Enforcement of EU Law

Question 1

Art. 288 TFEU

Answer 1

identifies the 3 main types of EU acts: Regulations, Directives and Decisions.

Question 2

Art. 258 TFEU

Answer 2

the responsibility of the EU Commission to start infringement proceedings, which are directed at breaches by the Member States of their obligations.

Question 3

Art. 258 TFEU; Petition of Individuals

Answer 3

Individuals are allowed to make a complaint in order to inform the Commission of an alleged breach by a member state, and upon this recommendation the Commission has the discretion to investigate

Question 4

Art. 259 TFEU

Answer 4

A Member State which thinks that another Member State has failed to fulfill an obligation can bring a matter before the CJEU

Question 5

Art. 260 TFEU

Answer 5

Defines the consequences, which flow from a finding by the Court of Justice that a Member State has failed to comply with its obligations under the Treaty; Monetary Consequences

Question 6

Hedley Lomas Case

Answer 6

• UK prevented the export of live sheep to Spain because they Spanish did not comply with its obligations under the EU directive.
• The UK had breached its obligations under the treaty because it took matter into its own hands
• that the UK should have followed the proper approach as it stemmed from the treaty

Question 7

Commission Procedures under Art. 258; Preliminary

Answer 7

The Commission will first try and resolve the problem both amicably and informally with the Member State concerned.

Question 8

Commission Procedures under Art. 25; Stage 1; Letter of Formal Notice

Answer 8

A formal letter to the Member State concerned in which it indicates the grounds on which the Commission believes that the Member State may be in breach of its obligations. The purpose of the letter is to put the Member State on notice that the Commission intends to initiate proceedings

Question 9

Commission Procedures under Art. 25; Stage 2; Reasoned Opinion

Answer 9

statement of the reasons, which lead the Commission to believe that the Member State has breached its obligations. The Reasoned Opinion will also set out a time period, which will enable the Member State to comply before proceedings are brought.

Question 10

Commission Procedures under Art. 25; Stage 3; Applications to the Courts

Answer 10

If the Member State has failed to comply with the reasoned opinion, in the time period laid out, then the Commission will finally bring proceedings against the Member State through the CJEU.

Question 11

Van Gend En Loos

Answer 11

• The EU constitutes an entirely new Legal order of international law where the MS have limited their sovereign rights.
• The states have acknowledged that community law has an authority, which can be invoked by nationals before Courts.

Question 12

Direct Effect; Definition

Answer 12

Rights are created immediately by EU law itself and do not need to be translated or transposed by being incorporated into Domestic legal orders by norms of national law.

Question 13

Costa v ENEL

Answer 13

• Then the Law stemming from the treaty could not, because of its special nature, be overridden by any domestic legal provision with being deprived of its character as Community law and without the legal basis of the community itself being called into question.
• The Idea of having a single uniform rule across the entirety of the EU would be destroyed by Member States apply national laws contrary to the EU and this would in effect call into question the very existence of the EU.

Question 14

EU law to have Direct effect it must satisfy the requirements of Justiciability

Answer 14

The Wording of the law must be

1) clear and
2) unconditional which
3) is not a positive but a negative obligations

Question 15

Unconditionality

Answer 15

means determining whether the obligation is immediate or depends on some other event happening.

Question 16

Clarity

Answer 16

If the lack of clarity reveals a gap that needs to be filled by the adoption of other provisions, then it is precluded because it would involve the Courts going beyond their judicial function and substituting themselves as legislators.

Question 17

Partial Direct Effect; Direct Effect of Some Provisions

Answer 17

a regulation or a directive may contain some articles which are not directly effective but at the same time contain other articles in the same regulation/directive which can be Directly effective.

Question 18

Reyners v Belgium

Answer 18

right for someone to set up a business in another MS.
R was a Dutch national who had the qualifications to practise law in Belgium but was not allowed because he was not a national. ART.43 TFEU was capable of producing direct effect in this situation

Question 19

Direct Effect up to a minimum threshold

Answer 19

The instrument defines a minimum threshold but allows the Member State or the EU institution to go beyond that threshold.

Question 20

Francovich Case

Answer 20

Ensure payment to workers of salaries owed to them in situations of insolvency of their employer could be directly effective. It was held that the Directive could in principle be directly effective up to the minimum amount it set even though the Member State had the discretion to go further.

Question 21

Directives Definition

Answer 21

are given by the EU institutions to Member States but leave it up to the Member State on how the Directive is going to be achieved. It is therefore up to the Member State to change the legal situation that would ultimately effect individuals.

Question 22

Van Duyn

Answer 22

Community Authorities have, by directive, imposed on a Member states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts.

Question 23

Ratti case; Estoppel perspective

Answer 23

The reason why an individual must be allowed to rely on a directive in a national court is because a Member State should not be allowed to benefit from their own wrong doing and rely on their failure to implement the directive to forgo the individual relying on rights created by the Directive.

Question 24

Wallonie Case

Answer 24

• The Member State must also during that period refrain from taking any Measures liable seriously to compromise the result of implementing the Directive.
• Member State adopts measures before the deadline of implementation and the consequence of this is that the Member State will not be able to comply with the Directive by the deadline, then there is no need to wait until the deadline is reached because it is already known that the Member State will not be able to comply.

Question 25

Vertical Direct Effect

Answer 25

Invocation of an EU Law measure by an individual/private party against a Member State

Question 26

Horizontal Direct Effect

Answer 26

The invocation by an individual/private party in a national court of an EU Law measure against another individual/private party.

Question 27

Marshall Case

Answer 27

Directives cannot have Horizontal Direct Effect: a directive cannot itself impose obligations on an individual

Question 28

In order for Horizontal Direct effect of Directives to occur: Creation of the Foster Test:

Answer 28

State bodies and decentralised authorities whose powers are largely defined and governed by public law are the state or emanations of the state for the purpose of vertical direct effect.

Question 29

Foster Factors to regard what is an emanation of State include:

Answer 29

1. The Origin of the body and/or its powers
2. The Kind of activities that the body engages in (do they provide a public service)
3. The degree of control that is exercised by the state
4. Does the body in question have powers that are different from the kind of powers normally possessed by solely private bodies?

Question 30

The Duty of Harmonious Interpretation

Answer 30

• Developed by the CJEU to address the problem of the lack of direct effect of directives in certain circumstances.
• The Duty of Harmonious Interpretation requires a national court to interpret its national law, in so far as possible, so as to give effect to the aims of a directive.

Question 31

Von Colson

Answer 31

The Courts duty to interpret comes from:

1) The Binding character of the Directives, which obliges Member States to achieve the specified objectives.
2) The General Duty on the Member State, including agencies of the state, the Courts, to take all appropriate measures to ensure the fulfilment of the obligations arising out of the treaty

Question 32

Marleasing

Answer 32

This case expanded the duty of Harmonious interpretation to include a duty on the national court to consider the legal system as a whole to determine whether there is a way to interpret and apply the EU law.
- The Court must look at all past and current legislation

Question 33

The Courts required “so far as possible” for Harmonious Interpretation

Answer 33

• only required “so far as possible” to interpret its national law in the light of the wording and the purpose of the Directive.
• National Courts cannot be forced to adopt an interpretation of national law to achieve a directive that isn’t possible

Question 34

Centrosteel Case

Answer 34

The Court adopted the orthodox view that the Interpretive duty of National Courts can only arise after the period of the deadline for implementation has passed. The idea is that if they MS had implemented the Directive, then there would be no need for the interpretation to exist as the Directive would be a functioning part of national law.