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Caselaw judicial protection in the European Union
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- Katholieke Universiteit Leuven (KU Leuven)
Most important paragraphs of the caselaw related to the slides covered in class to take with you to the exam.
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The Judicial System of the EUC-573/17 Poplawski
53 The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the
Member States (judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, pp. 1159 and 1160).
61 In that regard, it should be pointed out that any national court, hearing a case within its jurisdiction,
has, as an organ of a Member State, the obligation to disapply any provision of national law which is
contrary to a provision of EU law with direct effect in the case pending before it (see, to that effect,
judgments of 8 September 2010, Winner Wetten, C-409/06, EU:C:2010:503, paragraph 55 and the case-
law cited; of 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, paragraph 41; and of 6 November
2018, Bauer and Willmeroth, C-569/16 and C-570/16, EU:C:2018:871, paragraph 75).
72 In the third place, it should be recalled that, although the framework decisions cannot have direct
effect, their binding character nevertheless places on national authorities an obligation to interpret
national law in conformity with EU law as from the date of expiry of the period for the transposition of
those framework decisions (judgment of 8 November 2016, Ognyanov, C-554/14, EU:C:2016:835,
paragraphs 58 and 61).
73 When applying national law, those authorities are therefore required to interpret it, to the greatest
extent possible, in the light of the text and the purpose of the framework decision in order to achieve
the result sought by that decision (see, to that effect, judgments of 16 June 2005, Pupino, C-105/03,
EU:C:2005:386, paragraph 43; of 5 September 2012, Lopes Da Silva Jorge, C-42/11, EU:C:2012:517,
paragraph 54; of 8 November 2016, Ognyanov, C-554/14, EU:C:2016:835, paragraph 59; and of 29
June 2017, Popławski, C-579/15, EU:C:2017:503, paragraph 31).
74 However, the principle of interpreting national law in conformity with EU law has certain limits.
C-378/17 Minister for Justice and Equality (Ireland)
52 In the light of the foregoing considerations, the answer to the question referred is that EU law, in
particular the principle of primacy of EU law, must be interpreted as precluding national legislation,
such as that at issue in the main proceedings, under which a national body established by law in order
to ensure enforcement of EU law in a particular area lacks jurisdiction to decide to disapply a rule of
national law that is contrary to EU law.
C-742/19 B.K. v. Slovenia
95 It follows from the foregoing that, assuming that Directive 2003/88 applies in the present case, a
stand-by period imposed on a member of military personnel which involves him or her being continually
present at his or her place of work must be regarded as being working time, within the meaning of
Article 2(1) of that directive, where that place of work is separate from his or her residence.
C-119/05 Lucchini
59 According to the national court, Article 2909 of the Italian Civil Code precludes not only the
reopening, in a second set of proceedings, of pleas in law which have already been expressly and
definitively determined but also precludes the examination of matters which could have been raised
in earlier proceedings but were not. One of the consequences of such an interpretation of that
provision may be that effects are attributed to a decision of a national court which exceed the limits
of the jurisdiction of the court in question as laid down in Community law. It is clear, as the Consiglio
di Stato has observed, that the effect of applying that provision, interpreted in such a manner, in the
,present case would be to frustrate the application of Community law in so far as it would make it
impossible to recover State aid that was granted in breach of Community law.
62 As stated at paragraph 52 above, the assessment of the compatibility of aid measures or of an aid
scheme with the common market falls within the exclusive competence of the Commission, subject
to review by the Community Courts. That rule applies within the national legal order as a result of the
principle of the primacy of Community law.
63 The answer to the questions referred must therefore be that Community law precludes the
application of a provision of national law, such as Article 2909 of the Italian Civil Code, which seeks to
lay down the principle of res judicata in so far as the application of that provision prevents the recovery
of State aid granted in breach of Community law which has been found to be incompatible with the
common market in a decision of the Commission which has become final
C-2/08 Fallimento Olimpiclubµ
25 The above analysis cannot be called into question by Lucchini. That judgment concerned a highly
specific situation, in which the matters at issue were principles governing the division of powers
between the Member States and the Community in the area of State aid, the Commission of the
European Communities having exclusive competence to assess the compatibility with the common
market of a national State aid measure (see, to that effect, Lucchini, paragraphs 52 and 62). Issues of
that nature, relating to the division of powers, do not arise in the present case.
26 Here the question is more specifically whether it is compatible with the principle of effectiveness
to interpret res judicata in the manner referred to by the national court, that is to say, as meaning
that, in tax disputes, where a final judgment in a given case concerns a fundamental issue common to
other cases, it has binding authority as regards that issue, even if its findings were made in relation to
a different tax period.
