European Union Law and the Courts

1. European Union Law and the Courts Repetition Asst. Prof. Dr. Alexander Bürgin IUE

2. The treaties distinguish different types of legislation (1) • Regulations: Binding in its entirety, directly applicable in all MS (no need for national implementation measures) • Directives: result is binding, but leave national authorities the choice of form and methods Asst. Prof. Dr. Alexander Bürgin IUE

3. The treaties distinguish different types of legislation (2) • Decision: binding in its entirety, addressed to any or all MS, undertakings or individuals, rather administrative than legislative acts • Recommendations and Opinions: no binding force, do not formally constitute part of EU law Asst. Prof. Dr. Alexander Bürgin IUE

4. Most legislative acts areadministrative measures enacted byCommission • Legislative acts can be adopted jointly by the EP and Council (co-decision procedure), the Commission alone, the Council alone • The vast majority acts is technical and non-political and the therefore adopted by the Commission (technical law) • But grey area where policy overlaps with administration Asst. Prof. Dr. Alexander Bürgin IUE

5. EU law is mainly concerned with economic activity • EU law is not as wide-ranging as national law • EU law is focused on economic aspects: common commercial policy, functioning of the internal market • Recent development: expansion of EU law into increasing number of policy areas – reason: spill over effects, shift from economic integration to political union Asst. Prof. Dr. Alexander Bürgin IUE

6. EU law is superior to national law and direct applicable • Not explicit mentioned in the treaties but if MS could annul EU law no legal order is possible • van Gend en Loos case: EC law applicable to MS and the individual citizen • Gend en Loos (Dutch company): tax increase for chemical imports is against EC treaties • Dutch government: EC treaties did not create rights for individuals – only state subject to EC law • ECJ: no, direct effect of community law Asst. Prof. Dr. Alexander Bürgin IUE

7. EU law is superior to national law and direct applicable • Costa vs. Enel: primacy of EU law • MrCosta (Italian citizen): nationalizing the Italian energy company ENEL is against EC law (distortion of the free market) • Italian government: national decision • ECJ: EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law. Asst. Prof. Dr. Alexander Bürgin IUE

8. The ECJ cannot initiate actions • Cases must be referred to the Courts by the Commission, National Courts, Member States or any natural or legal person (depend on type of case) • Because of the constantly expanding workload the Court of First instance was established 1988, charged with matters that are more routine in nature • 500 cases a year Asst. Prof. Dr. Alexander Bürgin IUE

9. Types of Cases: 1) Failure to fulfill an obligation • Rules on whether MS have failed to fulfill obligations under the treaty • Action may be brought either by Com or a MS • Constitute largest number of cases (219 in 2004) • Court can impose penalties on MS – ex: France for allowing fisherman to catch/sell fish that were smaller than permitted under EU legislation Asst. Prof. Dr. Alexander Bürgin IUE

10. 2.) Application for annulment • Review of the legality of acts adopted by EP, Council and Commission (lack of competence, infringemenent of procedural requirements • Action may be brought by MS, Council, Commission, EP or in some areas natural or legal persons • Examples: • Dilution of the Stability Pact by the Council avoiding deficit procedures against France and Germany in 2003 • Commission vetoeda merger between two firms with the argument the merger would harm competition Asst. Prof. Dr. Alexander Bürgin IUE

11. 3.) Reference for a preliminary ruling • No judgment - but give interpretations on EU law in order to enable national courts to make a ruling • National courts with excluisve right to apply for a preliminary ruling • Purpose: help national courts to make correct judgments, promote uniform interpretation of EU law, access to the national court for private individuals and undertakings who cannot directly appeal to the ECJ Asst. Prof. Dr. Alexander Bürgin IUE

12. 4. Failure to act • The Treaty requires the European Parliament, the Council and the Commission to make certain decisions under certain circumstances. • If they fail to do so, the member states, the other Community institutions and (under certain conditions) individuals or companies can lodge a complaint with the Court so as to have this failure to act officially recorded. Asst. Prof. Dr. Alexander Bürgin IUE

13. ECJ jurisdiction pushed the integration process • ECJ clarified the status of EU law • ECJ strengthened/extended EU policy competences – espec. in the Single Market • ECJ introduced the principle of mutual recognition • Strengthened the power of the Community institutions to take legal actions against non-EC companies Asst. Prof. Dr. Alexander Bürgin IUE

14. The independent influence of the court should not be overstated • Despite the ECJ sometimes not only interpret law but makes law his influence is limited • Judgments constrained by policy framework • Cannot initiate cases itself Asst. Prof. Dr. Alexander Bürgin IUE