Judicial Protection in the European Union

Name: Judicial Protection in the European Union
Brand: Kluwer Law International
Price: 411.99 EUR
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Henry G. Schermers Denis F. Waelbroeck(Author)

Kluwer Law International (Publisher)

6th Edition

Published on 1. January 2000

922 pages

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Appearing at a time when the ancient problem of the individual versus the state once again occupies the minds of thinking Europeans, this important new book thoroughly evaluates the judicial system of the European Union, fully describing the nature of the judicial protection available to individuals, undertakings, and member States. With attention to the rapid and continuing development of the Community legal order, Schermers and Waelbroeck provide a much-needed perspective on the reasoning of the European Court of Justice in significant decisions, especially recent cases, and shed revealing light on how the rule of law may develop in future.
An introductory chapter offers a masterful description of how Treaty provisions, Community acts, international law, and national legal orders interact in the procedures and decisions of the Court of Justice. Further chapters provide analysis and insight into such matters as the following:

- the crucial role of national courts as guarantors of the rights of individuals in Community law

- the validity of acts taken by Community institutions and member States, and protection against them

- the delivery of non-judicial opinion and other tasks of the Court of Justice

- the composition, function, and rules of procedure of the Court

- the organisation of the Court of First Instance and the appeal procedure against its decisions.

Judicial Protection in the European Union is organised to facilitate its prodigious reference value. All important cases are examined, and abundant footnotes clearly indicate relevant precedents in each case. This is a fundamental source for students of European law, as well as a basic reference for practitioners and a valuable analysis of the strengths and weaknesses of the European system of judicial protection.

