Enforcement of EU Law Flashcards
Enforcement of EU Law
–> individualizing the scope of general legal norm
vis-à-vis an individual addressee
= “implementation”
decentralized enforcement
all MS are responsible for the enforcement of EU law (i.e. their implementation)
if not explicitly stated otherwise
Art. 291 para. 1 TFEU executive & legislative branch
Art. 19 para. 1 subpara. 2 TEU judiciary
–> principle of procedural autonomy
(MS must determine bodies & procedures)
equivalence, effectiveness & rights to an effective remedy
- minimum quality standards for functioning of any MS enforcement system
–> principle of sincere cooperation (vertical loyalty principle) Art. 4 para. 3 TEU
& right to an effective remedy
Art. 19 para. 1 subpara. 2 TEU
–> ensure full judicial protection of an individual’s right under EU law
two absolute limits to autonomy of MS enforcement:
national procedural rules governing actions for safeguarding individual rights under EU law must not..
1) be less favourable than procedures governing similar domestic actions
–> principle of equivalence
2) national rules must not make it practically impossible or excessively difficult to exercise of rights conferred by EU law
–> principle of effectiveness
–> procedural rule are to be interpreted in conformity with EU law (principle of equivalence & effectiveness)
–> if not possible, provision set aside
interim measures
right to an effective remedy Art. 19 para. 1 TEU incl.
- right of access to a court & initiate proceeding
- right to obtain interim legal protection if neccessary to secure the claim until final judgment
–> interim relief against measures of MS law that deem incompatible with EU law
or private parties based on such incompatible acts
(e.g. against the illegal withdrawal of a business license)
- requirements governed by MS law
interim relief against EU law
conditions prescribed by the EU
1) MS court has serious doubts about.the validity of an EU act
2) preliminary ruling on the question of validity has been referred to the CJEU
3) matter of urgency + threat of irreparable damage
4) MS court takes due account of the Eu interest before granting relief
5) MS court has taken due account of all relevant case law
active vs passive court roles
MS authorities and courts have duty to introduce and invoke EU law in proceedings on their own initiative
how duty is fulfilled depends on type and nature of proceeding
administrative proceedings:
(administrative authorities & courts)
- MS follow principle of ex officio, i.e. initiated and conducted by authority on its own motion
- parties concerned no control over their opening, scope and progress
–> check & observe all law relevant to the decision on their own initiative
- autonomous investigation, incl. full power to ascertain all relevant facts
–> a party’s request for evidence non-binding
- non-compliance is an error of law that renders the decision witout need for the partys to raise these issues
civil court proceedings:
- full party disposition over initiation, scope, conduct and termination of proceedings
- principles of application and negotiation
–> proceedigns only carried out at request & according to the will of the parties
–> choice what facts and evidence to submit
–> parties choose relevant norms to be taken into account
–> civil courts must know and apply law relevant, but not allowed to introduce additional legal provision
- usually EU law respects limits: civil courts do not have to raise EU law issues
- BUT where national law grant a civil court a more active role (e.g. Austria), those powers must be used to apply relevent EU law
–> if powers ar optional, they turn into obligation
–> van der Weerd judgment 2007
- exception: Consumer courts
- but first-time invocation of EU law must be possible even in the last instance (principle of effectiveness provides leeway to overcome prohibition of novation)
suspension of proceedings
MS enjoy procedural autonomy with regard to the question whether proceedings should be suspended if an EU institution is examining the case in parallel
possible constellations:
1) suspension of the national court proceedings pending a preliminary rulings procedure
- MS court’s own reference: excepted to suspend
- reference by other courts, court should consider suspending until the judgment if similar factual or legal issues (erga omnes-effect)
2) pending infringement proceedings
- when concerning similar legal or factual issues, court should consider suspending
3) parallel proceedings in competition law
–> EU and MS institutions are assigned partly overlapping competences
- MS court obliged to suspend
red iudicata principle
interplay between EU & MS legislation may result in the need of balancing the primacy of EU law against the principle of legal certainty
–> individuals may have relied on MS legislation which later was declared incompatible with EU law
–> EU law accepts final administrative decisions or court rulings may be allowed to maintain legal force despite a material incompatibility with EU law
–> in the interest of legal peace and certainty, some level of error is accepted
–> principle of res iudicata (the settlement of a dispute through a final binding decision) in principle recognized by EU law
preconditions:
Kühne & Heitz 2004
(more detail maybe??)
