EU law. 2. Curtiz. lecture in Trinidad

Standard

the court can impose an interim order straight after the case

allows the court to be flexible

only a few cases come to court there are 2 important enforcement mechanisms that help improve the effectiveness of article 258 and 259

this is flexible.

conditions that the court can impose them are strict

the second is the ability for the court to impose fines

as with any accusation there are defences to article 258

1. -6 defences

2. -force majeure.

  • 3. political or economic difficulties
  • 4. necessity
  • 5. reciprocity
  • 6. threat to public order
  • conflicting national laws are not applied

breach of EU law. can be problem or essay

============

force majeure

chance occurrence. unavoidable accident. act of God

the commission v Belgium – Belgian wood case

1970.. ECR 237.

a draft law to revise a disputed scheme of tax on imported wood. Belgium accepted this was discriminatory in nature.

disillusion of Belgian Parliement the law lapsed. they later tried to revive it. they claimed it was force majeure.

according to CJ EU – liability of the state arises no matter which agency of the state is responsible by inaction or failure to fulfill obligation even in the case of a constitutionally independent organ

 

==============

BOMB – if you pleaded this as a reason

favourite country for commission. Commission v Italy 1985

ECR 2629

data processing needed in admin was bombed. Places needed for this was blown up

the ECJ said this could be force majeure but the bomb went off 5 years earlier

=================

POLITICAL OR ECONOMIC DIFFICULTIES

Commission v UK re Tacographs. 1979

trade union difficulties are rare for the court to accept

not a good justification

it cannot be a reason to stop from implementing EU law as obliged

====================

NECESSITY

commission v Italy . Ban on imports of pork. 1961 case

ECR 317

similar arguments to those in powdered milk products that Italy had also been convicted of

there had been a ban on beef

bans are v rarely accepted

====================

RECIPROCITY

Commission v Belgium and Luxembourg. 1963

judgment: ECJ said they were often rejecting this line of argument

the breach of the treaty would have been legal but for the commission’s failure to implement it .

================

 

THREAT TO PUBLIC ORDER

cOMMIssion against France. Spanish strawberries case

=============

FINES

there are proportionate fines

according to size of population

wealth of country

duration of the breach

and severity of the breach

the fine is a punishment.

commission v France  (2005)- court imposed lump sum and periodic fine more than suggested by commission.

three common market law reports 3.30

commission v Italy 2001. The court refused to fine Italy because Italy had corrected most of the breach

========

259 article TFEU

Member states action/

commission has the discretion to initiate an action against a state

one state may bring another state to ECJ

the state must first inform the commission.

once they have done that the commission shall deliver a reasoned opinion

after each state has been given chance to submit their own observations

done orally and in writing

if the commission has not delivered an opinion within 3 months the absence of such an opinion shall not prevent the complainant state from bringing the action to the C J E U

such acitons are rare

commission v France 1979 –

commission v France 2000. Ban on British beef

 

===========

ARTICLE 263 TFEU

council of the regions

european central powers – have limited powers.


right to challenge an EU action

natural and legal persons – have standing but this is limited. If an individual

decision must be personally addressed to you or you must be personally affected/

go to general court

also

some reforms to article 263 TFEU. subsection 1. those Union acts which are intended to produce legal effects with 3rd parties something that did not occur in the old judicial review

European Parliament against Council – Chernobyl case

70/99

what is direct and individual concern? That the measure separates me from many classes of people. Impacts my business

direct AND individual concern are separate issues

both must be proven

there may be a connection between the plaintiff and the person to whom the decision is addressed

Plaumann v COmmission 1963

Topfer v Commission 1965

Piraiki Patraiki v commission 1985

jego quere v commission  2002

union de pequernos agricoltures 2002

what is direct concern? You need to be in the action

================

article 263 legal basis to challenge

 

===============

ARTICLE 263 TFEU

privileged and=  locus standi for

member states

commission, EU parl, council

ECB. court of auditors, council of the regions  – semi-privileged. more limited powers. they must be affected by such measures

———————————–

non privileged applicants.

