6. Remedies in EU Law: Direct Effects, Indirect Effects, State Liability, and Art 267 TFEU

2021 ◽  
pp. 166-207
Author(s):  
Nigel Foster
Keyword(s):  
Indirect Effects ◽  
Preliminary Ruling ◽  
Direct Effects ◽  
Eu Law ◽  
Procedural Law ◽  
National Courts ◽  
State Liability ◽  
Cover Art ◽  
Direct Applicability ◽  
The Eu

This chapter brings together a number of related issues that are indirectly linked to the preliminary ruling procedure under Art 267 of the Treaty on the Functioning of the EU (TFEU)—the vehicle by which the leading principles and remedies in EU law were developed by the Court of Justice; in particular, the means by which EU law could be enforced by individuals via the national courts, rather than by the Commission, or other institutions, or member states in direct actions before the CJEU. The discussions cover Art 267 TFEU; direct applicability and direct effects; state liability; and national procedural law and the system of remedies.

6. Ensuring EU Laws Are Effective: Remedies and Art 267 TFEU

2017 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
Preliminary Ruling ◽  
Direct Effects ◽  
Eu Law ◽  
Member States ◽  
Procedural Law ◽  
National Courts ◽  
Court Of Justice ◽  
State Liability ◽  
Cover Art ◽  
Direct Applicability

This chapter brings together a number of related issues indirectly linked to the preliminary ruling procedure under Art 267 TFEU—the vehicle by which the leading principles and remedies in EU law were developed by the Court of Justice; in particular, the means by which EU law could be enforced by individuals via the national courts, rather than by the Commission or other institutions, or member states in direct actions before the CJEU. The discussions cover Art 267 TFEU; direct applicability and direct effects; state liability; and national procedural law and the system of remedies.

6. Remedies in EU Law:

2019 ◽  
pp. 168-207
Author(s):  
Nigel Foster
Keyword(s):  
Preliminary Ruling ◽  
Direct Effects ◽  
Eu Law ◽  
Member States ◽  
Procedural Law ◽  
National Courts ◽  
Court Of Justice ◽  
State Liability ◽  
Direct Applicability

This chapter brings together a number of related issues indirectly linked to the preliminary ruling procedure under Article 267 TFEU—the vehicle by which the leading principles and remedies in EU law were developed by the Court of Justice; in particular, the means by which EU law could be enforced by individuals via the national courts, rather than by the Commission or other institutions, or member states in direct actions before the CJEU. The discussions cover Article 267 TFEU; direct applicability and direct effects; state liability; and national procedural law and the system of remedies.

8. Remedies: direct and indirect effects and state liability

2020 ◽  
pp. 194-225
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Indirect Effects ◽  
Case Law ◽  
Direct And Indirect Effects ◽  
Direct Effects ◽  
Procedural Law ◽  
Court Of Justice ◽  
Eu Directives ◽  
State Liability ◽  
Direct Applicability

This chapter examines the remedies developed by the Court of Justice (CJEU) for member states who violate European Union (EU) laws. It considers the concept of direct applicability and reviews the development of the doctrine of direct effects through an analysis of case law. The chapter proposes ways for overcoming the lack of horizontal effect for EU Directives to avoid the result of the ‘Marshall’ ruling and discusses state liability in the CJEU cases C-6 and 9/90 Francovich. These remedies are known as the enforcement from below as a part of the dual system of vigilance of EU law. It also considers national procedural law and the system of remedies developed by the CoJ.

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

2015 ◽  
Vol 16 (6) ◽  
pp. 1543-1568
Author(s):  
Aleksandra Kustra
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Tea Leaves ◽  
National Courts ◽  
Legal Provisions ◽  
Constitutional Tribunal ◽  
The Relationship ◽  
The Eu

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

Complete EU Law

2017 ◽  
Author(s):  
Elspeth Berry ◽  
Matthew J. Homewood ◽  
Barbara Bogusz
Keyword(s):  
Legislative Process ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Wide Range ◽  
Free Movement Of Persons ◽  
State Liability ◽  
The Uk ◽  
Substantive Law ◽  
The Eu

