EU law enforcement Flashcards
Principle of decentralised enforcement
= the MS are generally responsible for the
enforcement EU law acts (i.e. their
implementation)
*Authorities, Art. 291(1) TFEU
* National Courts, Art. 19(1) subpara. 2 TEU
Exception: Own/direct enforcement by the
Union only if there is an explicit legal rule!
Own/direct enforcement of EU law
*Competition law
*Foreign trade law
*Union funds
*Research and science funding
*Cross-sectional tasks (human
resources, budget, internal organisation)
Rewe (Case 33/76)
The prohibition laid down in Article 13 of
the Treaty and that laid down in Article 13
of Regulation No 159/66/EEC have a
direct effect and confer on citizens rights
which the national courts are required to
protect.
Applying the principle of cooperation
laid down in [Article 4(3) TEU], it is the
national courts which are entrusted with
ensuring the legal protection which
citizens derive from the direct effect of the
provisions of [Union] law.
Accordingly, in the absence of [Union]
rules on this subject, it is for the
domestic legal system of each Member
State to designate the courts having
jurisdiction and to determine the
procedural conditions governing actions
at law intended to ensure the protection of
the rights which citizens have from the
direct effect of [Union] law, …
it being understood that such conditions
cannot be less favourable than those relating
to similar actions of a domestic nature …
The position would be different only if the
conditions and time-limits made it impossible
in practice to exercise the rights which the
national courts are obliged to protect.
Typical formula today
In the absence of [Union] rules governing the matter,
it is for the domestic legal system of each Member
State to designate the courts and tribunals having
jurisdiction and to lay down the detailed procedural
rules governing actions for safeguarding rights which
individuals derive from [Union] law … the detailed
procedural rules governing actions for safe- guarding
an individual’s rights under [Union] law must be no
less favourable than those governing similar domestic
actions (principle of equivalence) and must not
render practically impossible or excessively difficult
the exercise of rights conferred by community law
(principle of effectiveness). (Impact, C-268/06)
Decentralised enforcement
EU Procedural Rules
= if the EU has its own procedural rules,
they take precedence over national rules
* Example Art. 77 ff. GDPR
* Example Antitrust Damages Directive 2014/104/EU
Decentralised enforcement
= if there are no EU rules on the matter, it
is the national procedural responsibility to
enforce EU law following the general
national rules and procedures
Decentralised enforcement
Principle of Equivalence + Principle of Effectiveness
= minimum quality standards
*Principle of sincere cooperation and loyalty,
Art. 4(3) TEU
* Right to an effective remedy, Art. 19(1) TEU
Principle of Equivalence
= National procedural rules governing actions
for safeguarding individual rights under EU
law must not be less favourable than the
procedures governing similar domestic
actions → non-discrimination
Principle of Effectiveness
= National procedural rules governing
actions for safeguarding individual rights
under EU law must not render practically
impossible or excessively difficult the
exercise of rights conferred by EU law
Example: Legal certainty and res judicata
Kühne & Heitz (C-453/00)
In light of the above considerations, … the principle of cooperation
arising from Article [4(3) TEU] imposes on an administrative body an
obligation to review a final administrative decision, where an
application for such review is made to it, in order to take account of
the interpretation of the relevant provision given in the meantime by
the Court where
* under national law, it has the power to reopen that decision;
* the administrative decision in question has become final as a result
of a judgment of a national court ruling at final instance;
* that judgment is … based on a misinterpretation of [Union] law
which was adopted without a question being referred to the
Court for a preliminary ruling …; and
* the person concerned complained to the administrative body
immediately after becoming aware of that decision of the Court.
Moving towards effective judicial
protection as a standalone
obligation?
Portuguese Judges (C-64/16), Polish Rule of
Law cases (e.g., C-619/18)
Art. 19(1) subpara. 2 TEU
Member States shall provide remedies
sufficient to ensure effective legal protection
in the fields covered by Union law.
Tortious State Liability for
Breaches of EU Law
Case: Italy failed to implement a directive which required to set up
a guarantee system for the unpaid wages to workers in case of
bankruptcy of the employer. Mr. F and B, employees of a bankrupt
company did not received the due sums.
What can F and B do?
The ECJ ruled that although the provisions of the Directive lacked
sufficient precision to be directly effective, they nevertheless
clearly intended to confer rights of which these individuals had
been deprived through the state’s failure to implement them.
Can F and B ask for damages against Italy for nontransposition of the Directive?
Tortious State Liability for
Breaches of EU Law
Francovich and Bonifaci (C-6/90 and C-9/90)
[T]he Treaty has created its own legal system, which is
integrated into the legal systems of the Member States and
which their courts are bound to apply. The subjects of that
legal system are not only the member states but also their
nationals. Just as it imposes burdens on individuals, [Union]
law is also intended to give rise to rights which become part of
their legal patrimony. Those rights arise not only where they
are expressly granted by the Treaty but also by virtue of
obligations which the Treaty imposes in a clearly defined
manner both on individuals and on the Member States and the
[Union] institutions ..
Francovich and Bonifaci (C-6/90 and C-9/90)
Furthermore, it has been consistently held that
the national courts whose task it is to apply the
provisions of [Union] law in areas within their
jurisdiction must ensure that those rules take
full effect and must protect the rights which
they confer on individuals …
The full effectiveness of [Union] rules would
be impaired and the protection of the rights
which they grant would be weakened if
individuals were unable to obtain redress
when their rights are infringed by a breach
of [Union] law for which a member state can be
held responsible.
It follows that the principle whereby a State
must be liable for loss and damage caused to
individuals as a result of breaches of [Union]
law for which the State can be held responsible
is inherent in the system of the treaty.
→ Brasserie du Pêcheur (C-46/93 and C-48/93), etc.
Tortious State Liability for
Breaches of EU Law
Reasons
Full effectiveness of EU law (effet utile)
→ functionality approach
Legal Basis
General principle of EU law, derived inter alia
from Arts. 4(3) and 19(1) TEU (effet utile)
* Not Art. 340 TFEU
* Not Member State law
Who enforces state liability?
The Member States
*Procedural autonomy
◦Principle of equivalence
◦Princple of effectiveness
