EU Law Flashcards
(148 cards)
1
Q
CJEU
A
Court of Justice of the European Union Refers collectively to all EU courts: - Court of Justice (ECJ): highest court & supreme authority on EU law - General Court (CFI) - Civil Service Tribunal Major source of EU law is jurisprudence (case law) Courts may not make law, only apply it. No restriction as to prior decisions
2
Q
ECJ
A
Court of Justice (ECJ): highest court & supreme authority on EU law - 27 judges (1 from each member state) - Article 19(2) TEU - must be qualified lawyers/judges - serve for 6 years and can be reappointed by joint agreement of governments Ruling by ECJ is binding on national courts (article 4(3) TFEU and 3(1) and 3(2) of European Communities Act 1972)
3
Q
Advocates-General
A
Court officials who present reasoned opinions before court (252 TFEU). Opinions are not binding but useful to understand arguments
4
Q
General Court
A
Court of first instance Created in 1989 to assist with backlog for ECJ (SEA 1986) Key role in anti-competition hears appeals from commission decisions Appeal on point of law only from general court to ECJ -# judges is 1 from each member state (27) - 19(2) TFEU Treaty of Nice 2000 - in due course simple 267 TFEU cases - new judicial panels (lower than GC) will take over some GC work
5
Q
ECJ jurisdiction
A
- direct action against EU institution for breach of EU law (can order damages - 268/340 TFEU) - can review legality of acts of other institutions - 263 TFEU (Roquette Freres v Council 1980) - can review failure to act - 265 TFEU - direct action against member states for breach of EU law: - article 258 - failure to fulfill treaty obligations - article 259 - one state vs another for failure to fufill treaty obligations (goes first before commission) - article 260 - may, on request of commission, impose lump sum penalty/payment on member state that disobeys a judgment Individuals can sue institution but not other individuals or member states
6
Q
Permissive jurisdiction
A
If raised before national court/tribunal which could have an appeal, court/tribunal MAY refer to ECJ if necessary for judgment References useful when new question of interpretation of general interest for uniform application of EU law or existing case is not applicable for new set of facts
7
Q
Mandatory jurisdiction
A
If raised before national court/tribunal which could NOT have an appeal, court/tribunal MUST refer to ECJ if necessary for judgment (Costa v Enel)
8
Q
Costa v Enel (6/64) 1964
A
If raised before national court/tribunal which could not have an appeal, court/tribunal must refer to ECJ if necessary for judgment - to ensure uniformity of EU law across member states ECJ cannot judge national law or it’s compliance with EU law Regarding conflict with later domestic law, EU law supreme, as a state cannot go unilaterally against agreement, as per the treaty, transfer of power was given to EU institutions (288 TFEU) and states are committed to observe EU law (4(3) TEU).
9
Q
Dorsch Consult Ingenieurgesellschaft (C-54/96) 1997
A
Defined tribunal/court. Relevant factors include: - body established by law - permanent - jurisdiction compulsory - procedure inter partes (all parties represented) - applies rules of law - independent
10
Q
Broekmeulen v Huisarts Registrate Commissie (246/80) 1981
A
Example of determination of court/tribunal
11
Q
Nordsee v Reederei Mond (102/81) 1982
A
An arbitrator is not a court or tribunal: - voluntary jurisdiction - no official involvement
12
Q
CILFIT Srl v Ministro della Sanita (283/81) 1982
A
CILFIT criteria ECJ question not necessary if: - not relevant to conclusion of case - previous ECJ decisions already dealt with question - correct application obvious (Acte Clair - Da Costa wn Schaake)
13
Q
Rheinmühlen-Düsseldorf v Einfuhr und Vorratsstelle für Getreide & Futtermittel (166/73) 1974
A
A higher court can’t prevent reference to ECJ
14
Q
Foto-Frost v Hauptzollamt Lübeck-Ost (314/85) 1985
A
National court can’t declare piece of EU law invalid. If court (lower) doubtful about validity it MUST refer to ECJ
15
Q
Irish Creamery Milk Suppliers Association v Ireland (36 & 71/80) 1981
A
It is up to courts to decide when to refer to the ECJ
16
Q
R v International Stock Exchange, ex parts Else Ltd 1993
A
ECJ has more expertise, so refer unless completely confident
17
Q
Trinity Mirror Plc v Customs & Excise Commissioners 2001
A
Greater self-restraint in making a reference so the ECJ is not overloaded. Should be of general importance, not only applicable in this case
18
Q
Article 267 TFEU
A
Any court or tribunal may make a reference to the ECJ ECJ can make preliminary rulings concerning interpretation of the treaty (TFEU) and the validity/interpretation of acts of the institutions, bodies, offices, agencies of the union
19
Q
Foglia v Novella (No 1) (104/79) 1980
A
An Italian wine producer and a French wine distributor wanted to challenge a French tax law in the ECJ this made up a dispute. ECJ will not review unless there is a genuine dispute.
20
Q
Telemarsicabruzzo v Circotel (C-320-322/90) 1993
A
Italian court referred questions with no factual background so ECJ refused to accept the reference
21
Q
Köbler v Austria (C-224/01) 2003
A
It is possible for a state to be sued for its final instance court’s failure to make a reference. Must be sufficiently serious.
