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The EU's litigation - Coggle Diagram
The EU's litigation
Action of annulment - Art 263 TFEU (kumoamiskannemenettely)
The most important direct measure in EU legislation’s court supervision
National courts don’t participate, all happens in EU courts
COMMISSION V COUNCIL "ERTA" 1971: Reviewable acts
You cannot use these against member states, only against EU
These cases usually start in the general court, roughly 400 per year → appeal possible to the ECJ
The EU court assesses the legality of a regulation that the claimant asked to nullify
Conditions:
Must be a reviewable act (reviewable acts: must be legally binding, made in the purpose of affecting in reality and made by EU organ)
Kanneoikeus (you must be able to bring the case on) = right to take legal action: Member states, European Parliament, Council and Commission are always entitled to bring a case on Art 263 (2-3) TFEU + European Court of Auditors (tilintarkastustuomioistuin), ECB and regional committees are entitled to bring a case on to secure their rights
There must me some illegality going on
you have 2 months to bring the case
Member states have found a way to avoid this (Cyprus and ESM, NF v European council: so called Turkey Europe agreement)
Locus standi: Who has the right to take legal action?
There is no automatic right to bring actions if you are just an individual, business or corporation etc. → if this would be possible there would be flooding of cases since EU legislates in areas that are very apparent in e.g. business world
If an act is addressed to you or it causes direct and individual concern to you or it is a regulatory act which is of direct concern to them and does not entail implementing measures
CHERNOBYL 1990: Privileged applicants: In the original treaty European Parliament had no rights here → parliament's right to bring legal action should definitely be recognized → member states agreed, and changes were made
Standing of natural and legal persons Art 263 (4) TFEU
No right to action of annulment automatically
Direct concern: You need some direct concern or link between you and the EU directive etc. you are trying to challenge
The contested measure must directly affect the legal situation of that person
It must leave no discretion to its addressees (usually named in the regulation) who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules
You must be directly addressed
LES VERTS 1986: Measures are directly concerning when the regulation itself forms a complete regulation which doesn’t need any other implementing measures
Individual concern (very strict requirements) --> this is where most cases fail: failure of showing individual concern
PLAUMANN 1963: Mr. Plaumann was an importer of clementines especially to Germany. There was an import duty when bringing clementines to the EU from outside countries (six member states at the time). Germany wanted to bring the import duty down, but the EU prohibited it. Mr. Plaumann challenged this, and the question was; is there individual concern? The EU states: “Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed” → no one is individually concerned because everyone can start importing clementines --> This has been very strongly criticized, but the EU still stands by this. This gives the impression: the more people are affected, the less likely it can be challenged
PIRAIKI-PATRAIKI 1985: Greece’s joining in the EU starts some movement in the cotton market. Commission limits Greek cotton exporter’s right to export cotton → they are unhappy and challenge this → Plaumann case could be applied BUT the EU states that exporters who had already signed contracts before the limitation → this is a closed category of people since no-one can join it anymore, so that’s why these Greek cotton exporters were differentiated from everybody else → individual concern
CARVALHO 2021: Climate litigation → large number of claimants from all around Europe working in agriculture argue that EU’s climate package doesn’t go far enough → the EU states that nobody is individually concerned since climate change affects everyone → claimants argued that this doesn’t make any sense that the more people something affects the less the people can do anything about it → the EU says that even though their argument makes sense, the EU can’t override the Plaumann rule of individual concern
Regulatory act which is of direct concern to them and does not entail implementing measures
This was added in the Lisbon treaty 2008
INUIT 2013:
The EU wanted to prohibit importing of seal-based products in the EU
Regulatory acts are non-legislative action (acts that have not gone through the OP or SLP)
Procedures leading to giving a measure define whether the measure is legislative act (lainsäädäntötoimi) or regulatory act (sääntelytoimi) → in other words, has it gone through a legislative procedure
Regulatory acts are easier to challenge → you only need direct concern and no implementing measures
TELEFÓNICA 2013: You must always challenge the regulation etc. closest to you + Cannot require any implementing measures done upon the claimant (If it does require implementing measures, the claimant has a possibility to take action of annulment against it)
Policy issues
There would be extreme flooding of cases if people who are inconvenienced could always challenge regulations → this is why direct and individual concern are needed --> every decision leads to consequences that are convenient to one and inconvenient to other
There is kind of a double standard: the EU makes it easy to bring legal challenges against the member states quite easy under all circumstances but at the same time has made it hard to challenge EU’s own legal action
Preliminary rulings are another way to challenge regulation’s legitimacy
Grounds of review for EU measures illegality Art 263 (2) TFEU
What do you need to show to actually win the case?
