislation that implements an EU directive. A party before the authority invokes a right guaranteed by the Charter of Fundamental Rights. Under the Court's case law, why does the Charter apply here?

  1. Never, because the Charter binds only the EU institutions and not the Member States.
  2. Only where the Commission has opened formal infringement proceedings against the Member State concerned.
  3. Only if the national constitution expressly incorporates the Charter into domestic law.
  4. Because the national measure implements EU law, bringing it within Article 51 of the Charter. Correct answer.

Explanation

Article 51(1) of the Charter applies to the Member States only when they are implementing Union law. In Åkerberg Fransson the Court held that this covers national measures falling within the scope of EU law, such as the application of national legislation implementing a directive, so Charter rights can be invoked in that setting.

Question 10Constitutional foundations and sources of EU law

Which statement best reflects the Court of Justice's position on the relationship between EU law and national constitutional provisions?

  1. EU law prevails over national law, including constitutional provisions, within the limits set by the Treaties. Correct answer.
  2. Each Member State's constitutional court has the final authority to determine whether EU law applies within that State.
  3. The primacy of EU law applies only to national legislation of a purely administrative character.
  4. National constitutional provisions always prevail because the Member States are the masters of the Treaties.

Explanation

In Internationale Handelsgesellschaft the Court held that the validity of EU measures cannot be challenged on the ground that they conflict with fundamental rights recognised in a national constitution, because the law deriving from the Treaties prevails over national law, including constitutional provisions. The Treaties themselves define the limits of the Union's competences.

Question 11Constitutional foundations and sources of EU law

An EU directive sets a deadline for Member States to achieve a specified regulatory result. In transposing it, a Member State is free to choose which of the following?

  1. The form and methods used to attain the result Correct answer.
  2. The deadline by which transposition must occur
  3. Whether the directive applies to private parties
  4. Whether the result is legally binding on its national authorities

Explanation

Article 288 TFEU provides that a directive is binding as to the result to be achieved, while leaving the national authorities the choice of form and methods. The Member State must therefore attain the result by the deadline but may select the legislative or administrative technique. It cannot alter the binding character of the result or extend the transposition deadline.

Question 12Constitutional foundations and sources of EU law

According to the Court of Justice in Van Gend en Loos, a provision of EU law can produce direct effect before a national court when it is...

  1. addressed only to Member States and requires further implementing measures
  2. clear, unconditional and capable of conferring rights on individuals Correct answer.
  3. adopted under the ordinary legislative procedure and published in the Official Journal
  4. accompanied by a national implementing statute specifying remedies

Explanation

Van Gend en Loos established that a Treaty provision may be relied on by individuals before national courts where it is clear, unconditional and imposes a negative obligation not requiring further legislative intervention. The test focuses on the legal quality of the provision and its capacity to create rights, not on its procedural origin or publication.

Question 13Constitutional foundations and sources of EU law

Under Article 6(1) TEU, the Charter of Fundamental Rights of the European Union has which legal status?

  1. It applies only when Member States act outside the scope of EU law.
  2. It is an interinstitutional agreement binding only on the Commission and Parliament.
  3. It has the same legal value as the Treaties. Correct answer.
  4. It is a source of secondary law that can be disapplied by a regulation.

Explanation

Article 6(1) TEU states that the Charter has the same legal value as the Treaties, making it primary law. It therefore binds the EU institutions and, when they implement EU law, the Member States. Secondary legislation must be consistent with it.

Question 14Constitutional foundations and sources of EU law

A court of last instance considers that the correct interpretation of an EU provision is so obvious that there is no reasonable doubt. Under the Court of Justice's case-law on Article 267 TFEU, what follows?

  1. It may decline to refer if the point is equally obvious to other courts and to the Court of Justice. Correct answer.
  2. It must always refer the question because the obligation on a court of last instance admits of no exceptions whatsoever.
  3. It must refer the question whenever a national court has previously given a different interpretation of the same provision.
  4. It may refer only after the Commission has issued a formal opinion confirming that the provision is sufficiently clear.

