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13' October 2008, 7'lecture


Legal basis, multiple legal bases. EC institutional principles ... No human rights catalogue in EC/EU Treaty, reluctant case law (Stork, 1959) ... – PowerPoint PPT presentation

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Title: 13' October 2008, 7'lecture

Summary Lecture Part II
  • 13. October 2008, 7.lecture
  • EU Law I Institutional Law of the EU

Overview lecture 7
  • Legal basis, multiple legal bases
  • EC institutional principles
  • EC legal sources and their legal effect
  • Legal protection/Legal procedures
  • Important case law
  • Last tutorial

Community law- and decision-making
  • EC Competence to act?
  • Community law and decision-making
  • Supranational structure of EC, certain sovereign
    rights of MS delegated but not all
  • Attribution of competences, Art.5 EC
  • Subsidiarity principle when shared competences
    justification of action has to be given

EC Competence to act?
  • What is an EC competence norm?
  • Legal basis to make legislation in form of
    Art.249 EC
  • Legally binding measures mainly regulation and
  • Not non-binding measures opinion/recommendation
  • Competences of EC have increased over time, new
    policy fields such as environment, health, social
    policy, education and training were established

Competence norm Right to act/make legislation by
  • Art. 2 and 3 EC? No, only objectives and policies
  • Art.5 EC? No, determines general law-making
  • Art.12 EC yes because determines the institutions
    which acts and the legislation-making procedure,
    reference, here Art.251 EC
  • Other examples Art.95 EC, Arts. 174, 175 (1) EC,
    Art.137 EC

Competences/multiple legal bases?
  • What happens, if a matter which is settled in
    form of a Regulation or a Directive (Art.249 EC)
    could be based on two or more legal bases?
  • Should be exceptional situation

How to choose between legal bases ECJ
  • Based on objective factors ameneable to judicial
  • Judging by the aim and content of the legislation
  • Different aims (twofold purpose)?
  • Judge where the main emphasis of the measure is -
    the main and predominant aspect of the act rests

Multiple legal bases possible (exceptional)
  • Twofold purpose inseparately linked
  • only when no different decision-making and
    law-making procedures are involved (ex. 94 and 95
  • Only when there is no predominant or more
    specific legal base (see 308 EC general one)
  • No hierachy between norms (one more special than
    the other)
  • Art.37 before Art.95 EC, Art.95 before Art.175
    before Art.308 EC (see Case Titanium Dioxide)
  • But case Titanium Dioxide also seen in the
    context of 1991, at that time Art.95 gave EP
    stronger input than Art.175 EC
  • Choose this legal basis which gives the EP a
    stronger participatory right

What are the institutional legal principles?
  • Art.10 EC sincere cooperation
  • Art.7 institutional balance
  • Art.5 The attribution of competences
  • Art.5 Principle of subsidiarity and
  • Art.6 EU principles rule of law, democracy,
    protection of human rights

Art.10 EC sincere cooperation
  • Principle of loyal cooperation or sincere
    cooperation, Art.10 EC
  • MS are obliged to cooperate with EC and not
    hinder the efficient application and
    implementation of EC law
  • Example Justification and legal base for the
    establishment of state liability of MS for
    non-implemented directives

Art.7, institutional balance
  • Every institution acts within its competences
  • No clear separation of powers between executive
    and legislative
  • Representation of different interests

Principle of the attribution of competences,
  • Community has to act within the limits given by
    the mandate through the EC Treaty
  • No all embracing right to make legislation as in
    a state
  • However to certain extent Art.308 EC (implied

Principle of subsidiarity and proportionality,
Art.5 EC
  • Subsidiarity checking whether it is necessary to
    regulate on EU level in the case of non-exclusive
  • Proportionality the legal base must be suitable
    to achieve objective in the least intrusive and
    restrictive manner
  • Protocol on the application of these principles
    annexed in the Amsterdam Treaty
  • Three culmulative elements

Human rights as General principles of law
  • Human rights bind EC institutions
  • Human rights as general principles of law
  • No human rights catalogue in EC/EU Treaty,
    reluctant case law (Stork, 1959)
  • Since 1970s incorporation of ECHR rights and
    common fundamental freedoms MS constitutions
    through jurisdiction ECJ
  • Case Law gradual steps Stauder (1969), Nold
    (1974) Rutili (1975) Hauer (1979)

Human rights as General principles of law
  • Art.6 EU Treaty, Opinion 2/94 (ECHR opinion)
  • Streamlining of external human rights policy with
    internal human rights policy
  • Enlargement policy (1993)
  • EU Charter of Fundamental Rights (2000)
  • Constitutional Treaty (2004)/Reform Treaty (2007)

