European Court of Justice

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European Court of Justice

• Prof. Dr. Martin Trybus
• Birmingham Law School

 Public Procurement Review and Remedies Ankara
26-27 February 2008
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A complete system of remedies

• Action for annulment Article 230 EC.
• Failure to act action Article 232 EC.
• Indirect challenge action Article 241 EC.
• Compensation for unlawful action Articles 235
  and 288 EC.
• Preliminary reference Article 234 EC.

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Enforcement of EC law dual vigilance

• Control at EU level from above
• Article 226 EC (Article 227 EC)
• Even when act in question was committed by
  constitutionally independent body
• Practical duties are no excuse
• Control at national level from below
• Direct effect
• National review Remedies Directives

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Article 226 EC Treaty

• If the Commission considers that a Member State
  has failed to fulfil an obligation under this
  Treaty, it shall deliver a reasoned opinion on
  the matter after giving the State concerned the
  opportunity to submit its observations.
• 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.

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Article 227 EC Treaty

• A Member State which considers that another
  Member State has failed to fulfil an obligation
  under this Treaty may bring the matter before the
  Court of Justice.
• Before a Member State brings an action against
  another Member State for an alleged infringement
  of an obligation under this Treaty, it shall
  bring the matter before the Commission.
• The Commission shall deliver a reasoned opinion
  after each of the States concerned has been given
  the opportunity to submit its own case and its
  observations on the other party's case both
  orally and in writing.
• If the Commission has not delivered an opinion
  within three months of the date on which the
  matter was brought before it, the absence of such
  opinion shall not prevent the matter from being
  brought before the Court of Justice.

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Article 228 EC Treaty

• 1.   If the Court of Justice finds that a Member
  State has failed to fulfil an obligation under
  this Treaty, the State shall be required to take
  the necessary measures to comply with the
  judgment of the ECJ.
• 2.   If the Commission considers that the Member
  State concerned has not taken such measures it
  shall, after giving that State the opportunity to
  submit its observations, issue a reasoned opinion
  specifying the points on which the Member State
  concerned has not complied with the judgment of
  the ECJ.
• If the Member State concerned fails to take the
  necessary measures to comply with the Court's
  judgment within the time limit laid down by the
  Commission, the latter may bring the case before
  the ECJ. In so doing it shall specify the
  amount of the lump sum or penalty payment to be
  paid by the Member State concerned which it
  considers appropriate in the circumstances.
• If the Court of Justice finds that the Member
  State concerned has not complied with its
  judgment it may impose a lump sum or penalty
  payment on it.
• This procedure shall be without prejudice to
  Article 227.

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Article 226 EC phases

• Non-judicial phase Commission
• Informal contact with Member State.
• No satisfactory solution.
• Reasoned opinion.
• No satisfactory solution.
• Judicial phase ECJ
• Action in ECJ.
• (1st) ECJ judgment.
• Member State disobeys the judgment.
• Action in ECJ.
• (2nd) ECJ judgment with lump sum.

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Article 234 EC

• The Court of Justice shall have jurisdiction to
  give preliminary rulings concerning
• (a) the interpretation of this Treaty
• (b) the validity and interpretation of acts of
  the institutions of the EC and of the ECB
• (c) the interpretation of the statutes of bodies
  established by an act of the Council, where those
  statutes so provide.

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Article 234 EC

• Where such a question is raised before any court
  of a MS, that court may, if it
  considers that a decision on the question is
  necessary to enable it to give judgment, request
  the ECJ to give a ruling thereon.
• Where any such question is raised in a case
  pending before a court of a MS against
  whose decisions there is no judicial remedy under
  national law, that court shall bring the
  matter before the ECJ.

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Purpose of Article 234 EC

• AG Lagrange in C-13/61, Bosch
• real and fruitful collaboration between the
  municipal courts and the ECJ with mutual regard
  for their respective jurisdictions
• C-166/73, Rheinmühlen Düsseldorf
• Article 234 has the object of ensuring that
  in all circumstances the law is the same in all
  States of the Community.
• C-29/69, Stauder
• the necessity for uniform application and
  accordingly interpretation

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Separation of functions

• C-6/64, Costa v ENEL
• Since Article 234 is based upon a clear
  separation of functions between national courts
  and the ECJ it can not empower the ECJ either
  to investigate the facts of the case or to
  criticize the grounds and purpose of the request
  for interpretation.
• Article 234 gives the ECJ no jurisdiction
  either to apply the Treaty to a specific case or
  to decide upon the validity of a provision of
  domestic law in relation to the Treaty .

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C-104/79244/80, Foglia v Novello

• No. 1 artificial nature of this expedient
  requirement of a genuine dispute.
• No. 2 the ECJ must take special care to
  ensure that the procedure under Article 234 is
  not employed for purposes which were not
  intended by the Treaty.

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C-451/99, Cura Anlagen v Auto Service

• According to settled case-law, it is solely for
  the national court before which the dispute has
  been brought, and which must assume
  responsibility for the subsequent judicial
  decision, to determine in the light of the
  particular circumstances of the case both the
  need for a preliminary ruling in order to enable
  it to deliver judgment and the relevance of the
  questions which it submits to the Court.
  Nevertheless, the Court has held that it cannot
  give a preliminary ruling on a question submitted
  by a national court where it is quite obvious
  that the ruling sought by that court on the
  interpretation or validity of Community law bears
  no relation to the actual facts of the main
  action or its purpose, where the problem is
  hypothetical, or where the Court does not have
  before it the factual or legal material necessary
  to give a useful answer to the questions
  submitted to it

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The effect of a 234 ruling

• C-66/80, ICC
• When the ECJ is moved under Article 234 to
  declare an act of the institutions to be void
  it follows although such a declaration is
  addressed only to the national court which
  brought the matter before the court, it is
  sufficient reason for any other national court to
  regard that act as void for the purposes of a
  judgment which it has to give.

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Bodies competent to refer

• Courts and tribunals
• C-54/96, Dorsch C-178/99, Saltzmann
• Body is established by law.
• Body is permanent.
• Jurisdiction of the body is compulsory.
• Procedure is inter partes.
• Body applies rules of law.
• Body is independent.

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Obligation to refer

• Highest courts
• C-107/76, Hoffmann la Roche
• Objective to prevent a body of national case
  law not in accord with the rules of EC law from
  coming into existence in any MS.
• C-28-30/62, Da Costa en Schaake
• any national court or tribunal against whose
  decision there is no judicial remedy under
  national law.

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C-283/81, CILFITDoctrine of acte claire

• A court against whose decisions there is no
  judicial remedy is required, where a question
  of EC law is raised before it, to comply with
  its obligation to bring the matter before the
  ECJ, unless it has established 1 that the
  question raised is irrelevant or 2 that the
  EC provision before it has already been
  interpreted by the ECJ or 3 that the correct
  application of EC law is so obvious as to leave
  no scope for any reasonable doubt.

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C-314/85, Foto Frost

• Power to refer very flexible approach.
• Exception to flexible approach validity of
  Community acts.
• Courts other than last instance courts
• may reject claims that Community act is invalid.
• may not declare Community acts invalid.
• Danger divergences between national courts as to
  validity of Community acts undermines objectives
  of uniformity and legal certainty.