EU Law 1 Flashcards
1
Q
How was the EU established?
A
- The EEC was established by the Treaty of Rome in 1957, which aimed to create a COMMON MARKET and promote ECONOMIC COOPERATION among European countries.
- However, the founding treaties did not include explicit provisions for the protection of fundamental rights.
- Initially, 6 countries became the EEC and sought to create economic integration beyond the coal and steel sector
- EU was established in 1993 by the Maastricht Treaty
2
Q
EU Charter on Fundamental Rights
A
- Drafted and officially ‘proclaimed’ in 2000. Elevated to Treaty status through its annexation to the Lisbon Treaty.
- It has a list of fundamental rights including civic, social, political and economic rights.
- Its rights and freedoms fall under Dignity, Justice, Citizens’ rights, solidarity, equality, freedom.
- Art 51(1) Charter: Applies to all EU institutions and member states when they are implementing EU law and in the context of action.
- Art 6 TEU makes it clear that it did not replace case law on the general principles but adds to it.
- Has explanatory notes
3
Q
Evolution of Fundamental Rights
A
- The Convention of Human Rights was drafted in 1950 by the Council of Europe. Entered into force in 1953. Led to European Court of Human Rights.
- European Convention on Human Rights is
generally held to be the minimum threshold in terms of standards to be applied. - Article 6 of the TEU confirmed that fundamental rights are protected under EU law. It was quite a weak provision as it was non-justiciable.
- Member States thought that a detailed positive protection of fundamental rights in the EU was necessary.
- After the Treaty of Amsterdam, Article 7 of the TEU allowed Council to suspend Member States’ EU rights where they committed persistent and serious breaches of the fundamental rights of EU law.
- Then, the European Charter of Fundamental Rights was proclaimed.
- Member States were going to introduce the Charter in Part 2 of the EU Constitution but the Constitution was rejected.
4
Q
Fundamental Rights Cases
A
- Costa V ENEL
- Stauder
- Internationale Handelsgesellschaft
- Kadi I
- Hauer
- Aranyosi / Căldarăru
- Digital Rights Ireland
- Scottish Ministers
- Fransson
- Glatzel
- Egenberger
- Bosphorous v Ireland
5
Q
Costa v ENEL
A
- Italy nationalised its electricity system and Mr Costa objected to this and refused to pay his electricity bill and was taken to court
- CJEU held that the EEC Treaty has created its own legal system which … became an integral part of the legal systems of the Member States. Thus, Member States must limit their sovereign rights in certain areas.
6
Q
Stauder
A
Even though fundamental rights were not mentioned in the original Treaties, they were still part of the general principles of EU law.
7
Q
Internationale Handelsgesellschaft
A
- Conflict between EU law and German constitutional law case
- Created a possibility to challenge EU ACTIONS on the basis that they breach fundamental rights.
- A technical part of EU law it that it takes PRECEDENT over DOMESTIC RIGHTS LAW BUT the protection of fundamental rights is a general principle of law that must be RESPECTED in the actions of the EU.
- German constitutional court said as long as fundamental rights protection in the EU does not fall below that of the German Constitution, it would not scrutinise EU action in detail (Solonge II)
8
Q
Kadi I
A
- Applicant was placed on a UN Security Council
Committee list, and his financial resources had been severely limited as it was alleged that he had
links to Al Qaeda. - CJEU Struck down a regulation for breach of fundamental rights.
- The CJEU mentioned the AUTONOMY of the EU legal system and the CENTRALITY of fundamental rights as GENERAL PRINCIPLES of Union law.
9
Q
Hauer
A
- EU imposed limitations on wine production
- CJEU held that property rights exist in EU law but can be subject to limitations.
- The CJEU consulted different member states constitutions to arrive at this conclusion.
- The critique of this was it can lead to conflict of laws and law is constantly changing.
- It led to a debate about the need to define fundamental rights protected by EU law and then the EU Charter.
10
Q
Craig and de Burca on the EU Charter
A
The adoption of the EU Charter represents a SIGNIFICANT STEP forward in the protection of fundamental rights in the EU.
They also note that CHALLENGES REMAIN, particularly in ensuring the EFFECTIVE IMPLEMENTATION and ENFORCEMENT of fundamental rights in practice.
11
Q
Aranyosi / Căldarăru
A
- The EU makes extraditions of suspects easier through the European arrest warrant so if one member state has one, the other member states must abide. The applicant did not want to go from Germany to a Romanian prison.
- The EU Charter applied. The suspects should not be returned if there are ‘substantial grounds’ to believe that they would incur ‘a real risk’ of being subject to inhuman or degrading conditions.
12
Q
Digital Rights Ireland
A
- A Directive regulated Internet Service Providers’ storage of telecommunications data and could be used to fight serious crime in the EU.
- CJEU held that this violated fundamental rights under the EU Charter (Art 7 and 8) - the right to respect for private life and protection of personal data.
- Article 52 Charter: MANY of the fundamental rights are NOT ABSOLUTE and have limitations.
13
Q
Scottish Ministers
A
When implementing a DIRECTIVE, member states must respect fundamental rights as GENERAL PRINCIPLES of EU law as far as possible.
14
Q
Barnard and Peers on the EU Charter
A
Barnard and Peers stated that 1. the more EXTENSIVE the JURISDICTION of the CJEU,
2. the more ENTHUSIASTIC its protection of individuals, and
3. the more pronounced the INTRUSION on national law.
