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Law School

S TUDY P LAN I - THE DEVELOPMENT OF THE EUROPEAN U NION & LAW MAKING AND SOURCES OF LAW
Part A: The History and Development of the European Union THE 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 economic stability following the ravages of the Second World War. To that end they outlined their aims within the Preamble of the Treaty of Rome 1957, which stated that the Member States were: ".....determined to lay the foundations of an ever closer union among the peoples of Europe, resolved to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe, affirming as the essential objective of their efforts the constant improvement of the living and working conditions of their peoples...........resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share 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 originally read as follows: "The Union shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Union a harmonious development of economic activities, a continued and balanced expansion, an increase in stability, an accelerated raising of the standard 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 Consolidated Version 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 rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

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 without internal frontiers, in which the free movement of persons is ensured in conjunction with 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 sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced. 4. The Union shall establish an economic and monetary union whose currency is the euro. 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United 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 the aims, ideals, procedures and enforceable rights for Member States and their citizens. 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 of January 2013 stretching from the Arctic to the Mediterranean and on to the Agean and Adriatic. There are several other states seeking to join and the final total of Member States could exceed 35.

Tasks

Prepare a short briefing document outlining the key themes identified in each Treaty. Identify the key functions of both the Consolidated Version of the Treaty on the European Union (TEU) and the Consolidated Version on the Functioning of the European Union (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 between them, including the legal basis for each institutions existence, operation, limitations and 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 the United States or Continental European States upon the institutional framework; one can indeed sense that the institutions individually do cover legislative, executive and judicial functions. However, in reality, some of the institutions undertake both legislative and judicial functions, in reality our own Constitutional arrangements are more akin to those of European Union. The five main institutions, which we will concern ourselves with during this course, are: 1.) 2.) 3.) 4.) 5.) The Parliament The Council The European Council The Commission 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 its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies 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

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

The European Parliament (Reading Fairhurst Ch. 3)


Article 14 TEU (Articles 223 234 TFEU) The European Parliament was first known as the Assembly and was created by the Treaty of Rome in 1957. It consists of Member State representatives who are directly elected by the citizens of the EU. The European Parliament is therefore the only truly "democratic" body in the European Union institutional structure. Legislative powers Through progressive changes brought about by the SEA and the TEU and latterly the Treaties of Amsterdam, Nice and Lisbon the European Parliament has moved from a mainly advisory and supervisory body to one which has almost equal status with the Council.

The European Council


Article 15 TEU (Articles 235 236 TFEU) The European Council is in essence a twice yearly meeting of the Heads of state of the 27 Member States, accompanied by their Foreign Ministers, the various Presidents and Prime Ministers discuss broad political matters and set the legislative agenda for the other institutions. This is an intergovernmental, political institution, as opposed to a supranational legislative one.

The Council
Article 16 TEU (Articles 237 243 TFEU) This body is the most powerful institution in the Union. It represents the interests of the 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 of representatives from each state. Appointment Essentially it is a political grouping; composed of political representatives of each of the Member States (usually the foreign ministers though a specialist subject will mean that the ministers with that specialism will attend e.g. finance ministers, agriculture ministers, transport ministers etc). Council representatives are therefore accountable to their own national Parliaments.

Presidency Each country rotates the presidency of the Council on a six monthly basis. The Presidency will chair meetings at both Luxembourg and Brussels and also within the Member States and provides the representation of the Council to other Union institutions such as the European Parliament and the Commission. This role is now not 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 most secondary legislation in the Union and is the institution of the Union which most reflects 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 majority Qualified majority. (Reading Fairhurst Ch. 4) Qualified Majority Voting has increasingly become the norm and the procedure is complex 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 with developments 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


Article 17 TEU (Articles 244 250 TFEU) 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 it to act as a "motor of integration"), The Commission also describes itself as the Guardian of the Treaties, and in this capacity it takes action against errant Member States for their failure to implement the provisions of EU Law. This dual role essentially sees the Commission not only as the initiator of European Law, but also the enforcer of European Law. Thus the Commission, arguably, acts in all three Constitutional capacities.

