International Relations
The (Non-) Implementation of EU
Law
Bedanna Bapuly
Selected Problems of Contemporary EU Law
Brno, 15 November 2011
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Contents
•  The Implementation of EU Law
•  The Challenges for Law Applicants
•  The Interplay of Legal Orders: Case-Law
•  The Non-Implementation of EU Law
20.11.2011 2
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20.11.2011 3
Preliminary Remarks
•  How to find the case-law?
http://eur-lex.europa.eu/en/index.htm
http://curia.europa.eu/jcms/jcms/Jo1_6308/curia
•  How to quote the case-law correctly?
Date, case number, name, European Court Report
(ECR), year, page, para.
ECJ 19.11.1991, Case C-6/,9/90, Francovich,
ECR 1991, I-5357, para.37.
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Preliminary Remarks
•  How to find the consolidated version of
the TEU and the TFEU (including tables
of equivalences)?
http://eur-lex.europa.eu/JOHtml.do?
uri=OJ:C:2010:083:SOM:EN:HTML
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The Implementation of EU Law
•  Transposition of EU Law
•  Application of EU Law
•  Enforcement of EU Law
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What is to be implemented?
The Sources of EU Law
•  Primary EU Law
Founding Treaties (TEU, TFEU)
Accession Treaties
Treaty Amendments, Supplementary Treaties (incl.
Annexes, Protocols)
General Principles of EU Law (ECJ)
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What is to be implemented?
The Sources of EU Law
•  Secondary EU Law art. 288 TFEU
Regulations (Reg. (EC) no/year)
Directives (Dir. no/year/EEC)
Decisions
Recommendations & Opinions (non binding!)
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What is to be implemented?
•  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.
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What is to be implemented?
International Agreements of the EU+MS
•  Form an integral part of EU law
Cases Haegeman, Kupferberg
•  „Mixed Agreements“
•  Interpretation: wording, context, objective, clear and
unconditional
•  Direct applicability
Cases Pabst&Richarz, Breciani
•  Association Council Decisions (ACD)
Cases Demirel, Sevince, Wählergruppe Gemeinsam
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What is to be implemented?
The Sources of EU Law
•  Case-law of the ECJ
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The Interplay of Legal Orders Art 19 TEU
(1)The Court of Justice of the European Union shall
include the Court of Justice, the General Court and
specialised courts. It shall ensure that in the
interpretation and application of the Treaties the law
is observed.
Member States shall provide remedies sufficient to
ensure effective legal protection in the fields
covered by Union law.
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The Interplay of Legal Orders Art 19 TEU
(3) The Court of Justice of the European Union
shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an
institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts
or tribunals of the Member States, on the
interpretation of Union law or the validity of acts
adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
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The Interplay of Legal Orders Art 267 TFEU
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;
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The Interplay of Legal Orders Art 267 TFEU
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.
Where any such question is raised in a case
pending before a court or tribunal of a Member
State against whose decisions there is no judicial
remedy under national law, that court or tribunal
shall bring the matter before the Court. 14
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The Interplay of Legal Orders Art 267 TFEU
If such a question is raised in a case pending
before a court or tribunal of a Member State with
regard to a person in custody, the Court of Justice
of the European Union shall act with the minimum
of delay.
(Urgent Preliminary Ruling Procedure)
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The ECJ decides
•  whether the case is still pending
•  whether a specific question on EU law is raised
BUT the ECJ
•  does not answer general or hypothetical
questions
•  does not submit opinions (exceptions, though) 16
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The ECJ ...
•  Decides on the validity of EU law
•  Interpretes EU law
•  Judgments are binding
•  Does NOT decide on whether national law is in
compliance with EU Law
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CILFIT criteria*
A domestic court** of last instance is not required
to make a preliminary reference,
•  where the question of interpretation is irrelevant,
•  where the ECJ has already ruled on the point, or
in a case
•  where the interpretation of Community law is selfevident
(i.e. correct interpretation of the relevant provision is so
obvious that it is beyond any reasonable doubt).
* ECJ 6.10.1982, Case 283/81, CILFIT, ECR 1982, p. 3415, para. 21,10, 16.
** “court“ ECJ C-54/96 Dorsch Consult: - established by law,
permanent, - compulsory jurisdiction, - procedure inter partes,
applies rules of law, - independent.