22
Q
Main sources of EU law
A
Primary legislation (treaties) Secondary legislation (regulation, directives) Jurisprudence of the ECJ International agreements
23
Q
Directly applicable legislation
A
Becomes part of legal system in member states without the need for further enactment nationally - same for all states
24
Q
Directly effective legislation/provisions
A
Gives rise to rights/obligations individuals may enforce before national courts Supersedes national law
25
Secondary legislation
Article 288 TFEU sets out types EP, the Council, the Commission involved in making secondary legislation Types (acts) include: - regulation - directly applicable - Directives - bind states as to the result to be achieved usually with a time limit - decisions - binding upon persons addressed - recommendations - not binding (guidance) - opinions - not binding (guidance)
26
Civil law
Inquisitorial and not adversarial - more active to get the truth Decision collegiate/collective - no dissenting opinions Source of law ultimate (eg TFEU)
27
EU interpretation methods
Literal Teleological/purposive (defined in R v Henn & Darby 1981; used in Defrenne v SABENA (No 2) (43/75) 1976)
28
Van Gend en Loos v Nederlandese Administratie de Belastingen (26/62) 1963
Individual vs public body (treaty articles) -\> direct effect criteria - sufficiently clear/precise - unconditional - no room to exercise discretion in implementation on part of states or institutions of EU -vertical direct effect - individual can enforce right against state or state body Regarding conflict with earlier domestic law, EU law supreme over Dutch law pre-dating Treaty of Rome 1972. Additionally, states have limited their sovereign rights within limited fields.
29
Defrenne v SABENA (No 2) (43/75) 1976
Horizontal direct effect - treaty obligation/ right enforced by individual against individual - can rely on treaty to enforce rights vs another individual but must satisfy van Gend criteria
30
Leonesio v Italian Ministry of Agriculture (93/71) 1972
For regulation & individual vs state, the regulation can be invoked immediately if van Gend criteria satisfied
31
Antonio Munoz Cia SA v Frumar Ltd (C-253/00) 2002
For regulation & individual vs individual if van Gend criteria satisfied, regulation can be invoked
32
Directive
Member states obliged to implement to achieve result prescribed, though by their own means (eg adding/altering domestic law) - in UK through acts of Parliement or delegated legislation (SI) - individual relies on national law unless inadequate or incorrect, then relies on directive itself Only vertical direct effect
33
Van Duyn v Home Office (41/74) 1974
(Action against public body) Woman refused UK entry as she was member of church of scientology. She invoked a directive. ECJ said for directive to have direct effect it must meet van Gend criteria. If not clear refer to ECJ. In this case directly effective.
34
Pubblico Ministero v Ratti (148/78) 1979
R invoked 2 directives as a defence against criminal prosecution in Italy. He was able to rely on one where the time limit for implementation had expired but not on the other where the time limit had not yet expired.
35
Marshall v Southampton & Southwest Hampshire Area Health Authority (152/84) 1986
Woman forced to retire at 62 though men could at 65. Brought claim based on directive. ECJ said claim could be relied upon bc public body. Obiter: no horizontal direct effect (confirmed in Paola Faccini Dori v Recreb Srl (C-91/92) 1994
36
Foster v British Gas (C-188/89) 1990
Challenge of females forced to retire earlier than men. ECJ ruled directive could be relied upon if body (Foster criteria for public body/emanation of state): (a) be under a statutory duty to provide a public service (b) be under state control (c) have special powers British Gas was nationalized at the time and met criteria
37
Doughty v Rolls Royce Plc 1992
RR was owned by government but was not emanation of state as it did not have statutory duty to provide public service and had no special powers
38
Griffin v Southwest Water Services Ltd 1995
Private water utility was determined to be emanation of state because it - provided public service pursuant to statutory duty - had special powers (eg impose pipe bans) High Court held it did not need to be 'state controlled' to be 'under state control' and it was sufficient to be subject to state regulation
39
NUT v St Mary's Church of England (aided) Junior School 1997
Governors employ teachers, funded by government, can't charge fees and must follow national curriculum Found to be an emanation of the state. CoA found that not all three Foster criteria must be satisfied to be an emanation: - Foster criteria are guidelines only - emanation though no special powers Cases such as this should be treated with caution as the ECJ has not ruled on the application of the criteria
40
Von Colson & Kamann v Land Nordrhein-Westfalen (14/83) 1984
2 female social workers denied jobs in prison because of sex ECJ ruled no direct effect of directive because directive was unclear on remedy so needed to be enacted nationally HOWEVER national courts were required to interpret any laws in light of the wording/purpose of the directive in order to achieve the result (indirect effect)
41
Indirect effect
EU law is applied indirectly by means of interpretation of domestic law in accordance with EU law (Von Colson & Kamann v Land Nordrhein-Westfalen)
42
Pickstone v Freeman's Plc 1988
For implementing legislation, HoL interpreted act to include equal value claims to conform with EU requirements
43
Lister v Forth Dry Dock & Engineering Ltd 1989
Related to the protection of workers when a business is sold. Workers were dismissed 1 hour before transfer. HoL interpreted 'immediately before' to include would be employed if not unfairly dismissed to give effect to EU legislation (implementing)
