EU Law Notes PDF

Tutorial 2 What does it mean to reason according to the rules ? It is to apply legal rules to the case Where can we find those rules? Case law, precedent, secondary law, charter, treaties How to structure rules? Legal syllogism : IF …. THEN …. In the case of Sarah: IF someone...

Tutorial 2 What does it mean to reason according to the rules ? It is to apply legal rules to the case Where can we find those rules? Case law, precedent, secondary law, charter, treaties How to structure rules? Legal syllogism : IF …. THEN …. In the case of Sarah: IF someone has not lived in the Netherlands for 5 years THEN they can not get the grant The IRAC method ( Issue, Rule, Application, Conclusion) The different rules of interpretation - The literal or grammatical rule: a principle of legal interpretation where courts interpret the words of a statute in their plain, ordinary meaning, without considering the law's purpose or potential consequences. - The mischief rule: a principle of legal interpretation used by courts to determine the purpose or "mischief" that a law was intended to address. Essentially, when interpreting a piece of legislation, courts will look beyond the literal meaning of the words to understand the problem the law was created to fix - The Golden Rule: What was the main goal when the rule was made? - Schematic interpretation: look at the issue with a broader spectrum, not only focusing on one rule or article What is precedent? - An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances - When looking at precedent cases judges only consider the rationes decidendi and not the whole case What are legal sources? Official sources of a modern legal system=> legislation, treaties, and precedents (in case of the common law; more for countries like the US since they have common law, but in the case Belgium and the Netherlands they do not, and due to that they do not have to follow a precedent); more limited category of legal sources; indicative of the different shapes law can take; not all of them can be used as reasons why a particular rule is a valid legal rule here and now. Official sources=> varies from one legal system to another and from time to another. Lex Superior principle=> in case of conflict, the superior rule overrides the inferior rule (national laws will prevail over laws of the province, and they prevail over municipal laws; EU law has supremacy over the national laws of the EU member states) Lex Posterior principle=> the newer rule prevails over the older one As a consequence of the fact that it is difficult for a legislator to foresee all possible situations to which a rule may apply, a rule may be either over-inclusive or under-inclusive Over-inclusive=> if a rule applies to cases in which it is not meant to apply (a prohibition of dogs in a butcher shop, which is not meant to apply to guide dogs for the blind). Under-inclusive=> if a rule does not apply to the cases to which it was meant to apply (a rule against dogs in a butcher shop, which should also apply to a monkey Mrs. Jackson likes to take for a walk). What does it mean to tolerate the wrong answer? It is when judges decide according to a legal rule even though they would have wanted to make a different decision. - Have to do this to ensure stability in the system and legal certainty If the judges make different decisions each time people do not know what the rules really are, won’t be followed In the EU it is important to tolerate the wrong answer, to follow the rules in order to avoid abuse of power of member states and uncertainty for the population. - it is the right answer within the EU context Tutorial 3 What are the EU’s values? Laid out in Article 2: 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. article 2 = very identity of the Union within the limits of its powers EU’s mechanisms to protect these values? Art. 50(1)"TEU member state may decide to withdraw from the Union in accordance with its own constitutional requirements" withdrawal requirements/ procedural conditions in art 50(2)+(3) TEU notification of intention to withdraw to the EU Council 50(2) TEU EU shall negotiate a withdrawal agreement with MS 50(2) TEU QMV in council to conclude withdrawal agreement 50(2) TEU Consent by the European Parliament to conclude withdrawal agreement 50(3) TEU EU law no longer applies when withdrawal agreement enters into force or when no agreement is reached, two years after notification 50 (3) TEU Article 7 TEU 1) MS that violates the values of Art 2 TEU can be subject to Art 7 TEU procedure/ almost impossible to realise this a. 1/3 of the member states, the European Parliament, or the European Commission can propose to start the procedure. b. A proposal is made to determine whether there is a “clear risk of a serious breach” of the EU’s core values (listed in Article 2 TEU).  c. The Council of the European Union (Council of Ministers) votes on the determination. A 4/5 majority (80%) is required in the Council, and the European Parliament must also consent with an absolute majority of its members. d. If a clear risk is found, the Council can issue recommendations to the member state to address the risk and prevent further escalation. e. This stage is essentially a warning mechanism designed to prevent an actual breach from occurring. 