EU Law Flashcards
CJEU
Court of Justice of the European Union Refers collectively to all EU courts: - Court of Justice (ECJ): highest court & supreme authority on EU law - General Court (CFI) - Civil Service Tribunal Major source of EU law is jurisprudence (case law) Courts may not make law, only apply it. No restriction as to prior decisions
ECJ
Court of Justice (ECJ): highest court & supreme authority on EU law - 27 judges (1 from each member state) - Article 19(2) TEU - must be qualified lawyers/judges - serve for 6 years and can be reappointed by joint agreement of governments Ruling by ECJ is binding on national courts (article 4(3) TFEU and 3(1) and 3(2) of European Communities Act 1972)
Advocates-General
Court officials who present reasoned opinions before court (252 TFEU). Opinions are not binding but useful to understand arguments
General Court
Court of first instance Created in 1989 to assist with backlog for ECJ (SEA 1986) Key role in anti-competition hears appeals from commission decisions Appeal on point of law only from general court to ECJ -# judges is 1 from each member state (27) - 19(2) TFEU Treaty of Nice 2000 - in due course simple 267 TFEU cases - new judicial panels (lower than GC) will take over some GC work
ECJ jurisdiction
- direct action against EU institution for breach of EU law (can order damages - 268/340 TFEU) - can review legality of acts of other institutions - 263 TFEU (Roquette Freres v Council 1980) - can review failure to act - 265 TFEU - direct action against member states for breach of EU law: - article 258 - failure to fulfill treaty obligations - article 259 - one state vs another for failure to fufill treaty obligations (goes first before commission) - article 260 - may, on request of commission, impose lump sum penalty/payment on member state that disobeys a judgment Individuals can sue institution but not other individuals or member states
Permissive jurisdiction
If raised before national court/tribunal which could have an appeal, court/tribunal MAY refer to ECJ if necessary for judgment References useful when new question of interpretation of general interest for uniform application of EU law or existing case is not applicable for new set of facts
Mandatory jurisdiction
If raised before national court/tribunal which could NOT have an appeal, court/tribunal MUST refer to ECJ if necessary for judgment (Costa v Enel)
Costa v Enel (6/64) 1964
If raised before national court/tribunal which could not have an appeal, court/tribunal must refer to ECJ if necessary for judgment - to ensure uniformity of EU law across member states ECJ cannot judge national law or it’s compliance with EU law Regarding conflict with later domestic law, EU law supreme, as a state cannot go unilaterally against agreement, as per the treaty, transfer of power was given to EU institutions (288 TFEU) and states are committed to observe EU law (4(3) TEU).
Dorsch Consult Ingenieurgesellschaft (C-54/96) 1997
Defined tribunal/court. Relevant factors include: - body established by law - permanent - jurisdiction compulsory - procedure inter partes (all parties represented) - applies rules of law - independent
Broekmeulen v Huisarts Registrate Commissie (246/80) 1981
Example of determination of court/tribunal
Nordsee v Reederei Mond (102/81) 1982
An arbitrator is not a court or tribunal: - voluntary jurisdiction - no official involvement
CILFIT Srl v Ministro della Sanita (283/81) 1982
CILFIT criteria ECJ question not necessary if: - not relevant to conclusion of case - previous ECJ decisions already dealt with question - correct application obvious (Acte Clair - Da Costa wn Schaake)
Rheinmühlen-Düsseldorf v Einfuhr und Vorratsstelle für Getreide & Futtermittel (166/73) 1974
A higher court can’t prevent reference to ECJ
Foto-Frost v Hauptzollamt Lübeck-Ost (314/85) 1985
National court can’t declare piece of EU law invalid. If court (lower) doubtful about validity it MUST refer to ECJ
Irish Creamery Milk Suppliers Association v Ireland (36 & 71/80) 1981
It is up to courts to decide when to refer to the ECJ
R v International Stock Exchange, ex parts Else Ltd 1993
ECJ has more expertise, so refer unless completely confident
Trinity Mirror Plc v Customs & Excise Commissioners 2001
Greater self-restraint in making a reference so the ECJ is not overloaded. Should be of general importance, not only applicable in this case
Article 267 TFEU
Any court or tribunal may make a reference to the ECJ ECJ can make preliminary rulings concerning interpretation of the treaty (TFEU) and the validity/interpretation of acts of the institutions, bodies, offices, agencies of the union
Foglia v Novella (No 1) (104/79) 1980
An Italian wine producer and a French wine distributor wanted to challenge a French tax law in the ECJ this made up a dispute. ECJ will not review unless there is a genuine dispute.
Telemarsicabruzzo v Circotel (C-320-322/90) 1993
Italian court referred questions with no factual background so ECJ refused to accept the reference
Köbler v Austria (C-224/01) 2003
It is possible for a state to be sued for its final instance court’s failure to make a reference. Must be sufficiently serious.