All language versions! Courts of all MS incl. ECJ share this conviction! 18
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Challenges to the Law Applicant
Principle of sincere cooperation: Art 4 (3) TEU
Pursuant to the principle of sincere coopeation, the Union
and the MS shall, in full mutual respect, assist each other in
carrying out tasks which flow from the Treaties.
The MS shall take any appropriate measure, general or
particular, to ensure fulfilment of the obligations arising out of
the Treaties or resulting from the acts of the institutions of the
Union.
The MS shall facilitate the achievement of the Union‘s tasks
and refrain from any measure which could jeopardise the
attainment of the Unions‘s objectives. 19
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Challenges to the Law Applicant
•  Is EU Law decisive?
•  What are the EU law questions at stake?
•  Has the ECJ already ruled on the interpretation?
•  Is there an obligation to refer the case?
•  What is a „court“ in terms of art. 267 TFEU?
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Challenges to the Law Applicant: Reference
•  Abstract summary of the decisice legal questions
•  Reasoning: facts of the case, applications of the
parties, legal framework
•  Specific use of the interpretation
•  Forward the files -> registered letter to LUX
•  Stay the domestic legal proceedings 21
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The Interplay of Legal Orders: Consequences
•  Legal positivism
•  Hierarchy of Norms
•  Principle of Legality
•  Case-law
•  Cooperation with the ECJ
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What is EU Case-Law about?
•  Effects of EU law
•  EU law – domestic law – international law
•  Protection of fundamental rights & freedoms
•  Interpretation of policy fields
•  General principles of EU law
FR of ECHR and constitutional traditions common to the MS art 6(3) TEU
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Direct Effect of EU Law
Van Gend & Loos
•  Art. 12 EEC (then art 25 EC now: art. 30 TFEU)
„Customs duties on imports and exports and
charges having equivalent effect shall be
prohibited between Member States. This
prohibition shall also apply to customs duties of a
fiscal nature.“
•  Art. 267 TFEU (ex-art. 234EC/177 EEC) 24
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Van Gend & Loos
•  What is the legal nature of EU law?
•  What does direct applicability mean?
•  Which legal order sets the prerequisites for the
direct application of EU law?
•  Which legal acts are directly applicable?
•  Which prerequisites have to be fulfilled for a
norm is directly effective? 25
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Direct enforceability- applicability - effect
•  Direct enforceability = EU norm is in force and
thus the norm is part of the domestic legal order
(no transformation required)
•  Direct applicability = enforceable norms, which
confer rights (obligations) on the individual
•  Direct effect = natural and legal persons can
invoke their Communautarian rights before
domestic courts /authorities
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Direct Effect of EU Law
Van Duyn
•  Art. 45 TFEU (ex-art. 39 EC/48 EEC):
free movement of workers
"1. Freedom of movement for workers shall be secured
within the Union...
2. Such freedom of movement shall entail the abolition of
any discrimination based on nationality between workers of
the member states, as regards employment,...
3. It shall entail the right, subject to limitations justified on grounds
of public policy, public safety or security...;
(a) to accept offers of employment actually made,...
(c) to stay in a member state for the purpose of employment in
accordance with the provisions governing the employment of
nationals of that state laid down by law,..."
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Van Duyn
•  Directive 64/221/EEC
"Measures taken on grounds of public policy or of
public security shall be based exclusively on the
personal conduct of the individual concerned.“ =>
•  The ECJ recognises the direct effect not only of the
provisions of the Treaties (Article 45 TFEU“ex Article
39/48 EC”), but also of the directives laid down for their
application (Article 3 Directive 64/221/EEC).
•  It interprets the notion of 'public policy' as a
justification for derogating from a fundamental
principle of Community law: the freedom of movement
of workers.
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Supremacy
Costa/ENEL
•  Article 37 (ex art 31)
1. Member States shall adjust any State monopolies of a commercial
character so as to ensure that no discrimination regarding the conditions
under which goods are procured and marketed exists between nationals of
Member States. The provisions of this Article shall apply to any body through
which a Member State, in law or in fact, either directly or indirectly supervises,
determines or appreciably influences imports or exports between MS. These
provisions shall likewise apply to monopolies delegated by the State to others.
