EU Procedural Law (Oxford European Union Law Library) 2nd Edition Koen Lenaerts Available Full Chapters
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OXFORD EU LAW LIBRARY
General Editors:
ROBERT SCHÜTZE
Professor of European and Global Law, Durham Law School and
Co-Director, Global Policy Institute, Durham Law School
PIET EECKHOUT
Professor of EU Law, University College London
and Academic Director of the European Institute
EU Procedural Law
OX F O R D E U L AW L I B R A RY
KO E N L E NA E RT S
KAT H L E E N G U T M A N
JA N E K T OM A S Z N OWA K
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Koen Lenaerts, Kathleen Gutman, and Janek Tomasz Nowak 2023
The moral rights of the authors have been asserted
First Edition published in 2014
Second Edition published in 2023
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v3.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm)
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2023932454
ISBN 978–0–19–883308–6
DOI: 10.1093/law/9780198833086.001.0001
Printed and bound by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Preface
This book explains how to enforce Union law in court. It sets out the remedies available
to enforce Union law rights and the mechanisms affording judicial protection against
unlawful action on the part of Union institutions, bodies, offices, and agencies. It is
directly oriented towards legal practice. Accordingly, competition law, State aid, and
anti-dumping law are dealt with in separate sections wherever it was felt appropriate to
provide guidance as to how the available remedies work concretely in those fields.
Considerable attention is given to the central role played by the national courts in
the European Union legal order, both in deciding cases alone and in dialogue with the
Court of Justice through the preliminary ruling procedure. Additionally, the various
actions which can be brought before the Court of Justice and the General Court are
analysed.
This book reflects the state of the law on 1 May 2023. Two remarks should be made
in that respect.
First, the Court of Justice has recently submitted a request to amend the Treaties,
with a view to establishing the preliminary ruling jurisdiction of the General Court in
specific areas and to extending the scope of the preliminary admission mechanism for
appeals brought against decisions of the General Court. As this book takes account of
such developments, we have decided to proceed with its publication without waiting
for the formal adoption of the relevant rules on these matters.
Second, since 2014, the Court of Justice of the European Union has used a citation
method for its case-law based on the ECLI (European Case-Law Identifier). This book
relies on that method in referring to such case-law in the Table of Cases. Nevertheless,
this book employs an abbreviated citation method in the chapter footnotes to save
space and enhance readability.
Finally, all views expressed in this book are our own.
Koen Lenaerts
Kathleen Gutman
Janek Tomasz Nowak
Summary Contents
Contents ix
Table of Cases xix
List of Abbreviations cxli
1. General Introduction 1
PA RT I : T H E J U D IC IA L O R G A N I Z AT IO N O F
T H E E U R O P E A N U N IO N
2. The Union Judicial System 13
3. Cooperation between National Courts and the Court of Justice:
The Reference for a Preliminary Ruling 49
4. Union Law and National Procedures and Remedies 117
PA RT I I : E N F O R C E M E N T O F U N IO N L AW
5. The Action for Infringement of Union Law by a Member State 175
6. Preliminary Rulings on the Interpretation of Union Law 235
PA RT I I I : P R O T E C T IO N AG A I N ST U N IO N AC T S
7. The Action for Annulment 275
8. The Action for Failure to Act 411
9. The Objection of Illegality 433
10. Preliminary Rulings on the Validity of Union Acts 447
11. The Action for Damages 473
12. Application for an Opinion on the Compatibility with the Treaties of
an International Agreement to Be Concluded by the Union 521