Legal sources and their legal effect the
special legal order
  • ECJ in Van Gend and Loos (1963) and Costa/ENEL
  • Van Gend and Loos new legal order, Community law
    confers rights on the individual
  • Costa/ENEL supremacy and autonomy of EC law,
    legal order creates its own legal system which
    binds the MS and its nationals

Special legal order - consequences
  • Supranational entity (van Gend and Loos and
    Costa/ENEL cases)
  • Autonomous legal order (see function of
    institutions and ECJ)
  • EC law independent from international and
    national law (see supremacy and direct effect)
  • Dynamic nature of EC law effet utile principle

Special legal order Meaning of Direct Effect
  • Direct effect of Community law for individuals
  • Why? To create new remedies for the enforcement
    of EC law against MS
  • Conditions clear , precise and no implementing
    measure necessary
  • When and against whom?
  • depending on interpretation and legal source
  • Vertically, horizontally

EC Legal Sources
  • Primary law EC Treaty
  • EC secondary law Art.249 EC
  • - Binding Regulations, Directives, Decisions
  • - Non-Binding (Soft-law) Recommendations,
    Opinions, Conclusions, etc.

Direct effect of legal sources
  • Primary EC law (especially four freedoms)
  • Secondary EC Law (Regulation, Decisions,
    exceptionally Directives)
  • International Agreements concluded by EC (certain

EC legal sources direct effect
  • EC Treaty (van Gend and Loos case) Legal
    provisions are directly effective for citizens
    when clear and precise
  • Four freedoms (free movement of persons,goods,
    capital, services) are directly effective
    (consistent case law of ECJ)
  • Vertical direct effect (state-citizen)
  • Horizontal effect? (citizen-citizen)
  • Exceptionally
  • Primary law Defrenne, Bosman non-discrimination
  • Regulation

EC Regulation nature and scope
  • EC Regulation
  • European law, general application and directly
    applicable in MS,
  • Directly effective for individuals when
    provision in the Regulation relied on is clear
    and precise enough

EC Directive nature and scope
  • Directive
  • Binding and but must be implemented by MS in a
    certain time period and leave them the choice of
    form and methods
  • Directly effective for citizen?
  • When implemented in national law and provision
    clear and precise enough
  • When not implemented in time ?

Non- or incorrectly implemented Directive (ECJ
case law Van Duyn, Becker etc.)
  • Not implemented - direct effect when
  • Time-limit has expired
  • Clear and precise enough provision which the
    citizen can rely on
  • Addressee only the MS
  • Principle of estoppel
  • No horizontal effect
  • Difference to regulation

Non- or incorrectly implemented Directive (ECJ
case law)
  • Estoppel principle (Ratti case)
  • MS should not have any advantages from of its
    wrongdoing or no horizontal direct effect among
    citizens (see cases Marshall II, Faccini Dori)
    (but vertical effect)
  • State is in breach of its obligation of Art.249
    EC and Art.10 EC

Lack of horizontal direct effect
  • Estoppel argument for vertical effect but not
    horizontal effect (see Faccini Dori case)
  • Way out?
  • Broad definition of state
  • also emanation of state
  • public service under the control of the State
    (Foster case)
  • Other tools
  • Duty of consistent interpretation (indirect
  • State liability of MS

Non- or incorrectly or partially implemented
Directive (Von Colson, Marleasing )
  • Non-, Not correctly or partially implemented
  • Indirect effect
  • Art.10 EC obligation of consistent interpretation
  • Interpretation of national law in conformity with
    the directive

Duty of consistent interpretation
  • No interpretation contra legem and principle of
    legal certainty and non-retroactivity have to be
  • General duty of consistent interpretation
  • When does the obligation start?
  • Date of Publication of Directive?
  • No, expiry of deadline of implementation

State liability of MS
  • Directive not implemented in time but cannot be
    applied directly
  • Why? Francovich case and MP Travel line
    (Dillenkofer) case
  • Provisions is precise and clear with one
  • Not clear whether provision addressed against
    state or company (insolvency fund)

State liability Conditions for liability
  • Manifest or serious breach of
  • Rule of law (provision of not implemented
    directive or primary law provision)
  • Rule of law confers rights on individual
  • Direct causal link between the breach of the
    obligation of the state and the damage sustained
    by the injured parties

State liability Conditions for liability
  • When is a breach sufficiently serious?
  • MS manifestly and gravely disregards the limits
    of its discretion
  • Factors clarity, precision of the rule breached,
    infringement and damage caused intentionally or
    involuntary, error of law excusable or
  • Sufficiently serious non-implementation of clear
    and precise Directive, established case law on

