JUDICIAL PROTECTION IN THE EU
GENERAL PRESENTATION OF THE COURSE:
general & practical info:
- 2 classes on tuesdays (9-11AM & 2-4PM)
- classes in the afternoon: conversation / engagement / questions (so if you go to class you have
to be prepared to engage)
learning outcomes:
- in depth understanding of:
- the EU composite judicial architecture
- general principles and doctrines governing the relationship between the CJEU and
domestic courts
- judicial remedies designed to enforce EU law and protect EU rights
- basics of some topical issues in judicial protection in the EU
- enhance a variety of students’ skills:
- handling & developing complex reasoning on EU legal texts
- analysing the CJEU’s case law
- applying the rules governing the EU judicial remedies to a given real situation
- identifying the most appropriate judicial remedies in a given situation
- developing a critical thinking approach
teaching methods:
- lectures & seminars
- guest lectures
- case-study presentations
- on tuesday afternoons: presentation of case studies: 3 judgements per week
- some students present a case and prof moderates and prepares questions
- everyone has to participate in the discussion
- reading of these materials are mandatory for everyone
- everyone has to be able to ask 1 question on each case
⇒ everything is interactive so you have to read the materials before classes (see toledo)
- for each week there are mandatory readings (2-3 articles & some cases)
- there are also “further readings”: not mandatory, but are aimed to assist students in preparing
for the exam (but the exam will not only focus on this)
- reference book: EU Procedural Law (to help put everything in perspective)
- you don’t have to buy it: can find it in the online resources of the library
calendar: there are 3 main parts of the class:
- 1. EU judicial architecture as a whole
- = multilevel or composite judicial system of the union
- 2. analyse the main procedures before the CJEU
- preliminary ruling procedures
- infringement procedure
- annulment procedure
- connected action before CJEU
- opinions
- action for damages
- spacial forms of procedure
- 3. judicial protection of rights
1
,assessment methods:
- written exam: 2 open questions
- combination of practical & theoretical questions (essay questions)
- limited open book: you can only use:
- printed version of the official documents (case law, treaties, legislation) that are part
of the course materials
- not: ppt / class notes
- can we bring excerpts? (= parts of legislation / treaties) → YES: so long as it
is part of the official documents
- = you can bring the whole judgements or parts of the judgements
- but not summaries of the judgements made by yourself
- but you can highlight? yes, according to university guidelines
- general rules apply (codex reglement)
- printed version of a language dictionary
how to navigate the course materials:
- for each topic there will be a class with a powerpoint presentation
- on the ppt: all the key information is on it!
- things on the slides we will discuss in class: it is a compass
- mandatory readings:
- articles
- sometimes case studies
2
, 1. EU JUDICIAL ARCHITECTURE AS A WHOLE
a. INTRODUCTION TO THE JUDICIAL ARCHITECTURE OF THE EU
EU is based on rule of law: basic idea is that public power is subject to scrutiny
- if there is a violation, there should be a remedy
- related to the idea of checks & balances + separation of power
history of rights / liberties is the history of judicial enforcement / judicial procedure through which
those rights & liberties can be enforced
→ goes back to the Romans: if you have a right, you should also be able to exercise / enforce that
right
why procedures?
- they are important for the CJEU to render effective and give substance to many of the
provisions in the treaties
- through procedures: CJEU doesn’t only clarify the literal meaning of many provisions: it also
clarifies the legal effect and has elaborated many of the constitutional principles of the EU
legal order
- ⇒ this is a tool for shaping the EU legal order + relationships between union level & MS
level
- this is the most important procedure to this effect
- = premium reference procedure
- premium reference = premium ruling reference is a breach that connects the
national level judicial enforcement to the european union level
- this breach, that goes from national courts to the CJEU is based on
cooperation: it is a dialogue between national courts & CJEU based
on cooperation & mutual respect of prerogatives and powers of the
counterpart
the EU is not a state / ordinary IO: it is a sui generis legal order
→ Van Gend & Loos 1963: case 26/62: this is when CJEU first affirmed this principle: that the EU (at
the time the Communities) was not like any other IO
- principle of direct effect: soms provisions of the treaties (although these provisions of the
treaties are concluded in the international legal order and are directed to MS), can be enforced
directly before national judges
- why is it not like a normal international legal order? what are the characteristics that
differentiate it?
- supranational: MS have conferred some of their sovereign powers to the EU
- autonomy: = the EU legal order does not depend on the validity of the national legal
systems
- it is a system in itself!
