EU Law
Case Summaries
2019-2020
,Week 1/part 1
Autonomy/supremacy/direct effect as preconditions for effectiveness of EU law
o Underpinned by 4(3): Duty of sincere mutual cooperation (mainly duty to help)
‘MSs shall take appropriate measures to ensure fulfilment of the obligations [..] treaties and institutions’
(duty to help)
o All to do with private enforcement in the national courts with the help of rulings for interpretation by the
CJEU
VGEL
Importance: Autonomy of EU law linking to direct effect + the CJEU established the conditions for vertical
direct effect of treaty provisions (clear, precise & unconditional)
QOL: Whether Article 12 of the treaty had direct application?
New legal order which is autonomous (decides on its own application): not up to MS/ their courtsBasis for EU
autonomy=conferral and limiting of sovereign rightsNo monism/ dualism as in international lawDirect effect if
the provision is clear and unconditional which creates individual rights aside from their obligations under EU law
which the courts must protect
Costa v ENEL
Importance: Autonomy (repeated) & supremacy of EU law
QOL: Does subsequent national legislation prevail over EU Treaty provisions?
Repeats the autonomy/direct effect established in VGELthe whole purpose of EU law would lose its meaning if MS
could unilaterally nullify it with their own national legislative actsuses example of a regulation which shall be
binding & directly applicable in all MS, what would be the point of this! If a national law could override then the
whole legal basis of the community would be called into question
Simmenthal
Importance: Clarifies the consequences of the interaction of the VGEL judgement & Costa V ENEL in the
national courts duty to protect (Article 4(3) principle of mutual cooperation): Looks specifically at national
substantive rules
QOL: What consequences flow from the direct effect (VGEL) of a provision of community law in the event of
incompatibility with a subsequent legislative provision of a MS (Costa v ENEL)?
Usually going to be the task of national courts to protect EU lawnational courts must give full effect to community
law & set aside provisions of national law weather adoption was prior or subsequentAlso hints at procedural rules
of national law which could prevent the effectiveness of EU law provisions also being incompatible as they prevent
the full effect of community lawthis would be the case even if it was not a national court applying the law and the
impediment to the full effect of community law was only temporaryIt is not necessary for the court to await repeal
of the legislation (by legislature) or declaration that it is unconstitutional (by constitutional court) to set it aside.
Factortame
Importance: Looks at para 22 of Simmenthal & national rules which might impair the effectiveness of
community law by withholding from the national court the power to do everything possible to ensure the full
effectiveness of EU law: Applies the judgeemtn to national procedural rules
QOL: Can the courts deny the granting of interim relief based on a national rule in a case where community law is
involved?
National courts must protect the direct effect of community lawReiterates para 22 Simmenthalthe full
effectiveness of EU law is just as much impaired by a rule of national law which prevents its full applicationif the
national court considers that the rule in question is the sole obstacle to granting interim relief it must be set asideEU
expands competences regarding interim reliefBasic rule: national procedural law is applied when you are dealing
,with a case which falls within EU law (there is little EU procedural law)However, if the national procedural law
conflicts with EU law it must be set asideThe primacy of EU law is supreme over national Westminster law even in
the face of parliamentary sovereignty
The EUs accession to the ECHR
Importance: The autonomy of the EU legal order was possibly not considered enough when the legal basis for
accession to ECHR was put into Article 6TEU & the importance of the CJEU seeing itself as the sole interpreter
of EU law while national courts just apply it (Simmenthal).
QOL: How is EU autonomy compatible with the draft agreement on accession to the ECHR?
There is now a specific legal basis for accessionUp till now it has only been possible for state entities to join the
ECHRthe EU is precluded by its very nature from being considered a statethe EU is a new autonomous legal
order in which states have limited their sovereignty (VGEL)this has consequences for accession
Problems with the specific characteristics of EU autonomy
(1) Para 182: It is not inconceivable that the EU could join an international agreement and be bound by the
decisions of the court of the international organization on its own charter.
