[FINAL] LEU Exam Notes | Quizlet

Principle of Conferral

Arts. 4(1), Art. 5(1), Art. 5(2) TEU

EU Competences

1. Exclusive Competences: Art. 3 TFEU

2. Shared Competences: Art. 4 TFEU

3. Complementary Competences: Art. 6 TFEU

NB: These are not legal bases themselves! They outline the areas of legal basis.

Legal Dispute Disputes

1. Titanium Dioxide (Centre of Gravity Test): The choice of a legal basis “may not depend simply on an institution's conviction as to the objective pursued but must be based on objective factors amenable to judicial review,” in particular “the aim and content of the measure”

2. Tobacco Advertising I: There can be mutiple complementary objectives for a legal act

Legal Basis Dispute (Limitations of Art. 114 TFEU)

1. Tobacco Advertising I : (1) the measure must genuinely have as its object the improvement of the internal market (2) a mere finding of disparities + an abstract risk of obstacles is not sufficient (to justify Art. 114 TFEU)

models of integration in creating an internal market

1. Positive integration

2. Negative integration

Positive model of integration

1. The EU adopts legislation to harmonise member states laws and create common EU legislation

2. Such legislation (e.g. a directive or regulation) must have a direct legal basis on which it is adopted, and the

3. EU legislature must be accorded the competence to legislate as such in the treaties

Examples: Art. 114 TFEU

Negative model of integration

1. Legal prohibitions in the EU treaties directed at Member States and private entities

2. Treaty prohibitions are directly applicable, and thus do not require further specification or legislative action via the EU legislature to take effect

3. National legislation remains intact, however such legislation may not violate the Treaty prohibitions

Example: The Four Fundamental Freedoms of the Internal Market

Models of negative integration

1. International Model

2. Federal Model

3. National Model

International model of negative integration

- Negative integration here means states voluntarily agree to remove trade barriers through international treaties, while retaining full sovereignty.

-MS retain their sovereignty, impose domestic laws on foreign products in so far as they do not discriminate against imports

Example: GATT/WTO system

Federal model of negative integration

-Negative integration here means that the federal constitution itself prohibits constituent states from creating trade barriers, ensuring free movement across the federation.

-If a product is lawfully marketed and produced in one MS, then it must be considered as lawful in other MS

National model of negative integration

-Negative integration in the EU therefore cannot resemble the centralised national model — it is always a blend of treaty obligation and constitutional enforcement.

Definition of Autonomy of EU Law

-Only EU law itself may determine the meaning and effects of EU law within the national legal orders of MS

Definition of Direct Effect

-The capacity of individuals to invoke rights and obligations from certain EU laws directly before national courts without needing national transposition or further secondary EU legislation

Primacy/Supremacy of EU law

1. Costa v ENEL: EU law takes precedence over conflicting or contradictory national law

2. Simmenthal II: Confirmed the primacy/supremacy of EU and emphasized that domestic courts must set aside/disapply domestic legislation contrary to EU Law. This setting aside must be done immediately without constitutional or legislative repeal.

Principle of Mutual Sincere Cooperation (aka Loyalty)

Art. 4(3) TEU: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

NB: Direct effect, supremacy, and state liability are applications of this principle

Forms of Direct Effect

1. Vertical: A private party is attempting to invoke EU law against the state before national courts.

2. Horizontal: A private party is attempting to invoke EU law against another private party before national courts.

3. Inverse Vertical: The state is attempting to invoke EU law against a private party in national courts.

Vertical Direct Effect of Treaty Provisions

Van Gend & Loos: (1) The provision must be clear, (2) unconditional, and thus (3) adapted (suitable) to produce direct effects in the relationship between Member States and individuals

Horizontal Direct Effect of Treaty Provisions

Van Gend & Loos, Defrenne II: (1) The provision must be clear (2) unconditional and (3) suitable to apply in the relationships between individuals.

Vertical Direct Effect of Regulations

Simmenthall II, Munoz , Art. 288(2) TFEU: (1) The provision is clear (2) unconditional, (3) adapted (suitable) to produce direct effects between Member States and individuals

Horizontal Direct Effect of Regulations

Azienda Agricola: Provisions of regulations are not inherently (always) directly effective.

They are only directly effective if

Simmenthall II & Munoz: (1) The provision is clear (2) it is unconditional (3) The provision must be suitable to apply in the relationships between individuals

Vertical Direct Effect of Directives

Marshall+ Art. 288(3) TFEU:

(1) Directives can give rise to rights which individuals can rely on in national courts against the state/ have vertical direct effect (Van Duyn) in so far as the (1) The provision must be clear (2) The provision must be unconditional (sets an obligation identifiable within the directive itself), (3) The state has failed to implement the directive within the prescribed period, or has implemented it incorrectly (Marshall)

Horizontal Direct Effect of Directives

Marshall, Faccini Dori + Art. 288(3) TFEU: A provision of a directive cannot have horizontal direct effect, and can only be invoked against Member States (not private parties)

Inverse Direct Effect of Directives

Kolpinghuis: A provision of a directive which has yet to be implemented, may not be relied upon by a national authority against an individual

Indirect Effect of Directives

Adeneler: (1) national courts must only interpret national law in conformity with directives after the transposition deadline has passed. (2) The method of interpretation has to be recognised by domestic law (3) the interpretation must not violate the general principles of law, particularly legal certainty and non-retroactivity, (4) the interpretation cannot be contra legem

Direct Effect of Decisions:

Grad: Decisions can also have direct effect if the respective provision is sufficiently clear and unconditional

Direct Effect of General Principles of Law

Dansk Industri:

-‘Non-discrimination on the grounds of age’ in art. 21 CFR confers an individual right invokable before a national court (both in vertical and horizontal disputes).

-Directives can’t be directly invoked against another individual; however, the general principle enshrined in it can.

-First see if IE of the Directive is possible, if not, then DE of the Charter right itself

State Liability Order of assessment

-(1) Indirect Effect - if this fails proceed to (2) Direct Effect - if this fails proceed to (3) State Liability

-NB: State liability can work with Direct/Indirect Effect in so far as you suffered damages from noncompliance with EU law

State liability conditions

Brasserie du Pêcheur and Factortame III:

-(1) The provisions must be intended to grant rights (2) The breach must be sufficiently serious (3) There must be a causal link between the breach and the damage sustained by the individual

-In assesing the seriousness of the breach, consider: the clarity and precision of the rule, the measure of discretion left to the MS, whether the infringement was intentional, whether any error of law was excusable.

