King’s College London
3 Experts
6 Contributions by King’s College London Experts
PRACTICE NOTES
In brief
Settled case law makes clear that only the Court of Justice of the European Union has authority to declare an EU act invalid. Under the Treaty on the Functioning of the European Union (TFEU), the validity of an EU Directive can be contested in several ways:
by filing a direct action for annulment before the Court of Justice under Article 263 TFEU;
by challenging the Directive’s validity indirectly in proceedings before a national court. Such proceedings are aimed at the national measures used to transpose the Directive, and the national court may request the Court of Justice to examine the Directive’s validity via the preliminary reference route in Article 267 TFEU;
by invoking a collateral challenge under Article 277 TFEU (plea of illegality) attached to a principal direct action brought under Article 263
EU Law
PRACTICE NOTES
The first iteration of this note was prepared by the late Professor Alexander Türk.
The limits of EU competences
The scope of EU competences is defined by the principle of conferral (also called the principle of attributed powers). This principle safeguards against the Union stretching its authority beyond what the Treaties grant. As set out in Article 5(2) of the Treaty on European Union, the Union acts solely within competences bestowed on it by the Member States to achieve the Treaties’ objectives, while competences not granted to the EU remain with the Member States.
A further facet of conferral concerns the division of competences among the EU institutions. Article 13(2) TEU provides that each institution operates only within the powers the Treaties confer upon it.
The fact that the EU holds the capacity to intervene in a given field does not confer general law‑making power on its
EU Law
PRACTICE NOTES
EU workers and EU citizens benefit from freedom of movement. This entitlement is set out for workers in Article 45 of the Treaty on the Functioning of the European Union (TFEU) and for citizens in Article 21 TFEU. Detailed rules on the conditions and limits appear in Directive 2004/38/EC. They may move to and live in other Member States without discrimination, and any curb on this right must pursue a public interest and be proportionate to the restriction applied.
Free movement of workers
Article 45 TFEU allows EU workers to circulate across the Union. It outlaws discrimination based on nationality in respect of employment and working conditions, including remuneration.
Scope of the protection
Personal scope
The Court of Justice of the European Union retains the authority to determine which persons fall within Article 45 TFEU, as the Treaty’s objectives could be undermined if national law could set and change such
EU Law
PRACTICE NOTES
In brief
The free movement of goods, the freedom to provide services, the freedom of establishment, and the free movement of capital (collectively, the ‘four freedoms’) operate as constraints imposed by the EU Treaties upon EU Member States to secure the overall functioning of the EU Internal Market. This variety of negative integration has clear limits. Most domestic restrictions falling within the reach of the four freedoms can, however, be justified, provided such restrictions are proportionate. While the Court of Justice has assumed a particularly important and significant role in interpreting the four freedoms (and their limits), any remaining national barriers can ultimately only ever be removed through harmonisation measures enacted by the EU (‘positive’ integration). For further reading on this, see Practice Note: Harmonisation. This Practice Note examines the four freedoms underpinning the EU Internal Market in greater
EU Law
PRACTICE NOTES
This note’s initial iteration was authored by the late Professor Alexander Türk.
Definition of proportionality
Under the principle of proportionality, action taken by the EU and by member states must not extend beyond what is strictly necessary to secure the objectives sought, and should be confined to measures needed to achieve those aims. The Court of Justice of the European Union has affirmed proportionality as a general principle of EU law. The court’s test for reviewing a measure’s proportionality stems from continental law, with particular roots in the German legal tradition.
Use of the principle of proportionality against EU member states
The principle of proportionality can be invoked against member states when they act within the scope of EU law, notably where they restrict the free movement rights conferred by EU law. For background reading, see Practice Note: The four
EU Law
PRACTICE NOTES
Loss settlement clauses
Reinsurance agreements can be set up on a proportional or a non‑proportional basis, and loss settlement clauses appear across both structures. Their core role is to capture the parties’ consensus on how the reinsured can evidence its loss when seeking to recover under the reinsurance. It documents the evidential route and threshold to be followed in presenting any reinsurance claim, where applicable by the reinsured party. Where the reinsurer has adequate confidence in its cedant’s handling of inwards claims, the usual aim is to ease the reinsured’s evidential burden that would otherwise arise at common law, and to reduce the need for reinsurers to re‑examine the underlying claims. Certain loss settlement provisions also include express safeguards or provisos to prevent the reinsurer’s bargain being defeated by binding settlements that fall outside the granted cover. Wording dealing with loss
Insurance & Reinsurance
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