Post Chernobyl Case, pp. 131132

1
Post Chernobyl Case, pp. 131-132

• In carrying out that task the Court cannot, of
  course, include the Parliament among the
  institutions which may bring an action . . .
  without being required to demonstrate an interest
  in doing so.
• However, it is the Courts duty to ensure that
  the provisions of the treaties concerning the
  institutional balance are fully applied and to
  see to it that the Parliaments prerogatives,
  like those of the other institutions, cannot be
  breached without it having available a legal
  remedy among those laid down in the treaties,
  which may be exercised in a certain and effective
  manner.

Nick Gaede
2
Article 220 TEC

• The Court of Justice and the Court of First
  Instance, each within its jurisdiction, shall
  ensure that in the interpretation and application
  of this Treaty the law is observed.

3
IBM v. Commission, p. 133

• Facts Commission letter to IBM regarding abuse
  of dominant position with statement of objections
  which invited IBM response IBM challenged the
  proceeding Commission continued providing IBM
  sued.
• Jurisdiction Article 230 TEC

4
IBM v. Commission, p. 133 (contd)

• Issue Does the issue raised by IBM fall within
  Article 230?
• Decision
• Court has jurisdiction per Articles 230 and 220
  and not limited to acts under Article 249.  8.
  Form not important it is the substancedoes the
  action definitely set out the position of the
  Commission (i.e. a conclusion and not merely a
  provisional measure).  9 and 10.

5
IBM v. Commission, p. 133 (contd)

• Rationale
• Commission statement of objections did not
  require IBM to alter or reconsider its marketing
  practices.  19.
• Not compatible with system of division of powers
  between Commission and Court for Court to
  intervene at this state.  20.
• Statement of objections cannot be considered as
  being a decision within memory of Article 230.
   21.
• IBM can raise the procedural issues after a
  decision.  24.

6
Direct Concern - Art. 230 TEC

• Perrier and Vittel case, pp. 145/46
• Works council claimed takeover of Perrier by
  Nestle was anti-completion
• Works council (union) representatives were
  affected individually by the decision approving
  takeover of Perrier by Nestle.
• BUT not directly affected because
• Takeover not prejudice the works councils
  (unions) own rights and
• There were Community Legislative safeguards for
  the employees.

7
Direct Concern Perrier Case (contd)

• Need a direct causal link between the alleged
  attack on those rights and the Commissions
  decision
• If employees rights violated in implementation
  address to MS Courts under MS law.
• There is no standing to attach decision on
  merits BUT did have standing to attack based on
  improper procedure lost.

8
Article 230 TEC Lack of Competence(France v.
Commission, p. 150)

• Issue Does the Community have authority to take
  action?
• Issue Did the Community act within its
  authority?
• Commission made binding agreement with USA No
  authority per Court as needed to be adopted by
  Council with Parliament approval.

9
Lack of Competence (contd)(Germany v.
Parliament and Council, p. 156)

• Directive banned all advertising and sponsorships
  of tobacco products.
• Issue 1 Advertising in magazines.
• Issue 2 Advertising on ashtrays, etc.
• Issue 3 Sponsorship of events.

10
Article 152 - TEC

• 1. A high level of human health protection shall
  be ensured in the definition and implementation
  of all Community policies and activities.
• The Council, acting in accordance with the
  procedure referred to in Article 251 . . .
  shall contribute to the achievement of the
  objectives referred to in this article through
  adopting
• (c) incentive measures designed to protect
  and improve human health, excluding any
  harmonization of the laws and regulations of the
  Member States.

11
Articles 95 and 14 - TEC

• Article 95
• 1. By way of derogation from Article 94 and save
  where otherwise provided in this Treaty, the
  following provisions shall apply for the
  achievement of the objectives set out in Article
  14. The Council shall, acting in accordance with
  the procedure referred to in Article 251 . . .
  adopt the measures for the approximation of the
  provisions laid down by law, . . . which have
  as their object the establishment and functioning
  of the internal market.
• Article 14
• 2. The internal market shall comprise an area
  without internal frontiers in which the free
  movement of goods, persons, services and capital
  is ensured in accordance with the provisions of
  this Treaty

12
Article 47 - TEC

• 2. For the same purpose, the Council shall,
  acting in accordance with the procedure referred
  to in Article 251, issue directives for the
  coordination of the provisions laid down by law,
  regulation or administrative action in Member
  States concerning the taking-up and pursuit of
  activities as self-employed persons. . . .

