Exam (elaborations)
EU Law Revision Notes - Distinction
- Module
- EU Law
- Institution
- Queen Mary, University Of London (QMUL)
I achieved a distinction with these revision notes for EU Law at a Russell Group University.
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SOURCES OF EU LAW *Always mention time limits + alternative actions LETTER OF FORMAL NOTICE à Solves 4/5 cases *Administrative stages secure compliance w/ threat of fines looming• Defines alleged breach
• If Commission considers a potential breach, case transferred to “EU Pilot” database
o Quicker: MS must reply within 10 weeks > 1999-2006: average of 23 months
• Strong effect: Reminds MS to take urgent action § If Commission satisfied w/ response, closes file
1) TREATIES o ↑ Structured: Solves 80% files
• If Commission ≠ satisfied w/ response / MS fails to respond in 2 months, issue a reasoned opinion
• EU legal order = founded on treaties o Smith: Too much control to MSs ∴ “passive” Commission doesn’t deal w/ issue = ignores Art 17 TEU duty
o Lisbon Treaty (2007): REASONED OPINION à Solves 9/10 cases o Opaque/unaccountable: Only Commission can access = closed system of negotiation
§ Treaty on European Union (TEU)
• Formal opinion sets out the breach, steps to rectify the issue, time limit for compliance (usually 2 months) § Public/govt/parliament can’t view Commission’s assessment/make submissions
§ Treaty on the Functioning of the European Union (TFEU) o If no time limit, must give MS a reasonable time to comply
§ EU Charter of Fundamental Rights (EUCFR) • If Commission ≠ satisfied, case transferred to “NIF” database for formal stages
• CJEU only adjudicates on matters included in opinion: Anything else = inadmissible
Art 48 TEU: Standard revision procedure Italy (Export Rebates) ART 259 TFEU: ACTION BY ANOTHER MEMBER STATE E.g. English govt
• Before Lisbon Treaty, amended treaties by Inter-governmental conference = executive dominance - Italy failed to pay certain rebates contrary to EU law = breach • If breach, Art 259 TFEU enables MS to initiate infringement proceedings against another MS
• Now, IGC + Convention (amendments ratified by all MSs based on their own constitutional requirements) - Commission notice didn’t include breach of rebates occurring after the rectified breach ∴ ECJ • After hearing both MSs, Commission has 3 months to issue a reasoned opinion
o EU Parl/Council may call IGC w/o Convention if the amendments ≠ significant enough to justify it couldn’t give judgment *Problem Q: If Commission refused to take action under Art 258, Commission can’t delay timing in Art 259
• If MS doesn’t comply, move to judicial stage • If time elapses, complainant MS can bring matter before CJEU
Art 48 TEU: Simplified revision procedure
o Burden of proof w/ complainant MS
• May revise Part 3 TFEU w/o ↑ EU competences ∴ no constitutional amendments REFER TO CJEU à Less than 1/10 cases reach CJEU: 44% settled w/o further court action • Offending MS must comply w/ judgment
o Unanimous decision by European Parliament ∴ 1 MS can block the process • Commission refers matter to CJEU: Makes declaration under Art 260 requiring MS to comply w/ judgment
o Ratification by all MSs • Commission may bring case, irrespective of whether MS later adopts required measures Issues
• Moved from unanimity to qualified majority voting in Council • Rarely used: only 3 cases resulted in CJEU judgment
• Moved from special legislative procedure to ordinary legislative procedure • Burden of proof w/ Commission • Public act of taking another MS to court = potential for political problems
o Requires European Parliament’s consent + no opposition from MS parliaments • Acceptable defence: Commission got it wrong + MS ≠ in breach o Art 259 reflects strong diplomatic tensions between MSs on a highly contentious issue = uncommon in EU
2) SECONDARY LEGISLATION • Generally, CJEU doesn’t accept MS defences Spain v UK (2006)
o Internal difficulties - Concerned voting rights of Gibraltar residents in European Parliament elections
Art 288 TFEU: Type of Acts (adopted by institutions)
Belgium (1970) - Linked to political dispute between Spain + UK on ownership of Gibraltar
• Regulations: Binding in general + directly applicable
- Belgium breached EU law for discriminatory wood tax - CJEU favoured UK
• Directives: Binding, but requires implementation by MSs to give effect to objective
- Belgian govt argued amendment was put before a dissolved Parliament ∴ couldn’t legislate ≠ defence
• Decisions: Binding on the addressed parties • MS prefer to leave it to Commission to initiate proceedings under Art 258