Member States liability judicial breaches
  • This state liability principle for executive or
    legislative breaches extended on damage caused by
    a courts judgments of last instance
  • Köbler case
  • Infringement of Art.234 (3) EC last instance
  • However just incorrect application of EC law by
    national courts at last instance is not
    sufficient for serious breach
  • Serious breach such as incorrect application of
    primary, secondary law through
  • Blatant ignorance of existing case law

Legal protection - European Court of Justice and
Court of First Instance
  • Enforcement of EC law through jurisdiction
  • Cooperation with national courts, Art.10 EC
  • How to differ proceedings involving Community
  • Disputes between Community institutions (230/232)
  • Disputes between MS and Community institutions,
    both act of annulment and action for failure to
    act (230/232)
  • Disputes between Community and MS Commission
    against MS infringement procedure Art.226/228

European Court of Justice and Court of First
  • Legal proceeding involving individuals
  • Act of annulment and failure to act, 230/232,
    when binding Community act is of direct and
    individual concern, duty to act was infringed
  • Claims for damages against Community a measure,
  • Preliminary ruling, reference national court,
    Art.234 about national law infringing Community

Legal protection Differentiating between subject
  • Invalidity of Community act/legislation of EC
  • Art.230/232 EC
  • Claimed by institutions/MS and individuals
  • Art.234 EC but concrete national dispute
  • Concrete national dispute, challenging national
    measure implementing EC law by individuals
  • Infringement of Community law by a MS
  • Art.226/227/228 EC
  • Art.234 EC preliminary rulings in form of wrong
    implementation or non-implementation

Preliminary Rulings, 234 EC
  • Substance of preliminary rulings
  • Interpretation of EC law
  • The EC Treaty and acts of institutions
  • Act of institutions binding acts non-binding
  • International treaties
  • No substance/ruling
  • Rulings on national law
  • Advisory opinions or hypothetical questions

Preliminary Rulings
  • Validity of European law acts
  • Control of borderline case of 1.pillar to 2. and
    3d pillar possible
  • But no jurisdiction in 2.pillar and 3.pillar (see
    Art.46 EU however Art.35 EU for exceptions)
  • National court cannot declare Community law

Preliminary Rulings court or tribunal
  • Who can refer to ECJ?
  • Every court and tribunal of MS
  • A permanent and independent body which is
    established by law and can give binding decisions
    to settle disputes (Vaassen criteria)

Preliminary Rulings matter of reference
  • What matter can be referred?
  • Questions of interpretation of Community law
  • no abstract questions considered, no hypothetical
    questions or interpretation of national law, must
    be a pending case
  • ECJ may reformulate the questions
  • Clear description of factual and legal context

Preliminary Rulings obligation to refer?
  • Obligation to refer by national courts?
  • No Lower national courts have the discretion to
  • Obligation to refer (para.3) Court or tribunal
    against whose decision no judicial remedy is
    possible (last instance)

Preliminary Rulings Acte clair doctrine
  • Exception from the obligation to refer acte
    éclairé and acte clair doctrine (CILFIT decision
  • The provision has already been interpreted by the
    ECJ, identical question (acte éclairé)
  • The correct application is so obvious as to leave
    no scope for doubt, can be deduced from case law
    (acte clair)

Infringement procedure structure of Art 226/228
  • Administrative and judicial stage for
    infringement procedure
  • Ensuring MS adhere to Community law
  • Art.226 Commission letter of formal notice,
    reasoned opinion
  • Art.228 infringement procedure before ECJ
  • Art.227 infringement procedure MS against MS

Infringement procedure Art.226 EC
  • Pre-226 EC Compliance control by regular
    reports of Commission on implementation record of
    MS, see scoreboard for internal market
  • Art 226 matters deals with failures of MS all
    rules of Community law
  • Obligation arising from EC Treaty from
    international agreements, secondary EC law or
    general principles of law or case law of ECJ
  • What is a failure? Any shortcoming, may it be of
    regulatory or administrative or judicial nature,
    active or passive, legally binding or not

Infringement procedure
  • Supervisory power of Commission
  • No obligation to bring proceedings under Art.226
    EC (Case C-87/89)
  • Cases are withdrawn at any stage, over 89
    percent cases settled before judicial phase
  • Failure to act will not succeed Commission is
    underno obligation to act

