Cases and Treaty Articles

Question 1

Which case established choice of legal basis shouldn’t be based on an institution’s conviction, but on objective assessment of the measure and the context?

Answer 1

Titanium Dioxide Case

In relation to competence, I.e. What basis to base the intervention on

Question 2

Which case was a challenge to community competence to act?

What did the case indicate in relation to the competences conferred on the EU by Art 5?

Answer 2

Tobacco Advertising Case 2000
Germany challenging the directive - saying should be based on health (so directive invalid).
Court took a robust line when dealing with the challenge. They allowed the union to ban (did so on grounds of the internal market)
There was a caveat of not harmonising national laws at the time the decision was made.

This decision indicated tightening in the approach since there were worries about competence creep. Court therefore took a narrower view and emphasised that the union may only act with competences conferred on it by Art 5 TEU.
Think about this in relation to competence creep and art 114 (harmonisation)

Question 3

Which article would you use to say that competence which are not conferred on the union remains with the MSs?

Answer 3

Art 4 TEU

Question 4

What are the two principles you need to remember in relation to Art 5 TEU?

Answer 4

Principle of conferral
MSs are drafters of the treaties, therefore they are the ones who give power to the EU 5(2)

Principle of subsidiarity
Two elements to this:
A) comparative 5(3) - is it better for the union to do rather than the MSs?
B) Proportionality 5(4) - union not to go beyond what is necessary in order to achieve the objects of the treaties

Question 5

Yellow cards and orange cards. When do these get held up? Where in the treaties would you find them?

Answer 5

Article 7 of the Protocol.
Yellow card = where ⅓ of national parliaments don’t agree, then the commission must review.
Orange card = if most of national parliaments or the council don’t agree then the legislation may be shelved. (Has been used when the EU wanted to liberalise labour markets - monti II proposal)

Question 6

Treaties ar drafted widely, the courts provide clarity, EU law functions on the basis of compromise. Which art would you use when saying these things?

Answer 6

Art 5(3)
Subsidiarity

Question 7

What is implied competence to act?

Answer 7

Where the commission has brought in legislation and brought in common rules internally, then only the union has the power to come up with international agreements in that area.
Competence is implied and complete. MSs are precluded from acting individually.

Question 8

Which article for exclusive competence? What does exclusive competence mean?

Answer 8

Art 2 TFEU - only the union can act

Art 3 TFEU - customs union, competition rules, monetary policy

Question 9

Shared competence. What is the treaty basis for this and what does it mean?

Answer 9

Art 2(2)TFEU
Means that the union can act, but if they don’t then the MSs can take it up.
Spectrum of things
Low policy vs. High policy (CFSP)

Supporting competence - art 6 (industry, culture, tourism, education, civil protection)

Question 10

Which art is the flexibility clause found in? What does this mean?

Answer 10

Art 352 TFEU - gives union power to fill in the gap where the treaty hasn’t granted powers to act. It is very hard to do since requires unanimity in the council, and parliament must consent.

The idea is to provide flexibility - can serve as a competence basis in almost all areas. Union can act if circumstances change, s.t. Unanimous agreement and parliamentary consent.

Question 11

Where is the harmonisation clause to be found?

Answer 11

Art 114 TFEU
Very vague, gives competence to act. Broad. Mainly concerning health & safety, environ, consumer protection.

Problems of competence creep - see tobacco advertising case 2000 (this indicated some tightening with regards to the use of this clause as a basis of competence to act).

Question 12

What does Art 288 say?

Answer 12

Regulations are directly effective
Directives are not directly applicable, but are capable of direct effect - so binding only as to the result to be achieved.
Decisions are not binding (except for the parties involved)
Recommendations and opinions have no binding force.

Question 12

Where would you find the ordinary legislative procedure?

Answer 12

Art 294 TFEU
Commission proposes
Council & parliament = co-legislators (both must approve, neither can act alone, compromise needed)

Parliament rarely uses its veto - they want to shore and influence legislation
QMV voting in Council - doesn’t always happen in practice (pass on nod instead) as creates bad flood if get outvoted. They did use it for the refugee crisis. Slovakia and Czechoslovakia outraged.