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Content

Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
Introduction
I. PURPOSE OF THE BOOK
II. REFERENCES
A. Cases
B. Books and articles
C. Treaty Articles
III. ACKNOWLEDGEMENTS
CHAPTER ONE The Community Legal Order
I. CONCEPT
II. SOURCES
A. Treaty provisions and Community acts
1. Texts
a) THE TREATIES
b) SECONDARY COMMUNITY LAW
c) TERTIARY COMMUNITY LAW
d) 'PSEUDO-LEGISLATION'
2. Interpretation by the Court of Justice
a) LITERAL INTERPRETATION
i. Literal interpretation v. teleological interpretation
ii. A contrario reasoning
iii. Choice of Community language
iv. Comparative law
v. Use of the plural or of the singular
vi. Broad interpretation of the principles and strict interpretation of the exceptions - strict interpretation of criminal law provisions
b) SYSTEMATIC INTERPRETATION
i. Historical background
ii. Place of a provision
iii. International legal framework
iv. Preliminary considerations
v. Interpretation by the author of the act or by its addressee - Declarations or reservations made in the minutes of the meeting where the act was adopted
vi. Interpretation by analogy
vii. The lex specialis principle
viii. 'Legalizing interpretation'
c) TELEOLOGICAL INTERPRETATION
i. Promotion of the objective
ii. Prevention of unacceptable results
iii. The filling of gaps
B. General principles of law
1. Various types of general principles of law
a) COMPELLING (OR CONSTITUTIONAL) LEGAL PRINCIPLES
b) REGULATORY PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES
c) GENERAL PRINCIPLES, NATIVE TO THE COMMUNITY LEGAL ORDER
d) IMPORTANCE OF THE DISTINCTION BETWEEN THE VARIOUS CATEGORIES OF PRINCIPLES
2. Foundation of general principles in the Treaties
a) EXPRESS REFERENCES
b) APPLICATION WITHOUT REFERENCE
3. 'Generally accepted' legal principles
a) COMPELLING LEGAL PRINCIPLES
b) REGULATORY RULES
4. Against whom may the principles be invoked?
5. General principles applied by the Court of Justice
a) FUNDAMENTAL HUMAN RIGHTS
i. Sources
ii. Public policy character?
iii. Main human rights
iv. Scope of guaranteed rights
b) THE REQUIREMENT OF JUDICIAL CONTROL AND THE RIGHT TO A FAIR HEARING
i. The requirement of judicial control
a- As against Member States in the implementation of Community law
ß- As against Community Institutions
?- Need for full jurisdictional control?
d- Need for a hearing within a reasonable time
e- The presumption of innocence
ii. The right to a fair hearing
a- Source of the right to a fair hearing
ß- Fields of application of the right to a fair hearing
?- Contents of the right to a fair hearing
d- Sanctions in case of infringement of a right to a fair hearing
c) LEGAL CERTAINTY
i. Concept
ii. Time-limits
iii. Acquired rights - withdrawal of acts
iv. Non-retroactivity
v. Immediate application of the law
vi. Legitimate expectations
vii. Use of understandable language
viii. Patere legem quam ipse fecisti
ix. Non bis in idem
x. Nulla poena sine lege
d) EQUALITY
i. The principle of non-discrimination
ii. Reverse discrimination
iii. Positive discrimination
iv. Discrimination as to nationality
v. Discrimination as to sex
vi. Discrimination on other grounds
e) FAIR APPLICATION OF THE LAW
i. Equity, natural justice and fairness
ii. Proportionality
iii. Good faith
iv. Estoppel
v. Abuse of a right
f) THE DUTY OF LOYAL AND SINCERE COOPERATION
i. Introduction
ii. The positive obligation
iii. The negative obligation
g) SOLIDARITY
h) SUBSIDIARITY
i) UNDUE PAYMENT AND UNJUST ENRICHMENT
j) CONTINUITY OF COMMUNITY ACTION
k) THE PRINCIPLE OF SOUND ADMINISTRATION
i. Concept
ii. Remedies in cases of infringement of the principle
iii. The principle of transparency of Community action
iv. The duty of care
l) PRINCIPLES ALLOWING FOR EXCEPTIONS TO THE GENERAL APPLICABILITY OF THE LAW
i. Force majeure
ii. Act of State
iii. Self-protection
iv. Necessity
v. Public safety
vi. Public policy
vii. Public morality
C. Case-law of the Court of Justice
1. Importance of case-law as a source of Community law
2. Absence of a stare decisis principle
3. The res judicata principle
D. Custom
E. Other legal orders
1. Other legal orders as a source of Community law
2. International law
a) GENERAL RULES
b) TREATY OBLIGATIONS
i. Treaties concluded by Member States
ii. Treaty obligations of the Community
c) BINDING DECISIONS OF INTERNATIONAL ORGANIZATIONS
d) PEREMPTORY NORMS OF INTERNATIONAL LAW
3. National laws of the Member States
a) EXPRESS REFERENCES
b) IMPLICIT REFERENCES
i. General notions
ii. National legal notions
iii. Community legal notions
iv. The merger of legal notions
v. Conclusions
III. INCORPORATION IN THE NATIONAL LEGAL ORDER
A. Need for incorporation
B. Traditional systems of incorporation
1. Dualism
2. Mitigated dualism
3. Monism
C. The incorporation of Community law
1. Treaty provisions
2. Attitude of the Court of Justice
3. Attitude of national judiciaries