2) Triggering Article 7(2) TEU- Determining the Existence of a Serious and Persistent Breach a. 1/3 of the member states or the European Commission can propose this next step. The European Parliament cannot directly trigger this stage. b. The proposal is made to determine whether there is an “existence of a serious and persistent breach” of the EU’s values by the member state. c. The European Council (which consists of the heads of state or government of the member states) votes on the determination. d. Unanimity is required in the European Council, which means all member states must agree (except the member state in question, which cannot vote). e. If a serious and persistent breach is confirmed, the EU can move to take punitive actions against the member state. This is a significant escalation from Article 7(1), where only warnings and recommendations are issued. 3) Article 7(3) TEU- Imposing Sanctions a. What happens? b. The EU can now impose sanctions on the offending member state. This could include the suspension of certain rights, such as voting rights in the Council, which would greatly reduce the member state’s influence over EU decisions. c. How is this decided? d. A reinforced qualified majority (QMV) is required in the Council to impose these sanctions. Specifically, at least 72% of the Council members (representing at least 65% of the EU’s population) must approve the sanctions. e. What kind of sanctions can be imposed? f. Sanctions may include suspending the member state’s voting rights in the EU’s institutions, limiting its ability to participate in certain decisions, and potentially cutting off certain EU funds. g. However, the offending state would still be bound by its obligations under EU law. Art. 260 TFEU; describes how MS can go before Court If the CJEU finds that a Member State has failed to fulfill an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. Rule of law conditionality: Linked to corruption and the rule of law; functions a budgetary tool; coordinated through common provisional measures. Recovery and Resilience Facility: Milestone-based system. EU Rule of Law Framework: Focuses on monitoring compliance. Collective voice of EU leaders: Represents unified action or opinion on matters of concern. Are these measures sufficient?  Article 7 TEU: Insufficient for penalizing member states when they violate Article 2 of the(TEU); very few member states are willing to fully engage with Article 7 TEU—>symbolic significance. Article 258TFEU: The European Commission is not obligated to take member states to court for rule of law violations. Conditions for joining the EU: There are three substantive criteria for accession, as outlined in Article 49 TEU: 1. Being a European state. 2. Respecting the values mentioned in Article 2 of the TEU. 3. Meeting the eligibility conditions agreed upon by the European Council. Procedural criteria: -Membership application to the EU council -Opinion of commission -Consent of the European parliament -Unanimity of the EU council -International agreement between all MSs and acceding state Not in the legislation bc political agreement (not legally binding): Copenhagen Criteria: -stable institutions respecting fundamental rights, -functioning market economy open to European market, -must implement adopt and comply with EU law/ accept obligations Candidacy status holds no legal value Tutorial 4 What is meant by direct effect? (influence of Van Gend en Loos) = private parties can invoke EU law before a national judge. The national judge must apply provisions of EU law in disputes before him/her. Van Gend en Loos; transport of fluids from Germany to NL, national tariff of 8% placed upon goods: claim that this goes against article 12 EEC argued through values of the Treaty, member states who joined the Community limited their sovereignty in doing so, they were given obligations which they owed as rights to their nationals. -> just as Member States have the right to invoke EU law against other member states and the commission, their nationals do to. (treaties can also be invoked against individuals): has to be clear, conditional and a negative obligation → European law functions as a New Autonomous Legal Order  What is meant by supremacy? (primacy of EU law) (context of Costa v. Enel judgment) → when a national law comes into conflict with EU law the national law must be disapplied ENEL was nationalised, Costa had stocks in ENEL, argued that he did not have to pay bills bc he believed he was still the owner. – Italy argued that this was inadmissible and could not be taken to eu court (monoist vs dualist international courts) = italy is dualist country, ‘traditionally you cannot invoke international law before national court as it is not integrated in national law’ // EU law does not function this way according to the preamble, preliminary ruling etc in the treaties → court ruled using teleological interpretation Why are direct effect and supremacy so powerful in combination, that is, when applied together? One could argue that supremacy does not matter without direct effect