PA RT I V: SP E C IA L F O R M S O F P R O C E D U R E
13. Proceedings for Interim Measures Before the Union Courts 535
14. Proceedings for Authorization to Serve a Garnishee Order on the Union 565
15. Jurisdiction of the Union Courts to Give Judgment pursuant to an
Arbitration Clause or a Special Agreement 569
viii Summary Contents
16. Proceedings Brought by Officials and Other Servants of the Union
(Staff Cases) 589
17. Jurisdiction of the Union Courts over Disputes Relating to
Intellectual Property Rights 615
18. Unlimited Jurisdiction of the Union Courts in Respect of Actions
Relating to Sanctions 633
19. Appeals 643
20. The Review Procedure 671
21. Jurisdiction of the Court of Justice under Conventions Concluded
by the Member States 679
PA RT V: P R O C E DU R E B E F O R E T H E U N IO N C O U RT S
22. Start of the Procedure 691
23. Incidental Elements of the Procedure 733
24. Main Elements of the Procedure 769
25. Conclusion of the Procedure 805
Index 829
Contents
1. General Introduction
I. EU Procedural Law 1.01
II. The System of Judicial Protection in Context 1.02
A. The complete and coherent system of judicial protection 1.02
B. Union based on the rule of law 1.03
C. Role of the national courts 1.04
D. Two-fold task of the Union Courts 1.05
III. Challenges to the System of Judicial Protection 1.06
A. The former Treaty framework 1.07
B. The present Treaty framework post-Lisbon 1.08
IV. Structure of the Book 1.09
V. Texts Governing the Procedure before the Union Courts 1.10
PA RT I : T H E J U D IC IA L O R G A N I Z AT IO N
O F T H E E U R O P E A N U N IO N
2. The Union Judicial System
I. The National Courts 2.01
A. General 2.01
B. Primary role 2.02
C. Essential requirements which national courts must fulfil 2.03
II. The Court of Justice of the European Union 2.04
III. The Court of Justice 2.05
A. Composition 2.05
B. Internal organization 2.11
C. Basic functions 2.22
IV. The General Court 2.24
A. Composition 2.24
B. Internal organization 2.30
C. Basic function 2.36
V. Specialized Courts 2.38
A. General overview 2.38
B. The European Union Civil Service Tribunal 2.39
VI. Allocation of Jurisdiction among the Union Courts 2.40
A. Historical evolution 2.40
B. The present allocation of jurisdiction 2.50
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x Contents
3. Cooperation between National Courts and the Court of Justice:
The Reference for a Preliminary Ruling
I. General Overview 3.01
A. Introduction 3.01
B. Objectives of the preliminary ruling procedure 3.02
C. Sole power of the Court of Justice to declare a Union act invalid 3.03
D. Topics to be discussed 3.04
II. The Initiative for Requesting a Preliminary Ruling 3.05
A. What is a ‘court or tribunal of a Member State’? 3.05
B. Types of proceedings in which a preliminary ruling may be requested 3.13
C. Power to request a preliminary ruling 3.16
D. Content of a request for a preliminary ruling 3.19
E. Timing of a request for a preliminary ruling 3.24
F. Annulment of a request for a preliminary ruling 3.26
III. Determination of the Relevance of the Request for a Preliminary Ruling 3.28
A. Task of the national court 3.28
B. The limits set by Union law 3.31
IV. The Duty to Request a Preliminary Ruling 3.39
A. General 3.39
B. What national courts and tribunals are involved? 3.40
C. Decisions against which there is no judicial remedy under national law 3.44
D. Limits placed on the duty to request a preliminary ruling 3.46
E. Enforcement of the obligation to request a preliminary ruling 3.52
F. Obligation to request a preliminary ruling praeter legem 3.56
V. Requests for a Preliminary Ruling in the Context of Composite
Administrative Procedures 3.59
4. Union Law and National Procedures and Remedies
I. General Overview 4.01
A. Introduction 4.01
B. Importance of national procedural rules and remedies 4.02
C. Europeanization and `national procedural autonomy’ 4.03
D. Topics to be discussed 4.04
II. The Union Law Framework Governing National Procedures
and Remedies 4.05
