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51 Cards in this Set

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An example of direct effect of EU law, the supremacy of EU law and the creation of a 'new legal order'- LANDMARK CASE.
Van Gend En Loos [1963]
What happened in Van Gend en Loos?
-VGEL was charged an import duty on chemicals imported from Germany by the Dutch Authorities, which it considered to be a breach of Art 30 TFEU which prohibits customs duties being placed on the movement of goods between member states.

-The ECJ had to decide whether private party could rely on EU law in their national courts (the idea of direct effect) and the answer was yes.

"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights."- The supranational nature of EU law means that it exists over and above national legal orders.
Which case displays the use of implied competences of the EU, and what happened?
ERASMUS
-The Commission challenged that the Council has no competence to set up the Erasmus scheme.
-Article 128 of the EC treaty spelled put the aim, but did not state how it was to be achieved.
-The court held that the competence could be implied from the act, and therefore the Council had not acted outside of it's powers.
Which are the leading cases on legal bases?
Working Time Directive Case [1996]

Tobacco Advertising Case [2000]
What happened in the Working Time Directive Case?
-A directive was implemented which concerned the health and safety of workers, and the number of hours they were allowed to work
-It was adopted under a social policy legal basis, and the UK argued that it should have been under an internal market legal basis.
-An internal market legal basis would have required unanimity rather than QMV, and this would have given the UK the ability to veto the directive.
-The ECJ held that the correct legal basis had been used, and the UK's application was dismissed.
What happened in the Tobacco Advertising Case?
-A directive concerning advertising and sponsorship on tobacco products in national laws was adopted.
-The EU tried to stress the internal market basis, whereas Germany contended that it was really a matter of public health, so an internal market legal base was inappropriate.
-The ECJ agreed with Germany, that it had been adopted under the incorrect legal basis, and the directive was struck down.
What are the leading cases on Subsidiarity and Proportionality?
Biotechnology Directive Case [2001]

Deposit Guarantee Directive [1997]
What happened in the Biotechnology directive case?
-A directive was adopted whose purpose was to require Member States to protect biotechnological inventions whilst complying with international obligations- determined which inventions may/may not be patented.
-The applicant argued that the directive breached the principle of subsidiarity as it concerned individual member states.
-he court held that the principle of subsidiarity was not breached as the scope of the protection had immediate effects on trade and accordingly, intra-community trade, which it is clear could be better achieved by the Community so that there was a universal standard of application.

-Therefore, the principle of subsidiarity was not breached.
What happened in the Deposit Guarantee Directive Case?
-The German government argued that in order to be in compliance with the principle of subsidiarity, a directive must explain how it was compatible with the principle, and therefore the directive in question was invalid.

-The ECJ held that an express reference to the principle of subsidiarity was not required for it to be in conformity. Therefore the directive was valid.

Conversely, AG Leger stated that 'the importance of the principle meant that it would not be excessive to expect the institutions, in the future, to systematically state reasons for their decision in view of subsidiarity. Therefore all measures adopted should state implicitly or explicitly on what basis the authority is acting.
Which case sets out the requirements for 'Individual Concern' for non-privileged judicial review?
Plaumann [1963]
What happened in the Plaumann Case?
-The German authorities wished to suspend customs duties on the importation of clementines, but the Commission refused to authorise it.
-The applicant, a clementine importer sought Judicial Review of the decision.
-The ECJ ruled that the applicant lacked 'individual concern' as the decision was addressed to the German authorities so it had to be shown that the decision affected him by reason of particular attributes or circumstances which made him different for all other persons.
-As the importation of clementines could, in theory, be practised by anyone, anyone could become a clementine importer in the future.
-Therefore he did not have individual concern and his application for judicial review failed.
Which case shows that applicants must have a 'legal entitlement' affected by the measure in order to seek judicial review, rather than any other interest?
Front National v European Parliament [2004]
What happened in the Front National v European Parliament?
-The Front National was not allowed to form a 'groupe mixte' within the European Parliament for independent MPs who belonged to no group, so suffered some disadvantages.
-The court held that they did not satisfy the requirement of 'direct concern' as it was not a legal entitlement that was being infringed- they had no LEGAL RIGHT to from a group.

