EU law Flashcards
Article 10 TEU
- The the EU should be democratic
This article is the legal basis for the politics of the EU, stating the role of political parties in expressing the will of EU citizens.
Kellogg- Briand Pact 1928
Agreement to outlaw war, ‘pact of Paris’.
Treaty of Paris 1951
Established the European coal and steel community
Democratic Deficit in the EU
Some argue that the institutions and their decision making procedures suffer from a lack of democracy making them inaccessible to the ordinary citizen due to their complexity- often cited as due to the lack of European politics
Acquis communautaire
- Accumulated legislation, legal acts and court decisions which constitute the body of European union law
Copenhagen criteria- 1993
Rules that define eligibility to join the EU.
- Democratic - stability of governance
- respect human rights- protect minorities
- have a free market economy
EU Maastrict Treaty Art 49
‘Any European state which respects the principles of LIBERTY, DEMOCRACY, RESPECT for human rights and fundamental freedoms and the RULE OF LAW may apply to become a member of the EU’
Lisbon adds ‘human dignity’
This along with the Copenhagen criteria set limitations for membership
Austrian government of Wolfgang Schussel- 2000
sanctions can be put in place by the other member states if existing members do not meet the membership criteria
Eurozone
has 19 members
European parliament- brief overview
Shares legislative and budgetary authority of the union with the council.
Has 766 members elected every 5 years by universal suffrage and sit in political allegience.
represents EU citizens yet does not have legislative initiative.
Martin Schulz
President of the European Parliament
German. - Party of European socialists.- since July 2014
He presides over the parliament- role similar to a speaker in national governements.
Chairs the Bureau (matters relating to budget, administartion, organisation and staff) and Conference of Presidents (responsible for organisation of parliamnet and it’s administartive matters and adgenda)
He represents the parliament externally vis a vis the other institutions- more of a political role
Donald Tusk
President of the European council.
Polish- member of the European People’s Party- since December 2014
He prepares and chairs meetings.
30 month position elected by memebrs of the EC (due to Lisbon)- before it rotated around between HOGS of country holding presidency of the council of ministers.
Mark Rutte
Presidency of the Council of the European Union (council of ministers)
Netherlands- since Janauary 2016.
Alliance of Liberals and Democrats for Europe Party
Rotates between member states every 6 months- they are able the affect overall policy direction.
Presidency is co-ordinated every 18 months by a ‘triplet’- with one taking the lead every 6 months
Jean- Claude Juncker
President of European Commission.
Luxembourg- since nov 2014
European People’s Party.
Responsibilities; drafting legislative proposals and managing day to day running of the EU, also external representation i.e. attending G8 meetings.
President proposed by European Council, before being elected by the European parliament on a 5 year term.
Keon Lenaerts
President of the Court of Justice of the European Union.
Belgian- since Oct’ 2015
3 year term. He presides over hearings and deliberations directing judicial and administrative business.
It is the highest court in the EU in matters of EU law and is tasked with interpreting EU law and ensuring it’s equal application accross all MS.
28 judges- hear cases in panals of 3,5 or 13 judges.
Mario Draghi
President of the European Central Bank.
Italy- since 2011
Responsible for the management of the euro and monetry policy in the eurozone of the EU
role- art 2 of the statute of the ECB- to maintain ‘price stability within the eurozone’
Vitor Manual da Silva Caldeira
President of the European court of Auditors.
primary role is to check if the bidget of the EU has been correctly implemented.
Fredrica Mogherini
High Representative of the Union for foreign Affairs and Security policy.
Spanish- since Nov’ 2014
5 year term length.
Appointed by the European council with the consent of the president of the European Commission.
Post created by the treaty of Amsterdam.
