L2: Judicial Interference Flashcards
1
Q
Court of Justice of the EU
A
Judicial Organ
2
Q
What is the function of the CJEU
A
Upholding the rule of law
3
Q
What does the CJEU review?
A
Legality of acts, omissions of member states, omissions of EU institutions, interprets EU law at the request of national court
4
Q
What are the 3 levels of the COJ? Art 19(1) TEU
A
Court of Justice, General Court, Specialised courts
5
Q
What are the 2 main proceedings of the COJ?
A
Direct actions & Preliminary references
6
Q
Direct action
A
Brought directly before the COJ/General court and dealt with in their entirety
7
Q
Preliminary Reference
A
Begin before a national court when encountered with a question on the interpretation/validity of EU law. Makes a PR to the COJ
8
Q
What happens after the PR has been delivered?
A
National court applies the ruling on the facts and decides on the dispute. COJ intervention is incidental
9
Q
What are the 4 main types of direct action?
A
Infringement, Annulment, Damages, Illegality
10
Q
Infringement / Enforcement
A
Article 258-260
11
Q
Annulment
A
Article 263. 264
12
Q
Damages
A
Article 268, 340 (2) & (3)
13
Q
Illegality
A
Article 277
14
Q
Interim relief
A
Art 278 & 279
15
Q
What are infringement/ enforcement actions for?
A
Brought by a MS against another MS for non-compliance with EU law
16
Q
What are annulment actions for?
A
Challenges illegal acts of EU institutions
17
Q
What are damage actions for?
A
Compensation for damage due to an unlawful union act
18
Q
What is the objective of direct actions?
A
Ensure MS compliance & protects against illegal acts/omissions of EU institutions
19
Q
What are preliminary rulings for ? Art 267
A
Interpretation of EU law & Validity of EU law
20
Q
How does the role of the courts differ in PR vs Direct actions?
A
Direct actions = adjudicate on dispute between parties, PR = advice on a specific point of EU law
21
Q
Infringement proceedings
A
Address situations where a MS has breached EU law (failed to implement directive on time / enact legislation contrary to EU law)
22
Q
Who is the main applicant in infringement proceedings?
A
Commission
23
Q
What is the main provision for infringement proceedings?
A
Article 258 TFEU
24
Q
Article 259 TFEU
A
Allows a MS to bring infringement proceedings- rarely used
25
Can private parties bring infringement actions before the court?
No- can challenge illegal actions of MS, Rely on direct effect. Request a national court to make a preliminary reference on the interpretation of EU law
26
What are the phases of an infringement proceeding?
1. Commission gives MS the opportunity to remedy infringements & submit observations
2. Judicial phase before COJ
3. Judgement finding MS in breach of EU law is binding
4. Non-compliance -> pecuniary sanctions Art 260
27
When can the commission start infringement proceedings?
If it believes a MS has failed to fulfil an obligation under the treaties
28
Can a MS incur liability regardless of the agency responsible for failure to fulfil obligations?
Article 258- Yes, includes:
- legislative, executive and judicial branches
- Any other public bodies
- Private entities controlled by the state
29
Must the potential infringement be attributable to the state?
Yes
30
Who is the defendant in an Article 258 action?
State itself. Action is brought against the government of the MS
31
What constitutes a failure to fulfil obligations under the treaty?
Positive acts & omissions in relation to treaty obligations, secondary legislation, international agreements, general points of law
32
What are examples of positive acts that = failure to fulfil treaty obligations?
Enactment of national legislation / sustained administrative practices contrary to EU law
33
Commission v France (Strawberries)
- C brought proceedings against french gov
- French authorities failed to prevent continuous, systematic destruction of spanish & belgian agricultural produce by french farmers
- Distribution of free movement of goods attributable to private parties
- Failure of french gov taking action = state failure to fulfil treaty obligations under Art 34
34
What is the administrative phase of an infringement action?
