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Legal Remedies case law summary
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Legal Remedies case law summary.
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WEEK 1 THE CJEU AS AN INSTITUTION AND JUDICIAL ACTIVISMCase C-579/12 In this case, the General Court gave a wrong interpretation of EU law.
RX-II European
Commission v. § 60: the CJEU held that the judgment of the General Court adversely affected the
Guido Strack, unity and consistency of EU law.
judgment of 19 § 61: the first paragraph of Article 62b of the Statute of the CJEU provides that if
September 2013 the CJEU finds that the decision of the GC affects the consistency of EU law, it is
to refer the case back to the GC, which is to be bound by the points of law decided
by the CJEU. In exceptional cases, the CJEU can give final judgment if the
outcome of the proceedings flows from the finding of fact on which the decision
of the GC was based.
§ 62: the CJEU cannot confine itself to finding that the unity or consistency of EU
law is affected without stating the implications of that finding as regards the
dispute in question.
What the Court does:
§ 63: it sets aside the judgment of the GC.
§ 64: it rejects a plea that was not examined by the GC.
§ 67 and 68: rejects an argument made by the Commission.
§ 69: the Court gives a final judgment:
Having regard to all the foregoing considerations and, as the adverse effect on the
unity and consistency of European law is the result, in the present case, of an
erroneous interpretation of Article 1e(2) of the Staff Regulations and Article 4 of
Annex V thereto, and as a correct interpretation of those provisions, namely,
essentially that which the Civil Service Tribunal gave in its judgment in Strack v
Commission, entailed, as is apparent inter alia, from paragraphs 47 and 56 of the
present judgment, the rejection of the first and second pleas relied on by the
Commission in support of its appeal and, therefore, the dismissal of the appeal in
its entirety, it is appropriate for the Court to give final judgment in this dispute by
dismissing that appeal.
Regulation Regulation on the transfer to the General Court of jurisdiction at first
2016/1192 instance in disputes between the European Union and its servants.
Substance:
Jurisdiction at first instance in disputes between all institutions, bodies, offices,
and agencies on the one hand, and their servants, on the other, in respect of which
jurisdiction is conferred on the CJEU, should be conferred on the GC.
Case 294/83 Parti The Green Party in Paris challenged political party funding from the Parliament.
Ecologiste ‘Les They claimed the system was unfair in distribution against newer parties. They
Verts’ v. sought a declaration that the European Community was not entitled to give
European funding for political parties, challenging the decision of the Bureau of the
Parliament European Parliament concerning the allocation of the general budget.
= when can The first question that the Court must address: the Court’s jurisdiction to hear and
someone challenge determine an action for annulment brought under Article 173 of the Treaty against
1
,a EU act? Does the a measure adopted by the European Parliament. The question that must be
EP have standing answered was whether the list in Article 173 was exhausted (this list did not
in Court? mention the EP).
= possible § 23: “It must first be emphasized in this regard that the European Economic
demonstration of Community is a Community based on the rule of law, inasmuch as neither its
judicial activism. 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. [...] The Treaty established a complete system of legal remedies and
procedures designed to permit the Court of Justice to review the legality of
measures adopted by the institutions.”
§ 24: “It is true that, unlike Article 177 of the Treaty, which refers to acts of the
institutions without further qualification, Article 173 refers only to acts of the
Council and the Commission. However, the general scheme of the Treaty is to
make a direct action available against 'all measures adopted by the institutions .. .
which are intended to have legal effects', as the Court has already had occasion to
emphasize in its judgment of 31 March 1971 (Case 22/70 Commission v Council
[1971] ECR 263). The European Parliament is not expressly mentioned among
the institutions whose measures may be contested because, in its original version,
the EEC Treaty merely granted it powers of consultation and political control
rather than the power to adopt measures intended to have legal effects vis-à-vis
third parties. Article 38 of the ECSC Treaty shows that where the Parliament was
given ab initio the power to adopt binding measures, as was the case under the last
sentence of the fourth paragraph of Article 95 of that Treaty, measures adopted by
it were not in principle immune from actions for annulment.”
§ 25: “An interpretation of Article 173 of the Treaty which excluded measures
adopted by the European Parliament from those which could be contested would
lead to a result contrary both to the spirit of the Treaty as expressed in Article 164
and to its system.”
Case 70/88 Essence:
European In this case, the Court revised the Treaty rules on standing rights in annulment
Parliament v. actions, notwithstanding the (then) Treaty’s reservation of competence to do so to
Council of Member States. The Court does not merely see itself as an ‘agent’, but more like a
Ministers ‘trustee’.
(‘Chernobyl I’)
What happened?
(Capacity of the The Parliament brought an action for annulment of a regulation. However, the
European Parliament did not have that power under Article 173 of the EEC Treaty.
Parliament to
bring an action for According to the Court, this brings in danger the institutional balance created by
annulment) the Treaties (par. 21).
