W1 - Intro & National Procedural Autonomy | Quizlet

art. 19(1) TEU

The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts.

- Possible: establishment of specialised courts at the CJEU

- Currently no specialised courts

- previously: civil service tribunal (cases brought by EU employees) (now GC)

art. 19(2)

composition of the court of justice

• One judge from each Member State (ECJ)

• Assisted by Advocates-Generals: give reasoned submissions on their opinion of how the court should decide in a given case (advisory function) (art. 252 TFEU)

• Do NOT decide, court not bound by the opinions

• at least one judge from each Member State (GC)

Court of Justice of the European Union

 the Court of Justice of the European Union - the institution as such, as founded in the treaties

Court of justice/ECJ

The Court of Justice - the adjudicatory body or configuration of the Court that has the power to decide

composition:

- One judge from each Member State

- Assisted by Advocates-Generals

General Court/GC

the adjudicatory body or configuration of the CJEU that often decides in direct actions as a court of first instance

-          Previous name: court of first instance

composition:

- At least one judge per Member State (currently 2)

judges selection criteria

Articles 19(2) TEU, 253-255 TFEU

The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union.

- Appointed by common accord for 6 years (reappointment possible)

appointment of judges procedure

three step procedure

1. MS government proposes candidate --> MS pre-selection, un-harmonised

2. assessment by the 255 panel -->  Modelled on national appointment committees

3. appointment by common accord of the governments of the MS

assessment by the 255 panel

Modelled on national appointment committees

Assessment of candidates for office:

- Legal capabilities  - knowledge of internal market law, competition law, private int. law…

- Professional experience

 - Ability to perform duties of a judge

- Language skills – French and English

 - Ability to work in an international environment

 – independent, impartiality, probity and integrity beyond doubt

issues:

- who keeps the 255 panel in check?

- policy made up by the panel which cannot be found in the treaty

- indirectly set age limit for EU judges (Portuguese candidate not having '20 years of experience'

CJEU mandate and jurisdiction

Art. 19(1) TEU: the CJEU ‘shall ensure that in the interpretation and application of the Treaties the law is observed’:

- Broad mandate, incl. the establishment of unwritten general principles of EU law

- Reference to ‘the law’ seems broader than interpretation and application of the Treaties, generally how art. 19(1) is understood

--> Can establish unwritten principles of EU law not found in the EU treaties – e.g. the principle of effective judicial protection

Art. 19(3) TEU: the CJEU shall, in accordance with the Treaties

- Rule on actions brought by MS, institutions or a natural or legal person

- Give preliminary rulings

- Rule in other cases provided by the Treaties

(+ More detailed rules in Arts. 251-281 TFEU)

art. 19(3) TEU

 The Court of Justice of the European Union shall, in accordance with the Treaties:

(a) rule on actions brought by a Member State, an institution or a natural or legal person;

(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;

(c) rule in other cases provided for in the Treaties.

(mandate of the CJEU)

ECJ mandate (division of tasks)

Covers:

- Infringement proceedings

- Preliminary references (except when GC is competent)

- Annulment and failure to act (art. 51, 2024 Reform of the Statute of the Court of Justice & Rules of Procedure)

GC mandate (division of tasks)

covers:

- Annulment and failure to act brought by natural or legal persons

 - Annulment cases brought by Commission

 - Preliminary references in the following areas: VAT, excise duties, common tariffs, passenger rights cases and the greenhouse gas emission trading system

GC preliminary reference mandate

handles preliminary references in the following areas: VAT, excise duties, common tariffs, passenger rights cases and the greenhouse gas emission trading system

- very recent development (2024 reform of the statute of the court of justice & rules of procedures)

-   Request for specific areas of law, which are easily identificable, sufficiently seperable form other areas of law, few principles applicable that the GC can rule on a preliminary reference

Efficiency argument for this? – not only helping workload but also allowing the ECJ to be more of a constitutional court

 

Example of how procedural law can impact substantive changes

are the treaties a constitutional charter

Les Verts §23: The EU is “based on the rule of law inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.”

“[T]he Treaty established a complete system of legal remedies and procedures [...].”