- Letter of formal notice
- C defines dispute subject matter for MS to submit observations
- MS given reasonable time to respond
- C may deliver reasoned opinion describing infringement of EU law (can't change original subject matter or extend scope)
- MS given reasonable time to comply
- Failure to comply = C may bring matter before COJ
- Judgement is declaratory- states whether MS has breached EU law
35
What may a court grant during infringement proceedings?
Interim measures
36
What if a MS tries to defend themselves?
Court focuses on objective existence of EU law violation- typically dismisses defences
37
What are some unsuccessful defences?
Internal/practical difficulties hindering compliance with EU law
Other union institutions breaching EU law
Unlawful legislation being obsolete, not applied by MS
38
What can the court impose in response to a MS failing to comply with judgements under Art 258/259?
Pecuniary sanctions of a penalty or lump sum Art 260(2)
39
What are the consequences of a MS failing to transpose a directive on time?
Article 260 (3). When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
40
When are actions for annulment brought?
Where EU institution adopts illegal acts (enacting a directive in breach of general principle of law or has failed to act under EU law)
41
Article 263
Principle & structure of annulment proceedings
42
What are the 4 points the courts consider when an action for annulment is brought?
1) Compliance with time limit for bringing the actions
2) Reviewability of act
3) Standing of applicant
4) Existence of possible grounds for the annulment of the act
43
What is the time limit for bringing an annulment action?
2 months- Article 263(6) TFEU
44
What happens if an annulment action is brought outside the time limit?
Inadmissible
45
What is a reviewable act?
An act of a legally binding nature.
Covers acts of institution, offices or agencies of union intended to have legal effect
46
What type of acts are brought in an annulment action?
Regulations, directives, and decisions
47
When is an act reviewable? post lisbon
If an act is capable of affecting the applicant by bringing about a distinct change in legal positionW
48
Which bodies are subject to review under Article 263?
The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
49
Can MS be a defendant in annulment actions?
No- Art 263 concerns actions of EU institutions
50
How can applicants be categorised for standing?
Privileged, Semi-Privileged, Non-Privileged
51
Who are privileged applicants?
MS, Parliament, Commission, Council.
52
What are privileged applicants entitled to?
Automatic right to bring proceedings- don't need to establish standing
53
Non Privileged applicants
Natural & legal persons
54
Semi-privileged applicants
Court of auditors, European central bank, Committee of regions
55
Standing for semi-privileged applicants
Can only bring proceedings when prerogatives are at stake
56
Standing for natural and legal persons
Art 263(4) Strict standing conditions
1) an act addressed to the applicant;
2) an act addressed to another person which is of direct and individual concern to the applicant;
3) a regulatory act which is of direct concern to the applicant, and which does not entail implementing measures.
57
What is the Plaumann test?
- Considered individual concern
- An individual will have individual concern if the act affects them by reason of certain attributes peculiar to them or by reason of circumstances in which they are differentiated from all other persons
58
What did Plaumann establish?
To establish individual concern, a member must belong to a closed category before the act in question comes into force
59
What is direct concern?
A direct causal relationship between the EU act & its effect on the applicant
60
When can a causal link be broken
If the addressee of the measure had discretion in its implementation
61
What is the lisbon test?
Art 263(4) allows non-privileged applicants who are not addressees of the contested measure to challenge a regulatory act without showing individual concern
62
What does it mean for a regulatory act that doesn't entail implementing measures?
Further measures are required to put an EU act into effect
63
Telephonica v Commission
Interpreted "absence of implementing measures as the absence of any measures to be taken by the addressee of the measure
64
Which case law clarifies standing requirements for associations created for promotion of collective interests (e.g. trade associations) wanting to bring annulment actions?
Federolio
65
Federolio
1) Where a legal provision grants the association a series of procedural rights
2) Members are directly and individually concerned
3) Own interests of association are affected in particular its position as negotiator is affected by EU act in question
66
What are the 4 grounds necessary to challenge the acts of an EU institution?
1) Lack of competence
2) Infringement of an essential procedural requirement
3) Infringement of treaty /any ROL relating to its application
4) Misuse of powers
67
Lack of competence
EU institutions subject to the principle of conferral- only empowered to act in the specific areas provided in the treaties.
