Article 267, 258 and 263 Flashcards
(95 cards)
1
Q
Unlike the US constitutional order, the EU has not developed an extensive system of federal courts designed to apply Union law; what instead is the Union based on?
A
a system of cooperative federalism; that all national courts are entitled and obliged to apply European law to disputes before them
2
Q
What are the 4 steps of a preliminary reference under Art 267 TFEU?
A
- The national court asks the Court of Justice for assistance in interpreting EU law
2) The Court of Justice will provide a general interpretation of EU law: it will not solve the case
3) The national court is responsible for applying this interpretation to the facts of the case and to deliver the final judgment
4) National courts are obliged to follow the interpretation of EU law given by the Court of Justice: occasional national resistance
3
Q
What does the Art 267 provision provide?
A
a constitutional nexus between the central and decentralised adjudication of European law
4
Q
The court cannot decide whether a national law violates the Treaties however there are blurred lines between interpretation and application. This was considered in the Sunday trading cases in whichh the court found that national rules governing opening hours could be justified on public interest grounds but asked national courts as to whether the effects of such national rules exceed what is necessary to achieve the aim. However what did this proportionality test lead to?
A
fragmentation in that different national courts decided differently
5
Q
The court cannot decide whether a national law violates the Treaties however there are blurred lines between interpretation and application. This was considered in the Sunday trading cases in whichh the court found that national rules governing opening hours could be justified on public interest grounds but asked national courts as to whether the effects of such national rules exceed what is necessary to achieve the aim. In which case did the Court interfere with?
A
Stoke en trent
6
Q
The court cannot decide whether a national law violates the Treaties however there are blurred lines between interpretation and application. This was considered in the Sunday trading cases in whichh the court found that national rules governing opening hours could be justified on public interest grounds but asked national courts as to whether the effects of such national rules exceed what is necessary to achieve the aim.
How did the Court interfere and how did they justify this in Stoke en Trent ?
A
the Court centrally applied the proportionality test and held that the British Sunday trading rules were not disproportionate interferences with the internal market,
the ECJ crossed the line between interpretation and application of the Treaties but
justified its interference in application of the Treaties in Stoke-en-Trent when they considered that it had all the information necessary to rule on the question of proportionality and so had to do so in order to allow national courts to assess their compatibility with European law in a uniform manner as such an assessment cannot be allowed to vary among individual court
7
Q
what does Art 267(2) define?
A
Article 267 (2) TFEU defines the competence of the national courts to ask preliminary questions this allows any court or tribual of a member state to ask a european law question that is necessary to enable it to give judgement
8
Q
The treaties provide no positive definition of what is a national court or tribunal and so the Court has provided a European definition which is extremely wide in which case?
A
Dorsch Consult
9
Q
The treaties provide no positive definition of what is a national court or tribunal and so the Court has provided a European definition which is extremely wide in Dorsch Consuit.
What are the 6 noted in this case?
A
1) whether the body is established by law
2) whether it is permanent
3) where its jurisdiction is compulsory
4) where its procedure is inter partes
5) whether it applies rules of law and
6) whether it is independent
10
Q
in which case is the breadth of this definition in Dorsch Consult is illustrated in?
A
Brockmeulen
11
Q
Courts of last instance ____ make a preliminary reference to the COJ if the answer to a question of EU law if it is necessary to give judgement.
A
shall
12
Q
In very exceptional circumstances the Court will reject a request for a preliminary ruling as in which case?
A
Fogila v Novello
13
Q
In very exceptional circumstances the Court will reject a request for a preliminary ruling as in Fogila v Novello.
Discuss case
A
the Court insisted that questions referred to it must be raised in genuine dispute.
In a sequel to this case, the Court explained that the duty designed under Art 267 is not to deliver advisory opinions on general or hypothetical questions
14
Q
The general rule under Art 267(3) is that courts of last instance have to make a reference if there is a question about the correct interpretation of EU law
However in which care did the COJ develop two exceptions; acte clair and acte éclaire
A
CILFIT
15
Q
Where an appeal is procedurally possible,the obligation under Article 267 (3) TFEU will not apply
What case was this held in?
