eu law - study plan

8/12/2019 EU Law - Study Plan

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Law School

STUDY PLAN I-THE DEVELOPMENT OF THE EUROPEANUNION &LAW MAKING AND SOURCES OF LAW

Part A: The History and Development of the European UnionTHE ORIGINS OF EUROPEAN UNION LAW (Reading Fairhurst Ch. 1)

Over half a Century ago 6 States founded the then European Economic Community,

their goal was to establish a free trade area and thus create political and economicstability following the ravages of the Second World War. To that end they outlinedtheir aims within the Preamble of the Treaty of Rome 1957, which stated that theMember States were:

".....determined to lay the foundations of an ever closer union among the peoples ofEurope, resolved to ensure the economic and social progress of their countries bycommon action to eliminate the barriers which divide Europe, affirming as theessential objective of their efforts the constant improvement of the living and workingconditions of their peoples...........resolved by thus pooling their resources to preserveand strengthen peace and liberty, and calling upon the other peoples of Europe whoshare their ideal to join in their efforts, have decided to create a European Economic

Union..."

The aims of the Union were set out in Article 2 of the Treaty of Rome this originallyread as follows:

"The Union shall have as its task, by establishing a common market andprogressively approximating the economic policies of Member States, to promotethroughout the Union a harmonious development of economic activities, a continuedand balanced expansion, an increase in stability, an accelerated raising of thestandard of living and closer relations between the States belonging to it"

As you can appreciate the concerns at that time were purely economic in nature and

scope, the European Union as we know it was far from being realised.

Today the Union concerns itself with a variety of tasks; Article 2 of the ConsolidatedVersion of the Treaty on European Union states that:

The Union is founded on the values of respect for human dignity, freedom,democracy, equality, the rule of law and respect for human rights, including the rightsof persons belonging to minorities. These values are common to the Member Statesin a society in which pluralism, non-discrimination, tolerance, justice, solidarity andequality between women and men prevail.


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The Aims of the Union are as follows:

1. The Union's aim is to promote peace, its values and the well-being of its peoples.2. The Union shall offer its citizens an area of freedom, security and justice withoutinternal frontiers, in which the free movement of persons is ensured in conjunctionwith appropriate measures with respect to external border controls, asylum,immigration and the prevention and combating of crime.3. The Union shall establish an internal market. It shall work for the sustainabledevelopment of Europe based on balanced economic growth and price stability, ahighly competitive social market economy, aiming at full employment and socialprogress, and a high level of protection and improvement of the quality of theenvironment. It shall promote scientific and technological advance.It shall combat social exclusion and discrimination, and shall promote social justiceand protection, equality between women and men, solidarity between generationsand protection of the rights of the child.It shall promote economic, social and territorial cohesion, and solidarity amongMember States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe'scultural heritage is safeguarded and enhanced.4. The Union shall establish an economic and monetary union whose currency is theeuro.5. In its relations with the wider world, the Union shall uphold and promote its valuesand interests and contribute to the protection of its citizens. It shall contribute topeace, security, the sustainable development of the Earth, solidarity and mutualrespect among peoples, free and fair trade, eradication of poverty and the protectionof human rights, in particular the rights of the child, as well as to the strict observanceand the development of international law, including respect for the principles of theUnited Nations Charter.6. The Union shall pursue its objectives by appropriate means commensurate with

the competences which are conferred upon it in the Treaties.

The Development of the Union

The Updating of the Treaties

Since the initial Treaty of Rome in 1957, subsequent Treaties have enhanced theaims, ideals, procedures and enforceable rights for Member States and theircitizens.

The Single European Act (1986)

The Treaty on European Union or TEU [Maastricht Treaty] (1992)

The Treaty of Amsterdam (1997)

The Treaty of Nice (2001)

The Lisbon Treaty (2007)

Significantly the European Union now encompasses 27 Member States, 28 as ofJanuary 2013 stretching from the Arctic to the Mediterranean and on to the Ageanand Adriatic. There are several other states seeking to join and the final total of

Member States could exceed 35.


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Tasks

Prepare a short briefing document outlining the key themesidentified in each Treaty.

Identify the key functions of both the Consolidated Version ofthe Treaty on the European Union (TEU) and theConsolidated Version on the Functioning of the EuropeanUnion (TFEU).

Does either Treaty provide a constitution for Europe?

Section B: The Political Institutions of the European Union

Introduction

We will briefly examine the roles of the institutions and the relationships betweenthem, including the legal basis for each institutions existence, operation, limitationsand the ways in which the institutions have developed due to Treaty implementation.There may be a temptation to impose a constitutional model, similar to that of theUnited States or Continental European States upon the institutional framework; onecan indeed sense that the institutions individually do cover legislative, executive andjudicial functions. However, in reality, some of the institutions undertake bothlegislative and judicial functions, in reality our own Constitutional arrangements aremore akin to those of European Union.

The five main institutions, which we will concern ourselves with during thiscourse, are:

1.) The Parliament2.) The Council3.) The European Council4.) The Commission5.) The Court of Justice of the European Union to be discussed in greater detail

later in the course.

The legal basis for the operation of the political institutions

This is contained within Article 13 TEU, which states that:

1. The Union shall have an institutional framework which shall aim to promote itsvalues, advance its objectives, serve its interests, those of its citizens and those ofthe Member States, and ensure the consistency, effectiveness and continuity of itspolicies and actions.

The Union's institutions shall be:the European Parliament,the European Council,the Council,

the European Commission (hereinafter referred to as the Commission),the Court of Justice of the European Union


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2. Each institution shall act within the limits of the powers conferred on it in theTreaties, and in conformity with the procedures, conditions and objectives set out inthem. The institutions shall practice mutual sincere cooperation.We will examine the operation of the main political institutions and also the bodieswith supporting roles as listed in Article 13 TEU.

The European Parliament (Reading Fairhurst Ch. 3)

Article 14 TEU (Articles 223234 TFEU)

The European Parliament was first known as the Assembly and was created by theTreaty of Rome in 1957. It consists of Member State representatives who aredirectly elected by the citizens of the EU. The European Parliament is therefore theonly truly "democratic" body in the European Union institutional structure.

Legislative powers

Through progressive changes brought about by the SEA and the TEU and latterly theTreaties of Amsterdam, Nice and Lisbon the European Parliament has moved from amainly advisory and supervisory body to one which has almost equal status with theCouncil.

The European Council


The European Council is in essence a twice yearly meeting of the Heads of state ofthe 27 Member States, accompanied by their Foreign Ministers, the various

Presidents and Prime Ministers discuss broad political matters and set the legislativeagenda for the other institutions. This is an intergovernmental, political institution, asopposed to a supranational legislative one.

The Council


This body is the most powerful institution in the Union. It represents the interests ofthe Member States and is an intergovernmental institution. There is no set

membership as this depends on the matters to be discussed, but is made up ofrepresentatives from each state.

Appointment

Essentially it is a political grouping; composed of political representatives of each ofthe Member States (usually the foreign ministers though a specialist subject willmean that the ministers with that specialism will attend e.g. finance ministers,agriculture ministers, transport ministers etc). Council representatives are thereforeaccountable to their own national Parliaments.


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Presidency

Each country rotates the presidency of the Council on a six monthly basis. ThePresidency will chair meetings at both Luxembourg and Brussels and also within theMember States and provides the representation of the Council to other Unioninstitutions such as the European Parliament and the Commission. This role is nownot as significant as the Council has its own President.

