European union law

  • A.A. 2016/2017
  • CFU 9
  • Ore 45
  • Classe di laurea LMG/01
Fabrizio Marongiu Buonaiuti / Professore di ruolo - I fascia / Diritto internazionale (IUS/13)
Dipartimento di Giurisprudenza
Prerequisiti

Students are expected to have attended institutional courses on Public Law or Constitutional Law
(Diritto costituzionale 1 nell'attuale piano di studi del Corso di laurea) and Private Law (Diritto
privato 1) and to have passed the relevant exams. Since the course will be delivered in English, and
in the same language students are expected to sit for the relevant exams, a satisfactory level of
competence in the English language is an essential prerequisite.

Obiettivi del corso

The Course aims to introduce students to the peculiarities of the law of the European Union as a
distinct legal order. Particular attention will be devoted to the institutional structure of the EU as well
as to to the legislative procedures, facing the concern for the lack of democratic representation in
the decision-making process of the Union, and to the instruments allowing a flexible participation by
the Member States in the pursuit of some of the Union's goals.
The Course will be based on a detailed analysis of the provisions of the EU Treaties and legislation,
as relevant for the purposes of an institutional course, in light of the case law, particularly by the
European Court of Justice, in order to develop students' abilities to discuss competently on the main
issues posed by EU law, acquire a good command of the relevant terminology and an understanding
of the legal dynamics of the subject.

Programma del corso

The Course will be mostly focused on the following topics:

-distinctive features of the EU legal order, especially its "supra-national" character, viewed
through its origins and its subsequent developments;
-the role and nature of the founding treaties as primary sources of the EU legal order;
-the institutions of the Union: their powers and role in the structure of the Union and their
respective incidence in the decision-making process of the EU;
-the competences of the EU, their limits and coordination with the competences of the Member
States, the principles guiding the exercise of EU competences: subsidiarity and proportionality;
implied powers;
-the external competences of the EU: the principle of parallelism between internal and external
competences and the position of treaties concluded by the EU within its legal order;
-the legislative and non-legislative procedures as contemplated by TFEU and the issue of
democratic representation;
-the acts adopted by the EU and their distinctive features; legislative and non-legislative acts;
binding and non binding acts; acts of a general nature and acts addressed to specific subjects;
-the acts adopted in the field of common foreign and security policy, their features and
relationships with acts adopted in the other fields;
-enhanced cooperation as a means of introducing a form of differentiated integration among the
Member States;
-the relationship between the EU and the legal orders of the Member States: supremacy and its
consitutional limitations;
- the implementation of EU acts in the legal orders of the Member States; in particular, the issue
of direct effects;
-the judicial system of the EU: role and competences of the European Court of Justice and of its
constituencies: the Court of Justice, the General Court and the specialised courts;
-in particular, the judicial and advisory functions of the ECJ: contentious and non-contentious
procedures, opinions on the conclusion of agreements by the EU;
-the protection of fundamental rights within the EU: Article 6 TEU and the planned EU accession
to the ECHR; problems of coordination among different fundamental rights provisions;
-an introduction to the main policies of the EU as fundamental components of the Internal
Market: free movement of persons, including the implications of the European citizenship; free
movement of goods, services and capitals.

Texts and materials:

Students regularly attending the Course will be expected to prepare for the exam on the basis of
the notes taken during the Course and of the relevant materials indicated by the lecturer
(Treaties, EU and domestic legislation, case law and literature). These materials will be posted,
as a rule, on the webpage of the Course.

Students not attending the Course will be expected to study the subject on the following
textbook:

D. CHALMERS, G. DAVIES, G. MONTI, European Union Law, 3rd Ed., Cambridge (Cambridge
University Press), 2014 (repr. 2015), Chapters 1-11, 15, 17-19.

Students studying on the said textbook are advised to consult the provisions of the Treaties (TEU
and TFEU), as well as relevant EU legislation and cases, as cited in the specified chapters of the
textbook.

Testi (A)dottati, (C)onsigliati
  • 1.  (A) D. CHALMERS, G. DAVIES, G. MONTI European Union Law 3nd Ed., Cambridge, 2014 » Pagine/Capitoli: 1-11, 15, 17-19
Altre informazioni / materiali aggiuntivi

Students regularly attending the Course will be expected to prepare for the exam on the basis of the notes taken during the Course and of the relevant materials indicated by the lecturer (Treaties, EU and domestic legislation, case law and literature). The said materials will be posted, as a rule, on the webpage of the Course.
Students not attending the Course are advised to consult the Treaties (TEU and TFEU), as well as relevant EU legislation and cases, as cited in the specified chapters of the textbook.

Metodi didattici
  • The course will be delivered in classes (lezioni frontali).
    These will be supplemented by case studies (esercitazioni), mostly based on cases decided by the
    European Court of Justice (ECJ), which will be posted by the lecturer on the webpage of the Course.
    Special attention will be devoted to the discussion of cases, so as to allow students develop an
    ability to discuss competently in English issues related to the main topics forming the subject of the
    Course, acquiring a good command of the relevant legal terminology as well as a deep
    understanding of the underlying legal dynamics of EU law.
Modalità di valutazione
  • The exams will take place in both written and oral form. Students regularly attending the Course
    will have the opportunity of an intermediate written proof. Students passing the said proof shall
    sit for the final exam only on the issues treated in the Course after the intermediate proof.
    Written proofs (both the intermediate one for students attending the Course and the final one)
    will be based on open questions (themes) on the topics treated in the Course (for students
    regularly attending) or in the study programme for the exam (for students not attending the
    Course).
    The oral proof, which presupposes the passing of the written proof, may imply further questions
    on the topics treated in the Course (for students regularly attending) or in the study programme
    for the exam (for students not attending the Course).
Lingue, oltre all'italiano, che possono essere utilizzate per l'attività didattica

English

Lingue, oltre all'italiano, che si intende utilizzare per la valutazione

English

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Calendario
  Materiali didattici
  •  Treaties

     

  •  Historical Development of the European Integration

     

  •  The supra-national nature of the European Union

     

    • European Court of Justice (ECJ), Judgment of 5 February 1963, case 26/62, van Gend en Loos v. Netherlands Inland Revenue Administration

      In this famous judgment, the European Court of Justice stressed the distinctive features of the European Economic Community, as it then was, as "a new legal order of international law, for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals" (point B- on the substance of the case, page 12 of the file as attached, fourth paragraph).