15
Q
Scope of Application of EU Charter
A
- When acting within the scope of EU action (protection from oppressive actions) and
- Where the MS is acting in certain circumstances
- When Member States are implementing an EU measure that is based on the protection of fundamental rights (Rutili) or any EU measure (Wachauf).
- When Member States are implementing EU law or trying to lawfully escape the OPERATION of EU law (ERT).
16
Q
Fransson
A
- A man fishing in Sweden near the border of Finland was subject to a tax surcharge & criminal prosecution for VAT tax fraud.
- He argued it breached his right not to be tried twice for the same offence.
- HELD: Since part of the revenue from VAT goes to the EU, the Charter could apply. The criminal penalties were different so there was no breach of Art 50.
- Case criticised for stretching the boundaries of EU law too far to protect fundamental rights.
- Berliiz Investment Fund involved a Directive that did not make express provisions for penalties to be imposed so laws relating to penalties are not within the scope of EU law.
17
Q
Socio-Economics Rights Issue
A
- Some member states do not have socio-economic rights in their constitutions so Art 52(5) of the EU Charter shows that principles in the EU Charter do not give rise to free-standing rights.
- Legislation may be adopted to further implement the aims of principles.
- The charter does not say which provisions are rights and which are principles but leaves it to courts to decide.
- Barnard and Peers highlight that a threat to democracy, fundamental rights, and the rule of law, even in one state, considerably weakens and threatens the functioning of the EU.
- Barnard and Peers highlight that on the one hand, because of the EU’s multi-layer and sui generis nature, the EU is unable to uphold its foundational values against a member state. On the other hand, a threat to democracy, fundamental rights, and the rule of law, even in one state, considerably weakens and threatens the functioning of the EU.
- Craig and de Burca state that the CJEU has been instrumental in the development of the EU’s legal framework for protecting fundamental rights but require that individuals have access to EFFECTIVE REMEDIES to protect their fundamental rights.
18
Q
Glatzel
A
- An EU Directive disqualified the applicant from DRIVING LORRIES as she had LOSS OF VISION in one eye. It was based on safety grounds in case she randomly lost sight in the other eye.
- He said it hindered his integration into the labour market and discriminated based on his disability.
- The courts implicitly said it was a principle, but not an enforceable right.
19
Q
Egenberger
A
- Not hired for a research position in an organization with a religious ethos since it was required for her to have a religious ethos. She said it was discrimination based on religion/belief prohibited by Art 21 of the EU Charter.
- HELD: An individual can go to their domestic courts and invoke article 21 of the charter.
- This obligation is more precise and fleshed out in legislation which could have been a factor in the court’s decision.
20
Q
Divergence between ECHR and EU Charter
A
- Art 6(2) TEU: If there is a divergence in rights in the ECHR and EU Charter, the EU Charter would accede to the ECHR
- Art 52(3) Charter: Rights in the charter that correspond to the ECHR shall have the same meaning and scope as the ECHR.
- Art 52(4) Charter: European courts will not recognise a fundamental right in question unless it exists in most of the national laws of Member States (AM & S).
21
Q
Bosphorous v Ireland
A
- When states are implementing EU law, there is a presumption that it is compatible with EU rights, which is rebuttable.
- Presumption that EU law provides equivalent protection for fundamental rights as domestic law, which is rebuttable.
- “General principles of law” would prevail over a EU measure, should there be a conflict.
22
Q
What are the General Principles of EU Law
A
- Fundamental Rights
- Legitimate expectations (Mulder)
- Proportionality (Fedesa)
- Legal Certainty (Racke)
- Non-discrimination (Ruckdeschel)
- Subsidiarity
- Transparency
- Article 263(2) TFEU: “any law relating to the application of the Treaties”
- Secondary legislation may be struck down if it is incompatible with the general principles. They confer standalone rights on individuals.
23
Q
Legitimate Expectations
A
- Stems from German law that the law should not be any different from what one might reasonably expect.
- Where national laws recognise this principle, it will protect against individual measures but EU law extends it to legislative acts
- When a Community law measure takes effect, people acting under the old law should be temporarily exempt from the new measure (Toepfer II Case)
- Mulder allowed the applicant to invoke it where his milk quota would be negatively affected.
- In Carbogani and Lucchini, the EU Commission had not yet taken action against a long-standing breach of EU law or sent a comfort letter stating no action would be taken so no legitimate expectation created.
- In L’Oreal, the Advocate General found that in the absence of new information or a change in the law, the files of cases in which comfort letters were sent should not be reopened.
- Legitimate expectation is not absolute and can be subject to other principles like public policy (Luhrs Case).
- A chance of an expected result happening is not enough to create a legitimate expectation and The change in legislation must not be foreseeable when protection is initially claimed and worth protecting (Deuka/Mackprang Case)
24
Q
Proportionality
A
- Article 5 TEU: “Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”
- Proportionality test is usually used to challenge measures adopted by the EU institutions but may also be invoked to challenge MS actions.
- Test: an act pursuing a legitimate objective must be suitable and necessary to achieve the objective and must not impose an excessive burden on the individual.
- The intensity of judicial review of EU measures will vary depending on the nature of the act challenged. Generally, they use a strict standard of review where a measure infringes an individual’s rights or imposes a penalty/undertaking on an individual.
- Proportionality is usually challenged in staff cases (Council v Hautala) and competition law.
- CJEU shows deference where EU institutions are exercising their discretionary powers and making policy decisions (Fedesa Case).