a) AUSTRIA, BELGIUM, FRANCE, GREECE, LUXEMBOURG, NETHERLANDS, PORTUGAL, AND SPAIN
b) GERMANY AND ITALY
i. Priority
ii. Constitutionality
c) BRITAIN, DENMARK, FINLAND, IRELAND, AND SWEDEN
D. Provisions having direct effect
1. The notion of 'direct effect'
2. Direct effect of Treaty provisions
3. Direct effect of secondary Community law
4. Direct effect of agreements with other States
IV. COMMUNITY PRE-EMPTION
A. Introduction
B. Exclusive competency of the Community
C. Parallel competencies of the Community and the Member States
CHAPTER TWO Application of Community Law by National Courts
I. TASK OF NATIONAL COURTS
A. Application of Community law
B. The principle of national procedural autonomy and its limits
1. Introduction
2. The principle of equivalence
3. The principle of effectiveness
a) REIMBURSEMENT OF SUMS UNDULY LEVIED
b) POSSIBILITY OF DAMAGES FOR BREACH OF COMMUNITY LAW
c) RESTRICTIONS ON THE POSSIBILITY TO SET ASIDE RULES OF NATIONAL LAW INFRINGING COMMUNITY LAW
d) POSSIBILITY OR OBLIGATION TO RAISE EX OFFICIO AN INFRINGEMENT OF COMMUNITY LAW?
e) THE REQUIREMENT OF A PROPER INTERIM RELIEF PROCEDURE
f) EXCESSIVELY STRICT RULES ON THE BURDEN OF PROOF
4. Towards a progressive harmonization of national procedural rules? The case of the public procurement directives
a) THE REASONS AND PRINCIPLES OF HARMONIZATION
b) INTERIM RELIEF
c) DAMAGES
i. Illegal behaviour
ii. Causal link
iii. Damages
d) FORUM FOR ACTION
e) CORRECTION MECHANISM
f) CONCLUSIONS ON THE PUBLIC PROCUREMENT REMEDIES DIRECTIVES
II. THE COOPERATION BETWEEN THE COURT OF JUSTICE AND THE NATIONAL COURTS - THE PRELIMINARY RULING PROCEDURE
A. Introduction
B. The text of the Treaties
1. The ECSC Treaty
2. The EC and Euratom Treaties
3. The EU Treaty
4. Conventions among Member States
5. The EEA Agreement
C. Function of preliminary proceedings
D. Relationship between national and Community courts
1. System of judicial cooperation
a) RELATIONSHIP OF COOPERATION AND NOT OF HIERARCHY
b) NON-FORMALISTIC APPROACH ADOPTED BY THE COURT
c) LIMITS TO THE NON-FORMALISTIC APPROACH ADOPTED BY THE COURT
2. Role of the parties
a) ROLE OF THE LITIGANTS
b) ROLE OF THE INSTITUTIONS AND THE MEMBER STATES
3. Division of tasks between national and Community courts
a) FORMULATION OF REFERENCES
b) INTERPRETATION V. APPLICATION
c) FACTS V. LAW
d) APPRAISAL OF THE RELEVANCE OF THE QUESTION AND OF THE COMPETENCE OF THE NATIONAL COURT
4. Cases where the Court of Justice refused to render a ruling
a) QUESTION NOT RELATING TO COMMUNITY LAW
b) QUESTION WHICH IS TOO GENERAL
c) QUESTION WHICH IS NOT RELEVANT
d) NON-JUSTICIABLE QUESTIONS
e) ABSENCE OF DEFINITION OF THE FACTUAL OR REGULATORY CONTEXT
f) ABSENCE OF A TRUE LITIGATION
i. Absence of a 'genuine dispute'
ii. Litigation which is already terminated, or which has not yet been started
iii. Requests which have been appealed - Withdrawal of references
g) POSSIBILITY FOR THE COURT TO REQUEST CLARIFICATIONS FROM THE NATIONAL COURT
5. Cases where the Court of Justice may decide by reasoned order
E. Ability to refer for a preliminary ruling
1. Inapplicability of national rules preventing references
2. National courts entitled to request preliminary rulings
a) ANY COURT OR TRIBUNAL OF A MEMBER STATE
b) AUTONOMOUS EC LAW CONCEPT
c) NORMAL COURTS V. SPECIAL COURTS
d) ORGANIC V. FUNCTIONAL DEFINITION OF COURTS
e) No CONTROL OF THE CORRECT COMPOSITION OF THE COURT
3. Reference by the legislature
4. Reference by 'foreign' and international courts
a) THE INTERNATIONAL COURT OF JUSTICE
b) THE EUROPEAN COURT OF HUMAN RIGHTS
c) THE BENELUX COURT OF JUSTICE
d) THE EFTA COURT
e) 'FOREIGN' COURTS
f) COURTS OF OVERSEAS COUNTRIES AND TERRITORIES OF MEMBER STATES
5. Reference by arbitral tribunals
6. Reference by courts in interim cases
7. Reference by courts in non-contentious proceedings
F. Obligation to refer for a preliminary ruling
1. The obligation on lower courts
a) QUESTIONS OF VALIDITY OF EC LAW
b) THE 'ACTE ÉCLAIRÉ' THEORY
2. The obligation on highest courts
a) HIGHEST COURT IN THE CASE, OR HIGHEST COURT IN THE COUNTRY?
b) HIGHEST COURTS WHOSE DECISIONS MAY SOMETIMES BE APPEALED
i. Special appeals
ii. The system of 'leave to appeal'
iii. Appeal in fact and in law?
c) HIGHEST COURTS GRANTING INTERIM INJUNCTIONS
3. Sanctions against breach of the obligation
G. Discretion not to refer for a preliminary ruling
1. The discretion of lower courts
a) THE DISCRETION AND ITS LIMITS
b) MUST THE QUESTION BE RAISED BY THE PARTIES?
c) WHEN IS A QUESTION 'NECESSARY' TO ENABLE THE COURT TO GIVE JUDGMENT?
d) CONTROL BY THE COURT OF JUSTICE
2. The discretion of highest courts
a) THE QUESTION IS IRRELEVANT
b) 'ACTE CLAIR'
c) PREVIOUS RULINGS
H. Issues susceptible to preliminary rulings
1. Introduction
2. The Treaties
a) THE BASIC TREATIES AND THE TREATIES AMENDING THEM
b) THE EU TREATY
c) VISAS, ASYLUM, IMMIGRATION AND OTHER POLICIES RELATED TO FREE MOVEMENT OF PERSONS