as one could not invoke EU law before national court ( goes both ways, one does not make sense without the other) Matters specifically for dualist law countries: if lack of supremacy and direct effect member states would be very uneven. Why does the preliminary reference procedure make the principle of direct effect more effective? Preliminary reference procedure = tool used for judicial review of compliance and member states, Art. 267/ eu provides interpretation of the law so there is a unified interpretation across all member states. National courts initiate the procedure wherein they refer their case to the EU court who then provides them the interpretation of the law which they must apply → every country will have the same interpretation of the EU law, to which they have to abide by direct effect Costa v. Enel Supremacy of EU Law -EU law cannot be overridden by national law. -MSs who signed the treaties willingly limited their sovereignty by accepting EU law as part of a new autonomous legal order Uniformity of EU Law: -The executive force of EU law cannot vary across Member States. If it could be modified by national law, it would undermine the objectives of the Treaty (referred to in Article 5(2) TEU) and lead to the discrimination prohibited by Article 7 TEU. Conditional Obligations: -The obligations under the Treaty would become conditional and contingent on national laws, which would undermine the commitments made under EU law if Member States could alter or question these obligations with later legislative acts. Final Assertion: -The law derived from the Treaty, being an independent and original source of law, cannot be overridden by national provisions without jeopardizing its character as Community law and threatening the legal foundation of the EU itself. Tutorial Five States' Application of International Law Dualist System: International law must be translated into national law by legislation to be applied. Monist System: International law is automatically part of the national legal system and can be applied directly. The EU Legal Order The EU represents a new legal order that is autonomous, meaning that EU law decides how it is applied within member states. This is distinct from the way states apply general international law, as the EU demands direct application of its laws. Case Law: Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel Facts: A German import-export company challenged two EU regulations, arguing they conflicted with the German constitution. Key Issue: The case highlighted the tension between EU regulations and national constitutional law, particularly in areas like the internal market versus fundamental rights. At the Time: o The European Community (EC) had no explicit protection for fundamental rights (no charter of fundamental rights or provisions). o The CJEU ruled that fundamental rights must be protected within the framework of EU law, even if they conflict with national constitutions. Constitutional Revolution Shift from Monist to Dualist: In this context, the hierarchy between UN treaties, EU law, and national law comes into question. Order of Laws in the Netherlands: o Dutch Law o UN Treaty o EU Law Key Issue: If a constitutional amendment is placed above EU law, does this invalidate the supremacy of EU law? Rules Established by Case Law 1. Costa v ENEL: Established the supremacy of EU law over national laws. 2. Internationale Handelsgesellschaft: EU law cannot be overridden by even constitutional law of a member state. 3. Simmenthal: Even if a national law is adopted after EU law, it must be disapplied if it conflicts with EU law. Application to Dutch Law Conclusion: The judge is incorrect. EU law takes precedence over Dutch law, including Dutch constitutional law. Therefore, EU law ranks first. Case Law: Administrazione delle Finanze v Simmenthal SpA 1. Facts: Italy introduced laws imposing fees on imported beef and veal. The Italian constitutional court claimed these rules were unconstitutional, but the CJEU ruled that only the Court of Milan or Rome could handle the case. A Genuine Mistake Issue 1: Germany addressed the issue of non-compliance; therefore, should the case be dismissed? o Conclusion: The case cannot be dismissed, as there was still an original breach of EU law. Issue 2: Could non-compliance have been addressed earlier through democratic procedures? o Rule: National legislators must ensure that national laws comply with EU law. Conflicting national provisions must be set aside. o Application: The democratic procedure was unnecessary because the conflicting law was already invalid due to its conflict with EU law. o Conclusion: The case should proceed, as national compliance with EU law was not ensured. This organization clarifies the case laws, principles, and key issues related to the application of EU law and its supremacy over national law, including constitutional provisions. Tutorial 7: Conferral, subsidiarity and proportionality Hands on the wheel: Rules that state how and when the Union may act: The principle of conferral, from Art. 5(2) of the TEU states states that the EU can only act within the competences conferred from the Member States upon the Union. The