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43 Cards in this Set
- Front
- Back
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Rule of Law Foundations |
Art 2 - TEU Les Verts |
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Infringement Proceedings - controlling MS |
Controls legality of MS action Commission brings claim - Art 258 TFEU |
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Infringement Finding - Controlling MS |
Art 260 TFEU Duty to comply Financial penalties |
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Annulment Proceedings - Controlling EU |
263 TFEU - culpable action 265 TFEU - culpable omission |
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Annulment Admissibility - Controlling EU |
limited to: acts intended to produce legal effects 2 months delay standing |
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Standing |
Quasi-automatic for Member States and Unioninstitutions Stringent conditions for natural and legal persons criticisms of Court’s caselaw as excessivelyrestrictive |
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Grounds for 263 TFEU Review - Annulment |
Lack of competence Infringement of an essential procedural requirement Misuse of powers Infringement of the Treaty or of any rule relating toits application |
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Action in Damages - Controlling EU |
340 TFEU: Union non-contractually liable fordamage that its Union or employees cause 268 TFEU: jurisdiction of CJEU for noncontractualliability Liability determined in accordance with “generalprinciples common to the laws of the Member States” |
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Van Gend en Loos |
EU law is a “new legal order" binding individuals and states EU law can therefore confer rights on individuals Those rights can be directly invoked in the nationalcourts – national courts must protect those rights |
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Costa v ENEL |
Affirms principle of supremacy of EU law Supremacy as corollary of direct effect |
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PRELIMINARY RULINGS - 267 TFEU |
ensures uniformity of interpretation andapplication of EU law by national courts allows a national court to refer a question ofinterpretation of EU law to the CJEU decision to refer is with national court |
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Preliminary Ruling Contd - 267 TFEU |
discretionary power to refer - 267 (2) highest court in land has duty to refer - 267 (3) Acte clair - no duty to refer where matter is clear |
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Van Gend en Loos conditions for DE |
clear unconditional negative obligation |
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partial DE meanings |
select provisions of larger instrument DE in some situations and not others DE upto a threshold |
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DE clearly applicable for: |
Treaties regulations Decisions International Agreements
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Directives problem |
288 TFEU: “A directive shall be binding, as to the resultto be achieved, upon each Member State to which it isaddressed, but shall leave to the national authorities thechoice of form and methods.” directives are conditional on implementationby MS – do not appear suitable for direct effect But non-implementation of directives is a serious problem |
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Van Duyn - principle |
Directives are capable of direct effect. Van Gend en Loos conditions applied: the provision must be clear, precise, and unconditional. |
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Van Duyn - reasoning |
Incompatible with the binding effect of directives forthem not to have direct effect "useful effect” of directives would be weakenedwithout direct effect Article 267 TFEU implies reliance on directives innational courts |
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Deadline for Directives |
MS must implement a directive by adeadline specified in the directive no direct effect prior to deadline - Ratti Prior to deadline, MS must “refrain fromtaking any measures liable seriously to compromise theresult prescribed” - Inter‐EnvironnementWallonie |
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HDE and VDE for all rules except directives |
both HDE and VDE for all except directives |
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No HDE for Directives |
Directives bind MS only (Art 288),ergo no horizontal direct effect - Marshall Faccini Dori reiterates Marshall + ‘rule of law’argument |
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VDE - meaning of state |
All branches of the state and all public bodies at every level - Fratelli Costanzo does not matter in which capacity theauthority acts, as long as it is a public body - Marshall All “emanations of the state” - Foster v British Gas |
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Emanation of State - Foster |
fact that the entity is regarded in national law as aprivate law entity (eg: limited company) is not conclusive - the criteria (flexible application) are: Origin of the body: created by the state, by statute? Activities of the body: public service? Degree of control exercised by the state Powers typical of public authorities rather than private bodies |
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General principles and nationalimplementation of EU law - HDE - Mangold |
MS bound by general principles when implementing EULaw Measures adopted by MS when implementing Union lawmust be set aside if they conflict with EU law, even if this results in obligations on individuals Mangold: measure implementing a directive relating tofixed term contracts of employment disapplied because of a conflictwith a general principle of Union law , viz. principle of nondiscriminationon grounds of age Applicable only when MS is acting within scope of Union law |
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unimplemented directives |
Matters covered by a directive are, after the deadline forimplementation of a directive within the scope of EU law - Kücükdeveci but not before the deadline - Bartsch National measures falling within the field of a directive can thereforebe set aside if incompatible with a general principle of law after thedeadline for implementation of the directive (Kücükdeveci) but notbefore (Bartsch) unless they already fall within the scope of Union lawanyway (Mangold) Directives elaborating on a general principle of law can be used asan aid to interpret the implications of the principle before the expiryof the implementation period (Mangold, Kücükdeveci) |
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Mangold caselaw |