- Cassis de Dijon Case held that Labelling disclosures rules must be proportionate to the aim pursued.
25
Legal Certainty
- Racke is the key case where EU Commission introduced a system of financial compensation for a particular product but then changed the amount of compensation with retroactive effect, from 14 days before they were published.
- CJEU held the basic principle of non-retroactivity applied under EU law. A measure should not apply to those concerned before it was published. BUT in exceptional cases like this, the purpose to be achieved required retroactive measures as long as their legitimate expectation is respected.
- CJEU will be reluctant to dis-apply the principle of legal certainty where a penalty would be retroactively imposed on an individual under a new action (Kent Kirk).
- Heinrich Case states the rationale for legal certainty is that individuals can ascertain unequivocally what their rights and obligations are and take steps accordingly.
26
Non-Discrimination
- Initially stems from Defrenne v SABENA based on sex discrimination but it expanded now like Mangold on age discrimination in employment.
- Defined as unequal treatment in situations which are identical or comparable.
- Embodied in many articles like Art 18 and 19 TFEU and Article 21 Charter.
- Reed Case: It was contrary to EU law that the rights of unmarried partners were not recognised in cases where the partner was foreign.
- Non-discrimination also applies to the origin of goods and services.
- Schermers says its articles are “Merely a specific enunciation of the general principle of equality" which is a fundamental principle of Community law (Ruckdeschel Case).
- Prima facie discrimination must be justified on objective grounds and discrimination cannot be arbitrary (Kendermann/Union de minotiers de la Champgane Case).
27
What is Direct Effect
- "Direct effect" allows individuals to rely upon EU law and invoke it directly before their national courts.
- There are types of direct effect: vertical and horizontal. Vertical direct effect is between a private party and a member state while horizontal direct effect is between private parties.
28
Direct Effect Cases
1. Van Gend en Loos
2. Defrenne v SABENA II
3. Van Duyn
4. Ratti
5. Inter-Environnement Wallonie
6. Bosman
7. Egenberger
8. Marshall 1
9. Faccini Dori
10. Foster v British Gas
11. Farrell v Whitty
29
Van Gend en Loos
- Established the doctrine of direct effect
- A Dutch company imported chemical substances from neighbouring States into the Netherlands.
- The Dutch Customs and Excise Administration charged the company a Custom duty of 8% on the imported substances. The company wished to obtain a reimbursement.
- HELD: There was direct effect of Art 30 TFEU using a teleological approach.
- TEST in Reyners Case: Direct effect of treaty provisions occurs where: 1. the provisions of the treaty are clear, precise and unconditional AND 2. the provisions are not dependent on any further action by MS or EU institutions.
- ‘The Community constitutes a new legal order of international law… States have limited their sovereign rights, albeit within limited fields’.
30
Defrenne v SABENA II
- Female Air stewardesses paid less than Male air stewards in the airline SABENA. No Belgian law prohibited this.
- HELD: Art 157 TFEU stated that men and women should receive equal pay for equal work. It was sufficiently clear precise and unconditional.
- The application of this provision was not always and in all circumstances going to be clear but here, it was.
- Following Van Gend en Loos, Direct effect of other types of legislation was eventually codified in Art 288 TFEU.
31
Legislative acts and Direct Effect
- Legislative acts ARE regulations, directives and decisions.
- Primary law such as treaties and charters are superior to them.
- Regulations automatically become part of a member state's laws. With directives, national authorities can decide on the choice of form and methods and have a certain period to do so. A decision is binding in its entirety.
- Direct effect of legislation is codified in Article 288 TFEU.
32
Direct Effect of Directives
- when it comes to direct effect of directives, it becomes a bit more complicated because it requires implementing measures by a member state.
- Stephen Weatherill mentions that there is a GENERAL PROBLEM of INTERRELATION of national law with the EU legal order. They are reliant on state implementation.
- Directives require implementing measures and the CJEU in Van Duyn addressed direct effect of directives.
33
Van Duyn
- Dutch woman who wanted to work for the Church of Scientology in the UK was refused entry. Sought to rely on Directive 64/221/EEC on restrictions to free movement.
- HELD: If a directive hasn't been implemented correctly by member states, the member state itself should not be able to profit from its own failure to implement the directive. Set a new criteria for direct effect of directives.
- Direct effect of a directive occurs where: 1. the provisions of the directive are clear, precise and unconditional AND 2. the time limit for implementation has expired.
- Professor Rasmussen (Danish) condemned it as a case of 'revolting judicial behaviour'.
- F. Mancini stated that the CJEU was guided by political considers, such as the intention of by-passing member states in a strategic area of law-making and assuring respect for the rule of law.
34
Ratti
- Concerned the labelling of solvents. Ratti could not rely on the Directives until the implementation period expired.
- The deadline had not expired yet and it was still in the period of implementation.
35
Inter-Environnement Wallonie
- Created an exception to Ratti. During the implementation period, states must refrain from taking any MEASURES SERIOUSLY LIABLE to COMPROMISE the result prescribed.
- Was the national measures intended to be the FINAL IMPLEMENTATION of the directive?
- Here, the measure adopted was only months before the deadline.
36
Horizontal Direct Effect
- Craig and De Burca describe horizontal direct effect as the ability of individuals to invoke EU law in legal disputes with other private parties, such as companies or other individuals.
- It has been the subject of much debate and controversy within EU law, with its SCOPE and APPLICATION.
- Some say it ensures EU law is FULLY EFFECTIVE and individuals can rely on EU protections while other say that it would UNDULY INTERFERE with the AUTONOMY of private parties and open floodgates.