Ordinary Legislative Procedure
Art 294 TFEU
- European council sets out objectives and suggests to commission what to investigate. Commission then draft legislation that put forward to council and EP
- First Reading- Goes to parliamnet first- either accept, reject or ammend. Then sent to council who can accept or reject or make their own ammendments
Conciliation committee- made up from memebrs of both institutions, look at common ground and negotiate- Have to adopt draft within 6 weeks or else bill fails - 3rd reading- Parliamnet acting by a majority of votes and council by QMV will have 6 weeks to accept or reject what committee have put forward.,
Conciliation committee
Has an equal number of MEP’’s and council representitives
SLP
Consent Procedure
The council can adopt legislative proposals after obtaining the consent of the parliament. The parliament has has the power to accept reject or amend the proposal under an absolute majority vote, they CANNOT AMEND it.
Council has no power to overrule the parliament’s position
Art 352
Used in legislative procedure- used for combatting discrimination
In non- legislative - used in cases of serious breach of fundamental rights under article 7 or for accession and withdrawal of EU members.
SLP Consultation
The EP may approve, reject or propose amendments to a legislative proposal.
The council is not legally obliged to take the parliament’s position into account but they must receive opinions.
This is applicable in internal market exemptions and competition law.
Also required when international agreements are adopted under common foreign secuirty policy.
COREPER
prepare notes for council meetings, make low level decisions ect
Article 52 charter of fundamental rights
How the qualified right can be limited. subject to prooportionality and must meed needs of general interest and pursuing a legitimate aim.
Schumen Declaration 1950
This started the EEC- idea to pool togetehr resources to prevent another war
Treaty Ammendment Art 48 TEU
Any MS govt or commission or palriament can submit to council for ammendment. Majority voting after parliament and commission consulted.
Amendments enter into force after being ratified by member states.
Acession to the EU- Art 49 TEU
any european state that respects article 2 values can apply.
Copenhagen criteria
Stability of instiutuions guaranteeing demcracy
Must be respect for minorities
A functioning market economy
Adherence to monetry, economic and political union aims.
Seccession- Art 50 TEU
’ any member state may decide to withdraw from the union in accordance with it’s ow constitutional requirements - Greenland left EEC in 1985.
Single European Act 1986
- first major revision of 1957 Rome treaty- set objectove of single market by 1992.
Art 2 of EEC treaty aimed to establish a common market
Purpose of SEA
Designed to create a single market- 6 objectives
1. single market by 1992- cockfield white paper
2. SM shall have no internal frontiers
3. Re-introduced QMV on single market measures in council- cancelled the veto established by lexembourg comprise
4. Parliamnet given legislative role for the first time
5. Promoted economic and social cohesion- ensure poorer states not left behind
6. Action on environment and social dimension
Aim was to get EU ready for spain and portugal entering
Rome treaties
EUROTOM and EEC treaty- January 1958
Luxembourg comprimise 1966
no legal status but pursuaded France to come back- they wanted a state to be able to veto any decisions if contray to ‘very important interests’
TEU Maastrict 1992
EEC became economic community- ‘ever closer union’ created.
economic and monetry union set as an aim
created union citezenship art 20 TEU
Social charter to protect rights of workers ect
This was very political, not just economical- things re forign policy ect
Introduced OLP- codecision- Art 251
First time states allowed to opt in or out i.e. UK and denmark re euro.
UK negotiated opt out of social charter- John major not happy with the collective standard.
Membership preceedings
When ready- are a candidate for memberhsip
2. formal negotiatiosn opened, have to adopt EU law and be in position to appy and implement judicala nd economic reforms- meet accession criteria
Kosovo
in wings to enter but spain refuse to accept them re cattelonia issues
European Council
HOGS
no legislative power
Donald Tusk
The council of ministers
1/2 legislative power
at the moment they are in Holland- Mark Rutte in charge
different area i.e. agriculture
meets in 10 configurations of 28 ministers
Treaty of Nice 2001. In force 2003
Reform institutions due to enlargement
Extension of OLP in the EP- adjust number of seats
president of commission nominated by the council- voted for by the parliament
Redesigned OMV- state allocated vote re pop size
Treaty of Amsterdam 1997
reform instiutisons
ammended, consolidated and renumbered TEU and EEC treaties
extended transparency of decision making
Laeken declaration 2001
‘union needs to be more TRANSPARENT, more DEMOCRATIC and EFFICIENT
June 2007- reflection group
they ammended the constiution from 2003 removing federal references, flag and anthem
Lisbon- 2007-2009
‘more demmocratic and transparent europe’
Art 3.1 removes pilar system and clarified the separation of powers, enhancing the role of national parliaments.
purpose- to create a more democratic union with a single voice
extension of QMV to council
Charter of fundamental rights given legal force
Improved the Eu’s global standing- through HRFASP, adopting a single legal personality so EU can be globally effective in international discsussions, also an eu diplomacy servcice to support HR.