Union may not overstep these boundaries. Proof of competence: To find out whether the EU has the competence to act, we need to find a valid legal basis. Three competences of the EU according to Art 2 TFEU Exclusive competence Shared competence Supportive competence How do we know what legal basis to use? The choice of legal basis lays on objective factors particularly aim and content. Furthermore, after establishing the aim of the legal basis, it needs to contain the 3 P’s: Power to act The purpose for which that power is to be exercised The procedure through which power is to be exercised Example: Does Art 45 (TFEU) have a legal basis?: No, it only states the purpose. Art 46 (TFEU) details the procedure, the actors which are involved in the process as well as a reference to 45 where it reiterates the purpose. After establishing the aim and an article which suffices the 3 p’s, you have found the legal basis and successfully passed the principle of conferral. In the Hands on the Wheel assignment, the aim of the proposition by the commission is to reduce traffic accidents and promote road safety, Article 91(1C) fits the aim the most while also providing a thorough legal basis by containing the 3 P’s. Next, the principle of subsidiarity needs to be consulted in order to assess whether this is in fact a EU competence. Principle of subsidiarity: Art. 5(3) TEU Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level Arguments why this would be approved under the principle of subsidiarity: Member states differing in applying these safety measures would undermine the single market because the producers would face challenges when different member states need different cars —> Would mean certain cars could not be imported It makes the most sense for safety measures to be implemented uniformly within the Union. The Commissions proposal has therefore also passed the principle of subsidiarity. The final principle is needs to adhere to is the principle of proportionality. Principle of proportionality: Art 5(4) Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties 1 Suitability= Is the measure suitable to achieve the aim → Does it have a point? 2 Necessity = Are the measures necessary? → can less restrictive measures be taken to achieve the same outcome? 3 Proportionality in the strict sense= Balance the interests affected (E.g. State and individual, do the positives of the measures weigh against the negatives of the other involved actors) After assessing the Hands on the Wheel assignment, we concluded that the proposal passed all these three steps. Second assignment: Educating European Citizens Issue 1: Rule 1: Principle of conferral → Aim of the proposal is to educate European citizens. Education is listed as a supporting competence in Art. 6 (e) of the TFEU. Art 2(5) states that the EU may not, under supporting competence, harmonize national laws. Art 165 (4) of the TFEU provides a legal basis by containing the 3 P’s, but again states that the EU cannot harmonize the laws, meaning that the EU is unable to force member states to adapt this as uniform European Law. In conclusion, the first issue of this assignment is not possible to adapt because with supporting competence the EU may not adapt legally binding uniform acts. Issue 2: The issue is whether a course on EU institutions can be designed and the EU can collaborate with willing Member States Rule 1: the principle of conferral (Art. 5(2), TEU (redefine the principle on the conferral) Aim of the proposal is to educate European citizens\ Tutorial 8: Super special legal basis-> 114 TFEU 3P’s for 114 TFEU Purpose: Establishment and functioning of the internal market (1)=> can adopt measures to improve the area (4 freedoms: movement of goods, peoples, capital, services) Procedure: OLP (1) + ESCC=> harmonize laws-> power to act this is not enough for this article-why?=> too broad article.=>more steps in the Vodafone case=> para 32: 1. According to consistent case-law the object of measures adopted on the basis of Article [114(1) TFEU] EC must genuinely be to improve the conditions for the establishment and functioning of the internal market.; 2. While a mere finding of disparities between national rules and the abstract risk of infringements of fundamental freedoms or distortion of competition is not sufficient to justify the choice of Article [114 TFEU] as a legal basis, the Community legislature may have recourse to it in particular where there are differences between national rules which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market=> the different rules of MS must create a real issue; 3. They can present a risk but it has to be likely + measure must be designed to prevent it. Case: I1: Article 114 TFEU? I2: 192 TFEU better legal basis? I3: Violation of the principles of subsidiarity and proportionality R1: Article 5(1) TEU-> starting point;... regulates EU actions; 1. Article 5(2) TEU conferral; to satisfy the conferral we need a competence, Article 4(2a)TFEU is internal market; 3Ps). 2. Indirect taxes Para. 54: the choice of a legal basis must rest on aim (Counter national fragmentations and to improve sustainability) and content (Harmonizing national laws). 