d) CASES OF DIFFERENTIATED INTEGRATION
e) THE 'SCHENGEN ACQUIS'
3. General principles of law
4. Acts of the Institutions
a) INTRODUCTION
b) ACTS WHICH ARE NOT DIRECTLY APPLICABLE
c) NON-BINDING ACTS
d) INDIVIDUAL ACTS AND OTHER ACTS WHICH COULD HAVE BEEN CHALLENGED BY A DIRECT ACTION BEFORE THE COURT OF JUSTICE
e) FAILURE TO ACT
f) ACTS OF THE EUROPEAN PARLIAMENT
g) JUDGMENTS OF THE COURT OF JUSTICE
h) JUDGMENTS OF THE COURT OF FIRST INSTANCE
i) ACTS WHICH HAVE NOT BEEN ADOPTED BY COMMUNITY INSTITUTIONS - DELEGATED POWERS
5. Questions of fact
6. International law
a) INTERNATIONAL LAW FALLING ENTIRELY OUTSIDE THE SCOPE OF COMMUNITY LAW
b) INTERNATIONAL LAW FALLING PARTLY WITHIN THE SCOPE OF COMMUNITY LAW (MIXED AGREEMENTS)
c) INTERNATIONAL LAW FALLING WITHIN THE SCOPE OF COMMUNITY LAW
d) QUESTIONS ON THE VALIDITY OF INTERNATIONAL TREATIES
7. National law
8. Agreements between individuals
I. Formal procedure before the Court of Justice in preliminary references
J. Effects of preliminary rulings
1. Binding effect on the judge having requested the ruling
2. Binding effect in other cases?
3. Retroactive effect
4. Obligation for the Institutions and Member States to comply
CHAPTER THREE Judicial Protection Against Acts of Institutions
I. THE NEED FOR JUDICIAL PROTECTION
A. Introduction
B. Key role of the Court of Justice
C. Need to compensate for the limited control exercised by the European Parliament
D. Absence of control by the European Court of Human Rights
E. Exercise by the Court of Justice of mere judicial review function (as opposed to full jurisdictional review)
II. JUDICIAL REVIEW OF COMMUNITY ACTS
A. Acts susceptible to judicial review
1. Differences between the various procedures
a) ACTS SUSCEPTIBLE TO JUDICIAL REVIEW IN THE ACTION FOR ANNULMENT
b) ACTS SUSCEPTIBLE TO JUDICIAL REVIEW IN A PLEA OF ILLEGALITY
c) ACTS SUSCEPTIBLE TO JUDICIAL REVIEW IN A PRELIMINARY RULING PROCEDURE
d) ACTS WHICH MAY BE REQUESTED IN AN ACTION FOR FAILURE TO ACT
e) JUDICIAL REVIEW OF COMMUNITY ACTS IN THE CONTEXT OF AN ACTION FOR DAMAGE
2. Non-formalistic approach adopted by the Court
a) THE FORMAL APPEARANCE OF AN ACT IS ONLY ONE RELEVANT CRITERION AMONG OTHERS
b) POSSIBILITY TO CHALLENGE MERE ORAL DECISIONS
3. Binding acts contemplated by the Treaties
a) THE WORDING OF THE TREATIES
i. The ECSC Treaty (Art. 14)
ii. The EC Treaty (Art. 249 [ex Art. 189]) and the Euratom Treaty (Art. 161)
b) THE DISTINCTION BETWEEN GENERAL AND INDIVIDUAL ACTS
i. Distinguishing criteria
ii. Individual provisions in general rules
iii. Acts which are general for some parties but individual for others
iv. The Court examines of its own motion whether the act is general or individual
c) DECISIONS ADDRESSED TO STATES
d) DIRECTIVES
e) THE BUDGET
4. Binding acts not contemplated by the Treaties
a) POSSIBILITY TO ATTACK ALL ACTS OF INSTITUTIONS, EVEN IF THEY ARE NOT ENUMERATED IN EC ARTICLE 249
b) DECISIONS OF REPRESENTATIVES OF MEMBER STATES MEETING WITHIN THE COUNCIL
c) INTER-INSTITUTIONAL AGREEMENTS
5. Non-binding acts
6. Acts producing no legal effects vis-à-vis third parties
a) INTRODUCTION
b) INTERNAL GUIDELINES
c) CONFIRMATIVE ACTS
7. Non-existent acts
8. Treaties establishing the Communities and the European Union
9. International agreements concluded by the Communities
10. Parts of acts
11. Groups of acts
a) ACTS 'IMPLICITLY' CHALLENGED
b) ACTIONS AGAINST STRINGS (OR CHAINS) OF DECISIONS
12. Preliminary acts
13. Withdrawal of acts
14. Agreements with individuals
15. Recitals of an act
16. Practice of an Institution
17. Failure to act
18. Refusals to act
19. Silence of the Institution
B. Grounds of illegality
1. Introduction
2. Lack of competence
a) COMPETENCE RATIONE PERSONAE (AND THE PROBLEM OF DELEGATION OF POWERS)
i. Introduction
ii. Delegation of powers to separate agencies
iii. Delegation of powers to Member States
iv. Delegation of powers to public international organizations
v. Delegation by the legislator of implementing powers to the executive
a- The advisory committee procedure
ß- The management committee procedure
?- The regulatory committee procedure
d- The safeguard measures procedure
vi. Delegation of powers within one Institution
vii. Delegation of signature
viii. Authentification of the act
b) COMPETENCE RATIONE MATERIAE
i. Competence is attributed by the Treaties
ii. The theory of 'implied powers'
iii. EC Article 308 [ex Article 235]
c) COMPETENCE RATIONE LOCI
3. Infringement of an essential procedural requirement
a) CONSULTATION
b) STATEMENT OF REASONS
i. Why is reasoning needed?
ii. When is reasoning needed?
iii. What constitutes reasoning?
iv. How extensive should reasoning be?
v. Acts which may require less reasoning
a- Participation of the addressee of the act in its formulation
ß- Requirements of professional secrecy
?- Reasoning that may be prejudicial to the addressee of the act
d- Acts whose purpose is clear
