scholarly journals You Can’t be Serious

2018 ◽  
Vol 1 (1) ◽  
pp. 1-23
Author(s):  
Albert Sanchez-Graells
Keyword(s):  
Public Procurement ◽  
Case Law ◽  
Main Function ◽  
Eu Law ◽  
The European Union ◽  
Public Enforcement ◽  
Nuclear Decommissioning ◽  
Uk Supreme Court ◽  
State Liability ◽  
The Uk

This paper offers some reflections on the position advanced by the EFTA Court that a simple breach of EU public procurement law is in itself sufficient to trigger the contracting authority’s liability in damages (Fosen-Linjen). I argue that this position is flawed because it deviates from previous case law of the Court of Justice of the European Union (Spijker), and because it is based on interpretive errors and internal contradictions in the EFTA Court’s reasoning. In criticising the EFTA Court’s Judgment from the perspective of the harmonisation of EU law, I rely on the better view of the UK Supreme Court. The latter held that the liability of a contracting authority for the breach of EU public procurement rules under the remedies directive is assimilated to that of the State under the general EU law doctrine of State liability and thus requires a sufficiently serious breach (Nuclear Decommissioning Authority). My reflections are based on the need to keep procurement damages litigation constrained to its main function and limited to justified cases. I use this normative position to argue against the expansion of private enforcement of EU public procurement law as a correction of the shortcomings in its public enforcement.

scholarly journals Liability threshold for damages in public procurement: the EFTA Court’s Fosen-Linjen saga

2019 ◽  
Vol 70 (4) ◽  
pp. OA25-OA35
Author(s):  
Albert Sanchez-Graells
Keyword(s):  
European Union ◽  
Public Procurement ◽  
Case Law ◽  
The European Union ◽  
Nuclear Decommissioning ◽  
Court Of Justice ◽  
Legal Arguments ◽  
State Liability ◽  
The Uk ◽  
Correct Understanding

In this case comment, I explore the two EFTA Court Judgments in the Fosen-Linjen saga and their opposing views on the interaction between EU/EEA rules on procurement remedies and the more general principle of state liability for breaches of EU/EEA law. I review the case law of the Court of Justice of the European Union and, in particular, the perceived inconsistencies between the two 2010 judgments in Strabag and Spijker, which featured very prominently in the legal arguments submitted to the EFTA Court in both Fosen-Linjen cases. I also use the benchmark of the UK Supreme Court's Nuclear Decommissioning Authority judgment to support the view that Spijker reflects the correct understanding of EU/EEA law and that there should be no further debate about it. I submit that the Court of Justice of the European Union would be well-advised to (re)confirm the position enshrined in Spijker at the earliest opportunity, to avoid any perpetuation of this debate in the context of EU/EEA public procurement law.

scholarly journals Liability threshold for damages in public procurement: the EFTA Court’s Fosen-Linjen saga

2020 ◽  
Vol 70 (4) ◽  
pp. 511-521
Author(s):  
Albert Sanchez-Graells
Keyword(s):  
European Union ◽  
Public Procurement ◽  
Case Law ◽  
The European Union ◽  
Nuclear Decommissioning ◽  
Court Of Justice ◽  
Legal Arguments ◽  
State Liability ◽  
The Uk ◽  
Correct Understanding

In this case comment, I explore the two EFTA Court Judgments in the Fosen-Linjen saga and their opposing views on the interaction between EU/EEA rules on procurement remedies and the more general principle of state liability for breaches of EU/EEA law. I review the case law of the Court of Justice of the European Union and, in particular, the perceived inconsistencies between the two 2010 judgments in Strabag and Spijker, which featured very prominently in the legal arguments submitted to the EFTA Court in both Fosen-Linjen cases. I also use the benchmark of the UK Supreme Court’s Nuclear Decommissioning Authority judgment to support the view that Spijker reflects the correct understanding of EU/EEA law and that there should be no further debate about it. I submit that the Court of Justice of the European Union would be well-advised to (re)confirm the position enshrined in Spijker at the earliest opportunity, to avoid any perpetuation of this debate in the context of EU/EEA public procurement law.

