Advanced EU Law

1. Advanced EU Law Court of Justice of the European Union’s rulings 4th lecture, 11 November 2013

2. Role of the Court of Justice of the European Union (art. 19 TUE) • reviews the legality of the acts of the institutions of the European Union • ensures that the Member States comply with obligations under the Treaties, and • interprets European Union law at the request of the national courts and tribunals, in order to ensure uniformity of the EU law in all countries

3. Kind of Rulings before the CJEU • actions for annulment – against EU laws allegedly violating the EU treaties or fundamental rights • actions for failure to act– against EU institutions for failure to make decisions required of them • Infringement procedure– brought against EU Member States for not applying EU law correctly • direct actionsfor compensation– brought by individuals, companies or organisations against EU decisions or actions • requests for a preliminary ruling – when national courts ask the Court of Justice to interpret an issue of EU law

4. Direct and indirect control Direct control Indirect control When the Court is requested by a national court to interpret or assess the validity of an act of the Union (request for a preliminary ruling) • When the Court directly checks on the legitimacy or lack of action of the EU and ends with a decision of the Court ( Infringement procedure, action for failure to act, action for annulment, action for compensation)

5. 1. Action for annulment • If any EU country, the Council, the Commission or the Parliament thinks that a particular EU act (‘law ’) is illegal, it may ask the Court to annul it • ‘Actions for annulment’ can also be used by private individuals who wish the Court to annul a given act because it directly and adversely affects them as individuals • If the Court finds the law in question was not correctly adopted or is not correctly based on the Treaties, it may declare the act null and void

6. 1. Action for annulment: acts • The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties • It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties

7. 1. Action for annulment: who can bring the action • a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers • Any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures (direct effect)

8. 1. Effects of the Action for annulment: • If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void (or null)

9. Exception for requesting inapplicability • This exception grants an additional possibility to declare the inapplicability (and not to nullify) of an act of general application (art. 277 TFEU) • Notwithstanding the expiry of the period to bring the action for annulment, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at stake, plead the grounds specified for the annulment action, in order to invoke before the Court of Justice of the European Union the inapplicability of that act • It is not necessary to have a preliminary ruling assessing the illegitimacy of the act, however it is important to show the causality nexus between the contested act and the act at stake

10. 2. Action for failure to act • The Treaties requires the Parliament, the Council and the Commission to take certain decisions in given cases • If they fail to do so, Member States, other EU institutions and (under certain conditions) individuals or companies can lodge a complaint with the Court for their failure to act • The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months from being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.

11. 2. Effects of the decision on the action for failure to act • The institution whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice; • Individuals or legal persons who suffered damages deriving from the omitted action of the institution can lodge a claim for compensation

12. 3. Procedure of infringement • It is a proceeding for failure to fulfil an obligation against a Member State, which can be proposed by the Commission or by a Member State against another Member State • The Commission can normally start this proceeding when it thinks that a member state is failing to fulfil its obligations under EU law (art. 258 and art. 259 TFEU) • Even when the procedure is initiated by a Member State, it is always the Commission to carry on the action. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it by a Member State, the absence of such opinion shall not prevent the matter from being brought before the Court directly by the Member State

13. 3. Phases of the procedure of infringement • If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it delivers a letter in which identifies the alleged violations (i.e.: lack of transposition of a directive in due time) • If the Member State does not reply or does not comply with the requests, the Commission delivers a reasoned opinion on the matter • If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. • The Court investigates the allegations and gives its judgment.

14. 3. Procedure of infringement: effects • If the country is found to be at fault, it is required to take the necessary measures to comply with the judgment of the Court within a specific deadline • If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment • New element introduced by the Treaty of Lisbon: the Commission can ask the payment of a lump sum or penalty already in the first proceeding

15. 4. Direct action: the non-contractual liability of the Union • Any natural or legal person who has suffered damage as a result of the action or inaction of the Community or its staff can bring an action seeking compensation before the General Court • This possibility was not foreseen by the original Treaties, it has been developed by the Court of Justice, from the ‘Francovich Case’ (C-6 e C-9/90, 1991) onwards • Today: art. 340.2 TFEU states that in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties

16. 5. Preliminary ruling procedure(art. 267 TFEU) • The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. However, there is a risk that courts in different countries might interpret EU law in different ways; • To prevent this risk, a ‘preliminary ruling procedure’ exists: if a national court is in doubt about the interpretation or validity of an EU law, it may – and sometimes must – ask the Court of Justice for advice; • Questions referred to the Court may deal with: - the interpretation of the Treaties; - the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.

17. Preliminary ruling procedure(art. 267 TFEU) • Only national courts or tribunals can refer to the Court of Justice, individuals cannot • Which court or tribunal car refer to the Court of Justice of the EU? • All national courts (e.g. civil, criminal, administrative or tax courts) • The Constitutional judge can only refer to the Court when he is the judge who decides on the issue, like in the case of a decision concerning the ‘unconstitutionality’ of a law

18. When a judge can or must refer • Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. • Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal must bring the matter before the Court

19. Preliminary ruling procedure: cases • In which cases is there a question to be referred to the Court of Justice of the European Union? • When such a question is raised before any court or tribunal of a Member State, and that court or tribunal considers that a decision on the question is necessary to enable it to give judgment • When any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law

20. Preliminary ruling procedure(art. 267 TFEU) • The ‘acte clair’ doctrine: when the application of EU law is clear there is no need to refer to the Court of Justice [Srl CILFIT, C-283/81]. This doctrine also exempts the judge who (‘must’) refer to the Court. • Power of the ECJ to decline to decide a case: • when the case is hypothetical, • when the question raised is not relevant to the substance of the dispute, • when the legal question is not sufficiently clear • where the facts are insufficiently clear

21. Effect of the ECJ’s decision • When the Court gives its interpretation, the national court must respect and enforce EU law according to the interpretation of the Court • Also the other Member States shall take all initiatives needed to fully comply with such interpretation (loyalty principle) • When the decision concerns the validity of an act: • iIf the act is found to be valid, consequences are limited only to the context of the specific case • If the act is found to be not valid, the act is void or null (as in the case of an action for annulment)

22. Other outcomes of preliminary rulings • Through the preliminary the Court of Justice developed concepts of seminal importance for the development of EU law, such as ‘direct effect’ and ‘supremacy’ • Preliminary rulings are also an indirect way to test the validity of the EU action for conformity with European Union law