44
Duke v GEC Reliance 1988
Females forced to retire earlier than men and it was a private company so no direct effect. HoL did not extend the Sex Discrimination Act 1975 as it did not intend to implement the directive (non-implementing legislation)
45
Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) 1990
C wanted to declare the constitution of D void because it was created to defraud creditors. No steps for the relevant directive implementation had been taken. ECJ ruled that national courts should apply a purposive approach to 'non-implementing' legislation so far as possible. National courts are wary of this ruling
46
Webb v EMO Air Cargo (UK) Ltd 1995
Webb dismissed when employer found out she was pregnant. C claimed against Sex Discrimination Act 1975. ECJ held it was discriminatory and HoL held it was possible to read Act in line with ECJ ruling (non-implementing)
47
Limitations with non-implementing legislation
(a) where national legislation clearly conflicts with relevant directive (Wagner Miret) (b) where indirect effect would impose criminal liability (Arcaro)
48
Wagner Miret v Fondo de Garantia Salarial (334/92) 1993
Directive instructed guarantee institute to pay employees' arrears in case of insolvency but Spanish law excluded higher management staff. Directive gave discretion over what was a guarantee institute though it did not permit exclusion. ECJ held conflict between Spanish law and directive thus indirect effect could not apply
49
Luciano Arcaro (C-168/95) 1996
L was charged with criminal offense under Italian legislation incorrectly enacted to implement a directive ECJ held that national court should not apply indirect effect to criminal statute
50
Francovich v Italian State (C-6/90 & C-9/90) 1991
A member state can be required to pay compensation to individual for damages suffered as a result of a failure to implement a directive, if certain conditions are satisfied: (a) grant of rights to the individual is a result of relevant directive (b) possible to identify content of rights from provisions of directive (c) existence of causal link between breach of obligation and loss/damage suffered ((d) breach must be sufficiently serious - from Factortame 4) State liability
51
Brasserie du Pêcheur v Germany, R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame No 4) (C-46 & 48/93) 1996
Brasserie du Pêcheur v Germany - German government prevented import of French beer R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame No 4) - UK Parliament enacted Act preventing Spanish fishermen from fishing in UK waters. ECJ heard the two cases together. It was argued that Francovich only applied to a dispute in national courts thus no additional remedy necessary against the state. ECJ rejected this argument and said state liability extended to any breach of EU law but C must prove breach was SUFFICIENTLY SERIOUS
52
R v HM Treasury, ex parte British Telecoms (C-392/93) 1996
BT sued British government for loss due to incorrect implementation of a directive. Was deemed that UK was not liable, as it was not sufficiently serious (unclear and other states made same mistake). Sufficiently serious may be determined by looking at original directive. Was it vague? Also, have other states made the same mistakes? Has EU given guidance?
53
Dillenkoffer & Others v Germany (C-178, 179, 189 & 190/94)
Concerned package holidays buyer protection. State liability case for total failure to implement a directive. FAILURE to implement a directive is in itself a sufficiently serious breach (where non-implementing is issue, Francovich still can be used, since it is practically unnecessary to consider seriousness) A sufficiently serious breach also occurs if: - a member state manifestly & gravely disregarded the limits on its rule-making powers when exercising those powers - if member state had no legislative choice to make and little/no discretion when exercising rule-making powers, mere infringement of EU law may amount to sufficiently serious breach
54
R v MAFF, ex parte Hedley Lomas (C-5/94) 1996
UK Ministry of Agriculture was successfully sued for loss caused by failure to grant export licenses, as ECJ ruled against them
55
R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame no 5) 1999
HoL held breach was sufficiently serious as the government had ignored Commission's advice that the 1988 Act breached EU law. Spanish fishermen got £55 million in damages.
56
State liability
(a) A person who can prove that the necessary criteria are satisfied (in b) may able to claim damages for the following breaches of EU law by a state: i. Failure to implement a directive (Francovich) ii. Incorrect implementation of a directive (BT) iii. Legislative acts (Brasserie du Pêcheur/Factortame No 4) iv. Administrative acts (R v MAFF, ex p Hedley Lomas) v. Judicial acts (Köbler v Austria) (b) a member state will be liable in each of these situations if the following criteria are satisfied: i. Rule of law which was breached must be intended to confer rights upon individual ii. Sufficiently serious (1) where member state has exercised its rule-making powers (incorrect implementation/legislative acts), a breach is sufficiently serious where the state has MANIFESTLY & GRAVELY disregarded the limit on its powers (examine level of discretion state has) (2) if no legislative choices and no discretion (non-implemention) infringement of EU law itself may be enough to establish a sufficiently serious breach (Dillenkofer) (3) if court of mandatory jurisdiction incorrectly failed to make an Article 267 TFEU reference to the ECJ, only sufficiently serious if made in manifest beach of case law of the ECJ (Köbler) (4) financial loss suffered can also be a relevant factor in assessing seriousness iii. Must be a direct causal link between breach and damage.