A. The principles of equivalence, effectiveness, and sincere cooperation
sensu stricto 4.06
B. The rule of law and Art. 19(1) TEU 4.10
C. The principle of effective judicial protection and Art. 47 of the Charter 4.11
D. Full effectiveness and practical effect of Union law 4.12
E. Union legislation 4.13
F. Relationship between different expressions of Art. 4(3) TEU 4.14
III. The Obligation to Provide Effective Remedies 4.15
A. General overview 4.15
B. Constraints upon the freedom of the Member States to provide remedies 4.16
C. Union remedies 4.17
IV. Requirements Imposed upon National Procedural Rules 4.22
A. Before going to court 4.22
B. Access to court 4.23
C. Conduct of proceedings 4.31
Contents xi
D. End of proceedings 4.48
E. After proceedings have ended 4.50
V. Some Fields of Application 4.53
A. Recovery of unlawful charges 4.54
B. Recovery of unlawful State aid 4.63
C. Claims based on a directive not implemented in time 4.64
D. Damages action against a Member State for breach of Union law 4.65
E. Damages actions against private parties for breach of Union
(competition) law 4.72
F. Legal protection in proceedings for interim relief 4.75
PA RT I I : E N F O R C E M E N T O F U N IO N L AW
5. The Action for Infringement of Union Law by a Member State
I. Subject-Matter 5.01
A. General overview 5.01
B. Failure of a Member State to fulfil an obligation under the Treaties 5.05
C. Relationship with special legal procedures to obtain a declaration that
a Member State has failed to fulfil its obligations under Union law 5.22
II. Identity of the Parties 5.32
A. Applicants 5.32
B. Defendants 5.38
C. Intervening parties 5.42
D. Brexit 5.43
III. Special Characteristics 5.44
A. The pre-litigation stage of the procedure 5.44
B. The stage of the procedure before the Court of Justice 5.55
IV. Consequences 5.75
A. Result of the action 5.75
B. Legal force of the judgment declaring that a Member State has failed
to fulfil its obligations 5.76
C. Sanctions for failure to comply with the judgment 5.81
D. Sanctions under Art. 260(3) TFEU 5.86
E. Enforcement of the Court’s judgment imposing pecuniary sanctions 5.88
F. New failure to comply with the judgment 5.89
6. Preliminary Rulings on the Interpretation of Union Law
I. Subject-Matter 6.01
A. General overview 6.01
B. Rules of which an interpretation can be sought 6.03
II. Special Characteristics 6.19
A. Content of a preliminary ruling on interpretation 6.19
B. Limits placed on the jurisdiction of the Court of Justice 6.21
C. Reference back to the national court 6.30
D. Jurisdiction of the national court 6.31
III. Consequences 6.32
A. As regards the national court deciding the case at issue in the
main proceedings 6.32
B. As regards national courts generally 6.35
C. Temporal effects 6.38
xii Contents
PA RT I I I : P R O T E C T IO N AG A I N ST U N IO N AC T S
7. The Action for Annulment
I. Subject-Matter 7.01
A. General overview 7.01
B. The reviewable act 7.05
C. The reviewable act: some fields of application 7.26
II. Identity of the Parties 7.70
A. Defendants 7.70
B. Applicants 7.77
III. Special Characteristics 7.146
A. Other admissibility requirements 7.146
B. Grounds for annulment 7.161
C. Conduct during the administrative procedure and admissibility of
pleas in judicial proceedings 7.195
D. Standard of review in competition cases 7.199
IV. Consequences 7.216
A. Result of an application for annulment 7.216
B. Authority of the declaration of nullity 7.220
8. The Action for Failure to Act
I. Subject-Matter 8.01
A. General overview 8.01
B. Subject-matter of the action for failure to act 8.04
C. Relationship between the actions for failure to act and for annulment 8.09
II. Identity of the Parties 8.11
A. Applicants 8.11
B. Defendants 8.15
III. Special Characteristics 8.17
A. Pre-litigation procedure 8.17
B. Procedure before the Union Courts 8.23
IV. Consequences 8.26
9. The Objection of Illegality
I. Subject-Matter 9.01
A. General overview 9.01
B. Acts against which an objection of illegality may be raised 9.05
