Questions GLE - post Midterm - with GPT

Chapter 6

How is the Austrian Federal Constitution composed?

• Comprises several legal documents, main being the Federal Constitutional Act of 1920.
• Includes numerous constitutional acts and provisions, all explicitly defined as constitutional law.
• 9 Land constitutions exist, though less significant than the federal constitution.

What is meant by the concept of the ‘hierarchy of norms’?

• Developed by Adolf Julius Merkl, ensuring that each legal act is based on a superior legal act.
• The Constitution allows for the creation of ordinary laws, which then enable administrative authorities to issue ordinances and rulings.

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

• Include democratic, republican, federal, and liberal principles, along with the separation of powers and rule of law.
• “Total revision” of these principles requires a special legislative process and a referendum.

Although Austria is an indirect democracy, there are also elements of a direct democracy in the Austrian legal system. Explain

• Elements of direct democracy, like referendums and popular initiatives, are incorporated, especially for constitutional revisions or significant matters.

What are the electoral principles of Austrian law?

• Encompasses universal, equal, direct, personal, and secret suffrage.
• Free suffrage ensures no discrimination in canvassing.

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

• Ensures accountability, transparency, and protection against arbitrary power, requiring all state actions to be authorized by law.
• Supports democratic participation in law-making and enforces the rule of law.

What are the competences of the Federal President?

• Term of six years, re-electable once, acts as Commander-in-Chief, and represents Austria.
• Can dissolve the National Council and appoint or dismiss the Federal Chancellor and other government members.

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

• Possible due to an exception to the separation of powers, allowing multiple roles within the same branch of government.

Explain the legislative procedure in Austria

• Involves a proposal, adaptation by the National Council, and review by the Federal Council, with specific requirements for different types of laws.

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

• The Federal President can dismiss the government or Chancellor; individual ministers only upon the Chancellor’s recommendation.

How is the administrative court system organised?

• Three-tier system: district/regional courts, higher regional/administrative courts, and Supreme Courts.
• Focuses on legal compliance of public authority decisions.

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

• Ensures state acts comply with the Constitution and safeguards fundamental and human rights.
• Reviews general norms’ constitutionality and resolves federal-state competence conflicts.

Chapter 7

Does the EU have a constitution?

• The EU does not have a conventional single written constitution.
• Its constitutional framework consists of the TEU, TFEU, Treaties of Accession, the Charter of Fundamental Rights, and the Lisbon Treaty.
• These collectively act as the EU’s constitutional basis, akin to a constitution in function.

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

• The Council of Europe is separate from the EU, focusing on human rights and democracy across Europe.
• The European Council sets the EU’s political direction, with heads of state or government of EU countries.
• The Council of Ministers is an EU decision-making body, representing governments of member states.

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

• Introduced qualified majority voting in the Council and set the foundation for completing the internal market.
• Emphasized economic and political integration.

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

• The Lisbon Treaty reformed EU structures and processes, enhancing the roles of the European Parliament and European Council.
• It introduced new roles like the High Representative of the Union for Foreign Affairs and Security Policy.

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

• Criteria include stable democracy, rule of law, human rights, minority protection, and a functioning market economy.
• Alignment with EU standards including the adoption of the acquis communautaire.

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

• The ‘empty chair crisis’ in 1965 was due to France’s opposition to supranationalism.
• Resolved with the Luxembourg Compromise, allowing a member to veto decisions that it considers very important.

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?

• Specific rules are necessary to ensure that a minority of member states cannot be consistently overruled.
• The rules define the minimum number of countries or population percentage required to form a blocking minority.

How are Commission decisions taken?

• Decisions are typically made by consensus, or by a majority if a unanimous decision is not feasible.
• The Commission functions on the principle of collective responsibility.

Are Advocates-General a useful institution?

• They assist the European Court of Justice by presenting opinions on cases, enhancing the decision-making process.
• Their role aids in exploring different perspectives and legal arguments.

Does Article 352 TFEU make the principle of conferral obsolete?

• Article 352 TFEU allows the EU to act when action is necessary to achieve treaty objectives, but no specific power is granted.
• It does not make the principle of conferral obsolete but should be used sparingly and with unanimous Council agreement.

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

• Directives and regulations serve different purposes; directives allow for flexibility in implementation, while regulations provide uniformity.
• The choice depends on the specific context and the goal of the legislation.

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?

• Non-legislative acts can be adopted more swiftly and with fewer procedural requirements.
• They allow for quicker response to specific needs or situations.

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

• To ensure that fundamental policy decisions are made by democratically accountable institutions.
• Delegated acts should only cover non-essential, technical, or detailed aspects.

