EU Institutional Framework and Principles

Week 1 The EU Treaties and institutional framework Provisions on EU institutions • TEU: Articles 13 to 19 cover institutional functions of the main institutions of the EU • (when anything is found in the TEU, then) TFEU: Articles 223 to 287 cover details on main institutions • Secondary law including rules of procedure, for instance Statute of the Court in Blackstone or on Eur-lex The institutional framework and its guiding institutional principles Art.13 TEU: Union shall ‘ensure consistency, effectiveness and continuity of policies and actions’ • Consistency as a common thread – is this a binding principle? • Now there is judiciabilty but it is still a flexible norm (the Court has referred to it consistently but especially for external relation policies) • TFEU and TEU: Art.24 TEU and 40 TEU v. consistency and depillarisation • Intergovernmental v. Supranational • Area of freedom, security of justice merged but not CFSP (found as the only EU policy in the TEU) Institutional principles influencing inter-institutional relationship Article 13 (2) TEU: institutional balance and sincere cooperation (Art.4(3) TEU) • Horizontal conferral of power: every institution can only act within the powers assigned to it • Depends on the policy fields and whether supranational or intergovernmental action The Institutions of the Union and their guiding principles Art.13 (2) TEU: Institutions act within their powers conferred on them by the Treaties (institutional balance) • Practice: conflicts between Council and Parliament/and or Commission, (correct legal base for legislation or general action) • Rules: Art.14 to 19 TEU: explaining checks and balances between institutions Separation of powers/checks and balances: State Legislative: EP, Council, Commission Executive/administrative: European Council, Council, Commission (also angencies, MS) Judiciary: Court of Justice, General Court (also national courts) “Spitzenkandidaten“ and other candidates Art.17 (7) TEU: “Taking into account the elections of the EP, the European Council… shall propose to the EP a candidate for President of the Commission…” European Council Art.15 TEU, Art.235, 236 TFEU • • • Members: Heads of government + President + President Commission Meets (at least) twice every six months Appoints senior positions (President, President Commission + Commission, HR) Tasks of the European Council Article 48 TEU: Treaty revision/amendments Article 50 TEU: withdrawal of MS from Treaty Article 15(1) TEU: general political directions and priorities, no legislative functions European Council – President President (Charles Michel) • Two and a half years (renewable) • Chairs the European Council • Preparation meetings • Report to EP on meetings European Council • Responsible for the external representation CFSP (together with HR for CFSP) Dismissed by European Council in case of an impediment or serious misconduct, Art.15 (5) TEU European Council – High Representative European Council appoints HR (Art.18 TEU) • Double-hatted: (one of the) Vice-president(s) of the Commission, member of the Council Art.27 TEU: • Chairs Foreign Affairs Council • Proposals and implementation CFSP parts of legislative proposals • Assisted by EEAS (diplomatic service of the EU) European Commission – structure Art.17 TEU, 244 to 250 TFEU Members: 5-year term, one national per MS • From 1.11.2014 rotation system number of members representing 2/3 of MS representing, Art.17 (5) TEU, Art.244 TFEU, unless European Council decides to alter number (unanimously) • But Irish deal: keep Commissioner per country (Presidency conclusion 2008, so 1 Commissioner per MS since November 2014) Independence from the national MS: Art.17 TEU, 245 TFEU Commission President: ‘primus inter pares’  Guidelines, internal organisation (he has the special power to ask Commissioners to step down from their position), appoint Vice-Presidents, Cabinets and Directorate-Generals European Commission – tasks: Art.17 TEU Executive power • Initiating legislative proposals • Union external representation (except CFSP) Supervisory powers • Guardian of the Treaties (infringement procedure, Art.258 TFEU) Legislative/quasi-legislative powers • Council confers quasi-legislative powers to Commission - Adopting non-legislative delegated and implementing acts, Articles 290 and 291 TFEU European Commission – appointment Article 17(7) TEU: • President candidate proposed by European Council to EP (taking into account EP election) • Council together with President-elect adopts list of Commissioner candidates • Vote of consent EP (Commission as a body) • In practice: individual Commissioners screened by EP • Difficulties appointment Barroso Commission 2004 • Appointment by European Council for 5 years (renewable) European Commission – dismissal Art.17(8) TEU, Art.234 TFEU Collegial body: motion of censure by EP (Art.17, 8, 234 TFEU) (234 TFEU: ‘2/3 majority required’  never achieved until now) • Downfall of Santer Commission and consequences Single commissioners: Art.17(6) TEU, Art.247 TFEU • President request resignation Art.17 (6) TEU • HR CFSP resigns according to Art.18(1) TEU • CJEU compulsitory retires member of Commission (Art.247 TFEU) • Not able to perform duties or serious misconduct (duties Art.17 (3)TEU, 245 TFEU) • Application by Council or Commission, Art.247 TFEU • Commissioners Bangemann, Cresson European Parliament President: David Sassoli Art.14 TEU, 223 to 234 TFEU Members: 751 (post-Lisbon elections) + Decision 2018/937 set to 705 members • Shall not exceed 750 members (+ President), no MS more than 96 votes (decision by European Council) Political parties, No National Groupings (Art.224 TFEU) • Party of European Socialists • European People’s Party (CDs) • Alliance of Liberals and Democrats in Europe • Greens/European Free Alliance • European Conservatives and Reformists • Confederal group of the European United Left • Europe of Freedom and Democracy Group European Parliament – powers, Art.14 TEU Supervisory: • Towards different institutions - Committee of inquiry, Art.226 TFEU - Hearing rights, Art.230 TFEU • Towards European Commission - Election of Com. Pres. and election Commission, Art.17(7) TEU - Motion of censure, Art.234 TFEU, Art.17(8) TEU (2/3 majority) • Appointment ombudsman, Art.228 TFEU Co-legislative: • Ordinary legislative procedure (co-decision), Art.289 and Art.294 TFEU • Special legislative procedure, Art.289 (2): - Consultation procedure: EP only consulted such as Art.21 (3) TFEU or Art.113 TFEU - Consent procedure (or assent procedure) such as Art.49 TEU or Art.352 TFEU Budgetary (EU) citizens (direct means) • (General) Right to participate in the democratic life of the EU - Open and transparent governance - Access to documents - Participation in public consultations • Right to form a European citizens’ initiative (11(4) TEU) • Right to address a petition to the EP (227 TFEU) • Right to address a complaint to the European Ombudsman (228 TFEU) Council of the EU Tasks: Article 16 TEU • Legislative (together with EP) • Budgetary functions (together with EP) • Policy-making and coordinating functions mandated by the Treaties Rules: Art.16 TEU, 237 and 243 TFEU Members: a representative of ministerial level per MS - Councils working formations such as General Affairs Council, Foreign Affairs Council - Presidency of Council (≠ president of the Council): equal rotation - Supported by Council Secretariat (administration) - COREPER (Art.16(7) TEU, 240 TFEU) - Preparation of Council meetings - Supported by General Secretariat (administration) Council: voting system Three different types of majority: • simple majority (15 MS in favour)  procedural issues • • qualified majority (16(4) TEU, 238 TFEU, Protocol (No 36) on transitional provisions) - regime until 31 October 2014 - regime as of 1 November 2014 (but until 31 March 2017 MS could request decision according to old regime) unanimous vote (all MS in favour) Pre-Lisbon formula extended until 2017 and Lisbon formula since then The past: Protocol no.36 on transitional provisions Art.3, QMV pre-Lisbon applied until 31.10.2014 and extended upon request of one MS until 31.3.2017 Now: Double majority voting and no weighed voting • • • Art.16 (4) TEU and Art.238 (3) TFEU (but see derogation under Art.238 (2) TFEU for certain proposals) 55% of the members of Council + 15 members of the Council + 65% of the EU population Blocking minority: at least 4 members Council – decision-making General rule: Council votes by qualified majority (QMV) Art.16 (3) TEU • Other voting procedures when specified in Treaties: - Simple majority: majority of members, Art.238 (1) TFEU - Unanimity: politically sensitive fields such as CFSP, EMU Council Presidency Negotiations Lisbon Treaty: smaller and bigger MS – compromise achieved, “dinosaur” • Equal Rotation (6 months duration) - Estonia: July-December 2017 - Bulgaria: January-June 2018 - Austria: July-December 2018 - Romania: January-June 2019 - Finland: July-December 2019 - Croatia: January-June 2020 - Germany: July-December 2020 • Relevance and legal basis - Convening Council meetings, setting the agenda & arrange meetings - Art.16 (9) TEU Council: practical functioning: COREPER • Committee of Permanent Representatives (Comité des représentants permanents) • Functions: - prepares the work of the Council - takes procedural decisions • Structure: - • Coreper II: representatives of ambassadorial rank (political, financial, foreign policy issues) - Coreper I: deputy permanent representatives Agenda: parts A (no debate) and B (for debate) Court of Justice of the EU CJEU - 27 judges (since 02/2019), 6 years, - Sits in chamber (3 or 5 judges) or - Grand Chamber (13 judges) or full court - Assisted by 11 Advocate-Generals - Constitutional court - Second instance General court - Case law starts with a C (C-2/10) General Court - Former CFI (Court of First Instance) - 51 judges - First instance actions - Case law starts with a T (T-1/05) - Administrative court EU courts Rules • Art.19 TEU, Art.251 to 281 TFEU • Statute on Court of Justice, rules of procedure Appointment • By common accord of MS, Art.19 (2) TEU/Art.253 TFEU • New: panel gives an opinion on candidates’ suitability Task • Ensure that in the interpretation and application of the Treaties the law is observed (Art.19 TEU • Creative case law through telelogical interpretation (see Tobler, p.85) EU court – function Rules in Art.19 TEU, 251 to 281 TFEU, Statute on the Court of Justice and rules of procedure Independence of judges (no dissenting judgments), Art.253 TFEU Appointed by common accord of MS, Art. 19 (2) TEU and Art. 253 TFEU - Now: panel gives an opinion on candidates’suitability Ensure in the interpretation and application of the Treaties the law is observed (Art.19 TEU) Jurisdiction: legal review of the CJEU General court (GC) • Direct actions of individuals, Arts. 263, 265 TFEU • Non-contractual damages claim, Art.340 TFEU • Direct actions Member States against Commission, ECB and Council (only in regard state aid, dumping and implementing powers), Arts. 263, 265 TFEU European Court of Justice • Preliminary rulings from national courts, Art.267 TFEU • Enforcement actions brought by Commission or MS, Arts.258, 260 TFEU • Direct actions of EU institution against EU institution, of Member States against Parliament or Council, Arts. 263, 265 TFEU • Appeals from General court Other institutions • European Central Bank: authorisation of issueing euro, Art.282 to 284 TFEU • Court of Auditors: audit the revenue and expenditure of the EU, Art.285 to 287 TFEU • Economic and Social Committee: representation civil society within EU decision-making, 317 members, Art.300, Art.301 to 304 TFEU • Committee of Regions: regional authorities decision-making process, 317 members, Art.300, Art.305 to 307 TFEU Week 2 EU legal system and legislation – Competences, legal basis and its exercise Legislation-making: What to consider • Fundamental and institutional principles (subsidiarity or proportionality, Art. 5 TEU) to comply with when enacting (and interpreting) legislation. • Can the EU act? choice of the legal basis: predominant purpose of the measure – aim and content of legislation (centre of gravity test, case law ECJ) Legal basis: determines actors and according to which legislative procedure they act What measures/instruments can the EU adopt? - Legislative acts by EP & Council: Regulation, Directive, Decision, adopted in the legislative procedure (Art. 288 TFEU) - Non-legislative acts by Commission (Art. 290 & 291 TFEU) - Delegated acts: supplement or ament non-essential elements of legislative acts - Implementing act: implementing EU legally binding acts.  Effect of legislation is determined by supremacy over national rules and direct effect of EU law (citizens can rely on norms).  Legal review of legal/legislative acts by annulment procedure (Art. 263 TFEU) and preliminary ruling (Art. 267 TFEU). Competences: power of the union - defined in the competence catalogue (Art. 2 to 6 TFEU) - describe the nature of the competence - example: internal market is a shared competence (Art. 4(2)a TFEU) ≠ Legal basis: necessary to justify legislation - found in the TEU and TFEU - example: internal market legal base is Art. 114 TFEU Forms of competences: • Exclusive competence - Art. 1, 2 and 3 TFEU - Custom union - Common commercial policy - criteria under 3(2) determine exclusivity (Only EU acts: subsidiarity is checked but proportionality is not) • Shared competence - Art. 2(2), 4(2) TFEU - internal market - area of freedom, security and justice - social policy etc (EU acts but both proportionality and subsidiarity are checked) • Supplementary (or supporting) competences - Art. 6 TFEU - culture, tourism, administrative cooperation, public health, education and training - EU harmonization prohibited What is a legal basis? - It gives indications to which law-making institutions are involved and which legislation-making procedure is applied - Legislation-making procedure described from the perspective of the EP - Ordinary legislative procedure, previous co-decision (Art. 289 TFEU): the rule in the TFEU - Special legislative procedure - Consultation procedure (example: Art. 113 or 148(2) TFEU) - Assent/consent procedure (example: Art. 352(1) TFEU) - Exception: only information right to EP (Art. 122(2) TFEU) Choice of legal basis: case law criteria • Objective factors to assess the choice of the legal basis + focus on the predominant aim and purpose of the measure (such as legislative act) = centre of gravity test (Titanium Dioxide Case 300/89) • Only exceptionally is possible to choose two or more legal bases if two different aims are inseparably linked without one being secondary (Recovery of indirect taxes, C-288/01) Choice of legal base and criteria are: (1) necessary to identify the main aim and content of the measure at hand - choice rests on objective factors amenable to legal review (2) exceptionally two or more legal bases can be combined if (a) several objectives of a legal act are inseparably linked (example Art 192(2) and 114 TFEU) (b) no hierarchy between the norms (c) several legal bases are compatible in their legislative procedures (example ordinary v special legislative procedure, Art. 113 and 114 TFEU)  harmonization is not prohibited: one norm does not allow harmonizing measures (example Art. 167 para.5 TFEU) Last resort: Art. 352 TFEU (flexibility provision): when no other more specific legal basis can be applied + conditions of Art. 352 TFEU fulfilled. An important legal base: Art. 114 TFEU All-encompassing legal base: internal market (para.1) + health, safety, environmental and consumer protection (para.3) Limits to use of Article 114 TFEU: - Case law Tobacco Advertising Case law on Art. 114 TFEU (Tobacco Advertising, Vodafone cases): when can it be applied? • Abstract risk or harm Mere finding of disparities between national rules and the abstract risk of infringements of fundamental freedoms or distortions of competition. • Concrete or likely obstruction - Differences between national rules obstruct the fundamental freedoms and this have a direct impact on the functioning of the internal market or cause significant distortion of competition - Aim is to prevent the emergence of such obstacles to trade resulting from divergent development of national laws (must be likely and measure must be designed to prevent them) Legal basis: flexibility provision (Article 352 TFEU) - Restructured with Lisbon Treaty: before only common market aim, now all EU policies, role of EP strengthened - It was quite frequently used at the beginning, but has a limited use now: - Built-in subsidiarity check and role of national parliament (para.2) - No harmonization where it is excluded (para.3) - No use for CFSP measures (para.4) Consequences of wrong legal basis - Litigation by EP or Commission and the Member States - Court can declare legislative act null and void (then, legal review through annulment procedure) Legislation-making • Can the EU act? Legal basis - Criteria for choice of legal basis: predominant purpose of the measure/centre of gravity test (CJEU) - Nature of the legal basis: competence cataglogue • What acts can the Union instutions adopt? - Legislative acts: adopted in a legislative procedure (ordinary or special) - Non-legislative acts adopted by Commission In form of - EP/Council Regulation, Directive, Decision - Commission Regulation, Directive, Decision EU institutional principles impacting legislation making • Article 4(3) TEU: sincere cooperation - MS are obliged to cooperate with the EU and not hinder the effective application and implementation of EU law - MS duty to implement EU law by all branches of power - EU institutions need to cooperate among each other (Art. 13(2) 2nd sentence) - Art. 4(3) TEU influences legal effect and application of EU law (direct effect and state liability) • Article 5(1) and (2) TEU: conferral of powers/attribution of competences (EU has to determine legal base for action) • Article 5(3) and 5(4): principle of subsidiarity and proportionality (limiting EU legislation= • Article 13(2) TEU: institutional balance + sincere cooperation (between EU institutions, choice of legal basis)  Every institution acts within its competences - EU is no state – no clear separation between executive and legislative fuctions and depending on the policy area - but representation of different interests - different powers assigned to EU institutions by TEU and TFEU - checks and balances: restrain institutions and allow them to control each other - decision-making of EU institutions cannot be revised by secondary law - examples of application: legal review and control mechanism such as EP towards Commission and Commission v Council Conferred powers: Article 5(1)(2) TEU EU only acts if a competence to act is assigned to it by MS Principles of subsidiarity and proportionality: Article 5(3) and 5(4) TEU Subsidiarity: in the case of non-exclusive EU competences, is it necessary to regulate at EU level? Proportionality: are the proposed means in the legislation suitable to achieve the objective and is it the least intrusive measure? o Is the measure suitable to achieve a legitimate