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Questions GLE - post Midterm

Nov 04, 202519 min read

Chapter 6

How is the Austrian Federal Constitution composed?

  • there is not one main document “the constitution” but there are many law books containing bits of constitutional law
  • constitutional law is marked as being constitutional
  • main document being constitutional act of 1920
  • 9 land constitutions → less important than federal constitution
  • each law must obey laws of higher order → principle of legality
  • developed by merkl
  • law creates its own regulation
  • the higher the order the more difficult it is to change/adapt
  • hierarchy (top - highest)
    • basic principles
    • constitution
    • ordinary law
    • ordinances
    • rulings, judgement, decisions

The basic principles of the Austrian Federal Constitution enjoy a special position compared to other norms of constitutional law. Explain

  • constitutional law is hardest to change since it requires the highest amount of members of the council (at least half) and a 2/3 majority for total revision
  • also parts of the constitutional law, like democracy, are required by the TEU
  • Referendum - where the people cast their vote directly on a topic
  • National Council → Consultation of the People (not legally binding)
  • Public Initiative (100k votes) → must be discussed by parliament

What are the electoral principles of Austrian law?

What is understood by the term ‘principle of legality‘? What is the relationship between the principle of legality and the basic democratic principle?

What are the competences of the Federal President?

May a Member of Government at the same time be a Member of Parliament? State reasons for your answer

  • would be expected: false, because Separation of Powers
    • same person may have multiple roles in the same branch
  • in Austria exception, persons of government may also be in parliament

Explain the legislative procedure in Austria

Can the Federal Government as a collegial body, or a Federal Minister be dismissed?

How is the administrative court system organised?

Why is the Constitutional Court described as the ‘guardian of the Constitution’?

  • is responsible for keeping track of unconstitutional law → Principle of Legality
  • Human Rights also in constitution → keeping of Human Rights
  • from lecture:
    • Powers to review laws and regulations for their constitutionality
    • Court of fundamental rights
    • Resolves conflicts of competence between the federation and a Land or between the Laender themselves
    • Pronounces upon challenges to elections

How did EU membership affect Austria’s status of permanent neutrality?

  • special policy to verify Austria’s neutrality
  • true neutrality cannot be held while being part of EU
    • being part of a team and neutrality does not go well together
  • economically and politically not neutral
  • just neutrality regarding war and military conflicts

Assuming that the EU decides to modify the EU Treaties, what has to happen from the perspective of Austrian constitutional law?

  • TEU, TFEU → have to be approved by national council
  • directly adopted by national law, no need for extra incorporation
    • can be, but do not have to be
  • collab

Is every international treaty directly applicable in Austria? State reasons for your answer

  • no
  • although for the creation of the treaty the parliament, or the Laender in case of special competences, must be involved in the forming of the treaty
  • once the treaty is formed it is directly applicable
  • depends on precision of the treaty

How do the Laender participate in the decision-making process of the EU?

  • they participate directly in the Austrian elections for the EU Parliament and can vote via proxy in the Austrian Parliament via their representatives there #collab

Chapter 7

Does the EU have a constitution?

Why is it important to distinguish the ‘Council of Europe’ from the ‘European Council’ and the ‘Council’?

How did the Single European Act influence the trajectory of European integration?

While the name suggests continuity, the post-Lisbon ‘EU’ is, for the most part, hardly comparable to the ‘EU’ after Maastricht. Explain

Against what criteria would an accession to the EU of Turkey (or any other third country) have to be assessed?

  • if any country wants to enter the EU
    • Law system has to changed to be compatible with EU law system
    • political system has to be valid and stable
    • Fundamental Rights and Human Rights
    • strong market economy → supporting EU market instead of being a burden
    • all current EU member states have to approve

Why did the ‘empty chair policy’ arise and how was it overcome?

Given the rules on how a qualified majority vote is taken within the Council, is it necessary to have a specific rule on how to establish a blocking minority?

  • Blocking Minority → 4 no
    • 8 countries (30% of EU) have only 3.1% of population
      • would be difficult to bargain otherwise
  • 55% of votes (15 members) to pass a legislation
  • at least 65% of all population of EU

How are Commission decisions taken?

Are Advocates-General a useful institution?

  • yes
  • because they help the judges finding information and exploring different views

Does Article 352 TFEU make the principle of conferral obsolete?

Given the principle of proportionality, are directives always preferable to regulations?

  • no
  • regulations for specific and quick changes
  • directives for more general goals and natural changes

Why does the Council in some cases prefer TFEU provisions allowing it to adopt ‘non-legislative’ regulations or directives over TFEU provisions allowing it to adopt ‘legislative’ regulations or directives?