Lack of competence
Infringement of an essential procedural requirement
Infringement of the treaties or of any rule of law relating to their application (e.g. regarding fundamental rights or general principles)
Misuse of powers
If you have a valid argument, it’s still hard to get the court to agree with you → the court likes to intervene usually only when there is unavoidable reason to
You have 2 months to bring the case, after the regulation’s publication or after it’s given to the claimant
The consequences of illegality and invalidity → what happens if you win?
Art. 296 TFEU
Art. 264 TFEU: The act is taken out as if it never existed if the claim is valid → it’s not invalid just to you, it’s completely taken out (if you win you win big 😉) --> The court can mitigate in a case if someone has very strongly relied on an act that is taken out
Invalidity has retroactive effect
Relationship with preliminary rulings - Art. 266 TFEU
EU regulation can be nullified also in preliminary ruling
TWD 1994: If an individual had clear right to take action with action of annulment, and they didn’t do it within the time frame, they are prohibited from taking action through preliminary ruling
If you had the right to bring action with the 263 article and you did not within the time limit, it’s not available to you anymore → doesn’t exist in preliminary rulings but it’s easier to take action right away
Two routes: 263 and 267 TFEU: you should (must) take 263 since it better and easier (2 months’ time limit)
Preliminary rulings - Art 267 TFEU (ennakkoratkaisut)
Huge significance: EU law has practically formed through preliminary rulings
Has formed courts to a unified entirety
Preliminary rulings are the biggest group of cases → huge caseloads for higher courts → some of these could be given to lower national courts?
Majority of EU law cases are solved in national courts where the national judge just applies EU law --> Objective: unified applying of law in member states → common market won’t work if law isn’t the same everywhere
The Lisbon Treaty gave ECJ more power
267 cases are meant for hard cases, which are too hard and complex for the national judge to solve
These cases always start in national courts and the judge decides if the case must be sent to EU courts --> National courts can ask for preliminary ruling; highest courts must ask for preliminary ruling
These cases also come back to national courts after EU courts have given their verdict → after this the national court makes the final judgement
Interpretation of fundamental treaties or union law’s validity and interpretation
If a question considers an arrested person, the ECJ delivers its verdict as soon as possible
Proposed amendment of protocol no 3 on the statute of the court 2022/0906 (COD)
Significance
We need uniformity of EU law → we need to ensure that the EU law is interpreted similarly and that it works similar everywhere in the EU
This was originally born due to common market
System was formed and developed through cases that it covered
Two pillars: primacy and direct effect
Interpretation - Art 267 (1) TFEU
This can be interpretation of any kind of EU law (interpretation of acts of the institutions, bodies, offices or agencies of the Union)
Questions of application CANNOT be asked → application is always in the hands of a national judge (extremely important principle!) → The ECJ gives preliminary ruling only regarding the interpretation
Strength: national governments cannot ignore their own courts, important for national constitutions → judicial independence (tuomioistuinten riippumattomuus)
Makes EU law more efficient
The line between interpretation and application is not clear
Validity - Art 267 (1) TFEU
FOTO-FROST 1987: If national court thinks EU act is invalid it MUST always send it to the ECJ → it cannot determine it invalid by itself
Reasons
What is the purpose of 267 → UNIFORMITY → it wouldn’t be uniform if different member states think some laws are invalid and others don’t → requirement of unified application
Issue of coherence of the system if ECJ makes the call on 263 validity, why not in 267 (same standards in both) → requirement of coherence of the system
ECJ is the best place to solve the question of validity → EU is the organ that made the act
Controversial: 267 doesn’t say that the ECJ has monopoly on validity questions → only that national courts have the right to ask the ECJ --> German court didn’t accept this → German court: we have the power to question the validity
Who has the highest power? Who decides how much power the EU has? Or member states? --> No clear answer: the issue was dormant until Weiss and Gauweiler
National courts can ask the ECJ about the validity of EU law: Is EU law (regulation, directive etc.) valid in the light of EU law (fundamental treaties, fundamental rights)?
Can national courts strike down EU acts or does it have to go to the ECJ
Any court or tribunal of a member state in Art 267 (2) TFEU
Court or tribunal of a member state
ACHMEA 2018: court must be from a member state
Bilateral investment treaties: Issues go to arbitration tribunals (sovittelu tuomioistuin)
ECJ: arbitration tribunals DO NOT qualify for 267
National court can as the ECJ to solve a question
This is a conversation between courts → what is a court?
DORSCH CONSULTt 1997: defines court
Court:
Must be established by law
Must be permanent
Its jurisdiction is compulsory
Its procedure is inter partes (inter parties)
It applies the rule of law
Must be independent (important!)