Free Movement of Goods All Provision

1. Art. 34 TFEU (Quantitative Restrictions + MEEs)

2. Art. 30 TFEU (Customs duties + CEEs)

3. Art. 110 TFEU (Internal taxation + MEEs)

Art. 34 TFEU Applicability

1. Is the case about goods? If yes, proceed

- Jagerskold: Goods have tangible physical characteristics

-Italian Art: Products which can be valued in money and which are capable of being the subject of commercial transactions

2. Is the measure non-fiscal in nature? If yes, proceed.

-If it fisca,l then it falls under Art. 30, or Art. 110 TFEU

3. Is there applicable harmonization legislation? No

4. Is there a cross-border element?

-Goods moving from one MS to another

-Reverse discrimination (disadvantages domestic but not foreign goods) and wholly internal situations are not sufficent

5. Can the claimant invoke Art. 34 TFEU? If yes proceed

- Art. 34 TFEU has vertical direct effect

- Art. 34 TFEU does not have horizontal direct effect

-Commission v France (Angry Farmers): However, member states are obligated to enforce against sustained restrictions to free movement caused by individuals

Material Scope of Art. 34 TFEU

1. Is the measure a quantitative restriction? If not, MEE

-Measures that set a numerical or total ban/limit on imports (e.g. quotas on total goods/complete prohibition)

2. Measures having equivalent effect (MEE)

(1)General Rule for MEEs: Dassonville: “All [trading]rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having equivalent effect.”

(2) Specify the type of MEE:

1. Product requirements (e.g., alcohol percentage, also includes labeling of products)

-Casis De Dijon: Product requirements are always MEEs

-FamiliaPress: If you have to change the contents of the product to comply with a rule, then it is still a product requirement even if it appears like a selling arrangement

2. Product Use Restrictions

-Italian Trailers: Always MEEs

3. Minimum Pricing Requirements:

- Scotch Whisky: Always MEEs

3. Selling Arrangements (advertising, opening hours, sales promotion rules):

-Keck & Mithouard: Are not MEEs as long as the Keck Exception applies: The measure applies equally to all traders and does not discriminate against foreign products in law or in fact

-Gourmet Internationale: Example where a selling arrangement was an MEE because it was,/by fact, discriminatory against foreign goods

4. Measures indirectly and uncertainly affecting the inflow of goods

-Krantz: Such measures are not MEEs where the impact of the measure on trade is uncertain or indirect - MEEs require a significant impediment

Justifications + Proportionality Art 34 TFEU

1. Treaty Justifications: Art. 36 TFEU (public morality, security, health, to justify MEE)

-Conegate (Public Morality): MS cannot rely on public morality as a justification for import (quantitative) restriction, if the same good can be lawfully produced in the MS

- Cassis de Dijon (Public Health + Consumer Protection)

2. Mandatory requirements (non-exhaustive justifications in case-law

- Italian Trailers Road Safety

3. Proportionality

-Suitability (to address the objective pursued)

-Necessity (no less strict/restrictive alternative measure)

Art. 30 TFEU

1. All customs duties and charges having equivalent effect are prohibited

2. No real justification (absolute restriction) unless the charge is prescribed by the EU law itself

3. Statiscal Levy: There is no minimum monetary threshold; all customs duties are prohibited, laid down a rejection of a de minimis levy

Art. 110 TFEU

- Concerns Indirect Taxes: Indirect taxes are taxes on goods and services that are paid through prices, not directly by the person to the government ( VAT, excise duties, car taxes)

3 Prohibitions:

(1) Prohibition of internal indirect discrimination (Humblot):

-France’s vehicle taxation system increased taxes based on HP of cars

-German cars on average were higher HP than domestically produced French cars

-Thus the tax measure was indirectly discriminatory as the products are interchangeable (e.g. a slightly higher HP car), and the measure benefits domestic goods more than foreign goods

(2) Prohibition of internal direct taxation (Outkumpu):

-Finland’s electricity tax was higher for imported electricity than domestic electricity and thus was directly discriminatory

(3) Prohibition of indirect protectionist internal taxation for domestic products (Beer and Wine):

-Beer and Wine are in competition (substitutable drinks) → so Art. 110(2) applied.

-The higher taxation on wine gave protection to domestic beer production - violating Art. 110(2) since beer was domestically produce,d unlike wine

Free Movement of Workers Provisions

-Art. 45 TFEU

Applicability of Art. 45 TFEU

1. Is the case about workers? If yes, proceed

-Lawrie-Blum: CJEU imposes an autonomous definition of the term “worker” for EU law regardless of how workers are defined under national law. Workers are: (1) For a certain period of time (2) Working for and under the direction of another person (in a hierarchical relationship) (3) In exchange for remuneration

-(Levin) This includes part-time work, and remuneration below minimum wage in so far as the work is not “purely marginal and ancillary”

2. Is there applicable harmonization legislation, If yes apply the legislation

-Regulation 492/2011

-Directive 2004/38/EC

If not:

3. Is there a cross-border element

-Moving to another MS to take up employment

-Returning to your own MS after having exercised free movement rights

-Saunders: Wholly internal situations are not covered by Art. 45 TFEU

4. Can the claimant invoke Art. 45 TFEU?

- Van Duyn: Art. 45 TFEU is sufficiently clear and unconditional, so it has vertical DE

-Walrave; Bosman: Art. 45 TFEU can also be invoked on against private entities who are exercising their legal autonomy and who are regulating in a collective manner, paid labour

-Angonese: Prohibition of nationality (indirect/direct) discrimination in Art. 45(2) TFEU can be invoked against all private parties actions → ‘full’ horizontal DE

- Only for Nationality Discrimination!

Material Scope of Art. 45 TFEU

1. Does the measure constitute a restriction on the free movement of workers (restrictions cover access to work and equal treatment in work)

(1) Prohibition of direct and indirect discrimination

-Direct Discrimination: Bosman: Limits to the number of foreign workers (players) and no limits to domestic workers (players) - direct discrimination based on nationality

-Indirect Discrimination: Angonese: Situation in which locals (Italians) are in a more favorable position than non-locals (Non-Italians), generally speaking (e.g., because of a language certificate needing to come from Italy) - Indirect discrimination based on nationality

(2) Prohibition of non-discriminatory obstacles to free movement of workers

-Bosman: Rules that Directly affect[s] [workers]/players’ access to the employment market in other MSs’ (para 103 +96)

-No Keck Exception!

