EU Law Revision Guide - Lecture notes 1-24 PDF

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1. The EU Treaties after the Treaty of Lisbon 2009 2. EU Institutions 3. The Preliminary Ruling Procedure in Article 267 TFEU 4. The Evolution of EU Human Rights 5. The EU Charter of Fundamental Rights + EU Accession to the European Convention on Human Rights 6. Supremacy of EU Law 7. Regulations, Directive and Decisions – The Principles of Direct Effect and Incidental Effect 8. The Principle of Indirect Effect and Conform Interpretation 9. State Liability 10.Review of Legality: Staning/Locus Standi under Article 263 TFEU 11. Free Movement of Goods 1&2 12. Prohibition on Quantitative Restrictions and Measures having Equivalent Effect 13. Free Movement of Workers 14. EU Citizenship Law 15. EU Sex Discrimination Law. Equal Pay & Equal Treatment

The EU Treaties after the Treaty of Lisbon 2009  

ToL signed 13th December 2007 and entered force on 1st December 2009 Dual Treaty Base – TEU contains the general provisions defining the union – TFEU spells out specific provisions regarding the Union institutions and policies.

Competence = Legislative competence i.e. the material field within which an authority is entitled to legislate The Limits of the Competences are governed by the principle of conferral Principle of Conferral (Article 5(2)) = The Union shall only act within the limits of the competences conferred upon it by MSs in the Treaties to attain the objectives set out therein. Exercise of Shared Competence (Article 5.1) = Use of union shared competence governed by principles of subsidiarity and proportionality Subsidiarity (Article 5.3) = Decision taking at the most appropriate level Proportionate Article 5.4) = Necessary to achieve ends EU Competences laid out in Articles 2-6 TEU with a catch provision Article 352; if EU action necessary, within defined policy framework of Treaties, to attain treaty objective and necessary powers not provided in Treaties Principle of Subsidiarity: EU shall only act and in if so far as objectives of proposed action cannot be sufficiently achieved by the MSs (Central, Regional and Local levels) AND can rather, because of scale or effects of proposed action be better achieved at EU level. Role of National Parliaments and Subsidiarity -

Commission must send all proposals to NPs as same time as Union institutions NP may send reasoned opinion, within 8 weeks, as to non-compliance of subsidiarity “Yellow-Card” procedure – Gives MSs each two votes. Minimum of 18 votes needed.

EU Institutions The European Comission – Article 17 TEU, Articles 244-250 TFEU – 1 National from each MS

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Guardian of the Treaty Promote the general interest of the union Ensure application of the treaties Oversee application of Union Law under the control of the Court of Justice Formulation of Policy – Legislative initiative Execution and administration of policy

The Council of the European Union – Article 16 TEU, Articles 237-243 TFEU

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No fixed members. At each Council meeting, each country sends the minister for the policy field being discussed Passes EU Law (with EU Prlmnt) Signs Agreements between the EU and other countries Approves the annual EU budget Develops the EU’s foreign and defence policies Co-ordinates cooperation between courts and police forces of member countries

The European Parliament – Article 14 TEU, Articles 223-234 TFEU

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751 MEPs, individually elected in each Member State 5 year terms St in political groupings

They debate and pass EU laws, with the Council. They scrutinise other EU institutions, particularly the Commission, to make sure they are working democratically. They debate and adopt the EU’s budget with the council. Supervisory Work: Can question the commission and demand written answers. Can require commission to resign en bloc. New commissioners must be approved by parliament. Action to Annul contained in Articles 263-264 TFEU. Article 265 TFEU challenge other institutions if they fail to act. Committee of Inquiry to investigate maladministration. Problems with the European Parliament

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Large Constituencies Low electoral turn-out Lack of uniform electoral procedure across the member states EP elections usually contested on domestic issues MEPs accused of infrequent attendance Location – split between three cities (Luxembourg, Strasbourg, Brussels)

The European Council – Article 15 TEU, Articles 235-236 TFEU

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Heads of the Member States + Presidents of Council and Commission Meets 4 times a year

Has twofold role; Sets the EU’s general political direction and priorities and dealing with complex or sensitive issues that cannot be resolved at a lower level of intergovernmental cooperation. Has no power to pass laws

Court of Justice of the European Union – Article 19 TEU, Articles 251-281 TFEU

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1 judge from each member state, as assisted by the advocate general General Court also has at least one judge from each MS

CJEU and The Preliminary Ruling Procedure -

It ensures that in the interpretation and application of the Treaties, the law is observed Article 19(1) TEU.