II. Identity of the Parties 9.10
A. Natural and legal persons 9.11
B. Member States and Union institutions 9.12
C. Union bodies, offices, and agencies 9.13
D. Objection raised by the parties and exceptionally by the Union Courts 9.14
III. Special Characteristics 9.15
A. Special requirements for admissibility 9.15
B. Actions in which an objection of illegality may be raised 9.17
C. Pleas in law 9.19
IV. Consequences 9.20
10. Preliminary Rulings on the Validity of Union Acts
I. Subject-Matter 10.01
A. General overview 10.01
B. Acts of which the legality can be reviewed 10.03
Contents xiii
II. Special Characteristics 10.13
A. Review of legality of Union acts reserved to the Court of Justice
under Foto-Frost 10.13
B. Differences compared with an action for annulment 10.14
C. Grounds on which validity may be contested 10.15
D. Assessment of validity normally based on the situation existing
when Union act was adopted 10.16
E. Finding of facts necessary to assess the legality of a given Union act 10.17
III. Consequences 10.18
A. Ruling of the Court of Justice 10.18
B. Definitive effect of a declaration of invalidity 10.19
C. Consequences of the declaration of invalidity in the national
legal order 10.20
D. Declaration of invalidity comparable to declaration of nullity 10.21
E. Temporal effects 10.22
F. Exceptional limitation of temporal effects 10.23
11. The Action for Damages
I. Subject-Matter 11.01
A. General overview 11.01
B. Notion of Union non-contractual liability 11.06
C. Role in the system of judicial protection 11.12
II. Identity of the Parties 11.17
A. Applicants 11.17
B. Defendants 11.22
III. Special Characteristics 11.35
A. General overview 11.35
B. Substantive requirements 11.38
C. Limitation period 11.62
IV. Consequences 11.71
A. Judgment holding the Union liable 11.71
B. Judgment dismissing the action for damages 11.73
12. Application for an Opinion on the Compatibility with the Treaties
of an International Agreement to Be Concluded by the Union
I. Subject-Matter 12.01
A. General overview 12.01
B. The expression ‘agreement envisaged’ 12.06
II. Identity of the Parties 12.09
A. Applicants 12.09
B. No obligation 12.10
III. Special Characteristics 12.11
A. Extent of the jurisdiction to give opinions 12.11
B. The request for an opinion 12.14
C. Procedure before the Court 12.17
IV. Consequences 12.19
A. Adverse opinion 12.19
B. Favourable opinion 12.20
C. Declaratory opinion 12.21
xiv Contents
PA RT I V: SP E C IA L F O R M S O F P R O C E D U R E
13. Proceedings for Interim Measures Before the Union Courts
I. Subject-Matter 13.01
A. Objective 13.01
B. Types of interim measures 13.02
C. The ancillary nature of proceedings for interim measures 13.05
D. The provisional nature of interim measures 13.12
II. Identity of the Parties 13.15
A. Applicants 13.15
B. Defendants 13.18
III. Special Characteristics 13.21
A. Competent Judge 13.21
B. Procedure before the Union Courts 13.22
C. Admissibility Requirements 13.23
D. Substantive requirements 13.28
IV. Consequences 13.39
A. Provisional nature 13.39
B. Compliance 13.40
C. Costs 13.41
D. Appeal 13.42
14. Proceedings for Authorization to Serve a Garnishee Order
on the Union
I. Subject-Matter 14.01
A. Principle and purpose 14.01
B. Competent Union Court 14.02
II. Identity of the Parties 14.03
A. Applicants 14.03
B. Defendants 14.04
III. Special Characteristics 14.05
A. Automatic immunity 14.05
B. Limited jurisdiction 14.06
C. Applications 14.07
15. Jurisdiction of the Union Courts to Give Judgment pursuant to an
Arbitration Clause or a Special Agreement
I. Art. 272 TFEU 15.01
A. Subject-matter 15.01
B. Identity of the parties 15.14
C. Special characteristics 15.16
D. Consequences 15.22
II. Art. 273 TFEU 15.23
A. Subject-matter 15.23
B. Identity of the parties 15.26
C. Special characteristics 15.30
D. Consequences 15.33
16. Proceedings Brought by Officials and Other Servants of the
Union (Staff Cases)
I. Subject-Matter 16.01
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