As for delegated regulations or directives, why must the essential elements of a policy area be reserved for the empowering legislative act?

  • empowering legislative act → secondary law
  • essential elements are placeholders
    • later defined by tertiary law by delegated act

The van Gend ruling may be perceived as a revolutionary act How did the CJEU justify its interpretation of the law?

Why would an EU tertiary law decision adopted by the Commission enjoy supremacy over Austrian constitutional law?

  • EU law is higher ranked than any national law
    • includes constitutional law as well
  • even though no statement of EU law being higher ranked than national law

The preliminary reference procedure has been described as the ‘infringement procedure of the European citizen’. Why would you agree or disagree?

  • to punish countries not implementing a directive correctly or at all
  • against national law in EU court

Chapter 8

How does an internal market differ from a free trade area and a customs union?

  • free trade → within specific region, different tariffs to third countries (non-members)
  • customs union → the tariffs between each member state is the same
  • internal market → not just products, goods, services, capital, payment

Who is empowered by the fundamental freedoms?

  • every person (natural and legal) of an EU member state

Who is limited by the fundamental freedoms?

  • member states (countries) together with public authorities
  • private companies
  • individuals (horizontal effects)

Who ensures compliance with the fundamental freedoms?

  • negative integration: CJEU and national courts

Why would indirectly discriminatory measures impair the operation of the internal market?

  • introducing restrictions which are designed to be more difficult to be met by imported options
    • giving unfair advantage to domestic options
  • e.g. language requirements with job descriptions

How can non-discriminatory measures impede the operations of the internal market?

  • e.g. product standards
  • must be equal to imported and domestic products alike
  • regulations may not be designs to favor domestic products

As for the free movement of goods, explain the relevance of customs duties, internal taxation, and quantitative restrictions

  • Customs Duties
    • Customs need to be collected when products enter the EU
    • Customs need to be equal, otherwise incentive to import with a few countries with lower fees than others
    • charges having an equivalent effect included (e.g. negative import taxes)
  • Internal Taxation
    • no difference between domestic/imported goods
    • would favor domestic products too much → no fair competition
    • taxation can happen on other factors (e.g. energy consumption)
  • Quantitative Restrictions
    • no limit on import volume
    • e.g. only 5.000 liters of wine per week may be imported
    • would again favor domestic products (no restrictions apply)

How has the trouble with the concept of ‘measures having an equivalent effect’ resulting from the Dassonville and Cassis de Dijon rulings been resolved in Keck and later, in case law?

According to the CJEU, under what conditions may the rules on the free movement of goods, free movement of workers and the freedom of establishment have a ‘horizontal direct effect’?

  • fundamental freedoms are applicable to individuals alike
  • individuals can be bound to be non-discriminatory as well
  • same counts for private companies compared to public service or official authorities

Under what conditions may other societal goals (to be pursued at Member State level) trump negative market integration processes (and hence market efficiency and economic welfare)?

  • exhaustive list of justification
    • protection of wildlife
    • protection of environment
    • protection of human health
    • etc

On what grounds can non-discriminatory restrictions on the free movement of services or the free movement of capital be justified?

  • non-exhaustive list of justification
    • protection of wildlife
    • protection of environment
    • protection of human health
    • etc

What is the relationship between the freedom of establishment and free movement of workers on the one hand, and the free movement of EU citizens (Article 21 TFEU) on the other hand?

  • establishment → founding a company in another member state
  • workers → working in another member state
    • one may found a company and work in said company in another member state
  • movement → travel and residing in another member state
    • one may also reside in another member state (especially for work)
    • longer than 3 months

Why is there a need for positive market integration when there is negative market integration?

  • encouraging self-reinforcing behavior
  • reduces micro-managing
  • less invasive/abrupt changes → more natural adaption

As a matter of principle, when will a harmonising measure have as its ‘object … the internal market’ (Article 114 TFEU)?

  • always
  • EU is obligated to remove dis-harmonizing measures within internal market

How can a directive prohibiting tobacco advertising in the Member States have as its ‘object … the internal market’ (Article 114 TFEU)?

  • protection of human health

Article 114 TFEU allows Member States derogations from harmonising measures on the grounds of, inter alia, the protection of health and life of animals and plants. Why is this problematic?

Chapter 9

What are fundamental rights?

What are the objectives of fundamental rights?

What are the differences between human rights and citizen’s rights?

What groups of fundamental and human rights are there?

  • Civil Liberties
  • Rights of Equality
  • Procedural Guarantees
  • Political Rights
  • Social Fundamental Rights
  • Fundamental Rights

What are the levels of protection from a European perspective?