Treaty reform since 2000
Lisbon made key constitutional changes to the EU’s structure.
President of European council- Chosen by HOGS in the EC- currently Donald Tusk.- term of 30 months.
President of commission- Jean claude Junker. elected by parliament on proposal from the EUROPEAN COUNCIL. only 2/3rds of member states have a commissioner at one time
Parliament- 750 members. more power as co-decider with the council. New budget procedure- need aproval from parliamnet and the council.
More national parliament involvement- get 8 weeks to respond of proposed legislation.
QMV extended- much more based on population size- if 55% representing 65% of the population. Until 2017 member states can still request to use the old voting method whereby there were a certain numebr of votes based on population size.
post lisbon treaty revsion article 33
provides for oridnary an simplified revision procedure.
minor reform steps can be taken via the passerelle clause which allows the european council acting unanimously to change aprts of the treat i.e. extending OLP to certain other areas
Art 4 TEU competences
4.3. is an example of pacta sunt servanta- good faith- states assisting one another to achieve collective union goals
competences not conferred belong to member states, also have to respect national identities.
Article 3 TEU
the aims of the EU i.e to promote peacec, values of people, offer 4 freedoms, economic growth.
This article provides the legal basis for most EU action
Article 352
This is very broad- if action is necessary for union to achieve it’s treaty aims and objectives then the council (acting unanimously) on a proposal from the commission and COSNENT from EP can act using special legislative procedure
danger of this is recognised in directive 2/94
Spain V Commission
union must clearly state reasons for act
Art 3 TFEU
exclusive competences i.e. customs union
Art 4 TFEU
Shared competences i.e. agriculture and internal market
Art 6 TFEU
Suplementary competences i.e. tourism and education
‘le principle d’attribution’
principle of conferral. under this the union can only act within it’s competences. if there is no competence then there si no inherent sovreignity (like there is in westminster) Art 296 TFEU- all acts must state their legal basis.
as seen in Vodafone v Sec state- it is very hard to control competences
Subsidiarity- art 5.3 TFEU
a union act is justifiable if it cannot be achieved locally or in national state and better achieved at union level.
This is only in areas of shared competence
Protocol 1- encourages role of national parliaments- 8 weeks to look at legislation
protocol 2- commsion need to take account of local dimesion and parliaments can object to proposals on grounds of subsidiarity
Proportionality art 5
ACtion must be completly proportional and justifiable, it cannot exceed necessity. Must be protportional to ends and outcome and necessary to achieve legitimate aim.
R v Minister of Agriculture and Food (UHT milk)
this is re propotionality- said a blanket ban on UHT milk was unporportional
Commission v Grreece
re proportioanlity- Greece refused to accept Macedonia as a seperate state- their ban on imports from the country was deemed to infronge proportionality.
AG Jacobs on proportionality
’ There are few areas of community law if any at all where proportioanlity is not present.’
Variable geomatry
Differentiated intergration
term to describe way to recognise that due to size of eU there will be soem irreconcilaible differences- take the UK on the social charter- everyone else accepts so it is made union law for everyone bar the UK.
SEA- allowed exemptions
Widening v Deepening- enhance co-operation- art 326, allows states to move foreard if they wants- 9 states must participate though.
Article 13 TEU
Each instiution shall act within the powers conferred to them by treaties.
this act is the legal basis for instiuttuions
Eurpoean Council- Article 15 TEU
only recognised by Lisbon as a formal institution. but recognised as codified in asstrict.
HOGS, president of european council and president of commission- those two don’t vote though.
Lisbon created the ‘permenant presidency’ of the european council- before, it rotated.