- but cannot call it a constitution because it is not

- any wrongdoing should be sanctioned by the remedies provided by the treaties

jurisdictional limitations

post Lisbon limitations:

Article 24(1) TEU: no jurisdiction over CFSP matters, except:

 - To monitor compliance with Art. 40 TEU – court competent to determine whether something falls within the CFSP or not (obligation to choose the most appropriate legal basis)

- To review the legality of decisions adopted under art. 257 TFEU to: Determine the delineation between the CFSP and other areas of EU law / Review sanctions

- Article 276 TFEU: no jurisdiction to review the proportionality of police actions or law-enforcement

- Article 263(4) TFEU: attempted easing of requirements for standing for non-privileged applicants

system of remedies (6)

1. Preliminary reference procedure (art. 267 TFEU)

2. Annulment action (art. 263 TFEU)

3. Action for failure to act (art. 265 TFEU)

4. Action for failure to fulfill obligations (arts. 258-260 TFEU)

5. Plea of illegality (Art. 277 TFEU)

6. Action for damages (art. 268 and 340(2) TFEU)

Preliminary reference procedure

art. 267 TFEU

- obligation of higher national courts

- discretion of lower national courts

- THE instrument for lower courts to interact with the ECJ

- May be acceleraated for AFSJ cases (e.g. migration law)

annulment actions

art. 263 TFEU

- pertains to the EU

action for failure to act

art. 265 TFEU

- pertains to the EU

infringement proceedings

(action for failure to fulfil obligations) arts. 258-260 TFEU

- Pertains to MS, usually started by the commission

plea of illegality

Art. 277 TFEU

action for damages

art. 268 and 340(2) TFEU

horizontal interaction

(interactions of procedures)

e.g. combining a plea of illegality in combination with annulment procedure

vertical interaction

(interactions of procedures)

complementarity of centralised and decentralised levels of enforcement. For example:

▪ Centralised enforcement in infringement procedure and

▪ Decentralised enforcement through direct effect

national procedural autonomy

- in the absence of EU procedural law, MS are free to determine the manner of enforcement

- only applies when no specific EU law provision governs the situation (not that many instances where EU has harmonised procedural law) - Rare, except for private international law and migration law

(Rewe-Zentralfinanz §5)

what falls within national procedural autonomy

-  Time limits

-  Intensity of judicial review

-   Ex officio (court on its own motion) review of EU law – what if parties have a right under EU law but do not know, can courts nnonetheless introduce points of EU law? – no not obligated (NL)

-   Suspensive effects

Etc. (non-exhaustive list)

limits to national procedrual autonomy

stems from Art. 4 (3) TEU principle of sincere cooperation. For MS active duty to cooperate and comply with EU law.

In the context of national procedural autonomy this is:

1. Principles of equivalence and effectiveness (Rewe- Zentralfinanz)

2. Principle of effective judicial protection

principle of equivalence

The national procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than the national procedural rules governing similar domestic actions /

EU law-based claims cannot be treated less favourably than purely national claims (National law should not be treated more favourably than EU law)

(Levez)

principle of equivalence application

two steps to show breach:

 1. national claims that are comparable or similar to the one based on EU law

- Assessment carried out by national court, focussing on purpose, cause of action and essential characteristics (Levez, paras. 39, 41)

- in practice most difficult step, will always be a reason that the national rule is not comparable (Very stringent test)

- If not equivalent, principle does not apply

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

- Member states need not apply the most favourable rule to an action based on EU law

principle of effectiveness

the national procedural rule must not render practically impossible or excessively difficult the exercise of rights conferred by EU law /

Procedural rules in national laws must not make the exercise of EU law rights ‘practically impossible or excessively difficult

(Pontin para 47)

More intrusive than equivalence (may require a strengthening of national remedies, change of procedural law)

But: principles such as the right of the defence, legal certainty and proper conduct of proceedings (e.g. reasonable-time limits for brining proceedings for legal certainty, Rewe §5)

examples of breaches of effectiveness principle

- National conditions make it excessively difficult to obtain reparation (German law limiting the liability of the state exercising its legislative function in Brasserie/Factortame)