    • European Court of Justice (ECJ), Judgment of 15 July 1964, in case 6/64, Costa v. ENEL

      In this famous judgment, shortly following that in the case of van Gend en Loos (see above), the European Court of Justice stressed further the distinctive features of the European Communities' (as they were at the time) legal order, pointing to the supremacy of that legal order on the domestic legal systems of the Member States: "By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the discrimination prohibited by Article 7." (cf. pages 593-594 in the reported text of the judgment here attached)

  •  The EU Legal System and the Constitutional Identity of the Member States

     

  •  The EU Institutional Framework

     

  •  Principles governing the competences of the EU and their exercise

     

    • ECJ, Judgment of 31 March 1971, case 22/70, Commission v. Council, European Agreement on Road Transport (s. c. ERTA case)

      This judgment, the first of a long line of case-law by the ECJ, applies the doctrine of implied powers, developed in the interpretation of treaties establishing international organizations, in respect of the external competence of the Union. The latter is to be intended as the competence to conclude agreements with third countries or international organizations, in respect of matters in which the EU is vested of an internal competence and has exercised it by the adoption of acts likely to affect also the relations with third countries in the field concerned, like, in the case at hand, in matters of transport of goods by road (see part titled Grounds of judgment, esp. para. 6 ff., at page 273 ff. of the enclosed file. Please note that the rules as contained in the original EEC Treaty under Article 75 ff., in matters of transport policy, are now to be found under Articles 90 ff. TFEU, above in the "Treaties" folder).

    • ECJ, Judgment of 17 December 1970, case 25/70, Koester and Berodt

      This judgment sheds light on the relevance of the procedure followed by the EU institutions for the adoption of EU acts for the respect of the balance of powers within the institutional framework of the Union, with particular regard to the limits inherent in the competences of the Commission in the adoption of implementing acts. The case discusses the legitimacy of the s. c. "comitology", that is, the procedure whereby committees composed of experts appointed by the Member States are called to assist the Commission in the adoption of impementing acts, pursuant to legislative acts regulating such a procedure (cf. paras 3 ff. of the judgment, page 1170 f. Please note that the rule as originally contained in Article 155 EEC Treaty, referred to in the judgment, concerning the adoption of implementing measures by the Commission, is now replaced by current Article 291 TFEU -above in the "Treaties" folder- and the s.c. Comitology, that is, the set of procedures whereby the Commission is assisted by committees of Member State-appointed experts in the adoption of implementing acts, is currently regulated in general terms under Regulation (EU) No. 182/2011, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011R0182&rid=1)

    • Court of first instance (currently: General Court), Judgment of 17 June 1998, case T-135/96, Union Européenne de l'Artisanat et del Petites et Moyennes Entreprises (UEAPME) v. Council

      The judgment stresses the need for democratic representation in the legislative activity of the Union. In relation to a case where, concerning the adoption of EU legislative acts concerning coordination of labour policies, a special legislative procedure was established in the Treaties, providing for the enactment through legislative acts of the Union of agreements reached between associations representative of the management (that is, of firms) on the one side and of labour (that is, of workers) on the other side, the Court considered that such an arrangement may validly replace the guarantee of democratic representation normally conveyed through the participation of the European Parliament to the legislative procedures, only insofar as the associations parties to the said agreements can be considered as truly representative of the categories, of firms and of workers, involved (cf. para. 88 ff. of the judgment, page 2371 f.. Please note that Council Directive (EC) 96/34, forming the subject of the judgment, has been subsequently replaced by Council Directive 2010/18/EU. A consolidated text is available for consultation at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:01996L0034-20120308&qid=1476956012310&from=EN)

    • ECJ, Judgment of 15 March 1967, cases 8 to 11/66, Société Anonyme Cimenteries et al. v. Commission

      The judgment concerns the criteria which must preside over the choice by the institutions of the Union of the type of acts to be adopted in the pursuit of the objectives of their action under the relevant Treaty provisions. The case concerned a communication which the European Commission had sent to a firm in reply to a notification of a proposal to establish a cartel with other firms in the field of the production of concrete, pursuant to the Treaty provisions in matters of competition and the Regulation governing the procedure to be followed in the application of such rules. The Court considered that in any event where, behind the form of a mere letter, the communication in its content and purpose is likely to affect the legal position of the addressees, the substance of the act is that of a decision, which, as a binding act pursuant to the current Article 288 TFEU, is amenable to judicial review by the Court of Justice by means of an action for annullment (art. 263 TFEU) or by means of a reference for a preliminary ruling (art. 267 TFEU), as in the case at hand (cf. Grounds of judgment, point on Admissibility, page 90 ff. of the enclosed text. Please note that the references to Article 189 EEC Treaty contained in the judgment are to be intended as directed to current Article 288 TFEU -above in the Treaties folder-; references to Article 85 EEC Treaty as directed to current Article 101 TFEU, and the procedure for the application by the Commission of the rules on matters of competition, at the time contained in Regulation No 17/62 cited in the judgment, is currently to be found in Regulation No. 1/2003. A consolidated version of the first Regulation, embodying the amendments introduced by the latter, is available for consultation at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:01962R0017-20040501&qid=1476956891634&from=EN)

  •  The Legal Acts of the European Union: in particular: EU Regulations

    This folder contains a selection of cases brougth before the European Court of Justice (ECJ), underlining the distinctive features of regulations as binding legal acts of the Union, with particular regard to their general nature and to their direct applicability in the domestic legal systems of the Member States.