57
Dualist state
International law not binding as domestic law until incorporated by domestic legislation (eg UK) (Versus monist state (eg France) where international law incorporated automatically into domestic law as soon as it is ratified)
58
Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide & Futtermittel (11/70) 1970
ECJ declared EU law prevails over conflicting provisions of a bill of rights in a state constitution.
59
Werner Mangold v Rüdiger Helm (C-144/04) 2005 & Seda Kücükdeveci v Swedex GmbH & Co KG (C-555/07)
Regarding national law conflicting with EU general principle, national courts must set aside any provision of national law breaching the general principle of equality, or other important principles (eg proportionality)
60
Amministrazione delle Finanze v Simmenthal (106/77) 1978
Regarding conflict faced by national court. Conflict between treaty provision & Italian statute. ECJ concluded it is NOT necessary for national court to request or await the prior setting aside by legislation or other means -\> for EU implication only
61
Factortame No 2
Factortame applied for injunction to suspend 1988 Act but HoL held it had no power to grant an injunction but asked the ECJ, who replied that the national court would have to recognize supremacy of EU law and English law couldn't stand in the way. Uniformity of application of EU law -\> states must give EU law priority in conflicts.
62
UK court approach to EU supremacy
European Communities Act 1972, s2(4): Any enactment shall be construed. & have effect subject to ss1, ie obligation of an EU nature Court approach: (a) traditional view - Parliamentary supremacy made supremacy of EU law impossible (b) now courts more accepting
63
Remedies for breach of EU law
No EU remedies for individual vs individual. National court must use nearest equivalent national remedy. They must keep in mind: (a) remedy must not discriminate between breach of national law and EU law (equivalence) (b) national law remedies must be effective to protect EU rights (effectiveness)
64
Marshall v Southampton Area Health Authority (No 2) (271/91) 1993
Compensation reduced due to English law. ECJ ruled English law remedy ineffective and needed to remove limits, also interest should be awarded.
65
General principles of EU law
Principles that are common to individual constitutions and legal systems of all member states. Used to ensure uniformity Include: - respect for fundamental rights (no treaty or ECJ case lists these) - proportionality - equality - legal certainty - respect for procedural rights Incorporated through treaties; eg: - TEU article 6 - respect for fundamental rights - TEU article 7 - sanctions for serious/persistent breaches - Nice summit 2000 -\> charter of fundamental rights (same legal value as treaty - integrity of person - freedom of arts/sciences - entitlement to fair/just working conditions - right to strike - right to benefit from medical treatment (Note: UK has partial opt-out so that the charter will not extend the ability of e ECJ or UK courts to find that UK legislation is inconsistent with the principles of the charter, neither will it create any new justiciable rights in the UK.
66
Stauder v City of Ulm (29/69) 1969
Argued that a Commission decision infringed general principles of union law. ECJ disagreed. But was a general recognition that fundamental rights form part of the general principles of EU law and the ECJ can take steps to defend them.
67
J Nold KG v Commission (4/73) 1974
ECJ stated there are two sources of inspiration for fundamental rights: 1. Common constitutional traditions of member states 2. International treaties for protecting human rights in which member states have participated
68
European Convention on Human Rights in EU law
Separate from EU law but any provision of the convention can be invoked before the ECJ, so long as in context of EU law
69
R v Kirk (63/83) 1984
Danish fishing vessel prosecuted in the UK for fishing illegally. Derogation allowing limits to fishing had expired at the time of the fishing. It was renewed shortly afterwards and purported to be retrospective ECJ invoked Article 7 of ECHR that penal measures must not be retrospective and the fisherman was cleared
70
Proportionality
1. Measure must be appropriate/suitable to achieve desired objective 2. Also necessary to achieve objective 3. Must not go further than required to achieve objective (R v Ministry of Agriculture, Fisheries & Food and Secretary of State for Health, ex p Fedesa & others (C-331/88) 1990)
71
Bela-Mühle Josef Bergmann KG v Grows-Farm GmbH & Co KG (Skimmed-Milk Powder case) (114/76) 1977
Surplus of skimmed milk. Council adopted Regulation requiring producers of animal feed to buy skimmed milk rather than soya meal though milk is 3x as much. ECJ held regulation invalid because it breached proportionality. Other less burdensome measures could be implemented. It also discriminated against other types of farmer (equality).
72
Equality
Persons in similar situations are not to be treated differently unless objectively justified.
