European Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB EU law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best European Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest resu...
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Notes:
If national authorities have acted, EU courts cannot help with that – CJEU can either hear (1) action for annulment of EU law; (2) preliminary reference (validity or interpretation)
National remedies: specific remedies in certain fields; Francovich
Which court?
NB: Not impermissible to go to both, but extra fees w/o being faster
General Court – AFA under Art.263 TFEU
GC cannot issue mandatory interim relief against national authorities (bc not party to proceedings)
National court – PRP under Art.267(b) (validity or interpretation of EU acts)
Even if EU legislation is not unlawful, national authorities may have breached EU law (GC cannot hear this, but Commission could use Art.258)
Disadvantage: must persuade national court to refer (parties have no right to a reference – see AG Jacobs in UPA); on pain of national and Francovich/Kobler sanctions, though, national courts must refer Qs on validity (Foto-Frost)
MUST refer (i) where it considers an EU measure may be invalid, or (ii) courts against whose decision there is no judicial remedy in national law (Art.267(3))
MAY refer when court thinks a PRP is necessary to enable it to give judgment, (even if there is a judicial remedy against their decision (Art.267(2))
Other rules
Challenge to EU act - Art.267(b) – assessment by CJEU via PRP
Standing rules under Art.263(4) not applicable
Any discernible procedural irregularities OTF?
If imposes burdens on X, needs valid legal basis in the Directive.
Essentially the same grounds of review for validity as Art.263(2) – see below
Legal basis? Note WHICH EU institution has acted – do they have competence in the provision? Only needs to satisfy one, e.g.
Art.114(1) – internal market competence (see Tobacco Advertising II)
[see Art.114 analysis]
Art.153 – worker health, safety, working conditions, social protection
Art.168(2) – cooperation of MS action in human health protection
Art.168(4) – public health (a) blood/organs; (b) veterinary / phytosanitary; (c) medicinal products
Art.192(1) – environmental competence
Substance?
Free movement of… (TFEU)
Art.21 – citizenship (not FM)
Art.34 – goods [see PQ template below]
Art.45 – workers
Art.49 – self-employed
Art.56 – services
Fundamental rights (= condition of lawfulness of EU acts, Kadi II)
[CFR rights]
Art.52(1) CFR – Derogations must be: provided for by law, respect the essence of the right, proportionate (recognised legitimate aim, appropriate, necessary)
Challenge to EU act – Art.263 TFEU – assessment by General Court via AFA
Standing – Art.263(4) – three ways to get standing post-Lisbon:
Act addressed to applicant
Act of direct and individual concern
Regulatory act + direct concern + no implementing measure
Post-Codorniu any legally-binding act which is of ‘individual and direct concern’ to the applicant
Individual concern? Plaumann – 3 main paradigms/interpretations (Enchelmaier):
Procedural rights – under the legal basis, any right to participate in the adoption of the EU act? If not, no standing.
Identification in the act – being specifically named in Decision may confer standing (Roquette)
Rights/duties affected by act – EU institution was/ought to have been aware of applicant when adopting act in this sense, ‘addressed’ to C
Direct concern? – Q of causality (Microban)
Did the EU act affect the legal position of the individual?
The EU act will not have ‘caused’ the impact on C if the loss/damage was actually caused by a subsequent exercise of discretion (which can instead be challenged)
Regulatory act?
Generally applicable – Art.290(1) TFEU states a legislative act may delegate to Commission the power to adopt ‘non-legislative acts of general application’ (Inuit, Microban)
IF no ‘individual and direct concern’ applicant can instead challenge the implementing measure:
if implemented by an EU institution, by AFA + plea of illegality
if implemented by MS, by the PRP
NOTE – role of Aarhus Convention if an env law claim
Grounds of review (Art.263(2) TFEU – in practice PRP uses these grounds too)
Lack of competence
Infringement of an essential procedural requirement
Misuse of powers
Infringement of Treaties or any rule relating to their application (including breach of GPs see comment)
Void – Art.264 – CJEU shall declare the impugned act to be void if the challenge is well-founded
Challenge to EU act – Art.340 TFEU – EU liability for dmg caused by EU acts
Same as the conditions for Francovich liability under Factortame (No. 3) – see below
Challenge to MS act
Direct effect incl. of FM provisions (Van Gend en Loos); VDE of Directives after transposition deadline (Van Duyn, Ratti)
Did national authority comply with the EU legislation?
CFR right = HDE if it has an equivalent GP that has already been recognised as horizontally applicable (Kucukdeveci)
Only if the Charter right is self-sufficient (Bauer and Broβonn)
‘Reinterpretation’ (Marleasing, van Duyn – see Pfeiffer) or exclusion (see CIA Security, Unilever, Wells – only applies to ‘procedural’ directives)
Francovich – state liability for breach of EU law?
Three requirements (Factortame (No. 3)):
Law infringed must be intended to confer rights on individuals
Breach is ‘sufficiently serious’ = MS “manifestly and gravely disregarded the limits on its discretion” [= highest hurdle]
‘direct causal link’ between breach and dmg
Is the area of law harmonised? If so, then the issue is governed by the Directive (Moormann)
In practice, it may be part-harmonised (e.g. Walloon Waste – non-hazardous vs hazardous, only one was harmonised)
Is it goods?
Defined broadly (in Walloon Waste, ‘waste’ is a good)
Who is imposing restrictions?
Anyone acting on behalf of the state is bound by Art.34
If the state allows a person to do something, it may be the State’s responsibility (Schmidberger)
The state may fail to stop someone from...
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European Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB EU law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best European Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest resu...
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