EU LAW CASE LIST - Summary Public International Law PDF

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EU LAW CASE LIST THE TREATIES AND THEIR SIGNIFICANCE R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg (1994) – A, sought judicial review of the decision by the respondent to ratify the Maastricht Treaty, saying that it would increase the powers of EU Parliament without it having been approved by UK Parliament and would transfer royal prerogative power to enter into treaties without parliamentary approval – judicial review was refused Brunner v EU Treaty (GER) (1994) – legality of German´s ratification of the Maastricht Treaty was challenged, and the German Constitutional Court confirmed it to be compatible with German Constitution Pringle v Ireland (2013) – Irish politician argued that amendment of the Treaties should be undertaken through ordinary and not through simplified revision procedure and EC Decision was not validly adopted and that it was substantively incompatible with economic policy provisions of the TEU  reference to ECJ: action dismissed, Decision 2011/199 applied to internal policies and actions of EU and did not increase the competences conferred on EU in the Treaties

THE INSTITUTIONS OF THE EUROPEAN UNION Roquette Freres v Council (1980) – failure to observe the essential procedural requirement is a ground for annulment of the proposed legislation, the Parliament´s must be consulted when so required by the Treaty REGULATIONS Commission v Italy (Re Slaughtered Cows) (1973) – this case confirmed direct effect of regulations, Italian government chose a wrong method of implementing a regulation and this method cast doubt on the legal nature and direct applicability of that measure – all methods of implementation were contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Regulations and of jeopardizing their simultaneous and uniform application in the whole of Community Variola (1973) – direct application of Regulation means that its entry into force and its application are independent of any measure of reception into national law. By virtue of the obligations arising from the Treaty and assumed on ratification, MS are under a duty not to obstruct the direct applicability inherent in Regulations and other rules of Community law. Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Regulations throughout the Community. Simmenthal (1979) – applicant wanted to challenge the legality of certain Regulations and notices which formed the legal basis of the Decision they wanted to contest, ECJ held that applicant was directly and individually concerned by the decision, even though it was actually addressed to the Member State

DIRECTIVES Van Gend en Loos (1963) – applicant was allowed to rely on a clause in a Directive which the UK had not introduced into national law – state cannot rely on its own wrongdoing to frustrate rights of individuals under directives Pubblico Ministero v Ratti (1979) – a MS which has not adopted the implementing measures required by Directive in the prescribed periods may not rely, on its own failure to perform obligations which the Directive entails – individuals can claim against state rights he or she should have had if the Directive had been correctly implemented Marshall (1986) – right of a State to choose among several possible means of achieving the objectives of a Directive does not exclude the possibility for individuals of enforcing before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the Directive alone Faccini Dori v Recreb srl (1994) – possibility of relying on Directives against State entities is based on the fact that under A.189 a Directive is binding only in relation to each MS to which it is addressed and has been established in order to prevent a State from taking advantage of its own failure to comply with Community law – individuals may not rely on a Directive to claim a right against another individual and enforce such a right in a national court (horizontal NO, vertical YES) Werner Mangold (2005) – Community law (here Article 6 establishing equal treatment in employment and occupation) must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings which authorises, without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52 – such legislation was not justified Foster British Gas (1990) – national courts may use this 4-part test to decide whether a body was an “emanation of state”: i. Does it perform a public service? iii. Under the control of the state?

ii. Pursuant to a measure adopted by the state? iv. Does it have special powers going beyond those of normal commercial undertakings?

DECISIONS International Fruit v Commission (1971) – decisions are a third form of binding secondary legislation - a piece of legislation that had been enacted as a Regulation was held by the Court to be, in fact, a bundle of decisions OTHER ACTS Les Verts v EP (1986) – certain Acts of EP, though not mentioned in Article 288, bind third parties and because they have “legal effects vis-à-vis third parties” are judicially reviewable Commission v Council (ERTA) (1971) – Council resolution was held by the Court to have a legal effect