A
Lykeskog
16
Q
Where an appeal is procedurally possible,the obligation under Article 267 (3) TFEU will not apply. This was held in Lykesog. Discuss case
A
decisions of a national appellate court can be challenged by the parties before a supreme court are therefore not decisions of a court or tribunal against whose decision there is no judicial remedy under national law
17
Q
decisions of a national appellate court can be challenged by the parties before a supreme court are therefore not decisions of a court or tribunal against whose decision there is no judicial remedy under national law
A
in Lykesog. Discuss case
18
Q
What has the Union legal order imported in order to counter the textual argument that Art 267(3) treats national courts as perpetual children as are forbidden from interpreting European law
A
a French legal doctrine under the name of acte clair
19
Q
What does the Doctrine of Acte Clair mean?
as an exception to Art 267(3)
A
that where it is clear how to act, a national court need not ask a preliminary question
20
Q
he Doctrine of Acte Clair means that where it is clear how to act, a national court need not ask a preliminary question
Where did this doctrine begin
A
De Costa
21
Q
What case established that Where the European Court had already given a negative answer to a question relating to the validity of a Union act, another national court need not raise the same question again
A
International Chemcial Coporation
22
Q
In what case was the General guidelines on the constitutional scope of the Acte Clair doctrine offered?
A
CILFIT
23
Q
Under the CILFIT doctrine, how does a national court decide whether a question of EU law is acte clair?
A
- the wording of the provision
- comparison of different language versions
- comparison of the position of other national courts
- the threshold has been put very high: no scope for any reasonable doubt as to the correct application of EU law
24
Q
How can the CILFIT doctrine be abused by national courts?
A
can be abused by national courts of last instance if they do not want to make a preliminary reference or if they do not want to “give up” their interpretation of EU law
25
What were the CILFIT conditions designed to prevent?
national courts from abusing the doctrine in order to evade their obligation to seek a preliminary ruling
26
What are 3 characteristics of the legal nature of preliminary rulings?
- once the the European Council has given a preliminary ruling, this ruling will be binding
- Preliminary rulings cannot bind the parties in the national dispute since the European Court will not decide their case
the courts rulings are addressed to the national court requesting the reference
27
what was the issue which arose in X and Van Dijk under the CILFIT doctrine in practise?
The lower court started a preliminary ruling procedure asking the CoJ a quite specific social security question. To the Supreme Court the answer to this question was plain,
If that interpretation would turn out to be incorrect, the Commission could initiate an infringement procedure or the affected individual could hold a Member State liable in damages for breaches of EU law caused by highest courts, as the CoJ recognized in Köbler.
28
What happened in the case of Ferreira da Silva regarding the CILFIT doctrine in practise?
The Portuguese Supreme Court had consistently held that a question of EU company law was acte clair and that there was no need for a preliminary reference
However, various national courts across the EU had made preliminary references on these questions and different national courts had reached different conclusions
Moreover, the Portuguese Supreme Court got it wrong: they had in fact misinterpreted the relevant EU legislation
29
The Portuguese Supreme Court had consistently held that a question of EU company law was acte clair and that there was no need for a preliminary reference
However, various national courts across the EU had made preliminary references on these questions and different national courts had reached different conclusions
Moreover, the Portuguese Supreme Court got it wrong: they had in fact misinterpreted the relevant EU legislation
f Ferreira da Silva regarding the CILFIT doctrine
30
What is Acte eclaire?
the COJ has already ruled in a previous judgement that this particular piece of EU law is valid
31
What is Acte clair?
the national court has no reasonable doubt that EU law is valid
32
If a national court fulfils the conditions of Dorsch Consult
(1) established by law 2) permanent 3) jurisdiction is compulsory and 4) inter partes 5) applies to rules of law and 6) is independent) then the preliminary reference will be admissible. What would happen if the conditions were not fulfilled?
the case will be declared inadmissible and the COJ would not rule on the substance of the case
33
Which case determined that , a case will be inadmissible if the underlying dispute is not genuine?
Foglio v Novello
34
What case remains one of the few exceptions where the court has actually refused to rule on a preliminary reference?
Foglio v Novello
35
Foglio v Novelloemains one of the few exceptions where the court has actually refused to rule on a preliminary reference, however what happens much more frequently?
that the Court will re-write the question(s) that have been asked by the national court. National courts are not always pleased with this – they may find that they have asked one question, but get an answer to an entirely different questionHowever, this re-writing exercise by the Court puts pressure on the national court to define the questions as precisely and concisely as possible
36
Parties do not have a right to claim that a preliminary reference should be made. However what is a negativ of this system?
there is no obligation on the national judge to refer
37
TheCILFIT doctrine seeks to achieve a balance in the relationship between the Court of Justice and national supreme courts. The national courts are given some autonomy to decide whether a reference is necessary. At the same time, this autonomy can of course be abused. How?
Some national supreme courts consistently refuse to make preliminary references in a particular area of law. For example, the European Commission has written to a number of Member States to say that it is considering starting an infringement procedure against them because their supreme courts are refusing to make preliminary references in the field of environmental protection.