aim? o Is the measure necessary to achieve that aim, are less restrictive means available? o Does the measure have an excessive effect on the applicant’s interests? Legislative procedures: Arts. 288 to 299 TFEU Procedures vary depending on the respective legal basis - Ordinary legislative procedure (Art. 289, 294 TFEU) - Special legislative procedure (example Art. 115 TFEU) - consultation procedure - assent or consent procedure For all legislative acts publication is necessary + stating reason (Arts. 296 and 297 TFEU) Common Structure • Right of Initiative by Commission - Monopoly, Alter Proposal (Art. 293(2) TFEU, Withdraw Proposal - Council (Art. 241 TFEU) and EP (Art. 255 TFEU) may request proposal, Commission does make proposal informs of reasons • Council or Council and EP decide • Council can only amend the Commission proposal by unanimity (Art. 293(1) TFEU) EP Consultation Procedure – Special legislative procedure • Proposal by Commission • Council consults of Parliament - CJEU: essential procedural requirement and regulation can be annulled when not followed (Case 138/79 Roquette Frères v Council) - But Council does not have to take Parliament’s view into account or give reasons for rejecting them • Council adopts by QMV or unanimity EP assent/consent procedure – special legislative procedure • Role of Commission and Council depends on legal basis • EP needs to approve Examples: - approval of international agreements - revision of the Treaties (Art. 48 TEU) - accession new MS (Art. 49 TEU) Ordinary legislative procedure • Joint agreement between Council and EP • Veto right of EP + active imput • Assent of Council • Conciliation committee 3 types of majorities • Rule: qualified majority (Art. 16(3) TEU) - QMV explained in Art. 16(4) TEU + Art. 238(3) TFEU (this latter has by now expired) • Simple majority (Art. 238(1) TFEU (such as Art. 160 TFEU) • Unanimity (At. 238(4) TFEU): political sensitive areas (example Art. 113 tax provisions harmonization) EU legal sources • Primary law: TEU, TFEU, EU Charter of Fundamental Rights (Arts. 1 and 6 TEU, Art. 1 TFEU) • EU secondary law (Art. 288 TFEU): - legislative acts in form of Council/EP Regulations, Directives, Decisions - non-legislative acts (delegated and implementing act) in form of Commission Regulations, Directives, Decisions (Below we would find Member States constitutional rules) Binding: Regulations, Directives, Decisions Non-Binding (soft-law): Recommendations, Opinions Legal effect of binding legal measures is determined by supremacy and direct effect principles Week 3 EU legal system – legal sources and their direct effect (direct effect and supremacy) Case law - overview • Costa v Enel (supremacy of EU law) • Van Gend & Loos (direct effect of primary law) • Van Duyn (direct effect secondary law) • Defrenne v Sabena (horizontal direct effect primary law) • Becker (direct effect directive) • Faccini Dori (lack of horizontal direct effect directive) • Marleasing (indirect effect directives) • Francovich (non-implemented directive, state liability) • Brasserue du Pêcheur (state liability non-application primary law) • Köbler (state liability, wrong interpretation EU law by highest court judges) Procedure of Preliminary ruling Article 267 TFEU: ‘there is an obligation to refer for the last instance court’. However, exceptions: - if the case has already been decided, ie the same question has been asked to the ECJ; or - a similar case has been decided by the Court of Justice, so the national court can deduce the right interpretation (CILFIT) • Obligation to refer if the national law discusses the validity of EU law (Foto-Frost) Supremacy - EU primary and secondary law take precedence over colliding national law - not found in EU Treaties - defined in case law: o Costa v ENEL, 1964 (‘body of law created which binds both national and MS’, ‘own legal system’) o Internationale Handelsgesellschaft, 1970 (supremacy over constitutional law) o Simmenthal, 1978 (supremacy over prior and subsequent national law) o Lisbon Treaty: Declaration no.17 concerning primacy (successor norm of Art.I16 Constitutional Treaty) – unsuccessful attempt o Melloni, 2013 (national constitutional court to disapply a constitutional provision when it conflicts with EU law) Costa v ENEL (1964): Costa was a shareholder of one of the private undertakings nationalized by the Italian government, assets of these private undertakings were transferred to ENEL (a public company at that time). Costa, a lawyer, refused to pay the electricity bill of ENEL (2 euros). He argued that the Italian nationalization was contrary to the EEC Treaty. Ruling: - Special legal order created by the EC Treaty - Supremacy cannot be called into question by the application of diverting national laws/rules - European Community creates a body of law which binds both their nationals and the MS Direct effect - individual can rely on rights against EU and MS - only indirectly mentioned in Art. 288 TFEU for regulation, defined in case law: Van Gend en Loos Van Gend & Loos: company relying on standstill clause (former Art. 12 EEC) to challenge Dutch import duty. Ruling - ‘new legal order of international law’, more than an agreement which merely creates mutual obligation between the contracting parties’ - Art. 12 EEC contained clear and unconditional prohibition • Direct effect: against whom and concerning which legal sources? - Direct effect of primary law o Vertically effective o Exceptionally also horizontally (Art. 45 TFEU or Art. 157 TFEU) - Direct effect of EU regulations o Vertically and horizontally effective - Direct effect of EU directives o Vertically effective o NO horizontal effect  Estoppel principle: MS should be estopped from relying on their own wrongdoings  Art. 288 TFEU: if we would allow horizontal effect, we would blur the distinction between regulations and directives Van Duyn (1974) Ms. Van Duyn (Dutch national) arrived at Gatwick Airport to work as a secretary at the British headquarter of the Scientology Sect. British immigration authorities denied entry on grounds of public policy (even though legal to work for S.) She challenged the decision on grounds of - EC primary law, Art. 39 EC (now Art.45 TFEU) and - secondary law (Directive) regarding migrant workers Ruling - CJEU held that primary law and secondary law produce direct effect, depending on nature, scheme and wording of the provision  A directive can be invoked by individuals in national courts Becker (1982) Ursula Becker was a credit negotiator and had to pay turnover tax on her income. According to a Directive she fell under an exception, so she didn’t have to pay this tax. Germany however, failed to implement this directive in time Ruling - MS had the duty to adopt this directive (reference to the Ratti case) (effectiveness of directive would be otherwise diminished if persons are prevented from relying on it) Wherever the provisions of a directive appear to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted, be relied upon against the state. Non-implemented or incorrectly implemented Directive (Van Duyn, Becker, Marks and Spencer) - Failure to implement. Direct effect when (Marks and Spencer case) o Time-limit for implementation has expired (MS in breach of Art. 288 TFEU) o Sufficiently clear and precise enough provision in Directive on which the citizen can rely on o Addressee only the MS – vertical situation (principle of estoppel is applied)  Justification: estoppel principle (Ratti)  MS should not take any advantage out of its own wrongdoing  State is in breach of obligation under Art. 288 TFEU, Art. 4(3) TEU  No horizontal direct effect among individuals (Marshall II, Faccini Dori) Faccini Dori (1994) Direct effect: lack of horizontal effect of Directive - Paola Faccini Dori concluded a contract at Milan railway station with a private company for an English language correspondence course (contract concluded away from business premises) She cancelled the course a few days later on the basis of a EC Consumer Directive (including rights to consumers in respect to contracts negotiated away from business premises) Italy did not implement this Directive in time Ruling - Breach of obligation of Art. 288 TFEU by MS (estoppel principle: MS should not take advantages out of its own wrongdoing) - Difference between Regulation and Directive must be respected - Reference to the Marleasing case Indirect effect: functions and limits (Von Colson and Marleasing cases) - General principle to interpret national law in conformity with EU law (EU consistent interpretation) - Specific gap-filler if direct effect is not available due to horizontal relationships (right of individual fall into contract and company law) - Legal limits of indirect effect o Principle of legal certainty (no contra legem)  No interpretation against working of the existing national law  Or national law doesnt exist Lack of horizontal direct effect – alternatives? - Broad definition of state • • Also ‘emanation’ of state: body made responsible for providing a public service under the control of the State and has for that purpose special powers, (see Foster case, C-188/89) Update with Farrell, C-413/15 (conditions cumulative or not?), private body installed with special powers, non-cumulative) - Other remedies • Duty of consistent interpretation (indirect effect based on Art.4(3) TEU Marleasing case) • State liability of Member State (Francovich case) Duty of consistent interpretation – limits (indirect effect) - Indirect effect: national law interpreted in the light of EU law/directive (Marleasing case) • No interpretation contra