European Union Law - fifth part (Alì - Fasoli) PDF

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European Union Law - fifth part ( professori Alì - Fasoli)
lecture notes and summaries - preliminary and ordinary ruling procedure...

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Preliminary ruling procedure Case before a national court - doubts in interpretation - suspend the national proceedings - preliminary question to the ECJ - decision by the ECJ - resume national proceedings. The prelimary ruling procedure (rinvio pregiudiziale): it is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, given in response to a request from a court or tribunal of a European Union Member State. A preliminary ruling is a final determination of EU law, with no scope for appeal. A measure adopted bu the EU institutions and it can be a act (directive, regulation,etc) Art. 263 TFEU "The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. a. The condition of the TYPES OF LEGISLATIVE ACTS It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. ( ACTS THAT CAN BE REVIEWED) The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives. b. (there are no conditions, but what are the prerogatives and the difference between competence and prerogative? The second is wider than the first one.) the we have the second condition (PREROGATIVE) Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. c. (the third paragraph is the third category specifying the TYPE OF PERSON) If the legal or natural person who is adressed is not mentioned, the ECJ decides that (the name is not in the act) the act is not ammisable. They want to limit the natural/legal person to go to the court and ask for an act that can be enforced as a law. They are not condition that must be applied all together, they are separated. There are the three case (first: type of acts; second: individual and direct concern) Against regulatory act, in the Treaty of Lisbon, is the third "condition". Bu what is a regulatory act? It is a type of regulation, but that cannot be adopted through a legislative procedure. We do not have any more the condition of the individual concern, and the condition of implementing act. The three case: 1. My name is in the act

2. My name is not in the act, but by the way I may have to find the elements telling me direct or individual concerns. How to understand it? 

The Plaumann case: In 1963, in the Plaumann case, 1 the ECJ interpreted for the first time the criterion of “individual concern” provided by the paragraph 2 of article 173 EEC Treaty (now paragraph 4 of article 230 EC Treaty). This interpretation has, since then, been referred to by the Courts in order to examine whether natural and legal persons are individually concerned by acts of EU institutions. Plaumann and Co, a German corporation, sought the annulment of a decision of the Commission in which the latter refused to authorise the Federal Republic of Germany to suspend, in part, customs duties applicable to fresh mandarins and clementines imported from third countries. In order to determine whether Plaumann had standing, the ECJ had to decide whether the company was individually concerned by the Commission’s decision. This interpretation of the “individual concern” is now known as the “Plaumann test”. The ECJ considered that Plaumann was not individually concerned, even though its commercial activity as an importer of clementines was affected by the decision of the Commission, because the company did not distinguish itself from any other person who could practice such commercial activity at any time. This interpretation of the Court of the criterion of the “individual concern” is, therefore, excessively restrictive and provides a very narrow standing to the persons who are not the addressees of the contested decision. It, however, has invariably been relied on by the CFI and the ECJ to determine whether natural or legal persons, other than those to whom community acts are addressed, have locus standi, as will be analysed below.

3. Against a regulatory act, which is of direct concern and does not entitle an implement reason, because in this way I must require the annulment of the implemented measure.

These are the three possible case in which we can have, by a natural or legal person, an annulment of those acts. In the case of a (implementing) regulation of Bashar Assad, there are all the name of people composing the regime in Syria; so we can go before to the court of Justice.

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. d. Specific conditions are required by all bodies. Are there the conditions of the annulment of an act? There is not specific condition for no EU institutions. The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be." e. There must be a deadline of the annulment, from the moment that I acknowledge the act.

Article 264, TFEU "If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void. However, the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive."

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There is a specific condition to declare an act void. But in some other important situations, the act could be considered void, but the legal consequences are however applicable and enforced.

THE GROUNDS OF ANNULMENT: 

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Lack of competence (internal and external): when the Institutions (EU institutions, bodies, offices) think that there may be a violation of its competence by another institution (internal); but also in the case where there is another institution (of a MS for example) that is considered as a external Infringement of an essential procedural requirement: it must be motivated.

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Misuse of powers: using a power for the purposes that are not composing the aim of the legal act or are considered wrong for the field in which we are speaking.

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Infringement of the Treaties or of any rule of law relating to their application: the infringement of EU law in general.

Art. 265, TFEU It is a mirror of the article 263, because in the first we can find the emanation of an act and the annulment, whereas in the second (265) there is the case in which the Institutions (and also offices and bodies) FAIL to adopt an act and the MSs and other Instutions bring an action to the ECJ asking for an infringement provision. "Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act. The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion." Article 266, TFEU "The institution, body, office or entity whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union. This obligation shall not affect any obligation which may result from the application of the second paragraph of Article 340."