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)
Article 19 TEU (Articles 251 281 TFEU) The Court of Justice plays a central role within the Union, in that it is the highest legal authority within the Union. As you will learn the Court of Justice has had a fundamental 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 Union legislation, or indeed the founding Treaty, but were rather developed by the Court of Justice in its jurisprudence. Important note The European Court of Justice should not be confused with the European Court of Human Rights at Strasbourg; this institution deals with cases concerned with the European Convention on Human Rights and is part of a separate, larger organisation the Council of Europe. This course is not concerned with either the Council of Europe 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 of the 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 Official Languages of the EU.

Composition Significantly the Court differs considerably from English Court; unlike an adversarial common law court the Court of Justices process is inquisitorial. Essentially the whole procedure following an initiation by one party is led by the Court. The Court can request parties to provide documents & written statements, on which there is placed a greater emphasis on than in English Court. Witnesses are heard at the instigation of the Court not parties to the case. The procedures and

composition of the Court are loosely based upon those of the Conseil dEtat the highest French Administrative Judicial body. The Court has its own rules of procedure and the Statute of the Court of Justice is annexed as a Protocol to the Treaty. Judges Article 251 TFEU The Court of Justice shall sit in chambers or in a Grand Chamber, in accordance with the rules laid down for that purpose in the Statute of the Court of Justice. When provided for in the Statute, the Court of Justice may also sit as a full Court 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 to Nice the Treaty was silent as to nationality, though in practice one judge from each Member State was appointed. Chambers consist of 3 or 5 members, whilst a Grand Chamber consists of 11 judges. There will always be an odd number of Judges, as in an English Appeal Court, so as to ensure a majority verdict. Article 253 TFEU The Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are juris consults of recognised competence; they shall be appointed by common accord of the governments of the Member States for a term of six years. Every three years there shall be a partial replacement of the Judges and Advocates General, in accordance with the conditions laid down in the Statute of the Court of Justice. The Judges shall elect the President of the Court of Justice from among their number for a term of 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 rules governing his service. The Court of Justice shall establish its Rules of Procedure. Those Rules shall require the approval of the Council, acting by a qualified majority. Appointments are staggered so that some take place every three years, (Article 9 of the Statute of the Court), thus ensuring a continuity of justices. Importantly as is stated in Article 253 the independence & impartiality of the Judges is paramount. So much so that they, (the Judges), pledge an oath to perform their duties impartially & conscientiously & to preserve the secrecy of the deliberations of the Court.

The role of the Advocate-General Article 252 TFEU The Court of Justice shall be assisted by eight Advocates-General. Should the Court of Justice so request, the Council, acting unanimously, may increase the number 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 the Court of Justice, require his involvement. The role of the Advocate-General is possibly one of the most alien roles to English Lawyers. The position can be compared with that of an amicus curiae, however this analogy is somewhat limited. Importantly whilst neither a judge, nor indeed an advocate, the eight Advocate-Generals are almost always highly regarded members of a States judiciary and also academic scholars. They enjoy equal status with the judges 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-Generals opinion is very persuasive, given the very high standard of legal analysis contained within it, (and more often than not his/her recommendation forms the basis of the Courts judgement), it is not binding on the justices who are free to depart from it should they wish. The Advocate-Generals opinion is delivered in open Court following the completion of the 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 a judge. A judge works as a member of a committee: any proposal he puts forward regarding a judgment must be agreed to by at least a majority of his colleagues. He cannot, therefore, put his personal stamp upon a judgment in the same way that an English judge can; and even if he succeeds in winning over his brother judges to his way of thinking on a particular issue, the result is always anonymous: no one outside the closed circle of the Court of Justice will ever know that it was his own work. The advocate-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 is responsible 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 the case 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 eminent academic and QC.

