Notes

Question 1

Advocate General

Answer 1

11 Advocate Generals
1 assigned to each case before the ECJ

Most important task - written opinion.
Sets out the AG’s view of the law and recommends how case should be decided.
Not binding but very influential

Question 2

Primacy

Answer 2

EU law prevails over conflicting MS law

Question 3

Direct Effect

Answer 3

EU law applies in the MS without the need for transposition into a domestic legal act

Question 4

Combined, what does primacy and direct effect make?

Answer 4

A supranational legal order

Question 5

How many official languages are there in EU?

Answer 5

24 languages of the EU

Question 6

What’s the working language of the ECJ?

Answer 6

French

Question 7

Regulations

Answer 7

Directly applicable in all MS and binding

Question 8

Directives

Answer 8

Need to be transposed by MS

Question 9

Article 258 TFEU

Answer 9

Commission enforcement.

The Commission will deliver a reasoned opinion if they feel as though a MS has failed to fulfil an obligation under the Treaties, and they will give the State an opportunity to submits its observations.
If the State does not comply with the opinion within the period, the Commission may bring the matter before the Court of Justice of the European Union.

Question 10

Administrative phase

Answer 10

Between the Commission and the MS.
Informal negotiations, letter of formal notice and then reasoned opinion.
If MS still in violation of EU law, referral to the Court.

Question 11

Article 267 TFEU

Answer 11

Preliminary rulings.
The CJEU shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

Question 12

Conditions for a referral to the ECJ (Art 267 TFEU)

Answer 12

• Must be made by a Court or Tribunal
• Based on a question of EU law,
• In a case presently before them
• Duty to refer?

Question 13

How to refer a case? (Art 267 TFEU)

Answer 13

Article 94 of the Rules of Procedure.
• Summary of the subject matter and of the facts
• Information on relevant national law
• Statement of reasons that prompted the referral

If these elements are missing, the request will be deemed inadmissible.

Question 14

Article 263 - Grounds for Review

Answer 14

• Lack of competence (lack of power)
• Infringement of an essential procedural requirement
• Infringement of the Treaty or of any rule of law relating to its application
• Misuse of powers

Question 15

Administrative Phase

Answer 15

• Between the Commission and MS
• Informal negotiations
• Letter of formal notice
• Reasoned opinion
• If MS still in violation? Referral to the Court

Question 16

Judicial Phase

Answer 16

Before CJEU

Court to decide whether a breach of EU law has occurred

• Breaches of primary law
• In particular: failure to implement Directives
• Breaches of secondary law

Question 17

Article 259 TFEU

Answer 17

• A MS which considers that another MS has failed to fulfil an obligation under the Treaties may bring the matter before the CJEU
• It shall first bring the matter to the Commission
• The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case

Question 18

Letter of Formal Notice

Answer 18

• Request for further information from the MS concerned
• Asked to send a detailed reply within a specified time period, usually 2 months (most cases resolved here)

Question 19

Reasoned opinion

Answer 19

• If Commission concludes that MS has breached EU law (based on MS response to the letter of formal notice)
• Formal request to comply with EU law
• Specifies period for a response as to what measures have been taken to end the breach (usually 2 months)

Question 20

Article 263(1) TFEU

Answer 20

• Review the legality of legislative acts
• judicial review of EU acts - power of courts to review the actions of the executive and legislative branches, i.e to annul an act that was adopted by legislative or executive branches

PURPOSE OF ARTICLE - to get acts annulled by the CJEU

Question 21

What’s a reviewable act?

Answer 21

Article 263(1):

• Legally binding act needed: Regulation, Directive or Decision
• Can be legislative or non-legislative

Question 22

Article 263(2)

Answer 22

Privileged applicants
• Member States, Council, Commission, Parliament
• No need to show any specific interest

Question 23

Article 263(3)

Answer 23

Semi-privileged applicants
• Court of Auditors, European Central Bank, Committee of the Regions
• Must act to ‘protect their prerogatives’

Question 24

Article 263(4)

Answer 24

Non-privileged applicants
• Everyone else (“any natural and legal person”)
• High hurdles/most complex

Question 25

Article 263 - Standing (Locus Standi)

Answer 25

Privileged applicants
Semi-privileged applicants
Non-privileged applicants

Question 26

Private Enforcement

Answer 26

Private claimants bringing cases before domestic courts claiming a violation of EU law

Advantages: cost-free and (good) detection by those affected
Disadvantages: haphazard; public interest does not feature

Question 27

Public Enforcement

Answer 27

By the EU Commission or another MS

Advantage: public interest considerations feature greatly
Disadvantage: limited capacity to detect and to pursue; political considerations come into play

Question 28

Foglia v Novello

Answer 28

Duty of ECJ under Article 267 is to supply all courts in the EU with the information on the interpretation of EU law

Question 29

Foto Frost case

Answer 29

• MS cannot declare EU acts invalid
• Only CJEU can

Question 30

Plaumann case

Answer 30

• German clementine importer
• Challenged decision addressed to Germany regarding refusal of lowering duty on imports of clementines
• “If an act affects them by reason of certain attributes which are peculiar to them”

Question 31

Les Verts case

Answer 31

• Green Party challenged political funding from the Parliament
• Argued unfair to newer parties

Question 32

Piraiki Patraiki case

Answer 32

• Greek producer of cotton yarn
• Commission issued decision to French Republic so that they could add quotas of cotton import from Greece to France

Question 33

Codorniú case

Answer 33

• EU regulation relating to description and presentation of wine
• Cordoniú - Spanish producer who used ‘Cremant’ name since 1924