29 It should be noted that — as the national court itself points out — not only does the interpretation
in question prevent a judicial decision that has acquired the force of res judicata from being called into
question, even if that decision entails a breach of Community law; it also prevents any finding on a
fundamental issue common to other cases, contained in a judicial decision which has acquired the
force of res judicata, from being called into question in the context of judicial scrutiny of another
decision taken by the relevant tax authority in respect of the same taxpayer or taxable person, but
relating to a different tax year.
30 Accordingly, if the principle of res judicata were to be applied in that manner, the effect would be
that, if ever the judicial decision that had become final were based on an interpretation of the
Community rules concerning abusive practice in the field of VAT which was at odds with Community
law, those rules would continue to be misapplied for each new tax year, without it being possible to
rectify the interpretation.
31 In those circumstances, it must be held that such extensive obstacles to the effective application
of the Community rules on VATcannot reasonably be regarded as justified in the interests of legal
certainty and must therefore be considered to be contrary to the principle of effectiveness.
C-453/00 Kühne- Heitz
24 Legal certainty is one of a number of general principles recognised by Community law. Finality of
an administrative decision, which is acquired upon expiry of the reasonable time-limits for legal
remedies or by exhaustion of those remedies, contributes to such legal certainty and it follows that
2
,Community law does not require that administrative bodies be placed under an obligation, in
principle, to reopen an administrative decision which has become final in that way.
28 In light of the above considerations, the answer to the question referred must be that the principle
of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a
final administrative decision, where an application for such review is made to it, in order to take
account of the interpretation of the relevant provision given in the meantime by the Court where
— under national law, it has the power to reopen that decision;
— the administrative decision in question has become final as a result of a judgment of a national
court ruling at final instance;
— that judgment is, in the light of a decision given by the Court subsequent to it, based on a
misinterpretation of Community law which was adopted without a question being referred to the
Court for a preliminary ruling under the third paragraph of Article 234 EC; and
— the person concerned complained to the administrative body immediatelyafter becoming aware of
that decision of the Court.
C-392, 422/04 Germany GmbH and Arcor KG
57 It must be borne in mind that, according to settled case-law, in the absence of relevant Community
rules, the detailed procedural rules designed to ensure the protection of the rights which individuals
acquire under Community law are a matter for the domestic legal order of each Member State, under
the principle of the procedural autonomy of the Member States, provided that they are not less
favourable than those governing similar domestic situations (principle of equivalence) and that they
do not render impossible in practice or excessively difficult the exercise of rights conferred by the
Community legal order (principle of effectiveness) (see, inter alia, C-78/98 Preston and Others [2000]
ECR I-3201, paragraph 31, and Case C-201/02 Wells [2004] ECR I-723, paragraph 67).
68 However, the question has been raised as to whether the concept of manifest unlawfulness was
applied in an equivalent manner. According to the Commission, the national court examined whether
the fee assessments were based on legislation that was manifestly unlawful with regard to rules of
higher-ranking law, namely the TKG and German constitutional law, but did not or did not correctly
conduct that examination with regard to Community law. The Commission maintains that the
legislation is manifestly unlawful with regard to the provisions of Article 11(1) of Directive 97/13 and
that the principle of equivalence has therefore not been complied with.
69 Where, pursuant to rules of national law, the authorities are required to withdraw an
administrative decision which has become final if that decision is manifestly incompatible with
domestic law, that same obligation must exist if the decision is manifestly incompatible with
Community law.
C-2/06 Kempter
44 Il ne saurait donc être déduit de l'arrêt Kühne & Heitz, précité, que, aux fins de la troisième
condition dégagée par cet arrêt, les parties doivent avoir soulevé devant le juge national le point de
droit communautaire en cause. En effet, pour que cette condition soit remplie, il suffit que, soit ledit
point de droit communautaire, dont l'interprétation s'est révélée erronée à la lumière d'un arrêt
postérieur de la Cour, ait été examiné par la juridiction nationale statuant en dernier ressort, soit qu'il
aurait pu être soulevé d'office par celle-ci.
3
,C-234/04 Kapferer
20 In that regard, attention should be drawn to the importance, both for the Community legal order
and national legal systems, of the principle of res judicata. In order to ensure both stability of the law
and legal relations and the sound administration of justice, it is important that judicial decisions which
have become definitive after all rights of appeal have been exhausted or after expiry of the timelimits
provided for in that connection can no longer be called into question (Case C-224/01 Köbler [2003]
ECR I-10239, paragraph 38).
21 Therefore, Community law does not require a national court to disapply domestic rules of
procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement
of Community law by the decision at issue (see, to that effect, Case C-126/97 Eco Swiss [1999] ECR I-
3055, paragraphs 46 and 47).
