EU Cases and Treaty Articles

Tobacco Advertising

1. EU acts must have a legal basis in the Treaties.

2. Article 114 TFEU: allows the Union to adopt harmonizing measures for the functioning of the internal market.

3. A ban on tobacco advertising could be justified by article 114 TFEU, because disparities between Member State legislation on tobacco advertising could affect intra-Community trade.

Grauweiler

1. Monetary policy is within EU’s exclusive competence, economic policy is not.

2. ECB purchased bonds from the secondary market as part of the OMT programme.

3. This was monetary policy, not economic, and thus was within the ECB’s mandate,

Article 352 TFEU

1. Gives the Union powers to act when it hasn’t already been given powers in the Treaties, to attain a objective set out in the Treaties.

2. Proposal from the Commission, unanimous voting from the Council and approval by the Parliament.

3. Can be contested by Member States’ national parliaments on grounds of subsidiarity.

Article 114 TFEU

1. Used to justify Union acts with the aim of harmonizing Member State laws for the better functioning of the Internal Market.

2. Differences in national laws impede free movement.

Article 5 TEU

1. Subsidiarity principle, specifically test of comparative efficiency.

Article 263 TFEU

1. Possibility to challenge Union acts on infringement of Treaty provisions.

2. Member States can bring action against the EU for a breach of subsidiarity.

3. Either on procedural or substance grounds.

4. CJEU exercises a very light touch review → it will almost always believe EU. (for example, the Working Time Directive -case)

5. How would the Court actually test whether the effects of a act are better achieved on the Member State level?

Chernobyl

CJEU gave the Parliament the right to challenge Union acts contra legem to protect democracy and institutional balance.

Van Gend en Loos

1. Direct effect, if the Treaty article is: clear, negative, unconditional, containing no reservation on the part of a Member State, and doesn’t require implementation.

Reyners

1. Even if Treaty articles aren’t clear enough to have direct effect, the principle behind them can have direct effect.

2. Article 157 TFEU: Member States must apply the principle that men and women receive equal payment for equal work → no direct effect

3. Principle that equal work must have equal pay → direct effect.

Mangold

Direct effect of general principles.

Egenberger

Horizontal direct effect of sufficiently clear articles of the Charter.

Slaughter Cow

Direct effect of regulations.

Amsterdam Bulb

Only national implementing measures on regulations that obstruct, alter or obscure the direct effect or nature of the regulation are a breach of EU law.

Article 288 TFEU

1. Definitions of regulations, directives and decisions.

2. Regulations are “directly applicable” → direct effect of regulations (Slaughter Cow)

Van Duyn

1. Two out of three reasons for direct effect of directives:

2. Private enforcement of directives makes EU law more effective.

3. Article 267 TFEU: the Court has the right to give preliminary rulings on the interpretation of directives→ directives can be invoked by individuals.

Ratti

1. Third reason for the direct effect of directives: estoppel.

2. Member States have committed a wrong doing by failing to implement the directive, and they can’t rely on this failure to deny the direct effect of the directive.

Inter-Environnement Wallonie

Member States must refrain from implementing national measures that would seriously compromise the aim of a directive even before the time limit for the directive’s implementation has passed.

Marshall

Directives have no horizontal direct effect, because 288 TFEU directives are binding only on Member States.

Foster

Horizontal direct effect of directives allowance 1: broad concept of the state

• a body that has been made responsible for providing a public service under the control of the State and has special powers to do them is an emanation of the state and a possible target of vertical direct effect.

Von Colson and Marleasing

1. Way around no direct effect for directives 2: indirect effect/harmonious interpretation.

2. National law must be interpreted in the light of directives.

3. No need for sufficient clarity etc.

4. Von Colson was against a state entity, but set out the principle of harmonious interpretation. Marleasing enforced this against private individuals.

5. Applies even when national law was implemented before the directive (Marleasing) and not only to the national law implementing the directive but to the whole Member State legal order (Pfeiffer).

6. No contra legem.

Kolpinghuis Nijmegen

Indirect effect cannot establish criminal liability.

CIA security and Unilever Italia

Incidental effect: An unimplemented directive doesn’t directly impose obligations on individuals, but it alters the application of national law in such a way to cause negative consequences for one party.

Francovich

Member States are liable for damages caused to individuals due to insufficient implementation of directives.

Conditions:

1. The directive confers rights on individuals.

2. The contents of the rights is identifiable under the directive.

3. There is a causal link between the unimplemented directive and the damage suffered.

Köbler

State liability for breach of EU law can come from judiciaries of final appeal (in this case, failure to refer the case to the CJEU).

Brasserie du Pêcheur

Continuation from Francovich, conditions for state liability for infringements of EU law.

1. The rule infringed must be such that it’s meant to confer rights onto individuals.

2. the breach is sufficiently serious.

3. Causal link between infringement and damages suffered.

Costa v ENEL

Primacy of EU law.

• New legal order

• Efficiency of EU law

• Equal application of Union law

• Without primacy, Member States could negate the direct effect of EU law.

Internationale Handelsgesellschaft

Primacy of EU law, all EU law goes over any national measure, even fundamental principles.

Simmenthal

Primacy applies regardless of when the national law was enacted in relation to the Union act.

All national courts must give primacy to EU law over national constitution, even if only the highest court has the right to set aside national law.

Poplawski

Only directly effective EU acts have primacy.

PSPP/Weiss

• ECB’s Public Sector Asset Purchase Program

• Claimants before the German Constitutional Court argued it to be ultra vires, because it wasn’t within the ECB’s competences of monetary policy.

• The CJEU rejected the claim, and deemed the program to be part of monetary policy /not economic) and thus within the ECB’s competences.

• The German Court held that both the ECB and CJEU were acting ultra vires.

• CJEU says that they will review the ECB’s actions for only manifest errors, which allows the ECB to exercise competences greater to which it has been conferred.

Solange I

Case where the German Constitutional Court rejected the ECJ’s ruling on Internationale Handelsgesellschaft. The GCC places the principle of primacy under an article of the Constitution, and uses this as a reasoning to decide that it cannot overrule a fundamental principle of the Constitution.

At the time the EU had no fundamental rights document nor effective protection for them.

Solange II

The German Constitutional Court will accept primacy over the constitution as long as EU can provide a level of fundamental rights protection comparable to the Constitution.

Time of judgement 1987, fundamental rights had started to receive more protection from the ECJ after the Solange I judgement.

Commission v Poland (Appointment of Judges)

1. Poland’s Constitutional Court ruled that a decision from the Court telling them to stop activities that dangered the independence of the judiciary were given ultra vires.

2. They were also against the Polish Constitution and thus not covered by primacy and direct applicability.

3. The Constitutional Court’s rulings also forbade lower courts from applying EU law and the Court’s case law.

4. The Polish Court tried to find that the EU didn’t have competence on the matter, but CJEU holds that its the only organ with the power to rule in its competence.

Article 2 TEU

The Union is founded on values of respect for human dignity, freedom, democracy, equality and rule of law.

Article 49 TEU

Only European states that respect article 2 (rule of law etc) can join the EU.

Article 7 TEU

Mechanism for suspending some Treaty rights from Member States that are in violation of article 2 TEU.

High tresshold for activation, requires a serious and persistent breach.

Council votes unanimously but without the offending Member State present. Problems can come if two or more states defend each other or the state threatens to vote against unrelated projects in the Council.

Article 19 TEU

Formation of the CJEU.

Member State Courts have an obligation to give effect to EU law → used as a justification to rule against Poland in rule of law backsliding cases.