3. Legal basis: match between aim and content (Yes). 4. Para 32 and 33 Vodafone case=conditions of article 114 TFEU: improve the internal market? yes; Different MS laws worsen the issue? yes  C1: it can be a legal base. R2: Article 192 TFEU-> 3Ps: purpose: Article 191 TFEU objectives; procedure: OLP (ESCCR); power to act: action (192(1) TFEU); issue with: does not mention the internal market; 193 TFEU creates more problems too- you cannot harmonize completely/ approximate laws. compatible to have two legal bases because both OLP=> 192 and 114 according to the tutors, BUT: Vodafone case Para. 36=> Moreover, provided that the conditions for recourse to Article [114 TFEU] as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that consumer protection is a decisive factor in the choices to be made. C2: Article 114 TFEU is ENOUGH. R3: Subsidiarity: Article 5(3) TEU: Vodafone case Para. 72: It is appropriate to recall that the principle of subsidiarity is referred to in the Art.5(3) – and given actual definition by the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Treaty –, which provides that the Community, in areas which do not fall within its exclusive competence, is to take action only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. That protocol, in paragraph 5, also lays down guidelines for the purposes of determining whether those conditions are met.=> It is fulfilled Proportionality: Article 5(4) TEU: Vodafone case Para 51-53=> In our case: Appropriateness: yes Necessity: yes=> not manifestly inappropriate Proportionality in the strict sense: yes Interests: consumers, environment, producers=> environment prevails. not having the required technical knowledge we assume that the Commission did the correct balancing. Vodafone case Para. 52: Thus the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. => the Court cannot check-too complicated issue. Vodafone case Para. 53: Furthermore, in assessing the burdens associated with various possible measures, it must examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators. Special power of the Commission: Vodafone case Para. 35: the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonized, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features. Subsidiarity: Article 5(3) TEU Principle of Subsidiarity: According to Article 5(3) TEU, the EU should only act when the objectives of a proposed action cannot be sufficiently achieved by Member States individually and can be better achieved at the EU level due to the scale or effects of the action. Vodafone Case, Paragraph 72: In the Vodafone case, this principle is emphasized. The Protocol on the Application of Subsidiarity and Proportionality (annexed to the Treaty) helps define this principle.  Specifically, paragraph 5 of the Protocol provides guidelines to determine whether the conditions for EU action are met. Conclusion: The subsidiarity principle is fulfilled in this case. Proportionality: Article 5(4) TEU Principle of Proportionality: Under Article 5(4) TEU, the EU must ensure that its actions are appropriate and necessary for achieving its objectives, without going beyond what is needed. Vodafone Case, Paragraphs 51-53: o Appropriateness: The measures are appropriate for achieving the goals. o Necessity: The measures are necessary and not manifestly inappropriate. o Proportionality in the Strict Sense: The principle is respected as the measures taken do not disproportionately harm any interests involved. Interests: In the case, the EU weighed different interests, such as those of consumers, the environment, and producers. The environment prevails as the most significant concern. Conclusion: Without the required technical expertise, it is assumed that the Commission did the correct balancing of interests. Court’s Role in Proportionality Assessment Vodafone Case, Paragraph 52: The Court does not need to assess whether the measure adopted was the only or best possible measure. The measure's legality can only be questioned if it is found to be manifestly inappropriate considering the objective pursued by the EU. However, in this case, the complexity makes it difficult for the Court to fully assess the measure. Vodafone Case, Paragraph 53: The Court must also consider whether the chosen measure’s objectives justify any potential substantial negative economic impacts on certain operators. Even in cases where economic harm exists, if the broader objectives are met, the measure may still be deemed lawful. Special Powers of the Commission Vodafone Case, Paragraph 35: The Treaty grants the Community legislature a degree of discretion, particularly in areas with complex technical aspects. This discretion allows the legislature to choose the most appropriate method of harmonization to achieve the desired results. The Commission holds the authority to determine the best approach to harmonization, particularly in technically complex fields. In summary, the subsidiarity and proportionality principles from Articles 5(3) and 5(4) TEU are crucial in ensuring that the EU only takes action when it is necessary and that the measures taken are appropriate and not excessive. The Vodafone case illustrates how these principles are applied, especially in complex regulatory environments where the Commission has broad discretionary powers. Tutorial 9: Issue1: How can annex be amended? (Delegating and implementing elements) Rule: Article 289 TFEU explains legislative act-> adopted through OLP/SLP Article 288 TFEU: regulations-> legally binding in entirety, directly applicable, no transposition. directives-> transposition, binding as to the result to be achieved, general application. decisions-> generally and individually applicable Delegated act: Article 290 (1) TFEU: -Legislative act defines objective, content, scope, duration; empowering the commission. -How is it applied?