European Union
Q&A European Union Law
European Union Lawcards 2012 - 2013Resources
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Questions & Answers
Bonus Question
If the system of preliminary rulings is based on partnership, should the CJEU ever refuse a request by a national court for such a ruling?
Answer plan
This essay question is looking for a well planned essay that develops the following
points:
- purpose of Art 234;
- the Foglia cases;
- guidance provided by the CJEU;
- changing relationship with the national courts.
Answer
The objective of the preliminary ruling procedure is to provide uniformity across the whole Community, so that Community law is applied in the same way in all Member States. Under Art 234, the Court of Justice is under a duty to supply all courts in the Community with the information on interpretation of Community law that is necessary to enable them to settle genuine disputes that are brought before them (Foglia v Novello (No 1) (1980)). Under Art 225(3) of the Nice Treaty, the Court of First Instance has gained jurisdiction to hear requests for a preliminary ruling. Before the Nice amendment, only the European Court of Justice had jurisdiction under Art 234. However, despite this change, the relationship between the national courts and the European Union courts is, in theory, one of partnership in respect of Art 234. There is no hierarchy but a commitment to provide a definitive answer to questions from national courts where the latter need information in order to arrive at the appropriate application of EU law.
The procedure is available to any court or tribunal of any Member State. What constitutes such a court has been given a wide interpretation by the CJEU. It is not necessary that the body is recognised as a court by national law, neither must it be called a court. For the CJEU, the important question is whether the body concerned is performing a judicial function. The characteristic of such a function is the power to give binding determinations of the legal rights and obligations of individuals. The CJEU has used the mechanism of preliminary rulings to develop fundamental principles of Community law, such as supremacy and direct effect. However, Art 234 has also been used to facilitate a dialogue between the national courts and the CJEU on issues where national law and Community law seem to be in conflict.
The preliminary ruling procedure recognised the different functions of the national courts and the Community Court. It envisaged this relationship to be of equals as both were seen to be on a horizontal base. If the national court chose to ask a question it entered into a bilateral dialogue with the CJEU. The answers from the CJEU were sent back to that court, even though the answers were public and, therefore, available to everyone. The courts had different functions but a shared objective of applying the law. This is explicit in Art 220 EC but is mirrored in the national courts. Even though many now describe the relationship as more vertical as the importance of both Community law and the CJEU has increased, the Community Court still relies upon national courts to enforce Community law.
There has also been the wider recognition of the acte clair concept, so that even those national courts who were thought to be obliged to make a reference (Art 234(3)) need no longer do so (CILFIT). Although Advocate General Caporti proposed in that case that the concept should not be adopted, the Court rejected that opinion. However, some commentators have suggested that they indicated restrictions or considerations so as to limit its use. The fact remains that CILFIT led to a much more relaxed, yet responsible, approach by those national courts. There are some commentators who say that the development was just pragmatic; there were too many requests for a preliminary ruling. This may have been a factor but the development complemented the increasing role of the national courts in enforcing Community rights with the principle of direct effect or applying Community rules on competition.
In Foglia (No 2) the CJEU made clear that it would be the ultimate decider of the scope of its own jurisdiction. If necessary it would have to examine the circumstances of the reference in order to determine whether the court’s jurisdiction had been properly invoked, but it would not answer hypothetical questions. In the Foglia v Novello cases in 1980 and 1982, the Court held that the reference was an abuse of Art 234, as the case had been artificially constructed as a vehicle for obtaining clarification of Community law. There was, in the opinion of the Court, an absence of any real legal dispute between the parties. In the recent case of Unibet (London) Ltd v Justitiekanstern [2008] the Belgian government submitted that the reference was inadmissible on the principle in Foglia v Novello. However, both the Advocate General and the Court rejected that argument, as there was a genuine dispute requiring resolution involving Swedish Law on Lotteries.
In Foglia v Novello, a French resident, had ordered some wine from Foglia, an Italian wine grower. The contract provided that Novello would not be liable for any French or Italian taxes that were contrary to the free movement of goods between the two countries. When a charge was subsequently levied by French customs, Novello claimed it was unlawful under Art 90 (formerly Art 95 EC). The CJEU said that both parties agreed that the French law was incompatible with Community law and the legal action had been a device to obtain a ruling that the French legislation was invalid. The Court went on to say that such arrangements obliging such rulings would jeopardise the system of legal remedies available to protect private individuals against tax provisions that were contrary to the Treaty. A subsequent second reference by the Italian judge was an attempt to clarify the role of Art 234 and the relationship between the national courts and the CJEU.
However, the CJEU adhered to its earlier decision not to answer the question arising from the customs duty levied by the French law. It held that the Art 234 procedure was not to be used to give abstract advisory opinions, but to contribute to the actual decisions of the cases. The CJEU believes that, like any court, it must be in a position to make an assessment to ensure that it has jurisdiction to hear the case. Normally the Court will rely on the assessment made by national courts, but in exceptional cases it reserves the right to make its own (Dias (1992)). The original division of the functions between national courts and the CJEU may have been separate, but it was equal – with the former deciding whether to refer, while the latter gives the ruling on the questions placed before it. Foglia represented a reshaping of that conception as the CJEU would now assert some control over the suitability of the reference. The CJEU refrained from reviewing the relevance even in cases like Rewe-Zentrale v Hauptzollamt Emmerich (1971) where the national court making the reference admitted that the questions raised were not relevant to the litigation. The questions were answered by the CJEU because the litigation was a test case for similar forthcoming cases. There have been a number of cases where the CJEU has made use of the Foglia principle, such as with the hypothetical nature of the questions. However, a practical problem is the fine line between hypothetical cases and test cases. In Bacardi-Martini v Newcastle United FC (2003) the CJEU refused to deal with a reference because a court in one Member State was asking about the compatibility of another Member States law with EU law.