e- Reasoning of 'fishing expeditions'
?- Reasoning in case of fast decision-making
?- Reasoning of implied decisions
?- Reasoning of partial modifications of acts
?- Reasoning of rejections of tenders
?- Reasoning of acts implying the exercise of discretionary powers
vi. Consequences of insufficient reasoning
vii. Possibility for the courts to substitute their own reasoning for that of the Institution concerned?
c) PUBLICATION AND NOTIFICATION
i. Publication requirements
ii. Notification of acts to their addressees
4. Infringement of the Treaty
a) ERRORS IN LAW
b) ERRORS IN FACT
i. Errors in fact as an infringement of the Treaty
ii. Absence of control of errors in fact on appeal
iii. Changes of facts after the adoption of the act
iv. Limits to the control of errors in fact - marginal review by the Court
a- Evaluation of a situation resulting from economic facts or circumstances
ß- Assessment of qualification for a post or for a promotion or of the proper disciplinary sanction
?- Medical or other expert assessments
5. Infringement of any rule of law relating to the application of the Treaty
6. Misuse of powers
C. Ways of challenging Community acts
1. Introduction
a) PROCEDURES IN WHICH A COMMUNITY ACT CAN BE CHALLENGED
b) ABSENCE OF OTHER REMEDIES (SUCH AS AN ACTION FOR PAYMENT)
c) DIFFERENT RULES APPLYING IN THE THREE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES
d) REMEDIES IN THE EU TREATY
2. The action for annulment
a) THE TEXT OF THE TREATIES
b) PURPOSE OF THE ACTION FOR ANNULMENY
c) AGAINST WHOM MAY THE ACTION BE BROUGHT?
i. Acts of Community Institutions
ii. Acts of the European Parliament
iii. Acts of members or officials of an Institution or of organisms to which the Community has delegated powers
d) CAPACITY TO BRING THE ACTION
i. Actions by Member States and Institutions
a- Actions by Member States, the Council and the Commission
ß- Actions by other Institutions
?- Actions by local entities or foreign States
ii. Actions by private parties under the ECSC Treaty
a- Acts which may be challenged by private parties under the ECSC Treaty
ß- Undertakings entitled to bring an action under the ECSC Treaty
?- Actions against general decisions under the ECSC Treaty
d- Actions against individual decisions under the ECSC Treaty
iii. Actions by private parties under the EC and Euratom Treaties
a- Definition of 'private parties'
ß- Actions challenging decisions
?- Actions challenging regulations or other general acts (the need to establish a 'decision taken in the form of a regulation')
d- 'Individual and direct concern'
e- 'Individual concern'
?- 'Direct concern'
iv. Actions by officials and other servants of the Communities
v. Necessity in all cases for private parties to demonstrate a personal interest in the case
3. The action against failure to act
a) THE TEXT OF THE TREATIES
b) PURPOSE OF THE ACTION AGAINST FAILURE TO ACT
c) PRECONDITIONS OF THE ACTION AGAINST FAILURE TO ACT
i. Acts susceptible of being requested
a- Preliminary acts
ß- Non-binding acts
?- The acts must be 'sufficiently defined'
ii. Calling upon the Institution to act
iii. Reply of the Institution
iv. Time-limits
a- Actions started too late
ß- Action started too early
?- When does a failure to act become reproachable?
d- Time-limits for the Institution to reply to the invitation to act
e- Institution putting an end to its failure to act before the Court judgment
?- Time-limit for filing the action
d) CAPACITY TO BRING AN ACTION
i. Actions by Member States and by other Institutions
ii. Actions by private parties
iii. Actions by officials and other servants of the Communities
e) AGAINST WHOM MAY THE ACTION BE BROUGHT?
f) GROUNDS OF ILLEGALITY
g) CASES WHERE THERE IS AN OBLIGATION TO ACT
h) BORDERLINE BETWEEN THE ACTION FOR ANNULMENT AND THE ACTION AGAINST FAILURE TO ACT
i. Statement of the Institutions that no act will be taken
ii. Existence of a merely oral position of the Institution
iii. Existence of an act not taking over some elements of the initial proposal
iv. Failure to comply with a judgment of the Court
v. Use of the action against failure to act to circumvent the time-limits of the action for annulment
vi. Absence of a majority within the Council to adopt an act
4. The plea (or objection) of illegality
a) THE TEXT OF THE TREATIES
b) PURPOSE OF THE PLEA OF ILLEGALITY
c) INCIDENTAL CHARACTER OF THE PLEA OF ILLEGALITY
i. Actions for annulment
ii. Actions against failure to act
iii. Actions against Treaty violations by Member States
iv. Actions for damages
v. Proceedings before national courts
d) AGAINST WHAT KIND OF ACTS CAN THE PLEA BE USED?
i. Not against decisions
ii. Against all acts of a general character
iii. The contested regulation must form the basis of the act in dispute
e) WHO CAN INVOKE THE PLEA?
f) GROUNDS OF ILLEGALITY
g) OBLIGATION TO RAISE THE PLEA EXPLICITLY
5. Preliminary rulings on the validity of acts
a) COMPETENCE OF NATIONAL COURTS
