The EU Law 1

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 The EU Law 2

Law of the European Union

Section One: The Role of CJEU - Article 267 TFEU

The European Union requires the Court of Justice of the European Union (CJEU) to aid

the national courts of the Member States in the interpretation of the EU law to facilitate its

effective application by all EU members. The Court also settles quarrels between the Member

States and various EU institutions. Article 267 TFEU introduces the “preliminary ruling

procedure,” which focuses on making the EU legal order uniform in all EU members.1 The

procedure provides final determination of the European law, and its verdict can never be

appealed, and therefore, the Court is supreme over all EU Members’ national courts. The CJEU

adopted this procedure to improve access to justice for its citizens, ensure standardisation of the

EU law in all Member States, and harmonise the law through the judiciary. In some instances,

CJEU also allows individuals or parties to take legal action against the EU institutions if it is

convinced that their rights are infringed.2 This section examines how the CJEU this ruing

procedure, as stipulated in Article 267 TFEU, to promote consistent meaning and application of

the EU regulation across all its members.

Article 267 TFEU has a significant influence on the CJEU’s jurisdiction procedure.3 The

Article defines a preliminary ruling procedure as a critical mechanism used in the development

and uniform explanation of the EU law. Therefore, CJEU’s preliminary verdicts are precedential

1
Gregor, J., Kupka, P. and Marušáková, V., THEMIS 2018.
2
Weatherill, S., 2016. Law and values in the European Union. Oxford University Press.

3
Craig, P.P. and De Búrca, G., 2015. EU Law: Text, Cases, and Materials. Oxford

University Press, USA.

and generally binding to all the member states. Without the procedure, the autonomous nations

within the European Union would have different interpretations for different legal terms.

Preliminary ruling mandates the national courts to ensure effective execution of the EU

regulations. The CJEU has neither mandate nor the power to enforce the correct application of

the EU law, thus delegating national laws or tribunals to bring any matter in question, either

relating to adoption or interpretation of the law.4

The federal judges can only get in touch directly with the Court by referencing the

preliminary ruling. National courts and CJEU have a cooperation-like relationship. CJEU’s

judges merely help the federal court judges to apply the EU law in matters relating

interpretations and validity of the EU regulations. Therefore, the procedure results in an

invaluable link between European law and the state legal schemes. Through it, CJEU manages to

control how the national courts interpret and implements the EU law uniformly.5 The procedure

also enhances the safety of persons’ subjective rights under European law. The process gives

both the natural and artificial persons (corporates) unlimited access to CJEU via the national

courts. The EU community laws are supreme over national laws, thus avoiding incompatibles of

federal legislation.6 The court revealed the independence of the EU as a source of law, which can

never be overridden by any regional or domestic legal provisions. The procedure is also a time-

unlimited instrument for indirect control of their validity. Unlike the “procedure for review of

4
Gregor, J., Kupka, P. and Marušáková, V., THEMIS 2018.
5
Foster, N., 2019. Foster on EU law. Oxford University Press, USA.

6
Costa v. ENEL (Case 6/64), 1964 E.C.R. 1125 (1964
 The EU Law 4

legality,” which requires a launch within two months of controversial measure’s publication,

preliminary ruling procedure have no time limit.

The CJEU statistics shows that old EU members refer to its preliminary ruling more

frequently than the newer EU members. For instance, the Lithuania Republic gained EU

membership in May 2004, and have since then had many cases and broad experiences in issues

concerning the EU law and their cross-border application. The increased intra-EU disputes

reported in the country is attributable to increased emigration and international business.