Decision-making in the Council

As noted above the Council is the most important legislative body within the Union.The Council had for a long time the final power of decision in relation to mostsecondary legislation in the Union and is the institution of the Union which mostreflects national interests. Parliament now has joint legislative powers in many areas(see below) and voting maybe carried out within the Council in a number of ways:

Unanimity

Simple majorityQualified majority. (Reading Fairhurst Ch. 4)

Qualified Majority Voting has increasingly become the norm and the procedure iscomplex and each Member State's voting power depends essentially on its size.Significant changes will be made in this area over the course of the next decade,though for the purpose of this course you need not trouble yourselves too greatly withdevelopments post 2014.

Task

Consider the advantages and disadvantages for the

different voting procedures. You may wish to take into

account the number of votes that Member States have

and the impact of allegiances within the Union.

The European Commission


The Commission is often described as the driving force behind European integration,(as Craig & De Burca point out the role of the Commission in this area has allowed itto act as a "motor of integration"), The Commission also describes itself as theGuardian of the Treaties, and in this capacity it takes action against errant MemberStates for their failure to implement the provisions of EU Law.

This dual role essentially sees the Commission not only as the initiator of EuropeanLaw, but also the enforcer of European Law. Thus the Commission, arguably, acts inall three Constitutional capacities.


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Task

As the Commission has various roles including the

proposal, creation and enforcement of European law,

this could be seen as an abuse of power. Consider how

this potential for abuse is controlled by the other

Institutions of the EU and by the relevant Treaty

provisions.

The Court of Justice of the European Union (Reading Fairhurst Ch.5 & 6)


The Court of Justice plays a central role within the Union, in that it is the highest legalauthority within the Union. As you will learn the Court of Justice has had afundamental impact on the Union in that some of the most important legal principles,which govern the way, the Union functions were not founded by subsequent Unionlegislation, or indeed the founding Treaty, but were rather developed by the Court ofJustice in its jurisprudence.

Important note

The European Court of Justice should not be confused with the European Court ofHuman Rights at Strasbourg; this institution deals with cases concerned with the

European Convention on Human Rights and is part of a separate, larger organisationthe Council of Europe. This course is not concerned with either the Council ofEurope nor the European Convention on Human Rights.

Location

The Court of Justice is based in Luxembourg & sits in permanent session.

Working language

The working language of the Court is French; this is a leftover from the creation ofthe original Union, in which French was the official language of 3 of the 6 members.Importantly though the language of a case can be any of the currently 23 OfficialLanguages of the EU.

Composition

Significantly the Court differs considerably from English Court; unlike an adversarialcommon law court the Court of Justices process is inquisitorial.

Essentially the whole procedure following an initiation by one party is led by theCourt. The Court can request parties to provide documents & written statements, on

which there is placed a greater emphasis on than in English Court. Witnesses areheard at the instigation of the Court not parties to the case. The procedures and


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composition of the Court are loosely based upon those of the Conseil dEtat thehighest French Administrative Judicial body.

The Court has its own rules of procedure and the Statute of the Court of Justice isannexed as a Protocol to the Treaty.

Judges

Article 251 TFEU

The Court of Justice shall sit in chambers or in a Grand Chamber, inaccordance with the rules laid down for that purpose in the Statute of the Courtof Justice.When provided for in the Statute, the Court of Justice may also sit as a fullCourt

The Treaty of Nice amended Article 221 EC, now Article 251 TFEU, to provide

for one judge from each Member State, hence there are 27 judges. Prior toNice the Treaty was silent as to nationality, though in practice one judge fromeach Member State was appointed.

Chambers consist of 3 or 5 members, whilst a Grand Chamber consists of 11judges. There will always be an odd number of Judges, as in an EnglishAppeal Court, so as to ensure a majority verdict.

Article 253 TFEU

The Judges and Advocates-General of the Court of Justice shall be chosenfrom persons whose independence is beyond doub t and who possess the

qual i f icat ions required for appointm ent to the high est judicial off ices intheir respect ive countr ies or who are juris consults of recognisedcompetence; they shall be appointed by common accord of the governments ofthe Member States for a term of six years. Every three years there shall be apartial replacement of the Judges and Advocates General, in accordance withthe conditions laid down in the Statute of the Court of Justice. The Judges shallelect the President of the Court of Justice from among their number for a termof three years. He may be re-elected.

Retiring Judges and Advocates-General may be reappointed.The Court of Justice shall appoint its Registrar and lay down the rulesgoverning his service.

The Court of Justice shall establish its Rules of Procedure. Those Rules shallrequire the approval of the Council, acting by a qualified majority.

Appointments are staggered so that some take place every three years, (Article 9 ofthe Statute of the Court), thus ensuring a continuity of justices. Importantly as isstated in Article 253 the independence & impartiality of the Judges is paramount. Somuch so that they, (the Judges), pledge an oath to perform their duties impartially &conscientiously & to preserve the secrecy of the deliberations of the Court.


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The role of the Advocate-General

Article 252 TFEU

The Court of Justice shall be assisted by eight Advocates-General. Should theCourt of Justice so request, the Council, acting unanimously, may increase thenumber of Advocates-General. It shall be the duty of the Advocate-General,acting with complete impartiality and independence, to make, in open court,reasoned submissions on cases, which, in accordance with the Statute of theCourt of Justice, require his involvement.

The role of the Advocate-General is possibly one of the most alien roles to EnglishLawyers. The position can be compared with that of an amicus curiae, however thisanalogy is somewhat limited. Importantly whilst neither a judge, nor indeed anadvocate, the eight Advocate-Generals are almost always highly regarded membersof a States judiciary and also academic scholars. They enjoy equal status with thejudges and acts as an independent adviser to the justices drafting an opinion on the

particular legal issues raised by the case. Significantly whilst the Advocate-Generalsopinion is very persuasive, given the very high standard of legal analysis containedwithin it, (and more often than not his/her recommendation forms the basis of theCourts judgement), it is not binding on the justices who are free to depart from itshould they wish.

The Advocate-Generals opinion is delivered in open Court following the completion ofthe formal stage, but before the judges deliberate upon their judgement.

The Advocate-Generals role has been described as:

one could say that he gives a second opinion, which is in fact delivered first. 1[1]

An advocate-generals job must in many ways be more satisfying than that of ajudge. A judge works as a member of a committee: any proposal he puts forwardregarding a judgment must be agreed to by at least a majority of his colleagues. Hecannot, therefore, put his personal stamp upon a judgment in the same way that anEnglish judge can; and even if he succeeds in winning over his brother judges to hisway of thinking on a particular issue, the result is always anonymous: no one outsidethe closed circle of the Court of Justice will ever know that it was his own work. Theadvocate-general, on the other hand, is on his own: his opinion is his own work(though he may receive assistance from his legal secretary) and he alone isresponsible for it. He will receive praise or blame according to his deserts.2[2]

Normally, one Advocate-General is appointed per case. Following the Nice Treaty,

the Court may decide that there is no need for an advocate-generals opinion if thecase does not raise a new point of law. (See Article 20 of the Statute.)

The UK is represented, since January 2006, by Eleanor Sharpston, an eminentacademic and QC.

1Hartley The Foundations of European Union Law(5thed. OUP 2003) at p.57.

2Ibid. pp.57-58.


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Task

Examine the Statute of the Court identify and

summarise the roles of the President, Judge

Rapporteurs, Registrar and Legal Secretaries.