    • ECJ, Judgment of 13 May 1971, joined cases 41 to 44/70, International Fruit Company et al. v. Commission

      This judgment is particularly relevant for the discussion it cointains of the general nature as a distinctive feature of EU regulations, as opposed to decisions, which, to the contrary, are normally directed to particular addressees. In relation to an EU act, making provision for importers of a given commodity (in the matter at hand, dessert apples) from third countries, who had filed an application for an import license within a specified period of time, so that, at the time the act was adopted, the number of affected applications was fixed and no new application could be added, the act in question, even though formally adopted as a regulation, could not be considered as having a true general nature, revealing instead its substantive nature as a bundle of decisions addressed to the closed number of those importers who had filed the prescribed application within the time limit specified in the act (cf. paras. 16 ff. of the grounds of judgment, page 421 ff. of the enclosed file. Please note that references in the judgment to the original Article 189 EEC Treaty, as then in force, are now to be intended as directed to Article 288 TFEU (types of legal acts of the Union), and references to Article 173 EEC Treaty to current Article 263 TFEU (action for annullment).

    • ECJ, Judgment of 18 May 1994, case C-309/89, Codorniu S.A. v. Council

      This judgment, to be read in conjunction with the earlier one in the case of International Fruit Company (see above in this folder), returns on the distinctive feature of EU regulations consisting of their general nature. In a case brought before the Court by a firm premised in Spain producing a particular sort of sparkling wine labelled as "crémant", it was contended whether an EU regulation making detailed provision in respect of the production and marketing of that specific sort of sparkling wines, which the regulation in its rules contemplated as originating uniquely form certain parts of France and of Luxembourg, was to be considered nonetheless as having general nature. The Court stated in this respect that, even though it might be possible, in point of fact, to identify, with a greater or lesser degree of precision, the subjects likely to be directly concerned by the act, an EU act adopted in the form of a regulation presents a true general nature insofar as it can be established that the subjects concerned are identified pursuant to an objectively determined situation as specified in the act (the fact of producing that particular sort of sparkling wine, in the matter at hand), so that the act produces legal effect in respect of a category of persons described in a general and abstract manner (see paras. 14 ff. of the judgment, page I-1884 ff.; as in the previous case, references to Article 173 EEC Treaty are to be intended as directed to current Article 263 TFEU).

    • ECJ, Judgment of 7 February 1973, case 39/72, Commission v. Italy (case concerning Premiums for slaughtering cows)

      This judgment is particularly relevant as concerns the distinctive feature of EU regulations consisting of their direct applicability within the domestic legal orders of the Member States. This presupposes that no domestic implementing measures shall be adopted in respect of EU regulations, except those which are strictly required in order for specific provisions to be concretely applied, in particular as concerns the determination of the competent national body to which the subjects concerned must revert in order to receive the sums, services or other performances to which the rules contained in the EU regulation entitles them. In the case at hand, an EU regulation providing for premiums to be granted to farmers intending to slaughter their cows in order to limit the excess of production of milk, and which required to be implemented at national level with a specification of the competent national bodies responsible for its application, had been rewritten into domestic legislation also for the part in which the regulation contained rules which were complete and of direct application. Italian implementing legislation so adopted was therefore considered to have brought attempt to the direct applicability of the regulation concerned, for the risk of concealing the EU nature of the rules to be applied and for substituting to the temporal regime of application of the regulation the distinct temporal regime of the domestic legislation, which was adopted well three years later (cf. para. 14 ff. of the grounds of judgment, page 113 ff. of the file enclosed; references to Articles 189 and 191, EEC Treaty as then in force, are now to be intended as directed to Articles 288 and 297 TFEU respectively; references to Articles 169 and 171 EEC Treaty to current Article 258 and 260 respectively (infringement procedure).

    • ECJ, Judgment of 11 January 2001, Case C-403/98, Azienda Agricola Monte Arcosu Srl v. Regione Autonoma della Sardegna

      This judgment, to be read in conjunction with the earlier one in the case of Premiums for slaughtering cows (see above, in this folder) is relevant in respect of direct applicability as a distinctive feature of EU Regulations. The EU regulation forming the subject of the case at hand autonomously fixed the requirements upon which a natural person (i.e.: an individual) is to be considered as a "farmer practising farming as his main occupation" and requested the Member States to specify through national implementing measures the conditions pursuant to which, reflecting the conditions posed by the regulation for natural person, a legal person (i.e.: a company, association or other entity provided of legal personality) is to be considered as possessing the same quality. The domestic implementing legislation adopted, in matters of its competence, by the autonomous region of Sardinia, was to be considered as not fulfilling its mandate, insofar as it did not provide for the relevant conditions in respect of all of the different categories of legal persons as contemplated under Italian law as could possibly be concerned by the EU regulation at hand. Since the determination of the said conditions in respect of any of the categories of legal persons concerned was to be considered as falling within the discretion of the Member State, legal persons belonging to a category in respect of which no provision had been made in the domestic legislation at hand could not rely on the provisions of the EU regulation before a national court (cf. para. 25 ff. of the judgment, page I-131 f. of the file enclosed).

  •  The Legal Acts of the European Union: in particular: EU Directives

    This folder contains a selection of judgments by the European Court of Justice (ECJ) concerning the distinctive features of EU directives, as binding legal acts of the Union, with particular regard to their attitude to produce direct effects on private subjects vis-à-vis their Member State, in the absence of implmenting measures adopted by the latter.