However, when compared to the older EU members, the Lithuanian courts are less active in

applying the preliminary rulings.7 However, Lithuanian uses preliminary rulings more than other

newer members like Cyprus, Estonia, Croatia, Malta and Slovenia. Although the Lithuanian

courts have referred to the preliminary ruling in few cases, the cases referred are of significant

importance to the republic and the entire European legal systems. For instance, the Lithuanian

Supreme Court reference to CJEU in Gazprom Case triggered the development of the anti-suit

injunction, which refers to a court-imposed prohibition for commencing or continuing litigation

in a foreign country.8 After consulting the CJEU’s preliminary ruling on anti-injunction, the

Lithuanian Supreme Court opted not to apply the Brussels I rule and implemented the national

laws on arbitral award’s recognition and enforcement.

7
Homewood, M.J., 2016. EU Law Concentrate: Law Revision and Study Guide. Oxford

University Press
8
Milinis, A. and Pranevičienė, K., 2016. Conditions and Circumstances which Lead to

Application to the Court of Justice of the European Union and Adoption of a Preliminary

Ruling. Baltic Journal of Law & Politics, 9(2), pp.144.

Reference to the CJEU by national courts helps them to give the most appropriate and

qualified verdict in cases involving EU law.9 The Court, therefore, helps in solving disputes for

inter-EU corporations and institutions. For instance, in the cases “SE v If P&C Insurance and

Gjensidige Baltic v PZU,” Lithuanian Supreme Court doubted whether to apply Rome I or Rome

II regulation and therefore, requested a preliminary ruling by the CJEU to examine the cases co-

operatively.10 The CJEU then clarified that Article 7 of Rome I was applicable to determine the

action of indemnity between the tractor unit and trailer’s insurers. However, the cases would also

consult Article 4 of Rome II, which presents applicable rules like the liability of tort, quasi-delict

and delict. Therefore, it is evident that the national courts, such as Lithuanian courts, actively

participate in the formulation of preliminary requests, which then boosts positive evaluation and

application of the EU laws.11 Parties and their attorneys raise the preliminary request initiatives,

thus promoting the popularity of the preliminary procedure. The requests also support a more

useful reference of the national courts to the CJEU.

The fundamental advantage of CJEU’s “preliminary ruling procedure” is that it is

applicable in any state case, either administrative, criminal, civil or constitutional. It is an

analytical procedure that actively bridges domestic litigation and the European arena. The CJEU

permits any EU Member State to increase preliminary queries and refer to it for an appropriate

9
Weatherill, S., 2014. Cases and materials on EU law. Oxford University Press, USA.
10
Milinis, A. and Pranevičienė, K., 2016. Conditions and Circumstances which Lead to

Application to the Court of Justice of the European Union and Adoption of a Preliminary

Ruling. Baltic Journal of Law & Politics, 9(2), pp.144.

and appropriate explanation of the EU legislation.12 Article 267 TFUE acknowledges that “CJEU

could allow other institutions to refer to preliminary ruling if they meet the criteria established in

CJEU’s jurisprudence.”13 However, the institutions must have the power to settle disputes, and

its decision must not be a mere recommendation. A national court’s decision to refer to CJEU’s

preliminary ruling must be substantiated, and instances of acte eclair or acte éclairé must be

identified clearly. However, the national court must communicate with the CJEU when in doubt

on how to apply the preliminary ruling.

The reference to CJEU preliminary ruling promotes unity among the EU Member States

since they avoid further disputes that could result in division. In 2016, the CJEU completed 7004

cases, of which 453 were references for the preliminary ruling procedure by the different EU

Member States.14 Therefore, the CJEU statistics show that preliminary ruling recorded a share of

64.3% of all the completed legal actions by the Court. The preliminary ruling procedure is

perceived as an instrument for a secure legal entity that allows decentralised application and

adoption of the Union Laws. Also, the procedure promotes further development of laws, that

would reduce conflict between the Member States. The collective (community) laws support

international cooperation and business between the Member States and ensure that each member

12
Foster, N., Blackstone’s Statutes: EU Treaties and Legislation 2018-2019 (Oxford

University Press)

13
IBID., 144.
14
CURIA – Court of Justice of the European Union Annual Report 2016 (2020). Available

at: https://curia.europa.eu/jcms/jcms/Jo2_11035/rapports-annuels (Accessed: 14 January

2020).
 The EU Law 7

interprets the EU laws appropriately.15 The CJEU, therefore, establish the compatibility of the

national legislation with the EU regulations, and in cases of any contradiction, advises the

concerned Member State on how to resolve such dispute. The CJEU can also take action against

a member state’s government for failing to comply with the EU laws. The CJUE requires the

faulty Member State to put things right failure to which it risks further cases, which may result in

fines.