1 2

Hartley The Foundations of European Union Law (5 ed. OUP 2003) at p.57. Ibid. 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 the Member States to the Court of Justice. Essentially cases involving preliminary references start and finish in the National Court. The National Court makes a reference to the Court of Justice on a point of law. The Court of Justice will send a ruling on the point back to the national court, which will then reopen the case and give judgment. 2. Infringement Actions against Member States. These actions may be brought under Arts. 258, 259 & 260 3. Direct Actions (Judicial Review) under Arts 263 & 265. (This is not part of the syllabus.) These latter two are direct actions, which start and end in Luxembourg and the Court of 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. The Court 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

a rejoinder to the reply. The judge-rapporteur will present a preliminary report to the Court. Preparatory inquiry (Articles 45- 54 of the Rules of Procedure) An important distinction from an English Court is the fact that the Court decides what evidence is required. Article 45(1) of the Rules provides: The Court, after hearing the Advocate General, shall prescribe the measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved. The Court may therefore ask for further information, commission reports from expert witnesses 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 adopted should the Court feel them necessary: The personal appearance of the parties A 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 English Court. During this period the judges and the advocate-general can question the parties lawyers. These questions are generally very brief, significantly counsel are expected to have delivered submission prior to the hearing and only use this address to emphasise their strongest arguments and attack the weaknesses in their opponents case. At the end of the oral procedure, there will be an adjournment. The Court will reconvene, normally some months later, and the advocate-general formulates 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) v Aruba (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 from the Judge-Rapporteur, and having listened to the Advocate General 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 of the 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 of judges 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 single succinct judgment. There are no individual judgments and therefore no dissenting judgments. Very often, the judgments consist of terse statements that do not contain obiter dicta or ratio decidendi. The formal ruling, the operative part of the judgement is published in the Official Journal. Whilst the entire judgement combined with the Advocate-Generals Opinion is 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 as to maintain a level of legal certainty. This is echoed in the fact that the AdvocateGeneral is likely to discuss earlier decisions in his/her opinion. Significantly, and perhaps frustratingly because of the often short and generally terse nature of the Courts judgement it may be difficult, if not near impossible, to extract from the judgement a ratio decidendi. On rare occasions, the Court may expressly depart from its previous case law. This may 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 deviated from 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 and constitution of the Union/Union. It emphasised the importance and significance of that role in its submission to the Inter Governmental Conference of 1996. (See Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union for the Purposes of the 1996 IGC (May 1995)) Methods of Interpretation The Court of Justices methods of interpretation are prima facie very different to an English Courts. This difference famously highlighted by Lord Denning in his speech in 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 become accustomed 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 lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the Treaty there are gaps and lacunae. These have to be filled by the judges, or by regulations or directives. It is the European wayseeing these differences, what are the English courts to do when they are faced with a problem interpretation? They must follow the European pattern. No longer must they argue about the precise grammatical sense. They must look to the purpose and intentthey must divine the sprit of the Treaty and gain inspiration from it. If they find a gap, they must fill it as best they canthese are the principles, 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 is guided 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, where legislation provides a framework of principles not intended for purely literal interpretation. This is sometimes compared to the English Courts purposive approach. This approach was referred to by Lord Diplock in R v Henn [1981] AC 850 as being the 'spirit rather than the letter of the Treaty': "Every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being 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 to filling the gaps within the framework of the Treaty. What has caused debate amongst some commentators is where the Court has appeared to go one step further, reaching decisions that extend the scope of the treaties - assuming a creative role attempting to update the Treaty through interpretation. Critics refer to this as judicial activism. For a non-political body, its decisions have often triggered much political and academic debate. In Les Verts v European Parliament (Case 294/83) [1986] EUR 1339 Article 173 (now 263) allowed the Court to review the legality of acts of the Council and the Commission. (It did not then mention Parliament.) The Court of Justice nevertheless held that an action for annulment could be brought against Parliament: An interpretation of Article 173 [now 263] which excluded measures adopted by the European Parliament from those which could be contested would lead to a result 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 the Commission. However, the general scheme of the Treaty is to make a direct action available against all measures adopted by the institutions which are intended to have legal effects The European Parliament is not expressly mentioned among the institutions whose measures may be contested because, in its original version, the EEU Treaty merely granted it powers of consultation and political control rather than the power to adopt measures intended to have legal effect vis--vis third parties. The TEU amended Article 173 (now 263) EU to include Parliament. European Parliament v Council (Chernobyl) (Case C-70/88) [1990] EUR I-2867 The Court of Justice held that the Parliament should be accorded privileged status under Article 173 [now 263] EU and allowed to bring an action for judicial review, but only where it was alleging that its prerogatives had been infringed by the adoption of the contested act.

