Lecture notes
GDL / MA Law EU Law Complete Notes
- Module
- EU Law
- Institution
- University Of Law (ULaw)
Notes taken from the GDL / MA Law EU Law course, specifically targeted at exam problem questions.
[Show more]
Content preview
EU Law1. European Court of Justice and Article 267 TFEU procedure
- Court of Justice of the European Union (CJEU) = ECJ + General Court
- Role of CJEU: “ensure that in the interpretation and application of Treaties the law is
observed”. Article 19(1) TFEU.
- ECJ is the supreme authority on EU law.
- ECJ plays a vital role in developing EU law, however its enforcement is often
responsibility of national courts.
- When a national court may be faced with a difficult question of interpretation of a
provision of EU law to enable it to reach a judgement: article 267 TFEU enables,
and sometimes requires, a national court to refer questions of EU law to the ECJ
for a preliminary ruling.
- Article 263 TFEU: ECJ can review the legality of acts of other union institutions, ie
it can review a Council Regulation and declare it invalid.
o Roquette Frères v Council: ECJ annulled a council regulation adopted under
the (then) consultation procedure because the Council had failed to consult the
Parliament adequately.
- Articles 258 and 259 TFEU: allow actions against member states to be brought before
the ECJ, although only in limited circumstances.
- Cases can never be brought against individuals in the ECJ.
- Article 267 TFEU:
o The Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings concerning:
(a) the interpretation of this treaty (TFEU)
(b)the validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union.
o Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers hat a decision on the question
is necessary to enable it to give judgement, request the Court of Justice to give
a ruling thereon.
- So according to art 267: ECJ has jurisdiction to make rulings on:
o The interpretation of the TFEU and “acts of the institutions (ie secondary
legislation), bodies, offices or agencies of the EU”, like the ECB.
o The validity of secondary legislation.
o It is also said that if a question concerning the interpretation of the treaty is
raised before a national court or tribunal, then that court or tribunal may refer
the question to the ECJ, if it considers that a ruling from the ECJ is
necessary to allow it to give judgement.
o What does this mean in the UK: references can be made from courts and
tribunals which are at the lower end of the court hierarchy; the supreme court
must refer EU law points to the ECJ if it considers a decision on a question of
EU law is necessary to enable it to give a judgement.
1
, o How article 267 TFEU procedure works: if a national court needs to apply a
treaty article, but needs answer to a couple of questions before it can do so: the
only way to get answers is for the court to pose questions to the ECJ (the only
institution that can give authoritative rulings on the interpretation of EU law).
The national court, after having decided to make the reference) will
formulate the questions to which it needs answers, and send those
questions to the ECJ.
NB: this is not an appeal from the national court to the ECJ (the
national court at this point will have made no judgement), neither is the
ECJ being asked to decide the case or award a remedy. All the ECJ has
power to do is answer the questions posed by the national court. Once
it has done this, case is sent back to the national court, which will then
make a decision.
o According to art 267: any court or tribunal can make a reference. In UK:
magistrates court, employment tribunals, county courts, as well as higher
courts.
NB: not always obvious that a decision-making body is a “court or
tribunal”. You need to be a “court or tribunal” in order to be able
to make a reference.
Dorch Consult case: it was established what makes up a “court or
tribunal”:
Whether the body is established by law;
Whether it is permanent;
Whether its jurisdiction is compulsory;
Whether its procedure is inter partes; (ie, had hearings where
all parties can be present and heard, so granting full hearings?).
Whether it applies rules of law;
Whether it is independent.
o Not every single factor needs to be satisfied, sufficient
that most of them is present.
o Case of Nordsee: it was held that an arbitrator was not
a court or tribunal within the meaning of art 267, so it
could not make a reference to ECJ.
o Once it is decided that body is “court or tribunal”, then consider whether
that body should make a reference.
Wording of art 267: it must decide whether a decision on a question on
EU law is “necessary” to enable it to give judgement in the case before
it.
ECJ has laid out guidelines for deciding whether or not a ruling is
necessary: from CILFIT v Ministro della Sanità: CLIFIT criteria.
CILFIT: a decision on a question on EU law will NOT be
necessary if one of the following situations applies:
Where a question of interpretation of EU law before the
national court is not relevant to the conclusion of the case.
Where previous decisions of the ECJ have already dealt with
the point of EU law in question.
Where the correct application of EU law is so obvious as to
leave no scope for any reasonable doubt as to how it should be
resolved, and the court is convinced that the matter is equally
obvious to the courts of other MS and to the ECJ.
