W200 Exam Review, Unit 19

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Treaties:

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What refers to the criteria for the direct effect of EU law

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Van Gend criteria

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Treaty Articles are only directly effective if they satisfy the Vand Gend citeria of

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(i)being clear

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(ii)precise and unconditional

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(iii) and there must be no room for discretion in implementation

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Treaty Articles which do not make express reference to individuals can still produce

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direct effects (i.e. Create rights for individuals which national courts must protect

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what refers to an individuals rights to enforce EU law against the State or State body

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vertical direct effect

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What refers to an indivduals rights to enforce EU law against another individual

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horizontal direct effect

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an individual can use a treaty to bring a case against

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another individual in EU law

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Regulations:

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what describes a regulation as of general application...binding in its entirety and directly applicable in all Member States' it is intended to take effect without need for further implementation

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Article 288

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A Regulation may be invoked vertically if

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it fulfills the Van Gend criteria of being clear, precise and unconditional, and there must be no room for discretion in implementation

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Is direct effect equal for Directives

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No, as directives are implemented through national legislation and can only be implemented through vertical direct effect

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Criteria for direct effect for directives:

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(i) The terms of the Directive relied upon must be clear, precise and unconditional (i.e. The Van Gend criteria apply, at least in part)

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(ii) The date for implementation must have expired

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(iii) The person against whom the Directive is pleaded must be the State or a State

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According to the ECJ what is an organisation or body which were subject to the authority or control of the State, or had special powers beyond those which result from the normal rules applicable to relationsbetween individuals

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a public or state body

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Any individual would make a claim using the provisions of any directive in a national court regardless of whether it has been passed or not; if

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it had not been passed in national legislation it could be directly effective if it fulfills the criteria for a Directive

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3: 'Von Colson' principle

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What is the 'Von Colson' principle

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the 'Von Colson' principle refers to 'the principle of indirect effect'

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What refers to when EU law is not directly applied but is indirectly applied through interpretation of national law by the EU

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the principle of indirect effect

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the 'Von Colson' principle only has effect if the national courts follow the application of EU law as interpretated set out by the ECJ on a national level

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the policy of indirect effect can operate quite widely but not

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where there is no provision at a national level

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Francovich principle refers to

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state liability in cases

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Criteria to claim damages from the state:

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(i) Failure to implement a directive (Francovich v.Italian State (cases C-6/90 and C-9/90)

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(ii) incorrect implementation of a directive (R v. HM Treasury, ex parte British Telecommunications (case C-392/93 [1996] ECR I-1631)

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(iii) Legislative acts (Brassrie du Pecheur SA v. Germany and R v. Secretary for Transport, ex parte Factortame (joined cases C-46/93 AND C-48/93)

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(iv) Administrative acts (R v. Maff, ex parte Hedley Lomas (case C-5/94)

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A Member State will be liable if the following criteria are satisfied:

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(i) the rule of law which was breached must be intented to confer rights upon individuals

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(ii) the breach must be sufficiently serious (note that the test for whether this is the case depends on the type of breach which the Member State has committed)

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(a) Where the Member State has exercised its rule making powers (i.e. In the 'incorrect implementation' and 'legislative act' cases), a breach will only be 'sufficiently serious' where the Member State has manifestly and gravely disregarded the limits on its powers. In turn, whether this is so depends on factors of the type applied in the BT case.

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(b) Where there are no legislative choices to be made, and the Member State has no (or limited) discretion (i.e. In the 'non implementation' and 'administrative acts' cases), the infringement of EU law itself may be enough to establish the existence of a sufficiently serious breach: see Dillenkofer and others v. Germany (joined cases C-178, 179, 189 AND 190/94) strict liability

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(iii) there must be a direct casual link between the breach of the State's obligation and the damage sustained by the injured parties.

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What can national courts do when faced with claims for damages for State Liability

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(i) Observing the conditions stated in the criteria

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(ii) Observing the obligation:

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(a) not to discriminate against EU causes of action (the 'equivalence principle'), and

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(b) not to make it excessively difficult to obtain a remedy (the 'effectiveness principle')

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What Article establishes that the Union itself has contractual liability

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Article 340 (215)

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What Article establishes that the EU has a non-contractural liability in respect of damage caused by its institutions or by its servants in the performance of their duties.