Justifications and proportionality for workers

(1) Justifications: Art. 45(3) TFEU

- Public Policy as a ground of justification

(Adoui and Cornuaille): “There must be a genuine and sufficiently serious threat affecting one of the fundamental interests of society

(2) Imperative requirements:

-No arbitrary discrimination (Adoui and Cornuaille)

(3) Proportionality:

-Composed of suitability and necessity (e.g. Bosman, para 104)

(4) Public service exception (Art. 45(4) TFEU)

-You can reserve some types of employment for your own nationals, insofar as the job requires a ‘specific bond of allegiance & mutuality of rights/duties between the State and the employee’

Regulation 492/2011 (For workers)

(1) Regulation 492/2011:

-Same definition of a ‘worker’

- Cross-border element necessary (only applies to going to another MS for work, not returning to your own)

- Sufficiently clear & unconditional provisions have horizontal and vertical direct effect (Simmenthall II, Munoz, Azienda Agricola)

-Chapter I, section 1 (Art. 1-6): Equal treatment in access to work

-Chapter I, section 2 (Art. 7-9): Equal treatment within employment

-Wide interpretation (Cristini): Wide interpretation of the principle of non-discrimination; The right to equality of treatment shall apply to all persons coming under the provisions of the Regulation. It must be taken as to include all social and tax advantages. (Cristini also applicable to Art. 45 TFEU)

Directive 2004/38/EC (For workers)

(2) Directive 2004/38/EC:

a. Workers

-Same definition of worker

-Need for a specific cross-border element; Art. 3(1)

-Sufficiently clear and unconditional provisions have only a vertical direct effect (Marshall, Faccini Dori)

-Art. 6; Right to reside for 3 months (also subject to not being a tax burden per Art. 14)

-Art. 7(1)(a): right of residence >3 months

-Art. 7(3): retention of the status of workers in specific situations

-Art. 16: right of permanent residence after 5-year lawful residence

-Art. 24(1): general right to equal treatment for persons lawfully residing in another MS

-Art. 27(1): (Justifications) for restrictions to entry and residence based on public policy, public security and public health

-Art. 27(2): proportionality principle for public policy and security measures

-Art. 28(2) and (3): protection against expulsion based on public policy and public security

-Art. 29: public health restriction

a. Job Seekers

-Art. 14(4)(b): right of residence

Art. 24(2): no right of equal treatment for job-seekers

But see Art. 7(3): retention of the status of worker

Freedom of Establishments Provisions

1. Art. 49 TFEU (main provision)

2. Art. 54 TFEU (rules for firms & companies)

NB: Freedom of establishment includes legal persons (companies) and self-employed persons

3. Art. 52 TFEU (justifications)

Applicability of Art. 49 TFEU

1. Is this case about establishments (legal persons or self-employed persons)

- Definition of an establishment (legal persons)(Gebhard): an entity “participating, on a stable and a continuous basis, in the economic life of another Member state”

-Definition of a self-employed person (Lawrie-Blum) - establishes the criteria for a ‘worker’ and thus by reverse, the criteria of a self-employed person: “engages in work with no hierarchical relationship, carries the financial risk of the business, and receives direct payment in return for their service”

-Per Art. 54 TFEU, the freedom of establishment only applies to companies insofar as they are legally established under the laws of the MS where they are incorporated

2. Is there applicable harmonisation legislation? If yes apply it

Services Directive (Chapter III)

-If something doesn’t fall under the directive, you need a cross-border situation to apply Art. 49 TFEU:

3. Cross-Border Element

-Moving to another MS to take up a self-employed activity (e.g., Vlassopoulou)

-Returning to your own MS after having exercised free movement rights (Knoors - not in reader)

-Transferring a company to another MS (Daily Mail)

-Setting up a secondary (subsidiary/branch) establishment in another MS (Centros)

4. Can the claimant invoke Art. 49 TFEU

-Art. 49 TFEU is sufficiently clear and unconditional, and thus has vertical direct effect according to the CJEU (Memorize)

-Art. 49 TFEU can also be invoked against private entities that are exercising their ‘legal autonomy’ and that regulate in a collective manner the free movement of establishment (e.g., trade unions, see Viking Line)

Material Scope of Art. 49 TFEU (Natural/Self-employed)

1. Natural Persons (Self-employed):

(1) Prohibition of direct and indirect discrimination

-Direct Discrimination: Reyners (Not in reader)

- Indirect discrimination: Vlassoupoulou: Requirements for qualifications from the host MS apply equally to everyone, and thus formally neutral, but in practice favours host nationals = Indirect discrimination

(2) Prohibition of non-discriminatory obstacles to the freedom of establishment for natural persons (self-employed)

-Vlassopoulou (General Rule)

-Does not matter if the measure is not directly/indirectly discriminatory based on nationality only, if it hinders the freedom of establishment for nationals of other MS that constitutes a restriction (see below in Gebhard)

-Gebhard: ‘National measures liable to hinder or make less attractive the exercise of fundamental freedoms (para. 37) are obstacles”/ are a restriction

Any measure [even without discrimination] that makes less attractive the freedom of establishment for non-host national MS must be justified

Duty of mutual recognition of previous qualifications: ‘MSs may not ignore the knowledge and qualifications already acquired by the person concerned in another MS’ (para 38)

Material Scope of Art. 49 TFEU (Legal persons/companies)

(2) Legal Persons (Companies):

-Viking Line (Prohibition of restrictions to the exercise of company activities): Art. 49 extends to trade unions as they are not normal private entities, but they have the real capability to regulate the freedom of establishment

-Daily Mail (Restrictions on transferring companies to other MS) :

-Companies are creatures of the law,

-Under Art. 54 TFEU, it is up to the MS to determine the criteria for being an MS company

-National rules defining what constitutes a “company” under domestic law are not in themselves restrictions under Article 49 TFEU.

-Centros (Prohibition of restrictions in secondary establishments):

-CJEU ruled that refusal to register a secondary establishment constitutes a restriction on the freedom of establishment

-Exercise of free movement rights to set up companies in MS with more favorable laws is not an abuse of EU law

-Refusal to register such companies is a restriction

Justifications Art 49 TFEU

1. Treaty derogations in Art. 52 TFEU: Valid ground of justification per Art. 52, the measure must also be proportional (suitable and necessary)

2. Imperative Requirements

-(Gebhard): Must be a legitimate objective of public interest, indistinctly applicable (no direct discrimination), and proportionate (suitable and necessary)

Services Directive (Establishments)

1. Scope

- Governs establishments per Chapter III

-Check whether the case falls under any of the excluded activities of Art. 2

If it falls under the excluded activities per Art. 2, then the Directive does not apply

2. Material Scope

-Art. 2: excluded types of services ( → subject to Art. 49 TFEU)

Art. 4(6): broad definition of an ‘authorization scheme’

Art. 9: authorisation schemes are not allowed unless they are non-discriminatory, justified, and proportionate

Art. 10(1) & Art. 10(2): Criteria for granting authorisation

Art. 11: Rules on duration

-Chapter III applies also within wholly internal situations (Visser Vastgoed)

Free Movement of Services: Main Provisions

1. Art. 56 TFEU (Main provision)

2. Art. 57 TFEU (Defines services)

3. Art. 63 TFEU (Treaty derogations/justifications for establishments apply to services)

Applicability of Art. 56 TFEU

1. Is the case about services?

-Art. 57 TFEU: negative definition (defines services by saying what they are not); services as a residual category: ‘insofar as they are not governed by the provisions relating to the freedom of movement of goods, capital, and persons’

-Three additional constitutive criteria: (1) Service/performance, (2) normally provided for remuneration, (3) temporary nature (Gebhard)

2. Is there applicable harmonization legislation? If yes, apply the harmonization legislation

Services Directive Chapter IV

3. If not, is there a cross-border element?

-The service provider moves across borders to provide services in another MS (Sager, Laval)

-The service recipient moves across borders to receive services in another MS (Luise and Carbone)