The Article 267 Procedure -

Has had a significant role in the development of the EU Law In exercising their interpretative role, they consider; supremacy, direct effect, indirect effect of EU law, state liability, general principles of EU law

Purpose: Questions of EU Law referred by national courts to CJEU, the answers to which are necessary to enable national courts to give judgement – so as to ensure uniform application of EU Law

Who may refer – A Court or Tribunal which should have; a judicial function; independence from the parties; be recognised by the state for its decision-making function. Case 246/80 Broekmeulen – Dutch appeals committee for people who want to practice medicine in the Netherlands – Appeals committee was indeed a court or tribunal, even if not recognised by dutch law, had necessary qualities for ECJ Case 102/81 Nordsee Deutsche – Independent arbitrator not considered as a court or tribunal

National Courts’ discretion to refer If national court considers that a decision on the question is necessary to enable it to give judgement Referral not mandatory in questions of interpretation But cannot be fettered in exercise of discretion by national superior courts Case C-210/06 Cartesio – Hungarian Law made it possible for lower court decision referring to ECJ to be set aside on appeal, and lower court can be ordered to resume the domestic law proceedings Despite discretionary language, questions of validity of EU law must go to CJEU. National courts cannot declare EU Law invalid. Cas 314/85 Fotofrost – National courts may consider the validity of a community act. However, national courts themselves have no jurisdiction to declare that a community act is invalid. Only the CoJ, has jurisdiction both to declare void or invalid an act of a community institution. The question of whether an EU directive is valid takes priority over a national constitutional requirement to examine the question prior to referral for a preliminary ruling on validity to the CJEU

Article 267 Para 3 “Where any such question is raised in a case pending before a court or tribunal of a Member state against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the court” So, if there is no right of appeal and there are questions of EU law that need answered then, the national court must make a reference to the CJEU

Lyckeskog – Under Swedish law, the court of appeal, cannot send appeals to the supreme court, because the court of last appeal must allow it to be admitted. Question whether reference to CJEU necessary – CJEU held that a national court whose decisions can only be appealed if the supreme court declares it admissible is not a court against whose decision there is no judicial remedy.

Mandatory Reference for Preliminary Ruling??????? National Courts determine whether a decision on the question of European Union Law is necessary: Article 267 Para 3. *CILFIT v Ministry of Health – Justification for refusal to make reference under 267 TFEU The Italian Ministry of Health took the view that an answer to a question concerning the interpretation of a regulation was so obvious as to rule out the possibility of there being an interpretative doubt, thus lifting obligation to refer impose on the Italian Supreme Court. Laid out three circumstance in which it would not be necessary to make a reference under Art. 267(3) TFEU;

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The Question of EU Law is irrelevant Provision of Law has already been interpreted Correct application is so obvious as to leave no scope for reasonable doubt (Acte Clair)

Case C-224/01 Gerhard Kobler

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Court entitled to take the view that resolution of the point of law at issue was clear from the settled case law or left no room for any reasonable doubt. It was therefore obliged to maintain its request for a preliminary ruling

Effect of Preliminary Ruling

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Binds the referring national court + free to refer again if meaning unclear Precedent Cases – Da Costa More than Bilateral relations with national referring court = Multilateral Kuhne and Heitz – Interpretations of EU Law bind all courts and administrative authorities in EU

