European Judicial Protection Notes
2020-2021
1
,CONTENTS
Week 1:
Theory: History and Development of the EUs legal order…………………………………………………………………………………..
Readings:
The History of the CJEU and its origin by Ditlev Tamm
The Origins of the legal revolution by Morten Rasmussen
Cases:
Van Gend & Loos
Costa/ENEL
Simmenthal
Week 2:
Theory: The CJEU as an Apex court…………………………………………………………………………………………………………………..
Readings:
Constitutional review of member state action by Tais Tridimas
Lawyers’ judges and the making of a transnational constitution by Eric Stein [not used]
Peaceful of problematic by Lady Justice Arden [not used]
Cases:
Case 11/70: Internationale Handelsgesellschaft
37 BverfGE 271 [Solange 1] and 73 BverfGE 271 [Solange 2]
1 BvR 276/17 [RTBF 1] and BvR 16/13 [RTBF 2]
Week 3:
Theory: Composition and functioning of the court as an institution……………………………………………………………………
Readings:
The place of the AG in the procedure of the European Community Courts
Blog 1/2 on Eleanor Sharpstons position as AG
Legislation:
The Statute of the Court of Justice of the European Union
Cases:
C-423/20 and C-424/20 on AG Eleanor Sharpston
Week 4
Theory: Preliminary rulings and the interplay CoJ-National Courts……………………………………………………………………
Readings:
The preliminary ruling procedure: old problems or new challenges? By Jurian Langer
The Gatekeepers of Article 267TFEU by Nils Wahl and Luca Prete
Knocking on heavens door by Takis Tridimas
Upholding the rule of law through judicial dialogue [not used] by Koen Lenaerts [not used]
Cases
2
, CILFIT
Foto-Frost
Dhahbi v Italy [ECHR]
Week 5:
Theory: Action for Annulment………………………………………………………………………………………………………………………….
Reading:
Sealing the fate of private parties in annulment proceedings? By Albertine Albors-Llorens
Cases
Plaumann v Commission
Microban
Extramet
Cordorniu
Opinion AG Jacobs [UPA]
Jego Quero
UPA
Inuit cases
Opinion AG Kokott [Inuit]
Week 6:
Theory: The Infringement Procedure Art 250TFEU and 260TFEU……………………………………………………………………..
Reading:
Failure to comply with EU Law Article 258TFEU by Stine Andersen
Cases
Austria v Germany
Commission v Poland (Bialowieza Forest)
Week 7:
Theory: Judicial protection in EU Foreign, Security and Trade Policy…………………………………………………………………
Reading:
The Good, the bad and the ugly by Ramses Wessel
Cases:
EP v Council (Mauritius)
Rosneft
Bank Refah Kargaran v Council
Parliament v Council (EU-Tanzania Transfer Agreement)
Elitaliana
H v Council
Kadi
Opinion 2/13
3
, Citations
Treaties
Charter of Fundamental Rights of the European Union [2012] OJ C 326 [CFR]
Consolidated Version of the Treaty on European Union [2016] OJ C 202/16 [TEU]
Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ C 202/49 [TFEU]
Week 1
Articles
Morten Rasmussen, ‘The Origins of a Legal Revolution-The Early History of the European Court of Justice’
(2008) 14(2) ‘Journal of European Integration History’ 77.
Ditlev Tamm, ‘The History of the Court of Justice of the European Union Since its Origin’ in Court of Justice of the
European Union (ed), The Court of Justice and the Construction of Europe: Analysis and Perspective on Sixty
Years of Case-Law (T.M.C Asser Press 2013).
Cases
Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue
Administration [1963] ECR 1.
Case 6/64 Flaminio Costa v ENEL [1964] ECR 585
Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629
Week 2
Articles
Takis Tridimas, ‘Constitutional review of member state action: The virtues and vices of an incomplete
jurisdiction’ (2011) 9(3-4) ‘International Journal of Constitutional Law’ 737.
Albertina Albors-Llorens, ‘Judicial protection before the Court of Justice of the European Union’ in Catherine
Barnard and Steve Peers (eds), European Union Law (2nd Edn, Oxford University Press 2017).
Paul Friedl, ‘A New European Fundamental Rights Court: The German Constitutional Court on the Right to Be
Forgotten’ (2020) 5(1) ‘European Papers-A Journal on Law and Integration’ 447.