-The service itself moves (neither the provider nor the recipient moves across borders) (Alpine Investments)

4. Can the claimant invoke Art. 56 TFEU?

-Art. 56 TFEU is sufficiently precise and unconditional and can be invoked against MS - vertical direct effect (Van Binsbergen)

-Art. 56 TFEU can also be invoked against private entities that are exercising legal autonomy and who are regulating ina collective manner the provision of services (Walrave; Laval)

Material Scope of Art. 56 TFEU

1. Does the measure constitute a restriction to the free movement of services?

(1) (in)direct discriminatory restrictions:

-(Van Binsbergen): “Indirectly discriminatory rules that affect the free movement of services are prohibited”

(2) Non-discriminatory obstacles which directly affect market access:

-Sager: discrimination not required, but evidence of an impediment is necessary (para 12) (cf. Alpine Investments para 27)

Laval: Art. 56 TFEU extends to trade unions as they are not normal private entities, but they have the real capability to regulate the freedom of establishment

(3) Non-discriminatory tax measures:

-Mobistar: ‘National measures the only effect of which is to create additional cost in respect of the service in question and which affect in the same way the provision of services between MS and that within one MS are not restrictions’

(para 31.)

-If it is not a restriction, it doesn’t have to be justified

Justifications and proportionality

(1) Treaty justifications

-Art. 52 TFEU, Applicable to services via Art. 62 TFEU

(2)‘Imperative requirements in the general interest’:

Laval: Legitimate objective of public interest, Indistinctly applicable, i.e. no direct discrimination, Proportionality (Suitability and Necessity) (para 101.)

Sager (Necessity Test): National measures can be justified by imperative reasons in the public ‘in so far as that interest is not protected by the rules of the home’ MS and they ‘do not exceed what is necessary to attain’ the imperative reasons in the public interest. Using the principle of mutual recognition to ascertain the necessity of a measure.

Services Directive (for Services)

1. Services Directive Chapter IV

-Refer to Art. 2 (to see which services are excluded)

-Still requires a cross-border element, unlike Chapter III (Art. 16(1))

-Art. 16: No country of original principle, but prohibition to restrict market access (same as case-law) - serves as a market access restriction prohibition

-Black List of particular suspect requirements’: Art. 16(2)

2. Limited justifications

-Art. 17: Treaty derogations + environmental protection

-Art. 18: case-by-case derogations to ensure ‘safety of services’

Free Movement of Citizens: Main Provisions

1. Art. 20 TFEU (Citizenship of the EU)

2. Art. 21 TFEU (Free movement of citizens)

Applicability of Art. 20/21 TFEU

Is the case about a EU citizen?

-(Grzelczyk; Rottmann)‘EU Citizenship is destined to be the fundamental status of the nationals of the Member States’

-(Micheletti + General Principle of International Law): Other MS must recognise the nationality of citizens from other MS (e.g. Italy decides who is Italian, and if they consider someone Italian, all other MS must recognise that)

-(Rottman): Deprivation of national citizenship within the scope of EU law must be proportionate

-(Commission v Malta 2025): Member States may not ‘sell’ their nationality by offering naturalization in exchange for money

2. Does the case fall within Directive 2004/38/EC? If yes, then apply, if not, apply Arts. 20-21 TFEU

3. Is there a cross-border element in the case? If yes, Article 21 TFEU is applicable. If not, Article 20 TFEU may exceptionally be applicable.

-MS preventing / hindering its citizen from moving to or residing in another MS

-Returning to own MS after having exercised free movement rights (not covered by the Directive)

-Wholly internal situations are not covered by Art. 21 TFEU (or the Directive)

4. Can the claimaint invoke Art. 20/Art. 21 TFEU/ or the Directive?

-Art. 21 TFEU is sufficiently clear and unconditional, and has vertical direct effect

-Relevant provisions of Directive 2004/38 are sufficiently clear and unconditional, so they have vertical DE (cf. Marshall)

-Prohibition of horizontal DE of directives (cf. Marshall, Faccini Dori)

Material Scope of Art. 21 TFEU

1.What is not covered by the Directive?

-Restrictions to free movement by the home MS

2. Article 21 TFEU: Does the measure constitute a restriction to the free movement of EU citizens?

(1) Treaty-based derivative rights

-Zhu & Chen: Even if an individual does not qualify as a family member per Art 2(2) of the Directive, Art. 21 TFEU gives a derivative residence right if necessary to ensure effectiveness of the rights of EU citizens in another MS

(2) Independent EU Citizens

-EU Citizens moves back to home MS after living together with a third-country national in another MS

-O&B: Their non-EU family members can keep a derived right of residence, Only if they both lived there for at least 3 months under the Directive 2004/38 conditions. The home state’s rules can’t be stricter than the Directive.

-Even though the Directive doesn’t formally cover the return situation the Court used Article 21 TFEU, interpreted in light of the Directive.

-For ease remember: On return you only have a derived right of residence on return if the Union citizen and third country national have resided in another MS for at least 3 Months

(3) Recognition of same-sex marriage for derivative residence right in return cases (leaving host MS to return to MS of national)

-Coman: refusing to recognize the marriage infringes free movement rights and requires justification; very neutral reasoning regarding the internal market

-Can also apply for the Directive, if it falls within the scope (e.g. not a return case, but in general, since that's not covered by the Directive)

Material Scope of Art. 20 TFEU

3. Art. 20 TFEU: Does the measure deprive the EU citizen de jure or de facto of the enjoyment of the substance of the rights of EU citizenship?

(1) Protection against de jure loss of EU citizenship rights

-Rottman: The threat to withdraw citizenship of an EU state falls within the scope of EU law → CJEU empowered to rule on whether this withdrawal is lawful and proportionate.

(2)Protection against de facto loss of EU citizenship rights

-Ruiz Zambrano: by way of exception - even in a wholly internal situation - MSs are conferred to provide a derivative citizenship right to ensure the children can genuinely enjoy the rights of EU citizenship, and the ability to live within the EU territory

-E.g. foreign nationals with pending asylum claim, have two children in a MS, and the children to prevent statelessness were given MS nationality

-Directive doesn’t apply (needs cross-border); Art. 21 doesn’t apply (needs cross-border), Art. 20 (applies in wholly internal situations) applied, the parents are given derivative residence rights to ensure their children have ‘genuine enjoyment of the substance of EU citizenship’

Justifications for Art. 20 & 21 TFEU?

Art. 20 & Art. 21 TFEU:

-Is there an imperative requirement in the public interest?

-For imperative requirements only, is the measure indistinctly applicable? (direct discrimination never justifiable)

- Is the measure proportionate?