38
TheCILFIT doctrine seeks to achieve a balance in the relationship between the Court of Justice and national supreme courts. The national courts are given some autonomy to decide whether a reference is necessary. At the same time, this autonomy can of course be abused.. Some national supreme courts consistently refuse to make preliminary references in a particular area of law.
How has the European Commission responded?
the European Commission has written to a number of Member States to say that it is considering starting an infringement procedure against them because their supreme courts are refusing to make preliminary references in the field of environmental protection.
39
briefly what is X and Van Dijk about?
- does the fact that a lower national court has made a preliminary reference on a particular question of EU law mean that the national court of last instance can no longer say that this question is acte clair?
no it does not
40
briefly what is Ferreira da Silva about?
- ): the Portuguese Supreme Court had consistently held that a particular question of company law was acte clair despite the fact that different interpretations had been given by various national courts across the EU. The Portuguese Supreme Court in fact got it wrong and misinterpreted EU law. The Court of Justice held that this had been a breach of the CILFIT doctrine.
41
briefly what is Commission v France?
- this was the first infringement procedure where the Court of Justice held that a Member State had breached EU law because its court of last instance (in this case, the French Conseil d’État) had not made a preliminary reference in breach of the CILFIT doctrine
42
In TWD Textilwerke Deffendorfhe COH hold that a preliminary reference on the validity of EU law is not admissible if a private party had obviously had standing to bring a direct challenge under Article 263 TFEU. What does this mean for private parties?
that they cannot avoid the two-month time-limit of an infringement procedure by trying to get a preliminary reference on validity through the national court.
43
What is Art 267
preliminary reference procedure
44
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(2)
(a) the interpretation of the Treaties;
| (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
45
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody
when should the CJ EU act?
with the minimum of delay
46
Under Art 267 there are two questions that can be asked by national courts, what?
a. (1) questions concerning the interpretation of the Treaties and acts of the institutions and
b. (2) questions concerning the validity of acts of the institutions.
47
What are the 5 factors from Dorsch in which only certain national courts can make a preliminary reference so that the courts were not overburdened?
1) permanent
2) jurisdiction is compulsory
whether its procedures is
3) inter partes
4) whether it applies rules of alaw
5) independent
48
What does the CILFIT doctrine seeks to achieve a balance in?
a balance between COJ and national supreme courts
49
What does ART 258 state TFEU?
the infringement procedure 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.
50
which article? 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.
Art 258 TFEU, infringement procedure
51
What does aRt 259 do?
A member State which considers another MS has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the EU
52
What does Art 258 give the Commission the power to do?
to bring Member States before the Court of Justice if it believes that a Member State is acting in breach of EU law.
the Commission has been given a central role in the enforcement of EU law. It mainly monitors compliance by Member States.
53
What is a down side to the power of the Commission under Art 258?
it relies largely on individual complaints submitted to it
54
What are the 3 stages of the infringement procedure- Art 258?
1) informal stage; commission will contact MS and explain why
2) administrative stage; formal letter of notification with details, period of time to respond
If Commission is unhappy with response, it will deliver a reasoned opinion clearly setting out the breach
3) judicial stage, if unhappy the Commission can refer to CoJ
55
Which case demonstrates that it is not possible for an individual to claim that the Commission should bring an infringement procedure against a Member State?
Star Fruit
56
Can the Commission can still bring an infringement procedure even if the Member State has already remedied the breach and the breach is no longer continuing.
Yes but , if the Member State has remedied the breach before the deadline set in the reasoned opinion had expired, the Commission is no longer allowed to bring the case before the Court of Justice.
57
What is the most common types of breaches committed by Member States ?
are the non-implementation or erroneous implementation of EU directives, and a breach of one of the Treaty provisions (for example, the free movement provisions).
58
What is Art 260 TFEU?
was introduced by the Treaty of Maastricht. There are two different types of sanctions provided for in Article 260 TFEU
1) lump sum or penalty payment for non-compliance
2) if MS does not remedy after judgement the Court is then free to impose any lump sum appropriate
59
What is Article 263 TFEU?
the annulment procedure
60
what article is the annulment procedure under?
Art 263 TFEU
61
What does Art 263 state?
The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties
and the legality of its bodies
62
Who are the plaintiffs for a Art 263 TFEU annulment procedure?
Any natural or legal person may, under the conditions laid down in the first and second paragraph, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures
63
What is the threshold to be able to have standing for individuals in 263 annulment procedure? high or low?
high
64
Why is the threshold o be able to have standing for individuals in 263 annulment procedure so high for private parties?
because an alternative route has been developed through the national courts through the preliminary reference procedure in Article 267 TFEU.