legem (princple of legal certainty has to be observed) - General duty of consistent interpretation (Art.4 (3) TEU • In case of a directive: when does it start? (If it works, it leads to horizontal effect exceptionally) • Date of publication of directive or expiry of transposition time? • Expiry of transposition time (Adeneler case) Indirect effect: Marleasing case (1990), see before also Von Colson case (1984) - Spanish company relied on a EC Company Directive which was not implemented in time by Spain and Spanish Civil Code was enacted before the Directive. Ruling - CJEU confirmed that directives could not produce horizontal direct effect but horizontal indirect effect - The Spanish court is obliged to interpret national law as far as possible in the light of the Directive, sincere cooperation (Art.4.3 TEU) State liability of MS: Francovich, 1991 - Francovich only received sporadic payment from his company where he was employed. • EU directive guaranteed redundancy payment but left some legislative choice to the MS. - State liability Francovich case (joined cases C-6/90 and 9/90): MS is liable to compensate for harm caused to individuals by breaching EU law for which it is responsible - Directive not implemented but lacked sufficient precision to be directly effective • State liability: why? • Otherwise effectiveness of EU law/protection of individual rights weakened • Principle of sincere cooperation Art. 4(3) TEU which requires MS to take all measures to ensure the fulfilment of their obligations under EU law State liability: General conditions (Francovich & streamlined by Brasserie du Pêcheur) 1. Sufficiently serious breach by a MS (e.g. non-implementation of a directive or incorrect application primary law) 2. Provision breached confers rights upon individuals (for instance norm in a directive or fundamental freedom EU Treaty) 3. Direct causal link between the breach and the damage State liability: extended also on breach of primary law (Brasserie du Pêcheur case) - Legal gap which is filled by reasoning relying on Art.4 (3) TEU + estoppel principle - In Brasserie du Pêcheur/Factortame liability extended on breach of primary law (in this case Art.34 TFEU) - In Köbler case extended on judicial breaches by last instance (wrong court decision) State liability: Brasserie du Pêcheur -French beer brewery in Strasbourg, forced to discontinue exports of beer to Germany in 1981. German purity law did not allow beer with additives to be marketed - Law declared illegal in 1987 by CJEU, contravened Art.28 EC (now Art.34 TFEU) - Brasserie sought compensation for loss of sales between 1981 and 1987 State liability of judges: Köbler - Köbler, an Austrian professor, lost bonuses due to fact that he worked some time in Germany - Highest Austrian instance ruled incorrectly that no breach of EC law Ruling - State liability for last instance, Breach of Art.234 (3) EC/267 TFEU (but does not confer rights) and breach of Art.48 EC/54 TFEU (confers rights on individual) - But also need of sufficiently serious breach - In Köbler no sufficiently serious because national court made an incorrect reading of previous case law and therefore did not refer the case (excusable, not intentionally) MS state liability: General conditions - Manifest breaches of EU law - EU law: Directly enforceable by individual - Breach by national authorities o Judicial: last instance and depending on circumstances (seriousness of wrong interpretation) Köbler case o Administrative: Primary law (no doubts about correct application) Brasserie du Pêcheur o Legislative: Directives, Art.4 (3) TEU and Art.288 TFEU Francovich - Damage and causal link between breach and damage When is a breach sufficiently serious? - MS disregards manifestly and gravely the limits of its discretion - Sufficiently serious: When • Non-implementation of Directive • Established case law on matter: circumstances in case of breach of primary law or breach by court last instance • Factors to be considered: • clarity, precision of the rule breached, infringement and damage caused intentional or involuntary, error of law excusable or inexcusable (ask what would have been when they would have acted correctly) Legal procedures: the applicants - Individual • Direct action (annulment or failure to act procedure) Art.263/265 TFEU • Non-contractual liability, Art. 340 TFEU • Preliminary rulings (via the national court), Art.267 TFEU - EU institutions • Annulment/failure to act, Art.263/265 • Infringement procedure, Art. 258, 260 TFEU (Enforcement by Commission) - Member States • Annulment/failure to act, Art. 263/265 • Enforcement, Art.259 TFEU General Court - Direct actions by individual - Non-contractual damages claim by individual - Direct actions MS against Commission, ECB, European Council (non-legislative acts) - Art.256: with exception of Art. 267 and reserved to Court of Justice (constitutional conflicts) Court of Justice - Preliminary rulings (from national courts, pending case) - Appeals from GC - Direct actions involving EP/Council or among EU institutions (legislative act/constitutional conflict) - Enforcement (Commission/MS, constitutional conflict) Judicial System: CJEU and GC - Applicable law: Art.256 to Art.271 TFEU, Protocol on the Statute of the Court - Procedural Structure • Written proceedings • Investigation or preparatory inquiry • Oral proceedings • Judgment Preliminary ruling, Art.267 TFEU - Preserving primacy and unity of EU law (a) Interpretation of Treaties: national court in doubt about correct interpretation of national law in light of Union law (b) Validity and acts of institutions, bodies, offices and agencies of EU (relevant for pending case at national court) Article wording - Question raised before any court or tribunal of a MS - Obligation to refer: only last instance • Exception: also lower instances, Foto-Frost case (validity of EU secondary law) - Discretion to refer: any court • Exception acte clair/eclairé doctrine (CILFIT) Week 4 The effect of legislation and the preliminary ruling procedure (legal effect and legal protection) EU supremacy and national constitutional courts Constitutional courts in Italy, Germany, Spain, Poland, Czech Republic, Hungary: — Conditional supremacy (Solange I/Internationale Handelsgesellschaft judgment by the German BVerfG and Solange II, Maastricht, Lisbon judgments) + European constitutional norm (transferring powers to the EU). o Attributed powers, ultra vires review (Honeywell judgment BVerfG). o Fundamental rights protection (the EC lacked a written human rights catalogue). Direct effect of non-, partly or incorrectly implemented Directive 1. Time-limit of implementation has expired MS in breach of Art.288 TFEU and Art.4(3) TEU 2. Provision in Directive unconditional and sufficiently precise 3. Vertical situation Rights deriving from Directive provisions claimed by individual against MS State liability: Dillenkofer case (1996) Erich Dillenkofer brought a proceeding against Germany - non-implementation of a Directive on package tours (Travel Directive). The travel organisers declared insolvency and Dillenkofer lost a deposit which he had to pay before the travel started. This Travel Directive intended to protect customers against the risk of the organiser’s insolvency. Ruling - The full effectiveness of that rule of EU law requires that there should be a right to reparation - Preconditions o Directive entails an individual enforceable right, o Content of those rights is identifiable on the basis of the provisions of the directive and o A causal link exists between the breach of the State' s obligation and the loss and damage suffered by the injured parties. Conditions for all state liability breaches streamlined by Brasserie case State liability: General conditions Full effectiveness, Art.4 (3) TEU - Rule of law infringed which must be intended to confer rights on individuals - Breach must be sufficiently serious (different factors taken into consideration: manifest and grave disregard of the limits of discretion of implementation) o In this case non-implementation of the directive is always a manifest breach - Direct causal link between the breach of the obligation resting on the State and damage sustained by the injured parties (ask: what would have been when they would have acted correctly?) State liability: When is a breach sufficiently serious? MS disregards manifestly and gravely the limits of its discretion • When? — Non-implementation of Directive (Dillenkofer case) — Established case law on matter: circumstances in case of breach of primary law or breach by court last instance — Factors to be considered generally: o clarity, precision of the rule breached, infringement and damage caused intentional or involuntary, error of law excusable or inexcusable MS state liability: General conditions - Manifest breaches of EU law - EU law: Directly enforceable by individual - Breach by national authorities o Judicial: last instance and depending on circumstances (seriousness of wrong interpretation) - Köbler case o Administrative: Primary law (no doubts about correct application) Brasserie du Pêcheur o Legislative: Directives, Art.4 (3) TEU and Art.288 TFEU – Francovich - Damage and causal link between breach and damage State liability of judges: Köbler case Köbler, an Austrian professor, lost bonuses due to fact that he worked some time in Germany. Highest Austrian instance ruled incorrectly that there has been no breach of EC law. Ruling - State liability for last instance, Breach of Art.234 (3) EC (now ,267 TFEU) but does not confer rights and breach of Art.48 EC (now Art 54 TFEU) confers