In assessing the democratic deficit have to ask whether the EU should be held to democratic standards of MS or comparable to international bodies such as the WTO or the UN

Question 14

Which case introduced the principle of supremacy?

Answer 14

Costa v ENL.
Made the AUTONOMY of the EU law clear.
Said MSs have limited their sovereign rights within limited fields to allow Community institutions to have effective power.
PRINCIPLE OF CONFERRAL = key. Need for effective functioning of EU and to make all states equal

Question 15

What is the scope of supremacy? Case?

Answer 15

Unlimited
Internationalle Handelsgesellshaft 1970
Eu law takes inspiration from national law to make national parliaments more reflective to it (more willing for EU to override)

Question 16

National courts must “set aside” national law that conflicts with Community law. Which case established this principle?
What else did the case establish?

Answer 16

Simmental.
Supremacy principle applies irrespective of whether national law pre or post-dates EU law.
“Set aside” means the court recognises the limits and constraints on what they can ask of national courts.
Means all national courts must apply EU law, so individuals can rely on EU rights without having to fight all the way up the European court (where measure directly effective!)

Question 17

What were Solange I and II about?

Answer 17

Solange I - the German constitutional court refused to recognise the unconditional supremacy of the EU

Solange II - ruling of CJEU = mandatory.

Question 18

What are the three cases to use for the acceptance of supremacy in the UK?

Answer 18

Factortame 1990 (about interim relief) Lord Bridge mindful that EU only supreme where it has the competence to act

Factortame No2 1991 - conceptual basis for supremacy explained - for “full effectiveness” of Community law. Based on ECA 1972

Thorburn 2003 - said ECA 1972 is a constitutional statute, so no implicit repeal (only express will do)

Question 19

Three cases on the German acceptance of the supremacy principle?

Answer 19

Bruner 1994 - Ultra Vires Lock - German court said it wouldn’t allow expansive interpretation of the Treaty by the European court

Lisbon Treaty challenge 2010. Warning to ECJ from German constitutional court: Identity Lock - don’t let actions of EU institutions infringe on the identity of the constitution. (Criticism: there is no theory behind such a lock + too vague to be enforceable)

Honeywell 2010 - applied Costa. So the German constitutional court could not lightly conclude that EU had acted beyond its competence - made it harder to claim Ultra Vires and challenge supremacy.
Nb. What is considered ultra Vires will change depending on the context, e.g. ECB in 08-10 crisis.

Question 20

What is the principle in Van Gend en Loos?

Answer 20

Directly effective provisions confer rights on individuals immediately.. Must be:
Clear
Unconditional
Not conditional on further implementing measures

Use for treaties, regulations are directives with direct effect (i.e. Primary and secondary law).

Question 21

Which case states that treaty articles are vertically and horizontally directly effective?

Answer 21

Defrenne v SABENA

Question 22

If a treaty article imposes a negative obligation on the member state will it be directly effective? Case?

Answer 22

Yes. Treaty articles are directly effective regardless of whether they impose a positive or negative obligation on the MS.
Lutticke (Alfrons)

Question 23

Are regulations and decisions capable of having direct effect?

Answer 23

Yes. Finanzamt Traunstein

They are capable, subject to the Van Gend en Loos test (CUN)

Question 24

Which case would you use as the authority for the fact that regulations are vertically directly effective?

Answer 24

Leonesio 1972

Question 25

Which case would you use as the authority for regulations having horizontal direct effect?

Answer 25

Antonio Munoz

Question 26

Which case as the authority for recommendations and opinions not having direct effect?

Answer 26

Grimaldi v Fonds

They can’t have direct effect as they’re not binding!

Question 27

What must a member state not do in the period running up to the date of implementation (for directives)?

Answer 27

Make implementation more difficult.

Adenler 2006

Question 28

Which case established that directives may be vertically directly effective? What was the case about?

Answer 28

Van Duyn.

Lady refused entry to move to a job with the institute of Scientology. Sought to rely on right to move freely within the EU, she wanted to rely on a directive (which hadn’t been implemented in the UK) which defined the state’s rules to stop a person moving on grounds of personal conduct. She could cite the provision (vertical DE) but the condition was fulfilled so she was excluded.

Question 29

What is direct effect in relation to directives, when can individuals argue this, and what is the case?