-Therefore they did no have sufficient standing to bring an action of judicial review.
Which case concerns the effectiveness of the Plaumann test?
UPA [2002]
What happened in this case?
-UPA argued that dismissal of it's application for judicial review infringed the 'right to effective judicial protection.'
-The ECJ reinforced the application of the Plaumann test, stating that it would only grant standing for judicial review on the basis of 'direct and individual concern,' which UPA did not have.
-Therefore, they were unable to bring an action in judicial review.
What was the opinion of Advocate-General Jacobs on the application of the Plaumann test in UPA?
-He robustly criticised the Plaumann test as too restrictive.
-The requirement of 'individual concern' means that the more poeple that are affected by a decision, the less likely it will be that judicial review ill be made available.

-He argued that a persons should be found to have 'individual concern' where the measure has or is likely to have a substantial adverse affect on his interests.- This would increase judicial protection, laying down a more generous test for finding than an individual had standing

HOWEVER, THE COURT DID NOT FOLLOW HIS ADVICE.
Which cases display judicial review based on an infringement of essential procedural requirements?
Germany v Commission (Tariff quotas on wine)

Commission v Council (generalised tariff preferences)
What happened in Germany v Commission (tariff quotas in wine)?
-The Commission issued a decision which did not allow Germany to import a certain type of wine to be blended with grapes, as there was already sufficient production of the relevant wines in the EU.
-Germany challenged the decision, arguing that the reasoning given was too vague- art 296 TFEU requires reasons to be given.

Therefore the Commission's decision was annulled.
What happened in Commission v Council (generalised tariff preferences)?
-The Commission challenged 2 regulations adopted by the Council, on the grounds that they hadn't shown which legal basis they were acting on.
-The Commission won- it must be stated which legal base is being used in order to be valid.
Which case displays the courts stance on misuse of power and the grounds for judicial review?
Tetra Laval [2005]
What happened in Tetra Laval?
-The commission did not allow a merger between Tetra Laval (world-leader for packaging) and Sidel, on the grounds that Tetra Laval would use it's dominant position to persuade it's customers switching to PET to use Sidel's goods, thus eliminating competition.
-The general court found that he commission had committed a manifest error of judgement in using reports that overestimated Tetra's possibility for leverage and growth in the PET market.

-The commission appealed to the ECJ who dismissed the appeal, stating that any measure must be sufficiently substantiated by the evidence provided, and the evidence must be accurate, reliable and sufficiently complete.
Which case displays the use of 'formal notice' to a member state, of an infringement of EU law?
Commission v Denmark [1982]
What happened in Commission v Denmark?
-The Danish government claimed that they had not been given sufficient formal notice, as the letter merely noted Denmark's failure to act, and did not set out steps to remedy the breach.
-Under art 258 TFEU, formal notice is an essential requirement as the state concerned cannot submit it's observations without it.
Which case displays the discretion of the commission regarding infringement proceedings, and what happened?
Star Fruit Case
-A Belgian banana trader complained of prejudice by the french banana market contrary to EU law.
-The commission did not launch infringement proceedings, and Start Fruit sought to take the Commission to court for failure to act.
-The Court held that the action was inadmissible- individual applicants could not force the Commission to launch infringement proceedings- they have overall discretion.
What case concerns the imposition of sanctions (art 260 TFEU) after successful infringement proceedings? and what happened?
Commission v France (Non- compliance with judgement) [2005]

-It was held by the court that a lump sum AND penalty payment could b enforced simultaneously. The lump sum to punish the state for infringement of the law, and the penalty payment to encourage compliance as quickly as possible.
What is the significance of Costa v ENEL [1964]?
-Costa clarifies the SUPREMACY OF EU LAW.
- An Italian law sought to nationalise the electricity production and distribution industries, which Costa claimed breached EU law.
-The Italian Government claimed that the matter was one of Italian law as the legislation post-dated the EC treaty.
-The ECJ held that in ascending to the EU, the member states had 'limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both nationals and themselves.'
-he obligations are 'unconditional' and the limitation of sovereign rights is 'permanent.'
-Law stemming from the treaty is 'of a special origin and nature' and is thus supreme.
What is the significance of Internationale Handelsgeshellschaft [1970]?
Internatioanle Handelsgesellschaft built on the principle of supremacy of EU law identified in Van Gend en Loos and Costa.

The German authorities felt that the EC's system of deposits for the exportation of maize conflicted with important principles of German Constitutional law.
-It was held that EU law takes priority over the German constitutional protection of fundamental rights.
What is the significance of Simmenthal (No 2) [1978]?
Again, reinforces the importance of the primacy of EU law- whether enforced before or after EU law, conflicting national legislation must be set aside.