Infringement procedure
  • Individuals have no standing
  • Rights remain to
  • Accuse MS before a national court
  • MS against MS, 227 EC
  • Complain to the Commission. However, C. has no
    obligation to act, no binding legal act to attack
    by act of annulment

Infringement proceeding
  • Action by MS Art.227 EC MS against MS
  • First submit complaint to the Commission
  • Commission delivers reasoned opinion
  • No reasoned opinion within three months, matter
    is transmitted to the ECJ
  • In practice this rarely happens

Direct actions, Art.230/232 EC
  • Act of Annulment, Art.230 EC
  • Protection against unlawful binding acts of
    Community institutions
  • Division between privileged (institutions and MS)
    and non-privileged applicants (legal and natural

Direct actions act of annulment, privileged
  • Challengeable Acts
  • Acts which intend to entail legal effect
  • Yes binding measures under Art.249 EC
  • No proposals, no non-binding measures
  • Acts of institutions

Direct actions act of annulment, 230 (4),
non-privileged applicants
  • Locus standi (legal standing ) only against
    certain acts for natural and legal persons
  • Decision addressed to him or her personally
  • Decision, in the form of a regulation or a
    decision addressed to another person, which is of
    direct and individual concern to him- or herself

Direct actions act of annulment non-privileged
  • Direct and individual concern?
  • Direct concern
  • when it leaves the MS no real discretion in
  • difference Directive, test of causation
  • When contested act is capable of producing
    effects on the applicants legal position

Direct actions act of annulment non-privileged
  • Individual concern Plaumann case/test
  • Certain characteristics which are peculiar to
    them or by reason of circumstances in which he is
    differentiated from all other persons
  • Closed class of applicants
  • As if the act were addressed to him
  • Easier established for a decision than in a

Direct actions act of annulment
  • Contested act of general application (Regulation)
  • Closed class
  • Adversely affected specific rights of the
    applicant or its members (only one example
    Codorníu case)
  • Legal or business interest not sufficient
  • Community institution obliged to take account of
    applicants specific circumstances

Court cases Plaumann, Jego-Quéré and UPA
  • Restrictive interpretation Plaumann theory
  • CFI in Jego-Quéré seemed to liberalise the
  • Problem otherwise no effective legal protection,
    Art.234 EC not possible due to lack of national
    implementation measure
  • CFI sufficient when it effects his legal
    position by restricting his rights or imposing
    obligation on him
  • ECJ no keep Plaumann test

Direct action act of annulment, grounds of review
  • Reasons for the review/annulment
  • Lack of competence
  • Infringement of an essential procedural
  • Infringement of the Treaty and any rule of law
    relating to its application
  • Misuse of power

Action for failure to act, Art.232 EC, privileged
  • Subject-matter omission to take a given decision
    was unlawful
  • Reviewable omissions
  • Failure of making a decision, duty to act
  • And within two months unsuccessfully called upon
    to act
  • Duty to act institutions under the obligation to
  • Act capable of having legal effects

Action for failure to act, Art.232 (3) EC,
non-privileged applicant
  • Criteria of Art.232 streamlined with Art.230 EC
  • Obligation to act binding measure
  • Directly and individually concerned with an act
    the institution failed to adopt and which ought
    to have been addressed by another person

Community liability, Art.288 EC
  • Non-contractual liability
  • An unjust act or omission on the part of the
    institution or its servants
  • Damage to the claimant (legal or natural person)
  • Causal link between the two
  • Streamlining of requirements between state
    liability of MS and 288, manifest breach of
    superior rule of law intending to produce effect
    for individual causal link (Bergaderm)
  • Independent form of action solely to obtain
    financial compensation

Legal Procedures Summary
  • When can the individual challenge a matter in
  • Depending on the subject
  • National law violating Community law Art.234 EC
    direct effect, indirect effect, state liability-
  • Community act and its validity
  • Art.234 EC (in context of case raised in national
    court), Art.230 (subpara.4)/232 EC direct and
    individual concern
  • Community act/actions results in damages
  • Art.288 EC

Legal Procedures Summary
  • What are the main conflicts Institutions/MS
  • MS infringe Community law through national law
  • Art.226, 228 EC (Infringement procedure)
  • Substance Violation of EC Law and its principles
    (supremacy of Community law and other fundamental
  • Validity of Community law (MS, EP, Com., Council)
  • Art.230/232 EC (subpara.1-3) EC, Examples wrong
    legal base for legislation-making, violation of
    fundamental principles of Community law

Last tutorial
  • Case law Cases of relevance for further
    development of EC/EU law, to be discussed
    tutorial 7
  • Prepare questions you still have
  • Prepare answers assignments tutorial 7
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