President is elected and voted for by the european council- for 2 and a half years. 1st was Von Rumpey, now Tusk.
Meetings are held in Brissels and informally in presidential state (holland ATM)
‘provides the EU with the necessary impetus… has no legislative function.’. They discuss legislation in principle and provide political direction for the EU.
They make final decisions on
- treaty ammendment
- enlargment
- financial reform
Their decisions are made by consensus unless the treaty provides otherwise, thus preserving state sovreiegnity.
QMV in some circumstance though- the UK did not want Tusk in the presdiental seat.
the president according to 15.6 shall ‘chair adn drive forward the work of the EC. His accountability is to the European parliament. He facilitates cohesion and consensus
European Commission
Jean Claude Junker -5 year term
legal base Article 17
aim- ‘ to promote the general interests of the union’
In 2013 it was decided that number of commsisoners should be 28- elected every 5 years. each takes on a specific policy area. The candidate for President of the Commission is proposed to the European Parliament by the European Council that decides by qualified majority and taking into account the elections to the European Parliament. according to Article 245- he should be ‘independant beyond doubt’
He orgnaises and guides the commissions work, appoints commissioners and HR. Commissioners serve union rather than national interests- Thatcher did not like this.
Based in the Berlyamont building in Brussels.
They ensure EU law is adopted an member state follow their obligations.
Principle powers of the commission;
- legislation (initiative power on EC impetus)
- enforcement via art 258/260
- implementation
- negotation
- budget.
Except with the CSFP and PJCCM- they are exclsuive policy generators
legal guardian of treaties- external representator and negotiator/mediator
17.8 they are collegially accountable- parliament can bring a MOTION of CENSURE to dissmiss commission. This was threatened in 1999- there was a corruption scandel, EP said they would impeach so the whole commission resigned
Johnathon Hill
He is the UK’s commissioner and deals with financial services
Frans Timermans
Vice-president of the commission
Council of MInisters (the council)
Article 16
Have a legislative and budgetory role
In their specific policy areas, the minsiter is empowerd to commit his national state to decision making by QMV unless treaty provides otherwise.
They are supported by COREPER- committee of permenant representitives in the EU- they achieve and build consensus- ministers give permission.
Functions of the council;
- Pass legislation jointly with the EP
- co-ordinate economic policies of MS
- conclsude international agreements- this can be done through SLP
-approve budget with the EP
develop CFSP with political guidance from the EC
- co-ordinate natioanl courts and police
QMV- it is not proportional- 1 German vote= 2.8 million
- 1 Malta vote= 141,666
QMV ensures that a minorty of the population cannot outwigh the majority.
Presidency- held for 6 months on a rota- Mark Rutte.
ATM Luxembourg- Holland- Slovakia. they all work together to harmonise. the president country organises and sets the adgenda.
It’s base permenantly is the Justus Lipsis building in brussels.
QMV
Consensus is preferred but the council will use QMV for legal reasons.
Yellow card
if 1/3 national parliamnets contest on subsidiarity principle within 8 weeks of proposal adoption, the commission MUST review and either ammend, maintain or withdraw.
Orange card
more than half of memebr states contest leg proposal and commisison decides to maintain then have to detail why then is up to council and parliament to make final decision.
European Parliament
Article 14 TEU/ 223-34 TFEU
Fixed so is degressivly proportionate to population size.
Capped by lisbon at 751+ president.
The UK has 73.
jointly legislates with commission and council.
since 1979- elections every 5 years
based in brussels- 3/4 days a month in plenary in starsbourg.
president (speaker) Martin Schulz (eurpoean peopls part
there are 8 political groups- sit in politics rather than state.
their supervisory role is played in that they approve the president of the commission and propose a candidate for the president of the eurupean council.
they have scrutiny powers over the EC and commission.
OLP- now tripartite system. Art 294
since is co-legislator, they aso have a base in brussels although they vote in starsbourg.
As thay are viewed as legitimate as elected by public, they can lobby and petition to commission to introduce leg in area- art 225
Articel 11 TEU- citezens intiatives
1 million signitures from 7 member states
‘stop plastic in sea’- this is open for signiture
‘weed like to talk’- porposal
Haven’t yet had a sucessful one.