=> General application -What can we do with it?=> Supplement or amend non-essential elements (e.g.: everything nonpolitical, fundamental rights) Implementing act: Article 291 TFEU -Article 291 (2)-> Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer complementing power on the Commission, or, in duly justified specific cases and in the cases provided in an Articles 24 and 26 TEU, on the Council. -General or Individual application; non-essential Application: Do we have a legislative act here? -290 (1) -Does it touch on essential or non-essential elements -Do we have the delegation of power in the delegative act? (Article 5) (3) Commission is empowered to amend annexes to stop destruction of clothing -How should the delegative act be? A non-legislative act of general application -Is this a non-essential element? No, it is not. It is not political, but technical. Conclusion: The Commission can adopt delegated act. Issue2: Can JetBlue rely on the provisions? Rule: Art 2 (2) 500,000 > Schiphol: 500.000 yes DE(Direct effect): How do we know if something has direct effect? If it’s clear, precise and unconditional 1)Vertical (Van Gend en Loos)-> this is only about the Treaties 2)Horizontal (Defrenne)-> this is only about the Treaties Regulations: Direct effect: horizontal + vertical (Leonesio) Criteria for regulations: clear (vs. discretion), precise and unconditional How do we know if something is unconditional? Article 5 (2) of the Reg: is this clear and precise? Yes Can they go in front of a Dutch court and rely on it? Yes, because of Direct Effect of Art 5 (2) Conclusion: JetBlue can rely on the provision. Has legislator empowered the commission to act? =>NO-> No delegative implementing act! =>YES-> Does the act concern non-essential elements: No-> No delegative implementing act. Yes-> Amend-> delegative act (Article 290 TFEU), conditions: 1. Prior legislative act empowering the commission 290 (1); 2. Scope objectives, duration; 3. Non-essential elements; 4. General application; 5. May revoke 290(2). Implement=> implementing act (Article 291 TFEU), conditions: 1. Prior legislative act empowering the commission; 2. Non-essential=uniform conditions across MS 290 (2); 3. General and Individual application Tutorial 10: Parental leave Issue1: Can Thomas rely on the Directive against his employer? Rule0: Article 288 TFEU on the definition of the directives  Rule1: Dominguez case-> always start with indirect effect as it is the least intrusive way-> then direct effect, and if not possible-> state liability. RuleA: Indirect effect-> national courts have a duty to interpret national law in line with wording and purpose of EU law (Marleasing/ Von Colson case)-> Conditions/ Limitations: deadline has lapsed (Adeneler); national law to interpret (Pfeiffer); cannot be contra legem (Pupino)=> In our case: 2022, Yes, 60% instead of 70%=it is contra legem=> Indirect effect is not applicable. RuleB: Direct effect-> individuals can rely on EU law before national court-> Conditions: general conditions (Pohl-Boskamp); transposition has to lapse (Ratti), not transposed at all (Van Duyn) or incorrect transposition/or not applicable (Mark and Spencer); vertical conflict or state vs private party> broad interpretation of state (verticalization)=> private bodies under the control of the state (Foster), local or regional authorities, such as municipality (Costanzo), organs of state (Marshall), private law body doing a task in the public interest (Farrell). Application: transposition lapsed; incorrectly transpose; it is a private body under the control of a state (Farrell); it is clear, precise and unconditional (no discretion on part of the Member States; has to be applied as it is) Conclusion: Yes, Thomas can invoke the Directive against his employer Parental leave Issue: Rule0: Dominguez case-> always start with indirect effect as it is the least intrusive way-> then direct effect, and if not possible-> state liability. RuleA: Indirect effect-> national courts have a duty to interpret national law in line with wording and purpose of EU law (Marleasing/ Von Colson case)-> Conditions/ Limitations: deadline has lapsed (Adeneler); national law to interpret (Pfeiffer); cannot be contra legem (Pupino) ApplicationA: deadline lapsed; no national law since the Netherlands never correctly transpose the Directive and define the payment=> it is contra legem. t. RuleB: Direct effect-> individuals can rely on EU law before national court-> Conditions: general conditions (Pohl-Boskamp); transposition has to lapse (Ratti), not transposed