Main sources of EU law
Primary legislation (treaties) Secondary legislation (regulation, directives) Jurisprudence of the ECJ International agreements
Directly applicable legislation
Becomes part of legal system in member states without the need for further enactment nationally - same for all states
Directly effective legislation/provisions
Gives rise to rights/obligations individuals may enforce before national courts Supersedes national law
Secondary legislation
Article 288 TFEU sets out types EP, the Council, the Commission involved in making secondary legislation Types (acts) include: - regulation - directly applicable - Directives - bind states as to the result to be achieved usually with a time limit - decisions - binding upon persons addressed - recommendations - not binding (guidance) - opinions - not binding (guidance)
Civil law
Inquisitorial and not adversarial - more active to get the truth Decision collegiate/collective - no dissenting opinions Source of law ultimate (eg TFEU)
EU interpretation methods
Literal Teleological/purposive (defined in R v Henn & Darby 1981; used in Defrenne v SABENA (No 2) (43/75) 1976)
Van Gend en Loos v Nederlandese Administratie de Belastingen (26/62) 1963
Individual vs public body (treaty articles) -> direct effect criteria - sufficiently clear/precise - unconditional - no room to exercise discretion in implementation on part of states or institutions of EU -vertical direct effect - individual can enforce right against state or state body Regarding conflict with earlier domestic law, EU law supreme over Dutch law pre-dating Treaty of Rome 1972. Additionally, states have limited their sovereign rights within limited fields.
Defrenne v SABENA (No 2) (43/75) 1976
Horizontal direct effect - treaty obligation/ right enforced by individual against individual - can rely on treaty to enforce rights vs another individual but must satisfy van Gend criteria
Leonesio v Italian Ministry of Agriculture (93/71) 1972
For regulation & individual vs state, the regulation can be invoked immediately if van Gend criteria satisfied
Antonio Munoz Cia SA v Frumar Ltd (C-253/00) 2002
For regulation & individual vs individual if van Gend criteria satisfied, regulation can be invoked
Directive
Member states obliged to implement to achieve result prescribed, though by their own means (eg adding/altering domestic law) - in UK through acts of Parliement or delegated legislation (SI) - individual relies on national law unless inadequate or incorrect, then relies on directive itself Only vertical direct effect
Van Duyn v Home Office (41/74) 1974
(Action against public body) Woman refused UK entry as she was member of church of scientology. She invoked a directive. ECJ said for directive to have direct effect it must meet van Gend criteria. If not clear refer to ECJ. In this case directly effective.
Pubblico Ministero v Ratti (148/78) 1979
R invoked 2 directives as a defence against criminal prosecution in Italy. He was able to rely on one where the time limit for implementation had expired but not on the other where the time limit had not yet expired.
Marshall v Southampton & Southwest Hampshire Area Health Authority (152/84) 1986
Woman forced to retire at 62 though men could at 65. Brought claim based on directive. ECJ said claim could be relied upon bc public body. Obiter: no horizontal direct effect (confirmed in Paola Faccini Dori v Recreb Srl (C-91/92) 1994
Foster v British Gas (C-188/89) 1990
Challenge of females forced to retire earlier than men. ECJ ruled directive could be relied upon if body (Foster criteria for public body/emanation of state): (a) be under a statutory duty to provide a public service (b) be under state control (c) have special powers British Gas was nationalized at the time and met criteria
Doughty v Rolls Royce Plc 1992
RR was owned by government but was not emanation of state as it did not have statutory duty to provide public service and had no special powers
Griffin v Southwest Water Services Ltd 1995
Private water utility was determined to be emanation of state because it - provided public service pursuant to statutory duty - had special powers (eg impose pipe bans) High Court held it did not need to be ‘state controlled’ to be ‘under state control’ and it was sufficient to be subject to state regulation
NUT v St Mary’s Church of England (aided) Junior School 1997
Governors employ teachers, funded by government, can’t charge fees and must follow national curriculum Found to be an emanation of the state. CoA found that not all three Foster criteria must be satisfied to be an emanation: - Foster criteria are guidelines only - emanation though no special powers Cases such as this should be treated with caution as the ECJ has not ruled on the application of the criteria
Von Colson & Kamann v Land Nordrhein-Westfalen (14/83) 1984
2 female social workers denied jobs in prison because of sex ECJ ruled no direct effect of directive because directive was unclear on remedy so needed to be enacted nationally HOWEVER national courts were required to interpret any laws in light of the wording/purpose of the directive in order to achieve the result (indirect effect)
Indirect effect
EU law is applied indirectly by means of interpretation of domestic law in accordance with EU law (Von Colson & Kamann v Land Nordrhein-Westfalen)
Pickstone v Freeman’s Plc 1988
For implementing legislation, HoL interpreted act to include equal value claims to conform with EU requirements
Lister v Forth Dry Dock & Engineering Ltd 1989
Related to the protection of workers when a business is sold. Workers were dismissed 1 hour before transfer. HoL interpreted ‘immediately before’ to include would be employed if not unfairly dismissed to give effect to EU legislation (implementing)
Duke v GEC Reliance 1988
Females forced to retire earlier than men and it was a private company so no direct effect. HoL did not extend the Sex Discrimination Act 1975 as it did not intend to implement the directive (non-implementing legislation)
Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) 1990