-Beef which had been charged for veterinary and public health inspections created questions as to whether these were enforceable.
-It was held that where community rules are directly applicable, they must be fully and uniformly enforced.

-'Every national court must..apply community law in its entirety and protect rights which it confers on individuals, and must accordingly set aside any conflicting provision of national law, whether prior or subsequent.'
Which case shows a move away from the strict requirements for vertical direct effect identified in VGeL, and created the test of 'sufficiently precise and unconditional'
Defrenne v SABENA (No2) [1976]
-Under belgian law, female air-stewards were required to retire at the age of 40, unlike their male counterparts.
-Defrenne brought an action claiming that this beached the principle that 'men and women should receive equal pay for work of equal value.'

-It was difficult to establish direct effect as the provision set out broad principles about treatment of men and women in the workplace, rather than conferring individual rights.
However, it displays a wider margin for finding a provision directly effective- the requirements of 'sufficiently precise and unconditional.'
Which case established that directives could be directly effective in national courts?
Van Duyn v Home Office [1974]
-Mrs Van Duyn was refused entry to work in the UK for the church of scientology- the UK's policy was that activities of scientology were 'socially harmful.'

-She sought to rely on her 'freedom of movement' and the fact that any restriction on this had to be based on her 'personal conduct' under an EU directive.
-The UK argued that allowing an unimplemented directive to have direct effect was basically converting it into a regulations.
-It was held that Van Duyn would be able to rely on the directive in the national court, as doing so would 'help to achieve the useful effect of the directive.'
PRINCIPLE- DIRECTIVES CAN HAVE DIRECT EFFECT IN NATIONAL COURTS.

However overall Van Duyn lost, as the UK was entitled to impose public policy consideration of a 'socially harmful' organisation- the discretion given was quite wide- UK's response was proportionate.
What does it mean to say that the court in Van Duyn adopted a teleological approach?
Recognising the direct effect of directives based on promoting the 'useful effect' of the directive, as the treaty intended it to achieve.
Which case establishes that directives will only have direct effect once the transposition period for their implementation has passed?
Ratti [1980]

-Ratti was prosecuted for not labelling solvent sin accordance with Italian law, but wanted to rely on the fact hat he was acting in accordance with an EU directive that hadn't been implemented by the state.

-The court held that he could only rely on the directive for which the transitional period had passed.
Which case established that directives do not have horizontal direct effect?
Marshall v Southampton Area Health Authority [1986]

-Marshall was dismissed at the age of 62 as she had passed pensionable age- she claimed this breach article 5 of the equal treatment directive.

-The court held that "a directive may not impose obligations on an individual and that a provision of a directive may not be relied on against such a person."

DISPLAYS DISTINCTION BETWEEN REGULATIONS AND DIRECTIVES- REGULATIONS ARE HORIZONTALLY DIRECTLY EFFECTIVE.
How do the courts determine what classes as the 'state,' in order to determine whether provision can be directly effective or not?
Foster v British Gas [1990]

-Dual test:
1) If an entity is carrying out a public service then it will be sufficient to allow the use of direct effect against it.

2)The court will look to the degree of state control- any entity which forms part of or is subject to the authority of a public body forms party of the state, and can be sued under direct effect.
What is the problem arising from the direct, but not indirect effect of directives?
It has created a 2-tiered system in which parties have greater protection and support against public bodies than private ones- directives are not effective against private bodies.
What case displays the use of indirect effect?
Von Colson [1984]

-2 female social workers were refused employment in a prison due to their sex. Under national law all they could claim in compensation was the loss they had sustained in applying for the position - travel expenses.

-The national court considered whether such a restriction in compensation was compatible with EU law.
It was found that the relevant EU provision was insufficiently clear and precise, so did not satisfy the conditions for direct effect.

-The court held that under the doctrine of indirect effect, national courts were required to 'interpret their national law in the light of the wording and purpose of the directive.'- following from the loyalty provision under section 4 of the TEU, which requires member states to take all appropriate measures to fulfil their obligations under the treaties.

Therefore, the legislation was interpreted in light of EU law in order to achieve more appropriate compensation for the women.
What are the restrictions on indirect effect?
There must be a national law present in the first place, in order for it to be interpreted in light of EU law.
What was the effect of the judgement in Marleasing [1990]?
It expanded the doctrine of indirect effect in 2 ways:
1)It required all national legislation to be interpreted in light of EU law.
2) It strengthened the national court's interpretive duty-'no longer sufficient for a national court to turn to community law only if the national obligation is "ambiguous."

