EU Law Exam Past Paper Attempts

EU LEGISLATURE PROCEDURES (Article 113,114,267)

Article 267
➢​ Gives the Court of Justice jurisdiction to deliver preliminary rulings on the validity and
interpretation of EU Law
Article 267 (a-b)
➢​ Identify issue and that it concerns interpretation of the Treaty or the interpretation/
validity of the acts of the EU institutions (Directives, Regulations) - if so, ECJ has
jurisdiction

1)​ Is the body a court of a tribunal? (Dorsch Consult Criteria)
➢​ This paper aims to define ‘national courts and tribunals’ for the purposes of
Article 234




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i)​ Whether the body is established by law
ii)​ Whether it is permanent
iii)​ Whether it’s jurisdiction is compulsory



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iv)​ Whether its procedure is inter partes (ie, had hearings where all parties
could be present and be heard/ both parties have a say - oral or written)
v)​ Whether it applies rules of law
vi)​ Whether it is independent (Syfait - not independent thus not court)
■​ Do not need all 6 or any number of the criteria to be fulfilled – use
your judgment
2)​ Is a decision on EU Law point ‘necessary’ for judgment? (The CILFIT Criteria)
➢​ Assuming that the body hearing a case is a court of tribunal
i)​ Must decide whether a decision on a question of EU Law is ‘necessary’ to
enable it to give judgment in the case before it
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➢​ JUDGMENT NOT NECESSARY WHERE:​
i)​ The question is irrelevant for the resolution of the dispute
ii)​ The provision of EU law in question has already been interpreted by the
Court
iii)​ The correct interpretation of EU Law is so obvious as to leave no scope
for any reasonable doubt
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,DIRECT EFFECT, INDIRECT EFFECT, STATE LIABILITY

1)​ EU Law is supreme even over the national constitution.
2)​ List our purpose of directive
3)​ Purpose of the claimant

How do individuals enforce their EU rights in national courts?
1)​ Treaty Articles
2)​ Regulations
a)​ Directly applicable both vertically and horizontally (can be relied in national courts
and apply in all MSs the same)
3)​ Directives
a)​ Not directly applicable as they must be incorporated into the national law by




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national legislation by MS
b)​ Can be directly/indirectly applicable
c)​ Direct effect of directives will only ever be vertical (Van Duyn)


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Van Gend Criteria (For a treaty article to be directly effective, it must satisfy)
The EU Article Provision had to be:
➢​ Sufficiently clear and precise
➢​ Unconditional
➢​ Leave no room for the exercise of discretion in implementation on the part of member
states or community institutions

Ratti Test
➢​ Time for it to be implemented must have lapsed from the date of the claim, otherwise
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state can still implement it

Direct Effect
➢​ When provisions of EU law which are directly effective give rise to rights or obligations
which individuals may enforce before their national courts

Vertical Direct Effect (Van Duyn/ Marshall)
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➢​ Individuals can enforce rights against the State or a State body
➢​ Vertical DE could only be applied if it is against a state body or an emanation of a state
■​ Foster amended by Farrell definition of emanation of state - 1 + 2/3
1.​ Has the body been delegated a public interest task
2.​ Is the body under state control (Griffin/ Doughty)
3.​ Does the body has special powers for carrying out its functions (NUT)
➨​ If yes, individuals can rely on EU directive in national courts
➨​ If no, consider indirect effect

Horizontal Direct Effect (Faccini Dori)
➢​ An individual bringing an action against an individual

, -​ ‘Individual’ includes businesses as well as individual human beings
➨​ If yes, individuals can rely on EU directive in national courts

Indirect Effect
➢​ Whereby national courts of the member states of the EU are required to interpret
national law in line with provisions of EU law (Article 288 TFEU)

Von Colson
-​ In conclusion, it was held that it falls on the courts to interpret national law in such a way
as to ensure that the objectives of the Directive are achieved.

Implementing vs Non-Implementing Legislation
Implementing Legislation




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-​ National Legislation passed to comply with EU directive but poorly (Von Colson)
Non-Implementing Legislation
-​ National Legislation which existed before EU directive thus not passed to implement
directive (Marleasing)


Purposive Approach
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Purposive Approach vs Clear Conflict

-​ Add words in to national law (Webb, Von Colson)
Clear Conflict
-​ Cannot reconcile national law and directive if clear conflict (Wagner Miret)

➨​ If Yes, Individuals could rely on national law through EU directive in national courts
➨​ If no, can open a separate claim and sue the state for liability
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State Liability
-​ MS liable to compensate individuals if it fails to comply with EU law

Under the Francovich criteria, EU MSs could be liable to pay compensation to individuals who
suffered a loss by reason of the Member State's failure to transpose an EU directive into
national law.
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The decision in Francovich v Italian State developed the principle of State Liability for a breach
of EU Law.
Francovich Criteria
1)​ The Directive confers rights on individuals
2)​ The content of those rights is identifiable from the Directive
3)​ There is a causal link between the failure to implement the directive and the damage

Factortame (No.4) Added
➢​ Was the breach ‘sufficiently serious’?
➨​ If yes, state liability