i. Possibility to challenge the validity of a Community act before a national court
ii. Obligation for a national court to refer to the Court of Justice questions on the validity of a Community act if it has doubts in this respect
a- The ECSC Treaty
ß- The EC and Euratom Treaties
?- The possibility for national courts to provisionally suspend Community acts in interim relief proceedings
d- Sole competence of the Court to rule over a failure to act by a Community Institution
iii. Exceptional possibilities for the Court of Justice to rule ex officio on the validity of a Community act even if no question is referred to it in this regard
b) GROUNDS OF ILLEGALITY
i. Same grounds as for the review of legality
ii. Need to set out the grounds in the question itself?
c) AUTONOMOUS CHARACTER OF THE REVIEW OF VALIDITY - THE REVIEW OF VALIDITY AS A COMPLEMENT TO THE REVIEW OF LEGALITY
d) LIMITS OF THE REVIEW OF VALIDITY AS A SUBSTITUTE FOR THE LACUNAE IN THE REVIEW OF LEGALITY
e) ACTS SUSCEPTIBLE TO JUDICIAL REVIEW IN A PRELIMINARY RULING PROCEDURE
6. The action for damages
a) ACTION FOR DAMAGES V. ACTION FOR ANNULMENT
b) AUTONOMOUS CHARACTER OF THE ACTION FOR DAMAGES
7. Actions by officials and other servants of the Communities
D. Effect of judicial review
1. The text of the Treaties
2. Effects of an unsuccessful action for judicial review
3. Effects of a successful action for annulment
a) GENERAL EFFECTS
b) ANNULMENT OF THE WHOLE ACT OR OF PARTS OF IT?
c) EFFECTS ON OTHER ACTS
d) EFFECTS ON PREVIOUS ACTS REVIVED BY THE ANNULMENT
e) RETROACTIVE EFFECTS
f) THE 'FONCTIONNAIRE DE FAIT' THEORY
g) OBLIGATION TO COMPLY WITHIN A 'REASONABLE TIME'
h) SPECIFIC DIFFICULTIES IN IMPLEMENTING A JUDGMENT
i) ANNULMENT OF AN IMPLICIT DECISION OF THE INSTITUTION
4. Effects of a declaration by the Court in a preliminary ruling or in a suit for damages that the act is invalid
a) EFFECTS ON OTHER CASES?
b) EFFECTS ON OTHER ACTS?
c) RETROACTIVE EFFECT OF THE INVALIDITY
d) EFFECTS ON THE INSTITUTIONS CONCERNED
5. Effects of a successful plea of illegality
6. Effects of a successful action for failure to act
III. ACTIONS AGAINST THE INSTITUTIONS IN WHICH THE COURT EXERCISES UNLIMITED JURISDICTION
A. Limited v. unlimited jurisdiction
B. The action for damages
1. Purpose of the action for damages
2. Difference between contractual and non-contractual liability - The text of the Treaties
3. The conditions of admissibility
a) THE CLAIMANT
b) THE DEFENDANT
i. Damage caused by the Institution itself
ii. Damage caused by civil servants
iii. Damages caused by Member States in the implementation of Community law
a- Court where the suit must be brought
ß- Shared liability
c) FORMAL REQUIREMENTS
d) LIMITATION PERIODS
e) NECESSITY OF A PREVIOUS ACTION FOR ANNULMENT OR FOR FAILURE TO ACT?
i. Introduction
ii. Actions for damages caused by individual acts which could have been challenged
iii. Actions for damages caused by general or individual acts which could not have been challenged
iv. Conclusion
4. The conditions of liability
a) INTRODUCTION
b) LIABILITY FOR WRONGFUL ADMINISTRATIVE ACTS OR CIVIL WRONGS
i. Civil wrongs
ii. Abusive or erroneous application of powers
iii. Non-performance of obligations
iv. Inadequate organization of the administration
v. Inadequate supervision
vi. Erroneous information
vii. Abusive criticism of a person
viii. Breach of internal rules
ix. Failure to comply with a previous judgment of the Court
x. Breaches of the duty of confidentiality and the duty to warn the applicant
c) LIABILITY FOR WRONGFUL NORMATIVE ACTS
i. Introduction
a- Legal basis
ß- The concept of 'normative acts' - Damage caused by the basic Treaties - Damage caused by international treaties
?- Omission to adopt an act
d- Relationship with other judicial remedies
ii. Conditions of liability for normative acts
a- The 'sufficiently serious breach of law'
ß- Breach of a 'superior rule of law for the protection of individuals'
?- The sufficiently specific and important injury
d) LIABILITY FOR VALID ACTS
e) DAMAGES
i. The submission of the claim
ii. The injury must be 'real and certain'
iii. The reparation must be adequate
a- Evaluation ex aequo et bono
ß- Full jurisdictional power
?- 'Passing on' defence
d- Adequate reparation also for liability of Member States
iv. Interest
v. Conversion into national currency
vi. Immaterial damages
vii. Lost profit
viii. Exemplary damages
ix. Periodic penalty payments
x. Possibility to limit in time the period for which reparation is due?
xi. Reparations in kind
xii. Proof
xiii. Obligation for the Court to give adequate reasoning as to the amount of damages granted
f) CAUSAL LINK
D. Actions brought by civil servants
D. Actions against penalties
1. Procedure before the Commission
2. Procedure before the Court
3. Penalties
a) NATURE OF PENALTIES
b) SPECIAL PROVISIONS
c) AMOUNT OF THE PENALTIES
d) LIMITATION PERIODS
