Topic Page
Article 267 TFEU 2
Direct Effect, Indirect Effect & State 4
Liability
Free Movement of Goods (Article 34 7
TFEU)
Free Movement of Workers (Article 45 11
TFEU)
Free Movement of Business: Article 49 17
(Establishment) & Article 56 (Services)
Sex Discrimination (Article 157 TFEU) 24
Competition Law Article 102 TFEU 30
Competition Law Article 101 TFEU 33
Discuss the merits of X pursuing its 38
claim through national courts as
compared to complaining to the
European Commission.
Proportionality 39
Keck Long Answer Q 40
Anything highlighted in yellow is for application
Remember to note the facts that are ABSENT
Annotate flow charts with case law, explanations etc.
Logical Structure
State the law
Define the principle – citing authority
Apply the law to the facts
Present a reasoned conclusion
NB – there isn’t necessarily a ‘right answer’
Presentation
Use headings
Statutory materials
Conclusion on the facts
Timing
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Article 267 TFEU – p.18 Statutory Extracts
Is there an issue of interpretation/validity of EU Law?
Article 267(1) TFEU states that ECJ has jurisdiction ‘to give preliminary rulings’
regarding (a) interpretation of Treaties and (b) the ‘validity and interpretation of acts
of the institutions, bodies, offices or agencies of the union’.
Identify the facts what the issue being raised it
How does it relate to Article 267 to ensure that the ECJ has jurisdiction?
Then analyse the elements of Article 267.
Is X a court or tribunal?
Only courts or tribunals can make Article 267 references. The meaning of what a
court or tribunal is is a question of EU law, not national law.
If it is clear from the facts that X is a court/tribunal, there is no need to discuss
Dorsch Consult
In the Dorsch Consult, the ECJ listed relevant factors to determine whether a body
is a ‘court or tribunal’; also known as the Dorsch criteria.
(a) Is the body established by law?
(b) Is it permanent?
(c) Is its jurisdiction compulsory?
(d) Is its procedures ‘inter partes’ (hearing both sides)?
(e) Does it apply rules of law?
(f) Is it independent?
Not all of Dorsch need to be fulfilled (Broekmeulen). As X fulfils most of the
guidelines, it probably is a ‘court or tribunal’. Nordsee confirmed an arbitrator isn’t a
court or tribunal because of its voluntary nature and absence of official involvement
(Nordsee) These cases considered borderline bodies so would support the
conclusion that X is a ‘court or tribunal’.
Is a decision on EU Law point necessary for judgement?
If we assume that X is a court or tribunal, Article 267 states that the ECJ will rule on
a question if the issues present are ‘necessary’ to require such judgement. The
CILFIT criteria should be applied by national courts to decide whether an ECJ ruling
is ‘necessary’. A decision on EU law won’t be necessary under CILFIT if one of
these situations applies:
The question is irrelevant to the case’s conclusion– APPLY
Previous ECJ decisions have already dealt with this question – APPLY
The correct application of EU law is so obvious as to leave no reasonable
doubt on resolution (acte claire) – APPLY
o If they are asking a question unlikely it is that obvious
The ECJ warned against liberally applying acte Claire (Da Costa). NATIONAL
COURT X must believe that even the ECJ and other Member States’ national courts
would find the answer obvious. Therefore, they must consider the ECJ’s purposive
approach to EU law. However, national courts make the final decision on whether
the decision is ‘necessary’, and the ECJ can’t interfere with the decision. A question
can still be referred to the ECJ if previously decided if circumstances have changed
(Da Costa). Therefore, on the facts, a ruling from the ECJ is ‘necessary’. Article
267 TFEU distinguishes two different types of courts: ‘mandatory’ and ‘permissive’
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jurisdiction courts. A court of ‘mandatory’ jurisdiction is the highest national court in
a Member State (Costa v ENEL). Its decisions can’t be appealed so their decisions
have ‘no judicial remedy under national law’. A court of permissive jurisdiction is any
other court or tribunal (not of mandatory jurisdiction) within a national court system. X
is…
Mandatory Jurisdiction – Court of Final Instance
As X is a court of mandatory jurisdiction, a reference must be made to the ECJ. If X
failed to refer to the ECJ, they can be sued for state liability, if ‘sufficiently serious’
because it is a court of final instance (Kobler v Austria).
