UMKC Litigation in the ECJ

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UMKC - Litigation in the ECJ

• Dermot Cahill
• UCD

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1. Art 234 Preliminary References

• Art 234 - facilitates judicial dialogue between
  national courts in the M/Ss and the European
  Court of Justice in Luxembourg
• Treaty of Nice (2003) envisages Art 234 role also
  for CFI

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Art 234ECJ has jurisdiction to

• interpret the EU Treaties
• rule on validity of acts of EU institutions
• does not have jurisdiction to rule on validity of
  national laws

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Parameters of Judicial Dialogue

• Where an Art 234(1) question arises in a national
  court or tribunal, it
• MUST refer if a tribunal of final instance
• MAY refer if not of final instance

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What is an Art 234 court or tribunal?

• 102/81 Nordsee Deutche 1982 ECR 1095 is the
  body
• independent
• permanent in nature
• hearing disputes inter partes
• applying rules of law

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246/80 Broekmeulen 1981 ECR 2311

• Why was Dutch Medical Appeals Committee Art 234
  tribunal?
• 138/80 Borker v Paris Bar 1980 ECR 1975.why
  was Paris Bar not art 234 tribunal
• 61/65 Vaassen-Gobbels 1966 ECR 261why was
  Dutch Social Security tribunal 234 tribunal?

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Obligation to refer, or Discretion to refer?

• Basic parameter set by Art 234
  Where a question of EC law is necessary to
  outcome of a case in a national court, then court
  must refer to ECJ where the court is one of final
  instance.but where court is not one of final
  instance, decision to refer to ECJ is
  discretionary

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subsequent modification of basic parameter

• National court or tribunal need not refer where
• acte clair
• interlocutory proceedings
• precedent exists
• no genuine question of EC law arises

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Acte Clair

• 283/81 CILFIT 1982 ECR 3415
• matter must be equally obvious to all member
  state courts
• examination to be undertaken of all language
  versions of legislative text

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Interlocutory Proceedings

• 107/76 Hoffmann La Roche 1977 ECR 957
• references not accepted by ECJ until full facts
  are determined inter partes by national tribunal

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Precedent exists

• Doctrine of precedent does not exist in EU Law
  28/30 Da Costa 1963 ECR 31
• however, national court free to follow earlier
  ECJ rulings if it so wishes
• recently ECJ refusing reference requests raising
  manifestly identical issues to that raised in
  other earlier 234 proceedings

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No genuine EU law issues arises

• 104/79 Foglia v Novello 1981 ECR 745.ECJ will
  not entertain references from contrived disputes
• 83/91 MeilickeECJ will not accept moot
  references

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Can national judge be prevented from making
reference request to ECJ?

• ..all depends on the national courts of the M/S
• Britain.litigant can appeal to higher court to
  force lower judge to make reference
• Irelandlitigant cannot appeal to higher court to
  force lower judge to make reference.Campus Oil v
  Minister for Energy 1983 IR 88

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2. Art 230 - Action to Annul acts of Community
Institutions

• Grounds for annulment action
• lack of competence
• infringement of essential procedural requirement
• infringement of Treaty or rule of law relating to
  its application
• misuse of powers

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Who can invoke Art 230?

• Member States / Community Institutions (Council
  and Commission) have unlimited locus standii
• ECB, Auditors and EP have limited locus standii
• Natural or legal personsvery limited locus
  standii

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Natural or Legal Persons can challenge

• A Decision addressed to the person
• A Decision addressed to another person, but which
  is of direct and individual concern to the
  person
• A Regulation which although a general legislative
  measure, is in fact of direct and individual
  concern as if a Decision addressed to the person
  themselves

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Challenging a Decision addressed to another -
when is a measure of Direct Concern?

• 41/70 NV International Fruit 1971 ECR 515where
  M/S has no discretion in implementing EC measure
• 10/95P Asocarne 1995 ECR I-4149 Directives
  cannot be challenged as they are not of direct
  concernwhy?

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When is a measure of individual concern?

• When the measure distinguishes the person from
  all others, just as in the case of the person
  addressed
• Contrast 25/62 Plaumann 1963 ECR 95 with
• 11/82 Piraki-Patraiki 1985 ECR 207 and
  106/63 Toepfer 1965 ECR 405

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Challenging a Regulation (arguing that it is, in
substance, a Decision)

• Even though a Regulation applies to a closed
  class, litigant will fail to show individual
  concern unless they can demonstrate that their
  rights are prejudiced by the Regulation other
  than in an objectively defined manner

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.

• Contrast NV International Fruit 1971 ECR 411
  and 309/89 Cordoniu 1994 ECR I-1853
• and 789/79 Calpak 1980 ECR 1949

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Situations where locus standii rules may be
relaxed

• Anti-Dumping
• State Aids

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3. Art 232 Action for Failure to act

• Call to act
• Failure to act triggers right to initiate legal
  action
• Rarely used

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4. Art 238 Contractual Liability and
Non-Contractual Liability of EU Institutions

• Art 238(1) - contractual liability depends on law
  applicable to contract in question (national
  courts have primary jurisdiction)
• Art 238(2) - non-contractual liability depends on
  whether sufficiently flagrant breach of EU law
  (ECJ has jurisdiction)

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238(2) non-contractual liability

• Legislative acts of general application.breach
  must be sufficiently flagrant breach of EU Law,
  meaning an arbitrary breach causing supernormal
  economic damage
• recognises that when EU legislates, it has to
  make complex economic choices

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Legislative acts of general application.ctd...

• 83/77 Bayerische 1978ECR 1209 . Breach must be
  sufficiently flagrant and is not so where EU has
  wide discretion to act and has not manifestly
  disregarded the limits on its powers
• 116/77 Amylum 1979 ECR 3497 to be sufficiently
  flagrant, breach must be arbitrary and economic
  damage serious

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Legislative acts of specific individual
application

• 104/89 Mulder 1992 ECR I-3061
• liability established if breach sufficiently
  serious

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Practice and Procedure before ECJ

• Emphasis on Written Procedure
• No Witnesses (usually)
• Short Time Limits
• Intervention by M/Ss or EU Institutions