Graduate Diploma in Law (GDL) EU Law Syllabus

What did Internationale Handelsgesellschaft (1970) establish about supremacy?

That EU law prevails even over the constitutional law of a Member State, including fundamental rights provisions in a national constitution; the validity of an EU measure cannot be judged by national constitutional standards.

What did Simmenthal (1978) require national courts to do where national law conflicts with directly effective EU law?

A national court must give immediate effect to directly effective EU law and set aside (disapply) any conflicting national provision, without waiting for that provision to be repealed by legislative or constitutional means.

How was the supremacy of EU law given effect in the UK pre-Brexit, per Factortame?

In R v Secretary of State for Transport, ex p Factortame (No 2), the House of Lords disapplied provisions of the Merchant Shipping Act 1988 that conflicted with directly effective EU law and granted interim relief against the Crown, giving practical effect to supremacy via the European Communities Act 1972.

Define the doctrine of direct effect and identify the case that created it.

Direct effect allows individuals to rely on provisions of EU law directly before national courts to enforce rights. Established in Van Gend en Loos (1963), where the CJEU held that the Treaty creates rights for individuals which national courts must protect.

State the Van Gend en Loos criteria for a provision to have direct effect.

The provision must be (1) clear and precise, (2) unconditional, and (3) not dependent on further implementing measures (leaving no real discretion to the Member State or institutions).

Distinguish vertical and horizontal direct effect.

Vertical direct effect allows an individual to enforce an EU right against the State (or an emanation of the State). Horizontal direct effect allows an individual to enforce an EU right against another private individual or body.

Do Treaty Articles and Regulations have horizontal direct effect?

Yes. Sufficiently clear, precise and unconditional Treaty Articles (e.g. Defrenne v Sabena on equal pay) and Regulations are capable of both vertical and horizontal direct effect, being enforceable against both the State and private parties.

Can a Directive have direct effect, and if so, under what conditions and which case?

Yes, but only vertically. Per Van Duyn and Marshall, an unimplemented or incorrectly implemented Directive can be relied on against the State once the transposition deadline has passed, provided its terms are clear, precise and unconditional. Directives have no horizontal direct effect.

Why do Directives lack horizontal direct effect, and which case confirms this?

Because Directives are addressed to and bind Member States, an individual cannot rely on an unimplemented Directive against another private party. Confirmed in Marshall v Southampton AHA and reaffirmed in Faccini Dori v Recreb.

What is the 'broad' definition of an emanation of the State for vertical direct effect (the Foster test)?

Per Foster v British Gas, a body is an emanation of the State if it is made responsible, pursuant to a State measure, for providing a public service under State control and has special powers beyond those normal between private parties. (Farrell v Whitty clarified these factors are not cumulative.)

Define indirect effect and identify the originating case.

Indirect effect (the duty of consistent/harmonious interpretation) requires national courts, so far as possible, to interpret national law in conformity with the wording and purpose of an EU Directive. Established in Von Colson v Land Nordrhein-Westfalen.

What are the limits of indirect effect?

National law must be interpreted consistently only 'so far as possible'; it cannot be used contra legem (against the clear wording of national law) and cannot, of itself, impose criminal liability or aggravate it against an individual (Marleasing; Arcaro).

State the conditions for State liability in damages (the Francovich principle).

Per Francovich and refined in Brasserie du Pêcheur/Factortame III: (1) the rule of EU law infringed must be intended to confer rights on individuals; (2) the breach must be sufficiently serious; and (3) there must be a direct causal link between the breach and the damage suffered.

What is the test for whether a breach is 'sufficiently serious' for State liability?

Whether the Member State manifestly and gravely disregarded the limits on its discretion. Relevant factors include the clarity and precision of the rule breached, the measure of discretion left to the State, whether the breach was intentional, and whether any error of law was excusable (Brasserie du Pêcheur).

How does State liability fill the gap left by the absence of horizontal direct effect of Directives?

Where an individual cannot enforce an unimplemented Directive against another private party (no horizontal direct effect) and consistent interpretation is impossible, they may instead claim damages from the State for its failure to implement the Directive (Francovich).

What is the purpose of the preliminary reference procedure under Article 267 TFEU?

To allow national courts to refer questions to the CJEU on (a) the interpretation of the Treaties and (b) the validity and interpretation of acts of the EU institutions, ensuring the uniform interpretation and application of EU law across all Member States.

Which questions may a national court refer under Article 267 TFEU, and which may it NOT decide itself?

It may refer questions of interpretation of EU law and the validity of EU acts. A national court may NOT itself declare an EU act invalid (Foto-Frost); only the CJEU can do so, so a reference is mandatory where invalidity is in issue.

When is a national court obliged (rather than merely permitted) to make a preliminary reference?

Under Article 267(3) TFEU, a court against whose decisions there is no judicial remedy under national law (a court of last resort) must refer a question of EU law necessary to give judgment, unless an exception applies.

State the CILFIT exceptions that excuse a court of last resort from referring.

Per CILFIT, no reference is needed where: (1) the question is irrelevant to the outcome; (2) the EU provision has already been interpreted by the CJEU (acte éclairé); or (3) the correct application is so obvious as to leave no scope for reasonable doubt (acte clair), bearing in mind the equal authenticity of all language versions.

What is the relationship between the CJEU and the national court in an Article 267 reference?