73
Legal certainty
Legitimate expectation - persons entitled to assume EU law won't suddenly change to their disadvantage. (Arcaro) Non-retroactivity of legislation (eg R v Kirk)
74
Procedural rights
Normally secondary legislation provides procedural safeguards. However, where there are no procedural safeguards, the ECJ will rely on general principles, including: - the right to a fair hearing - the duty of a decision-making body to give reasons for its decisions - the right to due process
75
# Reverse
Court of Justice of the European Union Refers collectively to all EU courts: - Court of Justice (ECJ): highest court & supreme authority on EU law - General Court (CFI) - Civil Service Tribunal Major source of EU law is jurisprudence (case law) Courts may not make law, only apply it. No restriction as to prior decisions
CJEU
76
# Reverse
Court of Justice (ECJ): highest court & supreme authority on EU law - 27 judges (1 from each member state) - Article 19(2) TEU - must be qualified lawyers/judges - serve for 6 years and can be reappointed by joint agreement of governments Ruling by ECJ is binding on national courts (article 4(3) TFEU and 3(1) and 3(2) of European Communities Act 1972)
ECJ
77
# Reverse
Court officials who present reasoned opinions before court (252 TFEU). Opinions are not binding but useful to understand arguments
Advocates-General
78
# Reverse
Court of first instance Created in 1989 to assist with backlog for ECJ (SEA 1986) Key role in anti-competition hears appeals from commission decisions Appeal on point of law only from general court to ECJ -# judges is 1 from each member state (27) - 19(2) TFEU Treaty of Nice 2000 - in due course simple 267 TFEU cases - new judicial panels (lower than GC) will take over some GC work
General Court
79
# Reverse
- direct action against EU institution for breach of EU law (can order damages - 268/340 TFEU) - can review legality of acts of other institutions - 263 TFEU (Roquette Freres v Council 1980) - can review failure to act - 265 TFEU - direct action against member states for breach of EU law: - article 258 - failure to fulfill treaty obligations - article 259 - one state vs another for failure to fufill treaty obligations (goes first before commission) - article 260 - may, on request of commission, impose lump sum penalty/payment on member state that disobeys a judgment Individuals can sue institution but not other individuals or member states
ECJ jurisdiction
80
# Reverse
If raised before national court/tribunal which could have an appeal, court/tribunal MAY refer to ECJ if necessary for judgment References useful when new question of interpretation of general interest for uniform application of EU law or existing case is not applicable for new set of facts
Permissive jurisdiction
81
# Reverse
If raised before national court/tribunal which could NOT have an appeal, court/tribunal MUST refer to ECJ if necessary for judgment (Costa v Enel)
Mandatory jurisdiction
82
# Reverse
If raised before national court/tribunal which could not have an appeal, court/tribunal must refer to ECJ if necessary for judgment - to ensure uniformity of EU law across member states ECJ cannot judge national law or it's compliance with EU law Regarding conflict with later domestic law, EU law supreme, as a state cannot go unilaterally against agreement, as per the treaty, transfer of power was given to EU institutions (288 TFEU) and states are committed to observe EU law (4(3) TEU).
Costa v Enel (6/64) 1964
83
# Reverse
Defined tribunal/court. Relevant factors include: - body established by law - permanent - jurisdiction compulsory - procedure inter partes (all parties represented) - applies rules of law - independent
Dorsch Consult Ingenieurgesellschaft (C-54/96) 1997
84
# Reverse
Example of determination of court/tribunal
Broekmeulen v Huisarts Registrate Commissie (246/80) 1981
85
# Reverse
An arbitrator is not a court or tribunal: - voluntary jurisdiction - no official involvement
Nordsee v Reederei Mond (102/81) 1982
86
# Reverse
CILFIT criteria ECJ question not necessary if: - not relevant to conclusion of case - previous ECJ decisions already dealt with question - correct application obvious (Acte Clair - Da Costa wn Schaake)
CILFIT Srl v Ministro della Sanita (283/81) 1982
87
# Reverse
A higher court can't prevent reference to ECJ
Rheinmühlen-Düsseldorf v Einfuhr und Vorratsstelle für Getreide & Futtermittel (166/73) 1974
88
# Reverse
National court can't declare piece of EU law invalid. If court (lower) doubtful about validity it MUST refer to ECJ
Foto-Frost v Hauptzollamt Lübeck-Ost (314/85) 1985
89
# Reverse
It is up to courts to decide when to refer to the ECJ
Irish Creamery Milk Suppliers Association v Ireland (36 & 71/80) 1981
90
# Reverse
ECJ has more expertise, so refer unless completely confident
R v International Stock Exchange, ex parts Else Ltd 1993
91
# Reverse
Greater self-restraint in making a reference so the ECJ is not overloaded. Should be of general importance, not only applicable in this case
Trinity Mirror Plc v Customs & Excise Commissioners 2001
92
# Reverse
Any court or tribunal may make a reference to the ECJ ECJ can make preliminary rulings concerning interpretation of the treaty (TFEU) and the validity/interpretation of acts of the institutions, bodies, offices, agencies of the union
Article 267 TFEU
93
# Reverse
An Italian wine producer and a French wine distributor wanted to challenge a French tax law in the ECJ this made up a dispute. ECJ will not review unless there is a genuine dispute.
Foglia v Novella (No 1) (104/79) 1980
94
# Reverse
Italian court referred questions with no factual background so ECJ refused to accept the reference
Telemarsicabruzzo v Circotel (C-320-322/90) 1993
95
# Reverse
It is possible for a state to be sued for its final instance court's failure to make a reference. Must be sufficiently serious.