A second reason why the CJEU may not wish to give a ruling is that the questions raised are not relevant, as in the Meilicke case (1992). The third category where the CJEU may refuse a reference is where the questions are not articulated clearly enough for the Court to give any meaningful legal response, as in AGS Assedic Pas-de-Calais v Dumon & Froment (1995). Although the CJEU may tease out the real question the national court is asking, in this case they thought that it would be wrong to alter the substance of the questions asked. A fourth category is where the facts are insufficiently clear for the Court to be able to apply the relevant legal rules. In the Telemarsicabruzzo case (1993) the Italian court referred two questions to the CJEU concerning the compatibility of national provisions on the distribution of TV frequencies with EC competition law. The national court provided almost nothing by way of explanation for these questions and, therefore, the Court decided that there was no need to answer the questions.
The Court has now incorporated the results of its case law in its Guidance on References by National Courts of Preliminary Rulings, published first in 1996 and now brought up-to-date in 2005/C 143/01, and has recognised that there are limitations to its power to decline to take a reference. In ICI v Calmer (1996) the CJEU stated that ‘A request for a preliminary ruling from a national court may be rejected only if it is manifest that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the facts or the subject matter of the main proceedings’. However, even within this context the CJEU has begun to exercise more positive control over its own jurisdiction in the manner redolent of most superior courts.
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The Good, the Fair and the Ugly
Good essays are the gateway to top marks. The Good, The Fair, and The Ugly shows you the style of essay which works well in exams, as well as the simple errors that can cost you essential marks. Written by our Q&A authors, each of these interactive essay-based tutorials highlights key themes and common errors and illustrates essays of specific standards:
Whilst marking criteria will vary, as a general guide, the Good answer will be based on a general mark of a first or upper second class; the Fair answer will be based on a lower second or third class and the Ugly answer would result in a fail.
The Good
Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.
Podcast: the Good The status of European Union (EU) law within the legal systems of its Member States is of fundamental importance. Firstly, it is necessary to be clear which source of law will take precedence should there be conflict between EU and national law while, secondly, it is important to understand who may gain rightsand obligationsunder EU law, including how such EU rights and obligations may be enforced. Rather surprisingly, the founding Treaties did not address these questions directly and the original Member States assumed that Community law (now Union law) would have the same domestic impact as international law. The Court of Justice of the European Union (ECJ) took a different approach, however, developing two fundamental principles, which have become known as the ‘Twin Pillars upon which the Community rests’; namely those of supremacy and direct effect. (1) The introductory paragraph puts the question into context by explaining why it is so important that the 'European Union has clarified and developed the status of its laws', as well as how. By introducing the main concepts through which this has been achieved, namely supremacy and direct effect, the student has demonstrated that they have correctly analysed the requirements of the question and are aware of the main issues for discussion.
While the ECJ did not address the issue of supremacy directly in Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (Van Gend, it explained, importantly, that Community law constituted a ‘new legal order ... for the benefit of which the States have limited their sovereign rights, albeit within limited fields’. This judgement resulted in recognition that EU law should be applied over any inconsistent national rule and it is clear from the Court’s dicta that to allow national law to be applied in preference to EU law would have severely undermined the ability of the EU to achieve its aims. Thus, the doctrine of the supremacy (or primacy) of Community law was established.
The precise implications of the doctrine of supremacy were addressed in Case 6/64, Costa v ENEL, where the Court confirmed that EU law must take precedence even where national law had been enacted subsequent to EU law. Drawing heavily on the spirit and aims of the (then European Economic Community or EEC) Treaty, the Court pointed out that the uniformity and effectiveness of Union law would be jeopardised should national law be allowed to take precedence. The Court referred directly to the text of the EEC Treaty to support its judgement, arguing that Art 189 EEC (now Art 288 Treaty of the Functioning of the EU or TFEU), which provides for the direct applicability of regulations, would be meaningless if Member States could negate their effect by enacting subsequent, conflicting legislation. (2) The second and third paragraphs demonstrate the student's knowledge and understanding of one of the issues central to answering the question – that of supremacy. Discussion is well supported by appropriate use of legal authority.
In later cases the ECJ developed this principle further by providing, in Case 11/70, Internationale Handelsgesellschaft, that EU law is supreme over all forms and sources of national law. In addition, in Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal, the Court provided that where conflict arises between national and European law, the national rule must be immediately set aside by the domestic court, whatever its status within the state’s court hierarchy. (3) This paragraph demonstrates that the student has more that just an outline knowledge of the doctrine of supremacy by clearly showing understanding of how the principle has been developed and expanded through further ECJ judgements.
In addition to touching upon the issue of supremacy, the ECJ further developed the EU legal order in its Van Gend judgement, which is widely acknowledged as being one of the most important, if not the most important, decision in the European Union's development. Van Gendhad imported goods from Germany into the Netherlands and was required by Dutch law to pay customs duty. Van Gend challenged the legality of the duty, claiming that it was an infringement of Art 12 EEC (now Art 30 TFEU). The Dutch tribunal made a reference to the ECJ, under the preliminary reference procedure (now set out in Art 267 TFEU), in order to clarify whether the Treaty Article could be applied directly by the national court.