2
, o This is known as the doctrine of acte clair
o With regards to this point, it is noted that EU law is a
specialist area, and the meaning of its provisions will
not always be clear.
o NB: if the ECJ has already ruled on a similar point of
interpretation on a previous case, this does not preclude
a reference (see Da Costa en Schaake).
o Once having established if a ruling on a point of law is “necessary”, need to
distinguish between courts which must make a reference, and the ones
which may make a reference.
We have ‘courts of permissive jurisdiction’, and ‘courts of mandatory
jurisdiction’.
Courts of mandatory jurisdiction are described in art 267 TFEU as
those “against whose decisions there is no judicial remedy under
national law”. Case of Costa v ENEL confirmed this means the highest
court of the national system for that particular type of case. (Italian
court rules prevented Mr Costa from appealing to any higher Italian
court due to the small amount of money in dispute).
If a court of mandatory jurisdiction considers a decision is
necessary, it has no choice in the matter: it must refer the
question to the ECJ.
Court of permissive jurisdiction: any other court or tribunal within a
country’s national system.
These courts have a choice: they may refer the question to the
ECJ, or decide the question of EU law themselves. If they
interpret EU law incorrectly: losing party should be able to
appeal against judgement, ultimately up to a court of mandatory
jurisdiction which will be under obligation to refer.
“discretion to refer”: ECJ’s Information Note contains some
guidance, key points:
o References are particularly useful where there is a new
question of interpretation of general interest, or existing
case law is not applicable to a new set of facts.
o A higher national court cannot prevent a lower national
court from making a reference if it wishes to do so.
o A national court cannot declare a piece of EU law
invalid (confirmed in case of Foto-Frost): only ECJ can
do so. if a court of permissive jurisdiction is unsure
as to the validity of a piece of EU law, it must refer the
matter to ECJ. (from Foto-Frost case).
o A national court may decide to make a reference as
soon as it finds that a ruling on a question of EU law is
necessary.
R v International Stock Exchange: Lord Bingham issued some
guidelines encouraging courts to refer, especially where the
question of EU law is critical for the outcome of the case.
Trinity Mirror case: court of appeal suggested that the
national courts should show a greater measure of self-restraint
in deciding whether to make a reference to the ECJ: a reference
3
, is most appropriate where the question is of general importance
and where the ruling is likely to promote the uniform
application of EU law throughout the European Union.
- Does the ECJ ever refuse to accept a reference?
o ECJ in most cases will give a ruling, but only on the meaning of EU law, not
on the meaning of national law. Eg sometimes national courts ask ECJ to
make a ruling when national law conflicts with EU law. As this involves
interpreting national law, ECJ is unable to answer this type of question.
o Absence of a genuine dispute:
Foglia v Novello: litigation between two Italian wine producers: it
appeared to the ECJ that the two litigants had engineered a dispute
before the Italian courts in order to obtain a ruling from the ECJ via
article 267 TFEU, that a French tax was unlawful. In the absence of a
genuine dispute, the ECJ was unable to accept the reference from an
Italian court.
Telemarsicabruzzo: ECJ refused to accept the reference from an Italian
court where no background for the questions was provided.
- It’s possible for a State to be sued for its final instance court’s failure to make an art
267 TFEU reference.
o Köbler v Austria: court in Austria was obliged to make a reference but failed
to do so, making the appellant lose the case: ECJ indicated that on an article
267 reference, Austria’s breach had not been “serious enough”, but agreed that
claims of this kind could be made.
So, even though an individual cannot appeal to the ECJ if he/she
considers that the appellate, there is the possibility of an action for
state liability where a court of last resort incorrectly decided not to
refer.
- Final point: a ruling by the ECJ is binding on the court which made the
reference; + by virtue of art 4(3) TFEU national courts in all MS must apply the
ruling in subsequence cases involving the same point of EU law.
- s3(1) and (2) European Communities Act 1972: require UK courts to follow ECJ
rulings.
2. Sources of EU law and their relationship with national law
- Four main sources:
o Primary legislation (Treaties)
o Secondary legislation (regulations, directives)
o Jurisprudence of ECJ
o International agreements
- Treaty on the Functioning of the European Union (TFEU)
o Primary sources of EU law; known as ‘framework treaty’: sets out broad
principles and objectives but then allows the institutions to further the
achievement of these objectives by passing so-called secondary legislation.
4
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller camijnsnotes. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £16.39. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
56326 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now