6 - Implementation and (Decentralised) Enforcement of EU Law Flashcards by Eline D'hoore

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

1/ relies on Member States

2/ for successful implementation and enforcement of EU law

3/ for more than 90%

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

Policing MS’ duty to effectively implement and enforce EU law

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

Private litigators as main actors of decentralised enforcement

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

1/ direct effect

2/ consistent interpretation

3/ State liability

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What questions does private/decentralised enforcement bring with it?

Questions about effectiveness of this mode of enforcement

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How can one describe enforcement? (2)

1/ law in action

2/ as opposed to ‘law in the books’

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Evolution regarding EU law enforcement? (4)

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

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

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

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Current stance on enforcement within the EU? (2)

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

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

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

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

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

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

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)

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Considerations regarding primacy from MS perspective? (5)

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

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What is a prime limit to primacy?

National constitutional identity

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

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

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

1/ they are not isolated principles

2/ very powerful combination when exercised together

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

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Considerations surrounding direct effect? (6)

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

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Considerations surrounding direct effect and Directives? (5)

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

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

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

Considerations surrounding indirect effect of EU law? (5)

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)

Considerations surrounding State liability? (4)

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

Francovich criteria for MS liability? (4)

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

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

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

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

1/ Rewe

2/ Comet

What does equivalence require?

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

What does pcple of effectiveness entail?

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

Main finding of BRT-SABAM case?

Arts. 101 and 102 TFEU have direct effect

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

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

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

1/ adoption of harmonisation measures 2/ Dir. 2014/104 on Damages 3/ Dir. 2019/1 on more effective enforcement

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

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

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

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

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

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

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

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?

Who 'enforces' EU law? (3)

1/ Commission 2/ Member States (esp. national courts) 3/ individuals (when claiming their rights before national courts)

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

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)

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)

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

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

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

What dilemma does res judicata lead to? (2)

1/ legal certainty 2/ effectiveness EU law

Main finding in Kuhne and Heitz case? (2)

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)

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

1/ no horizontal direct effect (btwn individuals) 2/ Marshall case

Main finding of Dominguez case? (3)

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

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

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

What are limits to consistent interpretation? (2)

1/ no contra legem interpretation 2/ compliance with gnl pcples of EU law

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

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