2. Member States shall refrain from introducing any new measure which is
contrary to the principles laid down in paragraph 1 or which restricts the scope
of the articles dealing with the prohibition of customs duties and quantitative
restrictions between Member States. 29
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Uniform Application
Simmenthal II
•  „DIRECT APPLICABILITY OF COMMUNITY LAW MEANS THAT ITS
RULES MUST BE FULLY AND UNIFORMLY APPLIED ....
•  DIRECTLY APPLICABLE PROVISIONS ARE A DIRECT SOURCE OF
RIGHTS AND DUTIES FOR ALL THOSE AFFECTED THEREBY,
WHETHER MEMBER STATES OR INDIVIDUALS;
•  .... ANY NATIONAL COURT WHOSE TASK IT IS AS AN ORGAN OF A
MEMBER TO PROTECT THE RIGHTS CONFERRED UPON
INDIVIDUALS BY COMMUNITY LAW.“
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Principle of Precedence
Simmenthal II
Provisions of the Treaty and directly applicable measures
•  render automatically inapplicable any conflicting domestic
provision ...
•  preclude the valid adoption of national norms to the extent
they would be incompatible with EC law.
•  Recognition of such norms corresponds to the denial of the
effectiveness of obligations undertaken ... thus would
imperil the very foundations of the Community.
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Simmenthal II
•  Why is the ECJ still competent to decide on the
matter?
•  The relationship between EU and domestic law?
•  Please explain the principle of precedence
•  Who decides on the compliance between
national and supranational law?
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General Principles of EU Law
Derive from common legal principles of the MS or gen. pr. of Int. Law
•  Fundamental Rights (Cases Stauder, Int. Handelsges., Nold)
•  Principle of proportionality -> art 5 TEU, Protocol 2
•  Principle of subsidiarity -> art 5 TEU, Protocol 2
•  Principle of legal certainty (non-retroactivity, legitimate
expectations)
•  Principle of equality before the law
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Principles of Equivalence and Effectiveness
...it is for the domestic legal system of each Member State to
designate the courts and tribunals having jurisdiction and to
lay down the detailed procedural rules governing actions for
safeguarding rights which individuals derive from Community
law, provided, first, that such rules are not less favourable
than those governing similar domestic actions (principle of
equivalence) and,
secondly, that they do not render virtually impossible or
excessively difficult the exercise of rights conferred by
Community law (principle of effectiveness)
See, inter alia, Case 33/76 Rewe, ECR 1976, 1989, para 5,
and Case C-255/00 Grundig Italiana , ECR 2002, I-8003, para 33.
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Mistakes in the Implementation of EU Law
Terminology
ECJ 3.7.1986, Case 66/85, Lawrie Blum, ECR 1986, 2121, para 16 et seq
Since freedom of movement for workers constitutes one of the fundamental
principles of the Community, the term 'worker' in Article 48 may not
be interpreted differently according to the law of each MS but has a
Community meaning. Since it defines the scope of that fundamental freedom,
The Community concept of a 'worker' must be interpreted broadly (Case
53/81 Levin).
17 That concept must be defined in accordance with objective criteria which
distinguish the employment relationship by reference to the rights and duties
of the persons concerned. The essential feature of an employment
relationship, however, is that for a certain period of time a person performs
services for and under the direction of another person in return for which he
receives remuneration. 35
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Mistakes in the Implementation of EU Law
Temporary Effect of EU Law
ECJ 2.10.1997, Case C-122/96, Saldanha, ECR 1997, I-5325, para 14
In view of the fact that the Act of Accession contains no specific
conditions whatsoever with regard to the application of Article 6 of
the Treaty, the latter provision must be regarded as being
immediately applicable and binding on the Republic of Austria from
the date of its accession, with the result that it applies to the future
effects of situations arising prior to that new Member State‘s
accession to the Communities. From the date of accession,
therefore, nationals of another Member State can no longer be made
subject to a procedural rule which discriminates on grounds of
nationality, provided that such a rule comes within the scope ratione
materiae of the EC Treaty.
=> Para 24 36
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Mistakes with regard to art 267 TFEU
•  Violation of the obligation to refer
•  Multiple References
•  Inadmissible questions
•  Questionable withdrawal
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Non-Implementation: Consequences
•  Infringement Pocedure art 260 TFEU
1. If the Court of Justice of the European Union finds that a Member
State has failed to fulfil an obligation under the Treaties, the State
shall be required to take the necessary measures to comply
with the judgment of the Court.
