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he leading case cilfit v ministry of health is that a national court has no duty to refer if the law is an acte clair a clear rule or so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved 121 in kenny roland lyckeskog the court of justice held that the duty to refer existed for the swedish court of appeal the hovrätt since sweden s supreme court högsta domstol had to give permission for appeals to continue 122 the practical difficulty is that judges differ on their views of whether or not the law is clear in a significant case three rivers dc v governor of the bank of england 123 the uk house of lords felt confident that it was clear under the first banking directive that depositors did not have direct rights to sue the bank of england for alleged failure to carry out adequate prudential regulation their lordships highlighted that while some uncertainty might exist the costs of delay in making a reference outweighed the benefits from total certainty by contrast in parkingeye ltd v beavis a majority of the supreme court apparently felt able to declare that the law under unfair terms in consumer contracts directive was acte clair and decline to make a reference even though a senior law lord delivered a powerfully reasoned dissent 124 however in addition to a reluctance to make references a general scepticism has grown among senior member state judiciaries of the mode of reasoning used by the court of justice the uk supreme court in r hs2 action alliance ltd v secretary of state for transport devoted large parts of its judgment to criticism in its view an unpredictable teleological mode of reasoning which could decrease confidence in maintaining a dialogue within a plural and transnational judicial system 125 it added that it might not interpret the european communities act 1972 to abridge basic principles and understanding of constitutional functioning in effect implying that it might decline to follow unreasonable court of justice judgments on important issues similarly the german constitutional court in the outright monetary transactions case referred a question for preliminary ruling on whether the european central bank s plan to buy greek and other government bonds on secondary markets despite the treaty prohibition on buying them directly was unlawful 126 in a highly unusual move the two most senior judges dissented that the ecb s plan could be lawful while the majority closely guided the court of justice on the appropriate mode of reasoning if references are made the court of justice will give a preliminary ruling in order for the member state court to conclude the case and award a remedy the right to an effective remedy is a general principle of eu law enshrined in the charter of fundamental rights article 47 most of the time regulations and directives will set out the relevant remedies to be awarded or they will be construed from the legislation according to the practices of the member state 127 it could also be that the government is responsible for failure to properly implement a directive or regulation and must therefore pay damages in francovich v italy the italian government had failed to set up an insurance fund for employees to claim unpaid wages if their employers had gone insolvent as the insolvency protection directive required 128 francovich the former employee of a bankrupt venetian firm was therefore allowed to claim 6 million lira from the italian government in damages for his loss the court of justice held that if a directive would confer identifiable rights on individuals and there is a causal link between a member state s violation of eu and a claimant s loss damages must be paid the fact that the incompatible law is an act of parliament is no defence 129 so in factortame it was irrelevant that parliament had legislated to require a quota of british ownership of fishing vessels in primary legislation similarly in was brasserie du pêcheur v germany the german government was liable to a french beer company for damages from prohibiting its imports which did not comply with the fabled beer purity law it was not decisive that the german parliament had not acted willfully or negligently 130 it was merely necessary that there was 1 a rule intended to confer rights 2 that a breach was sufficiently serious and 3 there was a causal link between the breach and damage the court of justice advised a breach is to be regarded as sufficiently serious by weighing a range of factors such as whether it was voluntary or persistent 131 in köbler v republik österreich the court of justice added that member state liability could also flow from judges failing to adequately implement the law 132 on the other hand it is also clear that eu institutions such as the commission may be liable according to the same principles for failure to follow the law 133 the only institution whose decisions appear incapable of generating a damages claim is the court of justice itself judicial review edit v t e eu judicial review tfeu arts 263 267 deutsche post v commission 2011 c 463 10p plaumann co v commission 1963 case 25 62 unión de pequeños agricultores 2002 c 50 00 p kanatami v parliament and council 2013 c 583 11 piraiki patraiki v commission 1985 case 11 82 see eu law main articles judicial review and preliminary ruling as well as preliminary rulings on the proper interpretation of eu law an essential function of the court of justice is judicial review of the acts of the eu itself under treaty on the functioning of the european union tfeu article 263 1 the court can review the legality of any eu legislative of other act against the treaties or general principles such as those in the charter of fundamental rights of the european union this includes legislation and most other acts that have legal consequences for people for example in société anonyme cimenteries cbr cementsbedrijven nv v commission 134 the commission made a decision to withdraw an assurance to a dutch cement company that it would be immune from competition law fines for vertical agreements the cement company challenged the decision and the commission argued this was not really an act and so could not be challenged the court of justice held a challenge could be made and it was an act because it deprived the cement company of the advantages of a legal situation and exposed them to a grave financial risk 135 similarly in deutsche post v commission the commission demanded information on state aid given by germany to deutsche post within 20 days when both challenged this the commission argued that the demand for information could not be an act as there was no sanction the court of justice disagreed and held judicial review could proceed because the request produced binding legal effects since the information supplied or not could be relied upon as evidence in a final decision 136 by contrast in ibm v commission 137 the court of justice held that a letter from the commission to ibm that it would sue ibm for abusing a dominant position contrary to competition was not a reviewable act but just a preliminary statement of intent to act in any case if a reviewable act of an eu institution is not found compatible with the law under article 264 it will be declared void plaumann co v commission required that claimants must be individually and directly concerned by an eu law to request judicial review being adversely affected by rising clementine duties was not enough 138 however only a