IV. ARBITRATION CLAUSES
V. LITIGATION IN THE FIELD OF INDUSTRIAL AND COMMERCIAL PROPERTY
CHAPTER FOUR Judicial Protection against Acts of Member States
I. THE NEED FOR JUDICIAL PROTECTION
A. Introduction
B. Supervision exercised by the Commission, by the Member States and indirectly by private parties
II. REVIEW INITIATED BY THE COMMISSION
A. Scope of the review
1. The text of the Treaties
a) THE ECSC TREATY
b) THE EC AND EURATOM TREATIES
i. The ordinary infringement procedure of EC Article 226 and Euratom Article 141
ii. The State aid infringement procedure of EC Article 88 [ex Article 93]
iii. The infringement procedure of EC Article 298 [ex Article 225] as against restrictive measures taken for public security reasons
iv. The infringement procedure against national central banks in EC Article 237(d)
v. The infringement procedure under EC Article 237(d) for non-compliance with the Statute of the European Investment Bank
vi. Specific infringement procedures in the Euratom Treaty
vii. The infringement procedure of EC Article 95(4) [ex Article 100a(4)] as against measures taken in derogation of a harmonization directive
viii. The infringement procedure of EC Article 86(3) [ex Article 90(3)]
ix. Specific infringement procedures in Community regulations and directives
c) THE EU TREATY
2. Number of cases
3. Time involved
B. Prerequisites for Court action
1. The existence of a breach
a) HOW DOES THE COMMISSION DETECT A BREACH?
b) BURDEN OF PROOF
i. The Commission bears the burden of proof
ii. Consequences of a failure by Member States to comply with a notification requirement
c) ACT CAUSING THE BREACH
i. Any act of the State
ii. Change of the law during the procedure
iii. Existence of an act not actually applied
iv. Breaches resulting from the application of the law
v. Improper implementation of directives
vi. Improper implementation of regulations
d) OBLIGATION BREACHED
i. Breach of any provision of Community law
ii. Breach of additional treaties
iii. Breach of general principles of law
e) BREACH ENDED BEFORE THE COURT RENDERS ITS JUDGMENT
2. The initial letter of formal notice
3. The reasoned opinion
a) DESIGNATION OF THE BREACH
b) A COHERENT STATEMENT OF REASONS
c) NO POSSIBILITY TO ALTER THE RIGHTS AND OBLIGATIONS OF MEMBER STATES
d) GRANT OF AN OPPORTUNITY FOR RECTIFICATION
i. Indication of the measures necessary to bring the infringement to an end?
ii. Time-limits granted to the Member State
e) LEGAL STATUS OF THE REASONED OPINION
i. Publication requirements?
ii. Adoption by the Commission as a collegiate body
iii. Absence of direct remedies against reasoned opinions
iv. The action before the Court
C. Control exercised by the Court
1. Objective nature of the infringement procedure
2. Alleged justifications for breaches
a) STATEMENT OF RESERVATION
b) AUTONOMY OF THE STATE
c) ABSENCE OF INTEREST
d) DIFFICULTIES IN IMPLEMENTATION
e) ILLEGALITY OR NON-EXISTENCE OF THE INFRINGED RULE
f) AVAILABILITY OF LOCAL REMEDIES
g) PRINCIPLES OF 'RECIPROCITY' AND 'ESTOPPEL'
h) CONTRADICTION WITH PRIOR DECLARATIONS OR BEHAVIOUR OF THE COMMISSION
i) DIRECT EFFECT OF DIRECTIVES
j) EXISTING PROPOSALS OF HARMONIZATION
k) ABSENCE OF ANY DE MINIMIS RULE
l) INFRINGEMENT NOT DISPUTED BY THE MEMBER STATE CONCERNED
m) LEGITIMATE EXPECTATIONS OF THE BENEFICIARIES OF THE ILLEGAL ACT
D. Against whom may the action be brought?
1. Action against the State or against the government?
2. Infringement by the judiciary
3. Infringement by the legislator
4. Infringement by local or regional entities
5. Infringement by State-owned companies
E. Discretion of the Commission
1. EC and Euratom Treaties
a) ABSENCE OF AN OBLIGATION TO ACT
b) DISCRETION AS TO THE TIME FOR INITIATING AN ACTION
c) DISCRETION AS TO THE STATE AGAINST WHICH THE ACTION IS BROUGHT
d) DISCRETION AS TO THE CONTENTS OF THE ACTION
2. ECSC Treaty
F. The decision of the Court and its application
1. EC Article 228 [ex Article 171]
2. Powers of the Court
3. Enforcement
4. Effect
a) ECSC TREATY
b) EC AND EURATOM TREATIES
III. REVIEW INITIATED BY OTHER MEMBER STATES
A. EC Article 227 [ex Article 170]
B. EC Article 239 [ex Article 182]
C. EU Article 35(7)
IV. REVIEW INITIATED BY INDIVIDUALS
A. Possibility to file complaints with the Commission
B. Actions before national courts and preliminary rulings
1. Actions before national courts and the preliminary ruling procedure are complementary to the infringement procedure
2. The preliminary ruling procedure only allows for an interpretation of Community law
a) WHY THE PRELIMINARY RULING PROCEDURE SHOULD NOT BECOME A DISGUISED INFRINGEMENT PROCEDURE
b) CASES WHERE THE COURT HAS RESPONDED SPECIFICALLY TO QUESTIONS RELATING TO THE LEGALITY OF A NATIONAL LEGISLATION
c) USE OF THE PRELIMINARY RULING PROCEDURE TO OBTAIN THE CONDEMNATION OF THE LAW OF ANOTHER MEMBER STATE
d) POSSIBILITIES FOR INTERIM MEASURES AGAINST NATIONAL RULES INFRINGING EC LAW