It is a cooperative, non-hierarchical relationship: the CJEU rules on the interpretation/validity of EU law but does not decide the case or apply the law to the facts; the national court then applies the CJEU's ruling to resolve the dispute.

Which Treaty Articles prohibit customs duties and charges having equivalent effect (CEEs) on goods?

Articles 28 and 30 TFEU prohibit, between Member States, customs duties on imports and exports and all charges having equivalent effect; this prohibition is absolute and admits no justification.

Define a 'charge having equivalent effect' to a customs duty.

Per Commission v Italy (Statistical Levy), any pecuniary charge, however small and whatever its designation or mode of application, imposed unilaterally on goods by reason of the fact that they cross a frontier, even if not imposed for the benefit of the State or discriminatory or protectionist.

What does Article 110 TFEU prohibit, and how does it differ from a CEE?

Article 110 TFEU prohibits discriminatory or protective internal taxation on goods from other Member States. Unlike a CEE (charged because goods cross a border), Article 110 concerns internal taxes applied to domestic and imported goods alike but in a way that discriminates against or protects against imports.

What does Article 34 TFEU prohibit, and what is the leading definition of a measure having equivalent effect (MEQR)?

Article 34 TFEU prohibits quantitative restrictions on imports and all measures having equivalent effect. Per Dassonville, an MEQR is 'all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Union trade'.

Explain the Cassis de Dijon principle of mutual recognition and the 'rule of reason'.

Per Cassis de Dijon, goods lawfully produced and marketed in one Member State should in principle be admitted to any other (mutual recognition). Indistinctly applicable measures may nonetheless be justified by 'mandatory requirements' (e.g. consumer protection, public health, fairness of commercial transactions) if proportionate.

What is the Keck distinction regarding 'selling arrangements'?

Per Keck and Mithouard, national rules restricting or prohibiting certain 'selling arrangements' fall outside Article 34 (are not MEQRs) provided they apply to all relevant traders operating within the territory and affect the marketing of domestic and imported products in the same way in law and in fact.

List the grounds on which a restriction on the free movement of goods may be justified under Article 36 TFEU.

Public morality, public policy, public security, the protection of health and life of humans/animals/plants, the protection of national treasures of artistic/historic/archaeological value, and the protection of industrial and commercial property — provided the measure is not a means of arbitrary discrimination or a disguised restriction on trade and is proportionate.

Which Treaty Article governs the free movement of workers, and what does it prohibit?

Article 45 TFEU guarantees the free movement of workers within the EU, abolishing discrimination based on nationality between workers of Member States as regards employment, remuneration and other conditions of work and employment.

How did the CJEU define a 'worker' for the purposes of Article 45 TFEU?

Per Lawrie-Blum, a worker is someone who, for a certain period of time, performs services for and under the direction of another person in return for remuneration; the work must be genuine and effective and not on such a small scale as to be purely marginal and ancillary (Levin).

What is EU citizenship and which Treaty Article creates it?

Under Article 20 TFEU, every person holding the nationality of a Member State is a citizen of the Union (citizenship is additional to, not replacing, national citizenship). Article 21 TFEU gives every citizen the right to move and reside freely within the territory of the Member States, subject to limitations in the Treaties.

What is the relevance of the Citizens' Rights Directive 2004/38 to free movement of persons?

Directive 2004/38/EC consolidates the rights of EU citizens and their family members to move and reside freely, including residence up to three months, residence beyond three months (for workers, self-employed, students, and the self-sufficient), and acquisition of permanent residence after five years' lawful continuous residence.

State the two core prohibitions of EU competition law in Articles 101 and 102 TFEU.

Article 101 TFEU prohibits agreements, decisions and concerted practices between undertakings that may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition. Article 102 TFEU prohibits any abuse of a dominant position within the internal market insofar as it may affect trade between Member States.

What is the effect of Article 101(2) TFEU, and how can an agreement escape the Article 101(1) prohibition?

Article 101(2) renders prohibited agreements automatically void. An agreement may nonetheless be exempt under Article 101(3) if it improves production/distribution or promotes technical/economic progress, allows consumers a fair share of the benefit, is indispensable to those aims, and does not eliminate competition for a substantial part of the products.

What constitutes an 'abuse' of a dominant position under Article 102 TFEU? Give examples.

Conduct by a dominant undertaking that, through methods different from normal competition, weakens competition. Examples (non-exhaustive) include imposing unfair purchase/selling prices, predatory or excessive pricing, limiting production/markets to consumers' prejudice, applying dissimilar conditions to equivalent transactions, and tie-ins/refusal to supply.

What does the enforcement action under Article 258 TFEU involve?

It is an action by the European Commission against a Member State for failure to fulfil a Treaty obligation. The procedure comprises an administrative stage (informal contact, a letter of formal notice, then a reasoned opinion) and, if non-compliance continues, referral to the CJEU for a declaration of breach.

How does Article 259 TFEU differ from Article 258 TFEU?

Article 259 allows one Member State to bring proceedings against another Member State for failing to fulfil a Treaty obligation. The complaining state must first bring the matter before the Commission (which issues a reasoned opinion); such actions are rare in practice.

What sanction can be imposed under Article 260 TFEU if a Member State fails to comply with a CJEU judgment?

If a Member State does not comply with a judgment finding a breach, the Commission may bring the matter back to the CJEU under Article 260(2), which may impose financial penalties — a lump sum and/or a periodic penalty payment (daily fine) — until compliance is achieved.