How to challenge a national law which implements EC law?

1. How to challenge a national law which implements EC law? Siniša Rodin

2. Basis for challenge Art. 10 TEC • Member States shall take all appropriatemeasures, whether general or particular, to ensure fulfilment ofthe obligations arising out of this Treaty or resulting from action taken by the institutions of theCommunity. They shall facilitate the achievement of the Community's tasks. • They shall abstain from any measure which could jeopardise the attainment of the objectives of thisTreaty.

3. Questions !!! • Who would like to challenge national implementing law? • Why to challenge national implementing law? • How to challenge national implementing law? • Which legal avenues to use? • How to argue?

4. Who and why? • One-time-shooters • To protect individual right based in EC law abbridged by national measure • Repeat players • To obtain favorable interpretation of law in future cases • National courts • To protect “objective” legal order (Hauer) • To “flex muscle” (Costa, Simmenthal) • To “buy insurance policy” (Köbler) • Commission • To get the job done • Member States • Different policy reasons

5. Which legal avenues to use?(In order of preference) • One-time-shooters • National courts • Preliminary rulings • Repeat players • Test case preliminary rulings (234 TEC) • Lobbying Commission • National courts • Courts • Preliminary rulings • Commission • Infringement proceedings (227 TEC) • Member States • Lobby Commission to institute infringement proceedings (if deniable) • Infringement proceedings (228 TEC)

6. OTS’s primary goal is protection of individual rights • Convince national court to interpret national law in accordance with EC law • Claim EC law based individual right is abbridged by national measure (Van Duyn, Defrenne, Marshall) • Claim damages for violation of EC law based right • Convince national court to institute 234 TEC procedure.

7. Convince national court to interpret national law “Europarechtfreundlich” and efficientlyVon Colson und Kamman (Case 14/83) • “... in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result [...]" • Although directive No 76/207/EEC leaves the member states free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that… it is effective and that it has a deterrent effect… • Potential problem: transposition track in legislative process?!

8. Ask national court to enforce EC law based right, or else... • As a rule EC law is supreme (Costa) • Caveat: human rights considerations apply! Schmidberger (Case C-112/00) • Balancing: “... it is necessary to determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights.”

9. Francovich (Case C-6&9/90) the directive in question must be intended to confer rights on individuals; the content of the rights must be clearly spelt out in the directive; there must be a causal link between the failure to implement the directive and the loss suffered. Brasserie (Case C-46/93) the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; there must be a direct causal link between the act/omission and the damage. Claim damages in case of non-implementation or wrong implementation

10. Sufficiently serious breach AG Tesauro in Telecom (Case 392/93) • clear, precise obligations have not been complied with; • there is interpretative guidance from the ECJ on ‘doubtful legal situations’; • the national authorities’ interpretation is ‘manifestly wrong’.

11. Make court think twiceMisapplication can be costlyKöbler (Case C-224/01) • The principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties.

12. Convince national court to institute preliminary rulings procedure • Validity of national implementing measure depends on interpretation of EC law • ECJ’s interpretation may require change or re-interpretation of national law • Court may have self-interest to ask ECJ • To protect “objective” legal order (Hauer) • To “flex muscle” (Costa, Simmenthal) • To “buy insurance policy” (Köbler)

13. RP’s main goal is to obtain favorable interpretation of law • RP’s can afford to lose a case • RP’s have power to engage in strategic litigation (e.g. multiple motions for 234 reference) • Uniform application of EC law is function of Art. 234 procedure • Getting favorable interpretation from the ECJ “pays back” investment in litigation • RP’s have means to lobby Commission to institute infringement proceedings

14. National legal avenues • Traditional avenues • abstract constitutional review • exceptio illegalitatis • lex superior under national constitution • EU law generated avenues • Indirect effect / favor conventionis / “Europarechtfreundliche Auslegung” • Disapplication of incompatible national law (Costa) • Damages (Francovich, Köbler)

15. Law is defined not by its black letter but by its meaning;Textual positivism; Definition of what the law is (meaning of law) is a function of interaction of multiple actors;Meaning of law is defined from the top down; Discoursive definition of law results in "politicization" of law by bringing regulatory purposes and policies into legal analysis;Authoritarian definition of law favors recourse to legal concepts; Participants to the discourse have different strenghts and faculties to contribute to the definition of law;Lack of discourse (scarce publication of cases, criminal law restrictions on interpretation); Once defined, law is subject to permanent re-interpretation through legal and social discourse;Law is understood as objective and “eternal” truth interpreted by the “illuminated”. What does legal culture have to do with it?Pragmatic v. Traditional legal culture

16. How to argue • When challenging implementing law look at its meaning! • To discover meaning look at the legal discourse! • Look into EU policy that a directive is based upon. If national law is not implementing the policy or is not effective it can be challenged! • Look into positions of the most influential actors of legal discourse. Do not forget the ECJ! • Always try to convince a judge to accept your interpretation of law! Law is subject to re-interpretation.