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Complete EU Law combines extracts from leading cases and articles to take a fresh and modern look at the constitutional and substantive law of the EU. It starts by looking at the origins of EU integration and more recent developments such as the implications of the UK ‘Brexit’ vote. It then examines the role of EU institutions within the legislative process, and the sources of EU law. Next, it explores the relationship between the EU and the Member States; the supremacy of EU law and its impact upon the principle of UK parliamentary sovereignty; the direct and indirect effect of EU law in the national courts; and the ability of those national courts to request preliminary rulings from the Court of Justice. The book also examines the obligations that EU law imposes on Member States, including the operation of infringement actions and Member State liability in damages for breaches of EU law, and the obligations that it imposes on both the EU institutions and the Member States to protect human rights in the EU. It then discusses economic integration within the internal market and how EU law regulates the rights of individuals and businesses under the ‘four freedoms’, focusing on the free movement of persons and goods. Finally, the book considers competition law and its enforcement within Member States.

Complete EU Law

2019 ◽  
Author(s):  
Elspeth Berry ◽  
Matthew J. Homewood ◽  
Barbara Bogusz
Keyword(s):  
Legislative Process ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Wide Range ◽  
Free Movement Of Persons ◽  
State Liability ◽  
The Uk ◽  
Substantive Law ◽  
The Eu

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Complete EU Law combines extracts from leading cases and articles to take a fresh and modern look at the constitutional and substantive law of the EU. It starts by looking at the origins of EU integration and more recent developments such as the implications of the UK ‘Brexit’ vote. It then examines the role of EU institutions within the legislative process, and the sources of EU law. Next, it explores the relationship between the EU and the Member States; the supremacy of EU law and its impact upon the principle of UK parliamentary sovereignty; the direct and indirect effect of EU law in the national courts; and the ability of those national courts to request preliminary rulings from the Court of Justice. The book also examines the obligations that EU law imposes on Member States, including the operation of infringement actions and Member State liability in damages for breaches of EU law, and the obligations that it imposes on both the EU institutions and the Member States to protect human rights in the EU. It then discusses economic integration within the internal market and how EU law regulates the rights of individuals and businesses under the ‘four freedoms’, focusing on the free movement of persons and goods. Finally, the book considers competition law and its enforcement within Member States.

5. Principles of direct applicability and direct effects

2017 ◽  
Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Indirect Effect ◽  
Case Law ◽  
Direct Effects ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
Eu Directives ◽  
Direct Applicability

This chapter examines the scope of the doctrines of direct and indirect effect in the context of European Union (EU) law. These doctrines allow individuals to rely on EU law rights in national courts. It explains that while the Court of Justice (CJ) has emphasised that EU directives cannot have direct effect as against individuals (horizontal effect), its case law shows a range of developments which operate to undermine the simplicity of this position. The chapter suggests that granting individuals and national courts a role in the enforcement of Union law has ensured that EU law is applied and Union rights are enforced. It also considers questions concerning the idea of incidental direct effect, triangular situations and the consequences of the line of jurisprudence starting with the judgments in Mangold (case C-144/04) and Kücükdeveci (case C-555/07).

5. Principles of direct applicability and direct effects

2020 ◽  
pp. 111-143
Author(s):  
Marios Costa ◽  
Steve Peers
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Indirect Effect ◽  
Case Law ◽  
Direct Effects ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
Eu Directives ◽  
Direct Applicability

This chapter examines the scope of the doctrines of direct and indirect effect (including ‘direct applicability’) in the context of European Union (EU) law. These doctrines allow individuals to rely on EU law rights in national courts. It explains that while the Court of Justice (CJ) has emphasised that EU directives can apply against the state (vertical direct effect: starting with the Van Gend case), but cannot have direct effect as against individuals (horizontal effect), its case law shows a range of developments which operate to undermine the simplicity of this position. The chapter suggests that granting individuals and national courts a role in the enforcement of Union law has ensured that EU law is applied and Union rights are enforced. It also considers questions concerning the idea of incidental direct effect, triangular situations and the consequences of the line of jurisprudence starting with the judgments in Mangold (case C-144/04) and Kücükdeveci (case C-555/07).

scholarly journals References for a Preliminary Ruling to the European Union Court of Justice: The Substantive Criteria of Admissibility