    • European Court of Justice (ECJ), Judgment of 23 May 1985, case 29/84, Commission v. Germany

      This case is particularly relevant as concerns the limits to the discretion which Member States enjoy in the choice of the forms and means through which the objectives of a directive are to be achieved. In the instant case, the Court considered that the pretended implementation of a directive by means of an established practice of the administration concerned does not satisfy the objectives of legal certainty and foreseeability which are pursued by the EU legislator (see particularly points 17 ff, especially 28 ff. in the grounds of judgment).

    • European Court of Justice (ECJ), Judgment of 18 December 1997, Case C-129/96, Inter-Environnement Wallonie v. Région Wallonne

      This case is particularly relevant as concerns the duty of standstill, whereby Member States to which an EU directive is addressed must refrain, pending the period for implementation, from any act which would be capable of jeopardising the ability of the directive to pursue its effects (see points 40 ff. in the grounds of judgment).

    • ECJ, Judgment of 4 December 1974, case 41/74, van Duyn v. Home Office

      See particularly points 9 ff. of the part in law of the judgment (page 1347 ff. in the enclosed file), especially point 12 (page 1348), as for the conditions upon which a directive may produce direct effects. Please note that references to Article 189 former EEC Treaty are now to be intended as addressed to Article 288 TFEU (concerning the legal acts of the Union), and references to Article 177 former EEC Treaty to current Article 267 TFEU (concerning references by domestic courts for preliminary rulings by the European Court of Justice).

    • ECJ, Judgment of 26 February 1986, case 152/84, Marshall v. Southampton and South-West Hampshire Area Health Authority

      See particularly points 39 ff. (page 747 ff. of the enclosed file), concerning the requirements for a directive to produce direct effects, and especially points 46 ff. Again, Article 189 former EEC Treaty is to be intended as corresponding, insofar as relevant in respect of the case at hand, to current Article 288 TFEU.

    • ECJ, Judgment of 13 November 1990, case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentaciòn SA

      See particularly points 6 ff. of the grounds for judgment, stressing the impossibility, as a matter of principle, of relying on the provisions of a directive against a private subject, absent national measures of implementation (s.c. exclusion of horiziontal direct effects). Also in this case, references to Article 189 of the EEC Treaty as then in force are currently to be intended as directed to Article 288 TFEU. References to former Article 5 EEC Treaty are currently to be intended as directed to the analogous provision now contained under Article 4, para. 3, TEU (duty of sincere cooperation).

    • ECJ, Judgment of 14 July 1994, Case C-91/92, Faccini Dori v. Recreb Srl

      The case concerns the ability of directives to produce direct effects absent domestic implementing measures. Cf. points 12 ff. of the grounds of judgment, concerning the assessment of the requirements (clarity, precision and unconditionality) for a directive to be considered likely to produce direct effects, and points 19 ff., concerning the determination of the subjects against whom those direct effects may be relied upon. As the Court stated, direct effects of a non-implemented directive may not be invoked by an individual against another private subject, as this would imply attributing to the directive inadmissible horiziontal direct effects, which would lead to unduly assimilating it to a regulation. Nonetheless, as stated in Francovich (see below in this folder), the aggrieved individual may still seek compensation for the damage suffered as a consequence of the failure by the Member State to implement the directive against the Member State as such, provided the requirements fixed in that case or this purpose are met (cf. point 27 of the present judgment).

    • ECJ, Judgment of 19 November 1991, Joined cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic

      The case concerned the failure by Italy to implement timely a directive, posing on the Member States the duty to establish pursuant to their domestic legislation a mechanism guaranteeing to employees the payment of a certain number of months of salary in case their employer had been declared insolvent. The court found, first, that the directive as such did not fulfil all of the requirements needed for it to be considered likely to produce direct effects, since, albeit identifying with sufficient clarity and precision the subjects for the benefit of whom those rights should be guaranteed as well as the content of the rights in question, it could not be considered as unconditional in granting the rights at issue, since this was made subject to the Member States identifying the competent body at a national level to which the subjects concerned may revert in the circumstances contemplated by the directive (points 23-26 in the grounds of judgment). Secondly, the court found that, in circumstances such as those of the case at hand, the aggrieved individuals, while not entitled to claim against the Member State the direct effect of the directive (since the latter was not likely to produce such effects), where nonetheless entitled to seek compensation by the Member State for damage suffered as a consequence of the breach of its duty to adopt the requested implementing measures. For this purpose, the Court posed the following requirements: 1) The directive must be likely to confer rights on individuals; 2) The content of the rights granted must be identified with sufficient clarity and precision in the directive; 3) There must exist a link of causation between the breach of the Member State's duty to implement the directive and the damage suffered by the individual (points 28 ff, especially points 39 ff.).

    • ECJ, Judgment of 26 September 2000, case C-443/98, Unilever Italia SpA v. Central Food SpA

      The case concerns the possibility for private subjects to claim direct effects of a directive within the context of a civil suit against another private subject. Whereas, as clearly stated by the Court in the previous cases of Marshall and of Faccini Dori (see above in this folder), no horizional direct effects may in principle be claimed of a non-implemented directive, where, like in the present case, the non implemented provision in the directive posed a procedural duty on the Member State, not to adopt domestic implementing measures pending a certain period of time during which the European Commission was entitled to give its opinion on a previously notified draft of the implementing measures sought to be adopted, direct effect of such a provision could be claimed for the purposes of requesting the domestic court before which the dispute was pending to exclude application in the instant case of the implementing measures adopted in breach of the said procedural duty (points 31 ff. of the grounds of judgment).

