1

Seminar on General Principles of EU Law

Organised by TAIEX in cooperation with the Turkish Ministry of Justice

Ankara, Turkey, 04-05 November 2010

Horstpeter Kreppel

Judge at the Civil Service Tribunal of the European Union, Luxembourg

The opinions expressed here are exclusively the personal view of the speaker

Overview of procedures before the Court of Justice of the EU

2

Introduction

Imagine there is European Union law

and nobody is applying it !

We need to have mechanisms to enforce

European Union law

otherwise

No primacy of European Union law

3

Overview (I)

The instruments before the European Union Judiciary are:

• References for a preliminary ruling

(Art. 267 TFEU, ex-Art. 234 EC)• Infringement proceedings (Art. 258 TFEU, ex- Art. 226

EC)• Direct actions (Art. 263 TFEU, ex-Art. 230 EC)

– By EU-institutions and memberstates– By individuals and legal persons– Subsidiarity control (Art. 5 TEU in combination

with 2nd Protokoll)

4

Overview (II)

• Actions for failure to act (Art. 265 TFEU, ex-Art. 232 EC)

• Actions for damages (Arts. 268 and 340 TFEU, ex-Arts. 235 and 288 EC)

• Actions of EU-civil servants (Art. 270 TFEU, ex-Art. 236 EC)

• [Cases before national judiciary – the role of the national judge as Union judge (Art. 4 TUE, replaces in substance Art. 10 EC)]

5

The Structure of the European Union Judiciary

Court of Justice 1952, then 6, now 27 judges+8 advocate generals, competent primarily for preliminary rulings and infringement procedings, direct actions of EU-institutions and Member states, since 1988 also for appeals against decision of the General Court

General Court1988, than 12, now 27 judges, competent primarily for direct actions by individuals and legal persons, since 2005 also for appeals from the Civil Service Tribunal

Civil Service Tribunal2005, 7 judges, competent for disputes of civil servants and other employees of European institutions

6

Reference for preliminary ruling (I)

Art. 267 TFEU, ex Art. 234 EC:„The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:(a) the interpretation of the Treaties;(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;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 to give a ruling thereon. ...“

7

Reference for preliminary ruling (II)

• Prerequisites for a Reference for a preliminary ruling– Case before a national court

• All types of courts/tribunals• Not arbitration boards, administrative organs• No matter on which hiarchical level

– Necessary to solve the case before the national court, no hypothetical questions

8

Reference for preliminary ruling (III)

– Form of the preliminary question• Interpretation of EU-law or • Review of the validity of an act of EU-law, • but no competence to annul provisions of EU-

Treaties• No competence to declare a national rule invalid

because of violation of EU-law

9

Reference for preliminary ruling (IV)

• Obligation for a Reference for preliminary ruling– If last instance court, that is, if the decision cannot

be appealed– Exception: acte claire doctrine (ECJ:CILFIT 1982)– Always obligation, if validity of EU-act is at stake

• Facultative possibility– If not last instance court – Depends on national procedural law, if order for a

reference is binding or can be appealed

10

Reference for preliminary ruling (V)

• Written procedure:– Submission of questions by national court– Translation in all languages– Notification by registrar to parties, to all Member

states and the EU-institutions– Publication in Official Journal– Written observations of those, who are eligible to

participate, especially for Commission (amicus curia) within 2 months

11

Reference for preliminary rulings (VI)

• Oral procedure:– Rapport prealable and Report for the hearing by

Judge-Rapporteur – Oral hearing– Conclusions of the Advocate General

• Decision – after deliberation – by majority of formation

12

Reference for preliminary rulings (VII)

• Publication– on internet (ww.curia.europa.eu) and – in the European Court Reports, ECR

(in all languages)

• Effects of decision– Binding on national judge in specific case– Precedence for all jurisdictions and public

authorities

13

References for preliminary rulings (VIII)

• The most important mechanism for– Development of EU-law– Safeguarding the uniformity of EU-law– Total number of cases of ECJ (1953-2009): 16.221

of which 6.620 preliminary rulings

14

References for preliminary rulings (IX)

• Problems– No direct rights of parties, only national judge– After submission of the reference no further involvement

of the national judge– Length of procedure

• normal procedure: medium 17 months, • accelerated and urgent procedure, PPU (Art. 23 a Statut ECJ,

Art. 104 a, 104 b of Rules of Procedure ECJ), medium 2,5 m

– Costs

• Future– Different proposals, especially revision of CILFIT

15

Infringement procedure (I)

Art. 258 TFUE, ex-Art. 226 EC:

“If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.“

16

Infringement procedure (II)

• Member States are held under Art. 4 TEU, ex-Art. 10 EC to fullfil obligations under this Treaty

• Member States includes Legislative, Executive as well as Judiciary

• Commission‘s role as guardian of the Treaties

• Infringement procedure serves to enforce the application of EU-law by Member States

• Burden of proof lies on the Commission

17

Infringement procedure (III)

• Compulsory pre-litigation stage– Letter of formal notice – Reasoned Opinion

• Written and oral procedure • Decision by majority of formation

– Either finds the infringement established– Or dismisses the application– ECJ may limit the temporal effects

• Publication

18

Infringement procedure (IV)