In order to arrive at its decision in Van Gend, the Court relied not only on the wording of the Treaty, but also on the spirit and aims of the EU, declaring that it constituted a new legal order which conferred both rights and obligations on individuals, as well as on Member States. The Court further concluded that national courts must protect such rights. In other words, the ECJ provided that EU law has direct effect, meaning that it is capable of placing rights and obligations on individuals as well as states and that such rights and obligations are enforceable by national courts. Not all EU law is, however, capable of direct effect and it is now clear that any provision must first fulfil certain criteria, which have become known as the Van Gend or Reyners criteria (from Case 2/74, Rayners v Belgian State). The criteria provide that, in order to have direct effect, EU law must be (i) sufficiently clear and precise, (ii) unconditional (iii) not subject to any further implementing measures. (4) Paragraphs five and six move on to demonstrate the student's knowledge and understanding of the second issue central to answering the question – that of direct effect. The appropriate use of legal authority continues to give the essay weight and provides the reader with confidence in the discussion provided by the student.
While the Van Gend case provided authority that obligations contained in Treaty articles can be enforced against Member States, in later cases the ECJ has been required to consider, firstly, whether EU law can also be enforced against individuals and, secondly, whether sources of EU law other than the Treaty articles may be capable of direct effect. The first of these questions was considered in Case 43/75, Defrenne v Sabena, in which the Court provided that rights and obligations contained in Treaty articles may be enforced not only against Member States and public bodies (known as vertical direct effect) and but also against individuals and private bodies (known as horizontal direct effect). Further, in Case 9/70, Franz Grad, the Court provided that regulations could be directly effective provided they fulfil the Van Gend criteria. As with Treaty articles, regulations may be enforceable both vertically and horizontally. The issue of whether directives can have direct effect has, however, been far more controversial.
Art 288 TFEU provides that directives require implementation into national law by a state’s legislative body before taking effect. The Court has, however, held that where there has been a failure to properly implement a directive into national law by a Member State, the directive may give rise to direct effect (Franz Grad and Case 41/74,Van Duyn) providing the date for final implementation of the directive has past (Case 148/78, Pubblico Ministero v Ratti). The ECJ held that this was necessary in order to ensure the effectiveness of directives and also to stop states from relying on their own ‘wrongdoing’, should they fail to incorporate a directive into domestic law. The Court further explained that directives could, however, only be enforced vertically and not horizontally (Case 152/84, Marshall).
This last requirement had the unfortunate effect of discriminating between individuals who wish to enforce their EU law rights against a state, as compared to those wishing to pursue the same rights against an individual. The Court has attempted to mitigate such discriminatory effects in a number of ways, firstly by providing a wide interpretation of ‘state’. In Case C-188/89, Foster v British Gas, guidance was provided on what bodies may come within the meaning of ‘state emanation’, that is, organisations or bodies that have been made responsible for providing a public service, and/or are subject to the authority or control of the State, and/or have special powers beyond those that result from the normal rules applicable to relations between individuals. (5) Paragraphs seven to nine demonstrate that the student is aware of the development of the principle of direct effect by the Court in response to questions put before it by the national courts. Thoughtful structure allows the reader to be lead logically and progressively through the issues. Again, argument is well supported by appropriate authority. Reference back to the question is also helpful.
The limitation on the horizontal direct effect of directives without doubt lessened their effectiveness and, in an attempt at remedying this, the Court developed further principles, which have clarified and developed the status of EU law, including that of ‘indirect effect’. In Case 14/83, Von Colson, the Court reminded Member States of their duty, originally provided under Art 10 of the EC Treaty (TEC) to ‘take all appropriate measures … to ensure the fulfilment of the obligations arising out of this Treaty’, and to ‘facilitate the achievement of the Community’s task’, and explained that this places an obligation on national courts to interpret and apply national law in a manner that is consistent with the wording and purpose of directives. It is, however, clear that there are limits on the application of indirect effect and the ECJ has confirmed that national courts need only interpret national law to conform with directives ‘in so far as it is possible’’ (Case 80/86, Kolpinghuis Nijmegen).
A further means of circumnavigating the restrictions placed on the enforceability of directives is provided through ‘incidental effect’, as set out in Case C-194/94 CIA Security International SA v. Signalson SA and Securitel Sprl. This principle provides that, where an individual attempts to invoke a directive against another individual in order to demonstrate the illegality of national legislation, the directive should be applied even where this has impact on the third party, providing that no legal obligations are imposed directly on the individual as a result. Once more, the Court cited the enhanced effectiveness of directives as its aim in allowing what would appear to be direct effect ‘through the back door’. Due to its limitations, it should be noted, however, that the ‘incidental effect’ of directives has arisen only in very limited circumstances.
In view of the limitations placed on the direct effect of directives, and despite the possibility of enforcing rights under the principles of indirect and incidental effect, a number of barriers may still exist with regard to the enforcement of rights emanating from a directive: there may, for example, be no national law to interpret or interpretation may simply not be possible due to the wording of the national legislation being very precise. In Cases C-6 and 9/90, Francovich and Bonifaci v Italy, the ECJ held that, should a Member State fail to incorporate a directive into national law, an individual who suffers damage as a consequence may claim compensation from that state. In Francovich the Court’s decision related to a Member State’s failure to fulfil its obligations in relation to directives but in Cases C-46 & 48/93, Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport ex p Factortame Ltd, the Court further confirmed that damages could also be available in situations where a Member State had failed to fulfil obligations derived from other sources of Union law. The Court has made it clear that certain criteria must be fulfilled before such damages will be available, namely (i) the rule must confer rights on individuals (ii) the breach must be sufficiently serious, (iii) there must be a direct causal link between the breach and the damage caused. In addition, it would now appear that such actions have been extended to include those against private bodies, where no national remedy is available for the breach (Case C-453-/99, Courage Ltd v Crehan). (6) Paragraphs ten to twelve further demonstrate the writer's broad understanding and perspective by considering how the ECJ have responded to further problems associated with the impact of EU law by developing additional means though which EU rights and obligations can be enforced.
