judicial remedies Flashcards
What are the consequences of a breach of the
obligation to refer a question to the ECJ?
- EU law
◦ C-224/01, Körber: State liability for violation of EU law by
national courts
◦ C-416/17, Commission v. France: infringement action for failure
to fulfil the obligation under Article 267(3) TFEU - National law
◦ Austria ≠ individual party right to referral (OGH, 1 Ob 354/97h -
Einfamilienhaus Fieberbrunn), but violation of the right to the
lawful judge under Art. 83 para. 2 B-VG - Art. 6(1) ECHR: Arbitrary denial of referral as a possible breach of
fairness
Which claimants are fully
privileged for actions for
annulment?
*Art. 263(2) TFEU
◦Member State
◦European Parliament
◦Council
◦Commission
Under which conditions can nonprivileged claimants file an action
for annulment?
- Three possibilities, Art. 263(4) TFEU
1) Addressees of a legal act
2) They are directly and individually affected
3) Regulatory act which is of direct concern to
them and does not entail implementing
measures
What constitutes direct concern?
*Legal effects must inevitably occur for the
claimant as a result of the legal act
*Legal effects must not be dependent on the
occurrence of further, uncertain
circumstances (e.g., implementing measures
with discretionary powers)
What constitutes individual
concern?
*25/62, Plaumann
◦“Persons other than those to whom a decision is
addressed may only claim to be individually concerned if
that decision 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 and by virtue of these factors distinguishes
them individually just as in the case of the person
addressed.”
What constitutes individual
concern?
- 3 Plaumann categories
Three Plaumann categories for individual concern
a) Closed class = act affects a distinct and definite
group of persons
b) Applicant’s participation in the procedure of the
act’s adoption
c) Legal act infringes specific rights, e.g. trademark
rights, or causes a noticeable disadvantage to the
market position of the applicant (e.g. direct
competitor in state aid)
The role of the ECJ
Article 19(1) TEU
[The ECJ] shall ensure that in the interpretation and
application of the Treaties the law is observed.
➢Legality of the actions of the EU institutions
➢Compliance of the Member States with their obligations
under the Treaties
➢Interpretation of EU law at the request of national courts
The European Court of Justice
Art. 19 TEU (cf. also Arts. 251 et seq. TFEU)
“The Court of Justice of the European Union shall
include the Court of Justice, the General Court
and specialised courts. It shall ensure that in the
interpretation and application of the treaties the
law is observed.
Member states shall provide remedies sufficient to
ensure effective legal protection in the fields
covered by Union law.
Composition
* ECJ
◦27 Judges
◦11 Advocate
Generals
*GC
◦54 Judges
Formations
* Chamber of three
* Chamber of five
*Grand Chamber (15
judges)
* Plenary
Procedures and attribution of jurisdiction (Art. 256 TFEU, Art. 51
CJEU Statute)
ECJ
* Preliminary ruling (Art. 267
TFEU)
* Infringement proceedings
(Art. 258, 259 TFEU)
* Opinions on international
agreements (Art. 218(11)
TFEU)
+ Appeals
GC
* Action for annulment
(Art. 263 TFEU)
* Action for failure to act
(Art. 265 TFEU)
* Actions for damages (Art.
268 TFEU)
Preliminary reference: overview
- Court or Tribunal of a MS
- Subject matter
- Relevance
- Right/duty to submit
Court or tribunal of a MS
Vaassen-criteria (Case 61/65)
➢Based on law
➢Permanent
➢Independent
➢Mandatory jurisdiction
➢Adversarial procedure
➢Obligated to apply rule of law principles
Court or tribunal of a MS
- referral administrative authority or arbitral tribunal
Strict non-functional approach
* C-24/92, Corbiau; C-462/19, Anesco: no referral
from an administrative authority to which the
competence to examine the appeal against an
administrative decision has been assigned
* C-102/81, Nordsee: no referral from an arbitral
tribunal
Relevance of the question, Art. 267(2)
TFEU
- EU law must be applicable to the case in the main
proceedings
*Question must be necessary to enable the national
court to give a decision
No question on the interpretation of
national law!