Jurisdiction

There are 3 main forms of jurisdiction; this Study Plan focuses on the first 2.

1. Preliminary References/Preliminary Rulings under Art. 267

These are legal questions/issues, which are referred by the Courts & Tribunals of theMember States to the Court of Justice. Essentially cases involving preliminaryreferences start and finish in the National Court. The National Court makes areference to the Court of Justice on a point of law. The Court of Justice will send aruling on the point back to the national court, which will then reopen the case andgive judgment.

2. Infringement Actions against Member States. These actions may be broughtunder Arts. 258, 259 & 260

3. Direct Actions (Judicial Review) under Arts 263 & 265. (This is not part of thesyllabus.)

These latter two are direct actions, which start and end in Luxembourg and the Courtof Justice decides the case.

Procedure

The basic procedure in a direct action is as follows:

Written procedure (Articles 37-44a of the Rules of Procedure.)

Article 20 of the Statute of the Court provides that:

The written procedure shall consist of the communication to the parties and to the

institutions of the Communities whose decisions are in dispute, of applications,

statements of case, defences and observations, and of replies, if any, as well as of all

papers and documents in support or of certified copies of them.

The claimant will lodge an application, known as a pleading, at the Courts registry,setting out the basis of the claim in accordance with Article 21 of the Statute. TheCourt will serve the application on the defendant, who will have the opportunity to

lodge a defence. The applicant may reply to the defence and the defence may enter


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a rejoinder to the reply. The judge-rapporteur will present a preliminary report to theCourt.

Preparatory inquiry (Articles 45- 54 of the Rules of Procedure)

An important distinction from an English Court is the fact that the Court decides whatevidence is required. Article 45(1) of the Rules provides:

The Court, after hearing the Advocate General, shall prescribe the measures ofinquiry that it considers appropriate by means of an order setting out the facts to beproved.

The Court may therefore ask for further information, commission reports from expertwitnesses or ask for the parties to appear in person. It may also summon witnesses.Article 45(2) of the Rules states that the following methods of inquiry may be adoptedshould the Court feel them necessary:

The personal appearance of the partiesA request for information and production of documents

Oral testimony

The commissioning of an experts report

An inspection of the place or thing in question

Oral procedure (Articles 55-62 of the Rules of Procedure)

The oral procedure in the Court of Justice is brief in comparison with an EnglishCourt. During this period the judges and the advocate-general can question theparties lawyers. These questions are generally very brief, significantly counsel areexpected to have delivered submission prior to the hearing and only use this address

to emphasise their strongest arguments and attack the weaknesses in theiropponents case. At the end of the oral procedure, there will be an adjournment.The Court will reconvene, normally some months later, and the advocate-generalformulates his opinion, which he later delivers before the judges deliberate.

The Court will then reserve judgment.

Importantly the parties have no right to comment on the Advocate-Generals opinion

Emesa Sugar (Free Zone)vAruba(Case C-17/98) [2000] EUR I-665 100

The Court may, as per Art. 44a of the Rules, which were amended on 1 July 2000

(OJ 2000 L 122/43), dispense with the oral procedure, having received a report fromthe Judge-Rapporteur, and having listened to the AdvocateGeneral and the parties

to the case. This was incorporated by Art. 20 of the Statute of the Court. Importantly

though, Art. 20 limits the exclusion of an oral procedure to those cases, which do not

raise a new point of law.

Judgment (Articles 63-68 of the Rules of Procedure)

The Court deliberates in secret and will discuss the issues in French, regardless ofthe language of the case. Whilst the judgement will be drafted in French, it will later

be translated into the language of the hearing and become the authentic version of


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the judgement once agreed. As noted earlier there will always be an odd number ofjudges the majority vote will prevail. Judges vote in reverse order of seniority.

Judgments

Form of judgment

Very unlike an English Courts judgement the Court of Justice delivers a singlesuccinct judgment. There are no individual judgments and therefore no dissentingjudgments. Very often, the judgments consist of terse statements that do not containobiter dictaor ratio decidendi.

The formal ruling, the operative part of the judgement is published in the OfficialJournal. Whilst the entire judgement combined with the Advocate-Generals Opinionis published in the official European Court Reports (ECR).

Precedent (Stare Decisis)

Following the civil law tradition, the Court is not bound by previous decisions. It has,however, developed generally consistent case law. This is of course essential so asto maintain a level of legal certainty. This is echoed in the fact that the Advocate-General is likely to discuss earlier decisions in his/her opinion. Significantly, andperhaps frustratingly because of the often short and generally terse nature of theCourts judgement it may be difficult, if not near impossible, to extract from thejudgement a ratio decidendi.

On rare occasions, the Court may expressly depart from its previous case law. Thismay be due to a number of factors, a highly persuasive Advocate Generals

Opinion, or a more mundane policy decision by the Court.

Task

Compare and contrast the form of judgements in the

Court of Justice with English Courts and assess the

relative merits and demerits of both?

Examine the case of Keck & Mithourard C-267 and

268/91 (1993) EUR I-8097 in which the Court deviatedfrom its previous precedent. Examine in particular

paragraph 16 of the Courts Judgement, (whilst ignoring

the specific issues of law involved), which previous

judgements do you think the Court was referring to?


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Legal reasoning

As noted earlier the Court of Justice plays a crucial role in developing the law andconstitution of the Union/Union. It emphasised the importance and significance ofthat role in its submission to the Inter Governmental Conference of 1996. (SeeReport of the Court of Justice on Certain Aspects of the Application of the Treaty onEuropean Union for the Purposes of the 1996 IGC (May 1995))

Methods of Interpretation

The Court of Justices methods of interpretation are prima facievery different to anEnglish Courts. This difference famously highlighted by Lord Denning in his speechin the case of Bulmer v. Bollinger[1974] 3 WLR 202, in which he stated that:

The [EU] Treaty is quite unlike any of the enactments to which we have becomeaccustomed it lays down general principles. It expresses its aims and purposes.All in sentences of moderate length and commendable style. But it lacks precision.

It uses words and phrases without defining what they mean. An English lawyerwould look for an interpretation clause, but he would look in vain. There is none. Allthe way through the Treaty there are gaps and lacunae. These have to be filled bythe judges, or by regulations or directives.

It is the European wayseeing these differences, what are the English courts to dowhen they are faced with a problem interpretation? They must follow the Europeanpattern. No longer must they argue about the precise grammatical sense. Theymust look to the purpose and intentthey must divine the sprit of the Treaty and gaininspiration from it. If they find a gap, they must fill it as best they canthese are theprinciples, as I understand it, on which the European Court acts.

Generally there are four methods of interpretation:

The Literal

The Historical

The Contextual

The Teleological

The teleological approach is the most often used by the Court.

In adopting this approach the Courts interpretation of the provision in question isguided by the aims and objectives of the Union and the European Union as a whole.Importantly the original signatories to the Treaty of Rome shared a civil law tradition

and so were accustomed to a teleological approach to legal reasoning, wherelegislation provides a framework of principles not intended for purely literalinterpretation. This is sometimes compared to the English Courts purposiveapproach.

This approach was referred to by Lord Diplock in Rv Henn[1981] AC 850 as beingthe 'spirit rather than the letter of the Treaty':

"Every provision of Community law must be placed in its context andinterpreted in the light of the provisions of Community law as a whole, regardbeing had for its objectives thereof and to its state of evolution at the date on

which the provision in question is to be applied"


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Historically the Court has been quite active in applying a teleological approach tofilling the gaps within the framework of the Treaty. What has caused debate amongstsome commentators is where the Court has appeared to go one step further,reaching decisions that extend the scope of the treaties - assuming a creative roleattempting to update the Treaty through interpretation. Critics refer to this as judicialactivism.