• Effects of decision– Judgement finding infringement purely

declaratory– Member State must proceed immediatly and

comply as soon as possible– Judgement may constitute the basis for State

liability

(Francovic and Köbler jurisprudence)

19

Infringement procedure (V)

• Sanctions for failure to comply with judgement– Commission can start a second infringement

procedure for non-compliance– ECJ can impose on Member State a lump sum

or penalty payment (Art. 260 para 2 TFEU, ex-Art. 228 para 2 EC)

20

Infringement procedure (VI)

• Important instrument – Total number of cases of ECJ (1952-2009): 16.221

of which 3.421 infringement procedures– Infringement procedure can be effective

• Limitations– Only Commission, not individuals– No obligation, often political decision– Cumbersome, especially in cases of insufficient

transposition of directives, medium length 17 m

21

The Role of the national judge as EU-judge (I)

• Besides the reference for preliminary rulings and the infringement procedures, decided by the ECJ, a third mechanism to ensure the application of EU-law exists, which resides purely on the national level:

• We will discuss now the role of the national judges in their function as EU-judges

22

The Role of the national judge as EU-judge (II)

• National judge has in general to apply EU-law as part of the Member State‘s obligation under Art. 4 TEU, ex-Art. 10 EC, where a case falls into the field of application of EU-law

• However, this obligation depends on the nature of the EU-law, which has to be applied in the specific case before the national judge, whether it is general binding and directly applicable or not

23

Excurs: Hierarchy of EU-norms (I)

Which EU-norms are directly applicable?• Generally binding and directly applicable:

– General principles

– Treaty norms

– Charter of Fundamental Rights

(now incorperated by Art. 6 TEU)

– Regulations

– Decisions (but only for the addressee of the decision)

• however only under the condition that the EU-

norm is clear, precise and unconditional

(direct effect)

24

Excurs: Hierarchy of EU-norms (II)

• Not binding and therefore not directly applicable– The aforementioned norms, if they are not clear,

precise and unconditional– Recommandations– Soft law

• Special case: Directives– It depends, can be binding in some cases

25

The role of the national judge as EU-judge (III)

• Where the EU-law is directly applicable, what can the national judge do, if confronted with a national rule in conflict with this EU-norm?

• Two possibilities:– Obligation to interpret national law in conformity

with EU-law (consistent/harmonious interpretation)

– Power to set aside the conflicting national provision (not in all cases)

26

Method of interpreting national law in conformity with European Union law (I)

• The national judge has to interpret a national legislation, which is conflicting with a directly applicable EU-provision, in such a way, as to assure the compliance with the EU-provision (effet-utile)

• Fundamental: ECJ:Von Colson (1984)

27

Method of interpreting national law in conformity with European Union law (II)

• What methods of national interpretation are there?

– Interpretation in terms of the wording– Systematic interpretation – Historic interpretation – Objective-teleological interpretation – In Germany 2 additional methods developed by

Federal Constitutional Court:• Method of reduction in conformity with the Constitution

• Interpretation in conformity with international law

28

Method of interpreting national law in conformity with European Union law (III)

• Obligation for the national judge to select among the methods of interpretation the method which allows to make the national rule compatible with the EU-law (ECJ:Pfeiffer 2004), this includes

• Obligation to select the method of interpretation, which

“enables … a provision of domestic law … to be restricted to that end by applying it only in so far as it is compatible with the rule concerned …“ (Pfeiffer, point 116)

29

Power to set aside national law which is in conflict with EU-law (I)

• What can the national judge do, if the national methodology does not allow to interprete the national rule in such a way as to make the national rule in compliance with a directly applicable EU-norm?

30

Power to set aside national law which is in conflict with EU-law (II)

• Fundamental: ECJ Simmenthal (1978): “A national court which is called upon, …is under a duty to give

full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, …, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means.“Similarly: Ratti, Faccini Dori, Arcaro, Kurz, Riksskattevet, Pflücke

• Therefore, possibility of any national judge to set aside the national law, even if the national judicial system restricts this right normally to a constitutional court

31

Power to set aside national law which is in conflict with EU-law (III)

• This power to set aside the national rule in cases, where the national rule is in conflict with a direct applicable EU-norm is generally accepted in vertical cases (individual against state).

• In horizontal cases (individual against individual) this power to set aside the national rule is accepted only if the national rule contravenes general principles of EU-law, treaty provisions, fundamental rights or regulations

ECJ, judgement of 19/01/2010, C-555/07, Kücükdeveci point 52 (age-discrimination case)

32

Power to set aside national law which is in conflict with EU-law (IV)

• Where there is no direct and binding EU norm, the national judge cannot intervene

• In such cases the only remedy is either

– An Infringement procedure against the Member state or

– A State liability case for not respecting EU norms

33

Conclusion (I)

• The aim of this contribution was to explain the three most important mechanisms to ensure the applicability of EU-law:

– The reference for a preliminary ruling

– The infringement procedure

– The harmonius interpretation and the power to set aside national legislation contrary to EU-law by the national judge in his function as EU-judge

34

Conclusion (II)

• Future:

It remains to be seen, how the cooperation between the ECJ and the national judiciaries will develop to ensure the uniform application of EU-law in all Member states

35

ENDEND

Thank you for your attention