Permissive Jurisdiction – Court subject to Appeal
As X is a court of permissive jurisdiction it has two choices: referring a question to
the ECJ or deciding on the question of EU law on their own (Foglia v Novello (No
2)). This is because COURT X isn’t at top of the appellate court hierarchy. The ECJ
provides guidelines to help national courts decide on making a reference. A higher
national court can’t stop a lower national court from making a reference
(Rheinmuhlen). References are ‘particularly useful’ when the question is new and
of general interest for the uniform application of EU law. Foto-Frost confirmed
national courts can’t declare EU law invalid.
The ECJ’s decisions must be followed by the national courts. The ECJ can refuse to
accept references if there is no genuine dispute (Foglia v Novello (No 1)), if it is
outside their jurisdiction (Foglia v Novello (No 2)) or if a lack of factual or legal
background is provided (Telemarsicabruzzo v Circostel).
How the answer would differ if it was a Regulation / Treaty Article?– p.18
Statutory Extracts
Article 288 TFEU states Regulations and Treaty Articles are directly applicable in all
Member States. Regulations have a general application and are binding in their
entirety. States do not implement these measures. If the Van Gend criteria was
satisfied for a Directive, X can rely on the Regulation’s direct effect because they
have horizontal and vertical direct effect.
Direct Effect, Indirect Effect & State Liability
The issue in question concerns…
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I will deliberate whether X has any remedies under EU against X or anyone else;
considering direct effect, indirect effect and state liability.
Direct Effect
Article 288 TFEU states that Directives are binding only on the Member States it’s
addressed to. National authorities must implement the Directives into national law,
but they have discretion regarding the form and methods used to achieve this. EU
law with direct effect can be relied on by individuals in Member State courts.
National courts must apply it with EU law taking precedence over their national law.
The specific provision can be used as a ‘sword’ and a ‘shield’ without requiring
national implementation. For a directive to have direct effect it must satisfy the Van
Gend criteria:
1. The Directive must be clear and precise
2. The Directive must be unconditional
3. The Directive leaves no room for the exercise of discretion in implementation
across Member States.
APPLY!
DIRECTIVE X satisfies the Van Gend criteria. The time limit for DIRECTIVE X’s
implementation (GIVE DATE) has expired, so the Directive has direct effect (Ratti).
Directives only have vertical direct effect against the state or an emanation of the
state, unlike Treaty Articles or Regulations (Marshall). Vertical direct effect means it
is only possible for an individual or business to rely on a Directive against the state
or an emanation of the state after the implementation date has passed. Vertical
direct effect can be relied on if the Directive is clear, precise and unconditional (Van
Duyn). This affirmed the Van Gend criteria. Faccini Dori confirmed obiter
comments in Marshall that Directives can’t have horizontal effect. Duke v GEC
Reliance confirmed this: the facts were identical to Marshall, yet because the
business involved was private (horizontal claim), her claim was unsuccessful.
In Foster v British Gas, the ECJ defined an ‘emanation of the state’ as a body:
Which is responsible for carrying out a public service;
Under State control;
o The body itself doesn’t require state control, but the industry it operates
in must be. Griffin v South-West Water was held to be state-
regulated because they had a government regulator supervising their
activities.
Holding special powers to perform these functions
X is employed by …
Not all three conditions of Foster need to be satisfied (Farrell v Whitty and Others).
The body must be responsible for a public service delegated by the state, and either
point (2) or (3) can be satisfied. NUT v Governing Body of St Mary’s CofE
(Aided) Junior School also applied Foster flexibly, stating a body doesn’t need to
satisfy all three conditions.
X could potentially be an emanation of the State if it satisfied Farrell, but more
information is needed to confirm this decision. Therefore, it is unclear whether X
could rely on Direct Effect, so we would need to look at indirect effect.
Therefore, X is (not) an emanation of the state, so X would:
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