37
Bosman
- Concerned the payment of TRANSFER FEES for SOCCER players.
- Bosman tried to invoke Art 45 TFEU against another private party.
- HELD: He could invoke HORIZONTAL DIRECT EFFECT OF A TREATY.
The courts must ensure the EFFECTIVENESS of EU rights so it extends to private organizations. It avoids INEQUALITIES between states.
38
# DIRECT EFFECT
Egenberger
- Woman with no religious beliefs that applied for a job with an organisation with a religious ethos and was not considered for the job because she had no religious beliefs. It was only open to Christians.
- She could not rely on horizontal direct effect of a directive but could rely on horizontal direct effect of the EU Charter.
- The charter has the same legal status as the Treaty.
- Note the rights vs principle distinction. The provisions that give rise to individual rights in the charter are enforceable, even through horizontal direct effect.
39
Argument for Horizontal Direct Effect of Directives
1. there is no difference in practice from other EU instruments. Since we expect member states to follow regulations like the GDPR automatically, they should also automatically follow things in Directives.
2. Citizens should be able to enforce directives which confer additional rights like the work-life balance directive against their employer.
3. Rights should not vary between public & private bodies since the distinction is often blurred (e.g. employment rights). Example is HSE nurse vs. private hospital nurse.
40
Argument against Horizontal Direct Effect of Directives
1. it would be difficult and a burden for individuals and private actors to know their legal obligations and what directives apply
2. directives are addressed to states not individuals
3. individuals cannot know faults in national implementing legislation.
- The CJEU decided not to allow horizontal direct effect of directives.
41
Marshall
- UK law had different retirement ages for men and women. Applicant working for NHS argued that it breached the Equal Treatment Directive.
- HELD: Dismissing women based on a different age from men was sex discrimination.
- A directive is addressed to a member state, NOT INDIVIDUALS so they do not give rise to directly effective rights against private organisations or individuals.
42
Faccini Dori
- Affirmed Marshall concerning a Directive with cooling off for contracts negotiated away from business premises.
- AG LENZ asked the CJEU to OVERRULE Marshall but they refused.
43
Foster v British Gas
- British Gas was a monopoly entirely owned by the state. It was nationalised.
- The Minister had the power to issue directors in the company. It had a monopoly preventing other companies from entering the industry.
- Unimplemented directives are only directly effective against the State and all “emanations of the state”,
- Direct effect OF A DIRECTIVE occurs where: 1. body provides a PUBLIC SERVICE UNDER STATE control/authority AND 2. body has special powers.
44
Farrell v Whitty
- Motor Insurers' Bureau Ireland was a public body. Foster criteria do not all need to be present.
- The Foster criteria was not cumulative so all the elements of the criteria do not need to be satisfied.
- The Directive requires all states to have a scheme to compensate people who are injured by uninsured drivers.
- The State could have compensated them itself but chose to delegate that to the MIBI.
- General Sharpston said the problem of public vs private sectors difference would be better by allowing horizontal direct effect but the Court did not accept this recommendation.
- Note: not all State delegation will bring private parties into the Foster criteria because they must also have special powers.
45
Indirect Effect Cases
1. Van Colson
2. Marleasing
3. Adeneler
4. Wagner Miret
5. IMPACT
6. Ajos
46
Indirect Effect
- Principle that national courts are required to interpret national law in a way that is consistent with EU law and gives effect to the requirements of EU law.
- Can be used in a wide range of contexts, including in cases involving the INTERPRETATION OF NATIONAL LEGISLATION, ADMINISTRATIVE DECISIONS, and even PRIVATE CONTRACTS.
- Craig and de Burca state that it is necessary to ensure UNIFORM APPLICATION OF EU LAW across member states and to facilitate co-operation between member states and the EU.
47
Joseph Weiler on Indirect Effect
- Joseph Weiler argues that the principle of indirect effect is not an absolute rule, but rather a means to an end.
- The ultimate goal is to ensure the effectiveness and uniformity of EU law, so national courts should interpret EU law to the extent necessary to achieve this goal.
- Calls for a pragmatic approach where applying indirect effect raises difficult questions of interpretation.
48
Indirect Effect of EU law applies where
1. the provisions of EU law is not clear, precise and unconditional 2. the time limit for implementing a directive has not expired 3. the claimant wants to enforce a directive against a private party.
49
Van Colson
- This case was against a member state (vertical).
- They courts extrapolated indirect effect from the general duty to cooperate.
- B. Fitzpatrick (1999) states that Van Colson may effectively bridge the gap between vertical and horizontal direct effect.
50
Marleasing
Indirect effect (duty of interpretation) applies in ALL CIRCUMSTANCES as far as possible to do so, including for private parties and for NATIONAL LAWS NOT intended to implement Directives.
51
Adeneler
- Fixed-Term Work Directive aims to prevent abusive use of temporary contracts by placing limits on how often you can renew a temporary contract.
- CJEU is reluctant to impose MORE POSITIVE OBLIGATIONS and indirect effect on the Member States while the deadline for implementation still remains active. BUT they should not take measures contrary to the aim of the objectives pursued.
52
Wagner Miret
- Insolvency Directive - Wages to workers were a company goes out of business but Spanish law excluded higher management.
- Direct effect was not possible because national law was unambiguous.
- If NATIONAL LAW MAKES NO SPACE FOR REINTERPRETATION, THERE CANNOT BE INDIRECT EFFECT.
