Week 5

Friday, October 14, 2022 3:17 PM

Lecture:
Law-making, Application, Enforcement Cycle
• Competence  decision making  sources of EU law
• Judicial review & Judicial protection
- How is EU law implemented and applied at the national level?
- How can EU law be enforced against the Member States?
- Institutional enforcement
- Bottom-up enforcement

Part 1: Implementation and application of EU law

A model of ‘cooperative federalism’

• See R. Schütze, From Dual to Cooperative Federalism (OUP,
2009)
• US ‘dual’ model v German ‘cooperative’ model
• Why EU cooperative?
- EU and MS act in the same areas, according to the ‘size’ of
the problem
- EU ‘borrows’ national institutions for application EU law: national administrations as decentralised
European administrations

At the EU level
• General picture
- No EU (federal) structures for application and implementation of EU law
- no decentralised agencies to enforce ‘federal’ law
• Some exceptions
- Competition law: Commission fining decisions
- ECB monetary policy for Eurozone MS
- EU agencies (e.g. migration and asylum)
- EPPO: prosecution of crimes against EU budget

At the national level

• Implementation and application of EU law is left mostly to national authorities
• EU system ‘borrows’ national institutions, which acquire ‘European mandate’
- E.g. ‘national courts’ mandate’ (M. Claes, Hart Publishing, 2006)
• Responsibility for the Member State as a whole
• EU law must be applied by any, and all, domestic institutions and bodies
- Horizontally: executive, legislative, judiciary
- Vertically: central level, regions, municipalities, etc

A key principle: sincere cooperation

• Art 4(3) TEU: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in
full mutual respect, assist each other in carrying out tasks which flow from the
Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of
the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The
Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could
jeopardise the attainment of the Union’s objectives’
• Source of legally binding obligations  enforceable before the CJEU
• See e.g. C-246/07 Commission v Sweden

A typical example: directives

• General obligation Art 288 TFEU: ‘A directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national authorities the choice of form and

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Member State to which it is addressed, but shall leave to the national authorities the choice of form and
methods’
• Duty to transpose directives before deadline
• But also, before deadline for transposition:
- Art 4(3) TEU: abstain from any measure that might compromise objectives of the directive (Adeneler)
- No adoption of legislation in conflict with directive
- National courts no interpretation of national law in conflict with directive

Institutional structures & EU law

• Increasingly, EU law demands the creation of new institutions & bodies for application EU law
- And/or setting new standards for existing ones: e.g. national central banks
• Some examples:
- Data protection authorities
- Data protection Directive and now GDPR, Chapter 6
- Look back at Schrems case
- National competition authorities
- Non-discrimination bodies
- Art 13 Directive 2000/43

The role of national courts

• National courts act as EU courts
• No specific ‘EU law procedures’ before NCs: EU law enforced via domestic procedures
- (Old?) Idea of ‘national procedural autonomy’
• But: equivalence and effectiveness (Rewe)
- Or today: ‘effective judicial protection’ (Art 19 TEU + 47 Charter)
• And: growing body of EU procedural law
- Public procurement, environment, asylum, non-discrimination, etc
• And of course: direct effect + primacy + state liability (Francovich)

Part 2 - Institutional Enforcement of EU law

The institutional enforcement of EU law

• What can be done if a Member State has breached EU law?
• Institutional enforcement at the EU level:
- Infringement actions (art 258 TFEU)
- Commission as ‘guardian of the Treaties’
(Art 17(1) TEU & Ledra)
- ‘Horizontal’ actions (art 259 TFEU)

Infringement action: basics

• Goal: ensure MS compliance with EU law
• Administrative phase + judicial phase
• Judgment of the CJEU  determine failure to fulfil obligations
- Art 260 TFEU pecuniary sanctions in case of non-compliance (think back Polish example)
• An ‘ordinary’ tool: over 700-800 new cases opened every year
- Number of cases reaching reasoned opinion or CJEU phase much smaller

Infringement actions: the breach of EU law

• Text of Art 258 TFEU: ‘[Failure] to fulfil an obligation under the Treaties’
- Acts & omissions
- Primary & secondary law & international agreements
- Similarly to the duty to implement EU law, any state body can be responsible for a breach of EU law:
- Legislature, executive, judiciary, (Commission v Italy C-
129/00; Commission v France C-416/17), admin bodies, etc
- Regions, local authorities, autonomous communities, etc
• ‘Reciprocity’ not an accepted defence- Nor alleged invalidity of EU act (see Joined case C-715/17...)

Art 259 TFEU: ‘horizontal’ enforcement

• MS can bring another MS before the Court of Justice

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• MS can bring another MS before the Court of Justice
- Same conditions Art 258: ‘failure to fulfil obligations’
- International law logic
• Before CJEU involvement, MS must inform the Commission
- Commission may transform case in 258 action
• Very rarely used
- Preference for informal channels
- Yet: a revival? (Austria v Germany, Slovenia v Croatia, Czech Republic v Poland)

Art 260 TFEU: the penalty system

Non-compliance with finding of the Court under 258: pecuniary sanctions possible
New ruling of the Court necessary
Unless breach is failure to notify transposition
directive (Lisbon reform)
Other Lisbon reforms: no second reasoned opinion,
only formal notice
Periodic penalty and/or lump sum

In this tutorial, we will explore three different scenarios in how individuals engage with the enforcement of
EU law. We will discuss each case as well as reflect on the common emerging patters on the role of
individuals in bottom-up enforcement of EU law.

