EU LAW AND INSTITUTIONS FINAL EXAM QUESTIONS:
Part I. Short questions:
1. Explain the difference between direct effect and direct applicability?
Direct applicability means that rules of EU law which are directly applicable (Treaties,
Regulations, International agreements concluded between EU and third countries) must
be completely and uniformly applied in all Member States while they are in force. It is
related to the acts of EU law from the moment of enactment enter the legal systems/ law
of Member States (from the moment it is enacted it is in part of national law) i.e.
Regulations – from the moment Regulation is adopted it is directly applicable).
On the other side, provisions of EU law which have direct effect (clear, precise,
unconditional and confer rights on individuals) give rise to rights which individuals can
enforce in their national courts. (Possibility to enforce direct right from EU law in
national courts)The connection between the two is that some directly applicable
regulations can have direct effect, i.e. those that create rights
2. Highlight the steps of the infringement procedure under art. 258 TFEU
(action against MS) and their main characteristics?
1) The informal and Administrative stage
The commission must have reached a conclusion that the member state is probably in
breach of an obligation before it can commence an action before the Court.
2) Letters of Formal Notice
Issued by the Commission and simply seek for a response from the member state and do
not automatically lead to either of the next possible stages – the reasoned opinion or
litigation stage.
3) The Reasoned Opinion
Following the reply from the member state to the formal notice, or after the time given by
the Commission for an answer, if no reply has been received, the Commission can then
deliver a reasoned opinion that records the reasons for the failure of the member state.
4) The Judicial Stage
The final stage of the procedure in action before the Court and its judgment, which is
merely declaratory. Small number of cases actually reach final judgment, because a
number are withdrawn beforehand, due mainly to member state compliance.
5) Defenses Raised by the Member States
The member states have raised various defenses, often acceptable in international law,
but without success in the EU legal order, to justify their non-compliance with
obligations.
6) Suspensory orders and interim measures
The Court of Justice may order a contested act to be suspended, since the length of the
time to get to a judgment might be too long, during which a member state’s breach can
cause considerable economic hardship and damage to individuals affected by it.
7) The Application and Effect of Judgments
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Other international tribunals are unable to enforce their judgments against miscreant
member states. The best that can really be achieved is the issue and discussion of a
report on the failure or breach, whilst waiting for political pressure to bear on the state
concerned.
3. Which are the EU institutions which acts can be reviewed under Art. 263
TFEU (action to annul acts of the Union)?
The Court of Justice of the EU shall review the legality of legislative acts, of act of the
Council, of the Commission and of the European Central Bank, other than
recommendations and opinions, and of acts of the European Parliament and of the
European Council intended to produce legal effects vis-à-vis third parties. It shall also
review the legality of acts of bodies, offices or agencies of the Union intended to produce
legal effects vis-à-vis third parties
4. Which are the types of applicants who may initiate an action to annul EU
acts?
There are three categories of applicants: privileged, semi-privileged and non-privileged.
The privileged applicants are named by Art 263 TFEU as the Member States, the Council
and the Commission, and following the Treaty of Nice, the European Parliament, which
have right to attack any act.
The semi-privileged applicant is a category first established in case law for the European
Parliament by the Court of Justice, but extended to the European Central Bank. The
Treaty of Amsterdam added the Court of Auditors, which have rights to challenge acts of
the Council and Commission but only for the purpose of protecting their prerogatives.
Treaty of Lisbon added the Committee of Regions.
All other persons are non-privileged applicants, who must satisfy certain conditions
before their right of access to the General Court or Court of Justice will be recognized
5. Is the plea of illegality under art. 277 TFEU is an independent action? Which
EU acts could be challenged under its?
The Action of the plea of illegality under Art 277 TFEU provides a right to plead the
illegality of a Community regulation in different circumstances from the direct challenge
of Art 263. This article is not an independent or direct cause of action to the Court. The
Court of Justice held that art 277 was only available in proceedings already brought
before the Court under some other action, and only as an incidental action.
Article 277 refers to regulations only, which can be challenged only if they form the legal
basis of the subject matter of the direct action. Article also does not envisage the
challenge of decisions or other forms of binding act. However in case 92/78 Simmental v
Commission, a decision was challenged that was based generally on prior regulations
and notices. The regulations could not be challenged directly under Art 263 because of
restrictive locus standi requirements, but could be challenged indirectly via Art 277. The
court held that it was not the form of the act that is important but the substance.
Therefore, other acts that were normative in effect should be regarded as a regulation or
the purposes of Art 277 and can be challenged under it, thus applying to notices and
decisions that, in substance have the effect of general and normative acts.
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Part II Hypothetical case
There is an EU directive which requires MS to adopt national legislation that
guarantees redundancy payment for workers. MS X did not implement this directive
within the set timeframe. Company Y in MS X goes bankrupt after the due date for
implementation. As Company Y was not obliged to make payments, no redundancy
payment to workers is possible.
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What remedy is available to the workers?
What are the elements of the breach which the claimants need to establish?
As a matter of fact Company Y went bankrupt because EU adopted a legislative act to
bring into effect a UN Resolution which imposes embargo on exports to non-EU state
Z. This led to the bankruptcy of Company Y, which is the major exporter to the nonEU state Z.
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Can Company Y seek remedy and what kind of remedy is that?
What requirements does it need to satisfy to be successful?
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