 

—————-

article 263 to make a challenge

substantive grounds to mount a challenge for judicial review

– lack of competence

  • irrationality
  • inegality
  • procedural wrongdoing
  • infringement of an essential procedural requirement
  • infringement of the treaty or other rule of law
  • misuse of power

 

for any institution to make a law the must ensure they have the authority to do so -from treaty or another source of competence

commission has suggested that council can do something but this might turn out to be wrong

or earlier in the treaties – for the council to pass a measure they needed the Parliament to comment on it but then council acted without waiting for this comment

 

==================

LACK OF COMPETENCE

ultra vires. like public law

cases – evidence is needed

france v commission. 327/91

  • the commission was challenged by France. on legality of a measure that they had negotiated with USA ABOUT competition
  • ECJ held that the commission did have the right to negotiate the final decision should have been left to the council and not the commission

France won

 

laboratories servier v commission 2000

  • general court – used to be c of first instance – annulled a decision by commission which has authorised the marketing of some medicinal products
  • this was because the measure itself was contested and would affect public policy yet to be determined
  • successful challenge
  • ====================

 

INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT

1.  a formal breach of an essential requirement

2. an informal breach  ditto

article 296

where treaties do not specify this type of act to be adopted the institutions are selected on a case by case basis in compliance with the principle of proportionality

EU institutions have to cite their legal basis for their acts

eugenio franco v commission 1994

the court said that  ”there is an obligation on institutions that they state not only the nature of the decision but also the legal basis for the decision.”

==============

TMPA was given a 10 year exemption from competition policy under article 101

the commission unilaterally withdrew this concession and gave another one

the ECJ said the General Court said this was  breach of the right to be heard

thereforE it was a breach of the courts principles

effect – annulled the decision

==============

MISUSE OF POWERS

Boc v Commission

chinese mushrooms case. 1971

this was decided on the basis of proportionality . evidence that there was collusion between German govt and commission in reaching a decision

institutional act – prove direct concern.

you want damages if you win or decision reversed.

under article 264

the court shall declare the act void

institutions must ensure they obey the orders of the court and take remedial action

=======================

article 265

if an institution does not comply with article 258 then proceedings under article 265 for inaction of a union institution, body, office or agency can take place

there are privileged and non privileged applicants

what is the article that the commission would use to get enforcement proceedings against a state? 102

an article should use to do it?

article that if you have gone to court and they cannot decided what to do  what procedure can they use? 267 or act claire

article 277 – indirect challenge

indirect action may be taken to challenge the legality of an act by an institution remains outside article 263 proceedings

there are 3 points

legality of act is paramount

challenging of proposed  union act

  • they do not have the correct legal grounds for doing this
  •  raise an article 277 in any court proceedings domestic or C J E U
  • act must be of general application not a directive but a regulation

you cannot challenge a treaty article

 

challenge secondary law

preliminary ruling to challenge directives

===========================

FUNDAMENTAL RIGHTS

does the EU possess a general competence to make HR laws?

No.

C F R E U

Since Lisbon

this has become more important. Because C F R E U is justiciable

previously all members of EU have signed E Convention H R. they have common traditions. The court said that many times. There are 28 nations

why is convention not part of EU law. that was original plan – make E Convention HR part of EU law

the French torpedoed. there has been an incremental approach

none of treaties authorised HR laws

HR are in many EU laws

since Lisbon  – first time charter appeared was Nice

hastily put together charter

important bits of charter preamble

the peoples of Europe in creating an ever closer union between them are resolved to create a common future based on common values … founded on universal values of freedom solidarity, the principle of democracy and the rule of law , placing the individual at the centre…. creating an area of freedom, security and justice… re affirms the principle of subsidiarity… constitutional traditions and international obligations of the member states… social charter