53
IMPACT
- indirect effect ‘cannot serve as the BASIS for an INTERPRETATION of NATIONAL LAW contra legem’ (para 100).
- Contra legem means against the law. One legal Irish principle is that statutes cannot be retrospective so IMPACT sought a relief that was against the law.
54
Ajos
- Para 33 states that ‘the requirement to interpret national law in conformity with EU law entails the obligation for national courts to change its ESTABLISHED CASE-LAW.’
- The Danish Supreme Court rejected this opinion. This exceeded the terms of Danish accession to the EU. The CJEU could have held Denmark in breach of EU law but chose not to.
- Lord Slynn criticised this extra-judicially as he did not see why case law from the 1880s should be interpreted differently because of a 1990 Directive.
55
Incidental Effect
- Incidental effect is a type of direct effect which can be used in domestic legal proceedings between private parties.
- It does not impose an obligation on the private party but interferes with the applicability of a particlar legislation on the legal proceedings between private parties.
- When one party relies on national law incompatible with EU law, since EU law is technical, the CJEU disapplies the national law so the private party has nothing to rely on.
- THIS WILL ALSO HAPPEN WHEN A MS DOES NOT COMPLY WITH AN ESSENTIAL PROCEDURAL REQUIREMENT UNDER A DIRECTIVE.
- CJEU has drawn a subtle distinction between the impermissible imposition on individuals of obligations contained in an untransposed directive and the permissible incidental adverse effects which an untransposed directive may have on an individual case.
56
Incidental Effect Cases
1. CIA Securities (1996): plaintiff brought an action against 2 defendants for unfair trading practices. Said defendants had libelled the company by informing the public that the plaintiff had failed to get approval for one of their alarm systems as required under Belgian law.
- CIA securities said that this legal requirement does not exist because it beaches an EC Directive.
- CJEU held that while many of the provisions of the directive were not clear, precise and unconditional enough to allow direct effect, Arts 8 and 9 of the Directive were.
- Belgian law breached those provisions because they did not notify the Commission before adopting certain measures.
- CIA Securities (the private party) could rely on Articles 8 and 9 of the Directive to prevent any Belgian measure that breached the Directive.
2. Unilever: CJEU granted incidental effect of a directive between private parties because if they didn't, there would have been a substantive procedural defect.
57
State Liability
- Craig and de Burca states that It 1. ensures that Member States are ACCOUNTABLE FOR THEIR ACTIONS and 2. provides individuals with a powerful means of seeking REDRESS for breaches of EU law.
- Damien Chalmers states that the imposition of state liability can CREATE TENSIONS between national and EU law, but is important in ensuring that the EU's legal order is respected and enforced by the Member States.
58
State Liability Cases
1. Francovich
2. Brasserie du Pêcheur and Factortame
3. Hedley Lomas
4.Dillenkopfer
5. British Telecommunications plc
6. Köbler
7. Marshall II
8. Levez
59
Francovich
- ESTABLISHED STATE LIABILITY.
- Insolvency Directive protects workers’ wages. It guarantees that if a company goes out of business,
- Directive had not yet been implemented in Italy and implementation period had passed.
- HELD: CJEU looked teleologically at Article 5 of the EEC Treaty that States must TAKE ALL MEASURES to comply with EEC law obligations.
- This idea that States have a general obligation to cooperate in the implementation of EU law would be undermined if there was no redress where a state breached EU law, which caused damage to an individual.
60
Conditions for state liability established in Francovich
1. the Directive grants rights to individuals
2. The content of those rights can be identified from the Directive AND
3. There needs to be Causal link between breach by the Member State & damage suffered by the injured party.
61
Brasserie du Pêcheur and Factortame
- State liability CAN BE USED IN CONJUNCTION with direct effect… because one unwritten general principle of EU law is that there should be a duty to make good damage that is caused by unlawful acts.
- Para 32 states that state liability can be applied to whichever ORGAN OF THE STATE is responsible for the breach.
- The CJEU revised the conditions for state liability: 1. the rule of law infringed must be intended to confer rights on individuals. 2. The breach must be sufficiently serious AND 3. there must be a direct causal link between the breach of the obligation by the State and the damage sustained.
62
Hedley Lomas
- Example of a sufficiently serious breach.
- Spain was under EU laws on animal welfare like stunning an animal before slaughtering them so they do not experience pain. There were concerns that Spanish abattoirs were not enforcing correctly EU law.
- The EU Commission investigated and said there was not breaches of EU law in Spanish abattoirs. The UK still prohibited exports of live animals for slaughter to Spain.
- HELD: This was a sufficiently serious breach of the free movement of goods.
63
Dillenkopfer (1996)
CJEU held that the failure to implement a directive by its due date was in itself sufficiently serious to justify the imposition of state liability.
64
British Telecommunications plc
- The UK continued to apply the public procurement directive to BT even after it became privatised.
- HELD: The relevant provision of the Directive was not worded sufficiently precisely, so there was room for misunderstanding as to how it should be interpreted.
- This was not sufficiently serious to render the UK to pay compensation to BT.
65
Köbler
- Under an Austrian scheme, university professors could apply for a financial benefit after completing 15 years of service in an Austrian university.
- If you worked for different universities in Austria, you can add up the time together to increase your salary.
- Köbler worked in a university outside Austria and this time did not count.
- The Austrian Courts sent a question to the CJEU then withdrew it and just dismissed his action.