    • ECJ, Judgment of 7 January 2004, case C-201/02, Wells v. Secretary of State for Transport, Local Government and the Regions

      The case dealt with the issue of s.c. triangular direct effects of a non-implmented directive. In fact, in a case in which the applicant sought to rely against the Member State at breach with ts duty to implement a directive, on the direct effect of the directive at issue, that entitled the individual concerned to expect of the competent national authorities to perform an environmental assessment prior to granting a permit to start excavation of a mining site, the issue was raised concerning the relevance of the unfavourable consequences that from the granting of such a direct effect to the directive at issue could derive for another individual, namely the person to whom the mining permit had been granted without performing the preliminary assessment required by the directive. The Court considered that the likelyhood of negative consequences ensuing for other individuals from the granting of direct effects to a non-implemented directive as against the Member State at breach with its duty to implement it did not justify a refusal of the granting of the direct effects sought (see points 54 ff. of the grounds of judgment)

    • European Court of Justice (ECJ), Judgment of 3 May 2005, Joined cases C-387/02, C-391/02 and C-403/02, Criminal proceedings against Silvio Berlusconi and Others

      This case is particularly relevant as concerns the exclusion of direct effects of non-implemented directives to the detriment of individuals. In the context of criminal proceedings against former Italian Prime Minister Berlusconi and other managers of companies within his own media group, accused of false statements in the accounts of the relevant companies, the Court considered that the provisions of an EU directive, providing for a minimum level of pecuniary sanctions for false statements of the like, which at the time had not yet been implemented into Italian law, could not be granted direct effects in proceedings pending before a domestic court against the accused persons, when this would have implied imposing on them higher sanctions than provided for under the existing rules of domestic law (see, in particular, points 74 ff. in the grounds of judgment).

  •  The Legal Acts of the European Union: in particular: Opinions and Recommendations

    This folder contains judgments by the European Court of Justice concerning opinions and recommendations, which, pursuant to Article 288 TFEU, are not binding. Accordingly, in relation to the former, the ECJ has stressed that they may not be resorted to by the EU institutions when thay intend to adopt an act aiming to modify the leagl position of the subjects oncerned, whereas in respect of the latter the Court has stressed that, albeit not binding, they must be taken into account by domestic courts for the purposes of interpreting the relevant binding provisions of EU law.

    • ECJ, Judgment of 15 March 1967, cases 8 to 11/66, Société Anonyme Cimenteries et al. v. Commission

      The judgment, already considered concerning the criteria which must preside over the choice by the EU institutions of the type of acts to be adopted in the pursuit of the objectives of their action under the relevant Treaty provisions (above, in the folder concerning the principles governing the exercise of the competences of the EU institutions), stresses the non-binding nature of opinions. Accordingly, whenever the act, albeit vesting the form of an opinion, in its content and purpose is likely to affect the legal position of the addressees, it possesses the substance of a decision, and must be intended as such. Consequently, it must be held as amenable to judicial review by the ECJ (cf. Grounds of judgment, point on Admissibility, page 90 ff. of the enclosed text. Please note that the references to Article 189 EEC Treaty contained in the judgment are to be intended as directed to current Article 288 TFEU).

    • European Court of Justice, Judgment of 13 December 1989, Case C-322/88, Grimaldi c. Fonds des maladies professionnelles

      This judgment, in stressing the non-binding nature of recommendations, states nonetheless that they are to be relied upon by Member States' courts for the purposes of the interpretation and application of related binding rules of EU law (see points 13 ff, especially point 18 in the grounds of judgment).

  •  The Legal Acts of the European Union: in particular: EU Decisions

    This folder collects judgments by the European Court of Justice (ECJ) concerning the effects of decisions as binding acts of the EU. Despite the literal wording of Article 288 TFEU, fourth sentence, whereby decisions addressed to individual recipients are binding only upon them, the Court has given a broad construction to the rule, so that decisions addressed to one or more Member States may be likely to produce direct effects in favour of individuals subject to their jurisdiction, following a line of reasoning similar to that adopted concerning directives. Likewise, the Court has excluded that a decision addressed to a Member State may produce horizontal direct effects between private parties.

  •  The external relations of the EU: the competence to conclude agreements with third countries and international organizations

    Art. 216 TFEU provides in general terms for the circumstances in which the European Union may conclude agreements with third countries or international organizations, following, unless otherwise specified in other provisions of the Treaty as may be relevant in respect of the subject matter concerned (such as under Article 207 TFEU, in matters falling under the common commercial policy), the procedure set out under Article 218 TFEU. The present folder collects some of the most significant judgments and opiniins by the European Court of Justice (ECJ) concering the competence of the EU to conclude such agreements.

    • ECJ, Judgment of 31 March 1971, case 22/70, Commission v. Council, European Agreement on Road Transport (s. c. ERTA case)

      This judgment, the first of a long line of case-law by the ECJ, applies the doctrine of implied powers, developed in the interpretation of treaties establishing international organizations, in respect of the external competence of the Union. The latter is to be intended as the competence to conclude agreements with third countries or international organizations, in respect of matters in which the EU is vested of an internal competence and has exercised it by the adoption of acts likely to affect also the relations with third countries in the field concerned, like, in the case at hand, in matters of transport of goods by road (see part titled Grounds of judgment, esp. para. 6 ff., at page 273 ff. of the enclosed file. Please note that the rules as contained in the original EEC Treaty under Article 75 ff., in matters of transport policy, are now to be found under Articles 90 ff. TFEU, above in the "Treaties" folder).

    • ECJ, Opinion of 7 February 2006, on request No. 1/03, Competence of the European Community (as it then was) to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

      This opinion by the European Court of Justice, delivered pursuant to a request under former Article 300, para. 6, EC Treaty (corresponding to current Article 218, para. 11, TFEU), is particularly relevant as concerns the exclusive nature of the competence of the European Union to conclude agreements with third countries or international organizations. Pursuant to the present opinion, such a competence of the EU shall be of an exclusive nature whenever the agreement to be concluded is likely to affect the correct and uniform application of the legal acts adopted by the Union in the exercise of its internal competence (i.e., its legislative competence) in the field concerned. In the instant case, the rules contained in the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters extended to the relationships with third countries, members of the European Free Trade Association (EFTA), a mechanism of mutual recognition of judgments in civil and commercial matters which had been developed within the EU, first under the Brussels Convention of 1968 on the same subject, and later with Regulation (EC) No. 44/2001 (s.c. Brussels I Regulation), later amended and replaced by current Regulation (EU) No. 1215/2012 (s.c. Brussels I-bis Regulation). In light of the content of Regulation No. 44/2001 on the one side and of the new Lugano Convention of 2007 (intending to replace a pre-existing one, which had been concluded in 1988 for the same purposes) on the other side, the conclusion of the latter would have been likely to affect the uniform operation of the system embodied in the Regulation, so that the EU was to be considered as having an exclusive competence to conclude the Convention (see points 134 ff. of the opinion, page I-1200 ff. of the enclosed file).

