6 - Implementation and (Decentralised) Enforcement of EU Law

Question 1

What does EU architecture rely on and how much? (3)

Answer 1

1/ relies on Member States

2/ for successful implementation and enforcement of EU law

3/ for more than 90%

Question 2

What is one of the tasks of the EC relevant with respect to this lecture?

Answer 2

Policing MS’ duty to effectively implement and enforce EU law

Question 3

Who can be considered as the main guardians over effective EU law implementation and enforcement?

Answer 3

Private litigators as main actors of decentralised enforcement

Question 4

Which mechanisms operate with respect to decentralised enforcement? (3)

Answer 4

1/ direct effect

2/ consistent interpretation

3/ State liability

Question 5

What questions does private/decentralised enforcement bring with it?

Answer 5

Questions about effectiveness of this mode of enforcement

Question 6

How can one describe enforcement? (2)

Answer 6

1/ law in action

2/ as opposed to ‘law in the books’

Question 7

Evolution regarding EU law enforcement? (4)

Answer 7

1/ move from common rules to effective application

2/ Founding Treaties didn’t directly address questions of enforcement

3/ lessons were learned from 2004 and 2007 enlargements, characterised by an insufficient assessment of new MS’ institutional and financial capacity to enforce EU law

4/ from Reg. 17/62, to Reg. 1/2003 to Dir. 2019/1

Question 8

When did cases regarding enforcement and application of EU law start to appear before the CJEU?

Answer 8

Beginning of the 1960s (e.g. VGL, Costa/ENEL)

Question 9

Current stance on enforcement within the EU? (2)

Answer 9

1/ remains a pressing and interesting issue

2/ might lead to a further extension of EU competences into areas it has not touched upon as of yet

Question 10

Which Article is relevant with respect to enforcement of EU law? (3)

Answer 10

1/ Art. 291 TFEU

2/ MS must adopt all measures necessary to implement legally binding EU acts

3/ however, does not say that much about enforcement

Question 11

Important points to keep in mind regarding the way EU law enters national legal systems and the interaction between them? (7)

Answer 11

1/ there are institutions, procedures and principles

2/ key: primacy and direct effect of EU law

3/ indirect effect and consistent interpretation

4/ national procedures in charge of the enforcement of EU law

5/ State liability

6/ MS procedural autonomy, counterbalanced by pcples of effectiveness and equivalence

7/ requirement of effective judicial protection

Question 12

Considerations surrounding primacy of EU law from EU perspective? (7)

Answer 12

1/ Van Gend en Loos: direct effect penetrates national law

2/ Costa v ENEL: unreserved and absolute primacy of EU law

3/ all EU law prevails over all national law

4/ autonomy of EU law is special and original

5/ EU law pre-empts any national choice (incl. constitutional choices)

6/ primacy requires national courts and public authorities to set aside national law

7/ all organs of the State must respect the primacy of EU law, incl. administrative authorities (Fratelli)

Question 13

Considerations regarding primacy from MS perspective? (5)

Answer 13

1/ the question of ultimate sovereignty remains unresolved

2/ specific role of national constitutional courts

3/ see influence of German FCC & its position vis-a-vis the primacy of EU law, challenging the question of ultimate sovereignty

4/ see in particular Internationale Handelsgesellschaft (FR protection) and Solange II (finality of EU integration, nature of the Union)

5/ attempts to delimit the scope of EU competences, esp. via exercise of the ultra vires review

Question 14

What is a prime limit to primacy?

Answer 14

National constitutional identity

Question 15

Considerations surrounding national constitutional identity as limit to primacy? (6)

Answer 15

1/ concept figures in Art. 4(2) TEU

2/ MS can define their own national identity

3/ but decision about compatibility of national identity with EU obligations lies with CJEU

4/ recently, national CCs openly challenged primacy of EU law & authority CJEU in their judgments

5/ this bears the question of whether there exists a constructive dialogue or rather explicit defiance

6/ risk of abuse of constitutional identity

Question 16

What is important to keep in mind with respect to direct effect and primacy? (3)