C-619/18 Commission v. Poland
124 Having regard to all the foregoing considerations, it must be held that, first, by providing that the
measure consisting in lowering the retirement age of the judges of the Sąd Najwyższy (Supreme Court)
is to apply to judges in post who were appointed to that court before 3 April 2018 and, secondly, by
granting the President of the Republic the discretion to extend the period of judicial activity of judges
of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its
obligations under the second subparagraph of Article 19(1) TEU.
C-192/18 Commission v. Poland
98 First of all, it should be pointed out that Article 19 TEU, which gives concrete expression to the
value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full
application of EU law in all Member States and the judicial protection that individuals derive from EU
law to national courts and tribunals and to the Court of Justice (judgments of 25 July 2018, Minister
for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586,
paragraph 50 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the
Supreme Court), C-619/18, EU:C:2019:531, paragraph 47).
101 As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision
refers to the ‘fields covered by Union law’, irrespective of whether the Member States are
implementing Union law within the meaning of Article 51(1) of the Charter (judgments of 27 February
2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 29, and of 24
June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531,
paragraph 50).
103 In that regard, every Member State must, under the second subparagraph of Article 19(1) TEU, in
particular ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come
within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that
capacity, on the application or interpretation of EU law, meet the requirements of effective judicial
protection (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the
Supreme Court), C-619/18, EU:C:2019:531, paragraph 55 and the case-law cited).
105 To ensure that such ordinary courts are in a position to offer such protection, maintaining their
independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which
refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental
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,right to an effective remedy (see, to that effect, judgments of 25 July 2018, Minister for Justice and
Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 53 and the
case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-
619/18, EU:C:2019:531, paragraph 57).
106 That requirement that courts be independent, which is inherent in the task of adjudication, forms
part of the essence of the right to effective judicial protection and the fundamental right to a fair trial,
which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law
will be protected and that the values common to the Member States set out in Article 2 TEU, in
particular the value of the rule of law, will be safeguarded (judgments of 25 July 2018, Minister for
Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraphs
48 and 63, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-
619/18, EU:C:2019:531, paragraph 58).
108 The requirement that courts be independent, a requirement which the Member States must —
under the second subparagraph of Article 19(1) TEU — ensure is observed in respect of national courts
which, like the ordinary Polish courts, are called upon to rule on issues relating to the interpretation
and application of EU law, has two aspects to it (see, to that effect, judgment of 24 June 2019,
Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 71).
109 The first aspect, which is external in nature, requires that the court concerned exercise its
functions wholly autonomously, without being subject to any hierarchical constraint or subordinated
to any other body and without taking orders or instructions from any source whatsoever, thus being
protected against external interventions or pressure liable to impair the independent judgment of its
members and to influence their decisions (judgments of 27 February 2018, Associação Sindical dos
Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 44 and the case-law cited, and of 24 June
2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531,
paragraph 72).
C-896/19 Repubblika v Il-Prim Ministru
61 Article 49, which provides for the possibility for any European State to apply to become a member
of the European Union, states that the European Union is composed of States which have freely and
voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect
those values and which undertake to promote them
63 It follows that compliance by a Member State with the values enshrined in Article 2 TEU is a
condition for the enjoyment of all of the rights deriving from the application of the Treaties to that
Member State. A Member State cannot therefore amend its legislation in such a way as to bring about
a reduction in the protection of the value of the rule of law, a value which is given concrete expression
by, inter alia, Article 19 TEU (see, to that effect, judgment of 2 March 2021, A.B. and Others
(Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraph 108).
64 The Member States are thus required to ensure that, in the light of that value, any regression of
their laws on the organisation of justice is prevented, by refraining from adopting rules which would
undermine the independence of the judiciary (see, by analogy, judgment of 17 December 2020,
Openbaar Ministerie (Independence of the issuing judicial authority), C-354/20 PPU and C-412/20
PPU, EU:C:2020:1033, paragraph 40).
72 In the light of all of those factors, it does not appear that the national provisions at issue in the
main proceedings relating to judicial appointments are, per se, such as to give rise to legitimate
5
,doubts, in the minds of individuals, as to the imperviousness of appointed members of the judiciary
to external factors – in particular, to direct or indirect influence from the legislature or the executive
– and as to their neutrality vis-à-vis the interests before them, and thus lead to those members of the
judiciary not being regarded as independent or impartial, the consequence of which would be to
undermine the trust which justice in a democratic society governed by the rule of law must inspire in
individuals.
73 In the light of all of the foregoing considerations, the answer to the second question is that the
second subparagraph of Article 19(1) TEU must be interpreted as not precluding national provisions
which confer on the Prime Minister of the Member State concerned a decisive power in the process
for appointing members of the judiciary, while providing for the involvement, in that process, of an
independent body responsible for, inter alia, assessing candidates for judicial office and giving an
opinion to that Prime Minister.
