Flashcards in Enforcement of EU Law Deck (34):
Art. 288 TFEU
identifies the 3 main types of EU acts: Regulations, Directives and Decisions.
Art. 258 TFEU
the responsibility of the EU Commission to start infringement proceedings, which are directed at breaches by the Member States of their obligations.
Art. 258 TFEU; Petition of Individuals
Individuals are allowed to make a complaint in order to inform the Commission of an alleged breach by a member state, and upon this recommendation the Commission has the discretion to investigate
Art. 259 TFEU
A Member State which thinks that another Member State has failed to fulfill an obligation can bring a matter before the CJEU
Art. 260 TFEU
Defines the consequences, which flow from a finding by the Court of Justice that a Member State has failed to comply with its obligations under the Treaty; Monetary Consequences
Hedley Lomas Case
-UK prevented the export of live sheep to Spain because they Spanish did not comply with its obligations under the EU directive.
-The UK had breached its obligations under the treaty because it took matter into its own hands
-that the UK should have followed the proper approach as it stemmed from the treaty
Commission Procedures under Art. 258; Preliminary
The Commission will first try and resolve the problem both amicably and informally with the Member State concerned.
Commission Procedures under Art. 25; Stage 1; Letter of Formal Notice
A formal letter to the Member State concerned in which it indicates the grounds on which the Commission believes that the Member State may be in breach of its obligations. The purpose of the letter is to put the Member State on notice that the Commission intends to initiate proceedings
Commission Procedures under Art. 25; Stage 2; Reasoned Opinion
statement of the reasons, which lead the Commission to believe that the Member State has breached its obligations. The Reasoned Opinion will also set out a time period, which will enable the Member State to comply before proceedings are brought.
Commission Procedures under Art. 25; Stage 3; Applications to the Courts
If the Member State has failed to comply with the reasoned opinion, in the time period laid out, then the Commission will finally bring proceedings against the Member State through the CJEU.
Van Gend En Loos
-The EU constitutes an entirely new Legal order of international law where the MS have limited their sovereign rights.
-The states have acknowledged that community law has an authority, which can be invoked by nationals before Courts.
Direct Effect; Definition
Rights are created immediately by EU law itself and do not need to be translated or transposed by being incorporated into Domestic legal orders by norms of national law.
Costa v ENEL
-Then the Law stemming from the treaty could not, because of its special nature, be overridden by any domestic legal provision with being deprived of its character as Community law and without the legal basis of the community itself being called into question.
-The Idea of having a single uniform rule across the entirety of the EU would be destroyed by Member States apply national laws contrary to the EU and this would in effect call into question the very existence of the EU.
EU law to have Direct effect it must satisfy the requirements of Justiciability
The Wording of the law must be
1) clear and
2) unconditional which
3) is not a positive but a negative obligations
means determining whether the obligation is immediate or depends on some other event happening.
If the lack of clarity reveals a gap that needs to be filled by the adoption of other provisions, then it is precluded because it would involve the Courts going beyond their judicial function and substituting themselves as legislators.
Partial Direct Effect; Direct Effect of Some Provisions
a regulation or a directive may contain some articles which are not directly effective but at the same time contain other articles in the same regulation/directive which can be Directly effective.
Reyners v Belgium
right for someone to set up a business in another MS.
R was a Dutch national who had the qualifications to practise law in Belgium but was not allowed because he was not a national. ART.43 TFEU was capable of producing direct effect in this situation
Direct Effect up to a minimum threshold
The instrument defines a minimum threshold but allows the Member State or the EU institution to go beyond that threshold.
Ensure payment to workers of salaries owed to them in situations of insolvency of their employer could be directly effective. It was held that the Directive could in principle be directly effective up to the minimum amount it set even though the Member State had the discretion to go further.
are given by the EU institutions to Member States but leave it up to the Member State on how the Directive is going to be achieved. It is therefore up to the Member State to change the legal situation that would ultimately effect individuals.
Community Authorities have, by directive, imposed on a Member states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts.
Ratti case; Estoppel perspective
The reason why an individual must be allowed to rely on a directive in a national court is because a Member State should not be allowed to benefit from their own wrong doing and rely on their failure to implement the directive to forgo the individual relying on rights created by the Directive.
-The Member State must also during that period refrain from taking any Measures liable seriously to compromise the result of implementing the Directive.
-Member State adopts measures before the deadline of implementation and the consequence of this is that the Member State will not be able to comply with the Directive by the deadline, then there is no need to wait until the deadline is reached because it is already known that the Member State will not be able to comply.
Vertical Direct Effect
Invocation of an EU Law measure by an individual/private party against a Member State
Horizontal Direct Effect
The invocation by an individual/private party in a national court of an EU Law measure against another individual/private party.
Directives cannot have Horizontal Direct Effect: a directive cannot itself impose obligations on an individual
In order for Horizontal Direct effect of Directives to occur: Creation of the Foster Test:
State bodies and decentralised authorities whose powers are largely defined and governed by public law are the state or emanations of the state for the purpose of vertical direct effect.
Foster Factors to regard what is an emanation of State include:
1.The Origin of the body and/or its powers
2.The Kind of activities that the body engages in (do they provide a public service)
3.The degree of control that is exercised by the state
4.Does the body in question have powers that are different from the kind of powers normally possessed by solely private bodies?
The Duty of Harmonious Interpretation
-Developed by the CJEU to address the problem of the lack of direct effect of directives in certain circumstances.
-The Duty of Harmonious Interpretation requires a national court to interpret its national law, in so far as possible, so as to give effect to the aims of a directive.
The Courts duty to interpret comes from:
1)The Binding character of the Directives, which obliges Member States to achieve the specified objectives.
2)The General Duty on the Member State, including agencies of the state, the Courts, to take all appropriate measures to ensure the fulfilment of the obligations arising out of the treaty
This case expanded the duty of Harmonious interpretation to include a duty on the national court to consider the legal system as a whole to determine whether there is a way to interpret and apply the EU law.
- The Court must look at all past and current legislation
The Courts required “so far as possible” for Harmonious Interpretation
-only required “so far as possible” to interpret its national law in the light of the wording and the purpose of the Directive.
-National Courts cannot be forced to adopt an interpretation of national law to achieve a directive that isn’t possible