The primacy and effectiveness of EU law

Chiara FavilliRome

7-8 April 2014

The principle of primacy

• Costa 1964

– Integrated legal systems– Precedence of Community law over earlier

conflicting national laws– Also over constitutional rules without having to

refer to national Constitutional Courts – Possible reference for a preliminary ruling before

the Court of Justice

Right to refer to the Courts• To dispute a EU law that is considered to be vitiated

• To act against the inactivity of EU institutions

• To act against the inactivity of States

• To claim compensation for damage caused by the EU

• To interpret/disapply a national rule in the light of EU obligations

• To claim compensation for damage caused by the State

Proceedings before the Court of Justice

• Direct– Annulment proceedings (263 TFEU)– Proceedings for failure to act (265 TFEU)– Proceedings for non-contractual liability (340 TFEU)– Infringement proceedings (258-260 TFEU)

• Indirect– Reference for a preliminary ruling (267 TFEU)

• On interpretation• On validity

To dispute a EU rule that is considered to be vitiated

• Annulment proceedings– Direct appeal to the Court of Justice

• Reference for a preliminary ruling– Indirect proceedings: it is the national judge who

refers to the court

Annulment proceedings

• Entitled subjects– Member States, institutions and EP– Court of Audits, ECB, Committee of the Regions to

protect their own prerogatives – Natural and legal persons

1. Adopted acts concerning them2. Directly and individually concerned 3. Non-enforced regulatory norms that concern them

directly

Natural and legal persons1. Acts adopted concerning them– Targets: decisions

2. Directly and individually concerned– Directly: Adedy case, 27 November 2012, T-541/10

and T-215/11– Individually: Plauman case, 15 July 1963, case 25/62

3. Non-enforced regulatory norms that concern them directly

Referrals submitted by Associations(Unión de Pequeños Agricultores, C-50/00, 25 July 2002 )

• Referrals submitted by associations are entitled to be received in at least three typical situations:– When a regulatory provision expressely acknowledges a

number of procedural powers to professional associations;

– when the association represents the interests of enterprises which, in turn, are entitled to act;

– when the association is identified for the prejudice caused to its own interests as an association, namely if its negotiator’s position has been prejudiced by the act whose annulment is requested.

Reference for a preliminary ruling• Indirect proceedings: it is the national judge

who refers to the Court

• To request an opinion on the validity of a EU rule

• It overcomes the limitations of direct appeals– Those who were entitled to direct referral cannot

request a reference for a preliminary ruling, nor can a judge ex officio

To act against the inactivity of EU institutions

• Proceedings for failure to act

– Direct appeal– Entitled subjects• Targets• Subjects who are directly and individually concerned

(as in annulment proceedings)

To claim compensation of damage caused by the EU

• Proceedings for non-contractual liability – Direct appeal to the Court of Justice– Anyone who has suffered damage by EU

institutions/bodies/agencies• Damage• Illegittimate action of the EU• Causal link• Serious breach of a higher norm

To dispute the national rule

• Referral to the national judge

• Preliminary ruling on the interpretation of the EU rule to apply to a national judgment

• In case the national rule is not compliant with the EU rule– Disapplication – Referral to the Constitutional Court

Direct effects and disapplication• Simmenthal 1978

– EU rule, directly applicable or producing direct effects• Disapplication of earlier or later national law

• IN.CO.GE. ’90 – 1998– National rule– Neither invalid nor non-existent but– disapplied

• The legislator will have to modify the law and comply with EU obligations

• Precedence of any rule having direct effects– Costanzo brothers for directives 1989

• Disapplication also of national administrative provisions – Ciola, 1999

• Precedence also over constitutional rules

Lack of direct effects

• Referral to the Constitutional Court

• Modification of the law

• Possibility to claim compensation for damage caused by infringement of EU law

Infringement proceedings

• In the jurisdiction of the Commission or the States• Any other subject can only report the

infringement to the Commission• Pre-litigation phase: dialogue with the States -

confidentiality• Litigation phase: referral to the Court of Justice– Declaration of the infringement– Pecuniary penalty (260 TFEU)

• Failure to notify the implementation of directives• Second judgment for failure to execute the first judgment