#2522 - Remedies - European Law

REMEDIES Hartley 2010 Art 267 1. Introduction. * EC seems to be first international court who actually got it granted. Now others have copied, Benelox Court, and Andean Court, e.g * Two differences between appeal and reference: o 1. With appeal, initiatives lies with parties o 2. Appeal court decides the case, and as power to set aside decision of court a quo - substitute its own decision for that of lower court. * Structure wisely suggests that national courts not subordinate, but co-equal and relationship between courts is one of cooperation. * Relevant provision article is 267 TFEU. o Comment on Provision: o 'Court':This term covers both CJ and the General Court. Prior to Lisbon always heard by CJ but now, for cases specified in Statute of CJ, EU will go to G Court. o Entities Covered by 'Union Entities' -there are 8. Entities created by MS law - e.g., government departments, public corporations or local government authorities - will not be covered, even when acting under EU law. o ISSUES COVERED:Q of interpretation AND validity may be referred. References for interpretation may be made with regard BOTH to Treaty and to acts of Union institutions or entities, but ref for ruling on validity made ONLY in case of latter. (Reason: because treaties are so to speak constitution of Union Legal order).Among most important issue that may be referred = EFFECT of a Union provision (Treaty prov or act of Union institution or entity).Three issues may be referred for ruling: interpretation, effect, and validity. NOT question of fact and national law, nor application of law to particular case.BUT: borderline of interp. and application UNCERTAIN. 2. Which provisions may be referred? * Art 267 covers Treaties and Acts of Union institutions/entities. * The Treaties: o covers TEU and TFEU, but jurisdiction of court largely excluded in area of Common Foreign and Security Policy. * Subsidiary conventions: o Not covered in su para (a) (Hurd v Jones: EC held that agreements between MS setting up European Schools in various Union countries not covered by Art 267.) * Acts of Representatives of MS o Not Union institution/entities acts so excluded from sub para (b); nor part of Treaties. Not significant because national courts would not normally have occasion to consider them. * Union ACTS o Yes. No need for it to be directly effective. All binding acts are covered, even acts sui generis (ERTA case, if its act for purpose of art 263, must also be for 267) o Recommendations may be referred (Grimaldi case): nat courts must take them into account when interpreting national and Union measures. * GENERAL PRINCILPLES OF LAW o Treaty says no. But if nat court refers provision of one of Treaties or Union act, EC would also interpret any general principle of law that was relevant to provision referred. * AGREEMENTS WITH NON MEMBERS o Only if regarded as acts of Union institutions. Since usually concluded by Council, in Haegeman case, EC said they are Union acts and that Association agreemnet in that case was covered by sub para b of art 267.Justifiable?Hartley: Difference between INT agreement and national measure passed by one of Contracting parties to conclude or ratify agreement: latter simply constitutionally required method of giving assent to the agreement. o Note, Haegmann case only applies if Union formally becomes party to the agreement by means of an act of one of its institutions. Would seem to exclude that EC has juri under art 267 to interpret General agreement on Tariffs and Trade to which Union did not formaly adhere, even though European Court held that Union became bound by it because it succeeded to the rights and obligations under it of the MS. YET, in a blatant policy ased judgment given, ruled that GATT is covered by art 267: The SPI case.