Another judgment of the Court of Justice on Article 263 (4) TFEU and what is a “regulatory act not entailing implementing measures”. And again, the Court held on 28 April 2015 in Case C-456/13 P T & L Sugars v Commission that the measure challenged was not “regulatory act not entailing implementing measures”. Does that judgment end the hopes of those who wished for a broader interpretation of Article 263 (4) TFEU and for a loosening of the rules on standing ?
After all, AG Cruz Villalòn was sympathetic to the idea in his Opinion of 14 October 2014 that the measures challenged were indeed “regulatory acts not entailing implementing measures” and advised that the action should be declared admissible.
The Court, in its judgment of 28 April 2015 disagreed and relied on its judgment in Telefonica v Commission C-274/12 P, EU:C:2013:852 (which we noted up in our very first post).
Back in December 2014 – on the same day as it gave its Opinion on EU accession to the European Convention on Human Rights which we noted up here – the Court of Justice handed down an interesting judgment in Case C-562/13 Moussa Abdida, EU:C:2014:2453, on what sort of judicial remedies should be available to a third-country immigrant who has been declared to be staying illegally to challenge that declaration when he claims he needs to stay to get medical treatment.
The Court held that such an immigrant must be able to challenge the decision to send him back to his country of origin with suspensive effect and must also, in the meantime, get social assistance to cover his basic needs pending his appeal.
The judgment shows how the Court is willing to interpret the provisions of EU law in such a way that they comply with the Charter of Fundamental Rights and with the European Convention on Human Rights.
The big news is that on 18 December 2014 the Court of Justice has handed down its second negative opinion in Opinion 2/13 EU:C:2014:2475 on the accession of the EU to the European Convention on Human Rights.
Back in 1996 the Court had decided in Opinion 2/94 that there was no legal basis in the Treaty at that time for the EU to accede (see the summary of the submissions in that case and the opinion of 28 March 1996). As a consequence of that opinion, Article 6(2) TEU was added to provide a legal basis and states:
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
The EU and the Council of Europe then spent some time negotiating an agreement between them allowing for accession to the Convention. Once that was done, the Commission asked the Court of Justice, pursuant to its jurisdiction under Article 218 (11) TFEU: “Is the draft agreement providing for the accession of the [EU to the ECHR] compatible with the Treaties?”
The Court’s answer is “no”.
Certain Member States were concerned about the so-called “welfare tourism”, i.e. the possibility of nationals of another Member State to enter their territory “solely” in order to claim benefits. Yesterday’s judgment in Case C-333/13 Dano comes to relieve those concerns.
In short the facts of the case can be summarised as follows. Ms Dano and her son, Romanian nationals, entered Germany and live in the city of Leipzig. Ms Dano receives child benefit for her son as well as another allowance paid out for a children, whose father’s identity is unknown (in total 317 Euro). In the background to the case, there is nothing to indicate that she has looked for a job in Germany. The case in the main proceedings was initiated when Ms Dano’s application for the grant of benefits by way of basic provision for jobseekers was rejected by the German administration (the child’s benefits are not at issue).
This judgment concerns the payment of a special tax (and its repayment by the Member State concerned) imposed upon the first registration of a motor vehicle in Romania. Initially this tax was introduced as a motor vehicle pollution tax by an order of 2008 (‘the 2008 Order’) and it was later replaced by the environmental stamp duty by an order of 2013 (‘the 2013 Order’) following the judgments in Case C-402/09Tatu (EU:C:2011:219) and Case C-263/10 Nisipeanu (EU:C:2011:466) which found such pollution tax to be contrary to EU law.
Back on 11 September 2014 (how time flies !) the Court of Justice handed down an interesting judgment in Case C-112/13 A v B and Others in a rather unusual case. It dealt with the role – and duty – of the national court when faced with national legislation which seemed incompatible with both EU law and with the national constitution.
Indeed, the Court of Justice had some really interesting to say about how national courts should ensure the primacy of EU law. It builds on the important judgment in Melki and Abdeli C‑188/10 and C‑189/10, EU:C:2010:363. The case turned on substance on the interpretation of Council Regulation (EC) no 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. I won’t deal with the substance issues, leaving them to our friends at the excellent Conflict of Laws blog. Just the primacy issue here.
The Court of Justice’s recent judgment in Joined Cases C-129/13 and C-130/13 Kamino International Logistics EU:C:2014:2041 deals with three important aspects of how national and EU law interact:
- Whether the principle of respect for the rights of the defence by the national authorities and the resulting right of every person to be heard before the adoption of any decision liable adversely to affect his interests, when those national authorities act as required by EU law, may be relied on directly by individuals before national courts.
- Whether the principle of respect for the rights of the defence and, in particular, the right of every person to be heard before the adoption of an adverse individual measure means that the rights of defence of the addressee of an adverse decision, are infringed if he has not been heard by the authorities before the adoption of the decision, even though he may express his views during a subsequent administrative objection stage.
- Whether the legal consequences of infringements by the authorities of the principle of respect for the rights of the defence are governed by national law and what circumstances may be taken into account by the national court in the context of its review. In particular, may the national court take into consideration whether the result of the decision-making process would have been the same, had the right to be heard before it been observed ?