-As long as there is some national law which allows some room for interpretation, it can me manoeuvred to comply with the directive.
When do directives become DIRECTLY effective.
Only after the date for transposition has passed, and the member state ha failed to transpose it, leaving no remedy in national law.
Which case establishes that directives should not be frustrated, even before the date for transposition, if they concern fundamental principles of EU law?
Mangold v Helm [2005]

-mangold challenged the fixed-term nature of his contract on the grounds that it contravened a directive prohibiting discrimination because of age.

-Although the time-limit hadn't been reached for transposition of the directive, the court held that it was the duty of the national court to set aside any provision of national law which conflicted with a directive that concerned fundamental rights (non-discrimination)

-They gave 2 reasons:
1) Member states are under a duty not to do anything which seriously compromises that attainment of the result prescribed by the directive.
2)The directive gave effect to fundamental principles of EU law- observance of this could not be conditional simply on expiration of a transposition period.
Which case concerns what happens when a member state fails to transpose a directive, and the result cannot be achieved by interpretation through indirect effect, but the provision cannot be directly effctive as the dispute is between 2 private parties?
Established the role of State Liability.
Faccini Dori [1994]

-If a member state fails to transpose a directive, and dispute between 2 private parties cannot be remedied by indirect effect, community law requires that member states make good the damage caused to individuals through their failure to transpose the directive.
What were Advocate-General Lenz's comments on Faccini Dori?
He wanted to move away from the decision in Marshall which stated that directives could not be horizontally effective, however the court refused to follow this opinion.

-They held that he best Faccini Dori could do would be to sue the state for failure to implement the directive.
Which case displays the importance of national procedural autonomy regarding remedies for breach of EU law?
REWE [1989]

-It was held that the question of remedies should be up to the national legal system to decide.
-The national courts were not required to create a remedy- much discretion given.
-The national remedy must be proportionate, adequate and effective.
Which is the leading case concerning state liability?
Francovich v Italy [1991]

-Italy had failed to transpose a directive which was intended to guarantee employees a minimum level of protection under community law in the event of insolvency of the employer.
-The directive could not be directly effective as it was not sufficiently precise and unconditional, as it did not state which national body would be responsible for paying the compensation.
-There was no indirect effect as the dispute was between Francovich and his employer (2 private parties)

-The ECJ held that the Italian state could be liable for failure to transpose the directive
"national courts, whose task it is to apply the provisions of community law, must ensure that those rules take full effect and protect the rights which they confer upon individuals."

-Member state liability must be 'inherent' in the treaty to ensure the full effectiveness of EU law.- Art 4(3) TEU member state duty of loyalty.
Which joint cases extended the scope of state liability to include non-compliance with treat articles as well as failure to implement directives?
Brasserie du Pecheur and ex Factortame (No 3)
What happened in Brasserie du Pecheur?
BdP was forced to discontinue exports of beer to Germany due to a German 'purity' law which prohibited marketing of beers which contained additives.- This was declared ilegal in 1987 as it contravened EU 'free movement of goods' and BdP sought compensation from the state for loss of sales during the banned years of sale.
What happened in Factortame (No 3)?
After the Merchant Shipping Act was declared illegal, the applicants claimed for damages against the British government.
What are the requirements for state liability?
1) the provision must be intended to confer rights on individuals
2)the breach must be sufficiently serious
3)there must be a direct causal link between the member state's breach and the individual's loss.

If the state is afforded little or no discretion, the court will treat the breach as sufficiently serious.
In what 3 instances do Francovich and BdP suggest that liability will easily be found?
1) Complete failure to transpose a directive.
2) A breach of an order of the ECJ
3) Breach of settled case law.
What case establishes the 'state liability' of judicial institutions (courts)?
Kobler v Austria [2003]

-The Austrian administrative court initially decided to refer a matter to the ECJ, but then withdrew as it had already been decided as lawful by the court.
-Kobler brought an action in damages on the grounds that the court failed to refer the mater when it was obliged to do so/had given an erroneous ruling.

-It was held that if a national court gets EU law wrong then it could give rise to state liability, however it must be a 'manifest infringement.'
Which case established what 'manifest infringement' means?
Traghetti [2006]
manifest infringement is assessed in light of a number of criteria:
-the degree of clarity and precision of the rule infringed.
-whether the infringement was intentional.
-whether the error of law was excusable.

Traghetti reaffirmed Kobler as well as indicating that state liability could be found not just for deliberately flouting EU law, but failing to interpret it in the manner of a reasonable court.