- HELD: An action for state liability can be brought in respect of a breach of EU law by the national court of last instance only ‘in the EXCEPTIONAL case where the court has MANIFESTLY INFRINGED the applicable law’. Full effectiveness of EU law requires this.
- Critiques: 1. it would be contrary to the principle of legal certainty as the decision of the Supreme Courts would not actually be final and 2. it would make lower courts adjudicators through giving damages on actions of the highest courts causing tension.
66
Remedy for State Liability
- Since member states determine how rights are enforced, they also determine the remedy for state liability.
- EU law doesn't require member states to harmonise the court systems, but their remedies and procedures must comply with NATIONAL PROCEDURAL AUTONOMY.
- It must be subject to 1. the principle of effectiveness and 2. the principle of equivalence. Rewe and Comet established these principles
67
Marshall
(State Liability)
- The principle of effectiveness.
- Mrs. Marshall was forced to retire at 60 when men were obliged to work to 65.
- She successfully invoked the direct effect of the Equal Treatment Directive that prohibited discrimination on grounds of sex against the NHS in the UK.
- The statutory cap on damages was less than the loss she sustained.
- HELD: the effectiveness of the remedy was not consistent with the objective of adequate reparation. She needed an award of interest to get real equal treatment.
- Member states have discretion to choose the remedy which is not unlimited. One remedy could be to reinstate her but in this case, she got was damages.
68
Levez
- Principle of equivalence.
- Ms. Levez discovered that the man who had been doing her job immediately before her had been paid more for the same job.
- She only discovered the unequal pay a few years after she left her job so UK law made it harder for her to get a remedy.
- HELD: It breached the principle of equivalence since the claim fell within the scope of EU law. The national limitation period to recover damages could not apply to her because her employer's deception delayed her from instituting proceedings.
- Remedies for breaches of rights based on EU law have to be equivalent to the remedies for breaches of similar rights that are found only in national law.
- National courts determine whether the principle of equivalence has been complied with, considering the purpose and the essential characteristics of allegedly similar domestic actions, and the role of the provision in question.
69
Principle of Equivalence and Practical Impossibility
1. Rewe and Comet established these concepts.
2. Article 19 TFEU and 47 of Charter - grants a right to a fair trial, effective remedy and effective legal protection in areas covered by EU law.
3. Procedural autonomy provides that where EU law does not have specific rules for the enforcement of EU law rights, national law can determine such rules. They must comply with the principles of equivalence and effectiveness.
4. Effectiveness means national procedural rules must not be so framed as to render virtually impossible the exercise of EU rights (practical possibility).
5. Equivalence means national procedural rules should not treat matters under EU law less favorably than purely domestic matters (non-discrimination).
6. Pelati v Slovenia concerned applications for tax advantages with a 30-day deadline. Slovenian authorities rejected Pelati's application for passing the deadline. CJEU held that time limits should not make it practically impossible or excessively difficult to exercise EU rights. The deadline breached the principle of effectiveness.
7. Rewe-Zentralfinanz held that where there are no EU rules, Member State's legal systems can designate which courts will have jurisdiction over certain matters and the procedure to enforce EU rights before national courts.
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Principle of Effectiveness Cases
1. Van Colson
2. Dekker
3. Emmott
4. Marshall II
5. Steenhorst - Neerings
6. Metallsgesellschaft
7. Unibet
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Van Colson (Effectiveness)
- German prison services appointed 2 male candidates as social workers.
- Female plaintiffs successfully claimed sex discrimination under the Equal Treatment Directive.
- They sought to be appointed as social workers and/or given damages.
- German law only allowed them to get their travel expenses back. This breached the principle of effectiveness because this remedy had no deterrent effect from future breaches.
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Dekker
- Discrimination for pregnancy constituted sex discrimination and the CJEU held that the right to compensation should be automatic in this case.
- The principle of effectiveness required national remedies to guarantee REAL AND EFFECTIVE judicial protection.
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Emmott
- Limitations on the enforcement of EU rights must comply with the principle of effectiveness.
- Plaintiff wanted the back payment of a disability allowance under a directive that was not yet transposed into Irish law.
- CJEU held that the time limit for Irish judicial review could not start until the directive was transposed.
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Marshall II
- Mrs. Marshall was forced to retire at 60 when men were obliged to work to 65.
- She successfully invoked the direct effect of the Equal Treatment Directive that prohibited discrimination on grounds of sex against the NHS in the UK.
- The statutory cap on damages was less than the loss she sustained.
- HELD: the effectiveness of the remedy was not consistent with the objective of adequate reparation. She needed an award of interest to get real equal treatment.
- Member states have discretion to choose the remedy which is not unlimited. One remedy could be to reinstate her but in this case, she got was damages.
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Steenhorst-Neerings
CJEU allowed Dutch law to limit the timeframe for retroactively recovering damages under a directive that was not yet transposed since the plaintiff could not exercise EU rights.
This was a conservative application of the principle of effectiveness.
CJEU ALLOWED DUTCH LAW TO LIMIT HOW FAR BACK YOU COULD GET DAMAGES UNDER AN UNIMPLEMENTED DIRECTIVE
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Metallsgesellschaft
- whether the award of compensation formed an essential component needed to give real and adequate reparation?
- The modern approach to the principle of effectiveness is PROPORTIONALITY - WHETHER THE EFFECT OF THE NATIONAL RULE IS PROPORTIONATE TO ITS AIM.
- CJEU assesses the lawfulness of the rule with reference to the aim of the rule and the effect it has on EU rights.