Membership of the European Union has resulted in states having an additional source of law – that of EU law. As Treaties have been less than explicit as to the status of European law on the legal systems of its Member States, it has been left to the ECJ to clarify and develop principles such as supremacy and direct effect. The impact of these principles on the EU’s legal system has been profound, elevating its relevance and ensuring its uniform effectiveness throughout the Union. (7) The final paragraph demonstrates the writer's skill of synthesis. It brings together the various threads found in the main body of the answer and attempts to use the facts and arguments provided to answer, briefly, the specific question set. As is appropriate in a conclusion, it doesn't attempt to introduce any new information. (8) This essay demonstrates the requirements of an 'excellent' piece of work. It shows that the writer has correctly analysed the specific requirements of the question set, thought about the topic, understood the issues and has a sophisticated grasp of the law and its implications. It is coherent and well written and has a clear structure, namely an introduction, discussion including an attempt at evaluation and, finally, a conclusion. It contains an accurate account of the law and is supported by accurate and appropriate use of statute and case-law to illuminate discussion. It also shows evidence of wider reading and intelligent use of resources.
Bibliography
A bibliography, appropriately structured and referenced, should be provided.
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The Fair
Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.
Podcast: the Fair In order to make the impact of EU law clearer, the Court of Justice (ECJ) has developed two important principles which have become known as the ‘Twin Pillars upon which the Community rests’. These principles are known as supremacy and direct effect.(1) Unlike the 'excellent' essay, the introductory paragraph fails to attempt to put the question into context by explaining why it is so important to be clear about the status of EU law on the legal systems of its Member States. It does, however, introduce the principles of supremacy and direct effect, albeit briefly, thereby demonstrating that the central principles necessary to answering the question have been analysed.
In regard to the supremacy of EU law, in Case 26/62, Van Gend en Loos (Van Gend), Mr Van Gendhad imported a quantity of chemicals from Germany into the Netherlands and was required, by Dutch law, to pay customs duty to the Dutch authorities. The importers were unhappy about paying this customs duty and claimed that it went against Art 12 EC, which provided that customs duties levied on goods moving between Member States were prohibited. The Dutch tribunal sent the question to the ECJ under the preliminary reference procedure and the Court explained that Community (now Union) law was a ‘new legal order of international law’.
In Case 6/64, Costa v ENEL the ECJ went further. Italy had nationalized its electric industries and a lawyer named Mr Costa, who owned shares in one of the electricity companies which had been nationalised, claimed that the way in which the company had been nationalised was against EU law and protested by refusing to pay his electric bill. An Italian court referred the case to the European Court of Justice in order to clarify the question and the European Court of Justice explained that EU law must take precedence over national law, even where the national law had been enacted after the conflicting EU law. This ruled out the possibility of later national law taking precedence over European law under the concept of ‘implied repeal’ (i.e., a process recognised under UK law whereby later law will always be presumed to have automatically repealed any conflicting earlier enacted law). (2) The second and third paragraphs demonstrate the student's knowledge and understanding of the doctrine of supremacy. The information provided is, however, far more descriptive than that provided in the 'excellent' essay, relying a little too heavily on the relatively irrelevant facts of the cases, rather than providing evaluative discussion of principle and its development by the Court of Justice.
With regard to the principle of direct effect, the ECJ stated the principle in the case of Van Gend en Loos. As explained above, Mr Van Gendhad imported goods from Germany into the Netherlands and was required by Dutch law to pay customs duty. In order to arrive at its decision in Van Gend, the Court looked at the wording of the EEC Treaty and also considered what the EEC had set out to do. It came to the conclusion that EU law ‘conferred both rights and obligations on individuals, as well as on Member States’. The European Court also said that national courts could decide cases that were based on European law. In other words, the ECJ provided that EU law has direct effect, meaning that it gives rights and obligations to individuals as well as states and that such rights and obligations should be enforced in the national courts of the Member States. However, it also stated that EU law will only have direct effect if it can comply with certain criteria known as the Van Gend criteria. The criteria are that EU law must be (i) sufficiently clear and precise, (ii) unconditional (iii) not subject to any further implementing measures. (3) The fourth paragraph demonstrates the student's knowledge and understanding of the doctrine of direct effect, but again is far more descriptive than that provided in the 'excellent' essay.
However, things were not as straightforward as they may seem. In Case 43/75, Defrenne v Sabena, a stewardess named Gabrielle Defrenne worked for an airline called Sabena. The airline paid her less than the male stewards who did the same work as she did. Ms Defrenne complained that this was against EU law, in particular, the rule that says that men and women must get equal pay for equal work. In Van Gend the law contained in the EC Treaty had been enforced against the Dutch state but as Sabena was not part of the State but a private company, this meant that the ECJ had to consider whether EU law could also be enforced against a private party. The ECJ said that EU law could be enforced against both a Member State, which is called vertical direct effect, and also against a private party, which is called horizontal direct effect.
Next the ECJ had to decide whether only Treaties have direct effect or whether other sources of European law, such as regulations and directives, could also have direct effect. In Case 9/70, Franz Grad, the Court provided that regulations could have direct effect provided that they are able to fulfil the Van Gend criteria. The Court also said that regulations can be enforced both against the Member States, that is, vertical direct effect, and against private individuals, that is, horizontal direct effect.