The Supremacy of EU Law Defined – Conflict of Law Rule. Primacy of EU Law over National Law. Laws of M/S that conflict with EU Law must be set aside and/or not applied by domestic courts in order to give effect to EU law. Case 6/64 Costa v ENEL – Italian citizen refused to pay electricity bill as he thought increase was due to nationalisation of the electric company – contrary to EC Law – CJEU held that becoming a member state of the EU means agreeing to law created by the EU. Also means that MSs had agreed to prioritise EU Law above their own within certain areas. Articles 4(3) TEU and 288 TFEU 1. Direct Effect would be pointless 2. M/S have voluntarily limited their sovereign powers 3. Uniformity and application of EU Law Supremacy of EU Law over M/S Constitutional Law Case 11/70 Internationale Handelgesellschaft – German administrative court doubted that EU legislation could violate fundamental rights granted by Basic Law. ‘Recourse to the legal rules or concepts of national law would have an adverse effect on the uniformity and efficiency of EU Law.’ Validity of EU laws could not be affected, not even by constitutional norms in a MS. What are national courts required to do? Supremacy has exclusionary effects within the domestic legal order Case 106/77 Simmenthal – Conflict arose between an EU regulation and provision of domestic law. Under Italian law only Cons Court can rule on validity. Held – Every national court at any level was obliged to give supremacy to Community law. Refusing to apply any conflicting domestic law. Primacy of EU Law & The EU Charter Case C-399/11 Melloni – Charged with fraud and in his absence, he was convicted in Italy to 10 years imprisonment – He was arrested in Spain under a European Arrest Warrant – He argued that his conviction in absentia was a breach of the right to a fair trial Spanish Constitutional Court: Does Article 53 EUCFR allow national constitutions with a higher protection of FHR to prevail? CJEU; Article 53 (states nothing in charter shall be interpreted as restricting human rights and fundamental freedoms) does not give M/S the power to apply higher FHR standards when a situation.

Perspective of the EU M/S: The case of Germany Internationale Handelgesellschaft (Solange 1) ; The BVerfG refused to accept the unconditional supremacy of EU Law because of the possible impact that EU Law had on basic rights protected in the german constitution. Wunsche Handelgesellschaft (Solange 2) – Change of approach due to positive developments which ensure the effective protection of those fundamental rights which were essentially protected by the german constitution.

The 1993 Maastricht Decision – (Brunner v European Union Treaty) – German court set out its ultra vires review doctrine The Union out not to be able to extend its own competences. If European institutions were to treat or develop the Treaty in a way no longer covered by the treaty, the resultant legislative instruments would not be legally binding within the sphere of german sovereignty The 2009 ‘Lisbon Judgement’ - BVerfG held that it had competence to review whether EU legal acts were compatible with the constitutional identity of the German Constitution Honeywell Judgement – The BVerfG considered its competences to declare any EU ultra vires act inapplicable in Germany – Also Limited the national review of European law to ‘specific’ and ‘manifest’ violations of the principle of conferral.

EU Law and the UK Clashes with the doctrine of parliamentary sovereignty which states that: Parliament is the highest law-making body in the UK; No other law can override the wishes of parliament; Parliament cannot bind its successors; Any later Act of Parliament which contradicts an earlier impliedly repeals that law. ECA 1972 S2; Any future act of parliament must be construed in such a way as to be consistent with EU Law and give effect to enforceable EU rights. ECA 1972 S3; Instructs courts to refer questions of interpretation of EU law to the CJEU and to follow its decisions on any matter of EU law Factortame (No.2) 1991 – Dispute arose over the Merchant Shipping Act 1988, which attempted to restrict ownership of UK-registered boats by requiring 75% of each boat being owned by UK nationals. Direct conflict between MSA and EC Treaty – When there is a conflict, the doctrine of parliamentary sovereignty is modified by S2(4) so HoL disregard the MSA. Spanish fishers got interim relief and MSA was repealed in parts. Thoburn v Sunderland City Council [2001] – Greengrocer sold bananas using ‘lbs’ contrary to EU law. Weights and Measures Act 1985 did not impliedly repeal S2(2) of the ECA 1972. *In 2007 EC ruled UK could carry on using Imperial Units*

Direct Effect and Incidental Effect Under Article 4(3) Member states have an obligation to give full effect to Community law. EU Legislative Acts as defined by Article 288 TFEU Regulations; General in scope; binding in their entirety, directly applicable in all MSs meaning regulations are part of national legal system without need for transformation in a national provision Directives; are addressed to MSs and are binding on each MS to which addressed as to the result to be achieved but leave to national implementing choice of form or method in which directives are implemented in law – as long as directive are transposed into binding national measures which achieves the directive’s objectives within the stipulated time Decisions; binding in their entirety; a decision which specifies those to whom it is addressed binds only the addressee Direct Effect