65
What are the 4 conditions claimants who want to bring a direct action for annulment have to fulfil?
1) has to be a reviewable act
2) must be a substantive ground of annulment
3) claimant must have legal standing
4) the claim must be brought within the time limit
66
```
Article 263(1) annulment procedure provides exactly which legal acts can be reviewed
what?
```
- legislative acts,
- acts of EU institutions intended to produce legal effects vis a vis third parties
- validity of acts from other EU bodies intended to produce legal effects vis a vis third parties
(e.g not recommendations or opinions as they are purely advisory)
67
What are the grounds for annulment Art 263?
1) lack of competence (operationalises principle of conferral)
2) infringement of an essential procedural requirement (e.g one EU institution must be consulted)
3) an infringement of the Treaties or any rule related to their application (wide)
4) misuse of powers
68
Art 263-annulment procedure
Grounds of lack of competence:
MS are guardians of the principle of conferral and so want to preserve the powers which they have not conferred to the EU.
What is the most famous case brought on this ground?
Tabbacoo Advertising
69
Art 263-annulment procedure
Grounds of lack of competence:
MS are guardians of the principle of conferral and so want to preserve the powers which they have not conferred to the EU.
he most famous case brought on this ground is Tobacco advertising
Explain case
i. A directive effectively banning all advertising on tabbacco products was enacted on the basis of art 114 TFEU
ii. Germany objected to this directive, claiming the measure went beyond the scope of Art 114, was ultra vires and should be annulled
iii. Yes directive was annulled.
iv. Art 114 TFEU does not provide a general power to regulate the internal market, measures must genuinely have their objective set on improving market conditions and to remove existing or future obstacles to inter-state trade
v. As long as the above two requirements are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires
vi. However this ban was so exhaustive that it could not be justified by the need to eliminate obstacles
70
i. A directive effectively banning all advertising on tabbacco products was enacted on the basis of art 114 TFEU
ii. Germany objected to this directive, claiming the measure went beyond the scope of Art 114, was ultra vires and should be annulled
iii. Yes directive was annulled.
iv. Art 114 TFEU does not provide a general power to regulate the internal market, measures must genuinely have their objective set on improving market conditions and to remove existing or future obstacles to inter-state trade
v. As long as the above two requirements are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires
vi. However this ban was so exhaustive that it could not be justified by the need to eliminate obstacles
what case
tobacco advertising
71
What is the broadest ground for review under Art 263 annulment procedure?
the infringement of the treaties or any rule related to their application
72
the broadest ground for review under Art 263 annulment procedure isthe infringement of the treaties or any rule related to their application . Why?
as this requires compliance with general principles of law and fundamental rights
73
What are the 3 types of categories of claimants under Art 263 annulment procedure?
1) privileged applicants
2) semi-privileged applicants and
3) non-privileged applicants
74
Explain privileged applicantsunder Art 263 annulment procedure?
The Member States, the European Parliament, Commission and Council are privileged applicants.
Do not need to show they have standing
75
explain semi privileged applicants under Art 263 annulment procedure?
d. Semi-privileged applicants have to establish that they are protecting their prerogatives by bringing an action for annulment. This is not a very difficult test to satisfy all they have to do is to show that the EU act has affected their prerogatives under EU law.
76
explain non-privlegged applicants under Art 263 annulment procedure?
They have to show that they fall within one of three categories:
a. (1) the EU act has to be addressed to them;
b. (2) the EU act has to be of direct concern to them;
c. (3) they are directly concerned by an EU act which is a regulatory act that does not entail implementing measures.
77
what are the three categories of non--privlegged applicants under Art 263 annulment procedure?
(1) the EU act has to be addressed to them;
b. (2) the EU act has to be of direct concern to them;
c. (3) they are directly concerned by an EU act which is a regulatory act that does not entail implementing measures.
78
Under non-privellged applicants, under art 263 annulment procedure
the Treaty has never contained a definition of direct and individual concern. These definitions have been developed by the Court of Justice. What stance has the Court developed?
a very narrow definition
79
Under non-privellged applicants, under art 263 annulment procedure
the Treaty has never contained a definition of direct and individual concern. These definitions have been developed by the Court of Justice who have adopted a very narrow definition. Why has this been criticised and what do the Courts reply?
against the principle of effective judicial protection, as it makes it very difficult for private parties to challenge the validity of EU law under Article 263 TFEU.
the Court has always taken the position that Article 263 TFEU operates in combination with Article 267 TFEU, which provides an indirect way to challenge the validity of EU law through the preliminary reference procedure.