Consultation - ARt 289
coucnil are not bound by what parliament says- although have to lsiten
this happens in completition law and in adoptions of opinions and reccomendations
Consent
approval of EP necessary in appointment of commssioners
international agreements
acession of new MS and seccesssion
Article 31 veto
this is for CSFP- need unanimity not QMV as are commiting states military resources
ARticle 289 (2)
that either council or parliament can adopt a regulation or directive with just the consultation of the othere in specific areas i.e. human rigths
Article 288 TFEU
defines the unions legal acts
Directives must be implemented with unquestionable binding force.. to satisfy the requirements of legal certainty.
commission v france
UK on directives
the ECA 1972 and EU act 2011
the UK ‘gold plate’ EU legislation in order to ‘sort out’ EU imprecisisons i.e. the firework legislation.
in Oakly- ‘run the risk of getting it wrong, no need for this rigarole’
section 53 of the scotland act deals with scottish minsters taking on the responsibility of observing and implementing directives
‘community law not only imposes obligations on individuals but is also intended to confer rights upon them which become part of their legal heritage’
Algomene transport case re direct effect.
Regulations have direct effect
‘capeable of creating individual rights which courts must protect’- Eridemia case
Union law is directly effective if (van gend en Loos)
clear and precisie
Creates unqualified, unconditional obligations
requires no implementing measures
direct effect is the principle that union law may confer rights on individuals which MS are bound to recognise and enforce
essential aspects of EU legal order
Direct effect and primacy
Simminethal case
every national court must apply union la win it’s entirity and they must set aside conflicting national law
Costa v ENEL
Supremacy of EU law
execution of EU law cannot vary from state to state
International Handellengshaft
Full supremacy
Does community law take precedent over fundamental constitutional rights of the memebr states- this wa sin germany.
court held that EU law is supreme over ALL law- ‘however framed’
irregarless of the nature and status of the national law, directly applicable EU law takes precedence
Simmenthall 2
duty of national courts- practical implications of the supremeacy doctrine
French made to pay for health checks on beef being exported to italy- contrary to union law.
Italy said that even if italian law conflicted then it stsill had to be applied until the italian courts declared in unconstitutional. ECJ held that this was not true and national courts had a duty to GIVE FULL EFFECT TO EU law and not to apply conflicting national law- no need to wait until ‘set aside’
MS law is inapplicable if conflicts directly but also if it ‘encroaches on a field within wihich the EU excersises legilative power- conflict may be indirect or potential- still limited.
Faccindori
Verticle direct effect
woman used the frankovich principle to gain compnesation from the state as she could not rely on a directive against a private body (horizontal)
Marshall
A directive can be used against a public body as this si a branch of the state (vertical)
Factortame and Thoburn
both re supremacy in the UK
Marsealing SA
Indirect effect
no national law had been passed for the directive
National courts must interpet laws in the light of directives.
the directive was not transposed into spanish law. Does this observe legal certainty as judge essentially asked to creat outcome which does not observe the law.
Von Calson
Indirect effect.
German courts said that travel expenses for a woman who did not get a job due to discrimination was enough. ECJ said no; ‘member states must take all of the appropropriate measures to ensure fuffillment of their community obligations’
Although states have freedom to implement the directives in their own way they still have to ensure that their obligations are fully achieved to ensure uniformity of EU law
MS had discretion to decide remedy according to art 189 (how directives are implemented) but need to fufill obligations
‘states must take any measure general or particular to ensure the fufillment of treaty obligations’ what article?
ARticle 43 TEU
Defrenne
airhostess paid less than male counterparts
art 119 EC treaty- had horizontal and vertice effect- now art 18 TEU
Article 157 on equality
made preliminary reference under 267
CJEU held that art 157 imposed a CLEAR and UNOCNDITIONAL prohibition of discrimination and that the article had horizonatl effect so could be applied against the airline as a private employer
‘the prohibition on discrimination… applies not only to public authorities but extends to all agreements intended to regulate paid labour collectively as well as individuals’
Free trade area
agreement to abolish customs duties for good produced in an area- first stage of economic intergration.