2. If the Commission considers that the Member State concerned has
not taken the necessary measures to comply with the judgment of
the Court, it may bring the case before the Court after giving that
State the opportunity to submit its observations. It shall specify
the amount of the lump sum or penalty payment to be paid by the
Member State concerned which it considers appropriate in the
circumstances.
•  If the Court finds that the Member State concerned has not
complied with its judgment it may impose a lump sum or
penalty payment on it.
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Non-Implementation: Consequences
•  Infringement Pocedure art 260 TFEU
3. When the Commission brings a case before the Court pursuant to
Article 258 on the grounds that the Member State concerned has
failed to fulfil its obligation to notify measures transposing a
directive adopted under a legislative procedure, it may, when it
deems appropriate, specify the amount of the lump sum or
penalty payment to be paid by the Member State concerned
which it considers appropriate in the circumstances.
•  If the Court finds that there is an infringement it may impose a
lump sum or penalty payment on the Member State concerned
not exceeding the amount specified by the Commission. The
payment obligation shall take effect on the date set by the Court
in its judgment.
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Non-Implementation: Consequences
•  Infringement Pocedure
ECJ 9.12.2003, Case C-129/00, COM vs Italy, ECR 2003, I-14637, para 29
A Member State's failure to fulfil obligations may, in principle,
be established under Article 226 EC whatever the agency of
that State whose action or inaction is the cause of the failure
to fulfil its obligations, even in the case of a constitutionally
independent institution
(Case 77/69, Commission vs Belgium, ECR 1970, ECR 237,
para. 15)
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Non-Implementation: Consequences
•  Infringement Pocedure
ECJ 9.12.2003, Case C-129/00, COM vs Italy, ECR 2003, I-14637, para 41
In the light of the foregoing considerations, it must be declared
that, by failing to amend Article 29(2) of Law No 428/1990,
which is construed and applied by the administrative
authorities and a substantial proportion of the courts, including
the Corte suprema di cassazione, in such a way that the
exercise of the right to repayment of charges levied in breach
of Community rules is made excessively difficult for the
taxpayer, the Italian Republic has failed to fulfil its obligations
under the EC Treaty. 41
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Non-Implementation: Consequences
•  Infringement Pocedure
ECJ 9.12.2003, Case C-129/00, COM vs Italy, ECR 2003, I-14637, para 41
Domestic jurisprudence may represent the ground of an
infringement, considerng
- rank of the decision
- structural failure to comply
- implication of domestic decisions on the
objectives of the Treaties
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Non-Implementation: Consequences
•  State Liability
ECJ 30.9.2003, Case C-224/01, Köbler II, ECR 2003, I-10239, para 32
In international law a State which incurs liability for breach of
an international commitment is viewed as a single entity,
irrespective of whether the breach which gave rise to the
damage is attributable to the legislature, the judiciary or the
executive. That principle must apply a fortiori in the
Community legal order since all State authorities, including the
legislature, are bound in performing their tasks to comply with
the rules laid down by Community law which directly govern
the situation of individuals
(Brasserie du Pêcheur and Factortame, cited above, para 34). 43
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Non-Implementation: Consequences
•  State Liability
ECJ 30.9.2003, Case C-224/01, Köbler II, ECR 2003, I-10239, para 32, 59
Member States are obliged to make good damage caused to
individuals by infringements of Community law for which they
are responsible is also applicable where the alleged
infringement stems from a decision of a court adjudicating
at last instance where the rule of Community law infringed is
intended to confer rights on individuals, the breach is
sufficiently serious and there is a direct causal link
Between that breach and the loss or damage sustained by the
injured parties. 44
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Non-Implementation: Consequences
•  State Liability
ECJ 30.9.2003, Case C-224/01, Köbler II, ECR 2003, I-10239, para 59
In order to determine whether the infringement is sufficiently
serious when the infringement at issue stems from such a
decision, the competent national court, taking into account the
specific nature of the judicial function, must determine whether
that infringement is manifest. It is for the legal system of each
Member State to designate the court competent to determine
disputes relating to that reparation.
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