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Remedies Revision Notes

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REMEDIES BEFORE THE COURT OF JUSTICE OF THE EU

1. INTRODUCTION: THE JUDICIAL ARCHITECTURE OF THE EU AFTER THE TREATY OF LISBON

1.1 The Structure and Jurisdiction of the Court of Justice of the EU (CJEU) Jurisdiction: As a Union institution, the Court of Justice of the EU is bound by the principle of conferral (see Articles 13(2) and 5 TEU). Following Lisbon: jurisdiction of the Court extends to EU law as a whole except Common Foreign and Security Policy. Procedural routes to the Union judicature: (a) Direct actions: (Contentious proceedings) (b) Preliminary Rulings: (Non-contentious proceedings) Direct Actions: Begin and end before CJEU. Some of them are considered solely by the Court and others by the General Court in the first instance - and may proceed on appeal to the Court of Justice. Prelim Rulings:Begin and end in nat court, but makes reference inbetween to get advice from CoJ.

1 Five main types of Direct Actions (*)

1.Enforcement proceedings: Articles 258-260 TFEU: brought against Member States by the Commission or another Member State. Where MS breached EU law.

2. The action for annulment: Article 263 TFEU: brought against an EU institution by a Member State, another Union institution or a private party.

3. Action for failure to act: Article 265 TFEU.

4. The plea of illegality: Article 277 TFEU: incidental mechanism used to plead the illegality of an EU act in the course of proceedings which are already pending before the CJEU (i.e. under Article 263 TEFU)

5. Action for damages: Arts 268 and 340 (2) TFEU: claims for damages against an EU institution.

*

Note: The CJEU may also grant interim relief in connection with these direct actions (Articles 278 and 279 TFEU) (know this for PQ)

There are two types of Preliminary Rulings: Article 267 TFEU:

*

*

rulings on the interpretation of EU law and rulings on the validity of EU law.

2. DIRECT ACTIONS

2.1 Articles 258- 260 TFEU: Enforcement Proceedings Summary of the main points:

* They cover the situation where a Member State has breached Union law (i.e. by failing to implement a directive on time);

* The proceedings can be brought by the Commission (Art. 258 TFEU) or (less commonly, politically not desirable), by another Member State (Art. 259 TFEU). They are not available to private parties (very important, they ought to bring actions before national courts and rely on direct effect).

* The aim of the proceedings is to obtain a declaratory judgement: declaration from the Court that a Member States has failed to fulfil its obligations under the Treaty.

* The proceedings have an administrative phase, during which the Commission writes to the defaulting Member State and gives it the opportunity to submit observations and then delivers a reasoned opinion at the end of the phase. If the Commission finds that a Member State is in breach, a time limit is given to the Member State to comply with the Commission's opinion. If the Member State does not comply, the Commission may bring proceedings before the Court of Justice, thus opening the judicial phase. A judgement of the Court finding that a Member State has breached EU law is binding on that Member State, which has an obligation to comply with it within reasonable time. After the entry into force of the TEU, Member States which do not comply with the judgement of the Court may be fined (new Art. 260 TFEU). The TL has sped up the system of pecuniary sanctions.

2.1.1

The Nature of Enforcement Proceedings Article 258 TFEU: provides:

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