Explanation

The Court of Justice recognised in CILFIT that the obligation to refer is subject to exceptions, including acte clair and acte éclairé. For acte clair, the national court must be convinced that the matter is equally obvious to the courts of other Member States and to the Court of Justice, taking account of the different language versions. A mere subjective belief that the answer is clear is not enough.

Question 15Constitutional foundations and sources of EU law

Under the ordinary legislative procedure, Parliament and the Council fail to agree at second reading. What is the next step in the procedure?

  1. The Council adopts the proposed act by unanimity without obtaining Parliament's approval.
  2. The Commission adopts the proposed act on the basis of its original proposal, without further involvement of Parliament.
  3. The proposal is automatically withdrawn and the legislative procedure is brought to an end.
  4. A conciliation committee is convened to reach agreement on a joint text. Correct answer.

Explanation

Article 294 TFEU provides that, where the Council and Parliament do not approve each other's positions at second reading, a conciliation committee is convened. The committee seeks to agree a joint text; if it succeeds, the act can be adopted, and if it fails, the act is not adopted. The Commission does not substitute itself for the co-legislators.

Question 16Constitutional foundations and sources of EU law

Which area falls within the Union's exclusive competence under Article 3 TFEU?

  1. The customs union Correct answer.
  2. Public health
  3. Consumer protection
  4. Environmental policy

Explanation

Article 3(1) TFEU lists the customs union, the establishing of competition rules necessary for the internal market, monetary policy for the euro area, conservation of marine biological resources under the common fisheries policy, and the common commercial policy as areas of exclusive competence. Environmental policy, consumer protection and public health are shared or supporting competences, not exclusive ones.

Question 17Constitutional foundations and sources of EU law

Article 4(3) TEU requires Member States to...

  1. delegate their treaty-making powers to the Commission in all fields of shared competence.
  2. facilitate the Union's tasks and refrain from measures jeopardising Union objectives. Correct answer.
  3. give absolute priority to their national constitutional rules over obligations arising from EU law.
  4. adopt the euro and participate in every enhanced cooperation initiative authorised by the Council or Commission.

Explanation

Article 4(3) TEU enshrines the principle of sincere cooperation. Member States must take all appropriate measures to ensure fulfilment of Treaty obligations and must facilitate the Union's tasks, while abstaining from measures that could jeopardise the attainment of Union objectives. The duty also underpins the effectiveness of EU law in national legal orders.

Question 18Constitutional foundations and sources of EU law

An international agreement concluded by the EU under Article 216 TFEU conflicts with a later EU regulation. According to the Court of Justice, what is the position in EU law?

  1. The agreement has no legal effect within the EU legal order unless it is transposed into a directive by the Commission.
  2. The agreement binds the institutions and can prevail over the regulation, but not over primary law. Correct answer.
  3. The agreement prevails only if all Member States have ratified it in accordance with their respective constitutional requirements.
  4. The regulation prevails because it is later in time and, as secondary law, has the same rank as the international agreement.

Explanation

Under Article 216(2) TFEU, agreements concluded by the Union are binding on the institutions and on the Member States. The Court of Justice has held that such agreements form part of EU law and can prevail over secondary legislation, but they remain subordinate to the Treaties and general principles of primary law. The agreement's effect does not depend on separate ratification by all Member States or on transposition by directive.

Question 19Constitutional foundations and sources of EU law

A private employer in a Member State refuses to hire a professional footballer because of his nationality. Can the player rely on Article 45 TFEU against the employer in a national court?

  1. No, because the player must first obtain a Commission decision finding the employer in breach.
  2. Yes, because Article 45 TFEU has horizontal direct effect and applies to private employers. Correct answer.
  3. No, because Treaty provisions on free movement bind only Member States and not private parties.
  4. Yes, but only if the Member State has adopted national legislation implementing Article 45 TFEU.