For a non-political body, its decisions have often triggered much political andacademic debate. In Les Vertsv European Parliament(Case 294/83) [1986] EUR1339 Article 173 (now 263) allowed the Court to review the legality of acts of theCouncil and the Commission. (It did not then mention Parliament.) The Court ofJustice nevertheless held that an action for annulment could be brought againstParliament:

An interpretation of Article 173 [now 263]which excluded measures adopted bythe European Parliament from those which could be contested would lead to aresult contrary both to the spirit of the Treaty as expressed in Article 164 [now

220]and to its system.

It is true that Article 173 [now 263]refers only to acts of the Council and theCommission. However, the general scheme of the Treaty is to make a directaction available against all measures adopted by the institutions which areintended to have legal effects The European Parliament is not expresslymentioned among the institutions whose measures may be contested because,in its original version, the EEU Treaty merely granted it powers of consultationand political control rather than the power to adopt measures intended to havelegal effect vis--vis third parties.

The TEU amended Article 173 (now 263) EU to include Parliament.

European Parliamentv Council (Chernobyl)(Case C-70/88) [1990] EUR I-2867

The Court of Justice held that the Parliament should be accorded privileged statusunder Article 173 [now 263] EU and allowed to bring an action for judicial review, butonly where it was alleging that its prerogatives had been infringed by the adoption ofthe contested act.

Task

What examples of purposive interpretation can youidentify, within either EU Law or any other module you

are studying/have studied?

What use did the Court make of the Treaty Preamble in

Van Gend en Loos v Nederlandse Administratie der

Belastingen, 26/62 [1963] EUR 1 ?


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The Court of Justice also interprets legislation in accordance with several generalprinciples, the most important being recognised by Art. 6 of the TEU, which declaresthat:

(1) The Union is founded on the principles of liberty, democracy, respect forhuman rights and fundamental freedoms, and the rule of law, principles whichare common to the Member States.

It will also consider aspects of the European Convention on Human Rights, this wasrecognised as an element of the Courts jurisprudence as far back as the case ofStauder v. City of Ulm 29/69 [1969] EUR 419. In which the Court of Justice declaredthat, fundamental human rights are enshrined in the principles of Community lawand protected by the Court.

Ultimately this means that where there exists a conflict between national law which isintended to implement Union law, but it does so in a way that it infringes uponidentifiable human rights (as recognised by the European Convention on Human

Rights) the Court will rule the national measure as being contrary to Union law.

See for example Johnston v. Chief Constable of the RUC222/84 [1986] EUR 1651.

Significantly however the Court of Justice can only make such a ruling on thecompatibility of a national law in those areas of national law, which are affected, byUnion law.

The Court of Justice defined the limits of its jurisdiction in Demirel v. StadtSchwabisch Gmund 12/86 [1987] EUR 3719, in which the Court stated that it:

has no power to examine the compatibility with the EUHR of national legislation

lying outside the scope of Community Law.

A further future point of reference for the Court of Justice in relation to Human Rightsis the European Unions own Charter of Fundamental Rights of 2000.

Task

1. Is the teleological approach of the Court ofJustice truly alien to English Courts? Can youfind/think of examples of the English Courts

adopting a purposive approach to reach a novelverdict?

2. Should the Courts priority lie in ensuring that itfulfils its obligations in ensuring the law is observedstrictly, or should it interpret and apply the treaty inthe furtherance of the Union? What are thedangers/benefits of both approaches?


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Workload

The Court of Justice is a thriving legal environment. (688 cases were lodged at theCourt of Justice in 20113) Some may suggest that it has become a victim of its ownsuccess; currently the duration of cases can be two years or more, there were 849cases awaiting judgment in 2011. Whilst a number of procedural reforms have takenplace throughout the history of the Court their effect has often been marginal orwholly negated. Whilst the Court continues to embrace a wider geographical andlegal jurisdiction the situation will continue to persist.

The Preliminary Reference Procedure

The majority of the Court of Justices work originates from references by the NationalCourts & Tribunals of the Member states. It forms an essential role in linking theCourt of Justice with the judiciary of the Member States.

This fundamental link was recognised by the Court of Justice in its Report to the1996 Inter-Governmental Conference (Report of the Court of Justice on certainaspects of the application of the Treaty on European union, Luxembourg, May 1995)

The preliminary ruling system is the veritable cornerstone of the operation of theinternal market, since it plays a fundamental role in ensuring that the law establishedby the Treaties retains its Union character with a view to guaranteeing that the lawhas the same effect in all circumstances in all member states of the European union.

Article 267 TFEU

The Court of Justice of the European Union shall have jurisdiction to givepreliminary rulings concerning:

(a) The interpretation of the Treaty;(b) The validity and interpretation of acts of the institutions of theUnion and of the ECB;(c) The interpretation of the statutes of bodies established by anact of the Council, where those statutes so provide.

Where such a question is raised before any cour t or tr ibunal of a Memb erState, that court or tribunal may, if it considers that a decision on the questionis necessary to enable it to give judgment, request the Court of Justice to give

a ruling thereon.

Where any such question is raised in a case pending before the court ortr ibun al of a Memb er State, against who se decision there is no ju dicial

remedy un der national law, that court or tribunal shall bring the matter beforethe Court of Justice.What matters can be subject to a reference under Art. 267 EU

Interpretations of the Treaty

3

See 2011 Annual Report of the Court of Justice. Available at:http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-06/ra2011_statistiques_cour_en.pdf


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Union Acts, Regulations, Directives, decisions and also thoseRecommendations & Opinions, which are relevant to the interpretation ofUnion Law by the National Courts of the Member States.

See: Frecassetti v. Amministrazione delle Finanze dello Stato, 113/75 [1976] EUR983 and Grimaldi v. Fonds Des Maladies Professionelles C-322/88 [1989] EUR 4407

Introduction

Rheinmuhlen(Case 166/73) [1974] EUR 33

Article 177 [now 267]is essential for the preservation of the Union character ofthe law established by the Treaty and has the object of ensuring that in allcircumstances this law is the same in all Member States of the Union

Be aware that the system is not an appellate system. Whilst tempted to make the

Court of Justice a Supreme, and very final, Court of Appeal for Europe, the foundersof the original EEU did not wish to create such a direct challenge to their nationaljudiciary. Therefore the system they created is based on reference, rather thanappeal, (Be advised that this is often misquoted in the media). Art. 267 TFEUexpressly recognises the essential partnership role between the National Courts ofMember States and the Court of Justice, it is the only provision of the Treaty, whichexpressly acknowledges the enforcement role of the National Courts.

Whilst in an appeal, the initiative lies with the parties and if the appeal is successfulthe Appellate Court can substitute its own decision for that of the lower court.In a reference however, it is the lower court itself, which takes the decision to referthe case. The Court of Justice rules on the issues which have been raised, but it is

then for the lower court to apply the ruling of the Court of Justice to the facts of thecase before it.