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Unibet
If the national system of judicial remedies does not provide an individual with the opportunity to protect their EU rights before national courts, EU law allows them to bring an action, even if national law forbids it
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Principle of Equivalence
Usually invoked where limitation periods for enforcing rights under EU law are less favourable than that of similar domestic rights.
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Principle of Equivalence Cases
1. Edis v Ministero delle Finanze
2. Levez
3. Preston
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Edis v Ministero delle Finanze
- Plaintiff paid charges which were not actually due under EU law and wanted a refund, BUT national time limit was less than what would normally apply under national law.
- This breached the principle of equivalence. The national procedural rule should not distinguish between EU or national law.
- This does not mean that national law should extend its most favourable rules for recovery under national law to ALL actions for repayment of charges due in breach of EU law.
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Levez
- Ms. Levez discovered that the man who had been doing her job immediately before her had been paid more for the same job.
- Her claim for unequal pay for women and men was successful.
- However, she only discovered the unequal pay a few years after she left her job.
- UK law made it longer, harder and more expensive since she found out about the differential pay later on.
- HELD: It breached the principle of equivalence.
- Remedies for breaches of rights based on EU law have to be equivalent to the remedies for breaches of similar rights that are found only in national law.
- National limitation period to recover damages could not apply to her since her employer's deception delayed her from instituting proceedings.
- National courts determine whether the principle of equivalence has been complied with, considering the purpose and the essential characteristics of allegedly similar domestic actions, and the role of the provision in question.
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Preston
To see if a procedural rule complies with equivalence and effectiveness, it should be examined in its general context based on objective criteria, considering its role, operation and special features.
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Article 263 TFEU Questions
1. Is there a reviewable act?
2. Is the action within the 2 month time limit?
3. Does the applicant enjoy legal standing to bring judicial review proceedings?
4. What are the grounds for judicial review?
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How to demonstrate standing before the Lisbon Treaty
Article 230(4) EC
- Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
- Went from ''decision'' to ''act''.
- Before, natural/legal persons had to show individual concern to have standing to challenge a regulatory act not addressed to them.
- Before, an applicant had to establish that a regulation was, in substance, a decision of individual and direct concern to them. Applicants could only challenge regulations, which were in substance decisions.
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What is a reviewable act?
1. Legislative Acts (Article 288 TFEU) - Regulations, Directives, Decisions
2. Delegated / Implementing Acts (more detailed measures taken under the authority of a legislative act). Example is EU Commission used its powers to require the export of COVID vaccines outside the EU to be APPROVED under the Commission Implementing Regulation 2021/111.
IBM - Can IBM seek judicial review of a letter?
HELD: It does not matter what the form of the measure is. Para 9 - Is it binding and does it affect the legal interests of the applicant?
- Regulatory acts are not defined in the Treaty of Lisbon but were mentioned in the Constitutional Treaty as all acts of general application apart from legislative acts.
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Legal Standing Cases
1. Région de Bruxelles-Capitale (Glyphosate Case)
2. Plaumann
3. Codorniu S.A. v. Council
4. Piraiki-Patraiki
5. Toepfer
6. Greenpeace
7. UPA
8. Jégo‑Quéré
9. Inuit
10. T & L Sugars
11. Telefonica
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Who has Legal Standing under Art 263 TFEU
1. Privileged applicants - member States, EU Parliament, EU Commission, Council of EU.
2. Quasi-privileged applicants - it has automatic standing to bring proceedings that impact its privileges - European Central Banks
3. Non-privileged applicants - includes natural and legal persons
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How to demonstrate you have Legal Standing
1. The Act is addressed to that person
2. The Act is of direct and individual concern to them
3. The regulatory act is of direct concern to them AND does NOT entail implementing measures
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Région de Bruxelles-Capitale
- Glyphosate Case
- 2016 – use of glyphosate prohibited in Brussels in the Région de Bruxelles-Capitale
- Commission Regulation 2017/2324 renewed the approval of glyphosate to use in the EU until end of 2022.
- HELD: There was no direct concern.
1. Directly effect the legal situation of the individual’
2. Leave no discretion to the addressees of that measure who are entrusted with the task of implementing it
- AG Bobek – a direct causal link between the contested EU act and the alteration in the legal situation of the applicant.
- AG Bobek also said a cause for concern is the overly restrictive tendency in interpreting and applying those rules,
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Plaumann
- Individual Concern
- Set a high bar for establishing individual concern. You have to show that you are different from everyone else and this measure affects you in a peculiar way.
- The more people affected by a measure, the more difficult it is to get legal standing.
- “Persons other than those to whom a decision is addressed may only claim to be individually concerned by that decision if it affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons"
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Codorniu S.A. v. Council
- CJEU found individual concern where the applicant possessed a specific right that had been infringed and would suffer serious adverse economic consequences. The latter is not a basis for standing alone but helps to show it.
- Individual concern found where an applicant had participated in the procedure for the adoption of a measure (Metro II).
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Piraiki-Patraiki
- Greece joined the EU and during the transitional period, France wanted to protect the French market and imposed quotas on the number of cotton that could be imported from Greece.
- This limited the opportunity of Greek cotton producers to sell cotton in France. They wanted to challenge the legality of this measure.
- HELD: There was direct concern. No individual concern.
- The EU Commission authorised France to impose the quotas. This DID NOT break the causal link.
- The supply of cotton is something anyone can commence so others can be affected in the future too. Although the applicants were the main Greek cotton producers that exported cotton to France, they were not individually identifiable.
