EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #8

[Ch. 5. JUDICIAL REVIEW OF COMMUNITY ACTS

[D. The Scope of Judicial Review]

3. Infringement of the Treaty or any Rule of Law Relating to its Application

Art. 230: What is a “rule of law relating to [the] application [of the Treaty]”?  Where
does the Court find such rules, if not in the Treaty itself?

Scope of review: distinction between finding facts and evaluating them – and the concept of “manifest error of assessment” – and see the cases in Supp. Pp. 77-78 in which the CFI overruled the Commission’s disapproval of proposed corporate mergers: how much deference is given?

a. The Principle of Proportionality

• INTERNATIONALE HANDELSGESELLSCHAFT mbH v. E.V.G.F., p. 171 (1970).
• How did the case get to the ECJ? What was the issue specifically presented to it?
• Where does the Court find "rights of a fundamental nature"?
• What is the purpose of the Community regulation challenged here?
• What alternative methods of achieving that purpose are discussed, and why are they considered insufficient?
• Who bears the burden of persuasion as to the existence of adequate but less burdensome alternatives?
• U.K. V. COUNCIL, p. 175 (1996) (working-time directive).
• What is the Court's standard of "proportionality"?
• Who bears the burden of persuasion as to whether it is met?
• What characteristics of the directive's requirements does the Court see as establishing its necessity? Do these characteristics (para. 65, pp.177-8) provide assurance that the objectives will be achieved? If not, what relevance do they have to the decision?
• Germany v. Council, n. 2 p. 178 (1994) (product safety dir.: stop-gap Community action)
• what are Germany's principal arguments on proportionality?
• no showing that the Community measures will be effective, when MS enforce them
• infringement action against non-complying MS is sufficient to achieve goals
• Did Germany or the Council have the burden of persuasion?

b. The Principles of Equal Treatment and Non-Discrimination

• BELA-MÜHLE JOSEF BERGMANN, p. 179 (1977) (Skimmed Milk Powder)
• Does the Court rely on a general principle here, or one expressed in a Treaty provision?
• In what sense did the regulation discriminate among agricultural producers? Could it be justified in terms of the purpose of the regulation?
• Mund & Fester, n. 4 p. 181 (1994): more relaxed standard for pre-judgment attachment, where the judgment is to be enforced in another country, than where it is to be enforced at home
• General principle, or treaty provision?
• How does the Court determine that the MS law discriminates on the forbidden basis?
• cf. U.S. Const. Art. IV §2, "privileges and immunities": if a local law disadvantages some citizens of its own state along with citizens of other states, is it still prohibited?

c. Legal Certainty, Non-retroactivity, Legitimate Expectations

• retroactivity of legislation
• Amylum, p. 182 (1982)
• regulation adopted to correct disproportionate treatment of sugar and isoglucose
• regulation struck down for failure to consult Parliament
• new regulation adopted following proper procedures, to take effect retroactively to the intended effective date of the first regulation
• general principle: presumption against retroactive application
• "legitimate expectations":
• Mulder, p. 183 (1978): if a farmer, in exchange for a specific benefit, agrees to forego production for a specific period of time, can he be subjected, at the end of the agreed time, to a regulation adopted after the agreement was made, which limits new quotas to those who were actively producing during the moratorium agreed to?  What "legitimate expectation" would be denied?
• Mackprang, p. 184 (1991): how would you decide this case? What is the "subjective element" in it, referred to by the editors?
• Retroactivity of ECJ decisions
• general principle: cf. U.S. S.Ct. decisions, especially in the area of criminal procedure

is it consistent with the principle of judicial decision-making, to give the court discretion to make its rulings prospective only?

4. Misuse of Powers

• How does this differ from "infringement of the treaty"?
• GIUFFRIDA V. COUNCIL, p. 187 (1976).
• Were the disputed qualifications useful for the job?
• What was it that made them inappropriate in the particular case?
• Booss and Fischer v. Commission, n. 3 p. 188 (1993)

E. Damage Actions Against the Community [Art. 235 (ex 178) (jurisdiction) and art. 288 (ex 215) (substance)]

1. The Community's Liability in Tort

• damage caused by servants (vicarious liability)
• "in the performance of their duties": Sayag, p. 192-3 (1969): is the particular activity a necessary extension of the employer's function?
• Adams, p. 193 (1985)
• general principles common to the Member States
• how commonly accepted does the principle have to be?
• how precisely formulated does it have to be in the MS law?
• Grifoni, p. 194 (1994): comparative negligence, and MS law

2. Liability for the Community's Legal Acts

• Do the same standing rules apply to an action for damages, as to one to annul or for failure to act? If not, what rules do apply?
• Lütticke, p. 195 (1971): not the same rules, "independent system"
• Schöppenstedt, p. 196 (1971): anyone injured by a "flagrant violation of superior law for the protection of the individual"
• Pacific Fruit (1993) and Cobrecaf SA (1995), p. 196: would the damages claim effectively nullify the challenged decision?
• BAYERISCHE HNL, p. 197 (1978) "second skimmed-mik powder": first annulment, then damages
• does annulment of the regulation establish liability for damages? if not, why not?
• does the act implicate a superior law for the protection of the individual? Equal treatment!
• does it "manifestly and gravely" disregard limits?
• SOFRIMPORT S.A.R.L. V. COMMISSION, p. 199 (1990): action to annul, joined with action for damages
• annulment: "legitimate expectations"
• damages: "sufficiently serious breach" - complete disregard of plaintiff's interest, with no overriding public interest
• Should an unlawful directive give rise to damages? How does it differ from a regulation?

3. The Relationship between Community and Member State Liability

• HAEGEMAN V. COMMISSION, p. 200 (1972): to what extent is the Community liable for Member State wrongdoing?
• when MS action is challenged as inconsistent with authorizing EC law?
• when MS action is commanded by EC law, which in turn is challenged as inconsistent with the Treaty?
• N. 2 p. 202: would it make sense to require actions for wrongful withholding of money to be brought in MS court regardless of what agency is at fault, and all actions for consequential damages to be brought in the court of the jurisdiction responsible for the agency that acted wrongfully?