enforcement of EU law

Les Verts and Art 2 TEU

what is established?

EU based on rule of law

forms of action (Arts 258 - 268)

Against who? Decentralised or centralised enforcement? (ie who is enforcing the law and how)

• legality of MS action: infringement proceedings Art 258-260 TFEU

• legality of EU action: annulment (Article 263 TFEU), failure to act (Article 265 TFEU), damages for non-contractual liability (Article 268 TFEU)

Van Gend En Loos

What did it establish?

Requirements?

Can rights be conferred? Can they be invoked?

direct effect: measure can be relied on by individuals in national courts

EU law as ‘new legal order of international law’ and can confer rights to individuals

such rights can be directly invoked and challenged in courts

must be clear, unconditional and create a negative obligation to have direct effect

Candidates for direct effect

Types of legislation? (Primary and secondary)

Case law?

charter provisions → can have vertical DE Akerberg

but certain articles can be relied on horizontally

treaty provisions → can be relied on in either relationship if clear precise and unconditional Deferenne

regulations → suitable for either relationship, must be clear precise and unconditional Fratelli Variola and Leonessio

decisions → to member state may produce direct effect Carp, not horizontally directly applicable: ones addressed to individuals could be Grad

directives → may be vertically directly effective if clear, precise, unconditional and implementation passed Marshall

V estoppel argument: if MS failed to implement a directive, cannot rely on failure as defence against individual invoking it

Direct applicability

Not the same as direct effect

Measure becomes part of national law without implementation, eg Regulations

supremacy of EU law

Case law?

not treaty based but created by CJEU in Costa

pg 64: permanent limitation of MSs sovereign rights

Internationale Handelgesellschaft 11/70 EU primacy over all national law

national laws cannot be annulled, but can be set aside by EU law Simmenthal II 106/77

Brexit and Withdrawal Agreement

WA now has direct affect Art 4, but UK must disapply domestic provisions to ensure compliance of national laws with WA

Direct effect: directives

What type of relationship? Case law?

When can individuals invoke rights?

Requirements for direct effect?

Only vertical relationships: Marshall - evoking against emanation of state (delegated body/institution Foster v British Gas)

Individuals may invoke right if unimplemented (Ratti) or implemented incorrectly (VNO)

Must be clear precise and unconditional Van Dyun - invoking rights against state

Indirect effect

Of directives von Colson for horizontal effect

Preliminary rulings

What are they?

Must they always be referred to?

Who can refer to them?

How do cases reach the CJEU?

Art 267: national court asks the CJEU: how EU law should be interpreted, OR whether EU law is valid → CJEU then gives a preliminary ruling → national court applies that ruling to the facts.

Must ensure interpretation and application of EU law by national courts → reference to question of interpretation from CJEU is up to MS to decide unless validity of EU law challenged Foto Frost

Don’t have to refer if clear enough (acte clair) or issue already interpreted (acte éclairé) CILFIT

individuals may claim damages if MS obligated to refer but didn’t Köbler

Only MS/Tribunal can refer to CJEU

Preliminary references for directions on how to interpret EU law and whether valid