Applicability Directive 2004/38/EC ( for Free movement of citizens)

1. Applicability:

-Art. 3(1) Directive 2004/38: scope of Directive limited to EU citizens 'moving to or residing in another MS'

-Restrictions by own MS generally not covered by the Directive → assessment based on the Treaty (except for Art. 4 Directive 2004/38)

Material Scope of Directive 2004/38/EC (for Free movement of citizens) (1)

. Material Scope

-Art. 4: right of exit

-Art. 5: right of entry

-Art. 6: residence up to 3 months

-Art. 7:

a. Residence up to 3 months and after 5 years you have the ‘clear’ right of residence

b. 3 categories of citizens: Workers and self-employed, Persons with sufficient financial resources, Students

-Categories 2 and 3 are included in Art. 7(1); for those specific groups of people, there are rules when it comes to equal treatment

-In order for the Directive to apply, the person needs to qualify as one of the three categories above. For job-seekers to qualify, they must first satisfy one of the 3 categories

-Art. 7(1)(d): family members have a right of residence that ‘derives from’ the residence right of the worker

-Art. 7(2): applies also to family members who themselves are not MS nationals

-Only applies to family members in the sense of Art. 2(2)

-Art. 7(4): Family members of students - students can only bring spouses and children to another MS where they are following their study programme (parents, grandparents etc. not allowed to be brought)

-Art. 7(4): Family members of students - students can only bring spouses and children to another MS where they are following their study programme (parents, grandparents etc. not allowed to be brought)

-Art. 14(4)(b): residence right for job-seekers

-Art. 16: residence longer than five years

Material Scope of Directive 2004/38/EC (for Free movement of citizens) (2)

(1) Equal treatment for non-economically active persons:

-Art. 14(3): An expulsion measure shall not the automatic consequence of a union citizen or their family members request for social assistance in a host MS

-Thus, the mere fact that you apply for social assistance does not deprive you of your rights under Art. 7(1)(b)

-Art. 24(1): Equal treatment of nationals of other MS to nationals of the host MS lawfully residing in the host MS

-Dano: If you have no residence right under Art. 7 of the Directive, then no right to equal treatment under 24

(2)Equal treatment for students: social benefits

-Grzelczyk: “In all situations which fall within the scope rationae materiae of Community law” students enjoy the right of equal treatment (para 32.)

Students who fall under the scope of EU law must be treated equally to nationals regarding social benefits, if they lawfully reside in the host State

-Requirement of a “certain degree of financial solidarity” (para 44.) to be granted social benefits as a student

Member States can require students from other MSs to have sufficient resources

-Can require some form of independence/intergration into society

(3) Equal treatment for students: student loans/grants (for living costs, expenses, etc)

-Forster: MS may take actions to ensure that study assistance grants do not become an unreasonable burden on the state (para 48.), and foreign students need to display a degree of integration into the MS (para. 49)

A five year residence requirement prior to allowing student loan is not unlawful and disproportionate

-Difference with Grzelczyk: Grzelczyk concerned social benefits for students, Forster about student loans/grants

Mention with Art. 24(2) of the Directive: no right to equal treatment regarding study maintenance grants before permanent resƒidence (>5 years)

Justifications for the Directive 2004/38/EC (Free movement of citizens)

1. For Directive 2004/38/EC

-Only Arts. 27-29(entry and residence) and Art. 24(2) (equal treatment)

-No additional "objective justifications"

Fundamental rights & non-discrimination

-Main Provisions:

-Art. 157 TFEU: Principle of equal pay for male and female workers for equal work or work of equal value is applied.

- Considered a general principle of law in the EU

- Art. 21 CFR

Art. 157 TFEU (Sex-based discrimination in employment)

-Defrenne II: Art. 157 TFEU is sufficiently clear and unconditional and has horizontal direct effect, but only for directly discriminatory measures. Art. 157 TFEU is not, “as such,” sufficiently precise to cover indirect discrimination (where a neutral rule disadvantages women in practice, but not explicitly).

General Principle of Non-discrimination

1. Internationale Handelsgesellschaft: “Fundamental rights recognized in national constitutions are also recognized in EU law as unwritten general principles”

-Fundamental rights are:

a. Always applicable to all acts of EU institutions - have to comply with them

b. Applicable to some acts of MSs

2. When are fundamental rights binding on MS

-Wachauf: MSs bound by EU fundamental rights when they are ‘implementing EU law’ (e.g. implementing a Directive / applying a Regulation) NB This is referring to the principles of EU law not the CFR

-ERT: MSs are also bound by EU fundamental rights when they ‘derogate’ from a fundamental freedom

- You can’t justify a restriction of a fundamental freedom (e.g. free movement of persons) by violating a fundamental right (e.g. freedom of expression, privacy, due process)

Charter of Fundamental rights: Applicability (in general)

1. Applicability of the CFR

-Art. 51(1): always applies to EU institutions, applies to MS when they are implementing EU law

-Art. 52(3) CFR: 'material incorporation'

-Art. 53 CFR: possibility for different levels of protection

If the CFR has a right enshrined, and the national law of MS has that same right enshrined but even more detailed with even stronger protection, the CFR does not resist and allows that higher protection in that State

-Justifications for the interference with the CFR: Art. 52 CFR

Non-discrimination of age

-Mangold: Non-discrimination in respect of age as a ‘general principle of EU law’,

-Kücükdeveci: After the transposition deadline of Directive 2000/78, one cannot rely on it, but can rely on the (general) principle of non-discrimination with regards to age (now codified in Art. 21 CFR).

-Possible even in horizontal rel. If the employer applied national law which allowed (either direct or indirect discrimination); the MS is liable → technically vertical relationship, can rely on CFR, and the national court must set aside the law even in a horizontal dispute

-Dansk Industri: Individuals can invoke CFR rights, if another party relies on national law contrary to EU law (directives on non-discrimination). Thus, horizontal DE in this context is not related to an act by a private party per se, but on the contrary national law adopted by a MS - satisfying Art. 51 CFR

-Bauer: CFR rights can have both horizontal and vertical direct effect

European Arrest Warrant Decisions

b1. General Requirements of the EAW

-Art. 1(2) EAW: Mutual Recognition principle (execution of EAWs on the basis of mutual recognition of MS judicial decisions)

-Art. 1(3) EAW: Mutual trust principle (The presumption of human rights safeguards in other MS decisions is not absolute, and can be refuted in exceptional circumstances) (i.e., if one of the parties rebuts it/challenges it in court)

2. Executing EAWs contrary to MS laws but impede primacy of EU law:

-Melloni: Interpretation of Art. 1(3) EAW, in light of Art. 53 CFR (when an MS applies a higher standard of protection of a fundamental right)

-Art. 53 doesn't mean that, in the situation covered by the scope of EU law, a national constitutional right can obstruct the primacy and effectiveness of EU law (the EAW)

-The refusal to execute the EAW, even if it’s contrary to a MS Constitution, is a breach of EU law!

NB: However, there can be a refusal because of a risk that the person will be subject to inhuman/degrading treatment (see below)

-(L.M): Two- Step Cumulative Test for Rebuttal of the presumption of mutual trust ‘in exceptional circumstance

-(1) Is there a real risk of a breach of Art. 4 CFC, because of systemic or generalized deficiencies in fundamental rights protection?