Task What examples of purposive interpretation can you identify, 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 general principles, the most important being recognised by Art. 6 of the TEU, which declares that: (1) The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. It will also consider aspects of the European Convention on Human Rights, this was recognised as an element of the Courts jurisprudence as far back as the case of Stauder v. City of Ulm 29/69 [1969] EUR 419. In which the Court of Justice declared that, fundamental human rights are enshrined in the principles of Community law and protected by the Court. Ultimately this means that where there exists a conflict between national law which is intended to implement Union law, but it does so in a way that it infringes upon identifiable 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 RUC 222/84 [1986] EUR 1651. Significantly however the Court of Justice can only make such a ruling on the compatibility of a national law in those areas of national law, which are affected, by Union law. The Court of Justice defined the limits of its jurisdiction in Demirel v. Stadt Schwabisch 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 Rights is the European Unions own Charter of Fundamental Rights of 2000.

Task 1. Is the teleological approach of the Court of Justice truly alien to English Courts? Can you find/think of examples of the English Courts adopting a purposive approach to reach a novel verdict?
2. Should the Courts priority lie in ensuring that it fulfils its obligations in ensuring the law is observed strictly, or should it interpret and apply the treaty in the furtherance of the Union? What are the dangers/benefits of both approaches?

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

The majority of the Court of Justices work originates from references by the National Courts & Tribunals of the Member states. It forms an essential role in linking the Court of Justice with the judiciary of the Member States. This fundamental link was recognised by the Court of Justice in its Report to the 1996 Inter-Governmental Conference (Report of the Court of Justice on certain aspects of the application of the Treaty on European union, Luxembourg, May 1995) The preliminary ruling system is the veritable cornerstone of the operation of the internal market, since it plays a fundamental role in ensuring that the law established by the Treaties retains its Union character with a view to guaranteeing that the law has 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 give preliminary rulings concerning: (a) The interpretation of the Treaty; (b) The validity and interpretation of acts of the institutions of the Union and of the ECB; (c) The interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is 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 or tribunal of a Member State, against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. What matters can be subject to a reference under Art. 267 EU Interpretations of the Treaty

See 2011 Annual Report of the Court of Justice. Available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/201206/ra2011_statistiques_cour_en.pdf

