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eu legal remedies > 2 - The jurisdiction of the CJEU > Flashcards

2 - The jurisdiction of the CJEU Flashcards

1
Q

Outline of the lecture? (6)

A

1/ scope of the CJEU’s powers ratione materiae

2/ overview of various legal remedies

3/ creation of jurisdiction through secondary law

4/ role of the CJEU in ‘cross-pillar’ litigation

5/ concept of the ‘law’ in Article 19(1) TEU

6/ exclusive jurisdiction ECJ in relation to other int. courts/tribunals

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2
Q

What was the jurisdiction of the ECJ before Lisbon? (3)

A

1/ first pillar (mainly EC Treaty): direct actions, PR procedures, opinions draft agreements

2/ second pillar (CFSP): no jurisdiction

3/ third pillar (PJCC): direct action, PR procedure (optional)

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3
Q

Jurisdiction ECJ after Lisbon? (4)

A

1/ TEU: direct action, PR, opinions draft agreements

2/ TFEU (+ Euratom): direct actions, PR, opinions draft agreements

3/ exceptions TEU and TFEU: Title V CFSP ! BUT ! Art. 40 TEU (ECOWAS) + economic sanctions (Arts. 24 TEU, 275 TFEU, Rosneft)

4/ CFR: direct actions, PR, opinions draft agreements

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4
Q

Contribution of Rosneft case? (2)

A

1/ recognised jurisdiction to give PRs on validity of an act adopted on the basis of provisions relating to the CFSP

2/ interpretation of Arts. 24 TEU, 275 TFEU

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5
Q

What are the 2 possible scenarios painted in Rosneft?

A

1/ PR relates to monitoring of decision compliance with Art. 40 TEU

2/ PRrelates to reviewing the legality of restrictive measures against natural or legal persons

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6
Q

What are the 4 most important direct actions?

A

1/ action for infringement of the Treaties (Arts. 258-260 TFEU)

2/ action for annulment (Art. 263 TFEU)

3/ action for failure to act (Art. 265 TFEU)

4/ action for damages (Arts. 268, 340 TFEU)

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7
Q

Who can be involved in action for infringement of Treaties? (2)

A

1/ Commission vs MS

2/ MS vs MS

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8
Q

Who can be involved in action for annulment? (2)

A

1/ institution, MS, ind.

vs

2/ legally binding acts of EU institutions and bodies, offices, agencies

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9
Q

Who can be involved in action for failure to act? (2)

A

1/ institution, MS, ind.

vs

2/ EU institutions

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10
Q

What is an essential condition for an action for failure to act to succeed? (3)

A

1/ there must be an omission to act on part of EU institutions

2/ this requires an obligation to act on their part

3/ therefore, rarely successful

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11
Q

Who can be involved in an action for damages? (2)

A

1/ institution, MS, ind.

vs

2/ EU institution

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12
Q

What are important elements for a successful action for damages? (2)

A

1/ the action of an EU institution must cause damage

2/ therefore, not to be confused with Francovich actions on the non-contractual liability of MS

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13
Q

What can the direct actions be combined with? (2)

A

1/ request for interim measures (Arts. 278, 279 TFEU)

2/ plea of illegality (Art. 277 TFEU)

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14
Q

Who can make a request for interim measures under Arts. 278, 279 TFEU? (2)

A

1/ President of the ECJ

2/ GC

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15
Q

What is an essential condition for a successful plea of illegality?

A

Must be combined with an action for annulment against a tertiary/level 3 decision

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16
Q

Contribution of the Lisbon Treaty to the EU system of legal remedies?

A

No fundamental changes to the system

17
Q

What is the difference between pre- and post-Lisbon PR procedures? (2)

A

1/ before Lisbon, 3 PR procedures

2/ now, only 1 PR procedures (Art. 267 TFEU)

18
Q

What can PR never be about?

A

Validity of the Treaties

19
Q

What can PR be about? (2)

A

1/ interpretation of the Treaties

2/ validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

20
Q

Main finding of Leur-Bloem case?

A

ECJ recognised jurisdiction under Art. 267 TFEU in ‘purely internal situations’ where MS has aligned its domestic legislation to EU law

21
Q

What did CJEU try to do in Ullens de Schooten case?

