W2 Judicial Architecture and EU Remedies Flashcards
Which courts comprise the Court of Justice?
Court of Justice and General Courts
Which court is the court of first instance?
General Courts
Which court is the appellate court?
Court of Justice
Who are the judges in the CoJ?
Each MS nominates a judge but don’t all sit each case
Who is the advocate general?
Sits in the Court of Justice and gives a personal, non-binding opinion on each case
What are the CoJ’s direct actions?
Enforcement actions, challenges to the validity of EU action, damages actions, staff disputes
What are the CoJ’s indirect actions?
Preliminary reference procedure
Who can bring an enforcement action?
European Commission or another MS
Where is the process for an enforcement action by the European Commission described?
Art 258 TFEU
Where is the process for an enforcement action by another MS described?
Art 259 TFEU
Where is the process for a plea of illegality described?
Art 277 TFEU
Which article governs damages against the EU?
Art 265 TFEU
Which article governs staff disputes?
Art 270 TFEU
What is Commission Enforcement?
Occurs when the European Commission believes a member state failed to fulfil an obligation under the treaties
What is the process for Commission Enforcement?
1) Commission notifies MS of non-compliance via a letter of formal notice (generally following an informal negotiation period)
2) MS can respond with their observations
3) MS gives a reasoned opinion and deadline to comply
4) If MS not compliant by the deadline, then Commission can refer the case to the CJEU
5) CJEU issues a declaratory judgement
6) If MS still doesn’t comply, then Commission can apply to Court for penalty actions
Who can be subject to Commission Enforcement procedures?
Any body controlled by a MS government - even if technically private (e.g. Buy Irish)
Commission v Ireland - Buy Irish case
Facts: Irish Goods Council, a private organisation, campaigned to get consumers to switch from imported goods to Irish goods with ads, “guaranteed Irish” labels, etc. Despite being a private org, the outline of the campaign was set by the government, the managing committee were largely appointed by the Minister for Industry, and funding came from the government. As such, were found to be functionally under the control of the MS.
Significance: Clarified that private orgs with significant government involvement are subject to Commission Enforcement. Also an example of an enforcement action under Article 34 - free movement of goods.
Commission v France - Spanish Strawberries case
Facts: French farmers were targeting agricultural imports from other MS by intercepting lorries, threatening lorry drivers, destroying their loads. When reported to French police, they turned up, took videos, but didn’t prosecute anything. France was subject to commission enforcement for failing to act.
Significance: Commission Enforcements can be brought against MS for failing to enforce EU law.
Which article describes the penalties for Commission Enforcement?
Art 260 TFEU
What is the preliminary ruling procedure?
When a case concerning EU Law is brought to a national court, the court can (in some cases, must) request a preliminary ruling from the CoJ on the interpretation and application of the EU law.
Where is the preliminary ruling procedure defined?
Art 267 TFEU
Wiener nightdress case
Facts: Garments imported from outside the EU. On the customs declarations, stated they were nightdresses. Member state applies the customs code, which collects customs to go to the EU. Goods came in through German port (so a German official acted on behalf of the EU). German official said they are not nightdresses, but dresses (which had a higher tariff). Dispute arose between importers and German officials. German courts asked the CoJ for a definition of nightdress (goes to the appeal CoJ). They gave a definition, which went to the national court, who applies the test and decides the case.
Significance: Example of preliminary ruling procedure
When must a national court request a preliminary ruling?
Any national court may request a ruling, but any court of last instance must request a ruling.
What counts as a court/tribunal for the purposes of Art 267?
CJEU considers a number of factors:
- whether the body is established by law, (e.g. not arbitration committees set up by the parties)
- whether it is permanent,
- whether its jurisdiction is compulsory,
- whether its procedure is inter partes,
- whether it applies rules of law
- whether it is independent
When will the CJEU refuse a reference?