• Recommendations/Opinions ≠ binding • Art 259 can be a device to force Commission to take up the matter
o Reciprocity: National compliance is dependent on compliance by other MSs
Adopting secondary legislation *only important when reviewing legality of Acts of EU institutions France (Lamb imports) France (Mad Cow Disease)
• Art 294 TFEU: Legislative acts - French govt argued ban on British lamb was justified b/c it wasn’t only MS in breach ≠ defence - Initially, UK said they’d take action against France for refusal to lift beef ban after BSE epidemic
o Ordinary legislative procedure: Act jointly adopted by European Parliament + Council ∴ Commission took action itself
o Special legislative procedure: Act adopted by Council who consulted w/ European Parliament (vice-versa) • Only a few cases reach CJEU, 94% of Art 258 actions are resolved at earlier stages
• Lengthy process causes hardship to those affected by breach ≠ best option if requires quick resolution ART 260 TFEU: ENFORCEMENT + FINES
• Non-legislative acts ART 260(1) TFEU
o Art 290 TFEU: Delegated powers to Commission o Commission has no time limit in administrative stages ∴ discretion in taking the next step, if at all =
possible delays • MS must take necessary steps to comply w/ CJEU judgment
o Art 291 TFEU: Commission adopts implementing legislation, where uniformity is necessary ∴
Commission v France (2006) • Craig (1992): 2) Initial judgment = merely declaratory * à Now, heavy penalties under Art 260(2)
implementation by MSs ≠ desirable o Weak incentive: No specific sanctions + expects MS to voluntarily comply
- Action lasted from 1973-1994
3) INTERNATIONAL AGREEMENTS o But MS usually complies, b/c doesn’t want to be seen as a delinquent state
• EU has legal personality ∴ international agreements w/ 3 rd countries/international organisations = binding Little role for individuals in centralised enforcement *Ensures MS rectifies breach > compensate individuals
ART 260(2) TFEU: RETURN CASE TO CJEU
• Craig (1992): 1) Adversely affected complainants have little control over the process *
4) GENERAL PRINCIPLES OF LAW • If MS doesn’t comply w/ CJEU judgment under Art 258/259, Commission may bring further court action
• Individuals/private parties may complain to Commission
• Unwritten source of law in the legal order/common legal tradition of MSs, e.g. non-discrimination • Art 260(2) TFEU: CJEU can fine MSs for non-compliance
o But wide discretion: Commission ≠ compelled to initiate Art 258 proceedings
• Binds EU institutions + MSs • Both / lump sum (penalises earlier non-compliance) / periodic penalty payment (↑ each day until compliance)
Star Fruit France (Fisheries enforcement)
- Belgium Banana trader complained prejudice by French banana market organisation = breached EU law § Lump sums: Punishes the damage caused, based on effect of breach on public + private interests
ARTICLE 258-260 TFEU Centralised enforcement: Commission initiates proceedings against MS before CJEU
Decentralised enforcement: Individuals initiate proceedings against private
parties/MS before national courts/tribunals
- Commission didn’t initiate proceedings against France = within their discretion
o Usually, pursues most serious infringements first ∴ effective procedure
§ Penalty payments: Urgency to end breach *If implements directive before judgment date, only order lump sum
§ Both: Persistent, prolonged breaches
Commission v France (1971) • Factors to consider when deciding size/type of fine: ∴ affects how offending MS reacts to it
ART 258 TFEU: ACTION BY COMMISSION *Don’t repeat, discuss policies à Lock (2012): High success rate: 78% - AG Roemer: Commission is sometimes justified in not taking action, e.g. may achieve an amicable o Duration + seriousness of breach
• Art 258 TFEU: If Commission considers MS breached Treaty obligation, may initiate infringement proceedings settlement if formal proceedings were delayed / proceedings aggravate a domestic political crisis o Ability of pay: MS’s GDP
o Art 17 TEU: Commission’s role = “Guardian of the Treaties” VS. o Lump sum / periodic penalty
o Ensures compliance w/ Treaties & secondary EU law / resolve disputes / CJEU can clarify the law o Exercising discretion = ignores Commission’s duty under Art 17 TEU to ensure EU law is applied Commission v Greece (2000)
§ Adds credibility to the idea of supremacy of EU law *Suggest alternatives: Individuals could use direct effect/state liability/informally approach MS - Daily €20k penalty payment for 235 days of non-compliance
§ Otherwise, MS would rely on public pressure = may sway MS to act contrary to EU law e.g. to secure compliance w/o formal framework