Answer 29

Direct effect is a cure for directives not being implemented properly, it means individuals may rely on the rights conferred to them under such a directive. Means courts can’t benefit from their own failure!

Ratti
E.g. When date of implementation has passed as happened in Ratti itself

Question 30

Which case says there is no horizontal direct effect of directives?

Answer 30

Marshall No1

Here the employer was the NHS so was. A public body, therefore was a vertical action.

Question 31

Which case expanded on the principle that there could be no horizontal direct effect of directives?

Directives are not directly applicable since they need further implementation from the states, so if haven’t been properly implemented this is when direct effect of directives comes in.

Who criticised the no horizontal DE of directives rule in the case?

Answer 31

Faccini Dori

AG Lenz criticised this bitterly. He said horizontal direct effect of directives would have a positive impact on competition and business if prohibition of directive-implementation is different in different countries.
Individuals would be subject to different rules dependant on if they had contracted with a form of the state or another individual.
Lenz also made the point that they should be able to rely on the directive to increase certainty in the law. Rule of law
Also need to have a remedy to keep the state in check. Democratic deficit reduction is more ways to hold state to account

Question 32

What is the tripartite test for ‘emanation of the state’? Which case was this?

Answer 32

Foster 1990 (PUP)

Public service provider
Under state control
Possess special powers for its purpose.

Question 33

What is the test for an emanation of the state in unusual circumstances?

Answer 33

NUT v St Mary’s School
State authority or control
Special powers

When PUP can’t be used call in the SS

Question 34

Are govt owned companies emanations of the state? Case?

Answer 34

No.
Doughty v Rolls Royce
No special powers and not providing a public service

Question 35

What is indirect effect. Need the full quote (2 cases)

Answer 35

The principle that domestic law must be interpreted as far as possible (Marleasing) in conformity with EU refer to achieve the directive’s intended result (Von Colson).

Question 36

What are the three limitations on indirect effect? Two of these have cases you need to state.

Answer 36

Limits of language
Non-imposition of criminal liability (Luciano Arcaro)
Non-retroactivity (Kolpinhuis Nijmegen)

Question 37

What happens when a directive is correctly implemented but incorrectly applied? May an individual rely on the rights conferred to him/her by it? Against whom?

Answer 37

Yes, but only vertically, since the directive has not been implemented in such a way as to achieve the results of the directive’s intention.
M&S v commissioners

Question 38

In which case did the UK give assent to the ajar leasing principle of indirect effect?

Answer 38

Webb v EMO. HoL interpreted an earlier UK act to be in line with a directive.

Question 39

Which case says that you can’t distort the meaning of legislation through interpretation if that national legislation was passed specifically to enact a directive?

Answer 39

Pickstone v Freemans.

Question 40

Another UK case where it wasn’t possible to interpret the legislation in a way to give indirect effect to a directive?

Answer 40

Duke v Reliance
V similar facts to Marshall No1
Purposive approach was rejected

Question 41

In which case did the ECJ say that a purposive approach must sometimes be taken in order to interpret national legislation in line with the directive (indirect effect)?

Answer 41

Lister v Pfeiffer

Question 42

What does incidental effect of directives mean? Case?

Answer 42

CIA v Signalson
Where in a horizontal dispute and the directive hasn’t been properly implemented,my out can argue that the national legislation is in breach with the directive - so get it struck down and win the case, thereby indirectly relying on the rights conferred to you under the directive in a horizontal dispute.

Question 43

Name another case (other than Signalson) where there was an incidental horizontal effect of a directive.

Answer 43

Unilever Italia

Question 44

What was Mangold about?

Answer 44

Age discrimination.
It said that where a directive contains a general principle of EU law, the principle may be horizontally directly effective, even though the directive itself would not be.

Heavily criticised, said to have been a very weak decision. ‘The worst judgment the CJEU has ever given’. Age discrimination was such an unfamiliar concept that MSs were given 8 years to. Implement the directive, but the court still said age discrimination was a general principle and so could be relied upon.
This leaves the way for the destruction of the no horizontal DE of directives rule.

Question 45

In which case did the AG say he wasn’t convinced by the ruling in Mangold? Does it matter?

Answer 45

Palacios 2007

No, AG’s opinions aren’t binding

Question 46

Which case applied Mangold in a horizontal dispute?