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Union Acts, Regulations, Directives, decisions and also those Recommendations & Opinions, which are relevant to the interpretation of Union Law by the National Courts of the Member States. See: Frecassetti v. Amministrazione delle Finanze dello Stato, 113/75 [1976] EUR 983 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 of the law established by the Treaty and has the object of ensuring that in all circumstances 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 founders of the original EEU did not wish to create such a direct challenge to their national judiciary. Therefore the system they created is based on reference, rather than appeal, (Be advised that this is often misquoted in the media). Art. 267 TFEU expressly recognises the essential partnership role between the National Courts of Member States and the Court of Justice, it is the only provision of the Treaty, which expressly acknowledges the enforcement role of the National Courts. Whilst in an appeal, the initiative lies with the parties and if the appeal is successful the 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 refer the 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 the case before it. The system is based on the principle that when faced with a question concerning EU Law, 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 as they see fit. Ultimately the decision in that case will be that of the National Court, the whole object of the reference procedure is to retain the independence of the National Courts while at the same time preventing: A body of national case law not in accord with the rules of Union law from coming into 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 the case to have reached a stage at which the relevant facts have been established and the 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 be established and for questions of purely national law to be settled at the time the reference is made to the Court of Justice so as to enable the latter to take cognisance 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 the questions it puts arise the Court of Justice may refuse to give a ruling. See Telemarsicabruzzo SpA C-320 322/90 [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, the Appeals Committee, which operates with the consent of the public authorities and with their co-operation, and which, after an adversarial procedure, delivers decisions 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 Member State within the meaning of Article 177 of the Treaty. Therefore, the Court has jurisdiction to reply to the question asked. Dorsch Consult v Bundesbaugesellschaft Berlin C-54/96 [1998] 2 CMLR 237 The essential elements to determine the status of the body in relation to Art. 267 EU are: 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 therefore satisfy the requirement of being, any Court or tribunal. See Nordsee v. Reedenei Mond 102/81 [1982] EUR 1095 However an arbitration board or a disciplinary body which is recognised by the state as having a function in making legally binding decisions in relation to an industry or professional body may well be a court or tribunal for the purposes of Art. 267. See Broekmeulen v Huisarts Registratie Commissie (Case 246/80) [1981] EUR 2311 Article 267 EU Paragraph 2 Discretionary References The question to be referred to the Court of Justice must relate to one of the matters considered above (e.g. interpretation of the Treaty or the interpretation/validity of a regulation, directive or decision.) The discretion lies in the fact that the national court must be of the view that, A decision on the question is necessary in order to enable it to give judgement, in the case. This decision is therefore essentially up to the National Courts to decide whether to refer 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 the Court of Justice, provided by Art. 177 [now Art. 267 TFEU], the Court of Justice gives preliminary rulings without, in principle, needing to enquire as to the circumstances which led to the national court submitting questions to itThe only exception to that principle would be in cases in which it appeared that the procedure provided for in Art. 177 had been abused and where the questions submitted sought, in reality, to lead the Court of Justice to make a ruling on the basis of an artificial dispute, or where it is obvious that the provision of Community Law submitted to the Court of Justice could not be applied. Whilst the national court has the discretion to assess the need for a reference, it should explain how it has come to the conclusion that a reference is necessary, so that the Court of Justice can be satisfied that it has the jurisdiction to deal with the matter. 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 of Justice is, in effect, bound to deliver a ruling. It cannot simply refuse to do so on the basis that if its ruling were to have the effect of annulling a Union or National provision that this would create a legal vacuum in a Member State. It would be for the 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, the Court of Justice cannot continue to deliver a judgement on the reference, because such a judgement would then no longer be necessary for the continuance of the case. See Teres Zabala C-422 424/93 [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 its decisions 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 to refer 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 the Court of Justice? Da Costa en Schaake NV v 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 those settled as above and no new factor has been presented to the Court. In these circumstances, the Tariefcomissie must be referred to the previous judgment. This provides us with an example of the Court of Justices precedence in that it followed its own previous decision.

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Following the decision in Bulmer v. Bollinger the English judiciary seemed unwilling to decide on European cases, this position was highlighted by Bingham J in Commissioner of Customs & Excise v. Samex [1983] 1 All ER 1042, he held that the Court of Justice was in a better position that national courts to determine questions of Union law. R. v International Stock Exchange, ex parte Else [1993] QB 534 Lord 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 the Union 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 what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should obviously refer. Significantly this almost creates a presumption that the national court should refer a question to the Court of Justice if it feels in any doubt whatsoever having 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 resolve the case himself, but nevertheless decided not to refer the case to the Court of Justice. Bearing in mind that the decision would become academic within 22 months and that it would have taken between 18 months and two years to obtain a preliminary ruling, he held that it was in the parties' interests for the national court to decide the case.

Task Read the speech of Lord Denning in Bulmer v. Bollinger [1974] 2 CMLR 91 What were Dennings main criteria for referring a case to the Court of Justice? Are his arguments persuasive? Is his approach consistent with that of the Court of Justice? How does his approach differ from that of Lord Bingham?