ECJ opinion 2013  – look at Charter and not certain it is compatible with EU law

since Lisbon they have acceded to E Court HR as v persuasive

E Court HR is not totally binding

EU uses case law

the EU promotes HR and fundamental rights

we have evidence of that in many articles. in article 352 TFEU it grants institutions residual power to enact laws

does not mention HR

EU negotiates with many lands on trade. HR are part of it

EU does not trade with those who abuse rights – bull

article 352 –

article 2 of TEU states that EU is founded on common principles including HR

article 3 says EU can promote values

article 19 says EU will tackle discrimination

article 95 saiD eu Can include data protection

EU promotes its ideals when it signs deals\

HR and fundamental rights are similar

C F R H R goes beyond HR

charter article 1 human dignity

 

article 2 right to life

article 3 integrity of person

article 4 no torture

article 4 no slavery

family life

article 8  – personal data

right to be forgotten

tech companies do not like it

C F R E U  – social and economic rights

article 11  – freedom of arts and science, right to education, right to own property, right to asylum

Lisbon put article 6 into TEU – charter is in there

3 sources of HR

where does this tradition comes from – number 1 E C ourt HR

number 2  common tradition among EU states

3. general principles

they are much the same

why does EU need charter?

EU is more than an economic group

raise quality of living as well as standard of living

pioneers of EU wanted it to be more than economics

E Convention HR does not take precedence of EU law

C F R E U showed intention to bolster rights. aim was to include it in the constitution

December 2009 charter became effective

EU institutions get minimum standards

when EU law is applied take account of the charter

there are no new laws or causes of action

when exercising EU law one must take Charter into account. margin of appreciation

if you breach fundamental rights you can be brought to court

2011 report on charter by Ann McIntosh MP

decisive steps have been taken towards an EU of fundamental rights. Euro Parl and council have made promotion of fundamental rights one of their priorities. now there is a member of the commission with specific responsibility for the promotion of fundamental rights. Lisbon extended co decision and removed a structure. it gave the ECJ general responsibility for HR. It confirmed that HR is now at the heart of EU’s external action

 

when national legislation transposes a union directive in a way contrary to fundamental rights there can be action

when public authority applies union law contrary to fundamental rights there can be action

when a final decision of a national court applies or interprets Union law in a way contrary to fundamental rights there can be an action

article 6. 2 Lisbon – the EU shall acceded to the ECHR

as EU stands at present. EU and its institutions are not directly bound

judgments of E Court HR are followed by UK courts

all EU courts and national courts when looking at HR or fundamental rights they must follows E court HR

ECJ has built up case law on fundamental laws

E Court of HR may look to ECJ in future

EU promotes fundamental rights in every way

article 18 of TFEU

in citizenship article 20 to 25

article 45 free movement

article 7 TEU allows EU to bring sanctions for abuse of principles creation of fundamental rights agency

there is no doubt that this matters

cases –

stork v high authority 1959

geitling v high authority

court could not examine a complaint which touched issues of Grundgesetz

side stepped the matter

this came back.

storer and the city of  Aar 1969

fundamental rights are in German constitutional law. EU law must prevail

fundamental rights are part of common tradition among member states . EU law and fund rights come form same tradition

Germans there was no real problem with EU law

ECJ respects the German traditions.

”fund rights were common among member nations ” Storer – include protection of fund rights

mold v commission 1974

ECJ held   – fund rights form an integral part of the general principles of law. in safeguarding these rights the court is bound to draw from the constitutional traditions of the states. it cannot uphold measures which are incompatible with fundamental rights even if in constitutions of the rights

 

article 52  TFEU – guarantees rights by ECHR

allows for growth of fund rights

charter is the beginning no the end

 

when does charter apply

only when EU law is concerned

EU law does not cover some areas

when a member state is the agent of the EU

this would happen when a directive is issued and the state acts as an agent

when they do so they have to respect  fund rights

wauchauf –

 

euro parl – v council 2006 – about attempted annulment because of failure to respect fund rights

when a member state derogates from EU law

free movement of goods. you can depart from binding effect of article 45 cassis de dijon

you can be outside of article 34.

there are derogations, official authority,

you must justify it by reference to C F R E U

article 51 charter  – addressed to EU bodies with regard to subsidiarity

Bosphorus case – look at

ERT 1989 case

acquis communcaire

you must subscribe to EU values to join.

Fransson case ..

Doughty chambers – lisbon makes HR PROTection as important as consolidation of the union. guarantee that market is no longer overriding objective

 

 

 

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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