The system is based on the principle that when faced with a question concerning EULaw, member States National Courts refer the point of law to the Court of Justice,which interprets the provision and refers it back to the National Court to apply it asthey see fit. Ultimately the decision in that case will be that of the National Court, thewhole object of the reference procedure is to retain the independence of the NationalCourts while at the same time preventing:

A body of national case law not in accord with the rules of Union law from cominginto existence in any Member State. Hoffmann La Roche v. Centraform 17/76[1977]

EUR 957

A reference to the Court of Justice may be made at any stage in the proceedings,even before a full hearing. Generally however the Court of Justice does expect thecase to have reached a stage at which the relevant facts have been established andthe issues identified on which the assistance of the Court of Justice is required.

Irish Creamery Milk Supplies Association v. Ireland 36/80 [1980] EUR 735

It might be convenient, in certain circumstances, for the facts in the case to beestablished and for questions of purely national law to be settled at the time thereference is made to the Court of Justice so as to enable the latter to takecognisance of all features of fact and of law which may be relevant.


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If the national court fails to define the factual and legal framework in which thequestions it puts arise the Court of Justice may refuse to give a ruling.See Telemarsicabruzzo SpA C-320322/90 [1993] EUR I-393

What is meant by a court or tribunal?

The scope of 'any court or tribunal' is a wide definition and is a question of EU law,not national law.

Broekmeulen v Huisarts Registratie Commissie(Case 246/80) [1981] EUR 2311

in the absence, in practice, of any right of appeal to the ordinary courts, theAppeals Committee, which operates with the consent of the public authoritiesand with their co-operation, and which, after an adversarial procedure, deliversdecisions which are in fact recognized as final must, in a matter involving the

application of Union law, be considered as a court or tribunal of a MemberState within the meaning of Article 177 of the Treaty. Therefore, the Court hasjurisdiction to reply to the question asked.

Dorsch ConsultvBundesbaugesellschaft Berlin C-54/96 [1998] 2 CMLR 237

The essential elements to determine the status of the body in relation to Art. 267 EUare:

The ability to make legally binding decisions

The independence of the body from the parties

Recognition of its decision-making functions by the state.

All criteria must be satisfied. An arbitrator for example satisfies most of the criteria,but not all, an arbitrator does not make a judicial decision and does not thereforesatisfy the requirement of being, any Court or tribunal. See Nordsee v. ReedeneiMond 102/81 [1982] EUR 1095

However an arbitration board or a disciplinary body which is recognised by the stateas having a function in making legally binding decisions in relation to an industry orprofessional body may well be a court or tribunal for the purposes of Art. 267. SeeBroekmeulen v Huisarts Registratie Commissie(Case 246/80) [1981] EUR 2311

Article 267 EU Paragraph 2Discretionary References

The question to be referred to the Court of Justice must relate to one of the mattersconsidered above (e.g. interpretation of the Treaty or the interpretation/validity of aregulation, directive or decision.) The discretion lies in the fact that the national courtmust be of the view that, A decision on the question is necessary in order to enable itto give judgement, in the case.

This decision is therefore essentially up to the National Courts to decide whether torefer a question, or not.


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Dzodzi v. Belgium C-297/88 and C-197/89 [1990] EUR I-3763

In the context of the division of judicial functions between National Courts and theCourt of Justice, provided by Art. 177 [now Art. 267 TFEU],the Court of Justice givespreliminary rulings without, in principle, needing to enquire as to the circumstanceswhich led to the national court submitting questions to itThe only exception to thatprinciple would be in cases in which it appeared that the procedure provided for inArt. 177 had been abused and where the questions submitted sought, in reality, tolead the Court of Justice to make a ruling on the basis of an artificial dispute, orwhere it is obvious that the provision of Community Law submitted to the Court ofJustice could not be applied.

Whilst the national court has the discretion to assess the need for a reference, itshould explain how it has come to the conclusion that a reference is necessary, sothat the Court of Justice can be satisfied that it has the jurisdiction to deal with thematter. Foglia v. Novello (No. 2) 244/80 [1981] EUR 3045

Once it is satisfied that it has the jurisdiction to deal with a reference the Court ofJustice is, in effect, bound to deliver a ruling. It cannot simply refuse to do so on thebasis that if its ruling were to have the effect of annulling a Union or Nationalprovision that this would create a legal vacuum in a Member State. It would be forthe National Court to interpret national law in such a way as to fill any gap.See Gmurzynska C-231/89 [1990] EUR I-4003

Importantly if one of the parties to the national proceedings withdraws from them, theCourt of Justice cannot continue to deliver a judgement on the reference, becausesuch a judgement would then no longer be necessary for the continuance of thecase.See Teres Zabala C-422424/93 [1995] EUR I-1567

Whilst a National Court has discretion to refer, or not, where it is a lower court &where its decisions are subject to appeal, it has little real discretion in cases where itsdecisions depend on the disputed validity of a Union measure.It has itself no power to declare the Union measure invalid, so it has no choice but torefer the matter to the Court of Justice for a ruling on its validity.See Foto-Frost 314/85[1987] EUR 4199

When should a court that falls under paragraph 2 make a reference to theCourtof Justice?

Da Costa en Schaake NVv Nederlandse Belastingadministratie(Case 28/62) [1963]

EUR 31

The issues raised were materially identical to those raised in Van Gend en Loos:The questions of interpretation posed in this case are identical with thosesettled as above and no new factor has been presented to the Court. In thesecircumstances, the Tariefcomissie must be referred to the previous judgment.This provides us with an example of the Court of Justices precedence in that itfollowed its own previous decision.


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Following the decision in Bulmer v. Bollinger the English judiciary seemed unwillingto decide on European cases, this position was highlighted by Bingham J inCommissioner of Customs & Excise v. Samex [1983] 1 All ER 1042, he held that theCourt of Justice was in a better position that national courts to determine questions ofUnion law.

R. vInternational Stock Exchange, ex parte Else[1993] QB 534Lord Bingham MR identified three key points:

The facts must be clarified;

The Union law provision must be critical to the final determination of the case;and

A reference must ordinarily be made unless the national court can resolve theUnion law provision with complete confidence.

In considering whether it can with complete confidence resolve the issue itself,the national court must be fully mindful of the differences between national and

Union legislation, of the pitfalls which face a national court venturing into whatmay be an unfamiliar field, of the need for uniform interpretation throughout theCommunity and of the great advantages enjoyed by the Court of Justice inconstruing Community instruments. If the national court has any real doubt, itshould obviously refer.

Significantly this almost creates a presumption that the national court shouldrefer a question to the Court of Justice if it feels in any doubt whatsoeverhaving considered all the complexities of European Union Law.

R. v. Ministry of Agriculture, Fisheries & Food, ex parte Portman Agrochemicals Ltd[1994] 3 CMLR 18

Brooke J said that he did not have the "complete confidence" necessary to resolvethe case himself, but nevertheless decided not to refer the case to the Court ofJustice. Bearing in mind that the decision would become academic within 22 monthsand that it would have taken between 18 months and two years to obtain apreliminary ruling, he held that it was in the parties' interests for the national court todecide the case.

Task

Read the speech of Lord Denning in Bulm er v.Bol l inger [1974] 2 CMLR 91

What were Dennings main criteria for referringa case to the Court of Justice?

Are his arguments persuasive? Is his approachconsistent with that of the Court of Justice?

How does his approach differ from that of LordBingham?


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Art 267 EU Paragraph 3Mandatory References

Hoffman-La Rochev Centraform(Case 107/76) [1977] EUR 957

in the context of Article 177, [Now Art. 267], whose purpose is to ensure thatUnion law is interpreted and applied in a uniform manner in all the MemberStates, the particular objective of the third paragraph is to prevent a body ofnational case-law not in accord with the rules of Union law coming intoexistence in any Member State.