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Provisions which are DE give rise to rights or obligations which affect individuals as well as the member states Such rights or obligations may be enforced in national courts; and Supremacy of community law means the DE provisions of community law will override any inconsistent provisions of national law

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] Case concerned Article 30 of the TFEU, which prohibited new customs duties being imposed, or existing ones increased – Van Gend trying to directly enforce the rule against Dutch Government. Question referred under Art.267 TFEU – Van Gend could enforce it. Case developed a criteria – In order to be DE, a treaty provision must:

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Be clear and precise Be unconditional Leave the Member state with no discretion to implementation

Horizontal Direct Effect – Treaty Provisions Case 43/75 Defrenne v Sabena No.2 – Directive must give clearly identifiable rights to individuals! Flight attendant being made to retired at younger age than male counterparts – she wanted to enforce what is now Article 157 TFEU -`Held – Article 157 can have horizontal direct effect and therefore is enforceable not merely between individuals and the government but also between private parties Vertical Direct of a Directive Van Duyn v Home Office UK government trying to exclude Van Duyn – because she was member of Church of Scientology – had to figure out if directive was directly applicable – gave birth to criteria above – Directive was directly effective even though application was subjected to judicial control

Directives are binding and will be more effectively enforced if individuals can rely on them

Pubblico Ministero v Ratti – Time limit for MS to enforce MS must have passed Mr Ratti did not comply with a stricter Italian law that required his to label his solvents – law conflicted with two directives – Mr Ratti prosecuted for not complying with Italian law – Conviction quashed – where a MS fails to act in accordance with its EU obligations, it may not rely on its own wrongdoing – unimplemented directive became vertically directly effective on Ratti Horizontal Direct Effect of Directives Case 152/84 – Marshall v Southampton Area Health Authority – Direct enforced against state only! Marshall dismissed after 14 years of her employment by respondents – males at 65 and females at 60 – Direct effect of a directive could not be pleaded against an individual, but only against the state. No Horizontal Direct of Directives Paola Faccini Dori v Recreb – Italy failed to enforce a directive which would allow Miss Faccini to conclude a contract AG Slynn in case of Marshall case

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Directives are not capable of horizontal direct effect Cannot be relied upon directly against private party Blur distinction between Regulations and Directives

However there have been devices used by the EU to expand the direct effect of directives!!! 1. Expanding VDE by broadening concept of the state Case 188/89 Foster v British Gas – CJEU identified criteria in order for a private body to be considered an emanation of the state

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Subject to control by the state Providing a public service Has special powers given to it by the state

2. Incidental Horizontal Direct Effect – Directives can generate incidental effects for third partieswhere private party challenges another under national law and the directive is invoked as a shield to protect against the private action under national law Case C-194/94 CIA Security International v Signalson CIA wanted defendants to stop unfair trading practices – relied on directive against the application of state’s technical regulation – defendants could be liable for unfair trading because Belgian law was contrary to directive. Crucial factor of IHDE – One party suffers legal detriment and other party gains a legal advantage from the terms of an unimplemented directive.

The Principle of Indirect Effect and Conform Interpretation Von Colson v Land Nordhein-Westfalen [1984] Two female social workers were attempting to claims rights under Equal Treatment Directive – could not do so directly – CJEU decided that directive still be used through indirect effect Since National courts are part of the state – they are under an obligation to interpret national law in line with EU law = Individual can enforce a law from the EU against another individual in a national court Harz Deutshce Tradax GmbH – Doritz Harz says D practiced sexual discrimination in its recruitment procedure - remedy under german law not sufficient – directive stated that compensation had to be effective as a deterrent so must be adequate – MSs must adopt frame work of their own legal systems – to ensure directive is fully effective – in accordance with the objective it pursues Marleasing v La Commercial Internacional – Case concerning defrauding of creditors

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National courts must ‘as far as possible’ interpret national law to a...