Explanation

In Bosman, the Court of Justice confirmed that Article 45 TFEU has horizontal direct effect and can be invoked against private employers, including sports clubs. The prohibition of nationality discrimination in employment is not limited to public authorities. National legislation implementing the Treaty is not a precondition for relying on the provision.

Question 20Constitutional foundations and sources of EU law

When the Court of Justice reviews the legality of an EU measure for proportionality, which test does it apply?

  1. Whether the measure produces identical legal effects in every Member State and region of the Union.
  2. Whether the measure has been approved by the national parliaments of all Member States within the prescribed period.
  3. Whether it is suitable for the legitimate aim and does not exceed what is necessary. Correct answer.
  4. Whether the measure was adopted by unanimity in the Council after consultation of the European Parliament.

Explanation

Proportionality is a general principle of EU law. The Court examines whether the measure is suitable for attaining a legitimate objective and whether it goes beyond what is necessary to achieve that objective. It may also weigh the burden imposed against the importance of the aim, especially where fundamental rights are engaged.

Question 21Constitutional foundations and sources of EU law

An EU act is addressed only to a named undertaking and orders it to repay incompatible State aid. Under Article 288 TFEU, which instrument is this?

  1. A regulation, because it is binding in its entirety and directly applicable in all Member States.
  2. A decision, because it binds only the addressees to whom it is addressed. Correct answer.
  3. A recommendation, because it is addressed to a particular undertaking.
  4. A directive, because it leaves the form and methods to the addressee.

Explanation

Article 288 TFEU provides that a decision is binding in its entirety, but where it specifies addressees it binds only them. A State aid recovery measure addressed to a named undertaking therefore takes the form of a decision. Regulations are general and directly applicable, while directives bind Member States as to the result to be achieved.

Question 22Constitutional foundations and sources of EU law

Which of the following is an unwritten general principle of EU law developed by the Court of Justice rather than a competence rule laid down in the Treaties?

  1. The principle of subsidiarity, which governs action outside exclusive competence
  2. The principle of conferral, which limits Union action to competences conferred by the Treaties
  3. The principle of legal certainty Correct answer.
  4. The principle of sincere cooperation, which requires loyal national implementation

Explanation

The Court of Justice treats legal certainty as a general principle of EU law, applied for example to retroactive measures and legitimate expectations. By contrast, conferral and subsidiarity are Treaty-based competence principles in Article 5 TEU, and sincere cooperation is laid down in Article 4(3) TEU.

Question 23Constitutional foundations and sources of EU law

Under Protocol No 2 on the application of the principles of subsidiarity and proportionality, which bodies may send reasoned opinions triggering the 'yellow card' procedure on a draft legislative act?

  1. The national courts of the Member States, through the preliminary ruling procedure
  2. The national parliaments of the Member States Correct answer.
  3. The European Parliament's committee responsible for constitutional affairs
  4. The Committee of the Regions and the European Economic and Social Committee, acting jointly

Explanation

Protocol No 2 allows each national parliament to send a reasoned opinion on whether a draft legislative act complies with subsidiarity. If the required number of reasoned opinions is reached, the institution must review the draft; this is the yellow-card procedure. The Committee of the Regions and the Economic and Social Committee are consulted but do not trigger it.

Question 24Constitutional foundations and sources of EU law

A Member State considers that a newly adopted EU directive exceeds the competences conferred by the Treaties. Which action can it bring directly before the Court of Justice to challenge the directive's legality?

  1. An infringement action under Article 258 TFEU brought by the Commission against that Member State
  2. An action for annulment under Article 263 TFEU Correct answer.
  3. An action for failure to act under Article 265 TFEU against an institution that has failed to act
  4. A request for a preliminary ruling under Article 267 TFEU

Explanation

Article 263 TFEU allows a Member State, as a privileged applicant, to seek annulment of an EU act such as a directive on grounds including lack of competence. The action must be brought within the time limit laid down in that article. Article 258 is an infringement action by the Commission against a Member State, and Article 267 is a reference from a national court.