NAFTA- US export raw materials to mexico
tarriff barriers eliminated
Customs union
Builds on the free trade area- single common tarriff wall (can move freely despit origin)
Common market
free movemt of goods regardless of origin and laso free movement of factors fo production (capital and labour)
Delors commision
they moved forward with the single european act and the idea of an internal market
Directive can berelied on against a state and has direct effect if;
It is clear and precisie
no discretion for implementation
deadline for impplementation has passed
Article 4.3 sincere co-operation
union and MS must assist each other in achieveing union aims
This is the FOUNDATION for indirect effect
Adenlor
if directive not transposed courts are bound to interpret national law in order to achieve results.
Webb v EMO
Pickstones v Freemans
Both of these applied indirect effect
These are about the supremacy of EU law over domestic law
Duke case
The UK uses a purposive approach but does not like to go against national law- the house of lords refused to ‘distort the meaning of national law’
Litster case
UK courts cautious of aplying Van caulson principles. As in Duke they would only depart from their purosive meaning of legislation if it was intended to implement the directive.
used the pruposive approach to ensure compatibility with EU law
Van Deyn
This case stablished the VERTICLE direct effect of directives- re free movement of workers (scientology)
Eu directive that public policy provisions had to be based on ‘personal conduct’ had not been implemted in the UK .
Miss Van Duyn attempted to rely on article 48 of the Treaty, and Art 3 of Directive 64/221, which allowed free movement of workers in the EU.
Since the directive laid down an responsibility, which was not subject to any exclusion or condition, and by its nature did not require involvement on the part of the Community or Member State, it was to be regarded as directly effective conferring enforceable individual rights, which national courts must protect. However, a member state could refuse leave to enter its territory on the ground of association with an organisation whose activities were deemed to be contrary to the public good. It was irrelevant that the organisation is not unlawful and that nationals of member state are permitted to work for it. Miss Van Duyn was refused entry.
She tried to rely on an unimplemented directive
Bouchereau followed.
Directives
art 288
AR ‘binding as to the result to be achieved’
Van gend en loos
said was violation of art 30 re customs duties
ECJ held that obligations imposed on memebr states by treaties could be enforce by individuals in national courst for a treat article to do this it must be
- clear and unambiguous
- unconditional and not dependant on implementing measures
- must confer a specific enforcable right
Frankovich
rules for state liability
- rule of law infringed must have been intended to create specific rights for individuals
- breach must be suffieciently seriouos ( defined infactortame- must be grave)
- must be a causal link beteen the breach and the damage.
Brassarie de Pecher
this further defined the francovich principle
- infringement of law conferring rights on individuals
- sufficiently serious breach
- causal link
this case and factortame three defined what a sufficently serious brecah was- when state acts in way that is gravely and manifestly outside the margin of discretion
was it intentional
in scotland local governtment could be responsible if they meet brassarie test
Ratti
Directive could not be relied upon as the time for transposition had not passed so until then it was not intended to have legal effect
Polti case
A regulation will have direct effect and be directly enforcable in national law if it is clear as to the source of compensation
Robb v Salamis
UK take purposive approach- look at aims of directive. howvere they refuse to distort UK legislation (like duke)
Lord Hope- ‘domestic courst must seek to achieve the same result as intended by the relevent provision of EU law where it is REASONABLY possible to do so’
It is up to the state to determmine remedies- they have their own causation laws
factortame- recieved 55 million
Brassarie recieved 0 due to strict german causation laws.
