Session 1 : Relationships btw EU law and national law : the effects of EU Law and the preliminary reference procedure

Costa c/ ENEL 1964

CJUE doctrine of primacy

Handelgesellshaft 1970 + So Lange 1974 / 1986

EU law prevails over constitutional law

Resistence from national constitutional courts

Tanja Kreil 1998

constitutionnel rules must ne interpreted so that they are no more incompatible with EU law (indirect effect)

Simmenthal 1977

national judge must discard the national law incompatible with EU law

So Lange saga

Solange I = The German Constitutional Court ‘held that EC legal acts were reviewable on their conformity with German fundamental rights as long as there was no effective system of fundamental rights protection on the EC level’

Solange II = The German Constitutional Court ‘argued that the EU fundamental rights protection was prevalent, but only under  the reservation that the EU provided an adequate protection of fundamental rights’

Maastricht = The German Constitutional Court ‘held that the European treaties could only be ratified if they complied with certain core principles of the German Constitution’, in particular the principle of democracy 

Honeywell = Ultra vires doctrine: EU law could not demand primacy if the measure was not covered by the competences that have been explicitly transferred to the EU by the Member States in the EU founding treaties

Van Gend and Loos 1963

Direct effect = treaties are more than an agreement, confers rights on individuals → still, the provision must be precise, clear and unconditional 

Defrenne case 1976

A flight attendant was not paid the same wage as her male colleagues → back then, only a provision provided equal pay for equal work in the Rome Treaty : the provision was self-executing : direct effect

PBM : Art. 288 TFEU

directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods

Solution : CJEU Van Duyn 1974

Directives can by directly effective if member states fail to transpose them (on time / properly) provided they satisfy the other conditions + directives are binding and will be more effectively enforced if individuals can rely on them

Marshall 1984

Limitation to the direct effect of directives : direct effect of directives is solely vertical NOT horizontal. It means : non transposed or wrongfully transposed directives can only be involved ag/ the MS to which they are addressed and not ag/ private individuals

Why ? → “according to article 288 the binding nature of the directive…exists only in relation to the MS to which it is addressed”

Article 4(3) of the Treaty of the European Union

State liability : The State is liable for non conforming with EU law

Francovich and Bonifaci 1990

Three conditions to establish the State liability :

oThe result prescribed by the directive should entail the grant of rights to individuals

o It should be possible to identify the content of those rights on the basis of the provisions of the directive

o There must be ‘a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties’

Köbler 2001

Procedures before the Court of Justice of the EU: focus on the reference for preliminary ruling

Introduction to the RPR procedures : Article 267 TFEU

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

The reference for preliminary ruling on interpretation

Interpretation on what ?

• Treaties and texts with equivalent value : Treaties (primary law – constitutional value), equivalent value: EU Charter of Fundamental Rights, (Restrictions CFSP)

• Acts of EU institutions, organs and bodies

• General principles of EU law

• International agreements

Coman 2016

Facts of the case : Adrian Coman (RO) marries Clai Hamilton (US national) in Belgium in 2010, He wants to move back to his home country Romania, but the Romanian authorities refuse to grant a residence permit to his husband since 

The EU Citizenship Directive (2004/38) requires MSs to allow EU citizens to be accompanied by their ‘spouse” : RPR on interpretation: concept of ‘spouse’?

Findings of the CJEU : 

• Same-sex spouses should be recognized under the Citizenship Directive

• This is based on: Free movement rights of EU citizens, Right to respect for private and family life (Art. 7 of the Charter), Not expressly Art 21 CFR

• This does not require all MS to provide for same sex marriage in their own legislation (might encourage it?)

The reference for preliminary ruling on validity

Exclusion : Treaties, CFSP, judgements and decisions of CJEU 

Competence : Acts of EU institutions, organs and bodies, CSFP restrictions

Stauder 1969

General principles of EU law in a RPR on validity: human dignity

Facts : the owner of the vouchers needed to show their ID when wanting to use them : the pbm is not in the EU vouchers in themselves but rather in how the german authorities implemented the EU instrument 

CAP: requirement to indicate name of beneficiary on coupons? Human dignity?

Decision : fundamental human rights form an integral part of the general principles of Community law and are as such protected by the Court

Conditions for lodging the RPR

Court or Tribunal criteria?

Decision of a jurisdictional nature 

A real and actual dispute

‘Monopoly’ of the domestic court

Obligations of the domestic court

Procedure before the CJEU

• Established by law,

• Permanence,

• Compulsory competence,

• contradictory proceedings,

• the body applies rules of law,

• independence

When is a RPR possible/compulsory ?

Possibility to refer : → principle: the national court has discretion to assess whether a reference for preliminary ruling is necessary

Obligation to refer (interpretation)

• Obligation on courts of last resort i.e. those whose decisions may not be appealed internally (within the national legal system)

• Why? Because the interpretation and application of EU law performed by those courts will not be corrected by a higher court

• This also applies to courts which are not at the top of the judicial hierarchy but are tasked with delivering judgments that may not be appealed

When can the obligation to refer be waived?

• ‘Acte clair’ theory 

• Exception applies only in three cases (C-283/81, CILFIT) → 

1. The question is not relevant to the dispute

2. The provision has already been interpreted by the Court of Justice

3. The interpretation of EU law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved

Obligation to refer (validity) : 

• General prohibition on all domestic courts to assess the validity of an act of EU law

  • Legal certainty and the consistency of the EU legal order are at stake

  • 314/85, Foto-Frost c/ Hauptzollamt Lübeck-Ost

• Acte clair does not apply, it can never be considered ‘obvious’ that a provision of EU law would be invalid

Special accelerated procedures

Accelerated procedures

• Art. 105 of the CJEU’s Rules of Procedure provides for an accelerated procedure derogating from general rules. 

• The initiative to request it generally comes from the national court

• The decision to go through an accelerated procedure is made by the president of the Court, after hearing the Rapporteur, the AdvocateGeneral and sometimes parties to the proceedings. 

• Exceptionnally, the president may of his/her own motion decide to activate this procedure.

The ‘PPU’ – urgent preliminary procedure : 

• Art. 107 of the Rules of Procedure

• questions concerning the areas of the AFSJ may be submitted to a PPU when the nature of the case requires it to be processedquickly. 

• The written phase of the procedure may even be omitted in cases of extreme emergency.

Consequences of a preliminary ruling

Authority of the ruling on interpretation

• The national court must apply the rules of law as interpreted by the CJEU; otherwise Commission mayhave ground to initiate infringement proceedings

• Other courts (not just the one that referred the question to the CJEU) may rely on the ruling

Authority of the ruling on validity

• Res judicata

• CJEU, 5 March 1986, C-69/85, Wünsche v Germany, pt 13.

• EU institutions must take necessary measures to remedy the situation