(2) Para 183: However, the operation of the international agreement must not have an effect on EU autonomy
(3) Para 184: Actions by ECHR bodies in decision making cannot bind the EU & its institutions in the exercise
of their internal powers to an interpretation of the rules of EU law
(4) Para 185: Only an interpretation of the ECHR by the ECtHR will be binding on the EU and its institutions
(5) Para 186: The CJEU interprets EU law and the charter of fundamental rights not the ECrHR
Specific characteristic of EU law not taken into account:
Para 189: Where both the charter of fundamental rights and the ECHR contain a provision on the same thing: the
standard set by the charter should prevail for MS in order to ensure unanimity in the effectiveness of EU law across
MSs.
Essentially if the EU were to accede it would fall under two jurisdictions: the ECtHR and the CJEU and the
latter is afraid to lose its position as sole interpreter of EU law
Defrenne v Sabena
Importance: Establishes horizontal direct effect of treaty provisions
Impossible to put forward an argument against direct effect based on the use of the word principle in the
ArticleImpossible to put forward an argument against direct effect based on the fact that the article refers to
MSsformally addressed to MS but creates a right for individualsNational courts can interfere and award
rightsHorizontal DE for treaty provisions because they are mandatory in natureapplicable in private and public
relationshowever must always be sufficiently clear and precise (VGEL)
Leonesio v Italian Minisitry of agriculture
Importance: Establishes vertical DE of Regulations
Because Regulations are directly applicable & therefore do not rely on implementing measures, like the treaties they
must also have direct effecthowever, must always be sufficiently clear and precise (VGEL)
Munoz v Frumar ltd
Importance: Establishes horizontal DE of Regulations
Reiterates the important of national courts in making sure community law has full effect by means of DEto ensure
the full effectiveness of regulations it must be possible to enforce the rights/obligations under them in a horizontal
relationshipthis would strengthen the working of community law and help to discourage anti-EU practises by
individuals.
Van Duyn
,Importance: Directives can have vertical direct effect in principal
It would be incompatible with the binding effect of a directive in 288TFEU to exclude the possibility of DEhowever
it is necessary to make an individual examination in every case if it is capable of DE in relations between individuals
and MSsif it is sufficiently clear and unconditional (para 13) and the transposition deadline has passed (not
mentioned in this case but in Marshall) then it should be able to be relied on for the sake of legal certaintyalso if a
national court is unsure on what a directive means, they can ask for a reference under 267TFEU
Marshall
Importance: Established no horizontal DE of directives
Reiterates what we already know, to have DE directives need to be sufficiently clear & precise and to have failed to
have been implemented/implemented correctlyA state may not benefit from its own failure to implement a directive
(Estoppel argument)the binding nature of the directive which forms the basis of relying on it in DE exists only in
relation to each MS to which it is addresseddirectives don’t impose obligations on individuals and so cannot be
relied upon against themit doesn’t matter what capacity the state is acting in (employer or public authority) it is
necessary to prevent it from taking advantage from its own failure tom implement.
The roadmap for supremacy/autonomy/direct effect & effectiveness of EU law
Establishing the new legal order: autonomy & supremacy (VGEL & Costa v ENEL)
Both national laws that conflict with EU law provisions (Costa V ENEL ) & national procedural rules that
compromise the full effect of EU law (Factortame) are superseded by the principle of primacy/supremacy
The national court should set aside a national law or national procedural rule that compromises the full effect
of EU law without waiting for repeal of declaration of unconstitutionality (Simmenthal)
This applies to procedural rules such as interim measures (prevented by parliamentary act), even in a
jurisdiction such as the UK where parliament is sovereign (Factortame)
Mention national courts & the principle of mutual consideration in Article 4(3): they have a duty to ensure the
effectiveness of EU law which is largely based on the DE of EU law (cases Simmenthal & Factortame)
Mention that the CJEU however sees itself as the sole interpreter of EU law (Opinion 2/13)
However: Must always check for DE that provision is sufficiently clear and precise (applies to all types of
legislation) (Case VGEL)
Regulations have DE because they are directly applicable like the treaty provisions (Leonesio)
Directives do not necessarily have direct effect because they are not directly applicable, although the fact that
they are binding on MS means they can be vertically directly effective if two conditions are satisfied
(1) Para 13: Needs to be sufficiently clear and precise (Marshall)
(2) Para 46: The state needs to have failed to implement the Directive in national law by the end of the