rights on individual - However sufficiently serious breach required o In this case not sufficiently serious, because the national court made an incorrect reading of previous case law and therefore did not refer the case (excusable, not intentionally) State liability exists for all branches of power for manifest breaches - Legislative breach (possibly: non-implemented directive, partly or incorrectly implemented directive) - Administrative breach (government, state official) Wrong application of EU primary or secondary law - Judicial breaches (last instances judges) Wrong interpretation of EU law (primary and secondary law) Judicial System: CJEU and GC Applicable law: Art.256 to Art.271 TFEU, Protocol on the Statute of the Court • Procedural Structure - Written proceedings, notice of the action in the OJ - Investigation or preparatory inquiry (Juge-Rapporteur and AG assigned) - Oral proceedings - Opinion of AG (before the CJEU) - Judgment Legal procedures — Individual o Direct action (annulment or failure to act procedure) 263/265 TFEU o Non-contractual liability, 340 TFEU o Preliminary rulings (via the national court), 267 TFEU — EU institutions o Annulment/failure to act , 263/265 o Infringement procedure, 258, 260 TFEU (Enforcement by Commission) — Member States o Annulment/failure to act, 263/265 o Enforcement, 259 TFEU Question on Union law validity • Direct actions by non-privileged (individuals)/privileged applicants, Art.263 TFEU (institutions/MS) • Preliminary ruling, Art.267 TFEU (National judge asks question) • Claims for non-contractual damages, EU liability Art.340 TFEU (raised indirectly) Union law valid but infringement by MS • Preliminary rulings (from national courts, pending case) • Infringement procedure, Art.258 and 260 TFEU Preliminary ruling, Art.267 TFEU Preserving primacy and unity of EU law - Interpretation of Treaties: national court in doubt about correct interpretation of national law in light of Union law - Validity and acts of institutions, bodies, offices and agencies of EU Preliminary Rulings: Functions — Development of EU law : o Over 50 % of all the cases in front of EU courts o Most important procedure for the individual when challenging the MS on direct effect and state liability — Judicial review EU law o validity of EU law also considered under certain circumstances (question of relationship with Art.263 TFEU) — Preserving unity of EU law o CJEU encouraged national courts at the beginning to refer, now substantial body of case law and acte clair doctrine (see below) Preliminary Rulings: Problems — Indirect procedure : CJEU rules due to a pending case in national court, no direct reference by individual possible — Problem: takes about 1.5 to 2 years to decide — Alternatives and options o National courts: Interim measures based on balancing between serious doubts about the validity, irreparable damage caused to the party seeking relief o Acts clair doctrine: do not refer when the issue is clear (see below) o CJEU: Simplified procedure in case of decision by reasoned order (already relevant case law to refer to) o CJ: PPU (urgent procedure) in the Area of Freedom, Security and Justice – smaller chamber ruling on sensitive issues Preliminary Rulings: Details Substance of preliminary rulings — Interpretation of EU law o Treaties o Acts of institutions/bodies/offices/agencies: binding acts + non-binding acts o International treaties No substance — Rulings on national law — Advisory opinions or hypothetical questions Validity of EU law and acts of bodies — National court cannot declare EU invalid (case law Foto-Frost) — So, if doubts exist, obligation to refer (of any instance): CJEU monopoly to invalidate Union law Preliminary Rulings: Who can refer to CJEU? Every court and tribunal of MS - broad definition — a permanent and independent body — established by law and — can give binding decisions to settle disputes See Broekmeulen case paras.16-17 • Examples: o Professional bodies with judicial authority such as arbitration tribunal of a private mine employees social security fund, Dutch Body Appeals Committee for General Medicine, Social Security Commissioner or University appeal board o No court or tribunal: decision-making bodies, arbitrators, national competition authorities or international courts Preliminary Rulings: Matter of reference What matters can be referred? — Question on the interpretation of Union law o But no abstract questions considered, o no hypothetical questions or interpretation of national law, o pending case necessary — CJEU may reformulate the questions — Clear description of factual and legal context by national court Preliminary Rulings: Obligation to refer? — Discretion to refer: lower national courts have the discretion to refer (Art.267 TFEU: “may…request a ruling”) Exception: Foto-Frost conditions — Obligation to refer:(Art.267 para.3 TFEU “shall refer to court or tribunal against whose judicial decision no remedy is possible”) • Last instance depending on national law o Highest court of the country o Courts against whose decision no judicial remedy possible Exception: CILFIT conditions Preliminary Rulings: Acte clair/eclairé doctrine Exception from the obligation to refer of highest instance • Conditions: (CILFIT case) o The provision has been already interpreted by the CJEU, identical question (acte éclairé) o The correct application is so obvious as to leave no scope for doubt, can be deduced from previous case law (acte clair)  But obligation again to refer where validity of EU law is in doubt (Foto-Frost case) National courts and ECJ — Both forming the court system of the EU (Art.19 TEU) — Dialogue between the courts — National law should not impede national courts to make a reference + priority over national processes o Krizan (C-416/10) , Melki (C-188-9/10), Chalmers, pp.173-176 Preliminary Rulings: Binding for whom? — Binding on the national court which made the reference (inter pares) — Binding on courts with identical questions + identical interpretation (Art.4.3 TEU) — Binding erga omnes (among everyone)? o Yes, if ruling on validity of EU law Enforcement: How to make MS comply with preliminary rulings? — Infringement procedure Arts.258, 260 TFEU o Problem independence of courts (see, however C-619/18 and Art.19 TEU in regard to the rule of law crisis in Hungary and Poland) — Köbler case, state liability when manifest breach of obligation + last instance — Some national constitutions, fundamental rights protection o In national constitutions, such as German and Austrian constitution, fundamental right to be tried by the right judge (arbitrary refusal, intentional departing from case law of CJEU is an infringement of this national fundamental right) Week 5 Legal review – infringement and annulment procedure Enforcement or infringement procedure - Objective mechanism for ensuring state compliance with EU law, targeted and strategic use of a cumbersome and time-consuming procedure as last resort How does the procedure start? (Commission supervisory power – guardian of the Treaties) o on the basis of an individual complaint; or o through the acquiring of information (databases, press…) - Cases are withdrawn at any stage, over 89 percent cases settled before judicial phase (data from 2003), 70 percent stop with informal phase - Only 7 percent of cases reach court, 90 percent won by Commission - 50 to 40 percent of claims start via complaint private parties Infringement procedures: Article 258 Article 260: Non-compliance with the Judgement of the Court of Justice Main policy areas Infringement procedure: Involvement of individuals and Commission discretion - Private parties are informed on progress and closing of files. - No obligation, Commission has the discretion to bring proceedings under Art.258 TFEU (case law: Star Fruit or Lütticke). o Reason: Selective enforcement due to amount of legislation and limited Commission staff. Individuals have no standing in this procedure, letter from the Commission informing about the stage of the further proceeding (internal procedural rules). However, individuals have other options: • Accuse MS before a national court, then possibly Art.267 TFEU • Complain to the Commission. However, COM has no obligation to act (see slide before), no binding legal act adopted in the course of the investigation (internal administrative procedure) • Informing Ombudsman, Art. 228 TFEU, critical of COM practice Infringement procedure: more recent developments Start with an informal phase: investigation Commission and dialogue with MS - Since 2008 EU pilot scheme for handling complaints (online database) o to achieve informal settlements o to replace previous administrative phase (informal phase) but has become more an additional road to take - 75 percent of cases settled in in the informal phase but closed system of negotiations Since Lisbon: speed-up process for Directives under Art.260 (3) TFEU (see below). Database on cases which are being processed by the Union Infringement procedure: Phases - Administrative phase I, 258 • Informal phase: o Investigations, dialogue (EU pilot) • Formal phase: o Letter of formal notice o Reasoned opinion Subject: non-compliance with EU law - Judicial phase I, 258 o Commission brings the case to ECJ o ECJ judgment: Rules on failure of MS - Administrative phase II, 260(2) — Commission: MS does not comply with judgment — Amount of the lump sum or penalty payment (specified by Com. once it goes to court) Condition: MS submits observations - Judicial phase II, 260(3) o CJ rules on non-compliance with previous judgment o May impose lump sum and/or penalty