-(2) In the particular circumstances, are there substantial grounds for believing that the individual will be subject to a violation of Art. 4 CFR? (i.e. Systemic/general deficiencies alone are not enough for non-execution!)

Competition Law Main Provisions

1. Art. 101 TFEU: prohibition of anit-competitve coordination

-Two or more undertakings involved

-Not applicable to arrangements within one undertaking (single-economic unity doctrine)

2. Art. 102 TFEU: prohibition of abuse of a dominant position

-Unilateral conduct by a dominant undertaking\

Applicability of Art. 101 TFEU

1. Are the parties involved undertakings?

-Undertakings Definition:

a.Hofner and Elser: “Undertaking is ‘every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed’’

-Economic Activity

b. Typically defined as offering goods or services on a market

c. EuroControl: Exercise of public authority not of an economic nature (airspace control) is not an economic activity, and thus not subject to rules of competition law

2. Is there coordination in the form of an ‘agreement’ or a ‘concerted practice’?

-Agreement

a. Bayer: Any ‘concurrence of wills’ constitutes an agreement in the sense of Art. 101 TFEU

-Concerted Practice

a.Coordination of undertakings without an agreement

-Anic: three elements of a concerted practice (1) undertakings concerting together (i.e. exchange sensitive information), (2) subsequent parallel conduct on the market, (3) causal link between the exchange of information (1) and conduct on the market (2).

-Once it is established that undertakings concerted together, it is presumed that they subsequently adapted their market conduct

-Imperial Chemical Industries: parallel conduct by undertakings on the market suggests collusion but does not inherently prove it - unless there is no other plausible explanation

3. Does the coordination affect trade between MSs

-Consten and Grundig: is the coordination capable of constituting a threat, either direct or indirect, actual or potential, to the freedom of trade between MSs in a manner which might harm the attainment of the objectives of a single market between States’? If, yes then it affects trade

-Does not matter if there is a decrease (or even increase) in trade; it just matters that it could affect trade → no need to prove effect, only potential

Material Scope of Art. 101 TFEU (by object)

1. Does the coordination have as its object or effect the prevention, restriction or distortion of competition within the internal market?

-Consten & Grunding: Restrictions by object or effect are alternative conditions

-By object: having the purpose of restricting competition

-Once by object is established no need to examine effects

-By effect: you must do a market analysis to prove it actually restricts competition.

(a) Restriction by object

-Cartes Bancaires (para 50): conduct by their very nature as being harmful [...]’, ‘certain types of collusive behavior [...] so likely to have negative effects that it’s redundant to prove that that the negative effects are there

-capable of causing “a sufficient degree of harm to competition’

Examples of ‘By Object ‘Restrictions: Horizontal Price Fixing (Art. 101(1)(a) +Cartes Bancair, Limitation of Product/Technical Development, Market sharing (Art. 101(1)(c))

Material Scope of Art. 101 TFEU (by effect) (step 1)

(b) restriction by effect

-Step 1: Analysis of the ‘relevant market’ on which competition takes place

(1) Substitutability (Demand-Side): Would consumers switch to another product if the price of Product A increases slightly?

-Tested by SSNIP test: Small but Significant and Non-Transitory Increase in Price” (usually about 5–10%)

-If the price of Product A went up by ~10% permanently, would enough customers switch to Product B to make the price rise unprofitable?

-If yes → A and B belong to the same market.

-If no → they’re in different markets.

(2) Substituability (Supply Side):

-Can other producers easily switch their production to make the same product within a short time and at low cost?

-If yes → their products belong to the same market

-Also, qualitative differences

-Geographical market: In which area do products compete?

-In which area are goods and services substitutable from the perspective of (1) consumers and (2) producers? Looking at e.g. transportation costs

Material Scope of Art. 101 TFEU (by effect) (step 2)

Step 2: Analysis of detrimental effects on competition:

(1) non-compete clauses (Remia and Nutricia)

-Some restrictive clauses (like non-compete obligations) appear anti-competitive — but they’re sometimes necessary for a legitimate main transaction (e.g., a merger, a joint venture, or sale of a business).

-If they are ancillary (directly required or necessary for the transaction) it is not a restriction

(2) selective distribution systems (Metro)

-as long as the dealers are selected based on objective and qualitative criteria laid down uniformly and applied without discrimination, it is lawful

-Suppliers (e.g., luxury goods, electronics) only allow distributors meeting certain criteria (training, facilities, brand image) to sell their products.

-Allowed in certain cases: Chanel only sells through high-end boutiques meeting specific presentation and service standards - justified for the purpose of maintaining the brand quality & image

-Vertical agreements restrict intra-brand competition but they usually have some positive effects - promote efficiency and / or inter-brand competition

-Inter-brand competition: between different brands

-Intra-brand competition: between sellers of the same brand

-Rule of thumb: if there is sufficient inter-brand competition, restrictions on intra-brand competition not problematic

-Consten & Grundig: Exclusive Distribution agreements:

-May be legitimate when necessary to enter or organise a new market.

But they must not eliminate all intra-brand competition within the EU

-If an agreement prevents parallel imports or cross-border resale, it gives “absolute territorial protection” to the distributor.

-Such protection is automatically restrictive under Art. 101 TFEU

Material Scope of Art. 101 TFEU (by effect) (step 3)

1. Are the anti-competitive effects appreciable

-Very minor or trivial effects on competition don’t trigger Article 101(1).

-De Minimis Notice sets thresholds for when an effect is too small

-Horizontal agreements: <10% aggregate (combined) market share

-Vertical agreements: <15% market share on each market

-Expedia: Restrictions of competition by object are by definiti,on appreciable

Justifications Art. 101 TFEU

-Can the restriction of competition be justified by Art. 101(3) TFEU?

-Often times restrictions can have both positive and negative effects, and thus two factors must be considered:

(1) Whether the agreement contributes to improving the production or distribution of goods, or to promoting economic or technical progress

(2) Whether it allows the consumers a fair share of benefits and does not completely restrict competition

-Block Exemption

1. categories of agreements that are generally known to meet the 101(3) criteria

-If an agreement cannot be justified, it is automatically void under Article 101(2)

Art. 102 TFEU Applicability

1. Is there an undertaking

-Hofner and Elser: “Undertaking is ‘every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed’’

2. Does the conduct of the undertaking (potentially) affect trade between MSs?

-Consten and Grundig: is the coordination capable of constituting a threat, either direct or indirect, actual or potential, to the freedom of trade between MSs in a manner which might harm the attainment of the objectives of a single market between States? If yes, then it affects trade

Material Scope of Art. 102 TFEU (dominant positions, relevant market)

1. Does the undertaking have a dominant position within the internal market or in a substantial part of it?

a. Defining Dominant Positions

-United Brands (para 65): Dominant position is ‘a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers’

2. Defining the Relevant Market

a. Michelin I: Market definition can make a big difference as to whether an undertaking has a ‘dominant position’

3. Relevant factors for market asseements:

-Factors of importance: position of other competitors, technological, economic or legal advantages of the company, economies of scale, company involved with production and distribution