Question 25Institutions, decision-making procedures and competence

In the ordinary legislative procedure, which actor holds the general right to initiate a Union legislative act?

  1. The Commission, under the general power in Article 17(2) TEU Correct answer.
  2. The Council, acting by qualified majority
  3. The Committee of the Regions, after consulting the Economic and Social Committee
  4. The European Parliament, acting by an absolute majority of its members

Explanation

Article 17(2) TEU provides that Union legislative acts may only be adopted on the basis of a Commission proposal unless the Treaties provide otherwise. The Commission therefore holds the general right of legislative initiative under the ordinary legislative procedure. Parliament and Council act as co-legislators but do not formally initiate legislation themselves.

Question 26Institutions, decision-making procedures and competence

A Member State argues that an EU measure exceeds what the Treaties permit because the Union has no competence over the matter. Which principle of Union law governs that argument?

  1. Conferral, because the Union acts only within the competences conferred by the Member States in the Treaties Correct answer.
  2. Sincere cooperation, because the Member States must facilitate the Union's tasks
  3. Subsidiarity, because the Union acts only where action by Member States is insufficient
  4. Proportionality, because the content and form of Union action must not exceed what is necessary

Explanation

Article 5(1) TEU states that the limits of Union competences are governed by the principle of conferral. Under Article 5(2) TEU the Union acts only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out there. Competences not conferred upon the Union remain with the Member States.

Question 27Institutions, decision-making procedures and competence

Which TFEU provision sets out the categories of Union competence and the consequences attached to each category?

  1. Article 3 TFEU
  2. Article 2 TFEU Correct answer.
  3. Article 6 TFEU
  4. Article 4 TFEU

Explanation

Article 2 TFEU categorises Union competence as exclusive, shared or supporting and states the consequences of each category. Articles 3, 4 and 6 TFEU then list the policy areas falling within those categories. Article 5 TFEU concerns coordination of economic and employment policies.

Question 28Institutions, decision-making procedures and competence

In the ordinary legislative procedure, what happens when the Council cannot accept all of Parliament's amendments at second reading?

  1. A Conciliation Committee with equal representation of Parliament and Council is convened Correct answer.
  2. The act is deemed adopted in the version approved by Parliament
  3. The Commission withdraws the proposal and the procedure ends
  4. The Council adopts the act by qualified majority without further reference to Parliament

Explanation

Under Article 294(8) TFEU the President of the Council, in agreement with the President of Parliament, convenes the Conciliation Committee within six weeks where the Council cannot approve all of Parliament's amendments. The committee is composed of equal numbers of Council and Parliament representatives and must produce a joint text. If no joint text is approved, the act is not adopted.

Question 29Institutions, decision-making procedures and competence

When the Council votes on a Commission proposal in the ordinary legislative procedure, what constitutes a qualified majority under the current Treaty rules?

  1. A simple majority of Council members representing a majority of the Union's population
  2. Unanimity of Council members, except where the Treaties provide otherwise
  3. Two thirds of Council members representing two thirds of the Union's population
  4. At least 55% of Council members representing at least 65% of the Union's population Correct answer.

Explanation

Article 16(4) TEU and Article 238 TFEU define qualified majority as at least 55% of Council members representing Member States comprising at least 65% of the Union's population. Where the Council acts on a proposal not from the Commission or the High Representative, the thresholds are 72% of member states and 65% of the population. A blocking minority must include at least four member states.

Question 30Institutions, decision-making procedures and competence

The Union legislature wishes to supplement a legislative act by laying down detailed rules on a non-essential element. Which instrument must it authorise the Commission to adopt?

  1. An implementing act adopted under Article 291 TFEU
  2. A delegated act adopted under Article 290 TFEU Correct answer.
  3. A comitology decision taken by the Council alone
  4. An interinstitutional agreement concluded under Article 295 TFEU

Explanation

Article 290(1) TFEU allows the legislature to delegate to the Commission the power to adopt non-legislative acts of general application that supplement or amend non-essential elements of a legislative act. Such delegated acts remain subject to control by Parliament and Council, which may revoke the delegation or object to a delegated act. Implementing acts under Article 291 TFEU serve a different purpose: establishing uniform conditions for implementing legally binding Union acts.

