EUROPEAN JUDICIAL PROTECTION | Quizlet

WEEK 1!!

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how does EJP operate?

as a multilevel system between national and European courts!!

which standards will we address in this course?

the protection of standards derived from EU law and not address standards that fall outside that scope under national law.

what are the main questions we will be concerned with?

1) which avenue?

2) what deadlines apply?

3) who has standing?

what will we look at of the CJEU as an institution?

1. bodies

2. composition

3. selection and appointment

4. mandate and jurisdiction

under article 19 (1) TEU, what does CJEU include?

1. court of justice

2. general court

3. specialized courts

under article 19 (2) TEU, how is the composition of the CJEU?

1. one judge from each MS

2. assisted by Advocates General

what does the AG do?

He advises the Court by giving independent legal opinions on how a case should be decided!!

under article 19 (2), how is the composition of GC?

at least one judge per MS

are there actual specialized courts?

not currently but previously we did for EU employees and the GC has adopted its caseload...

what does article 19 TEU also include?

a selection criteria on who can be judge and who can be AG!!

how are judges and AGs selected?

chosen from persons whose independence is beyond doubt and who satisfy the conditions of art. 255 TEU!!

how long are they appointed for?

6 years !! reappointment possible !!

how does the selection and appointment work?

through a three step procedure

which case law for selection and appointment?

valancius!!

how is the three step test?

1) MS government proposes candidate

2) assessment by so called 255 panel

3) appointment by 'common accord' of the governments of the MS for a term of six years

do MS have unified rules on the proposal of candidate?

NO, in valancius for instance the second best candidate was nominated by the government. this shows the discretion that MS enjoy!!

what is the assessment by 255 panel?

assessment of candidates for office and their capabilities:

- legal capabilities

- prof experience

- ability to perform duties of a judge

- language skills

- ability to work in an international environment

- independence, impartiality, probity and integrity beyond doubt

what is appointment by 'common accord'?

common accord of national government

in a council meeting where each person represents their own country and they then decide to appoint a judge

is this situation problematic?

could be because of judicial independence!! if the executive appoints the judges they want, they can be influenced by their MS. the only way to prevent this is for one MS to utilize his veto right to forbid.

how does the mandate and jurisdiction of CJEU work?

art. 19 (1) TEU states that the CJEU shall ensure that in the interpretation and application of the Treaties, the law is observed.

art. 19 (3) TEU further specifies the jurisdiction:

- rule on actions brought by MS, institutions or natural and legal persons

- give preliminary rulings at the request of national courts

- rule in other cases provided for in the Treaties

what are the tasks of the ECJ?

1. infringement proceedings

2. preliminary references

3. annulment and failure to act

what are the tasks of GC?

1. annulment and failure to act brought by natural or legal persons

2. annulment cases brought by Commission

3. preliminary references in specific areas such as VAT, excise duties, common tariffs...

what does Les Verts v EP case entail?

rule of law!!!

where else is the rule of law found?

article 2 TEU!!

what is a horizontal interaction?

the interaction between procedures at the same level (EU level)

what is a vertical interaction?

the complementarity between centralized and decentralized enforcement of EU law.

what is centralized enforcement?

EU level

what is decentralized enforcement?

national level

what is the distinguishing characteristic of EU law than international law?

direct effect !!

what does rewe entail?

PRINCIPLE OF NATIONAL PROCEDURAL AUTONOMY!!

para 5: in the absence of EU rules on the matter, it is for the domestic legal system of each MS to designate the competent courts and lay down the procedural conditions for actions intended to protect rights derived from the direct effect of EU law.

are there limits to national procedural autonomy?

1. it is constrained by general requirements derived by art. 4 (3) TEU

2. in particular the principles of equivalence and effectiveness.

3. as well as the broader principle of effective judicial protection.

what is the principle of equivalence?

EU law claims cannot be treated less favorably than purely national claims!!

what are the two steps of principle of equivalance?

1) identify national claims that are comparable or similar to the one based on EU law -> assessment carried out by national court, focusing on purpose, cause of action and essential characteristics (Levez)

2) assess whether the procedural requirement is more favourable than those applied to the claim based on EU law

what is the principle of effectiveness?

procedural rules in national laws must not make the exercise of EU law rights 'practically impossible or excessively difficult' (Pontin)

what is the principle of effective judicial protection?

1. effective access to court

2. effective judicial review

3. judicial independence

what else would it include?

access to suitable remedies!!

but what if the national system does not ensure this?

rewe states that no need to create new remedies under national law just to ensure the enforcement of EU rights.

however, this is not absolute and in unibet the court made clear that MS must ensure a system of legal remedies that guarantees effective judicial protection. if no legal remedy exists that makes it possible, even indirectly, to ensure respect for rights derived from EU law, national law may have to provide one.

e.g. factortame I

WEEK 2!!

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what is preliminary reference procedure?

Opinion 2/13 para. 176

its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law (see, to that effect, judgment in van Gend & Loos, EU:C:1963:1, p. 12), thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 67 and 83).

how does the procedure work?

a national court asks questions on validity or interpretation of EU law, and the CJEU gives an answer that enables the national court to rule on the case!!

what are the two grounds the national court asks a question on?

1) interpretation

2) validity

what are the two objectives of preliminary reference procedure?