limited number of people can bring claims for judicial review under tfeu article 263 2 a member state the parliament council or commission have automatic rights to seek judicial review but under article 263 4 a natural or legal person must have a direct and individual concern about the regulatory act direct concern means that someone is affected by an eu act without the interposition of an autonomous will between the decision and its effect for instance by a national government body 139 in piraiki patraiki v commission a group of greek textile businesses who exported cotton products to france challenged a commission decision allow france to limit exports the commission argued that the exporters were not directly concerned because france might decide not to limit exports but the court of justice held this possibility was entirely theoretical 140 a challenge could be brought by contrast in municipality of differdange v commission 141 a municipality wanted to challenge the commissions decision to aid steel firms which reduced production this would probably reduce its tax collections but the court of justice held that because luxembourg had discretion and its decision to reduce capacity was not inevitable the municipality had no direct concern its complaint was with the luxembourg government instead individual concern requires that someone is affected specifically not as a member of a group in plaumann co v commission 138 the court of justice held that a clementine importer was not individually concerned when the commission refused permission to germany to stop import custom duties this kept it more expensive for mr plaumann to import clementines but it was equally expensive for everyone else this decision heavily restricted the number of people who could claim for judicial review in unión de pequeños agricultores advocate general jacobs propose a broader test of allowing anyone to claim if there was a substantial adverse effect on the claimant s interests 142 here a group of spanish olive oil producers challenged council regulation no 1638 98 which withdrew subsidies because regulations are not implemented in national law but have direct effect they argued the requirement for individual concern would deny them effective judicial protection the court of justice held that direct actions were still not allowed if this was unsatisfactory the member states would have to change the treaties 143 individual concern is not needed however under article 263 4 if an act is not legislation but just a regulatory act in inuit tapiriit kanatami v parliament and council the court of justice affirmed that a regulation does not count as a regulatory act within the treaty s meaning it is only meant for acts of lesser importance here a canadian group representing the inuit wished to challenge a regulation on seal products but were not allowed they would have to show both direct and individual concern as normal 144 thus without a treaty change eu administrative law remains one of the most restrictive in europe 145 human rights and principles edit v t e eu human rights sources tfeu arts 19 157 and 263 opinion 2 13 2014 ert ae v pliroforissis and kouvelas 1989 c 260 89 carpenter v ss for the home department 2002 c 60 00 omega gmbh v bonn 2004 c 36 02 p v s and cornwall county council 1996 c 13 94 mangold v helm 2005 c 144 04 cfreu 2000 arts 1 54 test achats asbl v conseil des ministres 2011 c 236 09 deutsches weintor eg v land rheinland pfalz 2012 c 544 10 åklagaren v fransson 2013 c 617 10 kadi v council and commission 2008 c 402 and 415 05 see eu law main articles general principles of european union law charter of fundamental rights of the european union and european convention on human rights although access to judicial review is restricted for ordinary questions of law the court of justice has gradually developed a more open approach to standing for human rights human rights have also become essential in the proper interpretation and construction of all eu law if there are two or more plausible interpretations of a rule the one which is most consistent with human rights should be chosen the treaty of lisbon 2007 made rights underpin the court of justice s competence and required the eu s accession to the european convention on human rights overseen by the external strasbourg court 146 initially reflecting its primitive economic nature the treaties made no reference to rights however in 1969 particularly after concern from germany the court of justice declared in stauder v city of ulm that fundamental human rights were enshrined in the general principles of community law this meant that mr stauder who received subsidised butter under an eu welfare scheme only by showing a coupon with his name and address was entitled to claim that this violated his dignity he was entitled not to have to go through the humiliation of proving his identity to get food while those general principles were not written down in eu law and simply declared to exist by the court it accords with a majority philosophical view that black letter rules or positive law necessarily exist for reasons that the society which made them wants these give rise to principles which inform the law s purpose 147 moreover the court of justice has clarified that its recognition of rights was inspired by member states own constitutional traditions 148 and international treaties 149 these include rights found in member state constitutions bills of rights foundational acts of parliament landmark court cases the european convention on human rights the european social charter 1961 the universal declaration of human rights 1948 or the international labour organization s conventions the eu itself must accede to the echr although in opinion 2 13 the court of justice delayed because of perceived difficulties in retaining an appropriate balance of competences 150 in deutsches weintor eg wine growers wanted to market their wine as easily digestible but the food regulators thought this would mislead consumers the court of justice applied the right to health in the charter in support of good consumer information 151 many of the most important rights were codified in the charter of fundamental rights of the european union in 2000 while the uk has opted out of direct application of the charter this has little practical relevance since the charter merely reflected pre existing principles and the court of justice uses the charter to interpret all eu law for example in test achats asbl v conseil des ministres the court of justice held that equal treatment in goods and services directive 2004 article 5 2 which purported to allow a derogation from equal treatment so that men and women could be charged different car insurance rates was unlawful 152 it contravened the principle of equality in cfreu 2000 articles 21 and 23 and had to be regarded as ineffective after a transition period by contrast in deutsches weintor eg v land rheinland pfalz wine producers claimed that a direction to stop marketing their brands as easily digestible bekömmlich by the state food regulator acting under eu law 153 contravened their right to occupational and business freedom under cfreu 2000 articles 15 and 16 151 the court of justice held that in fact the right to health for consumers in article 35 has also to be taken into account and was to be given greater weight particularly given the health effects of alcohol some rights in the cha...
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