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The primacy and effectiveness of EU law

The primacy and effectiveness of EU law. Chiara Favilli Rome 7-8 April 2014. The principle of primacy. Costa 1964 Integrated legal systems Precedence of Community law over earlier conflicting national laws

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The primacy and effectiveness of EU law

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  1. The primacy and effectiveness of EU law Chiara Favilli Rome 7-8 April 2014

  2. The principle of primacy • Costa 1964 • Integratedlegalsystems • Precedence of Community law over earlierconflictingnationallaws • Also over constitutionalruleswithouthaving to refer to nationalConstitutionalCourts • Possiblereferencefor a preliminaryrulingbefore the Court of Justice

  3. Right to refer to the Courts • To disputea EU law thatisconsidered to be vitiated • To actagainst the inactivity of EU institutions • To actagainst the inactivity of States • To claimcompensation for damagecaused by the EU • To interpret/disapply a nationalrule in the light of EU obligations • To claimcompensation for damagecaused by the State

  4. Proceedingsbefore the Court of Justice • Direct • Annulmentproceedings (263 TFEU) • Proceedings for failure to act(265 TFEU) • Proceedings for non-contractualliability (340 TFEU) • Infringementproceedings(258-260 TFEU) • Indirect • Reference for a preliminaryruling(267 TFEU) • On interpretation • On validity

  5. To dispute a EU rulethatisconsidered to be vitiated • Annulmentproceedings • Direct appealto the Court of Justice • Reference for a preliminaryruling • Indirectproceedings: itis the nationaljudgewhorefers to the court

  6. Annulmentproceedings • Entitledsubjects • MemberStates, institutions and EP • Court of Audits, ECB, Committee of the Regions to protecttheirownprerogatives • Natural and legalpersons • Adoptedactsconcerningthem • Directly and individuallyconcerned • Non-enforcedregulatorynormsthatconcernthemdirectly

  7. Natural and legalpersons • Actsadoptedconcerningthem • Targets: decisions • Directly and individuallyconcerned • Directly: Adedycase, 27 November 2012, T-541/10 and T-215/11 • Individually: Plaumancase, 15 July 1963, case 25/62 • Non-enforcedregulatorynormsthatconcernthemdirectly

  8. Referralssubmitted by Associations(Uniónde PequeñosAgricultores, C-50/00, 25 July 2002 ) • Referralssubmitted by associations are entitled to be received in atleastthreetypicalsituations: • When a regulatoryprovisionexpresselyacknowledges a number of proceduralpowers to professionalassociations; • whenthe associationrepresents the interests of enterpriseswhich, in turn, are entitled to act; • when the associationisidentified for the prejudicecaused to itsowninterestsas an association, namelyifitsnegotiator’s position hasbeenprejudiced by the actwhoseannulmentisrequested.

  9. Reference for a preliminaryruling • Indirectproceedings: itis the nationaljudgewhorefers to the Court • To request an opinion on the validity of a EU rule • Itovercomes the limitations of directappeals • Thosewhowereentitled to directreferralcannotrequesta referencefor a preliminaryruling, nor can a judge ex officio

  10. To actagainst the inactivity of EU institutions • Proceedings for failure to act • Direct appeal • Entitledsubjects • Targets • Subjectswho are directly and individuallyconcerned(as in annulmentproceedings)

  11. To claimcompensation of damagecaused by the EU • Proceedings for non-contractualliability • Direct appeal to the Court of Justice • Anyonewhohassuffereddamage by EU institutions/bodies/agencies • Damage • Illegittimateaction of the EU • Causal link • Seriousbreach of a highernorm

  12. To dispute the nationalrule • Referral to the nationaljudge • Preliminary ruling on the interpretation of the EU rule to apply to a nationaljudgment • In case the nationalruleisnotcompliant with the EU rule • Disapplication • Referral to the Constitutional Court

  13. Direct effects and disapplication • Simmenthal 1978 • EU rule, directlyapplicable or producingdirecteffects • Disapplication of earlier or laternational law • IN.CO.GE. ’90 – 1998 • National rule • Neitherinvalidnor non-existentbut • disapplied • The legislator willhave to modify the law and comply with EU obligations • Precedence of anyrulehavingdirecteffects • Costanzo brothers for directives 1989 • Disapplicationalso of nationaladministrativeprovisions • Ciola, 1999 • Precedencealso over constitutionalrules

  14. Lack of directeffects • Referral to the Constitutional Court • Modification of the law • Possibility to claimcompensation for damagecaused by infringement of EU law

  15. Infringementproceedings • In the jurisdiction of the Commission or the States • Anyothersubject can only report the infringement to the Commission • Pre-litigationphase: dialogue with the States - confidentiality • Litigationphase: referral to the Court of Justice • Declaration of the infringement • Pecuniary penalty (260 TFEU) • Failure to notify the implementation of directives • Second judgment for failure to execute the first judgment

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