period prescribed or to have failed to have implemented it correctly (Marshall)
Directives cannot be horizontally directly effective (Marshall)
VGEL: Vertical DE of treaty provisions
Defrenne: Horizontal DE of treaty provisions
Leonesio: Vertical DE of Regulations
Munoz: Horizontal DE of Regulations
Van Duyn: Vertical DE of Directives needs to be examined on a case by case basis
Marshall: No horizontal DE of Directives
,Week 1/part 2
Enforcement of the acquis for ensuring effectiveness of EU law
o Underpinned by 4(3): Duty of sincere mutual cooperation (mainly the duty not to hinder but sometimes the
duty to help)
‘MSs shall take appropriate measures to ensure fulfilment of the obligations […] treaties & institutions’ (duty
to help) and ‘refrain from any measure which could jeopardise attainment’ (duty not to hinder)
o All to do with public enforcement by the EU institutions, namely the commission calling on CJEU
Commission v Italy
Importance: Article 258TFEU: The infringement procedure=public enforcement of community law by the
commission against a MSWhere MS has not adopted measures it is supposed to
Infringement procedure applies to breach of secondary legislation
Italy is in breach for the delay in giving effect to regulation/for giving effect to it wrongly and for deliberate refusal to
implement certain parts of the regulationCommission bough action before the CJEURegulations are directly
applicable in all MSs
Manner in which provisions are given effect in national system
Giving effect in the wrong way as provisions of the Regulations are deemed to be included in the present national
legislation already in forceall methods of implementing a directive are contrary to the treaty which would create an
obstacle to their direct effect and jeopardise their uniformity across Mss
Deliberate refusal by Italian authorities to put in operation certain provisions
MSs cannot just select which provisions of a directive they will apply and abort parts of the legislation that are against
nat. legislationpractical difficulties in putting MSs legislation into effect cannot permit a unilateral opt-out
Para 24: In order to reap advantages of community law, MSs must also fulfil their obligations, you cannot unilaterally
break this balance for a national interest as then your citizens are placed unfairly outside of community lawthis is
against Article 4(3) and mutual cooperation amongst all MSs.
France v United Kingdom
Importance: Article 259TFEU: The infringement procedure=public enforcement of community law by MS
against another MSWhere MS has adopted measures it is not supposed to
Infringement procedure applies to breach of a council resolutionshows how it applies to the whole
acquis of EU law
Outlines the process of MS bringing an action for infringement of another MS before the commissionAbout a
resolution adopted by the EU as an interim measure as it has not yet been possible to establish a common policyin
resolution MSs and Commission need to be consulted if a MS enacts unilateral measures in this field, commission
needs to approvethese requirements have not been satisfied in this caseinfringement established!
Star fruit
Importance: Article 258TFEU and establishing when the commission has infringed the treaties by failing to
actcommission actually has discretion in bringing action before the CJEU!
Belgium company (legal person) believes that because the commission has not taken the case to the CJEU they have
‘failed to Act’Under 265TFEU the commission can be considered to have failed to have acted if they have been
called upon to act but in 2 months have notthis is not the case here as they simply didn’t take the case to the CJEU
after issuing a reasoned opiniononly if the commission considers a MS has failed to fulfil an obligation does it issue
a reasoned opinionIf the MS fails to comply with that opinion, Article 258TFEU gives discretion to the
,Commission in word ‘may’ The commission has the right but not the duty to go to the CJEU to have a declaration
of a breach of obligations
Commission v France I (Spanish Strawberries)
Importance: Article 258TFEU is being used to establish an infringement of the treaties through either
abstaining from taking action and adopting adequate measures to ensure the effectiveness of EU law when a
problem arises within a MS. This is just as likely to jeopardise the attainment of the treaties as the failure to
implement secondary legislation (commission v Italy) or adopting a positive act which is contrary to the treaty
(France v UK)
Its not just MS which must refrain from obstructing the treaties themselves, they must in accordance with Article 4(3)
TFEU take all the necessary and appropriate measures to ensure EU law is protected on their territory public order
& internal security are exclusive competences of the MS in which they have a margin of discretion in determining
appropriate measuresCommunity cannot prescribe measures in this areasHowever the court may assess them to
see if they are not jeopardising the attainment of treaty goalseven if another MS infringes community law first you
may not conduct yourself as a MS in a way that is also in breach in response to this breach!