Köbler v Austria (C-224/01) 2003
96
# Reverse
Primary legislation (treaties) Secondary legislation (regulation, directives) Jurisprudence of the ECJ International agreements
Main sources of EU law
97
# Reverse
Becomes part of legal system in member states without the need for further enactment nationally - same for all states
Directly applicable legislation
98
# Reverse
Gives rise to rights/obligations individuals may enforce before national courts Supersedes national law
Directly effective legislation/provisions
99
# Reverse
Article 288 TFEU sets out types EP, the Council, the Commission involved in making secondary legislation Types (acts) include: - regulation - directly applicable - Directives - bind states as to the result to be achieved usually with a time limit - decisions - binding upon persons addressed - recommendations - not binding (guidance) - opinions - not binding (guidance)
Secondary legislation
100
# Reverse
Inquisitorial and not adversarial - more active to get the truth Decision collegiate/collective - no dissenting opinions Source of law ultimate (eg TFEU)
Civil law
101
# Reverse
Literal Teleological/purposive (defined in R v Henn & Darby 1981; used in Defrenne v SABENA (No 2) (43/75) 1976)
EU interpretation methods
102
# Reverse
Individual vs public body (treaty articles) -\> direct effect criteria - sufficiently clear/precise - unconditional - no room to exercise discretion in implementation on part of states or institutions of EU -vertical direct effect - individual can enforce right against state or state body Regarding conflict with earlier domestic law, EU law supreme over Dutch law pre-dating Treaty of Rome 1972. Additionally, states have limited their sovereign rights within limited fields.
Van Gend en Loos v Nederlandese Administratie de Belastingen (26/62) 1963
103
# Reverse
Horizontal direct effect - treaty obligation/ right enforced by individual against individual - can rely on treaty to enforce rights vs another individual but must satisfy van Gend criteria
Defrenne v SABENA (No 2) (43/75) 1976
104
# Reverse
For regulation & individual vs state, the regulation can be invoked immediately if van Gend criteria satisfied
Leonesio v Italian Ministry of Agriculture (93/71) 1972
105
# Reverse
For regulation & individual vs individual if van Gend criteria satisfied, regulation can be invoked
Antonio Munoz Cia SA v Frumar Ltd (C-253/00) 2002
106
# Reverse
Member states obliged to implement to achieve result prescribed, though by their own means (eg adding/altering domestic law) - in UK through acts of Parliement or delegated legislation (SI) - individual relies on national law unless inadequate or incorrect, then relies on directive itself Only vertical direct effect
Directive
107
# Reverse
(Action against public body) Woman refused UK entry as she was member of church of scientology. She invoked a directive. ECJ said for directive to have direct effect it must meet van Gend criteria. If not clear refer to ECJ. In this case directly effective.
Van Duyn v Home Office (41/74) 1974
108
# Reverse
R invoked 2 directives as a defence against criminal prosecution in Italy. He was able to rely on one where the time limit for implementation had expired but not on the other where the time limit had not yet expired.
Pubblico Ministero v Ratti (148/78) 1979
109
# Reverse
Woman forced to retire at 62 though men could at 65. Brought claim based on directive. ECJ said claim could be relied upon bc public body. Obiter: no horizontal direct effect (confirmed in Paola Faccini Dori v Recreb Srl (C-91/92) 1994
Marshall v Southampton & Southwest Hampshire Area Health Authority (152/84) 1986
110
# Reverse
Challenge of females forced to retire earlier than men. ECJ ruled directive could be relied upon if body (Foster criteria for public body/emanation of state): (a) be under a statutory duty to provide a public service (b) be under state control (c) have special powers British Gas was nationalized at the time and met criteria
Foster v British Gas (C-188/89) 1990
111
# Reverse
RR was owned by government but was not emanation of state as it did not have statutory duty to provide public service and had no special powers
Doughty v Rolls Royce Plc 1992
112
# Reverse
Private water utility was determined to be emanation of state because it - provided public service pursuant to statutory duty - had special powers (eg impose pipe bans) High Court held it did not need to be 'state controlled' to be 'under state control' and it was sufficient to be subject to state regulation
Griffin v Southwest Water Services Ltd 1995
113
# Reverse
Governors employ teachers, funded by government, can't charge fees and must follow national curriculum Found to be an emanation of the state. CoA found that not all three Foster criteria must be satisfied to be an emanation: - Foster criteria are guidelines only - emanation though no special powers Cases such as this should be treated with caution as the ECJ has not ruled on the application of the criteria
NUT v St Mary's Church of England (aided) Junior School 1997
114
# Reverse
2 female social workers denied jobs in prison because of sex ECJ ruled no direct effect of directive because directive was unclear on remedy so needed to be enacted nationally HOWEVER national courts were required to interpret any laws in light of the wording/purpose of the directive in order to achieve the result (indirect effect)
Von Colson & Kamann v Land Nordrhein-Westfalen (14/83) 1984
115
# Reverse
EU law is applied indirectly by means of interpretation of domestic law in accordance with EU law (Von Colson & Kamann v Land Nordrhein-Westfalen)
Indirect effect
116
# Reverse
For implementing legislation, HoL interpreted act to include equal value claims to conform with EU requirements
Pickstone v Freeman's Plc 1988
117
# Reverse
Related to the protection of workers when a business is sold. Workers were dismissed 1 hour before transfer. HoL interpreted 'immediately before' to include would be employed if not unfairly dismissed to give effect to EU legislation (implementing)