  • regional international law (ECHR)
  • EU law
  • national constitutional law
  • ECHR → constitutional law rank
    • most important source in Austrian system
  • CFR → reservation of implementation
    • just federal law rank

Who monitors compliance with fundamental rights in Austria?

What is the European Convention on Human Rights (ECHR)?

Who are the obligated parties under the ECHR?

  • states which have signed the ECHR and their subsidiaries (authorities)
    • All EU member states + 20 more

Who are the beneficiaries under the ECHR?

  • all humans (whether nationals or not) within their jurisdiction
    • i.e. being within of the member countries borders
  • NGOs, legal persons, and groups of individuals alike

Who are the obligated parties under the Charter of Fundamental Rights of the European Union (CFR)?

  • only the EU itself
    • its authorities and institutions

Name the conditions under which the CFR may also be addressed to the Member States of the EU?

  • if country implements CFR law themselves, then they are addressed
  • regulation or implemented directives

What is the role of the so-called ‘principles’ in the CFR?

  • instructions for the Union and member states
  • how to interpret the other rulings
    • providing directions to follow
    • e.g. respecting cultural, ethnic, and linguistic diversity
  • CFR title 7

Do the rights protected under the CFR constitute a standard of review in proceedings before the Austrian Constitutional Court? State reasons for your answer

  • yes
  • landmark decision in 2012 decided it to be this way

Chapter 10

What are the three steps that must be observed when examining a potential violation of a fundamental right?

  • scope
    • personal or material rights
  • interference
    • whether the right has been violated
  • justification
    • whether the violation was justified

Does the ECHR provide for a special right to the protection of personal data?

  • (I amended personal data from the question in the book. I hope it was meant)
  • no specific data protection guarantee
    • there is a right to privacy, but not exactly regarding personal data

What does ‘informational self-determination’ in the context of the right to privacy and data protection under Art. 8 ECHR mean?

  • I can myself determine how much and which data of myself I disclose

How can an interference with the rights under Art. 8 para. 1 ECHR be justified? Name and explain the conditions

  • in accordance with the law
  • legitimate aims
    • national safety, prevention of crime, etc
  • necessary, in a democratic society
    • proportionality test

Describe the proportionality test employed by the European Court of Human Rights (ECtHR)

  • public interest balanced against the individuals interest
    • margin of appreciation

What does the term ‘margin of appreciation’ mean?

  • “punishing crime” might be a good reason for every measure, but cannot be blindly attributed to all measures
    • wiggle room
    • depends on
      • nature and seriousness of matters
      • gravity of the interference
  • each case has to be weighed individually

What is the material scope of the protection of property under Art. 1 of Protocol No. 1 to the ECHR?

  • peaceful enjoyment of property
  • protection against deprivation
  • control the use of property

Name the three types of interference with the right to property

  • deprivation of possession
    • you had something, now you don’t
  • control the use of property
    • you can’t build your house there (not Baugrund)
    • or
    • you have to sell your property, because we build a road here
  • other interference
    • denial of vehicle registration

What is the personal scope of the right to property?

  • who has the property?
  • natural or legal person

What are the defining characteristics of a ‘criminal charge’ for the purposes of Art. 6 ECHR?

  • Engel Criteria:
    • classification under domestic law
    • nature of an offense
    • nature and severity of penalty

What are the guarantees of Art. 6 ECHR?

  • right of access to a tribunal
  • procedural guarantees in a limited sense
    • right to fair hearing
    • equality of arms
  • length of proceedings → within reasonable time
  • public hearing (with exceptions)
    • decisions have to be made public
  • special procedural guarantees in criminal proceedings
    • informed promptly in a language you understand
    • adequate time and resources to prepare for the defense
    • defense in person or by lawyer
    • right to be present at hearing
    • right to free assistance of an interpreter
    • right to remain silent and not to incriminate yourself
    • presumption of innocence

What is a ‘tribunal’ within the meaning of Art. 6 ECHR?

  • decision making body which decide on basis of law
  • proceedings have to be conducted in specified manner
  • safeguards during the process
  • Tribunal organ must be able to
    • exercise judicial functions
    • take a decision binding to the parties
    • establish facts of case
    • apply legal provision to the facts
    • form decisions independently

What does the principle of ‘nulla poena sine lege’ in Art. 7 ECHR guarantee?

  • one cannot be convicted if there is no national or international law
  • one cannot be convicted for a law being established after the crime has been committed

The right to an effective remedy is an ancillary right. What does the term ‘ancillary right’ mean?