Commission v Ireland (Irish waste)
Importance: How do we know when a MS has exceeded the discretion conferred on them in their areas of
exclusive competence (referring back to Spanish Strawberries)its all about the time period for which the
situation has progressed
It is not possible to draw from the fact that a situation is not in conformity with a directive that a MS has failed to
fulfil its obligations (they may be really trying their best!)if a situation persists for a long period without the MS
taking action it is possible that the MS has exceeded the discretion conferred on it.
Commission v France II
Importance: Looks at Article 260TFU where the MS fails to comply with the judgement of the CJEU in a
previous infringement procedure.
The sum of money is supposed to induce the MS to comply with the judgment not to punish itpenalty payment is
more appropriate where the CJEU wishes to put a stop to the breach of obligations ASAPlump sum is more
appropriate where the breach of obligations has persisted for a long time since the judgementpossible to impose
both types of penalty where the breach has persisted for a long time and is likely to continue to persists.
Commission v Hungary
Importance: Outlines the process that is gone through when a MS adopts a measure which could be contrary to
The Directive on Equal Treatment in employment and occupation
There is a provision in the actual directive which states that this is only possible if the difference in treatment is
objectively and reasonably justified by a legitimate aim and where the means of achieving the aim are appropriate and
necessaryvery specific to this case the court first determine that it falls within the scope, then it establishes two
legitimate aims and then it assesses if they are appropriate and necessary.
Spain V UK
Importance: This is a case on an infringement procedure bought by a MS against another MS (259TFEU)
which is clearly driven by political motives and actually contains no error of law on behalf of the UK.
,The UK was told in a judgement by the ECHR that it had to enable the citizens of Gibraltar to vote in the EPSpain
first argues that only citizens of the union can vote for the EP but that is not true it is merely true that citizens should
all be able to votesimilarly Spain argues that because the UK has transposed its legislation for voting to Gibraltar
instead of just applying the UK legislation without adaption this breached its declaration which Spain initially agreed
to which said voting would be on the ‘same terms’but this is not true either because contracting states enjoy a wide
margin of discretion vis a vis voting conditionsSpains legal plea is unfounded.
The roadmap to enforcement of EU law
Article 4(3) the principle of sincere mutual cooperation is at the heart of the infringement procedure, MS are
supposed to ensure the effectiveness of EU law in their territories (Commission v France & Commission v
Italy)
CJEU deals with the problems not the national court
A problem can be bought forwards by the commission under 258TFEU (Commission v Italy) or a MS (France
v United Kingdom) where it appears that a MS is failing to ensure the effectiveness of EU law either by
(1) Not implementing a Regulation on time/properly/at all (Commission v Italy)
(2) Adopting interim legislation where it is permitted to whilst the EU is still coming up with a common
policy, but where it failed to keep MSs/Commission informed when it was required to (France v United
Kingdom)
(3) Not the MS itself jeopardising the effectiveness of EU law but citizens and MS is not taking action to
ensure that EU law remains effective (Commission v France I)
(4) MS adopting legislation which is contrary to secondary EU law (Commission v Hungary)
The commission has the discretion when it comes to the infringement procedure if it establishes an
infringement by a MS it must issue a reasoned opinion, and then it has the discretion to bring the case to the
CJEU to have it confirm this in a judgement (Star fruit)
Where they don’t issue a reasoned opinion, the MS may take forwards the case under 258TFFEU
When it comes to ensuring the effectiveness of EU law within national territories the MS has a margin of
discretion in areas of exclusive competence such as public order and national security but it must in
accordance with Article 4(3) ensure that EU law remains effective. (Commission v France I)
If a situation persists for a long period without the MS taking action it is possible that the MS has exceeded
the discretion conferred on it (Irish waste)
If a MS fails to comply with a judgement from the CJEU there can be a penalty in the form of either a penalty
payment or a lump sum under Article 260TFEU (Commission v France II)
Two specific more recent examples: rather than establishing rules these 2 cases actually look at how the CJEU
would deal with a case
(1) Commission v Hungary (258TFEU): Equal treatment in employment directive allows derogation by a
MS where the aim is legitimate and the means is necessary/proportionate
(2) Spain v UK (259TFEU): A case which is really driven by political motives and where no error in law is
found!
