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Principles and Foundations of EU Law > Centralised Enforcement of EU Law - The Role of the CJEU > Flashcards

Centralised Enforcement of EU Law - The Role of the CJEU Flashcards

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1
Q

What is this week’s theme about? (3)

A

1/ centralised enforcement of EU law

2/ upon EU MS (mostly Art. 258 TFEU)

3/ upon EU itself (mostly Art. 263 TFEU)

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2
Q

Why is centralised enforcement a relevant and necessary tool?

A

Bc decentralised enforcement has its handicaps and does not always guarantee effective judicial protection of EU rights

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3
Q

How can EU law be enforced? (3)

A

1/ rights of private parties

2/ rights of EU institutions

3/ rights of MS

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4
Q

Against whom can EU law be enforced? (3)

A

1/ MS

2/ private parties

3/ EU

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5
Q

Recap info about decentralised enforcement of EU law upon MS? (4)

A

1/ basis is primacy of EU law (Costa v ENEL)

2/ improving legal remedies and political agenda are a good combination in this area (e.g. EU citizens and other entities as ‘new watchdogs’)

3/ various mechanisms to enforce EU rights and strengthen the EU legal order (direct and indirect effect, MS liability)

4/ CJEU not necessarily involved

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6
Q

Considerations surrounding decentralised enforcement of EU law upon the MS via Art. 267 TFEU? (2)

A

1/ national courts play lead role

2/ CJEU possibly involved through preliminary references on interpretation

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7
Q

Considerations surrounding decentralised enforcement of EU law upon the EU via Art. 267 TFEU? (3)

A

1/ national courts less prominent

2/ CJEU has lead role through mandatory preliminary references on validity issues (see Foto Frost)

3/ as such, this type of enforcement does not appear entirely ‘decentralised’

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8
Q

What does centralised enforcement entail?

A

The enforcement of EU law directly before the CJEU

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9
Q

Who can be involved in procedures of centralised enforcement? (5)

A

1/ EU vs MS (infringement proceedings)

2/ MS vs MS (infringement proceedings)

3/ MS vs EU (mostly actions for annulment)

4/ EU vs EU (mostly actions for annulment or failure to act)

5/ private parties vs EU

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10
Q

What is a difficulty surrounding the centralised enforcement of EU law by private parties against the EU? (3)

A

1/ hard for individuals to litigate against the EU before the CJEU

2/ this is linked to strict conditions of locus standi

3/ if no locus standi, alternative is decentralised enforcement via Art. 267 TFEU before national courts

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11
Q

What is lacking among the centralised enforcement actions?

A

There is no private direct action against MS => always decentralised enforcement here

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12
Q

What is the classic centralised enforcement action of EU law upon MS? (2)

A

1/ treaty infringement procedures

2/ Art. 258 TFEU especially (Commission vs MS)

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13
Q

Main characteristics of Art. 258 TFEU procedure? (3)

A

1/ classic enforcement action

2/ basis is Art. 17(1) TEU, which confers the EC the power to control the process

3/ MS responsibility can be triggered by the legislative, executive and judicial branches of the State (more generally, anything happening within the MS and connected to it)

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14
Q

Which is the most problematic actor regarding the triggering of MS responsibility in infringement proceedings? (2)

A

1/ the ‘iudex’, i.e. judiciary

2/ e.g. Commission vs GER over PSPP ruling

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15
Q

Procedure of Art. 258 TFEU? (4)

A

1/ potentially complaint lodged with the EC

2/ letter of formal notice

3/ if no resolution, reasoned opinion

4/ if still no resolution, referral to the CJEU

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16
Q

Characteristics of Treaty infringement actions against the MS under Art. 258 TFEU? (7)

A

1/ direct enforcement of EU law

2/ quasi absolute discretion of EC

3/ leaves room for dialogue and diplomacy in pre-litigation phase

4/ procedure based on objectivity => MS cannot put forward subjective arguments of guilt, fault, etc.