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Art 267 EU Paragraph 3 Mandatory References Hoffman-La Roche v Centraform (Case 107/76) [1977] EUR 957 in the context of Article 177, [Now Art. 267], whose purpose is to ensure that Union law is interpreted and applied in a uniform manner in all the Member States, the particular objective of the third paragraph is to prevent a body of national case-law not in accord with the rules of Union law coming into existence in any Member State. Therefore a court or Tribunal, which satisfies the above criteria, has no discretion; it is 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 theory holds that it only applies to the highest court within any judicial system. The concrete theory holds that it applies to the highest court that can hear the particular case in question. The Court of Justice in Costa v ENEL (Case 6/64) [1964] EUR 585 preferred the concrete theory. This approach confirms that taken by Balcombe LJ in Chiron Corporation v Murex Diagnostics Ltd (No 8) [1995] FSR 309 If the Court of Appeal does not make a reference to the Court of Justice, and gives its final judgment on the appeal, then the House of Lords becomes the court 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 leave to appeal, and the House of Lords is presented with an application for leave to appeal, before it refuses leave it should consider whether an issue of Union law arises which is necessary for its decision. Criteria for a Mandatory Reference No judicial remedy under National law, see Costa v 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 no discretion, it must refer, he question before it to the Court of Justice for a preliminary ruling. Exceptions to the Obligation to Refer Is it always necessary for a national court or tribunal to make a referral? There may be 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 CILFIT v Ministry of Health (Case 283/81) [1982] EUR 3415 The case provides us with three exceptions to the obligation to refer set out in Article 267(3) EU: Where the question of Union law is not relevant Accordingly, those courts or tribunals [courts or tribunals falling within paragraph 3] are not obliged to refer to the Court of Justice a question concerning the interpretation of Union law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it 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 in question. The same effect, as regards the limits set to the obligation to refer laid down by 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 of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical. These points refer to the development of precedent. We learnt earlier that the doctrine of precedent does not apply to the Court of Justice but the Court generally follows its own previous decisions for the sakes of legal certainty. The Court of Justice therefore held that it may not be necessary to make a reference to it because the 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 the National 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 28 30/62 [1963] EUR 31 The questions of interpretation posed in this case are identical with those settled [in the earlier case of Van Gend en Loos] and no new factor has been presented to the Court. In these circumstances the Tariefcommissie must be referred to the previous judgement.

The application of the acte clair doctrine. Finally, the correct application of Union law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Although the Court of Justice has given permission to National Courts to apply the acte clair doctrine, the National Court must do so with the utmost caution. This places 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 Union and its institutions, a detailed knowledge of the treaties and of much subordinate legislation made under them, and an intimate familiarity with the functioning of the Union market which no national judge denied the collective experience of the Court of Justice could hope to achieve. Having accepted that national courts have the authority to decide questions of Union Law, the Court of Justice then goes on to set strict limitations on this authority.

Task When must a national court or tribunal make a reference to the Court of Justice? What factors should a national court consider before applying the acte clair doctrine? Compare these with the approach of Lord Diplock in R v. Henn & Darby [1980] 2 All ER 166

Rationale behind the CILFIT judgment Note that some national courts, particularly in France and Germany, had refused to accept the supremacy of Union law. Validity Note 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 national courts refuse to make a reference? Given this can you see any logic in the CILFIT approach? What are the advantages and disadvantages from the point of view of uniformity?

Hypothetical Questions Foglia v Novello (Case 104/79) [1980] EUR 745 The Italian judge made a further reference, asking whether it was not for the national court to determine whether a ruling was necessary.

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Foglia v Novello (No 2) (Case 244/80) [1981] EUR 3045 It must in fact be emphasised that the duty assigned to the Court by Article 177 is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. It accordingly does not have jurisdiction to reply to questions of interpretation, which are submitted to it within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of Community law, which do not correspond to an objective requirement inherent in the resolution of a dispute. A declaration by the Court that it has no jurisdiction in such circumstances does not in any way trespass upon the prerogatives of the national court but makes it possible to prevent the application of the procedure under Article 177 for purposes other than those appropriate 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 the national court of the extent to which the questions submitted are essential, it must be in a position to make any assessment inherent in the performance of its own duties in particular to check, as all courts must, whether it has jurisdiction. Simplified Procedure & Expedited Hearing On July 1st 2000 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 under Art. 267 EU, see Art. 104(3) Rules, and in other situations provided for an accelerated procedure, see Art 104a Rules. The new rules can be found in OJ 2000 L 122/43, see also Note for Guidance on References 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 new relationship (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 cooperation between the national courts and the Court of Justice. This crucial cooperation to abide by Union law was recognised by the Court of Justice in Simmenthal 106/77 [1979] EUR 777: A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community Law is under a duty to give full effect to those provisions, if necessary 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 other constitutional means. See also Rheinmuhlen (Case 166/73) [1974] EUR 33 Article 177 [now 267 EU] is essential for the preservation of the Union character of the law established by the Treaty and has the object of ensuring that 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 law not in accord with the rules of Community Law from [came] into existence in any Member State. Hoffmann La Roche v. Centraform 17/76 Thus a failure to cooperate could lead to problems of certainty, non-uniformity and the 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 of Justice? Even whilst obliged to do so under paragraph 3 of Art. 267, a National Court may choose to dismiss the requirement to refer the matter to Luxembourg. In such a situation the Court of Justice cannot force a national court to refer the matter, equally a party to the case cannot appeal or reinstigate proceedings at the Court of Justice. Remember this is a reference procedure not appellate system. Secondly the case of Kobler C-224/01 [2001] OJ 212/18 in which the Vienna Regional Civil Court sought a preliminary reference as to a Member States liability to pay reparations and the jurisdiction of the national court in determining such matters.