THE COURTS Da Costa (1963) – preliminary ruling jurisdiction - A.267 is a procedure that has been described as the backbone of the Community legal order, it ensures the unity of interpretation of EU law Rheinmühlen (1974) – trial judge has discretion as to whether to refer with exceptions to matters which fall into scope of cases with compulsory reference – A.267(3) Briekmeulen (1981) – what is a court or tribunal is for purposes of A. 267 determined by EU and not by national law, CJEU indicated factors it would take to account – body in question was an appeals committee form the registration committee established by the Royal Netherlands Society for the Promotion of Medicine – factors: the body is established by law, is permanent, is independent, has compulsory jurisdiction, has procedures that are inter partes and applies rules of law Dorsch (1997), El Yassini (1999) – not all of the factors must be satisfied Corbiau (1993) – CJEU decided that Director of Taxation in Luxembourg was not a court or tribunal for purposes of A.267, the Director was hearing an appeal from a decision of Luxembourg tax authorities and CJEU held that he was not a court or tribunal as he was not independent, he himself had an institutional connection with those who made the original connection Nordsee (1982) – case showed that where parties have decided by K that disputes will be refered to an arbitrator and no public authority is involved in the decision to choose arbitration, then that arbitrator is not a court or tribunal for purposes of A.267 Bulmer (1974) – Lord Denning laid down guidelines for discretionary reference: • the decision on the Q of EU law must be conclusive of the case – decision on the Q is necessary to enable it to give judgment • national court can follow a previous ruling of CJEU but it may also resubmit a Q in the hope of getting a different ruling • where the point is reasonably clear and free from doubt, it may use the doctrine of acte clair and not refer • national court has a discretion which it should exercise with regard to: time lengths, aim not to overload the court with too many references, formulate the Q clearly, point must be difficult and important… ApS Samex (1983) – Bingham drew attention to CJEU´s expert knowledge of Union law and ability of the Commission and other MS to make representations in cases before CJEU Else (1993) – Sir Thomas Bingham commented on where a referral should be made: “If the question of Community law is critical to the court´s final decision, the appropriate course is ordinarily to refer the issue to CJEU unless the national court can with complete confidence resolve the issue itself… if national court has any real doubt, it should ordinarily refer.” Hoffman-La Roche (1977) – it is not always mandatory for a court of last appeal to refer and it is important to know that objective of the third paragraph of A.267 is to prevent a body of national case law not in accord with the rule of EU law from coming into existence in any MS

CILFIT (1982) – court held there is no obligation to refer: if it is not necessary (where Q on EU law will not determine the outcome of the case), where CJEU has already given a ruling on the Q (even if the Qs at issue are not identical) and where the matter is an acte clair acte clair – correct application of Union law acte éclairé – this applies where CJEU has is so obvious as to leave no scope for any already given a clear ruling on the same reasonable doubt as to the manner in which point in a previous case Q raised is to be resolved Köbler (2003) – it is possible to bring an action against a MS where breach of EU law was by a court of final appeal, especially where it failed to make a reference as required under A.267(3) –whether infringement of Union law was sufficiently serious when caused by a decision of a national court was to be determined by whether the infringement was manifest – here, on facts, there was not manifest infringement of Union law Traghetti (2006) – Community law precludes national legislation which excludes State liability for damage caused to individuals by an infringement of Community law attributable to a court adjudicating at last instance, by reason of the fact, that the infringement in Q results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that court

DECISION ADDRESSED TO ANOTHER PERSON: Plaumann (1962) –decision was not of individual concern to the applicant and thus standing was refused, i.e. they must be singled out in the same way as the initial addressee, they must be part of a closed group or a closed circle of persons who were known at the time of the adoption of a decision Piraiki-Patraiki (1985) – two groups of applicants and one group was held to have standing, CJEU held that the other group were not individually concerned, complex infrastructure was not sufficient to establish individual concern, but those who already entered Ks for sale into France to take effect during that period were given standing UPA v Council (2002) – Advocate General Jacobs´ proposed a new test for individual concern: “In my opinion, it should therefore be accepted that a person is to be regarded as individually concerned by a Community measure where, by reason of his particular circumstance, the measure, or is liable to have, a substantial adverse effect on his interests.”

DECISION IN FORM OF REGULATIONS (regulatory acts): -

requirement of individual concern no longer applies to a Regulatory Act, only direct concern generally, individuals could not challenge Regulations because their legal effects apply in a general and abstract manner

TEST 1: THE GENERAL APPLICATION / ABSTRACT TERMINOLOGY TEST Is it a true Regulation? 1. Is it phrased in general terms and applies to categories of persons viewed in a general and abstract manner? 2. If yes, then it cannot be a disguised decision and cannot be of individual concern to the applicant. – with one exception: Codorníu 3. Is the applicant part of a closed group? TEST 2: CLOSED CATEGORY TEST 1. If the Regulation applies to a closed category, Courts may use this test in cases which deal with a completed set of past events where Regulation related to a fixed, closed set of traders and was therefore a disguised Decision. CODORNÍU EXCEPTION Codorníu (1994) – here, a measure was held to be a true Regulation and yet to be of individual concern! – contested Regulation said that the word crémant should be used exclusively for wines from FRA or LUX and applicant was making sparkling wines in SPA, it was held to be a true Regulation of legislative nature and applied to traders in general, but this did not stop it from being of individual concern to applicant because of the use of the word crémant in his trademark Buralex (1996) – CJEU applied the abstract terminology test to deny standing despite the fact that the identities of the companies could be determined Campo Ebro (1995) – the only iso-glucose producer in Spain was seeking to challenge a Regulation which laid down sugar prices in Spain and General Court refused them standing – it held that they were only affected in their objective capacity as iso-glucose producers in the same way as any other trader in the sugar sector who actually or potentially is in an identical position – it seems clear that judgment in Codorníu was determined by its particular facts Roquette Freres (1980) – there is another exception where the applicant was part of a closed group which had previously been awarded a quota and was specifically mentioned by name in an annex to the Regulation – company in this case was held to be individually concerned like this Greenpeace International (1995) – Greenpeace and other applicants specifically argued for a liberalisation of rules on standing, but this was rejected by the CFI which restated the Plaumann approach – it was held that interest groups do not have locus standi where individuals they represent are not individually and directly concerned

