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Law Notes European Law Notes

Preliminary Reference Notes

Updated Preliminary Reference Notes

European Law Notes

European Law

Approximately 1161 pages

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 resul...

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Functions

  • Development of EU law (direct effect, supremacy)

  • Maintenance of institutional balance

  • Enhancement of individuals’ interests (obl. to refer for court against whose decision there’s no nat. remedy)

  • Legal integration – uniformity/consistency of EU law

  • ECJ: “veritable cornerstone of the operation of internal market” – plays a fundamental role in ensuring Treaty law retains its Comm. Character w/a view to guaranteeing EC law has same effect in all MS.

Types of questions referred

  1. Treaty interpretation (Art 267 (1)(a))

  • used to make judgments on supremacy & DE

  • ECJ merely interprets Treaty – no judgment on nat. law validity

  • If incompatibility found, obl. on nat. court to redress situation

  1. Validity & interpretation of EU institutions, bodies etc. acts (Art 267(1)(b))

  • Chalmers: 2 striking features

  1. nat. courts monopoly over disputes involving points of EU law to be decided on nat. law, facts & application of EU law

  2. Nat. courts act as gatekeepers to ECJ – no direct right of access to private parties

  • ECJ: 3 stages of EU legal order

  1. EU is autonomous legal order

  2. Requiring MS courts to interpret EU law uniformly

  3. By providing for direct relation b/w MS courts and ECJ, Art 267 enables this uniformity

Who can refer

  1. Body or tribunal – determined by ECJ on the basis of broad definition: factors

  1. established by law

  2. compulsory jurisdiction

  3. decisions of judicial, not admin, nature

  4. independence

  1. external – no intervention/pressure liable to jeopardise judgment

  2. internal – impartiality

  • Complex application

  • Ref can be made only if there’s a pending case b/f nat. court which leads to decision of judicial nature

  • Cartesio – ref couldn’t be made b/c court was discharging admin function which didn’t resolve dispute

  • In the interest of uniformity, ECJ can rule on issues of validity & interpretation arising out of procedure of bodies to which govt. has assigned some adjudicatory function

  • Broekmeulen– Dutch Appeals Comm. hearing appeals from a body resp. for admission of docs

  • Chalmers: rationale: any body deciding on EU law rights should be able to refer – if not, Cs would have to challenge through another body, adding to expense & delay, dis-incentivising parties from referral but could open floodgates whereby undertrained actors would overload the court.

  • AG Colomer: definition is too wide; the strategy behind 267 was to create a conversation b/w ECJ & nat. courts – independent parts of executive not intended to be part of it. Practical consequence: allows bodies w/no legal training to formulate ref + admin actors have a chance to disrupt domestic judicial hierarchy and system of precedent by referring something they disagree with

  1. With discretion/ obligation to refer

  • Art 267(2) – discretion (any court or tribunal)

  • Art 267(3) – court/tr. against whose decision there’s no remedy in nat. law(unless CILFIT satisfied/issue previously decided)

  • What bodies are covered?

  1. abstract theory – bodies whose decisions are never subject to appeal

  2. concrete theory – bodies whose decisions aren’t subject to appeal in that case (Costa v ENEL)

  • Costa v ENEL – magistrate, whose decisions were normally subject to appeal, could refer to ECJ b/c in that case sum of money too low for appeal to be made in nat. law.

  • somewhat distorting to nat. judicial hierarchy – lower court can refer even in the face of decision by a higher court ...

  • NB: nat. court not obliged to raise matters of EU law on own volition but it can’t be prevented from doing so by a rule of national law

  • NB: no obl. for nat. court/tr. to refer just b/c parties ask for it

Precedent System

  • Development of precedent:

  1. modified the original conception of horizontal & bilateral relationship b/w MS & ECJ

  2. shifted it to vertical hierarchy b/w ECJ & national courts

Instances where nat. court may conclude it doesn’t need to refer

  1. ECJ has already resolved the issue

  • Refer only where quest. raises new argument/factor – if not, ECJ will restate substance of earlier judgment

  • Courts/tribunals with obligation to refer have the same discretion as any other nat. court to determine if decision is necessary for it to give judgment – if not, it doesn’t have to refer

  • CILFIT – Italian court’s ref.; ECJ: obl. to refer is not unconditional but premised on existence of reasonable doubt as to interpretation + recourse to ECJ being necessary for decision in the case

  1. There’s no doubt as to EU measure’s validity

  • System of precedent – multilateral effect of court rulings (can be relied on across MS)

  1. Decision isn’t necessary for deciding that case

  2. Acteclair doctrine applies

  • Nat. court feels issue is clear; i.e.

  1. equally obvious to other MS courts & ECJ

  2. so obvious that leaves no scope for reasonable doubt

  • Assess a) & b) on the basis of characteristic features of EU law + difficulties of interpretation

  • CILFIT test

  1. Legislation drafted in several languages – all equally authentic

  2. Peculiar terminology

  3. Possibility of same terms having different meanings in EU law & nat. law

  4. Interpret in light of EU law as a whole, having regard to objectives + evolution

  • NB: CILFIT conditions are too restrictive – nat. courts should have more discretion.

  • AG Jacobs: nat. judges shouldn’t have to consider all language versions – not realistic/feasible! CILFIT should apply in commonsensical way, so that court can really determine if prel. ref. is worth the burden

  • Mancini & Keeling:ECJ, recognising it can’t coerce nat. courts, conceded something to professional/national pride of judges but then restricted circumstances to cases so rare that ECJ’s authority remains intact. Clear objective – by granting MS courts lawfully power to do that which they could do unlawfully + subjecting it to strict conditions it would induce them to wilfully engage in the mechanism of judicial co-op provided by Treaty

  • Rasmussen: CILFIT II should give back initiative to MS judges, trusting them to solve far more quest. of interpretation...

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