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Critically evaluate the extent to which the mechanism of judicial review and the preliminary ruling procedure allow individuals unhindered access to justice within the EU legal order

Critically evaluate the extent to which the mechanism of judicial review and the preliminary ruling procedure allow individuals unhindered access to justice within the EU legal order, with reference to relevant case law and academic commentaries.

Question:

Does the system of legal remedies (arts.267 & 263 TFEU) in EU law allow individuals unhindered access to justice?

Issues of accessibility in PRP

  1. Procedure in Art.267 TFEU: Cooperative relationship between CJEU and national courts
  2. Reference-based procedure: not at whim of citizens/not an appeal system
  3. National  court  makes  decision  to  refer  –  CJEU  cannot  demand  a hearing

JR admissibility criteria

  • § Article 263(1) : Reviewable measure
  • § Article 263(2): Grounds for review
  • § Article 263(6): Time-limit for submission
  • § Article 263(2, 3, 4): Locus standi

The EU adopted a (fictitious) Directive on the Protection of Animals 2017/92. The (fictitious) Directive is concerned with the protection of the vertebrate animals – including all endangered species, animals taken from the wild, domesticated animals, and non-human primates. The Directive states the following:

–  Article 1: This principle of animal welfare is a value of the European Union (as pursuant to article 13 TFEU). Animal welfare, well-being and dignity shall be granted protection across the European Union. Henceforth, the unlawful killing and vivisection of animals is prohibited under EU law.

–  Article 5: Member States shall ensure that a scientifically satisfactory alternative method or testing strategy not entailing the use of live animals shall be utilised.

–  Article 9: Where live animals are used in scientific research, Member States must ensure that the procedures and research eliminate or reduce to the minimum any possible pain, suffering, distress or lasting harm to the animals.

–  Article 13: The capture of animals in the wild is prohibited, except where they are endangered or present a danger to the public. Any animal found, at or after capture, to be injured or in poor health shall be examined by a veterinarian or another competent person and action shall be taken to minimise the suffering of the animal

–  Article 27: Member States should lay down rules on penalties applicable to infringements of the provisions of this Directive and ensure that they are implemented. The penalties should be effective, proportionate and dissuasive.

Member States had until 20th August 2019 to bring the measure into force. Advise each of the parties below, as to their position under EU law.

a. Under Italian law, vivisection for scientific research is permitted where it is necessary for medical trials aiming to improve human health.

In light of the (fictitious) Directive, Salutem Medical Ltd (a pharmaceutical company) that is seeking advice from their in-house legal team on whether they can still conduct scientific experiments, including vivisection, on live animals in the pursuit of benefiting human health.

In other words, Salutem Medical Ltd wants to know which law (between EU and domestic Law) they should follow.

PRIMARY OF EU LAW

Caselaw

Keyprinciples

 

VanGendenLoos

Community/Union is a new legal order

 

 

CostavENEL

Supremacy of EC/EUlaw on3 grounds: independence,uniformity and effectiveness/efficacy

 

 

 

Handelsgesellschaft

        Unconditional and absolute nature of the principle

      Applies to Treaty and all the acquiscommunautaire

 

 

 

Simmenthal

        EC/EU lawprevailsover previously andsubsequently enactednationallaws

        Conflicting domestic law must be se aside and EC/EU

provision applied

 

 

 

Factortame

        Conflicting domestic legislation can be temporarily set aside

        Interim can be granted until preliminary reference rendered

DECLARATION 17
“The conference recalls that, in accordance with well settled case law of the ECJ, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of the MemberStates.”
Opinion of the Council`s Legal Service
“The fact that the principleof primacy [has not been and] will not be included in the future Treaty shall not in any way changethe existence of the principle and the existing case-law of the [ECJ]”

b. In France, the Maison de la Santé (a French governmental laboratory) is researching the value of homeopathic medicine and aims to conduct tests on live animals.

Agathe, one of the scientists on the team, has refused to perform the tests, arguing that the Maison de La Santé has not considered alternative methods, such as voluntary human trials. In a bid to stop the live animal experiment, she has started proceedings before the administrative tribunal for an injunction against her employer.

France has fully implemented the Directive.

c. Gesundheit Uni is a private higher education institution in Germany. In its Sciences Department, a team is conducting psychological experiments on dogs to determine their learned behaviour.

  • A German undercover Animals Protection Group (AGP) recorded dogs being tested with the use of electric shocks. AGP brought procedures against Gesundheit Uni for violation of article 13 of the Directive.

  • However, under the domestic implementing legislation, even if the legal proceedings against Gesundheit Uni were possibly successful, they would only be charged a small fine, which is disproportionate to the suffering experienced by the dogs.

Germany has implemented the Directive, but omitted to transpose its article 27.

d. In Slovenia, Bitja Negujejo (BN) is a charitable organisation in Ljubljana that practices its own assessment and care  of injured  wild animals. BN is run  by a  team of  volunteers. However, none of the team members is a qualified veterinarian. Zdravje Živali (ZZ) is a local veterinary practice that is taking legal action against the local council for granting BN with a license to care for injured wild animals.

Slovenia has fully implemented the Directive.

QUESTIONS:

  • Can the measure have direct effect?
    • Van gend en loos
    • Van Duyn
    • Has the implementation period expired?
    • Ratti
  • Can the measure be invoked against the other party?
      • Yes: vertical relationship/emanation of the state Foster, Marshall – direct effect
      • No: horizontal application/individual Faccini Dori, Von Colson, Marleasing – indirect effect (consistent interpretation
      • No: state liability – Francovich, Brasserie du Pecheur
  • Incidental effect - Wells

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