Websites
Nikos Lavranos, ‘The CJEU-German Constitutional Court Debate and Impact on Achmea and the Termination
Agreement’ (Kluwer Arbitration Blog, 21 May
2020)<http://arbitrationblog.kluwerarbitration.com/2020/05/21/the-cjeu-german-constitutional-court-
debate-and-impact-on-achmea-and-the-termination-agreement/> accessed
Cases
Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr-& Vorratsstelle fur Getreide & Futtermittel [1970]
ECR 1125.
Week 3
Legislation
Consolidated version of the Treaty on the Functioning of the European Union PROTOCOL (No 3) on he Sttatute
of the Court of Justice of the European Union [2016] OJ C202/210.
Books
4
,Noreen Burrows and Rosa Greaves, The Advocate General and EC Law (Oxford University Press, 2007).
Blogs
Tobias Crone, ‘That Depends: on Eleanor Sharpston’s Position as AG, Legal Complexities and Effective Interim
Proceedings’ (Verfassungsblog, 15 September 2020) < https://verfassungsblog.de/that-depends/>accessed
Laurent Pech, ‘The Schrodingers Advocate General’ (Verfassungsblog, 29 May 2020) <
https://verfassungsblog.de/the-schroedingers-advocate-general/> accessed
Cases
Case C-424/20 P(R) Order of the Vice-President of the Court in Council and Representatives of the Governments of
the Member States v Sharpston EU:C:2020:705.
Case C-423/20 P(R) Order of the Vice-President of the Court in Council v Sharpston EU:C:2020:700.
Week 4
Articles
Takis Tridimas, ‘Knocking on heavens door: fragmentation, efficiency and defiance in the preliminary rulings
procedure’ (2003) 40(1) ‘common market law review’ 9.
Luca Prete and Nils Wahl, ‘The gatekeepers of Article 267TFEU: on jurisdiction and admissibility of references
for preliminary rulings’ (2018) 55(2) ‘common market law review’ 511.
Jurian Langer, ‘The preliminary rulings procedure: old problems or new challenges?’ (University of Groningen
2016).
Cases
Case 314/85 Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199
Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415
Week 5:
Articles
Albertina Albors-Llorens, ‘Sealing the fate of private parties in annulment proceedings? The general court and
the new standing test in Article 263(4) TFEU (2012) 71(1) The Cambridge Law Journal 52.
Cases
Case 25/62 Plaumann v Commission [1962] ECR 95.
Case T-262/10 Microban International and Microban (Europe) v Commission [2011] ECR II-7697.
Case T-177/01 Jego Quere v Commission [2002] ECR II-2365.
Case C-50/00 P Union de Pequenos Agricultores v Council [2002] ECR I-6677
Case C-50/00 P Union de Pequenos Agricultores v Council [2002] ECR I-6677, Opinion of AG Jacobs.
Case T-18/10 Inuit Tapirit Kanatami v European Parliament and Council [2011] ECR II-5599
Case C-583/11 P Inuit Kanatami and others v European Parliament and Council ECLI:EU:C:2013:625
Case C-583/11 P Inuit Kanatami and others v European Parliament and Council ECLI: EU:C:2013:625, Opinion of
AG Kokott.