Lister v Forth Dry Dock & Engineering Ltd 1989
118
# Reverse
Females forced to retire earlier than men and it was a private company so no direct effect. HoL did not extend the Sex Discrimination Act 1975 as it did not intend to implement the directive (non-implementing legislation)
Duke v GEC Reliance 1988
119
# Reverse
C wanted to declare the constitution of D void because it was created to defraud creditors. No steps for the relevant directive implementation had been taken. ECJ ruled that national courts should apply a purposive approach to 'non-implementing' legislation so far as possible. National courts are wary of this ruling
Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) 1990
120
# Reverse
Webb dismissed when employer found out she was pregnant. C claimed against Sex Discrimination Act 1975. ECJ held it was discriminatory and HoL held it was possible to read Act in line with ECJ ruling (non-implementing)
Webb v EMO Air Cargo (UK) Ltd 1995
121
# Reverse
(a) where national legislation clearly conflicts with relevant directive (Wagner Miret) (b) where indirect effect would impose criminal liability (Arcaro)
Limitations with non-implementing legislation
122
# Reverse
Directive instructed guarantee institute to pay employees' arrears in case of insolvency but Spanish law excluded higher management staff. Directive gave discretion over what was a guarantee institute though it did not permit exclusion. ECJ held conflict between Spanish law and directive thus indirect effect could not apply
Wagner Miret v Fondo de Garantia Salarial (334/92) 1993
123
# Reverse
L was charged with criminal offense under Italian legislation incorrectly enacted to implement a directive ECJ held that national court should not apply indirect effect to criminal statute
Luciano Arcaro (C-168/95) 1996
124
# Reverse
A member state can be required to pay compensation to individual for damages suffered as a result of a failure to implement a directive, if certain conditions are satisfied: (a) grant of rights to the individual is a result of relevant directive (b) possible to identify content of rights from provisions of directive (c) existence of causal link between breach of obligation and loss/damage suffered ((d) breach must be sufficiently serious - from Factortame 4) State liability
Francovich v Italian State (C-6/90 & C-9/90) 1991
125
# Reverse
Brasserie du Pêcheur v Germany - German government prevented import of French beer R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame No 4) - UK Parliament enacted Act preventing Spanish fishermen from fishing in UK waters. ECJ heard the two cases together. It was argued that Francovich only applied to a dispute in national courts thus no additional remedy necessary against the state. ECJ rejected this argument and said state liability extended to any breach of EU law but C must prove breach was SUFFICIENTLY SERIOUS
Brasserie du Pêcheur v Germany, R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame No 4) (C-46 & 48/93) 1996
126
# Reverse
BT sued British government for loss due to incorrect implementation of a directive. Was deemed that UK was not liable, as it was not sufficiently serious (unclear and other states made same mistake). Sufficiently serious may be determined by looking at original directive. Was it vague? Also, have other states made the same mistakes? Has EU given guidance?
R v HM Treasury, ex parte British Telecoms (C-392/93) 1996
127
# Reverse
Concerned package holidays buyer protection. State liability case for total failure to implement a directive. FAILURE to implement a directive is in itself a sufficiently serious breach (where non-implementing is issue, Francovich still can be used, since it is practically unnecessary to consider seriousness) A sufficiently serious breach also occurs if: - a member state manifestly & gravely disregarded the limits on its rule-making powers when exercising those powers - if member state had no legislative choice to make and little/no discretion when exercising rule-making powers, mere infringement of EU law may amount to sufficiently serious breach
Dillenkoffer & Others v Germany (C-178, 179, 189 & 190/94)
128
# Reverse
UK Ministry of Agriculture was successfully sued for loss caused by failure to grant export licenses, as ECJ ruled against them
R v MAFF, ex parte Hedley Lomas (C-5/94) 1996
129
# Reverse
HoL held breach was sufficiently serious as the government had ignored Commission's advice that the 1988 Act breached EU law. Spanish fishermen got £55 million in damages.
R v Secretary of State for Transport, ex parte Factortame Ltd (Factortame no 5) 1999
130
# Reverse
(a) A person who can prove that the necessary criteria are satisfied (in b) may able to claim damages for the following breaches of EU law by a state: i. Failure to implement a directive (Francovich) ii. Incorrect implementation of a directive (BT) iii. Legislative acts (Brasserie du Pêcheur/Factortame No 4) iv. Administrative acts (R v MAFF, ex p Hedley Lomas) v. Judicial acts (Köbler v Austria) (b) a member state will be liable in each of these situations if the following criteria are satisfied: i. Rule of law which was breached must be intended to confer rights upon individual ii. Sufficiently serious (1) where member state has exercised its rule-making powers (incorrect implementation/legislative acts), a breach is sufficiently serious where the state has MANIFESTLY & GRAVELY disregarded the limit on its powers (examine level of discretion state has) (2) if no legislative choices and no discretion (non-implemention) infringement of EU law itself may be enough to establish a sufficiently serious breach (Dillenkofer) (3) if court of mandatory jurisdiction incorrectly failed to make an Article 267 TFEU reference to the ECJ, only sufficiently serious if made in manifest beach of case law of the ECJ (Köbler) (4) financial loss suffered can also be a relevant factor in assessing seriousness iii. Must be a direct causal link between breach and damage.