Where the referring court has failed to define adequately the factual and legislative context of the dispute
Where the question referred is of a hypothetical nature – there must be a real dispute
Where the issues of EU law on which the referring court seeks guidance bear no relation to the actual nature of the case or to the subject-matter of the main action
When does a national court not need to make a reference?
Materially identical questions already answered by the CJEU (Authority: Da Costa case)
National Court has established that question is irrelevant
The correct application of EU law is “so obvious as to leave no scope for any reasonable doubt” - very strict, see CILFIT
Case 28/62 Da Costa
Facts: Dutch company challenging a tax assessment, Dutch court made a reference for preliminary ruling to the CJEU. Ruled that the reference wasn’t necessary, since facts were materially identical to another question already answered by the CJEU.
Significance: National courts don’t need to make a reference if a materially similar question has been answered before.
Case 283/81 CILFIT
Facts: Italian textile companies challenging labelling rules in Italian Supreme Court as being non-compliant with EU law. Supreme Court was hesitant to refer. CJEU rules that national courts do not need to refer when the question is irrelevant, the provision has already been interpreted by CJEU, or the correct application is so obvious that it leaves no scope for reasonable doubt.
Significance: Establishes doctrine of acte clair
What is “acte clair”?
The doctrine that EU law must be clear and interpreted the same way across all MS, including with regards to differences in language
What do national courts need to consider to determine if application of EU law is clear enough not to require a preliminary reference?
Must be equally obvious to all courts of all MS and to CJEU
Must have regard to different language versions of EU law and ensure that provision of EU law is clear in all different language versions
Must be aware that EU law uses terminology which is peculiar to it. EU legal concepts do not necessarily have the same meaning in EU law and in the law of the various Member States.
Authority: CILFIT
What are the consequences for failing to refer to the CJEU?
May be subject to a Commission Enforcement under Art 258. Example: Commission v France, Conseil d’Etat tax case
Can leave the MS open to action from individuals and liable for damages (example: Kobler)
Commission v France, Conseil d’Etat tax case
Facts: Commission brought France to court for their rulings on tax issues concerning foreign and domestic subsidiaries. CJEU ruled that France violated EU law (freedom of establishment) and also had failed to fulfill their obligation to refer to the CJEU for a preliminary ruling.
Significance: Failing to make a reference can make a MS liable to enforcement under Art 258. Also reinforces the narrow interpretation of the CILFIT exceptions to references.
What is an action for annulment?
The process for challenging the validity of an EU act in the CJEU
Where is an action for annulment defined?
Art 263 TFEU
Who can bring an action for annulment?
Three types of applicant:
- Privileged Applicants: Member States, EU Institutions (don’t need to demonstrate interest/standing)
- Semi-Privileged Applicants: ECB, Court of Auditors… (Need to show interest only insofar that their rights were affected.)
- Non-Privileged Applicants: Natural and Legal Persons (Must have standing)
What is a reviewable act under Art 263 TFEU?
Any measure adopted by an EU institution with a legal effect
What are the time limits under Art 263 TFEU?
Action must be brought within two months of the publication of the measure, or of its notification to the plaintiff
What is the test for standing for non-privileged applicants?
Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings:
- against an act addressed to that person
- which is of direct and individual concern to them, or
- against a regulatory act which is of direct concern to them and does not entail implementing measures.
Where is the test for standing defined?
Art 263(4) TFEU
What is direct concern re: standing?
EU measure must directly affect claimant’s legal situation. The change in their legal position must be the direct result of the contested EU measure.
Authority: Piraiki-Patraiki
Piraiki-Patraiki
Facts: France was permitted to restrict cotton imports from Greece. Private Greek exporters wanted to challenge the decision under free movement of goods. Question over whether they had standing. Found they did have standing as the EU measure directly affected their legal situation.
Significance: Direct concern test for standing, re: non-privileged applicants.
What is individual concern re: standing?
Decision must affect them due to certain attributes which are peculiar to them or circumstances which differentiate them from all other persons
Authority: Plaumann case
Plaumann case
Facts: Applicant is importer of clementines, challenging a Commission decision refusing to suspend duties on clementine importers. Commission decision was addressed to Germany, so applicant did not have standing as failed the individual concern requirement.