Court against whose decisions no judicial remedy in Art 267(3) TFEU
LYCKESKOG 2002: Swedish supreme court; Hovrätt (hovioikeus) is not a court of last resort, supreme court is (so hovrätt is not obligated to send to a preliminary ruling art 267)
The supreme court must send a case to the ECJ when it considers taking the case or when it has already taken it
What is a court of last resort? → the highest judicial organ
In most countries you cannot go directly to the supreme court (you can appeal but no guarantee)
E.g. in Finland and Sweden, the supreme court decides which cases it can judge
Precedent
Are the ECJ’s prior preliminary rulings binding? → Yes
DA COSTA 1963: Same facts as Van Gend --> Do we need to ask again? --> the ECJ: no, read the old judgement
Same facts as van Gend
Do we need to ask again?
ECJ: No, you don’t - read the old judgment!!
A system of precedent: National judges must now take into consideration all (prior) judgements from the ECJ → they have authority, they can be relied on
KÖBLER 2003: You can’t just treat ECJ case law as authoritative, you MUST do so --> If a member state’s court fails to take prior preliminary rulings into consideration, it’s a breach of EU law → state liability (If you ignore case law → damages sanctions)
Creates a hierarchy: the ECJ is superior to national courts --> Binding to all national courts, not just for the one who asked the question
If a prior preliminary ruling exists, national court can still send the case to ECJ in hopes of changing the ruling and case law
Acte clair (tulkinnan yksiselitteisyys)
If we think the issue is “clear”, do we need to send obvious questions? Answer: No, but it must be REALLY clear to everyone
CILFIT 1982: The ECJ: if the answer is so obvious, no reasonable doubt, you don’t have to send even if there is no prior preliminary ruling regarding it, BUT it must be with no doubt equally clear to everyone (member states’ courts and ECJ)
What you must keep in mind about the equal clarity:
EU law has its own methods of interpretation (A statute must be tied to its context, EU law as a whole, its objectives and stage of development must be taken into consideration in the interpretation)
Terms used on EU law might be different than those used in national law
You must compare all language versions of the EU law (all equally valid)
The criteria is strict: especially regarding the language
ECJ managing the delicate balance between the ECJ and the national highest courts --> Gives highest courts some leeway → you can decide on your own, but keep EU law’s nature in mind
Easy cases get decided quickly
Deciding things in national courts is faster and cheaper
Disadvantage: National courts get a tool of manipulation → e.g. if the highest court thinks the ECJ would give an unwanted answer, we probably shouldn’t ask at all
The ECJ can only give a ruling when it’s asked → it cannot force national courts to send cases
CILFIT conditions are hard (especially language condition)
CONSORZIO 2021: You must also explain your reasons (bad for Finland)
By and large, the 267 works pretty well, it’s not a constant battlefield
Admissibility (tutkittavaksi ottaminen)
What if the sent question is stupid? → must the ECJ answer? Can it filter?
Originally the ECJ answered everything
FOGLIA V NOVELLO 1980:F and N created a “fake dispute” → they wanted to challenge a French tax and they wanted the ECJ to judge this --> ECJ: This is not a real dispute? What is its purpose? To help genuine disputes? → the ECJ refuses to take this case; it has no power → only real disputes
A big change: ECJ controls what gets asked, not national courts + ECJ gets control over its jurisdiction
MEILICKE 1992: Someone creates hypothetical academic questions --> ECJ: we only take concrete and real cases
TELEMARSICABRUZZO 1993: If the national court fails to ask the question well (good enough context: laws and facts related to the case) then the ECJ won’t answer → it needs enough context so that the ECJ has power
WIGHTMAN 2018: Question is hypothetical
ECJ: we will answer this → the ECJ can loosen its conditions if it finds the question important enough
The ECJ controls its own area of power (Different from national highest courts)
The ECJ still tries to answer most questions
Function of preliminary rulings
GAUWEILER 2015: German constitutional court sends a question and also proposes an answer – this is allowed HOWEVER → Germans say that if ECJ goes against their proposal, they won’t be bound by the ECJ’s answer
This shakes the system 267 TFEU, the whole purpose of which is to give binding rulings
Many member states say that ECJ shouldn’t answer (goes against 267)
AG Cruz Villalón: Germans were rude, but we shouldn’t also be rude → answer in good faith → the ECJ answers without mentioning the weird background → answer different from Germans’ proposals
The ECJ just has to believe that national courts are accepting and commit to the rulings
Goes back to Germans → Germans say: we don’t like ECJ’s methods, but we will follow your ruling
WEISS 2018: ECJ gives answer --> Germans → this time we don’t listen to ECJ because the answer is arbitrary and incomprehensible --> No practical consequences but a big blow to 267 and its credibility
Why always Germany?
Constitution created after the war → aim of a strong constitution
Constitutional court is more open to cases → makes more policy than most others
Also, a pain in German government’s ass <3