Question 31Institutions, decision-making procedures and competence

Under Protocol No 2 on subsidiarity, how many votes allocated to national parliaments must reasoned opinions represent to trigger the yellow-card procedure in an ordinary policy area?

  1. A majority of national parliaments
  2. Half of the total votes allocated to national parliaments
  3. One third of the total votes allocated to national parliaments Correct answer.
  4. One quarter of national parliaments in all policy areas

Explanation

Protocol No 2 gives national parliaments eight weeks from transmission of a draft legislative act to send a reasoned opinion to the Presidents of Parliament, Council and Commission. Where reasoned opinions represent at least one third of the votes allocated to national parliaments, the draft must be reviewed under the yellow-card procedure. In the area of freedom, security and justice the threshold is one quarter of those votes.

Question 32Institutions, decision-making procedures and competence

Who elects the President of the European Council, and by what voting rule?

  1. The European Parliament, acting by an absolute majority
  2. The Council of the European Union, acting unanimously
  3. The European Council, acting by qualified majority Correct answer.
  4. The Commission President, after consulting the College

Explanation

Article 15(5) TEU provides that the European Council elects its President by qualified majority for a term of two and a half years, renewable once. The President chairs the European Council and drives its work but may not hold a national office. The European Parliament has no role in that election.

Question 33Institutions, decision-making procedures and competence

An individual wishes to challenge before the General Court a regulatory act that does not entail implementing measures. What standing requirement applies under Article 263(4) TFEU?

  1. Individual concern only, because direct concern is presumed
  2. Neither direct nor individual concern, because regulatory acts are always challengeable
  3. Both direct and individual concern, as for any other act
  4. Direct concern only, because individual concern is not required for such regulatory acts Correct answer.

Explanation

The third limb of Article 263(4) TFEU allows a natural or legal person to challenge a regulatory act that does not entail implementing measures without showing individual concern; direct concern is still required. This was confirmed in Inuit Tapiriit Kanatami v Parliament and Council (C-583/11 P). Challenges to other acts require both direct and individual concern.

Question 34Institutions, decision-making procedures and competence

Where the Treaties confer a shared competence on the Union, how may the Member States exercise their own competence once the Union has acted?

  1. Only where the Commission has expressly authorised them to act
  2. Only to the extent that the Union has not exercised its competence or has ceased to do so Correct answer.
  3. In all circumstances, because shared competence remains concurrent and unlimited
  4. Never, because Union action extinguishes the national competence permanently

Explanation

Article 2(2) TFEU provides that in areas of shared competence the Member States exercise their competence only to the extent that the Union has not exercised its competence or has decided to cease exercising it. Union action therefore pre-empts national action in the field concerned. The Member States' underlying competence is not extinguished but is suspended to the extent of the Union's exercise.

Question 35Institutions, decision-making procedures and competence

Which of the following matters falls within the exclusive competence of the Union under Article 3(1) TFEU?

  1. The common commercial policy Correct answer.
  2. Consumer protection
  3. Environmental policy
  4. The protection and improvement of human health

Explanation

Article 3(1) TFEU lists exhaustively the fields of exclusive Union competence: the customs union, the competition rules necessary for the internal market, monetary policy for Member States whose currency is the euro, the conservation of marine biological resources under the common fisheries policy, and the common commercial policy. In these fields only the Union may legislate and adopt legally binding acts, and Member States may act themselves only if empowered by the Union or to implement Union acts (Article 2(1) TFEU).

Question 36Institutions, decision-making procedures and competence

Under Article 234 TFEU, what majority is required for the European Parliament to carry a motion of censure on the Commission, and what follows if the motion is carried?