Therefore a court or Tribunal, which satisfies the above criteria, has no discretion; itis required to refer the case to the Court of Justice for a preliminary ruling.

There are two approaches about the meaning of courts referred to in paragraph 3:

The abstract theoryholds that it only applies to the highest court within anyjudicial system.

The concrete theoryholds that it applies to the highest court that can hearthe particular case in question.

The Court of Justice in Costa v ENEL (Case 6/64) [1964] EUR 585 preferred theconcrete theory.

This approach confirms that taken by Balcombe LJ in Chiron Corporation vMurex Diagnostics Ltd (No 8)[1995] FSR 309

If the Court of Appeal does not make a reference to the Court of Justice, andgives its final judgment on the appeal, then the House of Lords becomes thecourt of last resort. If either the Court of Appeal or the House of Lords grants

leave to appeal, then there is no problem. If the Court of Appeal refuses leaveto appeal, and the House of Lords is presented with an application for leave toappeal, before it refuses leave it should consider whether an issue of Union lawarises which is necessary for its decision.

Criteria for a Mandatory Reference

No judicial remedy under National law, see Costav ENEL(Case 6/64) [1964]EUR 585

Where any such question is raised

A decision on the question is necessary to enable it to give judgement.

Therefore a court or tribunal, which satisfies the above three criteria has nodiscretion, it must refer, he question before it to the Court of Justice for a preliminaryruling.

Exceptions to the Obligation to Refer

Is it always necessary for a national court or tribunal to make a referral? There maybe a number of reasons why the court or tribunal does not consider it necessary to

have the question before it answered by the Court of Justice. This was expressly


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recognised by the Court of Justice in the case of Srl CILFITv Ministry of Health(Case 283/81) [1982] EUR 3415

The case provides us with three exceptions to the obligation to refer set out in Article267(3) EU:

Where the question of Union law is not relevantAccordingly, those courts or tribunals [courts or tribunals falling withinparagraph 3] are not obliged to refer to the Court of Justice a questionconcerning the interpretation of Union law raised before them if that questionis not relevant, that is to say, if the answer to that question, regardless of whatit may be, can in no way affect the outcome of the case.

Where the Court of Justice has already ruled on the point of law inquestion.The same effect, as regards the limits set to the obligation to refer laid downby paragraph 3 of Article 177, may be produced where previous decisions of

the Court have already dealt with the point of law in question, irrespective ofthe nature of the proceedings which led to those decisions, even though thequestions at issue are not strictly identical.

These points refer to the development of precedent. We learnt earlier that thedoctrine of precedent does not apply to the Court of Justice but the Court generallyfollows its own previous decisions for the sakes of legal certainty. The Court ofJustice therefore held that it may not be necessary to make a reference to it becausethe question may already have been answered in a previous case.A National Court may however refer any question on interpretation or validity,whether or not the Court of Justice has ruled on the point. The case before theNational Court may raise some new fact or argument.

However, if it does not raise any new fact or argument, the Court may, in its ruling,simply restate the substance of the earlier case:

Da Costa 2830/62 [1963] EUR 31

The questions of interpretation posed in this case are identical with those settled [inthe earlier case of VanGend en Loos] and no new factor has been presented to theCourt. In these circumstances the Tariefcommissie must be referred to the previousjudgement.

The application of the acte clairdoctrine.

Finally, the correct application of Union law may be so obvious as to leave no scopefor any reasonable doubt as to the manner in which the question raised is to beresolved.

Although the Court of Justice has given permission to National Courts to apply theacte clair doctrine, the National Court must do so with the utmost caution. Thisplaces a National Court considering declining a question in a most onerous position.It was recognised by Bingham J in Customs and Excise Commissioners v. Samex[1983] 3 CMLR 194, that:


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advantages enjoyed by the Court of Justice. It has a panoramic view of the Unionand its institutions, a detailed knowledge of the treaties and of much subordinatelegislation made under them, and an intimate familiarity with the functioning of theUnion market which no national judge denied the collective experience of the Courtof Justice could hope to achieve.

Having accepted that national courts have the authority to decide questions of UnionLaw, the Court of Justice then goes on to set strict limitations on this authority.

Task

When must a national court or tribunal make areference to the Court of Justice?

What factors should a national court considerbefore applying the acte clairdoctrine?

Compare these with the approach of LordDiplock in R v. Henn & Darby [1980] 2 All ER166

Rationale behind the CILFIT judgment

Note that some national courts, particularly in France and Germany, had refused toaccept the supremacy of Union law.

ValidityNote that no national court can rule that a Union act is invalid.Foto-Frost (Firma) v Hauptzollamt Lbeck-Ost (Case 314/85) [1987] EUR 4199.

Task

What can the Court of Justice do if nationalcourts refuse to make a reference?

Given this can you see any logic in the CILFITapproach? What are the advantages anddisadvantages from the point of view ofuniformity?

Hypothetical Questions

Fogliav Novello(Case 104/79) [1980] EUR 745

The Italian judge made a further reference, asking whether it was not for the nationalcourt to determine whether a ruling was necessary.


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Fogliav Novello(No 2) (Case 244/80) [1981] EUR 3045

It must in fact be emphasised that the duty assigned to the Court by Article 177is not that of delivering advisory opinions on general or hypothetical questionsbut of assisting in the administration of justice in the Member States. Itaccordingly does not have jurisdiction to reply to questions of interpretation,which are submitted to it within the framework of procedural devices arrangedby the parties in order to induce the Court to give its views on certain problemsof Community law, which do not correspond to an objective requirementinherent in the resolution of a dispute. A declaration by the Court that it has nojurisdiction in such circumstances does not in any way trespass upon theprerogatives of the national court but makes it possible to prevent theapplication of the procedure under Article 177 for purposes other than thoseappropriate for it.

Furthermore, it should be pointed out that, whilst the Court of Justice must be

able to place as much reliance as possible upon the assessment by thenational court of the extent to which the questions submitted are essential, itmust be in a position to make any assessment inherent in the performance ofits own duties in particular to check, as all courts must, whether it hasjurisdiction.

Simplified Procedure & Expedited Hearing

On July 1st2000 new Rules of Procedure of the Court of Justice came into effect.They introduced a simplified procedure for certain types of case referred to it underArt. 267 EU, see Art. 104(3) Rules, and in other situations provided for anaccelerated procedure, see Art 104a Rules.

The new rules can be found in OJ 2000 L 122/43, see also Note for Guidance onReferences by National Courts for Preliminary Rulings [1997] 1 CMLR 78.

The Relationship between the Court of Justice and National Courts

Note the change from the original relationship (horizontal and bilateral) to a newrelationship (vertical and multilateral). This has been seen in:

the development of a de facto system of precedent;

The decision by the Court of Justice to refuse to make a ruling in some cases.

Fundamentally the extent to which the success of the system depends upon co-operation between the national courts and the Court of Justice. This crucial co-operation to abide by Union law was recognised by the Court of Justice inSimmenthal 106/77 [1979] EUR 777:

A national court which is called upon, within the limits of its jurisdiction, to applyprovisions of Community Law is under a duty to give full effect to those provisions, ifnecessary refusing of its own motion to apply any conflicting provisions of national

legislation, even if adopted subsequently, and it is not necessary for the court to


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request or await the prior setting aside of such provisions by legislative or otherconstitutional means.