Art. 258, TFEU the infringement procedure If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. WHY IS THE COMMISSION SENDING A LETTER TO THE STATE? The cases of this type are all in the form: EU commission v. (name of the state) the EU Commission want to COMPLY with MS. the COMPLIANT is the protection of the Treaties in some way. Only if there is a violation of the EU law, the commission can intervene with a letter sending to the state which is violating the rule. The first step made by the Commission is to comply with the state (admnistrative part), then the case can also stand in the same way for years, because there is not a immediate need to bring it in front of the ECJ. On the other hand, if there is not the compliant, the EU Commission can also bring it before to the ECJ. Art. 259, TFEU A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union. Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission. a. It can happen that a MS brings an action against another MS (MS 1 v. MS 2). But they try to avoid the direct conflict among MSs. The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party's case both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court.

Art. 260, TFEU 1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. 2. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.

a. PENALTY PAYMENT: a type of punishment, often involving paying money, that is given to you if you break an agreement or do not follow rules. b. LUMP (sum): a large payment made as a single amount of money, rather than in smaller amounts over time. (somma forfetaria = accordo con cui si stabilisce in precedenza un determinato prezzo, indipendentemente sia dall'ammontare del bene consumato sia dal tempo impiegato a compiere la prestazione a cui il prezzo si riferisce. a. 1851)

This procedure shall be without prejudice to Article 259. 3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment. 

The directives adopted by legislative procedure can be transposed only if there is a "message" from the State to EU, because if it is not in this way we can find the case of an infringment procedure. The MS is obliged to send the notification immediately if I, as a state, want to avoid more problems with the EU commission.

Infringment and Annulment procedures ACTIONS FOR FAILURE TO FULFIL OBLIGATIONS Infringement procedure These actions enable the Court of Justice to determine whether Member States have fulfilled their obligations under European Union law. Before bringing the case before the Court of Justice, the Commission conducts an administrative stage in which the Member State concerned is given the opportunity to reply to the complaints against it. If, at the conclusion of that stage, the Member State has not put an end to the infringement, an action may be brought before the Court of Justice. The action may be brought either by the Commission – as is usually the case – or by a Member State. If the Court of Justice finds that an obligation has not been fulfilled, the State in question must put an end to the infringement without delay. If, after a further action is brought by the Commission, the Court of Justice finds that the Member State concerned has not complied with its judgment, it may impose on it a fixed or periodic If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court.

If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment. The big part of the infringment procedure stops in the administrative part. The second part is composed by a sum of money or a penaly payment: there is the "dept" to pay if the MS does not respect the rule. In Frankovich v. Italy Francovich v Italy (1991) C-6/90 was a decision of the European Court of Justice which established that European Union Member States could be liable to pay compensation to individuals who suffered a loss by reason of the Member State's failure to transpose an EU directive into national law. This principle is sometimes known as the principle of state liability or "the rule in Francovich" in European Union law. Facts Under the Insolvency Protection Directive 80/987 (now 2008/94/EC) EU Member States were expected to enact provisions in their national law to provide for a minimum level of insurance for employees who had wages unpaid if their employers went insolvent. Mr Francovich, who had worked in Vicenza for CDN Elettronica SnC, was owed 6 million Lira, and Mrs Bonifaci and 33 of her colleagues were owed 253 million Lira together after their company, Gaia Confezioni Srl, had gone bankrupt. The Directive was meant to be implemented by 1983, but five years later they had been paid nothing, as the company liquidators had informed them that no money was left. They brought a claim against the Italian state, arguing that it must pay damages to compensate for their losses instead, on account of a failure to implement the Directive. Judgment The European Court of Justice held that the Italian government had breached its obligations, and was liable to compensate the workers' loss resulting from the breach. The Court further held that the damages for such breaches should be available before national courts, and that to establish state liability on the basis of the failure to implement a directive, claimants must prove that the directive conferred specific rights on them, identifiable in its wording, and that there is a causal link between the state's failure to implement the directive and the loss suffered.

THE INFRINGMENT PROCEDURE

The infringement procedure is in this way: EU commission v. MS (or another international org), because it is the commission that is up to decide if the MS is infringing something or not. There could be an infringment procedure only if a directive is not transposed, not all the directives, but only if there is necessary a legislative act to transpose it. It is important to ask to EU the compatibility between treaties and MSs. We have something in the middle between primary and secondary law: INTERNATIONAL LAW of two kinds:  General international law: customary international law  International treaty negotiated, signed and ratified by the EU. Once we have the process of ratification, there is possible the entry into force of the treaty. In the history of the EU law, there are some opinion of ECJ that really changed EU law; we have cases in which the court of Justice intervened saying that the process must be stopped because there are many different issues in the treaty. The EU convention of HR was elaborated within the council of EU, 27 MSs and the EU is a member. All the member of the EU are also members of the EU convention of HR. In 1994, the commission requested to the ECJ asking if it could be considered as a member of ECHR; but there was a lack of legal basis meaning that the treaty must be modified to permit the EU commission to be a member. They tried to do it through the process of the creation of CONSTITUTION OF EU that was not ratified and was stopped; but it was replaced by the Treaty of Lisbon (TREATY OF EU). In article 6 it is said that " the Union shall accede to the European Conven...