State liability
131
# Reverse
International law not binding as domestic law until incorporated by domestic legislation (eg UK) (Versus monist state (eg France) where international law incorporated automatically into domestic law as soon as it is ratified)
Dualist state
132
# Reverse
ECJ declared EU law prevails over conflicting provisions of a bill of rights in a state constitution.
Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide & Futtermittel (11/70) 1970
133
# Reverse
Regarding national law conflicting with EU general principle, national courts must set aside any provision of national law breaching the general principle of equality, or other important principles (eg proportionality)
Werner Mangold v Rüdiger Helm (C-144/04) 2005 & Seda Kücükdeveci v Swedex GmbH & Co KG (C-555/07)
134
# Reverse
Regarding conflict faced by national court. Conflict between treaty provision & Italian statute. ECJ concluded it is NOT necessary for national court to request or await the prior setting aside by legislation or other means -\> for EU implication only
Amministrazione delle Finanze v Simmenthal (106/77) 1978
135
# Reverse
Factortame applied for injunction to suspend 1988 Act but HoL held it had no power to grant an injunction but asked the ECJ, who replied that the national court would have to recognize supremacy of EU law and English law couldn't stand in the way. Uniformity of application of EU law -\> states must give EU law priority in conflicts.
Factortame No 2
136
# Reverse
European Communities Act 1972, s2(4): Any enactment shall be construed. & have effect subject to ss1, ie obligation of an EU nature Court approach: (a) traditional view - Parliamentary supremacy made supremacy of EU law impossible (b) now courts more accepting
UK court approach to EU supremacy
137
# Reverse
No EU remedies for individual vs individual. National court must use nearest equivalent national remedy. They must keep in mind: (a) remedy must not discriminate between breach of national law and EU law (equivalence) (b) national law remedies must be effective to protect EU rights (effectiveness)
Remedies for breach of EU law
138
# Reverse
Compensation reduced due to English law. ECJ ruled English law remedy ineffective and needed to remove limits, also interest should be awarded.
Marshall v Southampton Area Health Authority (No 2) (271/91) 1993
139
# Reverse
Principles that are common to individual constitutions and legal systems of all member states. Used to ensure uniformity Include: - respect for fundamental rights (no treaty or ECJ case lists these) - proportionality - equality - legal certainty - respect for procedural rights Incorporated through treaties; eg: - TEU article 6 - respect for fundamental rights - TEU article 7 - sanctions for serious/persistent breaches - Nice summit 2000 -\> charter of fundamental rights (same legal value as treaty - integrity of person - freedom of arts/sciences - entitlement to fair/just working conditions - right to strike - right to benefit from medical treatment (Note: UK has partial opt-out so that the charter will not extend the ability of e ECJ or UK courts to find that UK legislation is inconsistent with the principles of the charter, neither will it create any new justiciable rights in the UK.
General principles of EU law
140
# Reverse
Argued that a Commission decision infringed general principles of union law. ECJ disagreed. But was a general recognition that fundamental rights form part of the general principles of EU law and the ECJ can take steps to defend them.
Stauder v City of Ulm (29/69) 1969
141
# Reverse
ECJ stated there are two sources of inspiration for fundamental rights: 1. Common constitutional traditions of member states 2. International treaties for protecting human rights in which member states have participated
J Nold KG v Commission (4/73) 1974
142
# Reverse
Separate from EU law but any provision of the convention can be invoked before the ECJ, so long as in context of EU law
European Convention on Human Rights in EU law
143
# Reverse
Danish fishing vessel prosecuted in the UK for fishing illegally. Derogation allowing limits to fishing had expired at the time of the fishing. It was renewed shortly afterwards and purported to be retrospective ECJ invoked Article 7 of ECHR that penal measures must not be retrospective and the fisherman was cleared
R v Kirk (63/83) 1984
144
# Reverse
1. Measure must be appropriate/suitable to achieve desired objective 2. Also necessary to achieve objective 3. Must not go further than required to achieve objective (R v Ministry of Agriculture, Fisheries & Food and Secretary of State for Health, ex p Fedesa & others (C-331/88) 1990)
Proportionality
145
# Reverse
Surplus of skimmed milk. Council adopted Regulation requiring producers of animal feed to buy skimmed milk rather than soya meal though milk is 3x as much. ECJ held regulation invalid because it breached proportionality. Other less burdensome measures could be implemented. It also discriminated against other types of farmer (equality).
Bela-Mühle Josef Bergmann KG v Grows-Farm GmbH & Co KG (Skimmed-Milk Powder case) (114/76) 1977
146
# Reverse
Persons in similar situations are not to be treated differently unless objectively justified.
Equality
147
# Reverse
Legitimate expectation - persons entitled to assume EU law won't suddenly change to their disadvantage. (Arcaro) Non-retroactivity of legislation (eg R v Kirk)
Legal certainty
148
# Reverse
Normally secondary legislation provides procedural safeguards. However, where there are no procedural safeguards, the ECJ will rely on general principles, including: - the right to a fair hearing - the duty of a decision-making body to give reasons for its decisions - the right to due process
Procedural rights
