¡Descarga EUROPEAN LAW UNIT 6 y más Apuntes en PDF de Derecho de la Unión Europea solo en Docsity! DUE UNIT 6 DUE UNIT 6: ACCESS TO THE ECJ 1. PRELIMINARY RULINGS Preliminary rulings are established on article 267 of the functioning treaty. Referrals to the ECJ are not an action, but rather a mechanism for cooperation between judiciaries: member states’ and the ECJ. It is a little known mechanism unless the judge has studied EU law or has some training in the area it is very rarely used. When in the course of proceedings the judge has a reasonable doub as to the interpretation or application (or both) of an EU norm, it shall stop the national proceedings and make a request for a preliminary ruling ot the ECJ. The ECJ answers to the national court (either interpreting the EU norm or it gives a judgement on the validity of an EU norm). The judge has to stop the national proceedings and make a referral to the ECJ. This question asks about the interpretation or validity of the EU norm. The ECJ receives the question/s and it is obliged to answer as long as it is well framed. The decision taken is compulsory, obligatory. Two kinds of preliminary rulings: Interpretation : The national court asks the ECJ for interpretation for a given EU norm. Just interpretation. The main preliminary question that national courts ask is about direct effect. The direct effect of a directive is declared through preliminary rulings (not the only way); the ECJ pronounces itself on the direct effect of a directive in the framework of a preliminary ruling. Invalidity: The national court asks to the ECJ to pronounce for whether a EU law is valid or not. Declares void or not. Regarding the procedure the national judge is entitled to address a preliminary reference if it is not a judge of last instance, but if it is there is an obligation to do so when having a reasonable doubt (there would not be appeal possible). The legal effects of preliminary rulings: They are legally binding upon the referring court. The national judge is obliged to follow the ECJ ruling, whatever this may be. Interpretations : It is obliged to follow ECJ’s interpretation and to interpret the EU norm in the same sense the ECJ did. Validity: If the ECJ rules that the EU norm is invalid, the national court cannot apply it to the case at hand. The effects are similar to annulment. 1 DUE UNIT 6 2. MEMBER STATE’S FAILURE TO COMPLY WITH EU LAW (Art.258, 259TFEU) Definition: It is an action addressed to make the ECJ declare that a MS has failed to comply with an EU norm (obligation). Standing: Locus standi: the European Commission, Member States. Standing to be sued: Member States. Procedure: When the commission starts the procedure, it has and administrative and a judicial face. The first is that of requirement to the member states to explain why there is a violation of EU law, there is a letter of request. The member state answers to that letter of request: if it does not convince the commission or there is not an answer, the European Commission issues a “reasoned opinion” asking the state to comply with EU law. The procedure might end there because it could be the case that the member state in question realises it has had wrongdoing. However, it can be that the attitude does not change and then, the EC might bring the action before the ECJ, which will give a judgement. Effects of the ECJ judgement: The Member state has to comply with the ECJ ruling. It is mandatory for the member state that was declared to have failed to comply with its obligations. Lump sums: Sums (sums that the Member State has to pay at once) and penalties if they don’t implement the ruling of the court (which are periodic); The European Commission might at first impose a penalty as well. They are foreseen in art.260TFEU: for cases in which the MS was declared guilty did not comply with the ECJ’s judgement and for art.258 cases (the European Commission brings the action). 2