§ 22: Observance of the institutional balance means that each of the institutions
must exercise its powers with due regard for the powers of the other institutions. It
also requires that it should be possible to penalize any breach of that rule which
may occur.
2
, § 23: The Court, which under the Treaties has the task of ensuring that in the
interpretation and application of the Treaties the law is observed, must therefore
be able to maintain the institutional balance and, consequently, review the
observance of the Parliament' s prerogatives when called upon to do so by the
Parliament, by means of a legal remedy which is suited to the purpose which the
Parliament seeks to achieve.
§ 26: The absence in the Treaties of any provision giving the Parliament the right
to bring an action for annulment may constitute a procedural gap, but it cannot
prevail over the fundamental interest in the maintenance and observance of the
institutional balance laid down in the Treaties establishing the European
Communities.
Joined Cases This joined case was about the right to compensation in the event of delay of
C-581/10 and flights. The ECJ was asked to interpret Regulation (EC) No 261/2004 (‘the
C-629/10, Nelson Regulation’). The question was, in essence, whether, and if so under what
v Lufthansa conditions, passengers whose flights are delayed enjoy the right to compensation
under the Regulation. The regulation itself does not expressly provide such a
right, unlike passengers of cancelled flights, who do enjoy this right. The ECJ
ruled that, based on the principle of equality, flights that are delayed for more than
three hours must receive the same compensation as cancelled flights (see § 33).
§ 38: In order to alleviate such unequal treatment, Regulation No 261/2004 must
be interpreted as meaning that passengers whose flights are the subject of long
delay may receive the same compensation, namely that laid down in Article 5(1)
(c)(iii) of that regulation, as passengers whose flights are cancelled (see Sturgeon
and Others, paragraph 61).
Note: This ruling sparked huge criticism amongst commentators as the ECJ seems
to have created a new right, that was not included in the Regulation.
Case C-414/16, Essence: The first major ruling on the reconciliation of the autonomy rights of
Vera Egenberger religious organisations with the right of employees (or potential employees) of
such organisations to be free of discrimination.
§ 51: The objective of Article 4(2) of Directive 2000/78 is thus to ensure a fair
balance between the right of autonomy of churches and other organisations whose
ethos is based on religion or belief, on the one hand, and, on the other hand, the
right of workers, inter alia when they are being recruited, not to be discriminated
against on grounds of religion or belief, in situations where those rights may
clash.
§ 52 & 53: To that end, that provision sets out the criteria to be taken into account
in the balancing exercise which must be performed in order to ensure a fair
balance between those competing fundamental rights.
In the event of a dispute, however, it must be possible for the balancing exercise
to be the subject if need be of review by an independent authority, and ultimately
by a national court.
3
, Crucial: effective judicial review (see § 55).
The Court of Justice’s ruling made it clear that German law had gone too far by
allowing such a wide scope for religious employers to determine for themselves
whether a particular job could be reserved to those of a particular faith.
Having found that the German legislation was not compatible with the Directive
the Court then had to address two further interesting issues. First, it had to give
guidance to the national court on the question of how the ‘fair balancing’ ought to
be carried out and then it had to advise on how to implement the consequences of
its finding in the case.
In relation to how to carry out the ‘fair balancing’ the Court had to walk a
tightrope. It acknowledged that under ECHR case law, states are precluded from
assessing the legitimacy of the beliefs of a religious organization. However, it also
had to ensure that the imposition of an occupational requirement relating to
religion or belief was, in the words of the Directive ‘genuine, legitimate and
justified, having regard to [the] ethos [of the religious employer]’. Thus it had to
decide how to recognize the necessarily subjective requirements of the ethos of
the employer, with the seemingly objective requirements of the ‘genuine,
legitimate and justified’ test.
The Court adopted an approach that is significantly more objective than the
approach taken in German law. It set out a test under which religious
organisations must show an ’objectively verifiable existence of a direct link
between the occupational requirement imposed by the employer and the activity
concerned.’ Thus, in order to meet Article 4(2)’s requirements that the difference
in treatment on grounds of religion be ‘genuine, legitimate and justified’ the Court
held that:
‘To be considered ‘genuine’: ‘professing the religion or belief on which the ethos
of the church or organisation is founded must appear necessary because of the
importance of the occupational activity in question for the manifestation of that
ethos or the exercise by the church or organisation of its right of autonomy.’
To be considered ‘legitimate’ it found that the national court must ‘ensure that the
requirement of professing the religion or belief on which the ethos of the church
or organisation is founded is not used to pursue an aim that has no connection
with that ethos or with the exercise by the church or organisation of its right of
autonomy.’
And to be considered justified the CJEU set down that ‘the church or organisation
imposing the requirement is obliged to show, in the light of the factual
circumstances of the case, that the supposed risk of causing harm to its ethos or to
its right of autonomy is probable and substantial, so that imposing such a
requirement is indeed necessary.’
Finally, although a proportionality requirement is not included in the text of
Article 4(2) (and is included in other Articles of the Directive), the Court held that
as proportionality is a general principle of EU law, the exemption given by Article
4
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