Question 34

Union de Pequenõs Agricultores

Answer 34

Re-affirmed Plaumann

Question 35

van Gend en Loos

Answer 35

• Dutch charge of import tariffs based on Dutch law
• Article 12 Treaty of Rome said MS shall refrain from introducing new customs
• EU law is capable of applying in domestic law even in the absence of any transposition

• Individuals to rely on EU law directly before national courts
• national courts must give effect to EU Law (and coupled with the principle of primacy, dis apply and contravening national law)

Question 36

Defrenne v Sabena

Answer 36

Refinement of direct effect conditions

• Ms Defrenne was a flight attendant working for Sabena (private company)
• Belgian law: female flight attendants must retire at 40
• whereas male flights attendants have to work longer
• Ms Defrenne complained that this results in unequal pay for women
• Because she must retire at 40 and live off a pension that is lower than what she would have earned if she had continued working
• Article 157(1) TFEU says “each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”
• Court: if the Court can establish all the facts in relation to whether a woman is receiving lower pay than a male worker performing the same tasks. In such a situation, Article 157(1) is directly effective
• HENCE: the test for direct effect is:
• Is the provision ‘sufficiently precise and conditional’?

Question 37

van Duyn v Home Office

Answer 37

• Ms van Duyn relied on her right under Art 45 TFEU (free movement of workers
• UK Home Office invoked a limitation recognised in the Treaties
• Ms van Duyn wanted to work in the UK as a secretary for ‘Scientology’
• UK Home Office policy was to refuse entry to anyone connected with Scientology as its activities were considered socially harmful
• An unimplemented Directive said public policy or public security should be based exclusively on the personal conduct of an individual concerned
• but UK had not concerned her personal conduct
• Test was met in van Duyn

Question 38

Directive direct effect test

Answer 38

Directives can only be considered for direct effect if they have:

a. Either not been transposed within the transposition period
b. Or they have been transposed wrongly

Question 39

Marshall v Southampton and SW Hampshire Area Health Authority

Answer 39

• State pension qualifying age for women was 60 v 65 for men
• Marshall was dismissed from her job aged 62 (employer had allowed her to work for longer) because she qualified for a state pension
• brought discrimination claim based on an unimplemented Directive
• Transposition period had long expired

Question 40

Wells case

Answer 40

• Ms Wells challenged a planning permission granted to the private owners of a quarry
• environmental impact assessment as required by a certain Directive had not been carried out
• If Wells wins, then planning permission will be revoked and the private owners of the quarry will be negatively affected by direct effect - legal certainty?
• ECJ:
• “mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the MS concerned”

Question 41

Francovich and Bonifaci

Answer 41

State liability

• Approx. 35 employees an Italian firm which had gone insolvent were owed unpaid wages
• Italy had been obligated to implement the Insolvency Protection Directive which would have given them insurance against this, but they didn’t implement
• It did not meet the requirement of direct effect. Not clear, precise and unconditional.

Question 42

Brasserie du Pêcheur and Factorame

Answer 42

• French brewery prevented from selling into Germany as its beers did not comply with the German beer purity law
• Previously established in Commission v Germany that not allowing beers from other MS to be marketed Germany acted in violation of free movement of goods

Refined test for State Liability:
• Rule of law infringed must be intended to confer rights on individuals
• The breach must be sufficiently serious (not transposing/incorrectly transposing a Directive is always serious)
• There must be a direct casual link between the breach and the damage sustained

Question 43

Dillenkofer case

Answer 43

• German governed did not transpire the Package Travel Directive within the implantation window - consumers who had booked a package holiday with a tour operator which later became insolvent lost out
• “Failure to take any measure to transpose a Directive in order to achieve the result it prescribed within the period laid down for that purpose constitutes per se a serious breach”

Question 44

Costa v ENEL

Answer 44

• Italy nationalised all electricity providers and former ENEL, the new public electricity board
• this happened by an act of the Italian parliament
• Costa received a bill of around €2,000 (in todays money) from ENEL, but refused to pay
• argument: ENEL had been established unlawfully (contrary to EU law)
• and therefore: Costa did not have a contract with ENEL and thus did not owe ENEL anything
• EU Law: obliged MS to report measures potentially causing market distortions to the Commission; provides for free movement of services; and prohibits discriminatory State monopolies

We know from Costa v ENEL that EU Law prevails over MS legislation, and MS courts must dis-apply contravening MS law

Reasoning based on ‘effet utile’ (the practical effectiveness of EU Law)

Question 45

Internationale Handelsgesellschaft

Answer 45

EU Law v Domestic constitutional law

• Case concerning EU customs regulations
• company had obtained an export licence allowing it to export 20,000 tons of maize meal
• had to lodge a deposit with German customs in accordance with the EU Regulations
• company ended up not exporting the full amount of 20,000 tons
• under the Regulation it lost its entire deposit
• Claimant invoked the German constitution to argue that two Regulations are not valid in Germany

EU Law prevails over constitutional rights

Question 46

Simmenthal case

Answer 46

• Simmenthal had imported a consignment of beef from France into Italy
• was charged a veterinary inspection fee
• fee was due under an Italian piece of legislation
• national court in Italy considered this fee to be contrary to EU Law: free movement of goods
In Italy: only the constitutional court has the power to declare acts of the Italian parliament null and void

Question 47

Commission v France

Answer 47

• Facts: ECJ found that France had failed to fulfil its obligations under two EU fisheries regulations
• especially re mesh size of fishing nets
• in the aftermath Commission undertook several visits to French ports and found that judgement had not been complied with
• Court asked France to pay a lump sum of 20 million plus a further daily penalty for every six months that France doesn’t comply