Relationship to prelim ref procedure

      • Over the years, main criticisms such as 1) lack of effectiveness; 2) absence of role for indiv Cs; 3) elite, unresponsive attitude of the Comm have gradually been addressed!

 

  • Relationship to prelim ref procedure

 

      • Van Gend en Loos, 1963: said that arts 258 and 267 are complementary. Indiv enforcement is in addition to enforcement by MS/Commission. Held that the 2 are not mutually exclusive! All have common aim of ensuring greater adherence to EU law. Comm does not have monopoly in enforcing EU law – rather, it is a complete system of judicial protection. – The case of Manchester Taxi
      • Cf Molkerei-Zentrale, 1968: ECJ emphasised the distinction between proceedings brought by indiv (intended to protect indiv rights in the specific case), and Commission enforcement proceedings (intended to ensure general and uniform observance of EC law) – different objects, aims and effects!
      • Hence, in Comm v UK, 2006: ECJ rejected UK’s argument that Comm infringement proceedings ought to be inadmissible on basis that national judicial proceedings were pending.
      • Also, in Comm v Germany, 1985: ECJ held that direct effect of Comm provision (indivs’ ability to enforce it before national courts) was NO defence to Comm action for failure to implement!

 

  • Art 258 TFEU: where Comm thinks MS failed to fulfil Treaty obligation, it will deliver reasoned opinion. If further non-compliance, it will bring matter before ECJ!

 

      • Lisbon’s change: ‘the Treaties’: infringement proceedings can now be brought for violations of obligations under both TEU and TFEU, except CFSP which is still beyond ECJ’s jurisdiction (reflects abolition of the ‘pillar’ structure).