5/ leaves little room for MS’ defences

6/ judgment of declaratory nature

7/ exceptionally, MS can start proceedings inter se if they are unhappy with the EC’s inactivity (Art. 259 TFEU)

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17
Q

What does the declaratory nature of rulings under Art. 258 TFEU entail?

A

That MS must take ‘necessary measures to comply with judgment of the Court’ (Art. 260(1) TFEU)

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18
Q

Considerations surrounding the possibility to sanction MS under Art. 260 TFEU? (4)

A

1/ purpose is compliance with judgments under Art. 258 TFEU

2/ procedure similar to that of Art. 258 TFEU, but no reasoned opinion

3/ EC can sue for lump sum and/or penalty payment (see French Fisheries Policy I => EC could sue for both sanctions)

4/ special case of Art. 260(3) TFEU, applicable in cases of non implementation of a legislative directive

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19
Q

Characteristic of lump sum? (2)

A

1/ punitive

2/ for the past

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20
Q

Characteristic of penalty payment? (2)

A

1/ preventive

2/ for the future

21
Q

How are lump sums and penalty payments calculated? (4)

A

1/ see EC Communication of 2005

2/ duration

3/ seriousness

4/ ability to pay

22
Q

How can EU law be enforced upon the EU? (3)

A

1/ premise: EU is based on the rule of law and respect for FR

2/ direct enforcement (annulment, failure to act, damages, plea of illegality)

3/ indirect enforcement (PR on validity)

23
Q

Which acts of the EU can be reviewed under annulment proceedings of Art. 263? (3)

A

1/ acts of an EU institution or agency

2/ binding act (‘defining the legal position of a person or entity’; ‘intended to have legal effects’)

3/ label of the act is not significant to characterise it as binding (‘whatever their nature or form’)

24
Q

Which acts are excluded from the annulment proceedings under Art. 263? (3)

A

1/ preparatory acts

2/ acts of MS

3/ primary EU law

25
Q

Who are the privileged applicants for Art. 263 procedure? (2)

A

1/ MS vs EU

2/ EU institutions inter se

26
Q

What do privileged applicants benefit from under Art. 263? (2)

A

1/ broad grounds for annulment

2/ strict deadline of 2 months

27
Q

What are the broad grounds for annulment under Art. 263 if the applicant is privileged? (4)

A

1/ lack of competence

2/ infringement of essential procedural requirement

3/ infringement of Treaties or any rule of law relating to their application

4/ misuse of power

28
Q

Who are non-privileged applicants under Art. 263?

A

Private plaintiffs, i.e. anyone who is not a MS or an EU institution/agency

29
Q

When is the action of non-privileged applicants admissible under Art. 263(4)? (3)

A

1/ when one is the addressee

2/ when not the addressee but directly and individually concerned by act addressed to somebody else + this act is a (legislative) act of general application

3/ when not the addressee but directly concerned by regulatory act not entailing implementing measures (Inuit)

30
Q

How to assess individual concern under Art. 263 TFEU? (3)

A

1/ Plaumann test: as if addressed to you and you alone

2/ open vs closed group => only closed group can fulfil criteria of individual concern

3/ this leads to harsh consequences (e.g. Danielsson)

31
Q

What did criticism of Plaumann test lead to? (2)

A

1/ revision of Article 263 by Lisbon Treaty

2/ Art. 263(4) now allows non-privileged applicants to challenge regulatory acts not entailing implementing measures

32
Q

Conditions to make challenge by a non-privileged applicant of regulatory act not entailing implementing measures admissible? (4)

A

1/ only direct concern, not individual

2/ initial limit was lack of definition

3/ Inuit: definition of regulatory acts as ‘all acts of general application non being legislative acts’

4/ as such, mainly measures of tertiary law

33
Q

What are the solutions if no direct remedies are available to private parties? (3)

A

1/ only redress is through national courts

2/ Art. 267 TFEU, PR on validity

3/ this leads to many issues

34
Q

What are the many issues linked to the lack of direct remedies for private parties? (4)

A

1/ dependence on national procedural law

2/ difficult access to MS courts

3/ interim protection not always possible

4/ national courts must be willing to refer

35
Q

Which is an interesting case mentioned in the tutorial regarding individual standing before the CJEU?

