The EU and the right to judicial protection: Some Reflections

Takis TridimasMatrix Chambers,

Sir John Lubbock Professor of Banking Law,

Queen Mary College University of London

The Impact of Lisbon

• EU law omni-presence

• Some new frontiers – Human Rights (relations with ECHR)– Freedom Security and Justice– Financial law

• And some old challenges…– Case load

The Impact of Lisbon• Impact of Lisbon Treaty on the ECJ

– Direct: e.g. locus standi: Article 263 TFEU– Indirect, e.g. new competences in area of

freedom security and justice, common commercial policy, sports (Cases C‑403/08 and C‑429/08 Football Association Premier League, Kokott AG, 3 February 2011); energy (Case C‑2/10 Azienda Agro-Zootecnica Franchini, Mazák AG, 14 April 2011)

Recent case law • Increasing reliance on Charter: (C-92 & 93/09

Schecke v Land Hessen, 9 November 2010; but would the ECJ have reached different conclusions in its absence?)

• Equality, e.g. Case C‑147/08 Römer, judgment of 10 May 2011 (discrimination based on sexual orientation)

• Proportionality still causing problems (The Queen on the Application of Sinclair Collis Limited v Secretary of State for Health [2011] EWCA Civ 437

Recent Case law• Case T-18/10 Inuit, Order of 6 September 2011 • locus standi of individuals to challenge EU measures

under Article 263(4) TFEU•  Article 263(4) TFEU enables individuals to challenge:•  an act addressed to them• an act (whether individual, general or legislative in

nature) which is of direct and individual concern to them and

• a regulatory act which is of direct concern to them and does not entail implementing measures.

Recent case law• Regulatory acts are acts of general application which are

not legislative acts. • Legislative acts are those adopted by the Council and

the Parliament acting under the ordinary legislative procedure: Article 289(3) TFEU

• Individuals cannot challenge the validity of a legislative act directly before the GC unless they can prove direct and individual concern

• The end result is that locus standi for individuals before the EU courts remains limited. The EU is based on a decentralized system of justice where the primary venue for the assertion of EU rights are the national courts.

How long will it take?

• Preliminary references (ECJ): 17.1

• Urgent procedure: 2.5

• Direct actions

• ECJ 17.1

• CFI (now GC) 33.1

The Response of the GCC

• Judgment of 9 September 2011 (BVerfG, 2 BvR 987/10)

• The CC examined the legality of Germany’s participation to credit package for Greece and the establishment of the EFSF

• German legislature must always control effectively budget decisions both domestically and in the international sphere

• Government must obtain prior approval by the Budget Committee of the Parliament before giving new guarantees

The Response of the GCC• The Bundestag may not establish permanent

mechanisms under the law of international agreements which result in an assumption of liability for other states’ voluntary decisions, especially if they have consequences whose impact is difficult to calculate. Every larger scale aid measure of the Federation taken in a spirit of solidarity and involving public expenditure at international or European Union level must be specifically approved by the Bundestag.

European Union Act 2011• Fully in force on 19 September 2011. • makes ratification of future amendments to the TEU and

the TFEU subject to approval by referendum. • The referendum condition applies both to amendments

that may be introduced by the ordinary revision procedure and those that may be made by the simplified revision procedure as provided in Article 48 TFEU.

• Any amendment which increases the competence of the EU or may impose new obligations on the UK or may limit its powers is subject to a referendum.

European Union Act 2011The following do not require a referendum:• accession of a new Member State, • the “codification of practice” under the EU Treaties in

relation to the previous exercise of an existing competence,

• amendments which apply only to other Member States are not subject to a referendum.

• Where an amendment is made under the simplified revision procedure, a referendum is not required provided that the amendment falls in certain specified categories and is not “significant” in relation to the UK.

European Union Act 2011• The Act also makes certain decisions by the UK, such

as participation to the European Public Prosecutors Office or the Euro, subject to a referendum.

• The Act provides that directly effective EU law falls to be recognized and available in law in the UK only by virtue of an Act of Parliament. This does not change the current position.

• The Act does not have entrenched status • It does not affect EU treaties already in force • It strengthens the position of the Government in

negotiating future Treaty amendments but gives rise to many issues of interpretation.

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