The issue of whether directives can have direct effect is far more complicated. This is because directives need to be implemented into national law by a state’s legislative body before taking effect and so should not need direct effect. However, sometimes Member States forget to implement directives or implement them incorrectly into national law, and the question then is whether or not the directive can be used to give rights and obligations. In Franz Grad and Van Duyn the ECJ said that directives may, indeed, give rise to direct effect. Again the Van Gend criteria have to be satisfied - but there is an extra criterion to be satisfied before a directive can be enforced under direct effect, that is the date on which the directive was meant to have taken effect must have past. This rule was set out by the ECJ in Case 148/78, Pubblico Ministero v Ratti.
This was not the final issue that the ECJ had to settle. In Case 152/84, Marshall the ECJ were asked to consider whether a directive could be enforced against a private individual. In the Marshall case, Miss Marshall wished to enforce rights emanating from the Equal Treatment Directive (Council Directive (76/207/EEC)) against her employer, Southampton and South West Hampshire Area Health Authority. She attempted to do this in the national court or the employment tribunal. The employment tribunal again made a preliminary reference to the ECJ asking whether she could rely on the directive. The Court replied that she could do so, as her employers were a state body (vertical direct effect). They explained that if she had been employed by a private body, she would not have been able to enforce her rights.
This last requirement had the unfortunate effect of discriminating between individuals who wish to enforce rights against a state, as compared to those wishing to pursue the same rights against an individual. The Court attempted to mitigate such discriminatory effects by providing a wide interpretation of ‘state’ and in Case C-188/89, Foster v British Gas, and provided guidance by explaining that a directive may be relied upon against ‘state emanations’, that is, organisations or bodies that have been made responsible for providing a public service, and/or are subject to the authority or control of the State, and/or have special powers beyond those which result from the normal rules applicable to relations between individuals. (4) Paragraphs five and nine are pleasing in that they clearly show understanding of how the principle of direct effect has been developed and expanded through further judgements of the ECJ. The use of legal authority gives the essay weight and provides the reader with confidence in the discussion given by the writer.
Because directives can only be enforced against a Member State, this means that sometimes directives are unenforceable. In Case 14/83, Von Colson, the European Court of Justice tried to put this right by developing another principle. This principle is known as indirect effect and provides that a national court is under an obligation to interpret national law in line with the directive in an attempt to give the directive effect through the national law.
In Cases C-6 and 9/90, Francovich and Bonifaci v Italy, the Italian government had failed to properly implement a directive. The directive required the Italian government to set up a fund to compensate workers in the event of the insolvency of their employers. The Italian government failed to do this and when Mr Francovich’s employers became insolvent, he was unable to recover the wages due to him. The ECJ held that the Italian government had not complied with its EC obligations, and was liable to pay damages to Mr Francovich because of this. Consequently, it is now held that should a Member State fail to incorporate a directive into national law, an individual who suffers damage as a result may claim compensation from that state. In Case C-46 & 48/93, Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport ex p Factortame Ltd, the Court went further providing that damages may also be available in situations where a Member State had failed to fulfil obligations derived from other sources of Union law, although certain criteria must be fulfilled before damages will be available, namely (i) the rule must confer rights on individuals, (ii) the breach must be sufficiently serious, and (iii) there must be a direct causal link between the breach and the damage caused. (5) Paragraphs ten to twelve demonstrate that the student is aware that the ECJ has developed further principles that remedy some of the 'gaps' found in direct effect.
The EU Treaty gives relatively little guidance as to the relationship between national and Union law. Fortunately the Court of Justice was prepared both to explain that European Union law is supreme and has direct effect and also to develop the principles of indirect effect and state damages. (6) The final paragraph makes a reasonable attempt at bringing together the various threads found in the main body of the answer although it is not quite as focused towards the specific question set as the 'excellent' essay. As is appropriate in a conclusion, it doesn't attempt to introduce any new information. (7) This essay demonstrates the requirements of a competent piece of work. It shows that the writer has thought about the topic, has understood the issues and has a sound grasp of those most relevant to the question set. It is generally coherent and well written, with an appropriate structure, namely an introduction, discussion of relevant principles and conclusion. It contains an accurate account of the law and is supported by legislation and case-law. Overall, it is less sophisticated than the 'excellent' essay in that it has less supporting authority, uses less formal language and provides unnecessary description to the detriment of evaluative discussion.
Bibliography
A bibliography, appropriately structured and referenced should be provided.
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The Ugly
Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.
Podcast: the Ugly The EC is made up of over twenty states who have joined together to ensure that France and Germany never go to war again. In order to do this the community works together to make coal and steel and has a free market so that goods can be made and sold all over Europe. The United Kingdom joined through the Single European Act and now has to follow all European laws. There are many sources of European law, namely legislation and case-law. Legislation is made by the Commissions but case-law is made by the European Court. (1) While this paragraph attempts to provide an introduction by considering the composition of the EU and why the Community was originally created, and also by explaining that there are various sources of EU law, discussion is at best vague. It also contains inaccuracies, such as the comment that the UK joined by means of the Single European Act. Out-of-date terminology is used, with references to the EC rather than European Union, for example.
Legislation is the treaties, regulations and directives. When these laws are made by the institutions they have to be followed by everyone. The most important treaty is the treat of Lisbon. This treaty has to be followed by all the member states including Britain. The treaty of Lisbon says that goods cannot be stopped from moving from country to country around Europe and neither can people. When Europe first started there were very few member states who were members. No ther are lots and there are more that want to join Europe. (2) This paragraph demonstrates some recognition of the need to discuss EU law in an attempt at answering the question. However, the student's grasp of the impact of EU law is again vague and at times the discussion is misleading. There is no recognition of the differing impacts of the various forms of EU law, while some of the comments made are irrelevant to the question, for example, the comment relating to states wanting to join the EU. In addition, poor punctuation and spelling suggest that the student has not approached the task with sufficient seriousness or commitment and would not appear to have carried out a 'spell check' or proof read of his/her work.