The Court of Justice held in Kobler that: 1. The principle that Member States were obliged to make reparations for the States breaches of Union law applied to reparations stemming for decisions by a national court of first instance Subject to three conditions: (i) (ii) (iii) EU law must confer individual rights The national courts decision must be a manifest breach of EU law There must be a direct causal link between the breach and the damage. (Compare this to the cases of Francovich C-6 and 9/90 [1991] EUR I-5357 and Brasserie du Pecheur C46/93 [1996] I-1029)

2. The jurisdiction of the national court competent to adjudicate on reparation was to be determined by the legal system of that Member State and not by the Court of Justice.

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Task What impact is the Kobler decision likely to have on the relationship between national courts and the Court of Justice? Support your answer 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 supranationalism and intergovenmentalism to 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 is built. All law must be capable of referring back to these sources to demonstrate legal basis, so as to avoid allegations that the Union has acted Ultra Vires. Treaties are international agreements between Member States which require incorporation into the host Member States legal system. Secondary Legislation When reference is made to law making power in the Union and various types of decision-making process and the use of qualified majority voting in the Council we are 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 from the 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, the necessary 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 and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is 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 are recommendations and opinions which according to Art 288 "shall have no binding force" 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 of Union legislation. Additionally the scope and ability to challenge legislation varies depending on the type of legislation in question i) Regulations Regulations apply to all 27 Member States. The whole of the piece of law applies not just selected parts that an individual Member State wants. Once the regulation has been 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 you will be considering in later lectures. A date may be specified in the Regulation as to when it should come into effect or it becomes law 20 days after publication. This has caused 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 a Regulation 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 nature of the measure i.e. what it actually does. The Regulation lacked general application and was in fact a group of individual decisions (this then allowed individual challenge of those decisions). The same grounds for challenge are not available if the measure is actually a Regulation. Direct applicability and implementation of regulations: In Case 34/73 Variola [1973] ECR 981, the Italian authorities required clarification as to whether it would be legal to make an extra provision to incorporate a Regulation into 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 the law became effective Correct implementation (uniformity) by doing this, the Union nature of the provision might be disguised Union nature of measure and Article 267 TFEU (preliminary reference) passing domestic provisions might jeopardise Article 267 references. 267 will discussed 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 issued to one/ some/ all Member States and are binding in their entirety. They do not come into effect automatically, as each state must implement these in whatever way they see fit, taking into consideration national factors. The Member State also cannot amend or expand on the measure once implemented as this will defeat the purpose or aims of the directive. The directive will come into force on a specified date, but in the meantime, each state must pass appropriate law to ensure that they comply with the deadline. Individual citizens may be granted rights, duties and obligations under directives e.g. right to set breaks during work time, but problems may occur when a Member State does not implement a directive at 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] ECR1839 Francovich and Bonifaci v Italy case C-6, 9/90 [1991] [1991] ECR I-5357 Foster v British Gas plc Case C-188/89 [1990] ECR 1-3313 Faccini Dori [1994] ECR I-3325 Brasserie 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 all Member States, and also companies. We will be studying the way in which Decisions are used in a practical sense when we consider competition policy in Teaching Block 2. A Decision is "binding in its entirety upon those to whom it is addressed" Art 288 TFEU 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 of law, though are highly persuasive e.g. they may later be referred to in the COURT OF JUSTICE, and therefore any decision based upon any such recommendation or opinion is given higher authority of law. Note that they cannot confer rights for or obligations 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 also where it considers them to be necessary. National courts must consider such soft law as 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, but at this point, it is important to note a few points relating to the Court. Case law may be seen as a gap filling" approach and that Judges DO make law, but strictly speaking their job is to interpret the law only. The Treaties and secondary legislation therefore form the bare bones of legislation and interpretation adds the flesh to pad out 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 are widely recognised, there may be some controversy as many are unwritten. The TEU provides that some of these principles are: liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. Fundamental human rights underpin EU law, this is even more so now since the inclusion of the Charter of Fundamental Rights of the European Union. All law created 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 that all secondary legislation must be based on a particular Article of the Treaty, in other words that the legal basis for the measure must be stated. We will only be dealing with supranational procedures in this course. Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty. The requirement to give reasons contained in Article 296 TFEU has been upheld by the Court of Justice as an extremely important procedural requirement. The rationale for the requirement can be considered from a variety of perspectives (those affected by 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 the Article 296 requirement (Commission v Council case C-45/86 [1987] ECR 1493). The requirement to give reasons also relates to the issue of subsidiarity. The amount of detail required by Article 296 will vary depending on the type of measure being adopted. Specific legal basis: Often the legal basis for a measure in a particular area will be specified in the Treaty e.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 should act unanimously after consulting the Parliament and the Economic and Social Committee. General Legal basis: Alternatively the Treaty might provide for a general power to pass legislation of a generic kind e.g. Articles 114 and 115 TFEU which provide the legal bases for action to approximate the laws of Member States in relation to the establishment and functioning of the common market and the internal market.