1. Strategic Litigation

First, individuals can seek remedies for breaches of their rights. A unique feature of the EU legal order is the
legal possibility for citizens to be able to legally contest this situation and seek judicial remedies to enforce
their rights. In fact, enforcement of law by individuals has been woven into the fabric of EU law since 1963
in the iconic Van Gend en Loos judgment. The legal possibility for citizens to assert their rights became
a critical component in the development of the internal market initially, then expanded into other areas
of EU law, including the Area of Freedom, Justice, and Security. Yet, the choice to pursue judicial remedies
in seeking to enforce EU law can be a strategic one by the litigant. Often in EU law this strategic litigation has
been developed by 'Euro-lawyers’. Through the recent case Landespolizeidirektion Steiermark we will tackle
questions of enforcement of EU law through strategic litigation.

Case notes:
What limits does European Union (EU) law impose on Member States invoking national security to
temporarily re-introduce border controls within the Schengen Area? By way of exception, the Schengen
Borders Code (SBC) foresees the possibility for EU Member States to re-introduce border controls for
reasons of public policy and internal security, within the maximum overall time limit of two years. The ECJ
declared the extended suspension of Schengen contrary to EU law

a) What are the advantages and what are the risks of strategic litigation / legal mobilization?
- Strategic litigation --> tool to expedite the provision of protection and remedies and make
jurisprudence more accommodating of human rights; used to achieve social change beyond the fight
for the rights of one particular individual
○ Potential impact on social change when governments fail to address injustice
○ Expensive
○ Time-consuming
○ Risky
○ elitist

b) In what aspects does strategic litigation advance EU law enforcement?

c) What are the ramifications for national enforcement of EU law?

- Censure procedure
- Infringement procedure

2. Collective Redress

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2. Collective Redress

Second, collective redress is an important development of EU law. The gist of collective redress provides
access to justice when the rights have been violated by one and the same entity. Class action mitigates
situations when individual action would have been missed due to costs involved and time. The recently
adopted Directive 2022/1828 on representative actions is currently under the stage of national
transposition and offers both injunctive and redress measures. The opening of EU toward qualified
entities to enforce EU law was already evident in the privacy hallmark legislation – the General Data
Protection Regulation. Below we examine a recent case C-319/20 that provides an avenue for non-profit
organizations to enforce the GDPR.

a) In what ways does collective redress tackle ‘gaps’ in enforcement of EU law?

b) How does collective redress advance rights and remedies in a way that individual actions do not?
They can effectively deal with issues and violation in policy areas which have more of a cross-border
characteristic, such as those related to data protection and climate change (cases like Meta Ireland and
Dieselgate (Volkswagen AG))

c) What are the shortfalls of the arguments of the Court in case C-319/20 in allowing representative
action brought by a consumer protection association in the absence of a mandate and
independently of the infringement of specific rights of a data subject?
Case note:
- Standing of non-profit associations or consumer associations for file collective actions without a data-
subjects mandate
- Art. 80 GDPR --> only requisites for the standing of an association under 80(1) is that the association
is a "not-for-profit body, organization or association, which has been validly constituted in accordance
with the law of the MS, who statutory objectives are in the public interest and which is active in the
field of data protection" and it has standing if it "considers that the rights of a data subject provided for
in this regulation have been violated by the processing" of their personal data (80(2))
○ 80(2) allows representative entities to start proceedings to exercise rights under art. 77 and 79
○ Broad enough to permit national legislators to establish opt-out-based representative actions;
confusion around the word "may" - leaves it up to the MS to legislate (open clause)
- Risk of differing standing provisions at the national level due to the parallel implementation of the
GDPR and the Representative Actions Directive --> it will create confusion for associations regarding
where to initiate proceedings, especially in the context where MS have stricter standing requirements
than those set in the GDPR or the directive
- Although the case is revolutionary, it could have done more by reflecting upon the notions of an
effective remedy for consumers, especially in light of the national implementation of the standing
provisions

3. Reporting in the Public Interest

Third, individuals can report breaches of EU law. In this scenario, individuals act in the public interest, rather
than for the enforcement of their own rights. As mentioned, EU law relies on both national and EU level
enforcement systems. The expansion of EU law in different policy fields entails that a myriad of institutions
and bodies are involved in the enforcement of EU law. However, enforcement capacity is uneven among
Member States and in critical areas, such as public procurement, where systemic problems exist in insufficient
enforcement of rules by national contracting authorities and contracting entities. Many other policy fields
have similar enforcement problems. The EU is aware of the enforcement challenges, which were to be
mitigated by the recently adopted Directive 2019/1937 on protecting
reports on breaches of EU law though protecting reporting done in the work context.

a) How is EU law enforcement strengthened by protecting individuals who report breaches of EU

law?
- Whistleblowers play a key role in exposing and preventing breaches that pose harm to the public
interest and in safeguarding the wellbeing of society
○ Often discouraged from reporting their concerns or suspicions for fear of retaliation
-

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 - This is one upstream component of enforcement of Union law and policies --> they feed national and
Union enforcement systems with information, leading to effective detection, investigation and
prosecution of breaches of EU law, thus enhancing transparency and accountability
- Where weaknesses of enforcement have been identified, whistleblowers are usually in a privileged
position to disclose breaches, and it is therefore necessary to enhance enforcement by introducing
effective, confidential and secure reporting channels and by ensuring that whistleblowers are protected
effectively against retaliation

b) What are the challenges of offering protection for individuals at the

national level?

c) Should there be a pan European whistleblower office?

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