-Michelin I: Market definition can make a big difference as to whether an undertaking has a ‘dominant position’

-40-50% less likely, factors need to be taken into account

4. Does the undertaking abuse this dominant position?

-Special responsibility

Michelin I: irrespective of the reasons for which it has such a position, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market’

Material Scope of Art. 102 TFEU (exploitative & exclusionary abuse)

5. Two types of abuse

(a) Exploitative abuse: using dominance to exploit customers

1. Predatory Pricing

-Predatory Pricing: AZKO Chemie: When a dominant undertaking charges an unfairly low price

-Price < AVC = Automatically abusive (The firm is selling below the cost of producing each additional unit

-Price < ATC, Price ≥ AVC = Abusive if intention to eliminate a competitor is proven (Firm eventually loses money long-term)

-Price ≥ ATC = No predation

(b)

-Exclusionary abuser: using dominance to exclude competitors from the market and/or preventing new competitors from entering the market

1. Rebates:

-(Hoffmann-La Roche): Loyalty rebates are abusive by nature

-Michelin I: Target rebates are abusive if they are loyalty inducing

-It is loyalty inducing when: (1) you need to reach a purchasing target, (2) applies retroactively ( on all units, not incrementally), (3) the rebate makes it irrational to switch to other competitors

2. Refusal to Deal

-Bronner: Essential facilitate doctrine: refusal to deal with a new competitor can be restrictive

-Strict Criteria: (1) goods, or services are indispensable (2) refusal likely to eliminate all competition, (3) no objective justification

3. Tying

-Increasethe market share of one product by tying it with another product with a large market share

-Tying product: product with dominant position

-Tied product: product which the undertaking aims to increase its market share

-Microsoft: 5 criteria for abusive tying: (1) dominance on the market of the tying product, (2) tied and tying product are separate products, (3) customers cannot obtain tying product without also getting the tied product (4) tying forecloses (restricts) competition, (5) no objective justification (see next step)

-Is the (prima facie) abusive conduct objectively justified

-No equivalent of Art. 101(3) in Art. 102

-Dominant undertakings can escape the prohibition if their conduct is 'objectively justified'

-The conduct has to be proportionate

-Requires absence of less restrictive alternatives

High threshold - difficult in practice

Art. 106 TFEU

-For (1) Public undertakings (companies owned or controlled by the State, e.g. national railways, postal services, or energy monopolies) or (2) undertakings with special or exclusive rights (monopoly-type privileges), Member States cannot adopt or maintain laws, regulations, or administrative measures that cause or permit those undertakings to violate the competition rules (Arts. 101–109 TFEU)

-the existence of state owned companies and or monopolies is not inherently in breach of EU law, but if they act contrary to Art. 101-109 TFEU, that is a breach of EU law

-Hofner and Elser: An abuse of a dominant position in terms of an (public) undertaking being manifestly unable to meet the demands violates Art. 106(1) TFEU

-Porto di Genova: The fact of creating a dominant position by granting exclusive rights within the meaning of Art. 106(1) is not as such incompatible with Art. 102. However, a Member State is in breach if the undertaking in question cannot avoid abusing its dominant position.

Centralized Enforcement of EU Acts

Art. 258-260 TFEU

Infringement Procedure

-Art. 258

-Commission is responsible for enforcing EU law against the MS

-Has wide discretion to start infringement proceedings per Art. 258 TFEU

-Commission v Luxemburg & Belgium: Not fulfilling obligations of EU law because another state has failed to do so is not applicable in EU

-Stages

(1) Precontentious stage: the commission sends a formal notice to a mS

(2) MS are required to reply, and if the Commission accepts the reply, no dispute

(3) If the Commission is not satisfied, then

(4) Referral to the CJEU

-Art. 259: Allows MS to bring other MS before the CJEU

MS may only act against other MS, if the Commission has chosen not do so

-Art. 260 TFEU:If a MS has been found by the CJEU to not fulfill its obligations under the Treaties, it must take reasonable steps to adhere its obligations

-Commission v Belgium: Internal political problems are not a justification for a MS not adhering to its obligations under EU law

Indirect and Direct Conflicts of EU Law

-Direct Conflicts: Direct effect, indirect effect, supremacy

Indirect conflicts: national procedural autonomy

Principle of national procedure autonomy

-Manfredi: Allows member states to use their own national rules for enforcing EU law in so far as they abide by two principles

-Principle of Equivalence: procedural rules for claims based on EU law must be at least as favorable as those for similar claims based on national law (e.g. if a dispute related to national law has a time frame of 3 weeks, then a dispute relating to EU law should be quite similar or the same)

-Principle of Effectiveness: procedural rules may not make the exercise of EU law rights impossible in practice or excessively difficult (e.g. rules allowing only a 5 day limitation period to receive compensation for charges contrary to EU law)

-Examples of national procedural rules which may conflict with the principle of effectiveness (non-exhaustive):

-Limitation periods (e.g. time frame within which you can bring a case to the court)

-(Strict) evidence rules

State liability

-Brasserie du Pecheur (three cumulative criteria): (1) Sufficiently serious breach of EU law (2) Breached provision aims to grant rights to individuals (3) Causal link between the breach and the damages

-Brasserie du Pecheur: Definition of Sufficiently Serious Breach: “manifestly and gravely disregards the limits on its rule-making powers”

-Dillenkofer: failure to take any measures necessary to implement a Directive is a sufficiently serious breach

-British Telecommunications: good faith (bona fide) misinterpretation of EU law requirements not a sufficiently serious breach → ‘excusable breach’

-Kobler: Extends state liability doctrine to the judiciary of a MS, however there is a possibility for State liability due to a breach of EU law by the national court of last instance, but it has to be a sufficiently serious breach in exceptional cases because of the specific nature of the judicial function.

Effective judicial protection

-Overlaps with the principle of effectiveness, but also tied to Art. 47 CFR, and also Art. 19 TEU

-Portuguese Judges: The requirement of ‘judicial independence’ in Art. 19 TEU is directly enforceable. This requirement focuses on national judges acting in the sphere of EU law

-MSs have to provide a national judicial system that is effective, meaning that Art. 19 TEU implies independence of courts, as independence is required for effectiveness

Preliminary Reference Procedure

1. Cases and situations of referrla under Art. 267 TFEU

-CJEU may give preliminary rulings concerning: (a) the interpretation of EU law, (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

-National courts can refer to the CJEU, if and the interpretation of EU law or EU acts, are (1) necessary for a judgement in that case, or (2) there is no further judicial remedy under national law (3) the case involving EU law regards a person in custody CASE

NB: The decisive question is whether there is availability of another appeal; hierarchy (e.g. the ‘court of last instance’) is not always the most relevant

2. Any court of tribunal’ can refer a case to the CJEU

-Dorsch Consult: the body is established by law, permanent nature, compulsory jurisdiction, independence

3. Types of Questions

-Da Costa: Questions that have already been answered are also admissible

-Allowed: Any questions which are necessary to enable the national court to give judgement

-Not Allowed: Hypothetical cases,Questions not relevant to the dispute at hand

-Exceptions to the Obligation to Confer (For Courts of Last Instance -NB not hierarchy but ability to appeal)

-CILFIT: (1) The CJEU has already ruled on a materially identical question (acte éclairé); (2)Or the answer to the question is so clear that the national court can decide itself (acte clair) → no reasonable doubt as to how it should be interpreted

Only in very strict circumstances (CILFIT, paras 17-20)

-NB: THIS ONLY APPLIES TO COURTS OF LAST INSTANCE

Actions of Annulment (Art. 263 TFEU) (Procedure)

1. Competent Institution:

-Art. 263 TFEU: The CJEU (General Court + ECJ) have jurisdiction to rule on actions of annulment

--Art. 256 TFEU (Jurisdiction of General Court for actions relating to Art. 263 TFEU):

-All annulment actions (Art. 263 TFEU) are normally heard by the General Court as the court of first instance.

