Week 8 Flashcards
Enhanced cooperation in the creation of a European Union patent system. 3 Legal and institutional dimension.
What are two aspects of breach of EU law?
- from the perspective of the EU
- from the perspective of an individual
There are two procedures:
- one procedure accordingly to the Article 7 of the TEU
- second procedure accordingly to the Article 258 TFEU
Accordingly to the procedure under article 7 of TEU:
3-stages procedure:
1) Article 7 (1) on a reasonable proposal by one-third of the member states by the European Parliament or by the European Commission. The Council of the European Union acting by a majority of four-fifths of its members and after obtaining the consent of the European Parliament may determine that there is a clear risk of a serious breach by a member state of the values referred to in Article 2 of the Treaty on the European Union.
2) Article 7 (2) the European Council acting by unanimity on the proposal by one-third of the member states or by the Commission and after obtaining the consent of the European Parliament may determine the existence of a serious and persistent breach by a member state of the values referred to in Article 2. After inviting the member state in question to submit its observations.
3) Article 7 (3) Council of the European Union acting by a qualified majority may decide to suspend certain of the rights deriving from the application of the treaties to the member state in question including the voting rights of the representative of the government of that member state in the council. In doing so the council shall take into account the possible consequences of such suspension on the rights and obligations of natural and legal persons. the obligation of the member state in question under the treaties shall, in any case, continue to be binding on that state.
Article 2 TEU
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Article 17 of TEU
the commission shall promote the general interests of the Union and take appropriate initiatives to that end. It shall ensure the application of the treaties and of measures adopted by the institutions according to them. it shall oversee the application of Union law under the control of the Court of Justice of the European Union.
Article 258 TFEU
If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.
Who is the guardian of the Treaties?
- the Commission
How starts the proceedings against a member state in case of violation EU law?
- the Commission
What does it mean that a member state violates EU law?
Examples of violation of EU law are numerous and they depend upon the invention of the member states. One of the most obvious violations of EU law is lack of the transposition of a directive. The other is for example adoption of the legal act which is incompatible with EU law keeping in force of legal acts which violate EU law. The issue of an administrative decision or a judgment which violates EU law, a practice of administrative authorities which violates EU law for example which disregards non-discrimination principle.
Commission vs. France
EJC held that a Member State may be responsible also for failing to take all necessary and proportionate measures in order to prevent the violation of EU law by private parties. In that case, France was held liable for failing to take all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals. The French Republic has failed to fulfill its obligations under the common organization of the markets and in agricultural products. For more than a decade the commission has regularly received complaints concerning the passivity of the French authorities in face of violent acts committed by private individuals and by protest movements of French farmers directed against agriculture products from other member states Spain and Portugal.
Those acts consist inter alia in the interception of Lorries transporting such products in France and the destruction of their load’s violence against lorry drivers. Threats against French supermarkets selling agricultural products originating in other member states and the damaging of those goods went on display in shops in France.
Is it possible for Member States to justify the violation of EU law?
Actually, there are a few arguments that can be used by a member state in order to justify the violation of EU law. For example, this is force majeure argument. The member states may also rely on that the relation clause is provided for in the treaties. For example it is allowed for a member state under Article 36 of the Treaty on the Functioning of the European Union to apply prohibitions on restrictions on imports-exports of goods in transit justified on the grounds of public morality, public policy or public security as well as the protection of health and life of humans animals or plants and the protection of national treasures possessing artistic historic or archaeological value or the protection of industrial and commercial property.
Into which two stages the proceeding agains a member state may be divided?
administrative, pre-litigation and judicial procedure.
What does it mean an administrative proceeding?
An administrative proceeding may be initiated by the European Commission which as a guardian of the treaties decides whether to start a proceeding against a member state or not.
For example in case of lack of transposition of a directive. The administrative proceedings consist of two phrases informal and formal.
What is informal phase of administrative proceeding?
In an informal phase the Commission tries to get more information about the alleged violation. It contracts with member state and asks for an explanation of the situation.
What is formal phase of admin proceeding?
After informal notice, it issues a letter of formal notice. It is an act in a way to the Commission for the first time formulates allegations against a member state and member state has a right to defend and may but is not obliged to do so to answer the letter of formal notice.