6. The law and institutions of the European Union (EU)

2020 ◽  
pp. 209-254
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley ◽  
Birju Kotecha
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
National Legislation ◽  
National Courts ◽  
State Liability ◽  
The Uk ◽  
Supranational Institutions

The UK is a former member state of the European Union (EU). The EU is administered by several supranational institutions including: the European Council, the Council of the European Union, the European Commission, the European Parliament, and the Court of Justice of the European Union (CJEU). The main sources of EU law are primary legislation, i.e. the treaties; secondary legislation, including regulations and directives; and the case law of the CJEU. Where EU law and national law conflict, EU law is supreme. EU law may have direct effect, i.e. be enforceable by individuals before national courts, or indirect effect, where national courts are obliged to interpret national legislation and case law, so far as possible to conform with a relevant directive. State liability for breaches of EU law means that member states are obliged to compensate individuals for consequent loss or damage. The Withdrawal Act 2018 includes the key provisions for EU law in the UK post-Brexit.

6. The law and institutions of the European Union (EU)

2018 ◽  
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
National Legislation ◽  
National Courts ◽  
State Liability ◽  
The Uk ◽  
Supranational Institutions

The UK is currently a Member State of the European Union (EU). The EU is administered by several supranational institutions including: the European Council; the Council of the European Union; the European Commission; the European Parliament; and the Court of Justice of the European Union (CJEU). The main sources of EU law are primary legislation, ie the treaties, secondary legislation, including regulations and directives, and the case law of the CJEU. Where EU law and national law conflict, EU law is supreme. EU law may have direct effect, i.e. be enforceable by individuals before national courts or indirect effect, where national courts are obliged to interpret national legislation and case law, so far as possible to conform with a relevant directive. State liability for breaches of EU law means that Member States are obliged to compensate individuals for consequent loss or damage.

scholarly journals Assessing the Public Administration’s Intention in EU Economic Law: Chasing Ghosts or Dressing Windows?

2016 ◽  
Vol 18 ◽  
pp. 93-121
Author(s):  
Albert SANCHEZ-GRAELLS
Keyword(s):  
European Union ◽  
Public Administration ◽  
Public Procurement ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Economic Law ◽  
Right To Good Administration ◽  
State Liability

AbstractHere I reflect on the role of subjective or intentional elements in EU economic law prohibitions, particularly in relation to rules concerning public administration. From a normative perspective, it is desirable to suppress the need for an assessment of subjective intent and to proceed with an objectified enforcement of such prohibitions. With this in view, I consider public procurement and Member State aid rules as two examples of areas of EU economic law subjected to interpretative and enforcement difficulties due to the introduction – sometimes veiled – of subjective elements in their main prohibitions. I establish parallels with other areas of EU economic law – such as antitrust, non-discrimination law and the common agricultural policy – and seek benchmarks to support the main thesis that such intentional elements need to be ‘objectified’, so that EU economic law can be enforced against the public administration to an adequate standard of legal certainty. This mirrors the development of the doctrine of abuse of EU law, where a similar ‘objectification’ in the assessment of subjective elements has taken place.I draw on the case law of the Court of Justice of the European Union to support such ‘objectification’ and highlight how the Court has been engaging in such interpretative strategy for some time. The paper explores the interplay between this approach and more general protections against behaviour of the public administration in breach of EU law: the right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union and the doctrine of State liability for infringement of EU law. I conclude with the normative recommendation that the main prohibitions of EU economic law should be free from subjective elements focused on the intention of the public administration.

8. Public enforcement of Union law (Articles 258–260 TFEU); review of legality and damages (Articles 263, 265, 268, 277 and 340(2) TFEU)

2018 ◽  
Author(s):  
Margot Horspool ◽  
Matthew Humphreys ◽  
Michael Wells-Greco
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Public Enforcement ◽  
Member States ◽  
Court Of Justice ◽  
Financial Consequences ◽  
State Liability

This chapter focuses on direct actions before the Court of Justice. It is divided into two sections. Section I deals with direct actions relating to public enforcement of EU law between the Commission and Member States (Article 258 of the TFEU) and between Member States (Article 259 TFEU). The financial consequences of failure to remedy infringements are also covered (Article 260 TFEU). Section II deals with actions challenging the legality of binding institutional acts (action for annulment, Article 263 TFEU); action for failure to act (Article 265 TFEU); and the plea of illegality (Article 277 TFEU). It briefly examines the action for damages against EU institutions (Articles 268 and 340(2) TFEU), a Treaty-based action from which parallels can be drawn to the evolution of state liability, through the Court’s case law.

scholarly journals Interpreting retained EU private law post-Brexit: Can commonwealth comparisons help us determine the future relevance of CJEU case law?

