Preliminary Rulings and MS Liability

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EU Law Enforcement Rules - Rewe-Zentralfinaz [1976]
1. EU Law/Procedural Rules takes precedence 2. Where no EU procedure, national procedural responsibility to enforce EU law 3. Exceptions: Equivalence and Effectiveness
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Define Equivalence
a prohibition of discrimination. EU law based claims cannot be treated less favourably than purely national claims.
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Define Effectiveness
the enforcement of EU law cannot be rendered practically impossible nor also excessively difficult
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Article 19(1) TFEU & Article 47 of the charter of fundamental rights
provides MS shall provide remedies sufficient to ensure effective legal protection in the fields covered by union law & guarantees the right to an effective remedy and to a fair trial.
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State Liability - Francovich
“the principle of state liability for harm caused to individuals by breaches of community law for which the state can be held responsible is inherent in the system of the treaty”.
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State Liability Test - Factortame Conditions
1. A wrong (see two requirements) 2. Damage 3. Causal Link between Wrong and Damage
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State Liability Test - Factortame Condition 1- A wrong (an act or an omission violating EU law) Requirements
a. Of a legal provision which was intended to confer rights on individuals b. The wrong was sufficient serious
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The essential function of Article 267 TFEU
ensure that EU law is applied uniformly by national courts. This objective extends both to situations where a national court is confronted with the application of EU law and to those where it is faced with disputes as to the validity of EU acts.
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Article 267 (1) TFEU
determines the existence of two kinds of preliminary references: interpretation and validity.
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Article 267 (2) & (3) TFEU
The second and third paragraphs establish a difference between the two types of national court or tribunal. Whereas any national court may make a reference, those against whose decisions there is no judicial remedy, must make a reference.
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Syfait I [2005]
For a body to be a court, it must be established by law and have a permanent existence. As well as exercise binding jurisdiction, have an inter partes procedure, apply the rule of law and be independent
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Rouvroy [1990]
In cases of PR, the CJEU can only interpret EU law and not comment on the validity of MS law
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Foglia v Novello
the court would not entertain a reference where there is evidence that the parties before the court have no genuine interest or dispute, or have contrived proceeding with the exclusive purpose of triggering a reference on a particular point of EU law
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The two main exceptions to the court of last appeal rule
if the question has already been answered in a PR or where the points of law have been dealt with by a PR previously. Or by the Acte Clair doctrine set out in CILFIT.
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Munari [1977] & Da Costa
A PR is binding on the national court (see Munari [1977]). But other MS should only consider it authorative (Da Costa)
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Case C-224/01 Köbler [2003] ECR I-0239
an action for state liability can result from an incorrect application of EU law.
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Article 234 TFEU
Lower courts not obliged to refer to ECJ under Article 234 - discretion to do so if they consider it to be ‘necessary’ to decide the issue of EU law.
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Costa v Enel [1964]
Original supremacy case- subsequent national laws do not take precedence over EU Law
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Internationale Handelsgellschaft gmbH
EU law takes precedence over ALL forms of national law
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European Communities Act 1972 S2(1)
All such rights, powers, liabilities, obligations and restrictions... created or arising by or under the Treaties are without further enactment to be given legal effect
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European Communities Act 1972 S2(4)
UK law shall be interpreted to be in line with EU law
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DE - Public Body - Foster v British Gas [1990]
3 Limbed Test - 1. Body responsible by state for providing public service 2. under state control 3. with special powers for that purpose
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Marleasing SA [1990] - IE
IE applies to both pre- and post-dating national legislation
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Pupino (Case C-105/03)
IE does not extend to contra legem interpretations - national courts have no duty to interpret national provisions against their clear meaning
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Dillenkofer v Germany - State Liability
Non-implementation of a directive is a sufficiently serious breach
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Tragehtti v Italy
Court refused to rule out liability for damage caused by manifest errors of interpretion of EU law by a court of last instance
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Kobler v Austria
Court held that an erroneous interpretation of EU law by a court of last instance can give rise to state liability.
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Brasserie v Germany
SL gives rise to damages provided conditions fulfilled
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Publicoo v Ratti & R v HM Treasury Ex Parte BT
Directives are not DE until after implementation deadline & SL can arise if interpreted wrongly
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Card 2


Define Equivalence


a prohibition of discrimination. EU law based claims cannot be treated less favourably than purely national claims.

Card 3


Define Effectiveness


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Card 4


Article 19(1) TFEU & Article 47 of the charter of fundamental rights


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Card 5


State Liability - Francovich


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