European Court of Justice

1. European Court of Justice Prof. Dr. Martin Trybus Birmingham Law School « Public Procurement Review and Remedies »Ankara 26-27 February 2008

2. A complete system of remedies • Action for annulment: Article 230 EC. • Failure to act action: Article 232 EC. • Indirect challenge action: Article 241 EC. • Compensation for unlawful action: Articles 235 and 288 EC. • Preliminary reference: Article 234 EC.

3. Enforcement of EC law: dual vigilance • Control at EU level: from above • Article 226 EC (Article 227 EC) • Even when act in question was committed by constitutionally independent body • Practical duties are no excuse • Control at national level: from below • Direct effect • National review: Remedies Directives

4. Article 226 EC Treaty • “If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. • If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.”

5. Article 227 EC Treaty • “A Member State which considers that another Member State has failed to fulfil an obligation under this Treaty may bring the matter before the Court of Justice. • Before a Member State brings an action against another Member State for an alleged infringement of an obligation under this Treaty, it shall bring the matter before the Commission. • The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party's case both orally and in writing. • If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court of Justice.”

6. Article 228 EC Treaty • 1.   If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the [ECJ]. • 2.   If the Commission considers that the Member State concerned has not taken such measures it shall, after giving that State the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the Member State concerned has not complied with the judgment of the [ECJ]. • If the Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time limit laid down by the Commission, the latter may bring the case before the [ECJ]. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. • If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. • This procedure shall be without prejudice to Article 227.

7. Article 226 EC: phases • Non-judicial phase: Commission • Informal contact with Member State. • No satisfactory solution. • Reasoned opinion. • No satisfactory solution. • Judicial phase: ECJ • Action in ECJ. • (1st) ECJ judgment. • Member State disobeys the judgment. • Action in ECJ. • (2nd) ECJ judgment with lump sum.

8. Article 234 EC • The Court of Justice shall have jurisdiction to give preliminary rulings concerning (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the [EC] and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.”

9. Article 234 EC • “Where such a question is raised before any court […] of a [MS], that court […] may, if it considers that a decision on the question is necessary to enable it to give judgment, request the [ECJ] to give a ruling thereon. • Where any such question is raised in a case pending before a court […] of a [MS] against whose decisions there is no judicial remedy under national law, that court […] shall bring the matter before the [ECJ].”

10. Purpose of Article 234 EC • AG Lagrange in C-13/61, Bosch • “real and fruitful collaboration between the municipal courts and the [ECJ] with mutual regard for their respective jurisdictions” • C-166/73, Rheinmühlen Düsseldorf • “Article [234 …] has the object of ensuring that in all circumstances the law is the same in all States of the Community.” • C-29/69, Stauder • “the necessity for uniform application and accordingly interpretation”

11. Separation of functions • C-6/64, Costa v ENEL • “Since […] Article [234] is based upon a clear separation of functions between national courts and the [ECJ] it can not empower the [ECJ] either to investigate the facts of the case or to criticize the grounds and purpose of the request for interpretation.” • “[Article 234] gives the [ECJ] no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the Treaty […].”

12. C-104/79+244/80, Foglia v Novello • No. 1: “artificial nature of this expedient”; requirement of a “genuine dispute”. • No. 2: “[… ] the [ECJ] must take special care to ensure that the procedure under Article [234] is not employed for purposes which were not intended by the Treaty.”

13. C-451/99, Cura Anlagen v Auto Service • ‘According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’

14. The effect of a 234 ruling • C-66/80, ICC • “When the [ECJ] is moved under Article [234] to declare an act of the institutions to be void […] it follows […] although […] such a declaration is addressed only to the national court which brought the matter before the court, it is sufficient reason for any other national court to regard that act as void for the purposes of a judgment which it has to give.”

15. Bodies competent to refer • Courts and tribunals • C-54/96, Dorsch; C-178/99, Saltzmann • Body is established by law. • Body is permanent. • Jurisdiction of the body is compulsory. • Procedure is inter partes. • Body applies rules of law. • Body is independent.

16. Obligation to refer • Highest courts • C-107/76, Hoffmann la Roche • “[Objective] to prevent a body of national case law not in accord with the rules of [EC] law from coming into existence in any [MS].” • C-28-30/62, Da Costa en Schaake • “any […] national court or tribunal against whose decision there is no judicial remedy under national law.”

17. C-283/81, CILFITDoctrine of ‘acte claire’ • “A court […] against whose decisions there is no judicial remedy […] is required, where a question of [EC] law is raised before it, to comply with its obligation to bring the matter before the [ECJ], unless it has established[1] that the question raised is irrelevant or [2] that the [EC] provision before it has already been interpreted by the [ECJ] or [3] that the correct application of [EC] law is so obvious as to leave no scope for any reasonable doubt.”

18. C-314/85, Foto Frost • Power to refer: very flexible approach. • Exception to flexible approach: validity of Community acts. • Courts other than last instance courts: • may reject claims that Community act is invalid. • may not declare Community acts invalid. • Danger: divergences between national courts as to validity of Community acts undermines objectives of uniformity and legal certainty.