As well as counselling clients and helping them to meet the challenges of classic litigation (in competition or trade law cases for example) before the European Courts in Luxembourg; FLINN is also pleased to be able to offer specific know-how about two legal avenues that can determine the outcome of a dispute about the application of EU law at the national level, namely complaints and infringement proceedings against a Member State; and preliminary rulings before the Court of Justice of the European Union.
Filing a Complaint with the European Commission
It is always possible to file a complaint with the competent services of the European Commission to safeguard the rights of an individual (whether a natural or legal person).
The complaint is a valuable tool for informing the Commission’s services about infringements of EU law committed by a Member State (for example discriminatory or restrictive regulation, or regulation that does not comply with the requirements of a Directive). The Commission has a discretion in such matters, but it can decide to initiate infringement proceedings against the Member State concerned. The procedure involves an initial phase of increasingly close dialogue between the Member State and the Commission’s services. Then, if the Member State concerned refuses to remedy the infringement, a second contentious phase before the Court of Justice of the European Union (CJEU).
FLINN can assist you (whether individually, your company, your trade association) to raise such matters in the most effective manner, by:
- Analyzing whether the facts indicate that there has been a failure of national implementation that could form the basis for a complaint;
- Drafting the complaint on the basis of a justifying EU law argument, and acting as your representative for submission to the Secretariat General of the European Commission;
- Following up the progress of the procedure with the European Commission services and, eventually with the European Ombudsman
Our Brussels-based team is used to working alongside national Counsel from other EU Member States in this context, whilst ensuring strict respect for each other’s roles and for the relationship between lawyer and client.
Questions referred to the CJEU for a Preliminary Ruling
The Treaty on the Functioning of the European Union (TFEU) imposes an obligation on courts of last instance (from whom there is no appeal within the national judicial system) to refer questions to the CJEU for a preliminary ruling on the interpretation or validity of a rule of Union law.
The settled case law of the CJEU, beginning with the October 1982 judgment in Cilfit (Case 283/81), shows that a court or tribunal against whose decisions there is no judicial remedy under national law, is obliged, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the CJEU, unless it has been established that the question raised is irrelevant or that the provision of EU law concerned has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.
The CJEU recently confirmed the fundamental importance of the obligation to make such a reference to the uniform application of EU law, when it condemned the French Conseil d’Etat for failing to comply with the obligation in the Commission v France case decided in October 2018 (Case C 416/17).
Lawyers play an essential role from the outset of a reference for a preliminary ruling and then in the proceedings before the CJEU. After the Court of Justice has given its ruling, their role continues before the national court. If you would like to make your voice heard in the course of such an important procedure, FLINN is at your disposal to:
- Diagnose the need for interpretation or the assessment of the validity of Union law where your interest in the case justifies doing so;
- Develop the relevant arguments regarding the need for the Court of Justice’s guidance on applicable EU law;
- Drafting suggestions for what the preliminary question(s) could be;
- Drafting and submitting written observations to the CJEU proposing an answer to the questions referred for a preliminary ruling;
- Drafting of written pleadings and representation at the hearing where appropriate;
- Ensuring that the national court, seized of the main dispute, understands your point of view on the answers given by the CJEU and their application to the particular case in hand.
Again, our Brussels-based team is accustomed to complementing the work of national Counsel in this context, whilst ensuring strict respect for each other’s roles and for the lawyer-client relationship.
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