National Identity as a General Principle of EU Law and Its Impact on the Obligation to Recover State Aid

2016 ◽  
Author(s):  
Marek Rzotkiewicz
Keyword(s):  
National Identity ◽  
General Principle ◽  
State Aid ◽  
Eu Law

scholarly journals National Identity as a General Principle of EU Law and its Impact on the Obligation to Recover State Aid

2016 ◽  
Vol 9 (13) ◽  
pp. 43-60
Author(s):  
Marek Rzotkiewicz
Keyword(s):  
National Identity ◽  
Member State ◽  
National Security ◽  
General Principle ◽  
State Aid ◽  
Eu Law ◽  
Law And Order ◽  
Territorial Integrity ◽  
Important State ◽  
State Functions

Unlike other general principles of EU law, which derive from the CJ jurisprudence, the principle of national identity is based on a clear legal provision. Article 4(2) TEU stipulates that the Union shall respect important State functions, like the territorial integrity of the State, maintaining law and order and safeguarding national security. The list of values covered by the national principle identity is open and it is for the Member State to decide what values should be protected by its national identity, while the CJ is only empowered to determine the relevance of national identity under EU law. This article analyses if the principle of national identity could influence the EC examination of State aid and if the EC should refrain from issuing an order to recover incompatible aid, if that aid was to be protected by the Member State’s national identity. There has not yet been a single judgment by the CJ on that issue and the question stays open. The analysis also focuses on the division of competences between Member States and EU institutions in carrying out that analysis, as well as on the requirements for that analysis, including the scope of an examination carried out by EU institutions.

scholarly journals Compatibility of the State Aid Recovery Order with the General Principles of EU Law

2017 ◽  
Vol 5 (1) ◽  
pp. 73
Author(s):  
Marek Rzotkiewicz
Keyword(s):  
Member State ◽  
General Principle ◽  
Case Law ◽  
State Aid ◽  
The State ◽  
Current Paper ◽  
Eu Law ◽  
Eu Legislation ◽  
Court Of Justice ◽  
The Eu

According to the Article 16.1 of Regulation 2015/1589 the Commission shall not require recovery of the aid if this would be contrary to a general principle of EU law. The potential existence of such a contradiction can be then of un utmost significance to a Member State and aid beneficiaries. However, notwithstanding its significance, the notion of a general principle of EU law has not been defined in the EU legislation, has been derived from the case law of the Court of Justice. The current paper strives to analyze different sorts of general principles of the EU law and their impact on the recovery obligation, especially as such an obligation differs between particular principles. Some of those principles have no significance at all on the existence of the recovery order, while others can, and sometimes even should, bar the Commission from ordering a Member State to recover an aid.

Enhanced Cooperation and European Tax Law

2021 ◽  
Author(s):  
Caroline Heber
Keyword(s):  
Member State ◽  
Internal Market ◽  
State Aid ◽  
Entire Group ◽  
Eu Law ◽  
Negative Effects ◽  
Member States ◽  
State Laws ◽  
Cooperation Mechanism ◽  
The Law

The enhanced cooperation mechanism allows at least nine Member States to introduce secondary EU law which is only binding among these Member States. From an internal market perspective, enhanced cooperation laws are unique as they lie somewhere between unilateral Member State laws and uniform EU law. The law creates harmonisation and coordination between the participating Member States, but it may introduce trade obstacles in relation to non-participating Member States. This book reveals that the enhanced cooperation mechanism allows Member States to protect their harmonised values and coordination endeavours against market efficiency. Values which may not be able to justify single Member State’s trade obstacles may outweigh pure internal market needs if an entire group of Member States finds these value worthy of protection. However, protection of the harmonised values can never go as far as shielding participating Member States from the negative effects of enhanced cooperation laws. The hybrid nature of enhanced cooperation laws—their nexus between the law of a single Member State and secondary EU law—also demands that these laws comply with state aid law. This book shows how the European state aid law provisions should be applied to enhanced cooperation laws. Furthermore, the book also develops a sophisticated approach to the limits non-participating Member States face in ensuring that their actions do not impede the implementation of enhanced cooperation between the participating Member States.

scholarly journals The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

2020 ◽  
Vol 13 (2) ◽  
pp. 55-86
Author(s):  
Luis Arroyo Jiménez ◽  
Gabriel Doménech Pascual
Keyword(s):  
Decision Making ◽  
General Principle ◽  
Legal Status ◽  
Case Law ◽  
Administrative Law ◽  
Status Quo ◽  
Eu Law ◽  
National Legislation ◽  
Legitimate Expectations ◽  
The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

scholarly journals General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Constanze Semmelmann
Keyword(s):  
Natural Law ◽  
General Principle ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Eu Law ◽  
Conceptual Clarification

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology  towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

scholarly journals National and Constitutional Identity in the Case Law of the Court of Justice of the European Union

2017 ◽  
Vol 1 (2) ◽  
pp. 6-27
Author(s):  
Ondrej Hamuľák ◽  
David Kopal ◽  
Tanel Kerikmäe
Keyword(s):  
European Union ◽  
National Identity ◽  
Main Part ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Introductory Part ◽  
Before And After ◽  
Constitutional Identity

The aim of this paper is to determine the position of the CJEU towards the national identity with regard to its case law and whether the Court gives preference to the national identity or to the primacy of EU law during the balancing between the constitutional principles and the interests of member states with EU law. The introductory part of the paper addresses the insertion and the development of the national identity clause in the primary law. Its main part consists of analysis of the case law of the CJEU, as well as of the opinions of Advocates General, in the period before and after the adoption of the Treaty of Lisbon.

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