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

• EU law omni-presence
• Some new frontiers
– Human Rights (relations with ECHR)
– Freedom Security and Justice
– Financial law
• And some old challenges…
– Case load

• 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 Agro-
Zootecnica Franchini , Mazák AG, 14 April
2011)

• 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

• 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 and
• a regulatory act which is of direct concern to them and does not entail implementing measures.

• 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.

• Preliminary references (ECJ): 17.1
• Urgent procedure:
• Direct actions
• ECJ
• CFI (now GC)
17.1
33.1
2.5

• Judgment of 9 September 2011 (BVerfG, 2 BvR
987/10)
• 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 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 .

• 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.

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 competence,
• 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.

• 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.