2019 ◽  
Vol 14 (4) ◽  
pp. 131-156 ◽  
Author(s):  
Elena A. Sorokina
Keyword(s):  
European Union ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Legal Traditions ◽  
National Courts ◽  
Acceptability Criteria ◽  
The Eu

The preliminary ruling procedure as stipulated by Article 276 of the Treaty on the functioning of the European Union had a significant impact on the de-ve lop ment of EU law and became a collaborative tool as part of the dialogue bet-ween supranational and national judges.The mechanism of preliminary ruling enables to ensure a uniform interpretation and application of the provisions of EU law with all member states and consti tutes an instrumental element for preserving the uniformity of the European legal system.When developing the mechanism of preliminary ruling at EU level one consi-dered constitutional & legal traditions of member states, however, for long periods, the EU was perceived as "exotic" one and its impact on the national law was often underesti mated. Initially there were no any clear concepts how the mechanism of preliminary ruling would work. The EU court encouraged national judges of member states to use this mechanism; however, gradually it started introducing certain acceptability criteria in respect of such requests.The practice of the EU Court was summarized in the updated Rules of Procedure of 25 September 2012. During the period from 2014 to 2018, the number of cases sub mitted for preliminary ruling procedure was increasingly growing. Consequently, natio nal courts had started using this procedure relatively intensively and the con so-li dation of acceptability criteria created no serious problems for them.The imposition by the EU Court of minimal requirements towards the substance of requests does not reduce their number, since the acknowledgement of a re quest as inadmissible does not prevent a national court from sending a repeated re quest. However, it contributes to the improvement of quality and efficiency of the pre li mi-nary ruling procedure. The establishment of the respective requirements is necessary to ensure that the EU Court could provide national courts with an interpretation of EU law useful for resolution of a specific dispute and ensure constructiveness of the dialogue.

scholarly journals State liability and the enforcement of arbitral awards infringing EU law, a zero-sum game after Tomášová? = Responsabilidad del estado por inejecución de laudos arbitrales que violan el derecho de la UE, ¿un juego de suma cero tras Tomášová?

2018 ◽  
Vol 10 (2) ◽  
pp. 567
Author(s):  
Carlos J. Moreiro González
Keyword(s):  
Member State ◽  
Legal Order ◽  
Eu Law ◽  
Commercial Arbitration ◽  
National Courts ◽  
Regulatory Standard ◽  
Complex Relationships ◽  
State Liability ◽  
Zero Sum ◽  
The Eu

Abstract: The CJEU doctrine regarding to commercial arbitration addresses several aspects of the complex relationships between arbitration and EU Law. Nonetheless, since there is no established regulatory standard, the national court’s review of the conformity of arbitration awards with the EU legal order is conducted according to different criteria.As national courts are faced with obligations of varying degrees, there is the risk of detaching themselves from the obligation to protect this legal order, with a corresponding impact on the creation of situations that could give rise to State liability for infringements of EU Law.Although in its judgment in the Tomášová case the CJEU recognizes very restrictive grounds for the liability of a Member State in such circumstances, this does not exclude that such liability could beincurred under less restrictive circumstances either on the basis of internal law or international law.Keywords: arbitration, award, public policy.Resumen: La doctrina del TJUE sobre el arbitraje comercial aborda varios aspectos de las complejas relaciones entre el arbitraje y la legislación de la UE. No obstante, dado que no existe una norma reglamentaria establecida, la revisión del tribunal nacional de la conformidad de los laudos arbitrales con el ordenamiento jurídico de la UE se lleva a cabo de acuerdo con diferentes criterios.Dado que los tribunales nacionales se enfrentan a obligaciones de diverso grado, existe el riesgo de desvincularse de la obligación de proteger este ordenamiento jurídico, con el consiguiente impacto en la creación de situaciones que podrían dar lugar a la responsabilidad del Estado por infracciones del Derecho de la UE.Aunque en su sentencia en el asunto Tomášová, el TJUE reconoce motivos muy restrictivos para la responsabilidad de un Estado miembro en tales circunstancias, esto no excluye que dicha responsabilidad pueda incurrirse en circunstancias menos restrictivas, ya sea sobre la base del derecho interno o del derecho internacional.Palabras clave: arbitraje, laudo,orden público.

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