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EU Law Reading Session 2 The Sources of EC Law and its Supremacy Over National Law in the Event of Conflict General Principles: Craig and De Burca, EU Law, Chapter 15:
There are four grounds for annulling a community act: Lack of competence, infringement of an essential procedural requirement, infringement of the treaty or any rule of law relating to its application, and misuse of power (article 230). o Lack of Competence: See art 5(1) EC. ECJ uses broad purposive interpretation of powers conferred. Sometimes power is so broad (see art.95 and 308) that lack of competence is unlikely to be found. o Infringement of essential procedural requirement: Court has discovered a right to a hearing, even where no sanction is imposed, provided it harms his interest sufficiently. Cant be excluded by legislation or treaty articles. Except where legislation provides, there is no duty to consult. Reasons have to be given for actions under art. 253, breach of which is an infringement of an essential procedural right. o Infringement of the treaty or any rule of law relating to its application: Originally from case law, but art 220 came in, which charged ECJ with duty of ensuring the interpretation and application of the treaty law should be observed. The breadth of this role allowed the courts to bring in 'general principles' of administrative law from the various member states (see below). The general principles serve as an interpretive guide to treaty articles and community acts. Although the courts cant invalidate treaty articles, they can annul community acts.
? Proportionality is one such principle: In EC law it asks whether the measure was suitable to achieve the desired end; whether it was necessary to achieve the desired end; and whether the measure imposed a burden on the individual that was excessive in relation to the objective to be achieved (proportionality strictu sensu). It is doubtful whether the court actually addresses the strictu sensu stage.
? Proportionality is likely to be applied most vigorously where an individual argues that his right has been infringed by community action. The courts tend to be less, but still reasonably searching where an individual argues that the level of a penalty is disproportionate. The courts will take a hands-off approach to cases where the policy choice itself is attacked as disproportionate and the courts want to avoid substituting their preferred policy in.
? To determine whether a member state's policy is incompatible with an EU freedom/right, proportionality will be used.
? Protection LEs and certainty was held to be a fundamental principle of EU law, so that retroactive legislation without a pressing community objective and/or it doesn't respect LEs may be
struck down, though court will try to find a non-retroactive construction where possible.
? Non discrimination is enshrined in the EC Treaty: on grounds of nationality (39, 43, 49-50); gender (2, 3, 137, 141); producers or consumers in agriculture (34(2)); all others can be acted on under art. 13. ECJ says these are specific examples of the general EC principle of non-discrimination. For a discriminatory law to be upheld it must be 'objectively justified'.
? It is debatable whether transparency is a general principle of EU law. Art. 1 EU says decisions should be taken as openly and close to the citizen as possible, and art 255 EC says any citizen has a right of access to EP, Council and Commission documents subject to limits decided upon by the council and rules of procedure of each institution. Regulation 1049/2001 has been integrated into the rules of procedure, requiring a register of documents to be kept and softening the exceptions to the right of access. Courts have not articulated a general principle of transparency/access to docs. Reg 1049/2001 states exceptions to access to info in art.5.
? Precautionary Principle: The courts, relying on many treaty articles, have elaborated a general principle that competent authorities must take appropriate measures to prevent potential risks to public health, safety and the environment, by giving precedence to these interests over economic ones. Misuse of Power: Art 230 misuse of power has been held by courts to cover situations where an institution takes a measure for purposes other than that stated, or evading a procedure specifically prescribed by the treaty for that kind of case. Through art.230 the European Courts have developed administrative law heads of review found in national systems, e.g. proportionality, fundamental rights, LEs, non-discrimination, transparency and the precautionary principle. Some have a textual foundation, others are developed by EU. The intensity of review: o For questions of law (e.g. definitions of state aid, worker, services, goods etc) the court will simply substitute its judgment for that of DM i.e. high intensity. o For questions of fact and exercise of discretion the courts will only quash the action/decision if there is manifest error, misuse of power, or clear excess in the bounds of discretion. Consequences of illegality/invalidity: Art 231 says that the measure becomes void, while art. 233 requires an institution, whose action is void/inaction is contrary to treaty, has to take necessary measures to comply with ECJ judgment. Nullity is generally retroactive, but art 231(2) allows the court to qualify the nullity e.g. temporal limit to effect of judgment, so as to avoid causing undue hardship.
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