Right to submit, Art. 267(2) TFEU
- Sole discretion of the national court!
*Miasto Łowicz(C-558/18 and C-563/18): no
disciplinary proceedings against judges for
referring a question to the ECJ - Cartesio (C-210/06): it is not compatible with EU
law to allow appeal courts to amend or set aside
the question referred
Parties can propose to submit a preliminary question, but no
obligation of court to follow such request!
Duty to submit for last instance court
- 3 instances where there isnt a duty
CILFIT (Case 283/81) → no duty contrary to Art. 267(3)
1) the same legal question has already been answered in a
similar case (acte éclairé I)
2) the question pending is not identical but very similar to a
question answered in pre-existing case law so that the
answer is clear from that case law (acte éclairé II)
3) there is no pre-existing case law determining the
interpretation of a provision of EU law but the correct
interpretation is so utterly obvious that there is no room
for reasonable doubt for the national court in question,
(presumably) for the ECJ or any other court within the
EU(acte clair)
Consequences of a breach of the duty
EU law
* C-224/01, Körber: State liability for violation of EU law by national
courts
* C-416/17, Commission v. France: infringement action for failure to
fulfil the obligation under Article 267(3) TFEU
National law
Austria ≠ individual party right to referral (OGH, 1 Ob 354/97h), but
violation of the right to the lawful judge under Art. 83 para. 2 B-VG
ECHR
Art. 6(1) ECHR: Arbitrary denial of referral as a possible breach of
fairness
Judgment
*Binding opinion on EU law for the referring
court
*Erga omnes-effect
◦Obligation for MS to change their legal
provisions
*Ex tunc (unless the ECJ explicitly states
otherwise, especially in case of invalidity)
Infringement proceedings
- Jurisdiction
Exclusively the ECJ
*Art. 258 TFEU
*Art. 256 TFEU
*Art. 51 Statute of the CJEU (Prot. 3)
Infringement proceedings
Process: Commission = Claimant, Art. 258
- Informal procedure
- Preliminary procedure
* Letter of formal notice
* Resoned opinion
3 ECJ
Infringement proceedings
Process: MS = Claimant, Art. 259
1 Informal procedure
2
Preliminary procedure
* Involvement of EC
* Adversial proceedings
* Resoned opinion EC / own
claim of MS
3 ECJ
Infringement proceedings
Judgment and effects
Stage 1: Infringment
Judgment, Art. 260(1)
Declaration of
infringement (erga
omnes)
➢MS is obliged to
take all measures
necessary to
remedy the
infringement
Stage 2: Secondary
EC Proceedings, Art.
260(2)
* Respondence
deadline for MS
* Reasoned opinion
EC with deadline
* Apply to the ECJ,
including lump
sum/penalty
(discretion)
Stage 3: Secondary
ECJ Proceedings, Art.
260(2)
* Impose a lump
sum/penalty
(discretion)
Directly possible for
non-transposition
of directive, Art.