  • if my rights are infringed by the state I am entitled to a remedy which is
    • sufficient
    • accessible
    • adequate
    • being capable of remedying the infringed right

Is there a possibility for an individual to get direct access to the ECtHR in Strasbourg? State reasons for your answer

  • after all courts in Austria have been exhausted the ECtHR is the last last instance
    • above OGH in Austria
    • uses ECHR for reference
  • yes, if direct access means personal access (eventually)
  • no, if direct access means the first court which handles your case
  • collab what do you, fellow reader, think? yes or no?

Is there a possibility for an individual to get direct access to the CJEU in Luxemburg? State reasons for your answer

  • no, an Austrian Court goes to the CJEU for advice
    • uses CFR for reference
  • no direct access since Austrian Court acts as proxy
  • (preliminary reference procedure)

Chapter 11

Are you a subject of international law?

  • yes, I am a partial subject
  • primary subjects are states
  • my personality is recognized by the states to limited extent
    • if it was not recognized, it would not exist

→ extra explanation of partial

  • who recognizes you as an Austrian Citizen? The Austrian Government
  • who recognizes you as a Citizen of the World? Nobody
    • since there is no “World Government”

Why could one be surprised by the effectiveness of international law?

  • even though there is no “world executive” which can punish the actions of a state, international law is still quite effective
  • states can issue sanctions against one another
  • emergent behavior

Why is international law effective?

How can states consciously create new rules of international law?

  • basically, writing it down
  • conclude international treaties and conventions
  • explicit statement between countries
    • have to recognized by member countries
    • should be recognized by other countries
    • institutions should also recognize statements

Which principles limit states’ freedom to award their citizenship to individuals?

  • genuine link between individual and home country
  • most frequent links
    • decendentcy (same citizenship as your parents)
    • place of birth

What are the consequences of an established state government losing substantial control over the state’s territory?

  • failed state
  • remains a state due to security
    • hopes of state being just temporary

What are the consequences of one state declining to recognise another state?

  • countries do not into diplomatic relations
  • if lots of states do not recognize same state → base principle of a state is not fulfilled

  • derived → legal personality derived from member states

  • relative → can represent member states, but not in all manners

    • e.g. organization with environmental protection only covers environmental protection, nothing else. Similar to Principle of Conferral

  • even if the organization is not recognized one may still enter into diplomatic relations with the member states

    • e.g. a country does not recognize the EU it may still enter into relations with Austria (member of EU)

What are the tasks of the UN Security Council, and what hinders it from discharging them?

  • maintenance of international peace and security
    • has power of binding decisions
  • 15 nations in total
  • 5 permanent nations have power of veto over any decision
    • China
    • France
    • Russia
    • UK
    • USA

Compared to the CJEU, in what sense is the International Court of Justice’s jurisdiction weaker?

  • ICJ vs CJEU
  • as long as the CJEU recognizes the ICJ rulings as higher value it counts
  • even though the ICJ has “no value” in the sense that not every state has agreed to it’s power

Within the UN system of collective security, does the Security Council have the power to compel Member States to resort to certain non-military or military action?

  • yes, theoretically
  • authorizes the member states to apply military action on it’s behalf
  • UN is not in command of any army directly

A State’s enforcement jurisdiction is territorial in principle. Explain.

  • state can enforce laws only within it’s territory
  • extraterritorial jurisdiction
    • active personal principle: conviction for crime in foreign country by domestic court
    • objective territorial principle: even tho the convict is not in Austria the convict still infringes on Austrian laws
      • e.g. flying a RC drone into Schwechat Airport from another state
      • e.g. hacking an Austrian Company / Authority / Individual

Under what conditions may the EU be entitled, under international law, to adopt legislation so as to regulate economic activity taking place, for example, in China?

  • if economic activities within China are against fair competition in the EU
  • e.g. active cartels, corruption, infringement of Human Rights

Are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights legally binding?

  • Yes
    • ICCPR → International Covenant o Civil and Political Rights
    • and
    • ICESCR → International Covenant on Economic, Social and Cultural Rights
  • recommendations to states, how to do better
    • ICCPR protocol, create case with Human Rights Committee and ICJ if national measures are insufficient

What limits the jurisdictional powers of the International Criminal Court?

  • “core” crimes
    • genocide
    • war crimes
    • crimes against humanity
    • crime of aggression
  • ICC → International Criminal Court
    • commited on Rome Statute member states ground or by citizen of member
    • expction: cases brought up by UN Security Council
    • only steps in if national courts are not able or willing to act

Globalisation may raise concerns of democratic legitimacy. Explain.

  • sovereignty of individual states decreasing
  • increasingly governed by international treaties
  • international law done by governments, not parliaments → not democratic anymore, since no genuine legislative

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