1. to avoid different interpretations of different national courts (uniform interpretation)

2. individuals would receive judicial protection in national courts where EU law applies.

what is the background of the preliminary reference procedure?

direct effect => individuals can directly rely on EU law before national courts!!

is the pre. reference procedure like an appeal one?

NO, individuals cannot force the courts to refer to the CJEU but rather national courts will decide when this is necessary to do so!!

what does Kempter para 41 say?

the system established by Art. 267 TFEU instituted direct cooperation between the CJEU and national courts by means of a procedure which is completely independent of any initiative by the parties.

is preliminary reference a mechanism of judicial empowerment?

YES, lower national courts can circumvent higher national courts by going to the ECJ.

this means that if a national court does not like the interpretation of a higher national court, it can get a binding interpretation for both from the CJEU!

why is this important?

1) to question the ruling of a superior national court.

2) to ensure lower courts' judicial independence in the context of the rule of law crisis in Poland

3) national law asks a question on validity or interpretation of EU law to the CJEU, which provides an interpretation of EU law which is also binding on higher courts.

where can we find the relevant information about preliminary reference?

ARTICLE 267 TFEU!!

who can make a reference?

any court or tribunal of a MS!

what is the criteria of an institution to be able to file a preliminary reference?

Banco de Santander para 51:

1. must be established by law

2. permanent

3. have compulsory jurisdiction

4. independent

has the CJEU accepted any reference from non-independent courts?

yes, in some cases.

especially polish courts C 132/20 Getin Noble Bank, para 61!!

how are the tasks divided between CJEU and national courts?

CJEU => art. 267 (1)

- interpretation of the treaties!

- interpretation and validity of EU legal acts of the institutions, bodies, offices or agencies of the EU.

what can the CJEU not do?

the CJEU cannot interpret the national laws of Member States because it simply does not possess the knowledge to do so.

however, if the national law is modeled on EU law, the CJEU may give interpretation of EU law to present as a model.

what are key elements to remember of pre. reference?

1. the CJEU cannot declare invalid national law and national courts cannot declare invalid the EU law.

2. the CJEU does not rule on facts or specificities of national law.

what happens if a national court considers that an EU legal act is invalid?

sends a preliminary reference on the validity to the CJEU (Foto Frost)

can the interpretation of CJEU dictate the outcome of the case?

YES, some examples include:

- cassis de dijon

- laval

option or obligation to refer?

article 267 TFEU:

para. 1 may => option to refer

para. 2 shall => obligation to refer

what is the idea?

any court of a MS may refer but courts of last instance are under an obligation to refer!!

when can or must national courts refer?

1. a national court can always refer when it considers necessary.

2. a national judge must always be authorized to send a preliminary reference.

when is a question necessary to enable the national court to give judgment?

the necessity must be determined by the national courts, but the CJEU may reject under certain circumstances.

when can the CJEU reject?

a reference from a national court may be refused if it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (C 52/16 and C113/16, SEGRO and Horvath, paras 42-43).

purely hypothetical questions are not necessary and will not be answered (Foglia).

are the courts of last instance under an obligation to refer?

YES, but there are exceptions.

what are these exceptions?

CILFIT paras. 12

1. if this is not considered relevant

2. acte eclaire

3. acte clair

what makes an act unclear though?

obligation of national courts to review different language versions and jurisprudence of other courts (Consorzio Italian Management)

but what should the courts of last instance do if they decide not to refer to CJEU?

obligation to state reasons if it considers a situation to fall within one of the exceptions (Consorzio Italian Management, KUBERA).

how must they state it?

specifically and concerently (Remling, para. 24)

does failure to refer also cause another issue?

YES, an HR violation under art. 6 ECHR!!

what are the effects of preliminary reference procedure?

1. the preliminary reference and the CJEU interpretation applies to all MS but the specific guidance will be directly binding on the referring court.

2. it will produce an interpretation which will apply ex tunc!!

what does ex tunc mean?

it means that the interpretation could create retroactive effects.

is it problematic?

yes, because of legal certainty.

WEEK 3!!

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what are the type of actions in the EU?

1. direct

2. indirect

whats indirect action?

under art. 267 TFEU => preliminary reference procedure

whats direct action?

art. 263 TFEU => annulment procedure

direct access to eu courts, avoiding detours through national courts.

limited access for individuals (plaumann)

what does article 263 TFEU say?

1. acts subject to review

2. applicants (privileged, semi, none)

3. time limit

what acts can be reviewed?

1. Legislative acts art. 289 (3) TFEU

2. Acts of the institutions and other Union bodies to produce legal effects for third parties

3. Some non-legislative acts

whats ordinary legislative procedure?

EP + Council

whats special legislative procedure?

one institution formally adopts the act with participation/consent of the other

how to do this?

1. identify legal basis

2. determine which procedure

what are some non-legislative acts?

- delegated acts (art. 290)

- implementing acts (art. 291)

- other binding decisions

what is the key test in determining that?

does the act produce binding legal effects for third parties?

what are the categories of applicants?

1. privileged

2. semi privileged

3. unprivileged

when do unprivileged applicants have a standing?

1) addressed to that person

2) of direct and individual concern to them

3) against a regulatory act which is of direct concern to them and does not entail implementing measures

when does direct concern occur?

a person has 'direct concern' when the EU legal act directly affects the legal situation of the applicant (Les Verts)

when does individual concern occur?

very hard to satisfy!

if the act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes themselves individually just as in the case of the person addressed.