DIRECT CONCERN Alcan (1970) – this case shows a very tough application of the test for direct concern, Commission refused to increase the quota for aluminium allowed into Belgium and this decision was challenged by the applicant who was an importer of aluminium, CJEU held he was not a person of direct concern because even if Commission increased the quota, the decision would not have required Belgium to increase it too and it might have decided not to do so Piraiki-Patraiki (1985) – although French government had discretion as to whether to introduce the system of quotas provided, Court held that this was entirely theoretical because FRA had applied for stricter quotas than had been authorised – French government would clearly impose the quotas if authorised to do so – therefore there was in fact no discretion on the part of French government and the decision of the Commission was of direct concern to the applicants Bock (1971) – Bock was held to be directly concerned because the German authorities had informed him that they would refuse his application as soon as they received a decision from the Commission permitting them to do so Inuit Tapiriit Kanatami (2011) – General Court determined that scope is not limited to delegated acts as regulatory acts constitute a more general application – the meaning of “regulatory act” must be understood as covering all acts of general application apart from legislative acts. Consequently, legislative act may form the subject-matter of an action for annulment brought by a natural or legal person only if it is of direct and individual concern to them. – ECJ supported this. World Wildlife Fund (1997) – infringement of an essential procedural requirement constitutes a valid ground for a review, here it was the failure to give reasons for a refusal of access to Commission documents Roquette Freres v Council (1980) – failure to observe the essential procedural requirement is a ground for annulment of the proposed legislation, the Parliament´s position in the EU legal order had developed into a stage where it must be consulted when so required by the Treaty

GENERAL PRINCIPLES OF EU LAW DIRECT EFFECT TREATY ARTICLES, REGULATIONS – both vertical and horizontal direct effect Van Gend en Loos (1963) – applicant was allowed to rely on a clause in a Directive which the UK had not introduced into national law – state cannot rely on its own wrongdoing to frustrate rights of individuals under directives  Article of a Treaty could have direct effect if: i.

it is clear and precise Azienda Agricola (2001) – provision must be sufficiently clear and precise to be enforced by a court, here a Regulation on improving efficiency of agricultural structures was not allowed to be relied on at a national court by limited companies seeking to obtain the status of farmers practising farming as their main occupation where legislature of a MS has not adopted the exact provisions necessary for implementation in the national system Commission v Italy (Re Slaughtered Cows) (1973) – this case confirmed direct effect of regulations, Italian government chose a wrong method of implementing a regulation and this method cast doubt on the legal nature and direct applicability of that measure – all methods of implementation were contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Regulations and of jeopardizing their simultaneous and uniform application in the whole of Community Tachographs (1979) – MS cannot apply incomplete or selective manner provisions of a Community Regulation so as to render abortive certain aspects of Community legislation which it has opposed or which it considers contrary to national interests – for a State to unilaterally break the equilibrium between advantages and obligations flowing from its adherence to the community brings into Q the equality of Member States

ii. iii. iv.

it is unconditional its operation does not require a legislative implementing measure on part of the state (it must lay down a negative prohibition rather than a positive obligation)

Alfons Lüticke (1966) – case where the fourth requirement was dropped, and the other three suggesting that direct effect will be the exception rather than a rule have been whittled away Defrenne v SABENA (1976) – it was held that Ms Defrenne could bring an action against her employer for breach of a Treaty Article requiring equal pay for men and women, requirement that a measure must not be dependent upon further action is not the obstacle that it appears, wherever Treaty includes time limit within which such further action should take place, Court has held that, once time limit has expired, measure has direct effect

DECISIONS – both vertical and horizontal effect Grad (1970) – decisions are binding in their entirety on those to whom they are addressed, CJEU held that Decision can have direct effect – here a national of a MS to which a Decision had been addressed could invoke that Decision in the national court, CJEU emphasized that this would increase the effectiveness (effet utile) of the Community measure

INTERNATIONAL AGREEMENTS International fruit Company (No.3) (1972) – provisions of the international agreement General Agreement on Tariffs and Trade were held not to have direct effect because they were insufficiently precise and unconditional for direct effect to apply X Germany v Council (1994) – under very limited circumstances a GATT provision could prevail over an EC provision but only if relevant EC provision expressly referred to the GATT provision! Polydor (1982) – free trade agreements were also held not to be capable of creating direct effect as their aim was not to create a single market, here similar terms used in Treaty were used in an agreement between EEC and Portugal, but this was not a sufficient reason for applying direct effect since the agreement’s rules disputed were on protection of industrial and commercial property rights and they were subsidiary to Community rules on the free movement of goods X Kupferberg (1982) – another provision of the same agreement as in Polydor was found to have direct effect because the provision fulfilled the conditions and fell within the purpose of the agreement – Portugal was not a MS at the time but did become soon after

DIRECTIVES – only vertical direct effect Van Duyn (1974) – Ms van Duyn could rely on a clause in a Directive which the UK had not yet introduced into national law, there were two reasons: first, the Directive conferred on individuals rights which were enforceable by them in courts of MS and which national courts must protect – vertical direct effect, and second, a MS should not be ...