- If EU institution lacked the power to adopt an act (no legal basis) act may be annulled due to lack of competence
- Excessive delegation of power
68
Infringement of an essential procedural requirement
EU institution has not complied with rules of procedure in the adoption of the contested act.
e.g. failure to consult EU parliament before adoption a measure where consultation is mandated by the treaty
69
Infringement of treaty
Breach of primary source EU law (Treaty provisions, international law provisions)
70
Action for failure to act
Article 265 & 266- Where an institution failed to act when it had an obligation to do so
71
When can a natural & legal person bring an action for failure to act?
Where an institution, body, office or agency has failed to address to that person an act other than a recommendation or an opinion
72
Plea of illegality
Article 277
73
What is the plea of illegality?
Incidental to a direct action, allowing direct applicant to plead illegality of a general EU act constituting basis of the main act
74
Who can bring a plea of illegality?
Any party- mostly by private parties wanting to bypass strict standing conditions under art 263
75
Article 268; 340
Action for damages
76
When is an action for damages brought?
Where applicant has suffered damage or loss as a result of illegal action by a union institution/civil servant
77
What are the conditions for an action for damages?
No standing conditions, time limit of 5 years from the occurrence of the event giving rise to liability
78
Lutticke
1) Existence of an unlawful act/conduct on the part of the institution
2) Actual damage suffered by applicant
3) Causal link between illegality of act and damage suffered
79
How has the conditions for state liability evolved?
1) Breached rule intended to confer rights on individuals
2) Breach is sufficiently serious
3) Causal link attributable to the institution and damage suffered
80
Preliminary references
Action before national court who makes a reference to COJ on the interpretation/validity of EU law
81
What is the function of Article 267?
Ensure EU law is applied uniformly by national courts
82
When can a PR be made?
Where national courts apply EU law
Disputes regarding validity of EU acts
83
Who can make a PR?
A national court or tribunal
84
What constitutes a national court or tribunal?
Syfailt: Body must be
- Established by law
- Has a permanent existence
- Exercise binding jurisdiction
- Its procedure must be inter partes
- Must apply ROL
- Must be independent
85
When requesting an interpretation on EU law, what is within this ambit?
- Interpretation of treaty provisions, General principles of law, Acts of institutions, Bodies
86
What happens after a PR is made?
Declaration of a measure / principle as being contrary to EU law
87
Article 267 (2)
Any national court or tribunal may make a reference on an actively pending case before if it considers a decision of EU law is necessary to enable it to give judgement
88
When does the COJ reject cases for PR?
1) Irrelevant question
2) Question bores no relation to the actual case
3) Q is hypothetical
4) NC has failed to articulate q properly
89
Foglia v Novello
COJ has the power to judge the appropriate of a decision to refer
90
When does a NC have a duty to refer?
When a question of interpretation or validity is needed to make a judgement art 267 (3)
91
What are the 3 exceptions to the duty to refer?
Q is irrelevant
Q is materially identical to a Q already answered in a PR
CILFIT
92
What is the CILFIT exception?
A NC doesnt have an obligation to refer where the correct application of union law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved
93
What if a NC decides not to refer because they believe the interpretation is clear beyond reasonable doubt?
Must compare language versions of the provisions of EU law at stake.
Take account of peculiar EU law terms
Place every provision in its context and interpret it in the light of EU law as a whole and of its particular state of evolution
94
Consorzia Italian Management
Imposed obligation on a NC to provide statement of reasons substantiating its decision not to make a reference
95
What are the effects of a PR?
Binding on NC if it is an interpretation
Other NC and public authorities to treat it as authoritative
PR on validity = grounds for any nc to regard the act as void
96
Art 278 279
Court allowed to award negative and positive interim measures
appraised considering whether there is a threat of serious and irreparable damage to the applicant
97
Article 263
provides for judicial review of acts adopted by the EU institutions, through direct actions in the Court of Justice
98
Effect of annulment
If the grounds are established, the measure is declared void and the institution concerned must take measures to comply with the judgment.