,Week 2 Decision-making in the EU
Competences
o Action is bought under 263TFEU
The principle of institutional balance: in the EU implies that each of its institutions has to act in accordance with the
powers conferred on it by the Treaties, in accordance with the division of powers.
UK v Council
o Internally: role of the institutions
Importance: Considering the relation of general and specific legal basis in the treatyaction bought by the UK
under 263TFEU
There is actually an article in the treaty which gives precedence to specific provisions in the agricultural field over
general provisions relating to the common market even when legislation is directed at both specific and general
policy areas, the general provision cannot restrict the application of the specific provisionneed to look at aim and
contentthe directive falls within the specific provision and the council could adopt it on that basis alonethe choice
of legal basis must be based on objective factors that can be reviewed by the CJEUpast practise by institutions does
not create a binding precedence vis a vis choice of legal basisrules regarding the manner in which community
institutions arrive at their decisions are laid down in the treaty and are not at the disposal of MSs or institutions.
Parliament v Council (Chernobyl)
o Internally: role of the institutions
Importance: How to make the proper choice between a general and specific legal basisaction bought by EP
under 263TFEU
EP is bringing action under 263TFEU for a breach of its prerogatives because it should have been involved more in
the process (consultation vs cooperation) as the democratic institutionHere we see for the first time the aim and
content test introduced to determine weather a general or specific legal basis is necessary, this can be subjected to
judicial review by the CJEUthe aim and content emerges from the actual wording of the regulationthe fact that it
also has incidental effects on another policy are is not enough to justify a dual legal basis.
Tobacco Advertising, I
o Division in competences between MS and EU
Importance: Also, about the proper choice between a general and specific legal basis but here the EU is
competent in one area and not in the other (which remains with the MS)
Germany is bringing action under 263TFEU claiming that the true aim of a directive is public health which the
community has no competence to harmonizethat provision does not mean that harmonization measures adopted on
another legal basis in the treaty cannot have an impact on protection of human healthhowever other articles cannot
be used to circumvent the express exclusion of harmonization of public healthArticle 114TFEU does not invest in
the community legislature a general harmonizing power they must actually have as their objective improving
condition of the internal market.
Commission v Council
o Division in competences between MS and EU
Importance: The fight between MS and EU in division of competences extends to things such as reflection
papers, not just secondary EU legislation. The aim and content test must also be used.
Article 218TFEU determines the process for external action by the EU: it is one of the few remaining articles in the
treaty here the fight for competences still takes placefight between exclusive and shared competenceLook at the
aim and content of the paper to decide if the right institution has initiated it (comes from parliament v council
(Chernobyl))case looks at two different legal basesif the aim and content test reveals that it pursues several
,different aims or the content has several different components in the content then it can be founded on a dual legal
basisresort to a dual legal basis is only possible if it simultaneously pursues a number of objectives or is composed
of a multitude of different content without one being incidental to the other (Tobacco I/parliament v council)
Legal basis
Commission v Council (Titanium Dioxide waste)
o Internally: role of the institutions & choosing correct legal basis
Importance: About the adoption of a directive where the wrong procedure was followed as a result of the
selection of the wrong legal basis: the EP should have been involved in the cooperation procedure not the
consultation. Looks at resort to dual legal basis vis a vis procedure.
The aim and content seems to be both environment and internal marketusually if an institution has power is based
on two legal bases you could adopt under both (Commission v council above)here, however the procedure is
different under the two legal basesthis means that one must be selectedArticle 114(3)TFEU actually requires that
legislation on the internal market takes as a base a high level of environmental protection.
UK v council (Working time directive)
Importance: Part of a directive may be annulled if the content does not coincide with the aim
In this directive the aim is health and safety, but one provision on choosing Sunday as the weekly day of rest is not
linked to healthbecause it is severable from the rest of the directive it can be annulled.
Commission v Council (criminal penalties, environment)
o Choosing correct legal basis
Importance: Division in areas of competence, connected to a legal basis. Criminal law is an area of exclusive
MS competence (both substantive and procedural). Because the legislation at issue leaves to the MSs to
prescribe the penalty for the criminal offenses, it should have been adopted under the environmental legal
basis. Relating to the previous case (working time directive) in this case the whole framework decision will have
to annulled because it is indivisible.