There are other treaties which are law in the EC. These are the EC Treaty, the Maastricht treaty and the Amsterdam treaty. All these treaties tell the member states what to do and Europe is run by the institutions. The institutions are the Parliament, the Court, the Council and the Commission. Europe is not democratic and that is why everyone has to follow the laws made by the institutions. The European Parliament is the most democratic body as it is made up of MPs. The other institutions have to comply with the rules made by the parliament and the parliament can take them to court if they do not. Parliament also makes the budget for Europe and tells everyone how to spend their money. Then there are regulations. If anyone, even a member state or institution breaks a regulation they will be prosecuted by the European court of justice, which is in Brussels. Regulations are not European laws but the law in the member states. Directives are different and because of this you may not have to follow them. But if you are part of the state you will have to follow them. This is called emanation of the state and was decided in Foster. (3) This paragraph touches on relevant issues but once again contains far too many misunderstandings and/or inaccuracies. It also demonstrates, by moving from issue to issue in a rather random manner, that little thought has been given to the provision of any logical structure to the essay.
If you break European law this will be decided by the European court. The House of Lords can send you to the European Court. If you do not like a decision of the House of lords or one of the other courts you can complain to the European court. This is called an appeal to the European court of justice. The house of Lords and the other courts have to follow what the European court says, otherwise they will be breaking their promise to Europe.
People who live in Europe are called Citizens. They are allowed to live anywhere in Europe and if a country tries to stop them they can appeal to the European Court of Justice. In Van Duyn a citizen was told that she could not come and live in the UK. She complained to the court and was told that she could. The Uk then had to let her come and work in Britain. This case shows how law is made by the European court of justice and that everyone, even countries and people have got follow this law. This is called free movement and is an important part of the European Union laws. (4) These paragraphs are particularly disappointing, as they clearly demonstrate a lack of understanding of the impact of EU law or the way in which it may be enforced by the courts. On the positive side, some attempt at providing supporting legal authority is made, although no effort has been made to provide a full citation.
The development of law of the European Community has been largely moulded by the European Court of Justice (ECJ). In the landmark case of Van Gend en Loos in 1963, the ECJ ruled that the European Community, through the will of Member States expressed in the Treaty of Rome, constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights albeit within limited fields.(5) This paragraph is most worrying. While it appears to address relevant issues, it actually constitutes an assessment offence, as it has been taken directly from the 'Wikipedia' website with no attempt made at referencing the source. (It should also be noted that Wikipedia should not be used for academic work.)
It can be seen from everyone having to follow the law on the common market and the law on citizens moving around Europe that the law of Europe is supreme to the law of the UK and its member states. (6) This paragraph contains some attempt at providing a conclusion and the relevant issue of supremacy of EU is at least mentioned. However, it is a case of too little, too late to rescue this particularly poor account.
Bibliography
No bibliography provided (7) No bibliography is provided. Inclusion of a bibliography is essential when completing an academic essay and should contain a list of resources referred to in the account. The absence of a bibliography suggests that the account has been written with no apparent use of relevant literature. (8) Overall this account fails to provide sufficient evidence of understanding of issues relevant to the question set. It contains unequivocal evidence that the student's knowledge is inadequate.
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Chapter 1: The establishment of the European Communities and European Union
- Union and sources of law
- Explain why the European Communities were established and how the European Union has developed
- Explain the key features of the Treaties establishing the European Communities and the European Union and the content of the amending Treaties
- Outline the main features of the Treaty of Lisbon (yet to be ratified)
- Identify and discuss the four main sources of Community law
- Discuss the requirements which new Community Legislation must satisfy in order to be legally valid
Chapter 2: The relationship between EC law and national law
- Distinguish between direct applicability and direct effect
- Understand when a Treaty article, regulation and decision have direct effect
- Distinguish between vertical and horizontal direct effect
- Recognise when a directive has direct effect and be able to apply the criteria to a problem question
- Know what is meant by the principle of indirect effect and recognise its limitations
- Identify the criteria for the application of the Francovich principle
- Understand that the principle of effectiveness demands that national remedies and national procedural rules cannot make the exercise of Community law rights difficult or impossible to pursue and that the principle of equivalence requires that Community law actions cannot be treated less favourably than comparable actions derived from domestic law
- Understand how the ECJ has developed the principle of supremacy of Community law
Chapter 3: Community institutions
- Explain the composition and functions of the three political institutions, i.e. the Commission, the Council of the European Union and the European Parliament
- Understand the supervisory role of the European Parliament over the Commission and to a lesser extent the Council of the European Union
- Criticise the current institutional structure
- Understand the role of the European Council
- Describe in outline the decision making process
- Explain the composition of the ECJ and CFI and their jurisdiction
- Discuss the procedure in the ECJ
Chapter 4: Preliminary rulings
- Explain the main purposes of the preliminary reference procedure
- Discuss how the procedure has been used to develop Community law
- Understand what is meant by 'a court or tribunal' in this context
- Distinguish between when a court has a discretion to make a preliminary reference and when it has an obligation to refer
- Identify when a preliminary reference would not be necessary
- Consider whether the ECJ can refuse to hear a reference
- Explain the effect of a preliminary ruling
- Outline proposals for reform of the preliminary reference procedure
Chapter 5: Free movement of persons and citizenship
- Explain the scope of Article 39 EC
- Identify the different categories of persons that can benefit from the right to free movement of persons
- Discuss what is meant by a Community worker with reference to the case law
- Explain the concept of Union citizenship and identify the rights of a European citizen
- Discuss the significance and key features of Directive 2004/38
- Explain how a Member State can limit the rights of free movement of persons on grounds of public policy, public security and public health
Chapter 6: EC sex equality legislation
- Explain the scope of Art 141 of the EC Treaty
- Discuss the provisions of the Equal Treatment Directive 2006/54 in relation to equal pay and equal treatment
- Give examples of the rulings of the ECJ in cases on equal pay and equal treatment
Chapter 7: Free movement of goods
- Recognise the different ways in which the free movement of goods can be hindered by tariff and non-tariff barriers to trade
- Distinguish between customs duties and charges having equivalent effect and explain how they are regulated by the EC Treaty
- Distinguish between a charge having an equivalent effect to a customs duty and a discriminatory tax
- Explain the scope of Article 90 EC and how it is applied to discriminatory taxes
- Distinguish between quantitative restrictions and measures having equivalent effect
- Distinguish between distinctly and indistinctly applicable rules
- Discuss the rule of reason introduced in Cassis de Dijon
- Explain the decision in Keck and Mithouard
- Explain when a Member State may rely on the Art 30 derogations
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Glossary
Click on the glossary term to see the definition
Chapter 1
- Acquis communautaire
- The body of European Community law which applies in Member States
- Advocate-General
- Officer of the European Court of Justice having the same status as a judge who delivers a non-binding, independent and impartial Opinion on the possible outcome of the case before it.