Rights & Obligations for Individuals
objective of EU law enforcement by MS is to give effect to the rights and obligations of individuals laid down in EU provisions
in EU’s supranational legal order individuals /natural and legal persons) legal subjects
Individual rights “arise not only where there are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon institutions”
(e.g obligation for MS from which individual may benefit)
- Köbler case 2003
–> clearly defined if:
- determines beneficiary
- obligation’s addressee
- exact scope & content of obligation (=claim)
–> must be fully operable (complete & not subject to conditions) –> justiciability of the claim (you enforce infront of a court)
- primary law & regulations (Art. 288 TFEU) can have directly effective obligations for individuals and MS
–> invokable infront of national courts - directives only upon transposition or indirect substitute for direct effect
direct effect and enforcement of rights
direct vs indirect
–> indirect application more frequent in practise
Indirect = MS law applied directly but its content determined by provisions of EU la
(transpositions of directives, interpretation of MS law in conformity of EU law)
criteria for direct effect: justiciability
term “direct effect” designates whether EU provision is suitable for enforcement by national authority or court
–> precondition that right (claim) or obligation granted in provision which determines all aspects relevant for enforcement
–> provision fully operational
–> direct effect vs. direct applicability
- not all EU law provisions lay down fully operational rights or obligations for individuals
- all EU law provisions directly applicable (becoming part of MS legal order without ratification)
criteria: justiciability
- court (or authority) can render decision based on that provision
–> all the informations needed included
- must lay down the litigated claim in its entirety (who owes what whom) & unconditionally (now)
- scope clear (but indication may be indirect, e.g designation of the obliged party but no reference to the beneficiaries)
conditions direct effect
1) stipulates an individual right or obligation
2) clearly and precisely worded regarding its content and scope
3) without further conditions or restrictions
–> not subject to any further acts at MS or EU level
direct effect of primary law
most primary law relevant for functioning og the internal market direct effect
direct effect may be blocked for horizontal enforcement (i.e. litigation between private parties)
–> when obligation is addressed to MS, not private parties
(may be overcome by using a substitute for direct effect)
- e.g. for fundamental freedoms
direct effect of secondary laws in general
regulations & decisions may lay down right or obligations for individuals
–> suitable for direct effect
- no barrier to their horizontal enforceability
–> MS (inverse vertical relationship) & private parties (horizontal relationship) may invoke provisions
International agreements:
Art. 216 para. 2 TFEU
- binding for EU (and thus MS) upon ratification
–> become directly applicable
- relied upon before CJEU or MS only in exceptional cases
–> only exceptionally capable of having legal effect
+ criteria of justiciability
+ CJEU takes telos into account
–> was direct enforceability intended by parties?
direct effect of directives in particular
only when systematic errors occur
–> Art. 288 TFEU directives exclusively addressed to MS
- direct effect of directives repair tool (error in implementation process)
–> ensures individuals are not deprived of a guaranteed right if MS failed to comply with its obligations under Art. 288 TFEU
–> can only be enforced for the benefit of individuals!