13
Article 230 - TEC Infringement of an Essential
Procedural Safeguard

• Germany v. Commission p. 161
• Decision of Commission annulled because draft of
  decision and other papers sent only in English
  and not in German as well.

14
Essential Procedural Safeguard (contd)

• Transocean Marine Paint Assn. v. Commission, p.
  162
• Commission made exception approved subject to new
  conditions.
• Issue 1 The extent of Commission discretion
  under Article 81(3).
• Issue 2 What was the essential procedural
  safeguard?
• Issue 3 Did Commission violate an essential
  procedural safeguard?

15
Article 81 - TEC

• 1. The following shall be prohibited as
  incompatible with the common market all
  agreements between undertakings, decisions by
  associations of undertakings and concerted
  practices which may affect trade between Member
  States and which have as their object or effect
  the prevention, restriction or distortion of
  competition within the common market, . . .
• 3. The provisions of paragraph 1 may, however, be
  declared inapplicable in the case of
• -- any agreement or category of agreements
  between undertakings, . . . which contributes
  to improving the production or distribution of
  goods or to promoting technical or economic
  progress, while allowing consumers a fair share
  of the resulting benefit, . . .

16
Article 230 TECInfringement of the Treaty

• Standard of Review
• Clearly erroneous
• Manifestly abusive

17
Infringement of the Treaty (contd)

• UK v. Council, p. 175 (working time directive)
• UK arguments
• s 51, 52, 53, 54
• Proportionability What is it?
• Note 3, p. 179

18
Article 137 (Social Provisions) - TEC

• 2. To this end, the Council
• (a) may adopt measures designed to encourage
  cooperation between Member States through
  initiatives aimed at improving knowledge,
  developing exchanges of information and beset
  practices, promoting innovative approaches and
  evaluating experiences, excluding any
  harmonization of the laws and regulations of the
  Member States

19
Article 137 TEC (contd)

• (b) may adopt, in the fields referred to in
  paragraph 1(a) to (i), by means of directives,
  minimum requirements for gradual implementation,
  having regard to the conditions and technical
  rules obtaining in each of the Member States.
  Such directives shall avoid imposing
  administrative, financial and legal constraints
  in a way which would hold back the creation and
  development of small and medium-sized
  undertakings.

20
Infringement of the Treaty (contd)

• Equal Treatment
• Bergman and Gross Farm (skimmed milk case), p.
  179
• Facts
• Jurisdiction
• Issue
• Decision
• Rationale

21
Infringement of Treaty (contd)

• Legal Certainty Legitimate Expectation
• Mulden v. Minister, p. 183
• Facts Regulation
• Stop production for 5 years
• Attempt to restart thereafter
• Denied no production prior year

22
Article 230 TEC

• Subjective v. Objective
• Giuffride v. Council, p. 187
• Basis for finding misuse of powers
• Note 3, Booss, et al. v. Commission, p. 188
• Issue 1 Qualifications
• Issue 2 Reserved places

23
Article 234 - TEC

• The Court of Justice shall have jurisdiction to
  give preliminary rulings concerning
• (a) the interpretation of this Treaty
• (b) the validity and interpretation of acts of
• the institutions of the Community and of
• the ECB
• (c) the interpretation of the statutes of
• bodies established by an act of the
• Council, where those statutes so provide.

24
Article 234 - TEC (contd)

• 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 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
  of Justice.

25
Article 234 - Benefits

• Link between Court of Justice and MS Courts
• MS Courts can get authoritative rulings on
  Community law
• Most enforcement is in MS Courts
• Allows Court of Justice to develop Community law
• Indirect way for individuals in MS to bring
  Community law issues to Court of Justice

26
Article 234 - Process

• Who decides to use? MS Court
• Court of Justice not examine motives
• File to Court of Justice
• Include summary of facts, of procedure to date,
  of parties claims, the MS law, MS Courts reason
  for reference, and the specific questions of
  Community law presented.
• Court notifies Council and Commission
• Commission usually appears
• Presentation to Court (no longer plenary)
• Advocate General opinion
• Court judgment

27
Article 234 - Effect

• Court provides decision of legal issue, not case
• Addressed to MS Court that referred
• BUT sufficient reason for any other judicial
  court to regard as binding