payment Infringement procedure: Failures of MS What is a failure? - Any shortcoming o may it be of regulatory, administrative or judicial nature, o active or passive, o legally binding or not - Commission policy to prioritise certain infringements o Breaches of principles of primacy and uniform application EU law o o o o Violations of fundamental freedoms Serious damage of Union’s financial interests Repetition of violations Failure or incorrect transposal of directives (speed-up procedure under 260(3) TFEU) By whom are these failures committed? - Any part of the state: o Public authority, o Private authorities when state-controlled, enjoying special powers  Spanish Strawberries Case C-265/95, Case 325/00 Commission v. Germany  Courts? Judicial independence and res judicata Case C-129/00 Commission v. Italy but Köbler case (C-224/01) on state liability and see recent case: C-416/17 Commission v. France (breach of Art.267 (subpara.3) TFEU) Pre-litigation or administrative phase (1. round/phase) • Informal letter o Investigations by Commission o MS government invited to reply  EU Pilot or informal procedure before 70% of the cases ends here • Letter of formal notice o Brief summary of complaints and gives MS time to react, o defining subject-matter (procedural rights MS) o MS submitting observations • Reasoned opinion o Time-limit for compliance (reasonable, Case C-1/00 Commission v.France) o Defines the subject matter, clear and precise in its content o Consistency between letter of formal notice and reasoned opinion • Judicial phase 7% of the cases reaches court Judicial phase I • Commission: procedural requirements: o Consistency between pre-litigation and litigation phase o No extension of complaints from the moment of reasoned opinion o Coherence between reasoned opinion and letter of notice o legal interest: if the infringement still exists on the expiry of the time-limit indicated in reasoned opinion (Case 240/86 Comm.v. Greece, C166/97 Comm. v. France) Can MS defend themselves? — Argument: substantive law (no infringement etc.) — Argument: procedural law (procedural mistakes in administrative phase) Defence pleas MS and case law • Argument of reciprocity or other defences under international law not accepted (reciprocity means that in event of breach by one party the other party is relieved from its obligation) o Cases 90-91/63 Commission v. Luxembourg and Belgium, Case C-146/89 Commission v. UK • Argument of Force Majeure rejected: Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations resulting from Community directives (Case 1/86 Commission v. Belgium) o Belgium pleaded dissolution of Parliament, separation of powers and rejected (Case 77/69 Commission v. Belgium) o Italy pleaded bomb attack as force majeure but rejected due years of breaches (Case 101/84 Commission v. Italy) • MS cannot claim the unlawfulness of Directive, instead Article 263 procedure available (Case 226/87 Commission v. Greece) • Liable for wrongdoing of any branch of powers (also judicial branch, problem: independence of courts but see recent case law) • Most successful: procedural claims (time-limits too short, extension of complaints in Court compared with reasoned opinion) o See also overview Tobler, EU Charts, p.327 • Generally: internal difficulties (no), grave procedural mistakes (yes) Administrative and judicial stage Art.260(2) TFEU: Non-compliance with judgment Individuals have no rights out of judgment, but judgment may constitute basis for state liability. • Commission: MS has not taken necessary steps to comply with judgment o MS has the opportunity to submit observations o Commission finds non-compliance, specifies amount of the lump sum or penalty payment Overview Administrative phase I, 258 • Letter of formal notice • Reasoned opinion + time-limit • Matter: non-compliance with EU law Judicial phase I, 258, 260.1 • Commission to court • Judgment on non-compliance EU law Judicial phase II, 260.2 • Matter: Non-compliance with judgment • Commission: MS no necessary steps taken + formal letter of notice • MS opportunity to submit observations (administrative phase II) • Case back to court, specifying sanctions to be imposed (financial payment) • Court imposes lump sum or penalty payment Shortened Judicial phase - Post-Lisbon: merged phases Administrative phase, 258 • Matter: failing to notify measures transposing a directive adopted under the legislative procedure • Letter of formal notice • Reasoned opinion Judicial phase, 258, 260.3 • Commission to court + (optional) specifying amount of payment • Judgment on failure to notify only measures transposing directive and imposition of lump sum or penalty payment Types of sanctions against MS Art.260(2), 260(3) TFEU • Lump sum o Single one-off sanction o Non-compliance between 258 and 260 o Minimum sum for each MS, ranging from € 180.000 Malta to 12.700000 Germany • Penalty payment o Applies each day of delay, calculated on a daily rate after 260 judgments o minimal € 600 per day of infringement, calculated on the basis of gravity, duration of infringement and ability to pay  Proportionality applies and both can be imposed at the same time Infringement proceeding, Art.259 TFEU Action by MS against another MS • Complaining MS submits complaint to Commission • Commission delivers a reasoned opinion (+ giving opportunities to MS to react) and brings the case to the ECJ • or Commission does not deliver a reasoned opinion within 3 months, matter can go to the ECJ In practice rarely used, but see C-591/17 Austria v. Germany (the road toll case). Direct actions, Arts.263/265 TFEU - Act of Annulment or failure to act, Art.263/265 TFEU - Protection against unlawful binding acts of Union institutions or the omission of acting - Division between privileged (institutions and MS) and non-privileged applicants (legal and natural persons) and semi-privileged applicants (ECB, Court of Auditors, Committee of Regions) Annulment procedure or direct action: procedural conditions, Article 263 TFEU • Privileged applicant (EU institutions and MS) o Council, MS, Commission, EP o Attacking legally binding acts with the argument that it violates high ranking EU law • Semi-privileged applicants (Court of Auditory, ECB, Committee of Regions) o Attacking measure that are protecting their prerogatives • Non-privileged applicant (legal and natural person) • • Very limited standing Depending on the challenged act: listed in 263(4) Privileged applicant (MS/EU institutions) - Procedural (legal standing) subpara.1 o EU act intended to produce legal effect o Time-limit: 2 months (publication measure) - Substantial (legal grounds), subpara.2 o Examples Art.263.2 TFEU o Infringement of higher ranking norms • Legal standing (Art. 263(1) TFEU) • Challengeable Acts: o Acts which intend to entail legal effect (intended to produce legal effect visa-vis third parties)  Yes: any binding measures under Art.288 TFEU, legal, legislative and non-legislative acts  No: proposals, non-binding measures, acts of the Member States o Needs to be an act of institutions Non-privileged applicant - Procedural (legal standing), subpara.4 o Act addressed to that person (1st alternative) o Act of direct and individual concern (2nd alternative) o Regulatory act of direct concern and entails no implementing measures (3rd alternative) o Time-limit according to Art.263 (subpara.5) TFEU: 2 months - Substantial (legal grounds), subpara.2 o Examples Art.263.2 TFEU o Infringement of higher ranking norms • Legal standing (Art. 263(4) TFEU) • Natural or legal persons can only challenge certain challengeable acts (Locus standi/legal standing) o Act addressed to person (Decision), 1st Alternative o Act of direct and individual concern (Decision to someone else or Regulation), 2nd Alternative o Regulatory act of direct concern and does not require further implementing measures (Commission Decision or Commission Regulation by EU), 3rd alternative 1st alternative: Direct actions: act of annulment • Act addressed to that person - Decision o Always individually addressed o No further check: there is legal standing 2nd Alternative: Act of direct and individual concern - Definition of direct concern: o Directly affected and no discretion (Inuit or Microban case) o When it leaves the MS no real discretion in implementation (Regulation yes, Directive not) o When contested act is capable of producing effects on the applicant’s legal position - Definition of individual concern: Plaumann criteria o Someone fulfils certain characteristics which are peculiar to applicant or by reason of circumstances in which applicant is differentiated from all other persons (closed class of applicants):  As if the act was addressed to applicant individually  Easier to be established for a decision than a regulation (legislative act) Plaumann case criteria: • Closed class • Adversely affected specific rights of the applicant or its members (only one example: Codorníu case) • Union institution obliged to take account of applicant’s specific circumstances • Business interests or legal interests not sufficient: this is relevant for direct concern, but not for individual concern 3rd alternative: Regulatory act of direct concern and does not require further implementing measures • Definition of this kind of act: - Act of general application which is not a legislative act - Direct concern to applicant: o directly affect the legal situation of the individual and it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules - No further implementing measures necessary for this commission regulation o Thereby avoiding the situation that a person has