requirements for the direct effect of directives
1) error in transposition
2) expiry of the transposition date
(may have limited preliminary or advance effect
–> obligation of non-obstruction of its objectives
(obligation for the MS to “stay out of the way” of the directive’s purpose)
–> but no general direct effect)
3) justiciability
(of the directive)
4) only in vertical relations
(individuals vis-à-vis MS)
constellations of direct effect
- classic
Ratti case 1979:
- outlines classic & basic constellation of vertical direct effect of directives
- manufacturer Ratti was prosecuted in Italy for labeling his chemical products in a way that followed EU directives, but not Italian national laws, which hadn’t yet been updated (but should’ve been)
–> incorrectly transposed or non-transposed directive is relied upon for the benefit on an individual vis-à-vis a state
constellations of direct effect
- inverse vertical effect
Kolpinghuis Nijmegen case 1987
- exclusion of inverse vertical effect
(MS vis-à-vis individual)
- Dutch café was prosecuted for selling carbonated tap water as mineral water, based on an unimplemented EU directive that prohibited this practice (unsuccessfully)
- directives only oblige MS (sole addressees)
- Ms may not derive advantage from their own failure
- exclusion also applies in cases of potential criminal liability based on provisions of a non-transposed (or ill-transposed) directive
Faccini Dori case 1994
- exclusion of horizontal direct effect
- Faccini Dori tried to cancel a contract she had signed at a train station, relying on rights from an unimplemented EU consumer protection directive, but the company refused to honor it
- directive cannot be relied on in a dispute between individuals to set aside contrary national law
alternative tools for a horizontal application of directives
1) upon closer examination, litigation does not involve horizontal effect (extension of the concept of state)
–> party that looks like a private company is actually closely linked to the State
2) directive’s provision not directly applied, instead pre-excisting domestic law interpreted in conformity with the directive
3) directive is only an expression of a more general principle
–> some directives reflect general principles of EU law (like non-discrimination or fundamental rights) that apply to everyone, including private individuals
–> these principles can be enforced in horizontal situations, even though the directive itself cannot be directly applied between private parties
–> directive serves as a guide to interpret or concretize the principle, but the legal basis for the claim is the general principle, not the directive
4) directive has reverberate effect on private parties
–> a procedural mistake by the State causes the invalidation of national law, which affects private litigation
example: Internal Market Transparency Directive 2015/1535:
- requires Member States to notify the European Commission before they adopt new technical regulations (like rules on product standards)
–> If they don’t notify properly those national rules are invalid (nullity)
–> technical rule never legally enters into force
–> these invalid laws can’t be used, even in private dispute
advance effect of directives
possible effects prior to expiry of transposition period
- generally MS courts allowed, but not obliged, to take into account a directive before the transposition deadline
- exceptional obligation arises from prohibition to frustrate the objectives of EU legislation (seriously undermine the purpose or goal)
–> Art. 4 para. 3 TEU’s loyalty requirement
–> MS must refrain from adopting measures that frustrate the objective from the directive
(their action makes it impossible to reach the directive’s goal later)
–> only applies to final binding meassures with irreversible effect
Overcoming Barriers to Direct Effect
(1) Broad concept of a state
provision lack direct effect if…
1) lack of justiciability
2) enforcement blocked in the specific circumstances
–> substitutes aimed at 2nd constellation
(1) barrier horizontal legislation
(between private parties)
–> removed by qualifying one party as an emanation of a state
Overcoming Barriers to Direct Effect
(a) entities controlled by the stae
(a) entities controlled by the state
- “MS” refers to any public authority or body in all branches of government & entities related to such authorities though legal, economic or other factual bonds
–> if emanation of a state determined by qualitative criteria
1) bodies benefiting from “imperium”
- public authority in nuce = state bodies with sovereign power
–> final authority to impose unilateral obligations on individuals and to sanction violations
2) entities & bodies tied or related to such bodues
- any entity over which a public authority (i.e. a body carrying imperium) exercises legal, economic or other factual control = emanation of the stae
3) bodies to which public authority has granted special rights
(e.g. a monopoly, rights associated with the performance of a service of general interest, etc.)
legal form doesn’t matter!
public undertakings are emanations of a state
–> must comply with state-oriented norms of EU-law
(e.g. general prohibition of discrimination)
Overcoming Barriers to Direct Effect
(b) inescapable measures
addressees of state-oriented EU law provision may exceptionally be genuine private parties
- must possess de facto regulatory power
–> their actions have similar factual coercive effects as is typical for imperium
(their rules are unavoidable for third parties)
examples:
sector-wide transfer rules among sport associations or other professional associations, arrangements covering the conditions of employment across a whole sector, private standards set by standardization organizations and certain collective actions of trade unions
–> all bound by the fundamental freedoms in the same way as public authorities
Overcoming Barriers to Direct Effect
(c) indirect breaches of EU law
Arts. 4 para. 3 & 19 para. 1 TEU:
MS obliged to ensure effective application of EU law
–> must put in all legal & factual measures required to safeguard effectiveness
–> MS responsible to ensure effective application of EU law where the effectiveness jeopardized by private actions
–> MS liable for particularly serious impairments caused by private individuals
–> in reality rare exception in particular vis-à-vis private actions affecting the internal market
(especially when private actions disproportionately affect EU interests with regard to the circumstances
examples: recurring boycott measures, roadblocks or attacks on goods transports from other M