-However: Art. 51 of the CJEU Statute, carves out a few specific categories of annulment actions that go directly to the Court of Justice (ECJ) instead of the General Court.

2. Reviewable acts

-Includes all acts of the EU intended to have legal effect

-Resolutions (adopted by the EP) are not legally binding; however, if they are intended to have legal effects, they can also be reviewable

3. Legal Standing

(1) Privileged Applicants (Art. 263(2) TFEU):

-Applicants which always have legal standing to bring actions of annulment,

-These applicants are ex officio affected by the adoption of Union acts

-MS, EP, Council, and Commission

(2) Quasi-privileged applicants (Art. 263(3) TFEU)

-The applicants that have the standing to bring a case but only under a prerogative = only when the act in question affects their institutional powers

-Court of Auditors, ECB, Committee of the Regions

(3) Non-privileged applicants (Art. 263(4) TFEU

-Natural and legal persons

-Only have standings under three circumstances: (1) the act is addressed to that (natural/legal) person (2) the act is of direct and individual concern to them, and (3) the act is regulatory, and is of direct concern to them, and does not entail implementing measures

Legal standing for Non-privileged applicants (Art. 263(4) TFEU in actinos for annulment

(1) Act addressed to a natural or legal person

-Inuit (para 47): Act = both regulatory and legislative

-Example: Commission decision imposing a fine on Google for violating Art. 102 TFEU (Automatic standing (of Google) to challenge the act before the General Court

(2) Acts which are of direct and individual concern

-Direct Concern, Microban: the act (1) directly affects the legal situation of the person and (2) leaves no discretion to implementing institutions

-Individual Concern, Plaumann: The act affects the person by ‘reason of certain peculiar attributes’ or by reason of circumstances in which the person is ‘differentiated from all other persons’

-Plaumann Test: Can a clementine producer challenge an EU legal act affecting his legal position? As a clementine producer, you’re not individually concerned in the sense that it is only really affecting you. This is because technically, anybody can become a clementine producer (these commercial activities can be exercised by anyone)

-Extremely high threshold: virtually impossible

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

a. Regulatory acts:

- Inuit: Regulatory acts = Act of general application other than a legislative act

-General application= act applies to a group of people or persons in general or unspecified term (e.g. clementine producers)

-Examples: Delegated acts by the Commission Art. 290 TFEU, Implementing Acts by the commission Art. 291 TFEU

b. Direct Concern:

-Microban: (Direct Concern): the act (1) directly affects the legal situation of the person and (2) leaves no discretion to implementing institutions

c. Implementing Measures

Telefónica v Commission: broad understanding of the term ‘implementing measure’,

-Includes acts from both EU and MS

Time Limits for Actions of Anullment

-Art. 263(6) TFEU: 'The proceedings provided for in this Article shall be instituted within two months of the publication of the measure [...]'

-In practice: time limit starts running 14 days after publication in the Official Journal, and is extended with 10 days to account for delay in mail delivery

-After the time limit expires, you cannot start an action for annulment

Actions of Annulment (Substance) (Grounds of review)

-Art. 263(2); (1) Lack of competence, (2) Infringement of an essential procedural requirement, (3) Misuse of powers, (4) Infringement of the Treaties or of any rule of law relating to their application

-Lack of competence/infringment of treateis = legal basis disputes

-Tobacco Advertising I (Legal Basis Dispute) : See Week 1

-Misuse of powers

-Infringement of essential procedural requirements

a.Only essential procedural requirements

b.Right to be heard (in competition law cases)

c. Duty to give reasons (Art. 296 TFEU)

-Proportionality

CJEU in social policy choices and complex assessments

-EU legislature has a 'wide discretion' in regard to 'social policy choices' and 'complex assessments' (Working Time Directive)

-The Court does not supercede the power of the parliament and other EU institutions; as long as the legislator's choice does not violate the limits of the legality of EU law, the Court does not interfere

-Review limited to 'manifest errors' and 'misuse of powers'

Actions for damages

-Art. 268 TFEU

-Self-standing procedure which allows individuals to receive reparations for damages caused by EU legal acts

-The EU is liable for damages caused by its institutions (Art. 340 TFEU)

-Bergaderm: Substantive criteria for EU liability are the same as for MS liability

-NB: The outcome is not that the EU legal act will be invalidated, but that you will get money; different from the infringement/annulment procedures

National Courts Limitations in Assessing EU Law via preliminary references

-Foto-Frost: National courts are competent to declare an EU act valid, but not competent to declare it invalid.

-Art. 263 allows only the CJEU to declare secondary EU legal acts as invalid

-Foto-Frost: Thus If a national court believes an EU act (like a regulation or decision) might be invalid, it must refer the question to the CJEU (applies to all courts at any level)

Difference between Foto-Frost and CILFIT

-CILFIT clarified when courts of last instance (i.e. those whose decisions are not appealable under national law) must refer a question of EU law for interpretation.

-They must refer if a question of EU law arises.

-A court of last instance does not have to refer if:

-The question is irrelevant to resolving the case;

-The EU law provision has already been interpreted by the CJEU (the question is acte éclairé);

-The correct interpretation is so obvious that there is no reasonable doubt (acte clair)

Relationship between Art. 263 TFEU and Art. 267 TFEU

1. Art. 263: Direct Route (Actions for annulment)

-Fastest

-Time limited

-Standard procedure for appeal against e.g. Commission fining decisions in competition law

-Very difficult for legal/natural persons to have legal -standing

2.Art. 267: Indirect Route (Preliminary Reference)

-Indirect route to request the CJEU to decide on the validity of EU acts

-No time limit

-(Jégo-Quéré): (1) There is no ‘individual and direct concern’ requirement for natural and legal persons to bring their claim via an indirect route, (2) But there could be other standing criteria in national procedural law (Subject to the principles of equivalence and effectiveness) (3) even when there are national procedural rules preventing individuals from going to a national court to bring their claim via an indirect route, there is no reason to loosen the Plaumann test