Therefore, this research identifies the significance of CJEU’s preliminary ruling in

enhancing uniformity of EU law’s interpretation, adoption and validity16. The CJEU has the

sovereign power to decide a Union Law would be interpreted. Without CJEU’s preliminary

ruling, the national courts could interpret and apply the EU law differently, since different judges

may have different opinions and experiences. Therefore, the preliminary ruling enhances the

compatibility of national rules with the Union Laws, thus promoting consistent adoption of these

laws across all Member States. The research reports that approximately 65% of the cases

completed by the CJEU in 2016 were references to the preliminary ruling procedure. The study

also identifies increased reference to the CJEU by the national court. Therefore, the preliminary

ruling procedure harmonises the adoption of EU law by the Member States as it decides how a

specified rule would be interpreted and examines whether a national code is compatible with the

EU laws. The CJEU solves treaties’ disputes, which promoted international integration between

the EU Member States.

https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en
16
Woods, L. Watson, P. and Costa M., (2018). Steiner & Woods: EU Law, 13th ed. Oxford

University Press.
The EU Law 8
 The EU Law 9

Section Two: Recommendations on Denmark Proposed Imports Regulations

The existence of freedom to move goods within the EU single market with no restrictions

is aimed at assisting economic growth and competitiveness among EU members. The removal of

barriers on imports and exports among member states is meant to create free trade and promote

employment and prosperity. Member states are governed by legislation, most of which are based

on the TFEU17. These legislations ensure that trader within the EU conforms to the highest levels

of safety, health, and environmental requirements. This study discusses the applicability of

proposals on the imposition of restrictions on some imports, which Denmark considers to have

negative general or non-economic repercussions to its citizens. According to article 36 TFEU, a

member of the EU can impose quantitative restrictions on the importation of a good, which they

consider to have a direct negative effect on the public.

The European Union has established an internal single market based on a central policy

to make way for open borders amongst members where goods, services, persons, and capital all

enjoy free movement. To make sure that the guidelines on how the single market will operate

and how the free movement will be ensured, the EU came up with the TFEU18. The decisions of

the Court of Justice have been instrumental in the implementation of the free movement of goods

and the establishment and implementation of the single market. However, the EU member states

do not fully share culture, mindsets, and regulations, and this has offered numerous handles and

challenges in the implementation of the unregulated movement of goods and a single market.

17
Craig, P.P. and De Búrca, G., 2017. EU Law: Text, Cases, and Materials. Oxford

University Press, USA.

18
Foster, N., 2019. Foster on EU law. Oxford University Press, US
 The EU Law 10

Denmark has a right to impose a quantitative restriction on the importation of British

beer, which is relatively cheaper compared to Danish beer. The basis for this restriction would be

that the price of the beer is too affordable, and this has resulted in increased consumption of beer

amongst underage persons. The current proposal is to have the importation of British beer

limited by 50% or apply a higher tax to British beer as compared to Danish beer. On the

imposition of a higher tax, Denmark will violate the EU’s TFEU legislation. According to article

28 of the TFEU19, any tax charged on goods will be charged indiscriminately to imported goods

in the same measure is applied on national products. Arguing from case 90/79 Commission v

France20, the Court of Justice concluded that charging an additional tax to an imported good

would lead to an increase in the price of the imported good, thus giving a similar national good

undue advantage in competition. Therefore, if a tax was to be added on an imported good, a

similar national good also will have to be taxed similarly. This regulation proves the option of

increasing tax charges not to be a viable option.

