Addressing Issues of Protective Scope within the Francovich Right to Reparation

2017 ◽  
Vol 13 (1) ◽  
pp. 124-165 ◽  
Author(s):  
Michael Dougan
Keyword(s):  
European Union ◽  
Member State ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Environmental Legislation ◽  
Court Of Justice ◽  
State Liability ◽  
Employment Legislation ◽  
Public Bodies

EU Law – Member State liability in damages – Issues of protective scope about exactly which individuals/interests are protected – Conditions for Member State liability – Intention to confer rights criterion – Tendency towards a ‘checklist’ approach by the Court of Justice of the European Union – Potential implications for scope of Member State liability – Finding appropriate balance between protecting individuals and punishing public bodies – Example of free movement rights – Example of environmental legislation – Example of employment legislation

8. Enforcing EU law

2020 ◽  
pp. 205-239
Author(s):  
Sylvia de Mars
Keyword(s):  
European Union ◽  
Member State ◽  
Indirect Effect ◽  
Similar Process ◽  
Eu Law ◽  
The European Union ◽  
Enforcement Action ◽  
Court Of Justice ◽  
State Liability ◽  
The Impact

This chapter addresses the Treaty's provisions on the enforcement of EU law, particularly looking at Articles 258–260 TFEU (Treaty on the Functioning of the European Union). The European Commission's enforcement action, known as ‘infringement proceedings’, is set out in Article 258 TFEU. If the Commission proves an infringement has occurred, the Court of Justice of the European Union (CJEU) will issue a binding verdict that requires the Member State to rectify the breach: in other words, to amend its domestic laws until they are compliant with EU law. Article 260 TFEU makes clear, however, that the CJEU can only order ‘compliance’. Article 259 sets out a very similar process, rarely used, for Member State v Member State infringement proceedings. The chapter then considers the CJEU's development of the principles of direct and indirect effect and state liability, and explores the remedies for breaches of EU law. It also assesses the impact of Brexit on the enforcement of EU law.

scholarly journals Relu Adrian Coman and Others v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne (C.J.E.U.)

2019 ◽  
Vol 58 (4) ◽  
pp. 823-836
Author(s):  
Alina Tryfonidou
Keyword(s):  
European Union ◽  
Member State ◽  
Family Reunification ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Same Sex ◽  
Court Of Justice ◽  
Opposite Sex ◽  
First Time

On June 5, 2018, the Court of Justice of the European Union (CJEU or Court) delivered its judgment in the case of Coman. In this important ruling, the Court made it clear that under EU law, the same-sex spouse of an EU citizen can move and reside with the latter in the territory of another EU member state, just as the opposite-sex spouse of an EU citizen can. Although the case is very important in that it was the first time the Court has recognized that same-sex marriages must be treated in exactly the same way as opposite-sex marriages for a specific legal purpose (family reunification rights of EU citizens who exercise EU free movement rights), it creates a number of new questions and highlights a number of gaps that persist even following its delivery.

BENEFITS FOR EU CITIZENS: A U-TURN BY THE COURT OF JUSTICE?

2015 ◽  
Vol 74 (2) ◽  
pp. 195-198 ◽  
Author(s):  
Steve Peers
Keyword(s):  
European Union ◽  
Social Welfare ◽  
Member State ◽  
Eu Law ◽  
The European Union ◽  
Welfare Benefits ◽  
Court Of Justice ◽  
Uk Government ◽  
The Uk ◽  
The Eu

THE recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

scholarly journals Swoboda przemieszczania się studentów w Unii Europejskiej — prawo dostępu do szkolnictwa wyższego i stypendiów w kontekście transnarodowym

2017 ◽  
Vol 107 ◽  
pp. 261-290
Author(s):  
Monika Szwarc
Keyword(s):  
European Union ◽  
Member State ◽  
Fundamental Rights ◽  
Free Movement ◽  
Access To Higher Education ◽  
Access To Education ◽  
Eu Law ◽  
The European Union ◽  
Right To Education ◽  
Migrant Students

FREE MOVEMENT OF STUDENTS IN THE EUROPEAN UNION — RIGHT TO EDUCATION, ACCESS TO EDUCATION AND ACCESS TO GRANTS IN THE TRANSNATIONAL CONTEXTThe right to education, recognised by Article 14 of the Charter of Fundamental Rights of the European Union must be analysed and interpreted in the light of the previous evolution of EU law in this domain, as well as of the preceding jurisprudence of the Court of Justice. In the present state of EU law there is no doubt that access to higher education as well as access to student grants or loans falls within the scope of EU law. Therefore the article contains the overview of where EU law stands at present in the domain of mobility of students. The main two fields of interest are: access to education of migrant students, when they move from their home Member State to a host Member State in order to undertake studies, as well as access to social benefits, namely student grants or loans, which enable or make easier the mobility of students. The second field of interest concerning student grants or loans is divided into two parts: the first concerns access to grants or loans accorded by the host Member State to migrant student; the second concerns access to grants or loans accorded by the home Member State to its own citizens in order to encourage them to study abroad. The analysis, on the one hand, reveals that the scope of application of EU law to the situation of migrant students, due to the jurisprudence of the CJEU, is very wide, which means the wide scope of rights accorded to students and the narrow scope of freedom left to the Member States. On the other hand, the analysis leads to a conclusion that the case of migrant students is an exemplification of the challenges faced by the Union in the field of free movement, in particular the pressure to limit the social benefi ts for EU citizens exercising their right to free movement.