What is about the second stage “litigation proceeding”?
is the litigation proceedings before the Court of Justice of the European Union. After examination of the case, the court decides whether the member state has violated EU law. The judgment is of declaratory character. It’s binding for the member state, meaning that it’s binding for all the authorities of the state. The procedure for violation of EU law may be initiated against a member state not only by the commission but also by another member state.
Article 259 TFEU
A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.
Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before 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 and its observations on the other party’s case both orally and in writing.
If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court.
What it is the principle of liability?
being of fundamental importance from the perspective of the effectiveness of EU law. Flows from the jurisprudence of the Court of Justice of the European Union.
Francovich vs Bonifaci
In the case Francovich and Bonifaci the Court reminded that at the outset the treaties has created its own legal system which is integrated into the legal systems of the member states and which their courts are bound to apply. The subjects of the legal system are not only the member states but also their nationals. Does as it imposes burdens on individuals.
What it is the principle of effectiveness?
It follows from the judgment that the principle of effectiveness underlies the principle of liability of a member state for damage, in the same Francovich judgment the Court of Justice of the European Union held that the possibility of obtaining redress from the member state is particularly indispensable where the full effectiveness of EU rules is subject to prior action on the part of the state and the work consequently in the absence of such action individuals cannot enforce before the national courts the rights conferred upon them by EU law. It follows that the principle whereby a state must be liable for loss and damage caused to individuals as a result of breaches of EU law for which the state can be held responsible is inherent in the system of the treaties.
What it is the principle of sincere cooperation?
Article 4 (3) the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
Brasserie VS Factor Time
the court has also found that the principle of liability is reflected by the provision of the treaty according to which in the case of non contractual liability of the European Union the Union shall in accordance with the general principles common to the laws of the member states make good any damage caused by its institutions or by its servants in the performance of the duties.
liable for damage
The Court of Justice has also said that the conditions under which the state may be held liable for damage caused to individuals. The rule of law infringed must be intended to confer rights on individuals. The breach must be sufficiently serious and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.
What it is the principle of procedural autonomy?
In the absence of EU legislation, it is for the internal legal order of each Member State to indicate the competent courts and laid down the detailed procedural rules for legal proceedings intended to fully to safeguard the rights which individuals derived from EU law.
As a result, an individual shall file a claim for reparation to the national court but the national courts show adjudicate on the matter on the basis of the liability conditions resulting from EU law. It only applies national procedural rules.
What it is the principle of equality?
in the light of the jurisprudence of the Court of Justice of the European Union, the conditions for reparation of Loss and Damage let down by the National Law of the member states must not be less favorable that knows relating to similar domestic claims.
What does it mean the principle of effectiveness of procedural measures?
must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation.. this principle s limit the procedural autonomy of a member state.
What does mean the principle of liability of a MS for damage caused to individuals?
This issue in particular regarding the question of whether the infringement procedure is a prerequisite for the claim for damages, in the brasserie vs Factor Time judgment the Court of Justice held that the word the obligation of the Member State concerned to make reparation to be confined to loss or damage sustained after delivery of our judgment of the court finding the infringement in question that would amount to calling into question the right to reparation conferred by EU legal order.
In addition to making the reparation of loss or damage conditional upon the requirement that there must have been a prior finding by the court of an infringement of EU law attributable to a member state would be contrary to the principle of the effectiveness of EU law.
Since it would preclude any right to reparation so long as the presumed infringement had not been the subject of an action brought by the commission under Article 258 of the Treaty on the Functioning of the European Union, and of a finding of an infringement by the court.
The rights arising for individuals out of the provisions of EU law having a direct effect in the domestic legal systems of the member state cannot, therefore, depend on the commission’s assessment of the expediency of taking action against a member state or on the delivery by the court of any judgment finding an infringement. But if there is a judgment finding the infringement of EU law adopted under Article 258 of the Treaty on the Functioning of the European Union and that the breach of EU law continued after the judgment then such a breach of EU law may be regarded as sufficiently serious breach of EU law for matters of the member states liability for breach of EU law.
In what aspects may the consequences of breach of EU law be discussed?
From the perspective of the EU and from the perspective of an individual.
What kind of procedure is provided in article 7 of the Treaty on the European Union?
A three-stage procedure.
On what value is the Union founded?
On the values of respect of human dignity, freedom, democracy, equality, the rule of law and respect for human rights including the right of persons belonging to minorities.