C wanted to declare the constitution of D void because it was created to defraud creditors. No steps for the relevant directive implementation had been taken. ECJ ruled that national courts should apply a purposive approach to ‘non-implementing’ legislation so far as possible. National courts are wary of this ruling
Webb v EMO Air Cargo (UK) Ltd 1995
Webb dismissed when employer found out she was pregnant. C claimed against Sex Discrimination Act 1975. ECJ held it was discriminatory and HoL held it was possible to read Act in line with ECJ ruling (non-implementing)
Limitations with non-implementing legislation
(a) where national legislation clearly conflicts with relevant directive (Wagner Miret) (b) where indirect effect would impose criminal liability (Arcaro)
Wagner Miret v Fondo de Garantia Salarial (334/92) 1993
Directive instructed guarantee institute to pay employees’ arrears in case of insolvency but Spanish law excluded higher management staff. Directive gave discretion over what was a guarantee institute though it did not permit exclusion. ECJ held conflict between Spanish law and directive thus indirect effect could not apply
Luciano Arcaro (C-168/95) 1996
L was charged with criminal offense under Italian legislation incorrectly enacted to implement a directive ECJ held that national court should not apply indirect effect to criminal statute
Francovich v Italian State (C-6/90 & C-9/90) 1991
A member state can be required to pay compensation to individual for damages suffered as a result of a failure to implement a directive, if certain conditions are satisfied: (a) grant of rights to the individual is a result of relevant directive (b) possible to identify content of rights from provisions of directive (c) existence of causal link between breach of obligation and loss/damage suffered ((d) breach must be sufficiently serious - from Factortame 4) State liability
Brasserie du Pêcheur v Germany, R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame No 4) (C-46 & 48/93) 1996
Brasserie du Pêcheur v Germany - German government prevented import of French beer R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame No 4) - UK Parliament enacted Act preventing Spanish fishermen from fishing in UK waters. ECJ heard the two cases together. It was argued that Francovich only applied to a dispute in national courts thus no additional remedy necessary against the state. ECJ rejected this argument and said state liability extended to any breach of EU law but C must prove breach was SUFFICIENTLY SERIOUS
R v HM Treasury, ex parte British Telecoms (C-392/93) 1996
BT sued British government for loss due to incorrect implementation of a directive. Was deemed that UK was not liable, as it was not sufficiently serious (unclear and other states made same mistake). Sufficiently serious may be determined by looking at original directive. Was it vague? Also, have other states made the same mistakes? Has EU given guidance?
Dillenkoffer & Others v Germany (C-178, 179, 189 & 190/94)
Concerned package holidays buyer protection. State liability case for total failure to implement a directive. FAILURE to implement a directive is in itself a sufficiently serious breach (where non-implementing is issue, Francovich still can be used, since it is practically unnecessary to consider seriousness) A sufficiently serious breach also occurs if: - a member state manifestly & gravely disregarded the limits on its rule-making powers when exercising those powers - if member state had no legislative choice to make and little/no discretion when exercising rule-making powers, mere infringement of EU law may amount to sufficiently serious breach
R v MAFF, ex parte Hedley Lomas (C-5/94) 1996
UK Ministry of Agriculture was successfully sued for loss caused by failure to grant export licenses, as ECJ ruled against them
R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame no 5) 1999
HoL held breach was sufficiently serious as the government had ignored Commission’s advice that the 1988 Act breached EU law. Spanish fishermen got £55 million in damages.
State liability
(a) A person who can prove that the necessary criteria are satisfied (in b) may able to claim damages for the following breaches of EU law by a state: i. Failure to implement a directive (Francovich) ii. Incorrect implementation of a directive (BT) iii. Legislative acts (Brasserie du Pêcheur/Factortame No 4) iv. Administrative acts (R v MAFF, ex p Hedley Lomas) v. Judicial acts (Köbler v Austria) (b) a member state will be liable in each of these situations if the following criteria are satisfied: i. Rule of law which was breached must be intended to confer rights upon individual ii. Sufficiently serious (1) where member state has exercised its rule-making powers (incorrect implementation/legislative acts), a breach is sufficiently serious where the state has MANIFESTLY & GRAVELY disregarded the limit on its powers (examine level of discretion state has) (2) if no legislative choices and no discretion (non-implemention) infringement of EU law itself may be enough to establish a sufficiently serious breach (Dillenkofer) (3) if court of mandatory jurisdiction incorrectly failed to make an Article 267 TFEU reference to the ECJ, only sufficiently serious if made in manifest beach of case law of the ECJ (Köbler) (4) financial loss suffered can also be a relevant factor in assessing seriousness iii. Must be a direct causal link between breach and damage.
Dualist state
International law not binding as domestic law until incorporated by domestic legislation (eg UK) (Versus monist state (eg France) where international law incorporated automatically into domestic law as soon as it is ratified)
Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide & Futtermittel (11/70) 1970
ECJ declared EU law prevails over conflicting provisions of a bill of rights in a state constitution.
Werner Mangold v Rüdiger Helm (C-144/04) 2005 & Seda Kücükdeveci v Swedex GmbH & Co KG (C-555/07)
Regarding national law conflicting with EU general principle, national courts must set aside any provision of national law breaching the general principle of equality, or other important principles (eg proportionality)