260(3)
Action for annulment
Jurisdiction
Art. 256(1) TFEU and Art. 51 Statute of the
CJEU (Prot. 3)
1) Application of Union institutions and
Member States: ECJ
2) Application of natural and legal persons:
GC
Action for annulment: overview
- Legally binding EU act
- Standing of applicant and defendant
- Legal interest
- Time limit: 2 months
Standing
- types of applicants
Applicant
1) Fully privileged: Member State, Parliament, Council,
Commission
2) Semi-privileged: Court of Auditors, ECB, Committee of
the Regions
3) Non-privileged: all others, particularly:
* natural or legal person under the laws of a MS
* public legal entities that do not act as a
representative of a MS as such (e.g. provinces,
municipalities, public associations)
* EU bodies not cited above (e.g. Economic and
Social Committee, European Council, EIB
Defendant
= EU entities,
i.e., institutions
or any other EU
body capable of
imposing
obligations
Standing and legal interests
- requirements per type of applicant
Fully
privileged
applicants
no further
requirements
Art. 263(2)
Semiprivileged
applicants
„for the
purpose of
protecting
their
prerogatives”
Art. 263(3)
Non-privileged applicants
1) Addressees of a legal act; or
2) They are directly and individually
concerned; or
3) Regulatory act which is of direct
concern to them and does not
entail implementing measures
Art. 263(4)
Non-privileged applicants
1) Addressees of a legal act, e.g. an undertaking
being the addressee of a EC competition law
decision
2) Direct and individual concern
direct concern = affect the applicant both immediately and in fact
rather than have its legal effects dependent on
further, uncertain events
individual concern= Plaumann (Case 25/62):
„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 and by virtue of these
factors distinguishes them individually just as in
the case of the person addressed“
Non-privileged applicants
2) Direct and individual concern
Three Plaumann categories for individual concern
a) Closed class = act affects a distinct and definite
group of persons
b) Applicant’s participation in the procedure of the
act’s adoption
c) Legal act infringes specific rights, e.g. trademark
rights, or causes a noticeable disadvantage to the
market position of the applicant (e.g. direct
competitor in state aid)
3) Regulatory act of direct concern
a) Direct concern see above
b) Regulatory act
Inuit (C-583/11 P)
1) ≠ legislative act (but tertiary or administrative
law)
2) have a general and abstract scope
3) not require further implementing measures
Judgment
- cassation
Cassation
*Contested act and its legal effects are
repealed ex tunc (unless, exceptionally,
individual legal effects are upheld by the
ECJ)
*Erga omnes-effect = legal act ceases to exist
→ effect for everyone, including third parties
Action for failure to act
Legally binding EU act
Standing of applicant and defendant
Legal interest
Time limit: 2 months since request
Action for failure to act:
Standing and legal interest
*No differentiation between semi-privileged
and privileged applicants
◦all MS and institutions are fully privileged
applicants
*Non-privileged applicants
◦direct and individual concern arise from the
failure to address to the applicant an act
Decaration
➢The finding of a failure to act may also give
rise to tortious liability of the EU pursuant to
Art. 340 TFEU (to be pursued separately
through an action for damages under Art.
268 TFEU)
Action for failure to act:
Typical course of proceedings
Example preliminary reference procedure in case C-507/17, Google v.
CNIL
Questions drafted by the court (often suggested by lawyers) are sent
to the registrar
National court must stay proceedings until CJEU rules (Art 23
Statute)
Which national court has referred the question?
Conseil d’État (Council of State, France)
When? Decision of 19 July 2017
What are the questions? § 39 of the decision
Oral hearing
(Arts. 76 to 85 of the Rules of Procedure)
* Oral hearing on reasoned request by Art. 23 Statute entities
* No oral hearing if:
➢Case is manifestly inadmissible (Art. 53(2) Rules of Procedure)
➢Judge-Rapporteur and Advocate General consider that there is
already sufficient information to give a ruling (Art 76(2) Rules of
Procedure)
➢The question is identical to a previous one if answer is clear (Art.
99 Rules of Procedure)
- Hearing is directed by the President
- Questions can be asked by AG and Court
- Hearing is public except if heard in camera (security or
protection of minors)
Delivery of the Judgment
Reasoned order (Art. 53(2) and Art. 99 Rules of Procedure) or
Judgement Content and structure of the judgment
1. Participants
2. Legal context
* EU Law
* National Law
3. National Dispute
4. Questions referred
5. Consideration of the questions:
* Parties arguments
* Decision of the court
6. Costs
7. Operative part
Notification to the national court and Art. 23 entities + Publication of the judgment
