Enforcement of EU Law Flashcards
What key principle is the EU founded on?
Article 2 TEU: the Union founded on respect for human rights, fundamental freedoms and significantly, the rule of law.
Les Verts: CJEU affirmed EU was based on rule of law. This case also underlined the idea of a system of legal remedies; idea of remedies covering both MS and EU institutions; and presence of two routes to review legality of measures adopted by institutions (direct action before EU courts and action before national courts with reference to CJEU).
A. System of Remedies: Main Forms of Action Overview
Action for breach by Member State of its EU law obligations (Articles 258-60 TFEU): Commission or other MS brings action against breaching MS. They declare that MS state has failed to fulfil obligations under Treaty. If failure is persistent, must pay lump sum or penalty payment.
Action before a national court: individual/ private party or State entity brings action against a breaching individual/ private party or State entity. Remedies available under national law (subject to principle of equivalence and effectiveness); or where relevant, damages under Francovich/ Brasserie du Pecheur principle. National court may/ must refer issues of interpretation of EU law to CJEU (Article 267 TFEU) and cannot declare EU act invalid, need to refer question to CJEU (267).
Action in annulment (Article 263 TFEU): MS/ EU institution or a natural/ legal person brings action against EU institution that is the author of Act. Remedy would be annulment of act. Natural/ legal persons must demonstrate locus standi.
Action for failure to act (Article 265 TFEU): MS/ EU institution or natural/ legal person brings action against EU institution who should have adopted Act. Remedy is declaration that defendant institution has failed to act. Natural and legal persons must demonstrate locus standi.
Action in damages (Article 340/ 268 TFEU): individual/ private party (or possibly MS) brings action against EU institution responsible for damage. Remedy would be damages. Broadly speaking, same conditions as Brasserie du Pecheur, mutatis mutandis.
Who is responsible for enforcing EU law?
CJEU; however, most national courts in MS enforce EU law. E.g. breaches of Union law are typically a matter for national courts; do not give rise to direct actions before CJEU or General Court.
- Infringement Proceedings (Article 258- 260 TFEU)
Direct actions concern breaches of Union law by MS or EU institutions, or other EU bodies/ agencies. Such breaches give rise to infringement proceedings under Articles 258 to 260 TFEU.
Article 258: EU Commission starts infringement proceedings, directed at breaches by MS , before CJEU.
Article 259: empowers MS, rather than Commission, to start infringement proceedings against another MS. However, usage is rare - usually left to Commission.
Article 260: defines consequences of CJEY finding MS’ failure to comply with obligations under Treaties.
(i) Exclusion of Individuals from Enforcement Process (Article 258 to 260 TFEU)
Decision to start infringement proceedings is Commission’s, under Article 258 (or MS, Article 259). Defendant in proceedings is MS. Procedure involves dialogue between Commission and MS.
Individual does not have formal role in proceedings. However, individual can make complaint to Commission of breach of MS and suggest that it should start infringement proceedings. However, Commission’s discretion as to whether or not to start proceedings, individual cannot force them - confirmed in Star Fruit v Commission.
(ii) Stages of Procedure
- Pre-litigation stage: Commission identifies suspected breach of EU law obligations by MS but this does not automatically result in bringing case to CJEU; Commission will try resolving problem amicably and informally.
- Letter of formal notice/ Article 258 ‘letter stage’: Commission sends formal letter to MS, indicating in broad terms the grounds upon they may be in breach of obligations. Purpose of letter is to give notice to Commission’s intention to initiate Article 258 proceedings, so they can submit own observations and begin preparing defence.
- Reasoned opinion: Commission sends MS ‘reasoned opinion’, a coherent statement of reason which lead it to believe MS is in breach go obligations. This also sets time-limit for MS to comply and if none, time period to comply is reasonable time.
- Application to CJEU: action before CJEU is only admissible in MS fails to comply by deadline. However, even if MS complies after deadline, action may be inadmissible.
(iii) Consequences of finding infringement by Court (Article 260 TFEU)
Declaratory in nature: simply declares existence of a breach. This creates obligation on MS to take necessary steps to comply with Court’s judgement (Article 260 (1) TFEU).
Article 260 (2) recognises possibility of MS not taking necessary steps to comply; Commission can go back to CJEU and after Maastricht Treaty entered into force, Commission can request CJEU to impose financial penalty (lump sum, periodic payment or both). Commission can issue letter of formal notice and impose financial penalties before Court gives MS opportunity to submit its observations.
MS’ failure to adopt measure
(vi) Liability in damages of private parties for breaches of EU law
Principles developed by Court in context of state liability should apply in regards to obligations imposed on individuals. Entitlement to damages should hold here too.
Confirmed in Courage v Crehan, competition law case.
(v) Factors to take into account in evaluating seriousness of breach:
Factors help to distinguish between situations where MS has, in good faith, tried to comply with its obligations under EU law but has failed due to some understandable error and situations (ex parte BT) and where MS knew/ should have known it was in breach (Hedley Lomas).
(vi) Liability in damages of private parties for breaches of EU law
Principles developed by Court in context of state liability should apply to obligations imposed on individuals. Entitlement to damages should hold here too.
Confirmed in Courage v Crehan, competition law case.
- State Liability in Damages for Breaches of EU Law:
CJEU’s original approach on remedies in national court for EU law was that only remedies available are ones available in national law (referred to as principle of procedural autonomy). Rules related to remedies remained governed by national law, subject to two requirements:
- Rules applied for enforcement of EU law rights must be no less favourable than rules applied in comparable situations of purely domestic nature (principle of equivalence).
- Rules applied must not result in exercise of EU law rights as virtually impossible in practice (principle of effectiveness).
(i) Francovich and state liability for failure to implement directive
Principle of state liability in damages for failure to implement a directive was established.
(v) Factors to take into account in evaluating seriousness of breach
Factors help to distinguish between situations where MS has, in good faith, tried to comply with its obligations under EU law but has failed due to some understandable error and situations (ex parte BT) and where MS knew/ should have known it was in breach (Hedley Lomas).