to infringe the law to get access to court (Jégo-Quére case) o Immediate consequence on applicant (Microban case) o Implementing measures covers EU and national measures (Telefónica) Why was this third alternative added? - Background pre-Lisbon and case law • Restrictive interpretation of Plaumann • AG Jacobs in UPA case and General Court in Jego-Quéré critical of this Plaumann doctrine: too restrictive and problematic in light of legal review principle - Post-Lisbon: case law definining regulatory act and conditions of application (Inuit case for instance) Pre-Lisbon challenging the Plaumann doctrine and individual concern: JegoQuéré and UPA cases - Why critical? Otherwise no effective legal protection, Art.267 TFEU not possible due to lack of national implementation measure (when Regulation is involved) - GC Jego-Quéré ruling: sufficient when it effects the company’s legal position by restricting its rights or imposing obligation on it GC Jégo-Quéré case (2004) - Fishing company Jégo-Quéré from France which operated on a regular basis in the waters of the south of Ireland, owned four vessels - It brought an action against Regulation 1162/2001: it aimed to protect fishing stock, only company which could handle the waters of southern Ireland (nowadays would be adopted as Commission Regulation and regulatory act) - Reg. could not be challenged via Art.234 (now Art.267 TFEU) because of a regulation and no implementing measures by national authorities required and Art.288 (for damages, now Art.340 TFEU) did not help, this was a different claim - GC: under these circumstances, the strict interpretation on the notion of a person individually concerned must be reconsidered - And applicant right of effective remedy under ECHR - However, CJEU (second instance): No - even if only this company is concerned, no individual concern Ruling (pre-Lisbon) Also, CJEU reconfirmed the Plaumann criteria in the case Unión de Pequenos Agricultores (UPA, 2002) and therefore rejected GC suggestions. o Plaumann case law applies o Only Treaty amendment can change legal standing of individuals GC ruling Inuit Case T-18/10 - Regulation (legislative act) adopted on the trade in seal products (establishing harmonised rules concerning the placing on the market), it bans products in principle with the exception of seal fur hunted by Inuit - Regulation adopted in the legislative procedure - Different traders and hunters’ groups (Canadian Eskimos, Fur Institute of Canada, Canadian seal marketing Group i.a.) attack this regulation (legislative act), claimed regulation was regulatory act due to its general application Ruling (post-Lisbon) - Contested regulation is a legislative act o process of adoption decisive - Direct concern of applicants? o Direct concern: directly affect his legal position and no discretion left for the addressees of that measure, no application of other intermediate rules o Certain applicants such as seal hunters and trappers of Inuit origin or Fur Institute of Canada do not place seal products on EU market - no direct concern - Other applicants such as Canadian Seal Marketing Group have direct concern - But also, individual concern?  Do not fulfill Plaumann criteria (do not distinguish themselves individually in the same way as the addressee of a decision + cannot explain why the contested regulation affects them by reason of certain attributes peculiar to them or by reason of a factual situation)  No individual concern This was appealed CJEU (Grand chamber) C-581/11 - Confirms definition of regulatory act by GC - Confirms Plaumann conditions relevant for interpretation of individual concern - No breach of Art.47 Charter (right of effective remedy and fair trial) still Art.277 TFEU and 267 TFEU claims available Article 263(4) TFEU: against which acts can the individual act? Important definitions and case law - Regulatory act: not adopted in the legislative procedure (Inuit case), non-legislative act of general application (can be also decision - such as Decision addressed to MS (‘commission decision directed to all member states’): produces effect to categories of persons; (Microban) - Direct concern: must directly affect the legal situation of the individual and must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic (Inuit or Regione Siciliana cases) - Individual concern: Plaumann criteria, member of a closed class - No further implementing measures: Immediate consequence without implementing EU or national measures (Microban, Telefonica, T&L Sugars) Act of annulment - grounds of review: Will the claim be successful? - Reasons for the review/annulment - Hierarchy of binding norms to be respected: to be annulled if it contravenes higher ranking rules/law - Grounds (examples given in Art.263 subpara.2 TFEU): 1. Lack of competence o Substantive lack of competence  Lack of competence of Union or lack of competence in legislation-making Delegation of powers to international organisations or agencies mandated, balance of powers must be respected 2. Infringement of an essential procedural requirement o Enable the legality of the act to be reviewed or expresses fundamental institutional rule. Examples of ‘essential procedural provisions’: — Duty to give reasons, Art.296 TFEU — Requirement to consult: consultation of Economic and Social Committee or Committee of Regions — Consulting EP — Also, internal rules of procedures could be relevant — Individual: right to be heard in competition law cases 3. Infringement of the Treaties and any rule of law relating to its application o Treaties (TEU and TFEU), protocols annexed, accession treaties and acts, international agreements + other binding provisions of the Union legal order o Forms:  Misapplication of the law or  Error in determining the factual basis on which the application is founded 4. Misuse of power o Use of power for purposes other than those on which it was granted • Example: unlawful choice of a decision-making procedure  Direct action: Time-limit for actions - Two months after publication of measure 263 (5) TFEU - For publication and requirements see Art.297 TFEU Act of annulment: Consequence of successful action - Act will be declared void (Art.264 TFEU): partially or completely - Ex tunc (from the day legal measure came into force) - Erga omnes effect (for everyone) - All necessary measures must be taken, Art.266 TFEU - Possible claim for damages, Art.340 TFEU Action for failure to act, Art.265 TFEU Subject-matter: omission to take a given decision was unlawful - Reviewable omissions o Failure of making a decision because duty to act o And within two months unsuccessfully called upon to act - Duty to act: institutions under the legal obligation to act - Act capable of having legal effects • Privileged applicants - MS and institutions of EU against EP, Council and Commission • Non-privileged applicants - Failed to address that person with any act other than a recommendation or an opinion  Case law: broadened with argument that Art.263 has to be seen together with Art.265 TFEU (as counterpart) - Directly and individually concerned with an act which the institution failed to adopt and which ought to have been addressed to him or her - Addressed to another person or Member State but non-privileged would have been directly and individually concerned by it Week 6 Legal review, fundamental rights and institutional principles Annulment Procedure - Article 263 • Privileged applicant (institutions, MS) • Procedural (legal standing) - EU act intending to produce legal effect. - Time-limit: 263 TFEU 2 months • Substantial (legal grounds) - Examples Art.263.2 TFEU - Infringement of higher ranking norms (is higher ranking EU law breached? (whether claim successful) • Non-privileged applicant • Procedural (legal standing) - Depending on act the applicant attacks - 3 alternatives in Art.263 subpara.4 o Act addresses to them as a person  Legal standing o Any other act  Legislative act – direct concern and individual concern  Regulatory act – direct concern and no further implementing measures - Time-limit 263.5 TFEU 2 months • Substantial (legal grounds) - Examples Art.263.2 TFEU - Infringement of higher ranking norms Important definitions: • Regulatory act: not adopted in the legislative procedure, act of general application (Inuit case) • Direct concern: directly affected in legal position and no discretion left for addressee (Inuit) • Individual concern: (Plaumann criteria) member of a closed class • No further implementing measures: (Microban, Telefoníca) Immediate consequences without implementing EU or national measures Union liability: Art.340 TFEU • Conditions identical to state liability (ie manifest or sufficiently serious breach by EU; of a EU rule of law which confers rights on the individual; there is a causal link between the breach and the damage) - Streamlined with Brasserie du Pecheur conditions (state liability of MS) by the Bergaderm case (C-352/98P) - Separate claim solely to obtain financial compensation - Decided by General Court • Bergaderm case: The same test applies for Art.340 TFEU as for MS state liability • Examples of enforceable EU law rights - non-discrimination principle - proportionality principle - protection of property (human rights, EU Fundamental Rights Charter) Art.340 TFEU: manifest or sufficiently serious breach (condition 2) • Circumstances/factors to consider - Clarity and precision of the EU rule breached, - Infringement caused intentionally or unintentionally - Error of law either excusable or inexcusable • Illegal regulation not automatically sufficiently serious breach (according to case law Bayerische HNL Cases 83 and 94/76 and 4,15 and 50/77) • GC has to balance conflicting interests in providing for flexibity in decision/legislation-making and protecting individuals from suffering losses (restrictive approach) The EU: TEU values and principles - Article 2 TFEU values: respect for human rights, democracy, rule of law, equality + EU Charter (Art. 6 TEU) - Sincere cooperation, Article 4(3) TEU - Principle of attributed competences (conferral), Article 5(1) and (2) TEU - Institutional balance between institutions, Article 12(2) TEU - Subsidiarity and proportionality principle (Article 5(3) and (4) TEU - Direct effect and supremacy of EU law (unwritten principles developed through case law) Rights, principles and values - Institutional principles: principles between institutions - Fundamental rights and freedoms: rights for the individuals including the EU Charter of Fundamental Rights - Fundamental rights and principles: such as direct effect and supremacy - EU values (term used in Art. 2 and 3 TEU) and also includes such principles as the rule of law and democracy and human rights Institutional principles, fundamental rights and principles: Who’s the addressee and in which legal relations? 