    • ECJ, Opinion of 14 October 2014, on request No. 1/13, concerning the competence of the European Union to accept the accession of third countries to the Hague Convention on the civil aspects of international child abduction, of 25 October 1980

      This opinion brings to further consequences the line of reasoning commenced with the ERTA judgment of 1971 (Case 22/70, above in this folder) and further developed in the Lugano Opinion (Opinion on request No. 1/03, above in this folder), by affirming the exclusive nature of the competence of the EU to accept the accession by third countries to an international convention concluded outside the framework of the European Union, under the auspices of the Hague Conference on Private International Law, an inter-governmental organization established in The Hague (Netherlands) and specialized in the drafting of international conventions, open to both European and non-European countries, in the field of private international law and judicial cooperation in civil matters, including family law issues. The exclusive competence of the EU to intervene in this respect, even though the Union as such is not a party to the Convention concerned (which, differently from other conventions more recently adopted under the auspices of the same organization, is open to accession only by states as such and not by regional economic integration organizations -s.c. R.E.I.O.s- such as the EU) is again due to the impact that the accession by third countries to that Convention is likely to have on the uniform application of Regulation (EC) No. 2201/2003 (s.c. "Brussels II-bis Regulation"), governing jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, which applies in strict coordination with the Hague Convention of 1980 in matters of child abduction (see points 65 ff. of the Opinion, page 12 ff. of the enclosed file).

    • ECJ, Opinion of 18 December 2014, on request No. 2/13, on the compatibility of the draft agreement for the accession of the European Union to the European Convention on Human Rights (Rome, 4 November 1950) with the Treaties

      This landmark opinion by the European Court of Justice concerns the compatibility with the Treaties of the draft agreement providing for the accession of the European Union to the European Convention on Human Rights, pursuant to Article 6, para. 2, TEU. The opinion by the ECJ concludes in the sense of the incompatibility of the draft accession agreement with the Treaties under various respects, concerning in particular its compatibility with the specific characteristics and the autonomy of EU law (points 179 ff., page 34 ff. of the enclosed file); with the exclusive jurisdiction of the ECJ to resolve disputes between Member States concerning the application of EU law under Article 344 TFEU (points 201 ff., page 37 f.), and some particular mechanisms of coordination between the jurisdiction of the European Court of Justice (ECJ) on the one side and that of the European Court of Human Rights (ECtHR) on the other side, as envisaged by the draft agreement, namely the s.c. "co-respondent" mechanism (points 215 ff. page 38 ff., and the procedure of "prior involvement" of the Court of Justice (points 236 ff., page 40 ff.); and, finally, concerning the specific characteristics of EU law as concerns judicial review in Common Foreign and Security Policy (CFSP) matters (points 249 ff., page 41 f.).

  •  The Judicial System of the European Union: particularly: actions for annullment (Arts 263-264 TFEU)

     

    • ECJ, Judgment of 13 May 1971, joined cases 41 to 44/70, International Fruit Company et al. v. Commission

      This judgment is particularly relevant for the discussion it cointains of the general nature as a distinctive feature of EU regulations, as opposed to decisions, which, to the contrary, are normally directed to particular addressees. In relation to an EU act, making provision for importers of a given commodity (in the matter at hand, dessert apples) from third countries, who had filed an application for an import license within a specified period of time, so that, at the time the act was adopted, the number of affected applications was fixed and no new application could be added, the act in question, even though formally adopted as a regulation, could not be considered as having a true general nature, revealing instead its substantive nature as a bundle of decisions addressed to the closed number of those importers who had filed the prescribed application within the time limit specified in the act. Accordingly, these subjects could consider thamselves as at the same time "directly" and "individually" concerned by the act in question, and could accordingly apply for its annullment pursuant to nowadays Article 263, para. 4, TFEU (which, as it results from the amendments introduced by the Treaty of LIsbon, now admits applications for annulment of regulatory acts not requiring implementing measures also by private parties who are just "directly" concerned by the act, thereby excluding in such a case the need to be also "individually" concerned by the act). (cf. paras. 16 ff. of the grounds of judgment, page 421 ff. of the enclosed file. Please note that references in the judgment to the original Article 189 EEC Treaty, as then in force, are now to be intended as directed to Article 288 TFEU (types of legal acts of the Union), and references to Article 173 EEC Treaty to current Article 263 TFEU (action for annullment).