A

Bring some structure and logic in its previous case law regarding its jurisdiction under Art. 267 TFEU in purely internal situations

22
Q

Which are the 4 situations in which the CJEU has jurisdiction to answer PQs although the situation is wholly internal to one MS in Ullens de Schooten?

A

1/ legislation applicable without distinction to nationals/nationals of other MS is capable of producing effects which are not confined to that MS

2/ national provisions apply to nationals MS but also to those of other MS

3/ national law requires referring court to grant same rights to a national of its own MS

4/ provisions of EU law have been made applicable

23
Q

Considerations regarding jurisdiction of the CJEU in secondary EU law? (3)

A

1/ before Lisbon, expansion of jurisdiction mainly in Regulations

2/ most important example pre-Lisbon: judicial actions against European Agencies (cf Art. 65 Trade Mark Regulation)

3/ after Lisbon, see Art. 263(1)(5) TFEU

24
Q

CJEU and cross-pillar litigation before Lisbon? (3)

A

1/ ECJ more and more often asked to rule in disputes involving different pillars of the EU

2/ example: ‘environmental criminal law’ => pillar 1 or 3?

3/ see illustrative ECOWAS case

25
Q

Contribution of ECOWAS case? (4)

A

1/ question: 2nd pillar (CFSP) or 1st pillar (dvpt cooperation policy)?

2/ ECJ found jurisdiction

3/ impossible to make a choice btwn the 2 legal bases bc incompatible legal orders

4/ only 1st pillar must be used bc of former Art. 47 EU

26
Q

ECOWAS post-Lisbon? (5)

A

1/ CFSP is still dealt with separately in the TEU

2/ all the other policies are now in the TFEU

3/ today, CJEU would rule it has jurisdiction bc Arts. 24 TEU, 275 TFEU -> Art. 4 TEU

4/ but would use dual legal basis

5/ however, CJEU would probably rule that these are still incompatible legal orders and hold that only the TFEU should be used bc of new Art. 40 TEU

27
Q

Which are the most important parts/sources of EU law as understood by Art. 19(1) TEU? (5)

A

1/ primary EU law

2/ secondary legislation (incl. soft law)

3/ treaties btwn EU and third countries

4/ GPEUL

5/ NOT national law of MS (cf Leur-Bloem)

28
Q

Which Article is relevant on the topic of jurisdiction CJEU/other int. courts and tribunals?

A

Article 344 TFEU: ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’

29
Q

Considerations on MOX Plant case? (3)

A

1/ Ireland brought dispute before UNCLOS tribunal and invoked EU envtal law

2/ infringement action of Commission against Ireland

3/ ECJ: exclusive jurisdiction ECJ

30
Q

Finding CJEU in MOX Plant case? (3)

A

1/ dispute btwn 2 MS

2/ involving EU law

3/ must exclusively be dealt with by ECJ

31
Q

Considerations surrounding Opinion 1/09 on draft agreement on the European Patents Court? (2)

A

1/ ECJ found no violation of Art. 344 TFEU (no disputes btwn MS but btwn private ind.)

2/ECJ found a violation of ‘the fundamental elements of the legal order and judicial system of the EU’

32
Q

What does the formulation ‘the fundamental elements of the legal order and judicial system of the EU’ as evoked in Opinion 1/09 encompass? (6)

A

1/ new legal order of VGL and Costa/ENEL

2/ understanding that ECJ and national courts are true guardians of system

3/ autonomy EU legal order

4/ loyalty clause of Art. 4(3) TEU

5/ PR procedure (Art. 267 TFEU)

6/ action for infringement and Kobler action would no longer be available

33
Q

Considerations on Achmea case? (3)

A

1/ case on intra-EU BIT

2/ Court very strict again

3/ Arts. 267 and 344 TFEU preclude agreement btwn MS to submit disputes concerning investments before an arbitral tribunal

34
Q

Considerations on CETA case? (2)

A

1/ BE requested opinion from CJEU on compatibility with EU law of Investment Court System provided for by CETA

2/ ECJ: mechanism for settlement of investor-State disputes was compatible with Treaties and CFR

35
Q

What are the key elements supporting the Court’s reasoning in CETA? (4)

A

1/ autonomy EU law

2/ principle of equal treatment

3/ pcple of effectiveness

4/ right of access to an independent tribunal

eu legal remedies (7 decks)

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