- National requirement of intent to prove loss

- Restrictive conditions on the action for damages

- legislation limiting the period from which wage claims could be made

steps for assessing national procedural autonomy

1. Has the EU harmonised procedural law?

Yes --> apply EU rule

No --> step 2

2. national procedural autonomy applies

general rule: in the absence of EU rule, MS free to determine national procedures for the enforcement of EU rights

3. Do the Rewe principles apply?

limits of national procedrual autonomy: equivalence and effectiveness

4. Limits of Rewe principles – e.g. a strict time limit needed bc legal certainty at stake, rights of the defence, proper conduct of proceedings etc.

effective judicial protection

-

- Effective access to court

- Effective judicial review

- But also: judicial independence (Joined Cases C-585/18, C-624/18 and C0625/18, A.K. et al., para. 120)

- access to a remedy

effectice judicial protection codified

started as a general principle of EU law (Case 222/84, Johnston, para. 18)

Now codified in Arts. 19 TEU and 47 CFR (Unibet, para. 37 – confirmation of its codification)

no new remedies principle (effective judicial protection)

MS not required in principle to create new remedies – but this is not asbolute

- Principle of effective judicial protection requires MS to (at least) establish a system of legal remedies which ensures respect for that right

- ‘It would be otherwise only [...] if no legal remedy existed [that makes] it possible to ensure, even indirectly, respect for [EU law rights]

Rewe v Hauptzollamt Kiel (Butter-buying cruises)

Unibet

Factortame I

Rewe effectiveness vs effective judicial protection

(Rewe principles embody the principles of effective judicial protection)

but differences:

› Rewe effectiveness as a limit to MS procedural autonomy

      vs Effective judicial protection is a fundamental right (every individual has it), more abstract application

 

› Rewe effectiveness formulated negatively, precluding certain national provisions

      vs Effective judicial protection may also include positive obligations (e.g. change the law, introduce new remedies) (but does not prescribe in detail how national rules should be designed)

 

› Rewe effectiveness applies ‘in the absence of EU rules governing a matter’

        vs Effective judicial protection applies where EU law provisions exist

CJEU as an institution cases (2)

1. Valančius --> three step procedure for appointment, compliance with art. 255 TFEU

2. Les Verts --> complete system of remedies

National procedural autonomy cases (3)

1. Rewe-Zentralfinanz --> principle of procedural autonomy, equivalence and effectiveness

2. Pontin --> principle of equivalence, principle of effectiveness

3. Factortame I --> interim relief precluded by common law rule

effective judicial protection cases (3)

1. Unibet --> confirmation of codification, no new remedies principle not absolute

2. Johnston --> principle of judicial protection

3. Rewe v Hauptzollamt Kiel (Butter-buying cruises) --> no new remedies principle

Valančius

--> three step procedure for appointment, compliance with art. 255 TFEU

Facts:

- Lithuanian case, had an independent appointment panel

- Gov bypassed the first qualified person on the list, appointed the second candidate

- MS free to choose their candidate in any manner they want, can do so as long as the requirements of art. 255 TFEU

 

three step procedure:

1. MS government proposes candidate

2. Assessment by so-called ‘255 panel’

3. Appointment by ‘common accord’ of the governments of the MS

§29

Les Verts

--> complete system of remedies

The EU is “based on the rule of law inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.”

“[T]he Treaty established a complete system of legal remedies and procedures [...].” §23

Rewe-Zentralfinanz

--> principle of procedural autonomy, equivalence and effectiveness

Facts:

- Under Ger administrative law: obligation to pay charges for sanitary inspection of French apples imported to Germany §2

- Previous case law ruled these fees were illegal (equivalent to customs duties)

- After the ruling, 2 Rewe supermarkets applied for the annulment of the decisions imposing the charges + refund of the amounts paid

- Claim dismissed -  Time limit for starting the procedure had passed under national procedural law, no longer had standing §2

rule: principle of national procedural autonomy

- Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each MS ... to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favorable than those relating to similar actions of a domestic nature §5

rule: conditions for the principle of procedural autonomy

- “the position would be different only if…”)

1) the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect (except where reasonable periods of limitation of actions are fixed) §5

- The laying down of such time-limits ... is an application of the fundamental principle of legal certainty protecting both the tax-payer and the administration concerned

2) the procedural conditions governing the action may not be less favourable than those relating to similar actions of a domestic nature (= principle of equivalence)

Pontin

--> principle of equivalence, principle of effectiveness

Rule: principle of equivalence §45

- EU law-based claims cannot be treated less favourably than purely national claims.