    • ECJ, Judgment of 18 May 1994, case C-309/89, Codorniu S.A. v. Council

      This judgment, to be read in conjunction with the earlier one in the case of International Fruit Company (see above in this folder), returns on the distinctive feature of EU regulations consisting of their general nature. In a case brought before the Court by a firm premised in Spain producing a particular sort of sparkling wine labelled as "crémant", it was contended whether an EU regulation making detailed provision in respect of the production and marketing of that specific sort of sparkling wines, which the regulation in its rules contemplated as originating uniquely form certain parts of France and of Luxembourg, was to be considered nonetheless as having general nature. The Court stated in this respect that, even though it might be possible, in point of fact, to identify, with a greater or lesser degree of precision, the subjects likely to be directly concerned by the act, an EU act adopted in the form of a regulation presents a true general nature insofar as it can be established that the subjects concerned are identified pursuant to an objectively determined situation as specified in the act (the fact of producing that particular sort of sparkling wine, in the matter at hand), so that the act produces legal effect in respect of a category of persons described in a general and abstract manner. At the same time, the firm of Codorniu, as virtually the sole producer of the sort of sparkling wine contemplated by the act in question not falling within the geographical scope of application of the act, could be considered as bith "directly" and "individually" concerned by the act for the fact of being discriminated against by the act for the fact of not being located in the particular area specified in the act (see note above, on the case of International Fruit Co., concerning the amendment introduced by the Treaty of Lisbon to the rule as it currently stands under Article 263, para. 4, TFEU). (see paras. 14 ff. of the judgment, page I-1884 ff.; as in the previous case, references to Article 173 EEC Treaty are to be intended as directed to current Article 263 TFEU).

  •  The Judicial System of the European Union: particularly: actions for failure to act (Arts 265-266 TFEU)

     

    • ECJ, Judgment of 18 November 1970, Case 15/70, Chevalley v. European Commission

      Action for failure to act as a remedy available to individual applicants only in respect of failure to adopt binding acts of the EU, not as concerns recommendations and opinions. Nedd to consider, in this respect, the effects which the act to be adopted would have been likely to produce (see points 6 ff. of the grounds of judgment)

    • ECJ, Judgment of 26 November 1996, Case C-68/95, Port

      Action for failure to act. Requirements for admissibility of such an action by private parties (natural or legal persons). Action admissible also when the applicant demonstrates that he would have been directly and individually concerned by the act which the institution concerned failed to adopt, mirroring the requirements for admissibility established in respect of the action for annullment (see especially points 58 ff. of the grounds of judgment)

  •  The Judicial System of the European Union: particularly: actions for damages caused by the institutions of the Union (Arts 268 and 340, para. 2, TFEU)

     

    • ECJ, Judgment of 2 December 1971, Case 5/71, Aktien-Zuckerfabrik Schoeppenstedt v. Council

      Action for damages caused by the institutions of the EU as an autonomous remedy within the judicial system of the European Union. As such, it does not presuppose the prior filing of an action for annullment or, as the case may be, for failure to act. Simply, the Court where seized of an action for damages caused by the institutions of the EU will have to assess incidentally the lawfulness of the act or of the failure to act by the institutions concerned (see especially points 3 ff., 11 ff. of the grounds of judgment)

    • ECJ, Judgment of 26 February 1986, Case 175/84, Krohn v. European Commission

      Action for damages caused by the institutions of the EU. Need to establish that damage is caused by the act of the Union in question, not by measures adopted at a national level for its implementation. Relevance of the scope for discretion granted to the institutions concerned in respect of the content of the act to be adopted (the largest the scope for discretion, the loosest the standard of assessment of the unlawfulness of the action of the institutions concerned, as a prerequisite of an action for damages caused by the institutions of the Union) (see especially points 18 ff. in the grounds of judgment)

    • ECJ, Judgment of 23 March 2004, Case C-234/02, European Ombudsman v. Lamberts

      Action for damages caused by the institutions of the EU. Requirements: presence of a rule of EU law which grants rights to private subjects; existence of a sufficiently characterised violation of such rights by an institution of the EU; existence of a link of causation between the violation and the damage suffered by the claimant. Substantial alignment of the requirements for the liability of the the institutions of the EU for damages with those concerning liability of the Member States for damages caused by violations of EU law (cf. points 49 ff. of the grounds of judgment)

  •  The Judicial System of the European Union: particularly: references for a preliminary ruling by the European Court of Justice (Art. 267 TFEU)

     

    • ECJ, Judgment of 18 October 1990, Cases C-297/88 and C-197/89, Dzodzi v. Belgium

      Reference for a preliminary ruling on the interpretation of EU law - case where rules of EU law had been transposed into Member State legislation in such terms as to make them applicable also to purely domestic situations - competence of the Member States' courts to decide on the relevance of the question to be referred to the ECJ for the purposes of the decision of the case - duty of the ECJ to rule on the question referred, unless found to be merely artificial and devoid of any pertinence in respect of the matter at hand (cf. points 31 ff. of the judgment)

    • ECJ, Judgment of 27 January 2005, Case C-125/04, Denuit

      Reference for a preliminary ruling - notion of "court or tribunal of a Member State" for the purposes of the admissibility of a reference pursuant to Article 267 TFEU (formerly Article 177 EEC Treaty and later Article 234 EC Treaty) - need to establish an autonomous notion, based on the distinctive features of a judicial body, with particular regard to its establishment by law, its permanent nature and its compulsory jurisdiction - absence of such requirements in case of an arbitral tribunal, except in those cases where arbitration is provided for by the law as a mandatory mechanism of dispute settlement (cf. points 11 ff.)

    • Constitutional Court (Italy), Order No. 103/2008

      Reference for a preliminary ruling - notion of "court or tribunal of a Member State" pursuant to Article 267 TFEU - applicabioity of the distinctive features of a judicial body as identified by the European Court of Justice to the peculiar case of the Italian Constitutional Court, which more frequently decides on incidental questions of compatibility of domestic laws with the Italian Constitution, referred to it by a court before which such a question is raised and which is therefore the judicial body before which the substantive dispute is pending - exception constituted by those cases where the Italian Constitutional Court is seized directly of a dispute concerning the conflicts of attributions between the powers of the State o between such powers and those of the regions, such as in the present case - attitude in such a case of the Italian Constitutional Court to refer a question of EU law to the ECJ for a preliminary ruling (Italian text, point headed "quanto alla rilevanza delle questioni interpretative pregiudiziali", page 14 of the enclosed file)