at all (Van Duyn) or incorrect transposition/or not applicable (Mark and Spencer); vertical conflict or state vs private party> broad interpretation of state (verticalization)=> private bodies under the control of the state (Foster), local or regional authorities, such as municipality (Costanzo), organs of state (Marshall), private law body doing a task in the public interest (Farrell). ApplicationB: deadline has lapsed; not transposed; it is not vertical because it is private party vs private party; payment network must be defined by the Member States Conclusion: Thomas cannot rely on Directive 2019/1158 to claim payment for the parental leave he requests against his employer, Essent, as they are both private person and private company, respectively, and the Directive has vertical horizontal effect. RC: State liability-> the EU law must confer rights on individuals; the breach has to be sufficiently serious-> the rule is sufficiently clear=breach is sufficiently breached; CJEU defines the infringement (Brasserie du Pêcheur), failure to transpose (Dillenkofer), Member States has no discretion (Lomas), not sufficiently clear rule=not sufficiently serious breach (British telecom); direct causal link between the breach of the EU law rule by the State and the damage sustained by the injured parties=> all of these conditions are in the Brasserie du Pêcheur case! Application: paid parental leave is the right; the failure to transpose (Dillenkofer) is sufficiently breached; Thomas suffered financial damage. Conclusion: Thomas can bring a successful state liability claim against the Netherlands for its failure to correctly implement Directive 2019/1158 on work-life balance for parents and carers, potentially recovering financial damages for his unpaid parental leave. Tutorial 12: Preliminary reference procedure (Article 267 TFEU) -> A court is unsure about interpretation (of all the EU acts) and validity (but not of the treaties!) -> (Syfait) Any national court/ tribunal; has to be independent, permanent, compulsory jurisdiction; applies the rule of law; interprets procedure -> Necessity of the question: question is not necessary when it is hypothetical, when it is not relevant to the case -> General rule: the courts “may” BUT “Duty to refer when there is no judicial remedy” BUT they have no duty to refer (CILFIT criteria: Acte eclaire-> previous decision of court dealt with point of law=materially identical; Acte clair-> when correct application is beyond reasonable donut= (Consorzio Italian Management) obvious to all court in MS has to come to the same answer minding language and legal concepts)=> regarding interpretation -> Validity of EU law: any court -> Consequences are binding and nullification 1. Misleading price announcements Preliminary reference procedure Article 267 TFEU -> Jurisdiction of CJEU: => Interpretation-> Conditions: to have court/ tribunal that has to be independent, compulsory, established by law, rule of law; the question has to be necessary and cannot be hypothetical or irrelevant; general rule that the court has no obligation BUT duty when there is no judicial remedy BUT no duty to refer if CILFIT exceptions apply (Acte clair-> application is so obvious there is no need to doubt it Para 16, and Acte eclaire-> identical case Para 14) => Validity-> Conditions: to have court/ tribunal that has to be independent, compulsory, established by law, rule of law; the question has to be necessary and cannot be hypothetical or irrelevant; Foto-Frost case states that “All national courts are under a duty to refer a preliminary request when the validity of EU law is in doubt”=> they have to refer it only if they are in doubt 1st question: nothing precludes the civil court from referring (the steps above are applied); 2nd question: based on the steps above, they HAVE the obligation to send a question to the Court 3rd question:The civil court is not obliged to send a reference as this is the Acte éclairé exception from CILFIT that covers that courts are not obliged to refer to a preliminary request if previous decisions of the court already ruled on the same point. 4rd question: If they have doubts regarding the validity then they have to send a question, otherwise not really. 2. Mr. X Preliminary reference procedure (Article 267 TFEU) -> Jurisdiction of CJEU: => Interpretation-> Conditions: to have court/ tribunal that has to be independent, compulsory, established by law, rule of law; the question has to be necessary and cannot be hypothetical or irrelevant; general rule that the court has no obligation BUT duty when there is no judicial remedy BUT no duty to refer if CILFIT exceptions apply (Acte clair-> application is so obvious there is no need to doubt it Para 16, and Acte eclaire-> identical case Para 14) 1st question: based on the guidelines above they have obligation since it is a constitutional court, acte eclaire-> there is already an identical case since K.a and others case, not acte clair because the correct application is not obvious to all MS since in this case its mentioned the two courts in the Netherlands=> they HAVE an obligation to refer State liability (Brasserie and Kobler)-> broadens state liability to court decisions -> ”the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious (where the rule is sufficiently clear then the breach is sufficiently serious); and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.” 