Residual legal basis The Treaty recognises that in certain circumstances there may not be a legal basis for a proposed piece of legislation. Article 352 TFEU provides a legal basis in such circumstances and states: If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, 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 obtaining the 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 Bremerhaven v Massey-Ferguson [1973] ECR 897 Case 45/86 Commission v Council (Tariff Preferences) [1987] ECR 1493 Case 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 use as the legal basis for a measure is justified only where no other provisions of the treaty gives the Union institutions the necessary power in question" Opinion 2/94 Case 84/94 UK v Council (Working Time Directive) [1996] ECR I-5755 Case C-376/98 Germany v Parliament & Council (Tobacco Sponsorship)[2000] ECR 1-8419 2. Implied powers Whilst a specific legal basis may not be immediately apparent in some circumstances, 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 of reference back to the primary source (i.e. the Treaties) and secondly the issue of legislative procedure. The European Union has developed a bewildering array of legislative procedures, the choice of procedure being specified in the Article of the Treaty which provides the legal basis for the measure. In many cases there will only be one possible legal basis and therefore only one possible legislative procedure, in other cases however where there is a possible choice of legal basis and different legislative procedures are specified in each Article then controversial issues can arise. Invariably these involve issues such as the extent of Parliaments role in the procedure and the use of qualified majority voting in the Council rather than unanimity. Following the ratification of the Lisbon Treaty, this is 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 key legislative role and therefore the most important roles were held by the Commission and 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 requirement to 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 a procedure whereby parliamentary consent is required before a measure can be passed. Again the Treaty, specifically Articles 289(1) and 294 TFEU, specifies the areas where this procedure must be used to pass legislation. Upon the ratification of the Lisbon Treaty the Ordinary Legislative Procedure will is used by the European Parliament 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 increased Parliamentary demands for a greater say in the legislative process, the procedure is now contained in Article 289(2) of TFEU. Originally known as the co-operation procedure some commentators argued that the co-operation procedure may have been misnamed; as it relies on the threat of forcing the Council to act unanimously in order to increase the voice of Parliament. Hartley described this as "..a real, though small, increase in the powers of Parliament". The Treaty specifies those occasions when the Article 289(2) procedure must be used. Following the Amsterdam Treaty the occasions when it is used are much rarer.

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