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Toepfer
- Import levy set at zero due to error when it should have been much higher.
- Higher rate retrospectively imposed on 27 companies that had asked for licences on the relevant date.
- HELD: The number of those affected were fixed and ascertainable. They could be distinguished individually and were a closed class.
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Greenpeace
- Applicants argued that the test for legal standing in environmental cases should be broader than the Plaumann rule since the nature of environmental impacts are diffuse and collective.
- HELD: Plaumann had to be followed and the CJEU rejected their argument.
- They said the applicants should go to their national Spanish court to get a remedy.
- Critique: Spanish Courts have no jurisdiction to decide on the legality of the actions of the European Commission.
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Academic Commentary on the Locus Standi restrictive test
1. Craig and de Burca outlined the reasons for the narrow legal standing test. The CJEU took a literal reading of Article 263 TFEU. There are other avenues for litigants like Article 267 TFEU to prevent floodgates. CJEU have Low-level scrutiny for economic decision-making by the EU institutions.
2. Hartley stated that The restrictive standing rules can be seen as a barrier to effective access to justice and participation in the EU's decision-making processes.
3. In Mancini's view, the EU adopt a more contextual approach that takes into account the broader societal and democratic implications of allowing or denying standing in a particular case.
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UPA
- Para 102: AG Jacobs proposed a new test where the measure has, or is liable to have, a SUBSTANTIAL ADVERSE EFFECT on his interests.
- AG Jacobs highlighted the problem with the legal standing test:
1. Proceedings before national courts do not always provide effective judicial protection of individual applicants. Some provide no legal protection.
2. The Court's restrictive attitude towards individual applicants is anomalous in the light of its case-law on other aspects of judicial review
3. There were inconsistencies in how the CJEU applied the individual concern test from Plaumann
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Arguments between CJEU and AG Jacobs
CJEU:
1. The alternative is Article 267 referring a question.
2. National courts must ensure access for applicants.
3. It is for the Member States to amend the Treaty to change the direct and individual concern test
AG Jacobs:
1. Article 267 has serious shortcomings. The Irish Courts had no jurisdiction to invalidate a Commission Regulation.
2. CJEU should not push this question onto national courts
3. Case-law is complex and unpredictable. There is no barrier to change in the text of the Treaty.
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Jégo‑Quéré
- Commission Regulation required an increase in the size of fishing net to let juvenile hake escape, which would increase the number of fish in the sea.
- Applicants could not establish individual concern.
- The General Court proposed a new test as well of ‘definite and immediate effect’ to give rise to legal standing.
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Inuit
- Additional test to establish standing that takes away individual concern requirement.
- EU Parliament and Council in 2009 adopted a regulation that prohibits the sale of products derived from seals in the EU.
- The Regulation included a provision that rules could be adopted in the future to ensure that where seal products came from indigenous hunts by indigenous communities which were part of their livelihood, they could be exempted.
- HELD: The indigenous communities did not have individual concern.
- PLAUMANN TEST CONTINUES TO APPLY FOR LEGISLATIVE ACTS.
- Delegated and implementing measures adopted by the EU Commission use new rules and still require a showing of direct concern.
- Affirmed by Microban International Ltd.
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T & L Sugars
- Applicants were sugar cane refiners and EU Commission introduced a SUGAR TARIFF QUOTA which negatively affected the applicants .
- They could not establish individual concern or that there was no implementing measures.
- The concept of a regulatory act which does not entail implementing measures must be interpreted in light of the objective of Article 263 to ensure that individuals do not have to break the law TO HAVE ACCESS TO A COURT.
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Telefónica
- Telefonica benefitted from a Spanish scheme granting certain taxation benefits to companies
- The EU Commission said the scheme had to be abolished because its benefits were UNLAWFUL SUBSIDIES.
- HELD: This was a regulatory measure adopted by the Commission but required implementing measures
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Grounds for Judicial Review
1. Lack of competence - rarely used because EU institutions' powers are interpreted broadly by CJEU.
2. Breach of an essential procedural requirement - Art 296 TFEU: duty to give reasons for a legislation
3. Breach of the Treaties or any rule of law relating to their application such as the general principles of EU law (proportionality, legitimate expectations, fundamental rights, non-discrimination)
4. Misuse of powers by the EU or one of its bodies and manifest error of assessment (Tetra Laval)
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Breach of an essential procedural Requirement
- Rights of defence/right to a hearing (Kadi)
- Right to reasons (Art 296 TFEU)
- Right to good administration
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Mulder
- There were schemes to incentivise dairy famers to temporarily stop producing milk to try to reduce the volume that was available in the markets. Under this, Mr. Mulder did not produce milk for 5 years.
- This negatively affected his quota for milk production when he started producing again.
- HELD: The EU Commission's actions breached the principle of legitimate expectations
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Action for Liability of EU Institutions
Art 340 TFEU - EU institutions may have to compensate persons if they have acted unlawfully and caused damage.
This may be combined with judicial review proceedings.
1. The conduct of the EU institution must infringe a rule of law intended to confer rights on individuals
2. The breach is sufficiently serious - was there a manifest and grave disregard of the limits on its discretion?
3. A causal link between the act and the damage sustained
Inspired by Brasserie du Pêcheur and Factortame.
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What about if Judicial Review is not Certain
An applicant could go to their national court to try and invoke Article 267 TFEU preliminary reference procedure or Article 277 TFEU plea of illegality.
