Actions for Failure to Fulfil an Obligation Under the Treaties

Question 1

Name the private redress features of Article 258 infringement proceedings?

Answer 1

PRIVATE REDRESS Features of Article 258 Proceedings:
* Complaints significant source of knowledge
* Complaint form & mechanisms
* Commission keeping complainants better informed (thanks to Ombudsman)
* ECJ forcing Commission to be more transparent:
Bavarian Lager II(2007)
Sweden v Commission (2009)

Question 2

Discuss the main function of Article 258 Proceedings.

Answer 2

Key thing = OBJECTIVE MEANS FOR SECURING COMPLIANCE WITH EU LAW
Note - Commission and Council view – Article 258 an elite procedure confined to two parties Commission and Member State (more accurate view)

Question 3

Name 2 advantages of Commission discretion with bringing Article 258 proceedings.

Answer 3

1. Enables Commission to use litigation as one of a number of ways to achieve its aims. Could also use legislation or executive action.
2. Politically sensitive issues e.g. unpopularity – Ireland not having water charges, Sweden staying out of the Euro breaching Treaty obligations

Question 4

Name 2 dangers of discretion.

Answer 4

• Commission could be too lenient
• Commission could be arbitrary or oppressive

Question 5

Discuss the relevant discretion cases.

Answer 5

• Star Fruit v Commission [1989] ECR 291 – SF couldn’t try to force the EC to bring proceedings
• Commission v Greece [1990] ECR I-4299Cases C-466-7/98) – EC motivation not considered by ECJ
• Open Skies case – Advocate General Tizzano
• Commission v Germany [1995] ECR I-2189 – No specific interest need be shown be EC
• Commission v Netherlands [1991] ECR I-2461 – Delay can infringe defendant’s rights (may have impression that they have done nothing wrong)
• Commission v Ireland [1984] ECR I 317 – EC can bring case too quickly

Question 6

What is the role of the reasoned opinion in Article 258 proceedings?

Answer 6

1. Official means whereby Commission communicates substance of complaint against it.
2. Provides Member States with protection: there must be a reason!
3. Specifies time period within which violation must be remedied
4. Provides Member State with a clear statement of the case against it.
5. Specific instance of Article 296 TFEU requirement that legal acts must be reasoned.

Question 7

Discuss the relevance of Lutticke

Answer 7

• RO has no LB effect so no review action

Question 8

Commission v Italy [1961] ECR 317

Answer 8

• RO can be challenged as inadequate in Article 258 proceedings

Question 9

• Commission v Austria [1999] ECR I-7479

Answer 9

Reasons for complaint must be specified in the complaint

Question 10

What kind of behaviour on the part of member states has been held to constitute a breach of EU law for the purposes of Article 258?

Answer 10

Various Examples:
1. Breaches of Art 4(3) TEU obligation of sincere cooperation – Commission v France [1997] ECR I-6959 (Strawberries case)
2. Inadequate implementation of EU law – Commission v France [1974] ECR 359 (Fishing vessels case) Commission v Hungary (Same thing with immigration law)
3. Breaches interfering with EU external relations (a mixed bag)
- Open Skies case – Getting own agreement for bilateral agreements before the EU
- Commission v Sweden [2010] ECR I-
- Commission v Netherlands [2010] ECR I- -
4. Systemic and persistent breaches/general practices – Commission v Ireland [2005] ECR I-3391
5. The taking of certain actions by national Courts – Köbler v Austria [2003] ECR I-10239

Question 11

How have member states succeeded with the various defences they have pleaded in Article 258 proceedings?

Answer 11

• No adverse effects – Case C-150/97 Commission v Portugal [1999] ECR
• Force majeure rarely accepted, internal legal system measures or practices not FM – Case C-280/83 Commission v Italy [1984] ECR
• Force majeure bomb attack allowed generally but years after bomb attack not allowed Case C-33/69 Commission v Italy [1970 ECR 93
• Breach unintentional rejected – Case C-301/81 Commission v Belgium [1983] ECR
• Breach minor rejected – Case C-43/97 Commission v Italy [1997] ECR I-4671
• Breach excusable error rejected – Case C-150/97 Commission v Italy [2004]
• EU measure invalid – “Plea of illegality” rejected but never worked so far, bring review action instead – Case C-150/97 Commission v Greece [1988] ECR 3691, never used so far so we don’t know if it would work
• Other MS in breach as well rejected (unlike PIL) – Van Gend en Loos [1963] ECR 1

Question 12

VI. What are the consequences for a Member State of a negative ruling under Article 258?

Answer 12

• Determination that there is a violation
• Maastricht: penalty payment introduced (Article 260 TFEU)

Question 13

What are the Commission guidelines for the penalty payment?

Answer 13

Seriousness, duration, deterrent but CJEU not bound by EC

Question 14

What kinds of question can be referred under Article 267 TFEU?