Week 6:
Articles
5
,Stine Andersen, The Enforcement of EU Law: The Role of the European Commission (Oxford University Press
2012)
Brian Jack, ‘Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgements?’ (2013)
19(3) European Law Journal 404
Cases
Case C-441/17 Commission v Poland (Bialowieza Forest) ECLI:EU:C:2018:255
Case C-591/17 Austria v Germany ECLI:EU:C:2019:504
Week 7:
Articles:
Christopher Hillion and Ramses Wessel, ‘The Good, the Bad and the Ugly: Three levels of judicial control over
the CFSP’ in Steve Blockmans and Panos Koutrakos (eds), Research Handbook on EU Common Foreign and
Security Policy (Edward Elgar Publishing 2018)
Cases
Case C-658/11 EP v Council (Mauritius) ECLI:EU:C:2014:2025
Case C-72/15 Rosneft ECLI:EU:C:2017:236
Case C-263/14 Parliament v Council (EU-Tazania Transfer Agreement) ECLI:EU:C:2016:435
Case C-439/13P Elitaliana v Eulex Kosovo ECLI:EU:C:2015:753
Case C-455/14P H v Council ELCI:EU:C2016:569
Joined cases C-402/05P and C-415/05P Kadi and Al Barakaat International Foundation v Council and
Commission [2008] ECR I-06351
Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the
Protection of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:2454
Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the
Protection of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:2454, Opinion of AG Kokott
6
, Week 1: History and Development of the EUs Legal Order
INTRODUCTION
The history of the CJEU reflects the history of the European Union and it is closely linked with European
politics in the same period of time
3 important phases
1. 1952-1973: The beginning of the court
2. 1973-2009: The middle of the court
-Period of stagnation
-BUT intermezzo around Maastricht 1992
3. 2009-present: Brief overview of court
1952-1973: THE BEGINNING OF THE COURT
The ECSC Court
ECSC
Pooling coal and steel supplies in post-war Europe to prevent the outbreak of another
war
Monnet envisaged that this would spill-over into integration of other fields ‘Monnet
Method’
Do we need a court?
French:
-Monnet believes ECSC would only work if there was a High Authority [Commission] that
was technocratic in nature and could overrule MSs
- Monnet did not want to add a court to the ECSC because it would undermine the
powers of the High Authority
-Preferred that there be an international court of arbitration on a non-permanent basis
Germany and BENELUX:
-Thought that the absence of a court was problematic
-Germany wanted private citizens-firms and associations of firms-to be able to instigate
proceedings before the court to check the legality of decisions and acts of the High
Authority
Legal traditions at play
1. Germany
New constitution in 1949: gave courts a strong role to protect citizens against
authority
Strong belief that power of High Authority should no be unchecked especially if it
gave France and Italy the power to continue to punish it for WW2
2. France
Traditional distrust of judicial power; in pre-revolution France it used to be aligned
with the king
Strong belief in a strong authority [High Authority] not courts
3. BENELUX
Has succumbed to the powers of France and Germany for over a century
Strong belief that High Authority should be checked
The Court of the ECSC
Closest to French vision but with important concessions made to German and
BENELUX positions
French style administrative court but private litigants (firms) could institute
proceedings against decisions and acts of the High Authority
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, The main job of the court was to control the legality of the decisions and acts of the
High Authority
Jurisprudence of the court
To the annoyance of (Gaullist) France, the court of the ECSC was immediately
proactive in the early days
1. Liberal interpretation on standing requirements: cases bought by coal and steel
industry and lobby groups
2. Broad interpretation of reach of treaty: scope and parties that fell under the
treaty
ECSC CourtEEC Court
EEC court
France wanted the court to take a step back to its ‘roots’ as an administrative court:
just review decisions of the High Authority on very clear administrative grounds
This would not be the case
EEC court is the same court as the ECSC
Added authority to take care of EEC affairs and the early EURATOM affairs
However, it has an increased role
Treaty powers for EEC court
Inclusion of Article 177EEC (now 267TFEU)
-Preliminary reference procedure
-Interaction between national courts and European courts
-Enormous effect on getting the MSs legal orders closer together (integration)
-Not an invitation for the ECJ to evaluate weather national law conflicted with
European law
-Designed to make sure the interpretation of European law was uniform
throughout the community
Case-law that increases powers of EEC court
Court takes a teleological interpretation based on the goal of the European
community/union
Many of the changes in the role of the court in the EEC happen through its
own case law
EEC became very proactive
Ground breaking cases that actually form a legal order that were not
explicitly envisaged in the treaty
Lets talk about VGEL and Costa v ENEL in the light of the judiciary rather
than the ‘legal order’
1. Van Gend & Loos (1962)
New Legal order
The objective of the EEC treaty, which is to establish a common market, the
functioning of which is of direct concern to interested parties in the community,
implies that this treaty is more than an agreement which merely creates mutual
obligations between the contracting states. This view is confirmed by the preamble to
the treaty which refers not only to governments but to peoples. It is also confirmed
more specifically by the establishment of institutions endowed with sovereign rights,
the exercise of which affects member states and also their citizens. Furthermore, it
must be noted that the nationals of the states brought together in the community are
called upon to cooperate in the functioning of this community through the
intermediary of the European parliament and the economic and social committee.