Rule: principle of effectiveness §47

- Procedural rules in national laws must not make the exercise of EU law rights ‘practically impossible or excessively difficult'

Factortame I

--> interim relief precluded by common law rule

Facts

- Companies which operate fishing vessels registered under UK national law. Directors and shareholders were mostly Spanish nationals (the appellants)

- UK national law altered to stop quota hopping bc fishing quotas were plundered by vessels flying the British flag but lacking any genuine link with the UK §4

- To be eligible for re-registration the vessel had to british owned (imposed nationality requirements), appellant fishing vessels failed to satisfy conditions for registration → deprived of the right to fish → challenged the compatibility of the act with EU law §10

HoL judgement: under national law, the English courts had no power to grant interim relief in a case such as the one before it. More specifically, it held that the grant of such relief was precluded by the old common-law rule that an interim injunction may not be granted against the Crown,

rule: principle of sincere cooperation (it is for the national courts ... to ensure the legal protection which persons derive from the direct effect of provisions of Community law) §19

rule: if a national rule, no matter how old/prestigious (i.e. parliamentary sovereignty, violates the principle of effectiveness it must be disapplied §21

rule: a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule. §23

Johnston

--> principle of judicial protection

Facts

- national provisions on sex discrimination (Contracts of women members of the reserve would be renewed only in cases in which the duties being performed could only be undertaken by a women member)

- Mrs J lodged an application with Industrial Tribunal She contended that she had suffered unlawful discrimination prohibited by the Sex Discrimination

- Chief Constable produced a certificate issued by the Secretary of State: 'the act consisting of the refusal of the Royal Ulster Constabulary to offer further full-time employment to Mrs J was done for the purpose of (a) safeguarding national security; and (b) protecting public safety and public order

- Mrs J conceded that the certificate issued by the Secretary of State would deprive her of any remedy if national law was applied on its own; relied on the provisions of the directive in order to have the effects of Article 53 of the Sex Discrimination Order set aside.

rule: effective judicial control as a general principle of EU law

- reflects a general principle of law which underlies the constitutional traditions common to the Member States. §18

rule: provision from the Sex Discrimination order found contrary to principle of effective judicial control

- a provision which requires a certificate such as the one in question ... to be treated as conclusive evidence that the conditions for derogating from the principle of equal treatment are fulfilled allows the competent authority to deprive an individual of the possibility of asserting by judicial process the rights conferred by the directive. §20-21

Rewe (Butter Buying Cruises)

--> no new remedies principle

Facts:

- Proceedings between a wholesaler and retailer established in DE and the Principal Customs Office

- cruise passengers have the opportunity to buy goods such as spirits, butter, meat, tobacco, perfume and other products. Within certain limits no tax is charged on the importation of the goods at the German frontier.

- alleged the fact that these undertakings are able to sell goods tax-free or subsidized gives them a considerable competitive advantage which leads to distortion of competition.

rule: in principle no new remedies needed; A MS is not required to create new remedies

- although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law §44

--> The Court seemed to assume that the legal systems of the Member States would offer a range of remedies which could where necessary be adapted to ensure that rights claimed by litigants under Union law could be upheld.

Unibet

--> confirmation of codification of effective judicial protection, no new remedies principle not absolute

Facts:

- U purchased advertising space in a no. of different Swedish media with a view to promoting its gaming services on the internet.

- In accordance with the Law on Lotteries, the Swedish State took a number of measures, including obtaining injunctions and commencing criminal proceedings, against those media which had agreed to provide Unibet with advertising space §17

- brought an action against the Swedish State; it has the right to promote its gaming and betting services in Sweden and is not prevented from doing so by the prohibition under the Law on Lotteries; claimed damages; claimed interim relief (was first denied)

rule: confirmation of the codification of effective judicial protection §37-38

-  the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms … and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union §37

- Under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law §38

rule: No new remedies principle’ is not absolute §41-42

- Union law might require the creation of a new remedy, it said, ‘if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under [Union] law . . . ’

- … it is for the Member States to establish a system of legal remedies and procedures