A

Repasi v. Commission on the legal protection of minority rights in the EP (individual MEP standing before EU courts)

36
Q

What is the topic of centralised enforcement of EU law today? (2)

A

1/ very lively

2/ but chances may be limited

37
Q

What can private parties wanting to legally enforce EU law upon MS do? (4)

A

1/ only decentralised enforcement is possible here

2/ private parties can never initiate direct infringement procedures against MS

3/ they can only ask the EC to do so, but it has a very broad discretion in this regard

4/ as such, private parties will have to claim a violation of their EU rights before national courts in most cases

38
Q

What is the usual example cited when talking about automatic standing of private individuals being the direct addressee of an EU act?

A

EU competition law (e.g. individual decision refusing the merger of 2 companies)

39
Q

What does the Plaumann test require? (2)

A

1/ individual concern

2/ direct concern

40
Q

Characteristics of ‘individual’ concern? (3)

A

1/ act addressed to closed group of people

2/ measure affects the person by reason of certain attributes which are peculiar to them or by circumstances in which they are differentiated from all other persons

3/ i.e. individual must be a de facto addressee of the measure

41
Q

Characteristics of ‘direct’ concern? (2)

A

1/ change in legal situation of individual

2/ no implementing measures required

42
Q

What concern does the requirement of direct concern and no implementing measures lead to? (4)

A

1/ concern surrounding private parties’ access to justice

2/ in such cases, there is no national measure to be challenged before national courts

3/ but there might also be no standing to introduce a legal action before EU courts

4/ concern confirmed in UPA case

43
Q

What did CJEU establish in UPA case as a counterweight to the risks of ineffective judicial protection of private parties? (2)

A

1/ duty of MS to establish a system of legal remedies and procedures which ensure respect for right to effective judicial protection

2/ para 41

44
Q

Contribution of Inuit case? (4)

A

1/ definition ‘regulatory act’ for Lisbon standing test

2/ defined as ‘act of general application which is not a legislative act’ (paras 58, 60, 61)

3/ i.e. all acts which are not adopted according to an EU legislative procedure

4/ nb: if act is addressed to a single or limited number of MS, it is not of general application

45
Q

Contribution of Telefonica case? (3)

A

1/ definition of ‘not entailing implementing measures’ under Lisbon standing test

2/ requires no measure whatsoever to be taken

3/ hence excludes Directives

46
Q

Contribution of Foto Frost case? (3)

A

1/ when doubt about validity of an EU act, national court must refer a preliminary question to the CJEU

2/ this is bc national courts may never declare EU acts invalid

3/ this results from autonomy of EU law

47
Q

Why could the Chernobyl case be relevant for the topic of centralised enforcement? (3)

A

1/ in Chernobyl, CJEU went beyond text of the Treaties and granted EP locus standi

2/ this could be applied by analogy to the situation of private parties

3/ however, current trend shows reluctance of the CJEU to engage in a broad interpretation of standing of private parties

48
Q

How can direct standing in the EU be approached? (3)

A

1/ as a federalised idea

2/ this explains why national courts have a filtering function

3/ simultaneously, national courts also translate an ideal of EU functioning, with 2 levels involved

49
Q

What can happen if a MS is in continuous violation of EU law? (3)

A

1/ Art. 260 TFEU

2/ if CJEU judgment established a MS has breached EU law and the breach is ongoing

3/ then EC can require lump sum and/or penalty payment (French Fisheries Policy I)

Principles and Foundations of EU Law (7 decks)

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