gives direct effect to a directive where: The implementation period has not expired yet The dispute was between private parties (horizontal situation) However: Mangold caselaw not concerned with direct effectof directives |
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Mangold caselaw contd. |
questionable on two grounds: Transforms general principles of law from instruments that bindMember States (in certain circumstances) to instruments that bindindividuals The use of directives (or, for that matter, other secondarylegislation) to flesh out general principles of law leads to a defacto bypassing of the limitations on their direct effect |
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Limitations of DE |
direct effect is not always possible: Conditions of direct effect not fulfilled No horizontal direct effect of directives Direct effect does not address the potential problem ofeffective remedies |
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Harmonious Interpretation |
Developed in Von Colson National law (rather than EU law) is applied to facts of thedispute: no direct effect However: national law interpreted in the light of the directive (or,where relevant, other provisions of EU law): indirect reliance onEU law (“indirect effect”) |
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Harmonious Interpretation Rationale |
Obligation on MS under Art 288 TFEU togive effect to the objectives of directives Obligation on MS under Art 4(3) TEU to takeall appropriate measures, “whether general orparticular”, to ensure fulfillment of their EU Lawobligations including obligations under Art 288 TFEU National courts, as branches of the State, bound by thoseduties within their own functions |
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Source of Harmonious Interpretation |
Not limited to measures adopted to implement a directive - Marleasing Can apply to legislation that predates the directive - Marleasing Not limited to interpretation of legislation specifically:national courts must consider whether national law as awhole can be read in a way that would give effect to therelevant directive (or other provision of EU Law) - Pfeiffer |
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Limits of Harmonious Interpretation |
No contra legem interpretation: there must be room forinterpretation - “as far as possible” - Marleasing & Von Colson No harmonious interpretation which would result increating of aggravating criminal liability - Kolpinghuis Nijmegen |
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When Does HI duty arise |
from expiry of implementationperiod - Centrosteel Prior to deadline, courts must,from entry into force of the directive refrain frominterpreting national law “in a manner which might seriouslycompromise, after the period for transposition has expired,attainment of the objective pursued by that directive.” - Adeneler |
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State liability as an answer to two problems |
Addressing a remaining gap in the caselaw of theCJEU on enforcement where neither direct effect norindirect effect allow for a solution Addressing the problem of a lack of an effectiveremedy in certain situations even where direct effect isavailable |
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Problem of effective remedies in thenational courts |
Initial position of the CJEU: remedies before national courtsare a matter for national law: principle of “proceduralautonomy Remedies for enforcement of EU Law are the same as thoseavailable for similar actions of a purely domestic character 2 caveats/limitations: Principle of equivalence Principle of effectiveness |
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State liability as an inherent remedy in thesystem of the Treaty |
Francovich: for directive without DE Individuals should have aremedy when their EU law rights are infringed by afailure of the MS to implement a directive Reparation for losses caused to individuals “inherent inthe scheme of the Treaty” so as to “nullify” the unlawfulconsequences of the breach of EU law |
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Francovich conditions for state liability |
Directive entails a grant of rights to individuals Contents of the rights must be ascertainable from theDirective Causation between breach of the MS obligation toimplement the directive and the damage suffered by theindividual |
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Widening the scope of liability:Factortame/Brasserie du Pecheur |
Entitlement to compensation applies to all breaches ofEU law that cause damage, not just non-implementationof directives State liability not limited to situations where there is nodirect effect Need to reformulate the test to take into account thiswider scope |
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New conditions for state liability under Factortame/Brasserie du Pêcheur |
EU rule infringed must entail a grant of rights to individuals The breach must be sufficiently serious Causation between breach of the MS obligation and thedamage suffered by the individual Test similar to Francovich except for second condition Dillenkofer: total failureof implementation of a directive is automatically asufficiently serious breach |
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Factors to evaluate seriousnessof the breach |
Clarity/precision of the measure Degree of discretion enjoyed by the MS Whether the breach is intentional/voluntary or not Whether based on an excusable error of law or not Whether the position of the EU institutions havecontributed to the existence or persistence of the breach Whether the breach persisted after a judgment of theCJEU esatblishing the existence of the breach |
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syntheticapproach for serious breach |
Brasserie du Pêcheur/Factortame: manifest and gravedisregard by the Member State of the limits of itsdiscretion At heart: is the breach based on an honest andunderstandable mistake or did the MS know (or shouldhave known) that there was a breach? Compare C-5/94 Hedley Lomas and C-392/93, ex parte BT |
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Meaning of state for state liability purposes |
Identical to concept of state for centralisedenforcement or for vertical direct effect purposes:covers all branches of the state at all levels therefore includes courts (cf Köbler) but peculiarity ofjudicial function SL will be exceptional (Köbler; TDM) |
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Liability of private parties |
Rationale for liability in Francovich and Brasserie duPêcheur/Factortame equally applicable when thebreach results from a failure by a private party tocomply with its EU law obligations Confirmed in Courage v Crehan concerning a breach ofEU competition law by a private party |