Action for infringement
C-235/17 Commission v. Hungary
56 In the present case, the contested provision cancels rights of usufruct that were previously acquired
over agricultural land, when the usufructuaries do not satisfy the requirement to which the acquisition
of such rights is now subject under national law, namely the existence of a close family tie between
the person acquiring the right of usufruct and the owner of the land concerned.
58 By providing for the extinguishment, by operation of law, of rights of usufruct thus held over
agricultural land by nationals of Member States other than Hungary, the contested provision restricts,
by virtue of its very subject matter and by reason of that fact alone, the right of the persons concerned
to the free movement of capital guaranteed by Article 63 TFEU. Indeed, the contested provision
deprives those persons both of the possibility of continuing to enjoy their rights of usufruct, by
preventing them, inter alia, from using and farming the land concerned or from letting it to tenant
farmers and thereby making money from it, and of the possibility of alienating that right, for example
by transferring it back to the owner. That provision is, moreover, liable to deter non-residents from
making investments in Hungary in the future (see, to that effect, judgment of 6 March 2018, SEGRO
and Horváth, C-52/16 and C-113/16, EU:C:2018:157, paragraphs 62 to 66).
67 Under Article 17(1) of the Charter everyone has the right to own, use, dispose of and bequeath his
or her lawfully acquired possessions and no one may be deprived of his or her possessions, except in
the public interest and in the cases and under the conditions provided for by law, subject to fair
compensation being paid in good time for their loss. In addition, the use of property may be regulated
by law in so far as is necessary in the general interest.
129 Having regard to the findings made in paragraphs 123 to 128 above, it must be held that the
deprivation of property effected by the contested provision cannot be justified on the ground that it
is in the public interest; nor are any arrangements in place whereby fair compensation is paid in good
time. Accordingly, that provision infringes the right to property guaranteed by Article 17(1) of the
Charter.
C-62/89 Commission v. France
8 In support of its position, the Commission argues essentially that the quota infringements are the
result of failure on the part of the French Republic to fulfil the obligation of Member States under
Article 10(2) of Regulation No 2057/82 to take steps in good time to prohibit fishing provisionally
6
, 20 In regard more particularly to the fact that in respect of redfish the French Republic merely entered
into negotiations with a view to obtaining an increase in its quota by means of an exchange of quotas
with another Member State, the Commission is right to argue that the Member States cannot rely on
the mere possibility of exchanges of quotas in order to free themselves from their obligations under
Article 10(2) of Regulation No 2057/82. Such negotiations, the result of which is uncertain, cannot
justify the continuation of fishing after the exhaustion of the quota, since if the attempt to increase
the quota by means of an exchange fails or the quantities obtained are insufficient to cover the catches
made any delay in the provisional closure of fishing is likely to aggravate the extent to which the quota
is exceeded. It follows that any agreement for the exchange of quotas concluded with another
Member State for the purpose of increasing a quota must take place either before the exhaustion of
the initial quota or after the provisional prohibition of fishing.
31 Finally, in its fourth argument, the French Republic contends that in any event the total quota
allocated to the Community for the stocks in question in Faeroese waters for 1985 was not exhausted,
with the result that the fact that France exceeded its quotas did not injure the other Member States
or jeopardize the agreement on fisheries with the Government of Denmark and the Home
Government of the Faeroe Islands.
C-249/81 Commission v. Ireland
6 Ss far as the advertising campaign is concerned, the Irish government confirms that it forms part of
the activities of the Irish goods council. However, that institution cannot be regarded as a public
authority; it is merely an arrangement whereby the various industries in Ireland may cooperate for
their common good. The activities of the Irish goods council are not based on any official enactment
and the involvement of the government consists exclusively of financial aid and moral support.
7 the commission maintains that the actions of the irish goods council are unquestionably attributable
to the Irish government. it points out, in particular, that the members of the management committee
of the council are appointed , under the articles of association of that body, by the minister for industry
, commerce and energy .
15 it is thus apparent that the Irish government appoints the members of the management committee
of the Irish goods council, grants it public subsidies which cover the greater part of its expenses and ,
finally , defines the aims and the broad outline of the campaign conducted by that institution to
promote the sale and purchase of Irish products. In the circumstances the Irish government cannot
rely on the fact that the campaign was conducted by a private company in order to escape any liability
it may have under the provisions of the treaty.
C-265/95 Commission v. France
31 The fact that a Member State abstains from taking action or, as the case may be, fails to adopt
adequate measures to prevent obstacles to the free movement of goods that are created, in
particular, by actions by private individuals on its territory aimed at products originating in other
Member States is just as likely to obstruct intra-Community trade as is a positive act.
32 Article 30 therefore requires the Member States not merely themselves to abstain from adopting
measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with
Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental
freedom is respected on their territory.
65 Having regard to all the foregoing considerations, it must be concluded that in the present case the
French Government has manifestly and persistently abstained from adopting appropriate and
7
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