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

• The CJEU interpreted the law based on the fundamental objectives of the Treaty, particularly the establishment of a common market.
• It underscored the importance of EU law taking precedence over conflicting national laws.

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

• EU law takes precedence over national laws, including constitutional provisions, as part of the principles of primacy and direct effect.
• This ensures uniform application and effectiveness of EU law across all member states.

Chapter 8

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

• The internal market encompasses free movement of goods, services, capital, and people.
• A free trade area primarily focuses on trade in goods with few restrictions.
• A customs union involves a common external tariff on non-members, unlike a free trade area.

Who is empowered by the fundamental freedoms?

• Every citizen and legal entity of EU member states is empowered.
• Fundamental freedoms include goods, workers, establishment, services, capital, and payments.

Who is limited by the fundamental freedoms?

• EU member states and their authorities must integrate and respect fundamental freedoms.
• Also applies to private entities in certain contexts (horizontal effect).

Who ensures compliance with the fundamental freedoms?

• The European Commission, CJEU, and national courts ensure compliance.
• They enforce, interpret, and apply EU law in line with fundamental freedoms.

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

• They can create hidden barriers to trade, favoring domestic over foreign entities.
• Such measures may violate the principle of non-discrimination.

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

• Measures like product standards, although neutral, can create additional barriers for external goods.
• They can indirectly affect the free movement of goods and services.

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

• Customs duties and equivalent charges are prohibited to ensure a level playing field.
• Internal taxation must not discriminate against imported goods.
• Quantitative restrictions and measures with equivalent effect are generally forbidden.

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?

• Keck clarified that certain selling arrangements don’t fall under Article 34 TFEU if they apply non-discriminatorily.
• This approach balances market access with member states’ regulatory autonomy.

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’?

• Private entities must comply with EU law, ensuring non-discrimination in commercial and employment practices.
• This extends fundamental freedoms’ impact to relationships between private parties.

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)?

• Justifications include public morality, policy, security, health, and environmental protection.
• Member States can intervene if these goals align with EU principles and proportionality.

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

• Grounds include public policy, security, health, consumer and environmental protection.
• Justifications must align with EU principles and not unduly restrict freedoms.

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?

• These freedoms are interconnected, enabling EU citizens to live, work, and establish businesses across member states.
• Article 21 TFEU extends this right to all citizens, irrespective of economic activity.

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

• Positive integration establishes legal frameworks and harmonizes standards, complementing negative integration.
• It helps remove and prevent barriers, fostering a cohesive internal market.

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

• When it aims to improve, integrate, and ensure the functioning of the internal market.
• Includes removing barriers and promoting uniformity for seamless market operation.

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

• It addresses public health concerns while ensuring consistency in market regulations across member states.
• Balances health protection with the functioning of the internal market.

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?

• Derogations can create discrepancies in the internal market, potentially undermining harmonization efforts.
• It raises concerns about balancing member states’ interests with the integrity of the EU market.

Chapter 9

What are fundamental rights?

• Fundamental rights are subjective rights granted at constitutional, European, or international levels.
• They are enforceable in constitutional and international procedures and provide ‘freedom from the state’.

What are the objectives of fundamental rights?

• To protect individuals against arbitrary actions by public authorities.
• They serve as essential safeguards for individual liberties and democratic principles.

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

• Human rights are universal rights granted to everyone, irrespective of nationality.
• Citizens’ rights are specific to nationals of a particular state.

What groups of fundamental and human rights are there?

• Civil liberties: guarantee individual freedoms.
• Rights of equality: prevent discrimination.
• Procedural guarantees: enforce rights.
• Political rights: include voting and petition rights.
• Social fundamental rights: rights to work, housing, etc. (not enshrined in Austrian Constitution).

What are the levels of protection from a European perspective?

• National constitutional law.
• EU law.
• Regional international law, notably the ECHR.

What are the legal documents providing for fundamental rights protection in Austria, apart from the Federal Constitutional Act itself?

• Basic Law on the General Rights of Nationals of 1867.
• ECHR and its Protocols, all having constitutional rank.

Name the Human Rights Treaties that are considered part of the Austrian legal system.

• ECHR.
• Convention on the Elimination of All Forms of Racial Discrimination (CERD).
• Convention on the Rights of the Child (CRC).
• International Covenant on Civil and Political Rights (ICCPR).

Who monitors compliance with fundamental rights in Austria?

• Austrian Constitutional Court and ECtHR.

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

• A treaty making certain rights from the Universal Declaration of Human Rights of 1948 binding.
• Established the ECtHR in Strasbourg, accessible by individuals, NGOs, or groups.

Who are the obligated parties under the ECHR?

• Contracting Parties (States) are the obliged parties.

Who are the beneficiaries under the ECHR?

