EU Law Blog

I think that there is still some uncertainty about the question of deciding what court will have jurisdiction over a case in the EU. So I thought I’d try to clarify this in a post. And it occurred to me that perhaps we are just so used to the idea that federal courts have jurisdiction over disputes involving federal law that it is difficult to understand why the EU would work differently.

But in fact the EU doesn’t work that way for a couple of reasons:

1. There are only 2 EU level courts, the ECJ and CFI, in contrast to the large numbers of federal district courts and federal appeals courts in the US, thus, for very practical reasons it wouldn’t make sense to say that all cases involving issues of EU law should go to the ECJ/CFI (the workload problems are bad enough already);

2. It is harder to separate out EC law and national law than it is to separate federal and state law here - and directives are one of the main reasons - a legal instrument which is enacted at the EU level and needs action within the domestic systems of the Member States is a sort of hybrid instrument we don’t have an equivalent for here.
It’s often not easy to separate out state law and federal law here either but para 1 above makes a difference here - with more resources in the federal system it doesn’t matter too much if federal courts deal with cases involving issues of state law (federal courts in the past often disapproved of the idea of people trying to “bootstrap” claims which are really state law claims into federal court, but statutes which restrict litigation under federal law now may also try to stop people from bringing claims under state law).

Anyway, to simplify the question (I think) we need to realise that what matters for the purposes of jurisdiction in the EU is not the source of the legal claims but who the parties are. Here are the general rules:

If the plaintiff is an EU institution (Commission, Council, Parliament etc) it will sue in the ECJ.

If the plaintiff is a Member State:
If the defendant is an EU institution plaintiff sues in the ECJ
If the defendant is another Member State plaintiff sues in the ECJ
If the defendant is an individual or firm plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)

If the plaintiff is an individual or firm:
If the defendant is an EU institution plaintiff sues in the CFI (provided it has standing to do so)
If the defendant is a Member State plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)
If the defendant is another individual or firm plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)

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There will be a review session on Friday May 5 from 11 am in Room 309. The room is booked through to 1pm but we don’t need to stay there until then ! The review session is optional (for you, not for me). The purpose of the session is primarily to try to clear up questions you have about the material.

As I said yesterday, I am happy to answer questions by email or in person at other times.

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Reminder: Tomorrow at 11 am in Room 352, Margot Wallstrom (ie, normal time, different room).

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This is a little off topic but here goes. We’ve discussed issues of free movement of persons in the EU. But without rules on free movement of persons it can be difficult for people to move about. I was stunned to read today that the Halle Orchestra, founded in 1858 and based in my home town (city) of Manchester, has cancelled a planned US tour because it decided that the enormous cost of obtaining visas (because of lost work days due to the need to visit the US embassy in London for personal interviews) meant that the visit was not sensible from an economic point of view. I have heard similar stories about academics deciding not to try to come to the US because it is too complicated.

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The Registrar’s office will carry out evaluations of this class tomorrow at 12.05 pm.

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The Jego Quere case illustrates (among other things) the EU’s concern for the conservation of fisheries. France has for a long time (since 1991) not been complying with EU fisheries rules (in particular in relation to ensuring that undersized hake are not sold (cf. Jego Quere, incidentally a firm established in France)) and the Commission just issued a decision imposing a fine on France in respect of its default. The ECJ ruled last year that France should pay a fine and that if it failed to bring its laws into line it would be required to pay an additional fine every 6 months. It is this second six-monthly fine that the Commission has decided must be paid. The Commission explains:

The task of the European Commission was clear: it had to assess whether or not, at the end of the first six-monthly period following the European Court of Justice (ECJ) ruling of July 2005, France had fully complied with all the obligations under this ruling. The Commission carried out a thorough and rigorous evaluation of the situation regarding the two failings and found that they had not been rectified at that stage. The result is that France will have to pay the financial penalty set by the Court

France apparently plans to challenge the decision.

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The University’s action in designating one single location for picketing seems to me to crystallise the situation so that all of our classes are affected until the strike action ends. So I will not be taking attendance while the strike persists. I am trying to arrange to be able to tape (audiotape) the classes affected and I will post an outline of what we cover in class on the blog. I will also arrange to post a link to the next set of class materials on the blog. And I’m happy to discuss questions about the material via email or in person (with individuals or groups) off-campus.

Taping classes seems to involve some distribution issues as the normal way of providing access to class tapes is via the Library. So if there is anyone who would be able and willing to produce a recording of the class in digital format that I can post online that would be helpful.

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The EU Commission maintains a web page on the Food Supplements Directive. From this page you can access the Administrative Guidance on Submissions for Safety Evaluation of Substances added for Specific Nutritional Purposes in the Manufacture of Foods published in 2004, which applies to the list under the Food supplements Directive. The Guidance isn’t very detailed. There is also a list of dossiers submitted under Art. 4(5) of the directive.

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Will the EU continue to fund the Palestinian Authority after the elections in which Hamas prevailed?

Update: the answer appears to be yes (subject to conditions).

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The EU has some complex issues with religion and multiculturalism. Now the Netherlands is considering banning the wearing of the burqa. This seems a bit surprising in light of the Member States’ expressed commitment under the Treaties to human rights and the rule of law. But it’s not the first time this sort of thing has happened. The BBC story refers to a similar ban in Belgium. And a French law banned the wearing of religious symbols in 2004.

The European Court of Human Rights decided in November 2005 in a case brought by Leyla Sahin (which is available at the Court’s web site) that Istanbul University’s ban on wearing headscarves was valid:

In democratic societies, in which several religions coexist within one and the same opulation, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected… This follows both from paragraph 2 of Article 9 and the State’s positive obligation under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention.

There’s more. (more…)

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