As a general rule neither criminal law nor rules on criminal procedure fall within communities competenceHowever
the community can take measures that relate to criminal law when they leave to the MS the choice of penalty to apply
providing only that they must be effective and dissuasiveaim and content test (parliament v council
Chernobyl)the harmonization of criminal law in this respect is so minimal that the correct legal basis should have
been environmental.
Tobacco II
o Choosing correct legal basis
Importance: New legislation on tobacco advertising where the aim and content in now 114TFEU: but in what
situation is recourse to 114TFEU possible (building on idea from Tobacco I that this is not a general provision
& recourse to it must be justified.)Germany wants certain provisions to be annulled from the directive because
they are not aimed at eliminating/preventing present or future obstacles.
CJEU looks generally if the correct legal basis has been chosen this time (114TFEU)just finding disparities in MS
legislation is not enough to resort to the harmonization measure these differences must actually have or have to
potential to effect the internal marketthis means the obstacles can be present now or be likely to be present in the
futurealso there does not need to be an actual cross-border effect in every situation covered under the directive (such
as regulation of national magazines which will not leave Germany), but the measures must be intended to improve the
internal market in some way.
, (1) Are there disparities between national rules?
(2) What is the effect of such disparities: is it creating obstacles now or will it create obstacles in the future?
(3) Look at specific articles that want to be annulled: are they aimed at eliminating or preventing these obstacles?
European parliament v Council (refugee status)
Importance: This is about the practise of creating secondary legal bases: only the treaty can empower an
institution to amend a decision-making procedure established by the treaty (UK v Council)
It must be acknowledged in the treaty that the institution can establish a secondary legal basis (this is a legal basis that
appears in secondary legislation and empowers the institution to adopt further legislation)it is not possible for
provisions of secondary legislation to have primacy over primary legislationthis provision in the treaty will allow
the institution to undermine the principle of institutional balance which is only allowed if it is warrantedthe
adoption of secondary legal bases cannot be justified on considerations of the politically sensitive nature of the issue
or to ensure effectiveness of community actionalso the existence of an earlier practise of creating secondary legal
bases cannot be relied upon (UK v Council)
Ireland v EP and council
o Choosing the correct legal basis
Importance: Although the council would have been involved either way in this procedure the dispute is more
about building the body of EU law correctly because the EP would not have been involved in a framework
decision. Looking heavily at the substance of the directive rather than its objective.
1)This directive is about data retention for the purposes of preventing, investigating, detecting and prosecuting
criminal offences;
2) Art. 114 TFEU was used as a legal basis, but, as the directive has an important crime fighting dimension, Ireland
argued that this was actually about police and judicial cooperation in criminal matters. That is, by the way, now in the
TFEU (title V) but at the time it was still in the EU Treaty (and more intergovernmental in terms of procedures etc.)
3) Question is which legal basis (114 TFEU vs. the EU Treaty (specifically Arts. 30 TEU, 31(1)(c) TEU and 34(2)(b)
TEU, but these are now repealed) should be used. For this we use the "centre of gravity" test;
4) In paras. 82-83, the Court observes that the directive does not contain specific provisions on access to the data by
law enforcement agencies and exchange of the data by those agencies.
5) Overall the Court concludes that this directive in substance is more closely connected to the internal market than to
police and judicial cooperation.
The Court's analysis is really quite focused on the substance of the directive, and less so on its objectives, which
include also police and judicial matters. Had the directive included provisions on police and judicial enforcement
specifically, the result might indeed well have been very different.
The roadmap for competences and legal bases
Always mention principle of conferral (link to VGEL case law), then general competences, then specific legal
bases
All disputed about legal bases/competences involve Article 163TFEU whereby it is either a MS or institution
complaining
All decision-making processes are found in the treaty (UK v Council)
Legal bases
There is a difference between specific and general legal bases, usually the preference is for specific but this
can be stated in articles of the treaty itself (UK v Council)
The fact that a certain legal basis has been chosen before for a certain type of act does not create a binding
precedence that it must be chosen again (UK v Council)
Aim and content test introduced; centre of gravity must be determined to decide between a general or specific
legal basis (Chernobyl)
Aim and content test applies also to instruments such as reflection papers (Antarctic Treaties)
Court looks heavily at substance of secondary legislation rather than merely its objectives when using the
centre of gravity test (Ireland v EP and Council)