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Article 340 (215)

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E: Enforcement of European Union law

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Article 101 provides that

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the misuse of power by large businesses

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An individual (business or person) can rely on EU law in three ways:

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(i) direct effect

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(ii) indirect effect

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(iii) state liability

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Eu rights can be enforced against three groups:

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(i) Institutions of the EU (e.g. The Council or Commission)

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(ii) Member States

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(iii) Individuals i.e. Businesses

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Where can actions to enforce European Union law be brought

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It depends on the nature of the claim. In some cases the proceedings can be started in the EU courts

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Can an action be brought directly before the general Court or the Court of Justice

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yes

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Which Articles provide for this:

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Article 263: action to review the legality of acts of the institutions

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Article 265: action in respect of failure of the institutions to act

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Article 268 and 340: actions under the contractual and non-contractual liability of the EU to claim damages against the institutions

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Most actions under these Articles are started in the General Court, with an appeal to the Court of Justice but are of no use for an individual to start

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proceedings against another individual

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there is no right under the Treaty for any person or body to bring a direct action against an

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individual before the Court of Justice

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What Article provides generally for the uniform application of EU law through national courts referring questions to the General Court and Court of Justice for preliminary rulings

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Article 267 TFEU

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Article 267 TFEU has two situations concerning preliminary rulings:

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(i) the interpretation of the Treaties

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(ii) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

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What Article provides specifically for a question concerning 'the interpretation of the Treaty' is raised before any national court or tribunal then that court may refer the question to the Court of Justice if it considers that a ruling from the Court is 'necessary' to allow the national court to give judgment.

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Article 267

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the Court of Justice interprets its jurisdiction as being

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questions which are concerned with the interpretation or validity of Treaty provisions

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The limits of the Court of Justice jurisdiction:

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(i) the court will not interpret provisions of national law, only EU law (Costa v. ENEL)

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(ii) it will in certain circumstances refuse to accept references (declining durisdiction) under circumstances such as:

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(a) when it believes the reference is an abuse of the reference procedure (Foglia v. Novello (No.1) (case104/79)

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(b) where reference raises purely hypothetical questions of EU law (Melicke v. ADV/ORGA AG (case C-83/91)

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(c) where reference is not well thought out or lacks clarity (telmariscbruzzo v. Circostel (case C-320-322/90)

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Who can refer cases to the Court

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any court or tribunal

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factors in determining what is a 'court or tribunal'

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(i) the degree of official involvement in the body

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(ii) whether the law requires disputes to be settled before the body, or whether the parties have voluntarily submitted to its authority

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(iii) the degree of independence which the body enjoys

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(iv) whether the body is established by law and has a permanent existence

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(v) whether it exercises binding durisdiction

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(vi) whether it aplies the rule of law

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What refers to the guidlines for deciding whether it is necessary fot a national court to refer a case to the ECJ for interpretation

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The CILFIT criteria

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The criteria are:

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(i) where the question of EU law raised before the national court is not relevant to the conclusion of the case

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(ii) where the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case

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(iii) where the correct application of EU law is obvious

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7: EU remedies

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The basic principle for EU remedies that the national courts should award

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the nearest equivalent national remedy to protect an individual's EU law rights.

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Can individuals seek remedies against other individuals in EU law

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no there are no EU provison for this situation

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the principles remedies are based on is known as

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equivalence

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The principles are:

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(i) remedies for breaching EU law must be the same as a breach of national law

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(ii) the same procedures should be available for EU remedies as national remedies

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What is the principle that national rules must not render the exercise of EU law rights impossible or excessively difficult (see Brasserie du Pêcheur/Factortame)

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effectiveness

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As a general rule, national courts should apply national rules on time limits for bringing claims involving EU law, unless time limit prevents a claim being made at all, in which case a national court may be obliged to .

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disregard the national time limit

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As a general rule, national courts should observe national rules regarding compensation, unless

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those rules are contrary to equivalence and effectiveness

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Types of remedy:

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(i) injunction

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(ii) damages

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What is an injunction

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An injunction to stop someone from doing something

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Interim injunction refers to

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a temporary injunction

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Permanent injunction refers to

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a permanent injunction

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What are damages

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financial compensation for a breach of EU law