11. Free movement of goods II: non-tariff barriers

2020 ◽  
pp. 287-318
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and post ‘Keck’ case law. It concludes with a consideration of the latest trend of cases concerning product use and residual rules.

Why is the Köbler Principle Not Applied in Practice?

2016 ◽  
Vol 23 (6) ◽  
pp. 984-1008
Author(s):  
Zsó;fia Varga
Keyword(s):  
European Union ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
Supreme Courts ◽  
Effective Application ◽  
Actual Role ◽  
Court Of Justice ◽  
State Liability ◽  
The Impact

Since the judgment of the Court of Justice of the European Union (CJEU) in Köbler, there has been speculation that state liability for violation of EU law by national supreme courts might remain mere theory. However, more than a decade after the CJEU judgment, there is no study available to confirm or disprove this assumption. This article seeks to fill this gap by providing an analysis on the practice and the impact of the liability principle. According to the research conducted, only about 35 Köbler actions have been reported over the last 13 years from all of the 28 Member States, of which only four have been successful. This article investigates why this enforcement deficit of the liability principle can be observed. Therefore, the article examines the main limitations to the effective application of the Köbler doctrine in order to understand their actual role in hindering the establishment of liability and the allocation of damages. In this context, it also examines whether, and to what extent, the liability principle has contributed to the protection of individual rights and the effective application of EU law over the last thirteen years.

Preliminary References

2018 ◽  
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
European Union ◽  
Member State ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
Court Of Appeal

A reference for a preliminary ruling is a request from the national court of a Member State to the Court of Justice of the European Union to give an authoritative interpretation of an EU act or a decision on the validity of such an act. In this situation, the Court of Justice does not function as a court of appeal that rules on the outcome of the main proceedings before the referring court: it makes judgment neither on the facts in the main proceedings nor on the interpretation and application of national law. Moreover, in principle it does not itself pronounce on the concrete application of EU law in the main proceedings before the referring court. Finally, while a preliminary ruling is normally given in the form of a judgment, the ruling is addressed to the referring court and not to the parties to the main proceedings. Only the referring court’s subsequent decision can be enforced against those parties. The preliminary reference procedure is therefore an expression of the interplay and allocation of tasks between national courts and the Court of Justice.

scholarly journals Unveiling the overlooked freedom – the context of free movement of capital and payments in the EU law

2012 ◽  
Vol 12 (2) ◽  
pp. 129-145
Author(s):  
Ondrej Hamuľák
Keyword(s):  
European Union ◽  
Slow Release ◽  
Internal Market ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Treaty Provision ◽  
Free Movement Of Capital ◽  
The Eu

Abstract Free movement of capital and payments represents the youngest of the freedoms within the single internal market of the European Union. Th e title “youngest” points on the very slow release of capital markets within the European Community and the European Union which leads to the tardy development of this freedom. It is young also from the view of the legal effects because it was the last of the freedom where direct effect of basal Treaty provision was accepted by the Court of Justice. In the heading of this article I awarded the forth freedom with the adjective “overlooked” which is clearly my subjective opinion on the approach of the EU law scholars to this part of the internal market law. In the most of the substantive textbooks and casebooks we may find only marginal space devoted to this field, especially in comparison with the other market freedoms. My objective is to off er and general introductive insight to this area and to certain extent cover the emerging gap.

scholarly journals EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union

2021 ◽  
Author(s):  
Kim Lane Scheppele ◽  
Dimitry Vladimirovich Kochenov ◽  
Barbara Grabowska-Moroz
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
Eu Law ◽  
The European Union ◽  
Basic Principles ◽  
Member States ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Abstract Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.

EU Law Concentrate

2018 ◽  
Author(s):  
Matthew Homewood
Keyword(s):  
European Union ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Essential Information ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Free Movement Of Goods ◽  
State Liability ◽  
The Eu

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. EU Law Concentrate provides essential information on all aspects of EU law, starting with the origins, institutions, and sources of law in the EU. It then moves on to consider supremacy, direct and indirect effect, and state liability. Chapter 4 looks at direct actions in the Court of Justice of the European Union. Articles 258–260, 263, 265, 277, and 340 are examined in detail. The next couple of chapters describe the free movement of goods and persons. The book ends with a consideration of EU Competition law, in particular Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

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