  1. Two-thirds of the votes cast and a majority of component Members; the Commission then resigns as a body. Correct answer.
  2. An absolute majority of its component Members, with the President of the Commission alone required to resign from office.
  3. A simple majority of the votes cast, after which the members of the Commission must resign collectively as a body.
  4. Two-thirds of its component Members, with only the Commissioner responsible for the policy area resigning.

Explanation

Article 234 TFEU requires the motion of censure to be carried by two-thirds of the votes cast representing a majority of the component Members of the European Parliament, following a debate held not earlier than three days after the motion is tabled and a vote by roll call. If the motion is carried, the members of the Commission resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy resigns from duties in the Commission.

Question 37Institutions, decision-making procedures and competence

The Union wishes to attain a Treaty objective in a field where the Treaties have not provided the necessary powers, and no other legal basis is available. Which procedure applies under Article 352 TFEU?

  1. The Council acts by qualified majority after consulting the European Parliament, with prior approval by national parliaments.
  2. The Council acts unanimously on a Commission proposal after obtaining the European Parliament's consent. Correct answer.
  3. The Council and the European Parliament act jointly under the ordinary legislative procedure on a Commission proposal.
  4. The Commission adopts the measure itself as an implementing act, subject to scrutiny by a committee of Member States.

Explanation

Article 352(1) TFEU allows the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, to adopt appropriate measures where Union action is necessary to attain a Treaty objective and the Treaties have not provided the necessary powers. The flexibility clause cannot serve to harmonise in fields where the Treaties exclude harmonisation (Article 352(3) TFEU) or to attain foreign and security policy objectives (Article 352(4) TFEU), and the Commission must draw the measure to the attention of national parliaments.

Question 38Institutions, decision-making procedures and competence

The Commission proposes a Union measure pursuing both internal-market harmonisation and development-cooperation objectives, each pointing to a different legal basis with a different decision-making procedure. Which statement reflects the Court's case-law on the choice of legal basis?

  1. The legal basis must follow the measure's aim and content as objectively ascertainable, with one predominant purpose normally determining it. Correct answer.
  2. The Commission's own characterisation in its explanatory memorandum determines the legal basis, since the Commission enjoys a discretion when framing the proposal.
  3. The choice of legal basis is a political question for the legislature and is reviewable only for manifest error of assessment.
  4. The measure must rest cumulatively on two legal bases whenever it pursues objectives falling under both provisions.

Explanation

Since Commission v Council (Titanium dioxide, C-300/89) and Parliament v Council (Chernobyl, C-70/88), the choice of legal basis must rest on objective factors amenable to judicial review, in particular the aim and content of the measure, and not on the institution's subjective intention. Where one objective is predominant, a single legal basis suffices; a dual basis is available only where the procedures it entails are compatible, and it can never be used to extend the Union's competences beyond the Treaties.

Question 39Institutions, decision-making procedures and competence

A Union regulation requires uniform conditions for implementing a marketing authorisation scheme and confers implementing powers on the Commission. Under Article 291 TFEU and Regulation 182/2011, how is the Commission's exercise of those powers controlled?

  1. By the European Parliament, which may veto each individual implementing act within two months of its adoption.
  2. By committees of Member State representatives, following the examination or advisory procedure set by the empowering act. Correct answer.
  3. By the Court of Justice, which must authorise each implementing act before it enters into force.
  4. By the Council, which must approve each implementing act unanimously before it can be adopted.

Explanation

Article 291(2) TFEU provides that where uniform conditions for implementing legally binding Union acts are needed, those acts confer implementing powers on the Commission, and Article 291(3) TFEU requires the legislature to lay down in advance the rules and general principles governing control by Member States. Regulation 182/2011 gives effect to this through advisory and examination committees composed of Member State representatives, which contrasts with delegated acts under Article 290 TFEU, where control lies with the European Parliament and the Council through revocation or objection.