Significance: Authority for individual concern test for non-privileged applicants.
What is the Lisbon test?
Allows individuals to challenge regulatory acts which are of direct concern and do not entail any implementing measures, per Article 263(4) TFEU
What is a regulatory act?
All acts of general application apart from legislative acts
Why can’t an applicant challenge a regulatory act with implementing measures?
If implementing measures are required, then the applicant should challenge the implementing measures at the national level and request a reference to the CJEU
What counts as implementing measures?
Any discretion exercised by the MS
How does an applicant choose to bring an action to EU court vs national court?
If an individual has standing for an action for annulment in EU court, they must bring it there. Otherwise, any subsequent action will be barred.
If they do not have standing for EU court, then look to challenge in national court.
Facts: Irish Goods Council, a private organisation, campaigned to get consumers to switch from imported goods to Irish goods with ads, “guaranteed Irish” labels, etc. Despite being a private org, the outline of the campaign was set by the government, the managing committee were largely appointed by the Minister for Industry, and funding came from the government. As such, were found to be functionally under the control of the MS.
Significance: Clarified that private orgs with significant government involvement are subject to Commission Enforcement. Also an example of an enforcement action under Article 34 - free movement of goods.
Commission v Ireland - Buy Irish case
Facts: French farmers were targeting agricultural imports from other MS by intercepting lorries, threatening lorry drivers, destroying their loads. When reported to French police, they turned up, took videos, but didn’t prosecute anything. France was subject to commission enforcement for failing to act.
Significance: Commission Enforcements can be brought against MS for failing to enforce EU law.
Commission v France - Spanish Strawberries case
Facts: Garments imported from outside the EU. On the customs declarations, stated they were nightdresses. Member state applies the customs code, which collects customs to go to the EU. Goods came in through German port (so a German official acted on behalf of the EU). German official said they are not nightdresses, but dresses (which had a higher tariff). Dispute arose between importers and German officials. German courts asked the CoJ for a definition of nightdress (goes to the appeal CoJ). They gave a definition, which went to the national court, who applies the test and decides the case.
Significance: Example of preliminary ruling procedure
Wiener nightdress case
Facts: Dutch company challenging a tax assessment, Dutch court made a reference for preliminary ruling to the CJEU. Ruled that the reference wasn’t necessary, since facts were materially identical to another question already answered by the CJEU.
Significance: National courts don’t need to make a reference if a materially similar question has been answered before.
Case 28/62 Da Costa
Facts: Italian textile companies challenging labelling rules in Italian Supreme Court as being non-compliant with EU law. Supreme Court was hesitant to refer. CJEU rules that national courts do not need to refer when the question is irrelevant, the provision has already been interpreted by CJEU, or the correct application is so obvious that it leaves no scope for reasonable doubt.
Significance: Establishes doctrine of acte clair
Case 283/81 CILFIT
Facts: Commission brought France to court for their rulings on tax issues concerning foreign and domestic subsidiaries. CJEU ruled that France violated EU law (freedom of establishment) and also had failed to fulfill their obligation to refer to the CJEU for a preliminary ruling.
Significance: Failing to make a reference can make a MS liable to enforcement under Art 258. Also reinforces the narrow interpretation of the CILFIT exceptions to references.
Commission v France, Conseil d’Etat tax case
Facts: France was permitted to restrict cotton imports from Greece. Private Greek exporters wanted to challenge the decision under free movement of goods. Question over whether they had standing. Found they did have standing as the EU measure directly affected their legal situation.
Significance: Direct concern test for standing, re: non-privileged applicants.
Piraiki-Patraiki
Facts: Applicant is importer of clementines, challenging a Commission decision refusing to suspend duties on clementine importers. Commission decision was addressed to Germany, so applicant did not have standing as failed the individual concern requirement.
Significance: Authority for individual concern test for non-privileged applicants.
Plaumann case
