2 - The jurisdiction of the CJEU Flashcards by Eline D'hoore

Outline of the lecture? (6)

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

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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Jurisdiction ECJ after Lisbon? (4)

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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Contribution of Rosneft case? (2)

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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What are the 2 possible scenarios painted in Rosneft?

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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What are the 4 most important direct actions?

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

1/ Commission vs MS

2/ MS vs MS

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

1/ institution, MS, ind.

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

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

1/ institution, MS, ind.

2/ EU institutions

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

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

1/ institution, MS, ind.

2/ EU institution

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

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

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

2/ plea of illegality (Art. 277 TFEU)

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

1/ President of the ECJ

2/ GC

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

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

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

No fundamental changes to the system

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

1/ before Lisbon, 3 PR procedures

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

What can PR never be about?

Validity of the Treaties

What can PR be about? (2)

1/ interpretation of the Treaties

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

Main finding of Leur-Bloem case?

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

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

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

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?

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

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

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

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

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

Contribution of ECOWAS case? (4)

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

ECOWAS post-Lisbon? (5)

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

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

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)

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

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.’

Considerations on MOX Plant case? (3)

1/ Ireland brought dispute before UNCLOS tribunal and invoked EU envtal law 2/ infringement action of Commission against Ireland 3/ ECJ: exclusive jurisdiction ECJ

Finding CJEU in MOX Plant case? (3)

1/ dispute btwn 2 MS 2/ involving EU law 3/ must exclusively be dealt with by ECJ

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

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'

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)

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

Considerations on Achmea case? (3)

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

Considerations on CETA case? (2)

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

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

1/ autonomy EU law 2/ principle of equal treatment 3/ pcple of effectiveness 4/ right of access to an independent tribunal