Answer 16

1/ they are not isolated principles

2/ very powerful combination when exercised together

3/ combination makes the EU legal order special, original and autonomous

Question 17

Considerations surrounding direct effect? (6)

Answer 17

1/ relates to a practical issue

2/ renders EU provisions immediately applicable before national courts & administrative authorities

3/ Van Gend en Loos, 3 conditions: clear, sufficiently precise and unconditional right

4/ EU provision becomes immediate source of law and requires no further implementing act

5/ direct effect does not allow for any discretionary power for national entities

6/ EU Treaty provisions and Regulations often fall within category of measures with direct effect

Question 18

Considerations surrounding direct effect and Directives? (5)

Answer 18

1/ direct effect of Directives varies depending on the type of legal relationship

2/ Van Duyn: Dir. vertically directly applicable (between MS and individuals)

3/ Marshall: no horizontal direct effect (btwn private individuals)

4/ Dir. are binding on MS but not directly applicable within their legal orders

5/ estoppel argument: MS which has not or incorrectly implemented a Dir. cannot rely on its own wrongdoing to enforce a right/interest/obligation vis-a-vis a private individual

Question 19

Exceptions to no-horizontal-direct-effect Directives? (4)

Answer 19

1/ creation by CJEU of alternative avenues to reach horizontal relationships

2/ CJEU inflated wide concept of State (‘emanation of State’ - Foster)

3/ application of general pcples of EU law, such as non-discrimination

4/ criticism => widens the scope of Dir. too much, taps into issues of distribution of powers btwn EU/MS

Question 20

Considerations surrounding indirect effect of EU law? (5)

Answer 20

1/ duty of constitutionally consistent interpretation

2/ requires interpretation of all national law as far as possible in conformity with EU law

3/ might reach into reverse vertical situations

4/ limits: no contra legem interpretation, right to a fair trial

5/ see in particular Dominguez case (direct effect, State liability)

Question 21

Considerations surrounding State liability? (4)

Answer 21

1/ MS are responsible for the creation, implementation and enforcement of EU law

2/ see Francovich case which lays down criteria for State liability

3/ it is a basic pcple of the EU legal order bc national courts must protect the rights conferred on individuals by EU law

4/ State liability is ‘closing mechanism’ among tools provided by EU law to ensure EU provisions are correctly implemented and enforced

Question 22

Francovich criteria for MS liability? (4)

Answer 22

1/ a breach of EU law

2/ attributable to the MS

3/ which caused damage to an individual

4/ if 3 conditions established, compensation may be claimed in a legal action before a national court

Question 23

Considerations surrounding the national procedures enforcing EU rights? (5)

Answer 23

1/ national procedures must allow application and enforcement of EU law

2/ EU establishes rights and remedies, national procedural law enforces them

3/ MS have a duty to cooperate in achieving full effect of EU law (‘effet utile’)

4/ national procedural autonomy

5/ pcples of equivalence and effectiveness as counterweight

Question 24

Which cases are relevant regarding pcples of equivalence and effectiveness? (2)

Answer 24

1/ Rewe

2/ Comet

Question 25

What does equivalence require?

Answer 25

That MS do not discriminate btwn claims based on national law and claims arising out of EU law

Question 26

What does pcple of effectiveness entail?

Answer 26

Verification by CJEU that enforcement of rights based on EU law is not rendered impossible or excessively difficult compared to national rules

Question 27

Main finding of BRT-SABAM case?

Answer 27

Arts. 101 and 102 TFEU have direct effect

Question 28

Which rulings recognized the existence of EU rights while also upholding national procedural autonomy? (2)

Answer 28

1/ Courage: private enforcement of Art. 101 TFEU is possible, civil law damages can be granted

2/ Manfredi: Art. 101 TFEU confers an EU right, but the procedures to enforce it are defined by national law

Question 29

What did the discussions raised by Courage and Manfredi rulings lead to? (3)

Answer 29

1/ adoption of harmonisation measures

2/ Dir. 2014/104 on Damages

3/ Dir. 2019/1 on more effective enforcement

Question 30

Considerations regarding Regulation 1/2003 (ECN+)? (6)