Answer 14

(a)the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

• Must be an issue of EU law not national law

Question 15

What kind of body is considered a court/tribunal?

Answer 15

Politi case - Matter of EU law

More expansive definition e.g. Broekmeulen case and not in Nordsee Deutsche Hochseefischerei ECLI:EU:C:1982:107

Factors in Case C-54/96 Dorsch Consult [1996] ECR I-496:
- whether the body is established by law, - whether it is permanent,
- whether its jurisdiction is compulsory (can it make people appear in front of it),
- whether its procedure is inter partes,
- whether it applies rules of law and whether it is independent

Question 16

What are the two main rules regarding whether a court must refer any issue to the ECJ?

Answer 16

1. Must be an issue of EU law (treaty interpretation or validity of EU act)
2. A decision on the issue must be necessary to enable the NC to give judgment in the case
   - Courts where there is and is not a judicial remedy under national law distinction

Question 17

Discuss ‘Abstract’ vs. ‘concrete’ theory.

Answer 17

• Favour concrete theory over abstract theory
• Costa and Lyckesog – Test doesn’t focus on the NC as an institution but whether the decision in the type of case is subject to appeal

Cartesio [2008] ECR I – Just because there are restrictions on appeal e.g. certificate of admissibility for appeal or appeal on points of law only doesn’t means there’s no appeal

Question 18

Discuss the exceptions to the Article 267(3) obligation.

Answer 18

1. No need to refer if the ECJ has already ruled on the same matter in an earlier preliminary ruling - Da Costa En Schaake

Question 19

What are the 3 De Costa En Schakke conditions?

Answer 19

1. Materially identical question
2. Raised in a similar proceeding (PR)
3. In a case with similar facts

Question 20

How did CILFIT affect the conditions for previous ruling PR exception?

Answer 20

Broadened:
1. Point of law dealt with by ECJ in any proceedings not just Article 267
2. Generally similar question
- Effectively introducing a system of precedent

Question 21

Discuss Reply by Reasoned Order.

Answer 21

Article 99 of the Rules of Procedure of the European Court of Justice = RRO can be used where identical, already ruled on question’s reply deduced from existing case law or no reasonable doubt to as to answer (Judge Rapporteur proposal after hearing AG)

Question 22

Discuss the ‘Acte Clair’ Doctrine from CILIFIT

Answer 22

• Applies where correct application of Community law may be so obvious as to leave no scope for any reasonable doubt
• 3 Conditions – 1. Obviousness 2. Languages and all equally authentic 3. Different legal concepts e.g. solidarity

Question 23

Can the ECJ declare a provision of national law invalid in Article 267 TFEU proceedings?

Answer 23

• NO!!!!
  BUT
• Outcome cases (Specific answer) – Case 120/78 Cassis de Dijon [1979] ECR 649
• Guidance cases (Guidelines for resolving the dispute to referring courts) – C-34/95 De Agostini 1997 ECR I-03843
• Deference cases (Answer question in really general terms) – Case 145/88 Torfaen Borough Council v B&Q (Sunday Trading case) [1989] ECR 765

Question 24

Can a national Court declare a provision of EU law invalid? Where does the preliminary reference procedure fit in here?

Answer 24

• No - NC can’t declare EU law invalid off their own bat (to protect the unity of EU law); must refer the matter to the ECJ
• Dzodzi – NL based on EU law can be referred

Question 25

Is it possible for the ECJ to refuse to provide an answer to a question referred to it?

Answer 25

Yes - Foglio v Novello I/II - CJEU ultimate determiner of its own jurisdiction and limits of its jurisdiction

Question 26

In what kinds of cases has the ECJ declined jurisdiction

Answer 26

1. Hypothetical cases - Case 467/04 Gasparini (Relevance of test cases e.g. Wightman)
2. Irrelevant cases Case C-292/04 Meilicke
3. Questions not articulated clearly enough – Case 318/00 Bacardi-Martini
4. Facts insufficiently clear – C-320/90 Telemarsicabruzzo ECLI:EU:C:1993:26
   - Note that this is limited

Question 27

What kinds of idea have been put forward for dealing with the increasing burden imposed on the EU court structure by the preliminary reference procedure?

Answer 27

Key thing = Regulation 2024/2019 of the European Parliament and of the Council of 11 April 2024 amending Protocol No 3 on the Statute of the Court of Justice of the European Union transfers jurisdiction to give preliminary rulings from the Court of Justice to the General Court in six specific areas:
1. the common system of value added tax
2. excise duties
3. the customs code
4. the tariff classification of goods under the combined nomenclature
5. compensation and assistance for passengers whose transport services are delayed or cancelled or who are denied boarding
6. the scheme for greenhouse gas emission allowance trading
* ECJ still jurisdiction questions of principle, e.g. Treaties/CFREU interpretation.