Private Enforcement & Preliminary Reference Flashcards
“decentralized” enforcement
So, private enforcement means EU law can be privately enforced in a decentralized manner through domestic judicial systems. That is something straight out of Craig and Duburca.
“indirect effect”
In private enforcement, loyalty is relevant because there is a duty to interpret national law in conformity with the treaties. There is this duty of interpretation.
Van Gend en Loos
EU law is capable of producing independent effects within national legal orders, effectively meaning that regular people can go to court and make EU law arguments, and the judge will listen.
1) the provision, or the act, has to be sufficiently clear and precise. Step one: is the provision clear and precise? Yes. As it is drafted now, the current provision is Article 30 TFEU. If you read it, the treaty provision is clear and precise. So it meets step one.
2) it has to be unconditional. for the second requirement, you need to know a little bit more about the situation. You need to know whether you are dealing with a provision of a treaty, or regulation, or a directive because you need to know the date at which it is enforced and whether the member state is required to do anything extra to implement it.
3) the deadline must have passed
Marshall Case C-271/91
Foster v British Gas Case C-188/89
the important thing about those cases is that they give us guidance and help us understand whether we are in a vertical situation or a horizontal situation. And Foster especially also gives us guidance to help us understand what an emanation of the state is for the purposes of Direct Effect and Directives.
Quote: “A body, whatever it’s legal form,… Responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and which has for that purpose special powers beyond those which result from the normal rules applicable in relation between individuals…”
Van Duyn Case 41/74
Directives are binding and will be more effectively enforced if individuals can rely on them.
Ratti Case 148/78
Member states should be estopped from committing a breach by failing to implement a directive and denying its binding effect after the implementation date has passed. The Court of Justice has held that provisions of a directive – even if they are clear and precise – cannot have a direct effect until after that deadline for transposition has expired. During the period for transposition, individuals may not rely directly upon rights and obligations envisaged for them by a directive. The principle of sincere cooperation requires that even during the transposition period, member states must refrain from taking any measures compromising the result prescribed by the directive – see Article 4(3) TEU.
Von Colson Case 14/83.
The Court of Justice first identified the duty of consistent interpretation in its ruling
the dispute: German rules implementing Directive 76/207 unequal treatment between men and women (remedies for unlawful discrimination).
“In applying… National law…, National courts are required to interpret their national law in the light of the wording and the purpose of the directive…”
Marleasing Case 106/89
The same duty exists even when the dispute involves two private parties
Cartesio Case C-210/06
is a relatively easy case about this concise theme. If you have a legal system, and in this case it was a Hungarian legal system, where there are procedures in place to sort of this stop or prevent the lower courts from sending their references to the court of justice then procedures like that are unacceptable in the Court of Justice’s point of view. Every court or tribunal should have the potential to have a direct link between it and the Court of Justice in Luxembourg. They should be able to transmit questions and receive answers and to integrate those answers into caselaw. We can see with the timing of this case in 2006 that it was very shortly after the massive enlargement of many EU member states. 10 new EU member states joined in 2004. So it is politically sensitive for lower courts to be sending all these questions. Hungary was quite a new member state at the time, so the Cartesio case…the Court of Justice was very very careful to articulate this idea of every court and tribunal having a relationship with the Court of Justice in Luxembourg.
Borsch Consult Case C-54/96
provides a list of all the different criteria that you need in order to identify whether a court or tribunal is able to make a reference to Luxembourg. Now, in our member state, the UK, is abundantly clear that all the courts and tribunals that we know and come across… They meet all of these criteria
CILFIT Case 283/81
if there is relevant case law which has already been addressed by the court of justice, that means that your question is acte eclaire – meaning that the issue has already been decided.
acte clair — the matter is reasonably clear and free from doubt.
The case gives guidance on what a national court should do in this situation, says that the question should be so obvious as to leave no scope for any reasonable doubt about the answer to the question. (ACTE CLAIR)
