The EU and the right to judicial protection. Some

The EU and the right to judicial protection:
Some Reflections
Takis Tridimas
Matrix 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 AgroZootecnica Franchini, Mazák AG, 14 April
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
• 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):
Urgent procedure:
Direct actions
CFI (now GC)
The Response of the GCC
• Judgment of 9 September 2011 (BVerfG, 2 BvR
• 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 2011
The 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
• 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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