80
What is the most common example of a non-privellged applicant under Art 263?
decisions taken by the Commission in the field of competition law, as these decisions will be addressed to certain companies who are alleged to have acted in breach of the competition provisions
81
what does direct concern?
under non-privellged applicant under Art 263
the EU act must have had a direct impact on the legal position of the applicant. The EU act itself immediately and automatically leads to a change in the legal position of the applicant. Therefore if an EU act requires a further implementing measure it is not of direct concern to the applicant
Directive can for this reason never be of direct concern to individuals
82
in which case was the definition of individual concern laid down?
art 263 TFEU
Plaumann
83
Plaumann laid down the definition of individual concern, what did it say?
if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons
this is extremely difficult to satisfy as they must established that the EU knew precisely which parties would be affected by a certain EU act
84
Plaumann laid down the definition of individual concern for non-privelleged applicants, under Art 263 TFEU.
Piraiki case said that they would have to be part of a closed group, but even this was interpreted strictly.
What was the case about?
At the time of a restriction being imposed, some exporters had contracts pending, both those with contracts ending and those not pending applied to annul.
The pending exporters were individually concerned because they were members of a closed class and because the Commission had a duty to take into account their situation.
85
At the time of a restriction being imposed, some exporters had contracts pending, both those with contracts ending and those not pending applied to annul.
```
The pending exporters were individually concerned because they were members of a closed class and because the Commission had a duty to take into account their situation.
what case
```
Plaumann laid down the definition of individual concern for non-privelleged applicants, under Art 263 TFEU.
Piraiki case said that they would have to be part of a closed ground, but even this was interpreted strictly.
86
what did case of plaumann say and in what area of law?
The applicant had been affected by the disputed decision as an importer, however as this activity could be carried on by anyone at the time, the applicant did not belong to a closed category of people
individual concern-non-privelleged applicants art 263 TFEU
87
What was the most serious criticism of Art 263 TFEU for non-privellged applicants?
from Advocate General Jacobs in Union de Pequenos Agricultores
88
the most serious criticism of Art 263 TFEU for non-privellged applicants came from Advocate General Jacobs in Union de Pequenos Agricultores , what id he say?
there were various reasons why the preliminary reference procedure would not necessarily provide effective judicial protection to applicants who wanted to challenge the validity of EU law
1) it would often mean that individuals would first have to breach the law to be able to get to the national court
2) , there is no individual right to have get a preliminary reference procedure to Luxembourg,
3) takes very long, at least a year and a half
89
What does Advocate General Jacobs in Union de Pequenos Agricultores offer as an alternative for Art 263 standing?
he proposed to change the test to assess whether the EU act had a substantial adverse impact on the interests of the applicants. In such cases, non-privileged applicants should have standing under Article 263 TFEU.
90
How did the Court respond to Advocate General Jacobs in Union de Pequenos Agricultores?
the Court in a way called for the admissibility criteria to be relaxed by the Member States through a Treaty amendment. , as they did not have the power to change this test.
They finally did so in the Treaty of Lisbon. It introduced a new category of “regulatory acts” in Article 263(4). For these acts, applicants do not have to show individual concern. They only have to show direct concern.
91
the Court in a way called for the admissibility criteria of art 263 to be relaxed by the Member States through a Treaty amendment. , as they did not have the power to change this test.
They finally did so in the Treaty of Lisbon. It introduced a new category of “regulatory acts” in Article 263(4). For these acts, applicants do not have to show individual concern. They only have to show direct concern.
However what remained an issue and why?
Article 263(4) still requires applicants to show that the regulatory act did not entail implementing measures
The concept of implementing measures is interpreted broadly – see Telefonica
the Court’s broad definition can be explained by its reliance on Article 267 TFEU:
92
what is the time limit under the annulment procedure?
2 months from the date the applicant becomes aware of the adoption of the EU act, if not the act has not been published
93
When can a party not use Art 267 TFEU?
if a party could certainly have challenged an EU act under the annulment procedure, it cannot wait until the time-limit has expired and then try to challenge the validity through the preliminary reference procedure
TWD Textilwerke Deggendorf
94
if a party could certainly have challenged an EU act under the annulment procedure, it cannot wait until the time-limit has expired and then try to challenge the validity through the preliminary reference procedure
TWD Textilwerke Deggendor
what happened in this case?
i. Indirect challenge was not possible. The applicant had previously been informed that it would have standing for an action to annul the EU measure and chose instead to indirectly challenge the measure before national courts.
95
i. Indirect challenge was not possible. The applicant had previously been informed that it would have standing for an action to annul the EU measure and chose instead to indirectly challenge the measure before national courts.
what case
TWD Textilwerke Deggendor