free movement of people: national fears of “swamped labour markets” • Fine system = gives “more teeth” to enforcing EU law against MSs
• 50% of identified breaches = complaints > own-initiative investigations o Wenneras: Invigorates Commission’s role as ‘Guardian of the Treaty’ b/c sanctions = strong deterrent
IDENTIFY BREACH o Jack: Ineffective if national interests outweigh economic pressure
• Commission suspects a MS breach e.g. incomplete/failed to implement, failed to remove/enacted conflicting national legislation European Ombudsman § If MS lacks administrative capacity to comply, imposing ↑ costs on administrations = aggravates issue
o Act/omission • Commission protected from access to documents requests in Art 258 proceedings b/c confidentiality
WWF ART 260(3): FAILURE TO IMPLEMENT “DIRECTIVE”/NOTIFY COMMISSION
• Art 4(3) TEU: MS must take appropriate measures to fulfil EU law obligations *Use when MS owes obligation - Refused access to documents for investigation into Ireland’s possible breach of EU environmental law • MS failing to implement Directive/notify Commission that measure was adopted = breach
o MS = responsible for breaches by any organ of the state, e.g. parliament, courts • Lisbon Treaty simplified process: Art 260(3): Request financial penalties on the first CJEU judgment > 2 judgments
Belgium (Duty on Timber) • Ombudsman criticised lack of transparency o 2nd reasoned opinion ≠ required
- Belgian govt responsible for Belgian Parliament’s failure to enact the implementing legislation o Allegations of maladministration: Didn’t inform complainants o Incentive on MS to adopt measures + notify Commission ASAP
o Prevents MS shifting blame to avoid implementation Metro § Speeds up action ∴ MS prevented from taking advantage of lengthy process to delay compliance
o Tension: 1) Commission lied that file was closed b/c no breach, but it was b/c within political discretion
§ Federated entities = constitutionally independent from central govt 2) Sent provisional views 8 days before closing file = breached complainant’s right to be heard Other remedies
§ Judicial independence ∴ casts doubt on its binding effect • Interim orders: Temporarily stops infringement whilst case is still being decided = ↓ impact of lengthy process
• 2002: Commission set out procedural guarantees in handling complaints e.g. keep informed of progress, o Art 278: Interim injunction to suspend MS’s breaching legislation
Commission v Italy (2003)
invited comments before taking decisions o Art 279: Interim measure where breach is damaging an individual’s interest/economic hardship
- Italy liable for highest civil court interpreting law on customs duties incompatibly w/ EU law
o Rawlings: Ombudsman “wasted opportunity”, b/c promise of involvement ≠ enough UK (Pig producers)
• Art 258 cannot be used against private parties § Individual’s involvement left 4 weeks before closing file = too late for effective input - UK govt gave temporary subsidy to pig farmers
o But MS may be in breach by allowing/failing to prevent private party’s actions that’s contrary to EU law
Modernised the management of infringement proceedings CRITICISM
France (Strawberries)
• Previously, EU = “small club” ∴ informal, negotiation approach under ↑ strain b/c enlargement of EU • Craig (1992): Over 20 years ago (before modernisation + 12 to 28 MSs), weaknesses ↓ effectiveness: *
- French farmers rejected imports from other MSs
o 3) Burden of policing on Commission: Scarce resources e.g. other legislative duties, lacks staff, delays, costs
- France breached EU law b/c failed to take measures to prevent French farmers from breaching free • Now, ↑ systematic/consistent in handling complaints: uses IT + sets deadlines for taking decisions
à Now, enforcement is shared
movement of goods • 2009: Complaints/enquiries to Commission entered into “CHAP” database
o 4) Tension: Commission’s “political” role vs. “Guardian of the Treaty” role = conflict of interest
o 2010: 2/3 complaints/enquiries answered + closed
INFORMAL NEGOTIATION W/ MS à Solves 2/3 cases § If supports a country, may not take action during elections: e.g. Greek Commission official publicly
• Informal negotiation between Commission + MS ∴ avoids embarrassment for MS governed a Greek political party didn’t take action against Greek govt
o 5) Public relations issue: Vigorous enforcement ≠ “moving closer towards social + political union”
• 2008 Monitoring Report: Settles 68% cases ∴ useful if resolved early
à Direct effect solves non-compliance before reaching Commission ∴ ↓ direct confrontation
• Legal process: Further along the process = ↑ legal, but only 6% reach CJEU
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