- connected to the principle of direct effect, and one of the key points in Van Gend &
Loos: subjects of EU legal order are not only the states, but also the individuals (the
citizens of the states)
- primacy
opinion 2/13: the opinion on the accession of the EU to the ECHR
- what is an opinion in general? possibility to ask an opinion by the CJEU is limited by art 218
para 11 TFEU:
3
, - is a type of decision by the CJEU
- it is limited to the compatibility of draft international agreements that the EU wishes
to conclude with EU primary law
- in hierarchy of sources in EU law:
- primary law = treaties, charters (general principles?)
- between primary law & secondary law: the place for international
agreements by the EU
- = when EU decides to conclude an international agreement:
it shall respect primary law, and secondary law shall respect
the international agreements
- this is why, in the procedure of concluding international
agremeents: MS & institutions can ask the CJEU, before the
entry into force of the international agreement, whether this
draft agreement is compatible with primary law (and only
primary law)
- ⇒ these are opinions
- secondary law / EU legislation: directives, regulations, decisions and
other sources
- in opinion 2/13: the opinion was negative!
- the draft accession agreement to the ECHR was not compatible with primary law for
several reasons
- the EU did not accede the ECHR
- but we are in the process of restarting the accession: in the meantime there
has been a new draft accession agreement
- currently there is the political will to go forward with it
- so in the next year or so, there will probably be another opinion
where CJEU is asked on the compatibility of the new draft agreement
of the accession
- is one of the decisions of CJEU where the essential characteristics of the EU legal
order have been summed up1:
- the founding treaties of the EU, unlike ordinary international treaties,
established a new legal order:
- possessing its own institutions
- for the benefit of which the MS have limited their sovereign rights, in
ever wider fields
- the subjects of which comprise not only MS, but also their nationals
(para 157)
- autonomous vis-à-vis the laws of the MS & international law (para
17c)
- specific characteristic (para 161 ff)
the architecture of the judicial system of the EU:
- composite / multilevel system
- a) main actor: CJEU
- this is one of the institutions laid down in art 13 TEU, with the status of an institution
- but this institution comprises different bodies:
1
in order to justify the non-compatibility of the draft accession treaty
4
GENERAL PRESENTATION OF THE COURSE:
general & practical info:
- 2 classes on tuesdays (9-11AM & 2-4PM)
- classes in the afternoon: conversation / engagement / questions (so if you go to class you have
to be prepared to engage)
learning outcomes:
- in depth understanding of:
- the EU composite judicial architecture
- general principles and doctrines governing the relationship between the CJEU and
domestic courts
- judicial remedies designed to enforce EU law and protect EU rights
- basics of some topical issues in judicial protection in the EU
- enhance a variety of students’ skills:
- handling & developing complex reasoning on EU legal texts
- analysing the CJEU’s case law
- applying the rules governing the EU judicial remedies to a given real situation
- identifying the most appropriate judicial remedies in a given situation
- developing a critical thinking approach
teaching methods:
- lectures & seminars
- guest lectures
- case-study presentations
- on tuesday afternoons: presentation of case studies: 3 judgements per week
- some students present a case and prof moderates and prepares questions
- everyone has to participate in the discussion
- reading of these materials are mandatory for everyone
- everyone has to be able to ask 1 question on each case
⇒ everything is interactive so you have to read the materials before classes (see toledo)
- for each week there are mandatory readings (2-3 articles & some cases)
- there are also “further readings”: not mandatory, but are aimed to assist students in preparing
for the exam (but the exam will not only focus on this)
- reference book: EU Procedural Law (to help put everything in perspective)
- you don’t have to buy it: can find it in the online resources of the library
calendar: there are 3 main parts of the class:
- 1. EU judicial architecture as a whole
- = multilevel or composite judicial system of the union
- 2. analyse the main procedures before the CJEU
- preliminary ruling procedures
- infringement procedure
- annulment procedure
- connected action before CJEU
- opinions
- action for damages
- spacial forms of procedure
- 3. judicial protection of rights
1
,assessment methods:
- written exam: 2 open questions
- combination of practical & theoretical questions (essay questions)
- limited open book: you can only use:
- printed version of the official documents (case law, treaties, legislation) that are part
of the course materials
- not: ppt / class notes
- can we bring excerpts? (= parts of legislation / treaties) → YES: so long as it
is part of the official documents
- = you can bring the whole judgements or parts of the judgements
- but not summaries of the judgements made by yourself
- but you can highlight? yes, according to university guidelines
- general rules apply (codex reglement)
- printed version of a language dictionary
how to navigate the course materials:
- for each topic there will be a class with a powerpoint presentation
- on the ppt: all the key information is on it!