- Charter of Fundamental Rights
- Charter of the common values of Member States.
- Committee of the Regions
- An advisory body made up of regional representatives from each Member State
- Common external tariff
- A harmonized customs duty applicable to goods from non-member states
- Community law
- The body of European Community law including primary and secondary legislation, general principles of law and decisions of the European Court of Justice
- Court of First Instance
- This court was provided for in the Single European Act 1986 and established in 1989 to ease the workload of the European Court of Justice.
- Court of Justice
- Known as the ECJ. This court is responsible for the interpretation and application of Community law.
- Economic & Social Committee
- An advisory body made up of representatives of various categories of economic and social interests from each Member State.
- European Community Law
- The law relating to the EC Treaty only which is found in the first pillar of the European Union.
- European Union Law
- The law of the European Union established by the Treaty on European Union which comprises the three pillars of the European Communities; the Common Foreign & Security Policy and Police and Judicial Cooperation in Criminal Matters.
- Inter-governmental conference
- Known as the IGC. It is made up of heads of state of Member States (i.e. the European Council) when it is concerned with amending primary legislation.
- Internal market
- A common market or single market for all economic activity made up of all Member States.
- Luxembourg Accords
- A compromise reached in 1966 following a stalemate between France and the other Member States. It permits a Member State to request that a decision be reached by unanimity when it concerns an issue of national interest.
- Proportionality
- A German concept adopted by the Community. A public authority may not impose obligations on a citizen except to the extent that they are proportionate to the aim that is sought.
- Qualified majority voting
- A form of voting in the Council of the the European Union by which each Member State's votes are weighted to reflect its population.
- Schengen agreement
- An agreement between some Member States to abolish immigration checks at their shared borders.
- Subsidiarity
- The principle that decisions on topics, which are not within the Community's exclusive competence, should only be taken by the Community when action cannot be sufficiently achieved by Member States.
- Three pillars
- The European Union was established by the Treaty on European Union and is made up of three pillars - the European Communities; the Common Foreign and Security Policy; Police and Judicial Co-operation in Criminal Matters.
Chapter 2
- Direct applicability
- Directly applicable EC law takes effect in a Member State without the need for implementation
- Direct effect
- Directly effective EC law gives rights and obligations to individuals which may be enforced in national courts
- Force majeure
- Coercion
- Incidental Horizontal Direct Effect
- the term used to describe the effects of judgments in where the ECJ has allowed a directive designed to regulate free movement of goods and which does not creates rights and obligations for individuals to be relied upon by a private party in civil proceedings with another private party.
- Implementing legislation
- National legislation which implements an EC directive.
- Indirect effect
- A principle developed by the ECJ which requires national courts to interpret domestic legislation in the light of a directive.
- Non-retroactivity
- Principle that law should not be applied retrospectively.
- Primacy
- Otherwise known as Supremacy. EC law is supreme, i.e. it prevails over conflicting national law.
- Preliminary reference
- The procedure by which national courts may seek a preliminary ruling from the ECJ or CFI regarding the interpretation of primary or secondary legislation, or regarding the validity of secondary legislation.
- State liability
- where an individual can bring an action for damages against a Member State for a sufficiently serious breach of Community law.
- Vertical direct effect
- A provision of EC law which is enforceable in national courts against the state or the emanation of a state.
Chapter 3
- Action for annulment
- Also known as judicial review. The ECJ or CFI have jurisdiction to review the acts of Community institutions on grounds set out In Art.230 of the EC Treaty and to annul that act.
- Co-decision procedure
- Most common legislative procedure of the European Parliament which gives it the power to adopt secondary legislation jointly with the Council of the European Union.
- Competition law
- Rules of the European Community designed at maintaining competition within the common market. Thus art.81 of the EC Treaty prohibits anti-competitive agreements between undertakings.
- Consultation procedure
- Legislative procedure whereby the Council of the European Union is required to consult the European Parliament.
- Co-operation procedure
- Legislative procedure enabling the European Parliament to delay legislation if its amendments are not adopted.
- Direct concern
- One of the requirements for locus standi set out in Article 230 (4) EC whereby an individual must show that there is a direct causal link between a Community measure and its impact on themselves in order bring an action for judicial review.
- Enforcement proceedings
- Action brought against a Member State which is in breach of EC law. Proceedings may be brought by the Commission or more rarely by an aggrieved Member State.