• Persons within the jurisdiction of the Contracting Parties.

Under what conditions may legal persons rely on fundamental rights protected under the ECHR?

• Protected as long as they are not closely related to the state.
• Legal entities exercising public authority may qualify for protection if sufficiently independent from the government.

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

• Member States are obligated to respect human rights provided by the Convention.

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

• CFR rights apply to Member States when they implement Union law.
• Includes direct implementation of EU legislation and domestic law implementation of directives.

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

• Serve as instructions for the EU legislature and Member States.
• Implemented by legislative and executive acts by EU institutions and by Member States when implementing EU law.

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, the rights protected by the CFR are used as a standard of review in Austrian Constitutional Court proceedings.

Chapter 10

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

• Determine the personal and material scope of the right.
• Investigate whether there was an interference with the right.
• Assess if the interference was justified; if not, a violation has occurred.

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

• No specific right for data protection in ECHR; however, CFR implements such rights.
• Rights include respect for private life, family life, home, and correspondence.

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

• The right to control the disclosure and use of one’s personal data.
• Protects individual autonomy and the development of one’s personality in social contexts.

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

• Interferences must be in accordance with the law, pursuing legitimate aims like national security, public safety, economic well-being, prevention of disorder or crime, health or morals, and protecting rights and freedoms of others.
• Must be necessary in a democratic society, balancing individual interests and community/public interest.

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

• The test involves examining the necessity of an interference concerning a legitimate aim.
• Balances the public interest against the individual’s rights and interests.

What does the term ‘margin of appreciation’ mean?

• Refers to the leeway granted to states in interpreting and implementing human rights, acknowledging legal, cultural, and historical differences.
• Emphasizes a balance between state interests and individual rights protection, with the scope varying per case.

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

• Includes various forms of property rights, tangible and intangible: land, possessions, investments, intellectual property, and contractual rights.

Name the three types of interference with the right to property.

• Deprivation of possessions.
• Control of the use of property.
• Other interferences with the right to property.

What is the personal scope of the right to property?

• Applies to all natural and legal entities.

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, and nature/severity of a penalty.

What are the guarantees of Art. 6 ECHR?

• Right of access to a tribunal, fair hearing, reasonable length of proceedings, public hearing, and special guarantees in criminal proceedings.

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

• An independent and impartial decision-making body established by law.

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

• No punishment without law; no criminal charges for acts not criminalized at the time of commission.

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

• A secondary right supporting a primary right, enhancing or protecting its exercise.

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

• Yes, after exhausting domestic remedies, individuals can access the ECtHR in Strasbourg.

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

• No direct access for individuals; national courts can refer questions to the CJEU.

Chapter 11

Are you a subject of international law?

• As an individual, you have partial subjectivity in international law, primarily through human rights protections.

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

• Despite the lack of a global executive authority to enforce it, international law often functions effectively through mutual state cooperation and compliance.

Why is international law effective?

• States usually comply with international law due to mutual benefits, diplomatic relations, and the desire to maintain a stable international order.

How can states consciously create new rules of international law?

• States create international law through treaties, conventions, and sometimes through customary practices recognized as legally binding.

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

• The principle of a genuine link, such as birthplace or parentage, is required for citizenship to prevent abuse of diplomatic protections and rights.

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

• The state might be deemed a ‘failed state’, impacting its international relations and legal obligations.

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

• It leads to a lack of diplomatic relations and possibly impacts the non-recognizing state’s international obligations towards the unrecognized entity.

International Organisations enjoy an international legal personality status which is partially derived and relative. Explain.

• Such organizations get their legal status from member states and have limited capacity based on their functions and objectives.

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

• Responsible for maintaining international peace and security, but its effectiveness can be hindered by the veto power of permanent members.

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

• ICJ’s decisions depend on state consent for jurisdiction and enforcement, whereas the CJEU has direct effect and supremacy within the EU legal order.

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?

• Theoretically, yes, but such actions require consensus among permanent members, often impeded by their veto power.

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

• A state’s legal authority generally extends only within its territorial boundaries, with certain exceptions for extraterritorial jurisdiction under specific conditions.

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?

• The EU can regulate external economic activities affecting its internal market or common policies under international law principles and agreements.

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

• Yes, these covenants are legally binding for states that have ratified them, committing to uphold the rights enshrined therein.

What limits the jurisdictional powers of the International Criminal Court?

• The ICC’s jurisdiction is limited to crimes listed in the Rome Statute and cases where states consent to its jurisdiction or are referred by the UN Security Council.

Globalisation may raise concerns of democratic legitimacy. Explain.

• Globalisation can impact local governance and decision-making, leading to concerns about the democratic accountability of transnational and supranational entities.