- things on the slides we will discuss in class: it is a compass
- mandatory readings:
- articles
- sometimes case studies
2
, 1. EU JUDICIAL ARCHITECTURE AS A WHOLE
a. INTRODUCTION TO THE JUDICIAL ARCHITECTURE OF THE EU
EU is based on rule of law: basic idea is that public power is subject to scrutiny
- if there is a violation, there should be a remedy
- related to the idea of checks & balances + separation of power
history of rights / liberties is the history of judicial enforcement / judicial procedure through which
those rights & liberties can be enforced
→ goes back to the Romans: if you have a right, you should also be able to exercise / enforce that
right
why procedures?
- they are important for the CJEU to render effective and give substance to many of the
provisions in the treaties
- through procedures: CJEU doesn’t only clarify the literal meaning of many provisions: it also
clarifies the legal effect and has elaborated many of the constitutional principles of the EU
legal order
- ⇒ this is a tool for shaping the EU legal order + relationships between union level & MS
level
- this is the most important procedure to this effect
- = premium reference procedure
- premium reference = premium ruling reference is a breach that connects the
national level judicial enforcement to the european union level
- this breach, that goes from national courts to the CJEU is based on
cooperation: it is a dialogue between national courts & CJEU based
on cooperation & mutual respect of prerogatives and powers of the
counterpart
the EU is not a state / ordinary IO: it is a sui generis legal order
→ Van Gend & Loos 1963: case 26/62: this is when CJEU first affirmed this principle: that the EU (at
the time the Communities) was not like any other IO
- principle of direct effect: soms provisions of the treaties (although these provisions of the
treaties are concluded in the international legal order and are directed to MS), can be enforced
directly before national judges
- why is it not like a normal international legal order? what are the characteristics that
differentiate it?
- supranational: MS have conferred some of their sovereign powers to the EU
- autonomy: = the EU legal order does not depend on the validity of the national legal
systems
- it is a system in itself!
- connected to the principle of direct effect, and one of the key points in Van Gend &
Loos: subjects of EU legal order are not only the states, but also the individuals (the
citizens of the states)
- primacy
opinion 2/13: the opinion on the accession of the EU to the ECHR
- what is an opinion in general? possibility to ask an opinion by the CJEU is limited by art 218
para 11 TFEU:
3
, - is a type of decision by the CJEU
- it is limited to the compatibility of draft international agreements that the EU wishes
to conclude with EU primary law
- in hierarchy of sources in EU law:
- primary law = treaties, charters (general principles?)
- between primary law & secondary law: the place for international
agreements by the EU
- = when EU decides to conclude an international agreement:
it shall respect primary law, and secondary law shall respect
the international agreements
- this is why, in the procedure of concluding international
agremeents: MS & institutions can ask the CJEU, before the
entry into force of the international agreement, whether this
draft agreement is compatible with primary law (and only
primary law)
- ⇒ these are opinions
- secondary law / EU legislation: directives, regulations, decisions and
other sources
- in opinion 2/13: the opinion was negative!
- the draft accession agreement to the ECHR was not compatible with primary law for
several reasons
- the EU did not accede the ECHR
- but we are in the process of restarting the accession: in the meantime there
has been a new draft accession agreement
- currently there is the political will to go forward with it
- so in the next year or so, there will probably be another opinion
where CJEU is asked on the compatibility of the new draft agreement
of the accession
- is one of the decisions of CJEU where the essential characteristics of the EU legal
order have been summed up1:
- the founding treaties of the EU, unlike ordinary international treaties,
established a new legal order:
- possessing its own institutions
- for the benefit of which the MS have limited their sovereign rights, in
ever wider fields
- the subjects of which comprise not only MS, but also their nationals
(para 157)
- autonomous vis-à-vis the laws of the MS & international law (para
17c)
- specific characteristic (para 161 ff)
the architecture of the judicial system of the EU:
- composite / multilevel system
- a) main actor: CJEU
- this is one of the institutions laid down in art 13 TEU, with the status of an institution
- but this institution comprises different bodies:
1
in order to justify the non-compatibility of the draft accession treaty
4