See also Rheinmuhlen(Case 166/73) [1974] EUR 33

Article 177 [now 267 EU] is essential for the preservation of the Unioncharacter of the law established by the Treaty and has the object of ensuringthat in all circumstances this law is the same in all Member States of the Union

Failure to co-operate could lead to a situation in which A body of national case lawnot in accord with the rules of Community Law from [came] into existence in anyMember State. Hoffmann La Roche v. Centraform 17/76

Thus a failure to cooperate could lead to problems of certainty, non-uniformity andthe fundamental principles of a Union approach would be lost.

There are however fundamental concerns regarding the co-operation principle.

Primarily what if a national court refuses to refer a case to the Court ofJustice? Even whilst obliged to do so under paragraph 3 of Art. 267, aNational Court may choose to dismiss the requirement to refer the matter toLuxembourg. In such a situation the Court of Justice cannot force a nationalcourt to refer the matter, equally a party to the case cannot appeal or re-instigate proceedings at the Court of Justice. Remember this is a referenceprocedure not appellate system.

Secondly the case of KoblerC-224/01 [2001] OJ 212/18 in which the ViennaRegional Civil Court sought a preliminary reference as to a Member Statesliability to pay reparations and the jurisdiction of the national court in

determining such matters.

The Court of Justice held in Koblerthat:

1. The principle that Member States were obliged to make reparationsfor the States breaches of Union law applied to reparations stemmingfor decisions by a national court of first instanceSubject to three conditions:

(i) EU law must confer individual rights(ii) The national courts decision must be a manifest breachof

EU law(iii) There must be a direct causal link between the breach and

the damage. (Compare this to the cases of Francovich C-6and 9/90 [1991] EUR I-5357 and Brasserie du Pecheur C-46/93 [1996] I-1029)

2. The jurisdiction of the national court competent to adjudicate onreparation was to be determined by the legal system of that MemberState and not by the Court of Justice.


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Task

What impact is the Kobler decision likely tohave on the relationship between national

courts and the Court of Justice? Support youranswer where possible.

Tasks

In no more than 100 words explain, briefly, the main role(s) of

each of the institutions. Which institution has changed most since

1957?

What do you understand the concepts of supranationalismand

intergovenmentalismto be?

Do either of these concepts support and promote democracy

within the Community?

Where does the balance of power lie when either of these

concepts is used?

Section C: Sources of Union Law (Reading Fairhurst Ch.2)

Primary Sources

The Treaties, including the amending Treaties such as Maastricht, Amsterdam, Nice

and Lisbon are the foundation upon which all of the rest of the legal framework isbuilt. All law must be capable of referring back to these sources to demonstrate legalbasis, so as to avoid allegations that the Union has acted Ultra Vires. Treaties areinternational agreements between Member States which require incorporation intothe host Member States legal system.

Secondary Legislation

When reference is made to law making power in the Union and various types ofdecision-making process and the use of qualified majority voting in the Council weare invariably talking about the making of secondary legislation as detailed below.Secondary legislation has no connection with any aspect of national legal

instruments. Under the principle of attribution of powers, authority is devolved fromthe Treaty to another body i.e. one of the institutions to create European Law. In


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common with States primary legislation often provides only a framework, thenecessary detail is completed by reference to secondary legislation.

Article 288 of the TFEU (Formerly Article 249 EC) states:

To exercise the Union's competences, the institutions shall adopt regulations,directives, decisions, recommendations and opinions.A regulation shall have general application. It shall be binding in its entirety anddirectly applicable in all Member States.A directive shall be binding, as to the result to be achieved, upon each Member Stateto which it is addressed, but shall leave to the national authorities the choice of formand methods.A decision shall be binding in its entirety. A decision which specifies those to whom itis addressed shall be binding only on them.Recommendations and opinions shall have no binding force.

Regulations, Directives and Decisions can therefore be seen as sources of EC law.These are described in Article 288 as "binding". In addition there arerecommendations and opinions which according to Art 288 "shall have no bindingforce" and are not therefore formal sources of EU law.

Types of Secondary Legislation

As will be seen below there are important differences between the various types ofUnion legislation. Additionally the scope and ability to challenge legislation variesdepending on the type of legislation in question

i) Regulations

Regulations apply to all 27 Member States. The whole of the piece of law applies notjust selected parts that an individual Member State wants. Once the regulation hasbeen made at Union level, no further implementation is required at domestic level.This is known as direct applicability. Do not confuse it with direct effect which youwill be considering in later lectures. A date may be specified in the Regulation as towhen it should come into effect or it becomes law 20 days after publication. This hascaused some difficulties.

In the case of International Fruit Company v Commission (Cases 41-44/70)[1971]ECR 411, [1975] 2 CMLR515 the applicant argued that a measure listed as aRegulation was in fact a set of decisions. The Court agreed. Therefore, the type of

secondary legislation is not dictated by the label attached to it, but rather the natureof the measure i.e. what it actually does.

The Regulation lacked general application and was in fact a group of individualdecisions (this then allowed individual challenge of those decisions). The samegrounds for challenge are not available if the measure is actually a Regulation.

Direct applicability and implementation of regulations:

InCase 34/73 Variola [1973] ECR 981, the Italian authorities required clarification asto whether it would be legal to make an extra provision to incorporate a Regulationinto domestic law. The answer was in the negative and three reasons were given:


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Date of commencement (uniformity) it may cause confusion as to when thelaw became effectiveCorrect implementation (uniformity) by doing this, the Union nature of theprovision might be disguisedUnion nature of measure and Article 267 TFEU (preliminary reference)passing domestic provisions might jeopardise Article 267 references. 267 willdiscussed later in Study Plan 4.

Task

Read paragraph 17 of the Judgment of Case 39/72

Commission v Italy (Slaughtered Cows case)[1973]

ECR 101, [1973] CMLR 439 and consider the

reasoning for refusing to allow a Member State to

implement a Regulation into national law.

Is there any justification for disagreeing with this

judgment?

ii) Directives

Directives differ from regulations in a number of crucial aspects. They can be issuedto one/ some/ all Member States and are binding in their entirety. They do not comeinto effect automatically, as each state must implement these in whatever way theysee fit, taking into consideration national factors.

The Member State also cannot amend or expand on the measure once implementedas this will defeat the purpose or aims of the directive. The directive will come intoforce on a specified date, but in the meantime, each state must pass appropriate lawto ensure that they comply with the deadline. Individual citizens may be grantedrights, duties and obligations under directives e.g. right to set breaks during worktime, but problems may occur when a Member State does not implement a directiveat all, or incorrectly

The following cases illustrate the development of the rights which may be afforded by

Directives in certain circumstances.

Fratelli Costanzo SpA v Comune de Milano Case 103/88 [1989] ECR1839Francovich and Bonifaci v Italy case C-6, 9/90 [1991] [1991] ECR I-5357Foster v British Gas plc Case C-188/89 [1990] ECR 1-3313Faccini Dori [1994] ECR I-3325Brasserie du Pcheur Cases 46/93 [1996] ECR 1-1029


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Task

Access the above cases and decide how they have

developed the way in which Directives can be seen

as an effective type of secondary law.

iii) Decisions

These are secondary legislation which are designed for use by one, some or allMember States, and also companies. We will be studying the way in which Decisionsare used in a practical sense when we consider competition policy in Teaching Block2. A Decision is "binding in its entirety upon those to whom it is addressed" Art 288TFEU EC and must be notified to the person to whom they are addressed (Art. 297

TFEU). See the International Fruit Co case as discussed above.

iv) Recommendations and Opinions

These are non-binding statements per Article 288. They are not formally sources oflaw, though are highly persuasive e.g. they may later be referred to in the COURTOF JUSTICE, and therefore any decision based upon any such recommendation oropinion is given higher authority of law. Note that they cannot confer rights for orobligations upon an individual and are therefore not actionable in the way that for e.g.directives are. The Commission may use these where the Treaty provides and alsowhere it considers them to be necessary. National courts must consider such soft lawas it assists with the interpretation and purpose of any specific legislation. E.g.