1. Between EU institutions - Institutional balance, Art. 13 (2) TEU - Sincere cooperation (Art. 4(3) TEU) 2. Between EU and MS - Autonomous legal order, supremacy of EU law (against MS) - Sincere cooperation (against MS) - Attribution of competences (against EU) - Subsidiarity and proportionality (against EU) 3. Citizens against EU/MS - Direct effect of EU law (EU/MS) - Supremacy (MS) - Principle of transparency (EU) - Proportionality/rule of law (EU) - Protection of human rights (EU/MS) EU institutions • Sincere cooperation, Art. 4(3) TEU - Applies to the relations between EU institutions (but also between MS and EU) - It concerns o All appropriate measures to ensure the fulfillment of EU obligations o Abstain from any measure which might jeopardize the attainment of Treaty objectives - Indirect effect, state liability claims based on it • Institutional balance, Art.13 (2) TEU with reference to sincere cooperation - No separation of powers but attribution of certain specific powers to institutions o Division between judicial, executive and legislative powers but decisive is the policy divide  CFSP power balance different than EMU or CCP powers divide and actors  Checks and balances  EU institutions assigned with specific powers by primary law provisions Principles between EU and MS - EU autonomy and supremacy - Sincere cooperation, Art.4 (3) TEU - Attribution of powers/competences, Art.5 (1), (2) TEU - Subsidiarity and proportionality, Art.5 (3) and (4) TEU EU autonomy and supremacy •Van Gend and Loos, Costa v. ENEL judgments o Autonomous legal order o Supremacy/primacy of EU law - Superseding national constitutional order and conflicting national law (see case Internationale Handelsgesellschaft) - Direct effect: enforceable rights of individuals based on EU law EU as a constitutional system based on common principles • Case Les Verts 294/83 - Autonomous legal order - Executing effective legal order binding on MS and individuals - Complete legal review system Attributed powers, Art. 5 (1 and 2) TEU - EU needs to justify its action when initiating legislation - Connected with the principle of the rule of law and democracy - Principles of subsidiarity and proportionality relevant in the implementation of assigned powers Proportionality and subsidiarity Art. 5 (3 and 4) TEU Proportionality - closely connected to the rule of law - limits the powers to act of EU and MS Subsidiarity - avoidance of centralisation, restricts the exercise power  Protocol on the application of the principles of subsidiarity and proportionality Proportionality test: Questions - Is the measure suitable to achieve a legitimate aim? - Is the measure necessary to achieve that - aim, are less restrictive means available? - Does the measure have an excessive effect on the applicant‘s interests? Subsidiarity: different aspects • General political value to take decisions as closest as possible to the citizen • EU has to respect national identities as stipulated in Art.4 (2) TEU • Subsidiarity as a power-check for the exercise of competences (Art.5 (3) TEU) - Not applied on exclusive competences - Issue has transnational aspects and MS acting alone harm EU rights (competition, internal market) subsidiarity check is passed - Limited review by the Court on breaches of subsidiarity (so far only analyzed in the context of Art.114 TFEU but role of national parliaments strengthened) Citizens against EU/MS - Direct effect of EU law (EU/MS) - Supremacy of EU law (MS) Principle of transparency (EU) - Proportionality and the rule of law principle (EU) - Human rights protection (EU/MS) Direct effect of EU law - Art.288 (2) TFEU clarifies the direct application/direct effect of regulations - Direct effect of primary law: Fundamental freedoms (esp. non-discrimination, Art.45 TFEU) Case law: Van Gend and Loos - Direct effect of directives under certain circumstances (non-implementation, incorrect implementation, precise and clear) see case law Becker and Marks and Spencer Rights of EU citizens • Principle of transparency, Art.15 (3) TEU • Reinforcement of democratic legitimacy, accession of Nordic countries and changes through Amsterdam Treaty • Gives EU citizens access to EU documents • • Necessity of sound management and good administration Can be denied on grounds of public interest, interest of the individual, financial interest of the EU • Case law stresses importance in the legislative process for legitimacy • Proportionality principle • Restrictions on fundamental rights can only be imposed when in the interest of general public + restrictions do not interfere intolerably with the rights protected EU law and the citizen: Protection of human rights No coherent system of protection at the beginning of the EC Treaty • Pressure by national constitutional courts (since 1970s German and Italian constitutional court) to have human rights protection when adopting EC secondary law (regulations or directives) EU human rights protection: The beginning CJEU: Stauder case (1969), Nold (1974), Rutili (1975) • Human rights as fundamental principles of EU law and CJEU refers since early 1974 to European Convention on Human Rights – ECHR (Council of Europe), • ECHR forms part of general principles common to all the Member States, now Art.6 (3) TEU EU human rights protection 1999 Charter of Fundamental Rights of the European Union (EUCFR) • At the beginning not legally binding but taken into consideration as soft law before Lisbon Treaty (in judgments) • With the CT integrated as second part - legally binding set of modern fundamental and social rights • Art.6 (1) TEU: EU Charter of Fundamental Rights (EUCFR) of the EU legally binding and same legal status but separate document (see also Art.52 EUCFR) EU Charter: Substance and structure - Fundamental rights and freedoms + basic procedural rights such as found in ECHR and constitutions MS: Chapter I, II, III, VI - Fundamental rights of Union‘s citizens: Chapter V - Economic and social rights of the 1961 (CoE) European Social Charter and the 1989 EU - Charter of the Fundamental Rights of workers: Chapter IV - Scope defined by Art.51 EUCFR: Charter binding to whom? Relevant for Union institutions and MS when implementing Union law - Arts.52 + 53 EUCFR: limits to fundamental rights, definition rights + principles, relationship with ECHR Explanations relating to the Charter of Fundamental Rights • Convention document explaining case law, relationship with ECHR and provisions on scope of EU Charter • No status of binding law but tool of interpretation Human rights protection standards in the EU • EU Charter of Fundamental Rights Art. 6 (1) TEU • Accession to the ECHR by EU (in the future), Art. 6 (2) TEU • ECHR/national constitutional traditions of the MS (as general principles introduced by case law), Art.6 (3) TEU EU human rights When do they apply and to whom do they apply? • Application and implementation of EU law • on EU institutions, agencies and bodies • on EU Member States and under what circumstances? • See Charter Art.51 (implementing EU law) and Wachauf case law, see next slide Art.51 EU Charter Scope of application: reflecting case law CJEU before - Interpret provisions of EU treaties and EU legislation - MS derogate from EU rules (public policy) or MS act as EU agents or implement EU law - MS implement/apply EU rules (such as Regulations or Directives) and bound by EU human rights (case law such as Wachauf) Who is bound? - Union institutions and bodies - MS acting within the scope of EU law o apply Treaty norms, Regulation and implement Directives - Derogation by MS on fundamental freedoms (public policy exception) UK/Poland Protocol + proposed accession Czech Republic Protocol (no.30) on application of the Charter of Fundamental Rights: the ˝Opt-out” Protocol (Blackstone, 2012-2013, pp.143) + Art.52 (5) EUCFR text in Charter included (see next slide) Protocol. No 30 to the Charter Legally speaking an opt-out or just a clarification? • Two readings possible but no opt-out: o Declaratory: Charter only applies to MS implementing EU law  Already stated in Art.51 (1) EUCFR  Protocol cannot exempt these countries from human rights standards already recognised by EU case law + belong to general principles of law under Art.6 (3) TEU • Case law post-Lisbon: No opt-out see AG in Case 411/10 and CJEU in joined cases C-411/10 and 493/10 Art.1 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.