The most applicable proposal would be to limit the importation of British beer. Article 36

TFEU has mandated the member states to apply measures that have an equivalent effect to

quantitative restrictions if these measures are justified. In its jurisprudence (Cassis de Dijon), the

Court of Justice determined that states have the right to make exceptions to the prohibition of

measures that have an equivalent effect in the case of protection of public health. In the current
19
Law GF. Regulation (EC), No. 178/2002 of the European Parliament and of the Council of 28

January 2002, laying down the general principles and requirements of food law, establishing the

European Food Safety Authority, and laying down procedures in matters of food safety. OJ L.

2002;31(1.2).
20
Weatherill, S., 2016. Law and values in the European Union. Oxford University Press.
 The EU Law 11

situation, Denmark only has to prove that the cheap British beer in the Danish market hurts

public morality. Under the regulation (EC) No 764/200821 There is a provision for the

commission to supervise such an exception, and invoking this supervision would be the best

option for Denmark to control the cheap UK imported beer.

Concerning the uncooked fish that has been identified to contain food poisoning content,

any proposal Denmark has to consider must put into consideration the general food law

regulation (EC) No 178/2002 as well as Regulation (EC) No 852/ 200422 on the hygiene of

foodstuffs and food businesses. The general food law regulation was established not only to

promote food safety standards at the union level but also national levels. The rule gives

guidelines on the principles, requirements, and procedures to be applied in matters relating to

food safety both at the union level and national level. Restricting the sale of uncooked fish to

specific fish ships with a temporary ban being imposed from May to September may seem like

the most applicable cause of action to solve the food poisoning scenario. However, of the two

proposals, this proposal is more in contradiction with EU regulations as it results in quantitative

restrictions, which are prohibited as per the Cassis de Dijon. Following the Dassonville

judgement, the Cassis de Dijon compelled all member states to ensure that no direct or indirect

restrictions are applied to goods that are in circulation in other member states.23 Limiting the sale

21
Smith R. Regulation (EC) No 764/2008 of the European Parliament and of the Council. Core

EU Legislation; Macmillan Education UK: London, UK. 2015:183-6.

23
Weatherill, S., 2016. Law and values in the European Union. Oxford University Press.
 The EU Law 12

of uncooked fish to a few fish outlets will result in favouritism to local traders and discrimination

against the exporters of fish to Denmark.

In the current case, the imposition of a health examination for uncooked fish imports

upon arrival is the best option. In protecting her citizens against a health risk, Denmark has the

result to impose any restrictions to conform to fiscal supervision or the protection of public

health. According to the EU regulations, “all fishery products intended for human consumption

are required to have attained the necessary food safety standards as outlined in the general food

law regulation (EC) No 178/2002.” The regulation has put in place the European Food Safety

Authority (EFSA)24 the agency which has been given the responsibility to offer scientific advice

and support to member states before making significant decisions on food based on food safety.

If emergencies and crises have emerged concerning food security, the EFSA is mandated to

respond after the member state has invoked the Rapid Alert System for Food and Feed (RASFF).

For Denmark to ensure that the public health is protected from the alleged food poisoning from

uncooked fish and remain in compliance with the EU laws on the free movement of goods,

involving EFSA before making any decisions on imposing restrictions will ensure that Denmark

will not be held in contempt of EU legislation. As provided for in articles 114 and 117 TFEU, a

member state must first notify the commission of any exception measures equivalent to

quantitative restrictions it plans to adopt.

24
Law GF. Regulation (EC), No. 178/2002 of the European Parliament and of the Council of 28

January 2002, laying down the general principles and requirements of food law, establishing the

European Food Safety Authority, and laying down procedures in matters of food safety. OJ L.