- Enlargement
- The widening of the membership of the European Union
- European Civil Service Tribunal
- a specialist judicial panel set up after the Treaty of Nice 2001 to relieve the work burden of the ECJ and CFI. It deals exclusively with disputes involving the employees of the Community institutions.
- Individual concern
- One of the requirements for locus standi set out in Article 230 (4) EC whereby an individual must show that a Òdecision 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 personsÓ: Plaumann [1963].
- Judicial review
- See action for annulment above.
- Ombudsman
- European Ombudsman who considers complaints brought by citizens of the EU regarding maladministration by Community institutions.
- Plenary session
- A full session of all members e.g. of the European Parliament, of the Court of Justice.
Chapter 4
- Abstract theory
- theory which argues that only the highest court in the land is under an obligation to refer to the ECJ under Article 234 (3) EC.
- Acte clair
- Adopted from the French legal system - refers to the situation where the correct interpretation is so obvious as to leave no scope for reasonable doubt.
- CRCs
- Community Regional Courts - a suggested reform of the EC judicial system.
- Concrete theory
- theory which argues that any court which is judging in final instance in a particular case is under an obligation to refer to the ECJ under Article 234 (3) EC.
- Enforcement proceedings
- Action brought against a Member State which is in breach of EC law. Proceedings may be brought by the Commission or more rarely by an aggrieved Member State.
- Interim proceedings
- Proceedings taken in the course of an action and incidental to the main action.
- Preliminary reference
- The procedure by which national courts may seek a preliminary ruling from the ECJ or CFI regarding the interpretation of primary or secondary legislation, or regarding the validity of secondary legislation
Chapter 5
- Citizenship
- A person is a citizen of the EU if he/she holds the nationality of one of the Member States.
- Derogation
- An exception to the rule.
- Direct effect
- Directly effective EC law gives rights and obligations to individuals which may be enforced in national courts
- Economically active person
- A person who is a worker or who is self employed, i.e. will not be a burden on the state.
- Indirect discrimination
- in the context of EC Equality law, this refers to neutral criteria which may have a greater adverse effect on one sex, when compared to another.
- Objective justification
- in the context of EC Equality law, ground on which a Member State may justify indirect discrimination against one gender compared to the other.
- Public policy
- In the interests of the public as a whole.
- Schengen agreement
- An agreement between some Member States to abolish immigration checks at their shared borders.
- Social advantage
- An advantage granted to migrant workers and their families. Not synonymous with social security.
- Sui generis
- Of its own kind.
Chapter 6
- Derogation
- An exception to the rule.
- Equal treatment
- in the context of free movement of persons, the right of an EU citizen to be treated under the same conditions as nationals.
- Migrant worker
- worker who leaves their home. State to work in one of the other Member States.
- Non-discriminatory measure
- national measure which is not directly or indirectly discriminatory, but hinders market access.
- Non-economically active persons
- referred specifically to three categories of persons, namely students, retired persons and persons who are self-sufficient, who were granted rights of free movement in the 1990s subject to certain conditions.
- Objective justification
- in the context of free movement of persons, ground on which a Member State may justify indirect discrimination or hindrance of market access by non-discriminatory measures.
- Positive discrimination
- A German concept adopted by the Community. A public authority may not impose obligations on a citizen except to the extent that they are proportionate to the aim that is sought.
- Proportionality
- A German concept adopted by the Community. A public authority may not impose obligations on a citizen except to the extent that they are proportionate to the aim that is sought.
- Protocol to the Treaty
- Protocols are annexed to Treaties and often contain opt-out provisions.
- Purposive approach
- An approach to interpretation whereby the court interprets the legislation so as to achieve its overall purpose.
- Transparency
- Openness.
- Substantive law
- The actual law as opposed to procedural law.
Chapter 7
- Common customs tariff
- A harmonized customs duty applicable to goods from non-member states
- Customs duty
- A levy charged by the state at its border
- Customs union
- A union of member states which prohibits customs duties at its common borders.
- Derogation
- An exception to the rule.
- Distinctly applicable measures
- national trading rules which apply to imported goods only.
- Dual-burden rules
- national trading rules, which normally relate to the characteristics of the product to be sold, which apply to both domestically produced goods and imports and which impose an additional burden on importers. They may dissuade or prevent importers from selling their goods in other Member States.
- Equal-burden rules
- national trading rules which may hinder trade overall, but their impact on domestic producers and importers is the same. These rules normally relate to the way in which a good is sold or marketed.
- Indistinctly applicable measures
- national trading rules which apply to both domestically produced goods and imports.
- Non-discriminatory measure
- national measure which is not directly or indirectly discriminatory, but hinders market access.
- Objective justification
- in the context of free movement of goods, ground on which a Member State may justify indirect discrimination against imports subject to the principle of proportionality.
- Indirect discrimination
- in the context of free movement of goods, this refers to neutral criteria which may have a greater adverse effect on imports, when compared to domestic products.
- Mandatory requirement
- grounds on which a Member State may justify a restriction which hinders imports from another Member State provided it complies with the proportionality requirement.
- Proportionality
- A German concept adopted by the Community. A public authority may not impose obligations on a citizen except to the extent that they are proportionate to the aim that is sought.
- Protectionism
- Rules imposed by a state with a view to protecting domestic traders from competition from foreign importers.
- Quantitative restrictions
- Measures which constitute a total or partial restraint on the import or export of goods, e.g. a ban or a quota system.
- Rule of mutual recognition
- This rule provides that once goods have been lawfully marketed in one member state, they should be free to be marketed without restriction in other member states.
- Rule of reason
- A restriction which might otherwise be unlawful should be permitted if it is in the public's interest and is proportionate.