Answer 46

Swedex
This case confirmed that the Charter of Fundamental Human Rights is equivalent to a treaty, therefore if an unimplemented directive contains such rights then the individual may rely on the directive by virtue of these rights in a horizontal dispute.

Question 47

In which recent case was it tried (but failed) to apply Mangold? Why was it rejected?

Answer 47

Dominguez 2012 
Failed because the right to annual paid leave can't be regarded as a fundamental human right. 
Advised three steps:
A. Indirect effect
B. Direct effect
C. State liability

Here relied on Francovich in order to obtain compensation since the law was not in conformity with EU law.

Question 48

What are the three reasons FOR the rule?

Answer 48

TND
A. Textual argument
Directives create obligations to only MSs so shouldn’t be able to use them against other individuals
B. Normative argument
Legal certainty. If could invoke directives horizontally then an individual might not know whether to comply with the national law or an unimplemented directive. Would be very complex for them to find out. They could, in principle, do so, but it would lead to a lot of litigation and cost.
C. Distinction Argument
If allow horizontal direct effect of directives then there would be little distinction between a directive and a regulation. (This isn’t persuasive since the same could be said for vertical DE of directives)
(NB. Have to consider AG Lenz’ criticism too! RoL argument, legal certainty, don’t want different rules for people in different countries, or different rules dependent on if you have contracted with the state or another individual, would have implications for business and competition, and would increase the democratic deficit)

Question 49

Which view of the horizontal direct effect of directives rule do you prefer?

Answer 49

Prefer its retention.
Because of the strength of the Normative Argument - businesses shouldn’t have to weigh up whether or not to comply with national legislation or an unimplemented directive. This would be incredibly complex, costly and absurd.
Plus need to consider the state liability argument in full.

Question 50

Which case established procedural autonomy and equivalence?

What is procedural autonomy? What is equivalence?

Answer 50

Rewe 1976
Procedural autonomy - MSs are autonomous, therefore under no duty to establish special remedies

Principle of equivalence - rights deriving from EU law must be subject to the same procedures as rights deriving from national law. So remedies under national law should be made available in the same way, to ensure the observance of EU law.

Question 51

What’s the difference between the principle of equivalence and the principle of effectiveness?

Answer 51

Principle of equivalence states that rights deriving from EU law must be subject to the same procedures as rights deriving from national law

Principle of effectiveness means that national procedures shouldn’t make it impossible for the claim to be made in practice.

Question 52

Which case summarises the position so far in relation to the procedural rule, equivalence, effectiveness and the limits to these principles?

Answer 52

Unibet 2007.

Question 53

When will the EU pay for a violation committed by one of its institutions?

Answer 53

When there has been a sufficiently flagrant violation

Aktien-Zuckerfabrik

Question 54

Define state liability (2 cases needed for this)

Answer 54

The principle that individuals may recover compensation from a MS where that MS has failed to carry out ANY (Brasserie du Pecheur) of its obligations under community law (Francovich).

Question 55

What did Francovich set out?

Answer 55

The three conditions needed for state liability.
indirect effect was impossible since no relevant Italian law, couldn’t use direct effect since wording of directive was unclear (Van Gend en Loos)
So looked to state liability. Looking for state to pay for breach of EU law.
3 conditions (depends on NATURE of breach):
A. Confer rights in individuals
B. Rights must be easily identifiable
C. Must be a causal link between damages suffered and the state breach

This case was the first time the state had to pay, so it caused a stir.
Judgment didn’t give scope of state liability or any deadlines.

Question 56

Which cases scoped out the principle of state liability? What was the scope established?

Answer 56

Brasserie du Pecheur and Factortame III
Scope = unlimited
Breach must be SUFFICIENTLY SERIOUS
Factortame III - if there is discretion afforded to the MS then it would be unreasonable to impose state liability on them.
Brasserie - has the state exceeded the limits on its power in a manifest and grave manner?

Question 57

If a MS fails to implement the directive at all will this give rise to state liability?
What about late implementation?
Case for this?

Answer 57

Dillenkofer
Failure to implement automatically = a sufficiently serious breach.
There is no discretion over late implementation, so it will be sufficiently serious.