Deleny v Sec of State for Transport
application of frankovich/brasserie
man injured in car journey whilst transporting drugs- claimed against the UK for failing to implement insurance and road safety directive
Article 19
’ the court shall ensure that i the interpretation and application of the treaties the law is observed
Article 256
jurisdiction of the general court
Article 257
jurisdiction of the specialised courts
Keck re precedent
Court does not consider itself bound by precedent - will not always say when cases have been overulled
Rossmeusan (critic of court)
says that courts take interpretation from politically natured guidlines in their pruposive approach
Sir Patrick Neil (critic of the Court)
The court is a dangerous instiuttion and is sqewered by their own policy considerations
AG fennally (defender of courts)
says that through the treaty revision MS have implicitly/explicitly aproved court decisions- the court in it’s constitutional role plays an important role in preseving the balance between the memebr states and the EU
Procedure of CJEU
- Case lodged before the court
- If direct action- one month to lodge defence
If indirect action (267) then 2 months to submit observations - Preparatory hearing and date set for oral hearing
- Oral hearing
- opinion of AG
- Deliberation and judgement
How many languages in the union
24
Commission v Belgium (wood)
Had faied to implement directive. belgium said this was devolved governemnts fault- still parliamnets fault. an argan of the state can create state responsibility
Commission v Ireland ‘Buy Irish’ case
a private organisation under control of the state as were treating domestic products more favourably - violation of art 34
Commission v France ‘ spannish strawberries’
french farmers attempting to prevent imports- didn;t prevent actions of farmers despite having capeability to do so.
Member state was in position to prevent/terminate action but failed to do so creating responsibility under article 34
HUngary v Slovakia
rareoccasion of state v state action art 259
this was re the prevention of the hungarian president entering slovakia- this was found to be ok due to his status as a HOG
258 action
- informal communications ‘letter of concern’
- formal letter of complaint- proceedings under art 258 begin. 2 months to reply.
- ‘resoned opinion’ given detailing breach. they are given time to submit reply/ rebuttal/remedy. if commisison not satisfiied then refer to CJEU
Judicial phase
- either - unforunded (no breach)
- Breach
- Admissable (irrelevent) - defences
- procedural impropoety
- force majure (belguim v commsion re dev govt)
- political/ economic issues- UK v commsion re traffic distance measures
- Repriciocity- other states involved in breach- francev commission
UK v Commison
re tacographs- commison said that poltical issues were not enough to justify breach
Lump sums art 260
french fisheries- £20 million lump sum then £57.8 million per half year of non compliance
french did continue their breach on british meat imports even after 288 order- still lump sum and ongoing penalties
UK and gibralter
‘a member state cannot use it’s decentralised structure as a cloak in or’ der to justify it’s failure to comply with union law
258
‘plays an essential role in guaranteeing the corrrect application of eu law’
Article 263 Judicial review
in ‘les verts’ court said any institution of the EU is suceptable to judicial review and annulment proceedings.
if the act is adopted by ‘common accord’ by the memerb state then cannot be reviewed as are acts of the mS not the union
the act must be capeable of producing legal effect
lisbon extended reeview to council and commission
grounds for 263 review
lack of competence
infringement of procedural requirements
what can be challanged?
legislative acts
acts of council, commisison and ECB (not reccomendations and opinions) intended to creat rights vis a vis 3rd parties
acts of parliament and european council intended to crete rights vis a vis 3rd partiies
conditions to bring a 263 action
act must be challangeable
you must have locus standi
not be time barred (2 months )
be illegal
privilaged applicants
do not need to activly demostrate their interest
i.e. parliamnet v cherynobyl
semi privilaged applicants
auditors, committee of the regions. can use 263 if is deemed to ‘infringe their perogitives’
Piraiki - patraiki (flexibility of plaumann)
they were greek cotton grower- they were able to prove that they were part of a closed group so had individual concern
direct concern
directly effect their union rights without any intervening authority
Dreyfus v commission
test for direct concern- must directly effect their legal situation … implementation must be purly automatic
plauman test
differentiated from all other persons and distinguishes them individually- plaumann clemintine seller was not individually distinguishable
Codorneiu case
regarding a regulation on sparkling wines. cordeniua managed to satisfy the plauman test due to registering the trademark in 1924. the provision was deemed void. this is succesful action on annulment and fufillment of direct and individual concern
UPA - AG jacobs
he proposed a new test for standing and questioned wetehr the right to judicial prtection was being comprimised by plaumann (the GC had already tried to deter from principle in jego quere by applying a teleogical approach but this was appealled and over rurled by the cjeu)
‘ individuals cannot be required to break the law in order to gain access to justice’
In UPA although went against jego quere, they did suggest that revison of art 263 would be possible but only by MS in treaty revision- ball in their ocurts- eventually done in Lisbon ‘implenting measures’
’ the community measure has or is liable to have a substantial adverse effect on his interests’
this is what AG jacobs suggested instead of plaumann
jego quere
fishermen contested a regulation re drift net fishing- traditionally no locus standi but general court (CFI at time) decided to grant them standing- focussed ont he merits and outcome of case rather than individual concern
‘is a regulatory act which does not entail implementing measures’
the ‘reform’ from lisbon
Inuit and Microban cases
they attempted to define a regulatory act- they are not legislative acts but all other acts of general application.