    • ECJ, Judgment of 6 October 1982, Case 283/81, CILFIT

      Reference for a preliminary ruling - particular position of national courts against whose judgments no further appeal is available under domestic law - duty to refer a question relating to the interpretation of EU law to the ECJ - exceptions to such a duty: when an identical issue of law has already been decided by the Court in similar circumstances; where the same point of law has formed the subject of a consistent line of judgmentsby the Court, albeit not in similar circumstances; where the interpretation of the relevant provisions of EU law imposes itself with such an absolute clarity as would be evident also to courts belonging to other Member States and to the ECJ itself had it been seized of the issue at hand (s.c. "acte clair") (cf. points 12 ff. of the grounds of judgment)

    • ECJ, Judgment of 13 May 1981, Case 66/80, International Chemical Corporation (ICC)

      Reference for a preliminary ruling - question of validity of an EU act - effects of an earlier judgment by the ECJ delivered on a reference for a preliminary ruling, declaring that act to be invalid - such a judgment, albeit being formally binding only on the referring court, constitutes a sufficient ground for other courts not to apply that act - this is notheless without prejudice for the power of other courts to refer a new question to the ECJ concerning further issues not addressed in the earlier judgment, such as those concerning the effects deriving from the invalidity of the acts for situations created in reliance on the validity of the act (cf. points 9 ff. of the grounds of judgment)

  •  The Judicial System of the European Union: particularly: exceptions of invalidity of EU legal acts having general application (Art. 277 TFEU)

     

    • ECJ, Judgment of 6 March 1979, Case 92/78, Simmenthal

      Exceptions of invalidity of regulations, as contemplated at the time under Article 184 EEC Treaty - to be intrepreted as available also as concerns other EU legal acts having general application, as now stated under Article 277 TFEU. Such an exception can be raised within proceedings for the annullment of a decision which finds in the disputed regulation or other legal act of general application its legal basis (see esp. points 34 ff.)

    • ECJ, Judgment of 30 June 1988, Case 226/87, Commission v. Greece

      Exception of invalidity of regulations (as it then was conceived, currently of any EU acts having general application). The exception may not be raised against acts like decisions, which do not have general application, and not within a procedure for infringement commenced by the European Commission pursuant to current Article 258 TFEU, since the subject and purpose of the two procedures is entirely different. Pursuant to the principle of sincere cooperation (current Article 4, para. 3, TEU), Member States which should consider an act of the Union addressed to them to be invalid or unlawful should timely challenge such an act by filing an action for annullment pursuant to current Article 263 TFEU, and not simply refrain from complying with it, raising its invalidity or unlawfulness as a defence against an infringement procedure commenced against them for non-compliance with the said act (cf. points 13 ff.)

  •  The Judicial System of the European Union: actions by individuals before Member States' courts for damages caused by violations of EU law

     

    • ECJ, Judgment of 5 March 1996, Cases C-6/90 and C-9/90, Brasserie du pecheur and Factortame

      This judgment by the ECJ, following the earlier one in Francovich and Bonifaci v. Italy of 1991 (see above, in the folder concerning EU directives) , affirmed the liability of a Member State for damages suffered by individuals, natural or legal persons, for failure by that Member State to comply with its obligations deriving from binding rules of EU law, be they contained in the treaties or in legal acts of the EU. Such a liability exists irrespective of whether the failure to comply with EU law is due to the administration, the legislature or the judiciary, since, like under international law, Member States are responsible for their obligations under EU law with the entire sphere of their constituent bodies. This liability, to be claimed by the interested individuals before the domestic courts of the Member State concerned, presupposes three requirements: the presence of a binding rule of EU law conferring rights on individuals; the serious nature of the violation of such a rule by the Member State concerned, and a link of causation between the violation and the damage suffered by the individuals concerned (see esp. points 20 ff, 37 ff., 46, 51, 55 ff.)

    • ECJ, Judgment of 30 September 2003, Case C-224/01, Koebler v. Austria

      This judgment follows the line of the earlier one in Brasserie du pecheur and Factortame (above in this folder), stressing the likelyhood of liability of a Member State towards individuals for a violation of EU law caused by judicial activity, particularly as a consequence of a wrongful interpretation of EU law adopted by its last-instance court (see esp. points 30 ff., 35, 39, 43 ff., 51 ff.)

    • ECJ, Judgment of 13 June 2006, Case C-173/03, Traghetti del Mediterraneo SpA v. Italy

      This judgment follows the line of the previous cases of Brasserie du pecheur and Factortame and of Koebler v. Austria (above in thsi folder), by affirming the liability of a Member State towards individuals due to the violation of the duty of its last-instance court to refer a question of interpretation of a rule of EU law to the ECJ, when this causes such a court to adopt a wrongful interpretation of EU law to the detriment of individuals (see esp. points 24 ff., 26, 30 ff., 42 ff.)

    • ECJ, Judgment of 24 November 2011, Case C-379/10, Commission v. Italy (Traghetti del Mediterraneo - Infringement)

      This judgment, following the earlier one of 13 June 2006 relating to the case of Traghetti del Mediterraneo v. Italy (above in this folder), clarifies the requirement for a "sufficiently characterized violation" of a binding rule of EU law for the purposes of the existence of liability of a Member State towards individuals. The judgment clarifies that, when, as in the case at hand, the violation in question is due to judicial activity, the required standard of a "sufficiently characterized violation" may be found as met also where the stricter standards fixed under domestic law for personal liability of the judges materially responsible for the breach (in the case at hand, the decision by the Corte di cassazione to decide on the case without referring a question to the ECJ for a preliminary ruling) are not satisfied. In fact, the liability of a Member State as such towards individuals for a violation of EU law is distinct and may exist irrespective of the personal liability under domestic law of that State's civil servants for the act or omission which gave rise to the violation in question (see esp. points 30 ff., 35 ff., 40 ff., 45 ff.)

  •  The withdrawal of a Member State from the European Union: the s.c. Brexit case