Question 40Institutions, decision-making procedures and competence

Eleven Member States wish to establish enhanced cooperation in an area of shared competence, the Council having concluded that the Union as a whole cannot attain the objectives within a reasonable period. Which statement correctly describes the authorisation procedure and the effect of the resulting acts?

  1. The Council authorises it by unanimity, and the resulting acts bind all Member States once they have been adopted.
  2. The Council authorises it by qualified majority on a Commission proposal with Parliament's consent; the resulting acts bind only the participating States. Correct answer.
  3. The Commission authorises it after obtaining the consent of national parliaments under Protocol No 2.
  4. Authorisation is granted by the European Council by consensus, and only Member States that have notified the Commission may vote on the resulting measures.

Explanation

Article 20 TEU permits enhanced cooperation only as a last resort, within the Union framework, by at least nine Member States, where the Union as a whole cannot attain the objectives within a reasonable period. For areas other than the common foreign and security policy, Article 329(1) TFEU provides that authorisation is granted by the Council acting by qualified majority on a proposal from the Commission after obtaining the consent of the European Parliament, and Article 20(4) TEU confirms that the acts adopted bind only the participating Member States, other States being free to join later under Article 331 TFEU.

Question 41Supremacy, direct effect and consistent interpretation

Which judgment established that a provision of the Treaties may be relied on directly before a national court where it is clear, unconditional and leaves the Member State no discretion in its implementation?

  1. Costa v ENEL
  2. Marleasing
  3. Van Gend en Loos Correct answer.
  4. Van Duyn

Explanation

Van Gend en Loos established the direct effect of Treaty provisions. The Court held that a clear and unconditional Treaty prohibition could produce effects directly in the legal order of the Member States and create rights for individuals. Such a provision must not require further implementing measures by the Member State.

Question 42Supremacy, direct effect and consistent interpretation

Which proposition best reflects the supremacy of EU law as articulated in Costa v ENEL?

  1. EU law prevails over conflicting national law, including national legislation adopted later in time. Correct answer.
  2. A national court must always refer a supremacy question to the Court of Justice before disapplying national law.
  3. National constitutional courts have final authority to decide whether EU law applies domestically.
  4. Supremacy applies only to regulations and not to Treaty provisions or directives.

Explanation

Costa v ENEL held that the Treaties created a legal order integrated into the national legal systems, and that EU law takes precedence over national law. National legislation adopted later in time cannot therefore override EU law. Supremacy applies across EU law, not only to one type of instrument.

Question 43Supremacy, direct effect and consistent interpretation

Which feature of a regulation under Article 288 TFEU is most relevant to its direct application in national legal orders?

  1. It has direct effect only after the Commission has published implementing measures.
  2. It binds only the Member State to which it is addressed and requires transposition.
  3. It is directly applicable in every Member State without national transposition. Correct answer.
  4. It creates obligations only between private parties and has no vertical effect.

Explanation

Article 288 TFEU provides that a regulation is binding in its entirety and directly applicable in all Member States. Direct applicability means that it enters the national legal order without the need for transposition. Direct effect may still depend on the provision being clear and unconditional, but transposition is not required.

Question 44Supremacy, direct effect and consistent interpretation

A directive's transposition deadline has passed, but the Member State has not implemented it. A clear and unconditional provision of the directive would assist an employee in a dispute against a private employer. What is the correct position under Marshall?

  1. Yes, because the private employer performs a public service.
  2. Yes, because the transposition deadline has already expired.
  3. Yes, because the provision is clear and unconditional.
  4. No, though consistent interpretation may still be possible. Correct answer.

Explanation

Marshall established that a directive cannot of itself impose obligations on an individual and cannot be relied on against that individual in national proceedings. Direct effect of an unimplemented directive is vertical, against the state and emanations of the state. The national court must still interpret national law in light of the directive as far as possible.

Question 45Supremacy, direct effect and consistent interpretation

A national court is deciding a dispute between two private parties. National law is ambiguous and can reasonably be read in conformity with a directive whose deadline has passed. What does the duty of consistent interpretation require?