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, Judiciary & the new legal order
Court has a central role in the new legal order
-Final authority on treaty interpretation
-CJEU works with the national courts to protect the rights that community law gives
to its citizens
In addition, the task assigned to the court of justice under article 177, the object of which is to
secure uniform interpretation of the treaty by national courts and tribunals, confirms that the
states have acknowledged that community law has an authority which can be invoked by
their nationals before those courts and tribunals.
2. Costa v ENEL (1964)
Primacy of EU law
It follows from all these observations that the law stemming from the Treaty, an independent source
of law, could not, because of its special and original nature, be overridden by domestic legal
provisions, however framed, without being deprived of its character as Community law and without
the legal basis of the Community itself being called into question.
Judiciary and primacy of EU law
Dispute on courts authority under Article 267TFEU to give an interpretation and
judge on the validity of Italian law
Court is not giving an interpretation on Italian law but European law and because its
European law and has primacy over Italian law the interpretation has primacy over
interpretation by an Italian judge
Established not only the primacy of EU law, but the primacy of the court which
interprets the treaties
Consequently, a decision should be given by the Court not upon the validity of an Italian law in
relation to the Treaty, but only upon the interpretation of the abovementioned Articles (of EU
law)
Article 267TFEU is to be applied regardless of any domestic law whenever questions relating to
the interpretation of the treaty arise
3. Internationale Handelsgesellchaft (1970)
Far reaching primacy of courts authority
The court is not only competent to interpret the treaty and declare national laws and
measures non-complaint
It can also do this when there was is an issue with national constitutional principles
Para 3: The validity of a community measure or its effect within a member state cannot be
affected by allegations that it runs counter to either fundamental rights as formulated by the
constitution of that state or the principles of a national constitutional structure
4. Simmenthal (1977)
Role of national courts as European courts
Para 24: A national court which is called upon, within the limits of its jurisdiction, to apply
provisions of Community law is under a duty to give full effect to those provisions, if necessary,
refusing of its own motion to apply any conflicting provision of national legislation, even if
adopted subsequently, and it is not necessary for the court to request or await the prior setting 9
aside of such provision by legislative or other constitutional means.
, 1973-2009: THE MIDDLE OF THE COURT
European stagnation
From 1973 -1986 (SEA) or even until 1992 (Maastricht)
Little harmonization through secondary legislation even though there were allot of rules
in MSs that were hindering treaty application
Reasons:
1. Difficult position of France
-De Gualle was negative towards European integration in council meetings
2. Unclear how to further the market
-Four fundamental freedoms but how to focus on what needs to be done?
3. The EEC in the cold war world
-Three great powers (USA, Russia and China); EU cannot assert its role
-Europe is split by the Iron curtain
-France and England believe themselves to be great powers; too much competition
on the inside of the EU
4. The role of the citizen debate
-Do citizens have a direct connection to EU or are they always connected through
MS?
Court in years of European stagnation
Judicial Constitutionalisation of the European community
Article 177 EEC took on an enormous role, because of the lack of
harmonization all the issues that companies ran into (eg not able to exercise
their free movement as laid down in the treaty) were bought before the
national courts.
The court started to actively foster a closer relationship with (lower)
national courts making it clear that all of them can send out preliminary
references to Lux
By interpreting EU law teleologically, the EU court can determine that
national measures are not in line with treaty obligations, then the national
court has to set the national rules aside
Although there isn’t harmonization through law, through case law the court
can bring about significant changes
What the court did 1970s-1990s active era!
1. Ultra vires
-Lenient in interpretation of ultra vires measures proposed by the Commission
2. Stop gap
-Allows expansive reading of ‘stop gap’ power of now 352TFEU
-Emergency that needs to be handled by the EU but there is not an explicit legal
basis; Commission can take action
3. Implied powers
-Created the doctrine which applies in areas not explicitly allocated to the EU
-If it is clear from the general wording of the treaty that this is an area of EU
competence, then EU can act
4. Fundamental rights
- Protected by court as general principles before Charter
Logical reaction of MSs
Maastricht Treaty
-Subsidiarity and proportionality are put into the treaty
-Limiting the court
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