2nd question: the “right” here is to stay on EU territory due to dependency; Article 267 TFEU does NOT have a direct effect and does NOT confer rights on individuals!!! No sufficiently clear rule, therefore the breach is not serious since no clear definition on dependency=> the German Constitutional Court made no wrong decision o Question of validity → national court must refer reference to CJEU if doubt about validity EU law (Foto Frost) o Question of interpretation: o Article 267 TFEU, paragraph two: any national court of tribunal 'may' refer reference o Article 267 TFEU, paragraph three: a national court or tribunal against whose decisions there is no remedy under national law (court of last instance - Acquino) 'shall' refer a question o The obligation under Art 267 TFEU, paragraph three, does not exist if one of the CILFIT exceptions applies 1. When CJEU has already dealt with the point of law in question (CILFIT) 2. When the correct application of EU law is so obvious that there cannot be scope for reasonable doubt (CILFIT) o The matter must be equally obvious to the courts of other member states o National court must take into account different language versions and that legal concepts have different meanings in different member states1 1 Tutorial 13 Case1 Art 51 of the Charter Scope—>when the MS is implementing EU law 1. When the national measure is intended to implement EU law (when the MS has to transpose the law) -Hernandez 2. When the MS is derogating —>the derogation must comply (free movement of ppl—>during Covid they derogated the free movement, based on public health) -ERT 3. When EU law is imposing a specific obligation on MS -Hernandez Apl. 1. They are not implementing 2. They do not derogate 3. This applies —>the Charter can apply; the court is going to say that the Article 21 of the Charters is Art. 52 Provided for by law Must respect the essence Proportionality Suitable to meet the objectives of general interest or the need to project the rights and freedoms Necessary Proportionate in strict sense 1. Historical Development of EU Fundamental Rights Original Treaties (1957): The Rome Treaties did not mention human rights. Supremacy Issue: Problems arose due to EU law’s supremacy over national constitutions (e.g., Internationale Handelsgesellschaft). German Constitutional Court Objection (Solange I): It declared that unless the EU protected fundamental rights like Germany’s constitution, the German constitution would prevail in conflicts.  Court of Justice Response: Stauder Case: Confirmed protection of human rights as part of EU law principles. Nold Case: Established that international treaties (e.g., ECHR) guide EU law, even if the EU is not a member. Solange II: German Court accepted that it would not review EU laws if the EU provided adequate fundamental rights protection. 2. Charter of Fundamental Rights Initially adopted in 2000 as the EU’s Bill of Rights but non-binding. Treaty of Lisbon (2009): Made the Charter legally binding and gave it the same status as EU treaties (Article 6 TEU). Article 6 TEU recognizes the Charter, ensures interpretation according to EU principles, and requires EU accession to the ECHR. 3. Scope and Application of the Charter Chapters I-VI: Detail fundamental rights, many of which align with those in the ECHR or national constitutions. Chapter VII: Outlines the scope and interpretation of Charter rights. Article 51: The Charter applies to: EU institutions in all actions. Member States only when implementing EU law. Scenarios of implementation: When national measures implement EU law (e.g., a directive). When derogations from EU law must comply with the Charter. When EU law imposes specific obligations on Member States. 4. Limitations on Charter Rights (Article 52) Rights can be limited but must: Be legally provided. Respect the essence of the right. Meet objectives of general interest or protect others’ rights. Be necessary and proportionate. Example: A law limiting free speech to combat hate speech is acceptable if it meets these criteria. 5. EU Accession to the ECHR The EU is obliged to join the ECHR but has not yet succeeded due to compatibility issues (Opinion 2/13 of the CJEU). Negotiations restarted in 2021 to draft a compatible agreement. Private parties can do 2procedures: 1. Annulment 2. Preliminary reference Preliminary reference: Validity of EU law Art 267(1) 1. Court—>Independent, apply the rule of law, inter partes, established by law Art 267(2) 2. Necessity—>question: non-hypothetical or irrelevant Art 267(2) 3. All the courts when in doubt (up to CJEU to decide whether EU law is valid or not) a. Foto-frost case Interpretation all EU law Art 267(1) 1. Court or tribunal—> Art 267(2) 2. Necessity—> Art 267(2) 3. Can but not obliged—> Art 267(3) a. But courts against whom there are no remedies —>obligations Exceptions -CILFIT Acte ecaire—>identitical cases Acte clair—>obvious, to all MS (differences, languages and legal conceptions) -Concorsio