2002;31(1.2).
 The EU Law 13

If Denmark has followed the above procedure in addressing the food poisoning issue

arising from the uncooked fish imports, and the union is slow to resolve the issue or give

recommendations on what action to be taken, Denmark is free to impose restrictions in term of

horizontal legislation. The legislation will ensure that it is a general obligation for economic

operators of the said commodity (uncooked fish) to bring into the country only products they are

sure it is safe for consumption. The introduction of a mandatory inspection at this time will be

undisputed to prove that only the safe fish hits the market and interested marketers at this point

will have no choice but to pay the inspection fee for them to be allowed to export uncooked fish

to Denmark.

Therefore, according to article 36 TFEU, a member of the EU can impose quantitative

restrictions on the importation of a good, which they consider to have a direct negative effect on

the public. Before imposing any restrictions on imports as per the current proposals, Denmark

should put into consideration the EU regulations regarding how to invoke prohibitions from the

restriction on a measure with equivalent effect. It should ensure that any decision made will not

be in contravention with the EU regulations provisions on the free movement of goods across

member states

According to the EU General Food Law and hygiene legislation, it is the duty of food

manufacturers, caterers, and other food-related businesses to ensure that they provide safe foods

and implement procedures to prevent unsafe foods. The legislation further holds them

responsible for tracing their food a step back and a step forward as well as recall and withdraw

any food that has been deemed unsafe for human consumption. Additionally, they are obliged to

cooperate with competent authorities to ensure that their foods have been cleared and certified fit
 The EU Law 14

and safe for consumption. Denmark, therefore, is justified to apply restrictions to the sale of

uncooked fish and put all traders within the business to task in ensuring that their product is free

of contamination. The traders should also be ready to bear the cost of inspection as the product

which they are offering to the market is the source of food poisoning.
 The EU Law 15

References

Costa v. ENEL (Case 6/64), 1964 E.C.R. 1125 (1964).

Court of Justice of the European Union (CJEU) | European Union (2019). Available at:

https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en

(Accessed: 14 January 2020).

Craig, P.P. and De Búrca, G., 2017. EU Law: Text, Cases, and Materials. Oxford University

Press, USA.

CURIA – Court of Justice of the European Union Annual Report 2016 (2020). Available at:

https://curia.europa.eu/jcms/jcms/Jo2_11035/rapports-annuels (Accessed: 14 January

2020).

Foster, N., 2019. Foster on EU law. Oxford University Press, USA.

Foster, N., Blackstone’s Statutes: EU Treaties and Legislation 2018-2019 (Oxford University

Press)

Gregor, J., Kupka, P. and Marušáková, V., THEMIS, 2018. [Online].

http://www.ejtn.eu/PageFiles/17294/WR%20-%20TH-2018-3%20-%20CZ.pdf

Homewood, M.J., 2016. EU Law Concentrate: Law Revision and Study Guide. Oxford

University Press. [Online]. DOI: 10.1093/he/9780198759171.001.0001

Law GF. Regulation (EC), No. 178/2002 of the European Parliament and of the Council of 28

January 2002, laying down the general principles and requirements of food law,
 The EU Law 16

establishing the European Food Safety Authority, and laying down procedures in matters

of food safety. OJ L. 2002;31(1.2).

Milinis, A. and Pranevičienė, K., 2016. Conditions and Circumstances which Lead to

Application to the Court of Justice of the European Union and Adoption of a Preliminary

Ruling. Baltic Journal of Law & Politics, 9(2), pp.130-149.

https://www.degruyter.com/downloadpdf/j/bjlp.2016.9.issue-2/bjlp-2016-0015/bjlp-

2016-0015.pdf

Smith R. Regulation (EC) No 764/2008 of the European Parliament and the Council. Core EU

Legislation; Macmillan Education UK: London, UK. 2015:183-6.

Weatherill, S., 2014. Cases and materials on EU law. Oxford University Press, USA. [Online].

DOI:10.1093/he/9780198748809.003.0007

Weatherill, S., 2016. Law and values in the European Union. Oxford University Press.

Woods, L. Watson, P. and Costa M., (2018). Steiner & Woods: EU Law, 13th ed. Oxford

University Press.