  1. Stay proceedings and wait for national legislation to be amended.
  2. Award damages against the Member State for non-transposition.
  3. Disapply the national law and apply the directive directly.
  4. Interpret national law in light of the directive as far as possible. Correct answer.

Explanation

Von Colson and Marleasing require national courts to interpret national law in the light of the wording and purpose of the directive. This duty applies to all national law and seeks to achieve the result the directive pursues. It operates as far as possible and cannot require an interpretation contra legem.

Question 46Supremacy, direct effect and consistent interpretation

A national court finds that a national statute conflicts with a directly effective provision of EU law. According to Simmenthal, what must the national court do?

  1. Apply the national statute because it is the later expression of national legislative will.
  2. Ask the Commission to bring infringement proceedings before acting.
  3. Refer the question to the national constitutional court and suspend the case.
  4. Disapply the national statute of its own motion. Correct answer.

Explanation

Simmenthal held that a national court called upon to apply EU law must ensure that it is fully effective. It must set aside, of its own motion, any conflicting provision of national law without requesting or awaiting prior legislative or constitutional amendment. The preliminary reference procedure does not require it to wait for other authorities.

Question 47Supremacy, direct effect and consistent interpretation

Which body may be sued directly on the basis of an unimplemented directive under the Foster v British Gas approach?

  1. A wholly private subsidiary of a foreign corporation.
  2. An individual who has no connection with the state.
  3. A private company supplying goods in a competitive market.
  4. A state-controlled body providing a public service with special powers. Correct answer.

Explanation

Foster v British Gas held that a directive may be relied on against a body which, regardless of its legal form, has been made responsible by the state for providing a public service, is under state control and has special powers beyond those arising from ordinary private law. Such a body is an emanation of the state. Private persons cannot be directly bound by an unimplemented directive.

Question 48Supremacy, direct effect and consistent interpretation

In a criminal prosecution, a national court is asked to interpret a national criminal provision in light of a directive in a way that would impose criminal liability that the national legislature had not clearly created. Which limitation on consistent interpretation applies?

  1. It cannot apply after the directive's transposition deadline.
  2. It applies only to civil disputes and never to criminal proceedings.
  3. It must always override express national criminal law.
  4. It cannot determine or aggravate criminal liability. Correct answer.

Explanation

Kolpinghuis Nijmegen established that the duty of consistent interpretation cannot be used to determine or aggravate the criminal liability of persons who act contrary to a directive. This reflects legal certainty and the principle of legality in criminal law. The duty may still operate in criminal proceedings where it does not have that effect.

Question 49Supremacy, direct effect and consistent interpretation

Which statement reflects the Court of Justice's approach in Internationale Handelsgesellschaft to conflicts between EU law and national fundamental rights?

  1. National constitutional fundamental rights always prevail over secondary EU law.
  2. National courts may invalidate an EU regulation for conflict with the national constitution.
  3. EU law does not apply where national constitutional protection is more extensive.
  4. National constitutional rules cannot invalidate EU acts, but EU law protects fundamental rights. Correct answer.

Explanation

Internationale Handelsgesellschaft held that recourse to rules or concepts of national law in judging the validity of EU measures would adversely affect the unity of EU law. EU measures are therefore not invalidated by national constitutional rules. The Court added that fundamental rights form part of the general principles of EU law and are protected within the EU legal order.

Question 50Supremacy, direct effect and consistent interpretation

Which statement correctly describes the temporal scope of the duty of consistent interpretation?

  1. The duty applies only where the directive has already been held to have direct effect.
  2. It applies from the end of the transposition period, even without transposition. Correct answer.
  3. The duty applies retroactively to events occurring before the directive was adopted.
  4. The duty applies only after the national legislature has expressly transposed the directive.

Explanation

Adeneler established that the duty of consistent interpretation arises from the end of the transposition period. It does not depend on actual transposition by the national legislature. Before that date, national courts must refrain as far as possible from interpreting national law in a way that seriously compromises the directive's result after the deadline.