Grimaldi v Fonds des Maladies Professionelles (Case C-322/88 )[1989] ECR 4407,[1991] 2 CMLR 265.

Judicial Law Making

We will be examining the specific roles of the Court of Justice later in the course, butat this point, it is important to note a few points relating to the Court. Case law maybe seen as a gap filling" approach and that Judges DO make law, but strictlyspeaking their job is to interpret the law only. The Treaties and secondary legislationtherefore form the bare bones of legislation and interpretation adds the flesh to padout these basics. The jurisprudence of the Court is, therefore, an extremely

important source of law.

General principles of law have been developed by the courts, and though many arewidely recognised, there may be some controversy as many are unwritten. The TEUprovides that some of these principles are: liberty, democracy, respect for humanrights and fundamental freedoms, and the rule of law.

Fundamental human rights underpin EU law, this is even more so now since theinclusion of the Charter of Fundamental Rights of the European Union. All lawcreated must be subject to the principles of proportionality, legal certainty, equality/non-discrimination and must follow the necessary procedural rights.


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Section D: Legislative Procedures in the European Union

1. Choice of legislative procedure and legal basis

The choice of legislative procedure is inherently connected with the requirement thatall secondary legislation must be based on a particular Article of the Treaty, in otherwords that the legal basis for the measure must be stated. We will only be dealingwith supranational procedures in this course.

Regulations, directives and decisions adopted jointly by the European Parliamentand the Council, and such acts adopted by the Council or the Commission, shallstate the reasons on which they are based and shall refer to any proposals oropinions which were required to be obtained pursuant to this Treaty.

The requirement to give reasons contained in Article 296 TFEU has been upheld bythe Court of Justice as an extremely important procedural requirement. The rationale

for the requirement can be considered from a variety of perspectives (those affectedby the measure, those passing the legislation, the Court in reviewing the legislation).In certain circumstances the Court can annul legislation for failure to comply with theArticle 296 requirement (Commission v Council case C-45/86 [1987] ECR 1493). Therequirement to give reasons also relates to the issue of subsidiarity. The amount ofdetail required by Article 296 will vary depending on the type of measure beingadopted.

Specific legal basis:

Often the legal basis for a measure in a particular area will be specified in the Treatye.g. Article 113 TFEU which authorises the Council to pass legislation relating to

harmonisation of turnover taxes and excise duties. It specifies that the Council shouldact unanimously after consulting the Parliament and the Economic and SocialCommittee.

General Legal basis:

Alternatively the Treaty might provide for a general power to pass legislation of ageneric kind e.g. Articles 114 and 115 TFEU which provide the legal bases for actionto approximate the laws of Member States in relation to the establishment andfunctioning of the common market and the internal market.

Residual legal basis

The Treaty recognises that in certain circumstances there may not be a legal basisfor a proposed piece of legislation. Article 352 TFEU provides a legal basis in suchcircumstances and states:

If action by the Union should prove necessary, within the framework of the policiesdefined in the Treaties, to attain one of the objectives set out in the Treaties, and theTreaties have not provided the necessary powers, the Council, acting unanimouslyon a proposal from the Commission and after obtaining the consent of the EuropeanParliament, shall adopt the appropriate measures. Where the measures in question

are adopted by the Council in accordance with a special legislative procedure, it


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shall also act unanimously on a proposal from the Commission and after obtainingthe consent of the European Parliament.

You may wish to access the following cases to examine how the use of Article 352,(formerly Art. 308 EC), has been made and contested.

Case 8/73 Hauptzollamt Bremerhavenv Massey-Ferguson[1973] ECR 897Case 45/86 Commission v Council (Tariff Preferences) [1987] ECR 1493Case 242/87 Commission v Council (Erasmus)[1989] ECR 1425"....it follows from the very wording of Article 235 EC (now Art 352 TFEU)that its useas the legal basis for a measure is justified only where no other provisions of thetreaty gives the Union institutions the necessary power in question"Opinion 2/94Case 84/94 UK v Council (Working Time Directive)[1996] ECR I-5755Case C-376/98 Germany v Parliament & Council (Tobacco Sponsorship)[2000] ECR1-8419

2. Implied powers

Whilst a specific legal basis may not be immediately apparent in somecircumstances, it may be implied by other provisions within the Treaty.

3. The Different Legislative Procedures

The significance of choosing the legal basis of a piece of Union legislation is twofold,firstly to satisfy the requirement that all secondary legislation must have a point ofreference back to the primary source (i.e. the Treaties) and secondly the issue of

legislative procedure. The European Union has developed a bewildering array oflegislative procedures, the choice of procedure being specified in the Article of theTreaty which provides the legal basis for the measure.

In many cases there will only be one possible legal basis and therefore only onepossible legislative procedure, in other cases however where there is a possiblechoice of legal basis and different legislative procedures are specified in each Articlethen controversial issues can arise. Invariably these involve issues such as theextent of Parliaments role in the procedure and the use of qualified majority voting inthe Council rather than unanimity. Following the ratification of the Lisbon Treaty, thisis mercifully, somewhat simpler.

Main legislative procedures

(a) Consultation(b) The Ordinary Legislative Procedure(c) The Special Legislative Procedure

a) The Consultation Procedure (or basic procedure)

The original Treaty of Rome did not consider that Parliament was to have a keylegislative role and therefore the most important roles were held by the Commissionand the Council of Ministers with Parliament having the right to be consulted but little


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else. This basic procedure is still used for legislating in some areas. The requirementto consult, although a limited power, has been held by the Court of Justice to be an"essential procedural requirement.

Task

Access the case of Case 138/79 Roquette Freres SA v

Council[1980] ECR 3333. What was the effect of the

failure to consult in this case? Consider the case of

Case 65/93 European Parliament v Council

(Generalised tariff Preferences) [1995] ECR I-643,

[1996] 1 CMLR 4. What effect will a delay in providing

an opinion have?

c) The Ordinary Legislative Procedure

The Maastricht Treaty increased the powers of the Parliament further by providing aprocedure whereby parliamentary consent is required before a measure can bepassed. Again the Treaty, specifically Articles 289(1) and 294 TFEU, specifies theareas where this procedure must be used to pass legislation. Upon the ratification ofthe Lisbon Treaty the Ordinary Legislative Procedure will is used by the EuropeanParliament and the Council in approximately 95% of all new legislation.

b) The Special Legislative Procedure

Introduced by the Single European Act in 1986 in response to increasedParliamentary demands for a greater say in the legislative process, the procedure isnow contained in Article 289(2) of TFEU. Originally known as the co-operationprocedure some commentators argued that the co-operation procedure may havebeen misnamed; as it relies on the threat of forcing the Council to act unanimously inorder to increase the voice of Parliament. Hartley described this as "..a real, thoughsmall, increase in the powers of Parliament". The Treaty specifies those occasionswhen the Article 289(2) procedure must be used. Following the Amsterdam Treatythe occasions when it is used are much rarer.

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