Answer 30

1/ disruption of EU competition law enforcement model

2/ parallel competences and shared enforcement of EU competition law

3/ decentralisation => dependence on national administrative enforcement

4/ fundamental EU law obligations remain

5/ cooperation with EC and NCAs & principle of effectiveness

6/ requires ‘sufficiently robust’ national enforcement procedures

Question 31

What is the EU framework with respect to enforcement of EU competition law? (4)

Answer 31

1/ application of gnl EU pcple of procedural autonomy and institutional neutrality

2/ aim of enlargement and modernisation is the improvement of enforcement methods

3/ however, Reg. 1/2003 does not provide any specific guidance on institutions and procedures

4/ today, wide diversity of institutional arrangements

Question 32

Considerations surrounding the multi-level decentralisation scheme introduced by Reg. 1/2003? (4)

Answer 32

1/ aim was more effective enforcement through delegating powers to NCAs

2/ introduction of a system of parallel competences and simultaneous application of EU and national competition laws

3/ however, challenges result from this multi-level governance (composite system, different political, institutional and procedural settings)

4/ risk of re-nationalising EU competition law and policy

Question 33

Current challenges regarding the system for enforcement of EU competition law? (5)

Answer 33

1/ NCAs with diverging capacities and resources

2/ application of different national procedural rules

3/ variety of sanctions and remedies

4/ these could all jeopardise the effectiveness of EU law

5/ bears the question of whether consistent enforcement requires a certain degree of harmonisation?

Question 34

Who ‘enforces’ EU law? (3)

Answer 34

1/ Commission

2/ Member States (esp. national courts)

3/ individuals (when claiming their rights before national courts)

Question 35

How has Van Gend en Loos & direct effect increased effectiveness of EU law? (2)

Answer 35

1/ allows individuals to directly invoke EU rights before national courts

2/ provides national courts with possibility to apply EU law ex officio (i.e. even when not expressly asked to do so)

Question 36

Why can one say that Rewe Comet case is a manifestation of the general EU pcple of subsidiarity in context of enforcement of EU law? (4)

Answer 36

1/ pcple of subsidiarity = MS remain free to act in areas outside exclusive competence EU and where EU action is not more effective

2/ Rewe underlined procedural autonomy of MS

3/ however, Rewe counterbalanced procedural autonomy by pcples of equivalence and effectiveness

4/ see para 5

Question 37

Why is it insufficient to say that direct effect equals EU law ‘being invocable’ before national courts? (3)

Answer 37

1/ EU law is invocable before any national administrative authority, not only national courts

2/ see Fratelli

3/ a difficulty is that administrative authorities cannot refer preliminary questions to the CJEU

Question 38

What dilemma does res judicata lead to? (2)

Answer 38

1/ legal certainty

2/ effectiveness EU law

Question 39

Main finding in Kuhne and Heitz case? (2)

Answer 39

1/ legal certainty is a general principle of EU law, applicable to all national administrative bodies and courts (para 24)

2/ exceptions to res judicata can be admitted if specific circumstances of a case allow so - this almost never happens in practice though (para 26)

Question 40

What is the pcple with respect to the invocability of Directives? (2)

Answer 40

1/ no horizontal direct effect (btwn individuals)

2/ Marshall case

Question 41

Main finding of Dominguez case? (3)

Answer 41

1/ inflation of the concept of State (para 39)

2/ guidance on when one can rely on a Directive

3/ facilitates recognition of vertical direct effect

Question 42

What is the reasoning to be followed when assessing whether a Directive can be relied upon? (3)

Answer 42

1/ check whether consistent interpretation is possible (i.e indirect effect)

2/ check whether vertical direct effect is possible

3/ if both of the above are impossible, fallback option is to rely on Francovich State liability

Question 43

What are limits to consistent interpretation? (2)

Answer 43

1/ no contra legem interpretation

2/ compliance with gnl pcples of EU law

Question 44

What are the steps to be followed for concluding a Directive has vertical direct effect? (3)

Answer 44

1/ deadline for implementation passed or incorrect implementation

2/ a State is involved (cf Dominguez & inflation concept of State)

3/ Directive sufficiently clear and unconditional