Summary EU system of judicial protection and enforcement action + protecting EU rights: preliminary rulings and annulment action

Ch 6: effects of EU law in national legal system (direct and indirect effect)
Ch 10: judicial protection before CJEU
Ch 9: fundamental rights in EU

Lecture 9, 10: EU system of judicial protection and enforcement action + protecting rights
in EU: preliminary rulings and annulment action

Effects of EU law on national systems [how it’s possible for a diffuse system of protection to
work): (p. 82 notes)
1. Principle of sincere cooperation between EU & MS (art. 4(3) TEU)
2. Direct applicability certain acts (art. 288 TFEU)
3. Direct effect of certain acts (Van Gend en Loos)
4. Primacy EU law, in conflict  EU law prevails (Costa)
5. Consistent interpretation (EU law that cannot have direct effect, may still be
indirectly invoked within national system)
a. (Von Colson): limits to consistent interpretation  contra legem not possible
Key principles

National procedures for enforcing EU law rights in the MS (p. 167):
1. If the EU has its own procedural rules, they take precedence over national rules
2. If there are no EU rules on the matter, it is the national procedural responsibility to
enforce EU law following the general national rules and procedures
3. BUT, there are 2 qualifications to such full national procedural autonomy:
a. Requirement of equivalence (rules governing actions for safeguarding an
individual’s rights under EU law must not be less favorable than those
governing similar domestic action/EU law based claims cannot be treated less
favorably)
b. Requirement of effectiveness (rules must not render practically
impossible/excessively difficult the exercise of rights conferred by EU
law/remedy must not be practically impossible or excessively difficult)

State liability non-compliance EU law  can an individual sue for damages a MS for its non-
compliance with EU law? (Francovich) (p. 170):
 Remedy available at national level
 Principle of state liability for harm caused to individuals by breaches of EU law for
which the State can be held responsible is inherent in the system of the Treaty
Conditions that have to be met (Brasserie de Pecheur/Factortame):
1. A wrong (act or omission violating EU law) attributable to the State (any body of the
State)
a. Of a legal provision which was intended to confer rights on individuals
b. The wrong was sufficiently serious
2. Damage
3. Causal link between wrong and damage

What type of actions may involve individual applicants before CJEU?
 Infringement proceedings: NO standing
 Annulment action: LIMITED standing (art. 264(4) TFEU)
 Preliminary references: INDIRECT effect on individual
o May bring case before national court  refers case to ECJ (individual not
directly involved)

, CJEU types of proceedings:
 Direct actions (pending before CJEU, matter decided at EU level)
o Infringement proceedings (MS failed to fulfil obligation imposed by EU law)
 Declarative nature (CJEU can only establish the violation)
 Commission vs MS (art. 258)  COM enjoys discretion in decision to
initiate both admin and judicial phase: 1. Right to prioritize cases 2.
COM not forced to pursue complaint if it’s not a priority for the
institution
 MS is liable under 258 “whatever the agency of the State
whose (in)action is the cause of the failure to fulfil its
obligations (Case 77-69 Com. V Belgium)
 “failed to fulfil treaty obligation”: positive acts or omissions
imposed by EU law (both primary and secondary law)
 Administrative phase (see steps p. 85 + 100 notes)
o Letter of formal notice to MS, COM defines subject
matter of dispute
o MS reasonable time to submit its observations
o COM may deliver reasoned opinion defining
infringement
o MS given time limit to comply with opinion (2 months)
 If MS fails to comply  judiciary phase p. 86 notes
o COM may bring infringement action before CJEU
o CJEU decides whether MS has breached EU law
 MS vs MS (art. 259)
 (gestreepte ook hiervoor)
 (MS can bring matter before COM)
 Both MS have opportunity to submit their cases (and respond
to each other) both written and orally
 COM must deliver reasoned opinion within 3 months after case
was brought
 If COM fails to do this, applicant MS may bring infringement
proceeding before CJEU, which gives final ruling

o Annulment action (EU institution does not comply with EU law) (legal
remedy) (p. 272)
 EU institution/MS vs EU institution (art. 263)
 Review on legality, CJEU can declare illegal act void (art. 264)
 Admissibility:
o Compliance with time limit for bringing the action (2
months) (art. 263(6) TFEU) starting from
 date of publication of measure;
 notification to applicant;
 when it comes to knowledge of applicant
o Reviewability of the act (art. 263(1) TFEU)
 Act should be legally binding
 BUT, if act doesn’t belong to art. 288, it will be
reviewable if it’s capable of affecting applicant