EUR-Charts

Suggested solution:

a) Under Art. 263 TFEU, the German Government is a privileged applicant. Within the prescribed time period of two months, it can challenge any act adopted by an EU institution, body, office or agency that is intended to have legal effects vis-à-vis third parties. A directive is such a measure. As for the annulment grounds, it is likely that Germany would rely on a lack of competence or on an infringement of the principle of subsidiarity under Art. 5 TEU (infringement of EU law).

[Relevant Charts: Chapter 12, in particular Charts 12/5-12/8 and 12/11, further Charts 4/1 and 4/3]

b) The trade association is a non-privileged applicant. As such, it can only challenge an act addressed to it (which is not the case here), an act which is of direct and individual concern to it or a regulatory act which is of direct concern to it and does not entail implementing measures. Again, the term “regulatory act” includes all acts of general application apart from legislative acts within the meaning of Art. 289(3) TFEU (see question 4). Here, we do not know about the nature, legislative or non-legislative, of the Directive, of the Directive.

“Direct concern” means that the measure directly affects the legal position of the applicant and that it leaves no discretion to its addressees (Regione Siciliana).

“Individual concern” means that the applicant must be singled out by the measure as if he, she or it were addressed by it (Plaumann). In certain areas, this condition is relatively easily met (e.g. competition law, including state aid, and anti-dumping law). Outside these areas, positive examples in the Court’s case law are rare (e.g. Codorniu, Vischim).

With respect to the specific situation of interest groups, it should be added that standing requirements are generally as restrictive as for claimants acting individually. Sometimes, however, trade associations and other groups get access to the Court by virtue of express procedural rights in the relevant EU legislation.

[Relevant Charts: Chapter 12, in particular Charts 12/6-12/9]

c) If by then the directive has not been implemented, then the City Council cannot do anything, based on the principle established by the Court in Ratti, according to which the State cannot rely on its own failure against an individual. If the directive has been implemented, the City Council can take action based on national law. However, EU law takes primacy over national law (Costa). If there is a conflict between national law and EU law, the conflicting national law cannot be applied (Simmenthal).

[Relevant Charts: Charts 6/1]

d) Under EU law, there is a general right to an effective, proportionate and dissuasive remedy (Greek Maize). However, in the specific case at hand this is not relevant as there is specific harmonising law (the Directive) that contains an explicit provision on this issue. However, Heike will not be able to rely on this provision against Karl, as there is no horizontal direct effect of provisions of directives (Faccini Dori; besides, the provision in question does not appear to be sufficiently precise). She may consider an action for damages against Germany for not implementing the remedies article in the Directive (Francovich). According to the Court’s case law, non-implementation of a directive is by itself a sufficiently serious breach of EU law (Dillenkofer). In the case of deficient implementation, it will depend on the gravity of the infringement (Evans). Here, damages of one euro only are merely symbolic and as such will not be sufficient.

[Relevant Charts: Chapter 12, in particular Charts 12/32-33, further Chart 6/6]

[V.1.2]