establishing illegality- grounds for review
- lack of competence( art 3 and 5 TEU ) equivilent to a UK substantive ultra vires act
- infringement of procedural requirement- something essential such as the duty to consult. can just show that the result would’ ve been different (commission v belgium)
- infringement of treaties or application of treaties i.e. proportionality and subsidiarity
- misuse of powers
article 264- result of 263
act annulled and declared void
article 265
if union fails to act then they can be called up for it
Article 340- liability for eu
in brasserie they talked about equality between the eu institutions and memebr states regarding liability. 3 condiditons;
conduct- must have infringed law intended to create rights for individuals
breach- must be sufficiently serious
causal link
above was confirmed in the bergardem case
can bring an action for annullment from anywheere
i.e. the inuits off baffin island
Article 7 TEU
aims at ensuring that all EU countries respect the common values of the EU, including the rule of law. The preventive mechanism of Article 7(1) TEU can be activated only in case of a ’clear risk of a serious breach’ and the sanctioning mechanism of Article 7(2) TEU only in case of a ’serious and persistent breach by a Member State’ of the values set out in Article 2.
purpose of preliminary rulings under art 267
‘in all circumstances eu law should have the same effect in all member states’ - opinion1/09
injects wisdom of CJEU into national courts
they ask for correct interpertation of treaties or on the validity of a act- this is an alternitive route to judicial reviwe and not so strict
Who can refer? under 267
Vassel Gobbels case
Any national court or tribunal
in the vassel gobbels case a minors arbitration court qualified as it was validly constituted under sutch law and was a permenant body charged with the settlement of disputes.
takes around 2 years to get luxembourg judgement
Court must answer
unless vague, ulteriar motvive or not a legitimate abuse of eu law- the national court may not have given sufficient info- plasania case
must refer under 267 if
-no remedy in national law ( court of last instance)
exceptions- acte eclair( already been considered by the cjeu) or acte clair (dispute in last insatnce has such a clear answer- CLIFIT)
- question of validity- only cjeu can invvalidiate a union meausre (uniformity) - Foto frost
‘differences between the courts of memebr states to the VALIDITY of a union measure would JEPORDISE eu legal order- Air transport america case.
2012 PR
guide issued on when to use prelimiary ruling
if you give an action of annulment
court declares acct void ab initio and this has effect ergo omnes
‘if the natioanl courts have any real doubts then they should refer’
Sir BIngham in the English high court in SAMES case
Da costa and CLIFIT re precedent
if case similar has already been sent for PR then should go by reuslt of thei case don;t be pointless. they are binding on subsequent cases
Kobler
national courts have liability if they have failed to comply with 267 obligations i.e. misapplying acte clair (saying there was a clear unrefutable answer)
dekaration of invalidity
this has complete ergo omnes effect- Internatioanl chemical corperation
Handelenshacft
the PR is binding for that question but not for the main proceedings. the judge does not have to apply but this is very rare.
scotland and PR’s
they are not keen on them- austira has had 471 copared to less than 10 from scotland
- scotch whiskey
- hydro seafoods- control of farmed fish stocks
zoolanger case
rebellion from german courts- said that their constitution contained fundamental human rigths not provided for int the treaties
nold v commission
internatioanal agreements to which memebr states are parited to are protected..