2019 ◽  
Vol 48 (1-2) ◽  
pp. 15-38
Author(s):  
Paula Giliker
Keyword(s):  
European Union ◽  
Case Law ◽  
Private Law ◽  
Eu Law ◽  
The European Union ◽  
Privy Council ◽  
Legal Perspective ◽  
The Future ◽  
The Uk ◽  
The Right

In June 2016, the United Kingdom voted in a referendum to leave the European Union (EU). The consequences of Brexit are wide-ranging, but, from a legal perspective, it will entail the repeal of the European Communities Act 1972. The UK government does not intend to repeal EU law which is in existence on exit day, but, in terms of the interpretation of retained law, decisions of the Court of Justice of the European Union (CJEU) will no longer be binding after Brexit. Nevertheless, s. 6(2) of the EU (Withdrawal) Act 2018 does allow the UK courts to continue to pay regard to EU law and decisions of the CJEU ‘so far as it is relevant to any matter before the court’. This article will consider the meaning of the phrase ‘ may have regard to anything…so far as it is relevant’. In empowering the courts to consider post-Brexit CJEU authority subject to the undefined criterion of relevancy, how is this power likely to be exercised? A comparison will be drawn with the treatment of Privy Council and the UK case law in Commonwealth courts following the abolition of the right of appeal to the Privy Council, with particular reference to the example of Australia. It will be argued that guidance may be obtained from the common law legal family which can help us predict the future relevance and persuasiveness of CJEU case law in the interpretation of retained EU private law.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

AbstractThe judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

8. Public enforcement of EU law (Articles 258–260 TFEU); review of legality and damages (Articles 263, 265, 268, 277 and 340(2) TFEU)

2021 ◽  
pp. 249-299
Author(s):  
Margot Horspool ◽  
Matthew Humphreys ◽  
Michael Wells-Greco
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Public Enforcement ◽  
Member States ◽  
Court Of Justice ◽  
Financial Consequences ◽  
State Liability

This chapter focuses on direct actions before the Court of Justice. It is divided into two sections. Section I deals with direct actions relating to public enforcement of EU law between the Commission and Member States (Article 258 TFEU) and between Member States (Article 259 TFEU). The financial consequences of failure to remedy infringements are also covered (Article 260 TFEU). Section II deals with actions challenging the legality of binding institutional acts (action for annulment, Article 263 TFEU); action for failure to act (Article 265 TFEU); and the plea of illegality (Article 277 TFEU). It briefly examines the action for damages against EU institutions (Articles 268 and 340(2) TFEU), a Treaty-based action from which parallels can be drawn to the evolution of state liability, through the Court’s case law.

3. Sources of English Law

2017 ◽  
Author(s):  
Lucy Jones
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
English Law ◽  
The Uk ◽  
The Eu

This chapter discusses the sources of English law, legislation, custom, case law, and EU law. It includes detail of how an Act of Parliament is created, an explanation of delegated legislation, and how legislation is interpreted by the courts. In considering case law, the importance of judicial precedent and how the system of precedence functions is fully explained. The chapter also discusses the major institutions of the EU including the jurisdiction of the Court of Justice of the European Union. The sources of EU law, treaties, regulations, directives, and decisions are outlined. The chapter discusses the 2016 referendum and the position of EU law in the UK during the negotiation period for the UK’s exit from the EU. Detail is given of the rights protected under the European Convention on Human Rights and Fundamental Freedoms and the impact of the Human Rights Act 1998.

Sign in / Sign up

Export Citation Format

Share Document