Question 1

What arguments have been raised by the member states in defence of Article 258 TFEU infringement proceedings against them? What success did they meet?

Answer guidance

This is a general question on various defences raised by the member states under the Art 258 action by the Commission. The defences, often acceptable in International law but without success in the EU legal order, are employed to try to justify their non-compliance with obligations. Of the more common are:

Force Majeure or overriding necessity in Case 77/69 Commission v Belgium (the Belgium Wood Case) in which the Belgium Government pleaded the dissolution of Parliament and the separation of powers had forced the failure to implement an EU Directive;

and Case 101/84 Commission v Italy, where a data processing centre had been bombed, which might have actually allowed the defence to be used if it was not for the fact that the delay in implementing was four and a half years, far too long for the Court;

Community measures being the cause of political or economic difficulties raised by the UK in Case 128/78 Commission v UK (Tachographs) in which the UK pleaded that the cost and interruption to industry of fitting tachographs in lorry cabs would cause extreme difficulties;

and Italy in Case 7/61 Commission v Italy, where Italy claimed it could take action in the case of an emergency but this could only be done if expressly sanctioned by the Commission, which in the case, it was not and;

Reciprocity, by which the member state claimed in Cases 90–91/63 Commission v Belgium and Luxembourg that because the Council has failed to act, or in Case 232/78 Commission v France, that other member states have not complied with their obligations, the member state challenged is justified in not complying;

Likewise, arguments that a conflicting national law is not in fact applied or that the administrative practice is in compliance as in Case 167/73 Commission v France also fail.

About the only defence that will work, given the robust dismissal by the Court of Justice of virtually all other defences raised, is that the Commission got it wrong on the facts or in law, i.e. there was no breach.

Question 2

Has Art 265 TFEU proved to be of any benefit to those capable of invoking it?

Answer guidance

This question concerns actions against the Council, the EP, the Commission, the European Council, or the ECB for a failure to act. It is the remedy where the unlawfulness of the institution in question is the wrongful failure to act in violation of the Treaty. It can be divided into a discussion of those who are capable of invoking it and whether it has helped those who have got past the stage of admissibility. A description of the process itself should be given at the start. The 2007 Lisbon Treaty made only minor changes to this Article.

You need then to outline Art 265 TFEU, then consider institutions which may be challenged and the locus standi of the various applicant. Then going into further detail, you need to identify, the types of measure which may be requested and important case law of the CoJ. Include the procedural aspects of the action and in particular the concept of the definition of position. The Transport Policy case is the most important one and so should be included followed by your conclusions on the usefulness of the Art 265 action.

Question 3

In what circumstances will the ‘plea of illegality’ under Art 277 TFEU be available to litigants seeking to obtain benefit from it?

Answer guidance

Whilst it would be rare for a question to concentrate entirely on this less familiar, and certainly less employed, article of the Treaty, it might nevertheless be the subject of a question. It is more likely you will have to consider an action using Art 277 TFEU within the answer to another question, as can be seen already in some of the other questions in this chapter which have asked you to consider the possible alternative actions which an individual challenging EU law might consider. However, it will do no harm to concentrate on this action so as to become familiar with it.

To provide, therefore, an answer to this question, a full explanation of the action and its availability to litigants needs to be given. The answer is thus straightforward and your only likely problem, given that the Article itself is not the subject of extensive treatment in textbooks, is finding enough to say about it. Hence the reason it is less likely to appear as a complete question in its own right. The 2007 Lisbon Treaty expanded the number of institutions whose acts can be challenged as inapplicable.

If it is the case that your particular course has not considered this action at all, given the constraints on time whereby topics have to be considered according to priority, then clearly it is not one you should attempt.

If attempted then you should first outline Art 277 TFEU and the Locus standi requirements and nature of the action. You need to discuss its relationship with Art 263 TFEU and case law of the CoJ, notably TWD Deggendorf (C-188/92) and the Simmenthal case (92/78). Move on then to the substantive grounds of challenge and the consequences of a successful action, which are that the measure is declared Void in that case but usually generally also.

Question 4

What difficulties may be faced by national courts in trying to operate indirect effects? Give case citations to support your answer.

Answer guidance

This is a brief summary question on the alternative individual remedy of indirect effect, which was developed by the CoJ to assist in cases where direct effects would not help an individual claim or were simply non-existent. In particular it seeks to concentrate on when there will be difficulties in employing the principle.

Start though by outlining generally the principle of indirect effects, before moving on to explain that the Court of Justice held in Case 80/86, Public Prosecutor v Kolpinghuis Nijmegen BF that the principle of indirect effects could not be applied by a member state to support the retroactive prosecution of a Dutch firm for stocking adulterated mineral water which was in breach of an EU directive. The implementation period had expired and the Netherlands should have implemented it, but had not, it would not those is such circumstances give rise to indirect effects. The Court of Justice acknowledged the unsuitability of the Von Colson sympathetic interpretation for all cases. In Case C-168/95 Criminal Proceedings against Luciano Arcaro, the Court of Justice acknowledged that the limits of the Von Colson principle would be overreached if there was a retroactive interpretation of national law in the light of the directive which had not been implemented by the member states and which would have imposed criminal liability on an individual, confirming the limitation recognized in the Kolpinghuis case.

Question 5

Is the test the CoJ operates in Article 263 TFEU actions too strict?

Answer guidance

This question looks at the suggestion that the operation of the test of individual concern for a successful action under Art 263 TFEU is too strict. Various reasons have been put forward for this strict test including a floodgate policy argument whereby locus standi requirements have been interpreted particularly restrictively by the Court of Justice to reduce the number of cases coming before it and the CFI (now the General Court). Litigants face lengthening delays to justice, thus keeping the number of cases down will help reduce delay. Another argument is the suggestion that there is a desire to promote the Court of Justice more as a supreme court of the member states and not one directly accessible as a first instance court for individuals. Other arguments revolve around discussions about balancing the interests of the EU and individuals. The decision making procedure in the EU is a much more complex procedure and often the result of compromise which makes legislation more difficult to enact. The inevitable economic choices of the EU are bound to affect individuals and sometimes in an adverse way but they must be allowed to be made otherwise the ability of the EU and Commission to operate would be undermined. Individuals actions should not hinder the institutions ability to operate. The changes introduced to Art 263 by the Lisbon Treaty have eased the position of individuals in challenging Regulatory Acts which have been defined by the Court of Justice as non-legislative acts in Case C-583/11P Inuit v EP & Council.