Court Actions Flashcards
Pending direct actions in court of justice after brexit
After transition period any pending causes (including appeals) fall within jurisdiction of CJEU until complete
New direct actions in CJEU after brexit
If commission wants to bring proceedings against U.K. for action or inaction during transition period it must do so within 4 years
What can the CofJ deliver preliminary rulings on
Validity and interpretation of EU law
Actions of institutions, bodies, officers or agencies of EU
Things outside jurisdiction of C of J
Rule of application of EU law
Interpretation of national law
Compatibility of national law with EU law
When can a national court refer a question to C of J
Whenever they think it necessary to enable it to give judgement
Discretion to refer
Any court can refer a question to C of J when it thinks a decision on EU law is needed to enable it to give judgement
Obligation to refer
If a question of EU a law is raised before a national court of last resort / no chance of appeal then they must refer it to C of J
What preliminary questions will C of J decline to answer
Hypothetical
Irrelevant or
No genuine dispute
National court didn’t give sufficient info
Can a national court refer a question to C of J even if they have ruled on a similar matter before or a superior national court have already ruled on the point
Yes
Once the C of J has given a preliminary ruling can the national court depart from it in future cases
Yes if different facts
Who is bound by C of J preliminary rulings
All national courts of EU MS
Can a lower court decide not to exercise its discretion to refer
Yes even if the question is necessary to reach judgement - it can reach its own conclusion on the question of EU law
When does a national court NOT need to make a referral for a preliminary ruling
Question of EU law not relevant
c of J previously ruled on the point
Interpretation so obvious there’s no reasonable doubt
Can still refer anyway if the national court thinks it appropriate
What is a reference of validity
If national courts decision depends on validity of EU measure it must make referred to C of J to
Can national courts declare EU law invalid
No
But can grant interim relief by temp suspension of national measure
What if a national court doesn’t meet its obligation to refer a question to C of J
State liability in damages arises
Preliminary rulings to C of J after brexit
U.K. courts can make referrals on the meaning of any aspect of part 2 of the withdrawal agreement for 8 years beyond transition period
Who can bring an enforcement action against a MS in breach of treaty obligations
Commission or MS
Process for commission to bring enforcement action against MS in breach of treaty obligation
Raise informally Letter of notice setting out suspicions MS has reasonable time to reply Negotiate - try to settle Reasoned opinion setting out grounds and deadline MS can submit observations C of J if not fixed by deadline
How does the commission discover the MS has breached a treaty obligation
Investigations, complaints from individuals or reports from MS
Can enforcement action be brought against a MS for failure to act
Yes a breach of a treaty obligation can be an act or a failure to act
Is the commission compelled to bring an enforcement action against an MS who breaches a treaty obligation
No - discretion to act but not a duty
Does a letter of notice and reasoned opinion have any binding force
No
Who is the defendant in an enforcement action
Always the MS gov regardless of which state agency breached the treaty ob
What penalties can the court give in an enforcement action
Any level of penalty even if breach is remedied before judgement if it was long and serious
Process for enforcement action by MS against MS who breached treaty ob
Take it to the commission
Commission hears submission from both MS
Delivers reasoned opinion
Seeks settlement
Might take it over
Which is an action for annulment
It is the JR for an EU act
What are the JR grounds for annulment action
Lack of competence
Procedural error
Breach of treaty
Misuse of power
Who can bring an annulment action against an EU act
MS, EU institution or individuals
EU act must be capable of changing the legal position of the applicant
Who is an annulment action brought against
An EU institution
What acts are reviewable under an annulment action
Action must be capable of changing the legal position of the applicant
How long do you have to bring an annulment action
2 months from publication, notification or knowledge
Three classes of applicant
Privileged - MS, parliament, council and commission
Semi privileged - central bank, court of auditors and committee or regions (when interests are affected)
Non- privileged - individuals (when it’s addressed to them or they are directly and individually concerned)
What is direct concern
Causal link between act and damage
If MS is given discretion in implementation then the chain is broken for annulment action between EU act and loss
Plaumann formula for individual concern
Affected due to circumstances or characteristics unique to them
What happens if an annulment action is successful
Measure is void and institution must comply
What is an action for failure to act
Can be brought by privileged and non privileged applicants against EU institution where they have a sufficiently defined duty to act. Applicant must be directly and individually concerned by act. Asked to act and failed to define position within 2 months.
Consequences of successful action for failure to act
Declaration of failure to act
Institution must take the necessary measures to comply with judgement
What is a plea of illegality
Challenge legality of an act using JR grounds.
Not a cause of action- must be brought alongside another action
Who can bring a plea of illegality
Privileged and non privileged applicants
Is there a time limit on plea of illegality
No it can be brought even after two months have passed
Consequences of successful plea of illegality
Declaration of incompatibility
Do you need an annulment before you claim damages for loss due to EU action
No
It is an independent action
How long to bring damages for loss due to EU action
5 years from materialisation of damage
When can you bring a claim for damages for loss due to EU action
Official - necessary extension of tasks entrusted
Institution - wrongful or illegal act, damage and causation
Rule infringed confers rights on individuals, breach is sufficiently serious and causal link between breach and damage
What isa sufficiently serious breach for claim for damages against EU act
Manifest and grave disregard of discretion by EU
Restrictions on bribing a claim for damages due to loss caused by EU act
Must mitigate loss
Exhaust national causes of action which result in compensation
Quantify loss beyond normal risks of business
Which courts can award damages against national authorities
Only national courts
Which courts can give damages against EU institutions
Only EU institutions