CHAPTER FIVE Other Tasks of the Court of Justice
I. NON-JUDICIAL OPINIONS OF THE COURT OF JUSTICE
II. REMEDIES CONCERNING THE EUROPEAN INVESTMENT BANK
III. AUTHORIZATION TO ENFORCE A GARNISHEE ORDER
IV. DEPRIVING A MEMBER OF THE COURT OR OF THE COMMISSION OF HIS OFFICE
V. SPECIFIC POWERS UNDER THE EURATOM TREATY
VI. SPECIFIC POWERS UNDER INTERNATIONAL AGREEMENTS
CHAPTER SIX Structure and Operation of the Court of Justice
I. COMPOSITION OF THE COURT OF JUSTICE
A. The judges
1. Number of judges
2. Nationality
3. Requirements
4. Appointment
5. Rights and obligations of judges
B. The advocates-general
C. Staff
1. The Registry
2. Legal secretaries
3. Lecteurs d'arrêts
4. Research department
5. Library
6. Database
7. Language department
8. Further staff
D. Seat
II. ORGANIZATION OF THE COURT
A. Sessions
B. The President
C. Chambers
D. Judge-rapporteur
III. PROCEDURE
A. Preliminary points
1. Representation
a) THE COMMUNITIES
b) PARTIES BEFORE THE COURT OF JUSTICE
2. Legal aid
3. Language of the case
4. Time-Limits
a) NATURE
i. Purpose of time-limits
ii. Public policy character of time-limits
iii. Strict character of time-limits
iv. Time-limits must be prescribed by law
v. Burden of proof
b) DURATION
c) COMMENCEMENT OF THE PERIOD
i. Regulations or other acts published in the Official Journal
ii. Decisions
d) RUNNING OF TIME
e) TERMINATION OF THE PERIOD
5. Interim measures
a) INTERIM MEASURES BY THE COMMUNITY COURTS
i. Introduction
ii. The prima jacie case ('jumus boni juris')
iii. The urgency of the measure ('periculum in mora')
iv. The applicant must act in his own interest
v. The balance of interests
v. Measures which may be prescribed
vi. Cases in which interim measures may be prescribed
vii. The request for interim measures must relate to the main application
viii. Form of the request
ix. Procedure for the adoption of interim measures
x. Appeals against decisions in interim relief cases
b) INTERIM MEASURES BY THE COMMISSION
c) INTERIM MEASURES BY NATIONAL COURTS
6. Expedited procedures
7. Lis pendens
B. Written Proceedings
1. Application
a) DIRECT ACTIONS
i. Formal requirements
ii. No possibility to alter the actual claim during the course of the procedure
iii. No possibility to alter the grounds of appeal during the course of the procedure
iv. Possibility to raise grounds not raised during the pre-trial administrative procedure?
v. Obligation for the Court to raise on its own motion all issues pertaining to public policy
vi. Irregularities in the application which may be corrected
vii. Irregularities in the application which are not essential
b) PLEADINGS IN PRELIMINARY REFERENCES
2. The joining of cases
3. Intervention
a) IN DIRECT ACTIONS
i. When to intervene?
ii. Cases in which interventions are admissible
iii. Intervention by private parties
iv. Intervention by States and Institutions
v. Form of the intervention and procedure for allowing the intervention
vi. Rights of the intervener
vii. No compulsory intervention
b) IN PRELIMINARY REFERENCES
4. Preliminary objections
5. Defence, reply and rejoinder
6. Default
7. End of written proceedings
8. Confidentiality of written pleadings
9. Discontinuance
10. Decease of the applicant
C. Preparatory inquiries and other preparatory measures
1. General
2. Proof
D. Oral Procedure
1. Report of the judge-rapporteur
2. Oral submissions in cases of direct actions before the Court
3. Oral submissions in cases of references for preliminary rulings
E. Practice directions
F. Decision
1. Character
2. Deliberation and voting
3. Dissenting opinions
4. Costs
a) DIRECT ACTIONS
b) PRELIMINARY RULINGS
c) INTERVENTIONS
5. Delivery and publication of judgments
6. Correction
7. Interpretation
8. Enforcement
9. Third party proceedings
10. Revision
CHAPTER SEVEN The European Court of First Instance
I. INTRODUCTION
II. STRUCTURE AND ORGANIZATION OF THE COURT
A. Seat and staff
B. Composition
1. The judges
2. The President
3. The advocates-general
III. TASKS
IV. PROCEDURE
A. Procedure before the Court of First Instance
B. Appeals
1. Right of appeal
a) DECISIONS WHICH MAYBE APPEALED
b) TIME-LIMITS FOR APPEAL
c) FORM OF THE APPEAL
d) PARTIES ENTITLED TO APPEAL
2. Grounds of appeal
a) INTRODUCTION
b) APPEAL ON POINTS OF LAW ONLY
c) NO RIGHT TO RAISE NEW POINTS OF LAW
d) DECISION JUSTIFIED ON OTHER GROUNDS
e) NO RIGHT TO INVOKE GROUNDS OF APPEAL IN WHICH A PARTY HAS NO INTEREST
3. Response, reply and rejoinder
4. Appeal procedure before the Court of Justice
5. Interventions in appeal proceedings
6. Effects of an appeal
a) ABSENCE OF SUSPENSORY EFFECT OF THE APPEAL
b) CONSEQUENCES OF A WELL-FOUNDED APPEAL
V. JUDICIAL PANELS
I. Table of Cases - Alphabetical
II. Table of Cases - By Number
III. Table of Citations of Treaty Articles
IV. Table of Authors
V. Index
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Judicial Protection in the European Union

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